Depraved Indifference j-3

by Joseph Teller

  Most murder cases involve a single victim. Yet prosecutors invariably feel compelled to offer not one but two witnesses when it comes to identifying the body for the jury. The first is typically a police witness, often a detective or officer who viewed the victim at the crime scene and later at the medical examiner's office, to assure the jurors that the bodies are one and the same. Chain of custody, so to speak.

  In Carter Drake's trial, that had posed a problem, but only a bit of one. By the time the police arrived at the scene of the crash, the victims were already unrecognizable. But between the testimony of Lone Thanning and Oliver Jacoby, all nine of them had been fully identified for the jury.

  The second identifier at a murder trial is generally a next of kin or other close relative of the deceased. The avowed purpose of this exercise is to have someone who knew the victim in life, and subsequently saw him or her in death, vouch for the fact that the now-lifeless body is indeed the person named in the indictment. So much for the avowed purpose. What's really going on, of course, is that the prosecutor wants to humanize the victim, wants to bring in a grieving mother or father, son or daughter, to take the long walk to the witness stand and, choking back tears, describe having to see an only child or beloved parent laid out on a cold slab in the morgue.

  Abe Firestone had weeks ago signaled his intention to call eight family members, one per child, in order to make civilian identifications of their loved ones. Jaywalker had immediately screamed foul, pointing out that because none of the eight could in fact identify the remains of their children, the tactic was nothing but an appeal to emotion. And when Justice Hinkley had wavered, he'd threatened to test each of the witnesses by displaying a huge blowup of the photo showing the eight charred bodies, and seeing if the parent could truly pick out his or her child.

  Not that he would have done it, of course. But with Jaywalker, you never knew, and the specter had evidently been too much for the judge. For once, she'd sided with the defense. But at the same time she'd invited Firestone to come up with an alternative, some less inflammatory way of personalizing the victims. A week later, Firestone had unveiled his plan B. He intended to have a single parent stand in for the others. She-and the choice of gender was a pretty good indication that the prosecution was still hoping to maximize the emotional impact-would describe her own child, and then go on to name and say a little bit about each of the other seven. Again Jaywalker had objected. If the names of the children were what needed mentioning, surely some school official was in a better position to say who'd been on the van and who hadn't been, as opposed to some mother who might have been forty miles away, getting her hair done while the kids were climbing aboard.

  In the end, the judge had agreed once again with Jaywalker, though not before scolding him for his sexist remark and warning him about his cavalier attitude. But there'd been no jurors around, and no members of the media. Still, she'd been right, and he'd apologized. He should have used a working mother in his example, rather than a well-coiffed one. So Firestone and his team had reluctantly moved on to plan C, eventually reporting that they'd taken the defense up on its suggestion and enlisted someone from the school to do the job.

  Now, once the spectators had been allowed back inside the courtroom and the jurors led in, Julie Napolitano stood and announced that the People were ready to call their final witness, Rabbi Mordecai Lubovich.

  Oy.

  All eyes turned to see a small man, not much more than five feet tall, flanked by a pair of uniformed troopers, enter the courtroom. To Jaywalker, he looked to be in his seventies, maybe even his eighties. Then again, maybe it was the sadness he seemed to carry in with him that added to his years. The deep lines in his face gave him an uncanny resemblance to Edward G. Robinson. Not the early tough-talking one, though. More the weary warrior, the one who'd seen too much and wanted out. The one from Soylent Green.

  NAPOLITANO: By whom are you employed, Rabbi Lubovich?

  LUBOVICH: I'm employed by the Ramaz Yeshiva, here in New City.

  NAPOLITANO: In what capacity?

  LUBOVICH: I'm the equivalent of the principal.

  NAPOLITANO: For how long have you been so employed?

  LUBOVICH: For thirty-two years.

  NAPOLITANO: Do you recall the day of May 27 of last year?

  LUBOVICH: How can I forget?

  But there was no glibness, nothing the least bit clever about the way he said it. With those four little words, he was telling the jurors what his life had been ever since that day, and what it would be until the day he died. And even as Jaywalker's heart reached out to the poor man as it hadn't done to any previous witness, he found himself thinking Shit, I should have let them bring in the parents.

