Depraved Indifference j-3 Page 10

  "Call the murder case," the judge finally said, around a quarter of twelve, when there was nothing else left to call.

  They brought Drake in through a side door. Again he was handcuffed behind his back, though the leg irons had disappeared. Still, Jaywalker made no complaint. This was the judge's courtroom, after all, and he wasn't about to hand her any easy victories.

  "I have your motion papers," she said. "You'll receive my decision within ten business days. May I assume there has been an adequate exchange of discovery between the parties?"

  In a criminal case, an e xchange of discovery between the parties is a misnomer. The defense is required to notify the prosecution of only two things-any alibi witnesses it intends to call at trial, and whether it plans on raising a psychiatric defense-neither of which had any application to Drake's case. The prosecution, on the other hand, is obligated to turn over all sorts of things: scientific reports, photographs, diagrams, drawings, maps and sketches, as well as exculpatory material, anything tending to demonstrate the defendant's innocence.

  "I'm afraid," said Jaywalker, "that that would be an unwarranted assumption."

  "Well, why don't you serve a Demand to Produce on Mr. Firestone's office?" said the judge, the way you might tell a recalcitrant toddler that he has to finish his string beans if he has any hope of getting dessert.

  "I did," said Jaywalker. "Two weeks ago."

  "And? Are you certain you haven't received Mr. Firestone's reply?"

  Not "How about that, Mr. Firestone?" or "Why haven't you given the defense even the bare minimum it's entitled to?" Instead, she was continuing to grill Jaywalker, as though he was the one who'd been dragging his feet. And when Jaywalker did nothing but smile at the absurdity of the judge's misplaced anger, her face reddened visibly.

  "Well?" she demanded.

  "To be truthful," said Jaywalker in a matter-of-fact voice, without the least edge to it, "the only reply I've received from Mr. Firestone is that for all he cares, I can go shit in my hat."

  There are quiet courtrooms, and there are quiet courtrooms. For a full ten seconds it was as though everyone assembled-and counting court officials, interested onlookers and the media, the number had to be well over a hundred-fully expected a bolt of lightning to pierce the vaulted ceiling and strike Jaywalker dead on the spot.

  But nothing happened.

  Except that Justice Hinkley rolled her eyes upward, almost imperceptibly. Had he not been looking directly at her, in fact, Jaywalker would never have noticed.

  "Please come up," she said.

  Up at the bench, Jaywalker fully expected to be held in contempt. Not that it would be the first time, or the last. Still, even he would be forced to admit it was a bad start, even if all he'd done was to tell the truth.

  "You're lucky," said the judge. She kept her voice low and under control, so that those in the audience couldn't hear. But the result, whether intentional or inadvertent, was that her words came out more softly, and not merely in terms of decreased volume. "I might not have believed you," she continued, "but over the years, I've become familiar with some of Mr. Firestone's, shall we say, more charming expressions."

  Jaywalker exhaled.

  Judge Hinkley turned to the D.A. "What's the problem here, Abe?"

  "The problem," said Firestone, barely able to disguise his anger, "is that this son-of-a-bitch defendant murdered eight of our innocent kids and one adult, for good measure. The problem is that because of our goddamn bleeding-heart Court of Appeals, we no longer have a death penalty for the likes of him. So here's what I'm going to do. I'm going to convict him of nine counts of murder, and then you're going to give him… What's nine times twenty-five?"

  "Two hundred and twenty-five," said Jaywalker, having done the math himself some time ago.

  "Two hundred and twenty-five years to life."

  "And the way you propose to do that," said the judge, "is to withhold discovery from the defense, so Mr. Jaywalker here, who they tell me is a pretty smart lawyer, can go to the Appellate Division and get all those convictions reversed?"

  Firestone emitted what was either a grunt or the last remains of something he'd eaten for breakfast.

  "Give him what he's entitled to," said the judge. "And do it today, okay?"

  Grunt.

  "Now," she continued, "are we going to need any pretrial hearings?"

