Depraved Indifference j-3

by Joseph Teller

  "Credibility," said Firestone, repeating whatever Kaminsky was whispering in his ear. "Bias. Conflict of interest." It was like watching a ventriloquist at work, with an overstuffed dummy.

  "I'm going to reserve judgment on that," said Justice Hinkley. "Step back and call your next witness."

  "The defense calls Amanda Drake," Jaywalker announced.

  All heads turned to watch Amanda enter. All but Jaywalker's, that is. His eyes were on the jury box. What he saw were nods and a bit of nudging with elbows. Just as he'd planned, the jurors had been seeing Amanda for a week and a half now, passing her in the corridor and wondering just who the tall, pretty blonde was. A few of them, the elbow-nudgers, had evidently figured it out, and were now eager to trot out their I-told-you-so's. Jaywalker had more than a passing interest in identifying them. When deliberations began, those same jurors would take over, talking about things they'd spotted in the evidence, stuff they'd figured out from the testimony. They'd be the leaders, the ones Jaywalker would have to focus on and win over.

  He began gently with Amanda, getting her to talk about her career as an interior designer, her marriage to Carter Drake twenty years ago, their teenage son, and her separation from her husband about a year ago. Despite having spent a lot of time with her-a fact that Abe Firestone had already signaled he hoped to explore in detail-Jaywalker had for once underprepared a witness. Part of that had been his indecision over whether to call Amanda at all. Part had been his fear that she'd come off as too rehearsed. But most of it had been because of the impossible position the facts had conspired to put her in. As a result, up to this very moment, he still had no real idea what she'd say. Would she invite being arrested and charged herself in order to save her husband? Or would she protect herself by burying him? He knew this much: if Amanda were to lie and insist that Carter had been at the wheel, Jaywalker would have to go after her and, if need be, destroy her. It wouldn't be pretty and it wouldn't be fun, but he'd have no choice. Yes, she'd hired him, paid him generously, and even slept with him. But she wasn't his client. Carter Drake was, and it was to him that Jaywalker owed his undivided loyalty.

  It was a tough rule, but a good one. Just as it was whenever parents retained him to represent their child. The parents often didn't like hearing it, but it was the child who became the client. So no, he wouldn't tell them what the child had confided to him. And no, he wasn't going to help put the kid in rehab when he could beat the case altogether, no matter how much the parents pressured him that it would be best for the child. It was why he'd largely stopped taking juvenile cases, and prostitution cases, too. Well, that and the stairwell episode. No pimp or madam was going to tell him to make sure one of the girls got a few days in jail just to teach her a lesson. And it was the same reason why he'd long ago stopped representing Mafia members and wannabes, because back when he had, he'd found himself answering to all sorts of their friends and associates, guys with bent noses and funny nicknames like Johnnie Knuckles or Vinnie Ice Pick. So Carter Drake was his client, and Amanda was only a witness. And if it came to choosing between them, there was no choice; there couldn't be.

  She answered his preliminary questions flawlessly. She was just nervous enough to make her answers come off as real. She was earnest and thoughtful. And she was likable. Likable counts, Jaywalker knew. Then again, he hadn't gotten to the hard part yet. But he was about to.

  JAYWALKER: Did there come a time in the early evening hours of May 27 that you received a phone call from your husband?

  AMANDA: Yes.

  JAYWALKER: And in response to that phone call, did you do something?

  AMANDA: Yes. I called my son, Eric, who was staying at his father's at that time. And I told him to meet me downstairs in ten minutes, that we were going to pick up his father.

  JAYWALKER: And did you in fact pick up Eric?

  AMANDA: Yes.

  JAYWALKER: And did the two of you go somewhere?

  AMANDA: Yes. We drove-I drove to Nyack, to a place called the End Zone.

  JAYWALKER: What happened when you got there?

  AMANDA: I sent Eric in to get his father. I waited in the car. I was very angry, and I didn't want to cause a scene in the place.

  JAYWALKER: What happened next?

