Guilty as Sin (8 page)

The third buy had taken a little longer to set up. Agent St. James had said he wanted an eighth of a kilo this time. Jaywalker knew the amount arrived at had been no accident. Since an eighth of a kilogram translated to a little more than four ounces, it would bump the case up into the first-degree category, not only for sale but possession, with the mandatory life sentence that an A-1 felony carried.

After checking with his source, Barnett had reported
that an eighth would cost five thousand dollars. St. James said he'd have to go down to Philadelphia to get the money. By the time he “returned” and was ready to make the buy, it was October 5.

Again St. James picked Barnett up in the Cadillac and drove to 127th Street, where this time he handed Barnett five thousand dollars in prerecorded bills. Again Barnett took the money and disappeared from view. Twenty minutes later—and Jaywalker knew it was no coincidence that it seemed to take twenty minutes each time, since claiming that it had made it easier for the witness to remember—Barnett reappeared. Only this time he never made it to the Cadillac. As Agent St. James watched from behind the wheel, members of the backup team swooped in and made the arrest. St. James, satisfied they had the right man, pulled away from the curb and drove off, just as he would have done had he been a real buyer.

Shaughnessey had him identify the glass vial from the first sale, and the paper bag and glassine envelope from the second one. The third package, the eighth of a kilo, he'd never seen, of course. Not that Alonzo Barnett hadn't been charged with selling that, too. The Penal Law conveniently defines sale to mean “sell, exchange, give or dispose of to another, or to offer or agree to do the same.” Next time you share some of your marijuana with a friend or pass him a half-smoked joint, think about it. It's a sale.

With that, Shaughnessey announced that she had no further questions and resumed her seat at the prosecution table. Miki Shaughnessey had certainly done her job well, just as Trevor St. James had done his. Okay, so maybe he'd put a bit of a spin on whatever Stump had told him about Barnett's initial reluctance to deal with him. And perhaps he'd made all of the intervals twenty minutes in order to
make things easier to remember on the witness stand. But the bottom line was, the three transactions had gone down pretty much as he described them. Alonzo Barnett had indeed sold him heroin, not just once but three times, if you wanted to count the aborted third sale. And even if you didn't count it, the backup team witnesses would soon enough testify to Barnett's possession of the eighth of a kilo, a crime every bit as serious as its sale, and one that carried the identical punishment.

So no matter how you chose to look at things, Alonzo Barnett had done precisely what the indictment accused him of. And what the indictment accused him of was repeatedly selling fairly substantial amounts of heroin. Not only was that serious stuff, it was
bad
stuff. But as Jaywalker rose now to begin his cross-examination, he couldn't afford to think about that, or to ask himself how he could possibly represent someone at trial whom he knew was guilty. Jaywalker had a job to do, and he knew only one way to do it. And that was to pretend that the man sitting next to him at the defense table was his own brother or his own son. Did the fact that he happened to be neither mean that he deserved any less than Jaywalker's best?

Tilting at windmills

“S
o help me out here, Agent St. James. You were brought up here from Philadelphia because the surveillance team was unable to observe Mr. Barnett making any sales. Is that correct?”

The witness shifted slightly in his seat before answering, “Only if you want to put it that way.”

“Well,” said Jaywalker, “you were brought up from Philadelphia, right?”

“Right.”

“And the surveillance team had been watching Mr. Barnett. Or, in your words, conducting
intensive ongoing surveillance.
Right?”

“Right,” St. James agreed.

“All twelve of them?”

“I'm not sure exactly how many—”

“With binoculars, unmarked cars and secret outposts, no?”

“If you say so.”

“How about if Lieutenant Pascarella says so?”

Miki Shaughnessey's objection was sustained. Which was just as well, because Jaywalker was ready to move on.

JAYWALKER: Now, this guy “Stump.” You say you don't remember his name?

ST. JAMES: That's right.

JAYWALKER: Does the name Clarence Hightower refresh your recollection?

ST. JAMES: That sounds like it might be it. But remember, I only saw him and spoke to him a couple times.

JAYWALKER: Know anything about his six-page criminal record?

SHAUGHNESSEY: Objection.

ST. JAMES: No.

THE COURT: Well, he's answered the question. He doesn't know.

JAYWALKER: In fact, you don't know much of anything about him. True?

ST. JAMES: True.

JAYWALKER: And yet, when Stump told you that Mr. Barnett was “spooked” and didn't want to meet you, you chose to accept that at face value—

ST. JAMES: Yes.

JAYWALKER: —rather than wondering if perhaps Mr. Barnett simply wasn't interested in helping anyone buy drugs. Correct?

ST. JAMES: Yes, I believed Stump.

JAYWALKER: This man you knew nothing about, not even his name?

ST. JAMES: I believed him.

Jaywalker moved on to the three transactions themselves. He had no interest in getting the witness to repeat everything he'd said about them on direct. But he did have a point or two he wanted to make. First he wanted to ascertain whether St. James had been the sole undercover operative in the case, or if he'd had a second officer nearby, shadowing his every move. That officer, had there been one, would have been referred to with a highly appropriate designation.

