Bronx Justice Page 12

  Over the years, Jaywalker would come to completely repudiate those bits of wisdom. As he would hone his trial skills, perhaps the biggest change he made would be in his approach to the opening statement. Today, he considers it a major weapon in his arsenal. Dispensing with the usual formalities of "May it please the court," "Ladies and gen tlemen of the jury," or even "Good morning," he launches directly into a narrative account of the way things really happened, according to the defendant. "Darren Kingston woke up on the afternoon of September eleventh and went to work, as he always did." The jurors would listen, riveted, as though they were hearing actual testimony. More than any other change he's made in the way he tries a case, Jay walker credits this one for the dramatic rise in the number of acquittals he's recently won.

  But that was the twenty-first-century version, modified and perfected over the years. This was 1980, and he still had much to learn.

  He cautioned the jurors not to make their minds up after hearing the first few witnesses. He told them to refrain from drawing conclusions until all the evidence was in, hinting—without coming right out and saying— that there would be a defense case, and they should suspend judgment while they waited to hear it. He sat down barely three minutes after he'd begun.

  Looking back at his opening statement years later, Jay walker would be forced to give it a failing grade, a flatout F. It was a brief, cautious, ultraconservative opening, calculated not so much to help the defense as to avoid hurting it. And therein lay the fault. Jaywalker finds a good analogy, as he tends to do these days, in the world of sports.

  A football team is clinging to a slim lead late in the game. The coach orders his pass defenders to drop back deep. The strategy is to surrender the short gain, while preventing the long one at all costs. There's even a widely used term for it, the prevent defense. Its weakness, of course, is obvious. A clever opposing team will exploit it with a rapid series of short gains, marching down the field and into the end zone. Which is why its critics say that the only thing the prevent defense really prevents is winning.

  Jaywalker had deliberately chosen to make a prevent defense opening statement. In an exercise of caution, he'd passed up a golden opportunity to immediately go on the offensive. That he was simply doing what he'd been taught to do, what ninety-nine percent of his colleagues would have done in his place, was no excuse.

  Jacob Pope called his first witness.

  Eleanor Cerami's tinyness must have struck the jury as soon as she entered the courtroom. To Jaywalker, she seemed even more frightened than she'd been at the hearing. Her "I do" when sworn in was all but inaudible.

  Pope began his direct examination by bringing out that Mrs. Cerami had two children, one six years old, the other seven months, and that she and her husband were sep arated. What the jury wouldn't learn was that it had been the rape that had led to the separation, a phenomenon that is unfortunately as common as it is disturbing.

  Pope then produced a large two-dimensional diagram of the Castle Hill Houses and offered it into evidence. Jaywalker stated that he had no objection. Because he didn't like jurors to get the impression that he was trying to keep things from them, he made it a habit to move to exclude evidence before trial, whenever possible. Once the jury was present, he did his best to welcome whatever was being offered. In so doing, he hoped to leave the impres sion that he was open and fair-minded, unconcerned about technical rules, and not the least bit threatened by the evidence about to come in. Lastly, the strategy also helped him buy some credibility with the judge, who would learn that on those occasions when Jaywalker did object, his points were usually well taken.

  Pope had Mrs. Cerami point out her particular building on the diagram. Then he got down to business. POPE: Mrs. Cerami, were you living in that build ing on August sixteenth of last year?

  CERAMI: Yes, I was.

  POPE: I call your attention to approximately twelve o'clock to twelve-thirty on the afternoon of that day. Do you recall that time?

  CERAMI: Yes, sir, I do.

  With that introduction, in a voice barely above a whis per, Eleanor Cerami began describing what had hap pened to her that day. She'd been coming back from the cleaners. She'd entered her building and was standing in the lobby, waiting for the self-service elevator. She'd noticed, if only barely, a young black man, who also seemed to be waiting.

  When the elevator arrived, she'd stepped on, followed by the man. She'd pressed her floor, twelve. The man had pressed ten. There'd been no one else on the elevator. When they reached ten, the man had stepped off. Then he'd turned around and gotten back on. Only now he'd been holding a knife. He'd told her to be calm, not to panic or scream. The door had closed, and they'd continued up to twelve. But when the door opened there, he wouldn't let her get off. The door had closed again, and they'd ridden back down to ten.

  Pope interrupted the narrative and asked Mrs. Cerami to describe the knife. Except for his questions and her answers, the courtroom was utterly silent.

  POPE: What did it look like?

  CERAMI: It was big. I'd say the blade was eight inches long. Brown handle, silver blade. Thin.

  Back down on the tenth floor, the man had led her off the elevator, holding the knife against her back. He'd taken her through a door, into a stairway and up half a flight of steps, stopping between the tenth and eleventh floors. There he'd reached up and unscrewed a bare lightbulb until it had gone out. The stairway had darkened some, but she'd still been able to see the man pretty well.

