Depraved Indifference

21

Spending a night in jail may actually have a positive effect on some people. It can serve as a warning to mend one's ways. It can provide an educational experience, even a humbling one. Gandhi is said to have emerged from imprisonment more determined than ever, Martin Luther King more revered. In modern times, at least one politician used his five years as a prisoner of war as a springboard to some degree of political success.

That said, jail does little for one's personal hygiene. Even though Jaywalker had been careful to keep his food-to use the word loosely-separate from that of his cell mate, he emerged the next morning looking like he'd slept in his suit and, well, smelling pretty much as might have been expected. The one-night rate, it turned out, hadn't included shower privileges. And unlike even the cheap motels he was used to on the rare occasion when he traveled, there'd been no cute little soaps, shampoos and conditioners arrayed on the bathroom sink. In fact, there'd been no bathroom. There'd been a sink, a steel thing with a single faucet producing cold water, and a matching toilet, no seat, no lid.

With no mirror in sight, the best he could do was to run a hand through his hair and over the stubble on his chin. He had to tie his tie three times to get the ends right. His shirt was badly wrinkled, but that was nothing compared to how it smelled.

So when Jaywalker walked into the courtroom Tuesday morning to find Amanda waiting for him with a fresh suit and shirt, clean undershorts and socks, a toothbrush and toothpaste, a comb and-most welcome of all-a stick of deodorant, he was beyond grateful. She'd found his address among his identification, she explained, and used his keys to let herself into his apartment. Security had been no problem, there being none.

Justice Hinkley allowed him ten minutes to use a public restroom to change and defumigate. By the time he reappeared, he looked pretty much himself, give or take a day's stubble. Not that pretty much himself was ever going to land him on the pages of GQ magazine. But at least he smelled good, thanks to a generous underarm and overbody coating of Old Spice Original Scent.

Most murder cases involve a single victim. Yet prosecutors invariably feel compelled to offer not one but two witnesses when it comes to identifying the body for the jury. The first is typically a police witness, often a detective or officer who viewed the victim at the crime scene and later at the medical examiner's office, to assure the jurors that the bodies are one and the same. Chain of custody, so to speak.

In Carter Drake's trial, that had posed a problem, but only a bit of one. By the time the police arrived at the scene of the crash, the victims were already unrecognizable. But between the testimony of Lone Thanning and Oliver Jacoby, all nine of them had been fully identified for the jury.

The second identifier at a murder trial is generally a next of kin or other close relative of the deceased. The avowed purpose of this exercise is to have someone who knew the victim in life, and subsequently saw him or her in death, vouch for the fact that the now-lifeless body is indeed the person named in the indictment. So much for the avowed purpose. What's really going on, of course, is that the prosecutor wants to humanize the victim, wants to bring in a grieving mother or father, son or daughter, to take the long walk to the witness stand and, choking back tears, describe having to see an only child or beloved parent laid out on a cold slab in the morgue.

Abe Firestone had weeks ago signaled his intention to call eight family members, one per child, in order to make civilian identifications of their loved ones. Jaywalker had immediately screamed foul, pointing out that because none of the eight could in fact identify the remains of their children, the tactic was nothing but an appeal to emotion. And when Justice Hinkley had wavered, he'd threatened to test each of the witnesses by displaying a huge blowup of the photo showing the eight charred bodies, and seeing if the parent could truly pick out his or her child.

Not that he would have done it, of course. But with Jaywalker, you never knew, and the specter had evidently been too much for the judge. For once, she'd sided with the defense. But at the same time she'd invited Firestone to come up with an alternative, some less inflammatory way of personalizing the victims. A week later, Firestone had unveiled his plan B. He intended to have a single parent stand in for the others. She-and the choice of gender was a pretty good indication that the prosecution was still hoping to maximize the emotional impact-would describe her own child, and then go on to name and say a little bit about each of the other seven. Again Jaywalker had objected. If the names of the children were what needed mentioning, surely some school official was in a better position to say who'd been on the van and who hadn't been, as opposed to some mother who might have been forty miles away, getting her hair done while the kids were climbing aboard.

