JAYWALKER: Dr. Kasmirov, I hand you this item and ask you to take a look at it.
KASMIROV: [Complies]
JAYWALKER: Have you seen it before?
KASMIROV: No, I don’t believe so.
JAYWALKER: Are you able to tell us what it is?
KASMIROV: Yes. It’s a lab report prepared by someone at the police department’s lab. It describes an analysis of drugs recovered from a man named Clarence Hightower, also known as “Stump,” at the time of his arrest.
JAYWALKER: I offer it in evidence.
Now by rights Miki Shaughnessey could have objected. For one thing, it was hearsay, since Jaywalker hadn’t subpoenaed anyone from the lab to authenticate it as a business record. There simply hadn’t been time for him to do it the right way. Beyond that, its relevance was far from clear.
But one of the things that happens when the defense allows the prosecution to do things without objection is that the prosecutor—particularly a young and inexperienced prosecutor—feels compelled to match that display of goodwill. Jaywalker was betting that the last thing Shaughnessey wanted to do was seem threatened by a piece of paper. She had a winner of a case, an open-and-shut conviction. Would she dare jeopardize that by being perceived as fighting to keep evidence out of the trial?
SHAUGHNESSEY: No objection.
THE COURT: Received as Defendant’s A.
JAYWALKER: Thank you. What does this lab report tell you, Dr. Kasmirov?
KASMIROV: It tells me that what was recovered from Mr. Hightower had a net weight of one-eleventh of an ounce plus 4.6 grains. They use avoirdupois weight over there.
JAYWALKER: And the metric equivalent?
KASMIROV: [Using calculator] Let me see. It comes out to just about two and a half grams. Aha!
If any of the jurors had missed the significance, there was Olga Kasmirov’s spontaneous “Aha!” to highlight it for them. Was it just a coincidence that Clarence Hightower had ended up with the exact amount of heroin in his pocket that had mysteriously disappeared from the ounce Agent St. James had received from Alonzo Barnett on the second buy?
But Jaywalker was only halfway there.
JAYWALKER: Now, the lab report tells you still more, doesn’t it, Dr. Kasmirov?
KASMIROV: Like what?
JAYWALKER: Like what else was in those two and a half grams besides heroin. Right?
KASMIROV: [Examining report] Right.
JAYWALKER: What else was in there?
KASMIROV: [Reading] Lactose, dextrose and quinine. Although it doesn’t say how much of each.
JAYWALKER: Yes, too bad about that.
SHAUGHNESSEY: Objection.
THE COURT: Sustained. Strike the comment.
JAYWALKER: What is lactose?
KASMIROV: Lactose is milk sugar.
JAYWALKER: And what is dextrose?
KASMIROV: Dextrose is sugar from fruits or vegetables. In this case it’s most likely from corn syrup.
JAYWALKER: What are they doing in heroin?
SHAUGHNESSEY: Objection. How can she say?
JAYWALKER: She’s an expert. I’m asking her to give us her opinion.
THE COURT: Yes, overruled. You may answer the question if you can.
KASMIROV: A seller will add either lactose or dextrose to heroin as a diluent, to bulk up the heroin and make more of it. At the same time, it reduces the strength of the heroin, brings it down to a level where it can be safely injected or snorted by the user. Though it’s a bit unusual to see both lactose and dextrose present in a single sample. It’s redundant. They do exactly the same thing.
JAYWALKER: And quinine. What’s that?
KASMIROV: Quinine is a salt made from an alkaloid from the bark of a tree. It used to be used to treat malaria. Although I forget the name of the tree right now.
JAYWALKER: How about the cinchona?
KASMIROV: That’s it.
JAYWALKER: And what’s quinine doing in there?
KASMIROV: Lactose and dextrose are sugars. Add enough of either one and the sweetness becomes detectable. The buyer will know the percentage of heroin isn’t what it should be. Quinine, on the other hand, is bitter. It cuts the sweetness, like lemon would cut the sweetness in sugared tea. By adding a little quinine to counteract the sugar, it’s possible to fool someone who tastes the drug into believing it contains more heroin than it really does.
