Guilty As Sin

6

With Alonzo Barnett stripped of his only plausible defense, Jaywalker could easily have considered himself off the hook. Here was a defendant, after all, who continued to insist upon a trial in spite of the overwhelming odds against him. And the irony of the situation was hardly lost on Jaywalker. Last time out he’d brushed aside a client’s hesitation at rolling the dice, only to come up snake eyes. This time it was the client who was being reckless, not Jaywalker.

And the way the system was set up to work, it was Barnett’s decision to make, not Jaywalker’s. Every defendant, no matter how demonstrably guilty he may be, has an absolute right to a trial, guaranteed by the constitutions of both the United States and the State of New York. And Alonzo Barnett had made it clear that he intended to avail himself of that right. But it would be a trial in name only, an exercise in going through the motions. A charade of a trial. Over in civil court they actually have a term for it that they use when the defense literally doesn’t show up and the plaintiff’s case is permitted to come in unopposed.

An inquest, they call it.

Which is pretty much what Barnett’s trial would have been, had Jaywalker not been the lawyer for the defense. Because going through the motions was something he simply didn’t know how to do. In his world, there were no charades, no inquests. He would continue to treat Barnett’s case as an absolutely must-win trial. The actual chances of winning were irrelevant. Even the fact that there was no chance of winning was irrelevant.

“Why?” his dumbfounded listener would ask him. “Why knock yourself out on behalf of some career criminal who’s admitted his guilt, has absolutely no defense, but wants to go through with a trial out of nothing but sheer stubbornness?”

By way of an answer, Jaywalker would point out that the listener’s problem wasn’t really with the defendant’s right to a trial, however doomed. “If he insisted on exercising that right, you wouldn’t criticize me for sitting next to him and going through the motions, would you? After all, somebody’s got to do it. So to fault me for being the one to sit there growing hair like some kind of Chia Pet would be the equivalent of blaming the Washington Generals just for showing up to be the designated losers to the Harlem Globetrotters, something they do night in and night out.

“You see,” Jaywalker would explain, “it’s only when I stop simply going through the motions and start to take my job seriously that you begin to have a problem. It’s not until I really try my hardest to win that you begin asking me how can I possibly represent someone I know is guilty. And my answer to you is simple.

“How can I not?”

What he wouldn’t say, and what he wouldn’t even admit to himself at the time, was that in fighting his hardest to win Alonzo Barnett’s case, Jaywalker was hoping to beat back some personal demons. The sting of that recent conviction still smarted, still kept him up at night. Suppose he could follow up losing a case he should have won-or better yet, should never have tried in the first place-by winning a dead-bang loser? Wouldn’t pulling off something like that go a long way toward evening the score? Wouldn’t it at least buy him some small measure of redemption?

All that said, without an entrapment defense, Alonzo Barnett was pretty much left with no defense at all. Jaywalker would have to settle for attacking the testimony of the prosecution’s witnesses and combing their reports-once he finally got them from Pulaski-for inconsistencies. He’d have a sample of the drugs tested by an independent chemist to make sure it was really heroin. He’d even try to line up character witnesses for Barnett, although putting them on the stand would open them up to all sorts of damaging cross-examinations.

“Tell me. Is your opinion of the defendant’s reputation affected in any way by the fact that he’s been selling heroin for the past twenty years? Or that he has five felony convictions?”

Okay, maybe no character witnesses.

But how about Barnett’s boss, the restaurant owner he’d been working for at the time of his arrest? But Pulaski would no doubt use Barnett’s employment to show he hadn’t needed to deal in drugs but had made a conscious choice born out of greed. Maybe there was some way to put the defendant’s two daughters on the stand, to show what a loving father he was?

“I see,” Pulaski would say. “And perhaps you can tell us, young lady, just why it was that your sister and you were removed from your home and placed in foster care, even before your father’s latest arrest?”

It seemed that every idea Jaywalker came up with had a downside to it, a downside that far outweighed its upside. Well, he decided, there was still Clarence Hightower. Put on the witness stand by the defense, he might be able to show the jury how reluctant Barnett had been to get back into the business of dealing. While that might have no true legal significance, it was at least something. Yet Jaywalker had already struck out trying to find Hightower. And since it turned out that the man hadn’t been working as a CI, it meant law enforcement wasn’t responsible for knowing his whereabouts or duty-bound to make him available to the defense.

