Depraved Indifference

18

Jaywalker had long felt that the prosecution's expert on alcohol metabolism would be the most important witness of the trial, with the possible exception of the defendant himself. His testimony might not prove to be the most exciting, or the most colorful, emotional or dramatic. But in terms of the sheer damage he could, and no doubt would, inflict upon the defense, the expert promised to have an impact on the outcome far greater than anyone else the prosecution would put on the stand.

It therefore came as something of a surprise to Jaywalker when he learned on Friday morning that it wouldn't be Abe Firestone handling the direct examination, but David Kaminsky. Then again, it made a certain amount of sense. This was a technical world they were about to enter, a world of academic credentials, hypothetical questions and expert opinions. It was a world where Firestone's bluster and bravado would be of little advantage compared to Kaminsky's knowledge of the rules of evidence and the laws of biochemistry.

"The People call Dr. Malcolm Rudifer," Kaminsky announced, and a tall bald man who might have been anywhere from fifty to seventy strode into the courtroom. He wore a hound's-tooth checked jacket over a patterned wool vest and striped tie, complemented by a pair of faded tan corduroy slacks. If the outfit harkened back to an earlier millennium, it also threatened to bring on an acute case of vertigo in the beholder.

Despite the fact that Jaywalker rose to state that he was fully prepared to stipulate to the witness's expertise, Kaminsky spent a good twenty minutes questioning Rudifer about his credentials. They included a master's degree and two doctorates, a teaching fellowship at Columbia University, a stint at the National Institutes of Health, the publication of six books and forty-some articles, and over thirty years spent studying the changes that occur in the human body and brain when ethyl alcohol is introduced to the equation.

KAMINSKY: The People now offer Dr. Rudifer as an expert in the metabolism of alcohol.

JAYWALKER: As I tried to say half an hour ago, we're more than happy to concede that he is.

Justice Hinkley spent a few minutes explaining to the jurors what that meant and didn't mean. While it didn't mean that they'd have to accept his testimony as true, or regard it as any more or less important than that of any other witness, it did mean that he would be permitted to offer his opinion on matters that fell within his particular area of expertise.

KAMINSKY: Dr. Rudifer, are you familiar with a cocktail known as the martini?

RUDIFER: I am. A martini comprises mostly gin, although occasionally vodka is substituted for the gin. To the gin is added a small amount of dry vermouth, a white wine. Often a garnish is added, typically a green olive, a small onion or a twist of lemon peel.

KAMINSKY: How much alcohol is contained in the average martini?

RUDIFER: Roughly an ounce. Gin and vodka tend to be 86 or 90 proof, meaning they're forty-three to fifty percent alcohol. The typical martini glass holds three ounces of liquid, or a bit more. Half of that comes out to roughly an ounce and a half of pure alcohol.

KAMINSKY: And are you familiar with tequila?

RUDIFER: I am. Tequila is made from an extract of the agave plant. Tequilas can range anywhere from 80 proof to 150 proof. That translates to forty percent pure alcohol all the way up to seventy-five percent.

KAMINSKY: If the particular tequila in question happened to be 120 proof and undiluted, how much pure alcohol would you expect to find in a one-and-a-half-ounce glass?

RUDIFER: Well, again 120 proof means sixty percent. So I'd expect to find six-tenths of an ounce of alcohol in each ounce of liquid. Multiply that by one and a half, and you get point-nine-oh, or nine-tenths of an ounce of pure alcohol.

Kaminsky asked some questions about variables, including the gender of the drinker, his body weight, what he'd had to eat, and the amount of time over which he'd consumed the alcohol. Then he took a deep breath and asked the first of his hypothetical questions.

KAMINSKY: Dr. Rudifer, I'm going to ask you to assume that a two-hundred-pound male has had nothing to eat since breakfast time. Beginning about five o'clock in the afternoon, and continuing to about eight-thirty in the evening, he consumes a small amount of fried chicken wings. Over that same period of time, he drinks three martinis and six or seven one-and-one-half-ounce glasses of 120-proof tequila. First of all, are you able to give us your expert opinion, to a reasonable degree of scientific certainty, as to how much pure alcohol he would have ingested during that time?

JAYWALKER: Objection.

THE COURT: Come up, Counsel.

Up at the bench, Jaywalker explained his unease with the vagueness of the terms breakfast time and small amount. And were buffalo wings actually fried? Having managed to steer well clear of them his entire life, he had no idea. But the things were so small. Wouldn't it take a ridiculous amount of them, flapping like crazy, to get a full-size buffalo off the ground?

