Guilty As Sin j-5

by Joseph Teller

  By the time he stood that Monday morning to face Alonzo Barnett’s jury, the Jaywalker Summation had already evolved from pretty good to absolutely riveting and was well on its way toward legendary. But the perfectionist in Jaywalker understood the hard reality that neither meeting nor exceeding any of those descriptives guaranteed success.

  Convictions happened, as he knew only too well.

  Earlier that very morning, in fact, he’d run into a friend, a fellow defense lawyer named Blackstone, while riding up to the fifteenth floor. Taking in Jaywalker’s blue suit, white shirt and conservative tie-and evidently unable to notice the contrasting colors of his shoes in the crowded elevator-the guy had asked if he was summing up.

  “Yup,” Jaywalker had answered.

  “What kind of case?”

  “Sale.”

  Blackstone had grimaced almost reflexively. “Well,” he’d said, “good fucking luck.”

  Translation? Because jurors invariably ended up believing cops, sale cases were all but unwinnable. Which might have been a good enough excuse for Blackstone, but not for Jaywalker. All but unwinnable was where they separated the men from the boys. All but unwinnable was Jaywalker’s briar patch.

  “It is a Monday, a Monday in September, perhaps twenty months ago this very day,” Jaywalker had begun, taking the jurors back with him to that fateful day when Clarence Hightower had first shown up on the stoop of Alonzo Barnett’s apartment building.

  And that was as far as he got.

  He never saw the court officer rise quietly from his seat and walk to the wooden partition that separated the well of the courtroom from the audience section. Nor did he hear the officer whispering to the man standing on the other side of the partition, ordering him to find a seat. Because Jaywalker had been standing directly in front of the jurors as he’d begun to address them, those things had taken place behind him, out of his field of vision.

  But he quickly became aware that as much as the jurors were trying to give him their undivided attention, something was distracting them. First one pair of eyes, then another, then five or six more, were looking past him and focusing on someone or something else.

  Almost reflexively, he turned to see what they were watching. There at the partition, a uniformed court officer was pressing one index finger to his lips while using the other to direct a tall black man toward an empty section of seats in the third row. But the man wasn’t obeying the officer’s instructions. Instead he was gesturing frantically in Jaywalker’s direction, trying to make himself understood.

  Which was right about when Jaywalker recognized the man. It was Kenny Smith, Jaywalker’s official unofficial investigator, who’d testified earlier in the trial.

  “Please excuse me,” Jaywalker told the jurors, turning and stepping away from them. Then, even as Shirley Levine reached for her seldom-used gavel, he raised a hand and asked if he might be permitted to approach the man. Which he did, without bothering to wait for her response.

  He quickly reached the partition and assured the court officer that he knew the man, and knew he wasn’t a threat of any sort. Then he turned his attention to Smith.

  “What are you doing?” he whispered.

  “I’ve got him,” Smith whispered back. “He’s here.”

  But there are whispers, and there are not-quite-whispers. And in Kenny Smith’s inability to contain his excitement, his reply fell squarely into the latter category, the sort guaranteed to draw a sharp rebuke from any librarian within a hundred yards. But on this Monday morning in Part 91 there were no librarians in sight, only a gavel-banging judge, a bunch of jurors and a few rows of spectators.

  “Who’s here?” Jaywalker asked Smith.

  “Hightower.”

  “Here here?”

  By way of an answer, Smith pivoted and pointed toward the front door of the courtroom, the one that led directly to the hallway just beyond it.

  “Do you need a recess, Mr. Jaywalker?” Judge Levine was asking.

  “No, Your Honor, no. What I need is to reopen the case so that one more witness can testify. The defense calls Clarence Hightower.”

  “Objection!” shouted Daniel Pulaski. “He can’t do that. He’s already rested. It’s too-”

  “That’s enough,” barked the judge. “Everyone be seated. Now. That includes both lawyers and the gentleman standing at the rail. All of you.”

  Kenny Smith mumbled “Sorry” and found a seat. So did Pulaski and Jaywalker. But there was still an audible buzz in the courtroom that refused to die down.

  “Quiet,” ordered the judge.

  The buzz complied.

  As she turned to face the jurors, Levine looked positively pained. “Please forgive us once again,” she told them. “But I’m afraid we’re going to have to excuse you while we sort this all out. I’m truly sorry.”

