Bronx Justice Page 8

  "Well," said Pope, as soon as Jaywalker's signature was dry, "maybe he'll do better on this one. I understand Dick Arledge tested him three times and came up indefi nite each time."

  Jaywalker tried his best to hide his surprise that Pope knew, but his best wasn't good enough. "Let's hope your man is better," was the most he could come up with.

  "Lou Paulson's good, though he prefers to get first crack at a subject. But he's willing to give it a shot."

  Jaywalker nodded, still feeling like a schoolboy caught cheating. He followed Pope out to the reception area where they'd left Darren. Detective Paulson had arrived, and Pope introduced him to Darren and Jaywalker. Paulson told Darren to come with him, and they left. Jaywalker called out, "Good luck," but had the feeling he was wishing luck to a man being led to his death. The enormity of the fact that he was turning his client over to the enemy hit him with full force. Lou Paulson worked for the D.A.'s office. They gave him a check every two weeks. Suppose he simply decided to report back that Darren had flunked. Would Jaywalker have any meaningful way of disputing his claim? Would he be allowed access to his charts, so he could have Dick Arledge and Gene Sandusky analyze them? And how would they know they were really Darren's charts?

  "I'll know what's what in a couple of hours," Pope was saying. "Why don't you give me a ring?"

  The cold rain outside felt refreshing. Jaywalker tried to convince himself that Pope and Paulson could be trusted. Anyway, he told himself, what choice did he have? If Darren somehow managed to pass the test, how could they not let him know? The notion that they might suppress the result was simply too obscene to contemplate.

  But suppose it came down to a close call? Jaywalker could hardly expect them to give Darren the benefit of any doubt. And what if Paulson were to claim that Darren made some sort of admission during the pretest interview, some damaging statement that Pope could then use at trial? It would be Paulson's word against Darren's, a contest in which Paulson's gold shield would surely tip the balance. The possibilities for disaster seemed endless.

  And how, he wondered, had Pope known about the private tests they'd put Darren through? Jaywalker hadn't told him, and Darren certainly hadn't. That left Arledge and Sandusky. Maybe they'd talked to Paulson, mentioned the case because of its academic interest. But why would they have identified Darren as the subject without first asking Jaywalker's permission?

  It was a question to which Jaywalker would never learn the answer. But when it came right down to it, what dif ference did it make? For better or for worse, Pope was still willing to give Darren the test. So what if Jaywalker had been personally embarrassed, caught doing something behind Pope's back? It had been his right to do it, probably even his duty. He would have been a damn fool, letting them test his client without first running a test of his own.

  He found his Volkswagen, climbed in and headed downtown. At the first red light that stopped him, the taste of his own blood told him that he'd been biting the inside of his cheek. "Relax," he told himself, drawing a deep breath. "Relax," he repeated, this time for Darren. But Darren was already twenty blocks away by now, nowhere in view in the VW's rearview mirror.

  He phoned Pope at one o'clock.

  "What's the story?" he asked.

  "The story is actually interesting," said Pope. "Paulson didn't test him. During the preliminary interview, Kingston said he's been taking Librium. Now that's not a strong drug, but it is a tranquilizer. Paulson's feeling is that it may have been responsible for the results of the previous tests."

  "That is interesting," Jaywalker agreed.

  "So he told Kingston to cut out the Librium, and we've set up another test for Thursday. Paulson's agreed to stay late and do it on his own time. Sound all right to you?"

  "Sounds great." It did.

  "Okay. And by the way," he added, "has that private in vestigator of yours come up with anything?"

  Caught again. "Not too much, I'm afraid."

  "You're really working overtime on this one, Mr. Jay walker."

  "Jay," Jaywalker reminded him.

  "Jay."

  "I guess so," said Jaywalker. "Wouldn't you be?"

  So one of the victims had reported John McCarthy's movements to Pope, or perhaps to Detective Rendell. Jay walker wasn't too surprised. Probably Joanne Kenarden, he decided.

  That was all right. McCarthy had gotten the job done, at least with three of the four victims. And Pope's reaction had been less disapproval than admiration. No damage done, and even a minor boost for the ego, which was always welcome.

  What interested Jaywalker more was the Librium busi ness. Paulson's analysis made a certain amount of sense. A tranquilizer was intended to calm you down, after all, to the point where you wouldn't worry so much—about scary things, depressing things, all things. Including lying. The inevitable result would be a smoothing out, a literal flattening out, of one's responses. Which would make it harder for the needles to pick up those responses. Take away the tranquilizer and the test might well turn out dif ferently. It might show, for example, that Darren was lying on the questions about masturbation and hurting people, but telling the truth about the rapes.

  It was more than just interesting. Jaywalker felt a new surge of hope begin to well up. This guy Paulson, whom he'd been so quick to distrust, had homed in on the problem that Arledge and Sandusky had missed. The test was going to work after all, and Darren was going to pass it. Jaywalker stood up from behind his desk, threw a clenched fist into the air above his head and barely sup pressed a whoop.