In the end, the judge had agreed once again with Jaywalker, though not before scolding him for his sexist remark and warning him about his cavalier attitude. But there'd been no jurors around, and no members of the media. Still, she'd been right, and he'd apologized. He should have used a working mother in his example, rather than a well-coiffed one. So Firestone and his team had reluctantly moved on to plan C, eventually reporting that they'd taken the defense up on its suggestion and enlisted someone from the school to do the job.

Now, once the spectators had been allowed back inside the courtroom and the jurors led in, Julie Napolitano stood and announced that the People were ready to call their final witness, Rabbi Mordecai Lubovich.

Oy.

All eyes turned to see a small man, not much more than five feet tall, flanked by a pair of uniformed troopers, enter the courtroom. To Jaywalker, he looked to be in his seventies, maybe even his eighties. Then again, maybe it was the sadness he seemed to carry in with him that added to his years. The deep lines in his face gave him an uncanny resemblance to Edward G. Robinson. Not the early tough-talking one, though. More the weary warrior, the one who'd seen too much and wanted out. The one from Soylent Green.

NAPOLITANO: By whom are you employed, Rabbi Lubovich?

LUBOVICH: I'm employed by the Ramaz Yeshiva, here in New City.

NAPOLITANO: In what capacity?

LUBOVICH: I'm the equivalent of the principal.

NAPOLITANO: For how long have you been so employed?

LUBOVICH: For thirty-two years.

NAPOLITANO: Do you recall the day of May 27 of last year?

LUBOVICH: How can I forget?

But there was no glibness, nothing the least bit clever about the way he said it. With those four little words, he was telling the jurors what his life had been ever since that day, and what it would be until the day he died. And even as Jaywalker's heart reached out to the poor man as it hadn't done to any previous witness, he found himself thinking Shit, I should have let them bring in the parents.

NAPOLITANO: Did there come a time that day when a number of children from your school boarded a van to be taken somewhere?

LUBOVICH: Yes. Eight of my children, from different classes, had been selected to attend the groundbreaking ceremony for a new shul, a synagogue, in Haverstraw.

NAPOLITANO: How were they selected?

LUBOVICH: They were among my most promising students. They were the best and the brightest, you could say.

NAPOLITANO: Who loaded them onto the van?

LUBOVICH: I did, along with another teacher. I made sure they were each buckled into their seats. The seats they would die in.

NAPOLITANO: Can you tell us their names and ages?

LUBOVICH: In my sleep I can tell you.

And he proceeded to list them. Not reading from some list, but staring off into space. "Michael Fishbein, eleven. Sarah Teitelbaum, also eleven. Anna Moskowitz Zorn, ten. Andrew Tucker, nine. Sheilah Zucker, nine. Steven Sonnenshein, eight. Beth Levy-Strauss, seven. Richard Abraham Lubovich, six. He happened to be my greatgrandson, my only great-grandson."

There comes a moment in every murder trial when the victim or victims cease to be a name and suddenly come to life. Up until that moment, Jaywalker had thought the moment had occurred when Adam Faulkner, the first trooper to arrive on the scene, had described the tiny charred bodies he'd encountered, some of them still smoking. Or when the veteran EMT Tracy D'Agostino had told how she'd climbed out of the van, walked twenty yards away, and vomited her guts out. But he'd been wrong. The prosecution, foiled by Jaywalker's own objections, had been forced to go to plan C and recruit an official from the school. They'd come up with what might have seemed to be an unlikely candidate in Rabbi Lubovich. He was a man, for one thing, less likely than a woman to stir emotions. And he was old, far too old to be looked upon as the parent of a young child. But in their selection, Firestone and his staff had stumbled upon the perfect witness, and right now that perfect witness had created The Moment.

Mordecai Lubovich had done his crying long ago. He had no tears left. But suddenly everyone else in the courtroom did, and had enough to make up for what the rabbi could no longer do.

