“That’s what really happened. Because that’s the only thing that could possibly have happened. And now we’re going to see why it changes absolutely everything for you.”
Jaywalker spent the next thirty minutes giving the jurors a short course in the law of entrapment. He had to be careful to avoid usurping the judge’s prerogative to define the law. But that didn’t stop him from reading them section 40.05 of the Penal Law in its entirety. He paused at the term affirmative defense, explaining how those two words placed the burden of proof upon him and required him to convince them by a preponderance of the evidence.
“But that’s a burden we welcome,” he told them. “That’s a burden we’re delighted to shoulder.” He readily conceded that Alonzo Barnett had made the first two sales and was in the process of completing the third one when he’d been arrested. “But only because he’d been both induced and encouraged to do so by a person acting in cooperation with a public servant. Specifically, Clarence Hightower, acting in cooperation with Dino Pascarella.
“And make no mistake about it,” he told them. “Without Hightower’s unrelenting pressure-without his seven different attempts on seven different days, and finally without his insistence that Alonzo Barnett had to help him out in payment for Hightower’s having saved his life-those sales simply wouldn’t have happened. This wasn’t a case of the police merely providing an opportunity for someone already disposed to commit a crime,” Jaywalker told the jurors. “This was a case in which the police, acting through their informer, manufactured a crime that would never have taken place otherwise, not in a million years.
“That’s what makes it entrapment, jurors. And that’s why it becomes your duty to find Alonzo Barnett not guilty of each and every charge in the indictment.”
His voice was hoarse, and he was just about finished, but not quite. “There’s one other thing I want to tell you,” he said. “And it’s absolutely essential you understand this. When you come back into this courtroom at the conclusion of your deliberations to deliver your verdict, you should harbor no reservation whatsoever. And a week from now, or a month or a year from now, should someone walk up to you and suggest out of ignorance or stupidity that you acquitted a guilty man, you’re going to look that person squarely in the eye. And you’re going to say in a calm voice, ‘No, we didn’t. We acquitted a man who had succeeded in redeeming himself. A man who never would have broken the law but for the fact that the police and their informer first targeted him and then entrapped him into doing so.’ So you tell that person you’ve got one word for what you accomplished through your verdict. And that word is justice.
“Nothing more, nothing less.
“Justice.”
Two hours and two minutes after he’d begun, Jaywalker turned from the jurors, walked back to the defense table and sat down. Gathering his notes while listening to the judge sending the jurors off to lunch, he felt Alonzo Barnett lean toward him. “No matter what happens,” whispered Barnett, “I want to thank you. You did everything a man possibly could have done for me, and I’ll never forget it as long as I live.”
They were nice words to hear, but Jaywalker wasn’t so sure they were accurate. He’d actually had more to tell the jury. He’d been prepared to argue agency as an alternative defense. But the entrapment argument had gone so well, and the jurors’ reactions to it had seemed so favorable, that at the last minute Jaywalker had decided to forget about agency altogether.
Now he hoped that decision wouldn’t turn out to be a mistake. Which was vintage Jaywalker, of course. Here he’d hit a top-of-the-ninth, bases-clearing triple to give his side a convincing three-run lead, only to blame himself for not having tried to stretch it into an inside-the-park home run.
The other thing he’d left out was the reason the jurors had never heard the testimony of Clarence Hightower. Jaywalker had lost the legal battle to reopen the case, and it would have been improper for him to complain to the jurors about either Pulaski’s opposition or the judge’s ruling. So he’d had to settle for the rather innocuous comment that he shared the jurors’ frustration over never having had an opportunity to hear from Hightower. Hopefully that would help them recall that it had been Pulaski who jumped up and shouted “Objection!” the moment Jaywalker had tried to call Hightower to the stand. Hopefully, too, they’d be able to draw their own conclusions from Pulaski’s obstructionism.
Other than those concerns, Jaywalker was pretty pleased at the way things had gone. Although he never, ever allowed himself to feel confident about his chances, he did celebrate after a fashion by treating himself to lunch, something he hadn’t done for two weeks straight.
If, that is, you’re willing to stretch things and consider a container of iced tea and a bag of Wheat Thins lunch.
Jaywalker’s self-indulgence and good spirits lasted him all of an hour, ending about thirty seconds into Daniel Pulaski’s summation on behalf of the prosecution.