  In the twenty-minute argument that followed, Jaywalker formally asked permission to reopen his surrebuttal case in order to put Clarence Hightower on the stand. “He hasn’t been available until this very moment,” he explained. “And he’s the one person who’s in a position to tell us whether he was actually cooperating or not. The interests of justice demand that we hear what he has to say.”

  Pulaski was equally fierce in his opposition. “Both sides rested,” he pointed out. “Then we had rebuttal, followed by surrebuttal. After that, both sides rested again. At some point the evidence has to come to an end, Your Honor. Enough has to be enough already.”

  Shirley Levine spent a lot of time listening to the arguments and trying to balance the equities. In the end, the clincher for her wasn’t Clarence Hightower’s unique ability to clear things up, or that the interest of justice demanded that he be given an opportunity to do so. Nor was it the fact that both sides had rested, then rested again. It wasn’t even that the evidence had to come to an end, or that enough had to be enough already.

  No, the clincher was the fact that Jaywalker had already begun delivering his summation.

  “It turns out the case law is quite clear,” said Levine. “I have the discretion to permit either side to reopen the evidence for good cause and in the interest of justice, even after both sides have rested. Even after rebuttal and surrebuttal and rerebuttal. But once closing statements have begun,” she said, glancing up from a law book her law clerk had hastily retrieved and handed her moments earlier, “that discretion comes to an end.”

  Jaywalker continued to press the point. He happened to know the case the judge was reading from. Knew it by name, in fact. He tried his best to convince Levine that it was distinguishable on its facts. “That case concerned an application to visit a crime scene,” he pointed out. “The lawyer hadn’t requested it until he heard his adversary say something during his summation. This situation is totally different. Here a previously missing witness suddenly shows up just as summations are beginning. Not only that, but he’s ready, willing and able to testify about something absolutely crucial.”

  “I’m sorry,” said the judge. “But unless both sides consent to reopening, I’m not going to permit it. Mr. Pulaski?”

  “The People strenuously oppose the application to reopen.”

  “Then that’s my ruling, Counsel. And you have an exception, Mr. Jaywalker.”

  Meaning that in a year or two, after the conviction and the sentencing, long after Alonzo Barnett had been shipped upstate to spend the rest of his life, Jaywalker could take up the issue with some appellate judge. Only to be told that the trial court had lacked discretion in the matter, and even if that wasn’t so, she’d been justified in acting as she had.

  “So what’s the key to this entire case?” Jaywalker asked the jurors once the trial resumed. “Better yet, who’s the key?”

  It wasn’t how he’d started summing up a half an hour earlier. But Kenny Smith’s interruption had changed things, prompted him to discard his notes and take a totally different approach. And from the expressions on the jurors’ faces, he knew he’d grabbed their attention with th
ose opening questions, knew that the trial was his to win if only he could do it right.

  “Despite the fact that the case bears his name, it’s not Alonzo Barnett who’s the key. Sure, he’s the defendant and he’s important, and we’ll have plenty to say about him, but he’s not the key. Nor is Trevor St. James, or Dino Pascarella or Angel Cruz or Lance Bucknell or Olga Kasmirov or Thomas Egan. Nor is Kenny Smith, who so rudely interrupted us this morning. If we count them all, including those who testified a second time on rebuttal, we’ve heard a total of nine witnesses during the course of this trial. Yet not one of those nine holds the key. Not one of those nine witnesses can unlock the dirty little secret that lies at the very heart of this case.

  “But there is someone who can.

  “So who is that someone?” Jaywalker asked them. Only to be instantly rewarded by seeing the name form silently on the lips of several jurors.

  “That’s right. The key to this case is the tenth witness, the one who never got to testify. The key to this case is Clarence Hightower.”

  He paused for a moment, letting the notion sink in to those in the jury box who hadn’t realized where he was going.

  “Let’s take a look at what we learn about Mr. Hightower as the trial progresses.” His use of the pronoun we was a conscious one. He wanted them to make this journey together, the jurors and he, to arrive at the truth simultaneously-even though he himself had arrived at it some time ago.

