Bronx Justice

4

HEDGING BETS

Jaywalker busied himself preparing motions.

The days of the computer had not yet arrived, at least for a seat-of-the-pants solo practitioner like Jaywalker. That meant typing out a set of papers the old-fashioned way, on a trusty Remington, the kind that fit into a square black box and came without a cord, much less a battery. He moved for suppression of any statements that might be attributed to Darren as admissions or confessions, exclusion of any identifications of him that might have been tainted by suggestive police procedures, and a severance that would divide the case into four separate trials instead of one. He asked for court-ordered discovery of police reports, medical records, photographs, artists’ sketches and the like. He demanded particulars regarding the precise date, time and place of each of the crimes charged. He made copies, served and filed them, and waited for Pope’s written response.

Next Jaywalker contacted a private investigator. He called John McCarthy, a former NYPD detective who would go on to do work for F. Lee Bailey, among others. McCarthy was bright, capable, and would make a good appearance on the witness stand, if his testimony were needed. Jaywalker had him come to the office to meet Darren, and the three of them went over the facts of the case in as much detail as they knew them. He instructed McCarthy to use his contacts in the department to gain access to whatever police and housing authority records he could. He told him there would come a time when he’d want him to see if the victims would talk with him. Finally, Jaywalker asked him to spend some time in the Castle Hill area of the Bronx, where the attacks had taken place, on the outside chance that he might be able to locate the real rapist, assuming it wasn’t Darren. At that suggestion, McCarthy looked up from his notepad and stared at Jaywalker as though he were on drugs.

Jaywalker looked away.

Things slowed down. And Jaywalker had no complaint about that. A speedy trial, which is a defendant’s constitutional right—and these days his statutory right, as well—is in fact a defendant’s worst enemy. Time is his ally. Time for his lawyer and his investigator to do their jobs; time for the victims to grow less vindictive and more forgetful; time even for another attack to occur while the defendant’s presence elsewhere could be documented. And with Darren out on bail, time also brought the opportunity for him to get back to work, family and normalcy—if there was such a thing as normalcy for a young man facing eighty years in prison.

On a more practical note, time also allowed Jaywalker to attend to the rest of his practice, which he’d begun to neglect as he became immersed in Darren’s case. He tried a forgery case in federal court and came away with a lucky acquittal. A robbery defendant, whose victim had leaped out of a fourth-story window in order to escape his captors, pleaded guilty and accepted a five-year prison term. The victim had somehow survived a broken back and was now walking with a cane. Had he not, it would have become a murder case.

And on the personal front, time also gave Jaywalker an opportunity to get reacquainted with his own family, who’d seen precious little of him over the past few weeks. He prided himself on being an active, if not quite equal, partner in the raising of his daughter. Lately, however, his wife had begun to comment that he seemed to be distracted and complained about his growing habit of being absent even when he was present. If their daughter noticed, she didn’t say anything. Of course, she was only four. But kids didn’t miss much, he knew.

Jacob Pope’s response to Jaywalker’s motions arrived in the mail. First off, he supplied the locations and times of the crimes. As Jaywalker read the numbers and transposed them from military time to civilian, he could see that each of the attacks had taken place in the early afternoon hours. Even though he’d been expecting as much, seeing it in black and white came as a major blow. It meant Darren had no alibi. He hadn’t been at work during any of the incidents.

Jaywalker reacted almost viscerally. During those early weeks and months, his belief in Darren’s innocence had swung back and forth like an unseen but ever-present pendulum. One day Darren would look him in the eye and swear he knew nothing of the rapes, and Jaywalker would believe him with all his heart. The next day would bring some new fact or development that would point directly and inexorably at Darren, and Jaywalker would be filled with doubt all over again. The realization that he wasn’t going to be able to call a single witness to account for Darren’s presence on any of three separate days was a perfect example. And with each such setback, Jaywalker had to contend once again with the distinct possibility—indeed, the overwhelming probability—that maybe they had the right guy after all.

Pope’s response continued. He stated that he had no admission or confession of Darren’s to offer at the trial. He conceded that a pretrial identification hearing would be necessary, because a photographic lineup had been conducted, and a judge would have to decide if it had been fair or overly suggestive. He resisted supplying the defense with police reports the law didn’t require him to turn over yet. And he opposed the request for a severance, contending that all four attacks should be tried together, as one case.

