Guilty As Sin

15

The typical defense lawyer will allow himself the luxury of relaxing just a bit following a lengthy direct examination of his final witness. Next up is the prosecutor, after all, who conducts cross-examination while the defense lawyer gets to sit and relax. But relaxing simply wasn’t part of Jaywalker’s vocabulary when he was on trial.

On trial.

A friend, a banking lawyer, had once accused Jaywalker of misusing the phrase. “It’s the defendant who’s on trial,” she’d said. “Not you.”

She’d obviously never tried a case. Certainly not a criminal case.

So Jaywalker didn’t even think about taking the evening off. Time off was something he treated himself to after a trial, not during it, and even then, only if he’d won. Until the moment he heard the verdict delivered, there was simply too much to do. And if he lost, there would be still more. It was one of the reasons he fought so hard to win, so it would be over. He could still feel the sting of learning he’d flunked the bar exam the first time he’d taken it. Not because he felt stupid or because his pride was hurt. Jaywalker and pride had barely been on speaking terms for as long as he could remember. No, it was the realization that he’d have to go through it all over again, that it wasn’t over.

Which was why he spent what was left of Monday, as well as the first hour or two of Tuesday, preparing his redirect examination of Alonzo Barnett. Even though he hadn’t yet heard a word of Miki Shaughnessey’s cross, Jaywalker knew what she’d ask. Despite the fact that Jaywalker had preemptively gone into Barnett’s criminal record three times now-during jury selection, in his opening statement and now on direct examination-no young, inexperienced prosecutor was going to be able to avoid the temptation of covering the same ground on cross. After that, she’d try to challenge Barnett’s notion that owing a debt to another man constituted a moral justification to sell heroin, or a legal defense to having done so. She’d pin him down on the amounts involved, which had gradually grown from small to significant to substantial. She’d bring out that as a former addict himself, Barnett had to have been aware of the consequences of his actions. And she’d use that same “former addict” label to accuse him of being that worst of all combinations: a seller without the excuse of being a user needing to support his own habit. She’d pointedly ask him about the money he’d made or hoped to make from the sales. She’d want to know why he hadn’t considered his debt to Hightower paid off after the first sale, or at least the second. She’d suggest through her questions that, had Barnett not been arrested when he was, there might have been a fourth sale, then a fifth, and that the sales might still be going on to this day. Then, mostly because Jaywalker hadn’t-in fact especially because Jaywalker hadn’t-she would go into the details of how the three transactions had gone down, in order to show how accurate and honest her own witnesses had been in describing them. Finally, she’d try to put Barnett on the hot seat by asking him about his source, the person he’d gotten the drugs from on each occasion. It was a question no dealer ever wanted to answer, whether out of fear, loyalty or a combination of both. And it was a subject Jaywalker had purposefully avoided going into on direct.

In other words, by asking certain questions on direct and refraining from asking certain others, Jaywalker was able to not only predict what his adversary would ask on cross but to consciously and purposefully dictate her questions. So even as he was able to prepare his witness-in this case his client-to answer her questions, he could also prepare himself for his own next round of questions on his redirect examination.

But doing that was by no means all that Jaywalker did that Monday night into Tuesday morning. He considered it a distinct possibility that once they’d finished with Barnett’s testimony and the defense had rested, Shaughnessey would begin calling rebuttal witnesses. That, too, was something that inexperienced prosecutors tended to do. She’d recall agents and detectives-or call new ones-in an attempt to assure the jurors that Hightower hadn’t been working as an informer, and that the dangers involved in following Barnett too closely had been real ones. So Jaywalker prepared for those rebuttal witnesses, too, even though at this point they existed only in his imagination.

And when he’d finished working on his redirect examination of Barnett and his cross-examination of the imaginary rebuttal witnesses, he worked on his summation. Though the truth is, he’d begun working on it the day he’d met Alonzo Barnett and had been working on it ever since.

It certainly wasn’t easy, being Jaywalker. But it was the price he paid for being an obsessive-compulsive whose obsession forced him to do everything he possibly could in each case he tried, and whose compulsion drove him to avoid losing at any cost.

He finally climbed into bed around two in the morning, kissing his wife’s neck gently, so as not to wake her. Then he rolled over in the dark and blindly ran his hand along the floor by his side of the bed, until he felt the pen and notepad that were there, as they always were.

Just in case.

