Depraved Indifference

20

On Monday morning, before the jury was brought into court, Abe Firestone rose and announced his intention to call a video technician named Landon Miller to the stand. Miller was employed by a company Firestone had commissioned. They'd created a video that, according to Firestone, would recreate for the jurors the view from the driver's seat of the Audi as it crossed over into the wrong lane, narrowly missed two oncoming cars, forced the van off the road, and continued on without stopping.

"Have you shared this with Mr. Jaywalker?" Justice Hinkley asked.

"Not yet," said Firestone. "I only saw it myself for the first time this morning. I contacted the company Friday, after court. The defense has done such a good job confusing the jurors that I felt they should have a chance to see what things really looked like from the defendant's perspective."

"Sit down, Mr. Jaywalker," said the judge. He'd been on his feet, ready to explode, ever since he'd heard the word video. Words like ambush, surprise, improper and prejudicial were on the tip of his tongue. Not to mention joke, cartoon and b ullshit. But sit he did.

"Don't worry," the judge added. "You'll have plenty of time to be heard on this. Mr. Firestone, exactly when in your case were you hoping to call this witness."

"Now."

"How long is the video?"

Firestone looked over at David Kaminsky for a clue, got one, and replied, "Five minutes."

The judge sent word to the jury room that there would be an unavoidable delay before the morning session got under way. Then she ordered the courtroom cleared. As the rows emptied, Jaywalker overheard two reporters discussing going to the Appellate Division to complain. He wished them luck. The Appellate Division was in Albany, a good two hours away.

The technician, whom Jaywalker had expected to be geeky-looking but who turned out to be MadisonAvenue, button-down handsome, was permitted to enter the courtroom and, with the help of an equally attractive female assistant, set up several huge television screens, so everyone would be able to see without moving from their seats. Then the lights were dimmed, and the feature presentation came on.

Jaywalker hadn't known quite what to expect. He'd considered it quite possible that the company had gone out and gotten a hold of an Audi TT, mounted a camera on the dashboard or the driver's forehead, and recreated the route Carter Drake had taken, complete with a substitute white van and a couple of stunt drivers. What he found himself watching instead was a high-tech, full-color, professionally made, virtual-reality production. A sort of Batman Driving Badly, he decided. The windshield, the instruments on the dashboard beneath it, the hands gripping the steering wheel, and the road ahead, were neither real nor animated, but somewhere in between the two. The only thing missing was a Hollywood sound track.

Jaywalker was immediately reminded why he no longer went to the movies. There'd been a time when he'd been a lover of special effects. He could watch King Kong a hundred times over-the original one with Fay Wray, the mechanical ape, and the tiny lizards pretending to be dinosaurs. But he couldn't sit through the remake. Star Wars and its progeny had left him cold, and by the time Harry Potter came along, he hadn't even been tempted. Computerized effects had made the impossible possible, but to Jaywalker, none of it looked real anymore.

And so it was with this production. The guardrails lining the roadway weren't guardrails at all, but digitized recreations of them. The cars veering out of the way of the Audi weren't real. Even the van, slamming on its brakes as the Audi closed in on it, didn't look real. Furthermore, the five minutes Firestone had predicted was way off. From start to finish, it took less than a minute. And yet, when the van suddenly turned, fishtailed, took flight and disappeared off to the left of the giant screen, the effect was unmistakably powerful. And the Audi driver's calmly pulling back into his proper lane and continuing on without ever slowing down was nothing less than bone-chilling.

They watched it three times through, from start to finish, but it didn't get any better.

"Turn the lights back on," said Justice Hinkley. And when that had been done, she turned to the defense table and said, "Mr. Jaywalker?"

He spoke for ten minutes, citing the prosecution's breach of pretrial discovery, the dangers inherent in substituting a movie for actual testimony, and the unfair emotional impact the recreation would inevitably have upon the jurors. If they were vague about what the particular stretch of road in question looked like, let them go visit it as a group, under the court's supervision, the way that was sometimes done when one side or the other requested it. But don't show them a dumb cartoon of it.

But even as he argued he could sense, the way a good lawyer can always sense, that his words were falling on ears that, if not quite deaf, had certainly become hearing impaired.

