Guilty as Sin (17 page)

PULASKI: And what did Pascarella do?

EGAN: Pascarella got in touch with me. He said he was concerned because it just so happened that he knew of a confidential informer who lived on the eighth floor of that particular building.

PULASKI: And what did you do?

EGAN: I have a master cross-index of all confidential informers involved in narcotics investigations with the NYPD. That means it can be accessed by name, nickname, address or telephone. I went to the list and conducted a search referencing 345 West 127th Street. And I got a hit. On the eighth floor was the apartment of an extremely high-value informer, someone who'd been providing the department with critical intelligence in major undercover operations for a number of years.

The way he said it conjured up images of special ops capers in Vietnam or Cambodia. Which was no accident, Jaywalker knew.

PULASKI: What did you do when you made that discovery?

EGAN: I convened a meeting with Lieutenant Pascarella, Deputy Chief Finn Murphy—that's my boss—and a
detective named Jeremiah Yarborough. Yarborough was running the CI in question.

THE COURT: Would you mind giving us that in English, Captain?

EGAN: Sorry. Detective Yarborough was the department's contact with the informer.

THE COURT: Thank you.

PULASKI: What was the result of that meeting?

EGAN: It was decided that the identity of the informer had to be protected at all costs. He was that important. So Lieutenant Pascarella was directed to speak with Investigator Bucknell and have him sanitize his reports in such a way as to keep the eighth floor destination out of them. At the same time, he was instructed to do so without adversely prejudicing the rights of the target of the investigation, Alonzo Barnett, in any way.

PULASKI: And did Bucknell do that?

EGAN: He did.

PULASKI: And that accounts for the fact that he told us in court that Mr. Barnett rode to the twelfth floor instead of the eighth floor?

EGAN: That's correct.

Years later, Jaywalker would read in astonishment each time the Supreme Court upheld the State Secrets Act, not
just permitting, but
requiring,
lower courts to throw out lawsuits whenever the federal government claimed that letting such suits proceed would compromise national security. Not that he'd be the only citizen to recoil at the notion. But thanks to what he was listening to right now, he'd be one of a precious few to experience a déjà vu moment. He would truly be able to say he'd been there, heard that.

But if anything, this was even worse. Egan wasn't merely suggesting that the authorities could avoid litigating an issue by making the naked assertion that it was too sensitive to talk about, he was advancing the proposition that committing perjury in open court during a criminal trial was acceptable. That it all came down to a balancing test of sorts, in which the end could justify the means.

And the defendant?

Tough shit.

After all, the defendant was nothing but a two-bit dope dealer with a criminal record as long as his arm. How could he possibly stack up against
an extremely high-value informer who'd been providing critical intelligence in major undercover operations for a number of years?
And this nonsense about doing things in such a way as to not prejudice the defendant's rights? While that must have sounded good to the jury, since when had it been left up to the police department to be the judge of that? Unfuckingbelieveable.

Yet for the moment, all Jaywalker could do was shake his head in bewilderment and listen as Daniel Pulaski turned to the judge and said, “This might be a good point for us to take up my application again.”

 

Once the jurors were out of the courtroom, Pulaski stated the obvious, that he was about to ask his witness to
reveal the name of the informer. Judge Levine responded by saying that unless Jaywalker had something to add to his previous objection, she was prepared to close the courtroom.

“You bet I have something to add,” said Jaywalker. “Based upon Captain Egan's admission that there's not only been perjury committed by a previous prosecution witness, but that the perjury was the result of a deliberate, concerted effort to mislead the court, the defense and the jury, I move to dismiss all charges against my client.”

The judge turned to the prosecution table. “Tell me,” she said. “Did either of you know about this? Did you know, either in advance or at the time Investigator Bucknell testified, that he was telling anything other than the truth?”

“Absolutely not,” said Miki Shaughnessey.

“No,” said Daniel Pulaski.

Jaywalker was inclined to give Shaughnessey the benefit of the doubt. Pulaski was a different story. Still, there was no way he could show that either of them wasn't telling the truth.