"Anything else?" the judge asked.

"Give me a minute. I'll think of something."

"Objection overruled."

As well it should have been. And Jaywalker had expected as much. All he'd really been interested in doing was to interrupt, to break the flow of Kaminsky's direct examination, and to see if he could ask the question all over again. If he changed it in any material way, Jaywalker planned on objecting again.

But the judge was on to his game. "Read back the question," she instructed the court reporter.

When finally given an opportunity to answer, the witness stated that in his opinion, the hypothetical man would have ingested somewhere between 9.9 and 10.8 ounces of pure alcohol, depending on whether it had been six or seven tequilas that he'd had.

KAMINSKY: And based upon the same set of assumptions, do you have an opinion, again to a reasonable degree of scientific certainty, as to the percentage of alcohol, by weight, that that same man would have in his bloodstream some thirty to forty-five minutes after consuming the last of those drinks?

Again Jaywalker objected. Again his objection was overruled, this time without the courtesy of an invitation to approach the bench.

RUDIFER: I do. Taking the lower figure, the 9.9 ounces of pure alcohol, to give the man the benefit of the doubt, it is my opinion that he would have a blood alcohol content of. 20, or twenty one-hundredths of a percent.

KAMINSKY: Can you tell us how you arrive at that figure.

RUDIFER: Yes. It's quite simple. Studies conducted over many years, with many thousands of subjects, tell us that for the average male, the ingestion of one ounce of alcohol raises the amount in his blood by two-hundredths of a percentage point. The 9.9 ounces would therefore have produced a percentage by weight of. 198. I then rounded that figure off to two decimal places, as is customary, and came up with. 20.

KAMINSKY: Are you familiar with the expression "the legal limit"?

RUDIFER: I am. It refers to the maximum amount of alcohol one may have in his blood before he reaches the level prohibiting him from driving in New York State, as well as in the other forty-nine states.

KAMINSKY: What is the legal limit?

RUDIFER: It is. 08, eight one-hundredths of a percent.

KAMINSKY: The. 20 you came up with for our hypothetical man. Is that more or less than the legal limit of. 08?

RUDIFER: More.

KAMINSKY: By how much?

RUDIFER: By a factor of two and a half, or two hundred and fifty percent.

KAMINSKY: In other words This time Jaywalker's objection was sustained. But it was cold comfort. Had it been a chess match they were competing in rather than a trial, it would have been the equivalent of capturing a pawn after losing your queen, two rooks and a bishop.

Next, Kaminsky had the witness describe the effects of such an amount of alcohol on one's ability to operate a motor vehicle.

RUDIFER: Again, we have a huge body of studies and literature on the subject. We know from hundreds of controlled experiments that perception, motor coordination, hand-eye coordination, response and reaction time, and judgment all become impaired. And we know that the degree of impairment increases in direct proportion to the increase in blood alcohol content. We also know this, unfortunately, from the vast number of motor vehicle accidents in which alcohol has been confirmed to have been a contributing cause, if not the cause, of the accident.

Jaywalker looked around. Not at the jurors, who- he'd long ago noticed-were listening to Dr. Rudifer with rapt attention. Not at the judge, who'd been taking notes at every damning response. And surely not at Carter Drake, who, though he still pretended to be unfazed by what he was hearing, had to be shitting bullets. Or was it sweating bullets? He could never remember, and neither one made any sense.

No, what Jaywalker was looking around for was a hole, a hole big enough to climb into and hide in until this witness would disappear and it would be safe to come out again.

But there was no hole in sight.

Jaywalker had done enough reading to know that Dr. Rudifer's calculations were pretty much on the money. He cross-examined him for twenty-five minutes, trying to create a little wiggle room on his numbers. First, he had Rudifer concede that at two hundred pounds, Carter Drake was significantly heavier than the "average male" of a hundred and seventy-five pounds that the statistical models were based on.

JAYWALKER: Wouldn't that additional body weight dilute the alcohol in the bloodstream?

RUDIFER: Yes, but he's not far from average. The difference would be a few percentage points, no more.

JAYWALKER: Well, correct me if I'm wrong, but two hundred minus a hundred and seventy-five equals twenty-five. That's one-seventh of a hundred and seventy-five pounds. No?

RUDIFER: I'd need paper and pencil.

JAYWALKER: Here.

