Depraved Indifference

10

Under different circumstances, Jaywalker might have spent the rest of the day celebrating his good fortune. But he knew he didn't have that luxury. So as long as he was downtown, he found a camera store with a PASSPORT PHOTOS $5 sign in the window, where he traded a Korean woman a twenty-dollar bill for four one-by-oneinch Polaroid mug shots of himself. ("For five dolla," she explained, "you get only one photo, no good.") Two of the four he took back to the courthouse, where an obliging clerk updated his Attorney Identification Card. No more sneaking around with his homemade private investigator's ID. The other two he took to the legal office of the NYC Department of Corrections, then emerged an hour later with an official Get-Out-of-Jail card. Not that it was valid in Rockland County, technically speaking. But he figured between the two pieces of ID, he'd be able to bypass the All Others line at the New City courthouse. And more important, he'd get to sit down and have a real conversation with Carter Drake in the counsel visit room, rather than having to settle for talking with him over staticky phones, or reading his written statements. Next he called Amanda and told her the news of his reinstatement.

"That's wonderful, " she said. "Should I fire Mr. Mermelstein?"

"No," said Jaywalker, "I think we should keep him. You know, as local counsel, if you can afford us both. He knows the players, the court officers, maybe even some of the prospective jurors. And besides…"

"Besides?"

"His name can't hurt us."

"His name?"

"I'm half-Jewish," said Jaywalker, "but you wouldn't know it from my name. And to an orthodox Jew, Carter Drake the Third might as well have GOY stamped on his forehead."

"Goy?" said Amanda. She wasn't getting this.

"Gentile," explained Jaywalker. "Christian. In other words, not a Member of the Tribe. A name like Judah Mermelstein, on the other hand, could go a long way toward diffusing some of that insider-outsider bias."

"Okay," said Amanda, "if you say so. What else?"

"What else," said Jaywalker, "is we have to meet, settle on a fee and draw up a retainer agreement." The rules had changed since his suspension had begun. Handshake agreements, once commonplace between criminal defense lawyers and their clients, were no longer permitted. Apparently there'd been too many after-the-fact disputes about who'd agreed to what.

"Where do you want to meet?" Amanda asked. "My place, or your office?"

His office? In his haste to renew his credentials, meet with his client and formalize his retainer agreement, Jaywalker had completely forgotten that he was a lawyer without an office. Yet as he thought about it, he decided he kind of liked the ring of it. If there could be Doctors Without Borders, surely there was room on the planet for Lawyers Without Offices, wasn't there?

"Your place is fine," said Jaywalker.

That afternoon, Jaywalker put in a call to Nicky Legs. With his brief career as a private investigator suddenly at an end, he figured he was going to need the real thing. And Nicolo LeGrosso, a retired NYPD detective, was definitely the real thing.

"Hey, howya doon?" said Nicky as soon as he recognized Jaywalker's voice.

"Good, I think. They gave me my ticket back."

"No shit? It's been tree yeahs awready?"

"Something like that," said Jaywalker. "Look, I need some work done on a case."

"That Rockland County thing?"

Word traveled fast. "Yeah," said Jaywalker, "that Rockland County thing."

They met an hour later, over coffee in a midtown luncheonette. Nicky looked good; he'd been playing a lot of golf. "Yaughta take it up," he said.

Jaywalker wrote out a list of half a dozen things he wanted LeGrosso to do on the case, and pushed the list across the table. Nicky read it without bothering to turn it around, nodding six times. Jaywalker had no idea how he could do that. If he tried to read upside down, he'd bring on a migraine, or at least get dizzy.

"Is this like the last case?" LeGrosso asked. "You know, the ex-hooker with the big bucks? Or am I doon it on the arm?"

On the arm w as coptalk for out of the goodness of my heart. On several occasions Jaywalker had asked Nicky to do things for defendants who had little or no money- repeat customers who'd fallen on bad times, referrals from friends or family members, and others to whom Jaywalker hadn't been able, for one reason or another, to just say no. And Nicky had always obliged.

