But to Jaywalker, tenderness was a complaint, not a finding. With no fracture, dislocation, bruising or even redness in the lower back area, the doctors had been essen tially taking Miss Kenarden's word that she was in pain. But her word wasn't corroboration at all. Quite the contrary: under the law, it was her word that required corroboration.
But that was a legal distinction that would have to be argued later on, before the judge. For now, on crossexamination, Jaywalker had to settle for establishing that neither of the doctors who'd examined Joanne Kenarden had been able to see evidence of pain—the bruising and swelling she'd claimed to suffer—either by looking at her back or studying her X-rays. And even if the area was in fact tender, that tenderness could have been the result of infection, arthritis, muscle strain, dysmenorrhea or just about anything else, for that matter.
As his final witness, Pope called Detective Robert Rendell. Jaywalker winced as Rendell entered the court room, knowing that the jurors couldn't help but be influ enced by his appearance. Tall, good-looking and beginning to gray around the temples, Rendell would be a relaxed and well-spoken witness, Jaywalker knew, one who would impress the jurors as being honest and fair. Looking back on the case twenty-five years after the fact, Jaywalker would have no reason to rethink that assessment.
In response to Pope's background questions, Rendell stated that he'd been with the NYPD for eleven years, five of those as a detective. He gave his current assignment as the Bronx Sex Crime Squad, but indicated that back in August of 1979 he'd been working out of the 8th District Burglary and Larceny Squad. Even then, he'd specialized in rape cases, some of which began as break-ins, and there fore burglaries. Jaywalker couldn't help but wonder if it had been Darren Kingston's arrest that had "made" Rendell and earned him the new assignment.
On August 16th, Rendell had been working an evening tour of duty, from 5:00 p.m. to 1:00 a.m. Around 11:00 or 11:15, an individual named Joanne Kenarden had come into the squad room. Today, chances are she would be assigned a female detective; in 1979, that sort of sensitivity was unheard of. In any event, it was Rendell who had interviewed her, helped her file a complaint report and driven her in his radio car to Jacobi Hospital. After that, he'd gone to the scene of the crime Miss Kenarden had de scribed.
POPE: What did you do there?
RENDELL: I surveyed the scene. I spoke with peo ple in the area. I removed some lightbulbs, which I dusted for latent fingerprints. But there were none of any value.
POPE: When you say none of any value, you mean there were no prints on the bulbs?
RENDELL: No. There were some partial prints on the bulbs, but none of any value.
Rendell soon inherited another investigation, that of the Eleanor Cerami rape. Although he himself hadn't con ducted the initial survey of the crime scene in that case, Justice Davidoff permitted Pope to ask Rendell what he knew about it.
POPE: With respect to the complainant Eleanor Ce rami, was any physical inspection done?
RENDELL: Detective Talbot conducted a survey of the scene and also removed some lightbulbs, which he had tested for fingerprints but which were also negative. No latent prints of any value.
Pope's next question must have truly mystified the jurors. They, of course, knew nothing about the gathering of three of the original five victims to meet with the sketch artist. They knew nothing of the intensity of the women's emotional reactions upon first coming across the mug shot of Darren Kingston. They would never hear about the photo array Rendell had subsequently created, or the fact that Mrs. Cerami and Miss Kenarden, as well as Tania Maldonado, had succeeded in picking out Darren's photo from seventeen others. Because Pope was prohibited by the law from bringing out the photo identifications, and because Jaywalker had made a tactical decision to steer clear of the dramatic events that had unfolded that day, the jury would be forever kept in the dark about what it was that had caused the investigation to focus on Darren.
POPE: And did there come a time, Detective Ren dell, when, as a result of your investigation, you began to look for one Darren Kingston?
RENDELL: Yes.
POPE: And approximately when was that?
RENDELL: August twenty-fourth.
Rendell testified that it had taken him nearly three weeks to locate and arrest Darren. If he deserved high marks for being honest and fair, Rendell was revealing himself here as being something short of an accomplished investigator. The address on the back of Darren's mug shot was that of his parents, with whom he'd been living a year and a half earlier. Since that time, he and Charlene had found an apartment of their own. A check with the phone company would have netted that address in five minutes' time, as would a simple question to his parents.
According to Rendell, the defendant had spoken softly and clearly at the time of his arrest. But later on, when permitted to make a phone call, he'd begun to stutter no ticeably. At the precinct, there were times when he stut tered and times when he didn't.
Lastly, Pope tried to establish through Rendell that the stairwell where Joanne Kenarden was assaulted was wellilluminated by a large window to the outside. But Rendell replied that he'd never visited that particular location during daylight hours. If Pope ended on a note of minor frustration, that fact was more than offset by Rendell's use of the opportunity to impress the jurors with his candor.
