Depraved Indifference

6

On Monday, Jaywalker got a call from James Chippamunga. Not that Jimmy would say much over the phone; he never did. In that respect, he exhibited all the paranoia of an international terrorist, a high-ranking member of organized crime, or a cop on the take-none of which he was. He simply didn't trust phones- fuckin' landlines, he called them-and preferred to do his talking in person.

"We need a meet," said Jimmy. Not a meeting, a meet.

"Where?" asked Jaywalker.

"The usual."

"When?"

"Hour from now."

And that was it.

The usual w as as far west as you could go on 125th Street without getting wet, right by the banks of the Hudson River, if the Hudson River still had banks. What it had instead was a parking area, or at least a place where you could sit in your car and watch to see if anyone was watching you.

It suited Jimmy Chipmunk just fine.

As soon as Jaywalker had climbed out of his Mercury and into the passenger seat of Chippamunga's Ford Crown Victoria, Jimmy handed him a large manila envelope.

"Turned out I didn't need the subpoena after all," he said. "Soon as they saw it, they decided to make things easy."

Vintage Jimmy Chipmunk. Jaywalker had no real idea how he'd gotten the stuff, whether it had been through force, threats, bribery, extortion or what. Then again, he didn't care. He'd done his part legally, by filling out the subpoenas. How Jimmy served them, or if he served them at all, was strictly Jimmy's business.

He peeked into the envelope. Inside were maybe twenty or thirty sheets of paper, some loose, some stapled or paper-clipped together. Just by thumbing the edges of them, Jaywalker could see that they were police reports, diagrams of the crash scene, photocopies of photographs, and other documents relating to Carter Drake's case.

"You're the best," he said.

"Nuthin to it," said Jimmy Chipmunk.

Back in his apartment, Jaywalker spent a couple of hours reviewing the documents, organizing them into subject headings and making handwritten notes. But he was no more than five minutes into the process when it became readily apparent to him that District Attorney Abraham Firestone had done his homework.

First, he'd had his investigators thoroughly go over the crash sight. They'd been able to backtrack the path of the van, beginning at the end, where it had come to rest and ended up in flames. As it had gone over the embankment, it had not only torn up the grass, but it had uprooted shrubs and even left marks on rocks and trees that it had bounced off of after leaving the highway. But perhaps most telling were the skid marks the van's tires had left on the pavement.

Skid marks, Jaywalker knew, could tell a story all by themselves. They were created by a driver hitting the brakes hard enough to lock up the vehicle's wheels on a dry, or relatively dry, surface. From the rubber left on that surface, a trained observer could tell exactly where the vehicle had been when the wheels first locked, in what direction it had been heading and how it continued once the brakes were applied. Furthermore, from measuring the length of the marks and adjusting for the coefficient of friction-a fancy way of describing the stickiness of the road surface at the time-it was possible to compute the speed the vehicle had been traveling.

And the results were telling.

The van had been right where it was supposed to be when its brakes locked up, squarely in its northbound lane and a good two feet from the double yellow center line. Its brakes had engaged and begun to slow it without any noticeable "fishtailing" or "drift" to either the left or right. Then there'd come a point where, still standing on his brakes, the van's driver had steered to his right, no doubt attempting to evade the southbound vehicle in his lane. Only when he'd left the pavement altogether and was on the narrow cinder shoulder of the road had the driver tried to correct back to the left. But it had been too late. A twelve-foot stretch with a complete absence of skid marks or tracks of any sort indicated that the van had taken off at that point, literally becoming airborne, before touching down again on the downslope of the embankment. The rest, as they say, was history.

The posted speed limit on that stretch of highway was fifty miles per hour. Allowing for a margin of error of 5 mph either way, Firestone's investigators had been able to conclude that at the time the driver hit the brakes and locked up the wheels, the van had been moving at approximately forty-seven miles an hour.

As for the oncoming vehicle, there was no way to estimate its speed because it had left no skid marks at all. Which meant that its driver had never tried to stop- either before, during or after the incident.

What Firestone had done next was to have his investigators-and he'd assigned at least four of them to the task, on a full-time basis-go even further back in time, in an attempt to track Carter Drake's movements over the twelve hours that had preceded the crash. What they'd done was to interview witnesses, people who'd been with Drake the previous afternoon and evening. And although the names of those people had been blacked out in the copies of the documents Jimmy Chipmunk had dug up, a number of tantalizing clues emerged from the interview reports. There was, for example the "Sports Bar." And there were "Bartender A" and "Bartender B," along with the occasional unredacted pronoun revealing that one was male and the other female. And there were "Customers 1, 2, 3, 4 and 5." Finally, there was a word that kept popping up in the investigators' conversations with those bartenders and customers, a single pesky word that Jaywalker lost count of after the tenth repetition or so.

And that word was tequila.