"No," he said, "there's money here. You need something up front?"

"Nah," said Nicky. "I'm good."

He met with Amanda that evening, and although she answered the door wearing a man's oxford shirt and, so far as he could tell, nothing else, he made her put on a robe. "Business," he told her.

"I think I liked it better," she said, "when you weren't a lawyer."

Jaywalker ignored the remark, sat her down and pulled out a retainer agreement he'd printed out earlier. For fee purposes, it broke the case down into three stages: pretrial investigation and motions; evidentiary hearings; and trial. It was how he'd always charged, though he'd rarely bothered to spell it out in black and white, as the new rules now required. He handed the agreement to Amanda, and waited while she skimmed it.

"The dollar amounts are blank," she said.

He nodded. "We have to reach an agreement on what's fair."

Jaywalker had been toying with the idea of asking for fifty thousand, if the case had to be tried. It would be his largest fee ever, but he knew he'd earn it. Hell, he'd read of cases where lawyers had charged upwards of a million dollars and complained about it not being enough. No doubt they had expensive offices, huge payrolls and vast overheads. He had no office, no payroll and an answering machine. So he was fully prepared to negotiate, and settle for somewhere between twenty-five and thirtyfive thousand, still a pretty good payday.

"How about an even hundred thousand?" Amanda suggested. "Do you think that would cover you?"

Cover him?

Jaywalker did his best imitation of someone thinking, but it was impossible. "Sure," he said, trying to look like a grown-up. It reminded him of a morning thirty years ago, when he'd found out he'd passed the bar exam on the second try. He'd spent the rest of the day walking around with a dumb smile he couldn't wipe off his face. A shit-eating grin, his brother had called it, and Jaywalker had been afraid to ask what that meant. "Sure," he told Amanda again, "I think I can live with that." And fought to keep his hand steady as he inked in the amounts on the retainer agreement. From the way Amanda treated the numbers, he sensed it was nothing but small change to her, or a few months' interest from a bottomless trust fund. But to Jaywalker, it was like winning the lottery.

Okay, a small lottery.

"Is business over?" she asked, crossing her legs so that the two sides of her robe fell apart.

"No," said Jaywalker, trying to look away. "Did Carter phone you from the bar that night?"

"Yes," she said.

"And?"

"And we drove up to get him."

"We?"

"I picked up Eric at his father's place," she said. "I figured he could drive Carter's car."

"You told me he's only seventeen. What does he have, a learner's permit?"

"Yes, but he's a good driver. Like his father. Too fast, but a good driver."

In Jaywalker's book, no seventeen-year-old was a good driver. Not even those who had licenses.

"Anyway," Amanda added, "it was short notice, and I didn't have time to get anyone else."

"And what happened when you got there?" Jaywalker asked.

"I waited outside in my car and sent Eric in to get his father. I was pissed at Carter, and I didn't want to have to deal with him, especially if he was drunk. A few minutes later the two of them came out, and they were arguing. Carter said, 'I'm not going to allow Eric to drive.' So Eric got back into my car, and we drove home. Carter was supposed to be following us, but at some point we got separated. I pulled over and waited for him, but he must've gone a different way or something. So I drove Eric to his father's and dropped him off. I told him to call me and let me know when his father got there. And by the time I got home, there was a message from him that Carter had made it, safe and sound."

"And the next day?" Jaywalker asked.

"The next day the accident was all over the news. Carter called me to tell me that it must be him the police were looking for. He knew his license plate by heart-I didn't- and he recognized the digits they were broadcasting on all the news reports. He said he was going to call his lawyer. I said okay, good. I figured if he came forward, they'd give him a break. The next I knew was when he called me from jail and told me it had turned into a murder case."

"So much for the break," said Jaywalker.

Amanda nodded. "Is business over now? " she asked, uncrossing her legs.

"Yes," said Jaywalker, who never had succeeded in looking away. "Business is over."

