The problem was, where to begin?
A lawyer who comes into a case late finds himself at a serious disadvantage. Prior to his arrival, his adversary has been at work lining up witnesses, cementing and reconciling their stories, boning up on the law if necessary, and doing hundreds of other little things to maximize his head start. Which isn’t to say that Jaywalker’s predecessors on the defense side hadn’t been doing some of those things, too. But occasionally there’s a good reason—or even a number of good reasons—behind a client’s dissatisfaction with his representation.
Jaywalker had come into Alonzo Barnett’s case a full year and a half late, and had had not one predecessor, but three of them. The day after his second sit-down with Barnett, he took stock of what those lawyers had done, or failed to do, before his arrival.
First was the fact that none of them had made a serious attempt to get bail set in the case. While that might have made sense early on in the proceedings, at a time when Barnett had a parole violation detainer on him and couldn’t have gotten out in any event, there’d soon come a time when the detainer had been lifted. Barnett had had so little time remaining on his parole that the authorities had simply terminated him, marking his file closed with the notation “unsatisfactory adjustment.” Whether whoever was representing him at the time had noticed or not, or even bothered to check, was unclear. The result had been that on the new arrest, Barnett continued to be held in remand status. Jaywalker checked, of course, and when he discovered the omission, he went back in to see his client and bring him the news.
“Is there any amount of bail you could make?” he asked. “Anything at all?” He knew that even a defendant on a bad case with a bad record had a chance of getting a reasonable bail in Shirley Levine’s courtroom. And in addition to knowing his client would much prefer to be out than in, Jaywalker had selfish reasons of his own in mind. It’s much easier for the lawyer when he can meet with a defendant in his office than it is when he’s got to visit him in jail. Even a jail around the corner from the courthouse, like the Tombs. And after all, Barnett had been caught selling heroin, and in pretty substantial amounts. It was only logical to figure he might have some money stashed away somewhere.
But Barnett surprised him.
“Don’t get me bail,” he said.
Which marked a first for Jaywalker. Because the thing is, every detainee ever locked up in the history of the world wants to get out, with the possible exception of some homeless drunk in the middle of winter who’s happy to have “three hots and a cot” while he sleeps things off.
But Alonzo Barnett was neither homeless nor drunk, and instead of it being midwinter, it was mid-May. So Jaywalker was forced to ask him why he didn’t want to get out.
“It would be too hard on my daughters,” Barnett said. “I’ve told them to give up on me, that I won’t be coming out for a very long time, if ever. And it would be too hard on me, knowing I’d be living on borrowed time and would have to turn myself in sooner or later. I might decide to do something stupid, like run away. I couldn’t do that to my girls. Although,” he added, “I’ve got no place to run away to.”
In the end, Jaywalker convinced Barnett that it made sense to have a bail amount set, even if he had no intention of ever trying to post it, and the following day went before Judge Levine and had her set bail at $25,000. If nothing else, it downgraded Barnett’s classification as a threat within the Tombs, freeing him up from having both his cell and his person subject to constant searches.
Another thing the trio of earlier lawyers had screwed up were the pretrial motions. They’d filed them—at least Lawyer Number 2 had—but done a pretty half-assed job. Long on paper but short on persuasion, they’d failed to recite sufficient grounds for the ordering of any evidentiary hearings prior to trial. The only thing that remained to be decided was how many of the defendant’s convictions the prosecutor would be able to bring out if Barnett were to take the stand. As for discovery, a lot of things had been asked for, but Daniel Pulaski had successfully resisted turning over just about all of them. As a result, Jaywalker knew the dates and approximate times and locations of the three sales, as well as the amounts of heroin involved in each. That and the fact that the prosecution claimed to know of no exculpatory material that might in any way materially assist the defense.
Not much to work with.