JAYWALKER: I see. Now, with respect to your own analyses, Dr. Kasmirov, the three that you made. Did you find substances other than heroin?
KASMIROV: Yes, I did.
JAYWALKER: And unlike the police chemist, did you quantify the various substances you found in each analysis?
KASMIROV: Yes.
JAYWALKER: Please tell us what you found.
Even as the witness began reading from her lab reports, Jaywalker produced a huge piece of white-oak tag he’d brought along with him that morning and a thick black marking pen. By the time Dr. Kasmirov was finished answering and he was finished writing, he had diagrammed her testimony for all to see. What it showed was that there was no discernible difference in the 2.55 grams of heroin seized from Hightower and the 2.55 grams of heroin that were unaccounted for in the second buy made from Alonzo Barnett. Not in terms of weight, strength or additives. Right down to the redundant lactose and dextrose.
On redirect, Miki Shaughnessey got Dr. Kasmirov to agree that, absent a breakdown of the percentages of heroin, lactose, dextrose and quinine in the drugs seized from Clarence Hightower, it was nothing more than speculation that they’d come from the second Barnett sale. After all, weren’t those three additives very common ones? Yes, they were, Kasmirov agreed. “And,” Shaughnessey asked her, “regardless of whatever Hightower possessed or didn’t possess, is there any question in your mind that what Alonzo Barnett sold twice and was caught with on a third occasion contained heroin?”
“No,” Dr. Kasmirov replied. “About that there’s absolutely no question at all.”
That night, as Jaywalker lay in the darkness on his side of the bed, too tired to keep his eyes open but too wired to sleep, his wife asked him about the chart he’d brought home with him.
“What does it show?” she wanted to know.
“It shows that this guy Hightower ended up with some of the identical heroin that Barnett sold to the undercover.”
“I understand that,” she said. “But what does that show? What does it mean? What’s the jury supposed to make of it?”
“It could mean Barnett gave him some of it,” said Jaywalker. “But Barnett swears he didn’t.”
“And of course you believe him.”
It was one of their private little jokes, that Jaywalker invariably believed whatever his murderers, rapists, thieves and drug dealers told him. Not always, he’d tell her. But once they’d gotten to know him and trust him? Once they understood that he was really on their side and would fight for them even if he knew the full truth? Yeah, then they’d tell him the truth.
Almost always.
“Suppose Hightower had simply bought some of the same stuff?” she asked him. “Directly from the same guy Barnett was buying from?”
“Didn’t happen,” he assured her. “Barnett insists his source wouldn’t sell to anyone but him. Refused to even meet with Hightower, or with his so-called friend from Philadelphia. It’s the only reason Barnett’s in the hot seat now.”
“So what, then?”
“I don’t know,” Jaywalker confessed. “Maybe the agents thought Hightower was a pain in the ass, coming up on them like he did while they were trying to arrest Barnett. Those can be scary situations. Buncha white guys surrounding a brother in the middle of Harlem. Who knows? Maybe they got pissed off and flaked him.”
“Flaked him?”
“Took some of the drugs they’d skimmed off from the second buy and planted it on Hightower.”
“They do things like that?” she asked.
“Occasionally.”
“Did you?”
“Moi? No. But I
know that kind of thing used to happen back then, and I’m sure it still happens today.”
“Great system you work in,” she said. And even in the dark, he could feel her turning away from him.
“So what am I supposed to do? Pretend I don’t know stuff like that goes on? Not argue that cops lie? Roll over and give up?”
“No,” she said, her voice softening. “What you’re supposed to do is roll over and try to get some sleep.”
