Guilty As Sin

3

I did a favor

“So there you have it in a nutshell,” Jaywalker would tell his listener. “Here was a five-time loser, a man who’d spent the better part of his life in state prison, charged this time with selling a pretty hefty amount of heroin, freely and unequivocally admitting that he’d done exactly that.”

To make matters worse, what Barnett had been accused of went far beyond the single sale and possession spelled out in the Criminal Court complaint. If you were to read the indictment-as Jaywalker had read it first to himself and then aloud to Alonzo Barnett-you soon realized that the case involved more than the October 5 sale and possession. In addition to those crimes, the grand jury had signed off on two earlier heroin sales made to the same “law enforcement official,” although both of those had been for amounts smaller than the two ounces required to turn them into A-1 felonies.

Jaywalker hated drug cases back then and does to this day. Which isn’t the same as saying he hates the defendants themselves. Not by any means. In fact, he’s always found it far easier to empathize with a drug defendant than he has with the vast majority of the muggers, burglars, drunk drivers and con men who come his way. Those sorts deliberately prey on their victims, or by their conduct place others in grave danger. The drug defendant’s biggest victim turns out to be himself. Sure, the politicians will tell you otherwise. They’ll tell you that drug dealers disseminate poison and destroy not only their own lives but those of their customers and their customers’ families, and that they end up costing society billions of dollars annually in health care and social services. To Jaywalker, those words pretty much describe what the tobacco and liquor companies do, year in and year out. The only difference, so far as he can tell, is that they happen to have lobbyists. And whatever you do, don’t get him started talking about the gun manufacturers.

Jaywalker’s years as a DEA agent, especially on those occasions when he was working undercover, had brought him face-to-face with enough small-time, midlevel and even major dealers to know that they were pretty much like other people, just trying to get by. If one dealer got caught-whether by Jaywalker, or some other agent or cop-there was always another one waiting in line right behind him to take his place. No, it wasn’t the dealers who were the problem, either individually or as a group. It was the system itself that perpetuated the charade. By pouring so much money into interdiction, enforcement and imprisonment, and so little into education, treatment and rehabilitation, all the lawmakers ever succeeded in doing was driving up the price of the product until it was literally worth more than gold itself. That in turn insured that people would risk everything-their health, their freedom and their very lives-to grow it, import it, distribute it and even look the other way when it was worth their while to. So no, he didn’t hate the dealers. Most of them were beaten-down users themselves, and almost all of the ones he encountered were getting worse than they deserved. If not this time, then surely the next.

What he hated were the cases.

He hated them because they made him sad. Sad in their testimony to human frailty and human suffering. Sad in their needless futility and ultimate folly. Sad in their dreary same-old, same-old familiarity. There were the direct sale, the observation sale, the buy-and-bust, and the cash-and-stash uncovered in some roach-infested tenement apartment during the execution of a search warrant. It was almost like ordering from one of those old Chinese take-out menus. Choose one from Column A, one from Column B, one from Column C. But it made no difference. You could forget about the names of the different generals and whether you wanted white rice or brown rice. Whatever you ordered was going to taste pretty much like everything else, and would come with the same stale fortune cookie. And whether they got you for possession or sale, direct or observation, you were going to end up with a one-way ticket to state prison.

They talked some more that day, Jaywalker and Barnett, but not all that much more. It was already apparent to Jaywalker that, like most cases, this one wasn’t going to trial. It couldn’t. Sooner or later Alonzo Barnett was going to have to plead guilty, even if it meant copping to an A-2 felony and accepting a minimum sentence of eight years to life. And since there was little likelihood that a parole board was going to give him yet another chance, Barnett might not die in prison, but he was going to be one very old man by the time he came out the other end of the meat grinder.

But that realization by no means ended Jaywalker’s job. Just as he’d been the first of four lawyers to bother to read the charges to Barnett, so would he be the first to listen to the rest of the man’s story, and to come to know him as an individual and not just a defendant. He would make it his business to draw Barnett out and make him talk, make him explain just why an intelligent-sounding man who had to have known better had succumbed yet again to the lure of easy money. Jaywalker would describe in detail the trial process itself, since despite all Barnett’s arrests and convictions he’d never been through a trial, having pleaded guilty each time. Jaywalker would point out the futility of changing that pattern now, and the dire consequences of being convicted after trial, when all bets were off.