Pulaski spoke that afternoon for only half as long as Jaywalker had that morning. And although Jaywalker would have loved to say that Pulaski spoke only half as well, that decidedly wasn’t the case. In fact, Pulaski proceeded to deliver a truly impassioned summation, heaping ridicule upon Jaywalker’s assumptions about Clarence Hightower’s having been an informer. “Inferences upon inferences,” he called them. “Pure speculation. Totally unsupported by the evidence. And the proof is in the pudding. Both Lieutenant Pascarella and Captain Egan were absolutely forthright in their testimony. They stepped up and volunteered that Investigator Bucknell had been less than honest when he said he saw the defendant push the button for the twelfth floor. Rather than allow that inaccuracy to stand, they came forward on their own and corrected it. In so doing, they not only risked their ranks and reputations, they revealed the name of an important confidential informer. So why on earth should they hesitate to do as much if another informer had been involved? The answer is as plain and simple as it can be. Clarence Hightower wasn’t an informer. He never was, and he never will be. You have the sworn testimony of not one but two high-ranking police officials to tell you that. A captain and a lieutenant. You’ve got the word of an experienced federal agent. You’ve got your own good common sense. Why in God’s name would all three of those men get together and decide to risk everything and lie about that? To convict this defendant? To protect Hightower?
“But if that’s not enough for you, there’s even more. You’ve got the official record, the NYPD’s cross-index of all informers. Let me say that again. All informers. And Clarence Hightower’s name isn’t in it. How does Mr. Jaywalker explain that inconvenient detail? He doesn’t. He doesn’t because he can’t.
“Ladies and gentlemen, when it comes right down to it, this is as simple a case as it could possibly be. This defendant, Alonzo Barnett, a man who’s been selling drugs for most of his life, sold drugs once again. But this time he sold them to an undercover officer. Not just drugs, but heroin. Not just in small amounts, but large ones. Wholesale amounts. A-1 felony amounts. And not just once or twice, but three times, if you count the third time, when he was interrupted in the process. His claim that he did all that to repay a debt is supported by nothing but his own words, and is belied by his own admission that he kept-and was about to keep once again-part of the money he skimmed off the top. That’s not the act of someone who’s repaying a debt. That’s the act of someone who’s looking to profit from his own criminal acts.
“What a shame the defendant couldn’t own up and take responsibility for those criminal acts. Instead he asks you to believe that he was forced into committing them, that the Devil made him do it. Only this particular devil, he tells you, was named Clarence Hightower. How convenient-and how cowardly.
“Well, ladies and gentlemen, just because the defendant refuses to take responsibility for his criminal acts doesn’t mean you can’t assign responsibility to him. How do you go about doing that? Very simple. Tomorrow, right after the judge has finished instructing you on the law, she’s going to
tell you that you may retire to the jury room to begin your deliberations. You know what you’re going to do? You’re going to tell her that won’t be necessary. Because there’s nothing to deliberate about in this case. The defendant takes the stand and admits selling or trying to sell heroin to Agent St. James on the three dates specified in the indictment, exactly as Agent St. James testified. Agent Angel Cruz tells you that when he arrested the defendant he searched him and found more than four ounces of white powder and five hundred dollars. The serial numbers on those five hundred dollars match the numbers of the bills given the defendant by Agent St. James some twenty minutes earlier. Finally, a United States chemist comes in and verifies that it was indeed heroin each time, and that the weights more than satisfied the requirements of the statutes the defendant is charged with violating. End of case. Forget about this entrapment nonsense. That’s nothing but a red herring brought in by a desperate defense lawyer in order to distract you. A smoke screen to keep you from focusing on your job.
“So,” Pulaski told them, “you tell the judge that there’s no need to retire, and no issues to deliberate. You tell her that the defendant may not think people are responsible for their actions, but you do. You tell her that you find the defendant guilty as charged.”
And turning to face the defense table, he added, “Now that, Mr. Jaywalker, is what justice really is in this case.”
There are lawyers who sleep like babies after summing up. All the pressure is finally over. All that’s left are the judge’s charge, the jurors’ deliberations and the reading of the verdict.
Jaywalker, of course, is different.
Even though it had been more than two weeks since he’d gotten a good night’s sleep, that night would be no exception. Daniel Pulaski’s surprisingly strong summation had unnerved him, caused him to have second thoughts-make that third thoughts-about not having gone into the alternative defense of agency. He was convinced he’d picked a bad jury, not smart enough to understand the nuances of something as complicated as entrapment. Shirley Levine’s upcoming charge worried him. Worst of all, he’d noticed that the same jurors who’d struck him as receptive during his summation had seemed equally attentive to Pulaski’s arguments. He should have called other members of the backup team, on the theory that one of them might have slipped up and confirmed that Hightower had been an informer. He shouldn’t have spent so much time cross-examining the chemist and numbing the jurors with nonsense about weights and additives and percentages. He should have stayed at the DEA, or gone to medical school instead of law school.
Because by now it was absolutely clear: Alonzo Barnett was going to be convicted. Jaywalker was going to lose.
Again.
The last time he looked at the clock beside the bed it said two forty-four.
20
Jury-watching
Among the many things he is, Jaywalker is a jury watcher. He watches potential jurors as they first enter a courtroom at a point when they have no idea about the type of case they’re being screened for. He studies their reactions like a hawk as the judge reads off the charges or reveals something particularly distasteful about the facts. He looks for the jurors’ reactions to himself and to his adversary, trying to gauge which one of them is going to be their favorite. He checks to see whom they’ve chosen to sit next to in the audience, and whether they whisper to the man on their left or the woman on their right once they’ve been seated in the jury box. What are they wearing? What have they brought with them? Are they excited at the idea of being there, or do they see jury duty as an imposition? If a recess is called, are they willing to walk close by the defense table as they enter or leave the courtroom, or do they instinctively go out of their way to give the defendant a wide berth?
