When a mans drowning, hes desperate enough to grab at any straw that comes drifting his way, however unlikely it is to keep him afloat. So as much as he hated to do it, the following day Jaywalker made it his business to pay another call on Daniel Pulaski, the assistant district attorney on Barnetts case. He did so unannounced, to make sure Pulaski wouldnt have time to prepare himself for whatever it was Jaywalker wanted. It was the same reason he went there in person, rather than making his request over the phone. He wanted to see Pulaskis reaction when he popped the question.
Pulaski rewarded him by making him wait forty-five minutes before seeing him. So, he said, after theyd exchanged semipleasantries. What can I do for you?
You can tell me, said Jaywalker, what you know about Clarence Hightower.
Who?
If it wasnt a genuine expression of complete ignorance of the name, it sure came off as a damned good imitation of one.
Clarence Hightower, Jaywalker repeated. He was arrested at the same time and place as Alonzo Barnett, and by the same cops.
Never heard of him, said Pulaski.
Do me a favor and check your file.
Pulaski looked at him as though hed been asked for a personal loan. Jaywalker readied himself to hear No, or some more profane form of it. But Pulaski surprised him. Only for you, Jaywalker, he said. And got up, walked across the room and pulled a file out from under a stack of others.
Why? Because Im such a prince?
No, said Pulaski. Because youre such a pain in the ass. And I know if I dont do it, youll go over my head to my boss, or to the judge, or to the fucking mayor.
Which Jaywalker took as a compliment, or at least as much of a compliment as the man was capable of delivering. He sat and waited while Pulaski thumbed through the contents of the file.
Okay, here we are, he said after a moment. Youre right. Then, reading from the file, Hightower, Clarence. Companion case. Misdemeanor possession of heroin. No disposition shown.
Pled to a discon, Jaywalker told him. Time served. Never violated on his parole. Terminated early, in fact. And now he seems to have disappeared.
So?
So I want to know if hes a CI, said Jaywalker. Or was on this case. Purposely using the same initials that cops and prosecutors did for a confidential informer.
Pulaski searched the file further, until he found a pink sheet of paper. He pulled it out and studied it. Then he said, Nope. And when Jaywalker said nothing, Pulaski slid the sheet across the desk that separated them.
Jaywalker looked at it. There was a heading, a case number and the names of the officers involved, some of them detectives, others federal agents or state police investigators. Halfway down the page was a printed item that read Confidential Informant, followed by a blank. The blank had been filled in in ink, in capital letters: NONE.
So much for grasping at straws.
If Hightower hadnt been an informant, linking his high-pressure tactics to law enforcement, then Alonzo Barnetts entrapment defense had just gone down the toilet.
6
With Alonzo Barnett stripped of his only plausible defense, Jaywalker could easily have considered himself off the hook. Here was a defendant, after all, who continued to insist upon a trial in spite of the overwhelming odds against him. And the irony of the situation was hardly lost on Jaywalker. Last time out hed brushed aside a clients hesitation at rolling the dice, only to come up snake eyes. This time it was the client who was being reckless, not Jaywalker.
And the way the system was set up to work, it was Barnetts decision to make, not Jaywalkers. Every defendant, no matter how demonstrably guilty he may be, has an absolute right to a trial, guaranteed by the constitutions of both the United States and the State of New York. And Alonzo Barnett had made it clear that he intended to avail himself of that right. But it would be a trial in name only, an exercise in going through the motions. A charade of a trial. Over in civil court they actually have a term for it that they use when the defense literally doesnt show up and the plaintiffs case is permitted to come in unopposed.
An inquest, they call it.
Which is pretty much what Barnetts trial would have been, had Jaywalker not been the lawyer for the defense. Because going through the motions was something he simply didnt know how to do. In his world, there were no charades, no inquests. He would continue to treat Barnetts case as an absolutely must-win trial. The actual chances of winning were irrelevant. Even the fact that there was no chance of winning was irrelevant.
Why? his dumbfounded listener would ask him. Why knock yourself out on behalf of some career criminal whos admitted his guilt, has absolutely no defense, but wants to go through with a trial out of nothing but sheer stubbornness?
By way of an answer, Jaywalker would point out that the listeners problem wasnt really with the defendants right to a trial, however doomed. If he insisted on exercising that right, you wouldnt criticize me for sitting next to him and going through the motions, would you? After all, somebodys got to do it. So to fault me for being the one to sit there growing hair like some kind of Chia Pet would be the equivalent of blaming the Washington Generals just for showing up to be the designated losers to the Harlem Globetrotters, something they do night in and night out.
You see, Jaywalker would explain, its only when I stop simply going through the motions and start to take my job seriously that you begin to have a problem. Its not until I really try my hardest to win that you begin asking me how can I possibly represent someone I know is guilty. And my answer to you is simple.
How can I not?
