Guilty as Sin (12 page)

On redirect, Miki Shaughnessey got Dr. Kasmirov to agree that, absent a breakdown of the percentages of heroin, lactose, dextrose and quinine in the drugs seized from Clarence Hightower, it was nothing more than
speculation that they'd come from the second Barnett sale. After all, weren't those three additives very common ones? Yes, they were, Kasmirov agreed. “And,” Shaughnessey asked her, “regardless of whatever Hightower possessed or didn't possess, is there any question in your mind that what Alonzo Barnett sold twice and was caught with on a third occasion contained heroin?”

“No,” Dr. Kasmirov replied. “About that there's absolutely no question at all.”

 

That night, as Jaywalker lay in the darkness on his side of the bed, too tired to keep his eyes open but too wired to sleep, his wife asked him about the chart he'd brought home with him.

“What does it show?” she wanted to know.

“It shows that this guy Hightower ended up with some of the identical heroin that Barnett sold to the undercover.”

“I understand that,” she said. “But what does
that
show? What does it
mean?
What's the jury supposed to make of it?”

“It could mean Barnett gave him some of it,” said Jaywalker. “But Barnett swears he didn't.”

“And of course you believe him.”

It was one of their private little jokes, that Jaywalker invariably believed whatever his murderers, rapists, thieves and drug dealers told him. Not always, he'd tell her. But once they'd gotten to know him and trust him? Once they understood that he was really on their side and would fight for them even if he knew the full truth? Yeah, then they'd tell him the truth.

Almost always.

“Suppose Hightower had simply bought some of the
same stuff?” she asked him. “Directly from the same guy Barnett was buying from?”

“Didn't happen,” he assured her. “Barnett insists his source wouldn't sell to anyone but him. Refused to even meet with Hightower, or with his so-called friend from Philadelphia. It's the only reason Barnett's in the hot seat now.”

“So what, then?”

“I don't know,” Jaywalker confessed. “Maybe the agents thought Hightower was a pain in the ass, coming up on them like he did while they were trying to arrest Barnett. Those can be scary situations. Buncha white guys surrounding a brother in the middle of Harlem. Who knows? Maybe they got pissed off and flaked him.”

“Flaked him?”

“Took some of the drugs they'd skimmed off from the second buy and planted it on Hightower.”

“They
do
things like that?” she asked.

“Occasionally.”

“Did
you?
”

“
Moi?
No. But I know that kind of thing used to happen back then, and I'm sure it still happens today.”

“Great system you work in,” she said. And even in the dark, he could feel her turning away from him.

“So what am I supposed to do? Pretend I don't know stuff like that goes on? Not argue that cops lie? Roll over and give up?”

“No,” she said, her voice softening. “What you're supposed to do is roll over and try to get some sleep.”

Which turned out to be easy for her to say. For another hour Jaywalker continued to lie in the darkness, listening to the rise and fall of his wife's breathing. He'd been able to go only so far with Olga Kasmirov and her lab reports, he knew. Even as he'd been busy with his chart-making,
he'd noticed blank stares coming his way from the jury box. Sure, he'd had them there for a moment when the numbers had matched perfectly, Hightower's drugs with what was missing from Barnett's. But his wife was right, as she almost always was. What inference were the jurors supposed to draw from that match that could possibly steer them in the direction of acquitting Alonzo Barnett? Especially when Jaywalker himself couldn't come up with an answer to that question.

He lay awake for another forty-five minutes. At one point he reached down to the floor by his side of the bed and groped around until he found the pen and pad of paper he always kept there. Blindly, he scribbled down two words. It was the last thing he remembered before finally falling asleep.

Hightower

H
elping his wife make their bed that Saturday morning, Jaywalker stepped on something with his bare foot. When he bent down to see what it was, he found a crumpled piece of paper with scribbling on one side of it. It took him a moment to recognize his own handwriting and another moment to decipher it.

 

Call Miki

 

was all it said. With no pockets in his pajama top—and no pajama top, either, for that matter—he held on to it and didn't put it down until he got to the kitchen. There he poured himself a glass of iced tea and grabbed a handful of Cheez-It crackers. Breakfast, Jaywalker style.

“So who's this Miki?” his wife wanted to know.

“The D.A. I'm up against,” he said between mouthfuls.

“You're going to call her on a weekend?”

“Yeah,” said Jaywalker. “I got an idea.”