(Hands item to witness)

RUDIFER: Yes, you're correct.

JAYWALKER: And that's more than fourteen percent over the model your figures are based on. Isn't it?

RUDIFER: Yes.

JAYWALKER: Not just, quote, "a few percentage points, no more." Agreed?

RUDIFER: Agreed.

JAYWALKER: If we were to take that into account and adjust that. 20 blood alcohol estimate downward by 14.3 percent, we'd be down to an estimate of below. 17. Agreed again?

(Witness making calculations)

RUDIFER: Yes, agreed again.

JAYWALKER: Thank you. Suppose for a moment that those tequilas were watered down. Say that each ounce and a half contained a half an ounce of water with a few drops of nonalcoholic caramel food coloring. Would that fact, if true, affect your results?

RUDIFER: Yes.

JAYWALKER: Substantially?

RUDIFER: Yes, but it's my understanding that they weren't watered down.

JAYWALKER: I see. And from whom did you get that understanding?

RUDIFER: From Mr. Kaminsky and Mr. Firestone.

JAYWALKER: And is it your understanding that they were present at the End Zone?

KAMINSKY: Objection.

THE COURT: Overruled.

RUDIFER: The what zone?

JAYWALKER: How about individual tolerance? Do you agree that even without regard to gender, food intake or body weight, different individuals metabolize alcohol at different rates, resulting in varying degrees of impairment?

RUDIFER: Yes.

JAYWALKER: Have you had an opportunity to study how Mr. Drake's system, in particular, metabolizes alcohol?

RUDIFER: No.

JAYWALKER: Have you ever met a young lady named Amy Jo O'Keefe?

(Laughter)

RUDIFER: Who?

JAYWALKER: Amy Jo O'Keefe. Ninety-nine pounds, red hair. Claims she can hold her liquor with the best of them.

RUDIFER: Not that I remember.

JAYWALKER: Oh, you'd remember.

(Laughter)

KAMINSKY: Objection.

THE COURT: Yes, the remark will be stricken.

JAYWALKER: And as I understand it, again disregard ing body weight, alcohol effects women almost fifty per cent more than it affects men. Agreed?

RUDIFER: Agreed. But these are all averages, and JAYWALKER: Exactly.

RUDIFER: — you have to allow for individual variations.

JAYWALKER: So at best, we're working with esti mates here?

RUDIFER: Yes.

JAYWALKER: And those estimates are subject to indi vidual variations?

RUDIFER: Yes.

JAYWALKER: And you don't really know what was in those drinks, other than what the prosecutors asked you to assume. Correct?

RUDIFER: Correct.

JAYWALKER: And if those assumptions are off, so are your results. Correct?

RUDIFER: Correct.

JAYWALKER: Just as they were off because of the de- fendant's body weight. Correct again?

RUDIFER: Correct again.

It seemed as good a place as any to stop, so he did. Kaminsky gave it a shot on redirect, and managed to undo some of the damage Jaywalker had inflicted. By the time Dr. Rudifer stepped down from the witness stand, his testimony had been weakened a bit, but by no means seriously undercut. If the jurors chose to believe Daniel Riley's account that had he hadn't watered down the drinks, there were still three martinis and six or seven tequilas between Carter Drake and sobriety.

It was also time for the lunch break.

The afternoon session brought to the witness stand two of the first responders to the scene of the crash. The first of these was a baby-faced state trooper named Adam Faulkner. Faulkner had been on routine patrol, meaning he'd been on the lookout for speeders and other miscreants, when a broadcast had come over the air directing any troopers in the area to respond immediately to the accident site. He'd gotten there, lights flashing and siren wailing, in under four minutes.

NAPOLITANO: What did you find?

FAULKNER: I found a van, down the hill from the shoulder of the highway. It was still smoldering. I would say it was ninety, ninety-five percent destroyed.

NAPOLITANO: What did you do?

FAULKNER: I searched for signs of life.

NAPOLITANO: Did you find any?

FAULKNER: No, no. Absolutely none.

NAPOLITANO: Are you okay?

FAULKNER: Yes. No. It was pretty bad.

NAPOLITANO: Take your time. What did you do next?

FAULKNER: I emptied my unit's fire extinguisher on the wreckage. I was afraid there might be an afterexplosion. I radioed my supervisor to tell him what I'd found. And I tried to keep people from getting too close. A lot of motorists had stopped. And pretty soon EMS showed up, and other units.

