Jaywalker's heart pounded as he took all this in. He was immediately skeptical about the lineup; the victims were by now convinced it was Darren who'd raped them and would continue to identify him. But as far as having this new suspect watched and brought in, they certainly had nothing to lose from that.
"Have you thought about setting up a decoy operation?" he asked. Why wait for the man to pick out a victim, after all, when a young female officer could be enlisted for the role and sent in, backed up by an undercover surveillance team?
"Why don't we leave it to the professionals?" was Pope's response to the suggestion.
Jaywalker bit his tongue and said nothing. Never mind that he'd been one of the professionals not too long ago, making multikilogram undercover purchases of heroin and cocaine for the Drug Enforcement Administration. This was Pope's show, and he didn't want to do anything to derail it. He readily agreed to the requested continuance, and the judge granted it.
If the jurors had been curious about the first postpone ment, now they looked truly mystified as they were told for the second time in as many days that they would be hearing no testimony. Justice Davidoff instructed them not to specu late about the reason and sent them home for the weekend.
Again Jaywalker huddled with the Kingstons, sharing with them everything Pope had said earlier. They left the courthouse seeming cautiously optimistic. The optimism, of course, came from the news of the "other man." The caution came from Jaywalker and, he guessed, from their own reluctance to trust in something that seemed too good to be true. Perhaps they'd suffered too many disappoint ments already: the arrest, the arraignment identification, the high bail, the indictment, the many polygraph frustra tions, the severance decision, the racial composition of the jury, and the continuing certainty of the victims that it had been Darren who'd attacked them. If their faces wore expressions that translated as "We'll believe it when it happens," Jaywalker could hardly blame them.
As for Jaywalker, he drove home filled with a strange mix of emotions. He took comfort, and even a measure of pride, from the notion that Pope had, at least to a certain extent, made Jaywalker's doubts his own. It renewed his faith in Pope, and in the system. Beyond that, he was thrilled that the detectives might be onto the real rapist. He knew in his heart that the man was still out there some where. And more than anything else, he wanted Darren's nightmare to end.
Yet for all that, Jaywalker was also aware that there was a part of him that wanted to be the hero. Not Jacob Pope. Not some detective. Him, Jaywalker. He wanted to win this. He didn't want his role to be reduced to that of a by stander when the case got solved.
He turned on the AM radio of his old VW. An AM-FM upgrade would have cost him another fifty bucks, and tape decks, CD players and iPods hadn't even been born yet. He gave the thing a hard rap to get it working. He wanted to drown out the voice of his own ego, needed to remind himself that this wasn't about him. When it came right down to it, it didn't matter how Darren got off, it only mattered that he did. The radio finally warmed up, and the single station that worked on it came to life. Through the static and the whine of the engine, Jaywalker could just make out the throaty voice of Carly Simon.
You're so vain,
I bet you think this song is about you. You're so vain.
17
LOW BLOWS
Any threat to Jaywalker's ego ended promptly at ten o'clock Monday morning. Pope announced that he had the "suspect" in his office, for Jaywalker to view and inter view, if he wished. He added that he was certain the man wasn't the rapist and thought Jaywalker would agree as soon as he saw him. Together they walked down to his office, prosecutor and defender. Allies for a moment, but about to become adversaries again.
The young man did in fact look something like Darren. He was a light- to medium-skinned black man, about Darren's height, and slightly heavier. He'd been told why he was being picked up, and he'd agreed to come in voluntarily, without protest. And the reason was plain to see. On the man's right forearm was a prominent tattoo, an elaborate serpent-and-sword affair that could hardly have been missed by the victims of a man wearing a short-sleeved shirt. Pope said he'd double-checked with his witnesses to make certain, and none of them recalled a tattoo. And it wasn't new, be cause a check of the man's criminal record had turned up a 1974 arrest, complete with a description that in cluded the tattoo. As to what the man had been doing "acting suspiciously" in the area, he had a logical ex planation for that, too. But by that time, Jaywalker was no longer listening.
He felt like he'd been kicked in the gut. Here it was, ten o'clock in the morning, and already he was totally ex hausted. He barely heard Pope asking him whether he wanted to pursue the matter further. The second time he was asked, he shook his head slowly, then followed Pope back to the courtroom. Somewhere along the way, he managed to thank him for trying.
Back in the courtroom, Jaywalker's gratitude quickly evaporated when Pope announced that he intended to call the young man as a witness. He wanted to demonstrate to the jury just how hard the district attorney's office had worked to insure that they had put the right man on trial.
Jaywalker all but exploded. Making sure they were trying the right man was one of the duties of a prosecutor, he argued, and Pope deserved no extra credit in the eyes of the jury for doing his job. It was Darren Kingston who was on trial, not the Bronx County District Attorney's office, and calling the young man served no legitimate purpose whatsoever.
