From that necessary distinction has grown an arcane and almost unheard of defense. Borrowing from the principles of contract law, some clever defense lawyer postulated years back that if someone aids a transaction by helping the buyer rather than the seller, it follows that he can be no more guilty of sale than the buyer is. Take, for example, a buyer who speaks only English, whos going to purchase drugs from a seller known to speak only Spanish. To protect himself from being overcharged or short-weighted, the buyer enlists a bilingual friend to come along and act as an interpreter, either as a favor or for a fee. The friends only role is to translate for the buyer; hes never even met the seller. In theory, the friend, should he be arrested, can argue that he acted solely as the agent of the buyer and therefore cant be convicted of sale. Criminal facilitation, perhaps, for having assisted in the overall transaction, but not sale. And while Alonzo Barnett was facing multiple counts of sale, nowhere in the indictment was there a count charging him with criminal facilitation, an oversight that left Jaywalker free to argue that his client had merely been acting as an agent for the buyer.
In theory, at least.
In practice, it never seemed to work out that way. Despite spending an entire day searching the case law, Jaywalker was unable to find a single case where a defendant had actually been acquitted on agency, or a single instance where a judge had been reversed for refusing to instruct the jury on the defense.
Still, he tucked the idea away in the back of his head, in a subfile he labeled Hail Mary Plays.
The following day Jaywalker got a call from the red-faced, two-fisted Irishman whod be taking over the case from Daniel Pulaski.
Hi, she said, sounding neither red-faced, two-fisted, nor even particularly Irish, for that matter. My names Miki Shaughnessey, and Im the new assistant on the Alonzo Barnett case.
Jaywalker found himself momentarily speechless.
Are you there? he heard her asking.
Yes, Im here. Its just that I was expecting someone moremore-never mind.
Ive got some lab reports for you, said Shaughnessey. I can send them out to you, if you like. Or you can stop by and pick them up.
He was at her 8 °Centre Street office twenty minutes later. Miki Shaughnessey was as different as could be from what hed expected, right down to the spelling of her first name, which Jaywalker read off a piece of paper taped to her door, the permanent plaque having not yet arrived. She was also as different as could be from Daniel Pulaski. And not just because she was strawberry blonde, petite and cute. While those things made her good to look at, this was 1986. Jaywalkers wife was very much alive back then, and he was very much in love with her. It would only be after her death that he would look elsewhere for consolation, first to the confines of his bed, then to the bottle, and eventually to other members of the female persuasion.
No, the reason Miki Shaughnessey was an improvement over Daniel Pulaski had less to do with her looks than it did with her openness. Jaywalker had sensed as much from the moment of her initial phone call. Pulaski would have held on to the lab reports for as long as possible. Hell, hed done just that for twenty months so far. Then, at the last possible moment, hed have sent them to Jaywalker by Third Class Mail. Shaughnessey had not only called him to say she had them, but had actually invited him to come over to pick them up. And while part of Jaywalker would miss doing battle against the likes of Pulaski, right now hed settle for Shaughnesseys openness.
So, she was telling him now, I understand that Im about to go up against one of the best.
Dont believe everything you hear. He brushed her off with characteristic modesty. And you must be good, or Pulaski wouldnt have picked you to try this case. I hear hes a big shot over in Investigations now.
Not yet. His transfer doesnt actually take place for another six weeks. And while I appreciate his vote of confidence in me, I feel like Im being thrown to the wolves. Not only does he give me an A-1 felony for my first trial here, he puts me up against you.
Dont worry, Jaywalker told her. Im sure youll do just fine. And it was true, he knew. Because while he would have pulled no punches against a prick like Pulaski, hed never take advantage of a novice. Sure, once the opening bell rang, hed do everything he could for Alonzo Barnett, but that everything wouldnt include playing dirty. And he knew that Shirley Levine would go out of her way to make Shaughnesseys first trial a fair one, too.
But even as he was telling Miki Shaughnessey not to worry, Jaywalker had already begun to. Because tucked into her little speech were several things that immediately raised red flags for him. First was the revelation that Daniel Pulaskis transfer wouldnt take place for another six weeks. The Barnett trial was only two weeks away and would last two weeks at most. Had Pulaski wanted to, he could easily have tried it himself before going over to Investigations. Then there was the fact that Miki Shaughnessey was being entrusted with an A-1 felony as her very first trial in the office. Sure, it was a winner from the prosecutions point of view. But still, it was kind of like handing a brand-new assistant a murder case first time up to the plate. Why would Pulaski take a chance doing something like that, especially when he himself knew the case inside out? Why not let Shaughnessey second-seat him and learn by watching how it was done? Or, if he really wanted to give her some on-the-job training, have her try it with him in the second seat?
