Bronx Justice Page 10

  JAYWALKER: Any deformities of any sort?

  KENARDEN: No.

  JAYWALKER: Any unusual mannerisms?

  KENARDEN: No.

  Jaywalker sat down. The testimony was over; all that remained were legal arguments. He asked Justice Davidoff to rule the photo array impermissibly suggestive, and tainted by the earlier events at the station house. He urged him to hold that a "lineup by photograph" was inherently improper when an actual lineup could have been held instead. The judge interrupted him several times during his argument, though never rudely. But he made it clear that he thought the procedures used were proper. At one point he commented rather gratuitously that "there was no question in the officer's mind, or the witnesses' minds, who the individual was who was responsible."

  Even before Pope rose to speak, Jaywalker knew the defense had no chance. His motion to suppress the court room identifications was denied, and the case was put over until February 20th.

  For trial.

  10

  A STUBBORN FOG

  Be wary of the lawyer who's afraid to go to trial. But be just as wary of the one with no fear at all. The lawyer you want, it turns out, is the one who has a love-hate relation ship with the trial process. One who, even as he readies himself to do battle, at the same time knows that it's going to take place because he's failed to deliver for his client. Failed to deliver a dismissal, a desirable plea bargain, what ever. In the final analysis, a trial is a last resort, a roll of the dice that trades compromise for either complete deliverance or complete disaster. Getting ready for trial, therefore, takes on all the seriousness of getting ready for war, and war is as serious a business as there is. The lawyer who doesn't under stand this and isn't humbled by it is no lawyer at all.

  Jaywalker understood it.

  He spent the final three weeks organizing his notes for the hundredth time, all but memorizing the testimony from the Wade hearing, tying up every conceivable loose end and planning what would become his trial strategy, his battle plan.

  Some lawyers will tell you that they win their cases by doing exhaustive pretrial investigation, others by conduct ing withering cross-examinations, still others by deliver ing brilliant summations. All of these skills are important, to be sure, as are those associated with jury selection, opening statements, direct examination, legal research and a dozen or more other items.

  With his own DEA background and John McCarthy's help, Jaywalker was more than competent when it came to the art of investigating. His acquittal rate at Legal Aid, and in the year and a half since, was impressive. But as the trial of Darren Kingston approached, he was only four years into trying cases, and most of those had been nonjury misdemeanors. He still considered himself only an average examiner of witnesses, whether on direct or cross. His summations, while good, were hardly outstanding. Jury selection was still something of a mystery to him. Over time, he would learn how to win a case during the opening statement, but back in 1980, he would have scoffed at the notion that such a thing was even possible. And he would never become a legal scholar.

  But even then, even in his infancy as a trial lawyer, Jay walker loved strategy and—though he would never have admitted it out loud—in private moments he dared to think of himself as a master tactician.

  Strategy and tactics are all but invisible to the casual observer of a criminal trial. But to Jaywalker's way of thinking, they were absolutely essential to the business of winning. What kind of a jury do you really want on a given case? Do you reveal your defense to them early on or hold off till the prosecution's committed itself? Do you concede that the crime was actually committed, or do you dispute everything? Do you attack a particular witness head-on, or do you treat her gently? Do you present an alibi defense if it depends upon family members? Do you put the defendant on the stand when doing so will reveal his prior criminal record? Or do you keep him off, know ing that your reasonable doubt argument will be stronger? Do you dress your client up in a suit and tie to show respect, or have him wear jeans and work boots, as he does in real life?

  If these seem like trivial considerations, they're any thing but. These are the things that trials are won or lost on, the stuff upon which a defendant's freedom depends. Every last one of them involves a monumental decision. And the decisions are lonely ones, made in the early morning darkness following a fitful night's sleep.

  There are lawyers who make decisions by committee— consulting with partners, colleagues, jury experts, family and friends. There are lawyers who cop out and practice defensively, refraining from making an opening statement lest they tip their hands or from asking a question on crossexamination unless they know the answer in advance. There are lawyers who put their clients on the stand simply because they want to testify and might later complain that they were talked out of doing so. And there are lawyers who decide things by not deciding, and spend their time sitting on their butts and riding the trial out as it takes its course, like a passenger parked in the middle of a canoe, watching the scenery going by and waiting for the desti nation to arrive.

  And then there was Jaywalker.

  He knew that, for better or for worse, the decisions were his to make. Not his colleagues, not his family or friends, not some self-professed expert, not even his client. Never mind that the Constitution gave the defendant the right to testify or to remain silent, the option of making an opening statement or waiving it, the choice of contesting some piece of evidence or conceding it. Jaywalker was going to make those decisions, and then he was going to convince his client why he was right. And there was only one guiding principle involved in the calculus, and its name was win ning.

  The surest way Jaywalker knew of winning was to go into court with a better game plan than his adversary, to make the right tactical decisions and then to execute them properly. But that was easier said than done. In practice, it was often nothing short of gut-wrenching. Over time, he already knew, it would eat his insides out.

