Bronx Justice Page 14

  KENARDEN: I did it. He told me to eat it.

  POPE: Did he put his penis in your mouth?

  KENARDEN: Yes, he did.

  Again Jaywalker was struck by the contrast between the two victims. Eleanor Cerami had seemed absolutely mor tified at having to testify about the details of her ordeal. As he listened to Joanne Kenarden now, he had the strange feeling that she was somehow taking a measure of satis faction from the opportunity to testify. This wasn't her shame; it was her revenge.

  Pope asked her what happened next.

  KENARDEN: Well, when he felt he was ready, he pushed me down and said, "Lie here." And he got on top of me and put himself inside me.

  POPE: Put his penis into your vagina. Is that cor rect?

  The question was leading, and Jaywalker could have objected. But he saw nothing to be gained, other than an tagonizing the jurors.

  KENARDEN: Yes. And he told me to…told me to wrap my legs around his back.

  POPE: All right.

  KENARDEN: And then he proceeded to talk to me.

  POPE: What did he say?

  KENARDEN: Well, he told me that I was very deep, and that it was good for me to be deep. And he asked me, his exact words were, "Have you ever been fucked by a black man?" He said, "Your husband must be very big."

  POPE: Was he keeping up this conversation the entire time?

  KENARDEN: Yes, he was.

  POPE: And how did he speak? What type of voice did he have?

  KENARDEN: Very gentle and very soft-spoken. I told him I was scared of him.

  POPE: And what happened after that?

  KENARDEN: Well, he felt me a little bit. He told me to kiss him, but he didn't kiss me, just put his mouth on mine. He told me to suck on his tongue, and to put my tongue in his mouth, but he didn't do anything. POPE: All right, Miss Kenarden. After he had inter course with you, what happened at that time?

  KENARDEN: He said he was ready to come. He said, "You're going to take it in your mouth again, do you understand?" I said yes. And he pulled out, and he said, "Okay, now!" And he came in my mouth.

  Pope questioned her about the lighting. She said it had been good. He asked her if she'd been able to see the man's face during the incident. She said she certainly had. He asked her how long the entire encounter had taken. She estimated fifteen to twenty minutes. Then he stepped back.

  POPE: Miss Kenarden, do you see that man here today, in the courtroom?

  KENARDEN: Yes, I do.

  POPE: Will you point him out?

  KENARDEN: The one with the leather jacket. Over there.

  She pointed at Darren, directly and defiantly.

  As had Eleanor Cerami, Joanne Kenarden stated that Darren looked thinner now than he had back in August, and that his hair seemed to be longer now than then. Shown the full-body arrest photo of Darren, she, too, identified the sneakers.

  Miss Kenarden, it turned out, hadn't phoned the police until that night. Pope, anticipating that Jaywalker might try to exploit the delay, asked her to explain why. She testi fied that she'd been afraid, and had waited for her son to get home from school. Only after she'd fed him and put him to bed had she called the police. At their request, she'd gone to the precinct, and from there to Jacobi Hospital.

  Back in 1980, the prosecution had to introduce indepen dent evidence to corroborate each element of a sex crime. In a rape case, that meant proof that force had been used. Mindful of the requirement, Pope turned to the subject of any injuries Miss Kenarden had sustained.

  POPE: Miss Kenarden, were you injured at all dur ing this incident?

  KENARDEN: Yes, sir. I received back injuries.

  POPE: What type of back injuries?

  KENARDEN: Swelling on my lower back, and bruises all up my spine and on my shoulders. Swell ing and bruises.

  POPE: And what caused those injuries, if you know?

  KENARDEN: Well, that was from being on the concrete floor, on the landing. With my legs around him, I wasn't able to move. And the friction, you know, was really hurting my back.

  Pope finished up by asking Miss Kenarden if the man had stuttered while speaking to her. Jaywalker fought back a surge of total panic. Having made no reference at all to it in her Wade hearing testimony and her trial testimony up to this point, was she suddenly going to remember it now, with Pope's prompting?

  But she said no, she hadn't noticed a stutter.

  Pope, obviously sensing that Jaywalker would be mak ing a point of it, was simply bringing it out himself first, trying to steal a little thunder from the defense. Taking a page, in other words, from Jaywalker's playbook.

  Jaywalker began his cross-examination of Joanne Kenarden as he had with Eleanor Cerami, trying to de velop the point that she'd had no occasion to pay attention to the man on the elevator before he turned on her. This time, he didn't get away with it. Miss Kenarden insisted that she'd looked directly at the man at one point early on.

  Jaywalker had more success when it came to having her place the knife in the man's right hand.

  JAYWALKER: And I think you testified, or if you didn't, let me ask you. Do you remember which hand the man held the knife in?

  KENARDEN: His right hand.

  JAYWALKER: Are you sure of that?

  KENARDEN: Yes, sir, I am.

