Depraved Indifference

23

"Michael Fishbein, eleven. Sarah Teitelbaum, eleven. Anna Moskowitz Zorn, ten. Andrew Tucker, nine. Sheilah Zucker, nine. Steven Sonnenshein, eight. Beth Levy-Strauss, seven. Richard Abraham Lubovich, six. Walter Najinsky, forty-three." One by one, he recited their names and ages. He did it slowly, and as gravely as possible. And he did it from memory. He knew that if he didn't do it, Abe Firestone would.

"None of them should have died, not one of them. And but for the actions of my client, every one of them would be alive today. Because we can all agree, every one of us, that it was Carter Drake who set into motion the chain of events that took them from this life, and took them from you. In a very real sense, he bears responsibility. He will go to his grave bearing responsibility. He will meet his Maker bearing responsibility. Knowing full well that he would have to drive home that evening, he drank too much, perhaps far too much. That was an incredibly selfish act on his part, an act that neither you nor I, nor even this court, has the power to forgive.

"But we are a nation of laws, and a trial is an inquiry into whether our laws have been broken. Nothing more, nothing less. And under our laws, selfishness-no matter how blatant and how repugnant it may be to us-is not a crime. Search for it in the indictment. Read all ninetythree counts. You will find no mention of selfishness, no charge of arrogance, no accusation of ultimate responsibility. What you will find are the names of ninety-three specific crimes alleged to have been committed by my client at about nine o'clock on the evening of the twentyseventh day of May, some eight months ago. And as it turns out, despite his insistence that he is guilty of every one of those crimes, Carter Drake is guilty of none of them."

He let that hang in the air a moment. He'd woken up during the middle of the night, Jaywalker had, totally disoriented, with no idea where he was. Only the sound of Abe Firestone's snoring had jarred him back to reality. Then, as he lay on his back on the upper bunk, the ceiling only inches from his face, a flood of panic had washed over him. Had the jurors caught Drake's left-handed blunder? Did they understand the significance of his inability to downshift? Or had those things gone right over their heads? He hadn't slept after that, had instead spent the rest of the night fighting off the sensation that the cell was filling with water. The rise and fall of Firestone's breathing beneath him became a giant bellows-driven pump, gushing out invisible gallons of seawater that would eventually rise and engulf him. He had failed, he knew. In his inability to get Drake to finally come out and admit he hadn't been driving, he'd left the jurors with too little to go on. They were going to convict.

That had been last night.

Now it was today. And if they were going to convict, they were going to do so over Jaywalker's dead body.

"You and I came into this trial," he told them, "absolutely certain of two things. The first thing we were certain of was that nine people, eight of them very young children, had died horrible, horrible deaths. Needless deaths. The second thing we were absolutely certain of, or at least thought we were absolutely certain of, was that it was my client who'd been driving the Audi when it ran the van off the road and caused those nine deaths. I was every bit as certain of that as you were. And for much of the trial, nothing happened to cause us to question that certainty. After all, hadn't the defendant turned himself in? Wasn't it his car? Didn't Concepcion Testigo point him out, remembering him from his yellow hair? And most of all, didn't the defendant himself tell you that he was driving? And even now, doesn't he continue to insist that he was?

"Well, it just so happens we were wrong, you and I. Carter Drake turned himself in because he wanted to protect his wife from getting into trouble, just as he'd wanted to drive home that evening because he wanted to protect his underage son from getting into trouble. And because he turned himself in, and because it was his car, nobody ever gave it a second thought. Not the police, not the prosecutors, not even I. So you're in pretty good company. And as far as Concepcion Testigo is concerned, the driver of the pickup truck, don't blame him. What did he tell you? 'I only got a quick look at the driver, but I did get his license plate.' 'Which plate?' Mr. Firestone asks him. 'Front or rear?' 'Rear,' says Testigo. 'Do you see the driver in court?' Firestone asks. 'I think that's him, over there,' says Testigo. 'I remember his yellow hair.'