Afterward, she asked him to stay, but he said no. "You're paying me a shitload of money," he told her. "I've got to start earning it, first thing in the morning."

"You mean you've been faking it up till now?"

"No," said Jaywalker. "It's just that not being Carter's lawyer, or anyone's lawyer, for that matter, my hands have been tied."

He noticed Amanda grinning. "What?" he asked her. "Why are you looking at me like that?"

"I was trying to picture you," she said, her voice dropping an octave, "with your hands tied."

Jaywalker stood up. "Amanda," he said, "you remember when business was over?"

"Yes."

"Well, now pleasure's over." He bent down, kissed her, and said, "Good night."

The following day was indeed a busy one for Jaywalker. He surrendered his good parking spot and drove up to New City, stopping first at Judah Mermelstein's office. He caught Mermelstein as he was getting ready to go to court.

"I don't know if you heard," said Jaywalker, "but I wanted to let you know I've been reinstated-"

"I did hear," said Mermelstein, "and congratulations. You have my permission to substitute as counsel for Carter Drake."

"Thanks," said Jaywalker, "but if you have no objection, I'd prefer to join you as co-counsel."

Mermelstein seemed to think about it for a moment before answering. Then he said, "I appreciate the offer, but I think I'm going to decline. This is a pretty tight community we've got up here, in case you haven't noticed. I'd say ninety percent of my clients are orthodox or conservative Jews. My livelihood, and my family's, depends on their goodwill. I've already heard from a number of them that they're, shall we say, uncomfortable with my representing a…" His voice trailed off at that point, leaving Jaywalker to finish his thought for him.

"…Non-Jew? Gentile? Goy? "

Mermelstein shook his head slowly, from side to side. "I'm afraid it gets worse than that," he said.

"How much worse?"

"Try Hitler? Or Mengele."

"That's worse," Jaywalker agreed.

So Judah Mermelstein was bailing out. Not exactly a Profile in Courage. Then again, could Jaywalker really blame him? Was Mermelstein supposed to risk losing his entire practice, and with it his ability to feed his kids, just so he could hang on to a piece of a case with a radioactive client?

"I'm sorry," Mermelstein said.

"Me, too," said Jaywalker.

But as was the case with so many things in the strange world of criminal law, it was a development that had an upside to it. It had been Jaywalker's intention to have Mermelstein second-seat him at trial. If doing so accomplished nothing else, it would send a message to the jurors that here was one of their own, not only willing to sit next to the defendant and whisper back and forth with him from time to time, but maybe even grasp his arm at some point, or lay a comforting hand on his shoulder. Now that dynamic was gone. But in its place, Jaywalker was already calculating, the same jurors would now look over at the defense table and see only two people, the accused and his defender. That would provide a nice contrast with the scene at the prosecution table, where Abe Firestone- who rarely if ever had tried cases himself-would no doubt surround himself with several assistant district attorneys, and possibly even an investigator from his office. Sure, Jaywalker knew, jurors find it a lot easier to empathize with people like themselves. But they also tend to like underdogs, outcasts, long shots. And representing long shots was what Jaywalker did best.

From Mermelstein's office, Jaywalker walked to the courthouse, this time entering via the short line, the one reserved for POLICE OFFICERS, COURT PERSONNEL AND ATTORNEYS ONLY. He proceeded to the clerk's office, where he filled out three copies of a Notice of Appearance, formally declaring that he was the new lawyer for Carter Drake. From there he went to the district attorney's office, stopping at the reception desk.

"My name is Jaywalker," he told the uniformed trooper, handing him a business card. "I'm substituting as counsel for Carter Drake. I was hoping to introduce myself to Mr. Firestone, if he has a moment."

The trooper eyed the card, then pressed a button on an intercom. "There's a Mr. Jaywalker here," he said. "Says he's the new lawyer in the Drake case. Wants to meet your boss."

"I'll let him know," said a woman's voice over the intercom.