  And then he caught himself.

  This was crazy. Who did he think he was kidding? Did he really think that this test was going to come out any dif ferently from the first three? And why did he have this burning need to have the case solved, figured out by the magic inside the little black box? Why couldn't he just look at it like he did any other case? You plead guilty, or you roll the dice and go to trial. You win or you lose. The answer crept up from somewhere deep inside him, until he not only knew it was true but could even give it a name.

  And the name was fear.

  Fear, because he knew if he had to try this case, the overwhelming odds were that he was going to lose it. Fear, because Darren and his family had put their complete faith in him, had trusted him to be able to do whatever it took to reverse a hideous wrong. Fear, because the terrible pendulum had swung once again, this time in the direc tion of innocence.

  As much as Jaywalker loved the strange work he'd been drawn to, which pitted prosecutor against defender in a fight to the finish, as much as he wanted to be the hero, the savior to the Kingston family, more than anything else he wanted out of this one. He wanted this one last chance at the polygraph test to work, one way or the other.

  He prayed for Lou Paulson to be right.

  7

  THE BRICK WALL

  Lou Paulson was wrong.

  Jaywalker reached Jacob Pope Friday morning. "Well?" he asked. By this time, holding his breath had become second nature.

  To Pope's credit, he didn't play it cute or mince words. "No good," he said. "Paulson says it's like hooking up the machine to a brick wall. Kingston is simply untestable."

  It was mid-December by the time of the next court ap pearance. The last two obstacles standing between them and trial had been removed. The pretrial motions had been resolved, and the polygraph exams were a memory.

  Still, there was no thought of an immediate trial. The holidays made it a hard time to compete with the vacation schedules of judges, witnesses and even prospective jurors. And Darren's being out on bail lowered the priority of his trial. The case was put over to the second week of January.

  Jaywalker wanted to drive his wife and daughter up to Massachusetts or Vermont to go skiing. His wife, reading him bleak snow reports from the Times, reminded him that they had open-ended plane tickets to Florida and had promised her parents that they would be down to visit soon. They argued, longer and louder than usual. Jay walker's anxiety over the case, aggrava
ted by his recent realization that it would have to be tried after all, had taken its toll on both of them.

  In the end, they flipped a coin.

  On Christmas day, it was sunny and eighty-five degrees by the pool.

  8

  NIGHTS ON THE COUCH

  January was a time of cold, wet days, of rain that froze into slick sheets overnight, and of snow that fell wet and heavy, and turned to slush before refreezing and collect ing black soot from passing cars.

  January was also a time to get ready. Not for the trial, not quite yet, but for the hearing that would precede it. The Part 12 judge who'd ruled on Jaywalker's motions had ordered an evidentiary hearing on the admissibility of the identification testimony. In legal jargon, this is referred to as a Wade hearing, named after one of the U.S. Supreme Court cases that had given birth to the procedure.

  The district attorney's office had notified the defense that photographs had been used in the identification of Darren as the perpetrator of the crimes. Unlike lineup results, which a jury may hear about, or "show-ups," which occur when a witness confirms or denies that a single suspect displayed to him is in fact the perpetrator, New York statutory law specifically prohibits the prosecution from eliciting photo "hits" in front of the jury. In spite of that law, Bronx district attorneys stubbornly persisted in showing photos, rather than real people, to witnesses.

  But Jaywalker wasn't satisfied with knowing that Jacob Pope wouldn't be able to let a jury know that the victims had picked out Darren from photographs. Indeed, he knew the time might come when he himself might be forced to reveal that they had, so the jurors wouldn't speculate that some other piece of information, something even more compelling, had led to Darren's arrest. So Jaywalker wanted to explore, wanted to find out just how suggestive the procedures had been. For starters, had the victims been shown a whole bunch of photos or just Darren's? If there'd been others, were they of the same approximate age, skin tone and hair length? Had the victims been separated when they picked out Darren's photo, or had they been together? And had the police done anything to coach them, in either obvious or subtle ways? If Jaywalker could demonstrate that the methods used had been unduly suggestive, then the hearing judge might be compelled to conclude that, come trial, the victims would be pointing out Darren not on the basis of what they remembered from their attacks but from their recollections of the photographs, or at least some inseparable combination of the two. If that proved to be the case, the judge could bar such a witness from making an identification of Darren at trial.

  Or so the theory went.

  In practice, courts—operating at these hearings as both judge and jury—almost always come to the aid of prose cutors. Where conflicts arise between the officers' versions of the facts and the defendants' versions, the overwhelm ing majority of judges rule in favor of the police, so much so that few defense lawyers will even put their clients on the stand to offer a competing narrative. Even in those cases where the facts undisputedly reveal police improprie ties, the same judges rule that the witnesses' trial iden tifications will be based upon the original crime-scene confrontation, untainted by any suggestiveness that may have corrupted the police-arranged identification proce dure. Accordingly, they'll permit the trial identifications, even in those cases. It's the rare judge who will come right out and say that a witness's opportunity to observe the perpetrator was so fleeting, and the later identification procedure so suggestive, that the only solution is to bar the witness altogether from pointing out the defendant at trial.