For once, Justice Davidoff sided with Jaywalker. Pope seemed so surprised and rebuffed by the ruling that Jay walker found himself reevaluating his adversary's motives. He began to wonder if Pope had looked upon this "other man" business all along as nothing but an opportunity to do a little grandstanding and win some points with the jury.
To this day, he really doesn't know.
* * *
Finally accepting the judge's ruling, Pope indicated that he was ready to proceed with his rebuttal case. It was close to eleven o'clock by the time the jurors were brought in, no doubt wondering what surprise was in store for them next. But the surprise was to be Jaywalker's.
Pope called Tania Maldonado.
Jaywalker was on his feet asking to approach the bench before the witness made it through the door. There he reminded Justice Davidoff that Tania Maldonado was one of the victims whose case he himself had ordered severed, to be tried separately. Now Pope was trying to bring in Miss Maldonado—and presumably Elvira Caldwell, as well—to rebut Darren's testimony that, except for one visit with John McCarthy, he hadn't been in the Castle Hill area in years. And Pope was seeking to do it by placing Darren there on August 17th and September 5th, the dates of the Maldonado and Caldwell attacks.
Pope argued that Jaywalker had "opened the door" by putting the defendant on the witness stand and having him deny his presence in the area. But it had been Pope who'd elicited the denial, Jaywalker told the judge, through his own questions on cross-examination. That amounted to setting up a "straw man" for patently impermissible re buttal. Jaywalker was shooting from the hip a bit here, making up his argument as he went along. But Pope's tactic struck him as yet another in a series of low blows. If permitted to get away with what he was proposing, Pope was now going to be allowed to parade two more victims in front of the jury—when the judge had already ruled that the unfair prejudice from that would be so great that it would deprive the defendant of a fair trial.
Pope acted as though he was surprised by Jaywalker's objection. All he intended to do, he assured the judge, was to ask each witness in turn if she'd seen the defendant in the area on a particular day. He didn't plan on going into what had happened.
Jaywalker pointed out to Justice Davidoff that permit ting Pope to ask these other two victims anything would put the defense in an impossible position. If Jaywalker chose to cross-examine them as to their ability to mean ingfully identify Darren, all the circumstances of their confrontations with him would come out, including the fact that they, too, claimed to have been among
his victims. When the judge had ruled that that was too much for a single jury to handle, what sort of relief had he meant to give the defense? A trial where Jaywalker couldn't pos sibly put his client on the witness stand to deny his guilt?
Again a sports metaphor came to his mind. Watch a baseball or basketball game for a while. The umpires and referees do a terrific job. But every so often, they blow a call, whether it's a ball versus a strike, or a defensive foul versus an offensive charge. And the fans—and these days the miracle of instant replay—are quick to let them know. So what happens a minute or two later? The payback call, that's what. The same official makes an equally bad call, only this time against the team that unfairly benefited from the first one. Moral? It all evens out in the end.
Now, as Jaywalker heard Justice Davidoff ruling against him, payback came to mind. Pope would be al lowed to ask the two additional victims what he proposed. Jaywalker could cross-examine or not, as he chose. But if he did, the judge explained, then both sides would be free to explore the full circumstances of the incidents.
But if this was indeed payback for the earlier call, in which Justice Davidoff had refused to allow Pope to call the "other man" only minutes ago, didn't the judge realize how different the two matters were? The first had been a no-brainer; of course Pope had no right to show how thorough his office was. But this second ruling—allowing Pope to set Darren up during cross-examination, just so he could bring in victims three and four on rebuttal—was nothing short of devastating to Darren's chances of getting a fair trial. It was tantamount to correcting a trivial ballor-strike call by saying a game-ending home run hit by the other team the following inning had landed in foul terri tory.
As a last resort, Jaywalker demanded a Wade hearing as to the identifications of the two rebuttal witnesses, re minding Justice Davidoff that he'd been deprived of one only because of the severance. But here again, the judge said no, unless Jaywalker were to commit in advance to cross-examining the witnesses. That caveat struck Jay walker as bordering on the bizarre. If a witness is going to point out a defendant at trial, that fact alone entitles the defense to explore, in the absence of the jury, any prior identifications—lineups, photographs, whatever—that the witness has previously made of the defendant. Tania Mal donado, Jaywalker knew for a fact, had been one of the three victims who'd come across Darren's photo together and had subsequently selected it from an array. Who knew what prior identification procedures Elvira Caldwell had been put through?
But the judge had made his ruling, and he made it clear that he wasn't about to change it. Jaywalker thought about his options for a moment, but only a moment. There was simply no way he could open up the trial to two more inci dents. Better to highlight the impact of Justice Davidoff's ruling by declining to cross-examine the additional vic tims. That way, at least, there would be a nice, clean issue preserved for appeal, in the event of a conviction. And that event was suddenly looming larger than ever.