In a word, he would become a friend.

Only not now.

Having resisted taking a plea for a year and a half, Barnett evidently had his reasons, whatever they were and however foolish they might be, for wanting to go to trial this time. For Jaywalker to begin that conversation now, at the very first meeting between lawyer and client, would have been totally counterproductive. It would have marked Lawyer Number 4 as no different from Numbers 1, 2 and 3. It would have undermined the very foundation of something Jaywalker needed to build between himself and his client.

Something called trust.

So they talked some more, but about other things. Jaywalker learned that Barnett had two young daughters who were somewhere in foster care. That he’d been a heroin addict beginning at age fifteen, but had been clean for almost eight years now. That, like Jaywalker, he was a Yankees fan. That not only had he taught himself how to read and write, but that he’d begun composing poems, a sample of which he agreed to show Jaywalker sometime.

They didn’t teach you in law school to ask about that kind of stuff. You didn’t need it in order to pass the bar exam or to hang up a shingle on the outside of your office door. Nor did the supervisors at Legal Aid talk about it. But it mattered; it mattered hugely. And even back then, back in 1986, without ever having been taught about it, Jaywalker knew and understood that. And the best thing about doing it was that it cost absolutely nothing, just like saying “please” or “thank you,” or pausing for a second to hold a door open for someone a few steps behind you. So the only thing about doing all that stuff that mystified Jaywalker was that nobody else seemed to realize how terribly, terribly important it was.

He didn’t go home after meeting with Barnett, or to court or his office. Instead he went back around the corner and walked south, downtown. He passed both entrances to 100 Centre Street on his left. Even though the district attorney’s office was located there-albeit listed under the side street address of One Hogan Place-Jaywalker knew he wouldn’t find the assistant D.A. in charge of Alonzo Barnett’s case there. No, he’d noticed from a telephone number on the file that the case was assigned to someone in Special Narcotics.

Despite the promising name, Special Narcotics are not high-quality drugs. Created with an infusion of municipal, state and federal funds in 1971 to help deal with the city’s mushrooming drug problem, the Office of the Special Narcotics Prosecutor for the City of New York was, and continues to be, located one block farther south, at 80 Centre Street. Its chief function is to handle a portion of the thousands of drug cases that would otherwise overwhelm the regular district attorney’s office. It’s headed by a Special Narcotics Prosecutor and staffed by a fluctuating number of lawyers who act as assistant district attorneys. Except that they handle nothing but drug cases.

Twenty minutes later, Jaywalker was sitting in a medium-sized office across the desk from the A.D.A. in charge of the prosecution of Alonzo Barnett. It was a medium-sized office rather than a small one, because the assistant also happened to be a supervisor, one of a half dozen who oversaw ten or fifteen other assistants and reported directly to the Special Narcotics Prosecutor himself. Though these days that would be herself.

Times change.

The name of the assistant was Daniel Pulaski. He was a good-looking man in his forties, careful with his three-piece suits and his slicked-back dark hair. He was also, at least according to the general consensus of the local defense bar, a Class A prick.

Jaywalker has never had qualms about going up against a prosecutor with sharp elbows. In fact, when it comes time to go to trial, he generally prefers that his adversaries are able to take care of themselves. He’s found over the years that weak prosecutors tend to arouse the sympathies of both judges and juries, sympathies that Jaywalker would far sooner have directed at the defendant.

But there’s sharp, and then there’s nasty. And at least by reputation, Daniel Pulaski fell squarely into the latter category. That said, Jaywalker had never tried a case against him. He’d stood up opposite him on a few matters in court, but none of them had ended up going to trial, or even to an evidentiary hearing, for that matter. So he was willing to suspend judgment on Pulaski for the moment, and even determined to give the man the benefit of doubt, at least until he demonstrated he didn’t deserve it.

It wouldn’t take long.

“So,” said Pulaski, “I see you’re the latest flavor-of-the-month for Alonzo the Malingerer.”

“I’m his new lawyer,” Jaywalker deadpanned. “If that’s what you mean.”

