Depraved Indifference j-3

by Joseph Teller

  Besides which, Carter's insistence that it was true provided Jaywalker with some ethical cover. Because he was in no position to say for sure who was telling the truth and who was lying, he could go ahead and put his client on the stand and have him tell his story. He could even tell Amanda that her husband was sticking with it. If she were to get the hint and remember it his way, she could bolster his defense. On the other hand, if she were to continue to insist that there'd been no wasp… Well, he'd cross that bridge when he came to it.

  The afternoon session brought a woman named Lone Thanning to the stand. Thanning was the Rockland County medical examiner, and a witness Jaywalker had been dreading for some time. One of the elements the prosecution is required to prove in a murder case is that the victim died, and that some act of the defendant caused that death. In some cases, that cause-and-effect relationship is thrown into serious debate. Jaywalker had tried cases where cause of death was the issue before the jury. The guy with the. 45 blood alcohol reading, for example, whose stepson had conked him on the head with a bottle. Had the blow really been the cause of death? Or had it been merely incidental to the victim's suddenly collapsing from acute and chronic alcohol poisoning? Or the nineteen-year-old who'd lost his balance after being punched in an alley fight, and had happened to land on a jagged piece of glass that severed his femoral artery? Had the defendant truly caused his death, or had it been a tragic accident?

  But when it came to the nine occupants of the van, cause of death was hardly in issue. They'd died, Jaywalker was more than prepared to concede, because the van had rolled over, exploded and burned. Precisely when in the course of those events their deaths occurred, or exactly how, made no difference at all. So Jaywalker had repeatedly offered to stipulate that the medical examiner, if called as a witness, would testify that all nine deaths had resulted from the van's being forced off the road.

  But Abe Firestone would have none of that.

  Just as Jaywalker wanted to keep the gruesome details from the jurors, Firestone wanted to get as much mileage from those details as he possibly could. And because neither side can be forced to accept a stipulation in lieu of actual evidence, Justice Hinkley wasn't about to intervene. The most she would do was to warn Firestone- and David Kaminsky, who would conduct the direct examination of Dr. Thanning-to keep things as brief as possible and refrain from going into overly graphic details.

  Still, Jaywalker knew, it wasn't going to be pretty.

  Kaminsky asked Dr. Thanning about her title, training and experience. She described earning her medical degree, doing several internships and residencies, earning board certification in forensic pathology, and working as an assistant medical examiner in the county until her promotion several years ago.

  KAMINSKY: What are your duties as chief medical examiner of Rockland County?

  THANNING: I run the office and report to the county executive. Along with my staff, I investigate every violent or suspicious death that occurs in the county, as well as a large number of cases where the cause of death is unknown.

  KAMINSKY: How do you go about investigating those deaths?

  THANNING: Chiefly by performing complete postmortem examinations, commonly referred to as autopsies.

  KAMINSKY: How many autopsies have you performed or assisted at?

  THANNING: Thousands.

  KAMINSKY: Did you have occasion to perform an autopsy on May 28 of last year?

  THANNING: I did.

  KAMINSKY: Who was the subject of that autopsy?

  THANNING: A man by the name of Walter Najinsky.

  Walter Najinsky had been the driver of the van, and had long been the forgotten victim in the case. But that was about to change. Najinsky was about to be remem bered in death far more than he had been in life, except perhaps by his immediate family and friends.

  KAMINSKY: Would you describe Mr. Najinsky's remains for us as you first encountered them?

  THANNING: Yes. The entire body was charred black. The facial features were virtually unrecognizable. Almost all of the flesh had been incinerated, except where one shoe had partially protected one foot. Other than that, what I was looking at was essentially some very burned flesh and a skeleton.

  Jaywalker pretended to be taking notes, but only because he didn't dare look at the jurors. The silence in the courtroom told him all he needed to know.

  KAMINSKY: What did your examination reveal?

  THANNING: It revealed third-degree burns of the entire body.

  KAMINSKY: Would you please explain to the jury what third-degree burns are?

