Depraved Indifference

14

"Call your first witness on the Wade hearing, Mr. Firestone."

Firestone stood up, as best as Jaywalker could tell. At an even five feet, it was sometimes hard to be sure. "Mr. Kaminsky will be conducting the hearing," said the D.A., gesturing toward the nerdy assistant seated immediately to his left. David Kaminsky, Jaywalker had come to learn, had been recruited from the Appeals Division, just as Julie Napolitano, to Firestone's right, had been drafted from Special Victims. Kaminsky was what trial lawyers referred to as a "law man," someone short on presence but long on precedents. With no jury around to play to, it made perfect sense that for the hearing, Firestone would yield center stage to someone who actually had some idea of what he was doing.

"Mr. Kaminsky?" said Justice Hinkley.

The young man stood, pushing a bony finger against the bridge of his glasses so that they rode up his nose a bit, but just a bit. It was a gesture he would repeat a thousand or so times over the next three weeks. "Yes?" he said uncertainly.

"Call. Your. First. Witness."

"I only have one witness," he said.

"Call him!" shouted the judge. "Or her, or it."

"The People call Investigator Alan Templeton."

And with that, the hearing began.

Having derived its name from a U.S. Supreme Court case decided dozens of years ago, a Wade hearing is triggered by a motion made by the defense-as Jaywalker had made on behalf of Carter Drake-to suppress, or exclude from the trial, the identification of the defendant by an eyewitness. The theory is that the witness has made a previous identification of the defendant under circumstances that were so fraught with suggestiveness caused by the police or prosecution that permitting a courtroom identification at trial would now deprive the defendant of the due process of law and, with it, a fair trial.

In practice, the inquiry at the hearing becomes a twopronged one. First, was the conduct of the law enforcement authorities so suggestive, either in the words they said or the things they did, as to render the prior identification so suspect that any mention of it must be kept from the jury? And second, if so, has that impermissible suggestiveness resulted in a situation where the witness, if now permitted to identify the defendant at trial, either by pointing to him as the perpetrator or testifying that he is, will be remembering him not because of his recollection of him from the crime scene, but from the subsequent police-arranged viewing of him, or from some inseparable mingling of the two prior sightings of him? If the answer to the second question is also yes, then not only must any reference to the improper police-arranged confrontation be excluded, but the witness will be barred altogether from making an identification of the defendant at trial.

By indicating that they intended to call only a single witness at the hearing, and choosing a law enforcement official rather than the eyewitness himself, the prosecutors were following a time-honored strategy. Jaywalker immediately recognized Investigator Templeton's name from the documents Firestone had bombarded him with. Templeton had conducted the lineup at which Concepcion Testigo, the driver of the pickup truck, had picked out Carter Drake. Not only would Templeton swear that the lineup was a model of fairness in every respect, but by calling him to describe it, the prosecution could shield Testigo from having to testify at the hearing, saving him instead for trial. As much as Jaywalker wanted to get a preview of the state's only true eyewitness, the D.A.'s office intended to deprive him of that free look.

KAMINSKY: By whom are you employed, Investigator Templeton?

TEMPLETON: The New York State Police.

KAMINSKY: In what capacity?

TEMPLETON: I'm a senior investigator. That's roughly the equivalent of a detective in a municipal police department.

KAMINSKY: Did there come a time when you conducted a lineup in this case?

TEMPLETON: Yes, there did.

KAMINSKY: When was that?

TEMPLETON: It was on the evening of the same day that the defendant surrendered.

KAMINSKY: Was the defendant represented at that point?

TEMPLETON: Represented?

KAMINSKY: Did he have a lawyer yet?

TEMPLETON: Yes. (Refers to his notes) He'd been accompanied by an attorney named Chester Ludlow at the time he surrendered and was taken into custody.

Good, thought Jaywalker. At least the witness wasn't going to pretend that he wasn't aware there was a lawyer in the picture. That meant they'd had an affirmative duty to notify counsel and give him an opportunity to attend.

KAMINSKY: Prior to conducting the lineup, did you notify Mr. Ludlow that you were about to do so?

TEMPLETON: Yes. I placed three calls to Mr. Ludlow's office, the first at 1705 hours, the second at 1845, and the third at 1901. In civilian time, that would be 5:05, 6:45 and 7:01 p.m.