“Right,” said Pulaski, checking his wristwatch in what struck Jaywalker as a crude parody of impatience. And, he wondered, who wore cuff links these days? Especially gold cuff links?

“If this is a bad time-”

“No, no,” said Pulaski. “It’s as good a time as any. What can I do for you?”

“Well,” said Jaywalker, “I was hoping you might have copies of papers for me, discovery material. That sort of stuff.”

“Listen, Mr. Jaywalker-”

“Jay.”

“Mr. Jay-”

“Just Jay.”

“Whatever. The point is, you’re this scumbag’s fourth lawyer. I’m out of copies and have better things to do than run off more of them. You want copies, why don’t you go see your predecessors?”

“I guess I can do that,” Jaywalker conceded. “I just thought that since it seems like you and I might have to try this case, we might start off on the right-”

“We’re not going to try this case,” said Pulaski. “Your guy is going to jerk you around for six months, just like he did with all the others. Then he’s going to say he can’t communicate with you and ask the judge to give him a new lawyer. We both know that.”

“Actually,” said Jaywalker, “he seems to be communicating with me pretty well.”

“You’ve met him?”

Jaywalker nodded matter-of-factly. Pulaski countered with a look of surprise. Evidently he didn’t know any lawyers who went to the trouble of going to the jail and visiting their assigned clients even before their cases came on in court.

“So if you’ve met him,” said Pulaski, “maybe you can tell me what he’s waiting for before he takes his plea.”

“As I said earlier, I’m not at all sure he’s going to take a plea.” It wasn’t exactly the truth. Jaywalker was actually pretty sure Barnett would come around, sooner or later. But Pulaski’s certainty about that had been enough to prompt Jaywalker to suggest he was mistaken.

“You understand,” said Pulaski, “that eight to life is the best he can possibly get under the law, don’t you? And that’s on a plea, to an A-2. He goes to trial, the minimum starts at fifteen.”

“We both know that,” said Jaywalker. “But he doesn’t seem particularly interested.”

“Then fuck him. He can go to trial and get twenty-five to life, for all I care. It’ll be my pleasure.” Followed by another look at the wristwatch, this one even more deliberate and more dismissive than the first.

The meeting, for all intents and purposes, was over. Nine minutes after it had begun.

Well, thought Jaywalker, at least he’d managed to get through it without throwing a punch at Pulaski, a temptation he’d succumbed to three years earlier. The target hadn’t been Pulaski that time. It had been an A.D.A. in Brooklyn, an ex-cop named Jimmy Spagnelli, who’d accused Jaywalker of being overzealous in the way he’d gone after an arson investigator on the witness stand. Jaywalker had ignored the insult, accepting it as a compliment in disguise. But Spagnelli hadn’t wanted to let it go at that, and a moment later he called Jaywalker a “low-life shyster.” Jaywalker’s Jewish half had reacted by taking offense at that, and his Irish half had reacted by clocking Spagnelli with a right hook. Unfortunately, it had landed a bit high on the side of Spagnelli’s head, clearly not a vital organ. For Jaywalker, the result had been a broken hand and a two-year suspension from practicing in Brooklyn.

Kind of like losing his driving privileges in Lithuania.

Over the course of the next three days, Jaywalker did precisely what Daniel Pulaski had left him no recourse but to do. He met in turn with each of Alonzo Barnett’s three previous lawyers, collecting copies of court documents, motion papers and discovery materials. By the end of the week he’d put together the bare bones of a file. And during the course of amassing it, he’d gained a few insights into Barnett’s reluctance to take a plea, but only a few. Among the highlights were “He’s self-destructive,” “He’s a psycho,” and “I dunno, beats the shit outa me.”

The case appeared in court that Thursday, in Part 91. Part 91, located at the far end of the fifteenth floor of 100 Centre Street, was at that time designated as the L.T.D. Part, which stood for Long Term Detainees or, as one cynic suggested, Let Them Die. Its calendars were filled with cases of jailed defendants that were not only ripe for trial, but overripe. In a system that supposedly guaranteed an accused felon a speedy trial within six months of arraignment, every defendant in Part 91 had already been locked up for a year or more. And in a business that was evaluated largely on statistics, these aging cases were negatively skewing the average arrest-to-completion time that the administrative judge desperately needed to bring down in order to demonstrate efficiency and justify budget increases. So the word had gone out to get the cases disposed of by plea or, failing that, to get them tried.

