Depraved Indifference j-3

by Joseph Teller

  On redirect, to his credit, Abe Firestone brought out a few differences in the way Amy Jo had driven home and the way Carter Drake had.

  FIRESTONE: Did you speed on the way home?

  O'KEEFE: No, I drove under the speed limit.

  FIRESTONE: Did you drive on the wrong side of the road?

  O'KEEFE: No.

  FIRESTONE: Did you run any vans off the road?

  O'KEEFE: No.

  FIRESTONE: Did you kill eight little kids and JAYWALKER: Objection.

  THE COURT: Sustained.

  On second thought, maybe he had to rethink that part of his summation just a bit.

  They broke for lunch.

  That afternoon Firestone called Riley the Bartender. Riley, who actually turned out to have a first name, Daniel, showed up in a faded blue suit, a white shirt two sizes too big at the collar and a one-inch-wide black tie. It was an outfit straight out of the 1950s, and it made him look as though he was auditioning for a bit part in a retro movie. Had he been Jaywalker's witness, he would have worn his bartender vest, with a white towel thrown over one shoulder. Jaywalker would never understand what possessed other lawyers to try to dress up their witnesses.

  Firestone established that Riley had thirty-six years of bartending experience, the last nine of them at the End Zone. He'd come on duty around five-thirty the afternoon of May 27, just in time for the evening rush. Yes, he remembered the defendant, who'd been seated at a table with Frank Gilson, a "sort of regular" customer. And yes, they'd been joined a few minutes later by three attractive young ladies, all of whom Riley recognized.

  FIRESTONE: What were they drinking?

  RILEY: Martinis, at first. Once the young ladies joined them, they switched over to tequila.

  FIRESTONE: Any particular type of tequila?

  RILEY: Yeah. They asked for what we in the business call a designer brand. This particular one was a dark amber, 120 proof instead of the usual 90 or 100, and said to be very smooth going down.

  FIRESTONE: What do you mean by "said to be smooth"?

  RILEY: Well, I wouldn't really know. I don't drink.

  (Laughter)

  RILEY: It also happens to be very expensive.

  FIRESTONE: How expensive?

  RILEY: They were doing shots. It was costing them fifteen dollars a shot.

  FIRESTONE: How much tequila was there in each shot?

  RILEY: About an ounce and a half.

  FIRESTONE: At this time, are you able to tell us how many martinis and how many shots of 120-proof designer tequila the defendant consumed that evening?

  RILEY: I'd have to look at the tab.

  At that point Firestone produced a check and showed it to his witness, who identified it as the one that had been turned over to state troopers back in June. With no objection from Jaywalker, it was received in evidence.

  FIRESTONE: Does looking at that exhibit refresh your recollection?

  RILEY: Yeah. All told, they had six martinis and, let me see, twenty-four shots of tequila. Of those, I'd say the defendant personally had three martinis and maybe six or seven tequilas.

  FIRESTONE: Did there come a time when you had a conversation with the defendant?

  RILEY: Yes.

  FIRESTONE: What did you say, and what did he say?

  RILEY: I asked him if he had a ride home. He pointed at himself, like he was his own ride. I said, "No good." I handed him a phone, a cordless one we keep behind the bar, and I asked him to call somebody to come pick him up. He protested for a moment or two, but then he agreed and made a call.

  FIRESTONE: Why did you say "No good" and make him call somebody?

  RILEY: Because I didn't think he was in any condition to drive.

  FIRESTONE: Over your thirty-six years of experience as a bartender, have you seen a number of people who were intoxicated?

  RILEY: More than you can imagine.

  FIRESTONE: In your opinion, was the defendant intoxicated?

  RILEY: Yes.

  FIRESTONE: Do you happen to know who he called?

  RILEY: Not for sure. But about forty-five minutes later, a kid showed up, maybe nineteen or twenty years old. And after the defendant settled up with Mr. Gilson, he and the kid left the place together.

  Firestone thanked the witness, collected his notes, and started walking away from the podium. "Oh, yeah," he said as if he'd suddenly remembered, in his best Peter Falk impersonation. "One more thing. What did the check come to?"

