Joseph Teller - Depraved Indifference

But Amanda's absence left Jaywalker with basically no one to pass the time with. Even when he wasn't complaining or snoring, Firestone was hardly the best of company. Kaminsky was bookishly smart, but awfully nerdy. And to paraphrase an old saying, Napolitano was cute but young. And the media, as always, was off-limits to Jaywalker. That left the gawkers and the courtroom staff, good for five minutes' banter now and then, but not much more. So he sat in the courtroom by himself, going over what he'd said in his summation and how he might have said it just a little bit better.

Vintage Jaywalker.

The second note didn't come out until three-thirty.

The jurors wanted to know if they could find the defendant guilty on counts eighty-six and eighty-seven on the theory that he'd committed them earlier in the day, when he'd driven from New York City to Nyack, and then again from Frank Gilson's office to the End Zone.

Jaywalker knew the indictment by heart, all ninetythree counts of it. Counts eighty-six and eighty-seven charged Drake with driving without a valid driver's license and without insurance. Both were violations of the Vehicle and Traffic Law that paled in comparison with the more serious charges. In fact, even if Drake were to be convicted of both of them, he'd already spent enough time in jail that his sentence would have to be the equivalent of time served, or perhaps a fine.

But far more important than the jurors' interest in those charges was what their question meant: that they'd decided, or were on the verge of deciding, that Amanda had been driving the Audi at the fateful moment, or at least that there was reasonable doubt as to whether Carter had been. What they were asking now was whether they could nonetheless convict Drake of something. And they'd seized upon the two counts they were asking about knowing that when Drake had driven up to Nyack that morning, and later to the End Zone that afternoon, he hadn't been licensed or insured.

This was good. This was very good.

Justice Hinkley asked the lawyers for their reactions.

"Sure they can," said Jaywalker. He'd be giving up virtually nothing. And by tossing the jury a bone, the payback would be enormous, an acquittal on the remaining charges. The ones that counted.

"Mr. Firestone?" the judge asked.

"I don't give a rat's ass," said Abe. He might not have been the sharpest tack in the toolbox, but he, too, could see where this was going.

Justice Hinkley pulled out her copy of the indictment, thumbed to the two counts in question, and studied them. "Both of these counts specify a time," she said, "'at or about nine o'clock in the evening.' It's clear to me that the grand jury had in mind the time of the accident. For me to tell the jury yes, they can nevertheless convict the defendant on those counts based upon his driving earlier in the day, would constitute both an amendment and an enlargement of the indictment, something I have no power to do. Accordingly, I'm going to tell them no, they cannot do that."

Jaywalker protested, offering to waive any appeal on the issue, but the judge refused to change her mind. And she was right. Having voted the indictment in the first place, only the grand jurors had the power to amend it. And they'd been discharged months ago.

"Bring in the jury," said the judge.

Just as he could read a lot more into a note than the words it contained, so too could Jaywalker read the faces of jurors in the midst of deliberations as they entered the courtroom. Any trial lawyer learns to do that. At least any good one.

It's a good sign if they're willing to look at the defendant and his lawyer, a bad sign if they're not. A smile is to be treasured, as is any sort of laughing, joking or looking relaxed. Even the way they make their way to the jury box is telling. Jurors who are leaning toward acquittal will think nothing of walking close to the defense table; those in the conviction camp will steer clear, favoring the prosecution table.

This jury was angry.

They didn't smile, they didn't joke, they didn't relax. They avoided both the defense and the prosecution tables. And the only eye contact they made was with the judge.

Hearing that they could convict the defendant of driving without a license or insurance only if they were convinced beyond a reasonable doubt that he'd done so at or about nine o'clock on the evening in question seemed to make them angrier. Their faces grim, they filed out and returned to their deliberations.

The buzzer sounded twice at 4:46.

A single buzz meant the jurors had a note.

A double buzz meant a verdict.

The courtroom filled up almost immediately. Carter Drake was brought in through a side door. Jaywalker said a final prayer to a God he didn't believe in and took his seat next to Drake.

"What do you think?" Carter asked him.

"I have no idea."

He had all sorts of ideas, of course, and they were all banging around furiously in what was left of his brain. But they were drowned out by the pounding in his chest and at his temples, and by the rushing noise in his ears. And even were he to admit his hunch to himself, that they were about to hear the words Not guilty, he would never say so out loud. Not in a million years.

When the jurors filed in for the last time, they seemed as angry as they had been before, and as unwilling to make eye contact as ever. And studying them, Jaywalker hoped he understood that anger. Let them be angry, he prayed. Let them be angry at Carter Drake, but only for setting in motion the chain of events that hadn't ended until nine people lay incinerated beyond recognition. Let them be angry at Amanda for whatever she'd done to cause the Audi to wander into the wrong lane, and to fail to get it back where it belonged. Let them be angry at the prosecution for being so stupid as to indict the wrong person. Let them be angry at me for being the one to show them they had to acquit. Let their anger be the anger of frustration, not the anger of retribution.

"Will the foreperson please rise?"

Juror number one stood. She was a pleasant-looking woman, a teacher's aide with two young children of her own. She was thirty-four, she'd told them during jury selection a thousand years ago, and an orthodox Jew who wore a wig in public and kept a kosher home. And to look at her face, she was very, very nervous. But Jaywalker wasn't looking at her face. He was looking at her hands. They were empty. They held no verdict sheet, no note, no written breakdown of how the jury had voted on each of the ninety-three counts in the indictment.

Which could mean only one thing.

Either the jury was about to convict Carter Drake of everything, or they were going to convict him of nothing.

"Will the defendant please rise?" said the clerk. And as Drake stood, so did Jaywalker. He'd been secondguessed for that a couple of times, accused of showboating, even asked once if he was prepared to share the defendant's sentence in the event of a conviction. "Sure," he'd said, having already seen the jurors' smiles. The point was, he didn't care what others thought. It was his verdict as much as his client's. If the jury was about to reject his client, then they'd rejected him, too, and he'd take it standing up. What warrior ever chose to sit before his firing squad?

"Madame Forelady, has the jury reached a verdict?"

"Yes, we have."

"As to all ninety-three counts?"

"Yes."

"On count one of the indictment, charging the defendant with the murder of Walter Najinsky on the theory of recklessness evincing a depraved indifference to human life, how do you find the defendant, guilty or not guilty?"

It would have taken an hour, perhaps more, for the clerk to read each of the counts contained in the indictment, and for the teacher's aide to recite the words Not guilty ninety-three times. Graciously, if perhaps a wee bit testily, Abe Firestone rose to his feet after five such recitals, and suggested that the court might wish to inquire whether the news on the remaining eighty-eight counts was going to follow the pattern suggested by the first five.