Guilty As Sin

“you lucked out.”

“Oh? How’s that?”

“I’ve been promoted to the Investigations Division,” he said. “I’m going to have to reassign almost all of my trial cases.”

“Congratulations,” said Jaywalker. “But why not keep this one?” By that time he’d convinced himself that as much as he disliked Pulaski, the man’s sarcasm and sneakiness could actually end up working to the defense’s advantage. What better way to highlight Alonzo Barnett’s likableness, after all, than to pit him against a slimeball, a thoroughly unlikable cross-examiner?

“Don’t take offense,” said Pulaski, immediately ensuring that Jaywalker would. “But from the People’s point of view, this case pretty much tries itself, even with you at the defense table. Anyway, it’s not like I’m handing it off to some loser. I’m giving it to a rising young star in the office.”

“And who might that be?”

Pulaski had asked if he happened to know Mickey Shaughnessey.

“Never heard the name,” confessed Jaywalker.

“Well, you will,” Pulaski assured him. “You and the rest of the do-gooders on the defense side. I’m only sorry I won’t be there to watch the sparks fly.”

“A street fighter, huh?”

“You might say that.” Pulaski laughed. “Well, you two have fun.” Followed by a click.

So the slimeball had been replaced by a brawler. Fair enough, Jaywalker decided. Alonzo Barnett’s thoughtful, quiet intelligence might come off even better against a red-faced, two-fisted Irishman.

Although it was far from the top of his list of favorite things to do, Jaywalker spent the next day hitting the books. He wanted to check out a seldom-used defense called agency. At least that was its short name, sort of how Jaywalker was short for Harrison J. Walker. Technically termed “agent of the buyer,” it went something like this.

A drug deal often involves more than just two people. There are the hand-to-hand participants, the seller and the buyer. But frequently there’s a cast of supporting characters. There can be a broker, the guy who puts the seller and buyer together, and in that respect acts not all that differently from a real estate broker. There can be a middleman, somebody who positions himself between the seller and the buyer. For a piece of the action, whether that turns out to be cash, drugs or both, he serves to insulate the principals from each other, lest one be looking to either rip off or arrest the other. Then there’s the connection, the seller’s immediate source of supply, and his connection, on up the ladder. There may be a moneyman, separate and distinct from the seller. There may be a stash man, who sits on the drugs, a re-up man to replenish the supply, a lookout to watch out for the Man and even a gofer or two.

Under the law of “acting in concert,” all these individuals are equally guilty of participating in the sale. With one exception, of course, and that’s the buyer. Not even the vast breadth of the acting-in-concert law can ignore the fact that since he’s the one who’s purchasing the drugs, the buyer can’t at the same time be selling them.

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, who’s 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 friend’s only role is to translate for the buyer; he’s 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 can’t 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 who’d 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 name’s Miki Shaughnessey, and I’m the new assistant on the Alonzo Barnett case.”

Jaywalker found himself momentarily speechless.

“Are you there?” he heard her asking.

“Yes, I’m here. It’s just that I was expecting someone more…more-never mind.”

“I’ve 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 he’d 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. Jaywalker’s 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, he’d done just that for twenty months so far. Then, at the last possible moment, he’d 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 he’d settle for Shaughnessey’s openness.

“So,” she was telling him now, “I understand that I’m about to go up against one of the best.”

“Don’t believe everything you hear.” He brushed her off with characteristic modesty. “And you must be good, or Pulaski wouldn’t have picked you to try this case. I hear he’s a big shot over in Investigations now.”

“Not yet. His transfer doesn’t actually take place for another six weeks. And while I appreciate his vote of confidence in me, I feel like I’m 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.”

“Don’t worry,” Jaywalker told her. “I’m sure you’ll do just fine.” And it was true, he knew. Because while he would have pulled no punches against a prick like Pulaski, he’d never take advantage of a novice. Sure, once the opening bell rang, he’d do everything he could for Alonzo Barnett, but that everything wouldn’t include playing dirty. And he knew that Shirley Levine would go out of her way to make Shaughnessey’s 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 Pulaski’s transfer wouldn’t 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 prosecution’s 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?