Although Jaywalker prided himself on doing his own investigative work, he also recognized that there were limitations to the practice. The first was when he needed to call an investigator to the stand as a witness. The second was when he needed someone who could go to a neighborhood and blend in better than he himself could.

Jaywalker was white. Alonzo Barnett and Clarence Hightower were both black. Yes, today they’d be African-American, but this was 1986, and back then they were black. So Jaywalker picked up the phone and dialed Kenny Smith’s number.

Kenny wasn’t exactly an investigator. Not in the sense that he was licensed or had a carry permit, or would make much of an impression if ever called to testify. What Kenny was, was a former client of Jaywalker’s and a friend. And Kenny was not only black but lived up in Harlem, as had Alonzo Barnett until his arrest, and Clarence Hightower until his vanishing act.

Kenny showed up at Jaywalker’s office an hour later. Standing a full six foot five inches, at forty he still looked like the professional basketball prospect he’d once been until good friends and bad decisions had combined to derail his dreams, even if they’d failed to wipe the broad smile off his face. Kenny said he’d never heard of Clarence Hightower, but he’d be more than happy to see if he could find him.

Jaywalker handed him a subpoena, just in case Kenny were to get lucky. It wasn’t a judicial subpoena, the kind that had to be signed by a judge. Jaywalker was concerned that if he went to Levine, Pulaski might find out about it. So he’d used an attorney’s subpoena, which was just as good. Well, almost kinda sorta.

“I’m afraid the most I can pay you is a couple hundred bucks,” he told Smith, knowing that only investigators whose names were on an approved list could submit their hours and get reimbursed through the system. “But I’ll pad my voucher, make it look like I was out looking for him myself.”

“Don’t worry about it,” said Kenny. “I owe you.”

Which was true, Jaywalker would have had to admit. He’d gotten Kenny out of more than a few jams over the years. But still, didn’t Smith’s comment have an awfully familiar ring to it?

A few days later, more out of frustration than anything else, Jaywalker sat down at his desk-he’d had one in those days-and knocked out what he called a Demand for a Supplemental Bill of Particulars. In it, he asked that the prosecution be directed to furnish him a laundry list of things, including the names of trial witnesses, all reports they’d prepared and any past disciplinary actions taken against them. He wanted not only the lab reports and chemists’ notes, but the right to an independent analysis of the drugs by his own expert. He requested more specificity regarding the precise times and locations of the various sales. And then, even though he’d seen the answer with his own eyes, he asked whether any confidential informers had been involved in any way with the case. Did he distrust Daniel Pulaski? Yes, as a matter of fact. But that wasn’t the point. Pulaski was only the assistant district attorney. He’d caught the case after it had already been made by New York City detectives, New York State Police investigators and federal agents. Maybe he didn’t really know if there’d been a CI involved. Maybe that pink sheet of paper with NONE inked on it didn’t know, either.

Besides, a part of him wanted to send Pulaski a message, to put him on notice that unlike Alonzo Barnett’s three previous lawyers, this one wasn’t going to roll over and play dead. With nothing to work with, Jaywalker might not be able to win the case, but he sure was going to give it his best shot.

He received Pulaski’s response in the mail four days later. It argued that motions had already been made within the statutory forty-five-day period allowed following arraignment, responded to in a timely fashion by the People and decided by the court. Mr. Jaywalker, Pulaski pointed out, was exactly 195 days late in asking for the relief he sought.

And despite her good nature and sense of fairness, Judge Levine found herself compelled to agree the next time the case came up in front of her. But even as she denied Jaywalker’s demand as untimely, she turned to Pulaski and said, “Surely you can give him the lab reports, and the times and places of the sales, can’t you?”

“I’ll send him the lab reports,” Pulaski grunted. “The rest of the stuff he gets after we pick a jury. Just like the law requires.”

“And how about the confidential informer business?” she asked him.

“I already showed him the form that indicates there was no CI.”

“So how did this case ever get initiated?” Jaywalker asked, hoping to pique the judge’s curiosity and enlist her help. The usual route, they all knew, began with an informer telling his handlers that he knew a dealer he might be able to introduce an undercover to.

“That’s evidence,” Pulaski snapped. “You’ll find out at trial.”

