Joseph Teller - Guilty As Sin

“What difference could it possibly make?”

His wife couldn’t have said it better.

He spent the next five minutes trying to convince Shaughnessey that it did make a difference. He even went so far as to try out his flake theory on her. But if her reaction was any indication of what the jury’s might be, it left Jaywalker with second thoughts about whether his argument would fly.

Finally she relented, but he strongly suspected it was just to get him off the phone. And even then, all she said was that she’d run it by her supervisor.

“Promise?” he asked, reduced to begging.

“Promise.”

“Cross your heart and hope to die?”

“Stick a needle in my eye.”

First thing Sunday morning, Jaywalker got a call from his former client Kenny Smith. Naturally Smith had his home number. All his clients and former clients did. It was what you did when you refused to own a cell phone but still wanted to be accessible to important people. Like your clients on Rikers Island, say.

“What’s going on?” Jaywalker asked Smith.

“Can we talk?” Kenny asked.

Ever since his voice had been identified on a wiretap ten or twelve years back, Smith had been totally paranoid about saying more than hello and goodbye on the phone. And while Jaywalker considered it unlikely that anyone might be listening in on either of their phones, he wasn’t willing to bet on it, having made an enemy or two in law enforcement over the years. Besides, he had absolutely no idea what Kenny was about to tell him. The last thing he wanted to do was assure him it was okay to talk, only to hear a murder confession and then have it played back in court six months from now.

“Have you had breakfast?” he asked Kenny.

“No. You wanna meet somewhere?”

“Nah,” Jaywalker told him. “Come on over here.”

And the thing was, he didn’t even need to give Kenny the address. “Do me a favor,” he told his wife. “Make some more of whatever you’re making?” It was a drill she’d become familiar with over time. It came down to a choice of having strange people drop over from time to time, or having her husband go out even more than he did to 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.

“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.