  Riley said he had to look at it to remember. "Let's see. Four hundred and ninety-two dollars and seventyfive cents."

  "Thank you very much," said Lieutenant Colombo.

  Following the midafternoon break, Jaywalker began his cross-examination of Riley where Firestone had ended his redirect.

  JAYWALKER: Four hundred and ninety-two dollars and seventy-five cents, huh?

  RILEY: Yeah.

  JAYWALKER: Not all of that was for drinks the defendant had, was it?

  RILEY: No. Like I said, there was five of them at the table. So all you got to do is divide it by five.

  JAYWALKER: So all five of them were drinking?

  RILEY: Yup.

  JAYWALKER: And I see there's some food items included on the bill?

  RILEY: Right.

  JAYWALKER: And some tax?

  RILEY: Got to give the governor his cut.

  JAYWALKER: Right. Now these fifteen-dollar shots of tequila. Toward the end, were you watering them down just a bit? You know, to keep folks from getting drunk?

  RILEY: No way. I couldn't have, even if I'd wanted to. It would have made them look lighter.

  JAYWALKER: So you can only get away with that if they're drinking gin or vodka. Right?

  RILEY: Right.

  JAYWALKER: And you've done that once or twice in your thirty-six years of bartending. Haven't you?

  RILEY: No.

  JAYWALKER: Never?

  RILEY: Well, maybe once or twice.

  JAYWALKER: But that's impossible to do with an amber-colored drink.

  RILEY: Right.

  JAYWALKER: Unless, of course, you were to add a drop or two of caramel food coloring along with the water. Right?

  RILEY: I suppose so.

  JAYWALKER: That's the stuff that gives Cokes and

  Pepsis and root beer and all sorts of other drinks their nice amber color. Right?

  RILEY: I guess so.

  JAYWALKER: Tell me. Do you by any chance keep a little caramel food coloring behind the bar?

  RILEY: Yes.

  Jaywalker hadn't just gotten lucky there. He'd worked his way through law school tending bar, out in Ann Arbor. He knew all the dirty little tricks. Including telling the State Liquor Authority inspectors that the stuff was for making the soda coming out of the tap look darker when there wasn't quite enough syrup in the mix.

  JAYWALKER: And these Jagermeisters on the bill. I assume they were ordered after my client had already left?

  RILEY: Right.

  JAYWALKER: You saw him leave, as a matter of fact. Didn't you?

  RILEY: Yup.

  JAYWALKER: He didn't stagger out, did he?

  RILEY: Nope.

  JAYWALKER: Didn't fall down?

  RILEY: Nope.

  JAYWALKER: Didn't require assistance?

  RILEY: Nope.

  JAYWALKER: And you never cut him off, did you?

  RILEY: Cut him off? Well, I made him call for a ride.

  JAYWALKER: But you never refused to serve him?

  RILEY: No.

  JAYWALKER: You would have done so if you thought he was intoxicated, wouldn't you?

  It was one of those win-win questions Jaywalker loved so much. The law prohibited a bartender from serving an intoxicated person. So either Riley would have to admit committing a crime that made him complicit in nine deaths, or he'd have to vouch for the defendant's sobriety. Firestone saw the trap immediately, and was on his feet objecting.

  THE COURT: Overruled.

  JAYWALKER: Wouldn't you have
cut him off?

  RILEY: Yes.

  JAYWALKER: Do you remember Mr. Firestone asking you about an hour ago for your opinion, based upon your thirty-six years of experience as a bartender, whether my client was intoxicated or not? Do you remember that?

  RILEY: Yes.

  JAYWALKER: And you said yes?

  RILEY: Well…

  JAYWALKER: Well? Did you say yes, in your opinion he was intoxicated?

  RILEY: Yes.

  JAYWALKER: Was that a lie?

  RILEY: No, it was…

  JAYWALKER: I'm sorry, I couldn't hear you.

  RILEY: I'm not sure what it was. I was confused.

  JAYWALKER: But whatever it was, it wasn't the truth. Was it?

  RILEY: No, not exactly.

  JAYWALKER: As you observed my client back on May 27 of last year, it was actually your opinion that he wasn't intoxicated. Right?

