Bronx Justice (27 page)

But so be it. If the appeal was Darren's only chance, then the appeal it would be. A win was a win, after all. And they
had
to win. In criminal law, there are no trophies handed out for second place, no honorable mentions. You won it all, or you went off and did your time.

Jaywalker phoned Legal Aid Appeals for the twentieth time. For the twentieth time, the secretary, with whom he was by this time on a first-name basis, told him they still hadn't received the transcript of Darren's trial, and therefore no staff member had yet been assigned to the case. For the twentieth time, Jaywalker left instructions asking to be called as soon as someone was assigned. The secre
tary assured him that she would see to it. No, she didn't need his phone number. She knew it by heart.

 

Winter came.

Jaywalker cut down on his trips to Castle Hill. He tried other cases, some of them involving defendants who'd done pretty much what they'd been accused of. He won them all. With each acquittal, he asked himself what he'd done wrong in Darren's case, and came up with plenty of answers. Had he become too personally involved in it, like the doctor who treats a member of his own family? Should he have kept Darren off the stand? Should he have cross-examined Tania Maldonado and Elvira Caldwell more fully? He second-guessed his voir dire of the jury panel, his opening statement, his summation and everything in between. He cursed himself for not having called John McCarthy to the stand, for not putting Marlin on. He wondered how Justice Davidoff would have decided the case, had Jaywalker decided to go non-jury.

The list was endless, the possibilities maddening.

He saw little of Darren and spoke to him only infrequently. It seemed to Jaywalker that the stutter had grown worse than ever. He'd taken to speaking to Charlene to find out how Darren was doing. Or she would call him whenever she came across a newspaper item about a rape case. On the rare occasion when Jaywalker hadn't already seen it himself, he would check it out. Invariably, some similarity would appear and he would feel a sudden flicker of hope. But then something would end up wrong with it. The suspect would turn out to be white or Hispanic, or too young or too old, too tall or too short, or in jail at the time of the Castle Hill rapes. Jaywalker would report back to
Charlene and give her the news. She would say she'd figured as much and apologize for having bothered him. Jaywalker would assure her it hadn't been any bother. And he would tell her in the most positive voice he could muster that one of these days, one of her leads was going to check out. He was quite sure that neither of them believed it anymore. Yet still they continued to repeat their little ritual each time, going through the motions, playing the game, putting on their brave faces, saying all the right things.

Because to do otherwise would have been to give up and admit defeat. And neither of them, it seemed, knew how to do that.

 

Christmas approached.

Jaywalker and his family neither flew to Florida nor went skiing this time around. There simply wasn't the money. As they wrapped presents and decorated for the holidays, Jaywalker tried to imagine the scene at the Kingston household. Afraid that his voice on the phone would do nothing but remind them of Darren's troubles, he convinced himself that it was best not to call them. That was nonsense, of course. The truth was, he simply couldn't bring himself to dial the phone. Still, the day before Christmas, a greeting card arrived in the mail, signed by all of them, warmly thanking him for everything. It made Jaywalker feel ashamed for not having called and for failing them, and guilty over his own good fortune.

 

The year drew to an end, and at a friend's New Year's Eve gathering, it came Jaywalker's turn to make a toast. As he raised his glass, he caught sight of someone pouring
from a bottle of Seagram's V.O. He fled from the room and locked himself in the bathroom. There he lay on the floor, doubled over in pain, sobbing uncontrollably, the water running full force in the sink to mask the sound. When he finally emerged, he apologized for having had too much to drink.

He didn't know what else to say.

I
n late January, Jaywalker received a phone call. The young woman on the other end introduced herself as Carolyn Oates. She was a lawyer with the appeals division of the Legal Aid Society, she explained, and she'd been assigned the case of
The People of the State of New York v. Darren Kingston.
She'd just finished reading the transcript of the trial and had come across an envelope inserted among the pages. Opening it up, she'd found twenty message slips requesting that Jaywalker be called.

They arranged to meet.