" 'I remember his yellow hair.'

"Who else in this case just happens to have yellow hair?" Jaywalker asked them. And he saw the name Amanda on sixteen pairs of lips. So he simply nodded.

"How did we discover, you and I, that it was Amanda Drake who was driving? We discovered it purely by accident, Carter Drake's accident. He was trying to demonstrate how he tried to jam the stick shift into a lower gear. And then he was so intent on showing you that he made a mistake. And when you stop to think about it, it was the most natural mistake in the world. Because it was the truth. Carter Drake used his left hand, the one he actually used that night. Had he been behind the wheel, surely he would have used his right hand. There can be absolutely no doubt about that. If any of you aren't sure, look at Investigator Sheetz's photo of the interior of the Audi, and you'll see." He held up the photo. "Carter Drake used his left hand in the demonstration just as he used it in real life. And his doing so proves conclusively that he was in the passenger seat. There can be no other explanation. None."

At least four jurors-now five, six-were nodding in agreement. They weren't happy about it, but they were nodding.

"But there's even more," he told them. "Why couldn't he get the Audi in a lower gear in order to slow it down? You saw how hard he tried. Well, we know there was nothing wrong with the car. Sheetz told us that. They checked it out thoroughly, inside and out, no doubt because they didn't want Drake coming in here and saying there had been some sort of mechanical failure that had caused him to speed up and swerve into the wrong lane. So we know we can rule that out.

"Once again, there's only one possible explanation. In order to change gears, you first need to do something else. You first need to use your left foot to step on the clutch, the pedal on the far left." He turned his back to the jurors so he was facing the same way they were, and gestured from right to left. "Accelerator, brake, clutch. Carter Drake couldn't depress the clutch because he couldn't reach it. And he couldn't reach it for one reason, and one reason only.

"He was in the passenger seat.

"I'd love to add one other thing, to talk about Amanda's refusal to say whether or not she was driving. But Justice Hinkley will tell you that you may draw no conclusion from that."

Firestone objected, and the judge instructed the jurors to disregard the comment, but they were both too late. A lot of cases are won by putting something in evidence. Every once in a while, though, a case is won by putting something in the ear. Amanda's having taken the Fifth, invoking it at the precise moment when she would otherwise have had to incriminate herself, was simply too important to leave out. It would be worth another night in jail, if it came to that. It would be worth a week of nights, if only they could find him a no-snoring cell.

"So you can convict Carter Drake if you want to, as I'm sure Mr. Firestone will ask you to. He even told you in his opening statement that he would, back before any of us knew what we now know. If not for the admitted fact of Carter Drake's drinking too much, his wife never would have had to drive a car she was unfamiliar with, in a place she was unfamiliar with, in the dark, and in the midst of an argument, and this tragedy never would have occurred. So there'd even be a kind of poetic justice were you to convict him.

"But you're not here to impose poetic justice. You aren't poets. You are jurors, and you're here to impose real justice. And real justice, no matter how unpleasant and distasteful it sometimes becomes, requires us to ask ourselves one question, and one question alone. Are we convinced-convinced beyond all reasonable doubt- that it was Carter Drake, and not Amanda Drake, who was behind the wheel of the Audi at that fateful moment? Or do we have at least some hesitation when we get to that issue, some lingering doubt that leaves us less than convinced beyond all reasonable uncertainty? There can be only one answer to that question, jurors. And that answer is no, there's no way we can be convinced, not beyond all reasonable doubt. So it's up to you. If you do your duty, follow the law and impose real justice, you must f ind Carter Drake not guilty, and leave how he is finally judged in other hands."

And with that, barely twenty-five minutes after he'd begun, Jaywalker sat down.

Abe Firestone spoke for twice as long, but not half as well. Despite Jaywalker's having done so, he, too, listed the names of the victims, though he read them from the captions beneath their photos on the oak tag exhibit. He accused Jaywalker of orchestrating the "mistake" with the stick shift and the clutch, and of getting Amanda Drake to invoke her privilege so that both husband and wife would evade responsibility.

