After checking with his source, Barnett had reported that an eighth would cost five thousand dollars. St. James said hed have to go down to Philadelphia to get the money. By the time he returned and was ready to make the buy, it was October 5.
Again St. James picked Barnett up in the Cadillac and drove to 127th Street, where this time he handed Barnett five thousand dollars in prerecorded bills. Again Barnett took the money and disappeared from view. Twenty minutes later-and Jaywalker knew it was no coincidence that it seemed to take twenty minutes each time, since claiming that it had made it easier for the witness to remember-Barnett reappeared. Only this time he never made it to the Cadillac. As Agent St. James watched from behind the wheel, members of the backup team swooped in and made the arrest. St. James, satisfied they had the right man, pulled away from the curb and drove off, just as he would have done had he been a real buyer.
Shaughnessey had him identify the glass vial from the first sale, and the paper bag and glassine envelope from the second one. The third package, the eighth of a kilo, hed never seen, of course. Not that Alonzo Barnett hadnt been charged with selling that, too. The Penal Law conveniently defines sale to mean sell, exchange, give or dispose of to another, or to offer or agree to do the same. Next time you share some of your marijuana with a friend or pass him a half-smoked joint, think about it. Its a sale.
With that, Shaughnessey announced that she had no further questions and resumed her seat at the prosecution table. Miki Shaughnessey had certainly done her job well, just as Trevor St. James had done his. Okay, so maybe hed put a bit of a spin on whatever Stump had told him about Barnetts initial reluctance to deal with him. And perhaps hed made all of the intervals twenty minutes in order to make things easier to remember on the witness stand. But the bottom line was, the three transactions had gone down pretty much as he described them. Alonzo Barnett had indeed sold him heroin, not just once but three times, if you wanted to count the aborted third sale. And even if you didnt count it, the backup team witnesses would soon enough testify to Barnetts possession of the eighth of a kilo, a crime every bit as serious as its sale, and one that carried the identical punishment.
So no matter how you chose to look at things, Alonzo Barnett had done precisely what the indictment accused him of. And what the indictment accused him of was repeatedly selling fairly substantial amounts of heroin. Not only was that serious stuff, it was bad stuff. But as Jaywalker rose now to begin his cross-examination, he couldnt afford to think about that, or to ask himself how he could possibly represent someone at trial whom he knew was guilty. Jaywalker had a job to do, and he knew only one way to do it. And that was to pretend that the man sitting next to him at the defense table was his own brother or his own son. Did the fact that he happened to be neither mean that he deserved any less than Jaywalkers best?
9
So help me out here, Agent St. James. You were brought up here from Philadelphia because the surveillance team was unable to observe Mr. Barnett making any sales. Is that correct?
The witness shifted slightly in his seat before answering, Only if you want to put it that way.
Well, said Jaywalker, you were brought up from Philadelphia, right?
Right.
And the surveillance team had been watching Mr. Barnett. Or, in your words, conducting intensive ongoing surveillance. Right?
Right, St. James agreed.
All twelve of them?
Im not sure exactly how many-
With binoculars, unmarked cars and secret outposts, no?
If you say so.
How about if Lieutenant Pascarella says so?
Miki Shaughnesseys objection was sustained. Which was just as well, because Jaywalker was ready to move on.
JAYWALKER: Now, this guy Stump. You say you dont remember his name?
ST. JAMES: Thats right.
JAYWALKER: Does the name Clarence Hightower refresh your recollection?
ST. JAMES: That sounds like it might be it. But remember, I only saw him and spoke to him a couple times.
JAYWALKER: Know anything about his six-page criminal record?
SHAUGHNESSEY: Objection.
ST. JAMES: No.
THE COURT: Well, hes answered the question. He doesnt know.
JAYWALKER: In fact, you dont know much of anything about him. True?
ST. JAMES: True.
JAYWALKER: And yet, when Stump told you that Mr. Barnett was spooked and didnt want to meet you, you chose to accept that at face value-
ST. JAMES: Yes.
JAYWALKER: rather than wondering if perhaps Mr. Barnett simply wasnt interested in helping anyone buy drugs. Correct?
ST. JAMES: Yes, I believed Stump.
JAYWALKER: This man you knew nothing about, not even his name?
ST. JAMES: I believed him.
Jaywalker moved on to the three transactions themselves. He had no interest in getting the witness to repeat everything hed said about them on direct. But he did have a point or two he wanted to make. First he wanted to ascertain whether St. James had been the sole undercover operative in the case, or if hed had a second officer nearby, shadowing his every move. That officer, had there been one, would have been referred to with a highly appropriate designation.
JAYWALKER: Were you working alone in this case, or did you have a ghost?
ST. JAMES: I was working alone.
JAYWALKER: No one close by, blending in?
ST. JAMES: No.
JAYWALKER: Either for your safety-
ST. JAMES: No.
