TESTIGO: I guess so.
JAYWALKER: And did you ever say it was a combination of things that you remembered the driver from?
At that point Kaminsky interrupted and demanded a copy of whatever document Jaywalker was using. 'But of course,' said Jaywalker. And with that he hoisted the carton, all thirty pounds of it, onto one shoulder and lugged it over to the prosecution table, where he dropped it with a courtroom-shaking thud. 'Actually, you'll find twelve copies of it in there, along with several tons of other garbage you folks dumped on me.'
KAMINSKY: May we have a page reference?
JAYWALKER: Yes. Page one. How about it, Mr. Testigo? In addition to the 'crash site,' as you call it, what were some of the other places you'd seen my client, either in person, on television, or in photographs?
KAMINSKY: Objection.
THE COURT: Overruled.
TESTIGO: I'd seen him on TV earlier that day.
JAYWALKER: How about in photographs?
TESTIGO: No. Not unless you count a photo of him that they showed on the news.
JAYWALKER: You saw that?
TESTIGO: Yes.
JAYWALKER: Before the lineup?
TESTIGO: Not right before it.
JAYWALKER: But before it?
TESTIGO: Yes.
But when Jaywalker tried to get him to admit that his present recollection of Drake was based upon a combination of those various sightings plus the lineup itself, Testigo balked, insisting that his memory was based solely upon the first time he'd seen Drake, behind the wheel of his Audi. And although Jaywalker tried his hardest to undermine that insistence, suggesting that the confrontation had been nothing but a split-second glimpse, Testigo wouldn't budge.
In the end, it was good enough for Justice Hinkley. 'I'm going to grant the motion to suppress,' she announced, 'with respect to the lineup. Although it was procedurally conducted without flaw, I find that it was indeed overly suggestive in its composition. The People are therefore barred from introducing it or referring to it in any way at trial, unless the defense opens the door first. As to the proposed courtroom identification of the defendant by the witness, I find that it has an independent basis in fact, untainted by the shortcomings of the lineup. What the witness may have seen or not seen on TV is irrelevant to the issue before me, because what was broadcast was in no way due to any impropriety on the part of the police or prosecution. While you are free to raise it on cross-examination, Mr. Jaywalker, it has no impact on my ruling with respect to suppression.
'Now,' she continued, 'are both sides ready for trial?'
'The People are ready!' The voice was unmistakably Firestone's.
'The defendant is ready.'
'Good. Nine-thirty tomorrow morning.'
'Excuse me, Your Honor.'
All eyes turned to a junior court clerk sitting behind a desk in the corner. He was holding a telephone receiver aloft.
'Yes?' said the judge.
'There's an urgent phone call for Mr. Jaywalker. A Chester Ludlow, Esquire. And,' he added, covering the mouthpiece with his free hand, 'he sounds very upset.'
Jaywalker chuckled. He'd completely forgotten that he'd dispatched Nicky Legs to subpoena Ludlow. 'May I?' he asked the judge.
'Be my guest.'
Jaywalker took the receiver from the clerk. 'Hi, Chet,' he said.
'I'm ten minutes away,' said the voice on the other end. 'I hope you know this is going to cost your client seven-fifty an hour, plus the limousine charges, plus-'
'Wrong, Chet. This isn't going to cost my client a cent. You're coming up here as a subpoenaed witness, not a lawyer.'
Silence.
'But maybe I can save you a few minutes,' said Jaywalker. 'When an Investigator Templeton from the state police invited you to attend a lineup, did you by any chance tell him that you had no intention of driving back up to New City for-let me check the transcript of the call so I get it right-quote, 'any fucking lineup'? Was that you?'
'He r ecorded that conversation?'
'Of course he recorded it.' It was Jaywalker's turn to cover the mouthpiece. He didn't want Ludlow hearing the laughter in the courtroom, a good portion of which was coming from the bench.
'Well,' said Ludlow. 'I may have said something to that effect. It was late, I was tired, and-'
'Not something to that effect,' said Jaywalker. 'Were those your words?'
'I guess they were.'
'Good night, Chet.' And with that, Jaywalker slammed down the phone. Then, in the interest of completing the sign-off, he turned to Kaminsky and said, 'Good night, David.'
But Kaminsky couldn't have been much over thirty, if that. All he could come up with was a glance at his watch and a confused 'Good night?' After all, it was three-fifteen in the afternoon.
Driving back to the city that afternoon, Jaywalker took stock of the day's proceedings. His victory in getting the lineup suppressed had not only been fleeting, but Pyrrhic as well. Concepcion Testigo would be permitted to identify Carter Drake at trial. True, the jurors wouldn't hear that he'd picked him out at a lineup six months ago. But that meant they wouldn't hear how flawed that lineup had been, and how it now might be contributing to Testigo's recollection. Jaywalker was free to introduce the lineup in order to show those things. But if he did so, he'd be opening the door, as the judge had put it, to the results of that lineup, and to the rigorous way Investigator Templeton had conducted it.
In other words, it was a classic heads-I-win, tails-youlose proposition. With Jaywalker and Drake as the you.
No, he quickly decided, he couldn't bring it up without hurting their chances even more. Luckily, the case wouldn't turn on it. It wasn't a whodunit, after all. Carter Drake had been driving the Audi. He was going to testify to that. That and the wasp.
Jaywalker turned on the radio, an ancient staticky AM thing with old-fashioned push-button settings. Jewish klezmer music came on from a local station.
Not a good omen.
15
'Good morning, jurors, and welcome to Part Two.' The judge was standing, the better to project her voice and be seen by the two hundred people who filled the seats in front of her and, when they'd run out of seats, lined the walls of the courtroom. A hundred of them were jurors, or at least potential jurors. The rest were court personnel, troopers, lawyers, reporters, sketch artists and the just plain curious, provided their curiosity had been enough to prompt them to get out of their beds on a subfreezing morning and stand on line for two hours.
'My name is Travis Hinkley,' she continued, 'and I'm going to be presiding at this trial. The name of the case that you've been called in on is The People of the State of New York versus Carter Drake. And as most of you, if not all of you, know, it's a case that has been the subject of some publicity.'
Some publicity? Jaywalker smiled at the understatement. For the past half hour there'd been an audible buzz in the courtroom as people mumbled to each other that they'd been right, that this was really it. This was The Case, the one about the rich goy from the city who'd gotten drunk and forced a vanful of kids from the yeshiva off the road and to their deaths.
