Depraved Indifference j-3 Page 27

  "Because she started answering questions, and then stopped when she didn't like the question." The voice wasn't Firestone's, but David Kaminsky's. "She can't pick and choose."

  Instead of asking Jaywalker to respond to that, the judge turned to Amanda's new lawyer. For once, Jaywalker was to be nothing but a bystander, albeit a very interested one.

  "She's not picking and choosing," said Judah Mermelstein. "You asked me to confer with her, and I did. I determined that she's in real jeopardy of incriminating herself, however she testifies. You asked me to advise her, and I did. I advised her to refuse to answer all questions that go in any way, directly or indirectly, to the issue of who was driving."

  "This is a fraud!" shouted Firestone. "A fraud!"

  "You've got one day already," the judge reminded him. "Want to try for two?"

  Apparently not.

  "Mr. Mermelstein," said the judge. "May I assume that if your client is asked additional questions along this line, she will continue to invoke her privilege and refuse to answer them?"

  "You may."

  "Upon that representation, the court is satisfied that it would be useless, and therefore improper, to have the witness asked any more questions on the subject and be forced to invoke her privilege. Now, Mr. Firestone, as district attorney, you have a remedy. You can grant the witness immunity from prosecution. If you do that, I'll compel her to answer, since her answers will no longer incriminate her, except for perjury if she lies."

  "Immunize her?" Firestone shouted. "If she was driving, I'm going to prosecute her for murder. Why would I want to immunize her?"

  "Very well," said the judge. "It's your call."

  "If Your Honor please?"

  "Yes, Mr. Kaminsky?"

  "The witness has already testified on direct examination. If no further questions may be put to her, the effect will be that the People will be denied the right to crossexamine her. That's unfair."

  "So it is," the judge agreed. "Therefore, you have a choice. You can ask me to strike her direct testimony altogether and tell the jury to disregard it. Or you can let it stand as is. Or, if you're very careful about it, you can cross-examine her on other areas."

  Firestone, Kaminsky and Napolitano went off to the corner of the room to confer. When they broke their huddle and returned, Kaminsky spoke for them. "We'd like to cross-examine her," he said. "And we intend to ask her about her relationship with Mr. Jaywalker."

  "Her relationship?"

  "Yes. We want to try to show that there's been collusion between the two of them."

  "I'll let you ask relevant questions," said the judge. "If I feel you're crossing the line, I'll rule accordingly. Now, Mr. Jaywalker, are you through with Mrs. Drake?"

  "In exactly what sense do you mean?"

  "I mean do you have any further direct examination of her."

  "No."

  "Good. Your wisecrack is contemptuous, and you'll be joining Mr. Firestone in jail tonight. Mr. Clerk, bring the jury back in."

  "And the spectators?"

  "Them, too."

  While David Kaminsky might have had a better handle on how to cross-examine Amanda Drake within the boundaries Justice Hinkley had set, Abe Firestone's ego was again too big to assign the task. He began innocently enough, asking her to describe her husband's condition when she'd first seen him emerge from the End Zone. She stated, as she had on direct, that he'd appeared drunk.

  FIRESTONE: Too drunk to drive?

  AMANDA: Certainly too drunk to drive safely.

  FIRESTONE: No doubt about that in your mind?

  AMANDA: No doubt about that.

  FIRESTONE: And yet he insisted he was fine. Right?

  AMANDA: I don't know if he used the word f ine. But he insisted he could drive.

  FIRESTONE: And you disagreed.

  AMANDA: That's right.

  FIRESTONE: And you then fought over the keys.

  AMANDA: Yes.

  FIRESTONE: Who won?

  MERMELSTEIN: Objection.

  THE COURT: Sustained.

  FIRESTONE: Tell me, Mrs. Drake. Do you love your husband?

  AMANDA: I would say we have a love-hate relation ship.

  FIRESTONE: So you do love him?

  AMANDA: In part, I do.

  FIRESTONE: Would you help him out if he was in trou ble?

  AMANDA: If I could. I helped him out by driving up to Nyack.

  FIRESTONE: Would you lie to help him out?