"Don't you agree that the courts have to keep up with ever-changing technology?" the judge asked him.

"Not if it means depriving my client of a fair trial, I don't. This is nothing but an ambush. They had nine months to do this and give me a chance to hire experts to examine it. I could have made my own competing version. Instead, they slap it together over a weekend and spring it on us first thing Monday morning."

"Would you like a day's continuance?" the judge wanted to know.

"No. I'd like you to rule that whatever its probative value may be-and for the life of me, I think that's less than zero-is vastly outweighed by its prejudicial impact. I want you to keep it out."

"Would you like a voir dire of the witness, in the jury's absence?"

"No."

"Would you like the jury brought to the scene?"

"No."

"Would you like a limiting instruction?"

"Maybe I'm not making myself clear," said Jaywalker. "I want it out, period. I keep hearing what a strong case the prosecution has. Well, maybe they do. You want to take a chance and let this piece of-"

"Careful."

"— evidence in," Jaywalker continued, grateful that the judge had steered him away from the word he'd been about to use, "then go ahead. Give us an issue to appeal on. We should be thanking you." And with that, he sat down.

For a long moment, Justice Hinkley said nothing. She was too busy writing. When she was finished, she looked up and spoke in a measured, calm voice. "The court hereby holds defense counsel in summary contempt. Counsel is an experienced practitioner who knows full well that threatening a court with reversal is a breach of ethics. It is only because I believe that you've acted out of nothing but overzealousness on behalf of your client that I suspend sentence. Next time, I promise you, I won't."

Jaywalker nodded a silent thank-you.

"Now, let me ask you again," said the judge. "Would you like a twenty-four-hour continuance?"

"No."

"Would you like a limiting instruction?"

"Yes."

They spent a few minutes going over what the judge would tell the jurors when it came time for them to see the video. They would be instructed to use it only for clarification purposes, not as a substitute for the sworn testimony of eyewitnesses. But to Jaywalker, the distinction hardly mattered. This was the Age of the Video Screen, he knew, whether that screen happened to be on a TV set, a computer or what used to be called a telephone, in the old days. No matter what the judge told the jurors to do or not do, they'd get into their deliberations at the end of the case and pretty much forget who had said what. But they'd remember that white van on the big screen, veering off, fishtailing and leaving the roadway. How could they not?

The playing of the video for the jurors turned out to be every bit the horror show Jaywalker had expected it to be. They got to see it only once, but from the rapt attention they appeared to give it, once was enough. As he watched it from the defense table, the only thing Jaywalker could take comfort from was the dimming of the courtroom lights, allowing him and his client to hide in the semidarkness. But then the lights came back up, and there was no place to hide, literally or figuratively.

On cross-examination, he focused on the sources of information that Landon Miller and his team had relied on in putting the video together.

JAYWALKER: Did you interview the driver of the Audi?

MILLER: No.

JAYWALKER: Did you try to?

MILLER: No. There wasn't time.

JAYWALKER: Did you try to contact me?

MILLER: No.

JAYWALKER: Interview any of the other drivers or eyewitnesses?

MILLER: No.

JAYWALKER: So whom did you interview?

MILLER: May I check my notes?

JAYWALKER: Sure. I imagine Mr. Firestone will give me a copy of them sometime next year.

THE COURT: The jurors will disregard that remark.

MILLER: We interviewed Mr. Firestone, Mr. Kaminsky and Investigator Sheetz.

JAYWALKER: That's it?

MILLER: That's it.

JAYWALKER: Two prosecutors and one prosecution witness?

MILLER: I guess so.

JAYWALKER: Kind of like Fox News? Fair and bal anced?

FIRESTONE: Objection.

THE COURT: Sustained.

JAYWALKER: Let me try to understand this, Mr. Miller. You made a movie version of what Mr. Firestone, Mr. Kaminsky and Investigator Sheetz told you. You spoke to not a single eyewitness. You didn't even attempt to speak with anyone from the defense. Am I correct?

MILLER: Yes.

JAYWALKER: Care to tell us how much you charged the taxpayers of Rockland County for this production?

FIRESTONE: Objection.

THE COURT: Sustained as to form.

