Depraved Indifference j-3

by Joseph Teller

  "How about the business of the wasp?" Jaywalker asked her. "And the rolled-up newspaper?"

  "He made it up sometime afterward. He is allergic. That much is true. So he figured his doctor would be able to back him up on that, and people would believe the story."

  "Anything else?"

  "No. Yes."

  "What?" he asked.

  She looked him in the eye. "You have to promise me," she said. "You can't tell Carter I told you any of this. He really would kill me if he found out."

  Jaywalker studied her face, by now red and puffy from crying. And this time he decided they might not be just words after all.

  "Promise me?"

  Back in his DEA days, Jaywalker had learned how to write a C.I. out of a case. A C.I. was a confidential informant, a snitch who was trading information on bigger dealers for leniency on his own case or money, or sometimes both. Say a C.I. had told Jaywalker and his team that Vinnie Bug Eyes had forty kilos of pure heroin stashed in a warehouse on Columbia Street, over on the Brooklyn docks. The team would sit on the place for a couple of nights. They might see stuff, they might not. Then they'd go to an assistant U.S. attorney and say they'd observed known dealers coming and going at odd hours of the night, looking around furtively and lugging heavy-looking suitcases in and out. Stuff like that. One of them would sign an affidavit. The assistant would go before a judge or a magistrate and get a search warrant for the warehouse. They'd kick in the door, tear the place apart and find a shitload of drugs and money. Stash and cash, they used to call it. And the best part was, Vinnie Bug Eyes never found out there was a C.I. involved who'd given him up. Because they'd written him out of the search warrant, out of the case altogether.

  Sure, it had involved a bit of perjury and a little making of false sworn statements, both felonies that could have landed Jaywalker and the rest of his team in federal prison for five or ten years. But in the process, they'd brought down the bad guy, gotten the drugs out of circulation, and kept the C.I. from turning up in some dark alley with a bullet in the back of his head, and his tongue cut off and shoved down his throat. So it was a matter of the end justifying the means, he'd rationalized at the time. And, he figured, if he could write a C.I. out of things back then, surely he could do as much for Amanda Drake now.

  "I promise," he told her.

  Having spent Saturday driving up to Massachusetts and back, Jaywalker was forced to spend a good chunk of Sunday pondering what to do about this latest development. Amanda's admission that she'd been in the passenger seat of the Audi when her husband had run the van off the road was the least of things. Far more important was how she'd put the lie to the fable about the wasp and the rolled-up newspaper. Jaywalker now knew he couldn't call her as a witness, not without blowing away the only chance Carter had.

  But it got even worse than that.

  A lawyer doesn't necessarily have to believe his client in order to put him on the stand and have him tell his story. If that were a requirement, even fewer defendants would end up testifying than they now do. But, as with most things, there's a limit to the rule. A lawyer who knows for a fact that a witness intends to lie may not let him do so. That limitation applies to prosecutors and defenders alike, and extends to all witnesses, not just defendants.

  Jaywalker was anything but naive, and he knew plenty of lawyers on both sides of the aisle who ignored the limitation. But as much of a rule breaker as he was, ethics were a different matter to him, and he drew a bright line when it came to suborning perjury. He was willing to coach a witness on how to say something, but not what to say. And more than once in his career he'd thrown a phony-alibi witness out of his office, once so roughly that he'd been arrested for assault.

  He now knew this much. Come Monday morning, he'd have to confront Carter Drake about the wasp business. He'd promised Amanda he wouldn't let her husband know she'd given him up on it, and he'd honor that promise. Years ago, when his daughter had grown old enough to ask him to promise her certain things, he'd learned never to do so unless it was within his power to deliver. So "I promise I'll always love you" was okay, but "I promise I'll always be here for you" wasn't. A promise was just that, a promise.

