Why did any and all of this matter to Jaywalker? Well, back in his DEA days, there’d been a couple of times when he and his team had arrested a midlevel dealer known to have an upper-level source of drugs. So what they’d done was offer the guy a deal right on the spot. “You promise to cooperate with us and give us your connection,” they’d tell him, “and we’ll cut you loose right now.” If he agreed, they’d un-arrest him, a dubious enough legal procedure but a good way to enlist the guy’s help in making a case against a higher-up. You traded a relative nobody for a somebody. And the beauty of it was that by skipping the arrest, processing and court appearance, you never alerted the big fish to the fact that the minnow had been caught and turned into bait.
Had the cops done just that with Clarence Hightower? Arrested him, “flipped” him and let him stay out on the street so he could help them make a case against Alonzo Barnett? And had they then added the wrinkle of arresting him for possession later on, in order to cover their tracks? It could explain everything. The lenient treatment in court, the early termination of parole, even the disappearance.
And it mattered. It mattered tremendously.
Because if Clarence Hightower had indeed been working as an informant when he prevailed upon Alonzo Barnett to hook him up with somebody, Jaywalker had at least the makings of a theoretical defense for Barnett. He could claim entrapment, arguing that but for Hightower’s overbearing persistence, Barnett never would have committed the crimes he’d been arrested for. Criminals twist each other’s arms all the time, trying to get accomplices for some illegal venture or other. But unless the twisting rises to the level of real physical force or a credible threat to use it, the twistee who ends up going along, however reluctantly, has nothing to complain about. If you don’t believe that, ask Patty Hearst. On the other hand, if the arm-twisting is done by the police or someone working for them, it becomes a different story altogether.
Not that entrapment defenses ever really succeed. And the reason is pretty simple. In suggesting that a jury should acquit on entrapment, the defense lawyer is conceding guilt while asking for an acquittal based upon something that sounds very much like a technicality. He’s essentially telling the jury, “Sure, my client did exactly what the prosecutor claims. But he did it only because the cops asked him really hard to do it.” Might as well blame the Tooth Fairy, or claim “The Devil made me do it.” In all the years he’d practiced and would continue to practice, Jaywalker would read of exactly one entrapment acquittal. It involved a money-laundering case made against a man named John Z. DeLorean, perhaps best known for supplying the wheels Michael J. Fox and Christopher Lloyd used to drive back to the future.
When a man’s drowning, he’s desperate enough to grab at any straw that comes drifting his way, however unlikely it is to keep him afloat. So as much as he hated to do it, the following day Jaywalker made it his business to pay another call on Daniel Pulaski, the assistant district attorney on Barnett’s case. He did so unannounced, to make sure Pulaski wouldn’t have time to prepare himself for whatever it was Jaywalker wanted. It was the same reason he went there in person, rather than making his request over the phone. He wanted to see Pulaski’s reaction when he popped the question.
Pulaski rewarded him by making him wait forty-five minutes before seeing him. “So,” he said, after they’d exchanged semipleasantries. “What can I do for you?”
“You can tell me,” said Jaywalker, “what you know about Clarence Hightower.”
“Who?”
If it wasn’t a genuine expression of complete ignorance of the name, it sure came off as a damned good imitation of one.
“Clarence Hightower,” Jaywalker repeated. “He was arrested at the same time and place as Alonzo Barnett, and by the same cops.”
“Never heard of him,” said Pulaski.
“Do me a favor and check your file.”
Pulaski looked at him as though he’d been asked for a personal loan. Jaywalker readied himself to hear “No,” or some more profane form of it. But Pulaski surprised him. “Only for you, Jaywalker,” he said. And got up, walked across the room and pulled a file out from under a stack of others.
“Why? Because I’m such a prince?”
“No,” said Pulaski. “Because you’re such a pain in the ass. And I know if I don’t do it, you’ll go over my head to my boss, or to the judge, or to the fucking mayor.”
Which Jaywalker took as a compliment, or at least as much of a compliment as the man was capable of delivering. He sat and waited while Pulaski thumbed through the contents of the file.
“Okay, here we are,” he said after a moment. “You’re right.” Then, reading from the file, “‘Hightower, Clarence. Companion case. Misdemeanor possession of heroin.’ No disposition shown.”
“Pled to a discon,” Jaywalker told him. “Time served. Never violated on his parole. Terminated early, in fact. And now he seems to have disappeared.”
“So?”
“So I want to know if he’s a CI,” said Jaywalker. “Or was on this case.” Purposely using the same initials that cops and prosecutors did for a confidential informer.
Pulaski searched the file further, until he found a pink sheet of paper. He pulled it out and studied it. Then he said, “Nope.” And when Jaywalker said nothing, Pulaski slid the sheet across the desk that separated them.
Jaywalker looked at it. There was a heading, a case number and the names of the officers involved, some of them detectives, others federal agents or state police investigators. Halfway down the page was a printed item that read “Confidential Informant,” followed by a blank. The blank had been filled in in ink, in capital letters: NONE.
So much for grasping at straws.
If Hightower hadn’t been an informant, linking his high-pressure tactics to law enforcement, then Alonzo Barnett’s entrapment defense had just gone down the toilet.
