Depraved Indifference j-3

by Joseph Teller

  "I have no questions of the witness," he said, trying to sound as though the reason was obvious, that his testimony hadn't hurt the defense at all.

  Just in case there were any idiots on the jury.

  Following Moishe Leopold's testimony, the judge broke for lunch. Amanda was a bit put off when Jaywalker explained that he wouldn't be joining her at the diner. This time it wasn't just Pagesixaphobia that made him decline her offer. Never much of a breakfast eater, unless you wanted to count pretzels and iced tea, it had been Jaywalker's long-standing habit to skip lunch when he was on a trial. Adrenaline seemed to have a way of trumping appetite, and there were the afternoon's witnesses to prepare for. Not that he wasn't ready to crossexamine Concepcion Testigo, the truck driver, whom he figured would be next up for the prosecution. But there was ready, and then there was Jaywalker ready, which didn't leave time for silly distractions like food. So he found an empty windowsill, hopped up onto it and spent the hour reviewing reports and revising notes that he'd already reviewed and revised a hundred times earlier.

  Why was it again that he'd been in such a hurry to get back to this love-hate business they called trying a case, and had been so happy when the Disciplinary Committee judges had given him the green light? Oh, yeah. The money. That was it.

  ***

  Abe Firestone was back at the podium for the direct examination of the first of what, as Jaywalker saw things, would be his three star witnesses. First would be Testigo, the pickup-truck driver who'd seen the accident and managed to remember the three critical numbers off the Audi's license plate. Then there'd be Riley, the bartender from the End Zone. And finally, an expert in alcohol metabolism, to convert drinks into drunkenness.

  FIRESTONE: By whom are you employed, Mr. Testigo?

  TESTIGO: ABC Construction, over in Nanuet.

  FIRESTONE: And prior to working for ABC, where were you employed?

  TESTIGO: For eleven years I worked as an auto mechanic for Rockland Foreign Cars.

  FIRESTONE: In the course of your work, did you become familiar with different makes and models of imported cars?

  TESTIGO: Yes, I did.

  FIRESTONE: Are you by any chance familiar with the Audi TT?

  TESTIGO: I am.

  FIRESTONE: Have you worked on one?

  TESTIGO: Yes. Several.

  FIRESTONE: Did you happen to see one back on May 27 of last year?

  TESTIGO: Yes, I did.

  FIRESTONE: What color was it?

  TESTIGO: It was red, bright red.

  Firestone had his witness describe the time and locate the exact place on the map. He'd been heading home, Testigo stated, coming from a construction site where he'd put in a twelve-hour day. Other than a single bottle of Corona Light with his lunch eight hours earlier, he'd had nothing to drink.

  FIRESTONE: Did you see something?

  TESTIGO: Yes. I seen a red Audi TT driving in the wrong lane, very fast.

  FIRESTONE: How fast would you estimate it was trav eling?

  JAYWALKER: Objection. No foundation.

  THE COURT: Overruled. You may answer.

  TESTIGO: Seventy, seventy-five.

  FIRESTONE: Do you know what the posted speed limit is on that stretch of highway?

  JAYWALKER: Objection.

  THE COURT: Overruled. Do you know?

  TESTIGO: Fifty or fifty-five. I'm not sure.

  FIRESTONE: What happened?

  TESTIGO: Like I said, the Audi was in the wrong lane, facing oncoming traffic. I seen a van come around a bend, a white van. And the Audi never pulls over. It stays in the van's lane, heading straight at it.

  FIRESTONE: What happened next?

  TESTIGO: The driver of the van must have braked, 'cause I hear his tires laying down rubber, squealing like. Then I seen him veer off to the right, to get out of the Audi's way. For a second or two I thought he was going to make it, but then he lost it like, an' took off in the air.

  FIRESTONE: The van became airborne?

  TESTIGO: Yeah.

  FIRESTONE: And then?

  TESTIGO: And then I seen him come down hard, bust right through the metal fence there FIRESTONE: The guardrail?

  TESTIGO: Yeah, the car rail.

  FIRESTONE: And?

  TESTIGO: And he flips over an' goes down the hill, hit ting things.