  Lying, on the other hand, was occasionally permitted under Jaywalker's personal code of conduct. Back when his wife lay dying, her body reduced to skin and bones, her face ravaged and contorted in pain, he must have told her a hundred times that she was still beautiful. And when her breath was fouled from swallowing what little was left of her own blood, he'd assured her it still smelled sweet, though both of them had surely known better. So just as he'd lied to Eric about the phantom EZPass photo, so too would he lie to his own client, in order to protect Amanda but at the same time get her husband to come clean. And once he'd done that, Carter would be stripped of his own lie and the only defense he had. At that point, he'd be willing to talk about a plea, and all that would be left was twisting Abe Firestone's arm hard enough to get him to let go of the murder count.

  But in the meantime, just in case he was wrong about any of that, there were Monday morning's witnesses to prepare for.

  20

  A GUEST OF THE COUNTY

  On Monday morning, before the jury was brought into court, Abe Firestone rose and announced his intention to call a video technician named Landon Miller to the stand. Miller was employed by a company Firestone had commissioned. They'd created a video that, according to Firestone, would recreate for the jurors the view from the driver's seat of the Audi as it crossed over into the wrong lane, narrowly missed two oncoming cars, forced the van off the road, and continued on without stopping.

  "Have you shared this with Mr. Jaywalker?" Justice Hinkley asked.

  "Not yet," said Firestone. "I only saw it myself for the first time this morning. I contacted the company Friday, after court. The defense has done such a good job confusing the jurors that I felt they should have a chance to see what things really looked like from the defendant's perspective."

  "Sit down, Mr. Jaywalker," said the judge. He'd been on his feet, ready to explode, ever since he'd heard the word video. Words like ambush, surprise, improper and prejudicial were on the tip of his tongue. Not to mention joke, cartoon and b ullshit. But sit he did.

  "Don't worry," the judge added. "You'll have plenty of time to be heard on this. Mr. Firestone, exactly when in your case were you hoping to call this witness."

  "Now."

  "How long is the video?"

  Firestone looked over at David Kaminsky for a clue, got one, and replied, "Five minutes."

  The judge sent word to the jury room that there would be an unavoidable delay before the morning session got under way. Then she ordered the courtroom cleared. As the rows emptied, Jaywalker overheard two reporters discussing going to the Appellate Division to complain. He wished them luck. The Appellate Division was in Albany, a good two hours away.

  The technician, whom Jaywalker had expected to be geeky-looking but who turned out to be MadisonAvenue, button-down handsome, was permitted to enter the courtroom and, with the help of an equally attractive female assistant, set up several huge television screens, so everyone would be able to see without moving from their seats. Then the lights were dimmed, and the feature presentation came on.

  Jaywalker hadn't known quite what to expect. He'd considered it quite possible that the company had gone out and gotten a hold of an Audi TT, mounted a camera on the dashboard or the driver's forehead, and recreated the route Carter Drake had taken, complete with a substitute white van and a couple of stunt drivers. What he found himself watching instead was a high-tech, full-color, professionally made, virtual-reality production. A sort of Batman Driving Badly, he decided. The windshield, the instruments on the dashboard beneath it, the hands gripping the steering wheel, and the road ahead, were neither real nor animated, but somewhere in between the two. The only thing missing was a Hollywood sound track.

  Jaywalker was immediately reminded why he no longer went to the movies. There'd been a tim
e when he'd been a lover of special effects. He could watch King Kong a hundred times over-the original one with Fay Wray, the mechanical ape, and the tiny lizards pretending to be dinosaurs. But he couldn't sit through the remake. Star Wars and its progeny had left him cold, and by the time Harry Potter came along, he hadn't even been tempted. Computerized effects had made the impossible possible, but to Jaywalker, none of it looked real anymore.

  And so it was with this production. The guardrails lining the roadway weren't guardrails at all, but digitized recreations of them. The cars veering out of the way of the Audi weren't real. Even the van, slamming on its brakes as the Audi closed in on it, didn't look real. Furthermore, the five minutes Firestone had predicted was way off. From start to finish, it took less than a minute. And yet, when the van suddenly turned, fishtailed, took flight and disappeared off to the left of the giant screen, the effect was unmistakably powerful. And the Audi driver's calmly pulling back into his proper lane and continuing on without ever slowing down was nothing less than bone-chilling.

