Depraved Indifference j-3

by Joseph Teller

  "If ever anyone was guilty of murder," he told the jurors, "it is this defendant. If ever anyone acted in a reckless manner, exhibiting a depraved indifference to human life, it is this defendant. And then for him to pull the kind of stunt he pulled and pretend he wasn't even driving… The nerve of him, the gall, the c hutzpah, to try to blame it all on his wife. Shame on him, shame on him."

  Firestone ended as Jaywalker had begun, reciting the names of the victims once more. Had it not been for the fact that his passion was misguided, devoted as it was to asking the jury to convict an innocent man, it would have been an extremely effective closing, at least the last part of it. But from the looks on the jurors' faces, they weren't buying it.

  Then again, Jaywalker had been wrong about such matters before. The thing about jury verdicts was that you never knew.

  Never.

  Justice Hinkley's charge to the jury took exactly an hour, and it was just before one o'clock in the afternoon when the twelve regular jurors retired to deliberate. The four alternates, rather than being discharged, were led off to a separate room, just in case one of the regulars became sick or otherwise incapable of continuing.

  As for Jaywalker, he became both sick and incapable of continuing. Exhausted from a night spent listening to Firestone's snoring, to fighting off claustrophobia, and to tweaking his summation to fit the trial's latest twists and turns, he'd gotten through the morning on adrenaline and caffeine. While his summation had been short, far shorter than he'd originally planned, it had been emotional, and had taken a lot out of him. Listening to Firestone for an hour, and then to the judge for another hour, had been an ordeal, and at times he'd had to bite the inside of his cheek or pretend to be taking notes just to stay awake.

  He found an empty stall in the men's room and tried to throw up, but he'd eaten so little over the past four days that all he could do was gag. Dry heaves, they used to call it back in college, when they'd come back to the dorm, knelt before the porcelain god, and paid the price for having been stupid boys trying to act like stupid men.

  He left the stall and caught a glimpse of himself in the mirror. Amanda had come through once again with a pressed suit, a clean shirt and a new tie. She'd brought a razor and comb this time, both of which he'd used in the twenty minutes the judge had allowed before summations started. But none of it had helped much. He looked as if he'd been on trial for three weeks. His eyes were dark and sunken, his skin pale, his clothes loose from the fifteen pounds he'd no doubt lost.

  He glanced upward toward the heavens, but spotted only a bare lightbulb, protected by a wire cage. Oh, Lord, God of Rockland Light and Power, he began silently, grant me an acquittal in just this one case and I'll never ask you for anything again. I'll eat regularly. I'll quit the business and take up writing full-time. I'll clean my apartment. I'll go to the dentist. I'll have that colonoscopy I keep putting off, and that PSA test. I'll even stop seeing Amanda, if you want me to. Just don't let me lose, not this one.

  It was pretty much the same prayer he always offered up around this time, to whatever deity might be listening in and have a spare moment for a humble nonbeliever with a shoddy history of following up on his pledges once his wish had been granted. But old habits died hard. He continued to put his left shoe on before his right because, at least since his wife's illness and death, things had more or less worked out for him so far. He threw a little salt over his shoulder if he'd happened to spill some. He folded his towels as they came out of the dryer, even though a moment later he'd unfold them so he could hang them on the hooks in his bathroom. And he always remembered to say thank-you after each acquittal. Always.

  He was an atheist, but he was a superstitious atheist. Just in case.

  Back in the courtroom, the jury had already sent out a note. Jaywalker felt the sudden surge of adrenaline, the pounding of his heartbeat at his temples. Notes were clues, valuable indications of what the jurors were focusing on and which way they were leaning.

  But not this one.

  They wanted to know how long the judge would make them deliberate tomorrow if they couldn't arrive at a verdict today. Tomorrow was Friday, and for many of them the Sabbath would begin at sundown.