  Among the decisions Jaywalker was going to have to make during this trial was what to do about the photo graphic identifications of Darren by Eleanor Cerami and Joanne Kenarden. Because Jacob Pope was prevented by law from bringing them out at trial, he had no real way of letting the jury know what had led to Darren's arrest. They would be left to speculate, something Justice Davidoff would instruct them that they mustn't do but human nature would compel them to do nonetheless.

  But unlike Pope, Jaywalker was free to go into the photo identifications if he chose to. The same statute that tied the prosecutor's hands permitted the defense to explore the matter in front of the jury, in order to show that the proce dure used had impacted the identifications the witnesses would be making at trial. Justice Davidoff had ruled that any suggestiveness hadn't risen to the level requiring trial identifications to be excluded, but that ruling didn't prevent Jaywalker from trying to demonstrate to the jurors that the procedure had nonetheless influenced the witnesses to some extent. Darren's constitutional right to have his case decided not by a judge, but by a jury of his peers, still gave Jaywalker the option of bringing up the matter if he chose to.

  But did he?

  Talk about a double-edged sword. On the one hand, Jay walker was anxious to show that Mrs. Cerami and Miss Kenarden had been influenced by each other in picking out the photo of Darren. And Detective Rendell's waiting only ten minutes to show them a photo array, no matter how fairly composed, was hardly a meaningful test. Darren's photo was still fresh in their minds; all they had to do was pick it out again. There were definitely some points to be made here.

  On the other hand, the certainty and spontaneity with which they'd reacted to the photo were damaging. And the fact that they'd been able to select it from seventeen similar-looking others, no matter how soon thereafter, was impressive. Jaywalker could imagine Pope offering the full set of photos into evidence—something Davidoff would surely let him do, once Jaywalker had opened the door— and the jurors ending up with it in front of them during their deliberations.


  Jaywalker kicked the issue around in his mind for the better part of two weeks. In the end, he decided to keep the photos out.

  Next was the issue of how to refer to the various indi viduals the jury would be hearing from and about. Whether or not he decided to put his client on the stand, Jaywalker already knew that he would be "Darren" and not "Mr. Kingston," as he was sure Pope would call him. But in Jay walker's mind, Darren was young enough—and would prove likeable enough—to be called by his first name. In proverbs, familiarity may breed contempt; at trial, handled properly, it was far more likely to breed empathy.

  The women posed another problem. To refer to them as "victims" conceded that they were, that they'd indeed been attacked. But Jaywalker was fully prepared to do just that. This wasn't a What happened? trial; it was a Whodunnit? To refer to the victims as "complainants" or "complaining witnesses"—terms that were both techni cally correct—struck Jaywalker as an obvious attempt to deny their status as victims, a denial that might offend the jurors, particularly the women among them. And there were sure to women among them.

  "Victims" it would be.

  And what of those women jurors? Even with his limited jury trial experience, Jaywalker was already convinced that not only were women more sympathetic and forgiv ing than men, but that they also reacted better to him on a personal level than men did. A lot of sexual dynamics play out in a courtroom. Jurors are yanked from their personal and business lives, and dropped into an alternative universe of sorts. In addition to everything else about the experience of sitting on a criminal trial jury, for most people it's new, different and exciting. Jaywalker was young, and good looking enough to make the older women on the jury want to mother him and the younger ones fall in love with him. Pope, with his dark mustache, dark suits, white shirts, rep ties and buttoned-down seriousness, was no competition. Knowing all that was important, and taking advantage of it was fair play. Equally important was knowing that the men on the jury might resent Jaywalker for upstaging them. They, too, were on a break from their other lives. What hope did any of them have of seducing the pretty woman sitting beside him in the jury box, when forced to compete against the defense lawyer, the solitary defender of the underdog?

  So logic seemed to indicate that women were good for his client, men bad.

  But this was a rape case. And not some date-rape case, punctuated with flirtations, nuances and he-said, she-said competing versions, calling for Solomonic apportionment of blame. No, these were forcible rapes, committed at the point of a knife by a total stranger. Worse yet, a black stranger. How on earth could Jaywalker choose women jurors on a case that epitomized every woman's worst night mare?

  But he could choose them, he decided. Even look for them. He would just have to talk about the reality of the case sufficiently during jury selection. He would have to find women who could deal with it, who could separate the aw fulness of the crimes from the only question before them: was Darren Kingston the young man who'd committed them?

  But by far the most important tactical decision facing Jaywalker concerned what sort of defense, if any, he wanted to present at trial. Limited experience had taught him that often the best defense was no defense at all. Jurors are aching to know the defendant's side of the story. They want to hear that alibi, that claim of self-defense, that second version of what happened. It was human nature at work. And why not? In our everyday lives, we're accus tomed to choosing the version of the facts we like better. It's easier that way.

