Guilty as Sin (20 page)

JAYWALKER: No, Your Honor. The defense rests.

THE COURT: Mr. Pulaski?

PULASKI: The People rest, too.

And with that it was over, at least the evidence portion of the trial. The jurors were sent off for the weekend, some of them smiling at the prospect, others grumbling that their jury service would be going into its third week, more than they'd signed up for.

It was the grumblers who worried Jaywalker. They were the ones who were self-employed or considered themselves indispensable at work. They had small children, elderly parents or pets with bladder issues at home. Above all else, they wanted the case over with. Come deliberation time, their impatience could easily translate into a desire to arrive at a quick verdict, no matter which way it happened to go.

A quick verdict meant deciding whether the evidence proved beyond a reasonable doubt that the defendant had done what he was accused of doing. It left no room for nuance, no time to consider
why
he'd done it. Entrapment wasn't a simple concept, a black-or-white, either-or notion that lent itself to quick and easy analysis. And that could spell trouble for the defense.

Big trouble.

 

Even as the jurors were excused for the weekend, the lawyers had to come back that afternoon for the charge conference, a meeting between the judge and the lawyers about what the judge will be telling the jurors when, following the summations, she instructs them on the principles of law applicable to the trial. Somewhere along the line, those instructions have come to be called the judge's charge.

In most federal courts the lawyers are expected to submit detailed written requests to charge, often as early as the beginning of the trial. The practice in state court tends to be more relaxed, with oral requests being the norm. Nevertheless, Jaywalker took charge conferences seriously. What the judge told the jurors, and how she told it to them, was of critical importance. Juries don't always get cases right, but it's the rare jury that fails to take its job seriously. They listen to the judge and try to apply the principles of law to the facts, just as she tells them to.

A lot of any charge is boilerplate stuff. Presumption of innocence, burden of proof, credibility, reasonable doubt and unanimity of verdict don't change from trial to trial. But some things do. And Alonzo Barnett's case had several wrinkles that made it anything but ordinary.

So that afternoon, once Shirley Levine had run through
a list of standard things she intended to tell the jurors, she called upon first Pulaski and then Jaywalker to make additional requests, if they had any. The setting was far more relaxed than it had been when the jury had been present, and the lawyers were permitted to remain seated at their respective tables while they spoke. But the court reporter was present, taking down every word of the discussion. More cases get reversed by appellate courts because of things said during the charge—or things requested but omitted from the charge—than because of just about anything else.

Pulaski stated that he was satisfied with what the judge intended to tell the jurors, and that he had no objections or additional requests.

Then it was Jaywalker's turn.

“The defense requests that you charge the jury on both entrapment and agency,” he said.

A half an hour later, they were still arguing about both requests. Pulaski took the position that there couldn't have been any entrapment as a matter of law. Since Clarence Hightower had been acting on his own when he approached Alonzo Barnett, it hadn't been law enforcement that was responsible for any pressure put on Barnett, if indeed there'd been any.

Jaywalker countered by arguing that whether Hightower had been acting on his own or in cooperation with the task force was a question of fact, and like all questions of fact it was up to the jury to decide. Even as Judge Levine agreed with Pulaski that most of the evidence supported his position, she expressed her concern that her refusal to at least present the issue to the jurors for their determination might be grounds for reversal. “It's not that I'm agreeing it was entrapment,” she explained. “After all, we have a captain and a lieutenant denying that Mr.
Hightower ever worked with them. But Mr. Jaywalker does have a point. It's up to the jury to decide. So I'll read them the statutory language from section…section—”

“Forty point oh-five,” said Jaywalker.

“Thank you.”

Her reluctant acquiescence might not have sounded all that promising to anyone else. But it was good enough for Jaywalker. He was perfectly content to have Pulaski continue to think of entrapment as a nonstarter. All Jaywalker could ask for at this point was that the door be cracked open just enough for him to get a foot in. The rest, he knew, would be up to him.

He had an even harder time when it came to agency. As soon as he'd mentioned the word, he'd realized that neither Levine nor Pulaski had even considered it as a possible defense. The theory behind an agency defense is that although a sale occurred and the defendant took part in it, he was aligned not with the seller, but the buyer. If that was so, he could be convicted only of buying drugs, not selling them. And buying was no crime.