But in addition to being a compulsive overpreparer, Jaywalker was a former investigator. Not all of his time at the Drug Enforcement Administration had been spent buying narcotics. When he hadn’t been undercover, Jaywalker had been, like any other federal agent, an investigator. He knew how to slip a lock, tap a phone and bug a room. He could make a crime scene speak to him. He could walk into an apartment or pull over a car, and have a pretty good idea where the drugs were hidden. He was good with a camera and had a working knowledge of ballistics. He knew how to lift a fingerprint and match it to one on file. And he knew the back channels, the ins and outs of the criminal justice system.
It was that last piece of knowledge that he put to work now. And he began at the only place he could possibly think of.
Other than the cops and agents and state troopers who’d made the case against Alonzo Barnett and weren’t about to speak with a defense lawyer, there was only one person who was in a position to know anything at all about the facts. His name was Clarence Hightower, and he was the guy who’d called in the favor. According to Barnett, Hightower had been arrested only minutes after Barnett himself, though for possession, rather than sale.
Finding Hightower’s papers in the courthouse turned out to be a bit tricky, because they’d been sealed. The No Public Record stamp on the file could mean only one of three things, Jaywalker knew. First, that Hightower had been a juvenile or a youth, and Jaywalker knew he’d been neither. Second, that his case had ended with a dismissal or an acquittal. Or third, that he’d been convicted, but only of a violation, a minor noncriminal offense. Which struck Jaywalker as a bit unusual, seeing as Hightower’s criminal record was in pretty much the same league as Barnett’s, if not worse.
So he found a friendly clerk he’d known for years, gave him a sob story, and convinced the guy to look the other way for a few minutes. The clerk was taking a chance, but not all that much of one. Had they been caught, he knew Jaywalker would have taken the weight, explaining that he’d swiped the file without the clerk’s knowledge. The clerk knew this because that’s exactly the kind of thing Jaywalker had done in the past, whenever one of his little capers had been discovered. Even as it had led to a few of Jaywalker’s overnights at Rikers Island, it explained his reputation as a stand-up guy who could be trusted if the shit were to hit the fan.
One of the things Jaywalker always looked for in a court file was a photograph of the defendant. He liked to put a face on things. When he found Hightower’s mug shot, two things immediately jumped out at him. First, the guy wasn’t much to look at. Second, he’d never win a best-dressed contest, not in his stained and ratty blue denim work shirt.
So much for first impressions.
According to the file, Hightower had indeed been arrested on October 5, 1984. It seemed that he’d walked right into the middle of things, not realizing that the three or four guys in plainclothes surrounding Barnett were handcuffing him and reading him his rights. Jaywalker already knew this, having heard it from Barnett, who’d explained that Hightower had walked over intending to hit Barnett up for some of the money left over from the transaction, just as he had after the second one. Hightower had been promptly rewarded for his greed by being stood up against a wall and searched, and the search had revealed a tinfoil packet containing a small amount of white powder.
Jaywalker continued combing through the file until he found the lab report. Unlike the drugs bought and seized from Barnett, which had been delivered to the United States Chemist for analysis, Hightower’s tinfoil packet had been considered no big deal and had therefore been taken to the NYPD’s lab. There, according to the report,
it had been found to contain heroin, as well as lactose and dextrose—two sugars commonly used as additives—and quinine. Because the total weight had come to just under a tenth of an ounce, less than the eighth-of-an-ounce threshold required for a felony, Hightower had been charged with only a misdemeanor. Still, it could have cost him up to a year in jail, as well as a violation of his parole. But luckily for him, he’d been permitted to plead down to disorderly conduct, a violation, receiving the maximum permissible sentence of fifteen days, which by that time he’d already served. Jaywalker looked through the papers, hunting for the name of the judge who’d been so kind as to approve such a generous plea bargain: Robert H. Straub, Criminal Court Judge.
Now, if Shirley Levine was a plus fifteen on a scale of leniency, Ronald Straub was a minus twenty. Which explained why he’d handed out the longest sentence he possibly could, but not why he’d gone along with the plea arrangement in the first place. That, Jaywalker knew, could only have been due to the urging of whatever A.D.A. had stood up on the case: Jonathan Hillebrand, Assistant District Attorney.
