Joseph Teller - Depraved Indifference

THE COURT: Sustained. Strike the word widely.

FIRESTONE: And I don't like the word estimates, ei ther.

JAYWALKER: Well, isn't that special.

FIRESTONE: It wasn't their estimates, it was their recollections.

THE COURT: Quiet, both of you.

(Laughter)

THE COURT: It was their testimony.

JAYWALKER: Perfect. And while the testimony of those witnesses varied, with some guessing-I'm sorry, testifying — that you had as many as six or seven tequilas, you sit there and tell us it was only two, and under no circumstances more than three. How can you be so certain?

DRAKE: Because I was the one who was drinking them. I kept count. I knew I had to drive home, so I cut myself off. I'm not saying the other witnesses lied. I'm sure they testified to the best of their recollections. But I dropped out, I really did. Though I must admit I kind of pretended I was still in.

JAYWALKER: Why did you do that?

DRAKE: I guess I didn't want to come off as a wuss.

JAYWALKER: A what?

DRAKE: A wuss. It's what we used to call a party pooper.

JAYWALKER: And was there any special reason why you didn't want to be perceived as a wuss?

DRAKE: Well, for one thing, nobody wants to be perceived as a wuss.

JAYWALKER: And?

DRAKE: And I guess maybe I was trying to make an impression on the ladies.

JAYWALKER: What is the present status of your marriage, Mr. Drake?

DRAKE: My wife and I are separated.

JAYWALKER: For how long now?

DRAKE: For about a year.

JAYWALKER: So then by the time you went to the End Zone with Frank Gilson, you'd already been separated some five or six months. Is that correct?

DRAKE: That's correct.

Jaywalker brought him to the point where Riley the Bartender had asked him to call home. He'd put up a fuss, Drake readily admitted, but only because he'd stopped drinking about an hour earlier, was already sobering up, and considered himself fully capable of driving.

JAYWALKER: So why hadn't you left?

DRAKE: Because I was having a good time. And because I wanted to be on the safe side, and give myself a little more time before getting behind the wheel.

JAYWALKER: But you did make a call?

DRAKE: Yes. I mean, I wasn't about to get into a fight about it, or anything like that.

JAYWALKER: Whom did you call?

DRAKE: I called by wife. She was the only person I could think of who lived close enough to me and would be willing to do it. And I figured she'd be able to bring our son along.

JAYWALKER: Even though you and your wife were separated?

DRAKE: We still loved each other, and cared about each other. We'd separated because we'd begun to argue too much, and too often. It was supposed to be a trial thing. We'd started seeing a marriage counselor, in fact, working towards resolving our issues.

Jaywalker established that Drake had had no more to drink while waiting for his wife to show up, and that he'd left the End Zone as soon as Eric had walked in. But once outside in parking lot, he'd insisted that he was going to drive himself home.

JAYWALKER: Why did you do that?

DRAKE: Several reasons. First of all, I remembered that my son only had a learner's permit. He wasn't allowed to drive alone or after dark. Second, I was convinced I was fine. And third, the Audi takes some getting used to. It's very fast, very responsive. And again, it was night, it was dark out. Amanda-that's my wife-wasn't really used to it. All things considered, I felt it was safest for me to drive it, and for her to follow me in her car.

JAYWALKER: Did Amanda agree to that?

DRAKE: No. She started arguing with me, and I argued back. We started yelling at each other. At some point, Eric, who'd walked back to her car and gotten into it, drove off.

JAYWALKER: What happened next?

DRAKE: I got into my car and started it up. I told my wife it was up to her. She could get in or stay there in the parking lot. She got in.

JAYWALKER: And?

DRAKE: And I began driving home.

JAYWALKER: How did that go?

DRAKE: At first, it went fine. I had absolutely no trouble driving. No trouble at all.

JAYWALKER: But at some point, I gather that changed?

The question was deliberately open-ended. Even at this point, an hour into his client's direct examination, Jaywalker had absolutely no idea what to expect next. Would Drake tell the wasp story, banking on the fact that his wife would have no choice but to back him up on it? Or would he abandon it and go with the argument narrative, and then try to come up with some other way of extricating himself from responsibility? It was truly weird not knowing, absolutely bizarre. Jaywalker-the compulsive, driven, overpreparer, the dotter of all i's and crosser of all t's-was totally clueless. Here he was, suddenly at a fork in the road where he had to turn left or right, and he had absolutely no idea which it would be. He was about to follow his client's lead, the last thing in the world he ever wanted to do. But what choice did he have?

It didn't take long for him to find out which fork they were taking.

DRAKE: Yes. I noticed a wasp flying around in the car.

JAYWALKER: A wasp?

DRAKE: Yes, a wasp. You know, like a hornet.

JAYWALKER: And why did that change things?

DRAKE: I'm very allergic to insect bites. I've ended up in the emergency room several times.

JAYWALKER: What happens when you get stung?

DRAKE: I get what's called an anaphylactic reaction. My throat closes up, among other things, and I'm unable to breathe. Each time it happens, it gets worse. I've been told that the next one could kill me.

FIRESTONE: Objection.

THE COURT: Come up.

Up at the bench, Firestone, prompted by David Kaminsky tugging at his elbow, argued that what Drake had been told was hearsay. "It's an out-of-court utterance," he pointed out. "And whoever supposedly told him this, even if I were to believe him, isn't here for me to cross-examine."

"It's not hearsay at all," said Jaywalker, who for all of his idiosyncrasies, knew his evidence. "It's not being offered for the truth of the statement. It's being offered only to show his state of mind, and to explain why he did what he did next."

He could have added that he'd be calling his client's doctor to the stand later on-Drake had made certain of that by choosing the wasp fork-but he decided not to tip his hand. Better to let Firestone blunder into that by accusing Drake of making it all up.

THE COURT: Overruled. Step back. The answer will stand.

JAYWALKER: Who told you the next reaction could kill you?

DRAKE: My doctor. The doctors and nurses in the emergency room. All the reading I've done about it. I have to be very, very careful.

JAYWALKER: So what happened when you noticed the wasp flying around inside the car?

DRAKE: I opened the windows, and I asked my wife to try to get it out or kill it. But she wouldn't. She was still angry with me, and she refused. At one point, it landed on the windshield. There was a newspaper on the console, between the seats. I grabbed it, rolled it up, and tried to swat the thing.

JAYWALKER: And?

DRAKE: I missed it, and it began flying around again like crazy. I must have made it angry or something, because all of a sudden it was like it was trying to get me, buzzing all around my head, trying to get at my eyes. I tried to slow down, but I must have had my right foot on the gas pedal instead of the brake, because the more I tried to slow down, the faster we went. And at some point I must have lost control, because all of a sudden I looked up and we were in the wrong lane. I tried to downshift, to force the stick shift into second or third, but I couldn't, I couldn't.

And here Drake gestured with his left hand, showing how hard he'd tried to slam the thing into a lower gear. And his demonstration was so convincing, and his voice so anguished, that Jaywalker nearly missed it.