Because the content of the conversation was hearsay and therefore inadmissible, the phrase “as a result of” improperly asked the jurors to infer the nature of the conversation. Not that they wouldn’t anyway, Jaywalker knew. But he wanted to see how Miki Shaughnessey reacted to being thrown off her rhythm. Unfortunately, Judge Levine, even while sustaining Jaywalker’s objection, proceded to coach Shaughnessey on how to cure the defect.
THE COURT: Yes, sustained. The proper way to phrase the question, Miss Shaughnessey, is “Following that conversation…”
SHAUGHNESSEY: I’m sorry. Following that telephone conversation, did you do something?
PASCARELLA: Yes, I did.
SHAUGHNESSEY: Please tell us what you did.
With that open-ended invitation, Lieutenant Pascarella proceeded to recount how he’d opened an investigation under the authority of the Joint City, State and Federal Task Force into the suspected drug dealings of a subject known up to that point only as John Doe “Gramps.”
SHAUGHNESSEY: Why John Doe “Gramps”?
PASCARELLA: The “John Doe” was because we didn’t know his real name yet. The “Gramps” was because he was an older gentleman who’d been seen with a couple of children, both girls, who we assumed were his granddaughters.
SHAUGHNESSEY: Did you later learn that your assumption was incorrect?
PASCARELLA: Yes. We found out at some point that they were actually his daughters.
The investigation had begun with surveillance of “Gramps.” A total of eleven men and one woman had participated. In short order, according to Lieutenant Pascarella, members of the task force succeeded in “taking the subject home.”
SHAUGHNESSEY: What do you mean by that?
PASCARELLA: I mean we established where he was living, at 562 St. Nicholas Avenue. That in turn allowed us to check telephone listings and utility records. And although it turned out the subject had no phone, we were able to identify him through Con Edison records.
SHAUGHNESSEY: Did you learn his true name?
PASCARELLA: Yes, we learned that his name was Alonzo Barnett. From that we were able to obtain a photograph of him from NYPD files.
Which normally would have had Jaywalker on his feet objecting and even moving for a mistrial. To anyone with half a brain, implicit in the witness’s answer was the fact that the defendant had a prior record, something the prosecution is normally prohibited from revealing, unless and until the defendant takes the stand.
But Jaywalker had long ago decided that this was one of those trials in which the defendant had to take the stand. Knowing that, he’d spent a good portion of jury selection laying out Barnett’s record in considerable detail, complete with his many convictions for sale and possession of drugs. So now, as Miki Shaughnessey began asking her witness about those convictions, Jaywalker kept his silence. That said, he did nod once or twice, his way of reminding the jurors that he’d told them so, and that they, for their part, had assured him they’d still be able to decide the case on the basis of the evidence.
SHAUGHNESSEY: Did you learn anything else from the NYPD records?
PASCARELLA: Yes. We learned that Mr. Barnett had a number of prior convictions for selling drugs in fairly substantial quantities.
SHAUGHNESSEY: How was your surveillance of the defendant conducted?
PASCARELLA: Several ways. By having plainclothes officers follow him on foot, and by using unmarked vehicles. Also watching him through high-powered binoculars from an outpost in a building directly across the street.
SHAUGHNESSEY: And was the surveillance successful?
PASCARELLA: Up to a point, it was. We succeeded in observing Mr. Barnett go to various places and meet with different individuals. But he was extremely wary. It was almost as if he knew he was being watched and had constructed an elaborate cover to hide his illegal activities. He’d adopted what appeared to be a very simple lifestyle, and he made it a point to conduct whatever business he was engaged in in a way that we were never able to observe an actual drug deal or anything like that.
SHAUGHNESSEY: So what, if anything, did you do?
PASCARELLA: We—I made a decision to enlist the services of an undercover officer in order to attempt to make a direct purchase of drugs from Mr. Barnett.
SHAUGHNESSEY: Whom did you select for that role?
PASCARELLA: Because Mr. Barnett had operated off and on in the area for so many years and with so many individuals, I felt it would be best if we brought in someone from another city altogether, someone who could pose as an out-of-town dealer. We selected a DEA agent stationed in Philadelphia, a man with extensive undercover skills and experience. He also happened to be a black man, like Mr. Barnett.
