Guilty As Sin

17

The Asp

Jaywalker’s announcement that he intended to recall Lieutenant Pascarella in rebuttal essentially ended Thursday’s court session. Pascarella, as it turned out, had called in sick that morning with a stomach ailment and, when finally reached by phone at home, said he didn’t think he’d be feeling well enough to come back to court until the next day. Which actually solved a problem Jaywalker had been worried about. Had the evidence been completed on Thursday, he would have been required to sum up on Friday, followed immediately by Shaughnessey or Pulaski. That would have put the defense at a huge disadvantage, inasmuch as it would have meant sending the jurors off for the weekend with the prosecution’s summation still ringing in their ears. Now, with more testimony scheduled for Friday, Jaywalker knew he’d be able to convince Levine to defer summations until Monday morning, putting both sides on a more even footing.

But even as Pascarella’s stomach had solved one problem for Jaywalker, it had created another. “Tomorrow happens to be a holy day in the Islamic calendar,” he’d told the judge once the jury had left the courtroom. “Normally, my client would ask that he not be required to come to court at all. But under the circumstances he’s perfectly willing to, so long as Your Honor can see to it that he’s allowed ten minutes to pray in the morning, and another ten minutes in the afternoon.”

Even as he’d heard Daniel Pulaski muttering “Who cares?” under his breath and Judge Levine saying that it should pose no problem, Jaywalker had felt Barnett tugging at his sleeve, reminding him not to forget his second request.

“One other thing,” Jaywalker had added. “Mr. Barnett would like your permission to wear his prayer garb over his clothes. It consists of a robe and a- What do you call that thing again?”

“Just tell her it looks like a yarmulke,” Barnett had whispered.

“And something that looks like a yarmulke.”

“Excuse me?”

It was a new voice, belonging to the court reporter, a young woman with blue eyes and straight blond hair. “How am I supposed to spell that?”

Levine and Jaywalker had taken turns trying, without too much success. They’d been able to agree that there was supposed to be an L in there somewhere, but neither of them had known exactly where it belonged. Shaughnessey and Pulaski had been no help at all.

A few months later Jaywalker would get around to reading the official transcript of the entire trial. Win or lose, he made a habit of doing that, figuring he was bound to learn a thing or two in the process. This particular time it would turn out to be a new word to add to his vocabulary. Today he can still picture the dictionary entry in his mind, just as he did twenty-five years ago.

Yamika (yä’ma·keh), n. 1. a brand name of motorized scooters. 2. a famous maker of concert pianos. 3. A small skullcap favored by the Chinese.

God bless the gentiles.

It was only late that night, long after Jaywalker and his wife had finished dinner and he’d kissed her goodnight and retreated to their spare bedroom/den/office/laundry-sorting room, that he was forced to ask himself exactly why he’d told Shirley Levine that he intended to recall Dino Pascarella as a rebuttal witness. The simple answer, once again, was that he’d been angry. Angry and frustrated and unwilling to quit while he was behind. And since Pascarella’s name had happened to be the one on his tongue at the moment, he’d spat it out without giving it serious thought.

That was then.

Now he had to figure out what to do about it.

He spent an hour reviewing every shred of paper he had with Pascarella’s name on it. Documents, reports, photocopies of the prosecution’s exhibits, notes Jaywalker had scribbled to himself during the testimony. Nothing jumped out at him. Yet he wasn’t ready to admit that his instincts had been wrong. He kept coming back to the nagging feeling that the guy was holding something back.

He called Kenny Smith, who’d come so close to interviewing Clarence Hightower, only to lose him out a restroom window.

“Any luck?” Jaywalker asked him.

“No, man,” said Smith. “The guy’s disappeared, with a capital D. Gone. Vanished off the face of the earth.”

Jaywalker spent another hour flipping through the rest of the reports. His head was throbbing, and he was beginning to see two of every word on the pages in front of him.

Still nothing.

He made himself a pot of strong coffee. Downed two cups black and sweet and hot enough to burn his tongue. The combination of caffeine and sugar made his heart race, but did nothing for his headache and double vision.

