Bronx Justice (15 page)

Over the years, some observers finally began to question the wisdom of the requirement. Were sexual assaults really so different from other crimes? Couldn't one just as easily fabricate a robbery accusation as a rape accusation? Some wondered if the distinction was really a valid one, or simply a vestige of a puritanical, male-dominated heritage.

Today, thanks in large part to the efforts of women's rights groups in educating the world that rape is less about sex than it is about power, and is essentially a crime of assault, the corroboration requirement has gone the way of the dodo, and properly so.

But change comes slowly to the law, and at the time of Darren Kingston's trial, the rule had become endangered but was not quite yet extinct. The standard that Justice Davidoff had to apply was that in order for a forcible rape conviction to be upheld, the victim's account had to be supported by some other evidence on two points. First, that the defendant had used force, and second, that he'd at least attempted to accomplish intercourse.

Had he been asked over dinner for his personal feelings on the wisdom of the corroboration requirement, Jaywalker would have had no trouble condemning it. But he could hardly let his opinion relieve him of arguing that because it was the law, the court was bound to enforce it. Besides which, he told himself, if it turned out to be the corroboration requirement that prevented Darren Kingston from being convicted, the result might be highly ironic, but it would at the same time be highly just.

Jaywalker began by conceding for the purpose of his argument that with respect to Eleanor Cerami, the sperm found in her vagina could be deemed sufficient corroboration of attempted intercourse, particularly when coupled with her and her husband's testimony that she'd had no other intercourse in the weeks preceding the attack. But nowhere in the evidence was there corroboration as to any force used against her.

As for Joanne Kenarden, the exact opposite was true, Jaywalker pointed out. The lower-back tenderness “found” by the doctors at Jacobi Hospital might conceivably be accepted by the jury as evidence of force. But when it came to independent evidence that her attacker had attempted to have intercourse with her, there simply was none.

Pope countered by arguing that each victim corroborated the other. As authority for his position, he cited a pair of proceedings from Family Court. Family Court is the lowest of the low. It's where Judge Judy worked before she got promoted to daytime television. It's where you go if you're twelve and cut school too often, or if you're divorced and fall behind with your alimony payments. If citing a United States Supreme Court decision is worth a ten, they've yet to come up with a decimal small enough to describe the weight of a Family Court ruling.

Jaywalker was no legal scholar and never would be. But he'd done his homework, and he, too, had come across the two cases cited by Jacob Pope. For starters, both had dealt solely with issues of identity, no longer an area where corroboration was required. Beyond that, they'd been concerned not with corroboration, but with the admissibility of evidence of one crime to prove another. To allow Pope
to “cross-corroborate” the cases, Jaywalker now argued, would be to permit him to “double bootstrap”—to tie together two legally insufficient prosecutions that couldn't survive on their own. These were two separate cases, he reminded Justice Davidoff, joined for trial solely for reasons of convenience and judicial economy.

If Jaywalker succeeded in convincing himself—and he came pretty close, the further he got into his argument—he had less success with the court. Justice Davidoff denied the motion to dismiss, without comment, and recessed for the day.

 

Justice Davidoff's ruling made it clearer than ever that the defense was going to have to put on a case of its own. Up to this point, Jaywalker's strategy had pretty much been dictated by the prosecution's evidence. Unable to shake the two victims from their identifications of Darren Kingston as their attacker, he'd all but conceded that they'd been raped and honestly believed it was Darren who'd raped them. So instead of attacking them head-on, he'd tried to draw from them details about the rapist that would distinguish him from Darren—his physical appearance, his lack of a stutter, his right-handedness, his being circumcised, the clothing he wore and the absence of a chipped front tooth or eyebrow scar. Now Jaywalker needed to complete the picture by presenting evidence of his own that would demonstrate the contrast in each of these areas between the actual rapist and the young man who was on trial.

Toward that objective, Jaywalker had been lining up witnesses for several weeks. They included Darren himself, members of his family and fellow employees at the
post office. He'd even spoken with several doctors, in the hopes of getting one of them to come to court and establish that Darren wasn't circumcised. Now it was time to put it all together, to orchestrate the defense case.