Jaywalker had a couple of other cases besides Barnett’s on that Thursday, involving defendants who were out on bail. So he stopped by Part 91 early in the morning and left word with the clerk that he’d be back. Back turned out to be just before eleven, and when he walked in, the judge was waiting for him.

Judges come in all shapes and sizes. Not all of them look like they were born to the bench like Learned Hand, say, whose iconic photograph-featuring his shock of white hair and bushy eyebrows, his black robe and his craggy face-has “judge” written all over it. Then again, it’s entirely possible that Justice Hand may have looked like that at birth, only in miniature, seeing as his parents had pretty much named him to the bench, too. Still, we tend to think of judges as dignified, august father figures, peering down from the bench with an overabundance of firmness and just a hint of compassion. John Marshall comes to mind, as do Oliver Wendell Holmes, Benjamin Cardozo and William O. Douglas. Giants, all.

Shirley Levine hardly fit the mold.

Barely five feet tall and a hundred pounds if she was that, Levine was not what Jaywalker would have called a beautiful woman. Somewhere in her sixties, she was either cursed with a permanent bad hair day or simply unconcerned with her physical appearance. Her voice could charitably be called squeaky. She had no use for formality, having long ago dispensed with the trappings of the standard-issue black robe that came with the job. Or perhaps she’d simply been unable to locate one small enough for her. She didn’t expect people to rise to their feet when she entered her courtroom, and she quickly beckoned them to sit if they insisted on doing so. She needed no gavel to bring the room to order, and so far as Jaywalker knew, she’d never once raised her voice in anger.

Some judges maintain decorum through the volume of their voices or the sheer force of their personalities. Others develop a reputation from their willingness to toss troublemakers into the pens at the first hint of insubordination. A few make it their business to get even, taking out their frustrations on defendants in the rulings they make and the sentences they dispense.

Shirley Levine did none of those things.

She didn’t have to.

She accomplished everything she needed to, and more, through her unfailing cheerfulness, her unquestioned fairness and her curious habit of treating people-all people-with uncommon decency. How she’d ever ended up as a judge was anyone’s guess.

Not that she didn’t have an interesting backstory. Rumor had it that in her early twenties she’d been involved in some sort of special operations in the War, and had been parachuted behind enemy lines in Nazi Germany. That she’d been good with a gun and better still with a knife. Jaywalker had tried to get her to open up once about the subject, offering to trade a few of his DEA stories in exchange. But she’d demurred. “Who can remember?” She’d laughed him off. Still, the rumors persisted, and in a place like 100 Centre Street, rumor was often as good as it got.

This would be Alonzo Barnett’s trial judge, should he really insist on a trial. And though that would ensure a relatively pleasurable couple of weeks for Jaywalker, in the long run it would do absolutely nothing for Barnett. Save for the fact that after the jury had convicted him and the judge had sentenced him, her parting “Good luck” to him would be genuine instead of sarcastic.

“Ahh, Mr. Jaywalker,” she said now as she spied him making his way up the aisle. “How nice to see you. And thank you for leaving us a note earlier.” Then, turning to a court officer, she said, “Would you please bring out Mr. Barnett.”

Would you please. Mister. From a judge, mind you.

Not that anything of substance went on that first day. The assistant D.A. in the part read off a note from Daniel Pulaski. The eight-to-life sentence was still being offered on a plea to an A-2, it said. But if the defendant didn’t take it this time or next, it would be withdrawn. After that, he could have fifteen to life-or worse.

“How much time do you need?” the judge asked Jaywalker, once his client had been brought out from the pen.

“Two weeks would be good,” he told her.

“Two weeks it is. See you then. Are you doing all right, Mr. Barnett?”

“Yes, ma’am.”

It was stuff like that that confounded Jaywalker. Try as he might, he just couldn’t picture Shirley Levine jumping out of a plane in the dark of the night, a gun stuck in her belt and a knife clenched in her teeth.