6
The red-faced, two-fisted Irishman
With Alonzo Barnett stripped of his only plausible defense, Jaywalker could easily have considered himself off the hook. Here was a defendant, after all, who continued to insist upon a trial in spite of the overwhelming odds against him. And the irony of the situation was hardly lost on Jaywalker. Last time out he’d brushed aside a client’s hesitation at rolling the dice, only to come up snake eyes. This time it was the client who was being reckless, not Jaywalker.
And the way the system was set up to work, it was Barnett’s decision to make, not Jaywalker’s. Every defendant, no matter how demonstrably guilty he may be, has an absolute right to a trial, guaranteed by the constitutions of both the United States and the State of New York. And Alonzo Barnett had made it clear that he intended to avail himself of that right. But it would be a trial in name only, an exercise in going through the motions. A charade of a trial. Over in civil court they actually have a term for it that they use when the defense literally doesn’t show up and the plaintiff’s case is permitted to come in unopposed.
An inquest, they call it.
Which is pretty much what Barnett’s trial would have been, had Jaywalker not been the lawyer for the defense. Because going through the motions was something he simply didn’t know how to do. In his world, there were no charades, no inquests. He would continue to treat Barnett’s case as an absolutely must-win trial. The actual chances of winning were irrelevant. Even the fact that there was no chance of winning was irrelevant.
“Why?” his dumbfounded listener would ask him. “Why knock yourself out on behalf of some career criminal who’s admitted his guilt, has absolutely no defense, but wants to go through with a trial out of nothing but sheer stubbornness?”
By way of an answer, Jaywalker would point out that the listener’s problem wasn’t really with the defendant’s right to a trial, however doomed. “If he insisted on exercising that right, you wouldn’t criticize me for sitting next to him and going through the motions, would you? After all, somebody’s got to do it. So to fault me for being the one to sit ther
e growing hair like some kind of Chia Pet would be the equivalent of blaming the Washington Generals just for showing up to be the designated losers to the Harlem Globetrotters, something they do night in and night out.
“You see,” Jaywalker would explain, “it’s only when I stop simply going through the motions and start to take my job seriously that you begin to have a problem. It’s not until I really try my hardest to win that you begin asking me how can I possibly represent someone I know is guilty. And my answer to you is simple.
“How can I not?”
What he wouldn’t say, and what he wouldn’t even admit to himself at the time, was that in fighting his hardest to win Alonzo Barnett’s case, Jaywalker was hoping to beat back some personal demons. The sting of that recent conviction still smarted, still kept him up at night. Suppose he could follow up losing a case he should have won—or better yet, should never have tried in the first place—by winning a dead-bang loser? Wouldn’t pulling off something like that go a long way toward evening the score? Wouldn’t it at least buy him some small measure of redemption?
All that said, without an entrapment defense, Alonzo Barnett was pretty much left with no defense at all. Jaywalker would have to settle for attacking the testimony of the prosecution’s witnesses and combing their reports—once he finally got them from Pulaski—for inconsistencies. He’d have a sample of the drugs tested by an independent chemist to make sure it was really heroin. He’d even try to line up character witnesses for Barnett, although putting them on the stand would open them up to all sorts of damaging cross-examinations.
“Tell me. Is your opinion of the defendant’s reputation affected in any way by the fact that he’s been selling heroin for the past twenty years? Or that he has five felony convictions?”
Okay, maybe no character witnesses.
But how about Barnett’s boss, the restaurant owner he’d been working for at the time of his arrest? But Pulaski would no doubt use Barnett’s employment to show he hadn’t needed to deal in drugs but had made a conscious choice born out of greed. Maybe there was some way to put the defendant’s two daughters on the stand, to show what a loving father he was?
“I see,” Pulaski would say. “And perhaps you can tell us, young lady, just why it was that your sister and you were removed from your home and placed in foster care, even before your father’s latest arrest?”
It seemed that every idea Jaywalker came up with had a downside to it, a downside that far outweighed its upside. Well, he decided, there was still Clarence Hightower. Put on the witness stand by the defense, he might be able to show the jury how reluctant Barnett had been to get back into the business of dealing. While that might have no true legal significance, it was at least something. Yet Jaywalker had already struck out trying to find Hightower. And since it turned out that the man hadn’t been working as a CI, it meant law enforcement wasn’t responsible for knowing his whereabouts or duty-bound to make him available to the defense.
Although Jaywalker prided himself on doing his own investigative work, he also recognized that there were limitations to the practice. The first was when he needed to call an investigator to the stand as a witness. The second was when he needed someone who could go to a neighborhood and blend in better than he himself could.
Jaywalker was white. Alonzo Barnett and Clarence Hightower were both black. Yes, today they’d be African-American, but this was 1986, and back then they were black. So Jaywalker picked up the phone and dialed Kenny Smith’s number.
Kenny wasn’t exactly an investigator. Not in the sense that he was licensed or had a carry permit, or would make much of an impression if ever called to testify. What Kenny was, was a former client of Jaywalker’s and a friend. And Kenny was not only black but lived up in Harlem, as had Alonzo Barnett until his arrest, and Clarence Hightower until his vanishing act.