Which turned out to be easy for her to say. For another hour Jaywalker continued to lie in the darkness, listening to the rise and fall of his wife’s breathing. He’d been able to go only so far with Olga Kasmirov and her lab reports, he knew. Even as he’d been busy with his chart-making, he’d noticed blank stares coming his way from the jury box. Sure, he’d had them there for a moment when the numbers had matched perfectly, Hightower’s drugs with what was missing from Barnett’s. But his wife was right, as she almost always was. What inference were the jurors supposed to draw from that match that could possibly steer them in the direction of acquitting Alonzo Barnett? Especially when Jaywalker himself couldn’t come up with an answer to that question.
He lay awake for another forty-five minutes. At one point he reached down to the floor by his side of the bed and groped around until he found the pen and pad of paper he always kept there. Blindly, he scribbled down two words. It was the last thing he remembered before finally falling asleep.
12
Hightower
Helping his wife make their bed that Saturday morning, Jaywalker stepped on something with his bare foot. When he bent down to see what it was, he found a crumpled piece of paper with scribbling on one side of it. It took him a moment to recognize his own handwriting and another moment to decipher it.
Call Miki
was all it said. With no pockets in his pajama top—and no pajama top, either, for that matter—he held on to it and didn’t put it down until he got to the kitchen. There he poured himself a glass of iced tea and grabbed a handful of Cheez-It crackers. Breakfast, Jaywalker style.
“So who’s this Miki?” his wife wanted to know.
“The D.A. I’m up against,” he said between mouthfuls.
“You’re going to call her on a weekend?”
“Yeah,” said Jaywalker. “I got an idea.”
His wife rolled her eyes but said nothing more. She was familiar with Jaywalker and his ideas. It was when he was most creative that he was also most dangerous. Like the time he’d decided their living room needed a fireplace. For two full years they’d lived with a blue plastic tarpaulin draped over an entire wall. But eventually they’d ended up with a pretty cool fireplace. So she’d learned to get out of the way and give her husband room while she feared for the worst and hoped for the best.
It took him a while to get hold of Miki Shaughnessey’s home phone number, because, like those of all A.D.A.’s, it was unlisted. But with a little lying and cajoling, he got it.
“How’d you get my number?” was the first thing she wanted to know.
They spent a few minutes on that, before moving on to the purpose of Jaywalker’s call. “I want you to have Clarence Hightower’s drugs tested by Dr. Kasmirov, so we can hear the percentages of the various additives. That way we’ll know for sure if there’s a match.”
“What difference could it possibly make?”
His wife couldn’t have said it better.
He spent the next five minutes trying to convince Shaughnessey that it did make a difference. He even went so far as to try out his flake theory on her. But if her reaction was any indication of what the jury’s might be, it left Jaywalker with second thoughts about whether his argument would fly.
Finally she relented, but he strongly suspected it was just to get him off the phone. And even then, all she said was that she’d run it by her supervisor.
“Promise?” he asked, reduced to begging.
“Promise.”
“Cross your heart and hope to die?”
“Stick a needle in my eye.”
First thing Sunday morning, Jaywalker got a call from his former client Kenny Smith. Naturally Smith had his home number. All his clients and former clients did. It was what you did when you refused to own a cell phone but still wanted to be accessible to important people. Like your clients on Rikers Island, say.
“What’s going on?” Jaywalker asked Smith.
“Can we talk?” Kenny asked.
Ever since his voice had been identified on a wiretap ten or twelve years back, Smith had been totally paranoid about saying more than hello and goodbye on the phone. And while Jaywalker considered it unlikely that anyone might be listening in on either of their phones, he wasn’t willing to bet on it, having made an enemy or two in law enforcement over the years. Besides, he had absolutely no idea what Kenny was about to tell him. The last thing he wanted to do was assure him it was okay to talk, only to hear a murder confession and then have it played back in court six months from now.
“Have you had breakfast?” he asked Kenny.
“No. You wanna meet somewhere?”
“Nah,” Jaywalker told him. “Come on over here.”