The fact that Darren's appeal would finally be moving forward was both good news and bad. Good, because the appeal had come to represent their last real hope to change the outcome of the trial. Bad, because it meant the clock had begun running again. Within a few short months, the briefs would be written, the oral argument heard and a decision handed down. If that decision went against them and the state's highest court were to decline to consider the case further—as it does ninety-nine percent of the
time—it meant there would be nothing left to prevent Darren from going to prison to begin serving his sentence.

 

They met a few days later, over grilled cheese sandwiches in the luncheonette on the ground floor of Jaywalker's office building. Carolyn Oates struck him as young, too young to be one of the senior staff members. Will Hellerman had promised he would assign someone experienced to handle the appeal. But she seemed smart, knowledgeable and interested in the case. What impressed Jaywalker even more was that fact that she'd already reached out to Darren and Charlene, and arranged to meet them. Because appellate lawyers are notorious for their reluctance to get involved with their clients on a personal level, Carolyn's overture to the Kingstons immediately won Jaywalker over.

He felt the most important thing he could contribute at that point was to convince her of Darren's innocence. Even though the appeal would dance around that issue and never confront it head-on, Jaywalker wanted to turn Carolyn into as much a believer as he himself was. And as the hour passed and the grilled cheese disappeared, he felt he was able to do just that. It seemed, in fact, that he could convince just about everyone. Everyone, that was, except the twelve people who'd mattered.

They discussed some of the legal issues in the case. Carolyn believed, as did Jaywalker, that Justice Davidoff's permitting the rebuttal testimony of Tania Maldonado and Elvira Caldwell had been wrong. And she shared his belief that the corroboration issue was fertile ground. But even as they fed off each other's optimism, they were both keenly aware of the reality of appellate practice. Only a small percentage of convictions get reversed. And asking
a court to upset a guilty verdict in an armed, multiple rape case was asking a lot. Beyond that, they knew there was a major obstacle they had to contend with on the corroboration issue. Under pressure from women's groups, the legislature had relaxed the corroboration requirement since the time of the Castle Hill rapes. In their brief, Carolyn Oates and Jaywalker would be trying to persuade the court to throw out a conviction that met the standards of the law now in effect. That meant their plea would hardly be the kind of stuff that cries out for justice.

 

Winter gave way to spring.

Jaywalker took a ride up to Ossining one afternoon, in order to get a look at an inmate at Sing Sing Prison who'd recently been convicted of a rape committed in the South Bronx. But his face bore obvious burn scars from a childhood accident.

Jaywalker began aiming his VW for the Castle Hill Houses again, though not on as regular a basis as before. But still he went. Old habits die hard.

He kept in touch with Carolyn Oates. They agreed to limit the brief to their three best points. They both felt that the inclusion of weaker points would only cost them credibility in the long run and detract from the final product.

In April, Charlene called to say she and Darren had received notification from the Housing Authority that the City of New York was moving to evict them because of Darren's conviction. Although they were living with his parents, they had continued to pay the modest rent on their own apartment, digging into whatever savings they had left. It served as a place to go when the pressure became too much. More importantly, Jaywalker suspected, it rep
resented hope. It was their apartment, their home. It was the place they would return to once Darren was vindicated. Now the city was threatening to take it away from them.

Jaywalker told Charlene to send him the notice, that he would help them fight it if he could. When it arrived in the mail, he studied the specifications.

Leaving for another day the fact that they'd gotten the date wrong, Jaywalker sent off a letter to the Housing Authority's legal department, informing them that an appeal was pending in the case and requesting that they hold off until it had been decided.

Several days later, he got a call from one of their lawyers. He was willing to grant a postponement of the proceedings, but only a short one. A hearing would have to be held within the next few weeks.

 

In early May, Darren showed up at Jaywalker's office to report an interesting development. He'd gone into a
candy store in the Bronx to buy cigarettes. He'd recognized the young woman behind the cash register as Tania Maldonado, the third of the four victims. What struck him, and Jaywalker, as significant was the fact that Tania Maldonado hadn't recognized
him
. Or if she had, she'd done a wonderful job of pretending not to.

