Bronx Justice

by Joseph Teller

  THE COURT: Overruled. He has a right to ask the question.

  Jaywalker had no recourse, but he knew for a certainty that the judge was wrong there. Pope was deliberately hiding behind the general acting-in-concert language of the complaint he'd dug up from the old case. Had he looked into the facts at all, he would have quickly realized that he lacked a good-faith basis to suggest that Darren had possessed a knife in connection with the incident. But this case involved knifepoint rapes, and evidently Pope saw mileage to be gained by putting blinders on and implying that the defendant was no stranger to knives.

  At the very least, Justice Davidoff should have called a recess and asked for the court papers and the D.A.'s file from the earlier case. It had happened right there in the Bronx, after all, less than two years ago. It couldn't have taken more than half an hour to find out what the com plainant had really said. Instead, the judge allowed the question, and Pope took full advantage. Over and over he asked Darren if he hadn't held a knife in the case, changing a phrase here or a word there. Worse yet, each time he posed the question, he made it look as though he were reading from an official paper of some sort. All Darren could do was deny the fact each time he was asked, as em phatically as he could.

  But there was a certain genius to Pope's handling of the issue. In his persistence, and particularly in his pretense that he had documentary proof backing up his point, he was able to pit his own credibility against that of the de fendant. And with whom could the jurors be rationally expected to side? An assistant district attorney, trusted to try major felonies in Supreme Court? Or an accused rapist with a prior robbery arrest?

  Finally Pope zeroed in on the day of the two rapes.

  POPE: I believe you stated that on August sixteenth, nineteen-seventy-nine, you were at home asleep. Is that correct?

  DARREN: That's true.

  POPE: But you don't specifically remember that day, do you?

  DARREN: No, I d-d-don't.

  POPE: Tell me, were you in the Castle Hill project on that date?

  DARREN: No.

  POPE: When was the last time you were at the Cas tle Hill project?

  DARREN: Not since nineteen-seventy-five or so.

  POPE: And since then, have you at any time, on any date, been in any of the buildings of the Cas tle Hill project?

  DARREN: Ac-ac-actually I have been.

  Jaywalker's heart stopped beating. And Pope must have thought for sure he'd struck paydirt.

  POPE: And when was that?

  DARREN: That was after m-m-m-my arrest, with m-m-my investigator, Mr. McCarthy.

  Jaywalker's heart resumed beating. Pope, visibly dis appointed, launched into a series of questions about Darren's daily routine as it had been back in August.

  POPE: What time do you get off work?

  DARREN: At eight-thirty in the morning.

  POPE: What do you do when you get off work?

  DARREN: I get onto the number five train at Eighty-sixth Street. That t-t-takes me to One Hun dred and Forty-ninth Street and the Grand Con course. And I change to the number two train, to Allerton Avenue.

  POPE: When you get off at Allerton Avenue, you walk to your home from there?

  DARREN: The m-m-majority of the time I stop at Food City. It's under the train station. I buy grocer ies.

  POPE: And approximately when do you arrive at your home?

  DARREN: Between nine-thirty and ten o'clock.

  POPE: And when you get home, what do you do?

  DARREN: I might look at some TV, eat b-b-break fast, call my wife to see if she got to work all right, and go to sleep.

  POPE: You go to sleep at some point in the morn ing. Is that right?

  DARREN: Yes.

  POPE: And you sleep until when? What time do you wake up?

  DARREN: About four-thirty, five o'clock.

  POPE: And when you wake up, what do you do at that point?

  DARREN: I'll take a shower, get c-c-cleaned up and wait until my wife gets home.

  Eventually Pope grew tired of questioning Darren about his routine. It seemed to Jaywalker that Darren had han dled himself flawlessly, and that Pope had accomplished absolutely nothing in the exchange.

  Next Pope took aim at Darren's stutter.

  POPE: Now, Mr. Kingston, isn't it a fact that you are under a lot of tension and pressure at the present time?

  DARREN: Ever since I was arrested.

  POPE: This case is important to you, of course. Isn't it?

  DARREN: Definitely.

  POPE: And you feel uneasy up there on the stand. Isn't that correct? I mean, it's a tense situation. Isn't that true?

  DARREN: You could say that.

  POPE: Isn't it a fact, Mr. Kingston, that when you are in a tense situation—when you're talking to Mr. Jaywalker about your suspension, for instance, or when you're on the witness stand, or when you're being told you've just been arrested—in situations like that, that you stutter quite a bit? Isn't that true?

  DARREN: M-m-more than usual.

  POPE: But usually, Mr. Kingston, isn't it a fact that you don't stutter as much as you're stuttering on the stand today? Isn't that correct?

  DARREN: There is a slight d-d-difference, I guess.

  POPE: In fact, Mr. Kingston, when you're in con trol of the situation, as in the case of August six teenth, when you had the knife in your hand and you were telling Mrs. Cerami and Miss Kenarden what to do, you don't stutter at all, isn't that correct?

