Guilty As Sin

11

Miki Shaughnessey’s direct examination of the chemist was as basic as it could be. The previous afternoon she’d asked Jaywalker what he hoped to accomplish with the witness, and Jaywalker had answered that he honestly had no idea. It had been a truthful response at the time he’d made it. Shaughnessey had then volunteered that she’d checked and found that most of her colleagues had never once had to call a chemist at trial, having relied each time upon the defense lawyer’s willingness to stipulate as to what the chemist would have said if put on the witness stand.

“Don’t worry about it,” Jaywalker had told her. “I’m just frustrated with your cops and agents. I want the jurors to hear what a truthful witness sounds like.”

“You don’t believe the cops have been truthful?”

“About the basics, sure. But,” he’d added, “not about some of the little things. Though I’m honestly not sure why.”

“What kind of little things?” she’d wanted to know.

Either she’d been genuinely curious about why her witnesses might have done a bit of fudging here or there, or she’d been looking to gain a tactical advantage from whatever Jaywalker might tell her. But she was young and cute, and Jaywalker, though happily married, had always been a sucker for the combination. So he’d decided to give her the benefit of the doubt.

“Oh, the business about the anonymous caller,” he’d started with. “That just doesn’t ring true. My client wasn’t dealing out in the open on his stoop. In fact, he wasn’t dealing at all until Clarence Hightower came along and twisted his arm. Next, the fact that Hightower was never charged with sale, even though he introduced St. James to Barnett for the express purpose of buying drugs. Finally, the fact that no real attempt was ever made to get to Barnett’s connection. That should have been the ultimate goal of the operation. Instead they send some overgrown Boy Scout to do the job, and then tie his hands to make sure he doesn’t find out anything.”

“So what does all that have to do with the chemist?” Shaughnessey had asked.

“Nothing,” Jaywalker had admitted. “Like I said, I’m frustrated, and I don’t know what else to do.”

That had been then.

Now it was Friday morning, and Miki Shaughnessey rose to announce that the People were prepared to call their fourth and final witness, Olga Kasmirov.

Just as not all doctors are lucky enough to be on staff at the Mayo Clinic or the National Institutes of Health, so too are there chemists in this world who don’t pull down fat six-figure salaries at DuPont or Eli Lily. Scan down the rolls of the psychiatrists who perform the half hour court-ordered evaluations for the criminal justice system, or the technicians who spend their days peering through old-fashioned microscopes at drugs bought or seized on the streets of the city, and in no time you’ll think you’ve stumbled upon a veritable roster of United Nations delegates. Except that the pay isn’t nearly as good.

So the name Olga Kasmirov barely registered on Jaywalker’s radar, any more than did her explanation two minutes into her testimony that while she’d once been a leading expert in polymer conductivity in the former Soviet Union, these days she made her living analyzing samples of white powder or green vegetation at the New York City office of the United States Chemist.

Shaughnessey’s direct examination was just that-direct and to the point. She spent a few minutes asking the witness about her education and experience, but she needn’t have bothered; Jaywalker quickly rose and offered to stipulate that the witness qualified as an expert in the analysis of controlled substances. Thanking Jaywalker for the concession, Shaughnessey moved on to the drugs bought and seized from Alonzo Barnett.

SHAUGHNESSEY: With respect to the substance from the first buy, what did you do?

KASMIROV: I emptied the powder onto a scale and determined its net weight to be 1.01 grams. We use the metric system. That comes out to about one twenty-eighth of an ounce. Then I conducted several tests for the presence of heroin hydrochloride, and the results were consistently and conclusively positive.

SHAUGHNESSEY: How about with respect to the second buy?

KASMIROV: For the second buy, I found the weight to be 26.02 grams. That’s a little less than one ounce. As before, tests for the presence of heroin hydrochloride proved positive.

SHAUGHNESSEY: And the package seized from the defendant at the time of his arrest?

KASMIROV: I found the weight to be 124.8 grams. That’s just under an eighth of a kilogram, or about 4.4 ounces. Once again, I tested for the presence of heroin hydrochloride and the results were positive.