NAPOLITANO: EMS?

FAULKNER: Emergency Medical Services. The EMTs and paramedics.

NAPOLITANO: Were you there when the bodies were removed from the wreckage?

FAULKNER: At first I was. Then, when I saw they were bringing out kids, children, I had to leave. They were black, like charcoal. Some of them had smoke still coming from them. I couldn't stay there. I, I had to get away. If I close my eyes today, I can still THE COURT: I think we'll move on, Ms. Napolitano.

NAPOLITANO: Yes, Your Honor.

Miss Napolitano may have moved on at that point, but the jurors weren't about to. Jaywalker noticed out of the corner of his eye that several of them were shaking their heads slowly from side to side. He didn't dare look directly at them. Nor did he intend to ask Trooper Faulkner a single question.

Next up was Tracy D'Agostino, one of two EMTs who'd arrived within minutes of Faulkner. A twelveyear veteran on the job, Ms. D'Agostino looked far more hardened than the youthful Faulkner.

KAMINSKY: What was the first thing you did upon arriving?

D'AGOSTINO: I put on a pair of heavy gloves.

KAMINSKY: Why did you do that?

D'AGOSTINO: I needed to get into the van, just to make sure there were no survivors that needed assistance. I put on the gloves because I figured the van was too hot to touch bare-handed.

KAMINSKY: Were you able to get inside?

D'AGOSTINO: Yes. A trooper and I were able to pry open one of the doors, using a crowbar. But he was shaking too much, so I climbed in.

KAMINSKY: What did you see?

D'AGOSTINO: I saw several rows of small children, most of them still belted into their seats, and the driver, who was crushed under the dashboard. All of them were charred. Some of them were still smoldering. All of them were dead.

KAMINSKY: What did you do?

D'AGOSTINO: I climbed out of the van, walked twenty yards and, if you must know, I vomited my guts out.

So much for hardened.

Again, Jaywalker asked no questions. It would be part of his summation to concede how gruesome the crash scene had been, and how horrible the results of his client's actions. But for now, the sooner he could get Tracy D'Agostino off the stand and out of the courtroom the better.

Firestone called William Sheetz.

Like Faulkner, Sheetz was employed by the New York State Police. But in place of a baby face was a weathered mask of experience and resignation, topped by a shock of almost white hair. And instead of appearing in his gray patrol uniform, as Faulkner had, Sheetz showed up wearing a blue suit, a white shirt and a conservative tie. Evidently the prosecution team had decided to present him as the cerebral expert he was, setting him apart from the rank-and-file troopers the jury had grown accustomed to, both on the witness stand and in the courthouse. It was a shrewd move, Jaywalker had to admit, something he might have pulled himself.

FIRESTONE: By whom are you employed?

SHEETZ: The New York State Police.

FIRESTONE: How long have you been so employed?

SHEETZ: Thirty-one years.

FIRESTONE: What is your current assignment?

SHEETZ: I'm a senior investigator. I head up the AIS, the Accident Investigation Squad.

FIRESTONE: How long have you been doing that?

SHEETZ: Nine and a half years, give or take a month.

JAYWALKER: The defense stipulates that the witness is an expert in motor vehicle accident reconstruction.

THE COURT: Thank you, Mr. Jaywalker.

Sheetz had a nice way about him. He was laid-back and soft-spoken, but his voice had a rich, baritone resonance to it. His pale blue eyes squinted out from a deeply lined and weathered face. He reminded Jaywalker of John Wayne, without the hat and horse. He guessed it was no accident that Abe Firestone intended on sending the jurors home for the weekend after hearing from him.

FIRESTONE: What sort of accidents do you and your squad investigate?

SHEETZ: All fatalities. Also any accidents that result in serious bodily harm, or where alcohol or drugs appear to have played a significant role.

Firestone had the witness describe how he'd responded to the site of the crash back on May 27, and what he'd found. Mercifully for the defense, by the time of Sheetz's arrival, the van and its occupants were no longer smoldering. In fact, by then the county medical examiner and his deputies were already on the scene, directing the removal of bodies.

Sheetz had begun examining the scene, working backward from the van's final resting place, up the embankment, through the guardrail, and finally along the road surface to the spot where fresh skid marks had first appeared on the blacktop. The pavement had been dry, he explained, addressing his remarks directly to the jurors. That had allowed the van's brakes to lock up its wheels, leaving a trail of rubber behind. Because the van was an older one, it hadn't had antilock brakes, and the skid marks were therefore solid bands rather than broken lines. There had come a point, however, where, according to Sheetz, the driver must have realized that braking alone wasn't going to be enough to enable him to avoid whatever was in front of him.

