Depraved Indifference j-3

by Joseph Teller

  JAYWALKER: Objection.

  THE COURT: Overruled.

  GILSON: Yes.

  NAPOLITANO: Do you recall Mr. Firestone asking you how many shots of tequila you saw Carter Drake drink?

  GILSON: Yes.

  NAPOLITANO: Do you recall answering, "I'm not sure. Five, six, seven. Something like that"? Do you recall say ing that, under oath?

  GILSON: Yes.

  NAPOLITANO: Was that testimony accurate then?

  GILSON: Yes.

  NAPOLITANO: Is it accurate today?

  GILSON: I guess so.

  NAPOLITANO: You guess so?

  GILSON: Yes, it's accurate.

  If Gilson had been trying to avoid hurting Drake, and Jaywalker was pretty sure he had been, his reticence had had precisely the opposite effect. It was bad enough to be damned by your enemies. When your friends testified against you, it got much worse. And ironically, it was Gilson's genuine reluctance-based on his obvious loyalty to Drake, trumped only by the threat of jail-that branded his testimony with a capital T for Truth.

  Julie Napolitano spent another twenty minutes with Gilson. He admitted that he'd had almost as much to drink as Drake had that day, and that neither of them had eaten anything other than a few buffalo wings, and that had been early on. Yes, he had to admit, he would have considered himself drunk.

  He remembered a young man showing up to drive Drake home, or so he assumed. But he was unable to describe the young man. Shown a photograph of Eric Drake, the most that he could state was, "That looks sort of like him."

  "I'll stipulate," said Jaywalker, "that it was indeed my client's son who showed up." No use making a mystery of it. He didn't need the jurors speculating that the young man was some gay teenage lover, or something like that. Drake had enough strikes against him as it was.

  Nicky Legs had interviewed Gilson months ago, and Jaywalker knew there was little to be gained from crossexamining him. Still, he couldn't very well ask nothing. Gilson had hurt Drake too much.

  JAYWALKER: The two young women who showed up with Trudy. Do you happen to remember their names?

  GILSON: Yes. One was Rachel Harper. The other was Amy Jo something, a redhead. I don't recall her last name. I'd never met her before.

  JAYWALKER: Does the name Amy Jo O'Keefe refresh your recollection?

  It had actually taken both Jaywalker and Nicky Legs an awful lot of work to come up with the last name. Way back at the time of Firestone's three-carton-discovery bombardment, it had been apparent that three women had joined Drake and Gilson at their table that evening. But for some reason, only two of them-Trudy Demarest and Rachel Harper-seemed to have names. Stuff like that tended to make Jaywalker suspicious, so suspicious that he'd not only made a written note of the fact, but had deemed the omission worthy of gold-nugget status. Eventually, Nicky had succeeded in identifying the woman as Amy Jo O'Keefe, but he'd gotten no further; she hadn't agreed to talk to him. So at that point, Jaywalker still considered her important, though if asked, he couldn't have said why.

  GILSON: That might have been it. I'm not sure. They did call her "Irish," though. You know, as a nickname.

  JAYWALKER: Okay. And you say the five of you sat around talking and doing shots of tequila?

  FIRESTONE: I object. There's no evidence they were talking.

  JAYWALKER: I object to Mr. Firestone's objecting. It's not his witness.

  THE COURT: Yes, sustained.

  NAPOLITANO: Objection.

  JAYWALKER: I'll withdraw the question. Mr. Gilson, did the five of you talk?

  GILSON: Yes.

  JAYWALKER: And were you sitting around while you did that?

  GILSON: Yes.

  JAYWALKER: Thank you. Is it fair to say that as the evening wore on, there were a number of glasses on the table.

  GILSON: Yes.

  JAYWALKER: And it was difficult to tell which glasses belonged to which people?

  GILSON: Yes.

  JAYWALKER: And who had had how many drinks?

  GILSON: Yes, very difficult.

  JAYWALKER: So the number you gave Miss Napoli tano earlier was more like an estimate or a guess than an accurate recollection?

  GILSON: Correct.

  JAYWALKER: Do you recall the actual number of drinks Mr. Drake had?

  GILSON: No.

  JAYWALKER: Was he talking loudly?

  GILSON: No.

  JAYWALKER: Acting boisterously?

  GILSON: No, not at all.

  JAYWALKER: Having trouble speaking or walking?

  GILSON: No.