Julie Napolitano should have left it right there, having not only choreographed The Moment, but having done so at the perfect time, with what should have been the very last words to come from the mouth of the prosecution's final witness. But she evidently had more on her notepad, so she forged ahead.

Not that what she followed up with was all that anticlimactic. What she did was hand Rabbi Lubovich a set of photographs, each one a glossy, full-color, sixteen-bytwenty-inch portrait of a child, and ask him to match a name to each face. As he did, she took the photo back from him, stuck it onto a large piece of white oak tag she'd earlier propped up on an easel, and affixed the name of the child just beneath his or her photo. By the time she'd finished the exercise, the jurors had two rows of four photos, eight in all, right in front of them. Having earlier been supplied the names of the young victims, they now had the children's faces staring directly at them, begging for justice.

"The People rest," said Julie Napolitano.

It was barely eleven o'clock, but Justice Hinkley excused the jurors for a long lunch break, telling them that they wouldn't be needed for another three hours. Once they'd filed out of the room, Jaywalker rose and formally made the obligatory motion to dismiss the charges against his client. He didn't bother arguing the point or citing cases. He knew better. And so did Justice Hinkley, who quickly denied his motion, ruling that if anything, the People had presented far more evidence than they'd been required to.

Out in the hallway, he found Amanda and used her cell phone to call Nicky Legs. "Get a hold of Drake's doctor," he told him. "Let him know we may be needing him as early as tomorrow afternoon, or maybe Thursday morning."

"What's going on?" Amanda asked.

"The prosecution's case is finished," he told her.

"Finished? Like fell apart?"

In her dreams.

"No," he said. "More like completed."

"What's next?"

"Carter, at two o'clock."

"Wow," she said. "How does it look?"

"You don't want to know. And by the way, thanks for going to my apartment. That was really very sweet of you."

"Anytime."

"I've got to go," he said, pointing to a door that led to the pen area and turning toward it. But she caught his arm.

"You didn't tell him?" she asked. "Did you?"

"Tell him what?"

"You know. That I admitted I was in the car with him."

"No," said Jaywalker. "I kept you out of it. And Eric, too."

"Thank you. And the wasp business. Is he still sticking with that?"

"I'll let you know," said Jaywalker.

"The defense calls Carter Drake."

Drake rose from his seat at the defense table and made his way to the witness stand. The trooper who'd been sitting directly behind him stayed put, a silly gesture intended to disguise the fact that the defendant was in custody. As if the presence of another trooper, seated by the witness box, didn't give it away. Or the stories about the five million dollars' bail he'd been kept from posting, that had made the front page of the Rockland County Register for weeks and been mentioned regularly on local talk-radio shows.

Jaywalker spent twenty minutes on background, establishing that Drake was a husband, a father and a gainfully employed resident of the state. He did these things not only to introduce his client to the jurors and to attach a few positives to him, but to give Carter a chance to get used to the business of testifying.

Not that they hadn't practiced. Counting the three hours over the lunch break and the six they'd spent the evening before, even after "Lights out!" had been called, Jaywalker had devoted at least a dozen sessions to fleshing out Carter's story and getting him ready for the worst Abe Firestone could throw at him. For there was no doubt in his mind that Firestone would conduct the cross-examination himself. There was simply too much ego in him, and far too much publicity value in it, for him to pass the job off to David Kaminsky or Julie Napolitano. No, it would be Firestone's show, and Jaywalker had mimicked him in mock cross-examinations, right down to the gruff voice and heavy-handed theatrics.

From talking about his background, Jaywalker brought Drake forward to May 27 of the previous year, and established that he'd spent the day working hard with a client, right over in Nyack.

JAYWALKER: Did you take time out for lunch?

DRAKE: No, we worked right through.

JAYWALKER: You did finally finish, though?

DRAKE: Yes, we finished about four-thirty or so, as I recall.

JAYWALKER: What did you do then?

DRAKE: Gilson, the client, suggested we get a bite to eat and something to drink. I agreed, and told him to pick the spot. I followed him in my car so he wouldn't have to take me back to his office when we were done.