Jaywalker waited, passing the time studying the portraits of former Rockland County district attorneys on the wall behind the desk. The only face he recognized was that of Kenny Gribitz, who'd been a young A.D.A. in Manhattan way back when Jaywalker had been with Legal Aid. Then Gribitz had gotten himself elected Rockland County D.A. A short while later, he'd gotten himself into trouble. Over a woman, if Jaywalker remembered correctly. His kind of guy.

"The boss says this Jaywalker guy has got to file a Notice of Appearance," said the woman's voice, "before he'll talk with him."

Jaywalker held up his copy of the notice. There was a bright red FILED stamp across it, complete with the date and time.

"Done," said the trooper.

Another thirty seconds went by. Then the woman's voice could be heard again, but barely. "Tell him the boss isn't in," she was saying.

Jaywalker and the trooper exchanged glances. Jaywalker pointed at his wristwatch and held two fingers in the air.

"He only wants a minute or two," the trooper told the machine.

This time it was a full minute before there was a voice on the other end. Only it was a man's voice now, gruff and combative. And it said, "Tell him anything. Tell him he can go shit in his hat, for all I care."

Jaywalker smiled. "Mr. Firestone, I presume?"

The trooper nodded, returning the smile.

The attorney's visiting room at the Rockland County Jail was everything the regular visiting room hadn't been. Jaywalker was able to sit across a real table from Carter Drake, with no wire-reinforced bulletproof glass separating them, and no staticky phones to talk over.

Drake looked like somebody who'd been locked up a month would be expected to look. Jaywalker recognized the signs, the things that incarceration did to a person-some subtle, some not so subtle. There was the pallor, the waxy complexion that came from being indoors twenty-three hours a day, or twenty-four, if it happened to be raining when "yard time" was scheduled. There were the extra pounds that accumulated from a high-carb, low-protein, no-exercise diet. They tended to show up around the midsection, but in Drake's case, there was also a noticeable slackness to his cheeks, the beginning of Nixon-like jowls. There was the not-quiteclean-shaven look, the slightly unkempt hair and the faint odor suggesting that today-and perhaps yesterday, as well-had not been a shower day. But most of all, there were the eyes. Not only did they appear sunken and framed by dark circles, but a dull film had begun to spread over the pupils themselves, producing a listless, faraway expression. It was just one more symptom, Jaywalker knew, of a larger malaise, a gradual sinking-in of the reality that, contrary to early hopes and unrealistic expectations, these walls were going to be home for the foreseeable future.

So how did Jaywalker greet his new client?

"You look good," he said, the same way he might have said it to a cancer patient, or a mother who'd just delivered after a forty-eight-hour labor.

Drake smiled sheepishly. He had to know better.

"Thanks for writing out that statement for me," said Jaywalker.

"Was it what you wanted?"

"Yeah, pretty much."

"Not long enough?"

"It was a good starting point," said Jaywalker. "I'm here today so we can fill in a few blanks, get a little more detail. Then we'll go from there."

Drake leaned back in his chair. He struck Jaywalker as a man who was used to running things, and running them his own way. Having to answer questions and follow directions was going to be something of a new experience for him.

"How's my wife?" he asked in a way that might or might not have been accusatory.

"She's okay," said Jaywalker. "Worried about you."

Drake's smile was as enigmatic as his question had been. "Worried about me?" he asked. "Or worried about herself?"

Jaywalker shrugged. He had no desire to get into their marital dynamics, and every reason to steer clear of the subject. "Why don't we get to work," he suggested, thumbing through his file until he found Drake's statement. "For starters, I'd like you to tell me everything that happened at the End Zone that evening."

"Again?"

"Again."

Reluctantly, Drake complied. His memory was still fresh enough that he was able to recall the couple of martinis he'd started off with, the food he'd done no more than nibble at, and the two or three shots of tequila that had followed.

"And that's all?" Jaywalker fixed him with his most skeptical stare.

"That's all."

"I spoke with the bartender," said Jaywalker.

"I figured you had," said Drake, "since you came up with the name of the place."

They exchanged smiles.