JAYWALKER: How much did you bill for your services?

FIRESTONE: Objection.

THE COURT: Overruled.

MILLER: That's a proprietary matter.

THE COURT: Not anymore it isn't. Please answer the question.

MILLER: (Inaudible)

JAYWALKER: I couldn't hear that.

MILLER: One million, two hundred and fifty thousand dollars.

Which, judging from the collective gasp emanating from the jury box, was as good a time for Jaywalker to collect his notes and sit down as he was going to get.

The setting up of the video equipment, the previews, the arguing, the instructions to the jurors, the actual showing, the testimony and the removal of the equipment left no room for additional witnesses in the morning session. Which was just as well, as far as Jaywalker was concerned. He needed to talk to Carter Drake, in order to straighten out the business of Amanda's having been seated next to him in the Audi rather than driving the Lexus with Eric.

He did it locked in a holding cell with his client over the lunch hour. He even broke his no-lunch rule and accepted a cheese sandwich from a guard, as well as a cup of warm yellowish water he guessed was tea, though only after subjecting it to a repeated smell test.

For lack of imagination, he tried the same ploy with Carter that he had two days earlier with Eric. "I've got an interesting bit of news for you," he said.

"What's that?"

"Firestone has photos he subpoenaed from EZPass."

"Oh?"

"It seems you weren't alone in the Audi," said Jaywalker. "There's a woman sitting in the passenger seat, and from the back she looks very much like your wife. And the shot of the Lexus shows only a driver in the front, and he looks an awful lot like your son."

Drake finished swallowing a mouthful of stale bread and cheese. Velveeta must have somehow come in with the low bid for the concession, Jaywalker had already decided. A million and a quarter to piss away on a oneminute cartoon was okay, though.

"Why can't you keep my family out of this?" asked Drake.

"Why can't you tell me the truth?" countered Jaywalker. "Then maybe I can." He left it at that. This was neither the time nor the place for a lecture on trust, honesty and professional ethics.

"So what if she was with me?"

"Don't you see? It changes everything. For starters, the wasp story won't sell."

"Why not?"

"Because," Jaywalker explained, "if there had really been a wasp, your wife could have dealt with it. You already had enough on your plate, driving-"

"Drunk?"

"You said it. I didn't."

"Okay," said Carter. "You want the truth, here's the truth. My wife was in the car with me. That much is true. But there was a wasp, and when it started flying around, I asked her to kill it. But she was angry at me, and she wouldn't do it. So I tried. I probably even made a bigger deal of it than I should have. You know, reaching way over to accentuate the fact that she wouldn't help me. You know the rest."

Did he? All Jaywalker really knew was that his bluff about the EZPass photos had worked, and that Amanda had indeed ridden home in the Audi. As for the wasp story, it was still up for grabs. Amanda had said it was a lie, but Carter was sticking with it. And Jaywalker couldn't very well confront him with Amanda's version, not without breaking his promise and giving her up.

Besides which, Carter's insistence that it was true provided Jaywalker with some ethical cover. Because he was in no position to say for sure who was telling the truth and who was lying, he could go ahead and put his client on the stand and have him tell his story. He could even tell Amanda that her husband was sticking with it. If she were to get the hint and remember it his way, she could bolster his defense. On the other hand, if she were to continue to insist that there'd been no wasp… Well, he'd cross that bridge when he came to it.

The afternoon session brought a woman named Lone Thanning to the stand. Thanning was the Rockland County medical examiner, and a witness Jaywalker had been dreading for some time. One of the elements the prosecution is required to prove in a murder case is that the victim died, and that some act of the defendant caused that death. In some cases, that cause-and-effect relationship is thrown into serious debate. Jaywalker had tried cases where cause of death was the issue before the jury. The guy with the. 45 blood alcohol reading, for example, whose stepson had conked him on the head with a bottle. Had the blow really been the cause of death? Or had it been merely incidental to the victim's suddenly collapsing from acute and chronic alcohol poisoning? Or the nineteen-year-old who'd lost his balance after being punched in an alley fight, and had happened to land on a jagged piece of glass that severed his femoral artery? Had the defendant truly caused his death, or had it been a tragic accident?