  THANNING: We divide burns into three degrees, increasing in severity from first degree to third degree. First-degree burns are a reddening of the skin, the sort of thing you might sustain from getting your finger too close to a match, or touching the surface of a pot that's been on the burner of a stove. Second-degree burns involve blistering, where the heat and duration of exposure are enough to kill the outer layers of skin, and cause them to separate from the internal layers. Third-degree burns include charring, much the same way a steak will char if left on a hot open flame too long.

  KAMINSKY: Did your examination reveal anything else?

  THANNING: Yes. I was able to determine that there were several fractures to bones, specifically the right fibula and tibia, the pelvis, and both the left and right clavicles. In addition, there was a depressed fracture of the skull.

  Kaminsky had the witness describe the various bones she'd mentioned. Then he asked her if she had been able to determine the cause of death.

  THANNING: Not with absolute certainty. It was most likely the burns. But the skull fracture was also capable of causing death. And it's impossible to rule out internal injuries, which means bleeding from major organs. The body was simply too badly burned to make a determination.

  KAMINSKY: Did you take photographs of the body?

  JAYWALKER: You can't be serious.

  Never mind that it was a line John MacEnroe used to get away with regularly. Jaywalker wouldn't be so lucky. Justice Hinkley banged her gavel once and declared a recess. Then, as soon as the last juror had left the courtroom, she held Jaywalker in contempt for the second time that day. "Only this time, I sentence you to one day in jail, and I do not, repeat, do not, suspend the execution of that sentence. Mr. Stephens," she called to a uniformed trooper assigned to guard the defendant and escort him to and from the courtroom. "Please make the necessary arrangements. Mr. Jaywalker will be a guest of the county tonight."

  Then she asked David Kaminsky to show her the autopsy photos. Jaywalker had asked that she exclude them seven weeks ago, arguing that they were too inflammatory to show the jurors. In addition to the charred remains of Walter Najinsky, there were multiple photos of the bodies of the eight children, smaller than the driver's, but no less jarring. They ranged from moderately disturbing to truly hideous.

  "Any probative value they might have," Jaywalker pointed out, "is far outweighed by-"

  "Quiet," said the judge. She continued to inspect the photos for several minutes, gradually sorting them into two piles, before looking up. "These you may offer," she told Mr. Kaminsky. "These you may not. The defense's objection to them is noted and overruled."

  Jaywalker noticed that somewhere along the line he'd ceased to be "Mr. Jaywalker" and had become "the defense." One of the prices of vigorous advocacy. He was permitted to see which photos had passed muster. They included five of Mr. Najinsky from various angles, as well as a close-up of the skull fracture, and one of a child, charred beyond recognition. Jaywalker had seen them all, having been furnished copies many months ago. Even he would have had to concede that Justice Hinkley had kept the very worst of them out. There was one, for example, of the eight children's bodies, arranged side by side, that reminded him of concentration camp photos he'd seen. And another of a small blackened skull framing tiny white teeth that seemed to be smiling out at the viewer. Still, the ones the jurors were going to be permitted to see were ghastly enough.

 
And the thing was, by excluding the worst of them, the judge would no doubt be deemed to have forged an acceptable Solomonic compromise in the opinion of some appellate court, a year or two from now. Judges weren't asked to be perfect, after all, just reasonable.

  Once the jury had been brought back into the courtroom, Kaminsky had Dr. Thanning identify the photos of Mr. Najinsky and describe what each one depicted. Then he moved on, out of the frying pan, as it were.

  KAMINSKY: Did you conduct autopsies of the additional eight victims, the children?

  THANNING: No, I did not.

  KAMINSKY: Why not?

  THANNING: I was able to tell from a gross external examination that all eight had suffered third-degree burns over just about their entire bodies, and that in all eight cases, they could not have survived those burns. Based upon that conclusion, I elected to use my discretion and yield to the wishes of the families, who are all orthodox Jews opposed on religious grounds to invasive autopsies. Also, they wanted to bury their children without further delay, in accordance with their beliefs.