  Again Jaywalker established that on the way from the elevator to the staircase, the man had been behind her. Again he tried to show that once the man had unscrewed the light bulb, it had become significantly darker in the stairwell.

  JAYWALKER: After the man unscrewed the lightbulb, the only light that remained was coming from the door to the roof. Is that correct?

  But where Eleanor Cerami had been easy to lead, Joanne Kenarden proved more than a match for him.

  KENARDEN: No, sir. There was light coming from a huge window.

  Jaywalker moved on to the information Miss Kenarden had given the police. He drew from her that she'd de scribed a man twenty-five to thirty years old, weighing ap proximately 175 pounds. She'd also characterized his eyes as "hooded," with a large area of the eyelid visible even when his eyes were open, giving him a "sleepy" appear ance. And she'd said his breath had an odor of alcohol, spe cifically wine.

  Darren was bright-eyed; there was nothing sleepylooking about him. And though he drank in moderation on social occasions, his taste ran to Scotch.

  Jaywalker knew from the police reports that Miss Kenarden had reported that the man was circumcised. Darren had told Jaywalker that he wasn't. Knowing that the difference in appearance is slight in an erect penis but significant in a flaccid one, Jaywalker wanted to get Miss Kenarden to say that at some point she'd seen her attacker in a nonerect state.

  JAYWALKER: After the first part of your conver sation with the man, there came a time when he told you he wanted you to go down on him, and he un zipped his pants. Is that correct?

  KENARDEN: Yes.

  JAYWALKER: Do you recall if he was wearing a belt?

  Jaywalker had learned then when dealing with a hostile witness, it sometimes paid to camouflage the important questions. It wasn't so different from the way Dick Arledge or Gene Sandusky had sprinkled in control ques tions about Darren's age or address. By keeping the wit ness slightly off guard, he hoped to prevent her from knowing in what direction he was heading.

  KENARDEN: No belt.

  JAYWALKER: And did he take his penis out?

  KENARDEN: He didn't have to. He was exposed.

  JAYWALKER: Was it erect at that point?

  KENARDEN: No, sir.

  JAYWALKER: Are you certain of that?

  KENARDEN: Yes, I am.

  JAYWALKER: Were you able to determine if the man was circumcised or not?

  KENARDEN: He was.

  JAYWALKER: He was circumcised. You're certain of that, also?

  KENARDEN: Yes, sir.

  On direct examination, Miss Kenarden had testified that during intercourse, the man had put the knife down at one point. Jaywalker saw another chance to emphasize his right-h
andedness.

  JAYWALKER: Was he facing you at the time he did this?

  KENARDEN: Yes.

  JAYWALKER: Where did he put the knife?

  KENARDEN: On the stairs, about two steps down.

  As she answered, she pointed. And pointed to her left.

  JAYWALKER: You're indicating to your left.

  KENARDEN: Yes, sir.

  JAYWALKER: So the man put it down on his right?

  KENARDEN: That's where the stairs were, to his right.

  JAYWALKER: So the knife was in his right hand as he put it down?

  KENARDEN: Yes, sir. It was in his right hand.

  Jaywalker brought out that, like Eleanor Cerami, Joanne Kenarden had noticed no scars or deformities on the man. As had Mrs. Cerami, she recalled dirty gray sneakers, but she couldn't say if they were low-cut or high-cut. And despite all her conversation with the man, she'd never once heard him stutter.

  It seemed as good a point as any to quit on.

  Pope, on redirect examination, sought to reinforce the certainty of his witness's identification of the defendant as her attacker.

  POPE: Is there any doubt in your mind, Miss Ke narden, that this man, Darren Kingston, is the man who raped you onAugust sixteenth, nineteen-seventy nine?

  KENARDEN: No, sir, there is no doubt.

  But Jaywalker managed to get the last word in, on recross.

  JAYWALKER: Is there any doubt that he held the knife in his right hand?

  KENARDEN: No, sir, there is no doubt.

  JAYWALKER: Any doubt that he was circumcised?

  KENARDEN: No, sir, no doubt.

  Jaywalker took his seat. Joanne Kenarden stepped down from the witness stand and strode out of the court room, as defiant as ever. Justice Davidoff recessed the trial until the following morning.

  Late that night, Jaywalker found himself unable to fall asleep. Not that there was anything unusual about that. They were finished with the two victims' testimony. Though both had pointed Darren out as their rapist with un flinching certainty, Jaywalker felt he'd nonetheless scored some points. He'd managed to lay the groundwork for demonstrating a number of discrepancies between the man the victims had described and the one who was on trial.

  While his wife and daughter slept, Jaywalker sat at the kitchen table, scribbling notes.