“Agency?”
Pulaski repeated incredulously. “The defendant profited from these sales, by his own admission. He wasn't working for Agent St. James. He was
selling
to him. He was working for himself. The record couldn't be clearer. Give me a break, will you?”

Again the judge expressed skepticism that, given the facts, the defense should be available. But again she ended up siding with Jaywalker out of an abundance of caution and the fear of seeing a conviction reversed. “Personally,” she said, “I don't think the jurors will spend five minutes on this one. But technically, Mr. Jaywalker's right again. It's up to them to rule it out, not me. So I'll include something on it. Though over your objection, Mr. Jay
walker, I'll instruct them that it's a defense only to sale, not possession. Anything else, gentlemen?”

“That's it for me,” said Jaywalker.

“Nothing else,” said Pulaski.

“Then I'll see you back here first thing Monday morning, nice and refreshed.”

Right.

Over the three nights between now and then, Jaywalker would sleep for a combined total of less than ten hours, and fitfully at that.

So much for
nice and refreshed.

How about sex?

J
aywalker had long been a card-carrying procrastinator, and he managed to put off working on his summation all of Friday evening and most of Saturday. But it wasn't as if doing so allowed him to enjoy himself. He and his wife even went for a walk Saturday afternoon, something they hadn't done together for months. But on the way back, after the third time Jaywalker had said “What?” to one of her questions, she finally told him he might as well get down to work, that until his summation was done he would be no good to her or anyone else.

“How about sex?” he suggested. “Maybe that would help.”

“Right,” she laughed. “And halfway through, you'd say, ‘Wait a minute, an idea just came to me.' Thanks, but no thanks.”

“Afterward?”

“Afterward,” she agreed. But they both knew full well that there'd be no afterward until he'd actually given the damn thing. He'd work on it on and off until then, mostly on. He'd work on it that night, all day Sunday and long into Sunday night. He'd still be working on it Monday morning, right up until the moment the judge looked his
way and said, “Mr. Jaywalker?” And that was on top of the fact that he'd been working on it for two months now, ever since the first time he'd sat down with Alonzo Barnett and learned about the favor Barnett had done for Clarence Hightower.

He began with the Penal Law, as he often did.

It was by no means the first time he'd read the section, of course. He'd done so as recently as Thursday night, which explained why he'd used the words
induced and encouraged
during his rebuttal questioning of Alonzo Barnett, and why a moment later he'd asked Barnett if he would have obtained heroin for Trevor St. James but for the pressure Hightower had exerted on him. No, Barnett had said, never.

At the time, Daniel Pulaski had made a show of waving
off Barnett's answers as too self-serving to be worthy of cross-examination. Pulaski might have been better off had he spent a little less time practicing his gestures and paying more attention to reading section 40.05.

Now, as Jaywalker reread the language of the statute for the twentieth time, he was reminded that it contained plenty of
bad
news, too. For starters, it classified entrapment not as a “defense” but an “affirmative defense.” That distinction might have seemed a minor one to some, a matter of mere semantics. But if you went back to section 25.00 the difference became clear, and its implications were nothing short of game-changing. In the case of a “defense”—such as insanity or justification—the prosecution bore not only the burden of disproving the claim, but of doing so beyond a reasonable doubt. But when it came to an “affirmative defense,” the burden of proof became the defendant's. And although the standard of proof that had to be met was a lesser one, satisfied by a “preponderance of the evidence,” that was still nothing to sneeze at.

Next came the requirement that the defendant committed the offense because he was induced or encouraged to do so. That, Jaywalker figured, was the easy part. If the jurors decided to credit Alonzo Barnett's testimony—and Jaywalker was pretty sure they would—then they shouldn't have too much trouble concluding that Clarence Hightower's conduct had risen to the level of inducement or encouragement. Hell, it had gone
miles
past that.

It was the next phrase that was going to be the tricky part, the requirement that the inducement or encouragement be done by a public servant or by someone cooperating with a public servant. That was where this case was going to be won or lost, Jaywalker knew. That was the threshold issue of the trial, the moat that he and his
client had to cross before they could storm the castle and do battle. And on that issue, as well as all others pertaining to entrapment, the defense once again bore the burden of proof.