  Which didn't stop Kaminsky from introducing eight additional photos, one for each of the children, and then having them published, passed among the jurors. Jaywalker watched out of the corner of one eye as each juror in turn physically recoiled from the images.

  He asked Dr. Thanning no questions.

  The afternoon's final witness was another doctor, this one a forensic pediadontist named Oliver Landsman Jacoby. Dr. Jacoby, so far as anyone had been able to ascertain, was the only person on the planet who made his living and spent all of his professional time identifying dead children by comparing their teeth to their previous dental records or, if no such records existed, to dental characteristics they shared in common with their parents or siblings. It was, one might say, a niche industry.

  Because the eight children had been so thoroughly burned, and because the religious beliefs of their parents forbade intrusive procedures to their bodies, the Rockland County authorities had decided against attempting to draw tissue samples for DNA typing. With no cheeks left to swab, skin to scrape, or hairs from which to collect follicles, that likely would have required extracting bone marrow, something that Lone Thanning had been understandably reluctant to do.

  Enter Dr. Jacoby.

  Again it was David Kaminsky who did the honors. Again Jaywalker rose to stipulate that the bodies were indeed those of the eight children named in the indictment. Again Firestone and his team rejected the offer. And again Justice Hinkley admonished Jaywalker for grandstanding in front of the jury. Though she did refrain from adding to his contempt sentence.

  This time, the prosecution's inflexibility backfired just a bit. Kaminsky had Dr. Jacoby produce a series of packets. The first such packet contained multiple photographs and X-rays taken after the incident, and showing the teeth of the dead children. Each photo bore a number, 1 through 8, as well as the letter X, for "unknown." The rules of spelling, it seemed, were going to yield to the conventions of algebra. Next, Dr. Jacoby identified eight more packets, each containing not only photos and X-rays that had been taken during the lives of the children, but those of close relatives, as well. Each of those items bore the letter K, for "known." But here the numbers ran into the hundreds. And even though Kaminsky had taken the trouble to have all of the items premarked, it still took a good twenty minutes for them to be offered, remarked, and received in evidence. During those twenty minutes, the jurors got to sit on their hands. Jaywalker made a point of yawning several times, and noticed that a few of the jurors caught the bug and followed suit. Never a good sign for the prosecution.

  Then Kaminsky began the tedious process of drawing out from Dr. Jacoby the evidence upon which he'd been able to match the teeth of each child with a name, through either prior photos, X-rays, or comparisons of markers, or unusual characteristics, with the teeth of known relatives. At one point Kaminsky got so confused trying to match up the Xs with the Ks that he offered to give up trying and accept the defense's offer of a stipulation.

  "Objection," said Jaywalker. "Grandstanding."

  Once it had gotten the desired effect of a couple of grins from the jury box, he withdrew the objection and agreed to stipulate. But before sitting down, he made sure to make a point of looking at his trusty Movado knockoff and shaking his head from side to side in mock exasperation over the waste of the jury's time.

  But if a handful of jurors had noticed and smiled, Kaminsky remained oblivious. Finished with his direct examination of Dr. Jacoby, he insisted that the photos and X-rays, all 216 of them, be published to the jury. Justice Hinkley complied, but it was a mistake. There were simply too many exhibits, and unlike the video and the previous photos, these were in black and white. The jurors barely looked at them. Could it be that they were beginning to become desensitized to the horror?

  Jaywalker could only hope.

  Jaywalker half expected Justice Hinkley to relent and let him go for the night, but she didn't. She did permit him to turn his valuables over to Amanda for safekeeping. These included his identification, his keys, his watch and his money, which, assuming the overnight rate of exchange with Samoa hadn't changed, came to $17.42. Then he was escorted into the pen area by an apologetic trooper.

  "Any chance I can double bunk with my client?" Jaywalker asked him. "I need to prepare him for testifying."

  "I'll see what I can do," said the trooper. "But…"

  "What?"

