Depraved Indifference j-3 Page 4

  "It's not really a drunk-driving case," said Jaywalker. "Nine people died."

  "I know that," said Drake. "But it was still an accident. I mean, I never meant to kill them. Everyone knows that."

  He had a point there. Jaywalker had long marveled at the courts' schizophrenic attitude toward drinking and driving. If you got pulled over at a checkpoint with six or seven drinks in your system, you paid a fine and got your license suspended for ninety days. The second time, the fine got a little bigger, the suspension a little longer. You got what, maybe four or five bites of the apple before they got serious and actually re voked your license, and one or two more before they slapped you in the local jail for thirty days.

  But God help you if you had those same six or seven drinks and got into the same car and drove at exactly the same speed, but were unlucky enough to broadside a school bus, or run a vanful of kids off a road and into a fireball. Then suddenly you were a murderer, front-page stuff, Public Enemy Number One. And you were looking at twenty-five years to life.

  Where had this institutional hypocrisy come from? Jaywalker-who, if asked, had a theory for most things-had a pretty good idea.

  Judges were lawyers, after all. They'd come from privileged-enough backgrounds to have been able to afford to go off first to college and then law school. They were financially able to have bankrolled their own campaigns, or to cough up enough political contributions to the campaigns of others who, once elected, had appointed them to the bench. In other words, they weren't street people. They didn't go around committing robberies, burglarizing apartments or selling drugs, and they had little natural empathy for those who did. But they drank, some of them, and they drove. And occasionally they even combined the two endeavors. That w as something they could empathize with. So they were ready to look the other way or apply an understanding slap to the wrist of anyone who happened to get caught doing what they themselves had done more than once.

  But kill someone? Kill nine someones? Including eight innocent little Jewish kids? That was a different story altogether. For one thing, they'd never done that, had they? And sitting there in the glare of publicity, with the families of the victims, the media and the rest of the world screaming for blood, those very same judges all of a sudden became the toughest lock-'em-up-andthrow-away-the-key law-and-order types that ever lived. Murder? You bet! Five million dollars' bail? Not a penny less! We'll show those vicious drunk-driver menaces that we mean business!

  "No," he told Drake, "I can't get you out of here. But I'll talk to Mr. Mermelstein, see if he can do anything about getting some of your assets untied. In the meantime, I'd like you to do something for me."

  "What's that?"

  "Get a hold of some paper and a pen, and write out, in as much detail as you possibly can, everything that happened over the twenty-four-hour period preceding the accident, the accident itself and everything afterward, up to the time you were brought to court. At the top of each page, write the words 'Confidential, For My Lawyer Only.' I'll be back in a few days to pick it up. Can you do that for me?"

  "I guess so."

  "Good," said Jaywalker. "And remember, I want as much detail as you can possibly give me. Understand?"

  "I understand."

  "I want a book."

  Drake nodded.

  "Okay," said Jaywalker. "I hate doing it this way, and I'm sorry to have to give you a homework assignment like this. But I'm afraid you're probably right about these phones."

  It was the truth. Not just the part about the phones being less than secure, but the part about being sorry, as well. It was what lazy lawyers did, had their clients write out statements instead of drawing the facts out of them in a cooperative process. Left to their own, people tended to summarize, Jaywalker had learned over the years. They omitted the myriad of tiny details that, when included and uttered from the witness stand, fleshed out a narrative and gave it the hallmark of truth. Having a witness testify that "it wasn't quite dark out," for example, wasn't going to convince anyone. But were the same witness to add, "At one point I had to check my directions, and it turned out there was still just enough daylight for me to read them," the jurors would come away with a concrete image burned in their minds. Not only would they r emember what the witness said about the lighting, they'd also believe him. Why? Because his narrative had been so detailed and so specific, and so consistent with the jurors' own everyday experiences. Still, despite the admonition to include as much detail as possible, Jaywalker knew that Carter Drake would summarize the facts to a certain extent. Everyone did. But it would be a start, at least, something to work with for the time being.

  That night, Jaywalker reported to Amanda what he'd done so far on the case. Which didn't sound like much, once he heard himself run down the list out loud. But she seemed to think otherwise.