SHAUGHNESSEY: Now, these lab reports you prepared. Were they prepared in the ordinary course of business at the lab?

Jaywalker knew the ritual, the legalese required to admit business records as an exception to the hearsay rule. The next question would be, “And was it the ordinary course of business at the lab to prepare such reports?” He rose to his feet and magnanimously stated that he had no objection to the reports being received in evidence.

The fact was, he actually wanted them in.

He needed them in.

“Received in evidence,” said the judge.

Miki Shaughnessey thanked her witness and sat down. Her entire direct examination had taken less than fourteen minutes.

Jaywalker’s cross would take considerably longer.

JAYWALKER: Good morning. Is it Ms. Kasmirov, or Dr. Kasmirov?

KASMIROV: In the Soviet Union I was Dr. Kasmirov. Here I’m not sure how it works.

JAYWALKER: But you won’t object if I call you Doctor?

KASMIROV: I won’t object.

JAYWALKER: Good. Dr. Kasmirov, in response to Ms. Shaughnessey’s questions, you essentially described performing both a quantitative analysis of the drugs you examined in connection with this case and a qualitative analysis. Correct?

KASMIROV: That is correct.

JAYWALKER: In other words, how much the substances weighed and what they contained.

KASMIROV: Correct.

JAYWALKER: Let’s talk about the weights first, okay?

KASMIROV: Okay.

JAYWALKER: Starting with the first buy. You found that its net weight was 1.01 grams. Can you tell us how close that was to weighing exactly one gram?

KASMIROV: It was off by only one one-hundredth of a gram. In other words, if it was supposed to be a gram, it was off by about one percentage point.

JAYWALKER: And skipping to the third quantity of drugs you analyzed. That you found to weigh 124.8 grams. If that was supposed to be an eighth of a kilogram, how close was it?

KASMIROV: Well, a kilogram is a thousand grams. An eighth of that would be 125 grams. So 124.8 would be off by only two-tenths of a gram. I would need a calculator or paper and pencil to compute the margin of error.

JAYWALKER: Here. [Hands calculator to witness]

KASMIROV: It comes out to.00016, or sixteen-thousandths. That’s a small fraction of one percentage point.

JAYWALKER: In other words, very, very close.

KASMIROV: Yes.

JAYWALKER: So close as to suggest that whoever had measured it out used a very sophisticated scale. Would you agree?

KASMIROV: I would agree, yes.

JAYWALKER: Now let’s go back to the one we skipped, the second buy. There you found the net weight to be 25.8 grams. Correct?

KASMIROV: Correct.

JAYWALKER: Assume for a moment that that buy was supposed to have been one ounce. Can you tell us how close it actually was?

KASMIROV: Well, an ounce contains 28.35 grams, rounded off to two decimal points. The difference would have been 2.55 grams.

JAYWALKER: In other words it was more than two and a half grams short?

KASMIROV: Yes.

JAYWALKER: And the margin of error?

KASMIROV: May I use the calculator?

JAYWALKER: Of course.

KASMIROV: More than nine percent off, almost ten.

JAYWALKER: Where did it all go?

KASMIROV: Some might have been lost during field-testing.

JAYWALKER: But only a tiny bit, right?

KASMIROV: I should think so.

JAYWALKER: And if the first and third batches were field-tested, as well, they appear to have lost almost nothing in the process. Agreed?

KASMIROV: I agree.

JAYWALKER: So where did those two and half grams-almost ten percent of an ounce-go?

KASMIROV: I can’t tell you.

Jaywalker walked back to the defense table and dug out a file. Although dug out was only what it looked like. The truth was, he’d had the file right where he could find it since three o’clock that morning. Now he drew two sheets of paper from it. One he handed to Miki Shaughnessey. The other, the original, he gave to the court reporter, asking that it be marked Defendant’s Exhibit A for identification.

JAYWALKER: Dr. Kasmirov, I hand you this item and ask you to take a look at it.

KASMIROV: [Complies]

JAYWALKER: Have you seen it before?

KASMIROV: No, I don’t believe so.

JAYWALKER: Are you able to tell us what it is?