FIRESTONE: What, in your opinion, did he do at that point?

SHEETZ: Continuing to brake, he turned the van's steering wheel clockwise, to the right.

FIRESTONE: With what result?

SHEETZ: The result was that the van began to drift, then fishtailed FIRESTONE: What do you mean by "fishtailed"?

SHEETZ: Imagine a fish with a vertical tail. In other words, one that is constructed up and down (Demonstrates), rather than, say, sideways, like the flukes of a whale (Demonstrates). The fish propels itself forward by thrusting its tail back and forth, to the left, then the right (Demonstrates). "Fishtailing," as I use the expression, occurs when the rear of a vehicle swings back and forth in much the same fashion. But instead of occurring as the vehicle is being propelled forward, it occurs because the vehicle's rear wheels have lost traction with the road surface. Next there'd come a point where the skid marks had ended altogether, indicating that the van had literally become airborne. When it had touched down again, it had done so briefly, on the shoulder of the road. From there it had bounced and gone through the guardrail and over the embankment, flipping over several times before landing, exploding, and bursting into flames.

FIRESTONE: In your opinion, what caused it to explode?

SHEETZ: It's not possible to know precisely, but in all probability a spark occurred, created by the rubbing of metal against metal, or perhaps metal against rough dry pavement. And that spark ignited gasoline fumes, which are extremely volatile.

Sheetz had taken a number of photographs of the skid marks, the embankment and the charred remains of the van. Firestone had them marked in evidence, and had his witness describe what was depicted in each photo, and the significance of it in understanding the actions of the van's driver. In this way, Firestone was able to have his expert describe what had happened a second time. And just in case that wasn't enough, Sheetz had taken measurements and created a rough diagram, which he'd subsequently converted into a large, full-color, professional-quality exhibit. That, too, was now received in evidence and then explained in detail by the witness. So the jurors were treated to yet a third version of the events. But if any of them seemed to mind, their faces weren't showing it.

Every one of them continued to give John Wayne their rapt attention.

Next, Firestone turned to the issue of speed. Was it possible, he wanted to know, to determine how fast the van had been moving when its driver had first hit the brakes? Yes it was, replied Sheetz. By measuring the length of the skid marks, factoring in the coefficient of friction of the road surface, and referring to charts that had been developed from thousands of hours of testing, one could come up with the speed of the van within a margin of error of five percent.

FIRESTONE: And what answer did you come up with?

SHEETZ: According to my observations and calculations, when the van's wheels first locked up, it was traveling at a speed of forty-six miles per hour, give or take two and a half miles an hour either way, at most.

FIRESTONE: In other words, under the speed limit?

SHEETZ: Yes, sir.

FIRESTONE: Now assume for a moment that the object that the van's driver had been attempting to avoid hitting was an oncoming car, directly in the van's lane. Are you able to tell us how fast that oncoming car was traveling?

SHEETZ: No, I'm not.

FIRESTONE: Why not?

SHEETZ: Because I found no skid marks at all coming from the opposite direction. So I had nothing to measure, nothing to start with.

FIRESTONE: Can you tell us anything from the absence of skid marks coming from that opposite direction?

SHEETZ: Yes, I can.

FIRESTONE: What's that?

SHEETZ: I can tell you that the driver of that oncoming car never braked, never tried to stop or even slow down.

To Jaywalker's way of thinking, it would have been a powerful moment to stop. But Firestone wanted even more. Why settle for a mere kill, after all, when you can follow it up by ripping out your victim's bloody heart, and hoisting in the air for all to see?

In the days following Carter Drake's surrender, Firestone had obtained a search warrant for his Audi, and troopers had gone to the Manhattan garage where it was stored. Unlike Jaywalker's open-air, seventy-fivedollar-a-month parking spot in the middle of the Hudson River, Drake's spot was indoors. It was heated in the winter and air-conditioned in the summer. The spot had been purchased several years earlier for $128,500, a figure that included neither the monthly maintenance charge of $2,585 nor the additional service fee of $975. Tips, while not required, were encouraged, and were also extra.

The troopers had towed the Audi up to a more modest garage in New City, where William Sheetz and other investigators from his squad had spent five hours going over it.

