Joseph Teller - Guilty As Sin

EGAN: What actually happened was that Investigator Bucknell made it into the building, just as he said. But by the time he did, the elevator door had already closed and the defendant was riding up in it. Bucknell watched the lights on the panel above the door and saw that the elevator stopped on the eighth floor. He left the building and reported that observation to his supervisor on the task force, Lieutenant Dino Pascarella.

PULASKI: And what did Pascarella do?

EGAN: Pascarella got in touch with me. He said he was concerned because it just so happened that he knew of a confidential informer who lived on the eighth floor of that particular building.

PULASKI: And what did you do?

EGAN: I have a master cross-index of all confidential informers involved in narcotics investigations with the NYPD. That means it can be accessed by name, nickname, address or telephone. I went to the list and conducted a search referencing 345 West 127th Street. And I got a hit. On the eighth floor was the apartment of an extremely high-value informer, someone who’d been providing the department with critical intelligence in major undercover operations for a number of years.

The way he said it conjured up images of special ops capers in Vietnam or Cambodia. Which was no accident, Jaywalker knew.

PULASKI: What did you do when you made that discovery?

EGAN: I convened a meeting with Lieutenant Pascarella, Deputy Chief Finn Murphy-that’s my boss-and a detective named Jeremiah Yarborough. Yarborough was running the CI in question.

THE COURT: Would you mind giving us that in English, Captain?

EGAN: Sorry. Detective Yarborough was the department’s contact with the informer.

THE COURT: Thank you.

PULASKI: What was the result of that meeting?

EGAN: It was decided that the identity of the informer had to be protected at all costs. He was that important. So Lieutenant Pascarella was directed to speak with Investigator Bucknell and have him sanitize his reports in such a way as to keep the eighth floor destination out of them. At the same time, he was instructed to do so without adversely prejudicing the rights of the target of the investigation, Alonzo Barnett, in any way.

PULASKI: And did Bucknell do that?

EGAN: He did.

PULASKI: And that accounts for the fact that he told us in court that Mr. Barnett rode to the twelfth floor instead of the eighth floor?

EGAN: That’s correct.

Years later, Jaywalker would read in astonishment each time the Supreme Court upheld the State Secrets Act, not just permitting, but requiring, lower courts to throw out lawsuits whenever the federal government claimed that letting such suits proceed would compromise national security. Not that he’d be the only citizen to recoil at the notion. But thanks to what he was listening to right now, he’d be one of a precious few to experience a deja vu moment. He would truly be able to say he’d been there, heard that.

But if anything, this was even worse. Egan wasn’t merely suggesting that the authorities could avoid litigating an issue by making the naked assertion that it was too sensitive to talk about, he was advancing the proposition that committing perjury in open court during a criminal trial was acceptable. That it all came down to a balancing test of sorts, in which the end could justify the means.

And the defendant?

Tough shit.

After all, the defendant was nothing but a two-bit dope dealer with a criminal record as long as his arm. How could he possibly stack up against an extremely high-value informer who’d been providing critical intelligence in major undercover operations for a number of years? And this nonsense about doing things in such a way as to not prejudice the defendant’s rights? While that must have sounded good to the jury, since when had it been left up to the police department to be the judge of that? Unfuckingbelieveable.

Yet for the moment, all Jaywalker could do was shake his head in bewilderment and listen as Daniel Pulaski turned to the judge and said, “This might be a good point for us to take up my application again.”

Once the jurors were out of the courtroom, Pulaski stated the obvious, that he was about to ask his witness to reveal the name of the informer. Judge Levine responded by saying that unless Jaywalker had something to add to his previous objection, she was prepared to close the courtroom.

“You bet I have something to add,” said Jaywalker. “Based upon Captain Egan’s admission that there’s not only been perjury committed by a previous prosecution witness, but that the perjury was the result of a deliberate, concerted effort to mislead the court, the defense and the jury, I move to dismiss all charges against my client.”

The judge turned to the prosecution table. “Tell me,” she said. “Did either of you know about this? Did you know, either in advance or at the time Investigator Bucknell testified, that he was telling anything other than the truth?”

“Absolutely not,” said Miki Shaughnessey.

“No,” said Daniel Pulaski.

Jaywalker was inclined to give Shaughnessey the benefit of the doubt. Pulaski was a different story. Still, there was no way he could show that either of them wasn’t telling the truth.

“If I may use a sports metaphor,” said Pulaski, “this is really a case of no harm, no foul. In no way has the defense been prejudiced by-”

“Sit down,” Levine told him. “I’m frankly not interested in your sports metaphors. Mr. Jaywalker is right in characterizing this as a deliberate, concerted effort to mislead the jury. And if I thought for a moment that you or any member of your office was involved in the deception, I would grant the motion. That said, I’m not sure Investigator Bucknell’s lie rises to the level of perjury. Perjury requires that the lie be about some material fact. Can you convince me, Mr. Jaywalker, that changing where the defendant went, from the eighth floor to the twelfth floor, was a material misstatement?”

Jaywalker spent the next five minutes on his feet, giving it his best shot. But the strongest argument he could come up with was that Bucknell’s lie may have led the jurors to disbelieve Alonzo Barnett’s testimony that it had been to the eighth floor, specifically to Apartment 805, that he’d gone. And if they disbelieved him on that point, they could well conclude that he’d lied about other things, as well. But as the judge was quick to point out, Egan’s testimony now supported Barnett’s version. And if that remained unclear to the jurors, Jaywalker was free to emphasize it on cross-examination and argue it on summation.

“So,” Levine continued, “while I think some sanction against the People is warranted, I don’t find that the situation requires dismissal. Any suggestions short of that, Mr. Jaywalker? Such as an instruction that the balance of Bucknell’s testimony be regarded with skepticism?”

“No,” said Jaywalker. For one thing, he couldn’t think of a lesser remedy. For another, he was afraid that anything less than outright dismissal might satisfy an appellate court without really accomplishing anything for the defense.

“I’m willing to tell the jury that Investigator Bucknell may face departmental charges as a result of what he did.”

“Absolutely not,” said Jaywalker. As he saw it, Bucknell was a patsy taking the fall for others. He’d done his job by originally reporting to Pascarella that he’d seen the elevator stop at eight. Then he was told to sanitize his testimony. Sanitize. Now he was being outed as a liar. The last thing Jaywalker wanted was for the jurors to feel sorry for him and return a conviction in an attempt to protect him from being disciplined.

So in the end the judge did nothing.