Guilty as Sin (16 page)

But even as Alonzo Barnett had acknowledged that he'd have to answer the question if it were put to him, he never had told Jaywalker what his answer might be. Eventually Jaywalker had stopped pressing him, figuring that if and when the time came, Barnett would deal with it as best as he could. Though to Jaywalker's way of thinking, it had always been a matter of
when,
rather than
if.

And now they were there.

SHAUGHNESSEY: Did you indeed go to 345 West 127th Street on each of the three occasions?

BARNETT: Yes, I did.

SHAUGHNESSEY: Exactly as Investigator Bucknell testified?

BARNETT: Yes, ma'am.

SHAUGHNESSEY: And did you go to that building to obtain heroin from your connection?

BARNETT: I went there to obtain heroin. I have a bit of problem with your use of the term
connection.
I went to the person who I'd agreed to introduce Mr. Hightower and his friend to. When he refused to meet with either of them, I agreed to take the money and get the drugs for them. But if you want to call him my connection, I'm willing to use your term.

SHAUGHNESSEY: Thank you. And did you in fact go to the twelfth floor, as Investigator Bucknell testified you did?

BARNETT: No, ma'am, I did not.

SHAUGHNESSEY: You did hear Bucknell say that?

BARNETT: Yes, I did. Absolutely.

SHAUGHNESSEY: Are you telling us he lied when he said that?

BARNETT: I honestly don't know why he said that. He may have been lying. He may have been mistaken. He may have made it up to cover for the fact that he wasn't able to see where I went. All I can tell you is the truth. And the truth is, I didn't go to the twelfth floor.

SHAUGHNESSEY: Ever?

BARNETT: Ever.

SHAUGHNESSEY: So when Investigator Bucknell testified that he rode in the elevator with you and saw you press the button for the twelfth floor, that never happened?

BARNETT: That's right. That never happened. If that man had gotten onto the elevator with me, I would have immediately stepped off and walked out of the building. He has
cop
written all over him.

SHAUGHNESSEY: So where
did
you go?

BARNETT: To the eighth floor.

SHAUGHNESSEY: What apartment?

BARNETT: Eight-oh-five.

SHAUGHNESSEY: Whose apartment was that?

BARNETT: A man they use to call “One-Eyed Jack.” Got the nickname because he'd lost an eye in a shoot-out. I never did know his real name. But not too long after my arrest, the word got around that he was a snitch, an informer for the police. So he left town in a hurry.

SHAUGHNESSEY: And just how do you happen to know all that?

BARNETT: I've been on Rikers Island going on two years now. Guys don't have much to do out there except talk about other guys. And One-Eyed Jack was one of the guys they talked about.

SHAUGHNESSEY: And you expect me to believe that?

BARNETT: Most respectfully, ma'am, I don't care too much what you believe. What I care is what these folks sitting over here believe.
[Points to jury]
And I suspect they can recognize the truth when they hear it.

To her credit, Miki Shaughnessey plunged on without taking time out to wipe the egg off her face. She got Barnett to admit that with the exception of the twelfth-floor/eighth-floor business, just about everything else her witnesses had testified to was true.

“So why should they lie about that?” she asked him.

“I have no idea,” said Barnett. “Maybe you should ask them.”

His response marked the only time in a lengthy cross-examination when he verged on testiness. But with that single exception, Alonzo Barnett had been that rarest of witnesses who somehow managed to exceed even Jaywalker's expectations. Without once raising his voice or losing his composure, he'd taken just about everything a talented cross-examiner had thrown at him and turned it to his advantage. When Miki Shaughnessey finally gave up a few minutes later, Jaywalker resisted the temptation to conduct a redirect examination aimed at rehabilitating his witness.

There was simply nothing to rehabilitate.

“The defense rests,” he announced.

“And the People?” asked Judge Levine.

“The People intend to call rebuttal witnesses,” said Shaughnessey.

Just as Jaywalker had expected her to.

 

That night Jaywalker replayed the day's events in his mind, as he always did when he was on trial. They'd ended with an early recess, with Shirley Levine granting Miki Shaughnessey's request to go over to Wednesday to give her a chance to assemble her rebuttal witnesses. But Shaughnessey's long cross-examination of Alonzo Barnett had clearly been a high-water mark for the defense.

If only Barnett hadn't taken the bait and stepped out of character at the very end, thought Jaywalker. Until then, he'd done everything right. Not content with simply stating that he had no idea why the prosecution's witnesses would choose to lie about something so minor and tangential as which floor in a building he'd gone to, he'd let
himself slip and add “Maybe you should ask them” to his answer.