Miki Shaughnessey didn’t disappoint Jaywalker. She cross-examined on each of the areas he’d expected her to, though not in the order he would have bet on. Okay, so maybe he wasn’t quite Nostradamus yet. But by anticipating what she’d do, Jaywalker had been able to take a smart defendant with a nice manner of speaking and prepare him for just about every question that would come his way. Now, as he sat and listened to things play out, Jaywalker wondered if the combination of his preparation and his client’s receptiveness would be enough to offset what he was up against: the fact that no matter how well Barnett came off as a witness, he was going to be forced to admit that he’d knowingly and repeatedly sold large amounts of heroin for profit when he, of all people, should have known better.

It didn’t take too long to find out.

SHAUGHNESSEY: If I understand what you said yesterday, Mr. Barnett, you sold heroin to Agent St. James only because you felt you owed some kind of a debt to Clarence Hightower. Is that correct?

BARNETT: Yes, except that I wouldn’t call it “some kind of a debt.” It was a very specific debt. The man saved my life.

SHAUGHNESSEY: And you sold heroin to repay him.

BARNETT: That’s what it came to. I’d hoped to get off the hook by simply introducing Mr. Hightower to someone he could buy from. But it didn’t work out that way. So yes, it ended up with me getting the heroin for his friend, who turned out to be a federal agent.

SHAUGHNESSEY: Did you make any money in the process of repaying this debt?

BARNETT: Yes, I did.

SHAUGHNESSEY: How much?

BARNETT: I’d have to break it down for you.

SHAUGHNESSEY: Please do.

BARNETT: The first time I was given one hundred dollars and spent eighty of it.

SHAUGHNESSEY: So you made twenty dollars?

BARNETT: No, I gave the twenty dollars to Mr. Hightower.

SHAUGHNESSEY: All of it?

BARNETT: All of it. I wanted no part of it.

SHAUGHNESSEY: And the second time?

BARNETT: The second time I was given fifteen hundred dollars and spent twelve hundred. Of the three hundred left over, I gave Mr. Hightower two hundred, and kept one hundred.

SHAUGHNESSEY: Suddenly you did want part of it?

BARNETT: I’m human. I was behind in my rent, and I figured I’d earned it. It was wrong of me to keep it, but I did. I’m not going to lie about it.

SHAUGHNESSEY: And the third time?

BARNETT: The third time I was given five thousand dollars and spent four thousand five hundred.

SHAUGHNESSEY: So you would have made five hundred on that occasion alone, had you not been arrested. Correct?

BARNETT: No, that’s not correct.

SHAUGHNESSEY: No?

BARNETT: No. It wasn’t just a coincidence that Mr. Hightower showed up right after I was arrested. He was there to hit me up for some of the five hundred dollars.

SHAUGHNESSEY: Was your rent paid up by that time?

BARNETT: Yes, it was.

SHAUGHNESSEY: So you would have given him the whole five hundred. Right?

BARNETT: No, ma’am. I’d be lying to you if I said that. I was going to keep one hundred of it again, maybe even two hundred. I hadn’t decided which. I was going to keep it to buy something nice for my daughters. They were in foster care at the time, and were on a pretty tight budget. No new clothes, no new books or school supplies. Nothing but bare essentials. So the way I figured it, it was better spent on them than going into Mr. Hightower’s veins.

Bravo, thought Jaywalker. He and Barnett had worked hard trying to come up with zingers like that, hoping there’d be opportunities to use them. Score one for the bad guys.

SHAUGHNESSEY: You knew Mr. Hightower was using?

BARNETT: He told me he was. It was one of the things he told me, trying to convince me to help him.

SHAUGHNESSEY: So you helped him get money to feed his drug habit. You enabled him.

BARNETT: Actually, I was still refusing to help him at that point. It was only when he reminded me about the debt that I agreed to help him.

SHAUGHNESSEY: I see. You yourself weren’t using drugs at that point, were you?

Here it comes, thought Jaywalker. You’re a seller, not a user.

BARNETT: No, ma’am, I wasn’t.

SHAUGHNESSEY: You had no habit of your own to support, did you?

BARNETT: No, ma’am.

SHAUGHNESSEY: Yet you thought it was okay to sell heroin so others could use it?

BARNETT: I never thought it was okay, not even back when I used to sell to support my own habit. I always knew it was wrong.

SHAUGHNESSEY: And being a member of the Muslim religion, you knew it was wrong to use alcohol or illegal drugs. Did it ever occur to you that it might also be wrong to sell illegal drugs?

Good question, thought Jaywalker, and one he hadn’t seen coming. He bit down on the inside of his mouth, hoping that Barnett wouldn’t try to split hairs and insist that while using was prohibited by the Koran, selling wasn’t covered.

BARNETT: Please forgive me, ma’am, but the religion is called Islam. One who practices it is a Muslim. And yes, it was wrong of me, as a practicing Muslim, to do what I did, and I knew that. I am by no means perfect, and I have never claimed to be. I’ve made more than my share of mistakes in my life, and this was certainly one of them. For a lot of reasons, not just religious.