Jaywalker told Justice Davidoff that until he'd heard the direct testimony of the rebuttal witnesses, there was no way he could state with honesty whether or not he intended to cross-examine them. With that, the judge denied his request for a Wade hearing and told Pope he would be permitted to proceed as he wished. Jaywalker sat down heavily, feeling as though he'd taken a knee to the gut, or perhaps slightly lower.
Tania Maldonado was finally permitted to enter the courtroom. Jaywalker recognized her as one of the two young women who'd been standing with the detectives last Thursday. The other one, of course, must have been Elvira Caldwell. The jurors, who hadn't seen or heard anything for four days now, swung their heads toward her in height ened anticipation. What they saw was yet another young woman, very young, very pretty—and very white.
Jaywalker sat back, took a deep breath, and steeled himself for the worst. It wouldn't help.
POPE: How old are you, Miss Maldonado?
MALDONADO: Seventeen.
POPE: Do you work, or do you go to school?
MALDONADO: Both. I work, and I go to school.
POPE: What grade are you in?
MALDONADO: I'm in the eleventh grade.
Pope zeroed in on August 17th. He established that the witness had been entering a particular building of the Castle Hill Houses sometime in the early afternoon. He had her point out the building on his chart, for the jurors to see.
POPE: Miss Maldonado, when you were inside that building, did you see anyone else?
MALDONADO: Yes.
POPE: Was that a male or a female?
MALDONADO: Male.
POPE: Miss Maldonado, do you see that person in the courtroom today?
MALDONADO: Yes, I do.
POPE: Would you please point him out.
Without a moment's hesitation, Tania Maldonado pointed directly at Darren.
POPE: Is there any doubt in your mind that this is the person who was with you that day?
MALDONADO: No.
POPE: No further questions, Your Honor.
There didn't have to be. In deliberately using the words who was with you, rather than whom you saw, Pope had conveyed to the jury the full meaning of his rebuttal case. Now, as Jaywalker stood to question this witness whom he didn't dare question, he felt as though he was carrying an extra five hundred pounds on his shoulders.
JAYWALKER: Miss Maldonado, before August seventeenth, how many times do you say you had seen this man?
MALDONADO: I didn't see him before.
JAYWALKER: And since August seventeenth, when is the last time you say you saw him?
MALDONADO: I didn't see him again.
JAYWALKER: Until today.
MALDONADO: Yes.
JAYWALKER: You haven't seen him between last August seventeenth and today, March fourth?
MALDONADO: That's right.
Jaywalker quit right there, before getting into real trouble. But he knew there was no way the jury could make any sense of her testimony, other than to conclude that she had to have been a third victim.
With a fourth to come.
POPE: How old are you, Miss Caldwell?
CALDWELL: I'm seventeen years old.
POPE: Do you got to school?
CALDWELL: Yes, I do.
As before, Pope had the witness give her address and then locate it on the diagram for the jury. It, too, was in the Castle Hill project.
POPE: Were you in that building on September fifth, nineteen-seventy-nine, at about two or twothirty in the afternoon?
CALDWELL: Yes.
POPE: Was there anyone else with you at that time?
CALDWELL: Yes.
POPE: Was that a male or a female?
CALDWELL: A male.
POPE: Do you see that male in the courtroom?
CALDWELL: Yes, I do.
POPE: Would you point him out, please?
And just as Eleanor Cerami had, just as Joanne Kenarden had, and just as Tania Maldonado had done only minutes earlier, Elvira Caldwell pointed her finger directly at Darren Kingston.
CALDWELL: He's right there.
POPE: No further questions.
Jaywalker brought out, as he had with the previous wit ness, that Miss Caldwell hadn't seen the man before or since. Short of questioning her about the incident itself, he simply couldn't think of anything else to ask her. Even an innocu ous "And yet you can say you're sure it's him?" would have flung the door open for Pope to come back on redirect and ask her how close she'd been to him, where they'd been, how long they'd been there, what had been going on, and what it was that caused her to remember him so well. That, of course, was the catch-22 of Justice Davidoff's ruling.
So Jaywalker could do nothing but give up at that point and sit down. That, and pick up a stray paper clip, pry it open and dig one end of it beneath his thumbnail until the blood ran bright red.
Pope announced that he had no further rebuttal wit nesses and rested once again. The judge swung his gaze to the defense table. Jaywalker leaned over toward Darren and muttered under hi
s breath, "Fuck me if we're going to end on that note." It came out a little louder than he'd planned. Or maybe not. At that point, he didn't much care.
Bronx Justice Page 20