“Ahh,” said Jaywalker. “The old trial-by-ambush strategy.”

“Boys, boys,” the judge scolded. Then, knowing that Pulaski was correct that he could withhold the information, but only in a technical sense, she suggested he might want to give them a clue. “Come on,” she prodded him. “How about at least a hint or two?”

“Fine,” the A.D.A. snapped. “The case began with an anonymous tip.”

“There,” said Levine. “That wasn’t so hard, was it?”

Pulaski said nothing. Evidently it had been.

“Now,” said the judge. “Are you gentlemen sure we can’t dispose of the case?”

“I’ve offered counsel the minimum,” Pulaski was quick to point out. “Eight-to-life on an A-2.”

“And while my client appreciates the prosecution’s generosity,” said Jaywalker, “he prefers to take his chances at trial.”

“Then a trial he shall have,” said Levine. “When can you gentlemen be ready to begin? This thing’s getting almost as old as I am.”

They agreed on a date three weeks away. It actually wasn’t all that long an adjournment, considering the fact that Jaywalker had been on the case less than two months. Then again, with no defense to raise and no witnesses to call other than the defendant himself, there wasn’t all that much for him to do between now and then, either.

Not that he wouldn’t come up with enough to keep himself busy.

He spent the better part of three straight days in the Tombs with Alonzo Barnett. What began as preparation for testifying gradually turned into an extended conversation. Barnett, Jaywalker decided, would make an excellent witness. He was a good listener and an excellent storyteller. He had a nice self-effacing quality about him, an attribute that was bound to come in handy when he was forced to describe his career as a drug dealer.

No longer a young man, Barnett had no rough edges to him and no anger seething within him. He came across as nonthreatening. He wasn’t handsome, at least not in a Hollywood way, but he was nice to look at. And he had a deep, almost melodic voice. Most of all, he was intelligent. He used three-and four-syllable words, but for precision rather than show. His habit of pausing before answering a question made him seem thoughtful instead of glib. And there was an undercurrent of sadness to just about everything he said-until he got to the subject of his daughters. Then his eyes would light up, the skin at the outer corners would crinkle, and a broad smile would spread across his face, only to be replaced a moment later by a grimace, as he remembered how his most recent transgression had betrayed them and separated him from them once again, this time probably for good.

Yes, Jaywalker decided, Barnett would make a terrific witness, even a game-changing one-in some other case. In this one, all of his listening skills and storytelling ability would be for naught. His self-effacing, nonthreatening demeanor might win him points with the jurors, but in the end, it wouldn’t be enough to win him their votes. His pleasant looks, melodic voice and palpable intelligence simply weren’t going to be enough. Not even his obvious devotion to his daughters would translate into an acquittal. It was going to be one of those cases that ended in a conviction punctuated by a bit of muffled sobbing in the jury box, perhaps even accompanied by a recommendation of leniency. A recommendation that Shirley Levine would be happy to bow to, if only the legislature had seen fit to allow her.

And for Jaywalker, the worst part of it was that over the course of those three days, he became genuinely fond of Barnett. Not that he didn’t eventually come to like almost all of clients; he did. But that was more a reflection of how Jaywalker treated them, especially when viewed in the context of how the rest of the world had treated them up to that point. With Barnett, it was different. Here was a man who, in spite of his past history and his present charges, was so thoroughly engaging that there were times-especially back home, late at night-when Jaywalker would worry if he wasn’t getting too close to his client and running something of the same risk a physician ran when he undertook to operate on a member of his own immediate family. In a world filled with lawyers who cared too little about their clients, leave it to Jaywalker to lose sleep over the possibility that he was beginning to care too much.

And then, a week before the trial was scheduled to begin, Daniel Pulaski phoned. “Well,” he told Jaywalker, “you lucked out.”

“Oh? How’s that?”

“I’ve been promoted to the Investigations Division,” he said. “I’m going to have to reassign almost all of my trial cases.”

“Congratulations,” said Jaywalker. “But why not keep this one?” By that time he’d convinced himself that as much as he disliked Pulaski, the man’s sarcasm and sneakiness could actually end up working to the defense’s advantage. What better way to highlight Alonzo Barnett’s likableness, after all, than to pit him against a slimeball, a thoroughly unlikable cross-examiner?

