Bronx Justice (10 page)

So he changed his approach. He began keeping his clients off the stand and stressing reasonable doubt every chance he got. And what he found was that in a close case, a jury forced to put the prosecution's case to the reasonable-doubt test would grudgingly acquit the defendant and save their apologies for the district attorney, explaining that they were
almost
convinced of the defendant's guilt, but not quite. Sometimes they would even ignore Jaywalker on their way out of the courtroom, their way of letting him know that they both knew his client deserved worse.

Was he insulted at such times? Not a chance. In fact, the jurors' snubs were the highest form of praise they could bestow upon him, their silence music to his ears. In a contest that was all about winning, he would take a grudging acquittal over an apologetic conviction any day of the week.

And yet, in spite of all that, Jaywalker knew that in Darren's case, he was going to have to break his rule. The victims were simply too certain in their identifications. If they were wrong—and on this particular arc of the pendulum, Jaywalker was convinced that they were—it was because they were mistaken, not because they were lying. And unlike lying witnesses, mistaken witnesses can't be tripped up on cross-examination. Because they honestly think they're telling the truth, they come off as though they are, and jurors tend to believe them every bit as much as the witnesses believe themselves.

Jaywalker knew, therefore, that he was going to have to present a defense, and it was going to have to include Darren himself. That thought didn't scare him the way it might have. He told himself that Darren would make a pretty good witness. He was young, good-looking, polite, intelligent enough, and ultimately likeable. His stutter wouldn't work against him once it was explained as a lifelong thing and might even generate a certain amount of sympathy. And if the victims persisted in saying they recalled no stutter on the part of their attacker, it could even become a pivotal point. Darren's previous arrest might come out, but balancing that would be his lack of any history of sex offenses. Finally, Pope wouldn't be able to trip up Darren on cross-examination any more than Jaywalker would be able to trip up the victims, because Darren, too, would be telling what he believed to be the truth. Jaywalker shook his head at the irony of that.

In addition to Darren, there were his coworkers at the post office. Although they couldn't account for Darren's whereabouts during the rapes themselves, they might be able to undercut Eleanor Cerami's “second sighting” of
Darren. And if either of the victims departed in her testimony from what she'd told John McCarthy, Jaywalker could call McCarthy to impeach her. In addition, he knew he had to figure out a way to get Darren's mother on the stand, and perhaps other members of his family, as well, though probably not his father. Marlin had already made it clear that sitting still at his son's rape trial would be difficult for him; testifying without losing it altogether would be an impossibility.

Again, as he had going into the Wade hearing, Jaywalker felt ready. John McCarthy's investigation, if not exhaustive, had been pretty thorough. A lot had been learned at the hearing. Darren's being out on bail had enabled him to assist in preparation, and his family had been immensely cooperative. The luck of the draw had given them a decent judge who could be counted on to give them a fair trial.

And yet, despite all his readiness, Jaywalker still couldn't shake that feeling of apprehension that had attached itself to him early one morning in September and had clung to him ever since, like a stubborn fog that refused to lift.

He was ready, but he was afraid.

“A
ll rise! Part Sixteen of the Supreme Court, in and for the County of the Bronx, is now in session, the Honorable Max Davidoff presiding. Please be seated.”

Jaywalker scanned the rows of prospective jurors that filled the courtroom and immediately knew they were in trouble.

Today the Bronx is what whites refer to as a “minority borough,” with blacks and Latinos comprising nearly ninety percent of its population. If that description betrays a certain amount of ethnocentricity, at the same time it fairly characterizes the borough. Its schools are minority; its stores are minority; its churches are minority; its playgrounds are minority; its politicians are minority. Everything about it, in fact, is minority.

But it wasn't always so.

Beautiful parks once dotted the Bronx, with names like Pelham Bay, Bedford and Van Cortlandt. Graceful shade trees, manicured lawns and spotless sidewalks were everywhere. The Grand Concourse, the broad boulevard that
passes directly in front of the courthouse and provides its address, was once second only to Manhattan's Park Avenue in terms of the prestige it carried and the rent it commanded.

But all that changed.

By the late 1960s and early 1970s, the Bronx had become a borough in transition, with its older Jewish, Irish, Italian and Polish residents pulling up and heading to Westchester, Queens, Long Island and New Jersey. In their place, younger blacks and Puerto Ricans began moving in in large numbers, soon to be followed by Colombians, Cubans, Jamaicans, Haitians and Dominicans. The phrase
white flight
was on everyone's lips.

