Guilty as Sin

by Joseph Teller

  The offer of proof was also one of Jaywalker’s pet peeves, and he lost no time in sharing that sentiment with Levine and Shaughnessey. “How come it’s only when the defense calls a witness that there’s got to be a preview? Why should we assume that I know the rules of evidence any less than the prosecution does?”

  “We don’t assume that at all,” the judge assured him. “But we do know how creative you can sometimes be. So I’m going to grant Ms. Shaughnessey’s request and ask you to let us know what Mr. Smith’s going to tell us.”

  “Then you’d better excuse the jury,” Jaywalker suggested, “because I have a feeling this is going to take a while.”

  The judge agreed and ordered the jurors led out of the courtroom. One or two of them could be heard grumbling over the fact that they were being banished before they’d heard a single word. Once the last of them had left, the judge signaled the court reporter that the colloquy they were about to have would be on the record. That way, were she to prohibit the witness from testifying, the offer of proof would be preserved for an appellate court to consider. Finally she turned to Jaywalker.

  “Now,” she said, “who is Kenny Smith, and why are you calling him?”

  Jaywalker stood, though he needn’t have. The jury was gone, and Shirley Levine wasn’t into formality. But Jaywalker worked better on his feet, especially when it was an uphill climb. “Kenny Smith is a private citizen,” he began. “A private citizen and convicted felon who happens to be a former client of mine.”

  “Don’t tell me you lost a case.”

  “It was a long time ago.”

  “And what is Mr. Smith going to tell us?”

  “He’s going to tell us things that, if believed by the jury, will lead them to conclude that Clarence Hightower is and continues to be a paid informer of law enforcement.”

  Okay, it was a stretch. But at some point Sunday night it had occurred to Jaywalker that the uncle Hightower was getting weekly payments from might just be named Sam. As in Uncle Sam.

  “What sort of things is Mr. Smith going to tell us?” the judge wanted to know.

  “Among others, that Mr. Hightower was, at least until recently, receiving regular weekly cash payments from an undisclosed source. That he was given favorable treatment consistent with his being an informer on at least three separate occasions, first at the time of his arrest, later in court, and finally with the state parole authorities. And that when Mr. Smith attempted to serve a subpoena on him, Hightower responded by running away.”

  “Suppose for a moment that you’re right about Mr. Hightower’s being an informer,” said the judge. “How is that relevant to this trial?”

  “I can think of two reasons right off the bat,” said Jaywalker. “First, it means that the jury’s been deliberately lied to. Second, it means that Hightower is under the control of the prosecution. I want him brought here so I can call him as a defense witness. If the prosecution won’t do that, I want them sanctioned. I want a missing witness charge. And third, if Mr. Hightower was indeed an informer, my client has a legitimate entrapment defense.”

  Jaywalker sat down. It was more than he’d wanted to say, but he was beginning to get angry—angry and frustrated. Those who knew him knew it could be a dangerous combination.

  “Ms. Shaughnessey?” said the judge.

  Miki Shaughnessey rose. “The issue isn’t whether or not Mr. Hightower has ever been an informer, or even if he is one now. So far as I know, he never has been and he isn’t now. But none of that matters. The issue is whether he was acting as an informer back in September of 1984, when he introduced Agent St. James to the defendant for the purpose of buying drugs. And the answer to that question is an unequivocal no. I even have a document, an official New York Police Department document that Mr. Jaywalker has seen with his own eyes, that makes that crystal clear.”

  “Is that true, Mr. Jaywalker?”

  “It’s true that I have seen such a document, and that the document says that no informer was utilized in this case.”

  “So why,” asked the judge, “isn’t that the end of it? If he wasn’t an informer in this case, there can be no entrapment as a matter of law. Wouldn’t you have to agree, Mr. Jaywalker?”

  “Yes,” Jaywalker was forced to concede.

  “And Ms. Shaughnessey would therefore be right in wanting Mr. Smith’s testimony precluded. Right?”

  “Right again.”

  “So why isn’t that the end of the inquiry?”

