Depraved Indifference j-3 Page 19

  It therefore came as something of a surprise to Jaywalker when he learned on Friday morning that it wouldn't be Abe Firestone handling the direct examination, but David Kaminsky. Then again, it made a certain amount of sense. This was a technical world they were about to enter, a world of academic credentials, hypothetical questions and expert opinions. It was a world where Firestone's bluster and bravado would be of little advantage compared to Kaminsky's knowledge of the rules of evidence and the laws of biochemistry.

  "The People call Dr. Malcolm Rudifer," Kaminsky announced, and a tall bald man who might have been anywhere from fifty to seventy strode into the courtroom. He wore a hound's-tooth checked jacket over a patterned wool vest and striped tie, complemented by a pair of faded tan corduroy slacks. If the outfit harkened back to an earlier millennium, it also threatened to bring on an acute case of vertigo in the beholder.

  Despite the fact that Jaywalker rose to state that he was fully prepared to stipulate to the witness's expertise, Kaminsky spent a good twenty minutes questioning Rudifer about his credentials. They included a master's degree and two doctorates, a teaching fellowship at Columbia University, a stint at the National Institutes of Health, the publication of six books and forty-some articles, and over thirty years spent studying the changes that occur in the human body and brain when ethyl alcohol is introduced to the equation.

  KAMINSKY: The People now offer Dr. Rudifer as an expert in the metabolism of alcohol.

  JAYWALKER: As I tried to say half an hour ago, we're more than happy to concede that he is.

  Justice Hinkley spent a few minutes explaining to the jurors what that meant and didn't mean. While it didn't mean that they'd have to accept his testimony as true, or regard it as any more or less important than that of any other witness, it did mean that he would be permitted to offer his opinion on matters that fell within his particular area of expertise.

  KAMINSKY: Dr. Rudifer, are you familiar with a cocktail known as the martini?

  RUDIFER: I am. A martini comprises mostly gin, although occasionally vodka is substituted for the gin. To the gin is added a small amount of dry vermouth, a white wine. Often a garnish is added, typically a green olive, a small onion or a twist of lemon peel.

  KAMINSKY: How much alcohol is contained in the average martini?

  RUDIFER: Roughly an ounce. Gin and vodka tend to be 86 or 90 proof, meaning they're forty-three to fifty percent alcohol. The typical martini glass holds three ounces of liquid, or a bit more. Half of that comes out to roughly an ounce and a half of pure alcohol.

  KAMINSKY: And are you familiar with tequila?

  RUDIFER: I am. Tequila is made from an extract of the agave plant. Tequilas can range anywhere from 80 proof to 150 proof. That translates to forty percent pure alcohol all the way up to seventy-five percent.

  KAMINSKY: If the particular tequila in question happened to be 120 proof and undiluted, how much pure alcohol would you expect to find in a one-and-a-half-ounce glass?

  RUDIFER: Well, again 120 proof means sixty percent. So I'd expect to find six-tenths of an ounce of alcohol in each ounce of liquid. Multiply that by one and a half, and you get point-nine-oh, or nine-tenths of an ounce of pure alcohol.

  Kaminsky asked some questions about variables, including the gender of the drinker, his body weight, what he'd had to eat, and the amount of time over which he'd consumed the alcohol. Then he took a deep breath and asked the first of his hypothetical questions.

  KAMINSKY: Dr. Rudifer, I'm going to ask you to assume that a two-hundred-pound male has had nothing to eat since breakfast time. Beginning about five o'clock in the afternoon, and continuing to about eight-thirty in the evening, he consumes a small amount of fried chicken wings. Over that same period of time, he drinks three martinis and six or seven one-and-one-half-ounce glasses of 120-proof tequila. First of all, are you able to give us your expert opinion, to a reasonable degree of scientific certainty, as to how much pure alcohol he would have ingested during that time?

  JAYWALKER: Objection.

  THE COURT: Come up, Counsel.

  Up at the bench, Jaywalker explained his unease with the vagueness of the terms breakfast time and small amount. And were buffalo wings actually fried? Having managed to steer well clear of them his entire life, he had no idea. But the things were so small. Wouldn't it take a ridiculous amount of them, flapping like crazy, to get a full-size buffalo off the ground?

  "Anything else?" the judge asked.

  "Give me a minute. I'll think of something."

  "Objection overruled."