The transformation wasn't an easy one. Unemployment soared, welfare rolls swelled, and crime statistics skyrocketed. Front doors, once left unlocked, now sprouted padlocks and chains. Window glass gave way to plywood. And streets that had been safe at night became dangerous by day. The whites who could, responded by fleeing in increasing numbers; those who couldn't, ventured out of their apartments warily, returned quickly and triple-locked themselves in. By the winter of 1980, as Darren Kingston's case came up for trial, the new immigrants outnumbered the old guard they'd replaced.

Jaywalker would have had no complaint if the jury panel had reflected the changing demographic of the borough. As difficult as it might be, he felt he would have a reasonable chance of convincing a racially mixed jury to keep an open mind in the trial of a black man born to West Indian parents and accused of raping two white women.

He wasn't going to get that chance.

At the time, jury panels in Bronx County were drawn exclusively from voter registration rolls. The whites who'd
dug in and remained had lived in the borough for years, often generations. They'd emigrated from Europe, seeking not only economic opportunity but also, in many cases, political and religious freedom, as well. They'd lived through a world war, understood the Holocaust and watched the westward march of Communism. They prized their newfound democracy. And they voted.

The newcomers lacked that history. They typically had less education, lower literacy rates and less familiarity with the English language. They'd come not to escape oppression but to find jobs. Voting was nice, but it would be something their children would do one day, or their grandchildren.

As a result, of the fifty prospective jurors summoned to Part 16 on the morning of February 21, 1980, five were black and none was Hispanic. And perhaps it was only Jaywalker's imagination working overtime, but the remaining forty-five seemed barely able to hide the palpable fear of a threatened species.

“The People of the State of New York versus Darren Kingston,” announced the clerk.

“The People are ready for trial,” said Jacob Pope, in a loud and clear voice.

“Is the defendant ready?”

“The defendant is ready,” Jaywalker answered. Then he asked to approach the bench. There, in the presence of Justice Davidoff, Pope and the court stenographer, but out of the jury's earshot, he voiced his objection to the disproportionately small number of minority jurors and requested a new panel.

“There are only five blacks,” he pointed out, “and not a single Hispanic, as far as I can tell. Combined, that's pre
cisely ten percent of the total, in a county that's eighty-three percent minority.”

Nobody picked up on the oxymoron, or the fact that Jaywalker had made up the statistic on the spur of the moment. He'd learned that if you were specific enough with numbers, people tended to defer to you and accept them at face value.

Justice Davidoff peered over his reading glasses at the jurors. “I count twelve blacks,” he said.

“That's because you're counting the defendant's family,” Jaywalker told him.

It didn't matter. His objection was overruled and his request for a new panel denied. It was, as they say, an inauspicious beginning.

 

Jury selection began slowly. Before its completion, it would take two full days. Twelve prospective jurors, whose names had been drawn at random from the panel of fifty, filled the jury box. Pope got to address them first, and his questions sought personal information: their employment, marital status, family makeup, geographical background and education. He seemed intent on finding jurors with daughters, Jaywalker noticed. His manner was businesslike and efficient. No surprise there.

When Jaywalker's turn came, he spent little time exploring the jurors' backgrounds. Instead, he used the time allotted him to tell them, as early on as he could, the most troublesome things about the case they were about to hear.

The answer, of course, was meaningless, unless it happened to be a “No.” But by the very asking of the question, Jaywalker was attempting to defuse the worst of the prosecution's evidence—to warn the jurors that this was a double rape case, that the victims were young, that they would point out Darren, that they would do so in good faith, and that they would do so without reservation. The effect, Jaywalker hoped, would be to deprive Pope of whatever drama he was looking to create. Beyond that, it would serve to precondition the jurors, so when the time came for the identifications, they wouldn't seem like such a big deal. Over time, Jaywalker would refine his techniques and improve upon them. But this was 1980, and though he was already comfortable with the business of jury selection, he was still very much a work in progress.

In addition to taking the sting out of the facts of the rapes and the self-certainty of the victims, Jaywalker wanted to indoctrinate the jurors on the law, at least those areas where it helped the defense.

