Bronx Justice. Joseph Teller

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СКАЧАТЬ 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.”

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