“Does the defense rest, Mr. Jaywalker?”
“No, Your Honor. I have one additional rebuttal witness. He’s here, and his direct testimony should only take a few minutes.”
“Are we going to be revealing the names of any informers?” she asked. “Or may we unbolt the doors and let the huddled masses in?”
“You may throw open the portals,” Jaywalker told her.
A court officer walked to the front door of the courtroom, unlocked it and pushed it open. Five or six people trickled in and found seats.
“The defense,” announced Jaywalker, “calls its final rebuttal witness, Alonzo Barnett.”
Until the moment Alonzo Barnett stood, none of the jurors had taken much notice of his changed wardrobe that Friday morning. A kufi-see yamika-tends to be worn toward the back of the head and is therefore barely visible from the front, especially when it’s a white kufi against gray-to-white hair. Even a long white robe looks a lot like a shirt when worn by a man sitting in an armchair pushed all the way up to the edge of a table for security reasons.
Now, as Barnett strode to the witness box-if indeed one can stride without hurrying-his appearance was suddenly riveting. Majestic wouldn’t be too strong a word to describe it, with his loose, knee-length white tunic, trimmed in pale blue. Regal might be closer to it.
As he sat, he carefully gathered his tunic around him. The court clerk reminded him that he was still under oath, but he needn’t have. Just to look at Barnett was enough to seriously doubt he was capable of telling anything but the absolute truth.
Or so Jaywalker hoped.
The judge spent a few minutes explaining the accommodations that had been made to the defendant out of respect for his day of observance. Then she nodded in Jaywalker’s direction.
JAYWALKER: Mr. Barnett, did you on three occasions obtain heroin for Agent Trevor St. James?
BARNETT: I did.
JAYWALKER: Why did you do that?
BARNETT: In order to repay a debt I felt I owed Clarence Hightower for having saved my life.
JAYWALKER: Would it be fair to say that Mr. Hightower induced and encouraged you to do what you did?
BARNETT: It’s more than fair to say. It’s what happened, over and over again. Until he finally pressed the right button and I said yes.
JAYWALKER: Had Mr. Barnett not induced and encouraged you over and over again, would you have done what you did?
BARNETT: Never.
And that was it.
Even as Jaywalker sat down, Daniel Pulaski waved a hand dismissively, his way of signaling the jury that Barnett’s assertions were so self-serving and meaningless that there was no need for Pulaski to cross-examine him.
THE COURT: Any further witnesses, Mr. Jaywalker?
JAYWALKER: No, Your Honor. The defense rests.
THE COURT: Mr. Pulaski?
PULASKI: The People rest, too.
And with that it was over, at least the evidence portion of the trial. The jurors were sent off for the weekend, some of them smiling at the prospect, others grumbling that their jury service would be going into its third week, more than they’d signed up for.
It was the grumblers who worried Jaywalker. They were the ones who were self-employed or considered themselves indispensable at work. They had small children, elderly parents or pets with bladder issues at home. Above all else, they wanted the case over with. Come deliberation time, their impatience could easily translate into a desire to arrive at a quick verdict, no matter which way it happened to go.
A quick verdict meant deciding whether the evidence proved beyond a reasonable doubt that the defendant had done what he was accused of doing. It left no room for nuance, no time to consider why he’d done it. Entrapment wasn’t a simple concept, a black-or-white, either-or notion that lent itself to quick and easy analysis. And that could spell trouble for the defense.
Big trouble.
Even as the jurors were excused for the weekend, the lawyers had to come back that afternoon for the charge conference, a meeting between the judge and the lawyers about what the judge will be telling the jurors when, following the summations, she instructs them on the principles of law applicable to the trial. Somewhere along the line, those instructions have come to be called the judge’s charge.
In most federal courts the lawyers are expected to submit detailed written requests to charge, often as early as the beginning of the trial. The practice in state court tends to be more relaxed, with oral requests being the norm. Nevertheless, Jaywalker took charge conferences seriously. What the judge told the jurors, and how she told it to them, was of critical importance. Juries don’t always get cases right, but it’s the rare jury that fails to take its job seriously. They listen to the judge and try to apply the principles of law to the facts, just as she tells them to.
A lot of any charge is boilerplate stuff. Presumption of innocence, burden of proof, credibility, reasonable doubt and unanimity of verdict don’t change from trial to trial. But some things do. And Alonzo Barnett’s case had several wrinkles that made it anything but ordinary.
So that afternoon, once Shirley Levine had run through a list of standard things she intended to tell the jurors, she called upon first Pulaski and then Jaywalker to make additional requests, if they had any. The setting was far more relaxed than it had been when the jury had been present, and the lawyers were permitted to remain seated at their respective tables while they spoke. But the court reporter was present, taking down every word of the discussion. More cases get reversed by appellate courts because of things said during the charge-or things requested but omitted from the charge-than because of just about anything else.