  Age 25-30+ 25-30 22

  Weight 180 175 145

  Eye color Red —— Brown

  Eyelids —— Hooded Normal

  Eleanor Joanne

  Cerami's Kenarden's Darren

  Rapist Rapist ⎯⎯⎯⎯ ⎯⎯⎯⎯ ⎯⎯⎯⎯

  Penis —— Circumcised Uncircum

  cised

  Speech Normal Gentle Stutter Shirt Tan knit Tan knit Doesn't

  own

  Sneakers Low-cut —— High-cut

  Body build Heavy Solid Slender

  Hair Short Afro Short Medium

  Afro

  Handedness Right Right Left

  Scars None None Eyebrow

  Deformities None None Chipped

  front tooth

  While some of the discrepancies were arguably minor, some were truly significant—the stutter, for example, and the circumcision, and the left- or right-handedness. Perhaps even more tellingly, wherever the victims were off the mark in describing the defendant, their versions barely departed from each other. In other words, they were de scribing the same man; it just didn't happen to be Darren.

  But in order to drive this point home, Jaywalker knew,

  he would have to put Darren on the stand, as well as other

  members of his family. He would have to prove, for

  example, that Darren was left-handed, that he hadn't lost

  weight since last August, and that he'd never owned the

  shirt or sneakers the witnesses had described. Because

  judges tend to disapprove of people dropping their pants

  on the witness stand, Jaywalker would have to find a doc

  tor to examine Darren and testify that he wasn't circum

  cised. On top of those things, he would need to round up

  witnesses from the post office to show, if they could, that

  Darren had been at work at the time Eleanor Cerami claimed she'd seen him again in her lobby, a second—or

  perhaps a third—time.

  And if he did all those things and more, was that going to be enough? Would logic prevail? Or were the jurors simply going to throw all that to the wind and remember only how absolutely certain the two victims had been that Darren Kingston was the man who'd raped them?

  It would be a long time before Jaywalker would make it to bed, and an even longer time before anything remotely resembling sleep would come his way.

  13

  THE CYCLONE

  Jacob Pope's first witness Tuesday morning was a gyne cologist from Jacobi Hospital named David Blume. Dr. Blume had examined Joanne Kenarden; a Dr. Genovese had examined Eleanor Cerami, but he was currently out of the country. So Dr. Blume was called to describe the findings from both examinations—Miss Kenarden's from his own recollection and Mrs. Cerami's from Dr. Genovese's notes.

  Eleanor Cerami had been seen at 3:50 p.m. on August 16th. She'd presented as agitated and nervous. There'd been no sign of external injury, such as bruises or lac erations. A pelvic examination had revealed no obvious evidence of internal injury. A vaginal smear had been taken, and upon microscopic examination it had revealed the presence of one or two sperm.

  Today, of course, those one or two sperm might have made all the difference in the world. With DNA testing, it's entirely possible that a technician could have enhanced the sample and typed it, and then provided the jury with a genetic profile of the sperm donor, either establishing beyond astronomical odds that it was indeed Darren Kingston or excluding him with an equal degree of scien tific certainty. But this was 1980, and the technique was still in its infancy. Genetic typing had only begun to be seriously studied, and it would be years before it would begin to make the journey from the laboratory to the court room.

  Joanne Kenarden had been seen at 1:13 a.m. on August 17th. She'd complained of pain to her lower back, and Dr. Blume had found some tenderness in the area. Micro scopic examination of a vaginal smear had revealed no sperm.

  Jaywalker's cross-examination of Dr. Blume was brief. He established that during intercourse a fertile young male would normally discharge as many as sixty to a hundred million sperm, some of those even prior to ejaculation. But there was little more Jaywalker could do. The fact that the rapist hadn't ejaculated in Mrs. Cerami—or "shot," as he might have phrased it—made the discovery of only one or two sperm in a representative smear seem reasonable. And Miss Kenarden's testimony had left little doubt that ejacu lation had taken place in her mouth, rather than in her vagina. That fact, coupled with her delay in going to the hospital, rendered meaningless the absence of sperm in her swab.

  Pope next called Dr. Paul Jarakanak, a surgical resident at Jacobi Hospital. Joanne Kenarden had been referred to him by Dr. Blume, and he'd examined her later that same morning, August 17th. Dr. Jarakanak had found tenderness in the lower vertebrae, and had ordered X-rays, which had failed to disclose any fracture or dislocation. Still, accord ing to Dr. Jarakanak, Miss Kenarden's tenderness could have been caused by trauma or physical injury.

  All of these findings—with the exception of the one or two sperm found in Mrs. Cerami's swab—added up to almost nothing, in medical terms. But Jaywalker under stood the prosecution's interest in nevertheless pursuing them. Pope was concerned about the corroboration re quirement. It would be his position that in Mrs. Cerami's case, corroboration could be found in the sperm, which, according to both Mrs. Cerami and her husband, could only have come from her attacker. In Miss Kenarden's case, with the absence of sperm, Pope would argue that the lower back tenderness supplied corroboration.