"According to him," said Jaywalker, "it was more like eight or ten drinks, total."

Drake said nothing.

"Who's right?" Jaywalker asked him.

"It wasn't ten," said Drake. "That much I know. It might have been six, seven at the most."

Jaywalker rubbed his eyes. "Look, Carter, I'm your lawyer, not your dentist. This shouldn't be like pulling teeth."

"Maybe eight. No more, honest."

Eight would have given Drake a b.a.c. of around. 16, double the legal limit. Factor in the 120-proof tequila, and you were still at. 20, maybe a bit higher. Enough to get him convicted of drunk driving, to be sure, but hardly the stuff to turn it into a murder case.

"What made you leave the place?" Jaywalker asked. He wanted to know if Drake was going to admit that the bartender had cut him off and made him call home, or if he was going to leave that little detail out, as he had in his written statement.

"My son showed up."

"How come?"

"I'd called my wife earlier," said Drake. "The two of them drove up. I guess Amanda didn't want to walk into the place. She was pissed off at me, I guess. For a change."

"And?"

"And what?"

"And I left," said Drake.

"Who drove?"

"I did. Amanda stayed in her car, and my son got back into it. I drove my car."

"How come you drove?" Jaywalker asked.

"My son only has a permit," Drake explained. "It's not good after dark. I wouldn't allow him to drive. Besides, I really thought I was okay."

With eight drinks under your belt? But Jaywalker only thought the words. Now wasn't the time for lectures, he knew. He wanted honest answers, even if they were stupid ones. If Carter Drake had truly thought he could drive home safely in the dark in an unfamiliar area, after knocking back two martinis and six tequilas, Jaywalker wanted to hear that. Even if a jury wouldn't.

"What happened next?" he asked.

"I got into my car, started it up and drove off."

"And?"

"And I guess I must've missed the entrance for Route 9W heading south to the city. When I reached Route 303, I decided to take it, instead. It connects up with the Palisades Parkway, which brings you to the George Washington Bridge."

"Okay," said Jaywalker. He didn't want this to be a Q and A. He wanted Drake to ramble, to describe the events in his own words. Sometimes, for example, what a person left out from a story could be every bit as telling as what he included. "What next?"

"At some point," said Drake, "I became aware of a wasp flying around inside the car. That concerned me because I'm very allergic to insect bites. My mouth blows up, my eyes become all puffy, and I feel like my throat's- you know, like I'm not going to be able to breathe. Anaphylaxis, they call it, and it's pretty scary. Life threatening. Emergency-room stuff. You can verify it all through my physician, if you like. Do you want his name?"

"Sure," said Jaywalker, and he took notes for a few minutes as Drake supplied details.

"Where was I?" Drake asked.

"You'd just noticed a wasp flying around in your car."

"Right," said Drake. "A wasp. I had a newspaper on the console, between the front seats. I rolled it up and took a good swat at the thing. It was on the inside of the windshield, toward the middle, but more on the passenger side. I guess as I reached over to try to kill it, I must've pulled the steering wheel to the left. You know, to keep my balance?"

Jaywalker nodded, scribbling a word or two. "Did you get it?" he asked.

"I'm not sure," said Drake. "All I know is, when I straightened up, I must've been in the wrong lane, because I was looking directly at a pair of headlights. I cut back to the right as fast as I could. I never hit anything, and never heard anything but tires screeching. I assumed the other vehicle got by me safely, on my left. So I continued on home."

Jaywalker thought for a long moment before saying anything. When finally he spoke, it was to say, "You talk about 'the other vehicle.' When did you realize it was a van?"

"I didn't," said Drake. "Not till I heard the news the next morning."

"Or that it was white?"

"Maybe when I saw the photos in the T imes. I'm not sure."

Jaywalker had seen the photos in the T imes, too. He'd had to read the story to know it had been a van. And in the photos, it had been charred black. Just about all of it, except for some of the lettering on one side.

"How come," he asked, "when you wrote out your statement, you said you saw a white van in front of you?"

