But while Jaywalker waxed cynical, the jurors appeared to be mesmerized by the physical evidence. And while looking at four ounces of white powder may not sound like much, hearing from a federal agent that those four ounces are high-quality heroin worth five thousand dollars—or forty-five hundred, if you wanted to deduct the defendant’s cut—is bound to have an impact upon a dozen people who’ve probably never seen hard drugs in their lives. Build up to it with sealed evidence envelopes, serial numbers and initials, and then top it off by allowing the jurors to pass the items among themselves, though only under the watchful eyes of a pair of large uniformed court officers, and the overall impact is high drama. Miki Shaughnessey instinctively knew that and played it for all it was worth, but to her credit, she never overdid it. Then again, she didn’t have to.
Jaywalker began his cross-examination after the mid-morning recess. There wasn’t all that much he needed from Agent Cruz, but there were a couple of points he wanted to make.
JAYWALKER: Agent Cruz, were you involved in the surveillance of Mr. Barnett during the time period before Agent St. James joined the investigation?
CRUZ: Yes, I was.
JAYWALKER: Do you know what prompted the investigation in the first place?
CRUZ: I was told it began with an anonymous phone call.
JAYWALKER: Did you ever speak with the anonymous caller?
CRUZ: No, I didn’t. Not personally.
JAYWALKER: And in the period before Agent St. James got involved, did you see Mr. Barnett make any sales?
It would have been a dangerous question, but Jaywalker already knew the answer from the reports. “No,” said Agent Cruz, and in response to Jaywalker’s next question, he admitted that neither he nor any other member of the team had seen anything that even remotely resembled a sale.
JAYWALKER: I see. Now, during the first buy that Agent St. James made, you say you stayed in your vehicle, while your partner got out and followed Mr. Barnett on foot. Is that correct?
CRUZ: You got it.
JAYWALKER: Whose decision was that?
CRUZ: I’m not sure what you mean by that.
JAYWALKER: Well, who decided who’d stay in the car and who’d get out?
CRUZ: I did.
JAYWALKER: Based upon what?
CRUZ: I was in the driver’s seat.
JAYWALKER: That was it?
CRUZ: That was it, Counselor. Plus the fact that I had seniority.
A couple of the jurors laughed at the obviousness of the answer. But to Jaywalker the decision had been not only wrong but suspiciously wrong, and therefore probably dishonest. So at this point he was willing to put up with a little laughter.
JAYWALKER: Who was your partner that day?
CRUZ: Investigator Lance Bucknell.
JAYWALKER: Of the New York State Police?
CRUZ: That’s right.
JAYWALKER: From Plattsburgh, New York?
CRUZ: I have no idea at all where he’s from. Somewhere in upstate New York, I’d guess.
JAYWALKER: But you do have an idea what he looks like, don’t you?
CRUZ: Yes.
For the first time since they’d begun, Agent Cruz had limited his answer to a single word. It’s what sometimes happens when a slightly cocky witness begins to realize the cross-examiner is taking him somewhere that he doesn’t particularly want to go.
Not that Jaywalker knew Investigator Bucknell. He didn’t. But as usual, he’d done his homework and was willing to bet that Bucknell was the guy he’d seen earlier that morning out in the hallway talking with Cruz. Rehearsing. And from his clean-cut appearance, he certainly should have had a name like Lance Bucknell. So Jaywalker decided it was worth a shot.
JAYWALKER: Fair to say he’s blond, blue-eyed, young and about six feet four?
CRUZ: Yes.
JAYWALKER: And has “cop” written all over him?
SHAUGHNESSEY: Objection.
THE COURT: Overruled. I assume you understand the question, Agent Cruz?
CRUZ: I think I do.
THE COURT: Does he look like a cop?
CRUZ: [Shrugs]
JAYWALKER: Did it ever occur to you, Agent Cruz, that you, being a somewhat dark-complexioned Hispanic about five feet six and what—forty years old?—might have blended into the Harlem neighborhood that day just a bit better than Lance Bucknell from upstate New York?
CRUZ: [No response]
JAYWALKER: After all, you figured Mr. Barnett was going to go and get the drugs Agent St. James had ordered. Right?
CRUZ: Right.