And the thing was, he didn’t even need to give Kenny the address. “Do me a favor,” he told his wife. “Make some more of whatever you’re making?” It was a drill she’d become familiar with over time. It came down to a choice of having strange people drop over from time to time, or having her husband go out even more than he did to meet them in what she considered scary neighborhoods. So she reached into the refrigerator for a couple more eggs.
“It’s Kenny,” he told her.
Make that four more eggs.
It was only while he was putting a third plate on the kitchen table that Jaywalker realized why Kenny had called him. A week or two ago he’d asked Smith to look around and see if he could locate one Clarence Hightower, more commonly known as Stump. No doubt Kenny was coming to report on his progress—or lack of it. That was certainly something they could have discussed on the phone, wiretap or no wiretap. But no big deal. It was only four eggs, five pieces of toast and a quart of coffee, after all. He’d once gone so far as to suggest to his wife that she learn how to make grits, but she’d drawn the line at that.
Kenny showed up an hour later. “So you want the good news?” he asked Jaywalker. “Or the bad?”
“Both.”
“The good news,” said Smith, “is I found your man Hightower. The bad news is he ran away before I could lay the suspeena on him.”
Kenny had a problem pronouncing certain words. Not that it would have disqualified him from becoming President or anything like that.
“Ran away?”
“Bet.”
Back in 1986, bet passed for Yes. As in you bet.
“And check this out,” said Kenny between mouthfuls. “’Cordin to people who knows him, dude was gettin’ some sorta allowance from someone. Ev’ry Friday, he’d come around with, like, a hundred bucks in his pocket—cash money.”
“Welfare?” Jaywalker asked. “SSI?”
“You ain’t lissenin’, Jay. I said ev’ry week, not ev’ry two weeks or ev’ry month.”
“So what was it?”
“I dunno what it was,” Kenny admitted. “I only know what he tol’ people it was.”
“And what was that?”
“Tol’ people it was from workin’ for his uncle.”
“So?” asked Jaywalker.
“So I axed around,” said Kenny. “And far as anyone knows, the guy never worked a day in his life. And he don’t even have no uncle.”
Jaywalker rubbed his temples, trying to will his headache to go away. So Clarence Hightower was a liar. Great. What else was new?
It was noon Sunday by the time Miki Shaughnessey called Jaywalker back as she’d promised to do. But two words into the conversation, he could tell from the tone in her voice that she was going to disappoint him.
“My supervisor says there’s no way. To begin with, Highto
wer’s case is officially sealed, so it would take a court order to do anything. And since none of the NYPD lab’s stuff is computerized, it would take them weeks just to find out if those drugs still exist or have already been destroyed. So he says we can forget about it.”
“Terrific,” was all Jaywalker could think to say. Well, that and one other thing. “Who is your supervisor, anyway?”
“You know him. Dan Pulaski.”
Long after he’d hung up the phone, Jaywalker continued to seethe. Pulaski’s point about Hightower’s case being sealed, while technically true, was an obstacle only if you wanted to let it be one. The computer story was a bit more plausible. These days, everything’s on computers, no more than a click away. But back in 1986 computers were only just beginning to show up in the system. And they were doing it with all the speed that feet had once begun to show up on fish.
Still, Jaywalker’s distrust of Daniel Pulaski was so deep that he couldn’t help wondering if he might not be onto something. The only problem was, he had absolutely no idea what that something might be.
13
Offer of proof
“The defendant calls Kenny Smith.”
With those five words, Jaywalker began his defense of Alonzo Barnett. And got no further. Miki Shaughnessey was on her toes, both figuratively and literally, asking to approach the bench. There she told Judge Levine that she wanted an offer of proof.
An offer of proof is pretty much what you might guess it is. It’s a brief oral statement from the lawyer who’s putting a witness on the stand, and it’s intended to show what he or she intends to prove through the witness. That way the opposing lawyer can argue to the judge, out of the hearing of the jury, that the witness shouldn’t be permitted to testify because whatever he has to say is irrelevant, immaterial, hearsay, privileged or otherwise objectionable.
Guilty as Sin Page 13