  FIRESTONE: Things?

  TESTIGO: Trees, rocks, whatever was in the way.

  FIRESTONE: What did you do?

  TESTIGO: I looked at the Audi, to see if it was going to stop.

  FIRESTONE: Did it?

  TESTIGO: No.

  FIRESTONE: When you looked at the Audi, what were you able to see?

  TESTIGO: I got a quick look at the driver. But I got his license plate.

  FIRESTONE: Front plate, or rear?

  TESTIGO: Rear.

  FIRESTONE: Do you see the driver in court?

  TESTIGO: I think that's him, over there.

  (Witness points)

  FIRESTONE: Indicating the defendant.

  TESTIGO: I remember his jello hair.

  FIRESTONE: Excuse me?

  TESTIGO: I could see his hair was jello.

  Jaywalker raised his notepad to hide his smile. He'd represented his share of Hispanic clients over the years, and had learned that a number of them had difficulty when it came to pronouncing certain letters. J and Y, for example, proved especially hard, no matter which one they were trying to say. So just as he'd had to get used to being called Mr. Yaywalker, or the more familiar Mr. Yay, so too did he have to learn not to take offense when told by one of his clients, "I really like jew." Therefore he now knew exactly what Mr. Testigo was trying to say, even if he was the only one in the courtroom who seemed to. And since the identity of the driver wasn't what the case was all about, he decided he might as well solve the mystery for the rest of them.

  JAYWALKER: The defense will stipulate that the witness is referring to the color of my client's hair, which is blond or yellow, as in Y — E-L–L-O-W.

  That drew a collective "Aaaah" from the jury box, a thank-you from the judge, and even a grunt of approval from Firestone.

  Firestone had his witness describe how, at the time, he had been able to read the entire plate, but could later on remember only the numerals 724. He was absolutely certain of them, though, because they were the same as his wife's birthday, July 24. But that was the last he ever saw of the Audi, which continued on without ever slowing down or stopping.

  FIRESTONE: Did you see what happened to the van?

  TESTIGO: Yeah. I stopped my truck and jumped out, and

  I was climbing down to help. There was like a little bit of fire coming out from underneath it. Then all of a sudden it blew up like, exploded. And I had to back off. It was so hot I couldn't get close.

  (Witness crying)

  THE COURT: Do you need a minute?

  TESTIGO: No, no. I'm okay.

  FIRESTONE: What happened next?

  TESTIGO: It kept burning, but I couldn't do nothing, I couldn't get anywhere near it. Other people stopped, too. One guy had a fire 'stinguisher in his car, but it didn't work, nothing came out of it. Somebody with a cell phone called 9-1-1. And after a while the police came, and the fire trucks and ambulances. But it was too late, it was too late.

  Firestone was smart enough to leave it right there, on an emotional high point. Jaywalker briefly considered asking no questions at all. Testigo really hadn't hurt the defense too badly. The Audi's speed was bad, but Hannah Weintraub had already established that. The wrong-lane business would have to wait until Carter Drake took the stand and told his wasp story. And his continuing on without slowing down or stopping could be explained by his belief that the driver of the van had recovered control of his vehicle and managed to keep it on the road. In an ironic way, Drake's speed might even work in his favor there. By the time the van had gone over the edge, he'd been too far away to be able to see. Though that might be a tough sell to the jury.

  Still, Jaywalker had t
o ask Testigo something. Suppose the jurors were to get into deliberations and decide they wanted to hear his testimony again. A readback ending with a dramatic description of the van engulfed in flames, followed by no cross-examination whatsoever by the defense, could prove devastating. So he stood up, walked to the podium and gave it a shot.

  JAYWALKER: When you first saw the red Audi in the wrong lane, did you beep your horn or flash your lights, or did it all happen too fast?

  It was a trick question, of course. If Testigo hadn't beeped his horn or flashed his lights, chances were he'd now feel guilty, or at least sorry, about not having done so. In offering him an out, that it had all happened too fast for him to do either of those things, Jaywalker was just about putting words in his mouth. Not coincidentally, they were precisely the words he wanted the jurors to hear.