He pulled out his own exhibits. The way it worked was that each side was responsible for the custody of whatever items it had put into evidence. The drugs and lab reports and the money that had been seized from Alonzo Barnett all belonged to the prosecution, People’s 1 through 7. All the defense had contributed were two measly photographs. Defendant’s A was the double mug shot of Jackson Davis, showing his glass eye. Jaywalker had introduced it to show that Barnett had been telling the truth about having obtained the heroin from “One-Eyed Jack.” Defendant’s B was the single Polaroid photo of Hightower. About the only reason Jaywalker’d had for putting that in was to show the jury how ugly the guy was.

He looked at it again now, forcing his eyes to focus on the face. “Talk to me,” he told it. “Say something. Anything. Give me a fucking clue, will you?”

But the face wasn’t talking. Not the thick lips, not the broad nose, not the crooked teeth or the short gray hair. Not the double chin or the thick neck. Not the dirty gray sweatshirt or the navy T-shirt peeking out from underneath it at the collar.

Nothing.

He turned the photo over, just as he’d done in the courtroom after Captain Egan had dug it out and handed it to him. The word asp was still there, still a perfect descriptive for the man who’d set this whole case in motion some twenty months ago by insisting that another man repay an old favor. But at such a terrible price. For in a few days, for all practical purposes Alonzo Barnett’s life would be over. Already over fifty, he was pretty much guaranteed to spend the next fifteen to twenty-five years sitting in state prison. Damn near a death sentence, when you thought about it.

And the guy who’d called in the favor, who’d set the whole thing in motion? The asp? He was in the wind, nowhere to be found.

Just as he had in the courtroom, Jaywalker turned the photo back over and studied the image once more. There had to be something more to the story. There had to be. But he had absolutely no idea what it might be, what he was missing.

“The defense calls Dino Pascarella in rebuttal,” Jaywalker announced when the trial reconvened Friday morning.

Although there had been no spectators in the audience when they’d recessed on Thursday, there were a handful now. Asked by Judge Levine if his examination of Pascarella would reveal the identity of any confidential informers, Jaywalker had replied, “I sure hope so,” and she’d cleared the courtroom again.

Again Jaywalker found himself double-teamed by Daniel Pulaski and Miki Shaughnessey. Though from the sullen expression on her face, Jaywalker guessed that Shaughnessey wasn’t happy about reprising her new role as a nonspeaking extra.

One more thing bears mentioning.

The average lawyer wouldn’t even dream of putting a witness on the stand without having spoken to him in advance. Jaywalker, of course, was about as far from average as possible in just about everything he did. So he’d called witnesses “cold” several times in his career and would continue to do so whenever the situation warranted it. But almost invariably those witnesses were minor players. An interpreter to testify to some nuance in translation from Spanish to English, a court clerk to read from a file, a corrections officer to describe a defendant as a model prisoner. Never before had he called a central figure in the trial without so much as a run-through of the questions he’d be asking and the answers he’d be expecting.

Lawyers have been suspended or even disbarred for such omissions, convictions overturned for ineffective assistance of counsel. Not to mention that no lawyer in his right mind would risk getting clobbered by a hostile witness he hadn’t taken the trouble to interview in advance.

Then again, no one had ever accused Jaywalker of being in his right mind. He paid attention to conventional wisdom about as much as he did to the daily horoscopes in the supermarket tabloids. His thinking on the subject tended to be simple and straightforward. If you’re winning, play it safe. If you’re not, what do you have to lose?

JAYWALKER: So who’s the asp?

PASCARELLA: The asp?

JAYWALKER: Yeah, you know. Asp, A-S-P. Like snake?

PASCARELLA: I have no idea what you’re talking about.

JAYWALKER: The word means nothing to you?

PASCARELLA: Nothing at all.

Jaywalker pulled a photo out of his pocket and handed it to the witness.

JAYWALKER: I show you Defendant’s Exhibit B in evidence. Do you know who that is?

PASCARELLA: I’m not sure. It looks like Clarence Hightower.

JAYWALKER: Very good. Have you ever seen that photo before?

Jaywalker watched as Pascarella turned it over, just as he himself had. Only where he’d seen writing on the back of it, he knew Pascarella wouldn’t. Jaywalker had seen to that.

PASCARELLA: No, not that I know of.

JAYWALKER: Yet you were able to recognize Mr. Hightower, weren’t you?

PASCARELLA: Yes.

JAYWALKER: From where and when?

PASCARELLA: From arresting him the same day we arrested Mr. Barnett. And from processing him later that day at the precinct house.

