Guilty As Sin

For one thing, you and I have the photo that puts the lie to Pascarella’s word. And you and I have seen the lengths Pascarella was willing to go to, and the lie he was willing to orchestrate, in order to keep another informer’s name out of this case. Finally, you and I know for a fact that Clarence Hightower ended up with the missing 2.55 grams of heroin that could only have come from Pascarella or someone working under his supervision.

“So what really happened in this case, jurors? It turns out we know that, too. We know because it’s the only thing that could possibly have happened. At some point-maybe it was late August, maybe mid-September-Dino Pascarella caught Clarence Hightower doing something. We don’t know exactly what, because Pascarella won’t tell us. And Hightower? Well, all I can say is that as much as we would have liked to hear what Mr. Hightower might have to say, we never got the chance. But you know what? It doesn’t matter. What matters is that on that very same day, whenever and wherever it was, Pascarella flipped Hightower, convinced him to become an informer. Had Pascarella sent him on to Central Booking to be put through the system, as Alonzo Barnett was, it would have been all over for Hightower. Jail, prosecution, conviction, parole violation. Back upstate to prison, not for days or weeks or months, but for years. So instead Pascarella offers Hightower a deal on the spot. Exactly as Captain Egan tells us it’s sometimes done. ‘Make us one good case,’ Pascarella tells Hightower, ‘and we’ll cut you loose.’ And because he finds himself stuck between a rock and a hard place, Hightower agrees. So Pascarella never completes the arrest process. He never books Hightower, never sends him to Central Booking, never submits his name to Captain Egan for inclusion in the cross-index. It’s all done off the books. All Pascarella does is take a photograph of Hightower for his own records. He uses an old Polaroid camera they keep in the squad room, and he writes his initials, ASP, on the back of it. And then he no doubt forgets all about it. Until at some point last week, when Captain Egan asks Pascarella if he has a photo of Hightower, Pascarella pulls it out without thinking too much about it, and without realizing it could come back and bite him in the asp.

“That’s what really happened. Because that’s the only thing that could possibly have happened. And now we’re going to see why it changes absolutely everything for you.”

Jaywalker spent the next thirty minutes giving the jurors a short course in the law of entrapment. He had to be careful to avoid usurping the judge’s prerogative to define the law. But that didn’t stop him from reading them section 40.05 of the Penal Law in its entirety. He paused at the term affirmative defense, explaining how those two words placed the burden of proof upon him and required him to convince them by a preponderance of the evidence.

“But that’s a burden we welcome,” he told them. “That’s a burden we’re delighted to shoulder.” He readily conceded that Alonzo Barnett had made the first two sales and was in the process of completing the third one when he’d been arrested. “But only because he’d been both induced and encouraged to do so by a person acting in cooperation with a public servant. Specifically, Clarence Hightower, acting in cooperation with Dino Pascarella.

“And make no mistake about it,” he told them. “Without Hightower’s unrelenting pressure-without his seven different attempts on seven different days, and finally without his insistence that Alonzo Barnett had to help him out in payment for Hightower’s having saved his life-those sales simply wouldn’t have happened. This wasn’t a case of the police merely providing an opportunity for someone already disposed to commit a crime,” Jaywalker told the jurors. “This was a case in which the police, acting through their informer, manufactured a crime that would never have taken place otherwise, not in a million years.

“That’s what makes it entrapment, jurors. And that’s why it becomes your duty to find Alonzo Barnett not guilty of each and every charge in the indictment.”

His voice was hoarse, and he was just about finished, but not quite. “There’s one other thing I want to tell you,” he said. “And it’s absolutely essential you understand this. When you come back into this courtroom at the conclusion of your deliberations to deliver your verdict, you should harbor no reservation whatsoever. And a week from now, or a month or a year from now, should someone walk up to you and suggest out of ignorance or stupidity that you acquitted a guilty man, you’re going to look that person squarely in the eye. And you’re going to say in a calm voice, ‘No, we didn’t. We acquitted a man who had succeeded in redeeming himself. A man who never would have broken the law but for the fact that the police and their informer first targeted him and then entrapped him into doing so.’ So you tell that person you’ve got one word for what you accomplished through your verdict. And that word is justice.

