Depraved Indifference j-3 Page 20

  Sheetz had begun examining the scene, working backward from the van's final resting place, up the embankment, through the guardrail, and finally along the road surface to the spot where fresh skid marks had first appeared on the blacktop. The pavement had been dry, he explained, addressing his remarks directly to the jurors. That had allowed the van's brakes to lock up its wheels, leaving a trail of rubber behind. Because the van was an older one, it hadn't had antilock brakes, and the skid marks were therefore solid bands rather than broken lines. There had come a point, however, where, according to Sheetz, the driver must have realized that braking alone wasn't going to be enough to enable him to avoid whatever was in front of him.

  FIRESTONE: What, in your opinion, did he do at that point?

  SHEETZ: Continuing to brake, he turned the van's steering wheel clockwise, to the right.

  FIRESTONE: With what result?

  SHEETZ: The result was that the van began to drift, then fishtailed FIRESTONE: What do you mean by "fishtailed"?

  SHEETZ: Imagine a fish with a vertical tail. In other words, one that is constructed up and down (Demonstrates), rather than, say, sideways, like the flukes of a whale (Demonstrates). The fish propels itself forward by thrusting its tail back and forth, to the left, then the right (Demonstrates). "Fishtailing," as I use the expression, occurs when the rear of a vehicle swings back and forth in much the same fashion. But instead of occurring as the vehicle is being propelled forward, it occurs because the vehicle's rear wheels have lost traction with the road surface. Next there'd come a point where the skid marks had ended altogether, indicating that the van had literally become airborne. When it had touched down again, it had done so briefly, on the shoulder of the road. From there it had bounced and gone through the guardrail and over the embankment, flipping over several times before landing, exploding, and bursting into flames.

  FIRESTONE: In your opinion, what caused it to explode?

  SHEETZ: It's not possible to know precisely, but in all probability a spark occurred, created by the rubbing of metal against metal, or perhaps metal against rough dry pavement. And that spark ignited gasoline fumes, which are extremely volatile.

  Sheetz had taken a number of photographs of the skid marks, the embankment and the charred remains of the van. Firestone had them marked in evidence, and had his witness describe what was depicted in each photo, and the significance of it in understanding the actions of the van's driver. In this way, Firestone was able to have his expert describe what had happened a second time. And just in case that wasn't enough, Sheetz had taken measurements and created a rough diagram, which he'd subsequently converted into a large, full-color, professional-quality exhibit. That, too, was now received in evidence and then explained in detail by the witness. So the jurors were treated to yet a third version of the events. But if any of them seemed to mind, their faces weren't showing it.

  Every one of them continued to give John Wayne their rapt attention.

  Next, Firestone turned to the issue of speed. Was it possible, he wanted to know, to determine how fast the van had been moving when its driver had first hit the brakes? Yes it was, replied Sheetz. By measuring the length of the skid marks, factoring in the coefficient of friction of the road surface, and referring to charts that had been developed from thousands of hours of testing, one could come up with the speed of the van within a margin of error of five percent.

  FIRESTONE: And what answer did you come up with?

  SHEETZ: According to my observations and calculations, when the van's wheels first locked up, it was traveling at a speed of forty-six miles per hour, give or take two and a half miles an hour either way, at most.

  FIRESTONE: In other words, under the speed limit?

  SHEETZ: Yes, sir.

  FIRESTONE: Now assume for a moment that the object that the van's driver had been attempting to avoid hitting was an oncoming car, directly in the van's lane. Are you able to tell us how fast that oncoming car was traveling?

  SHEETZ: No, I'm not.

  FIRESTONE: Why not?

  SHEETZ: Because I found no skid marks at all coming from the opposite direction. So I had nothing to measure, nothing to start with.

  FIRESTONE: Can you tell us anything from the absence of skid marks coming from that opposite direction?

  SHEETZ: Yes, I can.

  FIRESTONE: What's that?

  SHEETZ: I can tell you that the driver of that oncoming car never braked, never tried to stop or even slow down.