These things count, every one of them and a hundred more like them. And even early in his career, even as early as 1986, Jaywalker had learned to read jurors the same way a sailor learns to read clouds or a firefighter learns to read smoke.
And as he watched and tried to read the jurors’ faces that Tuesday morning as they sat and listened to Shirley Levine’s charge, he was almost immediately seized by panic.
They weren’t listening.
Oh, they were listening, but not really listening. Not perched on the edges of their seats as they should have been, leaning forward to make sure they didn’t miss a single word. Not listening the way they had during his summation or Pulaski’s.
And right then, he knew it was over.
Had the case been a whodunit, or a simple he-said/she-said, he could have lived with their inattentiveness. Other than reasonable doubt and burden of proof, there wouldn’t have been too much the judge could have told them that they didn’t already know from having heard the evidence.
But the case wasn’t a whodunit. It didn’t come down to a straightforward matter of deciding which version of the facts to believe and which to reject. Entrapment was pretty esoteric stuff. Crammed into the single paragraph of section 40.05 were more than half a dozen complex issues-burden of proof, inducement, encouragement, public servant or a person cooperating with one, substantial risk, previous disposition, active inducement or cooperation, and mere opportunity to commit an offense. This wasn’t the stuff jurors were born knowing about. Each of those phrases had a highly technical, legal meaning. And the outcome of this case depended on how the jurors decided to apply those meanings to the facts they’d heard.
Yet they were barely listening.
They’d already made up their minds.
They’d done exactly what Daniel Pulaski had told them to do. They’d heard Trevor St. James say he’d bought heroin from Alonzo Barnett twice and had been in the process of buying it a third time when Barnett had been arrested. They’d learned that Barnett had not only had an eighth of a kilogram of heroin when he’d been searched, but five hundred dollars of the prerecorded buy money.
That had been all they’d needed to know.
Everything else had gone right over their heads. All the business about the eighth-floor/twelfth-floor, all the nonsense about the weights and additives and percentages, all the suggestions that Clarence Hightower might have been working with the police. They couldn’t care less.
And who could blame them? The crack epidemic was taking the city by storm. Drugs were a scourge, and heroin was among the very worst of drugs. There was a war being waged, and men like Trevor St. James and Dino Pascarella were the soldiers in the front line, while scum like Alonzo Barnett and Clarence Hightower were the enemy. In the final analysis, there was no need for nuance, no room for clever defense lawyering. It all came down to a choice between the good guys and the bad guys. And that was no choice at all.
Even Barnett seemed to sense it. At one point he nudged Jaywalker and drew his attention to a juror in the second row, a woman who’d turned away from the judge and was staring out the window. Jaywalker nodded grimly, having already noticed her. Then he shrugged. What was he supposed to do? Point her out to the judge and get the woman admonished? All that would do would be to guarantee her vote for conviction.
Not that it mattered.
Not that any of it mattered anymore.
Shirley Levine’s charge took just under an hour. It helped that Jaywalker had dropped his agency argument from his summation. As a result, the judge barely felt compelled to instruct the jurors on it. But having said she would, she did. And she spent fifteen minutes on entrapment, but they struck Jaywalker as a bland, bloodless fifteen minutes, the highlight of which seemed to be that the defense bore the burden of proof on the issue.
By the time Levine reached the last of her instructions, that the jury’s verdict would have to be unanimous and that they were to communicate with her only through written notes from their foreman, Jaywalker found himself looking through his pocket calendar, wondering what might be a good day to come back to court to stand up on Alonzo Barnett’s sentencing.
It was that bad.
“Now,” the judge was telling them, “you may fo
llow the court officer and retire to the jury room to begin your deliberations.”
“That won’t be necessary,” said the foreman.
21
Up yours, Mac!
It wasn’t as if Jaywalker was a complete stranger to convictions. Even if he’d accumulated less than his fair share of them, he’d had enough to know they were a fact of life for every defense lawyer this side of Hollywood. And now he was looking at two in a row. A losing streak, in sports parlance. Back-to-back defeats.
Worse yet, he’d never had one quite like this.
He’d never had a jury convict without even showing the courtesy to go back to the jury room. He knew that jurors discussed cases long before the evidence was completed and they were told they could begin their deliberations. But to arrive at an actual verdict without retiring to the jury room? If nothing else, they could have sat around and eaten the sandwiches brought in for them at the taxpayers’ expense. And even if none of them wanted to wrestle with concepts like entrapment and inducement and encouragement, common decency still dictated that they kill an hour before marching back into the courtroom to convict the defendant. They could have thought of his lawyer, if nothing else.
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