But exactly how was he supposed to go about meeting that burden? A high-ranking police captain, a senior lieutenant, an experienced federal agent and a supporting cast of characters had all testified, some implicitly but several quite explicitly, that Clarence Hightower hadn't been cooperating with them. Lying about that fact would have constituted not only a serious violation of departmental rules, one serious enough to justify firing the violator, but a felony punishable with prison time. Added to that was the fact that neither Hightower's name nor his nickname was to be found anywhere in the official cross-index of informers maintained by the NYPD.

And just in case Jaywalker was somehow able to bridge that gap, it would still be incumbent upon him to prove that the defendant wasn't “otherwise disposed to commit the offense.” In other words, he'd have to convince the jurors that absent the inducement or encouragement, Barnett never would have made the sales. Finally, whoever had written the statute had gone to great lengths to add not just one but
two
additional caveats. First they'd inserted language requiring that the inducement or encouragement be “active.” And just in case that wasn't enough of a hurdle, they'd added one last disqualifier, proclaiming that “conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.”

Talk about an uphill battle…

Still, Jaywalker felt that meeting those tests would be the easy part,
easy
being a relative term. The hard part, perhaps the impossible part, was going to be convincing the jurors that, despite all the denials and despite his
absence from the cross-index, Clarence Hightower had nevertheless been working with the Man.

Which is why he'd spend the rest of the weekend working on his summation, not getting to bed until well after midnight Sunday. Why he'd awake bleary-eyed, why he'd cut himself while shaving, and why he'd end up wearing one black shoe to court and one brown one.

But he'd be ready to sum up.

The key to the case

J
aywalker was precisely one sentence into his summation Monday morning when it happened. As always, he'd dispensed with the silly formalities that all other trial lawyers seemed to feel obliged to start off with. There was no “Ladies and gentlemen of the jury” for Jaywalker, no “May it please the court.” Not even a “My client and I are indebted to you for the close attention you've obviously paid throughout the trial.”

He'd started out on the right foot ten years earlier, winning acquittals in the majority of his trials at the Legal Aid Society in an era when he would have gone to the head of the class simply by winning one out of three. Judges, prosecutors and colleagues quickly branded him a natural. But the truth was, it was his years as a DEA agent that had prepared him for the work. Even as he'd learned to talk like a defendant, he'd also figured out how to think like a cop. By the time he arrived at Legal Aid, Jaywalker could pick up a written complaint and, in the time it took him to read it, know not only what was true in it and what wasn't, but what had actually happened out there on the street.

Yet even though winning more often than losing gained
him respect and reputation, those things weren't nearly enough for Jaywalker. The acquittals were certainly sweet, both for him and his clients. But each conviction would plunge him into the depths of depression. So the very next time out, he'd change something in his approach. And if the change worked, he stuck with it. They could be big things, these changes, such as alerting the prospective jurors at the earliest possible opportunity that the defendant had a criminal record. Or they could be little tweaks, like dispensing with the niceties and jumping right into the narrative with the first words of his summation.

By the time of the Alonzo Barnett trial, Jaywalker had changed enough things in his repertoire that he was winning four out of every five cases he tried. Over time he'd manage to push that rate all the way up to nine out of ten, an absolutely unheard of statistic for a criminal defense lawyer.

By the time he stood that Monday morning to face Alonzo Barnett's jury, the Jaywalker Summation had already evolved from pretty good to absolutely riveting and was well on its way toward legendary. But the perfectionist in Jaywalker understood the hard reality that neither meeting nor exceeding any of those descriptives guaranteed success.

Convictions happened, as he knew only too well.

Earlier that very morning, in fact, he'd run into a friend, a fellow defense lawyer named Blackstone, while riding up to the fifteenth floor. Taking in Jaywalker's blue suit, white shirt and conservative tie—and evidently unable to notice the contrasting colors of his shoes in the crowded elevator—the guy had asked if he was summing up.

“Yup,” Jaywalker had answered.

“What kind of case?”

“Sale.”

Blackstone had grimaced almost reflexively. “Well,” he'd said, “good fucking luck.”

Translation? Because jurors invariably ended up believing cops, sale cases were all but unwinnable. Which might have been a good enough excuse for Blackstone, but not for Jaywalker.
All but unwinnable
was where they separated the men from the boys.
All but unwinnable
was Jaywalker's briar patch.

 

“It is a Monday, a Monday in September, perhaps twenty months ago this very day,” Jaywalker had begun, taking the jurors back with him to that fateful day when Clarence Hightower had first shown up on the stoop of Alonzo Barnett's apartment building.