  AMANDA: Carter and Eric came out a few minutes later. I could see them arguing. I could also tell that Carter had been drinking, and had probably had too much. He gets like that sometimes. After a while, Eric came back over to my car and said, "I give up. You deal with him." Or something like that. So I- So I It was the first sign that she was about to lose it. Jaywalker looked at her hard, tried to will her to calm down. You can do this, he told her silently, hoping that his assurance could somehow take flight, travel the twenty paces between them, and reinforce her.

  JAYWALKER: Are you okay?

  AMANDA: Yes. No. I don't know.

  JAYWALKER: Would you like a few minutes?

  AMANDA: No. I'm all right.

  JAYWALKER: Okay. So what did you do after Eric came back and told you to deal with his father?

  AMANDA: I got out of my car and walked over to Carter. By that time he was standing next to his car, the Audi. He was fumbling with the keys, trying to unlock the door.

  JAYWALKER: What happened next?

  AMANDA: (No response)

  JAYWALKER: Can you tell us what happened next?

  AMANDA: We-we argued. I told him he was too drunk to drive. He refused to let Eric drive my car because he only had a learner's permit that wasn't good after dark. We yelled and screamed a lot.

  JAYWALKER: And?

  AMANDA: And then at some point, Eric just drove off in my car. I figured that ought to settle things. You know, the permit no longer mattered. Now I could drive the Audi. But Carter wasn't finished arguing. And we started fighting over the keys.

  Knowing that the moment of truth was coming, Jaywalker paused for a moment to signal the jurors that something big was coming. When finally he asked his next question, he asked it softly, almost sadly.

  JAYWALKER: And who won the fight over the keys?

  AMANDA: (No response)

  JAYWALKER: Who won the fight over the keys?

  AMANDA: I did. I knocked the keys out of his hand. They fell onto the pavement. I picked them up before he could.

  JAYWALKER: Did there come a time when the two of you got into the Audi?

  AMANDA: (No response)

  JAYWALKER: Mrs. Drake?

  AMANDA: Yes.

  Her voice was so faint that it was barely audible. Only the total silence in the rest of the courtroom allowed it to be heard.

  JAYWALKER: Who got behind the wheel?

  AMANDA: (No response)

  JAYWALKER: Mrs. Drake?

  Which was when it happened.

  A tiny movement at the prosecution table caught Jaywalker's eye. He looked over and saw Investigator William Sheetz lean forward ever so slightly, reach behind him, remove something from the back of his belt, and place it on the table in front of him.

  Later on, in the internal investigation that would follow the trial, Sheetz would insist under oath that he did what he did only because the item had been digging into his lower back and causing him discomfort. He'd also claim that he wasn't even aware that seconds later he began idly playing with it, the way one might play with a paper clip or a pencil, without even realizing it. The administrative judge conducting a hearing in that investigation would accept Sheetz's explanation and clear him on charges of official misconduct, obstruction of justice, and intimidation of a witness.

  But everyone in the courtroom knew better.

  Because the thing about it was, the item made a sound as soon as Sheetz began playing with it. And nothing, absolutely nothing, makes quite the sound that a pair of handcuffs does when one slides the business end of one cuff into the receiving end, over and over again. It's a ratcheting sound, metal teeth being drawn over metal teeth. It's a sound…well, it's the sound of an arrest about to take place.

  An
d Amanda, who heard it along with everyone else in the room, suddenly couldn't take her eyes off the source of the sound. So hard and so long did she stare, her eyes wide, her mouth open, that Justice Hinkley was finally forced to intervene.

  "Are you able to continue, Mrs. Drake?"

  But Amanda couldn't answer. She couldn't even nod, or shake her head. All she could do was to continue to stare at the handcuffs.

  Her handcuffs.

  The judge banged her gavel once, harder than usual. "We'll be in recess," she announced.

  As soon as the jurors were out of the room, she made a record of what had happened, describing it in detail for the court reporter to take down. Then she turned to the prosecution table. "Investigator Sheetz," she said, "remove yourself from my courtroom immediately, and don't come back. Ever. And you should expect to face criminal charges."

  "For what?" It was Firestone's voice.

  "For trying to intimidate a witness."

  "A witness," barked Firestone, "who was about to lie."