Not bad for an ad lib.

Looking to regroup, Shaughnessey sought a safe place and apparently figured a good bet could be found in Alonzo Barnett’s criminal record. But she hadn’t counted on the weeks of drilling Jaywalker and his client had put in on just that subject. For the next half hour, she tried to catch Barnett denying his guilt of some twenty-year-old arrest or hedging about some conviction from a decade ago. But she got nowhere. Alonzo Barnett was that rare defendant who truly understood, actually got it, that his record was his record, and as bad as it was, he could only make it worse by attempting to minimize it.

He was, in other words, a Jaywalker defendant.

Finally Shaughnessey turned her attention to the one area Jaywalker expected his client to have real difficulty with. She asked him who’d sold him the drugs.

Not that Jaywalker hadn’t anticipated the question; he had. Still, asking a man to name and identify his drug connection is pretty much the same as asking him to become a snitch. And the problem is only heightened when the man being asked has done time and spent years living under a code that reduces snitches to the lowest of the low. In prison you have your general population, comprised of inmates who are free to mingle with each other. Free to mingle is something of a misnomer in this case, of course, and is generally limited to mealtimes and yard time, with an extra hour thrown in now and then.

Then you have younger inmates, those below twenty-one or maybe nineteen, who are almost always separately housed for a variety of reasons, including preventing them from expanding their knowledge as apprentices of hardened criminals. After them come homosexuals-prison administrators will no doubt get around to adopting the word gay eventually, but seem in no particular rush to do so-psychiatric cases, the very old, the very weak, sex offenders, and anyone else who might be considered a likely target of violence. A corrupt cop or public official, say, or a transgendered individual. And finally, way down at the bottom of the barrel where the scum settles, the snitches.

Alonzo Barnett had no interest in being labeled a snitch, certainly not while he was in jail, and not now, when the overwhelming odds were that he’d soon be shipped back to prison. He’d told Jaywalker that, and Jaywalker hadn’t needed to ask him why. His suggestion to Barnett had been to make up a name and an apartment number on the twelfth floor of 345 West 127th Street, where Investigator Lance Bucknell claimed he’d gone during the third transaction. After all, according to Barnett, Bucknell had been lying; the apartment Barnett had actually gone to was on the eighth floor. In either event, almost two years had passed, and even were Barnett to now pinpoint a particular apartment, no judge in his right mind was going to sign a search warrant on information that stale. Which narrowed it down to the handful of judges who would.

Barnett had initially balked at the suggestion. He didn’t like the idea of supplying a name and identifying an apartment, even if the name was fictitious and the apartment wasn’t the one he’d gone to. But over the weeks they’d talked about it, he’d been forced to agree that if asked, he had to come up with something; he couldn’t refuse to answer the question. There was the doctor-patient privilege, the priest-penitent privilege, the husband-wife privilege, and lately the president-advisor privilege. But no one had gone so far as to argue the existence of a dealer-supplier privilege. Not even Jaywalker.

But even as Alonzo Barnett had acknowledged that he’d have to answer the question if it were put to him, he never had told Jaywalker what his answer might be. Eventually Jaywalker had stopped pressing him, figuring that if and when the time came, Barnett would deal with it as best as he could. Though to Jaywalker’s way of thinking, it had always been a matter of when, rather than if.

And now they were there.

SHAUGHNESSEY: Did you indeed go to 345 West 127th Street on each of the three occasions?

BARNETT: Yes, I did.

SHAUGHNESSEY: Exactly as Investigator Bucknell testified?

BARNETT: Yes, ma’am.

SHAUGHNESSEY: And did you go to that building to obtain heroin from your connection?

BARNETT: I went there to obtain heroin. I have a bit of problem with your use of the term connection. I went to the person who I’d agreed to introduce Mr. Hightower and his friend to. When he refused to meet with either of them, I agreed to take the money and get the drugs for them. But if you want to call him my connection, I’m willing to use your term.

SHAUGHNESSEY: Thank you. And did you in fact go to the twelfth floor, as Investigator Bucknell testified you did?

BARNETT: No, ma’am, I did not.

SHAUGHNESSEY: You did hear Bucknell say that?

BARNETT: Yes, I did. Absolutely.

SHAUGHNESSEY: Are you telling us he lied when he said that?

BARNETT: I honestly don’t know why he said that. He may have been lying. He may have been mistaken. He may have made it up to cover for the fact that he wasn’t able to see where I went. All I can tell you is the truth. And the truth is, I didn’t go to the twelfth floor.