And now she was going to do just that, with her rebuttal witnesses.

“Idiot.”

“Who, me?”

For a moment he mistook the voice for his client's and imagined they were talking together in the pen adjoining the courtroom. Though he couldn't explain the surrounding darkness. Then he realized that he was lying in bed and the voice had been his wife's, thick with sleep.

“Who's an idiot?” she asked again.

“My client.” And he proceeded to describe Alonzo Barnett's exchange with the prosecutor.

Jaywalker had fully expected his wife to agree with him; she usually did. But she surprised him this time. Instead of sharing his annoyance over the impertinence of Barnett's comment, she seemed far more interested in what had led to it. “So why
did
they lie about that?” she wanted to know.

“You're missing the point,” Jaywalker told her.

Or was she?

The thought would keep him awake another hour. In his annoyance at his client for botching the extra-credit question and ending up with a score of only 100 instead of 105, was it possible that Jaywalker himself had missed the point? Was the reason Investigator Bucknell had lied about the twelfth floor business more complicated than Jaywalker had figured?

He'd learned a lifetime ago that cops lied. Hell, he'd been one of them, only on the federal payroll, so he knew it firsthand. But they didn't lie indiscriminately. They lied selectively, to cover their own asses or those of their partners or team, to make an arrest stand up here or a
search pass muster there. In other words, they lied only when there was something to be gained by lying—or something to be hidden.

So what could they possibly be gaining by specifying that Alonzo Barnett had ridden the elevator to the twelfth floor, when he swore he hadn't and they had no knowledge of where he'd actually gone? And what could they possibly be hiding by denying that he'd gone to the eighth floor instead, as he insisted he had?

All Cretans are liars

“T
he People call Thomas Egan,” Miki Shaughnessey announced once the trial resumed Wednesday morning.

For once, Jaywalker—whose organizational skills fell somewhere between extremely compulsive and certifiably insane—found himself at a total loss. He had no subfile for a Thomas Egan, no entry in his master index, no report of any sort. He'd never even
heard
of Thomas Egan.

“May we approach?” he asked Judge Levine.

Up at the bench, he took a page straight out of the Prosecutor's Primer and asked for an offer of proof. Only he did it slightly less formally than Shaughnessey had with Kenny Smith.

“Who the f—is this guy?” he asked. Actually said it that way, the
F
standing on its own, just in case Shirley Levine might have been in a rare testy mood.

Shaughnessey was more than happy to comply. “Captain Egan happens to be the commanding officer of the Manhattan Narcotics Division,” she explained. “Just as he was in the fall of 1984, when this case was made. As such, he not only oversees all field operations but is the police department's official custodian of all records pertaining to confidential drug informers. Mr. Jaywalker has
suggested through his questioning that Clarence Hightower may have been acting as an informer.”

“
May
have been?” Jaywalker interjected, before Levine silenced him with a withering stare.

“He's also insinuated,” Shaughnessey continued, “that the task force was remiss in failing to make a serious effort to identify the defendant's source of supply. Captain Egan's testimony will put both of those notions to rest once and for all.”

“Mr. Jaywalker?” said the judge.

Jaywalker could do nothing but stand there and shrug helplessly. The truth was, he'd never held out much hope that the whole twelfth-floor/eighth-floor business would fly with the jury, or that Hightower had truly been acting as an informer. But with nothing else to talk about, he'd been reduced to probing those possibilities. After all, the way the burden of proof operated, it wasn't up to him to convince the jurors about anything on these points; it was up to the prosecution to dispel any lingering doubts as to the defendant's guilt. Now Miki Shaughnessey was about to do just that, apparently, and in very impressive fashion.

It didn't hurt that Captain Egan was an extremely good-looking man with a thick mane of silver hair and a pair of piercing Paul Newman blue eyes. Or that he was well-spoken, with an economy to his words, no trace of an outer-borough accent, and none of the usual cop-speak that infected the testimony of so many of his fellow officers.

Shaughnessey began her direct examination with a run-through of Captain Egan's background and responsibilities within the police department. It was hard to tell which was more impressive. At one time Egan had aspired to be a priest, but the violent murder of a younger
brother had steered him toward law enforcement. There he'd risen steadily through the ranks to his present position, accumulating a long list of medals, awards and commendations along the way.