JAYWALKER: Anything else?

PASCARELLA: Like what?

JAYWALKER: Well, was that the only day you saw him? The day of his arrest?

PASCARELLA: Yes.

Jaywalker pulled out another photo. This one he’d retrieved earlier that morning, with the help of the same friendly court clerk who’d helped him early on in his investigation of the case. He had it marked now as Defendant’s C for identification and handed it to the witness.

JAYWALKER: How about this one? Recognize it?

PASCARELLA: I’m pretty sure that’s Hightower, too.

JAYWALKER: I offer it in evidence.

THE COURT: Mr. Pulaski? Or is it Ms. Shaughnessey today?

PULASKI: No objection.

THE COURT: Received in evidence as Defendant’s C.

JAYWALKER: What can you tell us about this photo, Detective?

PASCARELLA: Like I said, I’m pretty sure it’s Clarence Hightower. It looks like it’s his official arrest photo, taken at Central Booking, right downstairs in this building. You must have gotten it from his court file.

JAYWALKER: I’ll stipulate that the witness is correct. I did.

THE COURT: Mr. Pulaski?

PULASKI: So stipulated.

JAYWALKER: Let’s go back to Defendant’s B, the other photo of Mr. Hightower. What can you tell us about that one?

Pascarella put down C and picked up B again. Once more he turned it over and checked the back, almost as if he’d expected writing to have magically appeared since he’d last looked at it. Much the same way the Polaroid image on the front of it must have gradually appeared twenty-some months earlier. But no writing had appeared. Jaywalker watched as the witness seemed to struggle to absorb that fact, as if he was wondering if he could rely upon the blank piece of cardboard in front of him.

JAYWALKER: I’m sorry. We couldn’t hear your answer.

PASCARELLA: I’m afraid I can’t help you, Counselor. Like I said, I can’t remember ever seeing this photo here.

JAYWALKER: Ever?

PASCARELLA: Ever.

Well, thought Jaywalker, that was about as much as he was going to be able to pin Pascarella down on that point. Before moving on to his next area of questioning, he paused and drew a deep breath. This was going to be it, he knew, his last chance and Alonzo Barnett’s last hope. Jaywalker had a hunch, an idea that had come to him about four o’clock that morning. If it turned out he was wrong about it, the Fat Lady would have sung, and the case would pretty much be over. So here went nothing.

JAYWALKER: Detective, do you by any chance have a middle name?

PULASKI: Objection. Totally irrelevant.

THE COURT: Mr. Jaywalker?

JAYWALKER: Give me a minute and I’ll connect it.

THE COURT: You’ve got half a minute. We’ll take it subject to connection. You may answer the question, Detective.

PASCARELLA: Yeah, I have a middle name.

JAYWALKER: What is it?

PASCARELLA: Salvatore.

Jaywalker exhaled a breath he didn’t realize he’d been holding. He was two-thirds of the way there, but it was the easy two-thirds. The final third was going to be a serious leap.

JAYWALKER: And your first name?

PASCARELLA: Dino.

JAYWALKER: Isn’t that short for something?

PULASKI: Objection.

THE COURT: Overruled.

PASCARELLA: Everyone calls me Dino. I’ve been Dino for as long as I can remember.

JAYWALKER: So it’s not a nickname?

PASCARELLA: No.

JAYWALKER: It’s the name that’s on your birth certificate?

PASCARELLA: You mean officially like?

JAYWALKER: Yeah, officially like.

PASCARELLA: No, it’s not on my birth certificate.

JAYWALKER: So what’s the first name on your birth certificate?

PASCARELLA: On my birth certificate?

JAYWALKER: Yes, on your birth certificate.

And as he waited for an answer, Jaywalker held up a piece of paper for the witness to see. It may have been old and yellowed around the edges, but it was a genuine New York City Department of Health birth certificate, right down to its Old English type font, its official inked-in signature and its circular raised seal.

PASCARELLA: On my birth certificate it’s Andino. My mother’s family name. But like I’m telling you, everyone calls me Dino. Everyone.

JAYWALKER: Would you spell that for us, please?

PASCARELLA: Spell what?

JAYWALKER: Andino.

PASCARELLA: A-N-D-I-N-O. THE COURT: Excuse me, Mr. Jaywalker. Would you like to offer the document into evidence?