“If I may use a sports metaphor,” said Pulaski, “this is really a case of no harm, no foul. In no way has the defense been prejudiced by—”

“Sit down,” Levine told him. “I'm frankly not interested in your sports metaphors. Mr. Jaywalker is right in characterizing this as a deliberate, concerted effort to mislead the jury. And if I thought for a moment that you or any member of your office was involved in the deception, I would grant the motion. That said, I'm not sure Investigator Bucknell's lie rises to the level of perjury. Perjury requires that the lie be about some material fact. Can you convince me, Mr. Jaywalker, that changing
where the defendant went, from the eighth floor to the twelfth floor, was a material misstatement?”

Jaywalker spent the next five minutes on his feet, giving it his best shot. But the strongest argument he could come up with was that Bucknell's lie may have led the jurors to disbelieve Alonzo Barnett's testimony that it had been to the eighth floor, specifically to Apartment 805, that he'd gone. And if they disbelieved him on that point, they could well conclude that he'd lied about other things, as well. But as the judge was quick to point out, Egan's testimony now supported Barnett's version. And if that remained unclear to the jurors, Jaywalker was free to emphasize it on cross-examination and argue it on summation.

“So,” Levine continued, “while I think some sanction against the People is warranted, I don't find that the situation requires dismissal. Any suggestions short of that, Mr. Jaywalker? Such as an instruction that the balance of Bucknell's testimony be regarded with skepticism?”

“No,” said Jaywalker. For one thing, he couldn't think of a lesser remedy. For another, he was afraid that anything less than outright dismissal might satisfy an appellate court without really accomplishing anything for the defense.

“I'm willing to tell the jury that Investigator Bucknell may face departmental charges as a result of what he did.”

“Absolutely not,” said Jaywalker. As he saw it, Bucknell was a patsy taking the fall for others. He'd done his job by originally reporting to Pascarella that he'd seen the elevator stop at eight. Then he was told to sanitize his testimony.
Sanitize.
Now he was being outed as a liar. The last thing Jaywalker wanted was for the jurors to
feel sorry for him and return a conviction in an attempt to protect him from being disciplined.

So in the end the judge did nothing.

But Jaywalker had been around the block often enough to know that didn't mean the incident had had no effect. The fact was, Shirley Levine was now pissed off at the prosecution, and rightfully so. Jaywalker knew that, and while there might be nothing he could do with it at the moment, sooner or later he was going to find an opportunity to turn it to his advantage—and Alonzo Barnett's. That opportunity might come during cross-examination, summation, or even deliberations, should the jurors, for instance, have a question about what they should make of Egan's testimony.

But for now, all Jaywalker could do was fret.

 

When they resumed, the spectator section was cleared. There was some complaining, but a run-of-the-mill drug case doesn't exactly bring out the scalpers. Had there been reporters present, one of them might have put in a call to his or her legal department. But there were no reporters present. Nothing about Alonzo Barnett's case had been newsworthy up to this point, and nothing was about to be. The people who were most upset at having to leave were the four of five Jaywalker groupies, retired guys who magically materialized whenever he was involved in a trial.

PULASKI: Captain Egan, would you tell us the name of the informer who at that time resided on the eighth floor of 345 West 127th Street?

EGAN: Only if I'm directed to do so.

Another cute stunt, this one no doubt choreographed by Daniel Pulaski.

THE COURT: Consider yourself directed.

EGAN: The informer's name was Jackson Davis.

PULASKI: Thank you.

And with that, Pulaski sat down.

As Jaywalker rose to cross-examine, he half suspected a trap. Why hadn't Pulaski had Egan pinpoint the apartment Davis lived in? Was it something other than 805, as Alonzo Barnett had testified? But Jaywalker knew he couldn't afford to be cautious at this point. Sometimes you tested the waters, gingerly dipping in a toe. Other times you sucked in a deep breath and dived in. For better or for worse, this was going to be one of those other times.

JAYWALKER: Tell me, Captain Egan, does this master cross-index of yours include apartment numbers?

EGAN: Yes, it does.

JAYWALKER: So what apartment number did Jackson Davis reside in at 345 West 127th Street?

EGAN: Apartment 805.

JAYWALKER: Which just happens to be precisely where Alonzo Barnett said he went. Correct?

PULASKI: Objection. Captain Egan wasn't present during Barnett's testimony.

THE COURT: Yes, but I was, and the jury was. And Mr. Barnett did indeed say he went to Apartment Number 805. Next question, Mr. Jaywalker.

JAYWALKER: You also said that your cross-index can be accessed by nickname. Correct?

EGAN: Yes, as long as the nickname is unusual enough. Something like “Lefty” or “Shorty” might pose a problem, for example.