KAMINSKY: And did you ever get to speak with Mr. Ludlow?

TEMPLETON: Yes. Mr. Ludlow finally called me from his home at 2014, or 8:14 p.m. He said he didn't expect to stay with the case, and had no intention of driving back up to New City for any- May I quote him?

KAMINSKY: Yes.

TEMPLETON: For any fucking lineup.

Great, thought Jaywalker. The guy bills at seven hundred and fifty dollars an hour, but he's too lazy to hop in his car, take a drive and watch what goes on. Or to get some paralegal or first-year associate to show up for him. Then again, it's just the only eyewitness we're talking about here, and it's nothing but a run-of-the-mill, nine-victim murder case.

God, how he hated lawyers.

KAMINSKY: Did you conduct the lineup anyway?

TEMPLETON: Yes, I did.

KAMINSKY: Please tell us how you went about it.

Templeton described how he'd been unable to round up "civilians" at that time of evening. So he'd recruited five fellow troopers. He'd had them remove their hats, holsters and weapons, and change out of their uniform shirts into civilian shirts or jackets. Then he'd placed them in the "suspect room," in front of a one-way viewing mirror. Once the defendant had been brought into the suspect room by another trooper, Templeton had directed him to select whichever position he wanted to stand in, from 1 to 6. When Drake had picked 5, he'd been given a large placard with that number on it, to hold against his chest. The five fill-ins had been given similar placards, 1 through 4, and 6.

KAMINSKY: What did you do next?

TEMPLETON: I left the suspect room and went around to the viewing room, where I met Mr. Testigo, the witness.

KAMINSKY: Was this the first time you'd met him?

TEMPLETON: Yes.

KAMINSKY: What time was it?

TEMPLETON: It was 2033, or 8:33 p.m.

KAMINSKY: Did you have a conversation with him?

TEMPLETON: I did.

KAMINSKY: What did you say, and what did he say?

TEMPLETON: I told him that when the shutters were opened he'd be looking at a lineup of six individuals. That he'd be able to see them, but they wouldn't be able to see him. That he could take as much time as he needed to look at them. And then I'd be asking him two questions. Did he recognize any of them? And if so, where did he recognize him from? I asked him if understood, and he said yes.

It was textbook stuff, Jaywalker knew. First, in allowing the suspect to pick his own number, Templeton had eliminated the appearance that the lineup had been rigged. Then, by keeping Templeton and Testigo isolated from each other until the lineup, the troopers had avoided the possibility that the investigator might infect the witness's choice, either intentionally or inadvertently. Next, by limiting the questions that Testigo would be asked, Templeton had eliminated any suggestiveness that might otherwise have seeped in. ("Are you sure?" "Take a good look." "Remember, the guy might be dressed differently now, or have shaved since the other day." And, all else failing, good old "How about number five?")

Finally, although a few controlled studies had shown that sequential lineups-in which the witness looked at only one individual at a time-produced fewer false identifications than old-fashioned simultaneous lineups, they also produced fewer true identifications. Shown six people, one after the other, witnesses often failed to pick out any of them. Shown the same six together, they were more willing to choose the one who most resembled the perpetrator. Give the average person a multiple-choice question, and he'll take a guess, educated or not. But in spite of those studies, the vast majority of police departments still clung to the old model. And judges, who are never to be confused with innovators, uniformly went along.

KAMINSKY: What happened next?

TEMPLETON: I opened the shutters and gave Mr. Testigo an opportunity to view the lineup. After a second or two, he said, "Okay." I asked him if he recognized anyone, and he said, "Yes, number five." I asked him where he recognized him from, and he said, "He was the guy who was driving the Audi."

On cross-examination, Jaywalker spent a few minutes getting some more specificity from Templeton regarding Chester Ludlow's refusal to show up for the lineup. He'd already dispatched Nicolo LeGrosso to serve a subpoena on Ludlow, more out of spite than anything else. It wasn't that he doubted Chet had opted out. That, Jaywalker knew, was fully in character. But he wondered if Ludlow's sheer indifference might not have risen to the level of ineffective assistance of counsel, an issue for an eventual appeal. Beyond that, there was the poetic justice of it. Eight months ago, Ludlow couldn't be bothered to make the trip, even though it would have meant picking up a couple thousand dollars for his time. Let him see how he liked doing it now, for nothing.