  It was a question prosecutors couldn't resist, Jaywalker knew. So it was a question he'd made sure to prepare Amanda for. And not to just say no; common sense dictated that a wife would lie to help her husband out, and jurors were smart enough to know that. AMANDA: I'm not sure. I might, I guess. But I haven't had to decide. I haven't lied up till now, certainly, and I don't expect to. Besides, I'm very bad at lying, and you'd know as soon as I tried.

  (Laughter)

  FIRESTONE: How about your relationship with Mr. Jaywalker?

  AMANDA: I wouldn't characterize that as a love-hate relationship, if that's what you're driving at.

  (Laughter)

  FIRESTONE: How would you characterize it?

  AMANDA: I was asked by my husband to find him the best criminal defense lawyer I could. I found Mr. Jay walker. Because he's my husband's lawyer, I've devel oped a professional relationship with him. I've also come to consider him a friend.

  FIRESTONE: Have the two of you discussed the case?

  It was another area prosecutors loved. And therefore another area Amanda was ready for.

  AMANDA: Of course.

  FIRESTONE: A number of times?

  AMANDA: Naturally.

  FIRESTONE: Were some of those conversations, shall we say, beneath the bedsheets?

  THE COURT: Sustained, we shall say.

  FIRESTONE: Well, you and Mr. Jaywalker have been intimate. Have you not been?

  THE COURT: Sustained. Move on, Mr. Firestone.

  FIRESTONE: By "intimate," I mean THE COURT: And by "Move on," I mean "Move on." Is that clear enough for you, Mr. Firestone, or do I need to explain myself further?

  FIRESTONE: It's clear enough, Your Honor.

  God bless.

  FIRESTONE: Well, Mrs. Drake, did Mr. Jaywalker ever tell you what he wanted you to say when it came time for you to testify?

  AMANDA: Yes, several times. He told me to tell the ab solute truth, no matter what happens.

  Nicely done.

  FIRESTONE: Did the two of you discuss strategy?

  AMANDA: Strategy?

  FIRESTONE: Yeah, trial strategy. In other words, how he intended to get your husband off.

  AMANDA: No, we didn't.

  FIRESTONE: Never?

  AMANDA: Never.

  FIRESTONE: And he never told you what to say? Not even once?

  AMANDA: Only to tell the truth. He said that would be good enough, once the jury heard it.

  Firestone didn't quite give up there, but he might as well have; it got no better for him. After another fifteen minutes of dancing, he finally quit, and Amanda was allowed to step down.

  "The defense rests," said Jaywalker, in a voice meant to sound both soft and self-assured. And just like that, the trial testimony had ended, not with a bang, but a whisper.

  With the testimony completed, the lawyers spent the afternoon in conference with the judge. First, perhaps exhibiting a measure of buyer's remorse, Abe Firestone asked her to strike the testimony of Amanda Drake, as she'd earlier offered to do. Jaywalker objected, naturally.

  "No," she told Firestone. "I gave you your choice, and you made it." Then she spent the better part of an hour explaining how she intended to charge the jurors. Only when she'd finished did she turn to her clerk. "Are the accommodations for Mr. Firestone and Mr. Jaywalker ready?" she asked.

  "Won't you reconsider?" Kaminsky pleaded. "I'm sure they're both sorry."

  Jaywalker said nothing. Sorry had never been a big part of his vocabulary.

  "Certainly," she said. "Very
well, I've reconsidered. And I'm not changing my mind. Take them away."

  So that night, the two of them doubled up in the same cell that Jaywalker had shared with his client two nights earlier. Firestone was livid; he kept complaining that he was supposed to be home, working on his summation. Jaywalker, who'd been working on his summation for six months, couldn't have cared less. He used his one phone call to ask Amanda to bring him another change of clothes.

  "I don't have the key to your apartment this time," she pointed out.

  "Look under the doormat of the apartment across from mine," he told her.

  "The one across from yours?"

  "Yeah. The little old lady's, 4-G. We keep each other's spare keys. Only this way, anyone who happens to discover one under the mat will find it won't unlock the door it's in front of."

  That night Jaywalker gallantly insisted on taking the upper bunk. The truth was, there was no way he was going to sleep directly beneath the two-hundred-andfifty-pound Firestone. The good news was that around midnight, Abe stopped complaining. The bad news was that a few minutes later, he started snoring.