  "There were no statements made by the defendant," said Firestone, "and no physical evidence seized from him. But there was a lineup."

  This came as news to Jaywalker, something else Drake hadn't bothered to mention. "People from the End Zone?" he asked the D.A.

  "Do I have to tell him?" Firestone was looking at the judge for help.

  "Abe."

  Grunt, grunt.

  Evidently one was for yes, two for no.

  "Abe."

  " No, I said. Not the End Zone witnesses. The eye witness, the guy in the pickup truck." Then, turning to Jaywalker for the first time, he snarled, "And you're not entitled to his name until trial."

  Which was technically true, but a curious battle to pick. The guy's name had been all over the newspapers. He'd been interviewed by Matt Lauer, for God's sake. Even now, Nicky Legs, Jaywalker's investigator, was out looking for him, in order to pin him down on his story.

  "Positive ID?" the judge was asking Firestone.

  "Absolutely."

  "So we'll have a Wade hearing," said Hinkley. "I've read the minutes of the grand jury testimony, and it was more than legally sufficient to sustain the indictment. And as far as your motion for a change of venue, Mr. Jaywalker, you can renew that during jury selection if you like. But off the record, we're trying this case right here in Rockland County, where it happened. We'll let a few weeks go by so everyone can calm down. When can you gentlemen be ready?"

  "The People are ready for trial today," boomed Firestone, loud enough to reach the far corners of the courtroom.

  "No, you're not," said the judge, motioning the lawyers to step back. "Not until you've given the defense everything it's entitled to. Understood?"

  Grunt.

  "Anything else?"

  "Yes," said Jaywalker. "I have an application."

  "If it's about a bail reduction," said the judge, "forget about it. This is a murder case, and bail is discretionary. If you ask me-"

  Jaywalker raised a hand high enough to get her attention, but no more. That red hair scared him.

  "— your client's lucky to have any bail."

  "It's not about bail," said Jaywalker. Not anymore it wasn't, anyway. But there was still his second application.

  "What is it, then?"

  "My application is for what's commonly called a gag order. I'm sure the court and both sides want a fair trial, uninfluenced by any outside comments made or leaked by the parties."

  "Mr. Firestone?" said the judge. They were standing back from the bench now, and Abe had given way to Mr. Firestone.

  "I take that personally!" he shouted. "And I oppose it vigorously. The press has a right to report the facts, and the people of Rockland County and the world have a right to know the facts."

  Jaywalker had to hand it to the guy, getting all wound up over a gag order. Even if he had managed to exclude his county from the rest of the planet.

  "Facts-" Jaywalker began, but this time it was the judge who raised a hand.

  "Facts they may report," she said, completing Jaywalker's sentence for him. "I have no power over the press, or the people of the world you mentioned in your little speech, Mr. Firestone. But that speech is precisely the reason I'm going to grant Mr. Jaywalker's application. Effective immediately, neither side-and that includes any and all police agencies involved in the case-shall issue or permit the issuance of any statement, comment, remark or leaked material of any sort. Do I make myself clear?"

  "Yes," said Jaywalker.

  "Yes," muttered Firestone.

  "Anything else?"

  There was nothing else.

  "The case i
s adjourned to September 5," said Justice Hinkley, "for hearing and trial. Nice meeting you, Mr. Jaywalker."

  "Nice meeting you, too, Your Honor."

  So Jaywalker left the courthouse that day with a trial date, three cartons of discovery material and a few new insights into how justice would operate in New City.

  For starters, Abe Firestone, once you got to know him, was even worse than imagined. Despite Justice Hinkley's order, he still refused to meet with Jaywalker, instead delegating a low-level assistant to turn over the cartons of material. Worse yet, whether by design or not, he picked an octogenarian woman assistant with a bad back, so Jaywalker had to make three separate trips from the D.A.'s office to the parking lot.