  NAPOLITANO: Did there come a time that day when a number of children from your school boarded a van to be taken somewhere?

  LUBOVICH: Yes. Eight of my children, from different classes, had been selected to attend the groundbreaking ceremony for a new shul, a synagogue, in Haverstraw.

  NAPOLITANO: How were they selected?

  LUBOVICH: They were among my most promising students. They were the best and the brightest, you could say.

  NAPOLITANO: Who loaded them onto the van?

  LUBOVICH: I did, along with another teacher. I made sure they were each buckled into their seats. The seats they would die in.

  NAPOLITANO: Can you tell us their names and ages?

  LUBOVICH: In my sleep I can tell you.

  And he proceeded to list them. Not reading from some list, but staring off into space. "Michael Fishbein, eleven. Sarah Teitelbaum, also eleven. Anna Moskowitz Zorn, ten. Andrew Tucker, nine. Sheilah Zucker, nine. Steven Sonnenshein, eight. Beth Levy-Strauss, seven. Richard Abraham Lubovich, six. He happened to be my greatgrandson, my only great-grandson."

  There comes a moment in every murder trial when the victim or victims cease to be a name and suddenly come to life. Up until that moment, Jaywalker had thought the moment had occurred when Adam Faulkner, the first trooper to arrive on the scene, had described the tiny charred bodies he'd encountered, some of them still smoking. Or when the veteran EMT Tracy D'Agostino had told how she'd climbed out of the van, walked twenty yards away, and vomited her guts out. But he'd been wrong. The prosecution, foiled by Jaywalker's own objections, had been forced to go to plan C and recruit an official from the school. They'd come up with what might have seemed to be an unlikely candidate in Rabbi Lubovich. He was a man, for one thing, less likely than a woman to stir emotions. And he was old, far too old to be looked upon as the parent of a young child. But in their selection, Firestone and his staff had stumbled upon the perfect witness, and right now that perfect witness had created The Moment.

  Mordecai Lubovich had done his crying long ago. He had no tears left. But suddenly everyone else in the courtroom did, and had enough to make up for what the rabbi could no longer do.

  Julie Napolitano should have left it right there, having not only choreographed The Moment, but having done so at the perfect time, with what should have been the very last words to come from the mouth of the prosecution's final witness. But she evidently had more on her notepad, so she forged ahead.

  Not that what she followed up with was all that anticlimactic. What she did was hand Rabbi Lubovich a set of photographs, each one a glossy, full-color, sixteen-bytwenty-inch portrait of a child, and ask him to match a name to each face. As he did, she took the photo back from him, stuck it onto a large piece of white oak tag she'd earlier propped up on an easel, and affixed the name of the child just beneath his or her photo. By the time she'd finished the exercise, the jurors had two rows of four photos, eight in all, right in front of them. Having earlier been supplied the names of the young victims, they now had the children's faces staring directly at them, begging for justice.

  "The People rest," said Julie Napolitano.

  It was barely eleven o'clock, but Justice Hinkley excused the jurors for a long lunch break, telling them that they wouldn't be needed for another th
ree hours. Once they'd filed out of the room, Jaywalker rose and formally made the obligatory motion to dismiss the charges against his client. He didn't bother arguing the point or citing cases. He knew better. And so did Justice Hinkley, who quickly denied his motion, ruling that if anything, the People had presented far more evidence than they'd been required to.

  Out in the hallway, he found Amanda and used her cell phone to call Nicky Legs. "Get a hold of Drake's doctor," he told him. "Let him know we may be needing him as early as tomorrow afternoon, or maybe Thursday morning."

  "What's going on?" Amanda asked.

  "The prosecution's case is finished," he told her.

  "Finished? Like fell apart?"

  In her dreams.

  "No," he said. "More like completed."

  "What's next?"

  "Carter, at two o'clock."

  "Wow," she said. "How does it look?"

  "You don't want to know. And by the way, thanks for going to my apartment. That was really very sweet of you."

  "Anytime."