  “We learn that Mr. Hightower is a career criminal, much like Alonzo Barnett. Only where Barnett’s record is for drug possession and sales to support his own addiction, Hightower’s record is one of predatory crimes. Crimes against property. Crimes against people. And while there came a time when Alonzo Barnett finally overcame his addiction, stopped committing crimes and began the never-ending process of redemption, Clarence Hightower stayed in the life. Still dealing, still scheming, still hustling.

  “Next we learn that not too many years earlier, the lives of Alonzo Barnett and Clarence Hightower converged inside the walls of Green Haven prison. And don’t let that nice bucolic name fool you. State prisons are terrible places where grown men stab each other, rape each other and kill each other. And there at Green Haven, because of circumstances partly his own fault and partly not, Alonzo Barnett immediately became a target, an inmate with a contract on him.

  “A man marked for death.

  “And when no one else would save him, Clarence Hightower stepped forward. He offered Barnett a job in the prison barbershop, and by doing that he saved Barnett’s life. I’m not speaking figuratively or metaphorically here. Clarence Hightower saved this man’s life. Literally saved it.

  “And from that fact, it’s tempting to think of Mr. Hightower as a Good Samaritan, a selfless individual who rode off into the sunset, asking nothing in return for his good deed.

  “Not so fast.

  “We learn more about Hightower, you and I. We learn that shortly after his release, he comes looking for the man whose life he saved. But not to celebrate, not for old times’ sake. No, we learn Hightower has a business opportunity for Alonzo Barnett, a drug deal. But Barnett wants no part of it. We learn next that Hightower’s not to be denied. Not only is he persistent, he’s creative. He tries to induce and encourage Barnett, first with the promise of money, then with the lure of drugs and next with a tale of personal woe. And remember those words, jurors. Induce and encourage. They’re important.

  “Still, Barnett says no. He’s clean now. He’s got a good job and an apartment of his own. He’s reestablished his ties with his young daughters. Six times he’s offered an opportunity to make some easy money and score some drugs. Remember that phrase, too, jurors. Offered an opportunity.

  “Six times Barnett says no to that offer. Six times he turns down that opportunity. Until the seventh time, when Clarence Hightower plays his ace and tells Alonzo Barnett that Barnett owes him this favor in return for Hightower’s having saved his life. And on that seventh time, Barnett finally succumbs to the pressure. He gives in.

  “But that’s not all we learn about Hightower. As the trial progresses, we learn, for example, that he’s greedy. Not only does he make money on the deals he convinces Barnett to get involved in, but he mysteriously ends up with some of the drugs, too. We know where he gets the money from. Barnett gives it to him. The drugs are a different story, something we’re left to wonder about. We know he didn’t get them from Barnett, because Barnett gave all the drugs he got to Agent St. James. How some of those very same drugs managed to end up in Hightower’s pocket later is anyone’s guess.

  “Or is it?

  “Next we learn that Clarence Hightower is one unbelievably lucky man. Because despite the fact that he played a pivotal role in the sales, introducing Agent St. James to Alonzo Barnett, he gets arrested not for felony sales but only for misdemeanor possession. Brought to court, despite his long record, he’s allowed to plead down to disorderly conduct, not a crime at all. Disorderly conduct. Fifteen days. Time served. Faced with a parole violation that normally would send him back to prison for years, he instead gets his parole terminated early.

  “Were all those things really nothing but dumb luck and happy coincidence? Come on, jurors, we’re New Yorkers. We weren’t born yesterday. We know what it means when somebody tries to sell us something that sounds too good to be true.”

  Jaywalker paused for a moment, not only to give himself a moment to rest, but to give the jurors a chance to think about where he was taking them. He’d told them that Clarence Hightower was the key to the case, but he hadn’t yet showed them how.

  Now it was time.

  “So what really happened in this case? We’ve been told a lot of things, you and I. But what haven’t we been told? What have the cops left out? What is the evidence telling us, even as two of the prosecution’s witnesses are trying their hardest to keep us from hearing it?”

  He walked to the defense table and retrieved Defendant’s Exhibits B and C, the two photos of Clarence Hightower, carried them back to the jury box and placed them on the wooden rail that was all that separated him from the jurors.