KASMIROV: Yes. It’s a lab report prepared by someone at the police department’s lab. It describes an analysis of drugs recovered from a man named Clarence Hightower, also known as “Stump,” at the time of his arrest.

JAYWALKER: I offer it in evidence.

Now by rights Miki Shaughnessey could have objected. For one thing, it was hearsay, since Jaywalker hadn’t subpoenaed anyone from the lab to authenticate it as a business record. There simply hadn’t been time for him to do it the right way. Beyond that, its relevance was far from clear.

But one of the things that happens when the defense allows the prosecution to do things without objection is that the prosecutor-particularly a young and inexperienced prosecutor-feels compelled to match that display of goodwill. Jaywalker was betting that the last thing Shaughnessey wanted to do was seem threatened by a piece of paper. She had a winner of a case, an open-and-shut conviction. Would she dare jeopardize that by being perceived as fighting to keep evidence out of the trial?

SHAUGHNESSEY: No objection.

THE COURT: Received as Defendant’s A.

JAYWALKER: Thank you. What does this lab report tell you, Dr. Kasmirov?

KASMIROV: It tells me that what was recovered from Mr. Hightower had a net weight of one-eleventh of an ounce plus 4.6 grains. They use avoirdupois weight over there.

JAYWALKER: And the metric equivalent?

KASMIROV: [Using calculator] Let me see. It comes out to just about two and a half grams. Aha!

If any of the jurors had missed the significance, there was Olga Kasmirov’s spontaneous “Aha!” to highlight it for them. Was it just a coincidence that Clarence Hightower had ended up with the exact amount of heroin in his pocket that had mysteriously disappeared from the ounce Agent St. James had received from Alonzo Barnett on the second buy?

But Jaywalker was only halfway there.

JAYWALKER: Now, the lab report tells you still more, doesn’t it, Dr. Kasmirov?

KASMIROV: Like what?

JAYWALKER: Like what else was in those two and a half grams besides heroin. Right?

KASMIROV: [Examining report] Right.

JAYWALKER: What else was in there?

KASMIROV: [Reading] Lactose, dextrose and quinine. Although it doesn’t say how much of each.

JAYWALKER: Yes, too bad about that.

SHAUGHNESSEY: Objection.

THE COURT: Sustained. Strike the comment.

JAYWALKER: What is lactose?

KASMIROV: Lactose is milk sugar.

JAYWALKER: And what is dextrose?

KASMIROV: Dextrose is sugar from fruits or vegetables. In this case it’s most likely from corn syrup.

JAYWALKER: What are they doing in heroin?

SHAUGHNESSEY: Objection. How can she say?

JAYWALKER: She’s an expert. I’m asking her to give us her opinion.

THE COURT: Yes, overruled. You may answer the question if you can.

KASMIROV: A seller will add either lactose or dextrose to heroin as a diluent, to bulk up the heroin and make more of it. At the same time, it reduces the strength of the heroin, brings it down to a level where it can be safely injected or snorted by the user. Though it’s a bit unusual to see both lactose and dextrose present in a single sample. It’s redundant. They do exactly the same thing.

JAYWALKER: And quinine. What’s that?

KASMIROV: Quinine is a salt made from an alkaloid from the bark of a tree. It used to be used to treat malaria. Although I forget the name of the tree right now.

JAYWALKER: How about the cinchona?

KASMIROV: That’s it.

JAYWALKER: And what’s quinine doing in there?

KASMIROV: Lactose and dextrose are sugars. Add enough of either one and the sweetness becomes detectable. The buyer will know the percentage of heroin isn’t what it should be. Quinine, on the other hand, is bitter. It cuts the sweetness, like lemon would cut the sweetness in sugared tea. By adding a little quinine to counteract the sugar, it’s possible to fool someone who tastes the drug into believing it contains more heroin than it really does.

JAYWALKER: I see. Now, with respect to your own analyses, Dr. Kasmirov, the three that you made. Did you find substances other than heroin?

KASMIROV: Yes, I did.

JAYWALKER: And unlike the police chemist, did you quantify the various substances you found in each analysis?

KASMIROV: Yes.

JAYWALKER: Please tell us what you found.