Back in the pens, Jaywalker had his second sit-down interview with Barnett. This one would take on a bit more urgency than the first, if only because of the ultimatum delivered by Daniel Pulaski’s note. While threats to withdraw plea offers were often no more than that-threats-Jaywalker couldn’t put it past Pulaski to follow through on his. What difference would it make to him if some defendant ended up with a fifteen-year minimum instead of an eight year one? So Jaywalker didn’t mince words.

“If you ever want to take a plea, next time is the time to do it,” he said. “I don’t trust this D.A. to keep the offer open past then. I really don’t.”

Barnett seemed to think for a moment, and Jaywalker half expected him to say, “Okay, we’ll do it next time.” After all, he hadn’t once said, “I’m not guilty” or “I didn’t do it” or anything along those lines. In fact, at their first meeting, he’d made a point of admitting that the charges against him were true, every word of them. But what Jaywalker hadn’t learned yet was that unlike most defendants, and for that matter most people, Alonzo Barnett was never quick to answer a question of any sort. Not that he stalled before replying or repeated the question aloud in order to buy time. No, Jaywalker would come to understand, it was simply a matter of Barnett’s taking a moment to think before responding. A rare thing indeed.

“To tell you the truth,” he finally said, “I don’t intend to take a plea. If that’s all right with you.”

“Of course it’s all right with me,” said Jaywalker. “But it brings us to another issue.”

“What’s that?”

“Well,” said Jaywalker, “you’ve been around long enough to know that the chances of beating a direct sale case aren’t very good.” A direct sale meant one in which the buyer was an undercover cop or agent, as opposed to an observation sale, where the authorities claimed to have witnessed a transaction between a seller and a buyer, both of whom were civilians.

Barnett nodded but didn’t say anything. Not only had he been around long enough to know that Jaywalker was speaking the truth, but his record of guilty pleas suggested he understood the odds.

“So,” continued Jaywalker, “it might be a good idea if we spent a few minutes talking about the facts of your case.”

“Fair enough,” said Barnett.

“Why don’t you tell me what happened.” It wasn’t a question on Jaywalker’s part so much as an invitation. Nor was it something he always asked of a defendant, particularly in a sale case. Strange as it may sound, sometimes a lawyer and client talk about everything but the facts. There are times, for example, when they both know the defendant has done precisely what he’s accused of but on the one hand doesn’t want to lie to his lawyer or come right out and admit his guilt on the other. So without ever saying so, they agree to ignore it and spend their time dancing around it, the elephant in the room. Or, in this particular instance, the elephant in the cell.

Again, Barnett took his time before answering. When finally he did, he spoke only four little words. They added up to neither an admission of guilt nor a denial, but rather an explanation for his behavior. In no way did they amount to a legal defense, the way they might have had he said, for example, that he’d been forced into doing what he’d done, or coerced, or that he’d been insane at the time, or that he hadn’t realized that it had actually been heroin he’d sold to the undercover agent.

Believe it or not, Jaywalker had once won a case on just such a theory. His client had been making a living by “beating” his customers, selling them supermarket-bought spices at marijuana prices. When the cops had examined the evidence they’d bought back at the station house, they’d realized they too had been victimized. So they’d simply sprinkled some of their own emergency stash into the ounce they’d bought, enough to convince the police chemist. But not the jury. Not once had Jaywalker insisted upon having an independent analysis conducted. The sample came back two percent cannabis, eighty percent oregano and eighteen percent basil. Highly aromatic stuff, perhaps, but hardly the kind to get high on.

No, Alonzo Barnett’s four words of explanation fell far short of that standard. And when he uttered them, they initially struck Jaywalker as being not only legally worthless but pretty insignificant in terms of moral culpability, as well. Then again, he was at something of a disadvantage. For as he listened to them, he had yet to hear Alonzo Barnett’s story. He had absolutely no way of knowing just how fertile with possibility the words were, or how in time they would germinate, take root, sprout and grow into a full-fledged defense, the likes of which Jaywalker would never have dared to even dream about, sitting there in the pens of 100 Centre Street, back on that Thursday morning in May of 1986.

“I did a favor,” is all Alonzo Barnett said.