Depraved Indifference

17

Thursday morning brought a light freezing rain to the

Northeast. Maybe, Jaywalker decided, Justice Hinkley hadn't been lying after all. Maybe she'd just gotten her timing wrong. Which wasn't to say she might not make it in a future life as a weather forecaster, one of those daring souls who were forever putting their reputations on the line by boldly predicting a fifty percent chance of showers.

Thursday morning also brought the End Zone wit nesses. First up was a man named Frank Gilson. Gilson was the client Carter Drake had worked with in Nyack earlier on the day of the incident. Jaywalker had known

Gilson would be called, not only from the reports turned over to him by Firestone, but from a letter of apology

Gilson had sent Drake, through Amanda. He felt terrible about testifying against his business associate and friend, but he had been given little choice by the prosecutors, who'd said he could either take the stand or thirty days for contempt. He'd decided to take the stand.

Julie Napolitano did the honors.

NAPOLITANO: Did you have a meeting with the defen dant on May 27 of last year?

GILSON: I did.

NAPOLITANO: Where was that meeting?

GILSON: At my office in Nyack.

NAPOLITANO: What time did that meeting begin?

GILSON: About ten, ten-thirty in the morning.

NAPOLITANO: And when did it end?

GILSON: Maybe four-fifteen.

NAPOLITANO: What did you do at that point?

GILSON: We'd skipped lunch, and we were both hungry and thirsty. So I suggested we go get something to eat and drink, and Carter agreed.

NAPOLITANO: Where did you go?

GILSON: We went to a place called the End Zone, also in Nyack. It's what they call a sports bar. Good food, good drinks, nice crowd. We found a table, sat down and ordered.

NAPOLITANO: Was it just the two of you?

GILSON: At first it was. After a while, I called up a friend of mine and suggested she come over and join us.

NAPOLITANO: Can you tell us her name?

GILSON: Trudy, Trudy Demarest.

NAPOLITANO: By the way, Mr. Gilson, are you married?

GILSON: No, I'm not.

Gilson described how Trudy, along with two of her girlfriends, had joined them at the End Zone. As the evening wore on, they gradually switched from martinis and buffalo wings to shots of tequila.

NAPOLITANO: Over the course of the afternoon and evening, did you have an opportunity to observe how much the defendant had to drink?

GILSON: I certainly wasn't keeping count, if that's what you mean.

NAPOLITANO: We've discussed this before, haven't we, Mr. Gilson?

JAYWALKER: Objection.

THE COURT: Sustained. Please rephrase the question.

NAPOLITANO: What is your best recollection as to the number of drinks the defendant had at the End Zone?

GILSON: I would say he had two or three martinis. After the girls showed up, well, there were a lot of glasses on the table, and honestly, it was hard to tell who had how many.

NAPOLITANO: Do you recall testifying before the grand jury in June of last year?

JAYWALKER: Objection.

THE COURT: Overruled.

GILSON: Yes.

NAPOLITANO: Do you recall Mr. Firestone asking you how many shots of tequila you saw Carter Drake drink?

GILSON: Yes.

NAPOLITANO: Do you recall answering, "I'm not sure. Five, six, seven. Something like that"? Do you recall say ing that, under oath?

GILSON: Yes.

NAPOLITANO: Was that testimony accurate then?

GILSON: Yes.

NAPOLITANO: Is it accurate today?

GILSON: I guess so.

NAPOLITANO: You guess so?

GILSON: Yes, it's accurate.

If Gilson had been trying to avoid hurting Drake, and Jaywalker was pretty sure he had been, his reticence had had precisely the opposite effect. It was bad enough to be damned by your enemies. When your friends testified against you, it got much worse. And ironically, it was Gilson's genuine reluctance-based on his obvious loyalty to Drake, trumped only by the threat of jail-that branded his testimony with a capital T for Truth.

Julie Napolitano spent another twenty minutes with Gilson. He admitted that he'd had almost as much to drink as Drake had that day, and that neither of them had eaten anything other than a few buffalo wings, and that had been early on. Yes, he had to admit, he would have considered himself drunk.

He remembered a young man showing up to drive Drake home, or so he assumed. But he was unable to describe the young man. Shown a photograph of Eric Drake, the most that he could state was, "That looks sort of like him."

"I'll stipulate," said Jaywalker, "that it was indeed my client's son who showed up." No use making a mystery of it. He didn't need the jurors speculating that the young man was some gay teenage lover, or something like that. Drake had enough strikes against him as it was.

