Depraved Indifference

12

Over the next two weeks, Jaywalker busied himself preparing for Carter Drake's hearing and trial. Not that he expected it to begin the first week of September, or any week of September, for that matter. No judge, not even Travis Hinkley, would push a murder case to trial within three months of the arrest over the objection of the defense. Maybe in Yemen or Bangladesh or Texas. But not in New York. Not even in Rockland County.

Then again, there was a first time for everything.

He started by checking in with Nicolo LeGrosso. Nicky reported that he'd located Firestone's eyewitness, the guy who'd been driving the pickup truck.

"Guy's name is Concepcion Testigo," said Nicky. "He's a P.R." Which, Jaywalker was pretty sure, meant neither public relations nor press release. "I made like I was Spanish myself, and we hit it off pretty good. By the way, you'll never guess what his name means in English."

"I give up," said Jaywalker.

"Get this," said Nicky. " Born to testify. Cool, huh?"

Jaywalker, who knew enough Spanish to know Nicky was stretching things, chose not to argue the point. "So what did he say?" he asked.

"Guy says he didn't get that good a look at the driver. He couldn't describe him at the scene or anythin' like that."

"According to the D.A.," said Jaywalker, "he picked Drake out in a lineup."

"Yeah, but that was like a week after the arrest. By that time, the guy's face was all ovuh the news."

"And had Testigo seen it?"

"Oh, yeah," said Nicky. "Though before he tole me that, he looked around all suspicious like, an' ast if we was talkin' off the record."

"And you said?"

"I said sure, off the record."

Jaywalker smiled. Not the most ethical tactic on Nicky's part, perhaps. But when you were defending someone on a murder charge, there were ethics and there were ethics. "How about the accident itself?" he asked. "Did he see what happened?"

"You betta believe it," said LeGrosso. "Says our guy was goin' way ovuh the limit, right smack in the middle'a the wrong lane. Van nevuh had a snowball's chance."

"Like steady in the wrong lane, or just for a moment?"

"He din' ezzackly use the word steady, " said Nicky. "But he made it pretty clear that it was no momentary thing."

LeGrosso had also tried to interview Eric, the Drakes' seventeen-year-old son. Jaywalker wanted Eric's take on just how drunk his father had seemed that night before driving off. But Eric had apparently been avoiding Nicky.

"Kid's a ballbuster," he explained. "I set up three meets wid him. Two of 'em he cancels, an' the third time he's a no-show."

"Probably doesn't want to rat out his old man," said Jaywalker. "Leave him alone. I'll see if I can work on his mother."

"I bet you will," said Nicky.

Twice Jaywalker cranked up the Mercury and drove up to New City to spend some more time talking with his client. Yes, Drake confirmed, he had been placed in a lineup. It had taken place a week or so after he'd surrendered. No lawyer had been present. The fill-ins had all been cops, all white guys, but almost all of them were considerably younger than he was. He had no idea who'd been on the other side of the mirrored glass they were told to face, and had no way of knowing if he'd been identified or not.

"Have you put in a speedy trial motion for me?" Drake wanted to know.

"We've got a trial date less than a month away," Jaywalker reminded him. He didn't mention that that was still much too soon, as far as he was concerned.

"Have you ever been in jail?" Drake asked pointedly.

"Yes, as a matter of fact. Several times."

"What was the longest?"

Jaywalker caught himself trying to remember, then decided it was none of Drake's business. "What's the problem?" he asked. "Specifically. Other inmates? The guards?"

It was nothing like that, said Drake. It was boredom, extreme boredom. "What am I supposed to do, r ead all day?"

Heaven forbid.

"Look," said Jaywalker. "I feel for you, I really do. But the next twenty-five years of your life are hanging in the balance here. Your wife didn't hire me just to try your case. She hired me to win it, if that's possible. So if it takes another six months of your sitting in this place to give us a fighting chance, you're going to sit."

"There's no way I can do another six months."

Which reminded Jaywalker of the old story about the judge who's just finished sentencing a defendant to seventy-five years in prison. "There's no way on earth I can do seventy-five years," moans the defendant.

"Do as much as you can," says the judge.

And on one of his trips to New City, Jaywalker actually sat down with Abe Firestone and had something that vaguely resembled a civil conversation. He wanted to know if there was any chance the case could be resolved with a plea bargain.