The severance issue was one that bothered Jaywalker. Did he really want one grand roll of the dice, a single trial including all of the victims, winner take all? Or would it truly be better if the case were split up into four, so that a jury trying one part of it wouldn’t even learn of the other three attacks? The advantage to such an approach was obvious: they would avoid the prejudice that would flow from the sheer number of incidents and wouldn’t have to contend with a jury’s falling into a where-there’s-smoke-there’s-fire mindset. But there was an equally obvious downside, too: severance would give Pope multiple opportunities to convict Darren. They were looking at as many as four separate trials—five, if the remaining victim surfaced. He could win three or even four times, only to lose the last one, and still have Darren end up with a fifteen-or twenty-five-year prison sentence.

As the defense lawyer, Jaywalker had had no choice but to make the motion. Failure to have done so would have risen to the level of ineffective assistance of counsel, maybe even malpractice. More to the point, it was the right thing to do. But now, as he thought about it, he began to wonder if they shouldn’t be careful about what they asked for, on the chance that they might just get it.

He opted to postpone making a decision on the matter. It could wait, he knew, until such time as he and Pope had to argue the question in front of a trial judge. By that time, though, he would have to decide if he really wanted separate trials or would prefer for the judge to turn him down. There was a way to argue forcefully, after all, and a way to just go through the motions. Besides which, if his motion was turned down and they were forced to defend against all the charges in front of a single jury, and convictions resulted on all counts—as they almost surely would—the issue would have been preserved, and the judgment might well be reversed on appeal. Then, with retrials ordered, they would get a second bite at the apple—or four or five bites, to be more accurate.

The phone rang. It was John McCarthy, calling with the initial results of some legwork. By checking NYPD and Housing Authority records, he’d confirmed that a fifth victim, Maria Sanchez, had been attacked. But she’d been only fourteen, and her parents had refused to let her view photos, testify at the grand jury or otherwise cooperate with the investigation. About all McCarthy had been able to find out about her was that she’d lied about her age to her attacker, telling him she was only twelve, and he’d let her go. McCarthy had also gotten hold of the various descriptions of the perpetrator given by the victims following the attacks. To McCarthy, it seemed there were more than the usual discrepancies that invariably arose. All the victims had described a man slightly heavier and a bit older-looking than the twenty-two-year-old Darren. And although all of them had reported things the attacker had said to them, none of the reports included any mention of a stutter. He was anxious to take a shot at interviewing the victims himself.

Jaywalker thought about it, but only for a moment. “No,” he said. “I want you to hold off. I want Pope’s answer on the polygraph first.”

“These witnesses don’t belong to him, you know.”

It was true. Despite the common perception that someone is a prosecution witness or a defense witness, those labels only attach at trial and are determined by which side calls the individual to the stand. Unlike expert or character witnesses, “fact witnesses,” as they’re called, are the exclusive province of neither side; their only allegiance is to the facts themselves. Or so the theory goes.

“You’re right,” Jaywalker told McCarthy. “But I can’t afford to make waves right now. You reach out to the victims, the first thing they’re going to do is pick up the phone and call Pope or Rendell. They may even have been instructed to do so. That could sour Pope on the polygraph. And the way I look at it, John, that little black box may be the only real chance this kid has. So I need you to hold off for now.”

“Hey,” said McCarthy, “it’s your show, Jay.”

They went over a few other things before hanging up. McCarthy was right on both counts, Jaywalker knew. They needed to interview the victims, and it was Jaywalker’s show. And when it came down to the tough calls, he had to make them and hope he was right. On this one, he had to play it safe.

Which didn’t stop him from wondering if maybe his biggest mistake hadn’t been deciding against becoming a doctor.

October came. The motions Jaywalker had made and Pope had opposed were formally submitted to the Part 12 judge for consideration, a process that would take several weeks. This was a bail case, after all, and there was no particular urgency on anyone’s part to put it on a fast track. The fact that there were motions outstanding meant they would be looking at another postponement on the next date, as well, the 18th.

Again Jaywalker played catch-up with the rest of his cases, and reintroduced himself to his wife and daughter. They made it to a museum and a movie, and he even created a pizza from scratch, managing not to burn the bottom of the crust too badly. They paid a visit to a farm stand and bought the biggest pumpkin they could find. It took up the entire backseat of the Volkswagen, weighed about a ton, required all three of them to lug it into the house and cost Jaywalker half the retainer that Marlin Kingston had pressed into his hand a month earlier.