Nicky Legs had interviewed Gilson months ago, and Jaywalker knew there was little to be gained from crossexamining him. Still, he couldn't very well ask nothing. Gilson had hurt Drake too much.

JAYWALKER: The two young women who showed up with Trudy. Do you happen to remember their names?

GILSON: Yes. One was Rachel Harper. The other was Amy Jo something, a redhead. I don't recall her last name. I'd never met her before.

JAYWALKER: Does the name Amy Jo O'Keefe refresh your recollection?

It had actually taken both Jaywalker and Nicky Legs an awful lot of work to come up with the last name. Way back at the time of Firestone's three-carton-discovery bombardment, it had been apparent that three women had joined Drake and Gilson at their table that evening. But for some reason, only two of them-Trudy Demarest and Rachel Harper-seemed to have names. Stuff like that tended to make Jaywalker suspicious, so suspicious that he'd not only made a written note of the fact, but had deemed the omission worthy of gold-nugget status. Eventually, Nicky had succeeded in identifying the woman as Amy Jo O'Keefe, but he'd gotten no further; she hadn't agreed to talk to him. So at that point, Jaywalker still considered her important, though if asked, he couldn't have said why.

GILSON: That might have been it. I'm not sure. They did call her "Irish," though. You know, as a nickname.

JAYWALKER: Okay. And you say the five of you sat around talking and doing shots of tequila?

FIRESTONE: I object. There's no evidence they were talking.

JAYWALKER: I object to Mr. Firestone's objecting. It's not his witness.

THE COURT: Yes, sustained.

NAPOLITANO: Objection.

JAYWALKER: I'll withdraw the question. Mr. Gilson, did the five of you talk?

GILSON: Yes.

JAYWALKER: And were you sitting around while you did that?

GILSON: Yes.

JAYWALKER: Thank you. Is it fair to say that as the evening wore on, there were a number of glasses on the table.

GILSON: Yes.

JAYWALKER: And it was difficult to tell which glasses belonged to which people?

GILSON: Yes.

JAYWALKER: And who had had how many drinks?

GILSON: Yes, very difficult.

JAYWALKER: So the number you gave Miss Napoli tano earlier was more like an estimate or a guess than an accurate recollection?

GILSON: Correct.

JAYWALKER: Do you recall the actual number of drinks Mr. Drake had?

GILSON: No.

JAYWALKER: Was he talking loudly?

GILSON: No.

JAYWALKER: Acting boisterously?

GILSON: No, not at all.

JAYWALKER: Having trouble speaking or walking?

GILSON: No.

JAYWALKER: Did he at any time strike you as reckless, depraved, indifferent, wicked, perverted, immoral, degenerate, lewd, licen FIRESTONE and NAPOLITANO: Objection, objection.

THE COURT: Sustained.

GILSON: No, not at all.

THE COURT: I said sustained. That means you don't answer the question.

GILSON: Oh. Sorry.

Napolitano called Gilson's girlfriend, Trudy Demarest, to the stand. Her testimony turned out to be pretty much a carbon copy of Gilson's, at least from the point she'd arrived at the End Zone. Nicky Legs had interviewed her, too, so Jaywalker had expected as much. On crossexamination, he focused on the two friends she'd brought along.

JAYWALKER: Rachel Harper. Do you happen to know where she is now?

DEMAREST: She's in California. L.A. She moved out there in September. Couldn't stand the cold.

JAYWALKER: How about Amy Jo? Is her last name O'Keefe, by the way?

DEMAREST: Yes.

JAYWALKER: Do you know where she is?

DEMAREST: Right over there.

(Witness points)

THE COURT: Would counsel approach, please?

Jaywalker was joined by all three prosecutors at the bench. He loved it when that happened. It highlighted the mismatch.

"Why is she sitting in the audience?" Justice Hinkley wanted to know.

"I didn't know she was here," said Firestone. "But it is a public courtroom."

"Thank you for the civics lesson," said the judge.

"We don't intend to call her," explained Kaminsky, the law man. "Her testimony would be merely cumulative."

Bingo, thought Jaywalker. The prosecution had listed among its witnesses no fewer than twenty-one individuals prepared to testify about the identities of the nine victims, none of which were in question. Yet they were reluctant to call one of the four people who'd been drinking with the defendant, because it would be merely cumulative? Not likely. Amy Jo O'Keefe, who had for some reason refused to talk with Nicky Legs, had to have something to hide.