JAYWALKER: And where did you go?

DRAKE: Not far. To a place called the End Zone. It's what they call a sports bar, I guess.

JAYWALKER: Had you ever been there before?

DRAKE: No, never.

Jaywalker allowed himself a peek at the jury box. Things seemed to be going well, so far. It had taken a lot of coaching, but Drake had managed to develop what passed for a pleasant, earnest way of speaking. He was good to look at, well dressed without being showy, and likable. Then again, he hadn't gotten to the part about drinking yet, or killing nine people.

JAYWALKER: What happened once you got to the End Zone?

DRAKE: We found a table and ordered some food. Hot wings, or buffalo wings, I think they call them there. And drinks.

JAYWALKER: Drinks?

DRAKE: Martinis. We each ordered a martini.

JAYWALKER: And what happened next?

DRAKE: The drinks came, the food took a little longer. So we drank the martinis, and by the time the waitress brought the wings to the table, she saw our glasses were near-empty, and asked if we wanted refills. And we said, "Sure." And when those came, we drank them, too. And much too fast, as I now know. At the time, though, I didn't notice. Honest, I didn't.

JAYWALKER: Did you order more food?

DRAKE: No, the wings weren't very good. They were deep fried, and I keep reading about how bad fried food is for you.

Great. In a dozen practice sessions, the answer had always been a simple "No," or at very worst a "No, I wasn't all that hungry." Now, all of a sudden, Drake had felt the irrepressible need to ad lib, and in the process had not only managed to insult the quality of food at a local establishment, but had also offended any KFC aficionados on the jury. And if their waistlines were any indication, there were several likely candidates.

So much for being likable.

JAYWALKER: But I gather the martinis were good?

DRAKE: Unfortunately, they were very good. So I quit after round three.

Another ad lib. By throwing in the part about quitting after round three-which wasn't even responsive to the question Jaywalker had asked-Drake had managed to jump ahead in time, leaving out important events. In spite of all the work the two of them had put in, he was proving to be a very difficult witness.

Jaywalked tried to glide him back a bit without being too obvious about it.

JAYWALKER: Was it still just the two of you at the table?

DRAKE: No. Frank Gilson had called his girlfriend. He's not married. And he'd told her to come join us. And a while later she showed up, along with two of her girlfriends. So it was the five of us at the table. Frank, me, and the three young ladies.

He'd done it again. It was supposed to be friends, not girlfriends. And young women, not young ladies. There were women who took offense at certain expressions. Jaywalker's wife had been one of them. She'd made him be the first lawyer in the city to stop calling jurors "ladies and gentleman."

"What am I supposed to call them?" he'd asked her.

"P eople, " she'd told him. "They're people."

"You've got to be kidding. 'Good afternoon, people? ' Give me a break."

He'd settled on jurors.

Where was he? Jesus, he told himself. Concentrate.

JAYWALKER: Did you drink anything else after you stopped drinking martinis?

DRAKE: Yes. The ladies wanted to do shots of tequila.

They insisted that everyone at the table join in. I protested a bit Drake, the victim.

— but then I said okay. And I stayed in for two rounds, I believe. Three at the very outside. But I'm ninety-nine percent certain it was just two.

JAYWALKER: You've listened to the testimony of pre vious witnesses at this trial, have you not?

DRAKE: I have.

JAYWALKER: Specifically, the witnesses Frank Gil- son, Trudy Demarest, Amy Jo O'Keefe and Daniel Riley. Did you hear what they had to say about their estimates of how much you had to drink?

DRAKE: Yes, I did.

JAYWALKER: And while their estimates varied widely FIRESTONE: Objection.

THE COURT: Sustained. Strike the word widely.

FIRESTONE: And I don't like the word estimates, ei ther.

JAYWALKER: Well, isn't that special.

FIRESTONE: It wasn't their estimates, it was their recollections.

THE COURT: Quiet, both of you.

(Laughter)

THE COURT: It was their testimony.