  But Jaywalker had hardly been surprised by the D.A.'s antics. When somebody starts off a professional relationship by suggesting that you should go shit in your hat, your expectations tend to be modest, at best. Not that Firestone had disappointed. Pretty much everything out of his mouth, grunts included, had been gruff, angry and obnoxious. Jaywalker had been up against old-school street brawlers before. It was never fun, but it did have one saving virtue. It would allow Jaywalker to take off the gloves and fight back. Allow it? It would r equire it. And sometimes that could be fun.

  But no, Abe Firestone had been no surprise.

  Travis Hinkley had been the surprise. Smart, quickwitted, focused on the issues and, above all, strong enough to keep from getting steamrolled by the likes of Firestone. In an absurd hurry to move the case to trial, but Jaywalker would figure out a way to slow her down. He was good at stuff like that. The question of whether they could get a fair trial from her, given the hugely lopsided equities of the case, remained to be answered. Jaywalker hadn't much cared for her little speech about bail, which had been an almost verbatim reprise of the previous judge's comments. But he could only imagine what would have happened if she'd lowered the bail, and Drake got out and killed another nine people. Forget her judgeship; there'd be no place on earth safe for her. So he could understand that, and he'd already told his client to accept it and get used to his new home.

  "Can you get me a quick trial?" Drake had asked him some time ago, prompting Jaywalker to give him a short tutorial on the magical healing powers of delay. But at least for the moment, it looked as though Drake might well get his wish.

  The morning's court appearance had been brief but instructive. In addition to serving as an introduction to the major players, it had produced a good ninety pounds of reading material, which, it turned out, the D.A.'s office had boxed up several days ago, apparently figuring that single act fulfilled their obligation to turn it over to the defense. And Jaywalker had even learned a few things about the case. As he'd expected, because Carter Drake had turned himself in, there'd been no physical evidence seized from him, and following his lawyer's advice he'd made no admissions or confessions. But there had been a lineup, at which the driver of the pickup truck, the same guy who'd recognized the make of Drake's Audi and remembered part of its plate number, had picked him out. That was a surprise in itself, given Jaywalker's own recent experience with headlights and night blindness. But equally surprising was the fact that neither Drake nor either of his previous lawyers had mentioned it. Chester Ludlow had surrendered Drake. That meant there was a lawyer in the case, a lawyer who had a right to be notified by the police or the prosecution that a lineup was going to be held, and provided a reasonable opportunity to attend and observe it. Had Judah Mermelstein taken over from Ludlow by the time the lineup took place? If so, had he been alerted? Had he witnessed it? Did he even know about it?

  The discovery material would no doubt provide Jaywalker with some answers, or at least give him a few clues.

  What the discovery material actually provided Jaywalker with was a monumental headache, and an awareness that Abe Firestone, for all his bluster and buffoonery, had a shrewd side to him.

  Despite the fact that it had taken Jaywalker three trips to load the cartons into his car, and another three to haul them up to his apartment, he'd been consoled by the fact that there was such a volume of material. New York law carefully spelled out the things the prosecution was required to turn over to the defense at this early stage of the proceedings, and the list excluded not only the names of witnesses Firestone intended to call at trial, but any prior statements those witnesses had made regarding the substance of their testimony, whether written, recorded, or uttered in front of the grand jury. Those statements, which normally made up the vast majority of discovery material, didn't have to be turned over until the trial had actually begun, with the selection of a jury.

  Yet here Firestone had put together no less than three full cartons of stuff. To Jaywalker, that had to mean one of two things. Either the D.A. didn't know the law and had included witnesses' statements through ignorance, or there was an awful lot of other relevant stuff for Jaywalker to sift through and exploit.

  Neither turned out to be the case.

  Barely twenty minutes into the process, he realized what Firestone had done. He'd crammed the boxes full of multiple copies of wordy documents that bore little or no relevance to the case. He'd included, for example, more than five hundred photocopied pages of excerpts from the Vehicle and Traffic Law, pages that Jaywalker could have read from his own copy. Then there were lengthy accounts of the nine funerals of the victims, copies of every newspaper item that even mentioned the case, as well as many that didn't. There were redundant printouts of the penal law sections charged in the indictment, and long court decisions that touched only tangentially on some of the issues likely to be raised at trial.