JAYWALKER: Were you working alone in this case, or did you have a “ghost”?

ST. JAMES: I was working alone.

JAYWALKER: No one close by, blending in?

ST. JAMES: No.

JAYWALKER: Either for your safety—

ST. JAMES: No.

JAYWALKER: —or to confirm that everything you're telling us is true?

ST. JAMES: No.

JAYWALKER: Now, I notice that the third time you wanted to buy heroin, you ordered an eighth of a kilogram.

ST. JAMES: That's correct.

JAYWALKER: Which is just over four ounces and therefore constitutes A-1 felony weight, for both sale and possession. Right?

SHAUGHNESSEY: Objection.

THE COURT: Overruled. The witness may answer the question, and then we'll move to another subject.

Meaning, no questions about the severity of the sentences involved, which might affect the jurors' decision.

ST. JAMES: I don't know much about A-1 felony weight. I'm a federal agent, and we don't deal with New York law much. Maybe the NYPD worries about those things. I don't know.

JAYWALKER: I see. Well, whose idea was it that you order an eighth of a kilo?

ST. JAMES: Lieutenant Pascarella's.

JAYWALKER: And who does he work for again? ST. JAMES: The NYPD.

JAYWALKER: So you just did what you were told to do?

ST. JAMES: Yes and no.

JAYWALKER: What does that mean?

It was the kind of question that gave the witness a chance to bury you, and hence the kind they told cross-examiners never to ask. Which didn't stop Jaywalker.

ST. JAMES: I always try to buy as much as I can.

JAYWALKER: Because it makes it worse for the guy who's selling to you?

ST. JAMES: No.

JAYWALKER: Because it makes you look better?

ST. JAMES: No, not at all.

JAYWALKER: Why, then?

ST. JAMES: Because it gets more narcotics off the streets and out of the hands of kids.

Not bad, thought Jaywalker. But even as he smiled at the witness for scoring a jab, he was ready with a counterpunch.

JAYWALKER: So you say your idea is to buy as much as possible?

ST. JAMES: Yes.

JAYWALKER: At the taxpayers' expense?

ST. JAMES:
[No response]

JAYWALKER: Until the world's supply is exhausted or we're all broke? Whichever happens first?

ST. JAMES: When we make seizures of drugs, we often recover a lot of the money we've spent. Many times we even come out ahead.

JAYWALKER: I see. How much money was recovered in this case?

ST. JAMES: If I'm not mistaken, I believe your client had five hundred dollars on him when he was arrested.

JAYWALKER: Out of the five thousand you'd given him. And that's not counting the sixteen hundred you'd given him previously.

ST. JAMES:
[No response]

JAYWALKER: Do you consider that a good return on the government's investment?

ST. JAMES:
[No response]

JAYWALKER: And in terms of seizing drugs, how much was seized in this case, if you know? Not counting what Mr. Barnett had on him when he was arrested.

ST. JAMES: Not counting that? None.

JAYWALKER: Am I confused, or isn't the goal of an undercover operation to buy a little in order to seize a lot?

ST. JAMES: Sure, that's the goal. In the real world, it doesn't always work out that way.

JAYWALKER: I see. And there's another goal to buying drugs undercover, isn't there?

ST. JAMES: I'm not sure I follow you.

JAYWALKER: Have you ever heard the expression
moving up the ladder?

ST. JAMES: If it's the same as
moving up the food chain,
yes.

JAYWALKER: Forgive me for dating myself. What does
moving up the food chain
mean?

ST. JAMES: It means trying to make a case not just against the subject you're buying from but against his connection, as well.

JAYWALKER: And his connection's connection—

ST. JAMES: Yes.

JAYWALKER: —on up the line?

ST. JAMES: Yes.

JAYWALKER: Hence the terms
up the food chain
or
up the ladder?

ST. JAMES: Right.

JAYWALKER: And did any of that happen in this case?

ST. JAMES: No, it didn't.

JAYWALKER: One month, three government agencies, fourteen officers, six thousand six hundred dollars. And you didn't move up a single rung of the ladder. Or, as you might say, a single link in the food chain. Not one, right?

ST. JAMES: Happens.

JAYWALKER: Especially if you're not trying.

Miki Shaughnessey jumped up, asking that the comment be stricken, a request that Shirley Levine quickly granted. And although Jaywalker knew the judge never really got angry with him—they liked each other too much for that—sometimes she did a pretty good imitation, and this was one of those times. “Ask questions,” she snapped at him, right in front of the jurors. “Don't make statements.”

He could have simply said “Sorry” and moved his questioning on to some other subject. But with his “especially if you're not trying” comment now stricken from the record, the agent's rather glib “Happens” would become the last word spoken on the matter, and the last to show up in the printed transcript. So Jaywalker decided to rephrase what he'd said, only in question form.

JAYWALKER: Would you agree, Agent St. James, that as a general rule, working your way higher up in the distribution chain happens only when you're making a serious effort to make it happen?

SHAUGHNESSEY: Objection.

THE COURT: Overruled. The witness may answer.