But Firestone was off his game. Apparently the same night in jail that had first panicked and then enervated Jaywalker, had simply exhausted Firestone. He lost his train of thought, repeated himself, backed up, and repeated himself again. Only toward the end of the hour did he seem to regain his composure, finishing strong as he demanded justice for the nine victims.

"If ever anyone was guilty of murder," he told the jurors, "it is this defendant. If ever anyone acted in a reckless manner, exhibiting a depraved indifference to human life, it is this defendant. And then for him to pull the kind of stunt he pulled and pretend he wasn't even driving… The nerve of him, the gall, the c hutzpah, to try to blame it all on his wife. Shame on him, shame on him."

Firestone ended as Jaywalker had begun, reciting the names of the victims once more. Had it not been for the fact that his passion was misguided, devoted as it was to asking the jury to convict an innocent man, it would have been an extremely effective closing, at least the last part of it. But from the looks on the jurors' faces, they weren't buying it.

Then again, Jaywalker had been wrong about such matters before. The thing about jury verdicts was that you never knew.

Never.

Justice Hinkley's charge to the jury took exactly an hour, and it was just before one o'clock in the afternoon when the twelve regular jurors retired to deliberate. The four alternates, rather than being discharged, were led off to a separate room, just in case one of the regulars became sick or otherwise incapable of continuing.

As for Jaywalker, he became both sick and incapable of continuing. Exhausted from a night spent listening to Firestone's snoring, to fighting off claustrophobia, and to tweaking his summation to fit the trial's latest twists and turns, he'd gotten through the morning on adrenaline and caffeine. While his summation had been short, far shorter than he'd originally planned, it had been emotional, and had taken a lot out of him. Listening to Firestone for an hour, and then to the judge for another hour, had been an ordeal, and at times he'd had to bite the inside of his cheek or pretend to be taking notes just to stay awake.

He found an empty stall in the men's room and tried to throw up, but he'd eaten so little over the past four days that all he could do was gag. Dry heaves, they used to call it back in college, when they'd come back to the dorm, knelt before the porcelain god, and paid the price for having been stupid boys trying to act like stupid men.

He left the stall and caught a glimpse of himself in the mirror. Amanda had come through once again with a pressed suit, a clean shirt and a new tie. She'd brought a razor and comb this time, both of which he'd used in the twenty minutes the judge had allowed before summations started. But none of it had helped much. He looked as if he'd been on trial for three weeks. His eyes were dark and sunken, his skin pale, his clothes loose from the fifteen pounds he'd no doubt lost.

He glanced upward toward the heavens, but spotted only a bare lightbulb, protected by a wire cage. Oh, Lord, God of Rockland Light and Power, he began silently, grant me an acquittal in just this one case and I'll never ask you for anything again. I'll eat regularly. I'll quit the business and take up writing full-time. I'll clean my apartment. I'll go to the dentist. I'll have that colonoscopy I keep putting off, and that PSA test. I'll even stop seeing Amanda, if you want me to. Just don't let me lose, not this one.

It was pretty much the same prayer he always offered up around this time, to whatever deity might be listening in and have a spare moment for a humble nonbeliever with a shoddy history of following up on his pledges once his wish had been granted. But old habits died hard. He continued to put his left shoe on before his right because, at least since his wife's illness and death, things had more or less worked out for him so far. He threw a little salt over his shoulder if he'd happened to spill some. He folded his towels as they came out of the dryer, even though a moment later he'd unfold them so he could hang them on the hooks in his bathroom. And he always remembered to say thank-you after each acquittal. Always.

He was an atheist, but he was a superstitious atheist. Just in case.

Back in the courtroom, the jury had already sent out a note. Jaywalker felt the sudden surge of adrenaline, the pounding of his heartbeat at his temples. Notes were clues, valuable indications of what the jurors were focusing on and which way they were leaning.