"Why don't we exclude her," suggested Jaywalker. "I might just call her."

"Step back," said the judge. Then, to the jurors, "I think this might be a good time to take our midmorning recess. We'll resume in fifteen minutes. Don't discuss the case."

When they reconvened, Firestone asked to approach the bench again. But it was Kaminsky who spoke once they got up there. "We've decided to call Miss O'Keefe after all. Because we failed to exclude her from the courtroom during prior testimony, we wanted to give Mr. Jaywalker an opportunity to be heard, in case he objects."

"Mr. Jaywalker?" said the judge.

Again, it was one of those moments when he had to think fast. There were three things he could do. First, he could oppose her testifying at all. But he'd already decided that Firestone must have had a reason for not calling her in the first place. Second, he could ask for a sanction against the prosecution, such as the judge's instructing the jurors to regard her testimony with additional scrutiny, since she'd had the benefit of hearing earlier witnesses describing the same events she'd be asked about. But if it turned out that Miss O'Keefe's version of the facts was more favorable to Drake, as Jaywalker strongly suspected it might be, that instruction would boomerang and come back to hurt the defense.

Having set enough traps of his own over the years, Jaywalker recognized one when he saw it. So he picked Door Number Three. "I appreciate the prosecution's looking out for me," he said. "But I have no application regarding the witness."

"You know I'll issue a cautionary instruction," said Justice Hinkley, "if you request it."

"No, thank you," said Jaywalker, unable to suppress a wink. "And I'll assume Mr. Firestone has fulfilled his Brady and Rosario obligations."

The prosecutors looked at each other blankly. Brady required them to turn over any exculpatory material. Rosario dealt with reports containing prior statements of witnesses.

"Of course," said Firestone.

"Yes," said Kaminsky.

"Naturally," said Napolitano.

Jaywalker couldn't help picturing the three monkeys, See No Evil, Hear No Evil, and Speak No Evil.

"You may step back," said the judge. And once they had, "Call your next witness, Mr. Firestone."

In describing that witness in its next day's edition, the reporter for the Rockland County Register would put it this way:

Barely five feet tall in heels, Amy Jo O'Keefe weighs 99 pounds, by her own admission. With flaming-red hair, bright green eyes, a button nose and an absolutely irrepressible smile, she's as cute as a firecracker.

What the paper delicately refrained from pointing out was the fact, obvious to everyone in the courtroom, that either Amy Jo had been spectacularly endowed by her Creator, or that a good portion of those ninety-nine pounds consisted of silicone, or at least some material not naturally found in the human body.

FIRESTONE: Is it Miss O'Keefe, or Mrs? Or Ms.?

O'KEEFE: It's Miss.

FIRESTONE: Are you employed, Miss O'Keefe?

O'KEEFE: Yes, I'm a sales rep for Pfizer. That's a pharmaceutical company.

FIRESTONE: Do you recall the late-afternoon and early-evening hours of May 27 of last year?

O'KEEFE: Yes, I do.

FIRESTONE: Where were you at that time?

O'KEEFE: I was at the End Zone.

FIRESTONE: Who were you with at the End Zone?

O'KEEFE: Rachel Harper, Trudy Demarest, Frank Gil- son, and that man over there.

(Points)

FIRESTONE: Indicating the defendant.

THE COURT: Yes.

FIRESTONE: Prior to that date, had you ever met him?

O'KEEFE: No.

Firestone had her recount how the five of them had taken turns downing shots of tequila. Amy Jo had lost count around the fifth round, she said. Yes, she was pretty sure Drake had kept up. She confessed that the two of them had flirted. "He wasn't wearing a wedding band," she explained. "I didn't know he was married till I read about him in the papers, two days later. Honest."

Great, thought Jaywalker. One more reason for the jurors to dislike Drake.

FIRESTONE: Who left the End Zone first, you or the defendant?

O'KEEFE: He did. His son showed up to drive him home. I remember, 'cause I'd given him my phone number ear lier, and when I found out he had a son who was almost as old as I was, I took back the napkin with my number on it.

FIRESTONE: How did he react to that?

O'KEEFE: He seemed angry, or more like embar rassed, I guess.

FIRESTONE: But he did leave?

O'KEEFE: Yes.

FIRESTONE: Have you had any contact with him or his lawyer since?

O'KEEFE: No. Please forgive me for saying this, but I think he's a total sleazebag.

FIRESTONE: We can strike that, Your Honor.