Since Carter Drake hadn't bothered to stop and stick around after running the van off the road, it followed that he'd gone home, or at least someplace else. He hadn't turned himself in for another fourteen hours, no doubt figuring that any alcohol he'd consumed the night before would no longer be detectable in his system. And he'd been right about that. What he hadn't counted on was that the authorities could nevertheless show that he'd been drunk, by proving it circumstantially. In other words, if the prosecution could reconstruct the previous evening and put, say, ten drinks into Drake, they wouldn't need a blood test or a Breathalyzer; they could prove his intoxication through a combination of eyewitness accounts and expert testimony. It was an unusual way of doing it, but a creative one. And as far as Jaywalker was concerned, there was nothing legally objectionable about it.

Which meant he had some interviewing of his own to do.

That evening, Jaywalker got a call from Judah Mermelstein. Drake had called him from jail, he said.

"He told me he's finished writing out some statement you asked him to do."

"Good," said Jaywalker.

"What kind of statement?" Mermelstein asked.

"Facts," said Jaywalker. "I want his account of everything he can remember, starting twenty-four hours before the accident and continuing all the way up to his arraignment."

"Aren't you afraid it'll get read on the way out?"

"Of course I am," Jaywalker admitted. "But I was also afraid to talk on their phones. I'm not exactly covered by lawyer-client privilege. And even if I was, I wouldn't trust law-enforcement types to play by the rules."

"Really?"

Over the phone, it was hard to tell if Mermelstein was truly shocked or was putting Jaywalker on.

"Really," said Jaywalker, deciding to play it safely down the middle. "I used to be one of them, in a previous life."

"How about I go in and visit Drake tomorrow?" Mer melstein suggested. "It's a schlep for you, but it's right around the corner from here. And it'll probably be easier for me to get the papers from him. You'd probably have to sign your life away, wait two weeks for approval, and submit to a body-cavity search."

"Good idea," said Jaywalker.

"The body-cavity search?"

"I think I'll take a pass on that, thanks." But the exchange brought a smile to Jaywalker's face. Not only was Mermelstein offering to save him time and aggravation, but he'd demonstrated that he understood how dysfunctional bureaucracies operated, or failed to operate. And that he possessed a sense of humor, without which a lawyer was definitely in the wrong business.

Or was Mermelstein's offer his way of saying he wanted to see Carter Drake's statement for himself? Perhaps Jaywalker's little homework assignment for Drake had somehow ruffled Mermelstein's feathers. Then again, he was Drake's lawyer, at least for the next seven or eight months or so, which made the statement every bit as much his business as it was Jaywalker's. No doubt Jaywalker was being paranoid in attributing an ulterior motive to Mermelstein. But he couldn't help it; paranoia was one of the occupational hazards of being a criminal defense lawyer. Sooner or later you learned to suspect absolutely everyone and everything. Giving fellow human beings the benefit of the doubt and presuming innocent motivation on the part of others were noble enough concepts, but they were concepts best left for juries.

True to his word, Judah Mermelstein went in to see Carter Drake on Monday, and on Tuesday an Express Mail envelope arrived at Jaywalker's apartment. In it was a second envelope, bearing the hand-printed words From Carter Drake III. Privileged Communication For My Lawyers Only. The gummed seal of the inner envelope was still intact; Mermelstein hadn't even opened it before forwarding it to Jaywalker.

One of the good things about being paranoid was how often you got to be pleasantly surprised by people.

STATEMENT OF CARTER DRAKE III

The day before the accident I had a meeting scheduled for 10:00 a.m. in Nyack, N.Y. The client I have there owns a bunch of real estate holdings, and he wanted to go over certain things with me. We worked straight through, and then we went to a nearby restaurant to get something to eat, since we had skipped lunch. From the restaurant, which was a sort of a sports bar with lots of TV sets tuned to ESPN and other sports channels, the client called his girlfriend and suggested she come over and meet us.

About an hour later, she showed up with 2 of her girlfriends. By the time they got there, I had already had some appetizers and a couple of drinks. I was drinking martinis, but when the girls joined us they started drinking tequila, so I switched over. I never did get around to eating a real dinner. Instead I had maybe 3 shots of tequila, for a total of 5 drinks, no more.

By the time I left it was just dark outside. I was able to drive okay, but somehow I missed the entrance for Route 9W heading south to NYC. When I reached Route 303, I decided to take it instead. I knew it would eventually take me to the Palisades Parkway and the G. Washington Bridge to the city.

As I was heading south, I noticed that a wasp was flying around inside my car. That worried me, because I'm highly allergic to insect bites. My eyes close up, my mouth gets all swollen, and I have trouble breathing. I've ended up in emergency rooms a couple of times. I know I should have stopped the car and gotten out, but just when I was getting ready to, the wasp landed on the inside of my windshield, toward the middle but closer to the driver's side. I took a folded newspaper and I reached over and tried to kill it. In the process I must have swerved over the center line, because when I looked up, a white van was right in front of me, coming at me. I cut back sharply into my lane, and I thought the van passed safely by me on my left, so I continued on my way.