From there, Jaywalker turned to the composition of the lineup itself.

JAYWALKER: Let's talk about the fill-ins you selected, okay?

TEMPLETON: Okay.

JAYWALKER: You say they were all fellow troopers?

TEMPLETON: That's right.

JAYWALKER: And that's because it was too late in the day to find civilians?

TEMPLETON: Correct.

JAYWALKER: What time was it when you were first told to conduct the lineup?

TEMPLETON: May I check my notes?

JAYWALKER: Sure.

(Witness reviews report)

TEMPLETON: It was 1645 hours, 4:45 p.m.

JAYWALKER: And the streets were empty?

(No response)

JAYWALKER: Where did you go to look for civilian fill-ins?

TEMPLETON: Where did I go?

JAYWALKER: Yes.

TEMPLETON: Nowhere.

JAYWALKER: Nowhere?

TEMPLETON: Nowhere.

JAYWALKER: And despite going nowhere over the next four hours, you still weren't able to find anyone?

KAMINSKY: Objection.

THE COURT: Sustained. I get the point, Mr. Jaywalker. Let's move on.

JAYWALKER: All right. Can you tell us the ages of the troopers you used as fill-ins?

TEMPLETON: I'd have to read from my notes.

Jaywalker, who by this time had copies of the witness's notes, photos of the lineup and several pounds of additional documents, invited him to read away.

TEMPLETON: Their ages were twenty-four, twentythree, thirty-one, twenty-five and twenty-seven.

JAYWALKER: And the defendant was how old at the time?

TEMPLETON: Uh, forty-four.

JAYWALKER: In other words, thirteen years older than the oldest fill-in, eighteen years older than the average of their ages, and twenty-one years older than the youngest.

TEMPLETON: If you say so.

JAYWALKER: Would you like a moment to do the math?

TEMPLETON: No.

JAYWALKER: I ask that this photograph be marked for identification as Defendant's Exhibit A at the hearing.

(Exhibit marked for identification)

JAYWALKER: Do you recognize the photo?

TEMPLETON: I do.

JAYWALKER: How do you recognize it?

TEMPLETON: I took it.

JAYWALKER: Does it fairly and accurately depict the lineup that Mr. Testigo viewed?

TEMPLETON: It does.

JAYWALKER: I offer it into evidence.

KAMINSKY: Objection.

THE COURT: You're objecting to a photo of the lineup?

KAMINSKY: Yes.

THE COURT: On what basis?

KAMINSKY: I'll withdraw the objection.

THE COURT: Received as Defendant's A.

(Exhibit marked in evidence)

JAYWALKER: Taking a look at Defendant's A if you need to, do you recall the colors of the pants the men in the lineup were wearing?

TEMPLETON: Five were wearing gray pants, and one was wearing tan pants, I guess.

JAYWALKER: And the name of the one wearing tan pants?

TEMPLETON: Carter Drake.

JAYWALKER: And those five pairs of gray pants. Did they by any chance have a pair of contrasting stripes run ning down the full outer length of them?

TEMPLETON: Yes.

JAYWALKER: All five of them?

TEMPLETON: Yes.

JAYWALKER: Ten stripes?

TEMPLETON: Yes.

JAYWALKER: How about the shoes?

TEMPLETON: The five troopers are wearing regulation dress boots.

JAYWALKER: What color?

TEMPLETON: Black.

JAYWALKER: And Mr. Drake?

TEMPLETON: Looks like brown loafers, with tassels.

THE COURT: Anything else, Mr. Jaywalker?

There were times when such an interruption by a judge would anger him to the point where he'd not only say "Yes, as a matter of fact," but continue for another twenty minutes, long after he was out of questions. But this interruption was different. It meant Justice Hinkley had heard enough and was prepared to suppress the lineup.

"No," said Jaywalker. "I have nothing else."

But David Kaminsky did. Smart enough to realize where things were going, he excused Investigator Templeton and called Concepcion Testigo to the stand, in order to redirect his focus to the second prong of the hearing, whether or not the taint from the suggestive lineup would infect the witness's identification of the defendant at trial, requiring that to be excluded, as well.