But when it came to the nine occupants of the van, cause of death was hardly in issue. They'd died, Jaywalker was more than prepared to concede, because the van had rolled over, exploded and burned. Precisely when in the course of those events their deaths occurred, or exactly how, made no difference at all. So Jaywalker had repeatedly offered to stipulate that the medical examiner, if called as a witness, would testify that all nine deaths had resulted from the van's being forced off the road.

But Abe Firestone would have none of that.

Just as Jaywalker wanted to keep the gruesome details from the jurors, Firestone wanted to get as much mileage from those details as he possibly could. And because neither side can be forced to accept a stipulation in lieu of actual evidence, Justice Hinkley wasn't about to intervene. The most she would do was to warn Firestone- and David Kaminsky, who would conduct the direct examination of Dr. Thanning-to keep things as brief as possible and refrain from going into overly graphic details.

Still, Jaywalker knew, it wasn't going to be pretty.

Kaminsky asked Dr. Thanning about her title, training and experience. She described earning her medical degree, doing several internships and residencies, earning board certification in forensic pathology, and working as an assistant medical examiner in the county until her promotion several years ago.

KAMINSKY: What are your duties as chief medical examiner of Rockland County?

THANNING: I run the office and report to the county executive. Along with my staff, I investigate every violent or suspicious death that occurs in the county, as well as a large number of cases where the cause of death is unknown.

KAMINSKY: How do you go about investigating those deaths?

THANNING: Chiefly by performing complete postmortem examinations, commonly referred to as autopsies.

KAMINSKY: How many autopsies have you performed or assisted at?

THANNING: Thousands.

KAMINSKY: Did you have occasion to perform an autopsy on May 28 of last year?

THANNING: I did.

KAMINSKY: Who was the subject of that autopsy?

THANNING: A man by the name of Walter Najinsky.

Walter Najinsky had been the driver of the van, and had long been the forgotten victim in the case. But that was about to change. Najinsky was about to be remem bered in death far more than he had been in life, except perhaps by his immediate family and friends.

KAMINSKY: Would you describe Mr. Najinsky's remains for us as you first encountered them?

THANNING: Yes. The entire body was charred black. The facial features were virtually unrecognizable. Almost all of the flesh had been incinerated, except where one shoe had partially protected one foot. Other than that, what I was looking at was essentially some very burned flesh and a skeleton.

Jaywalker pretended to be taking notes, but only because he didn't dare look at the jurors. The silence in the courtroom told him all he needed to know.

KAMINSKY: What did your examination reveal?

THANNING: It revealed third-degree burns of the entire body.

KAMINSKY: Would you please explain to the jury what third-degree burns are?

THANNING: We divide burns into three degrees, increasing in severity from first degree to third degree. First-degree burns are a reddening of the skin, the sort of thing you might sustain from getting your finger too close to a match, or touching the surface of a pot that's been on the burner of a stove. Second-degree burns involve blistering, where the heat and duration of exposure are enough to kill the outer layers of skin, and cause them to separate from the internal layers. Third-degree burns include charring, much the same way a steak will char if left on a hot open flame too long.

KAMINSKY: Did your examination reveal anything else?

THANNING: Yes. I was able to determine that there were several fractures to bones, specifically the right fibula and tibia, the pelvis, and both the left and right clavicles. In addition, there was a depressed fracture of the skull.

Kaminsky had the witness describe the various bones she'd mentioned. Then he asked her if she had been able to determine the cause of death.

THANNING: Not with absolute certainty. It was most likely the burns. But the skull fracture was also capable of causing death. And it's impossible to rule out internal injuries, which means bleeding from major organs. The body was simply too badly burned to make a determination.

KAMINSKY: Did you take photographs of the body?

JAYWALKER: You can't be serious.

Never mind that it was a line John MacEnroe used to get away with regularly. Jaywalker wouldn't be so lucky. Justice Hinkley banged her gavel once and declared a recess. Then, as soon as the last juror had left the courtroom, she held Jaywalker in contempt for the second time that day. "Only this time, I sentence you to one day in jail, and I do not, repeat, do not, suspend the execution of that sentence. Mr. Stephens," she called to a uniformed trooper assigned to guard the defendant and escort him to and from the courtroom. "Please make the necessary arrangements. Mr. Jaywalker will be a guest of the county tonight."