But not this one.

They wanted to know how long the judge would make them deliberate tomorrow if they couldn't arrive at a verdict today. Tomorrow was Friday, and for many of them the Sabbath would begin at sundown.

With no objection from Firestone or Jaywalker, Justice Hinkley sent them back a note assuring them that under no circumstances would they be required to deliberate on the Sabbath. What she didn't tell them was that under no circumstances could she permit them to return to their homes, either. This was a murder case, and the law required that they be kept together, even when they weren't deliberating.

But even with their innocuous request, Jaywalker wondered, had the jurors been telegraphing that they were in for a long ordeal? Why else would they be thinking ahead to tomorrow? And what did "lengthy deliberations" mean in this case? Surely there was reasonable doubt as to who'd been driving the Audi, and if there was, the case should end right there. The fact that the jurors didn't seem to be seeing it that way couldn't be good.

After he'd gotten his clothes and toiletries from Amanda in the morning, Jaywalker had sent her packing, even before the jurors had begun arriving. He didn't want them seeing her anymore, especially in his company. He'd expected Firestone to make the collusion argument in his summation, and he hadn't been disappointed. So even though it might have been nice for the jurors to see a devoted wife each time they filed in and out of the courtroom, Amanda's presence, coupled with the fact that she might well have been the one who'd killed the nine victims, could have proved troublesome for the jurors, to say the least. And while they couldn't take their anger out on her, they could take it out on her husband.

But Amanda's absence left Jaywalker with basically no one to pass the time with. Even when he wasn't complaining or snoring, Firestone was hardly the best of company. Kaminsky was bookishly smart, but awfully nerdy. And to paraphrase an old saying, Napolitano was cute but young. And the media, as always, was off-limits to Jaywalker. That left the gawkers and the courtroom staff, good for five minutes' banter now and then, but not much more. So he sat in the courtroom by himself, going over what he'd said in his summation and how he might have said it just a little bit better.

Vintage Jaywalker.

The second note didn't come out until three-thirty.

The jurors wanted to know if they could find the defendant guilty on counts eighty-six and eighty-seven on the theory that he'd committed them earlier in the day, when he'd driven from New York City to Nyack, and then again from Frank Gilson's office to the End Zone.

Jaywalker knew the indictment by heart, all ninetythree counts of it. Counts eighty-six and eighty-seven charged Drake with driving without a valid driver's license and without insurance. Both were violations of the Vehicle and Traffic Law that paled in comparison with the more serious charges. In fact, even if Drake were to be convicted of both of them, he'd already spent enough time in jail that his sentence would have to be the equivalent of time served, or perhaps a fine.

But far more important than the jurors' interest in those charges was what their question meant: that they'd decided, or were on the verge of deciding, that Amanda had been driving the Audi at the fateful moment, or at least that there was reasonable doubt as to whether Carter had been. What they were asking now was whether they could nonetheless convict Drake of something. And they'd seized upon the two counts they were asking about knowing that when Drake had driven up to Nyack that morning, and later to the End Zone that afternoon, he hadn't been licensed or insured.

This was good. This was very good.

Justice Hinkley asked the lawyers for their reactions.

"Sure they can," said Jaywalker. He'd be giving up virtually nothing. And by tossing the jury a bone, the payback would be enormous, an acquittal on the remaining charges. The ones that counted.

"Mr. Firestone?" the judge asked.

"I don't give a rat's ass," said Abe. He might not have been the sharpest tack in the toolbox, but he, too, could see where this was going.

Justice Hinkley pulled out her copy of the indictment, thumbed to the two counts in question, and studied them. "Both of these counts specify a time," she said, "'at or about nine o'clock in the evening.' It's clear to me that the grand jury had in mind the time of the accident. For me to tell the jury yes, they can nevertheless convict the defendant on those counts based upon his driving earlier in the day, would constitute both an amendment and an enlargement of the indictment, something I have no power to do. Accordingly, I'm going to tell them no, they cannot do that."