As the first business of his cross-examination, Jay walker wanted to dispel any suggestion that Darren had been hiding out during the three weeks when Rendell had been looking for him. He brought out that the detective had eventually gone to the home of Darren's parents, who'd readily provided him with their son's address. Then, by eliciting from Rendell that both Darren and his parents had telephones in their homes, he laid a foundation for proving later on that, following Rendell's visit, the Kingstons had promptly phoned Darren, who—even when informed that the police were looking for him—hadn't fled. Next Jay walker established that Rendell had never bothered to obtain a search warrant for Darren's apartment in order to find out if Darren owned a tight-fitting, short-sleeved, tan V-necked shirt, a pair of dirty gray low-cut sneakers or a knife that matched the one described by the victims.
From there, Jaywalker moved on to Rendell's version of the phone call made by Eleanor Cerami after she thought she'd seen Darren in her building again.
JAYWALKER: Now there came a time, did there not, when Mrs. Cerami called your office and re ported seeing her attacker again?
RENDELL: That's correct.
JAYWALKER: Did you receive Mrs. Cerami's call when she phoned?
RENDELL: No, I did not receive it.
JAYWALKER: How were you informed of it?
RENDELL: A message was left for me that she had called.
JAYWALKER: How soon did you get the message?
RENDELL: The same day.
JAYWALKER: Did this happen once? Or twice?
RENDELL: Just once.
JAYWALKER: Can you fix a date for us?
RENDELL: September seventeenth, the Monday after Kingston's arrest.
The date matched. Jaywalker was halfway there. Eleanor Cerami had said it was a Monday, about 9:30 in the morning. Now Rendell had supplied the date. If Jay walker was right, post-office employees could place Darren at his job, literally miles from Castle Hill. And if Eleanor Cerami could be wrong, despite her absolute cer tainty, that her attacker was back, so, too, could she be wrong about her identification of Darren. And if she was wrong, didn't that mean Joanne Kenarden was, too? Trying hard to conceal his excitement, Jaywalker ce mented the date.
JAYWALKER: There's no question in your mind that it was on Monday, September seventeenth, that you received the message?
RENDELL: I'm almost positive. I contacted the district attorney immediately.
JAYWALKER: You contacted Mr. Pope. And you know that Mr. Pope spoke to me about that.
RENDELL: That's correct.
JAYWALKER: And all of that was on Monday, September seventeenth?
RENDELL: That's correct.
JAYWALKER: Thank you, sir.
Jaywalker sat down. He had what he wanted from Rendell. Pope stood and announced that the detective had been his final witness, and that the People's case was con cluded. After a brief conference at the bench, Justice Davidoff sent the jury home until the following morning.
At the end of the prosecution's case, the defense gets a chance to ask the judge to have the case dismissed. The motion takes on different names in different jurisdictions, but the theory is the same: that even if every word of the prosecution's case were to be accepted as true by the jury, those words still don't add up to be legally sufficient to support a conviction on the charges.
As Jaywalker rose to make the motion and argue in support of it, he had no illusions. He knew full well that Justice Davidoff would rule against him. Being a good judge doesn't necessarily mean you've got the biggest balls in town. Max Davidoff had come up through the system, running errands, paying clubhouse dues, and learning the art of politics long before he'd become a district attorney and then a judge. Nearing mandatory re tirement age now in the final job he would likely ever have, the very last thing in the world he wanted was to wake up in the morning to a headline screaming
SOFT-ON-CRIME JUDGE FREES RAPIST OF FIVE!
Still, Jaywalker knew that with respect to the corrobo ration element, the case was a close one, and if there was a conviction, some appellate court was going to have to wrestle with it.
The ancient and archaic rule requiring corroboration in sex cases grew out of a belief—championed in legislatures that were ninety-nine percent male—that accusations of rape were too easily made and were often contrived out of some ulterior motive on the part of the accuser. In order to protect innocent gentlemen from this sort of abuse, the lawmakers enacted a rule requiring that a complainant's testimony be supported by independent evidence with respect to each and every element of the crime. Elements are those things the prosecution is required to prove. In a forcible rape prosecution, that meant there had to be ad ditional proof that the defendant was the perpetrator, that his penis actually penetrated the complainant's vagina, and that he accomplished his goal through the use of force.
Over the years, some observers finally began to ques tion the wisdom of the requirement. Were sexual assaults really so different from other crimes? Couldn't one just as easily fabricate a robbery accusation as a rape accusation? Some wondered if the distinction was really a valid one, or simply a vestige of a puritanical, male-dominated heritage.
Today, thanks in large part to the efforts of women's rights groups in educating the world that rape is less about sex than it is about power, and is essentially a crime of assault, the corroboration requirement has gone the way of the dodo, and properly so.
But change comes slowly to the law, and at the time of Darren Kingston's trial, the rule had become endangered but was not quite yet extinct. The standard that Justice Davidoff had to apply was that in order for a forcible rape conviction to be upheld, the victim's account had to be supported by some other evidence on two points. First, that the defendant had used force, and second, that he'd at least attempted to accomplish intercourse.