  Even worse, none of these documents were bound, stapled or even paper-clipped together. Instead, their pages had been stuffed into the boxes almost haphazardly, as if the only concern had been making them fit. There'd been absolutely no regard to keeping them in order, or to separating them from the pages of other documents.

  Jaywalker had been bombarded with garbage.

  But why?

  Was Firestone so perverse that he took delight from a schoolboy's dirty trick? Would he spend his weekend laughing at the thought of his adversary poring over mounds of paper, only to discover that every last sheet of it was totally worthless?

  Jaywalker thought not. Dumb like a fox w as the expression that kept coming back to him. So he gritted his teeth, cleared as large a section of his floor as the dimensions of his apartment allowed, and began sorting. It infuriated him and took him well past midnight, but in the end he was left with twelve piles of pages stacked against one wall. Eleven of the stacks were taller than they were wide, and were largely worthless. But then there was the twelfth stack, though in its case, stack w ould have been a misnomer, since it contained only four sheets of paper.

  Once, more years ago than he cared to admit, Jaywalker and his wife and daughter, who'd been a toddler at the time, had panned for gold. They'd done it as a lark, stopping at a roadside tourist attraction by a Colorado creek and paying fifty dollars against a promise that they could keep all the gold they found. The operator had known what he was doing, of course. At the end of two hours, their backs ached and their sifting pans had yielded maybe a dozen tiny grains of what might or might not have been the real thing. Had they lumped them all together, they might have had enough for a dental filling, provided the cavity was a small one. The only certainty, in fact, was that they were fifty bucks poorer.

  Except for one thing.

  Jaywalker's daughter, now a grown woman with children of her own, had every one of those grains to this day. She'd kept them in a tiny glass vial, absolutely convinced they were treasure. She'd found them panning for gold in the Rockies, after all, with her mother, who was now long gone, and her father, who'd been absent too often, off in a place they called Court.

  The four sheets of paper were Jaywalker's treasure. He'd panned for them as surely as he and his little family had panned for gold that long-ago afternoon in the Colorado sun. Abe Firestone and his staff had gone to considerable lengt
hs to hide them, burying them deep among the mud and silt. The only conceivable reason they would have done that was to keep Jaywalker from discovering them and realizing that they were pure gold.

  12

  NIRVANA

  Over the next two weeks, Jaywalker busied himself preparing for Carter Drake's hearing and trial. Not that he expected it to begin the first week of September, or any week of September, for that matter. No judge, not even Travis Hinkley, would push a murder case to trial within three months of the arrest over the objection of the defense. Maybe in Yemen or Bangladesh or Texas. But not in New York. Not even in Rockland County.

  Then again, there was a first time for everything.

  He started by checking in with Nicolo LeGrosso. Nicky reported that he'd located Firestone's eyewitness, the guy who'd been driving the pickup truck.

  "Guy's name is Concepcion Testigo," said Nicky. "He's a P.R." Which, Jaywalker was pretty sure, meant neither public relations nor press release. "I made like I was Spanish myself, and we hit it off pretty good. By the way, you'll never guess what his name means in English."

  "I give up," said Jaywalker.

  "Get this," said Nicky. " Born to testify. Cool, huh?"

  Jaywalker, who knew enough Spanish to know Nicky was stretching things, chose not to argue the point. "So what did he say?" he asked.

  "Guy says he didn't get that good a look at the driver. He couldn't describe him at the scene or anythin' like that."

  "According to the D.A.," said Jaywalker, "he picked Drake out in a lineup."

  "Yeah, but that was like a week after the arrest. By that time, the guy's face was all ovuh the news."

  "And had Testigo seen it?"

  "Oh, yeah," said Nicky. "Though before he tole me that, he looked around all suspicious like, an' ast if we was talkin' off the record."