  TESTIGO: No, I didn't have time. It happened too fast.

  JAYWALKER: Is it fair to say that the whole thing, from the time you first saw the van until it disappeared, took only seconds?

  TESTIGO: Yeah, that's fair to say.

  It had been another trick question. Because the incident had to have taken only seconds. The key was leaving out the number of them. Come summation time, Jaywalker would remind the jury that even according to the prosecution's star eyewitness, the event had taken only seconds, which everyone thinks of as only a few seconds. But Jaywalker wanted more.

  JAYWALKER: I'm going to ask you to close your eyes, Mr. Testigo, and try to visualize, to see in your mind, what you saw that evening. I'm going to say, "Start," and that'll mean you first see the Audi coming along. I want you to say, "Stop," as soon as the Audi disappears, and you can't see it anymore. Do you understand?

  TESTIGO: You mean, to see how long it took?

  JAYWALKER: Exactly. Okay, you ready?

  TESTIGO: Yeah.

  JAYWALKER: Start.

  He kept one eye on the witness, the other on his watch. It was no mean feat, and definitely the stuff that migraines were made of.

  TESTIGO: Stop.

  According to Jaywalker's calculation, the interval had been about seven seconds. Short enough, he knew, to be explained by Drake's leaning over to swat at the wasp. Still, he would have liked it to have been even shorter.

  JAYWALKER: May the record reflect that the interval between the end of my "Start" and the beginning of the witness's "Stop" was precisely five and a half seconds.

  THE COURT: So noted.

  That word "precisely" got them every time. That, along with the inclusion of the half second. The implication was that he'd been looking at a sophisticated stopwatch, capable of breaking seconds down to fractions. The truth was, Jaywalker's watch didn't even have a second hand. It was a knockoff he'd bought on Canal Street for five dollars. "Movado," the Korean woman had told him, the same one who sold fake Gucci handbags and disposable three-dollar umbrellas. "Very good watch."

  Jaywalker spent only a few more minutes on his cross-examination. He established a period at the beginning of the incident where Testigo could see the approaching Audi but couldn't yet see the driver. That would dovetail nicely with Drake's account that he'd been bent over to his right, trying to swat the wasp. Then he chipped away at the witness's estimate of the Audi's speed, getting him to concede that it might have been as low as sixty or sixty-five. Which would bring it down to ten or so miles an hour above the limit, something most drivers would be comfortable with, and few would be shocked by.

  With that he thanked the witness and sat down.

  Abe Firestone had evidently counted on Testigo's cross-examination lasting a lot longer than it had. He'd no doubt expected Jaywalker to contest not only the length of the incident and the speed of the Audi, but the make and model of the car, the identification of Carter Drake as the driver, his being in the wrong lane, and his failure to stop or even slow down after running the van off the road. But Jaywalker hadn't even touched on those subjects.

  "May we approach?" Firestone asked.

  "Yes," said Justice Hinkley.

  "My next witnesses won't be here until the morning," he confessed. "I assumed-"

  "Don't assume," said the judge. "Who's up next?"

  Firestone looked over at Jaywalker. "Do I have to tell him? " he asked.

  "Oh, grow up, Abe, for God's sake. What's he going to do, go out and kill the guy?"

  "The intoxication witnesses."

  Jaywalker had guessed as much, but it was good to know for sure. If nothing else, it would mean lugging fewer files to court tomorrow.

  They stepped back from the bench and returned to their tables. "I understand we may get a little snow this evening, or some freezing rain," the judge told the jurors. "For that reason, I'm going to let you go early. I'll see you tomorrow morning, at nine-thirty sharp."

  For some reason, judges love to lie.

  It hadn't been a terrible day, Jaywalker admitted to Amanda outside the courthouse. As a witness yet to testify, she was prohibited from being in the courtroom during testimony. But he'd insisted on her showing up every day, even though that meant spending most of her time sitting on a bench in the hallway. The jurors would see her there as they came and went, and her presence was therefore important. She was doing the Hillary thing, he'd explained, standing by her man.

  "How's Carter holding up?" she asked him.