With that, Miki Shaughnessey announced that she had no further questions, walked to the prosecution table and sat down.
Jaywalker didn’t have a lot of cross-examination for Lieutenant Pascarella, but there were a few things he wanted to establish. He began with the September, 1984, phone conversation the witness had said he’d had with a civilian.
JAYWALKER: What was the individual’s name?
PASCARELLA: I don’t know. He refused to give it to me.
JAYWALKER: But it was a male?
PASCARELLA: It certainly sounded like a male.
JAYWALKER: Did you ever learn how he’d known to ask for you?
PASCARELLA: He hadn’t known. The call came in to our main number. A secretary routed it to me.
JAYWALKER: What did the caller tell you?
It was the kind of question most lawyers would never have asked, because it was begging for trouble. But Jaywalker wasn’t most lawyers, and he’d long ago decided to throw caution to the wind in this particular case. When you’re ahead, it’s fine to be careful and play conservatively. When you’re not, the only thing that playing conservatively guarantees you is a conviction. And Jaywalker was anything but ahead in this trial.
PASCARELLA: He told me there was this guy dealing drugs, specifically heroin, in large amounts. And that he could often be seen hanging out with a couple of young girls on the stoop of a particular address, 562 St. Nicholas Avenue, in Harlem. That he was a black male, about fifty years old, with graying hair.
JAYWALKER: That was it?
PASCARELLA: That was it.
And Jaywalker knew it was, having examined the note Pascarella had made of the conversation even while the anonymous caller had still been on the line. Though that fact didn’t stop Jaywalker from bringing out now what the caller hadn’t said then.
JAYWALKER: So he never identified himself in any way? Never told you he was a friend of the guy, for example, or a neighbor, or a customer or a competitor?
PASCARELLA: No.
JAYWALKER: Did you ask him?
PASCARELLA: I tried, but he didn’t give me time. He hung up the phone.
JAYWALKER: Were you able to trace the call, to learn the number and location it came from?
PASCARELLA: Only that it came from a pay phone.
JAYWALKER: Was the conversation taped?
PASCARELLA: Taped? No.
JAYWALKER: Why not?
PASCARELLA: Happened too fast.
JAYWALKER: I see. Can you tell us how long your team conducted surveillance of Mr. Barnett?
PASCARELLA: All told?
JAYWALKER: Yes.
PASCARELLA: I’d say a good hundred hours, maybe, spread out over a week.
JAYWALKER: And in all of that time, how many sales were the surveillance team members able to observe?
PASCARELLA: The surveillance team members?
JAYWALKER: Yes, the eleven men and one woman who conducted the surveillance on foot, in cars and through high-powered binoculars from an outpost.
PASCARELLA: None.
JAYWALKER: So these dozen surveillance officers from three different agencies spent a hundred hours over an entire week. Yet never once did even one of them see what some anonymous civilian caller had claimed to have seen with his naked eye?
Shaughnessey’s objection was sustained, and rightfully so. Technically speaking, the caller had never claimed to have seen an actual sale take place. And the question was argumentative.
JAYWALKER: But you say the surveillance officers were successful up to a point. Right?
PASCARELLA: I’d say so.
JAYWALKER: After all, they did manage to figure out that Mr. Barnett lived at the same address as the stoop he occasionally sat on?
PASCARELLA: [No response]
JAYWALKER: And that the two girls were his own daughters?
PASCARELLA: Yes.
JAYWALKER: Did they also discover, by any chance, that he worked for a living, at a legitimate job?
PASCARELLA: Yes.
JAYWALKER: As a cook at a restaurant?
PASCARELLA: Yes.
JAYWALKER: That he occasionally took his daughters to the park or to a museum?
PASCARELLA: Yes.
JAYWALKER: That he attended Friday religious services?
PASCARELLA: Yes.
JAYWALKER: Tell me, Lieutenant. You ascribed Mr. Barnett’s refraining from conducting his drug business in open view to his being “wary.” Did it ever occur to you that it could be more simply and accurately attributed to the fact that he wasn’t conducting any drug business at all?