  "I'm impressed," she said, sipping a martini. Both of her nipples were covered this time, but only because they were in a restaurant. An hour earlier that had decidedly not been the case.

  "Above all else," the angel perched on Jaywalker's left shoulder had whispered, " you must avoid conflicts of interest."

  "Schmuck!" had shouted the devil on his right shoulder, who was not only louder and far more persuasive, but apparently Jewish. "They're separated!"

  And so it had come to pass that once again Jaywalker had succumbed to human frailty, primal instinct and Amanda Drake. And had he been forced afterward to take the stand and defend himself under oath, the very best he could have come up with was that the devil had made him do it.

  "Seriously," Amanda was saying, "I'm surprised Carter would speak to you at all."

  Jaywalker managed to raise his eyebrows while sip ping his Coke. His drinking days were behind him. He hoped.

  "I mean, he wouldn't talk to the police, he wouldn't talk to Chet Ludlow, and he barely says a word to Judah Mermelstein. Except to keep asking him when he can get the bail reduced. And now he's going to write the whole thing out for you, and in detail. That's progress, isn't it?"

  "Why the silent treatment?" Jaywalker asked.

  Amanda shrugged. "Guilt, I guess. I mean, it was a pretty bad accident. I think he's horrified by it and wants to be punished."

  Jaywalker was tempted to say, He's going to get his wish. But he didn't want to come across as too pessimistic. Not yet, anyway. There'd be plenty of time for that down the road, when Carter Drake would wake up one morning to the reality that they were aiming to give him twenty-five years to life in state prison. He wouldn't feel he deserved that kind of punishment.

  They ordered dinner, Amanda a steak, medium-rare, Jaywalker a burger and another Coke. When the check came, he reached for his wallet, but she'd already picked it up. Instead of arguing the point, he thanked her. He figured if he tried hard enough, he could get used to being kept. Especially while he was on an investigator's salary.

  Way back in his DEA days, Jaywalker had worked with a fellow agent named James Chippamunga, whom everyone referred to, naturally enough, as Jimmy Chipmunk. Law enforcement was similar to the military in that respect, or sports teams. Pretty much everyone got a nickname. It was at the DEA, in fact, that Harrison J. Walker had become Jaywalker.

  Jimmy Chipmunk was what they called a stand-up guy. That designation described somebody you could trust to watch your back and not rat you out. And Jaywalker had done both of those things for Jimmy one night in East New York, which at the time-along with Bed-Stuy, Brownsville and Red Hook-had made parts of Brooklyn more dangerous than Manhattan's Harlem. These days, Red Hook was an up-and-coming yuppie neighborhood. Go figure. Jimmy had half stupidly and half drunkenly gotten himself into a shoot-out. Jaywalker had gotten him out of it, and together they'd made Jimmy come out like a hero on paper. Which meant Jimmy owed Jaywalker big-time, and always would.

  It was time to call in the acorns.

  Chippamunga had left the DEA not too long after Jaywalker did. But while Jaywalker was learning how to try a case at Legal Aid and then building a law pract
ice of his own, Jimmy had moved over to the NYPD and risen through the ranks to his present assignment as a highranking Commander in the office of the Chief of Detectives.

  They met in a bar in midtown, shortly after Jimmy's four-to-midnight shift was over. Over Jack Daniel's and Cokes-the former Jimmy's, the latter Jaywalker's- they reminisced about old times. Old times always included the East New York adventure, now well past the five-year statute of limitations. It wasn't until the fourth round of drinks, and the third round of men's-room visits, that Jaywalker handed Jimmy the envelope.

  To the untrained eye, it might have looked as if Jimmy was a cop on the take, accepting a payoff of some sort from a civilian. But the untrained eye would have been fooled. There was no money inside the envelope. What was in it were half a dozen subpoenas duces tecum, demands for copies of all the police reports that had been generated in the case against Carter Drake III. They were attorney's subpoenas, rather than court-ordered ones, which put them pretty much into the same category as Jaywalker's Samoan pennies: they weren't quite as good as the real thing, but they tended to get the job done. And that was especially true when placed in the hands of Jimmy Chipmunk. On the couple of times Jaywalker had asked the same favor of Cippamunga, Jimmy had returned a couple of days later, both times with copies of just about every document Jaywalker had requested. Of course, both of those cases had been in Manhattan. And on both occasions, Jimmy had explained afterward, it turned out he didn't even have to actually serve the subpoena. "But," he'd added, "it's a good idea just the same. Keeps the both of us covered. Know what I mean?"