And that was as far as he got.

He never saw the court officer rise quietly from his seat and walk to the wooden partition that separated the well of the courtroom from the audience section. Nor did he hear the officer whispering to the man standing on the other side of the partition, ordering him to find a seat. Because Jaywalker had been standing directly in front of the jurors as he'd begun to address them, those things had taken place behind him, out of his field of vision.

But he quickly became aware that as much as the jurors were trying to give him their undivided attention, something was distracting them. First one pair of eyes, then another, then five or six more, were looking past him and focusing on someone or something else.

Almost reflexively, he turned to see what they were watching. There at the partition, a uniformed court officer was pressing one index finger to his lips while using the other to direct a tall black man toward an empty section of seats in the third row. But the man wasn't obeying the officer's instructions. Instead he was gesturing
frantically in Jaywalker's direction, trying to make himself understood.

Which was right about when Jaywalker recognized the man. It was Kenny Smith, Jaywalker's official unofficial investigator, who'd testified earlier in the trial.

“Please excuse me,” Jaywalker told the jurors, turning and stepping away from them. Then, even as Shirley Levine reached for her seldom-used gavel, he raised a hand and asked if he might be permitted to approach the man. Which he did, without bothering to wait for her response.

He quickly reached the partition and assured the court officer that he knew the man, and knew he wasn't a threat of any sort. Then he turned his attention to Smith.

“What are you
doing?
” he whispered.

“I've
got
him,” Smith whispered back. “He's
here.
”

But there are whispers, and there are
not-quite-whispers.
And in Kenny Smith's inability to contain his excitement, his reply fell squarely into the latter category, the sort guaranteed to draw a sharp rebuke from any librarian within a hundred yards. But on this Monday morning in Part 91 there were no librarians in sight, only a gavel-banging judge, a bunch of jurors and a few rows of spectators.

“
Who's
here?” Jaywalker asked Smith.

“Hightower.”

“
Here
here?”

By way of an answer, Smith pivoted and pointed toward the front door of the courtroom, the one that led directly to the hallway just beyond it.

“Do you need a recess, Mr. Jaywalker?” Judge Levine was asking.

“No, Your Honor, no. What I need is to reopen the case
so that one more witness can testify. The defense calls Clarence Hightower.”

“Objection!”
shouted Daniel Pulaski. “He can't do that. He's already rested. It's too—”

“That's enough,”
barked the judge. “Everyone be seated. Now. That includes both lawyers and the gentleman standing at the rail. All of you.”

Kenny Smith mumbled “Sorry” and found a seat. So did Pulaski and Jaywalker. But there was still an audible buzz in the courtroom that refused to die down.

“Quiet,”
ordered the judge.

The buzz complied.

As she turned to face the jurors, Levine looked positively pained. “Please forgive us once again,” she told them. “But I'm afraid we're going to have to excuse you while we sort this all out. I'm truly sorry.”

 

In the twenty-minute argument that followed, Jaywalker formally asked permission to reopen his surrebuttal case in order to put Clarence Hightower on the stand. “He hasn't been available until this very moment,” he explained. “And he's the one person who's in a position to tell us whether he was actually cooperating or not. The interests of justice demand that we hear what he has to say.”

Pulaski was equally fierce in his opposition. “Both sides rested,” he pointed out. “Then we had rebuttal, followed by surrebuttal. After that, both sides rested again. At some point the evidence has to come to an end, Your Honor. Enough has to be enough already.”

Shirley Levine spent a lot of time listening to the arguments and trying to balance the equities. In the end, the clincher for her wasn't Clarence Hightower's unique ability to clear things up, or that the interest of justice
demanded that he be given an opportunity to do so. Nor was it the fact that both sides had rested, then rested again. It wasn't even that the evidence had to come to an end, or that enough had to be enough already.

No, the clincher was the fact that Jaywalker had already begun delivering his summation.

“It turns out the case law is quite clear,” said Levine. “I have the discretion to permit either side to reopen the evidence for good cause and in the interest of justice, even after both sides have rested. Even after rebuttal and surrebuttal and rerebuttal. But once closing statements have begun,” she said, glancing up from a law book her law clerk had hastily retrieved and handed her moments earlier, “that discretion comes to an end.”