  "I've got to go," he said, pointing to a door that led to the pen area and turning toward it. But she caught his arm.

  "You didn't tell him?" she asked. "Did you?"

  "Tell him what?"

  "You know. That I admitted I was in the car with him."

  "No," said Jaywalker. "I kept you out of it. And Eric, too."

  "Thank you. And the wasp business. Is he still sticking with that?"

  "I'll let you know," said Jaywalker.

  "The defense calls Carter Drake."

  Drake rose from his seat at the defense table and made his way to the witness stand. The trooper who'd been sitting directly behind him stayed put, a silly gesture intended to disguise the fact that the defendant was in custody. As if the presence of another trooper, seated by the witness box, didn't give it away. Or the stories about the five million dollars' bail he'd been kept from posting, that had made the front page of the Rockland County Register for weeks and been mentioned regularly on local talk-radio shows.

  Jaywalker spent twenty minutes on background, establishing that Drake was a husband, a father and a gainfully employed resident of the state. He did these things not only to introduce his client to the jurors and to attach a few positives to him, but to give Carter a chance to get used to the business of testifying.

  Not that they hadn't practiced. Counting the three hours over the lunch break and the six they'd spent the evening before, even after "Lights out!" had been called, Jaywalker had devoted at least a dozen sessions to fleshing out Carter's story and getting him ready for the worst Abe Firestone could throw at him. For there was no doubt in his mind that Firestone would conduct the cross-examination himself. There was simply too much ego in him, and far too much publicity value in it, for him to pass the job off to David Kaminsky or Julie Napolitano. No, it would be Firestone's show, and Jaywalker had mimicked him in mock cross-examinations, right down to the gruff voice and heavy-handed theatrics.

  From talking about his background, Jaywalker brought Drake forward to May 27 of the previous year, and established that he'd spent the day working hard with a client, right over in Nyack.

  JAYWALKER: Did you take time out for lunch?

  DRAKE: No, we worked right through.

  JAYWALKER: You did finally finish, though?

  DRAKE: Yes, we finished about four-thirty or so, as I recall.

  JAYWALKER: What did you do then?

  DRAKE: Gilson, the client, suggested we get a bite to eat and something to drink. I agreed, and told him to pick the spot. I followed him in my car so he wouldn't have to take me back to his office when we were done.

  JAYWALKER: And where did you go?

  DRAKE: Not far. To a place called the End Zone. It's what they call a sports bar, I guess.

  JAYWALKER: Had you ever been there before?

  DRAKE: No, never.

  Jaywalker allowed himself a peek at the jury box. Things seemed to be going well, so far. It had taken a lot of coaching, but Drake had managed to develop what passed for a pleasant, earnest way of speaking. He was good to look at, well dressed without being showy, and likable. Then again, he hadn't gotten to the part about drinking yet, or killing nine people.

  JAYWALKER: What happened once you got to the End Zone?

  DRAKE: We found a table and ordered some food. Hot wings, or buffalo wings, I think they call them there. And drinks.

  JAYWALKER: Drinks?

  DRAKE: Martinis. We each ordered a martini.

  JAYWALKER: And what happened next?

  DRAKE: The drinks came, the food took a little longer. So we drank the martinis, and by the time the waitress brought the wings to the table, she saw our glasses were near-empty, and asked if we wanted refills. And we said, "Sure." And when those came, we drank them, too. And much too fast, as I now know. At the time, though, I didn't notice. Honest, I didn't.

  JAYWALKER: Did you order more food?

  DRAKE: No, the wings weren't very good. They were deep fried, and I keep reading about how bad fried food is for you.

  Great. In a dozen practice sessions, the answer had always been a simple "No," or at very worst a "No, I wasn't all that hungry." Now, all of a sudden, Drake had felt the irrepressible need to ad lib, and in the process had not only managed to insult the quality of food at a local establishment, but had also offended any KFC aficionados on the jury. And if their waistlines were any indication, there were several likely candidates.

  So much for being likable.

  JAYWALKER: But I gather the martinis were good?

  DRAKE: Unfortunately, they were very good. So I quit after round three.