  Jaywalker had known exactly what he'd meant.

  Chippamunga polished off Jack Daniel's Number 4 before opening the envelope. "Rockland County, huh? A little bit outta my bailiwick."

  Only a veteran law-enforcement type would use a term like bailiwick, the same way he'd refer to a suspect's girlfriend as his paramour, or say "I did proceed to exit my vehicle at that particular point in time," instead of "Then I got out of my car."

  Jaywalker, despite the severe handicap of being a lawyer, liked to keep things as brief as possible. Short words, simple sentences. Right now, he needed neither. He simply shrugged his shoulders. It was his vote of confidence, his silent but overt expression of complete faith that Jimmy would somehow work his magic and overcome all obstacles, bailiwick related or not. After all, they weren't talking the niceties of jurisdiction here, or venue; they were talking clout.

  "I suppose…" Jimmy's voice trailed off. "Gimme a coupla days, willya?"

  "You got it," said Jaywalker, throwing back the last of his fourth large Cokes. God, they were huge. The bar tender, a former NYPD lieutenant who'd worked under Cippamunga at one time, was either an extremely generous soul, or else he'd somehow mixed up the flower vases with the soda glasses. Jaywalker took a wet paper napkin off the bar and lifted it to his mouth, not so much to wipe anything, but to stifle what otherwise might have proved to be a belch of room-clearing proportions. All the while he kept his thighs tightly crossed, desperately trying to forestall a fourth trip to the men's room for as long as possible, or at least another thirty seconds.

  That had been Friday night, or, technically, early Saturday morning. Until he had Carter Drake's written account of his actions, or whatever Jimmy Chipmunk could turn up in the way of police reports, there wasn't much more for Jaywalker to do on the case. So he slept late Saturday morning-the real Saturday morning- late being somewhere in the neighborhood of seven o'clock. Then he downed his usual breakfast, which consisted of a couple of pretzels and a glass of iced tea. The pretzels were the old-fashioned sourdough kind, big enough to choke a horse and hard enough to break a tooth on. The iced tea was a homemade concoction, with enough sugar to kill a diabetic, and a generous squeeze of fresh lemon juice that, to Jaywalker's way of thinking, balanced the sugar by acting as a sort of natural insulin. And right there he had all of what he considered the four essential nutrition groups-salt, sugar, caffeine and crunchiness.

  With nothing else to do, Jaywalker spent the afternoon hitting the books. It wasn't just a matter of needing a refresher course to shake off the accumulation of more than two years of rust. The fact was, in his twentyplus years of defending criminals, Jaywalker had never handled, much less tried, a case even remotely similar to Carter Drake's. Under New York law, 99.9 percent of murder cases fall into two categories. There are intentional murders, and there are felony murders, and Jaywalker had had his share of both. An intentional murder, simply put, is one where the defendant intended to kill someone. Gone are such archaic notions as premeditation or malice aforethought. Nowadays in New York, you kill someone while intending to kill someone, it's murder.

  Jaywalker had tried dozens of intentional murders. He'd tried one where the defendant, intending to kill a suspected informer, had aimed poorly and mistakenly killed a man standing next to him. Murder nonetheless. He'd defended a serial murderer who'd killed six almost randomly selected victims over as many weeks, but when asked why, could offer no better rationale than "I found out it was something I could do." Still, at the time he'd shot each of them, he'd intended to kill them.

  Felony murder was a bit different. There the legislature has decreed that under a certain specific combination of circumstances, there can be murder even in the absence of an intent to kill. How? If a defendant is engaged in the commission of any of several enumerated serious felonies-think robbery, kidnapping or arson, for good examples-and if he's armed with a deadly weapon or knows that an accomplice is, he can be convicted of murder if someone dies in the process. Those crimes are deemed so dangerous, and so likely to lead to a death, that the lawmakers have substituted the defendant's participation in them for his actual intent to kill anyone.