JAYWALKER: And you knew that Agent St. James, sitting in his Cadillac, was in no position to see where Mr. Barnett was going. Right?
CRUZ: Right.
JAYWALKER: So it was left to the backup team to try to discover Mr. Barnett’s source. Right?
CRUZ: If we could.
JAYWALKER: Which, of course, is one of the major goals of any buy operation, to identify the source, the higher-up, and make a prosecutable case against him, as well. Agreed?
CRUZ: Yes.
JAYWALKER: So you decided to stay in the car and send Lance Bucknell to do the job instead. Yet you did want to identify the source of the drugs, didn’t you?
CRUZ: If at all possible.
JAYWALKER: Investigator Bucknell does know how to drive a car, doesn’t he? I mean, he is a state trooper.
CRUZ: Yes.
JAYWALKER: And who followed Mr. Barnett on foot during the second and third transactions?
CRUZ: Investigator Bucknell.
Jaywalker had gone over the reports so many times that he could recite much of them verbatim. He knew the answer before he’d asked the question. But even if he hadn’t, he would have guessed anyway. Once again, he knew from experience that the team members would have gone to great lengths to simplify things, just as they had with the twenty-minute intervals and the right-side pockets, and just as they would have with the right-handed exchanges. That way, when it came time to testify, they would know how to answer if they couldn’t actually remember, without running the risk of contradicting each other.
JAYWALKER: We already know from Agent St. James that he was never able to identify Mr. Barnett’s source. How about the backup team? Did you succeed in identifying him?
CRUZ: No, we didn’t.
JAYWALKER: But you did succeed in arresting “Stump,” didn’t you?
CRUZ: We did.
JAYWALKER: How did that happen?
CRUZ: By accident, actually. We’d just arrested Mr. Barnett and patted him down. One of the team members was about to handcuff him and read him his rights when out of nowhere, Stump walks up. So I patted him down, too.
JAYWALKER: And lo and behold, I suppose you detected something in his right pants pocket that felt like drugs. Right?
CRUZ: That’s right.
Of course it was right. It had been in the reports.
JAYWALKER: And when it turned out to be heroin, you arrested him, too?
CRUZ: Not me personally. One of the NYPD guys took that collar.
JAYWALKER: And you learned that Stump’s true name was Clarence Hightower, and that he’d done time with Mr. Barnett?
CRUZ: We learned that later.
JAYWALKER: And naturally you charged Mr. Hightower with acting in concert with Mr. Barnett, since he’d been the one who’d brought Agent St. James to Mr. Barnett in the first place, for the express purpose of buying drugs. Correct?
CRUZ: No, that’s not correct. Mr. Hightower was charged only with possession.
JAYWALKER: Felony possession? Or just misdemeanor possession?
CRUZ: Misdemeanor possession. It was a small amount of heroin, which he told us he’d bought across town and was for his own use.
JAYWALKER: And you believed him?
CRUZ: [Shrugs]
JAYWALKER: I’m sorry, I didn’t hear you.
CRUZ: Lieutenant Pascarella said we didn’t have enough on Mr. Hightower to charge him with sale. And he was in charge of things.
>
JAYWALKER: Mr. Hightower was in charge of things?
CRUZ: No, Lieutenant Pascarella was.
JAYWALKER: So you never did learn who Mr. Barnett got the drugs from. And the guy who set everything up in the first place, you never charged him in connection with any of the three sales. Right?
CRUZ: That’s right.
JAYWALKER: Who arrested Mr. Barnett?
CRUZ: I did.
JAYWALKER: Who processed him? Searched him, took his pedigree, vouchered his belongings?
CRUZ: I did.
JAYWALKER: Did you ever ask him who he got the drugs from?
This time it was nothing but a shot in the dark. Barnett had told Jaywalker that he’d never been asked about his source, which made no sense. But even if that was true, Agent Cruz could hardly admit it. Chances were he’d say that Barnett had refused to discuss the subject, asked to speak with a lawyer or gotten belligerent. But Cruz surprised Jaywalker.
“To tell you the truth, Counselor, I honestly don’t remember if I asked him or not.”
Which might have won him points with the jurors for honesty and politeness, but it really true broke a cardinal rule of drug enforcement. Still, Jaywalker decided to leave the answer alone. Not that it wouldn’t continue to nag at him, though.