JAYWALKER: Perfect. And while the testimony of those witnesses varied, with some guessing-I'm sorry, testifying — that you had as many as six or seven tequilas, you sit there and tell us it was only two, and under no circumstances more than three. How can you be so certain?

DRAKE: Because I was the one who was drinking them. I kept count. I knew I had to drive home, so I cut myself off. I'm not saying the other witnesses lied. I'm sure they testified to the best of their recollections. But I dropped out, I really did. Though I must admit I kind of pretended I was still in.

JAYWALKER: Why did you do that?

DRAKE: I guess I didn't want to come off as a wuss.

JAYWALKER: A what?

DRAKE: A wuss. It's what we used to call a party pooper.

JAYWALKER: And was there any special reason why you didn't want to be perceived as a wuss?

DRAKE: Well, for one thing, nobody wants to be perceived as a wuss.

JAYWALKER: And?

DRAKE: And I guess maybe I was trying to make an impression on the ladies.

JAYWALKER: What is the present status of your marriage, Mr. Drake?

DRAKE: My wife and I are separated.

JAYWALKER: For how long now?

DRAKE: For about a year.

JAYWALKER: So then by the time you went to the End Zone with Frank Gilson, you'd already been separated some five or six months. Is that correct?

DRAKE: That's correct.

Jaywalker brought him to the point where Riley the Bartender had asked him to call home. He'd put up a fuss, Drake readily admitted, but only because he'd stopped drinking about an hour earlier, was already sobering up, and considered himself fully capable of driving.

JAYWALKER: So why hadn't you left?

DRAKE: Because I was having a good time. And because I wanted to be on the safe side, and give myself a little more time before getting behind the wheel.

JAYWALKER: But you did make a call?

DRAKE: Yes. I mean, I wasn't about to get into a fight about it, or anything like that.

JAYWALKER: Whom did you call?

DRAKE: I called by wife. She was the only person I could think of who lived close enough to me and would be willing to do it. And I figured she'd be able to bring our son along.

JAYWALKER: Even though you and your wife were separated?

DRAKE: We still loved each other, and cared about each other. We'd separated because we'd begun to argue too much, and too often. It was supposed to be a trial thing. We'd started seeing a marriage counselor, in fact, working towards resolving our issues.

Jaywalker established that Drake had had no more to drink while waiting for his wife to show up, and that he'd left the End Zone as soon as Eric had walked in. But once outside in parking lot, he'd insisted that he was going to drive himself home.

JAYWALKER: Why did you do that?

DRAKE: Several reasons. First of all, I remembered that my son only had a learner's permit. He wasn't allowed to drive alone or after dark. Second, I was convinced I was fine. And third, the Audi takes some getting used to. It's very fast, very responsive. And again, it was night, it was dark out. Amanda-that's my wife-wasn't really used to it. All things considered, I felt it was safest for me to drive it, and for her to follow me in her car.

JAYWALKER: Did Amanda agree to that?

DRAKE: No. She started arguing with me, and I argued back. We started yelling at each other. At some point, Eric, who'd walked back to her car and gotten into it, drove off.

JAYWALKER: What happened next?

DRAKE: I got into my car and started it up. I told my wife it was up to her. She could get in or stay there in the parking lot. She got in.

JAYWALKER: And?

DRAKE: And I began driving home.

JAYWALKER: How did that go?

DRAKE: At first, it went fine. I had absolutely no trouble driving. No trouble at all.

JAYWALKER: But at some point, I gather that changed?

The question was deliberately open-ended. Even at this point, an hour into his client's direct examination, Jaywalker had absolutely no idea what to expect next. Would Drake tell the wasp story, banking on the fact that his wife would have no choice but to back him up on it? Or would he abandon it and go with the argument narrative, and then try to come up with some other way of extricating himself from responsibility? It was truly weird not knowing, absolutely bizarre. Jaywalker-the compulsive, driven, overpreparer, the dotter of all i's and crosser of all t's-was totally clueless. Here he was, suddenly at a fork in the road where he had to turn left or right, and he had absolutely no idea which it would be. He was about to follow his client's lead, the last thing in the world he ever wanted to do. But what choice did he have?