  But Jaywalker's job wasn't to give the jurors what they wanted or to make things easier for them. It was to win. And he knew that putting on a defense and having a de fendant himself testify often succeeded in snatching defeat from the jaws of victory.

  And not for the reasons someone might think.

  It wasn't, for starters, that a defendant's criminal record came out when he testified. It did, to a certain extent, but Jaywalker felt fully capable of dealing with that, even of turning it to his advantage on occasion. Darren's only prior arrest had ended in a dismissal. Even if Pope were permitted to ask him about it, it wasn't a big deal. And Jaywalker would be able to point to the fact that Darren had never before been arrested on a sex charge of any sort, something he wanted the jury to hear.

  Nor did he generally hesitate to put a defendant on the stand because he might sound uneducated or stupid, speak poorly, or be forced to admit he was an unemployed illegal alien with a drug habit. Jurors were capable of forgiving stuff like that, as long as they were warned ahead of time.

  No, it was none of those things that made him hesitate.

  The single strongest thing a criminal defendant has going for him is the burden of proof the law places on the prosecution, that in order to win a conviction, it has to not only prove the defendant's guilt, but also has to do so beyond a reasonable doubt. It's a burden that the judge in structs the jury about at the very outset of the trial and again at the very end. And in between, Jaywalker would remind them every chance he got. By the time a Jaywalker jury was given a case to deliberate and decide, the words were second nature to them. They might forget the judge's name, the crimes charged and their own phone numbers. But they would remember reasonable doubt.

  The problem is, all that goes out the window when the defendant—or just about any other defense witness, for that matter—takes the stand. The human mind, it turns out, is utterly incapable of weighing one story against another while at the same time factoring reasonable doubt into the equation. The judge can tell them to do it, the defense lawyer can tell them to do it, but when it comes right down to it, it's asking the impossible.

  Already, Jaywalker had learned all this the hard way. He'd begun his trial career by putting defendants on the stand and calling their mothers to account for their where abouts at the time of the crime. His efforts were rewarded with apologetic convictions and assurances that he'd done a much better job than the prosecutor, but…

  So he changed his approach. He began keeping his clients off the stand and stressing reasonable doubt every chance he got. And what he found was that in a close case, a jury forced to put the prosecution's case to the reason able-doubt test would grudgingly acquit the defendant and save their apologies for the district attorney, explaining that they were almost convinced of the defendant's guilt, but not quite. Sometimes they would even ignore Jaywalker on their way out of the courtroom, their way of letting him know that they both knew his client deserved worse.

  Was he insulted at such times? Not a chance. In fact, the jurors' snubs were the highest form of praise they could bestow upon him, their silence music to his ears. In a contest that was all about winning, he would take a grudging acquittal over an apologetic conviction any day of the week.

  And yet, in spite of all that, Jaywalker knew that in Darren's case, he was going to have to break his rule. The victims were simply too certain in their identifications. If they were wrong—and on this particular arc of the pen dulum, Jaywalker was convinced that they were—it was because they were mistaken, not because they were lying. And unlike lying witnesses, mistaken witnesses can't be tripped up on cross-examination. Because they honestly think they're telling the truth, they come off as though they are, and jurors tend to believe them every bit as much as the witnesses believe themselves.

  Jaywalker knew, therefore, that he was going to have to present a defense, and it was going to have to include Darren himself. That thought didn't scare him the way it might have. He told himself that Darren would make a pretty good witness. He was young, good-looking, polite, intelligent enough, and ultimately likeable. His stutter wouldn't work against him once it was explained as a lifelong thing and might even generate a certain amount of sympathy. And if the victims persisted in saying they recalled no stutter on the part of their attacker, it could even become a pivotal point. Darren's previous arrest might come out, but balancing that would be his lack of any history of sex offenses. Finally, Pope wouldn't be able to trip up Darren on cross-examination any more than Jay
walker would be able to trip up the victims, because Darren, too, would be telling what he believed to be the truth. Jaywalker shook his head at the irony of that.

  In addition to Darren, there were his coworkers at the post office. Although they couldn't account for Darren's whereabouts during the rapes themselves, they might be able to undercut Eleanor Cerami's "second sighting" of Darren. And if either of the victims departed in her testi mony from what she'd told John McCarthy, Jaywalker could call McCarthy to impeach her. In addition, he knew he had to figure out a way to get Darren's mother on the stand, and perhaps other members of his family, as well, though probably not his father. Marlin had already made it clear that sitting still at his son's rape trial would be dif ficult for him; testifying without losing it altogether would be an impossibility.

  Again, as he had going into the Wade hearing, Jay walker felt ready. John McCarthy's investigation, if not ex haustive, had been pretty thorough. A lot had been learned at the hearing. Darren's being out on bail had enabled him to assist in preparation, and his family had been immensely cooperative. The luck of the draw had given them a decent judge who could be counted on to give them a fair trial.