Why was Pulaski bailing out?
And what was he himself missing?
Dont be paranoid, Jaywalker told himself. But it was hard for him to take his own advice. Paranoia wasnt exactly a prerequisite for being a good defense lawyer, but it sure came in handy from time to time.
They talked for another twenty minutes. Jaywalker assured Shaughnessey that he wouldnt oppose an adjournment of the trial if she felt she needed one. She agreed to let him know what witnesses she intended to call, along with the order in which she planned on calling them, as soon as she figured those things out. So why is your guy going to trial? she asked at one point. I mean Her voice trailed off, leaving the obvious unsaid, that it seemed futile on the defendants part, futile and self-destructive.
Jaywalker answered her with a shrug. It happens, he said.
She nodded as though she understood. She might be inexperienced, Jaywalker decided, but she seemed like a quick learner and a straight shooter. Shirley Levine was a good judge and Alonzo Barnett a nice man. Together they would have a good trial, the four of them. And when it was over, Barnett would shake Jaywalkers hand, thank him for doing his best, and go off someplace upstate to spend the rest of his life sitting in a cage. For doing a guy a favor. All so a bunch of politicians up in Albany could outshout each other over which of them was toughest on crime.
Even back as early as 1986, Jaywalker knew he could keep doing this work only so long before it would drive him totally nuts, before it would send him rummaging through the bottom of his closet and digging out his gun from his DEA days. Before it would make him want to blow away the sheer insanity of these stupid drug cases, for once and for all.
7
Alonzo Barnett is sitting here at the defense table today for one reason, and one reason only, Jaywalker told the jury. And thats because against his own self-interest and at his own peril, he did what he thought was the right thing to do. He returned a favor. He repaid a debt. In Alonzo Barnetts eyes, another man had quite literally saved his life several years earlier. And when that man came calling and begging for help, Mr. Barnett at first said no, he couldnt help him. He said that over and over again, in fact. He said it on six different occasions. Until the other man put it a different way. You owe me, is how he put it. And as Mr. Barnett thought about it, he realized that the other man was right, that Mr. Barnett did in fact owe him. So he relented, and he did the favor. And because he did the favor, he was arrested and charged with a series of very serious crimes.
Thats why he sits here today. And thats why you sit where you sit today, to render judgment on what Mr. Barnett did almost twenty-one months ago.
It was one of the shortest opening statements Jaywalker had ever made or, for that matter, would ever make. It was shorter than Shirley Levines preliminary explanation of the rules that govern criminal trials, shorter by almost ten minutes than Miki Shaughnesseys opening, shorter by a full two days than the time it had taken them to pick a jury of twelve regular jurors and four alternates.
Because there was simply nothing else for Jaywalker to say. He couldnt talk about entrapment, because Clarence Hightower hadnt been an informer working for law enforcement. He couldnt talk about agency, because if you were to really analyze Barnetts role in the transactions, the principal hed been working for had been Hightower. And Hightower had wanted to obtain drugs in order to sell them to a buyer. A buyer whod turned out to be an undercover agent.
Call your first witness, Judge Levine told Miki Shaughnessey.
Jaywalker reached across the defense table and retrieved a subfile marked Pascarella. True to her word, days earlier Shaughnessey had told him the names of the witnesses she was going to call and the order in which she expected to do so. His initial impression of her had been borne out by everything that had happened since. Where Daniel Pulaski had been two-faced and closefisted at every turn of events, Shaughnessey was open, honest and aboveboard. If she truly represented the next generation of prosecutors at Special Narcotics, the office would soon be rivaling the New York County District Attorneys in terms of the integrity of its staff. Furthermore, over the past two days Shaughnessey had demonstrated that she was more than just a pretty face. Despite her inexperience, shed held her own during jury selection, displaying a quick wit and a level of comfort that a lot of seasoned lawyers never achieve. For two full days shed matched Jaywalker challenge for challenge as they whittled an initial pool of a hundred and twenty jurors down to a final sixteen. If the jurors seemed to like Jaywalker and his client-and he always made it his business to see that they did-they seemed to like Miki Shaughnessey every bit as much.
The jury they ended up with struck Jaywalker as a pretty middle-of-the-road group, neither lockstep pro-prosecution nor bleeding-heart pro-defense. Which, as far as he was concerned, meant that hed already lost round one. A fair and unbiased jury was great if you happened to have the facts and the law on your side. If you didnt, those same qualities were likely to work against you.