Joseph Teller - Depraved Indifference

But in the meantime, just in case he was wrong about any of that, there were Monday morning's witnesses to prepare for.

On Monday morning, before the jury was brought into court, Abe Firestone rose and announced his intention to call a video technician named Landon Miller to the stand. Miller was employed by a company Firestone had commissioned. They'd created a video that, according to Firestone, would recreate for the jurors the view from the driver's seat of the Audi as it crossed over into the wrong lane, narrowly missed two oncoming cars, forced the van off the road, and continued on without stopping.

"Have you shared this with Mr. Jaywalker?" Justice Hinkley asked.

"Not yet," said Firestone. "I only saw it myself for the first time this morning. I contacted the company Friday, after court. The defense has done such a good job confusing the jurors that I felt they should have a chance to see what things really looked like from the defendant's perspective."

"Sit down, Mr. Jaywalker," said the judge. He'd been on his feet, ready to explode, ever since he'd heard the word video. Words like ambush, surprise, improper and prejudicial were on the tip of his tongue. Not to mention joke, cartoon and b ullshit. But sit he did.

"Don't worry," the judge added. "You'll have plenty of time to be heard on this. Mr. Firestone, exactly when in your case were you hoping to call this witness."

"Now."

"How long is the video?"

Firestone looked over at David Kaminsky for a clue, got one, and replied, "Five minutes."

The judge sent word to the jury room that there would be an unavoidable delay before the morning session got under way. Then she ordered the courtroom cleared. As the rows emptied, Jaywalker overheard two reporters discussing going to the Appellate Division to complain. He wished them luck. The Appellate Division was in Albany, a good two hours away.

The technician, whom Jaywalker had expected to be geeky-looking but who turned out to be MadisonAvenue, button-down handsome, was permitted to enter the courtroom and, with the help of an equally attractive female assistant, set up several huge television screens, so everyone would be able to see without moving from their seats. Then the lights were dimmed, and the feature presentation came on.

Jaywalker hadn't known quite what to expect. He'd considered it quite possible that the company had gone out and gotten a hold of an Audi TT, mounted a camera on the dashboard or the driver's forehead, and recreated the route Carter Drake had taken, complete with a substitute white van and a couple of stunt drivers. What he found himself watching instead was a high-tech, full-color, professionally made, virtual-reality production. A sort of Batman Driving Badly, he decided. The windshield, the instruments on the dashboard beneath it, the hands gripping the steering wheel, and the road ahead, were neither real nor animated, but somewhere in between the two. The only thing missing was a Hollywood sound track.

Jaywalker was immediately reminded why he no longer went to the movies. There'd been a time when he'd been a lover of special effects. He could watch King Kong a hundred times over-the original one with Fay Wray, the mechanical ape, and the tiny lizards pretending to be dinosaurs. But he couldn't sit through the remake. Star Wars and its progeny had left him cold, and by the time Harry Potter came along, he hadn't even been tempted. Computerized effects had made the impossible possible, but to Jaywalker, none of it looked real anymore.

And so it was with this production. The guardrails lining the roadway weren't guardrails at all, but digitized recreations of them. The cars veering out of the way of the Audi weren't real. Even the van, slamming on its brakes as the Audi closed in on it, didn't look real. Furthermore, the five minutes Firestone had predicted was way off. From start to finish, it took less than a minute. And yet, when the van suddenly turned, fishtailed, took flight and disappeared off to the left of the giant screen, the effect was unmistakably powerful. And the Audi driver's calmly pulling back into his proper lane and continuing on without ever slowing down was nothing less than bone-chilling.

They watched it three times through, from start to finish, but it didn't get any better.

"Turn the lights back on," said Justice Hinkley. And when that had been done, she turned to the defense table and said, "Mr. Jaywalker?"

He spoke for ten minutes, citing the prosecution's breach of pretrial discovery, the dangers inherent in substituting a movie for actual testimony, and the unfair emotional impact the recreation would inevitably have upon the jurors. If they were vague about what the particular stretch of road in question looked like, let them go visit it as a group, under the court's supervision, the way that was sometimes done when one side or the other requested it. But don't show them a dumb cartoon of it.

But even as he argued he could sense, the way a good lawyer can always sense, that his words were falling on ears that, if not quite deaf, had certainly become hearing impaired.

"Don't you agree that the courts have to keep up with ever-changing technology?" the judge asked him.

"Not if it means depriving my client of a fair trial, I don't. This is nothing but an ambush. They had nine months to do this and give me a chance to hire experts to examine it. I could have made my own competing version. Instead, they slap it together over a weekend and spring it on us first thing Monday morning."

"Would you like a day's continuance?" the judge wanted to know.

"No. I'd like you to rule that whatever its probative value may be-and for the life of me, I think that's less than zero-is vastly outweighed by its prejudicial impact. I want you to keep it out."

"Would you like a voir dire of the witness, in the jury's absence?"

"No."

"Would you like the jury brought to the scene?"

"No."

"Would you like a limiting instruction?"

"Maybe I'm not making myself clear," said Jaywalker. "I want it out, period. I keep hearing what a strong case the prosecution has. Well, maybe they do. You want to take a chance and let this piece of-"

"Careful."

"— evidence in," Jaywalker continued, grateful that the judge had steered him away from the word he'd been about to use, "then go ahead. Give us an issue to appeal on. We should be thanking you." And with that, he sat down.

For a long moment, Justice Hinkley said nothing. She was too busy writing. When she was finished, she looked up and spoke in a measured, calm voice. "The court hereby holds defense counsel in summary contempt. Counsel is an experienced practitioner who knows full well that threatening a court with reversal is a breach of ethics. It is only because I believe that you've acted out of nothing but overzealousness on behalf of your client that I suspend sentence. Next time, I promise you, I won't."

Jaywalker nodded a silent thank-you.

"Now, let me ask you again," said the judge. "Would you like a twenty-four-hour continuance?"

"No."

"Would you like a limiting instruction?"

"Yes."

They spent a few minutes going over what the judge would tell the jurors when it came time for them to see the video. They would be instructed to use it only for clarification purposes, not as a substitute for the sworn testimony of eyewitnesses. But to Jaywalker, the distinction hardly mattered. This was the Age of the Video Screen, he knew, whether that screen happened to be on a TV set, a computer or what used to be called a telephone, in the old days. No matter what the judge told the jurors to do or not do, they'd get into their deliberations at the end of the case and pretty much forget who had said what. But they'd remember that white van on the big screen, veering off, fishtailing and leaving the roadway. How could they not?