THE COURT: Mr. Jaywalker?

JAYWALKER: She said it.

THE COURT: Do you wish it stricken?

JAYWALKER: No, thank you.

Jaywalker had learned long ago that the lesson of the Trojan horse applied to courtroom battles as well as historical ones. It was one thing when an honorable prosecutor offered to strike something that threatened to give his side an unfair advantage. When an Abe Firestone did it, it was time to beware of Greeks bearing gifts. THE COURT: We'll let it stand, then. But please confine your answers to the questions, Miss O'Keefe.

O'KEEFE: Yes, ma'am.

Whatever had been the source of Firestone's reluctance to call Miss O'Keefe continued to remain unclear. Certainly it hadn't been Drake's drinking or flirting, or the fact that his son had showed up to drive him home. Or even her personal opinion of him. So it had to be something else.

Every once in a while, Jaywalker knew, crossexamination could turn into a treasure hunt.

JAYWALKER: You say the defendant matched you, shot for shot. Is that correct?

O'KEEFE: Yes.

JAYWALKER: And you matched him?

O'KEEFE: Yes.

JAYWALKER: How many drinks did you have after he left?

Not "Did you have any more drinks?" That would have been the proper form of asking the question, instead of assuming a fact not in evidence, as Jaywalker's version had. But that would have allowed Amy Jo to answer "No." Firestone was asleep at the switch, however, and didn't think to object, at least not until it was too late.

O'KEEFE: Two or three.

Which would make up for Drake's earlier martinis and put them pretty much at the same count. If anything, hers were bunched more closely together.

JAYWALKER: Tequilas?

O'KEEFE: No, I switched over to Jagermeister.

He'd have to check the proof of that. Not as strong as 120-proof tequila, no doubt. But probably the equivalent of a martini.

JAYWALKER: Fair to say you can hold your own when it comes to drinking?

O'KEEFE: Hey, they don't call me "Irish" for nothing.

THE COURT: Careful.

(Laughter)

JAYWALKER: But you can hold your liquor?

O'KEEFE: You could say that.

JAYWALKER: It doesn't count if I say it. Would you say it?

O'KEEFE: Definitely. I can hold my liquor with the best of them.

JAYWALKER: Forgive me for asking, but how much do you weigh?

FIRESTONE: Objection.

THE COURT: Overruled. It may have some relevance.

O'KEEFE: Ninety-nine pounds.

JAYWALKER: About the same as you weighed last May?

O'KEEFE: Yes.

JAYWALKER: Do you by any chance recall what time you yourself left the End Zone that evening?

O'KEEFE: Nine, nine-thirty. Something like that.

Okay, thought Jaywalker. It was now or never. Sometimes you played things close to the vest, and sometimes you said fuck it and took your shot. This, he'd decided, was one of those times.

JAYWALKER: Would you say you were drunk when you left?

O'KEEFE: No.

JAYWALKER: I noticed you didn't hesitate before answering. Does that mean there's no question in your mind?

O'KEEFE: There's no question in my mind.

Here goes, Jaywalker told himself. And muttering a silent prayer to a God he didn't believe in, he asked the question. If it worked, it worked. If it didn't, no big deal. He'd have the rest of the day to wipe the egg off his face.

"How'd you get home?" he asked her.

This time Amy Jo did hesitate before answering, and Jaywalker fully expected to hear an objection from Firestone. Technically speaking, how she'd gotten home was irrelevant to the charges against Carter Drake, and Jaywalker wasn't sure how he'd go about arguing otherwise. But Firestone, who'd been quick to object to letting the jurors hear Amy Jo's weight, of all things, let it go.

"I drove," she said.

And there it was.

He spent the next fifteen minutes having her describe her drive home. How capably she'd managed it, how fully she'd been in control, and how she'd arrived safely, without incident.

JAYWALKER: By the way, where is your home?

O'KEEFE: Ramapo.

JAYWALKER: Ramapo, New Jersey?

O'KEEFE: Yes.

JAYWALKER: Same as last May?

O'KEEFE: Yes.

JAYWALKER: How long a drive was that?

O'KEEFE: About forty minutes.

JAYWALKER: No problem driving it?

O'KEEFE: Nope, no problem.

JAYWALKER: Did you consider it reckless on your part?

FIRESTONE: Objection.

THE COURT: Overruled. You may answer.

O'KEEFE: No, I did not.

JAYWALKER: Did you think you were acting with a de praved indifference FIRESTONE: Objection!