Only when he sensed that Shaughnessey was done with the preliminaries and about to get down to business did Jaywalker pick up his pen and get ready to do some serious note-taking. By sitting back during the résumé portion and trying to look mildly bemused, it had been his hope to suggest to any jurors looking his way that this was nothing but window dressing that had no real relevance to the case. The problem was that no jurors had been looking his way. All eyes were glued to Thomas Egan's silver hair and blue eyes, just as all ears were attuned to his rich baritone voice.

Then, just when Jaywalker was prepared for the worst, Miki Shaughnessey surprised him again. “At this point,” she told the judge, “I think it might be best if we were to approach the bench.”

“Come up,” said Levine.

Once both lawyers and the court reporter had formed a semicircle in front of the judge, Shaughnessey explained that she had an application to make. “Captain Egan is about to name and discuss a highly valued confidential informer of the NYPD. In order to protect that informer from public exposure and possible retaliation, the People ask that the courtroom be cleared and the door locked for the balance of the witness's testimony.”

Jaywalker was about to oppose the application, but Levine silenced him with a raised hand. Then she stood back and addressed the jury.

“I'm sorry,” she told them, saying the words as though she truly meant them. “But something has come up that requires me to confer with the lawyers at some length. I
know it's still early, but I'm going to have to excuse you for twenty minutes or so. Go have a cup of coffee, or take a walk around the block. Don't discuss the case. Don't speculate as to what we're talking about. Just be back by eleven o'clock. Okay?”

She was answered with a chorus of sixteen “Okays” from the twelve regular jurors and the four alternates. Jaywalker forced back a smile. If all judges treated people the way Shirley Levine did,
jury duty
might cease to be thought of as a pair of four-letter words.

As he pivoted to walk back to his seat, Jaywalker got another surprise. During the colloquy at the bench, someone had quietly slid into Miki Shaughnessey's chair at the prosecution table. It took Jaywalker a second to recognize him, but recognize him he did. Staring back at him was Daniel Pulaski, the assistant district attorney who'd had the case originally, before handing it off to Shaughnessey. Jaywalker, never a fan, gave Pulaski a perfunctory nod. As far as he was concerned, the man was a lowlife, a rarity in an office pretty much filled with decent people. Not only that, but he was nowhere near as good to look at as Miki Shaughnessey was.

But look at him was apparently something Jaywalker was going to have to do. As soon as the jurors had filed out of the courtroom, it was Pulaski, and not Shaughnessey, who rose to address the judge and make the case for sealing the courtroom.

 

PULASKI: If it please the court, Captain Egan is here because I subpoenaed him. I did that out of an awareness of the People's continuing obligation under
Brady versus Maryland.

 

Under normal circumstances, this would have sounded like nothing but good news to Jaywalker. Under
Brady,
the
prosecution is supposed to promptly turn over anything that might reasonably be regarded as exculpatory—in other words, helpful to the defense.

But these weren't normal circumstances. First of all, this was the prosecution's rebuttal case, and Miki Shaughnessey had already said that Captain Egan was there to put to rest any notion that the task force hadn't tried hard enough to identify Alonzo Barnett's source of supply, as well as any suggestion that Clarence Hightower was an informer. Beyond that, there was quite another reason for Jaywalker to be suspicious. Daniel Pulaski.

So Jaywalker listened carefully as Pulaski spoke, hoping for the best, but fully expecting the worst.

 

PULASKI: It has recently come to my attention that a witness called by the People earlier in this trial may have given answers that were less than a hundred percent complete. That witness, I have no doubt, was testifying in good faith and, to his credit, was doing his best to protect the identity of a confidential informer. But as a result of his testimony, the record as it now stands contains what I would characterize as a few minor inaccuracies. I subpoenaed Captain Egan so that we could correct those inaccuracies and set the record straight. However, in order to do that, it will be necessary for Captain Egan to name and reveal the cooperation of a highly valued confidential informer who continues to work with the police department in that capacity. For that reason, the People request that all persons not immediately involved in the trial be excluded from the courtroom during the balance of his testimony.

 

Jaywalker couldn't believe his ears. He would have loved to believe that the prosecution was about to admit not a
few minor inaccuracies
but a lie that was so huge as to be absolutely verdict-changing. That in spite of all their denials and assurances, in spite of that official-looking form Pulaski had shown him weeks ago, Clarence Hightower actually
had
been acting as an informer when he'd approached Alonzo Barnett. And if that was so, then it
had
been entrapment, and the case had just gone from a dead-bang loser to a toss-up.

Which meant, of course, that it couldn't possibly be true.

Pulaski was up to something. He had to be.

For confirmation, Jaywalker looked over at Miki Shaughnessey, suddenly reduced to the status of a spectator seated at the prosecution table. As soon as she caught his glance, she averted her eyes and devoted her full attention to playing with a paper clip.

