Joseph Teller - Depraved Indifference

That night Jaywalker gallantly insisted on taking the upper bunk. The truth was, there was no way he was going to sleep directly beneath the two-hundred-andfifty-pound Firestone. The good news was that around midnight, Abe stopped complaining. The bad news was that a few minutes later, he started snoring.

"Michael Fishbein, eleven. Sarah Teitelbaum, eleven. Anna Moskowitz Zorn, ten. Andrew Tucker, nine. Sheilah Zucker, nine. Steven Sonnenshein, eight. Beth Levy-Strauss, seven. Richard Abraham Lubovich, six. Walter Najinsky, forty-three." One by one, he recited their names and ages. He did it slowly, and as gravely as possible. And he did it from memory. He knew that if he didn't do it, Abe Firestone would.

"None of them should have died, not one of them. And but for the actions of my client, every one of them would be alive today. Because we can all agree, every one of us, that it was Carter Drake who set into motion the chain of events that took them from this life, and took them from you. In a very real sense, he bears responsibility. He will go to his grave bearing responsibility. He will meet his Maker bearing responsibility. Knowing full well that he would have to drive home that evening, he drank too much, perhaps far too much. That was an incredibly selfish act on his part, an act that neither you nor I, nor even this court, has the power to forgive.

"But we are a nation of laws, and a trial is an inquiry into whether our laws have been broken. Nothing more, nothing less. And under our laws, selfishness-no matter how blatant and how repugnant it may be to us-is not a crime. Search for it in the indictment. Read all ninetythree counts. You will find no mention of selfishness, no charge of arrogance, no accusation of ultimate responsibility. What you will find are the names of ninety-three specific crimes alleged to have been committed by my client at about nine o'clock on the evening of the twentyseventh day of May, some eight months ago. And as it turns out, despite his insistence that he is guilty of every one of those crimes, Carter Drake is guilty of none of them."

He let that hang in the air a moment. He'd woken up during the middle of the night, Jaywalker had, totally disoriented, with no idea where he was. Only the sound of Abe Firestone's snoring had jarred him back to reality. Then, as he lay on his back on the upper bunk, the ceiling only inches from his face, a flood of panic had washed over him. Had the jurors caught Drake's left-handed blunder? Did they understand the significance of his inability to downshift? Or had those things gone right over their heads? He hadn't slept after that, had instead spent the rest of the night fighting off the sensation that the cell was filling with water. The rise and fall of Firestone's breathing beneath him became a giant bellows-driven pump, gushing out invisible gallons of seawater that would eventually rise and engulf him. He had failed, he knew. In his inability to get Drake to finally come out and admit he hadn't been driving, he'd left the jurors with too little to go on. They were going to convict.

That had been last night.

Now it was today. And if they were going to convict, they were going to do so over Jaywalker's dead body.

"You and I came into this trial," he told them, "absolutely certain of two things. The first thing we were certain of was that nine people, eight of them very young children, had died horrible, horrible deaths. Needless deaths. The second thing we were absolutely certain of, or at least thought we were absolutely certain of, was that it was my client who'd been driving the Audi when it ran the van off the road and caused those nine deaths. I was every bit as certain of that as you were. And for much of the trial, nothing happened to cause us to question that certainty. After all, hadn't the defendant turned himself in? Wasn't it his car? Didn't Concepcion Testigo point him out, remembering him from his yellow hair? And most of all, didn't the defendant himself tell you that he was driving? And even now, doesn't he continue to insist that he was?

"Well, it just so happens we were wrong, you and I. Carter Drake turned himself in because he wanted to protect his wife from getting into trouble, just as he'd wanted to drive home that evening because he wanted to protect his underage son from getting into trouble. And because he turned himself in, and because it was his car, nobody ever gave it a second thought. Not the police, not the prosecutors, not even I. So you're in pretty good company. And as far as Concepcion Testigo is concerned, the driver of the pickup truck, don't blame him. What did he tell you? 'I only got a quick look at the driver, but I did get his license plate.' 'Which plate?' Mr. Firestone asks him. 'Front or rear?' 'Rear,' says Testigo. 'Do you see the driver in court?' Firestone asks. 'I think that's him, over there,' says Testigo. 'I remember his yellow hair.'

" 'I remember his yellow hair.'

"Who else in this case just happens to have yellow hair?" Jaywalker asked them. And he saw the name Amanda on sixteen pairs of lips. So he simply nodded.

"How did we discover, you and I, that it was Amanda Drake who was driving? We discovered it purely by accident, Carter Drake's accident. He was trying to demonstrate how he tried to jam the stick shift into a lower gear. And then he was so intent on showing you that he made a mistake. And when you stop to think about it, it was the most natural mistake in the world. Because it was the truth. Carter Drake used his left hand, the one he actually used that night. Had he been behind the wheel, surely he would have used his right hand. There can be absolutely no doubt about that. If any of you aren't sure, look at Investigator Sheetz's photo of the interior of the Audi, and you'll see." He held up the photo. "Carter Drake used his left hand in the demonstration just as he used it in real life. And his doing so proves conclusively that he was in the passenger seat. There can be no other explanation. None."

At least four jurors-now five, six-were nodding in agreement. They weren't happy about it, but they were nodding.

"But there's even more," he told them. "Why couldn't he get the Audi in a lower gear in order to slow it down? You saw how hard he tried. Well, we know there was nothing wrong with the car. Sheetz told us that. They checked it out thoroughly, inside and out, no doubt because they didn't want Drake coming in here and saying there had been some sort of mechanical failure that had caused him to speed up and swerve into the wrong lane. So we know we can rule that out.

"Once again, there's only one possible explanation. In order to change gears, you first need to do something else. You first need to use your left foot to step on the clutch, the pedal on the far left." He turned his back to the jurors so he was facing the same way they were, and gestured from right to left. "Accelerator, brake, clutch. Carter Drake couldn't depress the clutch because he couldn't reach it. And he couldn't reach it for one reason, and one reason only.

"He was in the passenger seat.

"I'd love to add one other thing, to talk about Amanda's refusal to say whether or not she was driving. But Justice Hinkley will tell you that you may draw no conclusion from that."

Firestone objected, and the judge instructed the jurors to disregard the comment, but they were both too late. A lot of cases are won by putting something in evidence. Every once in a while, though, a case is won by putting something in the ear. Amanda's having taken the Fifth, invoking it at the precise moment when she would otherwise have had to incriminate herself, was simply too important to leave out. It would be worth another night in jail, if it came to that. It would be worth a week of nights, if only they could find him a no-snoring cell.