Together, Jaywalker and Carolyn pondered what possible use they might make of the incident. They decided that Darren should visit the store again—several times, if necessary—although never alone. They would keep a detailed written record of the dates and times of his visits. Then, if Darren continued to be unrecognized, they would consider approaching Miss Maldonado or Jacob Pope, or both of them, with the fact that, in a neutral situation, at least one of the victims had completely failed to recognize Darren as her attacker.

 

In the third week of May, Jaywalker received word from the Housing Authority that a hearing on Darren and Charlene's apartment had been scheduled for early June. He checked with Carolyn Oates, who reported that she expected to submit her brief sometime in August, and estimated that the oral argument would be scheduled for November or December. That meant no decision on the appeal would be likely until early next year. Jaywalker knew there was no way they were going to be able to buy that much time with the Housing Authority. He decided their best bet would be to go forward with the hearing and then try to convince the examiner to put off making a decision for as long as possible. He even allowed himself the fantasy that the hearing might turn up a new lead of some sort.

 

Jaywalker met Darren at the Housing Authority's administrative offices on the afternoon of June 5th. He located Kenneth Metzger, the lawyer who would be representing the authority. Metzger explained that he had no “live” witnesses present, that all he intended to do was submit a certified copy of Darren's conviction.

So much for new leads.

Metzger asked if Jaywalker planned on contesting the truth of the document. Jaywalker assured him that he didn't. Together, they went into the hearing room. A printed sign on the door proclaimed

MILES MICHAEL
IMPARTIAL HEARING EXAMINER

The first thing Jaywalker did was to ask if all of the hearing examiners were impartial, or if it had just been their good luck to get one that was. His question drew a smile from Miles Michael, an athletic-looking black man who turned out to be every bit as impartial as his title claimed.

Jaywalker explained that he was prepared to concede the fact of the conviction, and was only asking that Mr. Michael reserve decision on Darren and Charlene's tenancy until the appeal had been decided. When Kenneth Metzger voiced no objection, Mr. Michael agreed.

It was a small victory, but in a war that had been marked with pretty much nothing but defeats, it was a welcome one. And although Jaywalker would never tell his colleagues that he'd stooped to appear on such a lowly administrative matter, he understood its importance to Darren
and Charlene. Sometimes being a criminal defense lawyer meant going before the Housing Authority or the Motor Vehicle Department, even the Taxi and Limousine Commission. Sometimes it meant visiting an inmate whose family couldn't afford the bus fare upstate. Sometimes it meant bringing along a book for that inmate to read, or a warm blanket to help him get through the winter. Whatever it was, you did it, and then you went home and thanked your lucky stars that you were fortunate enough to be on the giving end, instead of the receiving one.

 

The finishing touches were put on the appeal brief by the middle of August. The argument ran twenty-eight pages, and represented the combined efforts of Carolyn Oates and Jaywalker. The final wording was hers, and it was good. Jaywalker had to temper his excitement at reading it by reminding himself how few appeals were successful, and how, to the judges who read it, it would discuss just another rape conviction.

The brief was served upon the district attorney's office and filed with the Appellate Division that governs the Bronx and Manhattan. The next order of business was to sit back and wait for the D.A.'s brief in opposition. But sitting back and waiting was something that Jaywalker found impossible to do. So once again he aimed his old Volkswagen for the Bronx, to Castle Hill.

It had been almost two years since his first trip to the project, and things had been changing, bit by bit. Whereas at first he had been able to pretty much blend in, by now his face was just about the only white one in sight. On this particular day, he spotted only one other, an elderly, ruddy-faced woman whom he took to be Irish, though he had no
real way of knowing. She peered out from behind the drapes of a second-floor window. At one point they locked eyes, and she wagged a bony finger back and forth in his direction, her way of warning him that for a person like him, it was no place to be.