JAYWALKER: Whom did you call?
DRAKE: I called by wife. She was the only person I could think of who lived close enough to me and would be willing to do it. And I figured she'd be able to bring our son along.
JAYWALKER: Even though you and your wife were separated?
DRAKE: We still loved each other, and cared about each other. We'd separated because we'd begun to argue too much, and too often. It was supposed to be a trial thing. We'd started seeing a marriage counselor, in fact, working towards resolving our issues.
Jaywalker established that Drake had had no more to drink while waiting for his wife to show up, and that he'd left the End Zone as soon as Eric had walked in. But once outside in parking lot, he'd insisted that he was going to drive himself home.
JAYWALKER: Why did you do that?
DRAKE: Several reasons. First of all, I remembered that my son only had a learner's permit. He wasn't allowed to drive alone or after dark. Second, I was convinced I was fine. And third, the Audi takes some getting used to. It's very fast, very responsive. And again, it was night, it was dark out. Amanda-that's my wife-wasn't really used to it. All things considered, I felt it was safest for me to drive it, and for her to follow me in her car.
JAYWALKER: Did Amanda agree to that?
DRAKE: No. She started arguing with me, and I argued back. We started yelling at each other. At some point, Eric, who'd walked back to her car and gotten into it, drove off.
JAYWALKER: What happened next?
DRAKE: I got into my car and started it up. I told my wife it was up to her. She could get in or stay there in the parking lot. She got in.
JAYWALKER: And?
DRAKE: And I began driving home.
JAYWALKER: How did that go?
DRAKE: At first, it went fine. I had absolutely no trouble driving. No trouble at all.
JAYWALKER: But at some point, I gather that changed?
The question was deliberately open-ended. Even at this point, an hour into his client's direct examination, Jaywalker had absolutely no idea what to expect next. Would Drake tell the wasp story, banking on the fact that his wife would have no choice but to back him up on it? Or would he abandon it and go with the argument narrative, and then try to come up with some other way of extricating himself from responsibility? It was truly weird not knowing, absolutely bizarre. Jaywalker-the compulsive, driven, overpreparer, the dotter of all i's and crosser of all t's-was totally clueless. Here he was, suddenly at a fork in the road where he had to turn left or right, and he had absolutely no idea which it would be. He was about to follow his client's lead, the last thing in the world he ever wanted to do. But what choice did he have?
It didn't take long for him to find out which fork they were taking.
DRAKE: Yes. I noticed a wasp flying around in the car.
JAYWALKER: A wasp?
DRAKE: Yes, a wasp. You know, like a hornet.
JAYWALKER: And why did that change things?
DRAKE: I'm very allergic to insect bites. I've ended up in the emergency room several times.
JAYWALKER: What happens when you get stung?
DRAKE: I get what's called an anaphylactic reaction. My throat closes up, among other things, and I'm unable to breathe. Each time it happens, it gets worse. I've been told that the next one could kill me.
FIRESTONE: Objection.
THE COURT: Come up.
Up at the bench, Firestone, prompted by David Kaminsky tugging at his elbow, argued that what Drake had been told was hearsay. "It's an out-of-court utterance," he pointed out. "And whoever supposedly told him this, even if I were to believe him, isn't here for me to cross-examine."
"It's not hearsay at all," said Jaywalker, who for all of his idiosyncrasies, knew his evidence. "It's not being offered for the truth of the statement. It's being offered only to show his state of mind, and to explain why he did what he did next."
He could have added that he'd be calling his client's doctor to the stand later on-Drake had made certain of that by choosing the wasp fork-but he decided not to tip his hand. Better to let Firestone blunder into that by accusing Drake of making it all up.
THE COURT: Overruled. Step back. The answer will stand.
JAYWALKER: Who told you the next reaction could kill you?
DRAKE: My doctor. The doctors and nurses in the emergency room. All the reading I've done about it. I have to be very, very careful.
JAYWALKER: So what happened when you noticed the wasp flying around inside the car?