Had he been asked over dinner for his personal feelings on the wisdom of the corroboration requirement, Jay walker would have had no trouble condemning it. But he could hardly let his opinion relieve him of arguing that because it was the law, the court was bound to enforce it. Besides which, he told himself, if it turned out to be the corroboration requirement that prevented Darren Kingston from being convicted, the result might be highly ironic, but it would at the same time be highly just.
Jaywalker began by conceding for the purpose of his argument that with respect to Eleanor Cerami, the sperm found in her vagina could be deemed sufficient corrobo ration of attempted intercourse, particularly when coupled with her and her husband's testimony that she'd had no other intercourse in the weeks preceding the attack. But nowhere in the evidence was there corroboration as to any force used against her.
As for Joanne Kenarden, the exact opposite was true, Jaywalker pointed out. The lower-back tenderness "found" by the doctors at Jacobi Hospital might conceivably be accepted by the jury as evidence of force. But when it came to independent evidence that her attacker had at tempted to have intercourse with her, there simply was none.
Pope countered by arguing that each victim corrobo rated the other. As authority for his position, he cited a pair of proceedings from Family Court. Family Court is the lowest of the low. It's where Judge Judy worked before she got promoted to daytime television. It's where you go if you're twelve and cut school too often, or if you're di vorced and fall behind with your alimony payments. If citing a United States Supreme Court decision is worth a ten, they've yet to come up with a decimal small enough to describe the weight of a Family Court ruling.
Jaywalker was no legal scholar and never would be. But he'd done his homework, and he, too, had come across the two cases cited by Jacob Pope. For starters, both had dealt solely with issues of identity, no longer an area where cor roboration was required. Beyond that, they'd been con cerned not with corroboration, but with the admissibility of evidence of one crime to prove another. To allow Pope to "cross-corroborate" the cases, Jaywalker now argued, would be to permit him to "double bootstrap"—to tie together two legally insufficient prosecutions that couldn't survive on their own. These were two separate cases, he reminded Justice Davidoff, joined for trial solely for reasons of convenience and judicial economy.
If Jaywalker succeeded in convincing himself—and he came pretty close, the further he got into his argument— he had less success with the court. Justice Davidoff denied the motion to dismiss, without comment, and recessed for the day.
Justice Davidoff's ruling made it clearer than ever that the defense was going to have to put on a case of its own. Up to this point, Jaywalker's strategy had pretty much been dictated by the prosecution's evidence. Unable to shake the two victims from their identifications of Darren Kingston as their attacker, he'd all but conceded that they'd been raped and honestly believed it was Darren who'd raped them. So instead of attacking them head-on, he'd tried to draw from them details about the rapist that would distinguish him from Darren—his physical appearance, his lack of a stutter, his right-handedness, his being cir cumcised, the clothing he wore and the absence of a chipped front tooth or eyebrow scar. Now Jaywalker needed to complete the picture by presenting evidence of his own that would demonstrate the contrast in each of these areas between the actual rapist and the young man who was on trial.
Toward that objective, Jaywalker had been lining up witnesses for several weeks. They included Darren him self, members of his family and fellow employees at the post office. He'd even spoken with several doctors, in the hopes of getting one of them to come to court and estab lish that Darren wasn't circumcised. Now it was time to put it all together, to orchestrate the defense case.
Jaywalker started with the proposition that he wanted to save Darren for last. Unlike other witnesses, the defen dant gets to be present in the courtroom during all of the trial testimony. By putting him on last, Jaywalker would be giving him the benefit of hearing the other defense wit nesses testify. Though by this time he was confident that Darren would be telling the truth—the pendulum long ago having come to rest on innocence—this way he wouldn't contradict other defense witnesses on any of the little details that might make it seem as though he were lying. Far more important than that reason was the dramatic aspect. The defendant is the witness jurors want to hear. Jaywalker had worked with Darren enough to know he was unlikely to disappoint them and might even be able to win them over. He therefore wanted everything in the trial to build toward the moment when he stood to announce his final witness.
Back in college, Jaywalker had been a member of the track team. Not that he'd planned on it. Recruited out of high school as a seventeen-year-old pitcher who could throw a baseball at ninety-seven miles an hour, he'd managed to blow his arm out even before arrivi
ng on campus. Needing to keep his scholarship, he'd tried out for the track team and found a berth as a middle-distance runner. His favorite event was the mile relay, in which each of four runners ran a quarter of the total, or 440 yards. It was too short a distance to hold back and pace yourself, but at the same time, too long to sprint without tearing your lungs out. So you did so anyway, at full tilt, and collapsed afterward. The only strategy that had come into play, there fore, was how the coach had arranged his runners. He'd saved his strongest runner for last, as Jaywalker was now doing with Darren. But just as it was important to have a good anchorman to finish things up, so, too, was it crucial to get off to a good start, with a runner who was strong out of the blocks, as they called it. Jaywalker had become that runner on the track. Now he had to decide who would take that role in court.
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