  As well it should have been. And Jaywalker had expected as much. All he'd really been interested in doing was to interrupt, to break the flow of Kaminsky's direct examination, and to see if he could ask the question all over again. If he changed it in any material way, Jaywalker planned on objecting again.

  But the judge was on to his game. "Read back the question," she instructed the court reporter.

  When finally given an opportunity to answer, the witness stated that in his opinion, the hypothetical man would have ingested somewhere between 9.9 and 10.8 ounces of pure alcohol, depending on whether it had been six or seven tequilas that he'd had.

  KAMINSKY: And based upon the same set of assumptions, do you have an opinion, again to a reasonable degree of scientific certainty, as to the percentage of alcohol, by weight, that that same man would have in his bloodstream some thirty to forty-five minutes after consuming the last of those drinks?

  Again Jaywalker objected. Again his objection was overruled, this time without the courtesy of an invitation to approach the bench.

  RUDIFER: I do. Taking the lower figure, the 9.9 ounces of pure alcohol, to give the man the benefit of the doubt, it is my opinion that he would have a blood alcohol content of. 20, or twenty one-hundredths of a percent.

  KAMINSKY: Can you tell us how you arrive at that figure.

  RUDIFER: Yes. It's quite simple. Studies conducted over many years, with many thousands of subjects, tell us that for the average male, the ingestion of one ounce of alcohol raises the amount in his blood by two-hundredths of a percentage point. The 9.9 ounces would therefore have produced a percentage by weight of. 198. I then rounded that figure off to two decimal places, as is customary, and came up with. 20.

  KAMINSKY: Are you familiar with the expression "the legal limit"?

  RUDIFER: I am. It refers to the maximum amount of alcohol one may have in his blood before he reaches the level prohibiting him from driving in New York State, as well as in the other forty-nine states.

  KAMINSKY: What is the legal limit?

  RUDIFER: It is. 08, eight one-hundredths of a percent.

  KAMINSKY: The. 20 you came up with for our hypothetical man. Is that more or less than the legal limit of. 08?

  RUDIFER: More.

  KAMINSKY: By how much?

  RUDIFER: By a factor of two and a half, or two hundred and fifty percent.

  KAMINSKY: In other words This time Jaywalker's objection was sustained. But it was cold comfort. Had it been a chess match they were competing in rather than a trial, it would have been the equivalent of capturing a pawn after losing your queen, two rooks and a bishop.

  Next, Kaminsky had the witness describe the effects of such an amount of alcohol on one's ability to operate a motor vehicle.

  RUDIFER: Again, we have a huge body of studies and literature on the subject. We know from hundreds of controlled experiments that perception, motor coordination, hand-eye coordination, response and reaction time, and judgment all become impaired. And we know that the degree of impairment increases in direct proportion to the increase in blood alcohol content. We also know this, unfortunately, from the vast number of motor vehicle accidents in which alcohol has been confirmed to have been a contributing cause, if not the cause, of the accident.

  Jaywalker looked around. Not at the jurors, who- he'd long ago noticed-were listening to Dr. Rudifer with rapt attention. Not at the judge, who'd been taking notes at every damning resp
onse. And surely not at Carter Drake, who, though he still pretended to be unfazed by what he was hearing, had to be shitting bullets. Or was it sweating bullets? He could never remember, and neither one made any sense.

  No, what Jaywalker was looking around for was a hole, a hole big enough to climb into and hide in until this witness would disappear and it would be safe to come out again.

  But there was no hole in sight.

  Jaywalker had done enough reading to know that Dr. Rudifer's calculations were pretty much on the money. He cross-examined him for twenty-five minutes, trying to create a little wiggle room on his numbers. First, he had Rudifer concede that at two hundred pounds, Carter Drake was significantly heavier than the "average male" of a hundred and seventy-five pounds that the statistical models were based on.

  JAYWALKER: Wouldn't that additional body weight dilute the alcohol in the bloodstream?

  RUDIFER: Yes, but he's not far from average. The difference would be a few percentage points, no more.

  JAYWALKER: Well, correct me if I'm wrong, but two hundred minus a hundred and seventy-five equals twenty-five. That's one-seventh of a hundred and seventy-five pounds. No?

  RUDIFER: I'd need paper and pencil.

  JAYWALKER: Here.

  (Hands item to witness)

  RUDIFER: Yes, you're correct.