  To Jaywalker's way of thinking, it would have been a powerful moment to stop. But Firestone wanted even more. Why settle for a mere kill, after all, when you can follow it up by ripping out your victim's bloody heart, and hoisting in the air for all to see?

  In the days following Carter Drake's surrender, Firestone had obtained a search warrant for his Audi, and troopers had gone to the Manhattan garage where it was stored. Unlike Jaywalker's open-air, seventy-fivedollar-a-month parking spot in the middle of the Hudson River, Drake's spot was indoors. It was heated in the winter and air-conditioned in the summer. The spot had been purchased several years earlier for $128,500, a figure that included neither the monthly maintenance charge of $2,585 nor the additional service fee of $975. Tips, while not required, were encouraged, and were also extra.

  The troopers had towed the Audi up to a more modest garage in New City, where William Sheetz and other investigators from his squad had spent five hours going over it.

  FIRESTONE: What did you find?

  SHEETZ: We found nothing out of the ordinary. There was no indication of external damage. The steering system was intact. The brakes were fully functional. The windshield was clean and unobstructed, and provided a good view of whatever was ahead. The headlights worked, both high beams and low. The horn worked.

  FIRESTONE: In other words JAYWALKER: Objection.

  THE COURT: Yes. Please don't summarize the witness's testimony.

  FIRESTONE: Were you able to come up with any explanation as to why the driver might have failed to see the van?

  SHEETZ: No.

  FIRESTONE: Or why he'd been driving in the wrong lane?

  SHEETZ: No.

  FIRESTONE: Or why he never tried to slow down or stop?

  SHEETZ: No. No explanation at all.

  And that was where Firestone left it.

  Jaywalker glanced at his watch before collecting his notes and walking to the podium. It was after four o'clock. William Sheetz would be the last witness of the day, and of the entire week, for that matter. Jaywalker loved nothing more than to send jurors off for the weekend on a high note for the defense. But given this particular witness's testimony, that was going to be a tall order. Still, he had a couple of points to make, and he did some quick thinking on how to save the best for last. And then, as he so often did, he started where his adversary had left off.

  JAYWALKER: Is it fair to say, Investigator Sheetz, that you've investigated a number of accidents that included a leaving-the-scene component?

  SHEETZ: Yes, sir.

  JAYWALKER: Dozens?

  SHEETZ: Yes, sir.

  JAYWALKER: Hundreds?

  SHEETZ: Yes, sir.

  JAYWALKER: Thousands?

  SHEETZ: I'd say so.

  JAYWALKER: And you'd agree, would you not, that in most, if not all, of those cases, you were able to discover some evidence that the driver of the vehicle that left the scene at least slowed down before doing so?

  It was vintage Jaywalker. He had no idea at all if that was true or not. But the way he'd worded the question made it almost impossible for the witness not to answer in the affirmative. First, by inviting him to agree with the very first question out of his mouth, Jaywalker was making it easy for Sheetz to do so. If he disagreed right off the bat, he risked coming off as overly argumentative. Next, by using the phrase most, if not all, rather than something like almost all or the vast majority, Jaywalker was looking for agreement on no more than a bare majority of accidents. But later on, the jurors would forget t
he qualifier "most" and remember the absolute "all." Then, by using the words you were able to discover some evidence, he was appealing to Sheetz's ego and prowess as an investigator. A negative response could be construed as damaging to either or both of those things, a positive one as reinforcing them. On top of that, the supposition underlying the question, that even a motorist who eventually decided to leave the scene would experience a moment of indecision before driving off, made sense. It was consistent with everyday human experience. You slowed down, even briefly considered stopping, before you panicked and sped off. And finally, by pretending to be reading the question verbatim from some learned treatise, rather than springing it ad lib from his own devious imagination, Jaywalker was warning the witness that if he disagreed with the premise, he risked challenging an authority in the field.

  SHEETZ: Yes, sir.

  JAYWALKER: You'd agree with that?

  SHEETZ: I'd agree with that.

  JAYWALKER: Good. So let's take a look at that extremely rare case where you could find absolutely no evidence that the driver who left the scene ever stopped or slowed down. Might that give you pause to consider that he might never have been aware of the accident that had occurred?