ST. JAMES: The truth is, every once in a while you try as hard as you can, but in spite of everything you do, you just can't make a case against a seller's connection. At least not without jeopardizing your safety, the safety of your fellow officers, or both.

Jaywalker smiled wryly. This guy was good, he had to admit.

JAYWALKER: Was there even the remotest suggestion of violence or weapons in this particular case, at any point?

ST. JAMES: Counselor, in my line of business, violence and weapons are everyday things.

This guy was better than good. He was taking Jaywalker's best shots and not only parrying them, but counterpunching effectively.

JAYWALKER: Which is why I asked you about this particular case. Any violence in this one?

ST. JAMES: No.

JAYWALKER: Any guns—used, threatened to be used, displayed, or even hinted at?

ST. JAMES: No.

JAYWALKER: Still, this turned out to be one of those
every once in a while
cases where in spite of everything
you tried, you never could make it even one step up the ladder?

ST. JAMES: That's correct, Counselor.

JAYWALKER: By the way, do you see now why we call it a ladder? You have to actually do some work in order to get yourself up to the next level.

This time he did apologize, though it didn't stop Judge Levine from striking the comment, instructing the jury to disregard it, and wagging a
this-is-your-last-warning
finger in Jaywalker's direction. But he'd made the comment because he was done and knew he couldn't get into any more trouble, at least for the moment. Turning from the witness, he said “No more questions,” and sat down.

By that time it was quarter of five, and rather than begin with another witness, the judge broke for the day. Only when the last juror had filed out of the courtroom and the court officers had led Alonzo Barnett back into the pens did she turn her attention to the lawyers.

“Mr. Jaywalker—” she began.

Here it comes, he thought. Apparently the final warning had been the one
before
the finger-wagging. So even Shirley Levine had finally had enough of his antics and was about to hold him in contempt, maybe even give him a night on Rikers Island to think things over.

“—why are we trying this case?”

Which caught Jaywalker so off guard that he laughed out loud. But as relieved as he was at avoiding jail time, he knew the judge hadn't asked her question out of idle curiosity. The truth was, there'd been a time when he'd
thought about waiving a jury and opting for a bench trial. Judging from Levine's question, he now knew what a mistake that would have been. But it was even worse than that. What Shirley Levine was implying—hell, she wasn't implying it, she was coming right out and saying it—was that two witnesses into the case, it was already clear that there was no theory under which a rational jury could possibly acquit his client.

A lot of lawyers would have answered her by deflecting the blame onto the defendant. “What can I tell you?” they would have said with a helpless shrug of the shoulders. “My client's an absolute psycho who refuses to take a plea.” But Jaywalker was decidedly old-school when it came to placing blame. He could still remember hearing his father tell him that a good carpenter never complains about his tools. Jaywalker had always figured that the same advice has to apply to pretty much every trade, including the one he'd ended up practicing. A good lawyer doesn't complain about his client. You take what you're given, and you do the best you possibly can with it. And if you lose,
you
lose. Not just that guy sitting next to you.

“Why are you tilting at windmills here?” the judge was asking him now. “Fighting against impossible odds?” Here he'd thought her earlier question had been nothing but a rhetorical one, a not-so-subtle suggestion that he sit down with Mr. Barnett and explain the odds to him. No, it seemed she really expected an answer from him as to why there hadn't been a guilty plea.

“Because…” he began. But one word into his response, he realized he had absolutely no follow-up. There
was
no reason, when it came right down to it, except that Alonzo Barnett wanted a trial. He'd said that to his first lawyer, his second lawyer and his third. Their reactions had been
simple. They'd walked away from him as quickly as they could.

Jaywalker didn't walk away from his clients. Not even when they continued to make the same sort of self-destructive choices that had gotten them into trouble in the first place. But with Barnett, it was more than that. Here was a guy who'd defied the odds and turned everything around. It might have taken him fifty years, but look at what he'd done. Stopped not only using drugs but selling them, as well. Cut out drinking. Never missed an appointment with his parole officer. Found himself a decent job and an apartment to call his own. And the time he'd had left over after those endeavors? Had he spent it hanging out with a bunch of junkies and ex-cons? No, he'd devoted it to the two loves of his life, his daughters. In a word, here was a man who'd done nothing less than completely redeem himself. And Jaywalker, who'd be the first to tell you that he had no place in his heart for organized religion and no room in his thinking for the existence of a higher power, was nevertheless a believer in redemption.

A huge believer.

Then something had happened. Barnett's overblown, misguided sense of loyalty had betrayed him into believing he owed someone a favor, a favor that carried with it huge personal risk for him. That favor now threatened to undo everything he'd accomplished and send him back to prison for the rest of his life. So what was Jaywalker supposed to do? Twist the poor man's arm to the breaking point until he hollered uncle and agreed to a slightly shorter sentence before kissing his daughters goodbye for the last time? No, he couldn't do that. Not if Barnett wanted to fight. What Jaywalker
could
do—in fact, the
only
thing he could do under the circumstances—was go
to war with him and fight like an absolute madman until the last drop of fight was drained out of him.