  RILEY: Right.

  JAYWALKER: No question about that?

  RILEY: No question about that.

  God, how Jaywalker hated himself at times like this. He had every reason to believe that Carter Drake had not only been drunk, but had been obviously drunk. Riley had seen that and known it. His making Drake call for a ride proved it. Yet he'd continued to serve him. Abe Firestone had tried to do everything in his power to allay Riley's fear of what might happen to him if he admitted the inconsistency. First he'd immunized Riley from prosecution by putting him into the grand jury and having him testify without requiring a waiver of immunity from him. That meant Riley could never be prosecuted for what he'd done, never. Then he'd no doubt given Riley all sorts of assurances that he was safe, no matter what he were to say at the trial. Finally he'd popped the question, and Riley had passed the first test by saying yes, in his opinion Drake had been intoxicated. So far, so good. But as soon as Jaywalker had zeroed in on the implications of that opinion, that the bartender had continued to serve an intoxicated person, Riley had caved and said no, that hadn't been true.

  Mothers, Jaywalker had said more than once, don't raise your sons to be prosecutors. But if you must, at least teach them to know that their witnesses will screw up every time they're backed into a corner and accused of breaking the law.

  Now Jaywalker had to nail things down a bit.

  JAYWALKER: Tell me, Mr. Riley. Did you consult with a lawyer in connection with this case?

  RILEY: Yes. My manager provided a lawyer for me.

  JAYWALKER: Did it ever occur to you that that lawyer might have a conflict of interest?

  RILEY: What do you mean?

  JAYWALKER: I mean that he might have been more concerned about protecting the business and its liquor license than protecting you.

  RILEY: That's possible, I guess.

  JAYWALKER: Well, did that lawyer explain to you that by his actions, Mr. Firestone had made it impossible, legally impossible, for you to be charged, even though you continued to serve my client? Did he explain that to you?

  RILEY: Yes.

  JAYWALKER: And you understood that, didn't you?

  RILEY: Yes.

  JAYWALKER: And you believed it, didn't you?

  RILEY: Yes.

  JAYWALKER: So as you sit there now, you're immune from prosecution, right?

  RILEY: Immune from prostitution?

  JAYWALKER: They can't charge you, can they?

  RILEY: No.

  JAYWALKER: So did your lawyer instruct you, there fore, to go ahead and tell the absolute truth?

  Pretty safe there.

  RILEY: Yes.

  JAYWALKER: And did Mr. Firestone tell you the same thing?

  RILEY: I don't remember him saying that.

  FIRESTONE: I said it.

  JAYWALKER: Objection.

  THE COURT: Sustained. The comment is stricken, and the jury will disregard it. Consider yourself warned, Mr. Firestone. Please continue, Mr. Jaywalker.

  JAYWALKER: Thank you. In any event, Mr. Riley, you took an oath earlier today, did you not?

  RILEY: Yes.

  JAYWALKER: And that oath was to tell the truth, the whole truth, and nothing but the truth. Correct?

  RILEY: Correct.

  JAYWALKER: And when you testified a little while ago that in your opinion my client was not intoxicated, and that there was no question about it, was that in fact the absolute truth?

  RILEY: Yes.

  JAYWALKER: Thank you.

  As he had with Amy Jo O'Keefe, Abe Firestone tried to rehabilitate Daniel Riley. He had some success, for example getting Riley's assurance that he hadn't watered down the tequila that evening, despite the knowledge and wherewithal to do so. But when it came to his opinion as to whether or not Carter Drake had been intoxicated, Riley wouldn't budge. Jaywalker had by that time so cemented the reversal of Riley's first answer that the poor guy was now unwilling to re-reverse himself, even if it meant going back to the truth.

  FIRESTONE: And yet you insisted that he call somebody to come pick him up and get him out of there. Didn't you?

  RILEY: I did.

  FIRESTONE: Why did you do that?

  It was a good point. That said, any question that begins with the word why has the potential of drawing a totally unintended, not to mention totally undesired, response. No doubt Firestone fully expected to hear his witness-for it was his witness, after all-say that he at least had harbored reservations about Drake's sobriety and his ability to drive home safely. But for once, he didn't get what he'd asked for.