Jaywalker protested, offering to waive any appeal on the issue, but the judge refused to change her mind. And she was right. Having voted the indictment in the first place, only the grand jurors had the power to amend it. And they'd been discharged months ago.

"Bring in the jury," said the judge.

Just as he could read a lot more into a note than the words it contained, so too could Jaywalker read the faces of jurors in the midst of deliberations as they entered the courtroom. Any trial lawyer learns to do that. At least any good one.

It's a good sign if they're willing to look at the defendant and his lawyer, a bad sign if they're not. A smile is to be treasured, as is any sort of laughing, joking or looking relaxed. Even the way they make their way to the jury box is telling. Jurors who are leaning toward acquittal will think nothing of walking close to the defense table; those in the conviction camp will steer clear, favoring the prosecution table.

This jury was angry.

They didn't smile, they didn't joke, they didn't relax. They avoided both the defense and the prosecution tables. And the only eye contact they made was with the judge.

Hearing that they could convict the defendant of driving without a license or insurance only if they were convinced beyond a reasonable doubt that he'd done so at or about nine o'clock on the evening in question seemed to make them angrier. Their faces grim, they filed out and returned to their deliberations.

The buzzer sounded twice at 4:46.

A single buzz meant the jurors had a note.

A double buzz meant a verdict.

The courtroom filled up almost immediately. Carter Drake was brought in through a side door. Jaywalker said a final prayer to a God he didn't believe in and took his seat next to Drake.

"What do you think?" Carter asked him.

"I have no idea."

He had all sorts of ideas, of course, and they were all banging around furiously in what was left of his brain. But they were drowned out by the pounding in his chest and at his temples, and by the rushing noise in his ears. And even were he to admit his hunch to himself, that they were about to hear the words Not guilty, he would never say so out loud. Not in a million years.

When the jurors filed in for the last time, they seemed as angry as they had been before, and as unwilling to make eye contact as ever. And studying them, Jaywalker hoped he understood that anger. Let them be angry, he prayed. Let them be angry at Carter Drake, but only for setting in motion the chain of events that hadn't ended until nine people lay incinerated beyond recognition. Let them be angry at Amanda for whatever she'd done to cause the Audi to wander into the wrong lane, and to fail to get it back where it belonged. Let them be angry at the prosecution for being so stupid as to indict the wrong person. Let them be angry at me for being the one to show them they had to acquit. Let their anger be the anger of frustration, not the anger of retribution.

"Will the foreperson please rise?"

Juror number one stood. She was a pleasant-looking woman, a teacher's aide with two young children of her own. She was thirty-four, she'd told them during jury selection a thousand years ago, and an orthodox Jew who wore a wig in public and kept a kosher home. And to look at her face, she was very, very nervous. But Jaywalker wasn't looking at her face. He was looking at her hands. They were empty. They held no verdict sheet, no note, no written breakdown of how the jury had voted on each of the ninety-three counts in the indictment.

Which could mean only one thing.

Either the jury was about to convict Carter Drake of everything, or they were going to convict him of nothing.

"Will the defendant please rise?" said the clerk. And as Drake stood, so did Jaywalker. He'd been secondguessed for that a couple of times, accused of showboating, even asked once if he was prepared to share the defendant's sentence in the event of a conviction. "Sure," he'd said, having already seen the jurors' smiles. The point was, he didn't care what others thought. It was his verdict as much as his client's. If the jury was about to reject his client, then they'd rejected him, too, and he'd take it standing up. What warrior ever chose to sit before his firing squad?

"Madame Forelady, has the jury reached a verdict?"

"Yes, we have."

"As to all ninety-three counts?"

"Yes."

"On count one of the indictment, charging the defendant with the murder of Walter Najinsky on the theory of recklessness evincing a depraved indifference to human life, how do you find the defendant, guilty or not guilty?"