Then she asked David Kaminsky to show her the autopsy photos. Jaywalker had asked that she exclude them seven weeks ago, arguing that they were too inflammatory to show the jurors. In addition to the charred remains of Walter Najinsky, there were multiple photos of the bodies of the eight children, smaller than the driver's, but no less jarring. They ranged from moderately disturbing to truly hideous.

"Any probative value they might have," Jaywalker pointed out, "is far outweighed by-"

"Quiet," said the judge. She continued to inspect the photos for several minutes, gradually sorting them into two piles, before looking up. "These you may offer," she told Mr. Kaminsky. "These you may not. The defense's objection to them is noted and overruled."

Jaywalker noticed that somewhere along the line he'd ceased to be "Mr. Jaywalker" and had become "the defense." One of the prices of vigorous advocacy. He was permitted to see which photos had passed muster. They included five of Mr. Najinsky from various angles, as well as a close-up of the skull fracture, and one of a child, charred beyond recognition. Jaywalker had seen them all, having been furnished copies many months ago. Even he would have had to concede that Justice Hinkley had kept the very worst of them out. There was one, for example, of the eight children's bodies, arranged side by side, that reminded him of concentration camp photos he'd seen. And another of a small blackened skull framing tiny white teeth that seemed to be smiling out at the viewer. Still, the ones the jurors were going to be permitted to see were ghastly enough.

And the thing was, by excluding the worst of them, the judge would no doubt be deemed to have forged an acceptable Solomonic compromise in the opinion of some appellate court, a year or two from now. Judges weren't asked to be perfect, after all, just reasonable.

Once the jury had been brought back into the courtroom, Kaminsky had Dr. Thanning identify the photos of Mr. Najinsky and describe what each one depicted. Then he moved on, out of the frying pan, as it were.

KAMINSKY: Did you conduct autopsies of the additional eight victims, the children?

THANNING: No, I did not.

KAMINSKY: Why not?

THANNING: I was able to tell from a gross external examination that all eight had suffered third-degree burns over just about their entire bodies, and that in all eight cases, they could not have survived those burns. Based upon that conclusion, I elected to use my discretion and yield to the wishes of the families, who are all orthodox Jews opposed on religious grounds to invasive autopsies. Also, they wanted to bury their children without further delay, in accordance with their beliefs.

Which didn't stop Kaminsky from introducing eight additional photos, one for each of the children, and then having them published, passed among the jurors. Jaywalker watched out of the corner of one eye as each juror in turn physically recoiled from the images.

He asked Dr. Thanning no questions.

The afternoon's final witness was another doctor, this one a forensic pediadontist named Oliver Landsman Jacoby. Dr. Jacoby, so far as anyone had been able to ascertain, was the only person on the planet who made his living and spent all of his professional time identifying dead children by comparing their teeth to their previous dental records or, if no such records existed, to dental characteristics they shared in common with their parents or siblings. It was, one might say, a niche industry.

Because the eight children had been so thoroughly burned, and because the religious beliefs of their parents forbade intrusive procedures to their bodies, the Rockland County authorities had decided against attempting to draw tissue samples for DNA typing. With no cheeks left to swab, skin to scrape, or hairs from which to collect follicles, that likely would have required extracting bone marrow, something that Lone Thanning had been understandably reluctant to do.

Enter Dr. Jacoby.

Again it was David Kaminsky who did the honors. Again Jaywalker rose to stipulate that the bodies were indeed those of the eight children named in the indictment. Again Firestone and his team rejected the offer. And again Justice Hinkley admonished Jaywalker for grandstanding in front of the jury. Though she did refrain from adding to his contempt sentence.