  POPE: And what happened then, Mrs. Cerami? Tell us as best as you can.

  CERAMI: The man stood right close to me and held me. He looked at me and told me to stop shaking, calm down, stop being nervous. And then he said, he asked me to go down on him. I said, "Oh, my God, I can't." And he just showed me the knife, and I had to.

  She described how the man had unzipped his pants and exposed himself, and forced his penis into her mouth as she'd knelt in front of him. Finally, gagging, she'd stopped and said, "I can't anymore." And he'd said, "Okay, that's enough."

  POPE: Now after that happened, Mrs. Cerami, what happened, what occurred next? What did he do?

  CERAMI: He told me to take off my panties, and I did. We went down the stairs to the landing. He told me to lie on the floor with my back toward the floor and my legs leaning down on the stairs. He said, "You know what I'm going to do now?" And he got on top of me and he said, he asked me, you know, to put his penis in me, and he said, "I want you to fuck back good."

  POPE: Tell us what occurred. Did he say anything else at this point?

  CERAMI: He just kept on saying, "Come on, move, move!" He wanted me to move, but I couldn't. I was too nervous.

  Pope pushed on with his questioning.

  POPE: Tell us as much as you can. What do you re member him saying to you?

  CERAMI: He asked me why I was so big inside. I told him I'd just had a baby. And I guess he was hav ing difficulty, you know, with me. And he just kept on telling me, "Fuck back, fuck back!"

  POPE: Okay. What happened after that?

  CERAMI: Well, then he said to me, "All right, I'm going to do you a favor. I won't shoot in you, be cause you just had a baby." And he got up and put his pants on.

  She went on to describe how the man had left, and how she'd gotten dressed and run to her apartment. Each time she paused to take a breath, the courtroom was stone-cold quiet. Jaywalker shot a sideways glance at the jurors once or twice. Had he been asked to describe their reactions, the word that would have come to mind was cringing.

  Pope wasn't finished with Eleanor Cerami. He had her back up to repeat that the lighting had been good enough for her to see the man clearly. He brought out that they'd been face-to-face much of the time, only inches apart. He drew from her the fact that she'd been with the man a good fifteen or twenty minutes. He had her describe the clothing he'd been wearing: a knitted, close-fitting, short-sleeved shirt, jeans—dungarees was the actual word she used— and dirty gray sneakers.

  The
n Pope lowered his voice dramatically.

  POPE: Mrs. Cerami, do you see that man now in the courtroom?

  CERAMI: Yes, I do.

  POPE: Point him out, please.

  Eleanor Cerami turned toward the defense table and pointed directly at Darren Kingston. "Right there," she said.

  Still Pope pushed on. He had his witness look at a fullbody photograph taken of Darren at the time of his arrest, so that she could point out the sneakers he was wearing— the same ones, she stated, that he'd worn when he raped her. Asked to compare how the defendant looked in court to how he'd appeared back in August, she said he was thinner now, and neater.

  Pope questioned Mrs. Cerami about her actions follow ing the incident. She'd run first to her apartment, then to a neighbor's, where she'd begun screaming and crying. She'd phoned her mother, then a friend, who had called her husband. Later that afternoon, the police had shown up and spoken to her. Then her husband had come and taken her to the hospital to be examined.

  Next Pope wanted to know about Mrs. Cerami's recent pregnancy. She testified that she'd given birth at the end of June, some six weeks before she'd been attacked. And she stated that, except for the rape in August, she hadn't had intercourse during the period between then and the trial.

  Pope moved on to another area.

  POPE: After the date of the rape, August sixteenth, did you have occasion to see the defendant again?

  CERAMI: Yes, I did.

  POPE: And do you recall when that was?

  CERAMI: About a week after, in the lobby of my building. I was going to get my mail, and I saw him coming in from one entrance of the building and crossing through to the other side, to get out.

  Jaywalker took notes furiously. This couldn't be the incident Pope had warned them about, shortly after Darren's release on bail. He'd had Darren check that one out, and—if they were right about when it had occurred—it was possible that Darren had been at his job at the post office at the time. But now Pope seemed to be asking about a different occasion, one back in August, prior to Darren's arrest.

  POPE: You say a week after. You mean in the same month? August?

  CERAMI: The same month.

  Had there indeed been another, earlier sighting of Darren, after the rape but before his arrest? Or was Cerami simply mistaken about how soon she thought she'd seen her attacker again? And was Pope as surprised as Jay walker was? Or was he now trying to take advantage of the situation and move the sighting from September back into August, in order to preempt any alibi Jaywalker might have for it?

  POPE: Was it August? Or September?

  CERAMI: August.

  POPE: Do you recall the date?

  CERAMI: No. I just know it was a Monday.