FIRESTONE: What did you find?

SHEETZ: We found nothing out of the ordinary. There was no indication of external damage. The steering system was intact. The brakes were fully functional. The windshield was clean and unobstructed, and provided a good view of whatever was ahead. The headlights worked, both high beams and low. The horn worked.

FIRESTONE: In other words JAYWALKER: Objection.

THE COURT: Yes. Please don't summarize the witness's testimony.

FIRESTONE: Were you able to come up with any explanation as to why the driver might have failed to see the van?

SHEETZ: No.

FIRESTONE: Or why he'd been driving in the wrong lane?

SHEETZ: No.

FIRESTONE: Or why he never tried to slow down or stop?

SHEETZ: No. No explanation at all.

And that was where Firestone left it.

Jaywalker glanced at his watch before collecting his notes and walking to the podium. It was after four o'clock. William Sheetz would be the last witness of the day, and of the entire week, for that matter. Jaywalker loved nothing more than to send jurors off for the weekend on a high note for the defense. But given this particular witness's testimony, that was going to be a tall order. Still, he had a couple of points to make, and he did some quick thinking on how to save the best for last. And then, as he so often did, he started where his adversary had left off.

JAYWALKER: Is it fair to say, Investigator Sheetz, that you've investigated a number of accidents that included a leaving-the-scene component?

SHEETZ: Yes, sir.

JAYWALKER: Dozens?

SHEETZ: Yes, sir.

JAYWALKER: Hundreds?

SHEETZ: Yes, sir.

JAYWALKER: Thousands?

SHEETZ: I'd say so.

JAYWALKER: And you'd agree, would you not, that in most, if not all, of those cases, you were able to discover some evidence that the driver of the vehicle that left the scene at least slowed down before doing so?

It was vintage Jaywalker. He had no idea at all if that was true or not. But the way he'd worded the question made it almost impossible for the witness not to answer in the affirmative. First, by inviting him to agree with the very first question out of his mouth, Jaywalker was making it easy for Sheetz to do so. If he disagreed right off the bat, he risked coming off as overly argumentative. Next, by using the phrase most, if not all, rather than something like almost all or the vast majority, Jaywalker was looking for agreement on no more than a bare majority of accidents. But later on, the jurors would forget the qualifier "most" and remember the absolute "all." Then, by using the words you were able to discover some evidence, he was appealing to Sheetz's ego and prowess as an investigator. A negative response could be construed as damaging to either or both of those things, a positive one as reinforcing them. On top of that, the supposition underlying the question, that even a motorist who eventually decided to leave the scene would experience a moment of indecision before driving off, made sense. It was consistent with everyday human experience. You slowed down, even briefly considered stopping, before you panicked and sped off. And finally, by pretending to be reading the question verbatim from some learned treatise, rather than springing it ad lib from his own devious imagination, Jaywalker was warning the witness that if he disagreed with the premise, he risked challenging an authority in the field.

SHEETZ: Yes, sir.

JAYWALKER: You'd agree with that?

SHEETZ: I'd agree with that.

JAYWALKER: Good. So let's take a look at that extremely rare case where you could find absolutely no evidence that the driver who left the scene ever stopped or slowed down. Might that give you pause to consider that he might never have been aware of the accident that had occurred?

Sheetz realized too late the corner he'd put himself into. Sure, he could have backtracked and secondguessed his earlier answer. But John Wayne never did that, did he? So he did the next best thing, and gave Jaywalker as qualified a yes as he possibly could.

SHEETZ: That could be one explanation.

JAYWALKER: And does that explanation become more plausible with the fact that the accident, in this case the van's leaving the roadway and going over the embankment and out of view, occurred behind the driver who continued on, rather than in front of him or to one side of him?

SHEETZ: Yes, sir. I guess so.

JAYWALKER: And does that explanation become more plausible still if the incident occurred at night, in the darkness?

SHEETZ: Yes, sir.

JAYWALKER: And even more plausible if the driver who continued on did so at fifty or sixty miles per hour, and would quickly be out of both visual range of the scene and auditory range, as well?

SHEETZ: I suppose so.

JAYWALKER: And drawing your attention to this diagram of the scene. I'm sorry, tell us again who made it? SHEETZ: I did.

JAYWALKER: Right. This bend in the road here… (Pointing) Continuing on after its near collision with the van, how soon would the Audi have rounded it and lost sight of the van altogether?

SHEETZ: It depends on how fast the Audi was traveling.