  JAYWALKER: Did he at any time strike you as reckless, depraved, indifferent, wicked, perverted, immoral, degenerate, lewd, licen FIRESTONE and NAPOLITANO: Objection, objection.

  THE COURT: Sustained.

  GILSON: No, not at all.

  THE COURT: I said sustained. That means you don't answer the question.

  GILSON: Oh. Sorry.

  Napolitano called Gilson's girlfriend, Trudy Demarest, to the stand. Her testimony turned out to be pretty much a carbon copy of Gilson's, at least from the point she'd arrived at the End Zone. Nicky Legs had interviewed her, too, so Jaywalker had expected as much. On crossexamination, he focused on the two friends she'd brought along.

  JAYWALKER: Rachel Harper. Do you happen to know where she is now?

  DEMAREST: She's in California. L.A. She moved out there in September. Couldn't stand the cold.

  JAYWALKER: How about Amy Jo? Is her last name O'Keefe, by the way?

  DEMAREST: Yes.

  JAYWALKER: Do you know where she is?

  DEMAREST: Right over there.

  (Witness points)

  THE COURT: Would counsel approach, please?

  Jaywalker was joined by all three prosecutors at the bench. He loved it when that happened. It highlighted the mismatch.

  "Why is she sitting in the audience?" Justice Hinkley wanted to know.

  "I didn't know she was here," said Firestone. "But it is a public courtroom."

  "Thank you for the civics lesson," said the judge.

  "We don't intend to call her," explained Kaminsky, the law man. "Her testimony would be merely cumulative."

  Bingo, thought Jaywalker. The prosecution had listed among its witnesses no fewer than twenty-one individuals prepared to testify about the identities of the nine victims, none of which were in question. Yet they were reluctant to call one of the four people who'd been drinking with the defendant, because it would be merely cumulative? Not likely. Amy Jo O'Keefe, who had for some reason refused to talk with Nicky Legs, had to have something to hide.

  "Why don't we exclude her," suggested Jaywalker. "I might just call her."

  "Step back," said the judge. Then, to the jurors, "I think this might be a good time to take our midmorning recess. We'll resume in fifteen minutes. Don't discuss the case."

  When they reconvened, Firestone asked to approach the bench again. But it was Kaminsky who spoke once they got up there. "We've decided to call Miss O'Keefe after all. Because we failed to exclude her from the courtroom during prior testimony, we wanted to give Mr. Jaywalker an opportunity to be heard, in case he objects."

  "Mr. Jaywalker?" said the judge.

  Again, it was one of those moments when he had to think fast. There were three things he could do. First, he could oppose her testifying at all. But he'd already decided that Firestone must have had a reason for not calling her in the first place. Second, he could ask for a sanction against the prosecution, such as the judge's instructing the jurors to regard her testimony with additional scrutiny, since she'd had the benefit of hearing earlier witnesses describing the same events she'd be asked about. But if it turned out that Miss O'Keefe's version of the facts was more favorable to Drake, as Jaywalker strongly suspected it might be, that instruction would boomerang and come back to hurt the defense.

  Having set enough traps of his own over the years, Jaywalker recognized one when he saw it. So he picked Door Number Three. "I appreciate the prosecution's looking o
ut for me," he said. "But I have no application regarding the witness."

  "You know I'll issue a cautionary instruction," said Justice Hinkley, "if you request it."

  "No, thank you," said Jaywalker, unable to suppress a wink. "And I'll assume Mr. Firestone has fulfilled his Brady and Rosario obligations."

  The prosecutors looked at each other blankly. Brady required them to turn over any exculpatory material. Rosario dealt with reports containing prior statements of witnesses.

  "Of course," said Firestone.

  "Yes," said Kaminsky.

  "Naturally," said Napolitano.

  Jaywalker couldn't help picturing the three monkeys, See No Evil, Hear No Evil, and Speak No Evil.

  "You may step back," said the judge. And once they had, "Call your next witness, Mr. Firestone."

  In describing that witness in its next day's edition, the reporter for the Rockland County Register would put it this way:

  Barely five feet tall in heels, Amy Jo O'Keefe weighs 99 pounds, by her own admission. With flaming-red hair, bright green eyes, a button nose and an absolutely irrepressible smile, she's as cute as a firecracker.

  What the paper delicately refrained from pointing out was the fact, obvious to everyone in the courtroom, that either Amy Jo had been spectacularly endowed by her Creator, or that a good portion of those ninety-nine pounds consisted of silicone, or at least some material not naturally found in the human body.