Not that Drake had pushed for the meeting or anything like that. The truth was, he didn't even know about it, and no doubt would have objected to it had he been consulted. But Jaywalker had long felt that one of his many obligations as a defense lawyer was to explore the subject of an offer, a plea to a lesser charge that carried a lighter sentence. Then he'd convey that offer to his client, along with his own recommendation. The defendant, of course, was free to accept it or reject it. It was his case, after all, and his time to serve.

Jaywalker had phoned Firestone's office two days earlier and made an appointment, an act that all by itself took twenty-five minutes. Once he showed up at the designated time and place, he got to wait another forty minutes, filling the time thumbing through ancient issues of P eople magazine, the Rockland County Pennysaver and the New York State Police Bulletin. Then he was ushered into a conference room where, after an additional ten minutes of waiting, Firestone and two aides finally joined him. One was a nerdy-looking guy who took notes, the other a pretty, young woman who smiled a lot. Neither of them said a word the entire time.

"What can I do for you?" Firestone asked. No "Hello," no "How are you?" No handshake, no introductions, no small talk. Just, "What can I do for you?"

"Hello," said Jaywalker. Sort of like the way he'd say "You're welcome" when someone he'd held a door open for neglected to thank him.

Grunt.

Noted.

Smile.

"I was wondering," said Jaywalker, "if you intend to make my client an offer of any sort."

"An offer. You mean like a plea bargain? " Firestone spat out the words as though he were talking about a plague, or an unmentionable body function.

Jaywalker nodded.

"Yeah," said Firestone. "He can plead to the murder count, and we won't oppose the minimum, if the judge wants to be a pussy."

This was ice in the winter. The minimum on the murder charge was fifteen to life, and the judge was free to impose it, with or without the D.A.'s opposition.

"That's it?"

"Yeah, that's it. And after trial, all bets are off, and I'll be demanding twenty-five to life. And I'll get it, too. You'll see."

Jaywalker stood up and kindly thanked the three of them for their time.

Justice Hinkley's decision arrived in the mail. As expected, she'd found the evidence presented to the grand jury sufficient, and had ordered a Wade hearing to test the fairness of the lineup. When it came to Jaywalker's motion for a change of venue to someplace other than Rockland County, she'd been smart enough not to deny it outright, a ruling that might have been questioned on appeal. Instead, she'd reserved decision, stating that she'd wait until they were into jury selection to see if it was possible to find people unaffected by the publicity the case had instigated.

If that sounded promising, it wasn't. It was a timehonored dodge. Even though the community had been inflamed by the loss of its children and infected by calls for their killer's scalp, there'd be more than enough prospective jurors who would insist they could still give him a fair trial. Some of them would be flat-out lying, of course, while others would be guilty only of vastly overestimating their capacity for objectivity. A few might even be up to the task, but only a few. Getting an impartial jury for Carter Drake in Rockland County was going to be something like getting an impartial jury for Adolf Eichmann in Tel Aviv.

In mid-August, with the hearing and trial scheduled to begin in three weeks, Jaywalker sat down at his computer and composed a one-page letter to Justice Hinkley. In it he stated that despite his very best efforts, there was no way the defense could possibly be ready by September 5, or any time in September, for that matter. He sent the letter off by Priority Mail, and a copy of it to the district attorney's office. That one he sent by regular mail. As far as Jaywalker was concerned, forty-four cents was already far too much to spend on Abe Firestone.

It took only a day and a half for a response. It came in the form of a phone call from Hinkley's law clerk, an earnest-sounding young man. "The judge would like to meet with the lawyers as soon as possible," he said. "She wants to know if you can be at her chambers tomorrow morning, at nine o'clock sharp."

"Let me check," said Jaywalker.

A glance at his calendar revealed that the only date circled other than September 5 was January 14 of next year, his granddaughter's birthday.

"I believe I can make it," he said.

They met around a polished wooden table in the library that was part of the judge's chambers. It put anything Jaywalker had ever seen at 10 °Centre Street to shame. As he had been at their meeting, Firestone was flanked by his twin bodyguards, Nerd Man and Smile Woman. The judge began the meeting by reading Jaywalker's letter aloud so that a court reporter could take it down on a stenotype machine. As soon as she got to the part about the defense not being able to be ready, Firestone shouted, "I object!" and followed it up with, "The People are ready for trial."