Not that Marlin hadn’t been as good as his word, following up with small sums every time they met at court or at Jaywalker’s office. And to a lawyer accustomed to getting most of his income in the form of small checks, smaller money orders, bail receipts conditioned upon a defendant’s return to court or hand-scribbled IOUs, cash was always a delight, even as it had a way of burning a hole in Jaywalker’s pocket. But no matter. As his daughter assured him, it was a great pumpkin, Charlie Brown.

The 18th came, and with it the first court appearance before the man who would become Darren Kingston’s trial judge.

Even though it’s a jury that renders the verdict, the judge can affect that verdict in many ways—some major, others minor; some obvious, others subtle; some entirely legitimate, others highly inappropriate. The judge decides if the defendant remains out on bail or is returned to custody once the trial commences. He rules on motions, acting as both judge and jury at pretrial hearings. He decides which items of evidence will be allowed in and which will be kept from the jury. A judge can shape the outcome of a trial by sustaining or overruling a single objection, or by the way in which he treats one lawyer or the other in front of the jurors, or by something so seemingly insignificant as the inflection of his voice when he reaches a key word or phrase during his charge to the jury. So it not only matters who the trial judge is, it matters a lot. Any lawyer who doubts that ought to think seriously about another career.

Max Davidoff was in his mid-to late-sixties, but his face was deeply lined and his hair nearly white. To Jaywalker, he looked like what a judge was supposed to look like. Prior to being appointed and then elected to the bench, he’d been the District Attorney of Bronx County. In other words, Jacob Pope’s boss. Jaywalker did his best to assure the Kingstons that that fact alone was no cause for either disqualification or concern. Indeed, he told them, it was former defense lawyers who often turned into the toughest judges, having learned over the years that defendants weren’t always to be believed. Former prosecutors, who had spent those same years realizing that cops weren’t, either, occasionally became the defense’s best friends.

Wherever the truth really lay, the fact was that Max Davidoff had proved himself a pretty good judge. The book on him—and Jaywalker sought out a handful of Bronx Legal Aid lawyers to compile an oral scouting report—was that Davidoff ran a reasonably relaxed courtroom, tended to be fair to both sides, was reasonably knowledgeable when it came to matters of law, and treated attorneys with respect and defendants with compassion. Above all, he had a reputation for letting a lawyer try his case his way. Jaywalker could have asked for more, but not much more.

The case was called. Jacob Pope rose and explained that there were motions pending back in Part 12. Jaywalker suggested a date two weeks off. The case was adjourned.

Outside the courtroom, Darren’s family didn’t seem to know whether to be amused or irritated that they’d missed a day’s work and traipsed halfway across the Bronx just to witness the sixty-second performance they’d been treated to. Jaywalker was in the midst of explaining how over time the family’s presence could influence the judge’s attitude toward Darren when Pope came out of the courtroom and got his attention.

“Could I talk to you a minute, Mr. Jaywalker?”

“Sure. But it’s not Mr. Jaywalker, it’s Jay.”

“Jay.”

He excused himself to the Kingstons and followed Pope over to the large window that overlooked the building’s center courtyard. He wondered if he was about to hear that Darren had once again been spotted by one of the victims.

“I spoke to my boss,” Pope said. “We’re willing to give your man a polygraph.”

“Wonderful!” said Jaywalker, making no attempt to hide either his surprise or his pleasure.

“It’ll be with the usual stipulation,” Pope continued. “I don’t know if you’re familiar with that or not.”

“Vaguely,” Jaywalker lied. Stipulation?

“If he passes, we D.O.R. the case. If he flunks, the jury gets to hear that he did. I’ll go ahead and set up a date with Detective Paulson, who’ll administer the test. I suggest you call him in a day or two and get the date. I know he’s pretty backed up right now, so it’s likely to be a month, at the least.”

“Good enough. And I appreciate this,” Jaywalker felt compelled to add. Because he really did.

“Let me put it this way,” said Pope, all business all the time. “I’ve got four girls who say they’re sure of their identifications. I believe them. But who knows? I could be wrong.” And with that, he shrugged, turned and walked away.

Jaywalker lost no time in sharing the news with the Kingstons, who seemed every bit as elated as he was. And if Darren was secretly apprehensive about the sudden reality of undergoing a lie detector test, he never once showed it.

