appeal to consider. In a jury trial, all sorts of things could go wrong and lead to reversible error. But after a bench trial conviction, the appellate courts had little to look at, and less to second-guess.
So even without consulting his client, Jaywalker discarded the idea, just as he'd discarded the notion of a jury selection expert. Carter Drake would have a jury and, for better or for worse, Jaywalker would be the one to pick that jury.
Though exactly how, he had no idea.
September 5, which had once been their trial date, came and went. Jaywalker busied himself preparing for the Wade hearing, for jury selection, and for the trial itself. He drew up long lists of questions for potential jurors, aimed at disqualifying those who'd known the victims or were friendly with their parents, or were otherwise too close to the case to be impartial. He revisited the scene of the crash, taking photographs and measurements, from which he constructed poster-size blowups and diagrams. He met half a dozen times with his client, wrenching details from him and shaping them into a coherent direct examination, which Drake mastered effortlessly, yet somehow unconvincingly. Then Jaywalker would change his voice and do his best Abe Firestone imitation, putting Carter through a series of mock crossexaminations. He was alternately folksy, sarcastic and belligerent, but it didn't seem to make much of a difference. No matter which approach Jaywalker adopted, Drake did as poorly on cross as he did on direct. He met sarcasm with sarcasm, belligerence with belligerence, and folksiness with contempt.
'Carter,' Jaywalker would point out, 'you're going to make it very hard for the jurors to like you.'
'I don't give a damn whether they like me or not,' Drake would counter. 'As long as they acquit me.'
'And why should they do that?'
'Because I'm innocent!' Drake would shout. 'Because I didn't murder anybody.'
And Jaywalker would be forced to point out that even though he was inclined to agree, that left half a dozen other charges, from drunk driving to vehicular manslaughter to leaving the scene of an accident, any one of which would send Drake off to state prison, even if not for quite so long.
'I'm still pissed off at you,' Drake would say.
'At me?'
'Yes.'
'For what?'
'For postponing the trial without my permission.' And then they'd fight that battle all over again.
Amanda, on the other hand, would be a good witness. Jaywalker found her an easy study, quick to pick up hints without making him spell things out for her. There's a fine line between telling a witness what to say and telling her how to say it. The former is not only unethical, but can become downright criminal, as in subornation of perjury. The latter, teaching a witness how to best express herself, is not only permissible but is an important part of the defense lawyer's job. And anyone who doubts that needs to wake up and understand that across town-or, in this case, up in Rockland Countyit's precisely what the prosecutors were no doubt already doing.
Although not nearly as well as Jaywalker.
September gave way to October, and October to November. Thanksgiving came, and Christmas, though for a very large segment of New City, it came early, lasted eight days, and went by the name Chanukah. With the crush of the holidays, the almost biblical commandment to shop, and the first flakes of snow, the case at last vanished from the newspapers and the airways. It would come back, Jaywalker knew only too well, but not with quite the same urgency and drive for vengeance. Carter Drake might not like the idea of spending New Year's Eve locked up in the Rockland County Jail, and he might hate Jaywalker for his role in ensuring that he did. But in the meantime, delay was quietly going about her business, applying salve to raw wounds and giving new tissue a chance to begin forming over deep scars.
14
'Call your first witness on the Wade hearing, Mr. Firestone.'
Firestone stood up, as best as Jaywalker could tell. At an even five feet, it was sometimes hard to be sure. 'Mr. Kaminsky will be conducting the hearing,' said the D.A., gesturing toward the nerdy assistant seated immediately to his left. David Kaminsky, Jaywalker had come to learn, had been recruited from the Appeals Division, just as Julie Napolitano, to Firestone's right, had been drafted from Special Victims. Kaminsky was what trial lawyers referred to as a 'law man,' someone short on presence but long on precedents. With no jury around to play to, it made perfect sense that for the hearing, Firestone would yield center stage to someone who actually had some idea of what he was doing.
'Mr. Kaminsky?' said Justice Hinkley.
The young man stood, pushing a bony finger against the bridge of his glasses so that they rode up his nose a bit, but just a bit. It was a gesture he would repeat a thousand or so times over the next three weeks. 'Yes?' he said uncertainly.
'Call. Your. First. Witness.'
'I only have one witness,' he said.
'Call him!' shouted the judge. 'Or her, or it.'
'The People call Investigator Alan Templeton.'
And with that, the hearing began.
Having derived its name from a U.S. Supreme Court case decided dozens of years ago, a Wade hearing is triggered by a motion made by the defense-as Jaywalker had made on behalf of Carter Drake-to suppress, or exclude from the trial, the identification of the defendant by an eyewitness. The theory is that the witness has made a previous identification of the defendant under circumstances that were so fraught with suggestiveness caused by the police or prosecution that permitting a courtroom identification at trial would now deprive the defendant of the due process of law and, with it, a fair trial.
In practice, the inquiry at the hearing becomes a twopronged one. First, was the conduct of the law enforcement authorities so suggestive, either in the words they said or the things they did, as to render the prior identification so suspect that any mention of it must be kept from the jury? And second, if so, has that impermissible suggestiveness resulted in a situation where the witness, if now permitted to identify the defendant at trial, either by pointing to him as the perpetrator or testifying that he is, will be remembering him not because of his recollection of him from the crime scene, but from the subsequent police-arranged viewing of him, or from some inseparable mingling of the two prior sightings of him? If the answer to the second question is also yes, then not only must any reference to the improper police-arranged confrontation be excluded, but the witness will be barred altogether from making an identification of the defendant at trial.
By indicating that they intended to call only a single witness at the hearing, and choosing a law enforcement official rather than the eyewitness himself, the prosecutors were following a time-honored strategy. Jaywalker immediately recognized Investigator Templeton's name from the documents Firestone had bombarded him with. Templeton had conducted the lineup at which Concepcion Testigo, the driver of the pickup truck, had picked out Carter Drake. Not only would Templeton swear that the lineup was a model of fairness in every respect, but by calling him to describe it, the prosecution could shield Testigo from having to testify at the hearing, saving him instead for trial. As much as Jaywalker wanted to get a preview of the state's only true eyewitness, the D.A.'s office intended to deprive him of that free look.
KAMINSKY: By whom are you employed, Investigator Templeton?
TEMPLETON: The New York State Police.
KAMINSKY: In what capacity?
TEMPLETON: I'm a senior investigator. That's roughly the equivalent of a detective in a municipal police department.
KAMINSKY: Did there come a time when you conducted a lineup in this case?
TEMPLETON: Yes, there did.
KAMINSKY: When was that?
TEMPLETON: It was on the evening of the same day that the defendant surrendered.