His wife rolled her eyes but said nothing more. She was familiar with Jaywalker and his ideas. It was when he was most creative that he was also most dangerous. Like the
time he'd decided their living room needed a fireplace. For two full years they'd lived with a blue plastic tarpaulin draped over an entire wall. But eventually they'd ended up with a pretty cool fireplace. So she'd learned to get out of the way and give her husband room while she feared for the worst and hoped for the best.

It took him a while to get hold of Miki Shaughnessey's home phone number, because, like those of all A.D.A.'s, it was unlisted. But with a little lying and cajoling, he got it.

“How'd you get my number?” was the first thing she wanted to know.

They spent a few minutes on that, before moving on to the purpose of Jaywalker's call. “I want you to have Clarence Hightower's drugs tested by Dr. Kasmirov, so we can hear the percentages of the various additives. That way we'll know for sure if there's a match.”

“What difference could it possibly make?”

His wife couldn't have said it better.

He spent the next five minutes trying to convince Shaughnessey that it
did
make a difference. He even went so far as to try out his flake theory on her. But if her reaction was any indication of what the jury's might be, it left Jaywalker with second thoughts about whether his argument would fly.

Finally she relented, but he strongly suspected it was just to get him off the phone. And even then, all she said was that she'd run it by her supervisor.

“Promise?” he asked, reduced to begging.

“Promise.”

“Cross your heart and hope to die?”

“Stick a needle in my eye.”

 

First thing Sunday morning, Jaywalker got a call from his former client Kenny Smith. Naturally Smith had his
home number. All his clients and former clients did. It was what you did when you refused to own a cell phone but still wanted to be accessible to important people. Like your clients on Rikers Island, say.

“What's going on?” Jaywalker asked Smith.

“Can we talk?” Kenny asked.

Ever since his voice had been identified on a wiretap ten or twelve years back, Smith had been totally paranoid about saying more than hello and goodbye on the phone. And while Jaywalker considered it unlikely that anyone might be listening in on either of their phones, he wasn't willing to bet on it, having made an enemy or two in law enforcement over the years. Besides, he had absolutely no idea what Kenny was about to tell him. The last thing he wanted to do was assure him it was okay to talk, only to hear a murder confession and then have it played back in court six months from now.

“Have you had breakfast?” he asked Kenny.

“No. You wanna meet somewhere?”

“Nah,” Jaywalker told him. “Come on over here.”

And the thing was, he didn't even need to give Kenny the address. “Do me a favor,” he told his wife. “Make some more of whatever you're making?” It was a drill she'd become familiar with over time. It came down to a choice of having strange people drop over from time to time, or having her husband go out even more than he did to meet them in what she considered scary neighborhoods. So she reached into the refrigerator for a couple more eggs.

“It's Kenny,” he told her.

Make that four more eggs.

It was only while he was putting a third plate on the kitchen table that Jaywalker realized why Kenny had called him. A week or two ago he'd asked Smith to look around
and see if he could locate one Clarence Hightower, more commonly known as Stump. No doubt Kenny was coming to report on his progress—or lack of it. That was certainly something they could have discussed on the phone, wiretap or no wiretap. But no big deal. It was only four eggs, five pieces of toast and a quart of coffee, after all. He'd once gone so far as to suggest to his wife that she learn how to make grits, but she'd drawn the line at that.

 

Kenny showed up an hour later. “So you want the good news?” he asked Jaywalker. “Or the bad?”

“Both.”

“The good news,” said Smith, “is I found your man Hightower. The bad news is he ran away before I could lay the suspeena on him.”

Kenny had a problem pronouncing certain words. Not that it would have disqualified him from becoming President or anything like that.

“Ran away?”

“Bet.”

Back in 1986,
bet
passed for Yes. As in
you bet.

“And check this out,” said Kenny between mouthfuls. “'Cordin to people who knows him, dude was gettin' some sorta
allowance
from someone. Ev'ry Friday, he'd come around with, like, a hundred bucks in his pocket—cash money.”

“Welfare?” Jaywalker asked. “SSI?”

“You ain't lissenin', Jay. I said
ev'ry
week, not ev'ry two weeks or ev'ry month.”

“So what was it?”

“I dunno what it was,” Kenny admitted. “I only know what he
tol'
people it was.”

“And what was that?”

“Tol' people it was from workin' for his uncle.”

“So?” asked Jaywalker.

“So I axed around,” said Kenny. “And far as anyone knows, the guy never worked a day in his life. And he don't even
have
no uncle.”

