JAYWALKER: As a cook at a restaurant?
PASCARELLA: Yes.
JAYWALKER: That he occasionally took his daughters to the park or to a museum?
PASCARELLA: Yes.
JAYWALKER: That he attended Friday religious services?
PASCARELLA: Yes.
JAYWALKER: Tell me, Lieutenant. You ascribed Mr. Barnett’s refraining from conducting his drug business in open view to his being “wary.” Did it ever occur to you that it could be more simply and accurately attributed to the fact that he wasn’t conducting any drug business at all?
PASCARELLA: I’m convinced he was dealing.
JAYWALKER: That’s nice, I’m sure, but it’s not what I asked you. My question was, did it ever-even once- occur to you that maybe Mr. Barnett
PASCARELLA: No.
JAYWALKER: How about Mr. Barnett’s simple lifestyle? You say that was an elaborate cover. Did it ever occur to you that it wasn’t a cover at all? That in fact it was nothing more than the manifestation of a very simple life lived on a very modest income?
PASCARELLA: No.
JAYWALKER: What’s a “CI,” Lieutenant?
PASCARELLA: A confidential informer.
JAYWALKER: Did you ever attempt to enlist the services of a CI in this case? You know, have an informer approach Mr. Barnett and either try to buy drugs from him or try to introduce an undercover officer to him for the purpose of buying drugs?
PASCARELLA: With a CI? No.
JAYWALKER: Yet isn’t that how it’s usually done?
PASCARELLA: Sometimes. I don’t know about “usually.”
JAYWALKER:
PASCARELLA: If you say so.
JAYWALKER: I just did. What I’m asking is, do you agree with what I just said, or do you disagree?
PASCARELLA: I agree, I guess.
JAYWALKER: But that’s not how it was done in this particular case.
PASCARELLA: No.
JAYWALKER: This was one of those…let’s see, 2.7 percent of cases where you decided to skip the use of a confidential informer altogether. Right?
PASCARELLA: I guess so.
JAYWALKER: And why was that?
PASCARELLA: Because the subject was too
JAYWALKER: I see. And yet this is the same subject who the anonymous caller told you he could tell was dealing heroin, the same subject who could be found right out in the open on the front stoop of what turned out to be his own apartment building, sitting there with two girls who turned out to be his own daughters. Is that-
The rest of the little speech was drowned out by Miki Shaughnessey’s objection and Judge Levine’s sustaining it. But that was okay. By that time Jaywalker had spent twenty minutes with Dino Pascarella, flirting with fire without getting burned too badly. Not that he’d ever quite demonstrated that anything the witness had said was untrue. But if Jaywalker was lucky, maybe he’d piqued the interest of someone in the jury box. Someone who was open to the possibility that a cop-even a cop with the word
As soon as Pascarella left the courtroom, Judge Levine declared a recess and excused the jury for lunch. Including opening statements, they’d been working for close to two hours already. But before the judge could leave the bench, Miki Shaughnessey was on her feet asking for an opportunity to examine the statistic sheet.
“The what?”
“The piece of paper Mr. Jaywalker read from,” said Shaughnessey. “You know, when he recited the statistics about the use of confidential informants. I think I have a right to see it, and even have a copy of it.”
“Mr. Jaywalker?” said the judge, looking his way.
Without objection he handed Shaughnessey the sheet he’d held aloft and then waved in the witness’s direction moments earlier. She took it from him and stared at it, turning it over several times before looking up and complaining that there must be some mistake, that what she’d been given was nothing but a blank piece of paper.
“Why am I not surprised?” sighed Judge Levine. “As the trial progresses, Miss Shaughnessey, I think you’ll find yourself getting used to Mr. Jaywalker and his, shall we say, unorthodox way of doing things.”
Shaughnessey’s reaction was to shoot Jaywalker a dirty look before turning and storming out of the courtroom.
That afternoon, after finally calming down, she accused him of taking advantage of her. But as he pointed out, that had hardly been the case. If anyone had been taken advantage of, it had been the witness. And with respect to him, all Jaywalker had done was to trick him into admitting the truth, that the vast majority of direct sale cases did in fact depend upon the use of an informer for an initial introduction. The phantom-statistic tactic had been no different, say, from encouraging a witness to believe you had a video recording of his actions, so that he’d be less tempted to lie about them. Clever? Sure. Devious? A bit. But unethical or improper? Hardly. Like any other witness, Lieutenant Pascarella had been called to the stand with the expectation that he would tell the truth. Jaywalker had simply made sure he did so.
Still, even allowing for the points he’d scored on cross-examination, Jaywalker would have been lying if he told himself that Pascarella hadn’t hurt the defense. In not objecting to the testimony about the anonymous call, he’d allowed the jury to hear that at least one person besides the police had reason to conclude that Alonzo Barnett was selling heroin. And Jaywalker’s decision to call his client as a witness had opened the door for Shaughnessey to remind the jury of the details of Barnett’s criminal record, including his multiple past convictions for the exact same crime on which he was now standing trial.
The fact that precious few jurors tend to be heroin dealers themselves means that the drug sale defendant starts with one strike against him before he even comes up to bat. Throw in an anonymous observation that he’s been dealing, and you may as well call that strike two. Add the fact that he’s been caught doing the same thing over and over again for just about his entire adult life and, well, you get the picture. So what if Dino Pascarella hadn’t been the best witness of all time? How good did he really have to be? Especially with the undercover agent coming up next, with all of his “extensive skills and experience.”
8
“The People call Trevor St. James,” Miki Shaughnessey announced when the trial reconvened that afternoon.
All eyes turned as a court officer led a large black man into the courtroom through a side door. He was wearing a dark suit over a brown turtleneck sweater, and-best of all-he sported a pair of mirrored sunglasses.
Somewhere, no doubt, there’s a courtroom lit brightly enough, whether by Mother Nature or General Electric, that eye protection is advisable. Most likely that courtroom is in Southern California, Florida or someplace even closer to the Equator. As for the fifteenth floor of 10 °Centre Street, anyone wearing sunglasses there is either legally blind or hiding behind them.