  Sheetz realized too late the corner he'd put himself into. Sure, he could have backtracked and secondguessed his earlier answer. But John Wayne never did that, did he? So he did the next best thing, and gave Jaywalker as qualified a yes as he possibly could.

  SHEETZ: That could be one explanation.

  JAYWALKER: And does that explanation become more plausible with the fact that the accident, in this case the van's leaving the roadway and going over the embankment and out of view, occurred behind the driver who continued on, rather than in front of him or to one side of him?

  SHEETZ: Yes, sir. I guess so.

  JAYWALKER: And does that explanation become more plausible still if the incident occurred at night, in the darkness?

  SHEETZ: Yes, sir.

  JAYWALKER: And even more plausible if the driver who continued on did so at fifty or sixty miles per hour, and would quickly be out of both visual range of the scene and auditory range, as well?

  SHEETZ: I suppose so.

  JAYWALKER: And drawing your attention to this diagram of the scene. I'm sorry, tell us again who made it? SHEETZ: I did.

  JAYWALKER: Right. This bend in the road here… (Pointing) Continuing on after its near collision with the van, how soon would the Audi have rounded it and lost sight of the van altogether?

  SHEETZ: It depends on how fast the Audi was traveling.

  JAYWALKER: Let's assume it was going the speed limit.

  SHEETZ: Maybe two seconds.

  JAYWALKER: And if, as it's been suggested, the Audi was going five or ten miles an hour over the limit?

  It was another of those win-win questions Jaywalker loved so much. Carter Drake's driving too fast was one of the things the prosecution was counting on to demonstrate recklessness and depraved indifference to human life. Yet here was Sheetz, about to admit that in terms of having been able to see what had happened behind him, Drake's speeding would actually work in his favor.

  SHEETZ: A little less than two seconds.

  JAYWALKER: I see. You don't know exactly how long it took for the van to go over the embankment, do you?

  SHEETZ: No, sir.

  JAYWALKER: Or to explode?

  SHEETZ: No.

  JAYWALKER: Or to burst into flames?

  SHEETZ: No.

  JAYWALKER: So you'd have to agree that it's entirely possible that the driver who continued on never saw, in his rearview mirror, the van leave the roadway. Wouldn't you?

  SHEETZ: It's possible.

  JAYWALKER: Never saw or heard the explosion?

  SHEETZ: It's possible.

  JAYWALKER: Never saw the flames?

  SHEETZ: Possible.

  JAYWALKER: Probably never saw other motorists pull ing over and stopping?

  SHEETZ: Probably not.

  JAYWALKER: Certainly never saw troopers and EMTs at the scene?

  SHEETZ: No, sir.

  In the space of three minutes, Jaywalker had taken the witness from plausible to possible to probable to certain that Carter Drake had been totally unaware of the destruction he'd left in his wake. And if it was one part seman tics and two parts sleight of hand, who cared? At least it would send the jurors home on a note of uncertainty.

  JAYWALKER: By the way, those gasoline fumes you mentioned? Where did they come from?

  It seemed like an innocent enough question, something that any third grader should have been able to answer. Fr om the gas tank. But Sheetz didn't say that. In fact, for just a second, he didn't say anything. And that second was enough for Jaywalker to know that he had him on that, too.

  Way back in the early weeks of the case, when Abe Firestone had bombarded him with three huge cartons of worthless duplicated nonsense, and Jaywalker had bitten the bullet and combed through every page of it, his reward had been a sleepless night, a sore back and four nuggets of gold. The first of those nuggets had been Moishe Leopold's mistaken belief that there'd been not one but two people in the Audi. The second had been the lack of any reference whatsoever to Amy Jo O'Keefe, the little redheaded firecracker who'd matched Carter Drake drink for drink before driving herself home safely to New Jersey. Right now, Jaywalker was about to cash in nugget number 3.

  SHEETZ: The fumes?

  JAYWALKER: Yes, the fumes. Where did they come from?

  SHEETZ: They came from the van.

  JAYWALKER: Can you be more specific?