SHAUGHNESSEY: Ever?

BARNETT: Ever.

SHAUGHNESSEY: So when Investigator Bucknell testified that he rode in the elevator with you and saw you press the button for the twelfth floor, that never happened?

BARNETT: That’s right. That never happened. If that man had gotten onto the elevator with me, I would have immediately stepped off and walked out of the building. He has cop written all over him.

SHAUGHNESSEY: So where did you go?

BARNETT: To the eighth floor.

SHAUGHNESSEY: What apartment?

BARNETT: Eight-oh-five.

SHAUGHNESSEY: Whose apartment was that?

BARNETT: A man they use to call “One-Eyed Jack.” Got the nickname because he’d lost an eye in a shoot-out. I never did know his real name. But not too long after my arrest, the word got around that he was a snitch, an informer for the police. So he left town in a hurry.

SHAUGHNESSEY: And just how do you happen to know all that?

BARNETT: I’ve been on Rikers Island going on two years now. Guys don’t have much to do out there except talk about other guys. And One-Eyed Jack was one of the guys they talked about.

SHAUGHNESSEY: And you expect me to believe that?

BARNETT: Most respectfully, ma’am, I don’t care too much what you believe. What I care is what these folks sitting over here believe. [Points to jury] And I suspect they can recognize the truth when they hear it.

To her credit, Miki Shaughnessey plunged on without taking time out to wipe the egg off her face. She got Barnett to admit that with the exception of the twelfth-floor/eighth-floor business, just about everything else her witnesses had testified to was true.

“So why should they lie about that?” she asked him.

“I have no idea,” said Barnett. “Maybe you should ask them.”

His response marked the only time in a lengthy cross-examination when he verged on testiness. But with that single exception, Alonzo Barnett had been that rarest of witnesses who somehow managed to exceed even Jaywalker’s expectations. Without once raising his voice or losing his composure, he’d taken just about everything a talented cross-examiner had thrown at him and turned it to his advantage. When Miki Shaughnessey finally gave up a few minutes later, Jaywalker resisted the temptation to conduct a redirect examination aimed at rehabilitating his witness.

There was simply nothing to rehabilitate.

“The defense rests,” he announced.

“And the People?” asked Judge Levine.

“The People intend to call rebuttal witnesses,” said Shaughnessey.

Just as Jaywalker had expected her to.

That night Jaywalker replayed the day’s events in his mind, as he always did when he was on trial. They’d ended with an early recess, with Shirley Levine granting Miki Shaughnessey’s request to go over to Wednesday to give her a chance to assemble her rebuttal witnesses. But Shaughnessey’s long cross-examination of Alonzo Barnett had clearly been a high-water mark for the defense.

If only Barnett hadn’t taken the bait and stepped out of character at the very end, thought Jaywalker. Until then, he’d done everything right. Not content with simply stating that he had no idea why the prosecution’s witnesses would choose to lie about something so minor and tangential as which floor in a building he’d gone to, he’d let himself slip and add “Maybe you should ask them” to his answer.

And now she was going to do just that, with her rebuttal witnesses.

“Idiot.”

“Who, me?”

For a moment he mistook the voice for his client’s and imagined they were talking together in the pen adjoining the courtroom. Though he couldn’t explain the surrounding darkness. Then he realized that he was lying in bed and the voice had been his wife’s, thick with sleep.

“Who’s an idiot?” she asked again.

“My client.” And he proceeded to describe Alonzo Barnett’s exchange with the prosecutor.

Jaywalker had fully expected his wife to agree with him; she usually did. But she surprised him this time. Instead of sharing his annoyance over the impertinence of Barnett’s comment, she seemed far more interested in what had led to it. “So why did they lie about that?” she wanted to know.

“You’re missing the point,” Jaywalker told her.

Or was she?

The thought would keep him awake another hour. In his annoyance at his client for botching the extra-credit question and ending up with a score of only 100 instead of 105, was it possible that Jaywalker himself had missed the point? Was the reason Investigator Bucknell had lied about the twelfth floor business more complicated than Jaywalker had figured?

He’d learned a lifetime ago that cops lied. Hell, he’d been one of them, only on the federal payroll, so he knew it firsthand. But they didn’t lie indiscriminately. They lied selectively, to cover their own asses or those of their partners or team, to make an arrest stand up here or a search pass muster there. In other words, they lied only when there was something to be gained by lying-or something to be hidden.

So what could they possibly be gaining by specifying that Alonzo Barnett had ridden the elevator to the twelfth floor, when he swore he hadn’t and they had no knowledge of where he’d actually gone? And what could they possibly be hiding by denying that he’d gone to the eighth floor instead, as he insisted he had?