Jaywalker started with the proposition that he wanted to save Darren for last. Unlike other witnesses, the defendant gets to be present in the courtroom during all of the trial testimony. By putting him on last, Jaywalker would be giving him the benefit of hearing the other defense witnesses testify. Though by this time he was confident that Darren would be telling the truth—the pendulum long ago having come to rest on innocence—this way he wouldn't contradict other defense witnesses on any of the little details that might make it seem as though he were lying. Far more important than that reason was the dramatic aspect. The defendant is the witness jurors want to hear. Jaywalker had worked with Darren enough to know he was unlikely to disappoint them and might even be able to win them over. He therefore wanted everything in the trial to build toward the moment when he stood to announce his final witness.

Back in college, Jaywalker had been a member of the track team. Not that he'd planned on it. Recruited out of high school as a seventeen-year-old pitcher who could throw a baseball at ninety-seven miles an hour, he'd managed to blow his arm out even before arriving on campus. Needing to keep his scholarship, he'd tried out for the track team and found a berth as a middle-distance runner. His favorite event was the mile relay, in which each of four runners ran a quarter of the total, or 440 yards. It was too short a distance to hold back and pace yourself, but at the same time, too long to sprint without tearing your
lungs out. So you did so anyway, at full tilt, and collapsed afterward. The only strategy that had come into play, therefore, was how the coach had arranged his runners. He'd saved his strongest runner for last, as Jaywalker was now doing with Darren. But just as it was important to have a good anchorman to finish things up, so, too, was it crucial to get off to a good start, with a runner who was
strong out of the blocks,
as they called it. Jaywalker had become that runner on the track. Now he had to decide who would take that role in court.

Darren's family, however well they might testify, would be regarded with a certain amount of skepticism by the jury, simply because they
were
family. So Jaywalker decided to move them to the middle of his order. He would lead off with the post-office employees, in order to prove Darren's alibi for the morning of September 17th. That was the morning Eleanor Cerami had seen her attacker again, she'd said with certainty. If she could be wrong about that, she could be wrong about everything.

 

To Jaywalker, a trial has always been something of an emotional roller-coaster ride, punctuated by a series of long climbs and gut-wrenching dives. There's the climb that anticipates jury selection and culminates in addressing the jurors. There's the climb during the prosecutor's opening statement, which leads to the defense's opening. Then there's the long, drawn-out climb of the prosecution's evidence, which suddenly gives way to the defense case.

The thing of it is, Jaywalker has always hated the roller coaster with every fiber of his being. To this day, he holds on to the safety bar with both hands, his knuckles bone-white. He grits his teeth, closes his eyes and screams at the top of his lungs at every dive.

But he always gets back on.

It was well past midnight when he hung up from his last phone call, assured that each of his witnesses knew exactly where to be and when to be there. And it was after two when he finally drifted off to a troubled sleep, dreaming of the Cyclone, that mother of all roller coasters, at the Coney Island of his youth.

T
he first defense witness Jaywalker called was Andrew Emmons. Mr. Emmons, a black man, testified that he'd worked at the same branch of the post office since 1965, and had known Darren Kingston since he'd been assigned there a couple years back. Although the two worked different shifts, their schedules were set up so they overlapped by several hours.

Jaywalker drew from Mr. Emmons that Darren appeared no thinner now than he had back in August. In fact,
the witness explained, the workers would occasionally step onto the large parcel scales to weigh themselves. Darren's weight had always been right around 150 to 153 pounds.

Next Jaywalker asked Mr. Emmons about Darren's coming back to work following his arrest. Although he didn't remember the date, he did recall Darren's arriving one morning “off his shift”—in other words, not at his regular starting time—after having been absent about a week. The two had had a brief conversation, during which Darren had explained that he'd been arrested. Then Darren had gone in to speak with his union delegate, a man named George Riley. The time, according to Mr. Emmons, had been 9:00 in the morning.