"Relax, Abe," she said. "There's no audience here."

"There should be," said Firestone. "This should be done in open court."

"The People's objection is noted," said Hinkley. "Mr. Jaywalker, would you care to tell the court precisely why you won't be ready to proceed?"

"I'd be delighted to," said Jaywalker, who'd actually come armed with a list of reasons scribbled on a crumpled sheet of paper. While none of them was terribly persuasive standing by itself, there were no less than eleven of them, twelve if you wanted to count Come on, this a murder case, for crying out loud. "But I'll only do so ex parte. My explanation will reveal confidential material and defense strategy, neither of which I'm either required or willing to share with the prosecution."

"Objection!" shouted Firestone, a vein throbbing visibly in his forehead.

"Sit down, Abe. You're going to hurt yourself."

"I want this all on the record!"

As the judge rose, she pointed at Jaywalker and the court reporter. "Come with me," she said. "The rest of you relax, chat among yourselves."

As soon as they were in Justice Hinkley's private office, she took off her robe and lit a cigarette. "Terrible habit," she said, inhaling deeply. "Amy, you take a break," she told the court reporter, and the young lady took a seat, pulling a copy of O Magazine from her handbag.

So much for on the record.

The judge took another long drag of her cigarette before stubbing it out in an ashtray. "Disgusting," she muttered.

Jaywalker fought back a snort.

"So," she said, "I gather you need the witness."

"Excuse me?"

"You heard me."

"I heard you," said Jaywalker. "I just didn't think you were old enough to know the expression." He was, though. He'd heard it early on in his career, almost always from an old-timer. He needed the witness, he'd tell the judge, when he couldn't go to trial because he hadn't been paid the balance of his fee yet. And if the judge was too young or too slow to catch on, the lawyer would clue him in him by supplying the witness's name, which almost always turned out to be Mr. Green. Though Jaywalker had heard Mr. Franklin's name come up once or twice, as well as Mr. Grant's.

"I'm a lot older than you are," said the judge.

"I'll bet you're not," said Jaywalker, fishing into his pocket for a Samoan penny. He had more than his share of vices, but high-stakes gambling wasn't among them.

"I'm afraid you're going to have to take my word on this one," said the judge. "My husband doesn't know how old I am, and we've been married…a long time. Anyway, why didn't you just tell me what the problem was? I was in practice once myself."

Jaywalker hesitated for just a moment. The truth was, he didn't need the witness at all. Amanda Drake had already paid him more than half his fee, and he had no worries about the balance. And he hated the idea of being lumped together with a bunch of incompetent hacks whose chief concern was collecting their fees. But he knew that judges were lawyers, and that this particular judge had just gone out of her way to tell him that she understood his predicament. In other words, it was easier for her to empathize with a lawyer who needed to be paid than it was for her to understand a lawyer who needed to win.

A Jaywalker.

So he swallowed his pride and let it go.

"Look," she was telling him, "we both know the Appellate Division wouldn't have let me force you to trial over your objection. I was simply testing you. A lesser lawyer would have whined like a baby in court when I set the date. You didn't do that. You did it the right way." And here she picked up the letter he'd sent her and waved it in the air.

"We're going to have a fun trial, Mr. Jaywalker, you and I. And when it's over, and the jury has convicted your client, I'm going to give him twenty-five to life. Not a day less. You I like. Him, he's a worthless piece of shit. Now, when can you be ready for trial?"

"I've got a commitment January 14," he said. "I can be ready anytime after that."

"Fair enough," said the judge, glancing at a wall calendar. "January 20, hearing and trial. And…"

"Yes?"

"That's it. Before I grant the defense another adjournment, I'll need a certified copy of a death certificate, with your name on the top of it. Do we understand each other?"

"We do."

Jaywalker would have loved to see the look on Abe

Firestone's face when he learned of the new date, but the pleasure was not to be his. Justice Hinkley instructed him to leave by a side door. "You go home," she told him. "I'll deal with Napoleon."

Still, he sang halfway home, and when he ran out of voice, he whistled the rest of the way. Even to a normal person, receiving permission to put off an unpleasant ordeal for five months is welcome news. For a certified procrastinator, it's nothing short of Nirvana.