DRAKE: I opened the windows, and I asked my wife to try to get it out or kill it. But she wouldn't. She was still angry with me, and she refused. At one point, it landed on the windshield. There was a newspaper on the console, between the seats. I grabbed it, rolled it up, and tried to swat the thing.
JAYWALKER: And?
DRAKE: I missed it, and it began flying around again like crazy. I must have made it angry or something, because all of a sudden it was like it was trying to get me, buzzing all around my head, trying to get at my eyes. I tried to slow down, but I must have had my right foot on the gas pedal instead of the brake, because the more I tried to slow down, the faster we went. And at some point I must have lost control, because all of a sudden I looked up and we were in the wrong lane. I tried to downshift, to force the stick shift into second or third, but I couldn't, I couldn't.
And here Drake gestured with his left hand, showing how hard he'd tried to slam the thing into a lower gear. And his demonstration was so convincing, and his voice so anguished, that Jaywalker nearly missed it.
He'd used his left hand, instead of his right.
Jaywalker had been standing back by the railing, the bar that separated the well of the courtroom from the spectator section. He tended to do that when he wanted his witness to speak louder, to project his voice. Now he walked to the podium and pretended to be studying his notes while he tried to figure out the significance of what had just happened. But a rushing noise and a pounding at his temples made concentrating all but impossible. Had he been the only one to notice Carter Drake's error? Was it possible he'd only imagined it? He turned toward the audience section so that his own body would be facing the same way the witness's was. No, Drake had definitely gestured with his left hand. But as he'd sat in the driver's seat, the gearbox would have been to his right.
Unless he hadn't been in the driver's seat.
JAYWALKER: Tell us, if you can, what prevented you from getting the car into a lower gear.
And suddenly there it was, a flash of panic in Drake's eyes. It lasted less than a second before vanishing, and the only reason Jaywalker saw it was because he'd been looking for it.
DRAKE: I don't know.
JAYWALKER: Don't you?
DRAKE: (No response)
JAYWALKER: Maybe I can help. Was it by any chance because you didn't have your left foot on the clutch pedal?
DRAKE: I don't remember.
JAYWALKER: How do you downshift in the Audi TT?
DRAKE: The same way you downshift with any man- ual-transmission car. You depress the clutch, move the stick into a lower gear, and release the clutch.
JAYWALKER: And the stick-the gearshift selector- is mounted on the floor, between the seats. Just as it's shown in this photograph that Investigator Sheetz took.
(Hands exhibit to witness)
JAYWALKER: Right?
DRAKE: Right.
JAYWALKER: Yet a minute ago, in demonstrating how you tried to force the stick shift into a lower gear, you used your left hand, and reached to your left with it- FIRESTONE: No, he didn't.
THE COURT: Yes, he did.
JAYWALKER: Didn't you?
DRAKE: If I did, it was by mistake.
Jaywalker let the answer hang in the air for a few seconds. Technically, the judge had been wrong to state her own recollection of the gesture. She should have told the jurors it was up to them to decide. But now, with her vote cast in Jaywalker's column, several jurors were nudging their neighbors, as i
f to say they'd picked up on it, too. And Drake's "by mistake" had by now taken on an absurd quality, somewhere the far side of plausible.
JAYWALKER: Let me ask you again. Isn't it a fact that the reason you couldn't downshift was because you didn't depress the clutch pedal with your left foot?
FIRESTONE: Objection. He's trying to impeach his own witness.
JAYWALKER: I ask that the witness be declared hostile.
It was a shot in the dark, he knew. For starters, he doubted there'd ever been an instance where a lawyer had succeeded in having his own client declared a hostile witness. But that sort of minor detail didn't bother Jaywalker. What worried him was that all a declaration of hostility triggered was the right to ask your own witness leading questions, in which the questions themselves contained or strongly suggested the answers, which could then be as limited as a simple yes or no. It didn't give you the right to impeach your witness, to attack him and try to show he was lying.
Fortunately, almost no one besides Jaywalker knew the rule or appreciated the distinction. Not even Justice Hinkley. "Overruled," she said.