“No further questions,” he said.
They broke for lunch.
“The People call Investigator Lance Bucknell,” Miki Shaughnessey announced when the trial resumed that afternoon. And the moment Bucknell entered the courtroom, the jurors nodded in recognition. Apparently they had taken to heart Jaywalker’s point that Investigator Bucknell’s all-American looks hardly equipped him to blend in with the brothers in Harlem.
Because of that, Jaywalker was curious as to exactly why Shaughnessey had decided to call Bucknell. The best guess he could come up with was that she’d thought the investigator’s good looks would help win over the women on the jury. Or perhaps it was a desire on her part to bring in a representative from the third and final agency that had made up the joint task force, the New York State Police. Ten minutes into Investigator Bucknell’s testimony, it occurred to Jaywalker that Shaughnessey might be playing defense with her witness, using him to preempt any further attack by Jaywalker on the failure of the backup team to identify Alonzo Barnett’s source of supply. But if that was her goal, she’d picked a strange witness to do it with.
SHAUGHNESSEY: Did there come a time during the course of that first buy, Investigator Bucknell, when you got out of your surveillance vehicle and followed the defendant on foot?
BUCKNELL: Yes, ma’am.
SHAUGHNESSEY: And were you able to see where he went?
BUCKNELL: Yes, ma’am, I was. He walked to number 345 West 127th Street, a large apartment building on the uptown side of the street.
SHAUGHNESSEY: What did he do when he got there?
BUCKNELL: He walked through the outer set of doors into a vestibule area. There he appeared to press a button on a large board of names. A moment later he appeared to be speaking over an intercom system. Then he stepped to the inner set of doors and, after a second or two, pushed one of those open, entered the lobby and disappeared from my view.
SHAUGHNESSEY: Did you attempt to follow him into the building?
BUCKNELL: No, ma’am. Not on this occasion.
SHAUGHNESSEY: How about on the second buy? Did you also follow him on foot during that event?
BUCKNELL: Yes, ma’am. On the second buy I followed him to the same building. And after I saw him get buzzed in, I entered the vestibule. But I found the inner doors locked, and I was unable to proceed farther. Eventually someone came out of the building and I was able to gain entry as she exited, but by that time the defendant was nowhere in sight.
SHAUGHNESSEY: And on the third buy?
BUCKNELL: On the third buy, anticipating that the defendant would go to the same building, I wore a disguise and stationed myself inside the lobby even before his arrival.
SHAUGHNESSEY: How did you get inside the lobby?
BUCKNELL: I slipped the lock with a credit card.
SHAUGHNESSEY: And did there come a time when you saw Mr. Barnett?
BUCKNELL: Yes, ma’am. About twenty minutes later he entered the vestibule area from outside the building, pressed a button on the board and was buzzed in.
SHAUGHNESSEY: Were you able to see which button he pressed?
BUCKNELL: No, ma’am.
SHAUGHNESSEY: What happened next?
BUCKNELL: The defendant walked to one of the elevators, pushed the button and got on when the door opened. I…I got on behind him. I waited for him to push a floor button so I could push a higher one and see where he got off. But he pushed twelve, which was the top floor. I pushed ten, so it wouldn’t look like I was following him. When the elevator door opened on ten, I figured I better get off. I looked around for the stairs, but it took me a moment to find them, and by the time I did and ran up to the twelfth floor, the defendant was out of sight.
Even as Jaywalker struggled to jot all that down in his own cryptic version of shorthand, he could feel his client nudging his elbow to get his attention. Jaywalker put him off for a moment, afraid he might miss something. Other lawyers solved the problem by instructing their clients to pass them notes whenever necessary. Jaywalker discouraged the practice, fearful that a note-taking defendant might be perceived by the jurors as a jailhouse lawyer, a smart-ass who thought he knew better than his lawyer. So only when he’d finished his note-taking did Jaywalker lean his head toward his client and ask him what he wanted.
“He’s lying,” Barnett whispered. “I went to the eighth floor. And I’ve never seen this guy in my life. Believe me, I’d remember.”
Interesting.
SHAUGHNESSEY: Did you stay there on the twelfth floor, Investigator Bucknell, in order to see which apartment Mr. Barnett came out of?