  “Ahhh,” said Jaywalker, back up on his feet. Here, finally, was the best part. The part that had kept him up most of the previous night, long after Kenny Smith had finished eating breakfast and left, long after Miki Shaughnessey had called back with word that Daniel Pulaski had refused to authorize the retesting of Hightower’s drugs. It was the part that had finally dawned on Jaywalker not too long before dawn itself had. The part that had prompted him to pick up the phone, call Kenny Smith and tell him to be in court at nine-thirty sharp that morning.

  Lawyers are advocates, paid to argue positions. Those positions can be as lofty as a client’s factual innocence or as mundane as whether a particular witness should be addressed as Miss or Ms. Sometimes the position is supported by the facts, the law and the equities of the issue, and when those three considerations align, arguing is easy. But there are other times, times when a lawyer must—must—argue just as vigorously while standing on ground so shaky that it feels as though it’s going to give way any second. So fearful had Jaywalker been that his position on Clarence Hightower bordered on the frivolous that at one point Sunday night he’d thought about showing up in court Monday morning wearing hip boots and carrying a shovel.

  And then the perfect, irrefutable argument had come to him. Perfect because it was absolutely bombproof. And irrefutable because it was dictated by nothing less than the United States Constitution.

  “It’s not the end of the inquiry,” he now told the judge, “for the simple reason that for the life of me, I can’t remember my client ever requesting a trial in front of either the police commissioner or the district attorney. Nor, most respectfully, did he request a bench trial in front of Your Honor, though we did actually give that serious consideration. What my client requested was a trial by jury. And whether or not a particular individual was acting as an informer in a particular case becomes a question of fact. Nothing more, nothing less. As a result, the NYPD doesn’t get to decide that fact, not even by writing something on a piece of paper. Mr. Pulaski and Ms. Shaughnessey don’t get to decide that fact. Nor do I. Not even you get to decide that fact, Your Honor. The only ones who get to decide the facts in this case are those twelve people we just sent out of the room and down to the principal’s office.”

  And the thing was, he was right. He knew it, Miki Shaughnessey knew it, and—most importantly—the judge knew it.

  Not that Shaughnessey didn’t continue to contest the point. First she argued that the court had the discretion to preclude testimony that promised to be so vague as to be nothing short of speculative. Then she complained that permitting the testimony would force her to recall witnesses on rebuttal and perhaps even call additional ones, causing the trial to go on endlessly. Next she pointed out that she was being put in the impossible position of being forced to prove a negative. Finally she asked the judge to force Mr. Smith to testify first in the jury’s absence, to see if anything he had to say deserved to be heard by the jury.

  “You’re suggesting an audition?” was Jaywalker’s comment.

  In the end, Shaughnessey’s objections were overruled one by one. The Constitution has a pretty neat way of ensuring that.

  JAYWALKER: What do you do for a living, Mr. Smith?

  SMITH: I press clothes in a dry cleaner’s, and I work for Mr. Jaywalker.

  JAYWALKER: Have you ever been convicted of a crime?

  SMITH: Oh, yeah, about fifteen of them. But none since I last got out of prison. So far it’s been eight years, two months and seven days. And it’s
going to stay that way.

  JAYWALKER: How long have you worked for me, Mr. Smith?

  SMITH: Eight years, two months and seven days.

  THE COURT: Listen carefully to the questions, Mr. Smith. He asked you a different one this time.

  SMITH: I know, ma’am, but the answer is the same. The same day I got of prison, I goes to see Mr. Jaywalker. It was the first thing I did, before I even went home. He’d promised me when I went in that he’d have a job waiting for me if I came to see him, and he did as he said.

  THE COURT: And did he have a job for you?

  SMITH: He sure did. He made me his Official Unofficial Investigator. The unofficial part is on account of I’ve got a criminal record, so I can’t get a license or carry a gun or get paid by the state.

  THE COURT: And do you still work for him?

  SMITH: From time to time I do, whenever he asks me.

  And as long as it don’t conflicate with my other job.

  THE COURT: I see. Thank you, Mr. Smith. Sorry for the interruption, Mr. Jaywalker.