I made it all the way home without any other problems, getting there about 9:00. I was pretty exhausted, and I went right to bed.

The next morning, listening to the news, I heard about the accident and that the police were looking to question the driver of an Audi with a partial license plate the same as mine. So I contacted my lawyer Chet Ludlow and turned myself in. I wanted to explain everything that happened, but Chet insisted that I remain silent, so I did.

When I went before the judge, I thought he'd let me go. Instead he set 5 million dollars' bail. And to make sure I couldn't post it, they froze all my accounts and other assets. So here I am.

And that's all I know. Honest to God.

Carter Drake III

Jaywalker read it from start to finish, three times. As statements went, it wasn't bad. Sure, there could have been more detail, but that was to be expected, and would come over time. But substantively, it was fine. Drake's version of the events laid out the makings of a pretty good defense. Under federal law imposed upon the states, with the cost of noncompliance being the denial of billions of dollars in highway funding, there is now a nationwide limit on the amount of alcohol a driver of a motor vehicle can legally have in his blood. That limit is. 08 percent, or eight hundredths of a percentage point, calculated by weight. A good rule of thumb is that for every drink consumed by the average adult male, there's a corresponding blood alcohol elevation of. 02 percent. Women, for some reason other than a lower average body weight, experience a slightly higher elevation per drink, closer to. 03 percent. And it doesn't seem to matter whether that drink is a twelve-ounce bottle of beer, a four-ounce glass of wine or a single shot of something far stronger. Nor does it depend upon whether that shot is served straightup, over ice, or diluted with soda, juice, water or anything else, so long as the anything else is nonalcoholic.

The math was easy enough. Five drinks would have put Drake at about. 10 percent over the limit, to be sure, but only by a bit. Hell, Jaywalker had seen readings in the. 20s and. 30s in his day. He'd even had a murder case where the deceased's blood had read out at. 45 percent on autopsy, or almost one part in fifty. Miraculously, the guy had still been standing, at least up to the point when his stepson had conked him on the head with a bottle. But that was an extreme case. Most people will pass out before they reach. 30 percent, lapse into a coma around. 35 percent, and die of acute alcohol poisoning around. 40 percent.

Compared to those numbers, Carter Drake had been a model of sobriety.

And the business about the wasp was terrific. It explained how Drake had ended up in the wrong lane. Even the part about not realizing the van had gone off the road was good. Not only did it provide a defense for knowingly leaving the scene of an accident, it also negated the inference that Drake had fled because he knew how far over the limit he'd been. And it made him less of a villain for not stopping to help or turning himself in more quickly.

Of course, all that depended upon whether Drake's version of the events-regarding his drinking, the accident, and his failure to stop-was to be believed. If he was lying about any or all of those things, it was a different story.

And that, Jaywalker knew, was one of the problems with the written statement. Writing his account at his leisure had given Drake time to ponder, to choose his words carefully, to sanitize things, emphasizing the good stuff and editing out things he thought might work against him. In short, to lie. Jaywalker would have much preferred hearing Drake describe the events orally and extemporaneously. He would have liked to be able to interrupt him, challenge him, even cross-examine him as to certain details. But that opportunity hadn't been his.

It was one of Jaywalker's pet peeves about the legal system. The rich got out on bail and were free to meet with their lawyers behind closed doors in plush offices. The poor had to settle for whispered conversations over ancient telephones in communal visiting rooms, or for opaque written statements, totally devoid of the usual indicia of credibility. Not that Carter Drake was poor, by any standard. It was just that he'd been rendered poor, or the functional equivalent of it, by the combination of a five-million-dollar bail and an order freezing his assets.

There had to be some poetic justice, Jaywalker decided, to that particular set of circumstances. Or at least some economic justice. The rich-and-powerful financier suddenly finding himself reduced to the status of an indigent defendant, no better than a pauper in the eyes of the law. The bleeding-heart liberal in Jaywalker found he kind of liked the idea. But the defense lawyer in him hated it, just as he'd always hated it on behalf of his truly indigent clients.

For consolation, he knew that sooner or later he'd get a chance to sit down with Carter Drake in a secure setting, and have a face-to-face conversation with him, a conversation in which all of Drake's little tells w ould become apparent to Jaywalker's trained eye-the tiny tics, the involuntary traveling of the hand upward to the mouth, the sudden breaking off of eye contact, the unnecessary repetition of the question to buy time before composing an answer, the pregnant pauses at inappropriate moments, the almost comical pulling back at the first mention of the word polygraph.

But all that would have to wait. For now, Jaywalker would have to settle for trying to locate a particular unnamed sports bar somewhere in the vicinity of Nyack, and seeing if Bartenders A and B, and Customers 1, 2, 3, 4 and 5 would verify Carter Drake's account or put the lie to him.

Tomorrow.