  "Nothing."

  "What?" Jaywalker repeated. And when that didn't work, he pulled out his trump card. "C'mon," he said. "I used to be on the job." The words might not have meant anything to a civilian, but to anyone in law enforcement, they were the way you said you were one of them, that you, too, had once carried a gun and a shield for a living. They were words he'd learned back in his DEA days, when he'd been out on the street undercover, carrying a bad-guy gun but no shield. And when some gung ho cop would stop him, give him a toss, and discover a. 380 Browning semiautomatic shoved down his belt, with one in the chamber and eleven in the clip-which happened more than once-and was about to crack him over the head with it to teach him a lesson, Jaywalker would mutter the words just in time to save his skull.

  On the job.

  "Okay," said the trooper. "Just make sure you keep your food straight from his."

  "Ten-four," said Jaywalker.

  Which was his way of saying he got it. What the trooper was telling him was that Carter Drake wasn't much liked, and there was the outside but nonetheless distinct possibility that things were ending up on his meal tray or in his coffee that didn't exactly belong there. Not that the advice came as a total shock to Jaywalker. He'd once been warned by a court officer never to pour himself a cupful of water from the pitcher of a particular judge who was known to be discourteous toward his staff.

  After a pat-down and some processing, including fingerprinting and photographing, Jaywalker was placed in solitary. He caught a nap on a bare steel cot, using his jacket as a blanket and his shoes for a pillow. It wouldn't be the first night he'd spent in jail, and it probably wouldn't be the last, so he figured he might as well make the best of things. After an hour or so, he was awakened and handed a pen through the bars, along with a printed form. He read just enough of it to understand that he was forever surrendering his right to sue the state, the county, the city, and their agents and employees in the unlikely event of assault, rape, death or dismemberment. He signed with his left hand, illegibly enough so that if more than three of those things were to happen, his daughter could claim that the handwriting wasn't his. Then his earlier wish was granted, and he was led down the corridor to a two-bunk cell, where Carter Drake took one look at him, smiled broadly and said, "Hey, it's my cousin Vinny!"

  Whatever that w as supposed to mean.

  21

  IN MY SLEEP I CAN TELL YOU

  Spending a night in jail may actually have a positive effect on some people. It can serve as a warning to mend one's ways. It can provide an educa
tional experience, even a humbling one. Gandhi is said to have emerged from imprisonment more determined than ever, Martin Luther King more revered. In modern times, at least one politician used his five years as a prisoner of war as a springboard to some degree of political success.

  That said, jail does little for one's personal hygiene. Even though Jaywalker had been careful to keep his food-to use the word loosely-separate from that of his cell mate, he emerged the next morning looking like he'd slept in his suit and, well, smelling pretty much as might have been expected. The one-night rate, it turned out, hadn't included shower privileges. And unlike even the cheap motels he was used to on the rare occasion when he traveled, there'd been no cute little soaps, shampoos and conditioners arrayed on the bathroom sink. In fact, there'd been no bathroom. There'd been a sink, a steel thing with a single faucet producing cold water, and a matching toilet, no seat, no lid.

  With no mirror in sight, the best he could do was to run a hand through his hair and over the stubble on his chin. He had to tie his tie three times to get the ends right. His shirt was badly wrinkled, but that was nothing compared to how it smelled.

  So when Jaywalker walked into the courtroom Tuesday morning to find Amanda waiting for him with a fresh suit and shirt, clean undershorts and socks, a toothbrush and toothpaste, a comb and-most welcome of all-a stick of deodorant, he was beyond grateful. She'd found his address among his identification, she explained, and used his keys to let herself into his apartment. Security had been no problem, there being none.

  Justice Hinkley allowed him ten minutes to use a public restroom to change and defumigate. By the time he reappeared, he looked pretty much himself, give or take a day's stubble. Not that pretty much himself was ever going to land him on the pages of GQ magazine. But at least he smelled good, thanks to a generous underarm and overbody coating of Old Spice Original Scent.