JAYWALKER: — to human life?

FIRESTONE: Objection! Objection! Objection!

THE COURT: I'll allow it. And then we'll move on, Mr. Jaywalker.

O'KEEFE: Could you repeat the question?

JAYWALKER: Let me rephrase it. Did you think at the time, Miss O'Keefe, that you drove those forty minutes with a depraved indifference to human life?

FIRESTONE: Objection!

THE COURT: Sit down. I've ruled.

O'KEEFE: No, I did not.

JAYWALKER: And as you reflect upon it now, would your answer be any different?

O'KEEFE: No, not at all.

And there it was, Jaywalker's summation.

Amy Jo O'Keefe was a woman, meaning a given amount of alcohol would affect her nearly fifty percent more than it would a man of equal body weight. She weighed maybe half what Carter Drake did. Over a slightly shorter period of time, she'd consumed roughly the same amount of alcohol as he had. Yet she'd been able to get into her car, start it up, and drive forty minutes without incident to another state.

And Carter Drake? In getting into his car and driving himself home, had he acted one bit more recklessly than Amy Jo? One bit more depravedly indifferent to human life?

Of course he hadn't. He'd just been unlucky, that was all. T erribly unlucky.

Under our system, jurors, a good argument can be made that both Amy Jo O'Keefe and Carter Drake broke the law that night. She drove while intoxicated. So did he. She got away with it, as do thousands, if not millions, of motorists, year in and year out. He didn't. But ask yourselves this. Should dumb luck mean that one of them should be able to walk away free, to joke about her Irish heritage and say "No problem," while the other one should spend the rest of his days locked up in a cage? Even if he does happen to be a no-good, cheating sonof-a-bitch sleazebag?

Okay, so it needed a little polishing. But there it was, the utter hypocrisy of the law, laid bare. All because Firestone and his team had initially decided against calling a witness whose testimony, they'd explained, would be merely cumulative. Jaywalker would have been willing to bet his entire fee-okay, a pocketful of Samoan pennies-that they'd known full well that O'Keefe had driven home safely, that they'd chosen not to call her precisely because they'd been afraid that fact might come out, and that they'd shredded any police reports mentioning her, in violation of both Brady and Rosario.

On redirect, to his credit, Abe Firestone brought out a few differences in the way Amy Jo had driven home and the way Carter Drake had.

FIRESTONE: Did you speed on the way home?

O'KEEFE: No, I drove under the speed limit.

FIRESTONE: Did you drive on the wrong side of the road?

O'KEEFE: No.

FIRESTONE: Did you run any vans off the road?

O'KEEFE: No.

FIRESTONE: Did you kill eight little kids and JAYWALKER: Objection.

THE COURT: Sustained.

On second thought, maybe he had to rethink that part of his summation just a bit.

They broke for lunch.

That afternoon Firestone called Riley the Bartender. Riley, who actually turned out to have a first name, Daniel, showed up in a faded blue suit, a white shirt two sizes too big at the collar and a one-inch-wide black tie. It was an outfit straight out of the 1950s, and it made him look as though he was auditioning for a bit part in a retro movie. Had he been Jaywalker's witness, he would have worn his bartender vest, with a white towel thrown over one shoulder. Jaywalker would never understand what possessed other lawyers to try to dress up their witnesses.

Firestone established that Riley had thirty-six years of bartending experience, the last nine of them at the End Zone. He'd come on duty around five-thirty the afternoon of May 27, just in time for the evening rush. Yes, he remembered the defendant, who'd been seated at a table with Frank Gilson, a "sort of regular" customer. And yes, they'd been joined a few minutes later by three attractive young ladies, all of whom Riley recognized.

FIRESTONE: What were they drinking?

RILEY: Martinis, at first. Once the young ladies joined them, they switched over to tequila.

FIRESTONE: Any particular type of tequila?

RILEY: Yeah. They asked for what we in the business call a designer brand. This particular one was a dark amber, 120 proof instead of the usual 90 or 100, and said to be very smooth going down.

FIRESTONE: What do you mean by "said to be smooth"?

RILEY: Well, I wouldn't really know. I don't drink.

(Laughter)

RILEY: It also happens to be very expensive.

FIRESTONE: How expensive?

RILEY: They were doing shots. It was costing them fifteen dollars a shot.

FIRESTONE: How much tequila was there in each shot?

RILEY: About an ounce and a half.