Jaywalker rubbed his temples, trying to will his headache to go away. So Clarence Hightower was a liar. Great. What else was new?

 

It was noon Sunday by the time Miki Shaughnessey called Jaywalker back as she'd promised to do. But two words into the conversation, he could tell from the tone in her voice that she was going to disappoint him.

“My supervisor says there's no way. To begin with, Hightower's case is officially sealed, so it would take a court order to do anything. And since none of the NYPD lab's stuff is computerized, it would take them weeks just to find out if those drugs still exist or have already been destroyed. So he says we can forget about it.”

“Terrific,” was all Jaywalker could think to say. Well, that and one other thing. “Who
is
your supervisor, anyway?”

“You know him. Dan Pulaski.”

Long after he'd hung up the phone, Jaywalker continued to seethe. Pulaski's point about Hightower's case being sealed, while technically true, was an obstacle only if you wanted to let it be one. The computer story was a bit more plausible. These days, everything's on computers, no more than a click away. But back in 1986 computers were only just beginning to show up in the system. And they were doing it with all the speed that feet had once begun to show up on fish.

Still, Jaywalker's distrust of Daniel Pulaski was so deep that he couldn't help wondering if he might not be onto something. The only problem was, he had absolutely no idea what that something might be.

Offer of proof

“T
he defendant calls Kenny Smith.”

With those five words, Jaywalker began his defense of Alonzo Barnett. And got no further. Miki Shaughnessey was on her toes, both figuratively and literally, asking to approach the bench. There she told Judge Levine that she wanted an offer of proof.

An offer of proof is pretty much what you might guess it is. It's a brief oral statement from the lawyer who's putting a witness on the stand, and it's intended to show what he or she intends to prove through the witness. That way the opposing lawyer can argue to the judge, out of the hearing of the jury, that the witness shouldn't be permitted to testify because whatever he has to say is irrelevant, immaterial, hearsay, privileged or otherwise objectionable.

The offer of proof was also one of Jaywalker's pet peeves, and he lost no time in sharing that sentiment with Levine and Shaughnessey. “How come it's only when the defense calls a witness that there's got to be a preview? Why should we assume that I know the rules of evidence any less than the prosecution does?”

“We don't assume that at all,” the judge assured him.
“But we do know how
creative
you can sometimes be. So I'm going to grant Ms. Shaughnessey's request and ask you to let us know what Mr. Smith's going to tell us.”

“Then you'd better excuse the jury,” Jaywalker suggested, “because I have a feeling this is going to take a while.”

The judge agreed and ordered the jurors led out of the courtroom. One or two of them could be heard grumbling over the fact that they were being banished before they'd heard a single word. Once the last of them had left, the judge signaled the court reporter that the colloquy they were about to have would be on the record. That way, were she to prohibit the witness from testifying, the offer of proof would be preserved for an appellate court to consider. Finally she turned to Jaywalker.

“Now,” she said, “who is Kenny Smith, and why are you calling him?”

Jaywalker stood, though he needn't have. The jury was gone, and Shirley Levine wasn't into formality. But Jaywalker worked better on his feet, especially when it was an uphill climb. “Kenny Smith is a private citizen,” he began. “A private citizen and convicted felon who happens to be a former client of mine.”

“Don't tell me you lost a case.”

“It was a long time ago.”

“And what is Mr. Smith going to tell us?”

“He's going to tell us things that, if believed by the jury, will lead them to conclude that Clarence Hightower is and continues to be a paid informer of law enforcement.”

Okay, it was a stretch. But at some point Sunday night it had occurred to Jaywalker that the uncle Hightower was getting weekly payments from might just be named Sam. As in Uncle Sam.

“What sort of
things
is Mr. Smith going to tell us?” the judge wanted to know.

“Among others, that Mr. Hightower was, at least until recently, receiving regular weekly cash payments from an undisclosed source. That he was given favorable treatment consistent with his being an informer on at least three separate occasions, first at the time of his arrest, later in court, and finally with the state parole authorities. And that when Mr. Smith attempted to serve a subpoena on him, Hightower responded by running away.”

“Suppose for a moment that you're right about Mr. Hightower's being an informer,” said the judge. “How is that relevant to this trial?”

“I can think of two reasons right off the bat,” said Jaywalker. “First, it means that the jury's been deliberately lied to. Second, it means that Hightower is under the control of the prosecution. I want him brought here so I can call him as a defense witness. If the prosecution won't do that, I want them sanctioned. I want a missing witness charge. And third, if Mr. Hightower was indeed an informer, my client has a legitimate entrapment defense.”