  JAYWALKER: And that's more than fourteen percent over the model your figures are based on. Isn't it?

  RUDIFER: Yes.

  JAYWALKER: Not just, quote, "a few percentage points, no more." Agreed?

  RUDIFER: Agreed.

  JAYWALKER: If we were to take that into account and adjust that. 20 blood alcohol estimate downward by 14.3 percent, we'd be down to an estimate of below. 17. Agreed again?

  (Witness making calculations)

  RUDIFER: Yes, agreed again.

  JAYWALKER: Thank you. Suppose for a moment that those tequilas were watered down. Say that each ounce and a half contained a half an ounce of water with a few drops of nonalcoholic caramel food coloring. Would that fact, if true, affect your results?

  RUDIFER: Yes.

  JAYWALKER: Substantially?

  RUDIFER: Yes, but it's my understanding that they weren't watered down.

  JAYWALKER: I see. And from whom did you get that understanding?

  RUDIFER: From Mr. Kaminsky and Mr. Firestone.

  JAYWALKER: And is it your understanding that they were present at the End Zone?

  KAMINSKY: Objection.

  THE COURT: Overruled.

  RUDIFER: The what zone?

  JAYWALKER: How about individual tolerance? Do you agree that even without regard to gender, food intake or body weight, different individuals metabolize alcohol at different rates, resulting in varying degrees of impairment?

  RUDIFER: Yes.

  JAYWALKER: Have you had an opportunity to study how Mr. Drake's system, in particular, metabolizes alcohol?

  RUDIFER: No.

  JAYWALKER: Have you ever met a young lady named Amy Jo O'Keefe?

  (Laughter)

  RUDIFER: Who?

  JAYWALKER: Amy Jo O'Keefe. Ninety-nine pounds, red hair. Claims she can hold her liquor with the best of them.

  RUDIFER: Not that I remember.

  JAYWALKER: Oh, you'd remember.

  (Laughter)

  KAMINSKY: Objection.

  THE COURT: Yes, the remark will be stricken.

  JAYWALKER: And as I understand it, again disregard ing body weight, alcohol effects women almost fifty per cent more than it affects men. Agreed?

  RUDIFER: Agreed. But these are all averages, and JAYWALKER: Exactly.

  RUDIFER: — you have to allow for individual variations.

  JAYWALKER: So at best, we're working with esti mates here?

  RUDIFER: Yes.

  JAYWALKER: And those estimates are subject to indi vidual variations?

  RUDIFER: Yes.

  JAYWALKER: And you don't really know what was in those drinks, other than what the prosecutors asked you to assume. Correct?

  RUDIFER: Correct.

  JAYWALKER: And if those assumptions are off, so are your results. Correct?

  RUDIFER: Correct.

  JAYWALKER: Just as they were off because of the de- fendant's body weight. Correct again?

  RUDIFER: Correct again.

  It seemed as good a place as any to stop, so he did. Kaminsky gave it a shot on redirect, and managed to undo some of the damage Jaywalker had inflicted. By the time Dr. Rudifer stepped down from the witness stand, his testimony had been weakened a bit, but by no means seriously undercut. If the jurors chose to believe Daniel Riley's account that had he hadn't watered down the drinks, there were still three martinis and six or seven tequilas between Carter Drake and sobriety.

  It was also time for the lunch break.

  The afternoon session brought to the witness stand two of the first responders to the scene of the crash. The first of these was a baby-faced state trooper named Adam Faulkner. Faulkner had been on routine patrol, meaning he'd been on the lookout for speeders and other miscreants, when a broadcast had come over the air directing any troopers in the area to respond immediately to the accident site. He'd gotten there, lights flashing and siren wailing, in under four minutes.

  NAPOLITANO: What did you find?

  FAULKNER: I found a van, down the hill from the shoulder of the highway. It was still smoldering. I would say it was ninety, ninety-five percent destroyed.

  NAPOLITANO: What did you do?

  FAULKNER: I searched for signs of life.

  NAPOLITANO: Did you find any?

  FAULKNER: No, no. Absolutely none.

  NAPOLITANO: Are you okay?

  FAULKNER: Yes. No. It was pretty bad.

  NAPOLITANO: Take your time. What did you do next?