This time, the prosecution's inflexibility backfired just a bit. Kaminsky had Dr. Jacoby produce a series of packets. The first such packet contained multiple photographs and X-rays taken after the incident, and showing the teeth of the dead children. Each photo bore a number, 1 through 8, as well as the letter X, for "unknown." The rules of spelling, it seemed, were going to yield to the conventions of algebra. Next, Dr. Jacoby identified eight more packets, each containing not only photos and X-rays that had been taken during the lives of the children, but those of close relatives, as well. Each of those items bore the letter K, for "known." But here the numbers ran into the hundreds. And even though Kaminsky had taken the trouble to have all of the items premarked, it still took a good twenty minutes for them to be offered, remarked, and received in evidence. During those twenty minutes, the jurors got to sit on their hands. Jaywalker made a point of yawning several times, and noticed that a few of the jurors caught the bug and followed suit. Never a good sign for the prosecution.

Then Kaminsky began the tedious process of drawing out from Dr. Jacoby the evidence upon which he'd been able to match the teeth of each child with a name, through either prior photos, X-rays, or comparisons of markers, or unusual characteristics, with the teeth of known relatives. At one point Kaminsky got so confused trying to match up the Xs with the Ks that he offered to give up trying and accept the defense's offer of a stipulation.

"Objection," said Jaywalker. "Grandstanding."

Once it had gotten the desired effect of a couple of grins from the jury box, he withdrew the objection and agreed to stipulate. But before sitting down, he made sure to make a point of looking at his trusty Movado knockoff and shaking his head from side to side in mock exasperation over the waste of the jury's time.

But if a handful of jurors had noticed and smiled, Kaminsky remained oblivious. Finished with his direct examination of Dr. Jacoby, he insisted that the photos and X-rays, all 216 of them, be published to the jury. Justice Hinkley complied, but it was a mistake. There were simply too many exhibits, and unlike the video and the previous photos, these were in black and white. The jurors barely looked at them. Could it be that they were beginning to become desensitized to the horror?

Jaywalker could only hope.

Jaywalker half expected Justice Hinkley to relent and let him go for the night, but she didn't. She did permit him to turn his valuables over to Amanda for safekeeping. These included his identification, his keys, his watch and his money, which, assuming the overnight rate of exchange with Samoa hadn't changed, came to $17.42. Then he was escorted into the pen area by an apologetic trooper.

"Any chance I can double bunk with my client?" Jaywalker asked him. "I need to prepare him for testifying."

"I'll see what I can do," said the trooper. "But…"

"What?"

"Nothing."

"What?" Jaywalker repeated. And when that didn't work, he pulled out his trump card. "C'mon," he said. "I used to be on the job." The words might not have meant anything to a civilian, but to anyone in law enforcement, they were the way you said you were one of them, that you, too, had once carried a gun and a shield for a living. They were words he'd learned back in his DEA days, when he'd been out on the street undercover, carrying a bad-guy gun but no shield. And when some gung ho cop would stop him, give him a toss, and discover a. 380 Browning semiautomatic shoved down his belt, with one in the chamber and eleven in the clip-which happened more than once-and was about to crack him over the head with it to teach him a lesson, Jaywalker would mutter the words just in time to save his skull.

On the job.

"Okay," said the trooper. "Just make sure you keep your food straight from his."

"Ten-four," said Jaywalker.

Which was his way of saying he got it. What the trooper was telling him was that Carter Drake wasn't much liked, and there was the outside but nonetheless distinct possibility that things were ending up on his meal tray or in his coffee that didn't exactly belong there. Not that the advice came as a total shock to Jaywalker. He'd once been warned by a court officer never to pour himself a cupful of water from the pitcher of a particular judge who was known to be discourteous toward his staff.

After a pat-down and some processing, including fingerprinting and photographing, Jaywalker was placed in solitary. He caught a nap on a bare steel cot, using his jacket as a blanket and his shoes for a pillow. It wouldn't be the first night he'd spent in jail, and it probably wouldn't be the last, so he figured he might as well make the best of things. After an hour or so, he was awakened and handed a pen through the bars, along with a printed form. He read just enough of it to understand that he was forever surrendering his right to sue the state, the county, the city, and their agents and employees in the unlikely event of assault, rape, death or dismemberment. He signed with his left hand, illegibly enough so that if more than three of those things were to happen, his daughter could claim that the handwriting wasn't his. Then his earlier wish was granted, and he was led down the corridor to a two-bunk cell, where Carter Drake took one look at him, smiled broadly and said, "Hey, it's my cousin Vinny!"

Whatever that w as supposed to mean.