Jaywalker sat down. It was more than he'd wanted to say, but he was beginning to get angry—angry and frustrated. Those who knew him knew it could be a dangerous combination.

“Ms. Shaughnessey?” said the judge.

Miki Shaughnessey rose. “The issue isn't whether or not Mr. Hightower has ever been an informer, or even if he is one now. So far as I know, he never has been and he isn't now. But none of that matters. The issue is whether he was acting as an informer back in September of 1984, when he introduced Agent St. James to the defendant for the purpose of buying drugs. And the answer to that question is an unequivocal no. I even have a document,
an official New York Police Department document that Mr. Jaywalker has seen with his own eyes, that makes that crystal clear.”

“Is that true, Mr. Jaywalker?”

“It's true that I have seen such a document, and that the document says that no informer was utilized in this case.”

“So why,” asked the judge, “isn't that the end of it? If he wasn't an informer in this case, there can be no entrapment as a matter of law. Wouldn't you have to agree, Mr. Jaywalker?”

“Yes,” Jaywalker was forced to concede.

“And Ms. Shaughnessey would therefore be right in wanting Mr. Smith's testimony precluded. Right?”

“Right again.”

“So why isn't that the end of the inquiry?”

“Ahhh,” said Jaywalker, back up on his feet. Here, finally, was the best part. The part that had kept him up most of the previous night, long after Kenny Smith had finished eating breakfast and left, long after Miki Shaughnessey had called back with word that Daniel Pulaski had refused to authorize the retesting of Hightower's drugs. It was the part that had finally dawned on Jaywalker not too long before dawn itself had. The part that had prompted him to pick up the phone, call Kenny Smith and tell him to be in court at nine-thirty sharp that morning.

Lawyers are advocates, paid to argue positions. Those positions can be as lofty as a client's factual innocence or as mundane as whether a particular witness should be addressed as Miss or Ms. Sometimes the position is supported by the facts, the law and the equities of the issue, and when those three considerations align, arguing is easy. But there are other times, times when a lawyer must—
must
—argue just as vigorously while standing on
ground so shaky that it feels as though it's going to give way any second. So fearful had Jaywalker been that his position on Clarence Hightower bordered on the frivolous that at one point Sunday night he'd thought about showing up in court Monday morning wearing hip boots and carrying a shovel.

And then the perfect, irrefutable argument had come to him. Perfect because it was absolutely bombproof. And irrefutable because it was dictated by nothing less than the United States Constitution.

“It's not the end of the inquiry,” he now told the judge, “for the simple reason that for the life of me, I can't remember my client ever requesting a trial in front of either the police commissioner or the district attorney. Nor, most respectfully, did he request a bench trial in front of Your Honor, though we did actually give that serious consideration. What my client requested was a trial by jury. And whether or not a particular individual was acting as an informer in a particular case becomes a question of fact. Nothing more, nothing less. As a result, the NYPD doesn't get to decide that fact, not even by writing something on a piece of paper. Mr. Pulaski and Ms. Shaughnessey don't get to decide that fact. Nor do I. Not even you get to decide that fact, Your Honor. The only ones who get to decide the facts in this case are those twelve people we just sent out of the room and down to the principal's office.”

And the thing was, he was right. He knew it, Miki Shaughnessey knew it, and—most importantly—the judge knew it.

Not that Shaughnessey didn't continue to contest the point. First she argued that the court had the discretion to preclude testimony that promised to be so vague as to be nothing short of speculative. Then she complained that
permitting the testimony would force her to recall witnesses on rebuttal and perhaps even call additional ones, causing the trial to go on endlessly. Next she pointed out that she was being put in the impossible position of being forced to prove a negative. Finally she asked the judge to force Mr. Smith to testify first in the jury's absence, to see if anything he had to say deserved to be heard by the jury.

“You're suggesting an
audition?
” was Jaywalker's comment.

In the end, Shaughnessey's objections were overruled one by one. The Constitution has a pretty neat way of ensuring that.

JAYWALKER: What do you do for a living, Mr. Smith?

SMITH: I press clothes in a dry cleaner's, and I work for Mr. Jaywalker.

JAYWALKER: Have you ever been convicted of a crime?

SMITH: Oh, yeah, about fifteen of them. But none since I last got out of prison. So far it's been eight years, two months and seven days. And it's going to stay that way.