JAYWALKER: The birth certificate?

THE COURT: Yes.

JAYWALKER: My own birth certificate?

THE COURT: Never mind. I should have known.

Jaywalker approached the witness and took the photo from him. Gently he peeled away the backing from it. Not the original Polaroid backing, but the second one, the one he’d added that morning using double-faced tape but being careful to steer clear of the part where the lettering was. Then he handed the photo back to the witness.

JAYWALKER: Would you please read what’s written on the back of the photo?

PASCARELLA: It says “asp.”

JAYWALKER: How is that spelled?

PASCARELLA: A-S-P. JAYWALKER: Whose initials are ASP?

PASCARELLA: I guess they’re my initials, if you want to get really technical about it.

JAYWALKER: I want to get really technical about it. Who put them there?

PASCARELLA: I guess I must have.

JAYWALKER: You guess?

PASCARELLA: I put them there. I forgot, was all. I…I didn’t notice them.

All of a sudden, he was a different witness. Gone were the swagger, the cockiness, replaced by a meekness that would have been almost comical if another man’s freedom hadn’t been at stake. It was almost like watching all the helium go out of one of those giant Thanksgiving Day balloon characters.

JAYWALKER: Why did you put your initials there?

PASCARELLA: I honestly don’t remember. It’s what we do.

JAYWALKER: When did you put them there?

PASCARELLA: It would have had to be on the day we arrested Mr. Hightower, the same day the other photo of him was taken.

JAYWALKER: Are you certain about that?

PASCARELLA: Yes.

JAYWALKER: Where did you take it?

PASCARELLA: In the squad room at the precinct house.

JAYWALKER: Is that where you kept the Polaroid camera?

PASCARELLA: Yeah.

JAYWALKER: It was no use to you on the street, was it?

PASCARELLA: No.

JAYWALKER: Too bulky, too cumbersome, too slow?

PASCARELLA: Right.

JAYWALKER: Now, you didn’t take Mr. Hightower home with you at any point, did you?

PASCARELLA: Home? No, of course not.

JAYWALKER: So he could shave and shower, perhaps?

PASCARELLA: No way.

JAYWALKER: Or take him shopping for clothes?

PASCARELLA: Not a chance. The man was under arrest.

JAYWALKER: Then I don’t suppose you can explain to the jurors the reason why Mr. Hightower seems to be wearing two different sets of clothes in the two photos.

Because there was no rise in the inflection of Jaywalker’s voice as he reached the end of it, it came out sounding more like a statement of fact than a question. And the truth is, it hadn’t really been a question at all. Questions have answers. This didn’t.

JAYWALKER: Who took this photo, Detective? The one that’s got your initials on the back of it, in your handwriting?

PASCARELLA: I guess I must have.

JAYWALKER: Now look carefully at the two photos, if you will. Not just at the clothing, but at the length of Mr. Hightower’s hair and the stubble of his beard. Any doubt in your mind that they were taken on different days?

PASCARELLA: No, I guess not.

JAYWALKER: No doubt?

PASCARELLA: No doubt.

JAYWALKER: What happened to Mr. Hightower after he was arrested? Where was he taken?

PASCARELLA: Like I said, to the precinct house. Specifically, upstairs to the detective squad room.

JAYWALKER: And from there?

PASCARELLA: Central Booking.

JAYWALKER: And after that?

PASCARELLA: Court.

JAYWALKER: Did he make bail?

PASCARELLA: No.

JAYWALKER: Was that the last you ever saw of him?

It was one of those wonderful shit-or-go-blind questions Jaywalker loved so much. If Pascarella were to say no, that in fact he’d seen Hightower again-by going out to Rikers Island to visit him, for example-Jaywalker would use his answer as proof that the two of them had had a continuing relationship. From there it would be only a baby step to believe that Hightower had been Pascarella’s informer.

So instead Pascarella said yes. Yes, the day of the arrests had been the last time he’d ever seen Hightower.

Jaywalker paused before asking his final two questions. And when he asked them, he did so quietly, gently, with no trace of anger, sarcasm or irony. He had no need for volume at this point, no desire to reach the back rows of the audience. The audience was out in the hallway, after all, locked out of the courtroom. So when the final questions were asked, they were asked with something that sounded very much like sadness, the way a morgue attendant might ask the next of kin to take a good look at the body of a loved one long missing and recently found.