JAYWALKER: or to confirm that everything youre telling us is true?
ST. JAMES: No.
JAYWALKER: Now, I notice that the third time you wanted to buy heroin, you ordered an eighth of a kilogram.
ST. JAMES: Thats correct.
JAYWALKER: Which is just over four ounces and therefore constitutes A-1 felony weight, for both sale and possession. Right?
SHAUGHNESSEY: Objection.
THE COURT: Overruled. The witness may answer the question, and then well move to another subject.
Meaning, no questions about the severity of the sentences involved, which might affect the jurors decision.
ST. JAMES: I dont know much about A-1 felony weight. Im a federal agent, and we dont deal with New York law much. Maybe the NYPD worries about those things. I dont know.
JAYWALKER: I see. Well, whose idea was it that you order an eighth of a kilo?
ST. JAMES: Lieutenant Pascarellas.
JAYWALKER: And who does he work for again? ST. JAMES: The NYPD.
JAYWALKER: So you just did what you were told to do?
ST. JAMES: Yes and no.
JAYWALKER: What does that mean?
It was the kind of question that gave the witness a chance to bury you, and hence the kind they told cross-examiners never to ask. Which didnt stop Jaywalker.
ST. JAMES: I always try to buy as much as I can.
JAYWALKER: Because it makes it worse for the guy whos selling to you?
ST. JAMES: No.
JAYWALKER: Because it makes you look better?
ST. JAMES: No, not at all.
JAYWALKER: Why, then?
ST. JAMES: Because it gets more narcotics off the streets and out of the hands of kids.
Not bad, thought Jaywalker. But even as he smiled at the witness for scoring a jab, he was ready with a counterpunch.
JAYWALKER: So you say your idea is to buy as much as possible?
ST. JAMES: Yes.
JAYWALKER: At the taxpayers expense?
ST. JAMES: [No response]
JAYWALKER: Until the worlds supply is exhausted or were all broke? Whichever happens first?
ST. JAMES: When we make seizures of drugs, we often recover a lot of the money weve spent. Many times we even come out ahead.
JAYWALKER: I see. How much money was recovered in this case?
ST. JAMES: If Im not mistaken, I believe your client had five hundred dollars on him when he was arrested.
JAYWALKER: Out of the five thousand youd given him. And thats not counting the sixteen hundred youd given him previously.
ST. JAMES: [No response]
JAYWALKER: Do you consider that a good return on the governments investment?
ST. JAMES: [No response]
JAYWALKER: And in terms of seizing drugs, how much was seized in this case, if you know? Not counting what Mr. Barnett had on him when he was arrested.
ST. JAMES: Not counting that? None.
JAYWALKER: Am I confused, or isnt the goal of an undercover operation to buy a little in order to seize a lot?
ST. JAMES: Sure, thats the goal. In the real world, it doesnt always work out that way.
JAYWALKER: I see. And theres another goal to buying drugs undercover, isnt there?
ST. JAMES: Im not sure I follow you.
JAYWALKER: Have you ever heard the expression moving up the ladder?
ST. JAMES: If its the same as moving up the food chain, yes.
JAYWALKER: Forgive me for dating myself. What does moving up the food chain mean?
ST. JAMES: It means trying to make a case not just against the subject youre buying from but against his connection, as well.
JAYWALKER: And his connections connection-
ST. JAMES: Yes.
JAYWALKER: on up the line?
ST. JAMES: Yes.
JAYWALKER: Hence the terms up the food chain or up the ladder?
ST. JAMES: Right.
JAYWALKER: And did any of that happen in this case?
ST. JAMES: No, it didnt.
JAYWALKER: One month, three government agencies, fourteen officers, six thousand six hundred dollars. And you didnt move up a single rung of the ladder. Or, as you might say, a single link in the food chain. Not one, right?
ST. JAMES: Happens.
JAYWALKER: Especially if youre not trying.
Miki Shaughnessey jumped up, asking that the comment be stricken, a request that Shirley Levine quickly granted. And although Jaywalker knew the judge never really got angry with him-they liked each other too much for that-sometimes she did a pretty good imitation, and this was one of those times. Ask questions, she snapped at him, right in front of the jurors. Dont make statements.
He could have simply said Sorry and moved his questioning on to some other subject. But with his especially if youre not trying comment now stricken from the record, the agents rather glib Happens would become the last word spoken on the matter, and the last to show up in the printed transcript. So Jaywalker decided to rephrase what hed said, only in question form.
JAYWALKER: Would you agree, Agent St. James, that as a general rule, working your way higher up in the distribution chain happens only when youre making a serious effort to make it happen?
SHAUGHNESSEY: Objection.
THE COURT: Overruled. The witness may answer.
ST. JAMES: The truth is, every once in a while you try as hard as you can, but in spite of everything you do, you just cant make a case against a sellers connection. At least not without jeopardizing your safety, the safety of your fellow officers, or both.