  That judicial bias aside, Jaywalker already knew that in this case, the victims' encounters with their attacker had in fact been quite substantial. He knew from John McCarthy's interviews that each of them had gotten a good look at her rapist or would-be rapist. Each had not only had the opportunity to see him "up close and per sonal" for an extended period of time—fifteen to twenty minutes—but had also heard him speak at some length, as well. Nothing fleeting about that.

  Still, Jaywalker wanted the hearing. He needed to know just how suggestive the photo identification procedures had been, in order to be able to make an informed decision as to whether or not he wanted to go into the matter in front of the jury. The same rule that barred the prosecution from eliciting testimony about the photo identifications left the defense free to do so if it chose, albeit at its peril.

  Even beyond that, Jaywalker wanted a crack at the wit nesses before trial, a free look. He wanted the opportunity to size them up, to test their certainty or tentativeness. He wanted to be able to gauge their reactions to different types of cross-examination, and to probe their accounts in more detail than McCarthy had been able to. Best yet, a court stenographer would be taking down every word that came out of their mouths, so that if they varied what they said later on at the trial, he would have their hearing tes timony to confront them with. Added to what they'd ini tially reported to the police and later told McCarthy, it would give Jaywalker a solid bank of material for im peachment.

  Finally, in addition to the photo identifications, there'd been at least one live, or "corporeal," identification in the case, one that Jaywalker himself had witnessed. That had taken place the day of Darren's very first court appearance, when Joanne Kenarden had been summoned to court. There she'd watched as Detective Rendell, no stranger to her, had led Darren into court. Minutes later, she'd been asked if she could identify him, and if she was certain. Talk about suggestiveness… And unlike the photo identifica tions, this corporeal identification wasn't barred by the law. If it passed muster at the hearing—and Jaywalker had little doubt that it would, even if it shouldn't—Pope would be free to elicit it at trial.

  In short, if nothing else, the hearing would provide a preview for the defense, an advance look at what the trial testimony would be. Jaywalker would have little to lose and much to gain from it. And since he figured he was pretty far behind the prosecution at this stage, gaining took on added importance.

  So January, for the defense, was a time to get ready for the Wade hearing. Jaywalker reviewed McCarthy's notes and his own files. He went over every piece of paper he had, over and over again, hoping that one of them would reveal some secret, some clue to Darren's innocence, that he'd missed before. He made copious notes, reducing pages to paragraphs, paragraphs to sentences, sentences to key words. He drew up long lists of questions to ask wit nesses. He fell asleep with his head on his desk more than once, and spent several nights on the couch of his office. He missed meals, lost weight he didn't have to lose in the first place, and occasionally appeared in court unshowered and unshaved. Never mistaken for a paragon of fashion, he now began to be noticed for his rumpled hair, wrinkled shirts, and same-as-yesterday suits and ties. He saw little of his wife, and less of their daughter.

  But he got ready.

  9

  THE FREE LOOK

  The case was called, and both Pope and Jaywalker answered that they were ready for the hearing. Justice Davidoff marked it for a second call, announcing that he'd begin the hearing as soon as he got through the rest of the matters on his calendar.

  Jaywalker stepped outside the courtroom with the Kingstons. He went over the Wade hearing procedures with them once more. For some reason he felt a compul sion to explain everything to them. Again he reminded them that they stood no chance of "winning" anything at the hearing, that for them it represented a vehicle to get more information to use at the trial. A free look.

  It was eleven o'clock by the time the case was recalled. Justice Davidoff, squinting at Jaywalker's motion papers in front of him, remarked that there seemed to be two issues before him, the Wade hearing and the defense's motion to sever the cases into four separate trials.

  "How is this severance question going to affect our hearing?" he asked.

  "It isn't," Jaywalker replied, jumping up to beat Pope to the punch. "I suggest we hold off on the severance issue until after the hearing. OnceYour Honor has heard the tes timony, you'll be in a much better position to rule on sev era
nce."

  But Pope wasn't about to be outmaneuvered. "I dis agree," he said, rising to his feet. "How many witnesses I call at the hearing depends entirely upon how Your Honor rules on the severance motion. Should you decide, for example, that there must be separate trials, then it would be ridiculous for me to have had to call all four victims to the stand, when it turns out only one was needed."

  Between the lines, of course, Pope was offering Justice Davidoff a quick hearing in place of a protracted one. Always an effective strategy.

  "Yes," said the judge, "I agree. I think it makes more sense to take up the severance motion first. Do you wish to be heard on it, Mr. Jaywalker?"