  23

  A SUPERSTITIOUS ATHEIST

  "Michael Fishbein, eleven. Sarah Teitelbaum, eleven. Anna Moskowitz Zorn, ten. Andrew Tucker, nine. Sheilah Zucker, nine. Steven Sonnenshein, eight. Beth Levy-Strauss, seven. Richard Abraham Lubovich, six. Walter Najinsky, forty-three." One by one, he recited their names and ages. He did it slowly, and as gravely as possible. And he did it from memory. He knew that if he didn't do it, Abe Firestone would.

  "None of them should have died, not one of them. And but for the actions of my client, every one of them would be alive today. Because we can all agree, every one of us, that it was Carter Drake who set into motion the chain of events that took them from this life, and took them from you. In a very real sense, he bears responsibility. He will go to his grave bearing responsibility. He will meet his Maker bearing responsibility. Knowing full well that he would have to drive home that evening, he drank too much, perhaps far too much. That was an incredibly selfish act on his part, an act that neither you nor I, nor even this court, has the power to forgive.

  "But we are a nation of laws, and a trial is an inquiry into whether our laws have been broken. Nothing more, nothing less. And under our laws, selfishness-no matter how blatant and how repugnant it may be to us-is not a crime. Search for it in the indictment. Read all ninetythree counts. You will find no mention of selfishness, no charge of arrogance, no accusation of ultimate responsibility. What you will find are the names of ninety-three specific crimes alleged to have been committed by my client at about nine o'clock on the evening of the twentyseventh day of May, some eight months ago. And as it turns out, despite his insistence that he is guilty of every one of those crimes, Carter Drake is guilty of none of them."

  He let that hang in the air a moment. He'd woken up during the middle of the night, Jaywalker had, totally disoriented, with no idea where he was. Only the sound of Abe Firestone's snoring had jarred him back to reality. Then, as he lay on his back on the upper bunk, the ceiling only inches from his face, a flood of panic had washed over him. Had the jurors caught Drake's left-handed blunder? Did they understand the significance of his inability to downshift? Or had those things gone right over their heads? He hadn't slept after that, had instead spent the rest of the night fighting off the sensation that the cell was filling with water. The rise and fall of Firestone's breathing beneath him became a giant bellows-driven pump, gushing out invisible gallons of seawater that would eventually rise and engulf him. He had failed, he knew. In his inability to get Drake to finally come out and admit he hadn't been driving, he'd left the jurors with too little to go on. They were going to convict.

  That had been last night.

  Now it was today. And if they were going to convict, they were going to do so over Jaywalker's dead body.

  "You and I came into this trial," he told them, "absolutely certain of two things. The first thing we were certain of was that nine people, eight of them very young children, had died horrible, horrible deaths. Needless deaths. The second thing we were absolutely certain of, or at least thought we were absolutely certain of, was that it was my client who'd been driving the Audi when it ran the van off the road and caused those nine deaths. I was every bit as certain of that as you were. And for much of the trial, nothing happened to cause us to question that certainty. After all, hadn't the defendant turned himself in? Wasn't it his car? Didn't Concepcion Testigo point him out, remembering him from his yellow hair? And most of all, didn't the defendant himself tell you that he was driving? And even now, doesn't he continue to insist that he was?

  "Well, it just so happens we were wrong, you and I. Carter Drake turned himself in because he wanted to protect his wife from getting into trouble, just as he'd wanted to drive home that evening because he wanted to protect his underage son from getting into trouble. And because he turned himself in, and because it was his car, nobody ever gave it a second thought. Not the police, not the prosecutors, not even I. So you're in pretty good company. And as far as Concepcion Testigo is concerned, the driver of the pickup truck, don't blame him. What did he tell you? 'I only got a quick look at the driver, but I did get his license plate.' 'Which plate?' Mr. Firestone asks him. 'Front or rear?' 'Rear,' says Testigo. 'Do you see the driver in court?' Firestone asks. 'I think that's him, over there,' says Testigo. 'I remember his yellow hair.'

  " 'I remember his yellow hair.'

  "Who else in this case just happens to have yellow hair?" Jaywalker asked them. And he saw the name Amanda on sixteen pairs of lips. So he simply nodded.