Jaywalker knew better than to question Judge Straub about the matter. He no doubt had been dealing with a calendar of over a hundred cases that day, and a year and a half later could hardly be expected to remember a plea that had probably taken two minutes at most. Besides, Straub might become curious about how Jaywalker had learned the disposition of a case that was supposed to have been sealed.
Jonathan Hillebrand was another matter. Jaywalker found him in one of the Criminal Court trial parts. He was a regular assistant, not in Special Narcotics like Daniel Pulaski. Which made sense, since Pulaski’s office took only felonies, and Hightower’s case had been a misdemeanor.
Not surprisingly, Hillebrand had no recollection of the matter. “It wasn’t my case,” he told Jaywalker, adding that he might have remembered the name had it been. “The way it works,” he explained, “is that I get handed a bunch of files in the morning. Each one has a note on it from the assigned assistant, telling me to answer ready for trial or ask for an adjournment, and if there’s an offer, what it is. The case you’re asking me about must have had a note saying to offer the defendant a violation and fifteen days.”
And the thing was, Jaywalker knew from experience that that was exactly how it worked.
Nor did he do any better when he tracked down the assistant whose case it had been, a young woman named Annie MacMurray. “Who remembers?” she told him. “I get hundreds of these things. We’re told to get rid of the misdemeanors as fast as we can and pay attention to the felonies. I’m sure that’s what I was doing.”
“But the guy was on parole.”
She shrugged her shoulders and said, “What can I tell you? I must not have noticed that. Or maybe he didn’t have enough time left on his parole for it to matter.”
In other words, Clarence Hightower had simply lucked out. He’d managed to slip through a small crack in a big system. It happened.
Still, Hightower was all Jaywalker had at this point. If Alonzo Barnett insisted on going to trial so that he could tell a jury he’d done someone a favor, the least Jaywalker could do was locate the guy he’d done the favor for, put him on the witness stand and have him corroborate the fact. It might not add up to a legal defense, but it might win some sympathy points with a jury. And from there, who knew? Stranger things had happened.
So Jaywalker put on his investigator’s hat and spent the next three days trying to find Clarence Hightower.
And struck out.
The address listed on the court papers turned out to be a nonexistent one. Ditto the one Hightower had given the Department of Corrections at Rikers Island. Jaywalker tried the phone book, the unlisted directory, Social Security, Internal Revenue, the Motor Vehicle Bureau, the Department of Social Services. He even checked to see if by any chance Hightower had applied for a barber’s license, as Barnett had tried to do. He hadn’t. As a last resort, using a public phone, Jaywalker called the Division of Parole up in Albany.
“This is Detective Kelly,” he told the woman who answered. “Manhattan North Homicide Squad, shield 5620.”
“What can I do for you, Detective?”
So far, so good.
“I need to know who’s supervising a particular parolee,” he explained, furnishing her Hightower’s full name and NYSIS number, which he’d made a point of copying down from the court papers.
“Hold, please.”
It took a few minutes, during which Jaywalker kept an eye out. He knew all about call tracing and GPS technology, and he didn’t want any real cops sneaking up on him and arresting him for criminal impersonation of a police officer. A felony was the last thing he needed on his record.
But no cops sneaked up.
“That supervision has been terminated,” the woman told him.
“When?”
“December 12 of 1985. Last year.”
Which struck Jaywalker as a bit strange. Hadn’t Barnett told him that Hightower had been doing ten-to-twenty at Green Haven? Released in 1984, he would have still owed the state four or five years, at a minimum.
“Can you give me the name of the last PO who supervised him?” Jaywalker asked.
“I’m not supposed to,” she told him. “Not on a closed case.”
“Look,” said Jaywalker gently, but not too gently. “I’ve got two dead kids I’m working on here, a four-year-old and a one-year-old. Both of them mutilated.” Hey, if you were going to lie, might as well make it a big one.
“Anunziatta,” she told him. “Ralph Anunziatta.”
“Got a phone number, by any chance?”
“Try 212-555-2138.”