  With no objection from Firestone or Jaywalker, Justice Hinkley sent them back a note assuring them that under no circumstances would they be required to deliberate on the Sabbath. What she didn't tell them was that under no circumstances could she permit them to return to their homes, either. This was a murder case, and the law required that they be kept together, even when they weren't deliberating.

  But even with their innocuous request, Jaywalker wondered, had the jurors been telegraphing that they were in for a long ordeal? Why else would they be thinking ahead to tomorrow? And what did "lengthy deliberations" mean in this case? Surely there was reasonable doubt as to who'd been driving the Audi, and if there was, the case should end right there. The fact that the jurors didn't seem to be seeing it that way couldn't be good.

  After he'd gotten his clothes and toiletries from Amanda in the morning, Jaywalker had sent her packing, even before the jurors had begun arriving. He didn't want them seeing her anymore, especially in his company. He'd expected Firestone to make the collusion argument in his summation, and he hadn't been disappointed. So even though it might have been nice for the jurors to see a devoted wife each time they filed in and out of the courtroom, Amanda's presence, coupled with the fact that she might well have been the one who'd killed the nine victims, could have proved troublesome for the jurors, to say the least. And while they couldn't take their anger out on her, they could take it out on her husband.

  But Amanda's absence left Jaywalker with basically no one to pass the time with. Even when he wasn't complaining or snoring, Firestone was hardly the best of company. Kaminsky was bookishly smart, but awfully nerdy. And to paraphrase an old saying, Napolitano was cute but young. And the media, as always, was off-limits to Jaywalker. That left the gawkers and the courtroom staff, good for five minutes' banter now and then, but not much more. So he sat in the courtroom by himself, going over what he'd said in his summation and how he might have said it just a little bit better.

  Vintage Jaywalker.

  The second note didn't come out until three-thirty.

  The jurors wanted to know if they could find the defendant guilty on counts eighty-six and eighty-seven on the theory that he'd committed them earlier in the day, when he'd driven from New York City to Nyack, and then again from Frank Gilson's office to the End Zone.

  Jaywalker knew the indictment by heart, all ninetythree counts of it. Counts eighty-six and eighty-seven charged Drake with driving without a valid driver's license and without insurance. Both were violations of the Vehicle and Traffic Law that paled in comparison with the more serious charges. In fact, even if Drake were to be convicted of both of them, he'd already spent enough time in jail that his sentence would have to be the equivalent of time served, or perhaps a fine.

  But far more important than the jurors' interest in those charges was what their question meant: that they'd decided, or were on the verge of deciding, that Amanda had been driving the Audi at the fateful moment, or at least that there was reasonable doubt as to whether Carter had been. What they were asking now was whether they could nonetheless convict Drake of something. And they'd seized upon the two counts they were asking about knowing that when Drake had driven up to Nyack that morning, and later to the End Zone that afternoon, he hadn't been licensed or insured.

  This was good. This was very good.

  Justice Hinkley asked the lawyers for their reactions.

  "Sure they can," said Jaywalker. He'd be giving up virtually nothing. And by tossing the jury a bone, the payback would be enormous, an acquittal on the remaining charges. The ones that counted.

  "Mr. Firestone?" the judge asked.

  "I don't give a rat's ass," said Abe. He might not have been the sharpest tack in the toolbox, but he, too, could see where this was going.

  Ju
stice Hinkley pulled out her copy of the indictment, thumbed to the two counts in question, and studied them. "Both of these counts specify a time," she said, "'at or about nine o'clock in the evening.' It's clear to me that the grand jury had in mind the time of the accident. For me to tell the jury yes, they can nevertheless convict the defendant on those counts based upon his driving earlier in the day, would constitute both an amendment and an enlargement of the indictment, something I have no power to do. Accordingly, I'm going to tell them no, they cannot do that."

  Jaywalker protested, offering to waive any appeal on the issue, but the judge refused to change her mind. And she was right. Having voted the indictment in the first place, only the grand jurors had the power to amend it. And they'd been discharged months ago.

  "Bring in the jury," said the judge.