It didn't take long for him to find out which fork they were taking.

DRAKE: Yes. I noticed a wasp flying around in the car.

JAYWALKER: A wasp?

DRAKE: Yes, a wasp. You know, like a hornet.

JAYWALKER: And why did that change things?

DRAKE: I'm very allergic to insect bites. I've ended up in the emergency room several times.

JAYWALKER: What happens when you get stung?

DRAKE: I get what's called an anaphylactic reaction. My throat closes up, among other things, and I'm unable to breathe. Each time it happens, it gets worse. I've been told that the next one could kill me.

FIRESTONE: Objection.

THE COURT: Come up.

Up at the bench, Firestone, prompted by David Kaminsky tugging at his elbow, argued that what Drake had been told was hearsay. "It's an out-of-court utterance," he pointed out. "And whoever supposedly told him this, even if I were to believe him, isn't here for me to cross-examine."

"It's not hearsay at all," said Jaywalker, who for all of his idiosyncrasies, knew his evidence. "It's not being offered for the truth of the statement. It's being offered only to show his state of mind, and to explain why he did what he did next."

He could have added that he'd be calling his client's doctor to the stand later on-Drake had made certain of that by choosing the wasp fork-but he decided not to tip his hand. Better to let Firestone blunder into that by accusing Drake of making it all up.

THE COURT: Overruled. Step back. The answer will stand.

JAYWALKER: Who told you the next reaction could kill you?

DRAKE: My doctor. The doctors and nurses in the emergency room. All the reading I've done about it. I have to be very, very careful.

JAYWALKER: So what happened when you noticed the wasp flying around inside the car?

DRAKE: I opened the windows, and I asked my wife to try to get it out or kill it. But she wouldn't. She was still angry with me, and she refused. At one point, it landed on the windshield. There was a newspaper on the console, between the seats. I grabbed it, rolled it up, and tried to swat the thing.

JAYWALKER: And?

DRAKE: I missed it, and it began flying around again like crazy. I must have made it angry or something, because all of a sudden it was like it was trying to get me, buzzing all around my head, trying to get at my eyes. I tried to slow down, but I must have had my right foot on the gas pedal instead of the brake, because the more I tried to slow down, the faster we went. And at some point I must have lost control, because all of a sudden I looked up and we were in the wrong lane. I tried to downshift, to force the stick shift into second or third, but I couldn't, I couldn't.

And here Drake gestured with his left hand, showing how hard he'd tried to slam the thing into a lower gear. And his demonstration was so convincing, and his voice so anguished, that Jaywalker nearly missed it.

He'd used his left hand, instead of his right.

Jaywalker had been standing back by the railing, the bar that separated the well of the courtroom from the spectator section. He tended to do that when he wanted his witness to speak louder, to project his voice. Now he walked to the podium and pretended to be studying his notes while he tried to figure out the significance of what had just happened. But a rushing noise and a pounding at his temples made concentrating all but impossible. Had he been the only one to notice Carter Drake's error? Was it possible he'd only imagined it? He turned toward the audience section so that his own body would be facing the same way the witness's was. No, Drake had definitely gestured with his left hand. But as he'd sat in the driver's seat, the gearbox would have been to his right.

Unless he hadn't been in the driver's seat.

JAYWALKER: Tell us, if you can, what prevented you from getting the car into a lower gear.

And suddenly there it was, a flash of panic in Drake's eyes. It lasted less than a second before vanishing, and the only reason Jaywalker saw it was because he'd been looking for it.

DRAKE: I don't know.

JAYWALKER: Don't you?

DRAKE: (No response)

JAYWALKER: Maybe I can help. Was it by any chance because you didn't have your left foot on the clutch pedal?

DRAKE: I don't remember.

JAYWALKER: How do you downshift in the Audi TT?