“Thank you.”
“I hope you find the perp. And, Detective?”
“Yes?”
“This conversation never happened.”
Which was just fine with Jaywalker.
Not that Ralph Anunziatta turned out to be all that much help. “Yeah,” he said, “I remember the guy. Sorta. I wanted to revoke him, but before I could do anything about it, they’d let him cop out to a disorderly conduct. Not even a crime. So the most I could do was to write him up for a technical violation and continue him on parole. Then, next thing I know, someone upstairs cuts him loose, fuckin’ terminates him.”
“Isn’t that unusual?”
“A little,” acknowledged Anunziatta. “But they say they gotta cut the numbers. Anyway, one less case for me.”
What had been one less case for Parole Officer Anunziatta was the source of one more concern for defense lawyer Jaywalker. His wife caught him staring off into space that evening at the dinner table. Not that Jaywalker was any stranger to staring off into space. But his wife had an uncanny way of knowing just how many galaxies away he was at any particular moment and asked him what the problem was.
“I don’t know,” he said. “I’m representing this guy on a drug sale—several sales, in fact. And I don’t know, I’ve just got a funny feeling…”
“Please don’t tell me you’ve got another innocent defendant,” his wife begged. Not too many years back, she’d lived through one of those with him. Or if not exactly with him, under the same roof. Jaywalker’s obsession with trying to extricate a young man mistakenly accused of a series of knifepoint rapes had taken a tremendous toll on their marriage, their daughter and their bank account.
“No,” he said. “Actually, he’s as guilty as sin. But still…”
His wife said nothing. They’d been married long enough by that time for her to stay away from the but still part.
But still…
Later that night, his wife and daughter tucked into bed, Jaywalker sat at the kitchen table, scribbling thoughts on the back of an envelope. By the time he was finished, it might not have been the Gettysburg Address he’d composed, but he was looking at a fairly impressive list of pretty unusual developments in the way in which the criminal justice system had chosen to deal with Clarence Hightower.
First there was the fact th
at Hightower had never been charged in connection with the sales Alonzo Barnett had ended up making. According to Barnett, the guy he’d introduced Hightower to would deal with Hightower and his customer only through Barnett. This was hardly unusual. After all, the guy knew Barnett, not them, and this had been his way of insulating himself. But the acting-in-concert law being as broad as it was, surely Hightower could have been accused of sale, too. Only all they’d charged him with had been possession. Then again, he hadn’t actually been present at the sales, and perhaps the cops hadn’t known the full extent of his involvement. Maybe he’d just been lucky, was all.
Then there’d been the fact that despite his having been on parole, Hightower hadn’t had a detainer lodged against him following his arrest. But stuff like that happened all the time, Jaywalker knew. It was a big system, and people messed up.
Next was the fact that they’d let him plead down from a misdemeanor to a violation. Not that Jaywalker himself didn’t get dispositions like that for his own clients every day. But usually not for those with horrendous records who owed parole time. Still, Jaywalker’s conversations with the two assistant district attorneys who’d been involved had been unremarkable and hadn’t left him with the feeling that either of them had singled Hightower out for special treatment. Maybe the stars had just aligned favorably for Clarence Hightower in court.
A bit more interesting was the fact that Hightower had never had his parole revoked for the possession arrest. True, he’d ended up pleading guilty to a violation, and a nondrug one at that. Which was exactly the sort of disposition Jaywalker would have tried to get him, had he been the lawyer. So once again, nothing too out of the ordinary.
But what about the early termination of Hightower’s parole? Sure, Ralph Anunziatta had been happy to have one less guy to supervise. But hadn’t he said he’d wanted to revoke Hightower, only to be overruled by some superior? So Anunziatta had had to settle for writing it up as a technical violation and continuing parole. Okay up to that point, arguably. But then the guy gets terminated early? Sure, it was just before Christmas, but no one had ever accused the Division of Parole of playing Santa Claus. And on top of everything else, now it seemed that Hightower had disappeared off the face of the earth.
Guilty as Sin Page 5