But in the process, he'd be forced to give Jaywalker the free look at the eyewitness he so wanted.

Testigo strode into the courtroom easily. He was a construction worker by trade, a guy who made his living with his hands, framing walls. He didn't strike Jaywalker as a man with an agenda, or one who was overly impressed with his role in the drama. In other words, he was likely to be a good witness.

Kaminsky spent only a few minutes on preliminaries, knowing that the less ground he covered, the less Jaywalker would be permitted to go over. Then he got to the point.

KAMINSKY: Tell me, Mr. Testigo. As you sit here now, looking at Mr. Drake, where do you remember seeing him from, the lineup or the scene of the crime?

JAYWALKER: Objection.

THE COURT: Overruled. There's no jury here. I assure you, I'm not going to be swayed by the phrase scene of the crime.

JAYWALKER: That's good to know, Your Honor. But that's not the basis of my objection.

THE COURT: What is it, then?

JAYWALKER: May we approach?

THE COURT: Come up.

(At the bench)

JAYWALKER: Counsel has improperly made the question an either-or exercise. By doing so, he's committed the logical fallacy called e xcluding the middle. The witness's recollection might be based upon neither the lineup nor the accident scene, but upon something else entirely. Or upon both of those things, in combination. Or upon THE COURT: The objection is sustained. Rephrase the question, Mr. Kaminsky. Leave out the choices.

(Back in open court)

KAMINSKY: Exactly where do you remember Mr. Drake from?

TESTIGO: I remember him from the crash site, where I saw him force the van off the road.

KAMINSKY: Is there any doubt in your mind?

TESTIGO: As to what?

KAMINSKY: That he was the one who forced the van off the road.

TESTIGO: No.

KAMINSKY: Or that that's where you remember him from?

JAYWALKER: Objection. Leading.

THE COURT: Overruled. You may answer.

TESTIGO: No, no doubt at all.

As soon as Jaywalker heard the answer, he knew he could forget about any victory celebration. Justice Hinkley would hang her hat on Testigo's answer and permit him to point Drake out at trial as the one who'd run the van off the road. Still, he was determined to make it as hard as he could for her, and in the process nail the witness down on some details. He started where Kaminsky had left off.

JAYWALKER: Tell me, Mr. Testigo. That question that Mr. Kaminsky put to you, about where you remember my client from. Is this the first time you've heard it asked?

TESTIGO: Yes.

JAYWALKER: Are you sure?

Even as he asked the question, Jaywalker was fishing through one of the three cartons Abe Firestone had dumped on him five months earlier, and extracting a document. It happened to be a photocopy of an obscure subsection of the Vehicle and Traffic Law, something about a right turn being permitted at a steady red light after a full stop outside a municipality with a population not in excess of a million people. But the witness had no way of knowing that.

TESTIGO: Yeah, I'm sure. I mean, we may have talked about it.

JAYWALKER: We?

TESTIGO: Me and Mr. Kaminsky. And Mr. Firestone, I guess, once or twice.

JAYWALKER: So you talked about it on a number of occasions. Right?

TESTIGO: I guess so.

JAYWALKER: And did you ever say it was a combination of things that you remembered the driver from?

At that point Kaminsky interrupted and demanded a copy of whatever document Jaywalker was using. "But of course," said Jaywalker. And with that he hoisted the carton, all thirty pounds of it, onto one shoulder and lugged it over to the prosecution table, where he dropped it with a courtroom-shaking thud. "Actually, you'll find twelve copies of it in there, along with several tons of other garbage you folks dumped on me."

KAMINSKY: May we have a page reference?

JAYWALKER: Yes. Page one. How about it, Mr. Testigo? In addition to the "crash site," as you call it, what were some of the other places you'd seen my client, either in person, on television, or in photographs?

KAMINSKY: Objection.

THE COURT: Overruled.

TESTIGO: I'd seen him on TV earlier that day.

JAYWALKER: How about in photographs?

TESTIGO: No. Not unless you count a photo of him that they showed on the news.

JAYWALKER: You saw that?

TESTIGO: Yes.

JAYWALKER: Before the lineup?

TESTIGO: Not right before it.

JAYWALKER: But before it?

TESTIGO: Yes.