JAYWALKER: In other words, Detective, you took this photo, the one that bears your initials in your handwriting on the back of it, days or even weeks earlier than the arrest photo. Am I correct?

PASCARELLA: [No response]

JAYWALKER: Back before the sales in this case ever took place. Am I correct again?

PASCARELLA: [No response]

As the old saying goes, silence can be deafening. And nowhere, nowhere, is that more true than the inside of a courtroom.

Jaywalker collected the photos from the witness, walked to the defense table and sat down. To his way of thinking, while he hadn’t succeeded in getting Lieutenant Pascarella to admit that Clarence Hightower had in fact been working with him as an informer, he’d at least made it seem like a reasonable possibility. At this point, that was about the best he could do.

But Daniel Pulaski wasn’t about to let things end there. Rising from the prosecution table, he walked to the lectern, then seemed to change his mind and kept walking another three or four steps before stopping. That put him squarely in front of Pascarella and only a body length away. Had Jaywalker taken up such a confrontational position, he would have been told to step back, that his closeness was intimidating to the witness. For a split second he considered objecting but then thought better of it. Let’s see where this goes, he told himself.

It didn’t take long to find out.

PULASKI: Is a detective permitted to use an informer without registering him? Or would that constitute a serious violation of police department rules?

PASCARELLA: That’s not allowed. It would be a violation.

PULASKI: A violation serious enough that the detective could be disciplined, perhaps even discharged?

PASCARELLA: I would certainly think so.

PULASKI: How about giving false testimony at a trial? Is that an equally serious violation?

PASCARELLA: I’m sure it is.

PULASKI: And a felony, as well?

PASCARELLA: Yes, sir.

PULASKI: You testified last week that this case began with an anonymous phone call. Was that the absolute truth?

PASCARELLA: Yes, sir.

PULASKI: No doubt about it?

PASCARELLA: No, sir. No doubt at all.

PULASKI: Counsel seems to be suggesting-

Counsel.

When lawyers get angry at other lawyers, they stop using their names and start referring to them as counsel. Kind of the way an irate legislator calls a despised member of the opposing party my most esteemed colleague.

PULASKI: -that these photographs of Clarence Hightower are some kind of proof that Mr. Hightower was working for you as a confidential informer. Was that the case?

PASCARELLA: No, sir. Absolutely not.

Pulaski took another two steps forward. By the time he stopped to ask his next question, he was close enough to Pascarella that he could have reached out and touched him.

PULASKI: Was he ever your informer?

PASCARELLA: No, sir. Never.

PULASKI: Thank you. No further questions.

With that, he turned and headed back toward the prosecution table. Because Pulaski had been so close to the witness box when he’d concluded his cross, Jaywalker could now see the satisfied sneer spread across his face that neither the judge, behind Pulaski, nor the jurors, off to one side, could. But Jaywalker wasn’t the only one in a position to see it, and as Pulaski neared his table and was about to take his seat, the morning’s most remarkable event took place.

It wasn’t Jaywalker’s production of the second photo of Hightower, or the revelation of the initials on the back of it, or the dramatic lowering of his voice as he questioned Pascarella about it. It wasn’t Pascarella’s pregnant silence when asked if he had taken the photo before the sales had even occurred. Nor was it Pulaski getting up in the witness’s face and having him reiterate the business about the anonymous phone call and proclaim his flat-out denial that Hightower had ever been an informer.

No, the morning’s most remarkable event wasn’t engineered by Jaywalker or Pulaski or Pascarella or Judge Levine or, for that matter, any combination of the four of them. Instead it was the spontaneous act of one young woman.

Just as Pulaski pulled his chair away from the table and was about to resume his seat next to her, Miki Shaughnessey rose to her feet, nodded at the judge, silently excused herself, turned and walked out of the courtroom.

To this day, Shaughnessey will demur when asked if her departure amounted to a sign of protest, a wordless objection to the way in which an experienced senior colleague had intimidated a witness into delivering answers that might or might not have been truthful. She’ll deflect the question and insist she retains little or no memory of the incident. She might not have felt well, she’ll tell you, or perhaps she’d experienced a sudden need to use the ladies’ room. And because she’d spoken not a single word at the time, who can possibly argue with her, especially now, after so many years have gone by?