  Any other lawyer would have been beaming at the inadvertent endorsement of his largesse. Jaywalker, who was unlike any other lawyer, had no need of endorsements and didn’t normally appreciate being interrupted during his examination of a witness. But even he had to suppress a grin at how nicely things had just worked out.

  Pretty much as he’d planned.

  JAYWALKER: And did there come a time, Mr. Smith, when I asked you to do something in connection with this case?

  SMITH: Yes, there did.

  JAYWALKER: When and what was that?

  SMITH: About two weeks ago. You asked me to try to find a man named Clarence Hightower.

  JAYWALKER: And did you try to find him?

  SMITH: Yes.

  JAYWALKER: And?

  Smith described the places he’d gone and the things he’d done over a two-week period of searching for Hightower. Jaywalker had given him a crash course in the rules of evidence that morning, and Kenny was a pretty quick study. Understanding that whatever he’d heard on the street would be hearsay, he omitted the business about the weekly cash allowance Hightower was rumored to be getting. And having been warned that he couldn’t speculate or offer his opinion about anything, Smith refrained from suggesting that the money was supposedly coming from an uncle who didn’t exist. Still, Kenny was permitted to describe the one-and-only meeting he’d had with Hightower. That was neither hearsay nor opinion.

  JAYWALKER: When did that occur?

  SMITH: Two nights ago. Just after midnight Saturday. So I guess that was more like very early Sunday morning.

  JAYWALKER: Where was that?

  SMITH: I finally tracked him down in a bar on 125th Street called the Red Rose Tavern. I cornered him and told him I needed to talk to him for five minutes.

  JAYWALKER: What did he say?

  SMITH: First he said he wasn’t Clarence Hightower. But I told him I knew who he was. Then he agreed to talk with me, but said he had to use the men’s room. Although that’s not exactly how he put it. He’d been drinking beers, he said, and a lot of them. And I guess all them beers ran right through—

  THE COURT: Yes, I think we get the picture, Mr. Smith. What happened next?

  SMITH: I said okay, but I waited, like, right outside the door for him. After about five minutes, when he hadn’t come out, I went in. The men’s room was completely empty, and the window was wide-open. Seems he’d ducked out before I could give him the suspeena.

  SHAUGHNESSEY: Objection. Move to strike the last part.

  SMITH: Suspayna.

  THE COURT: Sustained. Stricken.

  SMITH: Suspen—

  THE COURT: It’s not your pronunciation, Mr. Smith. It’s that you’re not allowed to give us your conclusion. You told us the men’s room was empty and the window was open. That’s all you know for a fact.

  SMITH: Oh, no, ma’am. I checked the stalls. I know for a fact he had to have gone out that—

  The rest of his answer was drowned out by Miki Shaughnessey’s objections and Shirley Levine’s gavel. But it hardly mattered. Just as Kenny Smith had man aged to put two and two together, so could the jurors.

  Not that Shaughnessey didn’t do her best to undermine Smith’s testimony on cross-examination. First she spent a full half hour going over the details of his prior criminal record. If the jurors ended up convinced that for many years Smith had been a career criminal, they also learned that his assertion that he’d been arrest-free for the past eight and a half years was true. And by candidly owning up to his past crimes without trying to minimize them, Kenny was able to offset much of the damage. Then Shaughnessey brought out that Smith had never had—or even seen, for that matter—a photograph of Hightower. Next, that Smith’s imposing size could very easily have frightened Hightower—if indeed it had been Hightower—into fleeing out of a natural fear that he was about to be harmed.

  SHAUGHNESSEY: Anyway, why didn’t you give him the subpoena as soon as you saw him?

  It was something Jaywalker himself had wondered about. But he hadn’t wanted to risk offending Kenny, who, after all, had been doing him a favor.

  SMITH: I didn’t want to freak him out or nothing.

  SHAUGHNESSEY: So instead you’re telling us he disappeared before you could serve him.

  SMITH: I’m not telling you—it’s what happened. See, if I was gonna lie about it, I’d say I served him and then he ran away, wouldn’t I?