But when Jaywalker tried to get him to admit that his present recollection of Drake was based upon a combination of those various sightings plus the lineup itself, Testigo balked, insisting that his memory was based solely upon the first time he'd seen Drake, behind the wheel of his Audi. And although Jaywalker tried his hardest to undermine that insistence, suggesting that the confrontation had been nothing but a split-second glimpse, Testigo wouldn't budge.

In the end, it was good enough for Justice Hinkley. "I'm going to grant the motion to suppress," she announced, "with respect to the lineup. Although it was procedurally conducted without flaw, I find that it was indeed overly suggestive in its composition. The People are therefore barred from introducing it or referring to it in any way at trial, unless the defense opens the door first. As to the proposed courtroom identification of the defendant by the witness, I find that it has an independent basis in fact, untainted by the shortcomings of the lineup. What the witness may have seen or not seen on TV is irrelevant to the issue before me, because what was broadcast was in no way due to any impropriety on the part of the police or prosecution. While you are free to raise it on cross-examination, Mr. Jaywalker, it has no impact on my ruling with respect to suppression.

"Now," she continued, "are both sides ready for trial?"

"The People are ready!" The voice was unmistakably Firestone's.

"The defendant is ready."

"Good. Nine-thirty tomorrow morning."

"Excuse me, Your Honor."

All eyes turned to a junior court clerk sitting behind a desk in the corner. He was holding a telephone receiver aloft.

"Yes?" said the judge.

"There's an urgent phone call for Mr. Jaywalker. A Chester Ludlow, Esquire. And," he added, covering the mouthpiece with his free hand, "he sounds very upset."

Jaywalker chuckled. He'd completely forgotten that he'd dispatched Nicky Legs to subpoena Ludlow. "May I?" he asked the judge.

"Be my guest."

Jaywalker took the receiver from the clerk. "Hi, Chet," he said.

"I'm ten minutes away," said the voice on the other end. "I hope you know this is going to cost your client seven-fifty an hour, plus the limousine charges, plus-"

"Wrong, Chet. This isn't going to cost my client a cent. You're coming up here as a subpoenaed witness, not a lawyer."

Silence.

"But maybe I can save you a few minutes," said Jaywalker. "When an Investigator Templeton from the state police invited you to attend a lineup, did you by any chance tell him that you had no intention of driving back up to New City for-let me check the transcript of the call so I get it right-quote, 'any fucking lineup'? Was that you?"

"He r ecorded that conversation?"

"Of course he recorded it." It was Jaywalker's turn to cover the mouthpiece. He didn't want Ludlow hearing the laughter in the courtroom, a good portion of which was coming from the bench.

"Well," said Ludlow. "I may have said something to that effect. It was late, I was tired, and-"

"Not something to that effect," said Jaywalker. "Were those your words?"

"I guess they were."

"Good night, Chet." And with that, Jaywalker slammed down the phone. Then, in the interest of completing the sign-off, he turned to Kaminsky and said, "Good night, David."

But Kaminsky couldn't have been much over thirty, if that. All he could come up with was a glance at his watch and a confused "Good night?" After all, it was three-fifteen in the afternoon.

Driving back to the city that afternoon, Jaywalker took stock of the day's proceedings. His victory in getting the lineup suppressed had not only been fleeting, but Pyrrhic as well. Concepcion Testigo would be permitted to identify Carter Drake at trial. True, the jurors wouldn't hear that he'd picked him out at a lineup six months ago. But that meant they wouldn't hear how flawed that lineup had been, and how it now might be contributing to Testigo's recollection. Jaywalker was free to introduce the lineup in order to show those things. But if he did so, he'd be opening the door, as the judge had put it, to the results of that lineup, and to the rigorous way Investigator Templeton had conducted it.

In other words, it was a classic heads-I-win, tails-youlose proposition. With Jaywalker and Drake as the you.

No, he quickly decided, he couldn't bring it up without hurting their chances even more. Luckily, the case wouldn't turn on it. It wasn't a whodunit, after all. Carter Drake had been driving the Audi. He was going to testify to that. That and the wasp.

Jaywalker turned on the radio, an ancient staticky AM thing with old-fashioned push-button settings. Jewish klezmer music came on from a local station.

Not a good omen.