  RILEY: To tell you the truth, because I didn't like the way he was hitting on Amy Jo.

  Splat!

  It was as good a way to end the day as Jaywalker could have hoped for. Firestone could have chosen to leave well enough alone, and then argued in summation that Riley's actions had spoken louder than his words. Despite his denials, he had, after all, made Drake call for a ride. There's a legal expression, encrypted in ancient Latin to keep ordinary mortals from understanding it, that goes r es ipsa loquitor.

  The thing speaks for itself.

  Instead, by asking the why question, Firestone had seized defeat from the jaws of victory. He'd managed to inject an ulterior motive into Riley's testimony: that the bartender had been overly protective, and perhaps even jealous of the defendant's obvious interest in Amy Jo O'Keefe.

  All this from a witness who should have been able to walk into court and say in plain English that Drake was drunk as a skunk, that he should have cut him off an hour before, and that he'd done the next best thing by making him call for a ride home.

  "I hear you did great," said Amanda, who once again had been forced to spend the day on a bench in the corridor outside the courtroom. "The families were all muttering about the 'dumb Irish bartender.' And I overheard two of the jurors on the way out talking about how impressed they are with you."

  "That's nice," said Jaywalker. "But today meant nothing. Tomorrow we're going to get clobbered."

  "What happens tomorrow?"

  They were standing out in the parking lot. Jaywalker had refused to say anything until they were well clear of the building, and out of range of jurors, reporters and anyone else with ears. Even then, he leaned forward to answer her question, close enough to breathe in the smell of her neck. And as smells went, it was a good one. Musk and a trace of lilac, he would have guessed.

  "Tomorrow," he said, "we get the expert, the guy who's going to convert all those martinis and shots of tequila into a blood alcohol reading, and tell the jury that your husband was bombed out of his mind and had no business getting anywhere near the wheel of a car. That's what happens tomorrow."

  That night he stayed up well past two, knowing that the weekend was just around the corner, and he'd be able to catch up on sleep then. He read the latest edition of Peter Gerstenszang's tome on drunk driving cover to cover for the third time in as many months. He reviewed the expert witness's reports and calculations and rough notes until he all but had them memorized. He composed long lists of questions for cross-examination. But none of it mattered, he knew.
They were going to get worse than clobbered tomorrow. They were going to get massacred.

  And he had to admit to himself that there was a certain justice to that. Carter Drake had tanked up on gin and vermouth and tequila on an almost empty stomach, and then he'd gotten behind the wheel of his car. Whether there was any truth to the wasp-on-the-windshield story was beside the point. Drake had driven far too fast and, at the very best, far too carelessly. As a direct result, nine people had died.

  So why was Jaywalker so bummed? Certainly not for Drake, whom he totally despised. For Amanda, who was already separated from Drake and no doubt better off without him? Hardly. But for whom, then?

  And the thing was, he knew the answer. He always did. It wasn't about the client, not when he dug down deep to the core and was willing to be totally honest about it. It wasn't about the family, in this case the woman who'd sought him out and put her faith and money in his hands. And it certainly wasn't about Justice. Justice, in this particular case, was squarely on the side of the victims. She might have been blindfolded, but that didn't mean she couldn't hear. And if she'd been listening to the testimony, chances were she was rooting for a conviction on all charges, and a sentence to match.

  No, it was all about him and his stubborn pride, his absolute unwillingness to lose. It was what had driven him from the trenches in the first place, along with a little assist from the Disciplinary Committee judges. But it was also what had brought him back. It was what made him obsessive and compulsive and certifiably insane. And it was what made him the very best at what he did.

  But come tomorrow, he knew, it wouldn't be good enough.

  18

  DOUBLE-SECRET PROBATION

  Jaywalker had long felt that the prosecution's expert on alcohol metabolism would be the most important witness of the trial, with the possible exception of the defendant himself. His testimony might not prove to be the most exciting, or the most colorful, emotional or dramatic. But in terms of the sheer damage he could, and no doubt would, inflict upon the defense, the expert promised to have an impact on the outcome far greater than anyone else the prosecution would put on the stand.