JAYWALKER: Let's assume it was going the speed limit.

SHEETZ: Maybe two seconds.

JAYWALKER: And if, as it's been suggested, the Audi was going five or ten miles an hour over the limit?

It was another of those win-win questions Jaywalker loved so much. Carter Drake's driving too fast was one of the things the prosecution was counting on to demonstrate recklessness and depraved indifference to human life. Yet here was Sheetz, about to admit that in terms of having been able to see what had happened behind him, Drake's speeding would actually work in his favor.

SHEETZ: A little less than two seconds.

JAYWALKER: I see. You don't know exactly how long it took for the van to go over the embankment, do you?

SHEETZ: No, sir.

JAYWALKER: Or to explode?

SHEETZ: No.

JAYWALKER: Or to burst into flames?

SHEETZ: No.

JAYWALKER: So you'd have to agree that it's entirely possible that the driver who continued on never saw, in his rearview mirror, the van leave the roadway. Wouldn't you?

SHEETZ: It's possible.

JAYWALKER: Never saw or heard the explosion?

SHEETZ: It's possible.

JAYWALKER: Never saw the flames?

SHEETZ: Possible.

JAYWALKER: Probably never saw other motorists pull ing over and stopping?

SHEETZ: Probably not.

JAYWALKER: Certainly never saw troopers and EMTs at the scene?

SHEETZ: No, sir.

In the space of three minutes, Jaywalker had taken the witness from plausible to possible to probable to certain that Carter Drake had been totally unaware of the destruction he'd left in his wake. And if it was one part seman tics and two parts sleight of hand, who cared? At least it would send the jurors home on a note of uncertainty.

JAYWALKER: By the way, those gasoline fumes you mentioned? Where did they come from?

It seemed like an innocent enough question, something that any third grader should have been able to answer. Fr om the gas tank. But Sheetz didn't say that. In fact, for just a second, he didn't say anything. And that second was enough for Jaywalker to know that he had him on that, too.

Way back in the early weeks of the case, when Abe Firestone had bombarded him with three huge cartons of worthless duplicated nonsense, and Jaywalker had bitten the bullet and combed through every page of it, his reward had been a sleepless night, a sore back and four nuggets of gold. The first of those nuggets had been Moishe Leopold's mistaken belief that there'd been not one but two people in the Audi. The second had been the lack of any reference whatsoever to Amy Jo O'Keefe, the little redheaded firecracker who'd matched Carter Drake drink for drink before driving herself home safely to New Jersey. Right now, Jaywalker was about to cash in nugget number 3.

SHEETZ: The fumes?

JAYWALKER: Yes, the fumes. Where did they come from?

SHEETZ: They came from the van.

JAYWALKER: Can you be more specific?

SHEETZ: Some came from the van's gas tank.

JAYWALKER: And others?

SHEETZ: We found the melted remains of a five-gallon metal gasoline container.

JAYWALKER: Were you able to determine whether that was an approved gasoline container?

SHEETZ: I don't recall.

Jaywalker pulled a document from his file and had it marked for identification. Dispensing with the usual protocol of asking the court's permission to approach the witness, he walked up to the stand and handed it to Sheetz. Then he stayed right there. In the movies, the cross-examiner and the witness are often pictured together. It makes for what Hollywood calls a nice tight shot. In real courtrooms, lawyers aren't supposed to crowd witnesses. But Jaywalker had once had a client who told him it made him absolutely nuts when the prosecutor had "gotten in his face." So Jaywalker did it every chance he got, and showing an adversary's witness a document provided a perfect opportunity.

JAYWALKER: Take a look at that document, will you?

SHEETZ: Yes, sir.

JAYWALKER: Do you recognize it?

SHEETZ: I do.

JAYWALKER: What is it?

SHEETZ: It's a memo I wrote on May 31 of last year. A long time ago. I'd forgot about it.

JAYWALKER: And does reading it now refresh your recollection and help you recall that the metal gasoline container you found was an unapproved type?

SHEETZ: Yes, sir.

JAYWALKER: What made it unapproved?

SHEETZ: It could have been several things. It might have been unvented, which means it might have been prone to burst on impact, instead of expanding or con tracting. Or it might have been the type that spill when turned over. Or it might not have been spark resistant.

JAYWALKER: Or it might have had all three of those defects?

SHEETZ: Yes, sir.

JAYWALKER: Was there in fact an impact to the van?