  They watched it three times through, from start to finish, but it didn't get any better.

  "Turn the lights back on," said Justice Hinkley. And when that had been done, she turned to the defense table and said, "Mr. Jaywalker?"

  He spoke for ten minutes, citing the prosecution's breach of pretrial discovery, the dangers inherent in substituting a movie for actual testimony, and the unfair emotional impact the recreation would inevitably have upon the jurors. If they were vague about what the particular stretch of road in question looked like, let them go visit it as a group, under the court's supervision, the way that was sometimes done when one side or the other requested it. But don't show them a dumb cartoon of it.

  But even as he argued he could sense, the way a good lawyer can always sense, that his words were falling on ears that, if not quite deaf, had certainly become hearing impaired.

  "Don't you agree that the courts have to keep up with ever-changing technology?" the judge asked him.

  "Not if it means depriving my client of a fair trial, I don't. This is nothing but an ambush. They had nine months to do this and give me a chance to hire experts to examine it. I could have made my own competing version. Instead, they slap it together over a weekend and spring it on us first thing Monday morning."

  "Would you like a day's continuance?" the judge wanted to know.

  "No. I'd like you to rule that whatever its probative value may be-and for the life of me, I think that's less than zero-is vastly outweighed by its prejudicial impact. I want you to keep it out."

  "Would you like a voir dire of the witness, in the jury's absence?"

  "No."

  "Would you like the jury brought to the scene?"

  "No."

  "Would you like a limiting instruction?"

  "Maybe I'm not making myself clear," said Jaywalker. "I want it out, period. I keep hearing what a strong case the prosecution has. Well, maybe they do. You want to take a chance and let this piece of-"

  "Careful."

  "— evidence in," Jaywalker continued, grateful that the judge had steered him away from the word he'd been about to use, "then go ahead. Give us an issue to appeal on. We should be thanking you." And with that, he sat down.

  For a long moment, Justice Hinkley said nothing. She was too busy writing. When she was finished, she looked up and spoke in a measured, calm voice. "The court hereby holds defense counsel in summary contempt. Counsel is an experienced practitioner who knows full well that threatening a court with reversal is a breach of ethics. It is only because I believe that you've acted out of nothing but overzealousness on behalf of your client that I suspend sentence. Next time, I promise you, I won't."

  Jaywalker nodded a silent thank-you.

  "Now, let me ask you again," said the judge. "Would you like a twenty-four-hour continuance?"

  "No."

  "Would you like a limiting instruction?"

  "Yes."

  They spent a few minutes going over what the judge would tell the jurors when it came time for them to see the video. They would be instructed to use it only for clarification purposes, not as a substitute for the sworn testimony of eyewitnesses. But to Jaywalker, the distinction hardly mattered. This was the Age of the Video Screen, he knew, whether that screen happened to be on a TV set, a computer or what used to be called a telephone, in the old days. No matter what the judge told the jurors to do or not do, they'd get into their deliberations at the end of the case and pretty much forget who had said what. But they'd remember that white van on the big screen, veering off, fishtailing and leaving the roadway. How could they not?

  The playing of the video for the jurors turned out to be every bit the horror show Jaywalker had expected it to be. They got to see it only once, but from the rapt attention they appeared to give it, once was enough. As he watched it from the defense table, the only thing Jaywalker could take comfort from was the dimming of the courtroom lights, allowing him and his client to hide in the semidarkness. But then the lights came back up, and there was no place to hide, literally or figuratively.

  On cross-examination, he focused on the sources of information that Landon Miller and his team had relied on in putting the video together.

  JAYWALKER: Did you interview the driver of the Audi?

  MILLER: No.

  JAYWALKER: Did you try to?

  MILLER: No. There wasn't time.

  JAYWALKER: Did you try to contact me?

  MILLER: No.

  JAYWALKER: Interview any of the other drivers or eyewitnesses?

  MILLER: No.

  JAYWALKER: So whom did you interview?

  MILLER: May I check my notes?