  Just as he could read a lot more into a note than the words it contained, so too could Jaywalker read the faces of jurors in the midst of deliberations as they entered the courtroom. Any trial lawyer learns to do that. At least any good one.

  It's a good sign if they're willing to look at the defendant and his lawyer, a bad sign if they're not. A smile is to be treasured, as is any sort of laughing, joking or looking relaxed. Even the way they make their way to the jury box is telling. Jurors who are leaning toward acquittal will think nothing of walking close to the defense table; those in the conviction camp will steer clear, favoring the prosecution table.

  This jury was angry.

  They didn't smile, they didn't joke, they didn't relax. They avoided both the defense and the prosecution tables. And the only eye contact they made was with the judge.

  Hearing that they could convict the defendant of driving without a license or insurance only if they were convinced beyond a reasonable doubt that he'd done so at or about nine o'clock on the evening in question seemed to make them angrier. Their faces grim, they filed out and returned to their deliberations.

  The buzzer sounded twice at 4:46.

  A single buzz meant the jurors had a note.

  A double buzz meant a verdict.

  The courtroom filled up almost immediately. Carter Drake was brought in through a side door. Jaywalker said a final prayer to a God he didn't believe in and took his seat next to Drake.

  "What do you think?" Carter asked him.

  "I have no idea."

  He had all sorts of ideas, of course, and they were all banging around furiously in what was left of his brain. But they were drowned out by the pounding in his chest and at his temples, and by the rushing noise in his ears. And even were he to admit his hunch to himself, that they were about to hear the words Not guilty, he would never say so out loud. Not in a million years.

  When the jurors filed in for the last time, they seemed as angry as they had been before, and as unwilling to make eye contact as ever. And studying them, Jaywalker hoped he understood that anger. Let them be angry, he prayed. Let them be angry at Carter Drake, but only for setting in motion the chain of events that hadn't ended until nine people lay incinerated beyond recognition. Let them be angry at Amanda for whatever she'd done to cause the Audi to wander into the wrong lane, and to fail to get it back where it belonged. Let them be angry at the prosecution for being so stupid as to indict the wrong person. Let them be angry at me for being the one to show them they had to acquit. Let their anger be the anger of frustration, not the anger of retribution.

  "Will the foreperson please rise?"

  Juror number one stood. She was a pleasant-looking woman, a teacher's aide with two young children of her own. She was thirty-four, she'd told them during jury selection a thousand years ago, and an orthodox Jew who wore a wig in public and kept a kosher home. And to look at her face, she was very, very nervous. But Jaywalker wasn't looking at her face. He was looking at her hands. They were empty. They held no verdict sheet, no note, no written breakdown of how the jury had voted on each of the ninety-three counts in the indictment.

  Which could mean only one thing.

  Either the jury was about to convict Carter Drake of everything, or they were going to convict him of nothing.

  "Will the defendant please rise?" said the clerk. And as Drake stood, so did Jaywalker. He'd been secondguessed for that a couple of times, accused of showboating, even asked once if he was prepared to share the defendant's sentence in the event of a conviction. "Sure," he'd said, having already seen the jurors' smiles. The point was, he didn't care what others thought. It was his verdict as much as his client's. If the jury was about to reject his client, then they'd rejected him, too, and he'd take it standing up. What warrior ever chose to sit before his firing squad?

  "Madame Forelady, has the jury reached a verdict?"

  "Yes, we have."

  "As to all ninety-three counts?"

  "Yes."

  "On count one of the indictment, charging the defendant with the murder of Walter Najinsky on the theory of recklessness evincing a depraved indifference to human life, how do you find the defendant, guilty or not guilty?"

  24

  NINETY-THREE TIMES

  It would have taken an hour, perhaps more, for the clerk to read each of the counts contained in the indictment, and for the teacher's aide to recite the words Not guilty ninety-three times. Graciously, if perhaps a wee bit testily, Abe Firestone rose to his feet after five such recitals, and suggested that the court might wish to inquire whether the news on the remaining eighty-eight counts was going to follow the pattern suggested by the first five.