PASCARELLA: I’m convinced he was dealing.
JAYWALKER: That’s nice, I’m sure, but it’s not what I asked you. My question was, did it ever—even once—occur to you that maybe Mr. Barnett wasn’t dealing? That the reason you weren’t seeing anything was because there was nothing to see?
PASCARELLA: No.
JAYWALKER: How about Mr. Barnett’s simple lifestyle? You say that was an elaborate cover. Did it ever occur to you that it wasn’t a cover at all? That in fact it was nothing more than the manifestation of a very simple life lived on a very modest income?
PASCARELLA: No.
JAYWALKER: What’s a “CI,” Lieutenant?
PASCARELLA: A confidential informer.
JAYWALKER: Did you ever attempt to enlist the services of a CI in this case? You know, have an informer approach Mr. Barnett and either try to buy drugs from him or try to introduce an undercover officer to him for the purpose of buying drugs?
PASCARELLA: With a CI? No.
JAYWALKER: Yet isn’t that how it’s usually done?
PASCARELLA: Sometimes. I don’t know about “usually.”
JAYWALKER: [Holding up a sheet of paper] How about, let me see, how about in 97.3 percent of all direct sale cases made in New York County over the past forty-eight months?
PASCARELLA: If you say so.
JAYWALKER: I just did. What I’m asking is, do you agree with what I just said, or do you disagree? [Waves sheet of paper]
PASCARELLA: I agree, I guess.
JAYWALKER: But that’s not how it was done in this particular case.
PASCARELLA: No.
JAYWALKER: This was one of those…let’s see, 2.7 percent of cases where you decided to skip the use of a confidential informer altogether. Right?
PASCARELLA: I guess so.
JAYWALKER: And why was that?
PASCARELLA: Because the subject was too hinky, too careful. I was afraid that if we used a CI, it might scare him off.
JAYWALKER: I see. And yet this is the same subject who the anonymous caller told you he could tell was dealing heroin, the same subject who could be found right out in the open on the front stoop of what turned out to be his own apartment building, sitting there with two girls who turned out to be his own daughters. Is that—
The rest of the little speech was drowned out by Miki Shaughnessey’s objection and Judge Levine’s sustaining it. But that was okay. By that time Jaywalker had spent twenty minutes with Dino Pascarella, flirting with fire without getting burned too badly. Not that he’d ever quite demonstrated that anything the witness had said was untrue. But if Jaywalker was lucky, maybe he’d piqued the interest of someone in the jury box. Someone who was open to the possibility that a cop—even a cop with the word Lieutenant plunked in front of his name—was capable of stretching things to the breaking point and beyond.
As soon as Pascarella left the courtroom, Judge Levine declared a recess and excused the jury for lunch. Including opening statements, they’d been working for close to two hours already. But before the judge could leave the bench, Miki Shaughnessey was on her feet asking for an opportunity to examine the statistic sheet.
“The what?”
“The piece of paper Mr. Jaywalker read from,” said Shaughnessey. “You know, when he recited the statistics about the use of confidential informants. I think I have a right to see it, and even have a copy of it.”
“Mr. Jaywalker?” said the judge, looking his way.
Without objection he handed Shaughnessey the sheet he’d held aloft and then waved in the witness’s direction moments earlier. She took it from him and stared at it, turning it over several times before looking up and complaining that there must be some mistake, that what she’d been given was nothing but a blank piece of paper.
“Why am I not surprised?” sighed Judge Levine. “As the trial progresses, Miss Shaughnessey, I think you’ll find yourself getting used to Mr. Jaywalker and his, shall we say, unorthodox way of doing things.”
Shaughnessey’s reaction was to shoot Jaywalker a dirty look before turning and storming out of the courtroom.