She was being shoved to the sidelines.

And whatever witness had introduced the
minor inaccuracies
during the course of his testimony was being hung out to dry.

“Mr. Jaywalker?”

He looked back to the judge, who was evidently awaiting his response to Pulaski's application.

“The defense objects,” he told her. Then he followed up with a pretty good three-minute, off-the-cuff argument against closing the courtroom.

Not too many years back, excluding the public for substantial portions of a trial was something done on a fairly regular basis. An undercover officer, an informer, a child or the victim of a sex crime was about to testify? Seal the courtroom. Standard operating practice. Then the Supreme Court, the real one, down in Washington,
reminded everyone that under the Constitution a defendant was entitled not only to a trial but a
public
trial. Ever since, judges have been compelled to devise briefer and less restrictive alternatives than simply tossing everyone out and bolting the doors.

Which was the point Jaywalker made, with some degree of success. He made it succinctly, without being overly pedantic about it, and then he sat down. Shirley Levine didn't need him to teach her the law. She continued writing for a minute before looking up and speaking.

“After full consideration,” she said, “I've decided that we'll keep the courtroom open right up to the point where the witness is about to identify the informer. Then—” She looked from Pulaski to Shaughnessey and back again. “Which one of you is going to do the direct examination?” she asked.

“I am,” they answered in tandem.

“I am,” Pulaski repeated.

Jaywalker watched Shaughnessey as she silently bent the paper clip back and forth. He could imagine the metal growing hot to the touch. Finally it broke. “Mr. Pulaski is,” she said.

“Please let me know when we're right at that point,” said the judge, “and we'll ask the spectators to step out.”

Ask,
not
tell.

They don't make judges like that anymore.

 

Once the jurors were back in their places, the trial resumed. The judge introduced Daniel Pulaski to them and explained that he'd be conducting the balance of Captain Egan's testimony for reasons they shouldn't speculate about. Miki Shaughnessey fumed silently. But Jaywalker, as sorry as he felt for her unexpected benching, couldn't
dwell on it. He was about to hear Clarence Hightower branded an informer. Wasn't he?

PULASKI: Captain Egan, did there come a time when you learned that some slightly misleading testimony may have been given in this trial?

EGAN: Yes, there did.

PULASKI: And did you learn that from me?

EGAN: Yes. Apparently an officer who testified earlier in the trial had some concerns and reported them to A.D.A. Shaughnessey. As I understand it, she in turn took them to you. And you called me.

This was all improper testimony, as far as Jaywalker was concerned. Not only were the questions leading, but they called for hearsay. The right way to do it would have been to recall the offending witness and give him an opportunity to correct his misstatements. Still, there was a decision for Jaywalker to make, and make quickly. A good lawyer is someone who knows when to object. A
really good
lawyer is someone who knows when
not
to. And right now something in Jaywalker told him to keep quiet, that the ultimate payoff was going to be worth the
see-what-good-guys-we-are
preliminaries. So he let it go.

PULASKI: Who was that officer, and what about his testimony may have been misleading?

EGAN: The officer was Investigator Lance Bucknell, from the New York State Police. And the testimony in
question was with regard to his following the defendant into a building located at 345 West 127th Street.

Shit,
thought Jaywalker, angrily enough that for a moment he worried he might have said it out loud. This wasn't going to be about Clarence Hightower at all. This was going to be about something totally different. Something that would benefit the prosecution and end up doing absolutely nothing for the defense.

Why should he have expected anything else from Daniel Pulaski?

PULASKI: Exactly what portion of Investigator Bucknell's testimony may have been misleading?

EGAN: As I understand it, Investigator Bucknell testified that he got onto the same elevator as the defendant and saw the defendant press the button for the twelfth floor. That wasn't entirely accurate.

PULASKI: What actually happened?

Again, this was all going to be hearsay, and Jaywalker could have kept it out had he wanted to. But not only was Egan going to tell the jurors that Bucknell had lied—or given
slightly misleading testimony,
to use his euphemism—he was going to tell them what had actually happened. What would the upshot be? Jaywalker had no way of knowing. All he could do at this point was tighten his seat belt and hang on for the ride.

EGAN: What actually happened was that Investigator Bucknell made it into the building, just as he said. But by the time he did, the elevator door had already
closed and the defendant was riding up in it. Bucknell watched the lights on the panel above the door and saw that the elevator stopped on the eighth floor. He left the building and reported that observation to his supervisor on the task force, Lieutenant Dino Pascarella.