  It was a good question. What had struck Jaywalker most about his client over the past several days was his emotional detachment, his almost total disconnect from the goings-on. Here was a man who was looking down the loaded barrel of a twenty-five-year-to-life sentence, and it didn't seem to faze him in the least. Didn't he get it? Didn't he understand that the best he could possibly hope for was double-digit time on some of the lesser charges? And that was only if they got lucky and beat the murder count. Yet with all that, he just sat there, watching the jury selection, listening to the testimony, as though it was someone else's trial he was observing.

  "He's okay," said Jaywalker. The last thing he wanted to do was to start psychoanalyzing Carter for Amanda. He was into their marriage deep enough as it was. So to speak.

  "What happens tomorrow?" she asked.

  "The shit hits the fan," he told her. "They're going to put on the bartender from the End Zone, and probably a couple of people who drank with Carter. Then an expert to estimate how drunk he was."

  "Can they do that? I mean, legally?"

  "I'm afraid so," he said. "It's not going to be a very good day. If you know what I mean."

  "Would a very good night help? If you know what I mean."

  He laughed out loud at the pure absurdity of it all. First Carter, who didn't seem to care about anything. And now Amanda, who seemed to care about only one thing.

  "Not tonight," he said.

  But not without smiling.

  17

  A TOTAL SLEAZEBAG

  Thursday morning brought a light freezing rain to the

  Northeast. Maybe, Jaywalker decided, Justice Hinkley hadn't been lying after all. Maybe she'd just gotten her timing wrong. Which wasn't to say she might not make it in a future life as a weather forecaster, one of those daring souls who were forever putting their reputations on the line by boldly predicting a fifty percent chance of showers.

  Thursday morning also brought the End Zone wit nesses. First up was a man named Frank Gilson. Gilson was the client Carter Drake had worked with in Nyack earlier on the day of the incident. Jaywalker had known

  Gilson would be called, not only from the reports turned over to him by Firestone, but from a letter of apology

  Gilson had sent Drake, through Amanda. He felt terrible about testifying against his business associate and friend, but he had been given little choice by the prosecutors, who'd said he could either take the stand or thirty days for contempt. He'd decided to take the stand.

  Julie Napolitano did the honors.

  NAPOLITANO: Did you have a meeting with the defen dant on May 27 of last year?

  GILSON: I did.

  NAPOLI
TANO: Where was that meeting?

  GILSON: At my office in Nyack.

  NAPOLITANO: What time did that meeting begin?

  GILSON: About ten, ten-thirty in the morning.

  NAPOLITANO: And when did it end?

  GILSON: Maybe four-fifteen.

  NAPOLITANO: What did you do at that point?

  GILSON: We'd skipped lunch, and we were both hungry and thirsty. So I suggested we go get something to eat and drink, and Carter agreed.

  NAPOLITANO: Where did you go?

  GILSON: We went to a place called the End Zone, also in Nyack. It's what they call a sports bar. Good food, good drinks, nice crowd. We found a table, sat down and ordered.

  NAPOLITANO: Was it just the two of you?

  GILSON: At first it was. After a while, I called up a friend of mine and suggested she come over and join us.

  NAPOLITANO: Can you tell us her name?

  GILSON: Trudy, Trudy Demarest.

  NAPOLITANO: By the way, Mr. Gilson, are you married?

  GILSON: No, I'm not.

  Gilson described how Trudy, along with two of her girlfriends, had joined them at the End Zone. As the evening wore on, they gradually switched from martinis and buffalo wings to shots of tequila.

  NAPOLITANO: Over the course of the afternoon and evening, did you have an opportunity to observe how much the defendant had to drink?

  GILSON: I certainly wasn't keeping count, if that's what you mean.

  NAPOLITANO: We've discussed this before, haven't we, Mr. Gilson?

  JAYWALKER: Objection.

  THE COURT: Sustained. Please rephrase the question.

  NAPOLITANO: What is your best recollection as to the number of drinks the defendant had at the End Zone?

  GILSON: I would say he had two or three martinis. After the girls showed up, well, there were a lot of glasses on the table, and honestly, it was hard to tell who had how many.

  NAPOLITANO: Do you recall testifying before the grand jury in June of last year?