JAYWALKER: How about something like “One-Eyed Jack?” Do you think that might pose a problem? Or would that be unusual enough?

EGAN: No, I'd have to agree that's pretty unusual.

JAYWALKER: So did Jackson Davis have a nickname, by any chance?

EGAN: Yes.

JAYWALKER: What was his nickname?

EGAN: One-Eyed Jack.

JAYWALKER: Do you happen to know how he got that nickname?

EGAN: I have no idea.

JAYWALKER: Was Mr. Davis working off a case of his own in order to stay out of prison? Cooperating out of the goodness of his heart? Or was he being paid for his services?

PULASKI: Objection. That's privileged information.

THE COURT: Overruled. Now if you'd said “That's three questions in one,” Mr. Pulaski, or “It's irrelevant,” I might have sustained your objection. But as far as privilege goes, there is none. And if there ever was, it's been waived by Captain Egan's taking the stand and testifying about the subject on direct examination.

PULASKI: Objection. That's three questions in one, and it's irrelevant.

THE COURT: Sorry, too late. Was Mr. Davis paid, Captain Egan? Yes or no?

EGAN: Yes, Your Honor, he was.

THE COURT: Next subject, Mr. Jaywalker.

And by using the word
subject
rather than
question,
Judge Levine was making it clear to Jaywalker that he was to move on, that there weren't to be any follow-up questions like
Who was paying him, how much,
and
on what basis?
Because the judge was right. It was irrelevant. Jackson Davis hadn't testified, so his credibility wasn't at issue. Technically speaking, the details of his payment had no bearing upon Alonzo Barnett's guilt or lack thereof.

Needless to say,
technically speaking
wasn't exactly Jaywalker's native tongue. Still, he had to admit that Shirley Levine had given him a couple of favorable rulings to get even with the prosecution. But there were limits to her generosity. So he'd have to try some other way of helping the jurors get acquainted with Jackson Davis.

JAYWALKER: Do you by any chance have a photo of Mr. Davis?

Egan thumbed through his papers and eventually pulled out a photograph, a three-by-five color glossy, and handed it to Jaywalker. It was a mug shot, a pair of side-by-side images of a middle-aged black man, one full face, the other in profile. On the left image, the one where the subject had been directly facing the camera, a placard held against his chest displayed in movie-marquis style the initials NYPD, the department's blue-and-white shield, the name DAVIS, Jackson, and the date, 01-09-79. You didn't have to look too closely to see that one of the subject's eyes was real and focused, while the other was glass, or whatever they made fake eyes out of back then.

Jaywalker had the photo marked into evidence as Defendant's Exhibit A and passed among the jurors. He wanted to make sure they saw the bad eye for themselves. At the same time, he wanted them to get a good look at the guy their tax dollars were subsidizing because the poor fellow couldn't make enough of a living selling heroin under the police department's protection.

JAYWALKER: How about Clarence Hightower? Is he in your index, too?

EGAN: No, he isn't.

JAYWALKER: You've checked?

EGAN: I have.

JAYWALKER: By name, address and nickname?

EGAN: All three.

JAYWALKER: No entry for him?

EGAN: None at all.

JAYWALKER: Did you check under “Stump”?

EGAN: Yes, I did. Negative.

JAYWALKER: So I assume you have no photograph of him?

EGAN: Actually, I do. But only because I took the trouble of hunting one down. Miss Shaughnessey over there
[Gestures]
told me you'd probably be asking me about him.

Even as Jaywalker looked at “Miss Shaughnessey over there” and the two of them fought off grins, Egan busied himself digging out the photograph and handing it over. It, too, was in color, but it contained only a single exposure and bore no placard with lettering. Jaywalker recognized it as an old-fashioned Polaroid print, the kind you used to snap and wait a minute for it to develop before sticking it onto a piece of gummed cardboard. He'd thought those things had gone the way of hot-water bottles and seltzer dispensers. Leave it to the NYPD to still be using them. Jaywalker flipped the photo over. Early in his career, he'd once made the mistake of not checking the back of an exhibit, resulting in the jury learning that his client was nicknamed “Jimmy the Strangler.” So he'd been burned by his carelessness. But only once. This time Jaywalker saw nothing but the word “asp” inked on the back of
the cardboard. Another nickname, perhaps? If so, how fitting.