BUCKNELL: No, ma’am. I was afraid it would look too suspicious for me to still be there. Also, I could see the apartment doors had peepholes, and I was afraid I’d be visible standing there. So I left and went back downstairs and out of the building.
Shaughnessey left it there, concluding her questioning of the witness. She evidently figured that the jurors would understand that the obstacles Investigator Bucknell had run into would have stymied any member of the backup team.
As Jaywalker rose to cross-examine Bucknell, he knew better.
He knew better because on at least half a dozen occasions in his DEA days he’d encountered the same problem, or a pretty close cousin of it. Once he and another agent had gotten hold of a couple of elevator repairman uniforms and a bunch of cast-iron test weights, just so they could see what floor a dealer was heading to. On the next buy they’d hidden in a utility closet on that floor, cracking the door ajar just enough to see which apartment the guy entered. During another investigation, knowing it would be only a matter of time until they zeroed in on a particular apartment in a ten-floor building, Jaywalker had been confident enough to set up an office pool, copying the names from the tenant board onto slips of paper, putting them in a hat and charging five bucks a pick against a chance to win $250. Stymied? Stymied was nothing but a state of mind, a seeing-the-glass-half-empty sense of defeatism.
JAYWALKER: Have you ever made any undercover buys, Investigator Bucknell?
BUCKNELL: Yes, sir. I have.
JAYWALKER: Where was that?
BUCKNELL: It was at a NASCAR event in Watkins Glen.
JAYWALKER: Where’s Watkins Glen?
BUCKNELL: It’s in Schuyler County, New York. That’s over in the Finger Lakes region.
JAYWALKER: And what kind of drugs did you buy there?
BUCKNELL: It wasn’t drugs, sir. I bought a beer from a vendor when I was still a probationary trooper and not yet twenty-one years old. So it was illegal for him to sell alcohol to me.
JAYWALKER: I see. Anything else?
BUCKNELL: No, sir.
JAYWALKER: Any idea why not?
&nb
sp; BUCKNELL: Why not what?
JAYWALKER: Why you haven’t been given more undercover assignments?
BUCKNELL: They keep telling me I’m too clean-cut looking for undercover work. I’m working on it, though.
[Laughter]
JAYWALKER: And the disguise you mentioned earlier. Was that part of your working on it?
BUCKNELL: Yes, sir. Exactly.
JAYWALKER: May I ask what you disguised yourself as?
He expected to hear “a black man” or “a kid stoned on crack,” or something like that. Maybe even a meter reader from Con Ed, or a cable TV installer, both of which Jaywalker had impersonated in his DEA days.
BUCKNELL: An encyclopedia salesman.
JAYWALKER: Excuse me? You went in there carrying a set of encyclopedias?
BUCKNELL: Not exactly. I did carry a briefcase, though. And it was definitely big enough to hold several volumes.
JAYWALKER: Sell any of them?
It was a dumb question, and Jaywalker was sorry he’d asked it as soon as it came out of his mouth. The last thing he wanted was to make fun of the witness and get the jurors feeling sorry for him. So when Miki Shaughnessey stood up, Jaywalker hastily apologized and withdrew the question even before the judge could sustain the objection.
Still, it was frustrating. There’d been a time early on in his involvement in the case when Jaywalker had hoped to learn that Clarence Hightower had been acting as a government informer when he’d prevailed upon Alonzo Barnett to bring him to somebody who was dealing weight. Had that been the case, Jaywalker would have had a viable entrapment defense for Barnett. But those hopes had been dashed by the disclosure about the anonymous caller and the form Daniel Pulaski had shown him indicating that no CI had been used in the case. Even so, it continued to look as though the task force had gone to great lengths to keep Hightower out of the case, rather than tie him to it, as might have been expected.
Now the same thing was happening at the other end. Both the undercover agent and the backup team should have been doing everything they possibly could have not only to find out who Barnett had gotten the drugs from but to make a case against that guy, as well. Surely they had black officers who could have gone into the building without arousing suspicion. Even Angel Cruz could have done the job. So what had they done? They’d gone and picked a guy whose white-bread WASPy looks all but guaranteed that he’d fail. And that “disguise” business of his? That had been nothing but a joke, a joke so lame that Jaywalker had succumbed to sarcasm.
Guilty as Sin Page 11