In that seemingly innocuous exchange, Jaywalker first made it a point to depersonalize his adversary. He never used grandiose terms like “The People” or “The Government.” Nor did he say “Mr. Pope” or “the prosecutor.” By using the less personal form of the word
prosecution,
he hoped to remove Pope from the equation altogether. Acquit my client, Jaywalker was telling the jurors, and no one loses, not even that serious guy over there with the mustache. He's just part of an institution. And the fact that the name of that institution happens to sound very much like
per
secution—well, Jaywalker would leave that little coincidence to the experts on subliminal persuasion.

The second thing he'd done was even sneakier. By placing emphasis on the word
beyond
the second time he'd referred to reasonable doubt, he'd managed to change
the modifier immediately preceding it from “a” to “all,” without drawing an objection from Pope or a rebuke from Justice Davidoff. From that point on, every time he spoke the words—and there would be literally dozens of such times—it would come out “beyond all reasonable doubt.” A small thing? Sure. But to Jaywalker's way of thinking, big trials are often won by small things.

Again, the answers meant nothing. They were an opaque set of responses from a juror who, for all Jaywalker knew, simply wanted to sit on the case and knew what she was supposed to say to make that happen. It was the questions themselves, which were really statements thinly disguised as questions, that accomplished the conditioning. Jaywalker reworded them, shuffled them, repeated them, apologized for repeating them, then repeated them again. Not only was the juror who was being questioned forced to listen to them, so were those waiting to be questioned, those who'd already been questioned, and even—back in 1980—those who'd already been selected. It was Jaywalker's hope that by being forced to listen, they might begin to think about the meaning of the phrases they were hearing. At least to the point of re
alizing that it would be their job to focus on the issue of reasonable doubt, rather than the specter of their daughters being raped by a black man.

Several jurors came right out and said they couldn't be fair to a defendant accused of rape. One or two acknowledged other prejudices that might prevent them from being impartial. A few voiced personal reasons that would make it difficult or impossible for them to serve. All were excused on the consent of both lawyers, or by the judge for “cause.” There was no limit to the number that could be so excused. With respect to “peremptory” challenges—exercised by either side against a juror who was otherwise qualified to serve—each side had fifteen.

Once Jaywalker had completed his questioning of the twelve jurors in the box, the clerk produced a board with the jurors' name cards in slots corresponding to where they were seated. The lawyers were told to indicate their peremptory challenges by turning over the card of any juror they wanted to strike. Pope was able to eliminate blacks, young people and just about anyone else he thought might be sympathetic to the defense. Back in 1980, it was accepted practice to use a juror's color as the basis for a challenge. Not that it still isn't, despite a change in the law. But these days you have to lie, and claim that it was something the particular juror said or didn't say.

Jaywalker, meanwhile, had his hands full with frightened parents of teenaged daughters, older women who couldn't bring themselves to even look at Darren, and those who'd been attacked themselves or had a close friend or relative who had been.

One way of looking at jury selection is to think of it as a fairly intriguing board game. There are two players, a
game board, and a deck of playing cards spread out on it. Taking turns, the players have to jointly build a hand containing a dozen cards, plus a few extras. Only the players aren't working together; they're opponents. One of them wants the hand to end up with as many high cards in it as possible—kings, queens, jacks, tens and so forth. The other wants the same hand to have nothing but twos, threes and fours. Each player is allotted fifteen moves, which he can use up quickly, spread out over the course of the game, or hoard for later. Each knows it's important to keep track of his opponent's moves as well as his own, because neither wants to be outmaneuvered at the end.

The idea is simple enough, to get rid of those cards you don't want and pass when it comes to ones you like or will at least settle for. Meanwhile, your opponent is doing the same. Part of the strategy therefore lies in figuring out which cards he's likely to get rid of, lest you waste one of your moves on any of those. An example of
advanced
strategy would be making it look like you're going to get rid of a particular card you secretly like, in the hope that your opponent will fall for the ruse and fail to get rid of it himself.

Sounds simple enough, no?

And it would be, but for one minor detail. Instead of being arranged on the board face up, with their numerical values showing, the cards are spread out facedown. The king of spades looks no different from the two of clubs. So in order to calculate the true value of any given card, you're going to have to take the word of a total stranger, a stranger who may be telling you the truth, may not even
know
the card's value, or may know it but is lying through his or her teeth and simply telling you what you want to hear, because he or she wants you to pick that card.