  DARREN: I wasn't even there.

  Bravo, thought Jaywalker. He couldn't have come up with a better answer himself.

  POPE: You didn't stutter when you said that, either, Mr. Kingston.

  As Jaywalker rose to object to Pope's nonquestion, he could hear Charlene crying in the spectator section of the courtroom. And he couldn't have been the only one to hear her.

  DARREN: I stutter when I'm under stress, sure. And you know I'm under g-g-g-great stress now, be cause I didn't do these things. And I'm going to tell you—

  The remainder of Darren's answer was drowned out by his wife's sobs. As Jaywalker objected, Pope complained, and as Justice Davidoff called for order, Marlin and Inez helped Charlene from the courtroom. A ten-minute recess was declared.

  Outside in the corridor, Jaywalker found Charlene sobbing uncontrollably, fighting to catch her breath. Some one pulled up a chair for her. George Goddard, a physi cian who'd arrived a little while earlier to be the final defense witness, finally succeeded in calming Charlene down. He later confided to Jaywalker that his motivation had been at least partly self-serving. An internist with a subspecialty in endocrinology, Dr. Goddard hadn't deliv ered a baby in many years, and he wasn't particularly anxious to renew his obstetrical training on the sixth floor of the Bronx County Courthouse.

  Following the recess, Darren resumed the witness stand. Pope questioned him briefly about his uncle Samuel, who lived near Castle Hill, and about Darren's own residence back in 1975, which had also been close to the area. But Darren continued to deny that he'd been back there since, except for that one time with John McCarthy.

  POPE: In other words, Mr. Kingston, what you are testifying to—correct me if I'm wrong—is that Mrs. Cerami and Miss Kenarden are mistaken in their identification of you. Is that correct?

  DARREN: That's exactly what I'm testifying.

  POPE: No further questions.

  Jaywalker thought it a strange way for Pope to con clude, reducing Darren's testimony—and anticipating Jay walker's summation—so neatly for the defense. He should have known better, should have figured out that there was a method to Pope's madness.

  Darren stepped down from the witness stand and re joined Jaywalker at the defense table. For two hours, he'd become an active participant in his trial—indeed, the central player of it. And he'd come through beautifully, Jaywalker felt. Now Darren's moment was over. As it had been before, his role was reduced to that of a spectator.

  As much as Jaywalker would have liked to rest after Darren's testim
ony, he had one more witness to call, and circumstances beyond his control had dictated the order of doing so.

  For the better part of two weeks, he'd been trying to locate a doctor willing to come to court and testify to the fact that unlike the man Joanne Kenarden had described, Darren wasn't circumcised. What had seemed a simple enough proposition had taught him just how leery the medical profession is of the legal profession. Darren's own doctor refused, as did at least twenty others contacted by his family or by Jaywalker. Several declined because the defense couldn't afford to pay them enough for their time, with some of their demands running well into four figures. But most stated candidly that no amount of money could induce them to testify, about any matter. A few offered to sign letters or even affidavits, but those would have been inadmissible as hearsay, inasmuch as the doc tors themselves wouldn't have been available for crossexamination. At one point Jaywalker had been ready to give up and ask Pope to concede the point and stipulate to it. But he much preferred the idea of a live witness, for the impact he felt it would have upon the jury.

  In the end, he'd had to impose upon a personal friend. The evening before, in the makeshift examining room of Jaywalker's study, George Goddard had come over and examined Darren. Then he'd managed to cram a full day's schedule into a morning, and driven from his office in Livingston, New Jersey, to the Bronx.

  As he now began by asking Dr. Goddard to state his cre dentials, Jaywalker felt that the jurors couldn't help but be impressed. A graduate of Dartmouth College and Harvard Medical School, Dr. Goddard had interned at Bellevue and Columbia Presbyterian hospitals, completed residen cies at both places, and studied under a fellowship at Mount Sinai. He was board certified and licensed in both New York and New Jersey.

  The remainder of Jaywalker's examination was pre dictably brief.

  JAYWALKER: Have you had occasion to examine the defendant, Darren Kingston?

  GODDARD: Yes, I have.

  JAYWALKER: And having conducted that ex amination, can you tell us, to a degree of medical certainty, whether or not Darren Kingston is circum cised?

  GODDARD: He is not circumcised.

  JAYWALKER: Is there any doubt in your mind?

  GODDARD: None whatsoever.

  Jaywalker hadn't expected there to be any crossexamination, but Pope surprised him. He asked Dr. God dard to describe the difference between a circumcised penis and an uncircumcised one. Then he tried to suggest that although a doctor could distinguish between the two, a layperson might have difficulty.

  POPE: If you were a nonmedical person, there would be a greater difficulty in determining whether or not Darren Kingston was circumcised. Is that cor rect?

  GODDARD: I don't think it would be very difficult. He happens to have a long foreskin.