  POPE: You don't recall the date exactly. Is that cor rect?

  CERAMI: No, I don't.

  POPE: And did you have a conversation with some one with respect to seeing the man again? CERAMI: Yes.

  POPE: And who was that?

  CERAMI: I called Detective Rendell.

  POPE: And did you call him on the same day that you saw the man again, walking through your lobby?

  CERAMI: Yes.

  So from momentarily thinking there'd been yet another sighting, or even suspecting Pope of deliberately mud dying the waters with his witness's mistake, Jaywalker now saw that Pope was playing it straight. He was obvi ously every bit as surprised by Mrs. Cerami's error as Jay walker was. First he'd tried to jog her memory, but since she was his witness, he couldn't do so by leading her or otherwise coaching her. Having failed to get her to correct herself, he'd had to settle for highlighting her slight uncer tainty. Finally, he'd tied the sighting to her phone call to Detective Rendell, who would be in a position to clear up the confusion once he took the stand, later on in the trial.

  So Pope hadn't been trying to pull a fast one, which was pretty much in character. He was simply being the same old Jacob Pope: thorough, formal, dry, colorless to the point of being stiff. But not dirty.

  If anyone had been at fault, it had been Jaywalker himself. As soon as he'd realized Mrs. Cerami's error and Pope's inability to correct it, he should have asked Justice Davidoff's permission to confer with Pope. Together, they could have stipulated to the actual date of Mrs. Cerami's phone call to Detective Rendell and announced it to the jury, quickly putting any confusion to rest. But Jaywalker still had plenty to learn back then, and he'd let it go.

  Pope had one final question for his witness. As he had several times earlier on, he lowered his voice dramatically.

  POPE: I have no further questions at this time, ex cept one. Let me ask you, Mrs. Cerami. I want you to look at the defendant again. I want you to tell me whether there is any doubt in your mind that this is the man who raped you and orally sodomized you on August sixteenth, nineteen-seventy-nine.

  The question was repetitive, and Jaywalker could have objected to it. Maybe he realized a second too late. Maybe he was afraid his objection would be overruled, serving only to draw attention to the point Pope was trying to make. Perhaps he was even entertaining the fantasy that the witness might somehow hedge or stumble in her answer, betraying the slightest bit of hesitancy. If so, it was a foolish fantasy. Again Mrs. Cerami looked directly at Darren.

  CERAMI: No, there's no doubt in my mind.

  As he had at the Wade hearing, Jaywalker began his cross-examination of Mrs. Cerami gently. The hearing had taught him what not to ask her at the trial. He knew better, for example, than to try to shake her certainty that Darren was her attacker. The most he could hope to do was to demonstrate that there'd been obstacles to her observa tions, lapses in her memory, and discrepancies between how she'd described her rapist to the police and how Darren Kingston really appeared. The very worst thing Jaywalker could do was to attack her and end up alienat ing the jury even more against his client. Eleanor Cerami had already been victimized once, after all, and once had been more than enough.

  So he began by establishing that Mrs. Cerami had had no reason to pay attention to the man upon first seeing him, and in fact had barely taken notice of him before he'd pulled the knife. He got her to agree that once he did pull the knife, she focused on it, rather than on his face. There fore, on the elevator—where the lighting had been the best—she'd had little occasion to study her attacker's face.

  JAYWALKER: Did he sort of put one hand on you to guide you out?

  CERAMI: Sort of.

  JAYWALKER: So he sort of followed you off the elevator?

  CERAMI: Right.

  JAYWALKER: And did he sort of steer you to ward the door—

  CERAMI: Yes.

  JAYWALKER: —to the stairs?

  CERAMI: Yes.

  JAYWALKER: So he was sort of behind you, and still had the knife somewhere against your back. Is that right?

  CERAMI: Right.

  JAYWALKER: And he came in behind you?

  CERAMI: Yes.

  JAYWALKER: And the door then closed behind him. Would that be right?

  CERAMI: Yes.

  JAYWALKER: Did you then go up the steps? Or down the steps?

  CERAMI: Up the steps.

  JAYWALKER: And again he was behind you, guid ing you or steering you?

  CERAMI: Right.

  Jaywalker asked her to demonstrate how the man was holding the knife. When she gestured with her right hand, he pressed on.

  JAYWALKER: You're indicating with your right hand. Is that your recollection?

  CERAMI: Yes.

  JAYWALKER: Did he have anything in his left hand?

  CERAMI: No.

  Jaywalker brought out that at no time had he cut her. He wanted the jury to be certain of that. He also wanted to try to get Mrs. Cerami to relax just a bit, if she could, instead of concentrating so hard on where he was going with his questions. Because there were a couple of impor tant points he needed to develop with her. The exact way in which the man had loosened the overhead lightbulb, for example.