DRAKE: The same way you downshift with any man- ual-transmission car. You depress the clutch, move the stick into a lower gear, and release the clutch.

JAYWALKER: And the stick-the gearshift selector- is mounted on the floor, between the seats. Just as it's shown in this photograph that Investigator Sheetz took.

(Hands exhibit to witness)

JAYWALKER: Right?

DRAKE: Right.

JAYWALKER: Yet a minute ago, in demonstrating how you tried to force the stick shift into a lower gear, you used your left hand, and reached to your left with it- FIRESTONE: No, he didn't.

THE COURT: Yes, he did.

JAYWALKER: Didn't you?

DRAKE: If I did, it was by mistake.

Jaywalker let the answer hang in the air for a few seconds. Technically, the judge had been wrong to state her own recollection of the gesture. She should have told the jurors it was up to them to decide. But now, with her vote cast in Jaywalker's column, several jurors were nudging their neighbors, as if to say they'd picked up on it, too. And Drake's "by mistake" had by now taken on an absurd quality, somewhere the far side of plausible.

JAYWALKER: Let me ask you again. Isn't it a fact that the reason you couldn't downshift was because you didn't depress the clutch pedal with your left foot?

FIRESTONE: Objection. He's trying to impeach his own witness.

JAYWALKER: I ask that the witness be declared hostile.

It was a shot in the dark, he knew. For starters, he doubted there'd ever been an instance where a lawyer had succeeded in having his own client declared a hostile witness. But that sort of minor detail didn't bother Jaywalker. What worried him was that all a declaration of hostility triggered was the right to ask your own witness leading questions, in which the questions themselves contained or strongly suggested the answers, which could then be as limited as a simple yes or no. It didn't give you the right to impeach your witness, to attack him and try to show he was lying.

Fortunately, almost no one besides Jaywalker knew the rule or appreciated the distinction. Not even Justice Hinkley. "Overruled," she said.

JAYWALKER: You didn't step on the clutch, did you?

DRAKE: I, I, I guess not.

JAYWALKER: Yet you're an experienced driver, aren't you?

DRAKE: Yes.

JAYWALKER: How long had you had the Audi?

DRAKE: I don't know. Eight months.

JAYWALKER: How long had you been driving stan- dard-shift cars?

DRAKE: Since I was seventeen.

JAYWALKER: So what happened? Why didn't you step on the clutch before trying to downshift?

DRAKE: I don't know.

JAYWALKER: Yes you do.

FIRESTONE: Objection.

THE COURT: Sustained.

JAYWALKER: You didn't step on the clutch because you couldn't reach it. Right?

DRAKE: (No response)

JAYWALKER: And you couldn't reach it because you weren't in the driver's seat at all. You were in the passenger seat, weren't you?

DRAKE: No.

JAYWALKER: And the reason you were in the passenger seat is that your wife was driving. Wasn't she?

The collective gasp from the jury drowned out Carter Drake's response, and Justice Hinkley had to ask him to repeat it.

DRAKE: Leave her out of it. It wasn't her fault. It was my fault.

JAYWALKER: Maybe it was your fault. But you weren't behind the wheel, were you?

DRAKE: Yes, I was. It was all my fault, every bit of it. So leave my wife out of it, and leave my son out of it. They had nothing to do with it. I'm the one who's responsible here. I'm the one who killed those kids. Me, me, me. I was driving. I was driving. I was…

Whatever else he might have wanted to say was lost in his sobs, drowned out by huge body-racking convulsions that completely overcame him. It was almost as though Carter Drake had suddenly regressed right there in front of their eyes and become a boy, a ten-year-old version of himself. A boy who believed that by shutting his eyes as hard as he could, clapping his hands tightly over his ears, and continuing to say over and over again that it wasn't so, he could somehow blot out the truth.

But Truth can have a funny way of revealing herself, and to everyone else in the courtroom, with the possible exception of Abe Firestone and his two assistants, she'd suddenly and unexpectedly laid herself bare, for all to see. Carter Drake had no doubt gotten it half-right. In large measure, he was responsible for what had happened. Had he not had too much to drink and needed help getting home, those eight children and their driver would still be alive. But he hadn't killed them. He hadn't driven their van off the road. He hadn't even been driving.