JAYWALKER: How long have you worked for me, Mr. Smith?

SMITH: Eight years, two months and seven days.

THE COURT: Listen carefully to the questions, Mr. Smith. He asked you a different one this time.

SMITH: I know, ma'am, but the answer is the same. The same day I got of prison, I goes to see Mr. Jaywalker. It was the first thing I did, before I even went home. He'd promised me when I went in that he'd have a job waiting for me if I came to see him, and he did as he said.

THE COURT: And did he have a job for you?

SMITH: He sure did. He made me his Official Unofficial Investigator. The unofficial part is on account of I've got a criminal record, so I can't get a license or carry a gun or get paid by the state.

THE COURT: And do you still work for him?

SMITH: From time to time I do, whenever he asks me.

And as long as it don't conflicate with my other job.

THE COURT: I see. Thank you, Mr. Smith. Sorry for the interruption, Mr. Jaywalker.

Any other lawyer would have been beaming at the inadvertent endorsement of his largesse. Jaywalker, who was unlike any other lawyer, had no need of endorsements and didn't normally appreciate being interrupted during his examination of a witness. But even he had to suppress a grin at how nicely things had just worked out.

Pretty much as he'd planned.

JAYWALKER: And did there come a time, Mr. Smith, when I asked you to do something in connection with this case?

SMITH: Yes, there did.

JAYWALKER: When and what was that?

SMITH: About two weeks ago. You asked me to try to find a man named Clarence Hightower.

JAYWALKER: And did you try to find him?

SMITH: Yes.

JAYWALKER: And?

Smith described the places he'd gone and the things he'd done over a two-week period of searching for Hightower. Jaywalker had given him a crash course in the rules of evidence that morning, and Kenny was a pretty quick study. Understanding that whatever he'd heard on the street would be hearsay, he omitted the business about the weekly cash allowance Hightower was rumored to be getting. And having been warned that he couldn't speculate or offer his opinion about anything, Smith refrained from suggesting that the money was supposedly coming from an uncle who didn't exist. Still, Kenny was permitted to describe the one-and-only meeting he'd had with Hightower. That was neither hearsay nor opinion.

JAYWALKER: When did that occur?

SMITH: Two nights ago. Just after midnight Saturday. So I guess that was more like very early Sunday morning.

JAYWALKER: Where was that?

SMITH: I finally tracked him down in a bar on 125th Street called the Red Rose Tavern. I cornered him and told him I needed to talk to him for five minutes.

JAYWALKER: What did he say?

SMITH: First he said he wasn't Clarence Hightower. But I told him I knew who he was. Then he agreed to talk with me, but said he had to use the men's room. Although that's not exactly how he put it. He'd been drinking beers, he said, and a lot of them. And I guess all them beers ran right through—

THE COURT: Yes, I think we get the picture, Mr. Smith. What happened next?

SMITH: I said okay, but I waited, like, right outside the door for him. After about five minutes, when he hadn't come out, I went in. The men's room was completely empty, and the window was wide-open. Seems he'd ducked out before I could give him the suspeena.

SHAUGHNESSEY: Objection. Move to strike the last part.

SMITH: Suspayna.

THE COURT: Sustained. Stricken.

SMITH: Suspen—

THE COURT: It's not your pronunciation, Mr. Smith. It's that you're not allowed to give us your conclusion. You told us the men's room was empty and the window was open. That's all you know for a fact.

SMITH: Oh, no, ma'am. I checked the stalls. I know for a fact he had to have gone out that—

The rest of his answer was drowned out by Miki Shaughnessey's objections and Shirley Levine's gavel. But it hardly mattered. Just as Kenny Smith had man aged to put two and two together, so could the jurors.

Not that Shaughnessey didn't do her best to undermine Smith's testimony on cross-examination. First she spent a full half hour going over the details of his prior criminal record. If the jurors ended up convinced that for many years Smith had been a career criminal, they also learned that his assertion that he'd been arrest-free for the past eight and a half years was true. And by candidly owning up to his past crimes without trying to minimize them, Kenny was able to offset much of the damage. Then Shaughnessey brought out that Smith had never had—or even
seen,
for that matter—a photograph of Hightower. Next, that Smith's imposing size could very easily have frightened Hightower—if indeed it had been Hightower—into fleeing out of a natural fear that he was about to be harmed.

SHAUGHNESSEY: Anyway, why didn't you give him the subpoena as soon as you saw him?