  FAULKNER: I emptied my unit's fire extinguisher on the wreckage. I was afraid there might be an afterexplosion. I radioed my supervisor to tell him what I'd found. And I tried to keep people from getting too close. A lot of motorists had stopped. And pretty soon EMS showed up, and other units.

  NAPOLITANO: EMS?

  FAULKNER: Emergency Medical Services. The EMTs and paramedics.

  NAPOLITANO: Were you there when the bodies were removed from the wreckage?

  FAULKNER: At first I was. Then, when I saw they were bringing out kids, children, I had to leave. They were black, like charcoal. Some of them had smoke still coming from them. I couldn't stay there. I, I had to get away. If I close my eyes today, I can still THE COURT: I think we'll move on, Ms. Napolitano.

  NAPOLITANO: Yes, Your Honor.

  Miss Napolitano may have moved on at that point, but the jurors weren't about to. Jaywalker noticed out of the corner of his eye that several of them were shaking their heads slowly from side to side. He didn't dare look directly at them. Nor did he intend to ask Trooper Faulkner a single question.

  Next up was Tracy D'Agostino, one of two EMTs who'd arrived within minutes of Faulkner. A twelveyear veteran on the job, Ms. D'Agostino looked far more hardened than the youthful Faulkner.

  KAMINSKY: What was the first thing you did upon arriving?

  D'AGOSTINO: I put on a pair of heavy gloves.

  KAMINSKY: Why did you do that?

  D'AGOSTINO: I needed to get into the van, just to make sure there were no survivors that needed assistance. I put on the gloves because I figured the van was too hot to touch bare-handed.

  KAMINSKY: Were you able to get inside?

  D'AGOSTINO: Yes. A trooper and I were able to pry open one of the doors, using a crowbar. But he was shaking too much, so I climbed in.

  KAMINSKY: What did you see?

  D'AGOSTINO: I saw several rows of small children, most of them still belted into their seats, and the driver, who was crushed under the dashboard. All of them were charred. Some of them were still smoldering. All of them were dead.

  KAMINSKY: What did you do?

  D'AGOSTINO: I climbed out of the van, walked twenty yards and, if you must know, I vomited my g
uts out.

  So much for hardened.

  Again, Jaywalker asked no questions. It would be part of his summation to concede how gruesome the crash scene had been, and how horrible the results of his client's actions. But for now, the sooner he could get Tracy D'Agostino off the stand and out of the courtroom the better.

  Firestone called William Sheetz.

  Like Faulkner, Sheetz was employed by the New York State Police. But in place of a baby face was a weathered mask of experience and resignation, topped by a shock of almost white hair. And instead of appearing in his gray patrol uniform, as Faulkner had, Sheetz showed up wearing a blue suit, a white shirt and a conservative tie. Evidently the prosecution team had decided to present him as the cerebral expert he was, setting him apart from the rank-and-file troopers the jury had grown accustomed to, both on the witness stand and in the courthouse. It was a shrewd move, Jaywalker had to admit, something he might have pulled himself.

  FIRESTONE: By whom are you employed?

  SHEETZ: The New York State Police.

  FIRESTONE: How long have you been so employed?

  SHEETZ: Thirty-one years.

  FIRESTONE: What is your current assignment?

  SHEETZ: I'm a senior investigator. I head up the AIS, the Accident Investigation Squad.

  FIRESTONE: How long have you been doing that?

  SHEETZ: Nine and a half years, give or take a month.

  JAYWALKER: The defense stipulates that the witness is an expert in motor vehicle accident reconstruction.

  THE COURT: Thank you, Mr. Jaywalker.

  Sheetz had a nice way about him. He was laid-back and soft-spoken, but his voice had a rich, baritone resonance to it. His pale blue eyes squinted out from a deeply lined and weathered face. He reminded Jaywalker of John Wayne, without the hat and horse. He guessed it was no accident that Abe Firestone intended on sending the jurors home for the weekend after hearing from him.

  FIRESTONE: What sort of accidents do you and your squad investigate?

  SHEETZ: All fatalities. Also any accidents that result in serious bodily harm, or where alcohol or drugs appear to have played a significant role.

  Firestone had the witness describe how he'd responded to the site of the crash back on May 27, and what he'd found. Mercifully for the defense, by the time of Sheetz's arrival, the van and its occupants were no longer smoldering. In fact, by then the county medical examiner and his deputies were already on the scene, directing the removal of bodies.