  "How did we discover, you and I, that it was Amanda Drake who was driving? We discovered it purely by accident, Carter Drake's accident. He was trying to demonstrate how he tried to jam the stick shift into a lower gear. And then he was so intent on showing you that he made a mistake. And when you stop to think about it, it was the most natural mistake in the world. Because it was the truth. Carter Drake used his left hand, the one he actually used that night. Had he been behind the wheel, surely he would have used his right hand. There can be absolutely no doubt about that. If any of you aren't sure, look at Investigator Sheetz's photo of the interior of the Audi, and you'll see." He held up the photo. "Carter Drake used his left hand in the demonstration just as he used it in real life. And his doing so proves conclusively that he was in the passenger seat. There can be no other explanation. None."

  At least four jurors-now five, six-were nodding in agreement. They weren't happy about it, but they were nodding.

  "But there's even more," he told them. "Why couldn't he get the Audi in a lower gear in order to slow it down? You saw how hard he tried. Well, we know there was nothing wrong with the car. Sheetz told us that. They checked it out thoroughly, inside and out, no doubt because they didn't want Drake coming in here and saying there had been some sort of mechanical failure that had caused him to speed up and swerve into the wrong lane. So we know we can rule that out.

  "Once again, there's only one possible explanation. In order to change gears, you first need to do something else. You first need to use your left foot to step on the clutch, the pedal on the far left." He turned his back to the jurors so he was facing the same way they were, and gestured from right to left. "Accelerator, brake, clutch. Carter Drake couldn't depress the clutch because he couldn't reach it. And he couldn't reach it for one reason, and one reason only.

  "He was in the passenger seat.

  "I'd love to add one other thing, to talk about Amanda's refusal to say whether or not she was driving. But Justice Hinkley will tell you that you may draw no conclusion from that."

  Firestone objected, and the judge instructed the jurors to disregard the comment, but they were both too late. A lot of cases are won by putting something in evidence. Every once in a while, though, a case is won by putting something in the ear. Amanda's having taken the Fifth, invoking it at the precise moment when she would otherwise have had to inc
riminate herself, was simply too important to leave out. It would be worth another night in jail, if it came to that. It would be worth a week of nights, if only they could find him a no-snoring cell.

  "So you can convict Carter Drake if you want to, as I'm sure Mr. Firestone will ask you to. He even told you in his opening statement that he would, back before any of us knew what we now know. If not for the admitted fact of Carter Drake's drinking too much, his wife never would have had to drive a car she was unfamiliar with, in a place she was unfamiliar with, in the dark, and in the midst of an argument, and this tragedy never would have occurred. So there'd even be a kind of poetic justice were you to convict him.

  "But you're not here to impose poetic justice. You aren't poets. You are jurors, and you're here to impose real justice. And real justice, no matter how unpleasant and distasteful it sometimes becomes, requires us to ask ourselves one question, and one question alone. Are we convinced-convinced beyond all reasonable doubt- that it was Carter Drake, and not Amanda Drake, who was behind the wheel of the Audi at that fateful moment? Or do we have at least some hesitation when we get to that issue, some lingering doubt that leaves us less than convinced beyond all reasonable uncertainty? There can be only one answer to that question, jurors. And that answer is no, there's no way we can be convinced, not beyond all reasonable doubt. So it's up to you. If you do your duty, follow the law and impose real justice, you must f ind Carter Drake not guilty, and leave how he is finally judged in other hands."

  And with that, barely twenty-five minutes after he'd begun, Jaywalker sat down.

  Abe Firestone spoke for twice as long, but not half as well. Despite Jaywalker's having done so, he, too, listed the names of the victims, though he read them from the captions beneath their photos on the oak tag exhibit. He accused Jaywalker of orchestrating the "mistake" with the stick shift and the clutch, and of getting Amanda Drake to invoke her privilege so that both husband and wife would evade responsibility.

  But Firestone was off his game. Apparently the same night in jail that had first panicked and then enervated Jaywalker, had simply exhausted Firestone. He lost his train of thought, repeated himself, backed up, and repeated himself again. Only toward the end of the hour did he seem to regain his composure, finishing strong as he demanded justice for the nine victims.