What he wouldnt say, and what he wouldnt even admit to himself at the time, was that in fighting his hardest to win Alonzo Barnetts case, Jaywalker was hoping to beat back some personal demons. The sting of that recent conviction still smarted, still kept him up at night. Suppose he could follow up losing a case he should have won-or better yet, should never have tried in the first place-by winning a dead-bang loser? Wouldnt pulling off something like that go a long way toward evening the score? Wouldnt it at least buy him some small measure of redemption?
All that said, without an entrapment defense, Alonzo Barnett was pretty much left with no defense at all. Jaywalker would have to settle for attacking the testimony of the prosecutions witnesses and combing their reports-once he finally got them from Pulaski-for inconsistencies. Hed have a sample of the drugs tested by an independent chemist to make sure it was really heroin. Hed even try to line up character witnesses for Barnett, although putting them on the stand would open them up to all sorts of damaging cross-examinations.
Tell me. Is your opinion of the defendants reputation affected in any way by the fact that hes been selling heroin for the past twenty years? Or that he has five felony convictions?
Okay, maybe no character witnesses.
But how about Barnetts boss, the restaurant owner hed been working for at the time of his arrest? But Pulaski would no doubt use Barnetts employment to show he hadnt needed to deal in drugs but had made a conscious choice born out of greed. Maybe there was some way to put the defendants two daughters on the stand, to show what a loving father he was?
I see, Pulaski would say. And perhaps you can tell us, young lady, just why it was that your sister and you were removed from your home and placed in foster care, even before your fathers latest arrest?
It seemed that every idea Jaywalker came up with had a downside to it, a downside that far outweighed its upside. Well, he decided, there was still Clarence Hightower. Put on the witness stand by the defense, he might be able to show the jury how reluctant Barnett had been to get back into the business of dealing. While that might have no true legal significance, it was at least something. Yet Jaywalker had already struck out trying to find Hightower. And since it turned out that the man hadnt been working as a CI, it meant law enforcement wasnt responsible for knowing his whereabouts or duty-bound to make him available to the defense.
Although Jaywalker prided himself on doing his own investigative work, he also recognized that there were limitations to the practice. The first was when he needed to call an investigator to the stand as a witness. The second was when he needed someone who could go to a neighborhood and blend in better than he himself could.
Jaywalker was white. Alonzo Barnett and Clarence Hightower were both black. Yes, today theyd be African-American, but this was 1986, and back then they were black. So Jaywalker picked up the phone and dialed Kenny Smiths number.
Kenny wasnt exactly an investigator. Not in the sense that he was licensed or had a carry permit, or would make much of an impression if ever called to testify. What Kenny was, was a former client of Jaywalkers and a friend. And Kenny was not only black but lived up in Harlem, as had Alonzo Barnett until his arrest, and Clarence Hightower until his vanishing act.
Kenny showed up at Jaywalkers office an hour later. Standing a full six foot five inches, at forty he still looked like the professional basketball prospect hed once been until good friends and bad decisions had combined to derail his dreams, even if theyd failed to wipe the broad smile off his face. Kenny said hed never heard of Clarence Hightower, but hed be more than happy to see if he could find him.
Jaywalker handed him a subpoena, just in case Kenny were to get lucky. It wasnt a judicial subpoena, the kind that had to be signed by a judge. Jaywalker was concerned that if he went to Levine, Pulaski might find out about it. So hed used an attorneys subpoena, which was just as good. Well, almost kinda sorta.
Im afraid the most I can pay you is a couple hundred bucks, he told Smith, knowing that only investigators whose names were on an approved list could submit their hours and get reimbursed through the system. But Ill pad my voucher, make it look like I was out looking for him myself.
Dont worry about it, said Kenny. I owe you.
Which was true, Jaywalker would have had to admit. Hed gotten Kenny out of more than a few jams over the years. But still, didnt Smiths comment have an awfully familiar ring to it?
A few days later, more out of frustration than anything else, Jaywalker sat down at his desk-hed had one in those days-and knocked out what he called a Demand for a Supplemental Bill of Particulars. In it, he asked that the prosecution be directed to furnish him a laundry list of things, including the names of trial witnesses, all reports theyd prepared and any past disciplinary actions taken against them. He wanted not only the lab reports and chemists notes, but the right to an independent analysis of the drugs by his own expert. He requested more specificity regarding the precise times and locations of the various sales. And then, even though hed seen the answer with his own eyes, he asked whether any confidential informers had been involved in any way with the case. Did he distrust Daniel Pulaski? Yes, as a matter of fact. But that wasnt the point. Pulaski was only the assistant district attorney. Hed caught the case after it had already been made by New York City detectives, New York State Police investigators and federal agents. Maybe he didnt really know if thered been a CI involved. Maybe that pink sheet of paper with NONE inked on it didnt know, either.