FIRESTONE: At this time, are you able to tell us how many martinis and how many shots of 120-proof designer tequila the defendant consumed that evening?

RILEY: I'd have to look at the tab.

At that point Firestone produced a check and showed it to his witness, who identified it as the one that had been turned over to state troopers back in June. With no objection from Jaywalker, it was received in evidence.

FIRESTONE: Does looking at that exhibit refresh your recollection?

RILEY: Yeah. All told, they had six martinis and, let me see, twenty-four shots of tequila. Of those, I'd say the defendant personally had three martinis and maybe six or seven tequilas.

FIRESTONE: Did there come a time when you had a conversation with the defendant?

RILEY: Yes.

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

RILEY: I asked him if he had a ride home. He pointed at himself, like he was his own ride. I said, "No good." I handed him a phone, a cordless one we keep behind the bar, and I asked him to call somebody to come pick him up. He protested for a moment or two, but then he agreed and made a call.

FIRESTONE: Why did you say "No good" and make him call somebody?

RILEY: Because I didn't think he was in any condition to drive.

FIRESTONE: Over your thirty-six years of experience as a bartender, have you seen a number of people who were intoxicated?

RILEY: More than you can imagine.

FIRESTONE: In your opinion, was the defendant intoxicated?

RILEY: Yes.

FIRESTONE: Do you happen to know who he called?

RILEY: Not for sure. But about forty-five minutes later, a kid showed up, maybe nineteen or twenty years old. And after the defendant settled up with Mr. Gilson, he and the kid left the place together.

Firestone thanked the witness, collected his notes, and started walking away from the podium. "Oh, yeah," he said as if he'd suddenly remembered, in his best Peter Falk impersonation. "One more thing. What did the check come to?"

Riley said he had to look at it to remember. "Let's see. Four hundred and ninety-two dollars and seventyfive cents."

"Thank you very much," said Lieutenant Colombo.

Following the midafternoon break, Jaywalker began his cross-examination of Riley where Firestone had ended his redirect.

JAYWALKER: Four hundred and ninety-two dollars and seventy-five cents, huh?

RILEY: Yeah.

JAYWALKER: Not all of that was for drinks the defendant had, was it?

RILEY: No. Like I said, there was five of them at the table. So all you got to do is divide it by five.

JAYWALKER: So all five of them were drinking?

RILEY: Yup.

JAYWALKER: And I see there's some food items included on the bill?

RILEY: Right.

JAYWALKER: And some tax?

RILEY: Got to give the governor his cut.

JAYWALKER: Right. Now these fifteen-dollar shots of tequila. Toward the end, were you watering them down just a bit? You know, to keep folks from getting drunk?

RILEY: No way. I couldn't have, even if I'd wanted to. It would have made them look lighter.

JAYWALKER: So you can only get away with that if they're drinking gin or vodka. Right?

RILEY: Right.

JAYWALKER: And you've done that once or twice in your thirty-six years of bartending. Haven't you?

RILEY: No.

JAYWALKER: Never?

RILEY: Well, maybe once or twice.

JAYWALKER: But that's impossible to do with an amber-colored drink.

RILEY: Right.

JAYWALKER: Unless, of course, you were to add a drop or two of caramel food coloring along with the water. Right?

RILEY: I suppose so.

JAYWALKER: That's the stuff that gives Cokes and

Pepsis and root beer and all sorts of other drinks their nice amber color. Right?

RILEY: I guess so.

JAYWALKER: Tell me. Do you by any chance keep a little caramel food coloring behind the bar?

RILEY: Yes.

Jaywalker hadn't just gotten lucky there. He'd worked his way through law school tending bar, out in Ann Arbor. He knew all the dirty little tricks. Including telling the State Liquor Authority inspectors that the stuff was for making the soda coming out of the tap look darker when there wasn't quite enough syrup in the mix.

JAYWALKER: And these Jagermeisters on the bill. I assume they were ordered after my client had already left?

RILEY: Right.

JAYWALKER: You saw him leave, as a matter of fact. Didn't you?

RILEY: Yup.

JAYWALKER: He didn't stagger out, did he?

RILEY: Nope.

JAYWALKER: Didn't fall down?

RILEY: Nope.

JAYWALKER: Didn't require assistance?

RILEY: Nope.

JAYWALKER: And you never cut him off, did you?

RILEY: Cut him off? Well, I made him call for a ride.

JAYWALKER: But you never refused to serve him?

RILEY: No.

JAYWALKER: You would have done so if you thought he was intoxicated, wouldn't you?