Even as the witness began reading from her lab reports, Jaywalker produced a huge piece of white-oak tag he’d brought along with him that morning and a thick black marking pen. By the time Dr. Kasmirov was finished answering and he was finished writing, he had diagrammed her testimony for all to see. What it showed was that there was no discernible difference in the 2.55 grams of heroin seized from Hightower and the 2.55 grams of heroin that were unaccounted for in the second buy made from Alonzo Barnett. Not in terms of weight, strength or additives. Right down to the redundant lactose and dextrose.

On redirect, Miki Shaughnessey got Dr. Kasmirov to agree that, absent a breakdown of the percentages of heroin, lactose, dextrose and quinine in the drugs seized from Clarence Hightower, it was nothing more than speculation that they’d come from the second Barnett sale. After all, weren’t those three additives very common ones? Yes, they were, Kasmirov agreed. “And,” Shaughnessey asked her, “regardless of whatever Hightower possessed or didn’t possess, is there any question in your mind that what Alonzo Barnett sold twice and was caught with on a third occasion contained heroin?”

“No,” Dr. Kasmirov replied. “About that there’s absolutely no question at all.”

That night, as Jaywalker lay in the darkness on his side of the bed, too tired to keep his eyes open but too wired to sleep, his wife asked him about the chart he’d brought home with him.

“What does it show?” she wanted to know.

“It shows that this guy Hightower ended up with some of the identical heroin that Barnett sold to the undercover.”

“I understand that,” she said. “But what does that show? What does it mean? What’s the jury supposed to make of it?”

“It could mean Barnett gave him some of it,” said Jaywalker. “But Barnett swears he didn’t.”

“And of course you believe him.”

It was one of their private little jokes, that Jaywalker invariably believed whatever his murderers, rapists, thieves and drug dealers told him. Not always, he’d tell her. But once they’d gotten to know him and trust him? Once they understood that he was really on their side and would fight for them even if he knew the full truth? Yeah, then they’d tell him the truth.

Almost always.

“Suppose Hightower had simply bought some of the same stuff?” she asked him. “Directly from the same guy Barnett was buying from?”

“Didn’t happen,” he assured her. “Barnett insists his source wouldn’t sell to anyone but him. Refused to even meet with Hightower, or with his so-called friend from Philadelphia. It’s the only reason Barnett’s in the hot seat now.”

“So what, then?”

“I don’t know,” Jaywalker confessed. “Maybe the agents thought Hightower was a pain in the ass, coming up on them like he did while they were trying to arrest Barnett. Those can be scary situations. Buncha white guys surrounding a brother in the middle of Harlem. Who knows? Maybe they got pissed off and flaked him.”

“Flaked him?”

“Took some of the drugs they’d skimmed off from the second buy and planted it on Hightower.”

“They do things like that?” she asked.

“Occasionally.”

“Did you?”

“Moi? No. But I know that kind of thing used to happen back then, and I’m sure it still happens today.”

“Great system you work in,” she said. And even in the dark, he could feel her turning away from him.

“So what am I supposed to do? Pretend I don’t know stuff like that goes on? Not argue that cops lie? Roll over and give up?”

“No,” she said, her voice softening. “What you’re supposed to do is roll over and try to get some sleep.”

Which turned out to be easy for her to say. For another hour Jaywalker continued to lie in the darkness, listening to the rise and fall of his wife’s breathing. He’d been able to go only so far with Olga Kasmirov and her lab reports, he knew. Even as he’d been busy with his chart-making, he’d noticed blank stares coming his way from the jury box. Sure, he’d had them there for a moment when the numbers had matched perfectly, Hightower’s drugs with what was missing from Barnett’s. But his wife was right, as she almost always was. What inference were the jurors supposed to draw from that match that could possibly steer them in the direction of acquitting Alonzo Barnett? Especially when Jaywalker himself couldn’t come up with an answer to that question.

He lay awake for another forty-five minutes. At one point he reached down to the floor by his side of the bed and groped around until he found the pen and pad of paper he always kept there. Blindly, he scribbled down two words. It was the last thing he remembered before finally falling asleep.