Guilty As Sin

meet them in what she considered scary neighborhoods. So she reached into the refrigerator for a couple more eggs.

“It’s Kenny,” he told her.

Make that four more eggs.

It was only while he was putting a third plate on the kitchen table that Jaywalker realized why Kenny had called him. A week or two ago he’d asked Smith to look around and see if he could locate one Clarence Hightower, more commonly known as Stump. No doubt Kenny was coming to report on his progress-or lack of it. That was certainly something they could have discussed on the phone, wiretap or no wiretap. But no big deal. It was only four eggs, five pieces of toast and a quart of coffee, after all. He’d once gone so far as to suggest to his wife that she learn how to make grits, but she’d drawn the line at that.

Kenny showed up an hour later. “So you want the good news?” he asked Jaywalker. “Or the bad?”

“Both.”

“The good news,” said Smith, “is I found your man Hightower. The bad news is he ran away before I could lay the suspeena on him.”

Kenny had a problem pronouncing certain words. Not that it would have disqualified him from becoming President or anything like that.

“Ran away?”

“Bet.”

Back in 1986, bet passed for Yes. As in you bet.

“And check this out,” said Kenny between mouthfuls. “’Cordin to people who knows him, dude was gettin’ some sorta allowance from someone. Ev’ry Friday, he’d come around with, like, a hundred bucks in his pocket-cash money.”

“Welfare?” Jaywalker asked. “SSI?”

“You ain’t lissenin’, Jay. I said ev’ry week, not ev’ry two weeks or ev’ry month.”

“So what was it?”

“I dunno what it was,” Kenny admitted. “I only know what he tol’ people it was.”

“And what was that?”

“Tol’ people it was from workin’ for his uncle.”

“So?” asked Jaywalker.

“So I axed around,” said Kenny. “And far as anyone knows, the guy never worked a day in his life. And he don’t even have no uncle.”

Jaywalker rubbed his temples, trying to will his headache to go away. So Clarence Hightower was a liar. Great. What else was new?

It was noon Sunday by the time Miki Shaughnessey called Jaywalker back as she’d promised to do. But two words into the conversation, he could tell from the tone in her voice that she was going to disappoint him.

“My supervisor says there’s no way. To begin with, Hightower’s case is officially sealed, so it would take a court order to do anything. And since none of the NYPD lab’s stuff is computerized, it would take them weeks just to find out if those drugs still exist or have already been destroyed. So he says we can forget about it.”

“Terrific,” was all Jaywalker could think to say. Well, that and one other thing. “Who is your supervisor, anyway?”

“You know him. Dan Pulaski.”

Long after he’d hung up the phone, Jaywalker continued to seethe. Pulaski’s point about Hightower’s case being sealed, while technically true, was an obstacle only if you wanted to let it be one. The computer story was a bit more plausible. These days, everything’s on computers, no more than a click away. But back in 1986 computers were only just beginning to show up in the system. And they were doing it with all the speed that feet had once begun to show up on fish.

Still, Jaywalker’s distrust of Daniel Pulaski was so deep that he couldn’t help wondering if he might not be onto something. The only problem was, he had absolutely no idea what that something might be.

13

Offer of proof

“The defendant calls Kenny Smith.”

With those five words, Jaywalker began his defense of Alonzo Barnett. And got no further. Miki Shaughnessey was on her toes, both figuratively and literally, asking to approach the bench. There she told Judge Levine that she wanted an offer of proof.

An offer of proof is pretty much what you might guess it is. It’s a brief oral statement from the lawyer who’s putting a witness on the stand, and it’s intended to show what he or she intends to prove through the witness. That way the opposing lawyer can argue to the judge, out of the hearing of the jury, that the witness shouldn’t be permitted to testify because whatever he has to say is irrelevant, immaterial, hearsay, privileged or otherwise objectionable.

The offer of proof was also one of Jaywalker’s pet peeves, and he lost no time in sharing that sentiment with Levine and Shaughnessey. “How come it’s only when the defense calls a witness that there’s got to be a preview? Why should we assume that I know the rules of evidence any less than the prosecution does?”

“We don’t assume that at all,” the judge assured him. “But we do know how creative you can sometimes be. So I’m going to grant Ms. Shaughnessey’s request and ask you to let us know what Mr. Smith’s going to tell us.”

“Then you’d better excuse the jury,” Jaywalker suggested, “because I have a feeling this is going to take a while.”

The judge agreed and ordered the jurors led out of the courtroom. One or two of them could be heard grumbling over the fact that they were being banished before they’d heard a single word. Once the last of them had left, the judge signaled the court reporter that the colloquy they were about to have would be on the record. That way, were she to prohibit the witness from testifying, the offer of proof would be preserved for an appellate court to consider. Finally she turned to Jaywalker.

“Now,” she said, “who is Kenny Smith, and why are you calling him?”

Jaywalker stood, though he needn’t have. The jury was gone, and Shirley Levine wasn’t into formality. But Jaywalker worked better on his feet, especially when it was an uphill climb. “Kenny Smith is a private citizen,” he began. “A private citizen and convicted felon who happens to be a former client of mine.”

“Don’t tell me you lost a case.”

“It was a long time ago.”

“And what is Mr. Smith going to tell us?”

“He’s going to tell us things that, if believed by the jury, will lead them to conclude that Clarence Hightower is and continues to be a paid informer of law enforcement.”

Okay, it was a stretch. But at some point Sunday night it had occurred to Jaywalker that the uncle Hightower was getting weekly payments from might just be named Sam. As in Uncle Sam.

“What sort of things is Mr. Smith going to tell us?” the judge wanted to know.

“Among others, that Mr. Hightower was, at least until recently, receiving regular weekly cash payments from an undisclosed source. That he was given favorable treatment consistent with his being an informer on at least three separate occasions, first at the time of his arrest, later in court, and finally with the state parole authorities. And that when Mr. Smith attempted to serve a subpoena on him, Hightower responded by running away.”

“Suppose for a moment that you’re right about Mr. Hightower’s being an informer,” said the judge. “How is that relevant to this trial?”