Jaywalker can.

Because from his perfect vantage point, he’d needed no words. No sound track or subtitles could have made things any clearer to him. The expression on Miki Shaughnessey’s face as Pulaski neared her said it all. It was almost as though a stranger had approached her from across the room, and only when he’d reached her had it hit her that he hadn’t bothered to bathe, shower or brush his teeth in six months. It might not have been a literal stench emanating from Pulaski, but it was something very, very close. And whatever it was, Shaughnessey had suddenly reached her limit with him. Her expression told Jaywalker that she wanted nothing more to do with either Daniel Pulaski or the case he’d dropped into her lap a month earlier, then suddenly yanked back once the shit had begun to hit the fan. She was done with him and with the case, and though she’d show up to hear the summations, she’d listen to them from the audience section of the courtroom.

“Does the defense rest, Mr. Jaywalker?”

“No, Your Honor. I have one additional rebuttal witness. He’s here, and his direct testimony should only take a few minutes.”

“Are we going to be revealing the names of any informers?” she asked. “Or may we unbolt the doors and let the huddled masses in?”

“You may throw open the portals,” Jaywalker told her.

A court officer walked to the front door of the courtroom, unlocked it and pushed it open. Five or six people trickled in and found seats.

“The defense,” announced Jaywalker, “calls its final rebuttal witness, Alonzo Barnett.”

Until the moment Alonzo Barnett stood, none of the jurors had taken much notice of his changed wardrobe that Friday morning. A kufi-see yamika-tends to be worn toward the back of the head and is therefore barely visible from the front, especially when it’s a white kufi against gray-to-white hair. Even a long white robe looks a lot like a shirt when worn by a man sitting in an armchair pushed all the way up to the edge of a table for security reasons.

Now, as Barnett strode to the witness box-if indeed one can stride without hurrying-his appearance was suddenly riveting. Majestic wouldn’t be too strong a word to describe it, with his loose, knee-length white tunic, trimmed in pale blue. Regal might be closer to it.

As he sat, he carefully gathered his tunic around him. The court clerk reminded him that he was still under oath, but he needn’t have. Just to look at Barnett was enough to seriously doubt he was capable of telling anything but the absolute truth.

Or so Jaywalker hoped.

The judge spent a few minutes explaining the accommodations that had been made to the defendant out of respect for his day of observance. Then she nodded in Jaywalker’s direction.

JAYWALKER: Mr. Barnett, did you on three occasions obtain heroin for Agent Trevor St. James?

BARNETT: I did.

JAYWALKER: Why did you do that?

BARNETT: In order to repay a debt I felt I owed Clarence Hightower for having saved my life.

JAYWALKER: Would it be fair to say that Mr. Hightower induced and encouraged you to do what you did?

BARNETT: It’s more than fair to say. It’s what happened, over and over again. Until he finally pressed the right button and I said yes.

JAYWALKER: Had Mr. Barnett not induced and encouraged you over and over again, would you have done what you did?

BARNETT: Never.

And that was it.

Even as Jaywalker sat down, Daniel Pulaski waved a hand dismissively, his way of signaling the jury that Barnett’s assertions were so self-serving and meaningless that there was no need for Pulaski to cross-examine him.

THE COURT: Any further witnesses, Mr. Jaywalker?

JAYWALKER: No, Your Honor. The defense rests.

THE COURT: Mr. Pulaski?

PULASKI: The People rest, too.

And with that it was over, at least the evidence portion of the trial. The jurors were sent off for the weekend, some of them smiling at the prospect, others grumbling that their jury service would be going into its third week, more than they’d signed up for.

It was the grumblers who worried Jaywalker. They were the ones who were self-employed or considered themselves indispensable at work. They had small children, elderly parents or pets with bladder issues at home. Above all else, they wanted the case over with. Come deliberation time, their impatience could easily translate into a desire to arrive at a quick verdict, no matter which way it happened to go.

A quick verdict meant deciding whether the evidence proved beyond a reasonable doubt that the defendant had done what he was accused of doing. It left no room for nuance, no time to consider why he’d done it. Entrapment wasn’t a simple concept, a black-or-white, either-or notion that lent itself to quick and easy analysis. And that could spell trouble for the defense.

Big trouble.