“Don’t take offense,” said Pulaski, immediately ensuring that Jaywalker would. “But from the People’s point of view, this case pretty much tries itself, even with you at the defense table. Anyway, it’s not like I’m handing it off to some loser. I’m giving it to a rising young star in the office.”

“And who might that be?”

Pulaski had asked if he happened to know Mickey Shaughnessey.

“Never heard the name,” confessed Jaywalker.

“Well, you will,” Pulaski assured him. “You and the rest of the do-gooders on the defense side. I’m only sorry I won’t be there to watch the sparks fly.”

“A street fighter, huh?”

“You might say that.” Pulaski laughed. “Well, you two have fun.” Followed by a click.

So the slimeball had been replaced by a brawler. Fair enough, Jaywalker decided. Alonzo Barnett’s thoughtful, quiet intelligence might come off even better against a red-faced, two-fisted Irishman.

Although it was far from the top of his list of favorite things to do, Jaywalker spent the next day hitting the books. He wanted to check out a seldom-used defense called agency. At least that was its short name, sort of how Jaywalker was short for Harrison J. Walker. Technically termed “agent of the buyer,” it went something like this.

A drug deal often involves more than just two people. There are the hand-to-hand participants, the seller and the buyer. But frequently there’s a cast of supporting characters. There can be a broker, the guy who puts the seller and buyer together, and in that respect acts not all that differently from a real estate broker. There can be a middleman, somebody who positions himself between the seller and the buyer. For a piece of the action, whether that turns out to be cash, drugs or both, he serves to insulate the principals from each other, lest one be looking to either rip off or arrest the other. Then there’s the connection, the seller’s immediate source of supply, and his connection, on up the ladder. There may be a moneyman, separate and distinct from the seller. There may be a stash man, who sits on the drugs, a re-up man to replenish the supply, a lookout to watch out for the Man and even a gofer or two.

Under the law of “acting in concert,” all these individuals are equally guilty of participating in the sale. With one exception, of course, and that’s the buyer. Not even the vast breadth of the acting-in-concert law can ignore the fact that since he’s the one who’s purchasing the drugs, the buyer can’t at the same time be selling them.

From that necessary distinction has grown an arcane and almost unheard of defense. Borrowing from the principles of contract law, some clever defense lawyer postulated years back that if someone aids a transaction by helping the buyer rather than the seller, it follows that he can be no more guilty of sale than the buyer is. Take, for example, a buyer who speaks only English, who’s going to purchase drugs from a seller known to speak only Spanish. To protect himself from being overcharged or short-weighted, the buyer enlists a bilingual friend to come along and act as an interpreter, either as a favor or for a fee. The friend’s only role is to translate for the buyer; he’s never even met the seller. In theory, the friend, should he be arrested, can argue that he acted solely as the agent of the buyer and therefore can’t be convicted of sale. Criminal facilitation, perhaps, for having assisted in the overall transaction, but not sale. And while Alonzo Barnett was facing multiple counts of sale, nowhere in the indictment was there a count charging him with criminal facilitation, an oversight that left Jaywalker free to argue that his client had merely been acting as an agent for the buyer.

In theory, at least.

In practice, it never seemed to work out that way. Despite spending an entire day searching the case law, Jaywalker was unable to find a single case where a defendant had actually been acquitted on agency, or a single instance where a judge had been reversed for refusing to instruct the jury on the defense.

Still, he tucked the idea away in the back of his head, in a subfile he labeled Hail Mary Plays.

The following day Jaywalker got a call from the red-faced, two-fisted Irishman who’d be taking over the case from Daniel Pulaski.

“Hi,” she said, sounding neither red-faced, two-fisted, nor even particularly Irish, for that matter. “My name’s Miki Shaughnessey, and I’m the new assistant on the Alonzo Barnett case.”

Jaywalker found himself momentarily speechless.

“Are you there?” he heard her asking.

“Yes, I’m here. It’s just that I was expecting someone more…more-never mind.”

“I’ve got some lab reports for you,” said Shaughnessey. “I can send them out to you, if you like. Or you can stop by and pick them up.”