  "Careful, Mr. Firestone. Consider this your warning." Then she turned to the witness stand. "Mrs. Drake, do you realize the position you may be about to put yourself in?"

  All Amanda could do was shake her head slowly from side to side. The judge evidently took it as a no. "Do you have a lawyer?" she asked.

  Amanda managed to point vaguely in Jaywalker's direction.

  "No," said the judge. "What I mean is, do you have your own lawyer, other than Mr. Jaywalker?"

  "No."

  "Well, before we go any further, we're going to get you one." She scanned the audience for volunteers, settling on a young man in the second row whom she apparently recognized. "You, stand up. What's your name again?"

  "Mermelstein," said the young man. "Judah Mermelstein."

  "Right," said the judge. "Have you been following this case?"

  "Very much so. As a matter of fact, I-"

  "Good. I'm assigning you, for today only, to represent the witness. You're to sit down with her and explain to her the potential jeopardy she's in, advise her of her rights, and represent her through the end of her testimony. Do you understand?"

  "Yes, but-"

  "There are no buts about it. I have a trial going on, and a jury waiting. Can you do as I say?"

  "I can, only-"

  "Then do it. We'll reconvene in twenty-five minutes." And with that, she stormed out of the courtroom.

  No doubt Mermelstein had been trying to tell the judge that having represented the defendant, however briefly, he was in no position to now represent a witness in the same case. But whatever it was, Justice Hinkley hadn't wanted to hear it.

  And Jaywalker? Was he supposed to run after her and try to explain the problem to her? Or should he sit down, let things unfold and, if it should come to it, have an issue nicely preserved for appeal?

  He sat down.

  It was almost noon by the time they resumed. Amanda was led back to the witness stand and reminded that she was still under oath. Judah Mermelstein was provided with a chair, placed directly to one side of her. It was the same chair Investigator Sheetz had occupied earlier, before he'd felt compelled to play with his handcuffs. Needless to say, he was nowhere in sight right now.

  THE COURT: Mr. Mermelstein, have you had an opportunity to confer with the witness?

  MERMELSTEIN: Yes, Your Honor.

  THE COURT: Are we ready to proceed?

  MERMELSTEIN: Yes, but THE COURT: Good. Bring in the jury.

  Even as the jurors entered, they took in Sheetz's absence and Mermelstein's presence. Jurors don't miss much, Jaywalker had come to learn. They got things wrong every now and then, for which he was mostly grateful. But they didn't miss much.

  The judge apologized for keeping them waiting, and instructed them to refrain from speculating about the cast change. Then she told Jaywalker to continue his examination.

  JAYWALKER: Right before the recess, Mrs. Drake, I asked you which one of you got behind the wheel of the Audi, and which one of you got into the passenger seat. Do you recall that question?

  Before answering, Amanda looked over at Mermelstein. Only when he nodded did she look back at Jaywalker.

  AMANDA: Yes.

  JAYWALKER: I ask you that same question again now, Mrs. Drake. Who was driving the Audi that evening, you or your husband?

  Just as there can come a Moment in a trial when everything changes, so too can there come a Question upon which everything hinges. This was such a question. If Amanda were to say, "I drove," the entire direction of the trial would change. She would tell a story totally different from the one Carter had. There would be no wasp, no accidental loss of control of the car, no desperate attempt to steer it back into its lane or force the stick shift into a lower gear. Instead, she'd take full responsibility for everything that had happened. Then Abe Firestone would do his best to expose her as a liar, intent on saving her husband. What the jury would do was anyone's guess. And if they saw fit to acquit Carter, Amanda would probably end up wearing handcuffs as a reward for her honesty.

  On the other hand, if she were to say, "He drove," that declaration, combined with Carter's earlier insistence that he had been behind the wheel, would likely be the nail in her husband's coffin. No left-handed versus righthanded slip, no why-he-couldn't-reach-the-clutch theory was going to be enough for Jaywalker to pull the rabbit out of the hat at that point.

  So which was she going to do?