It was one of those win-win questions Jaywalker loved so much. The law prohibited a bartender from serving an intoxicated person. So either Riley would have to admit committing a crime that made him complicit in nine deaths, or he'd have to vouch for the defendant's sobriety. Firestone saw the trap immediately, and was on his feet objecting.

THE COURT: Overruled.

JAYWALKER: Wouldn't you have cut him off?

RILEY: Yes.

JAYWALKER: Do you remember Mr. Firestone asking you about an hour ago for your opinion, based upon your thirty-six years of experience as a bartender, whether my client was intoxicated or not? Do you remember that?

RILEY: Yes.

JAYWALKER: And you said yes?

RILEY: Well…

JAYWALKER: Well? Did you say yes, in your opinion he was intoxicated?

RILEY: Yes.

JAYWALKER: Was that a lie?

RILEY: No, it was…

JAYWALKER: I'm sorry, I couldn't hear you.

RILEY: I'm not sure what it was. I was confused.

JAYWALKER: But whatever it was, it wasn't the truth. Was it?

RILEY: No, not exactly.

JAYWALKER: As you observed my client back on May 27 of last year, it was actually your opinion that he wasn't intoxicated. Right?

RILEY: Right.

JAYWALKER: No question about that?

RILEY: No question about that.

God, how Jaywalker hated himself at times like this. He had every reason to believe that Carter Drake had not only been drunk, but had been obviously drunk. Riley had seen that and known it. His making Drake call for a ride proved it. Yet he'd continued to serve him. Abe Firestone had tried to do everything in his power to allay Riley's fear of what might happen to him if he admitted the inconsistency. First he'd immunized Riley from prosecution by putting him into the grand jury and having him testify without requiring a waiver of immunity from him. That meant Riley could never be prosecuted for what he'd done, never. Then he'd no doubt given Riley all sorts of assurances that he was safe, no matter what he were to say at the trial. Finally he'd popped the question, and Riley had passed the first test by saying yes, in his opinion Drake had been intoxicated. So far, so good. But as soon as Jaywalker had zeroed in on the implications of that opinion, that the bartender had continued to serve an intoxicated person, Riley had caved and said no, that hadn't been true.

Mothers, Jaywalker had said more than once, don't raise your sons to be prosecutors. But if you must, at least teach them to know that their witnesses will screw up every time they're backed into a corner and accused of breaking the law.

Now Jaywalker had to nail things down a bit.

JAYWALKER: Tell me, Mr. Riley. Did you consult with a lawyer in connection with this case?

RILEY: Yes. My manager provided a lawyer for me.

JAYWALKER: Did it ever occur to you that that lawyer might have a conflict of interest?

RILEY: What do you mean?

JAYWALKER: I mean that he might have been more concerned about protecting the business and its liquor license than protecting you.

RILEY: That's possible, I guess.

JAYWALKER: Well, did that lawyer explain to you that by his actions, Mr. Firestone had made it impossible, legally impossible, for you to be charged, even though you continued to serve my client? Did he explain that to you?

RILEY: Yes.

JAYWALKER: And you understood that, didn't you?

RILEY: Yes.

JAYWALKER: And you believed it, didn't you?

RILEY: Yes.

JAYWALKER: So as you sit there now, you're immune from prosecution, right?

RILEY: Immune from prostitution?

JAYWALKER: They can't charge you, can they?

RILEY: No.

JAYWALKER: So did your lawyer instruct you, there fore, to go ahead and tell the absolute truth?

Pretty safe there.

RILEY: Yes.

JAYWALKER: And did Mr. Firestone tell you the same thing?

RILEY: I don't remember him saying that.

FIRESTONE: I said it.

JAYWALKER: Objection.

THE COURT: Sustained. The comment is stricken, and the jury will disregard it. Consider yourself warned, Mr. Firestone. Please continue, Mr. Jaywalker.

JAYWALKER: Thank you. In any event, Mr. Riley, you took an oath earlier today, did you not?

RILEY: Yes.

JAYWALKER: And that oath was to tell the truth, the whole truth, and nothing but the truth. Correct?

RILEY: Correct.

JAYWALKER: And when you testified a little while ago that in your opinion my client was not intoxicated, and that there was no question about it, was that in fact the absolute truth?

RILEY: Yes.

JAYWALKER: Thank you.