JAYWALKER: You didn't step on the clutch, did you?
DRAKE: I, I, I guess not.
JAYWALKER: Yet you're an experienced driver, aren't you?
DRAKE: Yes.
JAYWALKER: How long had you had the Audi?
DRAKE: I don't know. Eight months.
JAYWALKER: How long had you been driving stan- dard-shift cars?
DRAKE: Since I was seventeen.
JAYWALKER: So what happened? Why didn't you step on the clutch before trying to downshift?
DRAKE: I don't know.
JAYWALKER: Yes you do.
FIRESTONE: Objection.
THE COURT: Sustained.
JAYWALKER: You didn't step on the clutch because you couldn't reach it. Right?
DRAKE: (No response)
JAYWALKER: And you couldn't reach it because you weren't in the driver's seat at all. You were in the passenger seat, weren't you?
DRAKE: No.
JAYWALKER: And the reason you were in the passenger seat is that your wife was driving. Wasn't she?
The collective gasp from the jury drowned out Carter Drake's response, and Justice Hinkley had to ask him to repeat it.
DRAKE: Leave her out of it. It wasn't her fault. It was my fault.
JAYWALKER: Maybe it was your fault. But you weren't behind the wheel, were you?
DRAKE: Yes, I was. It was all my fault, every bit of it. So leave my wife out of it, and leave my son out of it. They had nothing to do with it. I'm the one who's responsible here. I'm the one who killed those kids. Me, me, me. I was driving. I was driving. I was…
Whatever else he might have wanted to say was lost in his sobs, drowned out by huge body-racking convulsions that completely overcame him. It was almost as though Carter Drake had suddenly regressed right there in front of their eyes and become a boy, a ten-year-old version of himself. A boy who believed that by shutting his eyes as hard as he could, clapping his hands tightly over his ears, and continuing to say over and over again that it wasn't so, he could somehow blot out the truth.
But Truth can have a funny way of revealing herself, and to everyone else in the courtroom, with the possible exception of Abe Firestone and his two assistants, she'd suddenly and unexpectedly laid herself bare, for all to see. Carter Drake had no doubt gotten it half-right. In large measure, he was responsible for what had happened. Had he not had too much to drink and needed help getting home, those eight children and their driver would still be alive. But he hadn't killed them. He hadn't driven their van off the road. He hadn't even been driving.
"I have no further questions," said Jaywalker.
But Firestone did.
For a full two hours, he took Drake back over every detail of what had happened in the car. The easy part was getting Drake to say he'd been driving. But when it came to explaining away his having gestured with his left hand reaching for the gearshift, or his left foot's not having been able to reach the clutch pedal, Firestone made no headway at all. And that fact must have been as obvious to Drake as it was to everyone else, because at one point, when it had become clear that his insistence that he'd been driving was ringing hollow, he looked away from Firestone and toward Justice Hinkley. And turning both of his palms upward, he asked, "Can't I just plead guilty?"
"No," said the judge, "you cannot. Your job is to answer the questions."
Firestone finally gave up trying and sat down, but his frustration and anger never once ebbed. Even after the jurors had filed out of the courtroom for the evening, and Jaywalker was packing his files and notes into his briefcase, the D.A. was in front of Jaywalker, spraying a fine mist of spittle as he delivered his unsolicited opinion.
"He's lying!" he shouted, his face crimson, the veins in his forehead bulging. "He's goddamned lying, and you know it. You put him up to this. They warned me. They told me you were one clever son of a bitch. But this…this is fucking criminal! This is an outrage! The guy goes out and kills nine people, and you twist things around to make it look like he was nothing but an innocent passenger! Well, fuck you! I'm still going to get him. You watch. And I'm going to get you, too, before I'm done."
Jaywalker finished packing his briefcase and snapped it shut. "You flatter me," he said. "And I suppose I appreciate your calling me clever. But I'm not that clever. Nobody is."