Even as the jurors were excused for the weekend, the lawyers had to come back that afternoon for the charge conference, a meeting between the judge and the lawyers about what the judge will be telling the jurors when, following the summations, she instructs them on the principles of law applicable to the trial. Somewhere along the line, those instructions have come to be called the judge’s charge.

In most federal courts the lawyers are expected to submit detailed written requests to charge, often as early as the beginning of the trial. The practice in state court tends to be more relaxed, with oral requests being the norm. Nevertheless, Jaywalker took charge conferences seriously. What the judge told the jurors, and how she told it to them, was of critical importance. Juries don’t always get cases right, but it’s the rare jury that fails to take its job seriously. They listen to the judge and try to apply the principles of law to the facts, just as she tells them to.

A lot of any charge is boilerplate stuff. Presumption of innocence, burden of proof, credibility, reasonable doubt and unanimity of verdict don’t change from trial to trial. But some things do. And Alonzo Barnett’s case had several wrinkles that made it anything but ordinary.

So that afternoon, once Shirley Levine had run through a list of standard things she intended to tell the jurors, she called upon first Pulaski and then Jaywalker to make additional requests, if they had any. The setting was far more relaxed than it had been when the jury had been present, and the lawyers were permitted to remain seated at their respective tables while they spoke. But the court reporter was present, taking down every word of the discussion. More cases get reversed by appellate courts because of things said during the charge-or things requested but omitted from the charge-than because of just about anything else.

Pulaski stated that he was satisfied with what the judge intended to tell the jurors, and that he had no objections or additional requests.

Then it was Jaywalker’s turn.

“The defense requests that you charge the jury on both entrapment and agency,” he said.

A half an hour later, they were still arguing about both requests. Pulaski took the position that there couldn’t have been any entrapment as a matter of law. Since Clarence Hightower had been acting on his own when he approached Alonzo Barnett, it hadn’t been law enforcement that was responsible for any pressure put on Barnett, if indeed there’d been any.

Jaywalker countered by arguing that whether Hightower had been acting on his own or in cooperation with the task force was a question of fact, and like all questions of fact it was up to the jury to decide. Even as Judge Levine agreed with Pulaski that most of the evidence supported his position, she expressed her concern that her refusal to at least present the issue to the jurors for their determination might be grounds for reversal. “It’s not that I’m agreeing it was entrapment,” she explained. “After all, we have a captain and a lieutenant denying that Mr. Hightower ever worked with them. But Mr. Jaywalker does have a point. It’s up to the jury to decide. So I’ll read them the statutory language from section…section-”

“Forty point oh-five,” said Jaywalker.

“Thank you.”

Her reluctant acquiescence might not have sounded all that promising to anyone else. But it was good enough for Jaywalker. He was perfectly content to have Pulaski continue to think of entrapment as a nonstarter. All Jaywalker could ask for at this point was that the door be cracked open just enough for him to get a foot in. The rest, he knew, would be up to him.

He had an even harder time when it came to agency. As soon as he’d mentioned the word, he’d realized that neither Levine nor Pulaski had even considered it as a possible defense. The theory behind an agency defense is that although a sale occurred and the defendant took part in it, he was aligned not with the seller, but the buyer. If that was so, he could be convicted only of buying drugs, not selling them. And buying was no crime.

“Agency?” Pulaski repeated incredulously. “The defendant profited from these sales, by his own admission. He wasn’t working for Agent St. James. He was selling to him. He was working for himself. The record couldn’t be clearer. Give me a break, will you?”

Again the judge expressed skepticism that, given the facts, the defense should be available. But again she ended up siding with Jaywalker out of an abundance of caution and the fear of seeing a conviction reversed. “Personally,” she said, “I don’t think the jurors will spend five minutes on this one. But technically, Mr. Jaywalker’s right again. It’s up to them to rule it out, not me. So I’ll include something on it. Though over your objection, Mr. Jaywalker, I’ll instruct them that it’s a defense only to sale, not possession. Anything else, gentlemen?”

“That’s it for me,” said Jaywalker.

“Nothing else,” said Pulaski.

“Then I’ll see you back here first thing Monday morning, nice and refreshed.”

Right.

Over the three nights between now and then, Jaywalker would sleep for a combined total of less than ten hours, and fitfully at that.

So much for nice and refreshed.