  “Dino Pascarella would have us believe that this case began with a phone call. He says it was an anonymous call, so we have no way of knowing who supposedly made it. He makes it a blocked call, so we won’t be able to know the number where it supposedly originated. And he makes it an unrecorded call, so we won’t be able to hear it. Anonymous, untraceable and unpreserved.

  “According to Pascarella, Clarence Hightower was a total stranger to the authorities when he showed up on Alonzo Barnett’s stoop. According to Pascarella, the first contact he ever had with Hightower was on the afternoon of October 5, 1984, moments after Barnett’s arrest, when Hightower walked up to Barnett and managed to get himself arrested, as well.

  “Lieutenant Pascarella is lying about that. And these two photographs, Defendant’s Exhibits B and C in evidence, tell us that loudly and clearly and beyond any shadow of a doubt.”

  Jaywalker held the photos up in front of him so the jurors could see them again. Even with them facing away from him, he was able to describe them in detail. Defendant’s C. The dated one. Taken at Central Booking later on, on the same day as the arrests. In it, a cleanly shaven Hightower, dressed in a faded blue denim work shirt. And Defendant’s B. The undated one. Showing Hightower with a three-or four-day stubble of a beard, this time wearing a gray sweatshirt over a blue T-shirt.

  “The undated photo is the one taken by Dino Pascarella. Here are his initials, right on the back of it, admittedly written in his own hand. ASP.

  “A for Andino.

  “S for Salvatore.

  “P for Pascarella.

  “Although when first asked, Pascarella denied that that particular combination of letters meant anything at all to him. Think about that for a minute.

  “Next, Pascarella inadvertently does us a favor. He admits that after October 5, he never saw Clarence Hightower again. So it follows that he couldn�
��t have taken this undated photo of him after that date. And he admits that.

  “What’s left?

  “He took the photo, but he obviously didn’t take it on October 5. And he didn’t take it after October 5. What does that leave? It leaves only one possibility. And that’s that Pascarella took the undated photo of Clarence Hightower before October 5. And the reason he did so was because sometime before October 5, Hightower was already working as Pascarella’s informer.

  “There can be no other explanation.

  “Sure, Pascarella denies it. And Captain Egan, taking Pascarella’s word for it, backs him up and tells us Hightower’s name isn’t in the book.

  “Well, Captain Egan may have been willing to take Pascarella’s word for it, but that doesn’t mean we have to. For one thing, you and I have the photo that puts the lie to Pascarella’s word. And you and I have seen the lengths Pascarella was willing to go to, and the lie he was willing to orchestrate, in order to keep another informer’s name out of this case. Finally, you and I know for a fact that Clarence Hightower ended up with the missing 2.55 grams of heroin that could only have come from Pascarella or someone working under his supervision.

  “So what really happened in this case, jurors? It turns out we know that, too. We know because it’s the only thing that could possibly have happened. At some point-maybe it was late August, maybe mid-September-Dino Pascarella caught Clarence Hightower doing something. We don’t know exactly what, because Pascarella won’t tell us. And Hightower? Well, all I can say is that as much as we would have liked to hear what Mr. Hightower might have to say, we never got the chance. But you know what? It doesn’t matter. What matters is that on that very same day, whenever and wherever it was, Pascarella flipped Hightower, convinced him to become an informer. Had Pascarella sent him on to Central Booking to be put through the system, as Alonzo Barnett was, it would have been all over for Hightower. Jail, prosecution, conviction, parole violation. Back upstate to prison, not for days or weeks or months, but for years. So instead Pascarella offers Hightower a deal on the spot. Exactly as Captain Egan tells us it’s sometimes done. ‘Make us one good case,’ Pascarella tells Hightower, ‘and we’ll cut you loose.’ And because he finds himself stuck between a rock and a hard place, Hightower agrees. So Pascarella never completes the arrest process. He never books Hightower, never sends him to Central Booking, never submits his name to Captain Egan for inclusion in the cross-index. It’s all done off the books. All Pascarella does is take a photograph of Hightower for his own records. He uses an old Polaroid camera they keep in the squad room, and he writes his initials, ASP, on the back of it. And then he no doubt forgets all about it. Until at some point last week, when Captain Egan asks Pascarella if he has a photo of Hightower, Pascarella pulls it out without thinking too much about it, and without realizing it could come back and bite him in the asp.