SHEETZ: There was.

JAYWALKER: Did the van in fact turn over?

SHEETZ: It did.

JAYWALKER: And is it your opinion that there was in fact a spark?

SHEETZ: It is.

JAYWALKER: The van's gas tank is by law constructed to withstand all of those things. Correct?

SHEETZ: Correct.

JAYWALKER: How about the unapproved gasoline can?

SHEETZ: It was apparently built without regard to those things. That's why I referred to it as unapproved.

JAYWALKER: What's an accelerant?

FIRESTONE: Objection. He's not an arson investigator.

THE COURT: He may answer if he knows.

JAYWALKER: Do you know what an accelerant is?

SHEETZ: Yes, sir. It's a highly volatile, and therefore in flammable, substance that's often used to get a fire started.

JAYWALKER: Is gasoline an accelerant?

SHEETZ: Yes, sir. One of the best. Or worst, depending upon how you choose to look at it.

JAYWALKER: And if you choose to look at it from the point of view of those eight kids in the van?

SHEETZ: One of the worst.

JAYWALKER: In your expert opinion, but for the pres ence of that unapproved gasoline can, which was prone to burst, spill or explode in the presence of a spark, might those kids be alive today?

The fact that Firestone's objection was sustained made little difference to Jaywalker. This wasn't some civil case he was trying, after all, in which the jury would be called upon to determine negligence and apportion fault among the defendant, the driver of the van, and the company that owned or operated it. But just as William Sheetz's earlier concession-that Carter Drake might never have been aware of the accident he'd caused in his wake-would give the jurors something to think about over the weekend, so too would Sheetz's implicating the exploding gasoline can, particularly when coupled with his dubious claim that he'd forgotten all about it.

So if Jaywalker hadn't actually succeeded in outdueling John Wayne, at the very least he'd knocked him off his high horse just a bit. But still, he wasn't quite finished. He had a teaser for the jury, one last thing for them to take home with them and wonder about. Gold nugget number 4.

JAYWALKER: Let me draw your attention to this photograph, one of several you took of the interior of the Audi.

SHEETZ: Yes, sir.

JAYWALKER: I wonder if you can tell us what this is, right here on the console? (Pointing)

SHEETZ: This?

JAYWALKER: Yes, that.

SHEETZ: It appears to be a newspaper.

JAYWALKER: Appears to be?

SHEETZ: It's hard to tell.

JAYWALKER: Why?

SHEETZ: Because it's rolled up.

JAYWALKER: I see.

With the weekend upon them, Jaywalker relented and took Amanda up on her offer to follow her home. In the process, he rationalized, he was doing more than merely giving in to his libido, more even than falling in with the culture's Thank-God-It's-Friday attitude. This was one of the weekends Eric was due to come home from school. For some time now, despite Carter's insistence that his son be left out of things and not called as a defense witness, Jaywalker had insisted on at least sitting down with the boy and seeing what he had to say about his father's level of intoxication the evening he'd been sent in to fetch him out of the End Zone. And for some time now, Amanda had been promising to deliver Eric for that conversation. But each time, something would come up. Eric was behind in his courses and needed to stay at school to catch up. Or his ride with a classmate had fallen through. Or Greyhound had changed its schedule so that the bus to Manhattan no longer stopped anywhere near the school, which was in western Massachusetts.

Finally Jaywalker had put his foot down. He'd insisted that Amanda call Eric and extract from him a solemn promise that no matter what, he'd be at his mother's by noon this Saturday. After some hemming and hawing, Amanda had agreed and then reported back that it was a done deal. So Jaywalker would have to work on the weekend while on trial. What else was new?

That said, by midnight Friday, he was hardly regretting his decision. He and Amanda had enjoyed a memorable dinner at the Union Square Cafe, her treat, despite his protests. And afterward, they'd enjoyed an equally memorable follow-up in her bedroom. And while he'd surely needed the meal, not having eaten in the previous twenty-four hours, if asked to choose, he would have had no problem. No reservation required, no waiting for a table, no calories to speak of, and no check to fight over.

It was only the following morning that the ringing of the telephone brought the news that Eric had been prohibited from leaving the campus because he'd been placed on both academic and social probation. Was that, Jaywalker wondered, the equivalent of the double-secret probation that had threatened to ground an entire fraternity in "Animal House," his all-time favorite movie?

"Get up," he told Amanda, "and get dressed."

"Why? What for?"

"Road trip."