"I didn't say that."

Jaywalker handed him a copy of the statement, and waited while Drake read it.

"What I meant was," Drake explained, "is that it must've been the same white van that was in the news. And the photos. I see what you mean, though. My fault for not being clear. Sorry about that, but this is all new to me. I've never been asked to write out a statement like that before. I should have been more precise."

They spoke for another hour, covering a range of topics. But Jaywalker found himself oddly distracted. And as he drove home that afternoon, he found himself trying to reconcile Drake's two stories, the one contained in the written statement and the oral account he'd come up with today.

It hadn't been the first time a defendant had minimized his wrongdoing, or even lied about it outright. Hell, in Jaywalker's business, which was dealing with criminals, those things were pretty much the norm, especially in the early stages of the lawyer-client relationship. The five drinks instead of eight or ten, for instance. That one was certainly easy enough to understand.

But how about Drake's backtracking on whether or not he'd been able to tell it had been a white van in front of him? His explanation-that he'd simply been trying to acknowledge that it had to have been the v an-was tortured and lame. The only possible reason Jaywalker could come up with for Drake's correcting himself was that Amanda had gotten to him, had told him that Jaywalker had picked up on the implausibility of the version in the written statement. But if that explained why Drake had corrected himself, it still left the more important question unanswered: Why had he lied in the first place?

And there was more.

Why had Drake left out the whole business about the bartender's making him call home, and Eric's walking into the place, explaining that Amanda was outside waiting? And why, in explaining how he'd rejected the idea of letting Eric drive one of the two cars home, had husband and wife managed to use the identical phrase, that Carter "wouldn't allow" his son to drive? Was that simply coincidence, or was Jaywalker's paranoia working overtime?

Then there was the business about the wasp, and the accidental swerve into oncoming traffic. Jaywalker had no doubt that Drake was seriously allergic to insect stings, and that his doctor would be able to back him up with all sorts of medical records and emergency-room documentation. What left him puzzled was the physics of Drake's account, repeated almost verbatim in both versions. According to Drake, he must have unconsciously steered to the left while reaching to the right in his attempt to swat the wasp. He'd even moved the critter farther away from him in his recent telling of the incident than he'd had it in his original written statement. There the wasp had been closer to the driver's side of the windshield; now he'd pushed it over to the passenger's side, in what seemed to Jaywalker like an attempt to exaggerate the distance he'd had to reach.

Way back in high school, Jaywalker had signed up for an elective after-school safe-driving course. Because the school had been a small one that couldn't afford to buy a dual-control car, the course had been nothing but a combination lecture and discussion group. It had been taught by a pleasant, bald man named Ed Shaughnessey, whom everyone had, naturally enough, called Driver's Ed. One of the things Driver's Ed had taught them was that while driving along, if you reached to your right- or even looked to your right, for that matter-you'd invariably pull the steering wheel to your right also. And over the years since, Jaywalker had found it to be true. You turned your head one way, or reached for something to one side of you, and as soon as you returned your attention to the road in front of you, you would find that you'd steered in the same direction you'd looked or reached, sometimes dangerously so. Drake's claim that he'd unconsciously steered left while swatting at something to his right was preposterous. Which was nothing but a fancy way of saying he'd been lying about that, too.

There'd been no wasp, no swat with a rolled-up newspaper. And Jaywalker knew that for another reason, as well. When he'd asked if Drake had succeeded in killing the thing, the only answer he'd gotten had been "I'm not sure." Hardly what you'd expect from someone who'd been scared to death of being stung.

So Drake had to have made the whole thing up. And Jaywalker, who'd certainly made up more than his share of things over his fifty years, had to grudgingly give his client a certain amount of credit, if only for inventiveness. It was a good story, as stories went, and with a bit of tweaking here and there, it might fool a jury into believing that even if he'd had as much to drink as Riley the Bartender was going to claim, Carter Drake's drunkenness hadn't been the cause of the accident at all.

In other words, they should blame the wasp, not the WASP.