Jaywalker continued to press the point. He happened to know the case the judge was reading from. Knew it by name, in fact. He tried his best to convince Levine that it was distinguishable on its facts. “That case concerned an application to visit a crime scene,” he pointed out. “The lawyer hadn't requested it until he heard his adversary say something during his summation. This situation is totally different. Here a previously missing witness suddenly shows up just as summations are beginning. Not only that, but he's ready, willing and able to testify about something absolutely crucial.”

“I'm sorry,” said the judge. “But unless both sides consent to reopening, I'm not going to permit it. Mr. Pulaski?”

“The People strenuously oppose the application to reopen.”

“Then that's my ruling, Counsel. And you have an exception, Mr. Jaywalker.”

Meaning that in a year or two, after the conviction and the sentencing, long after Alonzo Barnett had been
shipped upstate to spend the rest of his life, Jaywalker could take up the issue with some appellate judge. Only to be told that the trial court had lacked discretion in the matter, and even if that wasn't so, she'd been justified in acting as she had.

 

“So what's the key to this entire case?” Jaywalker asked the jurors once the trial resumed. “Better yet,
who's
the key?”

It wasn't how he'd started summing up a half an hour earlier. But Kenny Smith's interruption had changed things, prompted him to discard his notes and take a totally different approach. And from the expressions on the jurors' faces, he knew he'd grabbed their attention with those opening questions, knew that the trial was his to win if only he could do it right.

“Despite the fact that the case bears his name, it's not Alonzo Barnett who's the key. Sure, he's the defendant and he's important, and we'll have plenty to say about him, but he's not the key. Nor is Trevor St. James, or Dino Pascarella or Angel Cruz or Lance Bucknell or Olga Kasmirov or Thomas Egan. Nor is Kenny Smith, who so rudely interrupted us this morning. If we count them all, including those who testified a second time on rebuttal, we've heard a total of nine witnesses during the course of this trial. Yet not one of those nine holds the key. Not one of those nine witnesses can unlock the dirty little secret that lies at the very heart of this case.

“But there is someone who can.

“So who is that someone?” Jaywalker asked them. Only to be instantly rewarded by seeing the name form silently on the lips of several jurors.

“That's right. The key to this case is the tenth witness,
the one who never got to testify. The key to this case is Clarence Hightower.”

He paused for a moment, letting the notion sink in to those in the jury box who hadn't realized where he was going.

“Let's take a look at what we learn about Mr. Hightower as the trial progresses.” His use of the pronoun
we
was a conscious one. He wanted them to make this journey together, the jurors and he, to arrive at the truth simultaneously—even though he himself had arrived at it some time ago.

“We learn that Mr. Hightower is a career criminal, much like Alonzo Barnett. Only where Barnett's record is for drug possession and sales to support his own addiction, Hightower's record is one of predatory crimes. Crimes against property. Crimes against people. And while there came a time when Alonzo Barnett finally overcame his addiction, stopped committing crimes and began the never-ending process of redemption, Clarence Hightower stayed in the life. Still dealing, still scheming, still hustling.

“Next we learn that not too many years earlier, the lives of Alonzo Barnett and Clarence Hightower converged inside the walls of Green Haven prison. And don't let that nice bucolic name fool you. State prisons are terrible places where grown men stab each other, rape each other and kill each other. And there at Green Haven, because of circumstances partly his own fault and partly not, Alonzo Barnett immediately became a target, an inmate with a contract on him.

“A man marked for death.

“And when no one else would save him, Clarence Hightower stepped forward. He offered Barnett a job in the prison barbershop, and by doing that he saved Barnett's
life. I'm not speaking figuratively or metaphorically here. Clarence Hightower
saved
this man's life. Literally saved it.

“And from that fact, it's tempting to think of Mr. Hightower as a Good Samaritan, a selfless individual who rode off into the sunset, asking nothing in return for his good deed.

“Not so fast.

“We learn more about Hightower, you and I. We learn that shortly after his release, he comes looking for the man whose life he saved. But not to celebrate, not for old times' sake. No, we learn Hightower has a business opportunity for Alonzo Barnett, a drug deal. But Barnett wants no part of it. We learn next that Hightower's not to be denied. Not only is he persistent, he's creative. He tries to induce and encourage Barnett, first with the promise of money, then with the lure of drugs and next with a tale of personal woe. And remember those words, jurors.
Induce
and
encourage.
They're important.