Pulaski stated that he was satisfied with what the judge intended to tell the jurors, and that he had no objections or additional requests.
Then it was Jaywalker’s turn.
“The defense requests that you charge the jury on both entrapment and agency,” he said.
A half an hour later, they were still arguing about both requests. Pulaski took the position that there couldn’t have been any entrapment as a matter of law. Since Clarence Hightower had been acting on his own when he approached Alonzo Barnett, it hadn’t been law enforcement that was responsible for any pressure put on Barnett, if indeed there’d been any.
Jaywalker countered by arguing that whether Hightower had been acting on his own or in cooperation with the task force was a question of fact, and like all questions of fact it was up to the jury to decide. Even as Judge Levine agreed with Pulaski that most of the evidence supported his position, she expressed her concern that her refusal to at least present the issue to the jurors for their determination might be grounds for reversal. “It’s not that I’m agreeing it was entrapment,” she explained. “After all, we have a captain and a lieutenant denying that Mr. Hightower ever worked with them. But Mr. Jaywalker does have a point. It’s up to the jury to decide. So I’ll read them the statutory language from section…section-”
“Forty point oh-five,” said Jaywalker.
“Thank you.”
Her reluctant acquiescence might not have sounded all that promising to anyone else. But it was good enough for Jaywalker. He was perfectly content to have Pulaski continue to think of entrapment as a nonstarter. All Jaywalker could ask for at this point was that the door be cracked open just enough for him to get a foot in. The rest, he knew, would be up to him.
He had an even harder time when it came to agency. As soon as he’d mentioned the word, he’d realized that neither Levine nor Pulaski had even considered it as a possible defense. The theory behind an agency defense is that although a sale occurred and the defendant took part in it, he was aligned not with the seller, but the buyer. If that was so, he could be convicted only of buying drugs, not selling them. And buying was no crime.
“Agency?” Pulaski repeated incredulously. “The defendant profited from these sales, by his own admission. He wasn’t working for Agent St. James. He was selling to him. He was working
for himself. The record couldn’t be clearer. Give me a break, will you?”
Again the judge expressed skepticism that, given the facts, the defense should be available. But again she ended up siding with Jaywalker out of an abundance of caution and the fear of seeing a conviction reversed. “Personally,” she said, “I don’t think the jurors will spend five minutes on this one. But technically, Mr. Jaywalker’s right again. It’s up to them to rule it out, not me. So I’ll include something on it. Though over your objection, Mr. Jaywalker, I’ll instruct them that it’s a defense only to sale, not possession. Anything else, gentlemen?”
“That’s it for me,” said Jaywalker.
“Nothing else,” said Pulaski.
“Then I’ll see you back here first thing Monday morning, nice and refreshed.”
Right.
Over the three nights between now and then, Jaywalker would sleep for a combined total of less than ten hours, and fitfully at that.
So much for nice and refreshed.
18
How about sex?
Jaywalker had long been a card-carrying procrastinator, and he managed to put off working on his summation all of Friday evening and most of Saturday. But it wasn’t as if doing so allowed him to enjoy himself. He and his wife even went for a walk Saturday afternoon, something they hadn’t done together for months. But on the way back, after the third time Jaywalker had said “What?” to one of her questions, she finally told him he might as well get down to work, that until his summation was done he would be no good to her or anyone else.
“How about sex?” he suggested. “Maybe that would help.”
“Right,” she laughed. “And halfway through, you’d say, ‘Wait a minute, an idea just came to me.’ Thanks, but no thanks.”
“Afterward?”
“Afterward,” she agreed. But they both knew full well that there’d be no afterward until he’d actually given the damn thing. He’d work on it on and off until then, mostly on. He’d work on it that night, all day Sunday and long into Sunday night. He’d still be working on it Monday morning, right up until the moment the judge looked his way and said, “Mr. Jaywalker?” And that was on top of the fact that he’d been working on it for two months now, ever since the first time he’d sat down with Alonzo Barnett and learned about the favor Barnett had done for Clarence Hightower.
He began with the Penal Law, as he often did.
§ 40.05 Entrapment
In any prosecution for an offense, it is an affirmative defense that the defendant engaged in the proscribed conduct because he was induced or encouraged to do so by a public servant, or by a person acting in cooperation with a public servant, seeking to obtain evidence against him for the purpose of criminal prosecution, and when the methods used to obtain such evidence were such as to create a substantial risk that the offense would be committed by a person not otherwise disposed to commit it. Inducement or encouragement to commit an offense means active inducement or encouragement. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.
It was by no means the first time he’d read the section, of course. He’d done so as recently as Thursday night, which explained why he’d used the words induced and encouraged during his rebuttal questioning of Alonzo Barnett, and why a moment later he’d asked Barnett if he would have obtained heroin for Trevor St. James but for the pressure Hightower had exerted on him. No, Barnett had said, never.