Jaywalker went over the ground rules, explained that a “D.O.R.” meant a discharge on one’s own recognizance, the functional equivalent of a dismissal of all charges. He added that the flip side, the defense’s agreement to let the jury know if Darren flunked the test, was unenforceable. Pope no doubt knew that, and had to assume that Jaywalker did, too. But as a practical matter, the bargain generally served its purpose. Defendants who flunked polygraph exams tended to fold their cards soon afterward and plead guilty.

“Next,” said Jaywalker, “we’ve got to decide whether we want to go into the test cold, or schedule our own private one beforehand.”

Marlin was the first to speak. “We leave it up to you, Jay,” he said.

“You can’t leave it up to me. It’s not my money. And it could cost anywhere from three hundred to five hundred dollars.”

Marlin took a moment to ponder that. In addition to the strain of having posted Darren’s bail, he had Jaywalker’s fee to contend with and was also responsible for paying John McCarthy, the investigator. The burden had to be enormous for him.

None of the other family members spoke. Inez may have been the ranking expert on child rearing, and Jaywalker had the sense that she ran a pretty tight ship at home, but on matters of money, they all deferred to Marlin.

“Let’s take the private test first,” he said finally.

Jaywalker caught himself wondering if that amounted to a hedge of sorts. Did Marlin, too, harbor second thoughts about his son’s innocence? But it was a question that went unasked and, therefore, unanswered.

“Fine,” said Jaywalker. “I’ll set it up as soon as I can. Okay with you, Darren?”

“Okay with me, Jay.” His broad smile completely trumped his father’s hesitancy, and with it, Jaywalker’s own doubts. Once again, it was as though the case was shadowed by a giant overhead pendulum, which would swing one moment in the direction of guilt and the next moment back to innocence.

In a year and half of private practice, and in two before that with Legal Aid, Jaywalker had never had a client take a polygraph examination. There was a reason for that. Polygraph results—unlike fingerprint evidence, blood typing (and now DNA tests), ballistics comparisons, hair and fiber analyses, and even handwriting and voice comparisons—were then, and continue to be, inadmissible at trial. The rule that excludes them is a sound one. Controlled studies have demonstrated their accuracy rate to be anywhere from fifty to ninety percent. Even a ninety-percent certainty leaves much to be desired in a system that prides itself on requiring proof of guilt beyond a reasonable doubt before there can be a conviction. As for a fifty-percent accuracy rate, that’s the equivalent of a coin toss.

That said, polygraphs can still be useful tools. For one thing, it’s always interesting, and occasionally quite revealing, to watch a suspect’s reaction to the suggestion that he submit to a test, particularly when he’s been told that the test is guaranteed to reveal deception. Some suspects will hem and haw, make up excuses, or even admit their guilt at that point. Jaywalker had tried the tactic several times already with Darren, warning him that failure would bring disaster. Each time, Darren had, without flinching, reaffirmed his eagerness to take the test.

Secondly, the exam by its nature includes an in-depth interview of the subject, something that law enforcement personnel are always eager to conduct. Many a suspect has been coaxed or tricked into a revealing admission during the interview, occasionally even into an outright confession.

Finally, whatever its intrinsic worth or evidentiary value, a favorable polygraph result becomes something to hang one’s hat on. A defense lawyer will leak it to a newspaper reporter; a prosecutor will cite it as a reason to recommend dismissal of a case; and a judge will refer to it in granting that dismissal.

Hypocrisy? Junk science elevated to mainstream thinking? Perhaps. But Jaywalker wasn’t going to let such philosophical considerations deter him. Jacob Pope had offered them a way out, and they were going to do their best to take advantage of it.

Over the next few days, Jaywalker asked around about polygraph operators and came up with a handful of names. The one he kept hearing was Dick Arledge, a man who taught and trained other examiners, and who’d refined the technology to the point of developing and designing his own machines. Jaywalker called his office, set up an appointment, and notified Darren of the date and time, and the fee he would have to bring. He also phoned the district attorney’s office and learned that they’d scheduled their exam for early December. That was good; it gave the defense ample time to get their own test done and evaluate the results.

Jaywalker didn’t bother telling either Pope or Detective Paulson, the polygraphist he’d chosen, that he was having Darren examined on his own. Just as Marlin had hedged his bet by opting for the private test, so was Jaywalker hedging by his silence. That way, if Darren were to pass, great; he would go into the D.A.’s test more confident than ever. And if he were to flunk, they could always pull out of the second one. “I’ve done a little checking,” he could always tell Pope. “I never knew how unreliable these things are. We’ll take our chances at trial.”