Pope's cross-examination was brief. He questioned whether the employees really weighed themselves, but Mr. Emmons assured him that they did. Asked if he'd ever been convicted of a crime, Mr. Emmons replied that he hadn't been. Pope was fishing there. Because the post-office employees weren't testifying to Darren's whereabouts at the time of any of the crimes, they weren't alibi witnesses in the strict sense of the term. Therefore Jaywalker hadn't been required to turn over their names in advance. With no chance to check Mr. Emmons out, Pope took a cast anyway and came up empty.

 

Next Jaywalker called George Riley, a white man. A number of Darren's fellow workers had offered to testify, and Jaywalker had been able to pick from among them. His choice of a biracial sample was no accident. Justice may be color-blind, but the same isn't necessarily true of jurors.

Mr. Riley testified that he'd been working at Gracie Station for twelve years and also served as a shop steward active in union matters. He'd known Darren since Darren had begun working at the post office, and their shifts overlapped. He first learned of the case when Darren came in one morning to see him. Darren explained that he'd been arrested about a week earlier and wanted to know the proper procedure for explaining his absence. Mr. Riley told him to see Mr. Hamilton, the supervisor, and explain exactly what had happened. Shortly thereafter, Darren had indeed gone in to see Mr. Hamilton. According to Mr. Riley, the time was somewhere between 9:00 and 10:00 a.m.

Pope, on cross-examination, tried to cast doubt on whether Darren had actually gone to see Mr. Hamilton. But Mr. Riley stated that he himself had spoken to Mr. Hamilton and told him that Darren was coming in.

In his next line of questioning, however, Pope scored heavily. He drew an admission from Mr. Riley that he was unaware of Darren's stutter. It was a blow, and one that Jaywalker could do nothing about.

 

Jaywalker called P. G. Hamilton. Asked to spell his first name and last, Mr. Hamilton gave up P-H-I-L-B-E-R-T with obvious reluctance. As for the G., it remains a mystery to this day. Mr. Hamilton made an impressive physical appearance. A bearded and distinguished-looking white man, he could easily have been mistaken for a college professor or a psychiatrist. He testified that he'd been with the post office since 1944, and a supervisor since 1953. He identified Darren as one of his employees. He described him as
“slightly built,” appearing the same in court as he had back in August.

Jaywalker asked Mr. Hamilton if there'd come a time when he'd learned that Darren had been arrested. He stated that he had, though offhand he couldn't recall the date. But P. G. Hamilton had brought with him something far more persuasive than his own memory. In summoning him to court, Jaywalker had served upon him a subpoena
duces tecum,
ordering him to produce all records the post office had regarding Darren Kingston and the date September 17, 1979. Now, as Mr. Hamilton sat in the witness box, he withdrew from his jacket pocket a piece of paper and unfolded it.

Mr. Hamilton related in detail how one morning in September—the 17th, according to the document—Darren Kingston had come into his office to see him, to tell him he'd been arrested, and to discuss the time he'd missed from work. Mr. Hamilton had directed Darren to fill out a Form 3971, to cover emergency leave from September 12th—the date of Darren's arrest and the first day he'd missed work—through September 18th, the following day. That added up to one calendar week, the equivalent of five working days. Mr. Hamilton recalled specifically that in
filling out the form, Darren had misunderstood the instructions and dated it September 18, instead of September 17. Mr. Hamilton had caught the error and corrected it. Then he'd approved the form by signing it and dating it himself, and forwarded it to the computer processing unit.

Jaywalker offered the form into evidence. Pope requested a voir dire examination to challenge its admissibility, and Justice Davidoff permitted him to interrupt Jaywalker's examination and ask a series of questions about the document. Pope tried his best to dispute Mr. Hamilton's account, but this time his best wasn't good enough. When he saw that the judge was about to admit the item, he withdrew his objection. Then he completed his about-face by pretending that the exhibit—which only moments earlier he'd fought so hard to keep out of evidence—was insignificant. When Jaywalker asked Justice Davidoff's permission to pass the form among the jurors so that they might decide for themselves, Pope crossed the line for the first time in the trial, committing prosecutorial misconduct by injecting his own opinion into the issue.

Which only goes to show that at trial, as in sports, it's usually the player who commits the second foul who gets caught.

