Guilty As Sin

JAYWALKER: Had Mr. Barnett not induced and encouraged you over and over again, would you have done what you did?

BARNETT: Never.

And that was it.

Even as Jaywalker sat down, Daniel Pulaski waved a hand dismissively, his way of signaling the jury that Barnett’s assertions were so self-serving and meaningless that there was no need for Pulaski to cross-examine him.

THE COURT: Any further witnesses, Mr. Jaywalker?

JAYWALKER: No, Your Honor. The defense rests.

THE COURT: Mr. Pulaski?

PULASKI: The People rest, too.

And with that it was over, at least the evidence portion of the trial. The jurors were sent off for the weekend, some of them smiling at the prospect, others grumbling that their jury service would be going into its third week, more than they’d signed up for.

It was the grumblers who worried Jaywalker. They were the ones who were self-employed or considered themselves indispensable at work. They had small children, elderly parents or pets with bladder issues at home. Above all else, they wanted the case over with. Come deliberation time, their impatience could easily translate into a desire to arrive at a quick verdict, no matter which way it happened to go.

A quick verdict meant deciding whether the evidence proved beyond a reasonable doubt that the defendant had done what he was accused of doing. It left no room for nuance, no time to consider why he’d done it. Entrapment wasn’t a simple concept, a black-or-white, either-or notion that lent itself to quick and easy analysis. And that could spell trouble for the defense.

Big trouble.

Even as the jurors were excused for the weekend, the lawyers had to come back that afternoon for the charge conference, a meeting between the judge and the lawyers about what the judge will be telling the jurors when, following the summations, she instructs them on the principles of law applicable to the trial. Somewhere along the line, those instructions have come to be called the judge’s charge.

In most federal courts the lawyers are expected to submit detailed written requests to charge, often as early as the beginning of the trial. The practice in state court tends to be more relaxed, with oral requests being the norm. Nevertheless, Jaywalker took charge conferences seriously. What the judge told the jurors, and how she told it to them, was of critical importance. Juries don’t always get cases right, but it’s the rare jury that fails to take its job seriously. They listen to the judge and try to apply the principles of law to the facts, just as she tells them to.

A lot of any charge is boilerplate stuff. Presumption of innocence, burden of proof, credibility, reasonable doubt and unanimity of verdict don’t change from trial to trial. But some things do. And Alonzo Barnett’s case had several wrinkles that made it anything but ordinary.

So that afternoon, once Shirley Levine had run through a list of standard things she intended to tell the jurors, she called upon first Pulaski and then Jaywalker to make additional requests, if they had any. The setting was far more relaxed than it had been when the jury had been present, and the lawyers were permitted to remain seated at their respective tables while they spoke. But the court reporter was present, taking down every word of the discussion. More cases get reversed by appellate courts because of things said during the charge-or things requested but omitted from the charge-than because of just about anything else.

Pulaski stated that he was satisfied with what the judge intended to tell the jurors, and that he had no objections or additional requests.

Then it was Jaywalker’s turn.

“The defense requests that you charge the jury on both entrapment and agency,” he said.

A half an hour later, they were still arguing about both requests. Pulaski took the position that there couldn’t have been any entrapment as a matter of law. Since Clarence Hightower had been acting on his own when he approached Alonzo Barnett, it hadn’t been law enforcement that was responsible for any pressure put on Barnett, if indeed there’d been any.

Jaywalker countered by arguing that whether Hightower had been acting on his own or in cooperation with the task force was a question of fact, and like all questions of fact it was up to the jury to decide. Even as Judge Levine agreed with Pulaski that most of the evidence supported his position, she expressed her concern that her refusal to at least present the issue to the jurors for their determination might be grounds for reversal. “It’s not that I’m agreeing it was entrapment,” she explained. “After all, we have a captain and a lieutenant denying that Mr. Hightower ever worked with them. But Mr. Jaywalker does have a point. It’s up to the jury to decide. So I’ll read them the statutory language from section…section-”

“Forty point oh-five,” said Jaywalker.

“Thank you.”

Her reluctant acquiescence might not have sounded all that promising to anyone else. But it was good enough for Jaywalker. He was perfectly content to have Pulaski continue to think of entrapment as a nonstarter. All Jaywalker could ask for at this point was that the door be cracked open just enough for him to get a foot in. The rest, he knew, would be up to him.

He had an even harder time when it came to agency. As soon as he’d mentioned the word, he’d realized that neither Levine nor Pulaski had even considered it as a possible defense. The theory behind an agency defense is that although a sale occurred and the defendant took part in it, he was aligned not with the seller, but the buyer. If that was so, he could be convicted only of buying drugs, not selling them. And buying was no crime.

“Agency?” Pulaski repeated incredulously. “The defendant profited from these sales, by his own admission. He wasn’t working for Agent St. James. He was selling to him. He was working for himself. The record couldn’t be clearer. Give me a break, will you?”

Again the judge expressed skepticism that, given the facts, the defense should be available. But again she ended up siding with Jaywalker out of an abundance of caution and the fear of seeing a conviction reversed. “Personally,” she said, “I don’t think the jurors will spend five minutes on this one. But technically, Mr. Jaywalker’s right again. It’s up to them to rule it out, not me. So I’ll include something on it. Though over your objection, Mr. Jaywalker, I’ll instruct them that it’s a defense only to sale, not possession. Anything else, gentlemen?”

“That’s it for me,” said Jaywalker.

“Nothing else,” said Pulaski.

“Then I’ll see you back here first thing Monday morning, nice and refreshed.”

Right.

Over the three nights between now and then, Jaywalker would sleep for a combined total of less than ten hours, and fitfully at that.

So much for nice and refreshed.

18

How about sex?

Jaywalker had long been a card-carrying procrastinator, and he managed to put off working on his summation all of Friday evening and most of Saturday. But it wasn’t as if doing so allowed him to enjoy himself. He and his wife even went for a walk Saturday afternoon, something they hadn’t done together for months. But on the way back, after the third time Jaywalker had said “What?” to one of her questions, she finally told him he might as well get down to work, that until his summation was done he would be no good to her or anyone else.

“How about sex?” he suggested. “Maybe that would help.”

“Right,” she laughed. “And halfway through, you’d say, ‘Wait a minute, an idea just came to me.’ Thanks, but no thanks.”

“Afterward?”