  SHEETZ: Some came from the van's gas tank.

  JAYWALKER: And others?

  SHEETZ: We found the melted remains of a five-gallon metal gasoline container.

  JAYWALKER: Were you able to determine whether that was an approved gasoline container?

  SHEETZ: I don't recall.

  Jaywalker pulled a document from his file and had it marked for identification. Dispensing with the usual protocol of asking the court's permission to approach the witness, he walked up to the stand and handed it to Sheetz. Then he stayed right there. In the movies, the cross-examiner and the witness are often pictured together. It makes for what Hollywood calls a nice tight shot. In real courtrooms, lawyers aren't supposed to crowd witnesses. But Jaywalker had once had a client who told him it made him absolutely nuts when the prosecutor had "gotten in his face." So Jaywalker did it every chance he got, and showing an adversary's witness a document provided a perfect opportunity.

  JAYWALKER: Take a look at that document, will you?

  SHEETZ: Yes, sir.

  JAYWALKER: Do you recognize it?

  SHEETZ: I do.

  JAYWALKER: What is it?

  SHEETZ: It's a memo I wrote on May 31 of last year. A long time ago. I'd forgot about it.

  JAYWALKER: And does reading it now refresh your recollection and help you recall that the metal gasoline container you found was an unapproved type?

  SHEETZ: Yes, sir.

  JAYWALKER: What made it unapproved?

  SHEETZ: It could have been several things. It might have been unvented, which means it might have been prone to burst on impact, instead of expanding or con tracting. Or it might have been the type that spill when turned over. Or it might not have been spark resistant.

  JAYWALKER: Or it might have had all three of those defects?

  SHEETZ: Yes, sir.

  JAYWALKER: Was there in fact an impact to the van?

  SHEETZ: There was.

  JAYWALKER: Did the van in fact turn over?

  SHEETZ: It did.

  JAYWALKER: And is it your opinion that there was in fact a spark?

  SHEETZ: It is.

  JAYWALKER: The van's gas tank is by law constructed to withstand all of those things. Correct?

  SHEETZ: Correct.

  JAYWALKER: How about the unapproved gasoline can?

  SHEETZ: It was apparently built without regard to those things. That's why I referred to it as unapproved.
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  JAYWALKER: What's an accelerant?

  FIRESTONE: Objection. He's not an arson investigator.

  THE COURT: He may answer if he knows.

  JAYWALKER: Do you know what an accelerant is?

  SHEETZ: Yes, sir. It's a highly volatile, and therefore in flammable, substance that's often used to get a fire started.

  JAYWALKER: Is gasoline an accelerant?

  SHEETZ: Yes, sir. One of the best. Or worst, depending upon how you choose to look at it.

  JAYWALKER: And if you choose to look at it from the point of view of those eight kids in the van?

  SHEETZ: One of the worst.

  JAYWALKER: In your expert opinion, but for the pres ence of that unapproved gasoline can, which was prone to burst, spill or explode in the presence of a spark, might those kids be alive today?

  The fact that Firestone's objection was sustained made little difference to Jaywalker. This wasn't some civil case he was trying, after all, in which the jury would be called upon to determine negligence and apportion fault among the defendant, the driver of the van, and the company that owned or operated it. But just as William Sheetz's earlier concession-that Carter Drake might never have been aware of the accident he'd caused in his wake-would give the jurors something to think about over the weekend, so too would Sheetz's implicating the exploding gasoline can, particularly when coupled with his dubious claim that he'd forgotten all about it.

  So if Jaywalker hadn't actually succeeded in outdueling John Wayne, at the very least he'd knocked him off his high horse just a bit. But still, he wasn't quite finished. He had a teaser for the jury, one last thing for them to take home with them and wonder about. Gold nugget number 4.

  JAYWALKER: Let me draw your attention to this photograph, one of several you took of the interior of the Audi.

  SHEETZ: Yes, sir.

  JAYWALKER: I wonder if you can tell us what this is, right here on the console? (Pointing)

  SHEETZ: This?

  JAYWALKER: Yes, that.