  Still Pope pressed on. First he got Dr. Goddard to concede that it might be more difficult for a layperson to make the determination seeing a penis only in its erect state. Never mind that Jaywalker had gotten Joanne Kenarden to say that she'd seen her attacker's penis both erect and flaccid. Then Pope broke new ground in the annals of disguise, by asking if it would be possible for an uncircumcised person to pull back his foreskin, in order to appear circumcised. To this sug gestion, Dr. Goddard acknowledged that it might be possible, though rather unlikely, and perhaps even quite painful.

  As he stepped down from the stand, Jaywalker stood and announced that Dr. Goddard had been his final wit ness. The defense rested.

  Pope, however, indicated that he had rebuttal witnesses to call, and that they weren't immediately available. Jus tice Davidoff gave him until the following morning to produce them. Then he recessed.

  If Jaywalker's witnesses had come off well enough, not one of them had been able to provide an alibi for Darren. The closest thing to that had been supplied by a single sheet of paper from the post office. As for the wit nesses themselves, however well-meaning and earnest they'd been, they'd also been pretty much family and friends, two groups that jurors were often quick to disre gard. Even if he'd scored a few points here and there during the defense case, he was painfully aware that the potential for disaster was still there. And now Pope was promising just that.

  It would be a long, sleepless night. For a change.

  16

  THE OTHER MAN

  On Thursday morning, just before the jury was brought into the courtroom to resume the trial, Jacob Pope asked to approach the bench for a conference. There, in his usual businesslike voice, he announced that something had come up that might prove beneficial to the defense. He couldn't say what it was until he checked it out, and it would take him the rest of the day to do so. But he assured Jaywalker that whatever it was, at the very least it couldn't hurt the defense. When Jaywalker pressed him for more detail, he wouldn't budge, except to repeat that the defendant had everything to gain and nothing to lose.

  "You've found the real rapist," said Jaywalker.

  "I can't say anything more yet," was the best Pope would do. But even his refusal to tell Jaywalker that he was way off with his guess seemed pregnant with possibility. And Justice Davidoff was no help. He declined Jay walker's request that he compel Pope to disclose what was going on.

  Jaywalker walked back to the defense table and ex plained the situation to Darren, who reacted with visible excitement. They agreed to go along with Pope's request. Justice Davidoff called for the jury. He told them that certain legal matters had come up that didn't concern them but required that he excuse them for the day. He instructed them to return the following morning, Friday, at ten o'clock. Whispering among themselves, the jurors filed out of the courtroom. Perhaps they were every bit as in trigued by the latest development as Jaywalker and Darren were. More likely their enthusiasm was over the prospect of a free day to go shopping or sit in front of their televi sion sets.

  Out in the corridor, Jaywalker tried to pry some hint out of Pope, without success. The prosecutor did promise to let them know what was going on as soon as he'd had an opportunity to check it out. Then he excused himself, walked away, and joined a cluster of people that included two detective types and a pair of young women in their late teens or early twenties.

  Jaywalker tried to contain his excitement as he and Darren discussed the matter with the Kingston family downstairs. Something had obviously happened, or was happening, or was about to happen. Either they'd found the real rapist, or another attack had occurred that bore his signature. And it couldn't have been Darren, because this time Darren had the best alibi of all time: he'd been sitting in court.

  Whatever it was, it could only be good. Even in his secrecy, Pope had said enough to hint that he was now on their side. Justice was about to be done. Darren was about to be rescued. And if Darren was about to be rescued, so was Jaywalker.

  * * *

  Friday.

  Jaywalker arrived in court so early that he had to wait for the doors to be unlocked. Fueled by pure adrenaline, he'd slept two hours, if that. And he was only the lawyer; he couldn't begin to fathom what Darren was going through.

  But the suspense was to be continued.

  Pope informed them that he was still awaiting further developments and asked that the case be put over once more, until Monday morning. Again he gave solemn as surances that the delay was in the interest of justice and could only benefit the defense. Jaywalker said he was prepared to agree to the continuance, but that fundamen tal fairness required their being told what was going on. Fundamental and fairness are two words that appellate courts tend to use a lot when reversing convictions, and Jaywalker's use of them was no accident. This time, after thinking about it for a moment, Justice Davidoff agreed.

  Reluctantly, Pope complied. Measuring his words care fully, he prefaced his remarks by stating that he himself had no doubts about the case. But Jaywalker's insistence on his client's innocence had prompted the district at torney's office to continue surveillance in the Castle Hill area, even as the trial progressed. Over the past several days, Pope had been receiving reports that a youn
g black man had been seen hanging around the project, acting sus piciously. Preliminary indications were that he closely re sembled Darren Kingston. Pope wanted to continue the surveillance a bit longer. If the man made a move, he could be arrested on the spot. If he didn't, he would still be picked up and brought in, so that the defense could see him. Perhaps a lineup could even be arranged for the victims to view.