"I have no further questions," said Jaywalker.

But Firestone did.

For a full two hours, he took Drake back over every detail of what had happened in the car. The easy part was getting Drake to say he'd been driving. But when it came to explaining away his having gestured with his left hand reaching for the gearshift, or his left foot's not having been able to reach the clutch pedal, Firestone made no headway at all. And that fact must have been as obvious to Drake as it was to everyone else, because at one point, when it had become clear that his insistence that he'd been driving was ringing hollow, he looked away from Firestone and toward Justice Hinkley. And turning both of his palms upward, he asked, "Can't I just plead guilty?"

"No," said the judge, "you cannot. Your job is to answer the questions."

Firestone finally gave up trying and sat down, but his frustration and anger never once ebbed. Even after the jurors had filed out of the courtroom for the evening, and Jaywalker was packing his files and notes into his briefcase, the D.A. was in front of Jaywalker, spraying a fine mist of spittle as he delivered his unsolicited opinion.

"He's lying!" he shouted, his face crimson, the veins in his forehead bulging. "He's goddamned lying, and you know it. You put him up to this. They warned me. They told me you were one clever son of a bitch. But this…this is fucking criminal! This is an outrage! The guy goes out and kills nine people, and you twist things around to make it look like he was nothing but an innocent passenger! Well, fuck you! I'm still going to get him. You watch. And I'm going to get you, too, before I'm done."

Jaywalker finished packing his briefcase and snapped it shut. "You flatter me," he said. "And I suppose I appreciate your calling me clever. But I'm not that clever. Nobody is."

Amanda was waiting for him in the corridor, but she was hardly alone. A swarm of reporters had her surrounded, snapping pictures of her, shoving microphones into her face, and outshouting each other demanding her comments on the latest development. Jaywalker walked right past her, afraid that if he were seen talking with her, it would smack of collusion.

Sitting behind the wheel of his Mercury, he waited until he saw her reach the parking lot, get into her Lexus and pull out onto the street, before he began following her. He finally managed to catch up to her on the Palisades Parkway, no mean feat for the Merc. As he drew alongside her, he motioned her to follow him. They pulled over at a scenic overlook, where he killed the Mercury's engine, got out and joined Amanda in the Lexus. Unlike the Merc, it had a heater that actually worked.

"What was all that about?" she asked.

"I wanted you to follow me."

"No," she said. "Back in court."

"Oh, that," he said. "Carter told the truth."

"The truth?"

"That you were driving."

People developed tells, Jaywalker had learned long ago, almost imperceptible giveaways that they were lying, or hiding something, or bluffing at the poker table. Some would break off eye contact and look away or down at the floor. Others would raise a hand to the mouth, or the tip of the nose, or one ear or the other. Jaywalker would bite the inside of his cheek. And it was always his left cheek. He had the scar tissue to prove it. But he couldn't help it; for the life of him, he couldn't. Which was why they called it a tell.

Amanda had just bitten her lower lip.

"Why didn't you let me know?" he asked her.

She looked away, out the side window. "Carter," she said. "He insisted. He wouldn't have it any other way. From the day it happened, all that's ever mattered to him is keeping Eric and me out of it. It's his penance, I guess. But I can't believe he changed his mind."

"He didn't, exactly."

He told her what had happened. She nodded grimly several times, but didn't interrupt. When he was finished, she asked, "What's going to happen to me?"

"Not too much," he said. "You certainly weren't drunk, or anything like that. Nobody's going to accuse you of acting with depraved indifference, the way they'd been able to accuse Carter. It was an accident. But it was a bad one, and you did leave the scene."

"What happens tomorrow?"

"Tomorrow," said Jaywalker, "I put you on the witness stand."

"And what am I supposed to do?"

"Tell the truth," he said. "Tell the absolute truth."