That afternoon, after finally calming down, she accused him of taking advantage of her. But as he pointed out, that had hardly been the case. If anyone had been taken advantage of, it had been the witness. And with respect to him, all Jaywalker had done was to trick him into admitting the truth, that the vast majority of direct sale cases did in fact depend upon the use of an informer for an initial introduction. The phantom-statistic tactic had been no different, say, from encouraging a witness to believe you had a video recording of his actions, so that he’d be less tempted to lie about them. Clever? Sure. Devious? A bit. But unethical or improper? Hardly. Like any other witness, Lieutenant Pascarella had been called to the stand with the expectation that he would tell the truth. Jaywalker had simply made sure he did so.
Still, even allowing for the points he’d scored on cross-examination, Jaywalker would have been lying if he told himself that Pascarella hadn’t hurt the defense. In not objecting to the testimony about the anonymous call, he’d allowed the jury to hear that at least one person besides the police had reason to conclude that Alonzo Barnett was selling heroin. And Jaywalker’s decision to call his client as a witness had opened the door for Shaughnessey to remind the jury of the details of Barnett’s criminal record, including his multiple past convictions for the exact same crime on which he was now standing trial.
The fact that precious few jurors tend to be heroin dealers themselves means that the drug sale defendant starts with one strike against him before he even comes up to bat. Throw in an anonymous observation that he’s been dealing, and you may as well call that strike two. Add the fact that he’s been caught doing the same thing over and over again for just about his entire adult life and, well, you get the picture. So what if Dino Pascarella hadn’t been the best witness of all time? How good did he really have to be? Especially with the undercover agent coming up next, with all of his “extensive skills and experience.”
8
The man from Philadelphia
“The People call Trevor St. James,” Miki Shaughnessey announced when the trial reconvened that afternoon.
All eyes turned as a court officer led a large black man into the courtroom through a side door. He was wearing a dark suit over a brown turtleneck sweater, and—best of all—he sported a pair of mirrored sunglasses.
Somewhere, no doubt, there’s a courtroom lit brightly enough, whether by Mother Nature or General Electric, that eye protection is advisable. Most likely that courtroom is in Southern California, Florida or someplace even closer to the Equator. As for the fifteenth floor of 100 Centre Street, anyone wearing sunglasses there i
s either legally blind or hiding behind them.
Keep them on, Jaywalker telepathically begged the witness. He’d actually heard lawyers object that they couldn’t see a witness’s eyes through a pair of dark lenses and succeeded in getting a judge to order them removed. It was something he himself would never do, especially with mirrored sunglasses. Never mind that they added a little something to the undercover mystique that enveloped the witness as he made his way to the stand. Sooner or later the jurors would get over that and begin to think of the shades as a prop, and the wearer as having something to hide besides his eyes.
And then, as though on cue, as soon as Trevor St. James had finished swearing to tell the truth, the whole truth and nothing but the truth, he removed the sunglasses, folded them and slipped them into the outer pocket of his suit jacket as he took his seat. So before he’d even begun his testimony, the guy had treated the jurors to a glimpse of his street image and then unmasked himself as one of them. Nice touch, thought Jaywalker, wondering if St. James had scripted it, or Shaughnessey.
SHAUGHNESSEY: By whom are you employed, Mr. St. James?
It would be the only time in the entire trial that she addressed or referred to him as “Mr.”
ST. JAMES: I’m employed by the Drug Enforcement Administration, which is a division of the United States Department of Justice.
SHAUGHNESSEY: In what capacity?
ST. JAMES: As a drug enforcement agent.
SHAUGHNESSEY: How long have you been so employed?
ST. JAMES: Nine and a half years.
SHAUGHNESSEY: And as a DEA agent, is part of your work performed in an undercover capacity?
ST. JAMES: Yes. It’s actually a fairly large part of my work.
Shaughnessey had the witness describe what undercover work entailed. His explanation couldn’t have been news to anyone in the courtroom by this time, seeing as both lawyers had discussed the subject at some length during jury selection, and Shaughnessey had gone into it again in her opening statement. Still, it made for pretty good listening. Jaywalker had discovered long ago that jurors tend to be fascinated by everything about the world of bad guys. And here they were, about to be treated to an inside tour of that world from a bad guy who was really one of the good guys. What could possibly be better for the prosecution—and worse for the defense?
Guilty as Sin Page 8