As he had with Amy Jo O'Keefe, Abe Firestone tried to rehabilitate Daniel Riley. He had some success, for example getting Riley's assurance that he hadn't watered down the tequila that evening, despite the knowledge and wherewithal to do so. But when it came to his opinion as to whether or not Carter Drake had been intoxicated, Riley wouldn't budge. Jaywalker had by that time so cemented the reversal of Riley's first answer that the poor guy was now unwilling to re-reverse himself, even if it meant going back to the truth.

FIRESTONE: And yet you insisted that he call somebody to come pick him up and get him out of there. Didn't you?

RILEY: I did.

FIRESTONE: Why did you do that?

It was a good point. That said, any question that begins with the word why has the potential of drawing a totally unintended, not to mention totally undesired, response. No doubt Firestone fully expected to hear his witness-for it was his witness, after all-say that he at least had harbored reservations about Drake's sobriety and his ability to drive home safely. But for once, he didn't get what he'd asked for.

RILEY: To tell you the truth, because I didn't like the way he was hitting on Amy Jo.

Splat!

It was as good a way to end the day as Jaywalker could have hoped for. Firestone could have chosen to leave well enough alone, and then argued in summation that Riley's actions had spoken louder than his words. Despite his denials, he had, after all, made Drake call for a ride. There's a legal expression, encrypted in ancient Latin to keep ordinary mortals from understanding it, that goes r es ipsa loquitor.

The thing speaks for itself.

Instead, by asking the why question, Firestone had seized defeat from the jaws of victory. He'd managed to inject an ulterior motive into Riley's testimony: that the bartender had been overly protective, and perhaps even jealous of the defendant's obvious interest in Amy Jo O'Keefe.

All this from a witness who should have been able to walk into court and say in plain English that Drake was drunk as a skunk, that he should have cut him off an hour before, and that he'd done the next best thing by making him call for a ride home.

"I hear you did great," said Amanda, who once again had been forced to spend the day on a bench in the corridor outside the courtroom. "The families were all muttering about the 'dumb Irish bartender.' And I overheard two of the jurors on the way out talking about how impressed they are with you."

"That's nice," said Jaywalker. "But today meant nothing. Tomorrow we're going to get clobbered."

"What happens tomorrow?"

They were standing out in the parking lot. Jaywalker had refused to say anything until they were well clear of the building, and out of range of jurors, reporters and anyone else with ears. Even then, he leaned forward to answer her question, close enough to breathe in the smell of her neck. And as smells went, it was a good one. Musk and a trace of lilac, he would have guessed.

"Tomorrow," he said, "we get the expert, the guy who's going to convert all those martinis and shots of tequila into a blood alcohol reading, and tell the jury that your husband was bombed out of his mind and had no business getting anywhere near the wheel of a car. That's what happens tomorrow."

That night he stayed up well past two, knowing that the weekend was just around the corner, and he'd be able to catch up on sleep then. He read the latest edition of Peter Gerstenszang's tome on drunk driving cover to cover for the third time in as many months. He reviewed the expert witness's reports and calculations and rough notes until he all but had them memorized. He composed long lists of questions for cross-examination. But none of it mattered, he knew. They were going to get worse than clobbered tomorrow. They were going to get massacred.

And he had to admit to himself that there was a certain justice to that. Carter Drake had tanked up on gin and vermouth and tequila on an almost empty stomach, and then he'd gotten behind the wheel of his car. Whether there was any truth to the wasp-on-the-windshield story was beside the point. Drake had driven far too fast and, at the very best, far too carelessly. As a direct result, nine people had died.

So why was Jaywalker so bummed? Certainly not for Drake, whom he totally despised. For Amanda, who was already separated from Drake and no doubt better off without him? Hardly. But for whom, then?

And the thing was, he knew the answer. He always did. It wasn't about the client, not when he dug down deep to the core and was willing to be totally honest about it. It wasn't about the family, in this case the woman who'd sought him out and put her faith and money in his hands. And it certainly wasn't about Justice. Justice, in this particular case, was squarely on the side of the victims. She might have been blindfolded, but that didn't mean she couldn't hear. And if she'd been listening to the testimony, chances were she was rooting for a conviction on all charges, and a sentence to match.

No, it was all about him and his stubborn pride, his absolute unwillingness to lose. It was what had driven him from the trenches in the first place, along with a little assist from the Disciplinary Committee judges. But it was also what had brought him back. It was what made him obsessive and compulsive and certifiably insane. And it was what made him the very best at what he did.

But come tomorrow, he knew, it wouldn't be good enough.