At the time, Daniel Pulaski had made a show of waving off Barnett’s answers as too self-serving to be worthy of cross-examination. Pulaski might have been better off had he spent a little less time practicing his gestures and paying more attention to reading section 40.05.
Now, as Jaywalker reread the language of the statute for the twentieth time, he was reminded that it contained plenty of bad news, too. For starters, it classified entrapment not as a “defense” but an “affirmative defense.” That distinction might have seemed a minor one to some, a matter of mere semantics. But if you went back to section 25.00 the difference became clear, and its implications were nothing short of game-changing. In the case of a “defense”-such as insanity or justification-the prosecution bore not only the burden of disproving the claim, but of doing so beyond a reasonable doubt. But when it came to an “affirmative defense,” the burden of proof became the defendant’s. And although the standard of proof that had to be met was a lesser one, satisfied by a “preponderance of the evidence,” that was still nothing to sneeze at.
Next came the requirement that the defendant committed the offense because he was induced or encouraged to do so. That, Jaywalker figured, was the easy part. If the jurors decided to credit Alonzo Barnett’s testimony-and Jaywalker was pretty sure they would-then they shouldn’t have too much trouble concluding that Clarence Hightower’s conduct had risen to the level of inducement or encouragement. Hell, it had gone miles past that.
It was the next phrase that was going to be the tricky part, the requirement that the inducement or encouragement be done by a public servant or by someone cooperating with a public servant. That was where this case was going to be won or lost, Jaywalker knew. That was the threshold issue of the trial, the moat that he and his client had to cross before they could storm the castle and do battle. And on that issue, as well as all others pertaining to entrapment, the defense once again bore the burden of proof.
But exactly how was he supposed to go about meeting that burden? A high-ranking police captain, a senior lieutenant, an experienced federal agent and a supporting cast of characters had all testified, some implicitly but several quite explicitly, that Clarence Hightower hadn’t been cooperating with them. Lying about that fact would have constituted not only a serious violation of departmental rules, one serious enough to justify firing the violator, but a felony punishable with prison time. Added to that was the fact that neither Hightower’s name nor his nickname was to be found anywhere in the official cross-index of informers maintained by the NYPD.
And just in case Jaywalker was somehow able to bridge that gap, it would still be incumbent upon him to prove that the defendant wasn’t “otherwise disposed to commit the offense.” In other words, he’d have to convince the jurors that absent the inducement or encouragement, Barnett never would have made the sales. Finally, whoever had written the statute had gone to great lengths to add not just one but two additional caveats. First they’d inserted language requiring that the inducement or encouragement be “active.” And just in case that wasn’t enough of a hurdle, they’d added one last disqualifier, proclaiming that “conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.”
Talk about an uphill battle…
Still, Jaywalker felt that meeting those tests would be the easy part, easy being a relative term. The hard part, perhaps the impossible part, was going to be convincing the jurors that, despite all the denials and despite his absence from the cross-index, Clarence Hightower had nevertheless been working with the Man.
Which is why he’d spend the rest of the weekend working on his summation, not getting to bed until well after midnight Sunday. Why he’d awake bleary-eyed, why he’d cut himself while shaving, and why he’d end up wearing one black shoe to court and one brown one.
But he’d be ready to sum up.
19
The key to the case
Jaywalker was precisely one sentence into his summation Monday morning when it happened. As always, he’d dispensed with the silly formalities that all other trial lawyers seemed to feel obliged to start off with. There was no “Ladies and gentlemen of the jury” for Jaywalker, no “May it please the court.” Not even a “My client and I are indebted to you for the close attention you’ve obviously paid throughout the trial.”
He’d started out on the right foot ten years earlier, winning acquittals in the majority of his trials at the Legal Aid Society in an era when he would have gone to the head of the class simply by winning one out of
three. Judges, prosecutors and colleagues quickly branded him a natural. But the truth was, it was his years as a DEA agent that had prepared him for the work. Even as he’d learned to talk like a defendant, he’d also figured out how to think like a cop. By the time he arrived at Legal Aid, Jaywalker could pick up a written complaint and, in the time it took him to read it, know not only what was true in it and what wasn’t, but what had actually happened out there on the street.
Yet even though winning more often than losing gained him respect and reputation, those things weren’t nearly enough for Jaywalker. The acquittals were certainly sweet, both for him and his clients. But each conviction would plunge him into the depths of depression. So the very next time out, he’d change something in his approach. And if the change worked, he stuck with it. They could be big things, these changes, such as alerting the prospective jurors at the earliest possible opportunity that the defendant had a criminal record. Or they could be little tweaks, like dispensing with the niceties and jumping right into the narrative with the first words of his summation.
By the time of the Alonzo Barnett trial, Jaywalker had changed enough things in his repertoire that he was winning four out of every five cases he tried. Over time he’d manage to push that rate all the way up to nine out of ten, an absolutely unheard of statistic for a criminal defense lawyer.
Guilty As Sin j-5 Page 21
