Guilty As Sin

18

How about sex?

Jaywalker had long been a card-carrying procrastinator, and he managed to put off working on his summation all of Friday evening and most of Saturday. But it wasn’t as if doing so allowed him to enjoy himself. He and his wife even went for a walk Saturday afternoon, something they hadn’t done together for months. But on the way back, after the third time Jaywalker had said “What?” to one of her questions, she finally told him he might as well get down to work, that until his summation was done he would be no good to her or anyone else.

“How about sex?” he suggested. “Maybe that would help.”

“Right,” she laughed. “And halfway through, you’d say, ‘Wait a minute, an idea just came to me.’ Thanks, but no thanks.”

“Afterward?”

“Afterward,” she agreed. But they both knew full well that there’d be no afterward until he’d actually given the damn thing. He’d work on it on and off until then, mostly on. He’d work on it that night, all day Sunday and long into Sunday night. He’d still be working on it Monday morning, right up until the moment the judge looked his way and said, “Mr. Jaywalker?” And that was on top of the fact that he’d been working on it for two months now, ever since the first time he’d sat down with Alonzo Barnett and learned about the favor Barnett had done for Clarence Hightower.

He began with the Penal Law, as he often did.

§40.05 Entrapment

In any prosecution for an offense, it is an affirmative defense that the defendant engaged in the proscribed conduct because he was induced or encouraged to do so by a public servant, or by a person acting in cooperation with a public servant, seeking to obtain evidence against him for the purpose of criminal prosecution, and when the methods used to obtain such evidence were such as to create a substantial risk that the offense would be committed by a person not otherwise disposed to commit it. Inducement or encouragement to commit an offense means active inducement or encouragement. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.

It was by no means the first time he’d read the section, of course. He’d done so as recently as Thursday night, which explained why he’d used the words induced and encouraged during his rebuttal questioning of Alonzo Barnett, and why a moment later he’d asked Barnett if he would have obtained heroin for Trevor St. James but for the pressure Hightower had exerted on him. No, Barnett had said, never.

At the time, Daniel Pulaski had made a show of waving off Barnett’s answers as too self-serving to be worthy of cross-examination. Pulaski might have been better off had he spent a little less time practicing his gestures and paying more attention to reading section 40.05.

Now, as Jaywalker reread the language of the statute for the twentieth time, he was reminded that it contained plenty of bad news, too. For starters, it classified entrapment not as a “defense” but an “affirmative defense.” That distinction might have seemed a minor one to some, a matter of mere semantics. But if you went back to section 25.00 the difference became clear, and its implications were nothing short of game-changing. In the case of a “defense”-such as insanity or justification-the prosecution bore not only the burden of disproving the claim, but of doing so beyond a reasonable doubt. But when it came to an “affirmative defense,” the burden of proof became the defendant’s. And although the standard of proof that had to be met was a lesser one, satisfied by a “preponderance of the evidence,” that was still nothing to sneeze at.

Next came the requirement that the defendant committed the offense because he was induced or encouraged to do so. That, Jaywalker figured, was the easy part. If the jurors decided to credit Alonzo Barnett’s testimony-and Jaywalker was pretty sure they would-then they shouldn’t have too much trouble concluding that Clarence Hightower’s conduct had risen to the level of inducement or encouragement. Hell, it had gone miles past that.

It was the next phrase that was going to be the tricky part, the requirement that the inducement or encouragement be done by a public servant or by someone cooperating with a public servant. That was where this case was going to be won or lost, Jaywalker knew. That was the threshold issue of the trial, the moat that he and his client had to cross before they could storm the castle and do battle. And on that issue, as well as all others pertaining to entrapment, the defense once again bore the burden of proof.

But exactly how was he supposed to go about meeting that burden? A high-ranking police captain, a senior lieutenant, an experienced federal agent and a supporting cast of characters had all testified, some implicitly but several quite explicitly, that Clarence Hightower hadn’t been cooperating with them. Lying about that fact would have constituted not only a serious violation of departmental rules, one serious enough to justify firing the violator, but a felony punishable with prison time. Added to that was the fact that neither Hightower’s name nor his nickname was to be found anywhere in the official cross-index of informers maintained by the NYPD.

And just in case Jaywalker was somehow able to bridge that gap, it would still be incumbent upon him to prove that the defendant wasn’t “otherwise disposed to commit the offense.” In other words, he’d have to convince the jurors that absent the inducement or encouragement, Barnett never would have made the sales. Finally, whoever had written the statute had gone to great lengths to add not just one but two additional caveats. First they’d inserted language requiring that the inducement or encouragement be “active.” And just in case that wasn’t enough of a hurdle, they’d added one last disqualifier, proclaiming that “conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.”

Talk about an uphill battle…

Still, Jaywalker felt that meeting those tests would be the easy part, easy being a relative term. The hard part, perhaps the impossible part, was going to be convincing the jurors that, despite all the denials and despite his absence from the cross-index, Clarence Hightower had nevertheless been working with the Man.

Which is why he’d spend the rest of the weekend working on his summation, not getting to bed until well after midnight Sunday. Why he’d awake bleary-eyed, why he’d cut himself while shaving, and why he’d end up wearing one black shoe to court and one brown one.

But he’d be ready to sum up.