  JAYWALKER: Sure. I imagine Mr. Firestone will give me a copy of them sometime next year.

  THE COURT: The jurors will disregard that remark.

  MILLER: We interviewed Mr. Firestone, Mr. Kaminsky and Investigator Sheetz.

  JAYWALKER: That's it?

  MILLER: That's it.

  JAYWALKER: Two prosecutors and one prosecution witness?

  MILLER: I guess so.

  JAYWALKER: Kind of like Fox News? Fair and bal anced?

  FIRESTONE: Objection.

  THE COURT: Sustained.

  JAYWALKER: Let me try to understand this, Mr. Miller. You made a movie version of what Mr. Firestone, Mr. Kaminsky and Investigator Sheetz told you. You spoke to not a single eyewitness. You didn't even attempt to speak with anyone from the defense. Am I correct?

  MILLER: Yes.

  JAYWALKER: Care to tell us how much you charged the taxpayers of Rockland County for this production?

  FIRESTONE: Objection.

  THE COURT: Sustained as to form.

  JAYWALKER: How much did you bill for your services?

  FIRESTONE: Objection.

  THE COURT: Overruled.

  MILLER: That's a proprietary matter.

  THE COURT: Not anymore it isn't. Please answer the question.

  MILLER: (Inaudible)

  JAYWALKER: I couldn't hear that.

  MILLER: One million, two hundred and fifty thousand dollars.

  Which, judging from the collective gasp emanating from the jury box, was as good a time for Jaywalker to collect his notes and sit down as he was going to get.

  The setting up of the video equipment, the previews, the arguing, the instructions to the jurors, the actual showing, the testimony and the removal of the equipment left no room for additional witnesses in the morning session. Which was just as well, as far as Jaywalker was concerned. He needed to talk to Carter Drake, in order to straighten out the business of Amanda's having been seated next to him in the Audi rather than driving the Lexus with Eric.

  He did it locked in a holding cell with his client over the lunch hour. He even broke his no-lunch rule and accepted a cheese sandwich from a guard, as well as a cup of warm yellowish water he guessed was tea, though only after subjecting it to a repeated smell test.

  For lack of imagination, he trie
d the same ploy with Carter that he had two days earlier with Eric. "I've got an interesting bit of news for you," he said.

  "What's that?"

  "Firestone has photos he subpoenaed from EZPass."

  "Oh?"

  "It seems you weren't alone in the Audi," said Jaywalker. "There's a woman sitting in the passenger seat, and from the back she looks very much like your wife. And the shot of the Lexus shows only a driver in the front, and he looks an awful lot like your son."

  Drake finished swallowing a mouthful of stale bread and cheese. Velveeta must have somehow come in with the low bid for the concession, Jaywalker had already decided. A million and a quarter to piss away on a oneminute cartoon was okay, though.

  "Why can't you keep my family out of this?" asked Drake.

  "Why can't you tell me the truth?" countered Jaywalker. "Then maybe I can." He left it at that. This was neither the time nor the place for a lecture on trust, honesty and professional ethics.

  "So what if she was with me?"

  "Don't you see? It changes everything. For starters, the wasp story won't sell."

  "Why not?"

  "Because," Jaywalker explained, "if there had really been a wasp, your wife could have dealt with it. You already had enough on your plate, driving-"

  "Drunk?"

  "You said it. I didn't."

  "Okay," said Carter. "You want the truth, here's the truth. My wife was in the car with me. That much is true. But there was a wasp, and when it started flying around, I asked her to kill it. But she was angry at me, and she wouldn't do it. So I tried. I probably even made a bigger deal of it than I should have. You know, reaching way over to accentuate the fact that she wouldn't help me. You know the rest."

  Did he? All Jaywalker really knew was that his bluff about the EZPass photos had worked, and that Amanda had indeed ridden home in the Audi. As for the wasp story, it was still up for grabs. Amanda had said it was a lie, but Carter was sticking with it. And Jaywalker couldn't very well confront him with Amanda's version, not without breaking his promise and giving her up.