Kenny showed up at Jaywalker’s office an hour later. Standing a full six foot five inches, at forty he still looked like the professional basketball prospect he’d once been until good friends and bad decisions had combined to derail his dreams, even if they’d failed to wipe the broad smile off his face. Kenny said he’d never heard of Clarence Hightower, but he’d be more than happy to see if he could find him.
Jaywalker handed him a subpoena, just in case Kenny were to get lucky. It wasn’t a judicial subpoena, the kind that had to be signed by a judge. Jaywalker was concerned that if he went to Levine, Pulaski might find out about it. So he’d used an attorney’s subpoena, which was just as good. Well, almost kinda sorta.
“I’m afraid the most I can pay you is a couple hundred bucks,” he told Smith, knowing that only investigators whose names were on an approved list could submit their hours and get reimbursed through the system. “But I’ll pad my voucher, make it look like I was out looking for him myself.”
“Don’t worry about it,” said Kenny. “I owe you.”
Which was true, Jaywalker would have had to admit. He’d gotten Kenny out of more than a few jams over the years. But still, didn’t Smith’s comment have an awfully familiar ring to it?
A few days later, more out of frustration than anything else, Jaywalker sat down at his desk—he’d had one in those days—and knocked out what he called a Demand for a Supplemental Bill of Particulars. In it, he asked that the prosecution be directed to furnish him a laundry list of things, including the names of trial witnesses, all reports they’d prepared and any past disciplinary actions taken against them. He wanted not only the lab reports and chemists’ notes, but the right to an independent analysis of the drugs by his own expert. He requested more specificity regarding the precise times and locations of the various sales. And then, even though he’d seen the answer with his own eyes, he asked whether any confidential informers had been involved in any way with the case. Did he distrust Daniel Pulaski? Yes, as a matter of fact. But that wasn’t the point. Pulaski was only the assistant district attorney. He’d caught the case after it had already been made by New York City detectives, New York State Police investigators and federal agents. Maybe he didn’t really know if there’d been a CI involved. Maybe that pink sheet of paper with NONE inked on it didn’t know, either.
Besides, a part of him wanted to send Pulaski a message, to put him on notice that unlike Alonzo Barnett’s three previous lawyers, this one wasn’t going to roll over and play dead. With nothing to work with, Jaywalker might not be able to win the case, but he sure was going to give it his best shot.
He received Pulaski’s response in the mail four days later. It argued that motions had already been made within the statutory forty-five-day period allowed following arraignment, responded to in a timely fashion by the People and decided by the court. Mr. Jaywalker, Pulaski pointed out, was exactly 195 days late in asking for the relief he sought.
And despite her good nature and sense of fairness, Judge Levine found herself compelled to agree the next time the case came up in front of her. But even as she denied Jaywalker’s demand as untimely, she turned to Pulaski and said, “Surely you can give him the lab reports, and the times and places of the sales, can’t you?”
“I’ll send him the lab reports,” Pulaski grunted. “The rest of the stuff he gets after we pick a jury. Just like the law requires.”
“And how about the confidential informer business?” she asked him.
“I already showed him the form that indicates there was no CI.”
“So how did this case ever get initiated?” Jaywalker asked, hoping to pique the judge’s curiosity and enlist her help. The usual route, they all knew, began with an informer telling his handlers that he knew a dealer he might be able to introduce an undercover to.
“That’s evidence,” Pulaski snapped. “You’ll find out at trial.”
“Ahh,” said Jaywalker. “The old trial-by-ambush strategy.”
“Boys, boys,” the judge scolded. Then, knowing that Pulaski was correct that he could withhold the information, but only in a technical sense, she suggested he might want
to give them a clue. “Come on,” she prodded him. “How about at least a hint or two?”
“Fine,” the A.D.A. snapped. “The case began with an anonymous tip.”
“There,” said Levine. “That wasn’t so hard, was it?”
Pulaski said nothing. Evidently it had been.
“Now,” said the judge. “Are you gentlemen sure we can’t dispose of the case?”
“I’ve offered counsel the minimum,” Pulaski was quick to point out. “Eight-to-life on an A-2.”
“And while my client appreciates the prosecution’s generosity,” said Jaywalker, “he prefers to take his chances at trial.”
“Then a trial he shall have,” said Levine. “When can you gentlemen be ready to begin? This thing’s getting almost as old as I am.”
They agreed on a date three weeks away. It actually wasn’t all that long an adjournment, considering the fact that Jaywalker had been on the case less than two months. Then again, with no defense to raise and no witnesses to call other than the defendant himself, there wasn’t all that much for him to do between now and then, either.
Not that he wouldn’t come up with enough to keep himself busy.
He spent the better part of three straight days in the Tombs with Alonzo Barnett. What began as preparation for testifying gradually turned into an extended conversation. Barnett, Jaywalker decided, would make an excellent witness. He was a good listener and an excellent storyteller. He had a nice self-effacing quality about him, an attribute that was bound to come in handy when he was forced to describe his career as a drug dealer.
Guilty as Sin Page 6