  FIRESTONE: Is it Miss O'Keefe, or Mrs? Or Ms.?

  O'KEEFE: It's Miss.

  FIRESTONE: Are you employed, Miss O'Keefe?

  O'KEEFE: Yes, I'm a sales rep for Pfizer. That's a pharmaceutical company.

  FIRESTONE: Do you recall the late-afternoon and early-evening hours of May 27 of last year?

  O'KEEFE: Yes, I do.

  FIRESTONE: Where were you at that time?

  O'KEEFE: I was at the End Zone.

  FIRESTONE: Who were you with at the End Zone?

  O'KEEFE: Rachel Harper, Trudy Demarest, Frank Gil- son, and that man over there.

  (Points)

  FIRESTONE: Indicating the defendant.

  THE COURT: Yes.

  FIRESTONE: Prior to that date, had you ever met him?

  O'KEEFE: No.

  Firestone had her recount how the five of them had taken turns downing shots of tequila. Amy Jo had lost count around the fifth round, she said. Yes, she was pretty sure Drake had kept up. She confessed that the two of them had flirted. "He wasn't wearing a wedding band," she explained. "I didn't know he was married till I read about him in the papers, two days later. Honest."

  Great, thought Jaywalker. One more reason for the jurors to dislike Drake.

  FIRESTONE: Who left the End Zone first, you or the defendant?

  O'KEEFE: He did. His son showed up to drive him home. I remember, 'cause I'd given him my phone number ear lier, and when I found out he had a son who was almost as old as I was, I took back the napkin with my number on it.

  FIRESTONE: How did he react to that?

  O'KEEFE: He seemed angry, or more like embar rassed, I guess.

  FIRESTONE: But he did leave?

  O'KEEFE: Yes.

  FIRESTONE: Have you had any contact with him or his lawyer since?

  O'KEEFE: No. Please forgive me for saying this, but I think he's a total sleazebag.

  FIRESTONE: We can strike that, Your Honor.

  THE COURT: Mr. Jaywalker?

  JAYWALKER: She said it.

  THE COURT: Do you wish it stricken?

  JAYWALKER: No, thank you.

  Jaywalker had learned long ago that the lesson of the Trojan horse applied to courtroom battles as well as historical ones. It was one thing when an honorable prosecutor offered to strike something that threatened to give his side an unfair advantage. When an Abe Firestone did it, it was time to beware of Greeks bearing gifts. THE COURT: We'll let it stand, then. But please confine your answers to the questions, Miss O'Keefe.

  O'KEEFE: Yes, ma'am.

  Whatever had been the source of Firestone's reluctance to call Miss O'Keefe continued to remain unclear. Certainly it hadn't been Drake's drinking or flirting, or the fact that his son had showed up to drive him home. Or even her personal opinion of him. So it had to be something else.

  Every once in a while, Jaywalker knew, crossexamination could turn into a treasure hunt.

  JAYWALKER: You say the defendant matched you, shot for shot. Is that correct?

  O'KEEFE: Yes.

  JAYWALKER: And you matched him?

  O'KEEFE: Yes.

  JAYWALKER: How many drinks did you have after he left?

  Not "Did you have any more drinks?" That would have been the proper form of asking the question, instead of assuming a fact not in evidence, as Jaywalker's version had. But that would have allowed Amy Jo to answer "No." Firestone was asleep at the switch, however, and didn't think to object, at least not until it was too late.

  O'KEEFE: Two or three.

  Which would make up for Drake's earlier martinis and put them pretty much at the same count. If anything, hers were bunched more closely together.

  JAYWALKER: Tequilas?

  O'KEEFE: No, I switched over to Jagermeister.

  He'd have to check the proof of that. Not as strong as 120-proof tequila, no doubt. But probably the equivalent of a martini.

  JAYWALKER: Fair to say you can hold your own when it comes to drinking?

  O'KEEFE: Hey, they don't call me "Irish" for nothing.

  THE COURT: Careful.

  (Laughter)

  JAYWALKER: But you can hold your liquor?

  O'KEEFE: You could say that.

  JAYWALKER: It doesn't count if I say it. Would you say it?

  O'KEEFE: Definitely. I can hold my liquor with the best of them.

  JAYWALKER: Forgive me for asking, but how much do you weigh?

  FIRESTONE: Objection.

  THE COURT: Overruled. It may have some relevance.