  Way back in grammar school, a million years ago, a young Harrison J. Walker and the rest of his class had been assigned to read a famous short story, compose their own endings to it, and read them aloud. The story was called "The Lady and the Tiger," and it was set thousands of years ago, back in the time of gladiators. A young man has been imprisoned in a dungeon and told that it will be his fate to be thrown into the ring for the king's amusement. During the fortnight while he waits, a princess comes to visit him, and over time the two of them fall in love. On her final visit, she tells the prisoner that on the very next day he will be led into the ring, where he will find two solid doors. Hidden behind one door will be a ravenous tiger, starved for weeks. Should he choose that door, he'll be ripped apart and devoured alive. Behind the other door will be a beautiful lady. Should he be lucky enough to choose that door, he'll be freed to wed her, go off with her, and live happily ever after. The princess then confides that she's learned which door holds the lady, and which holds the tiger. "Choose the left door," she whispers.

  What the prisoner must decide, of course, is whether to trust the princess. Has her love led her to save his life, or has it been trumped by her jealousy? In the end, he decides to trust her, and chooses the left door. The last two lines of the story read: "So I leave it up to you, dear reader. Which came through the door, the lady or the tiger?"

  Jaywalker was the author now. By posing the question "Who was driving the Audi that evening, you or your husband?" he was forcing Amanda to choose a door. And in doing so, she would once and forever reveal her true self and seal her own fate. Either she was Amanda the selfless, who would save her husband at her own expense, or she was Amanda the selfish, who would doom her husband in order to save herself.

  Which would she be, the lady or the tiger?

  And the funny thing was, he could still remember the ending he'd composed to the story, almost word for word. Even as his seventh-grade classmates had taken sides, most of the girls writing that true love would prevail and it would be the lady who'd come out, and most of the boys opting for envy and the tiger, young Jaywalker had refused to do so. Why did it have to be one or the other? he'd asked himself. Why did he have to follow the rules? So at the moment of truth, right before the prisoner would be forced to make his choice, Jaywalker had had the princess gather up her skirts, leap over the barrier that separated the spectators from the ring, and make her way to the door on the right, the one that she knew held back the tiger. Just as she reached for the lever that would spring the door open, the king rose, shouted, "No!
" and declared the spectacle over, as well as all future gladiator events, slavery, war, famine and homework. And the princess's reward for her bravery was that she, and not the lady hidden behind the other door, would be permitted to wed the prisoner, go off with him, and live happily ever after.

  The teacher, whose job it had been to judge the endings and grade them, had given Jaywalker a failing mark, citing not only his sarcasm, but his refusal to ultimately answer the question. Still, judging from the spontaneous outburst of applause as he returned to his seat, Jaywalker knew he'd won something more important: the approval of his classmates. And in that split second, a trial lawyer had been born, a trial lawyer willing to break rules, flout convention and defy judges, all so that he could convince those whose votes really mattered. P eers, they were called. As in a jury of one's peers.

  And just as he'd managed to figure things out back then, it suddenly dawned on Jaywalker that history was about to repeat itself. His question had presented Amanda with a choice, what sounded like an either-or proposition. But it was a false choice. And just as the young Jaywalker had refused to commit to one door or the other, so too was Amanda going to refuse.

  She wasn't going to choose.

  She wasn't going to save her husband, but she wasn't going to sacrifice herself, either. She didn't have to.

  He asked her again.

  JAYWALKER: Who was driving the Audi?

  AMANDA: On the advice of counsel, I refuse to answer on the ground that doing so might in-in-in MERMELSTEIN: Incriminate.

  AMANDA: Might incriminate me.

  FIRESTONE: Objection! Objection! She can't do that!

  THE COURT: Jurors, I hate to do this, but I'm afraid I'm going to have to confer with the lawyers. It seems we have some business to attend to.

  Once the jury had been led out, Justice Hinkley cleared the rest of the courtroom, as well. A lot of reporters grumbled, but the judge was in no mood to argue. "Sue me," she told them.

  As soon as the last of them had left, the judge announced that, having been warned earlier, Abe Firestone was now being held in contempt for his outburst, and would be spending the night in jail. "Now," she said to him. "Suppose you tell me why the witness cannot invoke her Fifth Amendment privilege."