“Nothing more, nothing less.

“Justice.”

Two hours and two minutes after he’d begun, Jaywalker turned from the jurors, walked back to the defense table and sat down. Gathering his notes while listening to the judge sending the jurors off to lunch, he felt Alonzo Barnett lean toward him. “No matter what happens,” whispered Barnett, “I want to thank you. You did everything a man possibly could have done for me, and I’ll never forget it as long as I live.”

They were nice words to hear, but Jaywalker wasn’t so sure they were accurate. He’d actually had more to tell the jury. He’d been prepared to argue agency as an alternative defense. But the entrapment argument had gone so well, and the jurors’ reactions to it had seemed so favorable, that at the last minute Jaywalker had decided to forget about agency altogether.

Now he hoped that decision wouldn’t turn out to be a mistake. Which was vintage Jaywalker, of course. Here he’d hit a top-of-the-ninth, bases-clearing triple to give his side a convincing three-run lead, only to blame himself for not having tried to stretch it into an inside-the-park home run.

The other thing he’d left out was the reason the jurors had never heard the testimony of Clarence Hightower. Jaywalker had lost the legal battle to reopen the case, and it would have been improper for him to complain to the jurors about either Pulaski’s opposition or the judge’s ruling. So he’d had to settle for the rather innocuous comment that he shared the jurors’ frustration over never having had an opportunity to hear from Hightower. Hopefully that would help them recall that it had been Pulaski who jumped up and shouted “Objection!” the moment Jaywalker had tried to call Hightower to the stand. Hopefully, too, they’d be able to draw their own conclusions from Pulaski’s obstructionism.

Other than those concerns, Jaywalker was pretty pleased at the way things had gone. Although he never, ever allowed himself to feel confident about his chances, he did celebrate after a fashion by treating himself to lunch, something he hadn’t done for two weeks straight.

If, that is, you’re willing to stretch things and consider a container of iced tea and a bag of Wheat Thins lunch.

Jaywalker’s self-indulgence and good spirits lasted him all of an hour, ending about thirty seconds into Daniel Pulaski’s summation on behalf of the prosecution.

Pulaski spoke that afternoon for only half as long as Jaywalker had that morning. And although Jaywalker would have loved to say that Pulaski spoke only half as well, that decidedly wasn’t the case. In fact, Pulaski proceeded to deliver a truly impassioned summation, heaping ridicule upon Jaywalker’s assumptions about Clarence Hightower’s having been an informer. “Inferences upon inferences,” he called them. “Pure speculation. Totally unsupported by the evidence. And the proof is in the pudding. Both Lieutenant Pascarella and Captain Egan were absolutely forthright in their testimony. They stepped up and volunteered that Investigator Bucknell had been less than honest when he said he saw the defendant push the button for the twelfth floor. Rather than allow that inaccuracy to stand, they came forward on their own and corrected it. In so doing, they not only risked their ranks and reputations, they revealed the name of an important confidential informer. So why on earth should they hesitate to do as much if another informer had been involved? The answer is as plain and simple as it can be. Clarence Hightower wasn’t an informer. He never was, and he never will be. You have the sworn testimony of not one but two high-ranking police officials to tell you that. A captain and a lieutenant. You’ve got the word of an experienced federal agent. You’ve got your own good common sense. Why in God’s name would all three of those men get together and decide to risk everything and lie about that? To convict this defendant? To protect Hightower?

“But if that’s not enough for you, there’s even more. You’ve got the official record, the NYPD’s cross-index of all informers. Let me say that again. All informers. And Clarence Hightower’s name isn’t in it. How does Mr. Jaywalker explain that inconvenient detail? He doesn’t. He doesn’t because he can’t.

“Ladies and gentlemen, when it comes right down to it, this is as simple a case as it could possibly be. This