  Again, Jaywalker had tried his share of felony murders, though the number was far fewer. And there was an interesting reason for that. Caught after a robberygone-bad, perpetrators invariably rush to distance them selves from the resulting death. They'll readily implicate an accomplice as the planner or the one who put the tape over the victim's mouth, insisting that their own role was minor and in no way related to the fatality. "We were just after his money and his watch, was all. And I stayed in the car the whole time. I never meant for him to die or anything like that." Felony murder.

  But the list of crimes that could trigger a felony murder didn't include drunk driving or speeding or being in the wrong lane of a two-lane highway, or anything remotely like those offenses. How then, assuming that Carter Drake hadn't run the van off the road in order to intentionally kill its occupants, could the prosecution possibly charge him with murder?

  Jaywalker knew the answer, but he still had to look it up in order to remind himself of the precise wording of the statute. And there it was, sandwiched in between intentional murder and felony murder, buried in paragraph 2 of section 125.25 of that perennial bestseller and summer-reading favorite, the New York State Penal Law.

  A person is guilty of murder when…under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which causes a grave risk of death to another person, and thereby causes the death of another person.

  From there, Jaywalker leafed back a few pages to section 125.10, entitled "Criminally Negligent Homicide."

  A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.

  And down the page to sections 125.12 and 125.13, "Vehicular Manslaughter," which was subdivided into two parts, each premised upon the degree of intoxication of the operator of a motor vehicle. If the driver was drunk, it was second-degree vehicular manslaughter; if he was r eally drunk, it was first degree.

  But the big difference wasn't in the titles of the various sections. The big difference was in the penalties they carried. Criminally negligent homicide and vehicular manslaughter in the second degree were class E felonies, with maximum sentences of four years each and no mandatory minimum. For first-degree vehicular homic
ide, the maximum went up to seven years, but there was still no minimum. In other words, a defendant could be convicted of any of those crimes and still end up with a fine, or thirty days in jail, or probation.

  Murder was a different story.

  Murder sentences began at fifteen years to life, and went up to twenty-five to life. That meant a convicted defendant would have to serve the minimum-fifteen or twenty-five, or something in between the two extremes- before even being eligible to see the parole board.

  Which meant that the wording of the statute became crucial.

  What, for starters, did depraved indifference to human life mean? Jaywalker checked the two definition sections of the penal law, first the general one near the beginning of the volume, and then the specific one that related only to homicides. But neither section made any reference to depraved indifference to human life, or, for that matter, depraved indifference, depraved, indifference, or indifferent. Nowhere was there the vaguest of clues what any of those terms was supposed to mean. Yet even now, Jaywalker could see with absolute clarity that whether Carter Drake got his wrist slapped or his head handed to him it was eventually going to come down to whether twelve rather randomly selected citizens of Rockland County would believe that those five words, depraved indifference to human life, f airly described Drake's state of mind the night of the incident.

  So Jaywalker couldn't afford to sit around and congratulate himself on his clairvoyant powers. Well, perhaps the investigator Jaywalker could. But the onceand-future lawyer Jaywalker couldn't; he had some work to do. The problem was that legal research had never been his favorite pastime, or even on his top-ten list, for that matter. He'd found that out as early as law school, marveling at how some of his classmates could spend hours-hell, days- holed up in the library, reading cases that dated back hundreds of years. Those same classmates invariably had all the answers when called upon in class the next day, while Jaywalker hid out in the back row, avoiding eye contact with the professor. They got A's on midterm and final exams, while Jaywalker struggled to get B's and C's. They passed the bar exam with flying colors, while Jaywalker squeaked by on the second try. And they landed jobs with the top firms or clerkships with prominent judges, while Jaywalker strapped on a gun and went to work for the DEA. Now, almost thirty years later, he had no idea what his former classmates were up to. He didn't bother checking the "Class Notes" section of his alumni bulletin and hadn't heard that any of them had become president or attorney general yet. He assumed they were all making tons of money and was pretty sure that none of them was currently riding out a three-year suspension from practice. But he seriously doubted that any of them had tried more criminal cases than he had, or won a larger share, or had more fun along the way.