He was at her 8 °Centre Street office twenty minutes later. Miki Shaughnessey was as different as could be from what he’d expected, right down to the spelling of her first name, which Jaywalker read off a piece of paper taped to her door, the permanent plaque having not yet arrived. She was also as different as could be from Daniel Pulaski. And not just because she was strawberry blonde, petite and cute. While those things made her good to look at, this was 1986. Jaywalker’s wife was very much alive back then, and he was very much in love with her. It would only be after her death that he would look elsewhere for consolation, first to the confines of his bed, then to the bottle, and eventually to other members of the female persuasion.

No, the reason Miki Shaughnessey was an improvement over Daniel Pulaski had less to do with her looks than it did with her openness. Jaywalker had sensed as much from the moment of her initial phone call. Pulaski would have held on to the lab reports for as long as possible. Hell, he’d done just that for twenty months so far. Then, at the last possible moment, he’d have sent them to Jaywalker by Third Class Mail. Shaughnessey had not only called him to say she had them, but had actually invited him to come over to pick them up. And while part of Jaywalker would miss doing battle against the likes of Pulaski, right now he’d settle for Shaughnessey’s openness.

“So,” she was telling him now, “I understand that I’m about to go up against one of the best.”

“Don’t believe everything you hear.” He brushed her off with characteristic modesty. “And you must be good, or Pulaski wouldn’t have picked you to try this case. I hear he’s a big shot over in Investigations now.”

“Not yet. His transfer doesn’t actually take place for another six weeks. And while I appreciate his vote of confidence in me, I feel like I’m being thrown to the wolves. Not only does he give me an A-1 felony for my first trial here, he puts me up against you.”

“Don’t worry,” Jaywalker told her. “I’m sure you’ll do just fine.” And it was true, he knew. Because while he would have pulled no punches against a prick like Pulaski, he’d never take advantage of a novice. Sure, once the opening bell rang, he’d do everything he could for Alonzo Barnett, but that everything wouldn’t include playing dirty. And he knew that Shirley Levine would go out of her way to make Shaughnessey’s first trial a fair one, too.

But even as he was telling Miki Shaughnessey not to worry, Jaywalker had already begun to. Because tucked into her little speech were several things that immediately raised red flags for him. First was the revelation that Daniel Pulaski’s transfer wouldn’t take place for another six weeks. The Barnett trial was only two weeks away and would last two weeks at most. Had Pulaski wanted to, he could easily have tried it himself before going over to Investigations. Then there was the fact that Miki Shaughnessey was being entrusted with an A-1 felony as her very first trial in the office. Sure, it was a winner from the prosecution’s point of view. But still, it was kind of like handing a brand-new assistant a murder case first time up to the plate. Why would Pulaski take a chance doing something like that, especially when he himself knew the case inside out? Why not let Shaughnessey second-seat him and learn by watching how it was done? Or, if he really wanted to give her some on-the-job training, have her try it with him in the second seat?

Why was Pulaski bailing out?

And what was he himself missing?

Don’t be paranoid, Jaywalker told himself. But it was hard for him to take his own advice. Paranoia wasn’t exactly a prerequisite for being a good defense lawyer, but it sure came in handy from time to time.

They talked for another twenty minutes. Jaywalker assured Shaughnessey that he wouldn’t oppose an adjournment of the trial if she felt she needed one. She agreed to let him know what witnesses she intended to call, along with the order in which she planned on calling them, as soon as she figured those things out. “So why is your guy going to trial?” she asked at one point. “I mean…” Her voice trailed off, leaving the obvious unsaid, that it seemed futile on the defendant’s part, futile and self-destructive.

Jaywalker answered her with a shrug. “It happens,” he said.

She nodded as though she understood. She might be inexperienced, Jaywalker decided, but she seemed like a quick learner and a straight shooter. Shirley Levine was a good judge and Alonzo Barnett a nice man. Together they would have a good trial, the four of them. And when it was over, Barnett would shake Jaywalker’s hand, thank him for doing his best, and go off someplace upstate to spend the rest of his life sitting in a cage. For doing a guy a favor. All so a bunch of politicians up in Albany could outshout each other over which of them was toughest on crime.

Even back as early as 1986, Jaywalker knew he could keep doing this work only so long before it would drive him totally nuts, before it would send him rummaging through the bottom of his closet and digging out his gun from his DEA days. Before it would make him want to blow away the sheer insanity of these stupid drug cases, for once and for all.