'It's not hearsay at all,' said Jaywalker, who for all of his idiosyncrasies, knew his evidence. 'It's not being offered for the truth of the statement. It's being offered only to show his state of mind, and to explain why he did what he did next.'
He could have added that he'd be calling his client's doctor to the stand later on-Drake had made certain of that by choosing the wasp fork-but he decided not to tip his hand. Better to let Firestone blunder into that by accusing Drake of making it all up.
THE COURT: Overruled. Step back. The answer will stand.
JAYWALKER: Who told you the next reaction could kill you?
DRAKE: My doctor. The doctors and nurses in the emergency room. All the reading I've done about it. I have to be very, very careful.
JAYWALKER: So what happened when you noticed the wasp flying around inside the car?
DRAKE: I opened the windows, and I asked my wife to try to get it out or kill it. But she wouldn't. She was still angry with me, and she refused. At one point, it landed on the windshield. There was a newspaper on the console, between the seats. I grabbed it, rolled it up, and tried to swat the thing.
JAYWALKER: And?
DRAKE: I missed it, and it began flying around again like crazy. I must have made it angry or something, because all of a sudden it was like it was trying to get me, buzzing all around my head, trying to get at my eyes. I tried to slow down, but I must have had my right foot on the gas pedal instead of the brake, because the more I tried to slow down, the faster we went. And at some point I must have lost control, because all of a sudden I looked up and we were in the wrong lane. I tried to downshift, to force the stick shift into second or third, but I couldn't, I couldn't.
And here Drake gestured with his left hand, showing how hard he'd tried to slam the thing into a lower gear. And his demonstration was so convincing, and his voice so anguished, that Jaywalker nearly missed it.
He'd used his left hand, instead of his right.
Jaywalker had been standing back by the railing, the bar that separated the well of the courtroom from the spectator section. He tended to do that when he wanted his witness to speak louder, to project his voice. Now he walked to the podium and pretended to be studying his notes while he tried to figure out the significance of what had just happened. But a rushing noise and a pounding at his temples made concentrating all but impossible. Had he been the only one to notice Carter Drake's error? Was it possible he'd only imagined it? He turned toward the audience section so that his own body would be facing the same way the witness's was. No, Drake had definitely gestured with his left hand. But as he'd sat in the driver's seat, the gearbox would have been to his right.
Unless he hadn't been in the driver's seat.
JAYWALKER: Tell us, if you can, what prevented you from getting the car into a lower gear.
And suddenly there it was, a flash of panic in Drake's eyes. It lasted less than a second before vanishing, and the only reason Jaywalker saw it was because he'd been looking for it.
DRAKE: I don't know.
JAYWALKER: Don't you?
DRAKE: (No response)
JAYWALKER: Maybe I can help. Was it by any chance because you didn't have your left foot on the clutch pedal?
DRAKE: I don't remember.
JAYWALKER: How do you downshift in the Audi TT?
DRAKE: The same way you downshift with any man- ual-transmission car. You depress the clutch, move the stick into a lower gear, and release the clutch.
JAYWALKER: And the stick-the gearshift selector- is mounted on the floor, between the seats. Just as it's shown in this photograph that Investigator Sheetz took.
(Hands exhibit to witness)
JAYWALKER: Right?
DRAKE: Right.
JAYWALKER: Yet a minute ago, in demonstrating how you tried to force the stick shift into a lower gear, you used your left hand, and reached to your left with it- FIRESTONE: No, he didn't.
THE COURT: Yes, he did.
JAYWALKER: Didn't you?
DRAKE: If I did, it was by mistake.
Jaywalker let the answer hang in the air for a few seconds. Technically, the judge had been wrong to state her own recollection of the gesture. She should have told the jurors it was up to them to decide. But now, with her vote cast in Jaywalker's column, several jurors were nudging their neighbors, as if to say they'd picked up on it, too. And Drake's 'by mistake' had by now taken on an absurd quality, somewhere the far side of plausible.
JAYWALKER: Let me ask you again. Isn't it a fact that the reason you couldn't downshift was because you didn't depress the clutch pedal with your left foot?
FIRESTONE: Objection. He's trying to impeach his own witness.
JAYWALKER: I ask that the witness be declared hostile.
It was a shot in the dark, he knew. For starters, he doubted there'd ever been an instance where a lawyer had succeeded in having his own client declared a hostile witness. But that sort of minor detail didn't bother Jaywalker. What worried him was that all a declaration of hostility triggered was the right to ask your own witness leading questions, in which the questions themselves contained or strongly suggested the answers, which could then be as limited as a simple yes or no. It didn't give you the right to impeach your witness, to attack him and try to show he was lying.
Fortunately, almost no one besides Jaywalker knew the rule or appreciated the distinction. Not even Justice Hinkley. 'Overruled,' she said.
JAYWALKER: You didn't step on the clutch, did you?
DRAKE: I, I, I guess not.
JAYWALKER: Yet you're an experienced driver, aren't you?
DRAKE: Yes.
JAYWALKER: How long had you had the Audi?
DRAKE: I don't know. Eight months.
JAYWALKER: How long had you been driving stan- dard-shift cars?
DRAKE: Since I was seventeen.
JAYWALKER: So what happened? Why didn't you step on the clutch before trying to downshift?
DRAKE: I don't know.
JAYWALKER: Yes you do.
FIRESTONE: Objection.
THE COURT: Sustained.
JAYWALKER: You didn't step on the clutch because you couldn't reach it. Right?
DRAKE: (No response)
JAYWALKER: And you couldn't reach it because you weren't in the driver's seat at all. You were in the passenger seat, weren't you?
DRAKE: No.
JAYWALKER: And the reason you were in the passenger seat is that your wife was driving. Wasn't she?
The collective gasp from the jury drowned out Carter Drake's response, and Justice Hinkley had to ask him to repeat it.
DRAKE: Leave her out of it. It wasn't her fault. It was my fault.
JAYWALKER: Maybe it was your fault. But you weren't behind the wheel, were you?
DRAKE: Yes, I was. It was all my fault, every bit of it. So leave my wife out of it, and leave my son out of it. They had nothing to do with it. I'm the one who's responsible here. I'm the one who killed those kids. Me, me, me. I was driving. I was driving. I was…
Whatever else he might have wanted to say was lost in his sobs, drowned out by huge body-racking convulsions that completely overcame him. It was almost as though Carter Drake had suddenly regressed right there in front of their eyes and become a boy, a ten-year-old version of himself. A boy who believed that by shutting