  O'KEEFE: Ninety-nine pounds.

  JAYWALKER: About the same as you weighed last May?

  O'KEEFE: Yes.

  JAYWALKER: Do you by any chance recall what time you yourself left the End Zone that evening?

  O'KEEFE: Nine, nine-thirty. Something like that.

  Okay, thought Jaywalker. It was now or never. Sometimes you played things close to the vest, and sometimes you said fuck it and took your shot. This, he'd decided, was one of those times.

  JAYWALKER: Would you say you were drunk when you left?

  O'KEEFE: No.

  JAYWALKER: I noticed you didn't hesitate before answering. Does that mean there's no question in your mind?

  O'KEEFE: There's no question in my mind.

  Here goes, Jaywalker told himself. And muttering a silent prayer to a God he didn't believe in, he asked the question. If it worked, it worked. If it didn't, no big deal. He'd have the rest of the day to wipe the egg off his face.

  "How'd you get home?" he asked her.

  This time Amy Jo did hesitate before answering, and Jaywalker fully expected to hear an objection from Firestone. Technically speaking, how she'd gotten home was irrelevant to the charges against Carter Drake, and Jaywalker wasn't sure how he'd go about arguing otherwise. But Firestone, who'd been quick to object to letting the jurors hear Amy Jo's weight, of all things, let it go.

  "I drove," she said.

  And there it was.

  He spent the next fifteen minutes having her describe her drive home. How capably she'd managed it, how fully she'd been in control, and how she'd arrived safely, without incident.

  JAYWALKER: By the way, where is your home?

  O'KEEFE: Ramapo.

  JAYWALKER: Ramapo, New Jersey?

  O'KEEFE: Yes.

  JAYWALKER: Same as last May?

  O'KEEFE: Yes.

  JAYWALKER: How long a drive was that?

  O'KEEFE: About forty minutes.

  JAYWALKER: No problem driving it?

  O'KEEFE: Nope, no problem.

  JAYWALKER: D
id you consider it reckless on your part?

  FIRESTONE: Objection.

  THE COURT: Overruled. You may answer.

  O'KEEFE: No, I did not.

  JAYWALKER: Did you think you were acting with a de praved indifference FIRESTONE: Objection!

  JAYWALKER: — to human life?

  FIRESTONE: Objection! Objection! Objection!

  THE COURT: I'll allow it. And then we'll move on, Mr. Jaywalker.

  O'KEEFE: Could you repeat the question?

  JAYWALKER: Let me rephrase it. Did you think at the time, Miss O'Keefe, that you drove those forty minutes with a depraved indifference to human life?

  FIRESTONE: Objection!

  THE COURT: Sit down. I've ruled.

  O'KEEFE: No, I did not.

  JAYWALKER: And as you reflect upon it now, would your answer be any different?

  O'KEEFE: No, not at all.

  And there it was, Jaywalker's summation.

  Amy Jo O'Keefe was a woman, meaning a given amount of alcohol would affect her nearly fifty percent more than it would a man of equal body weight. She weighed maybe half what Carter Drake did. Over a slightly shorter period of time, she'd consumed roughly the same amount of alcohol as he had. Yet she'd been able to get into her car, start it up, and drive forty minutes without incident to another state.

  And Carter Drake? In getting into his car and driving himself home, had he acted one bit more recklessly than Amy Jo? One bit more depravedly indifferent to human life?

  Of course he hadn't. He'd just been unlucky, that was all. T erribly unlucky.

  Under our system, jurors, a good argument can be made that both Amy Jo O'Keefe and Carter Drake broke the law that night. She drove while intoxicated. So did he. She got away with it, as do thousands, if not millions, of motorists, year in and year out. He didn't. But ask yourselves this. Should dumb luck mean that one of them should be able to walk away free, to joke about her Irish heritage and say "No problem," while the other one should spend the rest of his days locked up in a cage? Even if he does happen to be a no-good, cheating sonof-a-bitch sleazebag?

  Okay, so it needed a little polishing. But there it was, the utter hypocrisy of the law, laid bare. All because Firestone and his team had initially decided against calling a witness whose testimony, they'd explained, would be merely cumulative. Jaywalker would have been willing to bet his entire fee-okay, a pocketful of Samoan pennies-that they'd known full well that O'Keefe had driven home safely, that they'd chosen not to call her precisely because they'd been afraid that fact might come out, and that they'd shredded any police reports mentioning her, in violation of both Brady and Rosario.