Amanda was waiting for him in the corridor, but she was hardly alone. A swarm of reporters had her surrounded, snapping pictures of her, shoving microphones into her face, and outshouting each other demanding her comments on the latest development. Jaywalker walked right past her, afraid that if he were seen talking with her, it would smack of collusion.
Sitting behind the wheel of his Mercury, he waited until he saw her reach the parking lot, get into her Lexus and pull out onto the street, before he began following her. He finally managed to catch up to her on the Palisades Parkway, no mean feat for the Merc. As he drew alongside her, he motioned her to follow him. They pulled over at a scenic overlook, where he killed the Mercury's engine, got out and joined Amanda in the Lexus. Unlike the Merc, it had a heater that actually worked.
"What was all that about?" she asked.
"I wanted you to follow me."
"No," she said. "Back in court."
"Oh, that," he said. "Carter told the truth."
"The truth?"
"That you were driving."
People developed tells, Jaywalker had learned long ago, almost imperceptible giveaways that they were lying, or hiding something, or bluffing at the poker table. Some would break off eye contact and look away or down at the floor. Others would raise a hand to the mouth, or the tip of the nose, or one ear or the other. Jaywalker would bite the inside of his cheek. And it was always his left cheek. He had the scar tissue to prove it. But he couldn't help it; for the life of him, he couldn't. Which was why they called it a tell.
Amanda had just bitten her lower lip.
"Why didn't you let me know?" he asked her.
She looked away, out the side window. "Carter," she said. "He insisted. He wouldn't have it any other way. From the day it happened, all that's ever mattered to him is keeping Eric and me out of it. It's his penance, I guess. But I can't believe he changed his mind."
"He didn't, exactly."
He told her what had happened. She nodded grimly several times, but didn't interrupt. When he was finished, she asked, "What's going to happen to me?"
"Not too much," he said. "You certainly weren't drunk, or anything like that. Nobody's going to accuse you of acting with depraved indifference, the way they'd been able to accuse Carter. It was an accident. But it was a bad one, and you did leave the scene."
"What happens tomorrow?"
"Tomorrow," said Jaywalker, "I put you on the witness stand."
"And what am I supposed to do?"
"Tell the truth," he said. "Tell the absolute truth."
22
THE L
ADY AND THE TIGER
Before they began Wednesday morning, Abe Firestone asked to approach the bench. There, he indicated that not only did he want David Kaminsky and Julie Napolitano to flank him at the prosecution table, but he wanted a fourth chair added.
"And who is the guest of honor?" asked Justice Hinkley.
"Investigator Sheetz."
Jaywalker objected, but the judge ruled that since Sheetz had already testified, she saw no reason to exclude him. And appellate courts had long approved of the policy of having "case agents" or other members of law enforcement sit with prosecutors to help out with technical matters. "But this means you won't be permitted to call him as a rebuttal witness," she said.
"Fair enough," Firestone grunted.
They stepped back, and as the jury entered, so did Sheetz. But instead of being dressed in a dark suit and tie, as he had been during his own testimony, now he was wearing his trooper's uniform, and even carrying his Mountie hat.
This time it was Jaywalker who asked to approach, complaining that Sheetz's sudden presence, accompanied by his change in clothing, was nothing but a thinly veiled attempt to intimidate the next witness.
"Who is the next witness?" she asked him.
"The defendant's wife."
"I didn't know that," said Firestone. "I figured you were putting on the allergy doctor."
"So that's who you wanted to intimidate."
"Cut it out, you two," said the judge. "I've got a jury waiting to get started."
"Listen," said Firestone. "If he's putting the wife on the stand, I'm going to ask her if she's been sleeping with her husband's lawyer. Go get that photo," he told Julie Napolitano.
She darted back to the prosecution table and began leafing through a pile of stuff. J esus, thought Jaywalker, they really do have a photo of us in bed. A moment later, Napolitano returned to the bench and held up a photo for the judge to see. But it was the same one that had appeared on Page Six of the P ost, showing Amanda and Jaywalker in the diner, her leaning toward him and looking for all the world as though she was about to kiss him.
"Even if what you say is true," asked the judge, "how is that relevant to anything?"
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