  Another ad lib. By throwing in the part about quitting after round three-which wasn't even responsive to the question Jaywalker had asked-Drake had managed to jump ahead in time, leaving out important events. In spite of all the work the two of them had put in, he was proving to be a very difficult witness.

  Jaywalked tried to glide him back a bit without being too obvious about it.

  JAYWALKER: Was it still just the two of you at the table?

  DRAKE: No. Frank Gilson had called his girlfriend. He's not married. And he'd told her to come join us. And a while later she showed up, along with two of her girlfriends. So it was the five of us at the table. Frank, me, and the three young ladies.

  He'd done it again. It was supposed to be friends, not girlfriends. And young women, not young ladies. There were women who took offense at certain expressions. Jaywalker's wife had been one of them. She'd made him be the first lawyer in the city to stop calling jurors "ladies and gentleman."

  "What am I supposed to call them?" he'd asked her.

  "P eople, " she'd told him. "They're people."

  "You've got to be kidding. 'Good afternoon, people? ' Give me a break."

  He'd settled on jurors.

  Where was he? Jesus, he told himself. Concentrate.

  JAYWALKER: Did you drink anything else after you stopped drinking martinis?

  DRAKE: Yes. The ladies wanted to do shots of tequila.

  They insisted that everyone at the table join in. I protested a bit Drake, the victim.

  — but then I said okay. And I stayed in for two rounds, I believe. Three at the very outside. But I'm ninety-nine percent certain it was just two.

  JAYWALKER: You've listened to the testimony of pre vious witnesses at this trial, have you not?

  DRAKE: I have.

  JAYWALKER: Specifically, the witnesses Frank Gil- son, Trudy Demarest, Amy Jo O'Keefe and Daniel Riley. Did you hear what they had to say about their estimates of how much you had to drink?

  DRAKE: Yes, I did.

  JAYWALKER: And while their estimates varied widely FIRESTONE: Objection.

  THE COURT: Sustained. Strike the word widely.

  FIRESTONE: And I don't like the word estimates, ei ther.

  JAYWALKER: Well, isn't that special.

  FIRESTONE: It wasn't their estimates, it was their recollections.

&
nbsp; THE COURT: Quiet, both of you.

  (Laughter)

  THE COURT: It was their testimony.

  JAYWALKER: Perfect. And while the testimony of those witnesses varied, with some guessing-I'm sorry, testifying — that you had as many as six or seven tequilas, you sit there and tell us it was only two, and under no circumstances more than three. How can you be so certain?

  DRAKE: Because I was the one who was drinking them. I kept count. I knew I had to drive home, so I cut myself off. I'm not saying the other witnesses lied. I'm sure they testified to the best of their recollections. But I dropped out, I really did. Though I must admit I kind of pretended I was still in.

  JAYWALKER: Why did you do that?

  DRAKE: I guess I didn't want to come off as a wuss.

  JAYWALKER: A what?

  DRAKE: A wuss. It's what we used to call a party pooper.

  JAYWALKER: And was there any special reason why you didn't want to be perceived as a wuss?

  DRAKE: Well, for one thing, nobody wants to be perceived as a wuss.

  JAYWALKER: And?

  DRAKE: And I guess maybe I was trying to make an impression on the ladies.

  JAYWALKER: What is the present status of your marriage, Mr. Drake?

  DRAKE: My wife and I are separated.

  JAYWALKER: For how long now?

  DRAKE: For about a year.

  JAYWALKER: So then by the time you went to the End Zone with Frank Gilson, you'd already been separated some five or six months. Is that correct?

  DRAKE: That's correct.

  Jaywalker brought him to the point where Riley the Bartender had asked him to call home. He'd put up a fuss, Drake readily admitted, but only because he'd stopped drinking about an hour earlier, was already sobering up, and considered himself fully capable of driving.

  JAYWALKER: So why hadn't you left?

  DRAKE: Because I was having a good time. And because I wanted to be on the safe side, and give myself a little more time before getting behind the wheel.

  JAYWALKER: But you did make a call?

  DRAKE: Yes. I mean, I wasn't about to get into a fight about it, or anything like that.