  He actually had a pretty good point there.

  Kenny Smith hadn’t been the best witness in the history of the world, but he hadn’t been the worst, either. Still, Jaywalker was acutely aware that even if the jurors were to believe every word of Smith’s testimony—that it had taken him a full two weeks to find Clarence Hightower, and that when he finally had, the guy had pulled a disappearing act—that by no means established that Hightower had been working as an informer. That gap in the testimony was still there, and as long as it remained, Jaywalker was going to have a hard time arguing entrapment. As things stood, he was going to be forced to ask the jurors to make a huge leap of faith with him, to conclude that despite the denials of law enforcement and the absence of any real proof, the only way the case made sense was if Stump had been working for the Man.

  Because the fact was, Jaywalker was now down to his final witness. And that witness, no matter how persuasive he might turn out to be, wasn’t going to be able to shed any light on the issue. Then again, he was the witness the jurors had been waiting to hear from for a week now, ever since Jaywalker had promised them during jury selection that they would. The name of the witness, of course, was Alonzo Barnett, and the time had finally come for him to rise from his seat at the defense table and make his way to the witness stand.

  But not quite yet.

  The argument over whether Kenny Smith should be permitted to testify in the first place, followed by his actual direct and cross-examinations, had taken most of the morning. Rather than begin with a new and no doubt lengthy witness, only to have to stop fifteen minutes into testimony, Judge Levine broke for lunch.

  “But please be back here promptly at two o’clock,” she told the jurors, and waited until she heard a chorus of yesses. Then, turning to the tables where the lawyers sat, she added, “That means you, too.”

  “Yes, ma’am,” said Alonzo Barnett. They were the first two words the jurors had heard from him, and they reacted with good-natured laughter. Under the rules, they really weren’t supposed to know he was a guest of the city. But of course they did. Jurors always do.

  May the rest of what he has to say go over half as well as his first two words, prayed Jaywalker the atheist.

  14

  Somebody showed up

  “The defense calls Alonzo Barnett.”

  And with those five words, the man who for a week now had done pretty much nothing but sit quietly at a table rose and made his way slowly but purposefully to the witness box. Slowly, because he’d been warned by the court officer
s to refrain from making any sudden movements. Purposefully, because the fact was, he’d been waiting for this moment for nearly two years.

  As Jaywalker watched Alonzo Barnett mount the single step that led to the witness chair before turning to face the court clerk, he had little doubt that Barnett would make a good witness, perhaps even a compelling one. By this time the two of them had spent something like fifty hours going over the facts, plumbing for the tiny details that would attest to Barnett’s truthfulness, and searching for the visual images and precise wording that would stay with the jurors into their deliberations. Together they’d run through half a dozen mock direct examinations and twice as many crosses. If those numbers sound excessive, they are, and there are lawyers who would scoff at them as either absurdly inflated or totally unnecessary. But even back then, Jaywalker knew only one way to try a case. And that way compelled him to overprepare as though his very life depended on the outcome. He might not have been able to win all of his cases, but on the increasingly rare occasion when he lost one, no one was ever going to accuse him of giving it less than a thousand percent.

  Not that he wouldn’t blame himself anyway.

  Now, as he watched Alonzo Barnett raise his right hand as instructed and place his left upon a book that had no place in his particular religion, Jaywalker sensed the enormity of the task in front of both of them. Until this moment, the trial had pretty much followed the familiar script of all sale cases. A midlevel law enforcement official—in this instance Lieutenant Dino Pascarella—had set the table for the jurors, describing the receipt of an anonymous phone tip about a man dealing drugs. Surveillance of the man had proved of limited value. A veteran undercover officer had been brought in from out of state. That undercover officer, Agent Trevor St. James, had described his success in gaining the unwitting confidence of an associate of the suspect, a man known to him only as “Stump.” Following an introduction to the suspect, Agent St. James had ordered heroin from the target three times, each time in dramatically escalating amounts. Twice the deals had been completed. On the third occasion the target had been arrested just prior to making delivery. On his person had been not only the drugs, but some of the prerecorded money St. James had given him earlier.