On cross-examination, Pope stayed away from Form 3971. Instead, he tried to use Mr. Hamilton, as he had so successfully used the previous witness, George Riley, to cast doubt on Darren's stutter. Pope was evidently banking on the fact that none of the post-office witnesses had come to court expecting to be asked about the stutter. And he was right; Jaywalker had completely overlooked the matter in interviewing and preparing them. Furthermore, Pope was aware that they'd gone right from Mr. Riley's testimony to Mr. Hamilton's, providing Jaywalker no opportunity to alert Mr. Hamilton at the last moment.

Pope had scored a point, and he knew it. Sensing his advantage, he couldn't resist the urge to press on.

Another point. Jaywalker wondered if Pope would have the good sense to quit while he was ahead, at a point where he could later argue to the jury that Mr. Hamilton's failure to mention anything else unusual about Darren's speech spoke volumes. Jaywalker could tell from Pope's pause that he was wrestling with the idea. But then greed got the better of him.

Bingo. By asking one question too many, Pope had elicited a classic definition of stuttering: occasionally repeating a syllable once or twice, or even three times. What was more, he'd elicited it from a witness who obviously hadn't been coached to say it. With no further questions for Mr. Hamilton, Pope sat down heavily. Jaywalker thought he heard him curse under his breath, but he couldn't be sure.

As Jaywalker watched P. G. Hamilton make his way out of the courtroom, he couldn't help but feel buoyed by his testimony. Here was a man who'd given nearly four decades of his life to the post office. He'd come in, armed with official paperwork, to establish that at the moment Eleanor Cerami was seeing her rapist in the Bronx, Darren
Kingston was at East 85th Street in Manhattan. On top of that, he'd corroborated Darren's stutter.

Jaywalker would only learn much later on that, in one of the many ironic footnotes to the case, Mr. Hamilton had already been reprimanded by his own superior for permitting Darren to return to work without any disciplinary action being taken against him for being absent without authorization.

As the old saying goes, no good deed goes unpunished.

 

In order to complete the September 17th “alibi,” Jaywalker called Darren's cousin, Delroid Kingston, to the stand. Delroid was a witness about whom Jaywalker had great reservations. He was unemployed, separated from his wife and definitely not the sharpest tack in the toolbox. There was no way he was going to be a match for Jacob Pope's cross-examination skills. Yet Jaywalker felt he had little choice in the matter. When Darren had been released on bail, Jaywalker had instructed the family to have someone with him at all times. He'd wanted to be able to have somebody to account for Darren's whereabouts, in case the real rapist were to strike again. Responding to Jaywalker's request, the family had mobilized its personnel. Darren, Charlene and their son had moved back in with Darren's parents, as had Delroid, who was out of work and having trouble making ends meet. Since Marlin and Inez had to work—there was the cost of the bail bond to absorb, as well as Jaywalker's fee and other expenses related to the case—that left only Delroid to shadow Darren. So on the morning of September 17th, when Darren had gone to the post office to explain his recent absence from work, Delroid had gone with him.

Jaywalker concluded by establishing that “home” was not only a lengthy ride from the post office, but also a good mile from the Castle Hill area.

On cross-examination, Pope demonstrated that he'd done his homework. He brought out the fact that Delroid's parents, Darren's aunt and uncle, lived on Olmstead Avenue, which was considerably closer to Castle Hill. But Delroid stated that Darren was at most an infrequent visitor
there, and that in fact Delroid had never once seen him there.

Pope next tried to attack Delroid's claim of being able to account for Darren's whereabouts following his cousin's release on bail. But Delroid was firm in his testimony that he'd been with Darren since then, every day, practically all day long. Had the expression “twenty-four/seven” been coined back then, no doubt Delroid would have used it.

From there, Pope went into an incident that had occurred toward the end of September. Darren had an aunt by marriage by the name of Yvette Monroe. Several weeks after Darren's arrest and release, Yvette had been in the Castle Hill area when she'd spotted a young man who resembled Darren so much that at first she'd thought it was him. When she'd realized her mistake, it had occurred to her that the encounter might have significance. She'd immediately phoned the Kingstons, who'd hastily organized a “search party” to rush over to the area. Delroid had been a member of the search party. But by the time they reached Castle Hill, the young man had disappeared.