  "Thank you," said the judge. Then, turning to the forelady, she said, "Please answer this question 'Yes' or 'No.' Has the jury found the defendant not guilty on all ninety-three counts of the indictment? Just 'Yes' or 'No,' please. Nothing else."

  "Yes."

  25

  A VERY DEAD BATTERY

  It was May, three and a half months after the verdict. A lot had happened in that time. Carter Drake had been released from jail. His Audi had been returned to him, minus a few parts, and his bank accounts unfrozen. His civil lawyers had reached settlements with the families of seven of the nine victims, and were said to be on the verge of settling with the remaining two. The combined value of the settlements was reported to exceed twenty million dollars, and to cover Amanda, as well as Carter. Because of the not-guilty verdict, and because the evidence now strongly suggested that Amanda had been driving the Audi, her insurance company was contributing significantly to the settlement pool. The defenses the company had originally asserted-namely, that Carter Drake had been unlicensed, uninsured and intoxicated-had ceased to apply once it had been determined that he hadn't been the driver.

  Abe Firestone had tried to indict Drake for perjury and obstruction of justice, on the theory that he'd lied by saying he'd been driving. But two separate grand juries had refused to vote true bills. There's long been an unwritten rule that bars bringing charges against a defendant who takes the stand and, in the face of overwhelming evidence to the contrary, testifies under oath that he's innocent. In the event of a conviction, a second prosecution for perjury looks a lot like overkill. And in the event of an acquittal, it smacks of poor losing. When a defendant insists he's guilty, in the face of overwhelming evidence of his innocence, no grand jury in the world is going to indict him for perjury, especially if he was trying to take the blame for a crime committed by his wife.

  Firestone hadn't stopped there. Next he'd tried to build a murder case against Amanda. But there'd simply been too many obstacles standing in his way. First, there'd been no indication that she'd been drinking. Then there'd been Concepcion Testigo's identification, however weak and however based upon "jello hair," of Carter as the driver. Firestone had even gone so far as to do what Jaywalker had only pretended to, subpoenaing photographs from EZPass. But when the photos arrived at his office, they'd showed only the license plates of the Audi as it went through the tollbooth, not the occupants. With little to go on but Firestone's own anger and sense of justice, his case against Amanda had never even made it
as far as the grand jury.

  By mid-April, Carter and Amanda had not only both escaped prosecution and settled most of the civil cases against them, they'd resolved most of the personal differences between them, too. Amanda still kept her own apartment, but only because the lease wouldn't be up for another three months. For all intents and purposes, she'd moved back in with her husband, making Jaywalker's pledge to stop seeing her an easy one to carry out. He hadn't done quite so well in terms of visiting the dentist or scheduling a colonoscopy or a PSA test, but he was getting ready to clean up his apartment any day now.

  So it came as something of a surprise when he got a phone call from Amanda, wondering if by any chance he wanted to take another ride up to Massachusetts with her to pick up Eric, whose semester was ending the following day. "Carter's stuck out of town," she said, "and my car's in the body shop, recovering from a fender bender. So we'd have to take yours."

  "Sure," he said. "Why not?" He'd actually taken the Merc in for its annual oil change not too long ago, and it was running pretty well, all things considered. So he figured it might just be up to the task. Besides, when all was said and done, he was still the same old Jaywalker, and the thought of seeing Amanda again, with her husband out of town, was impossible to resist.

  He picked her up at nine, and they were on the Taconic forty-five minutes later, heading north on a beautiful spring morning. Sitting beside him on the front seat, Amanda looked terrific, and Jaywalker kept both hands on the wheel, lest one of them wander toward her of its own volition. They talked little about the past, and barely mentioned the trial. She asked how his other cases were going, he asked about her design jobs. They listened to old favorites on the Merc's AM radio, oblivious to the static.