LITMIR.BIZ

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he could see that each of the attacks had taken place in the early afternoon hours. Even though he’d been expecting as much, seeing it in black and white came as a major blow. It meant Darren had no alibi. He hadn’t been at work during any of the incidents.

      Jaywalker reacted almost viscerally. During those early weeks and months, his belief in Darren’s innocence had swung back and forth like an unseen but ever-present pendulum. One day Darren would look him in the eye and swear he knew nothing of the rapes, and Jaywalker would believe him with all his heart. The next day would bring some new fact or development that would point directly and inexorably at Darren, and Jaywalker would be filled with doubt all over again. The realization that he wasn’t going to be able to call a single witness to account for Darren’s presence on any of three separate days was a perfect example. And with each such setback, Jaywalker had to contend once again with the distinct possibility—indeed, the overwhelming probability—that maybe they had the right guy after all.

      Pope’s response continued. He stated that he had no admission or confession of Darren’s to offer at the trial. He conceded that a pretrial identification hearing would be necessary, because a photographic lineup had been conducted, and a judge would have to decide if it had been fair or overly suggestive. He resisted supplying the defense with police reports the law didn’t require him to turn over yet. And he opposed the request for a severance, contending that all four attacks should be tried together, as one case.

      The severance issue was one that bothered Jaywalker. Did he really want one grand roll of the dice, a single trial including all of the victims, winner take all? Or would it truly be better if the case were split up into four, so that a jury trying one part of it wouldn’t even learn of the other three attacks? The advantage to such an approach was obvious: they would avoid the prejudice that would flow from the sheer number of incidents and wouldn’t have to contend with a jury’s falling into a where-there’s-smoke-there’s-fire mindset. But there was an equally obvious downside, too: severance would give Pope multiple opportunities to convict Darren. They were looking at as many as four separate trials—five, if the remaining victim surfaced. He could win three or even four times, only to lose the last one, and still have Darren end up with a fifteen-or twenty-five-year prison sentence.

      As the defense lawyer, Jaywalker had had no choice but to make the motion. Failure to have done so would have risen to the level of ineffective assistance of counsel, maybe even malpractice. More to the point, it was the right thing to do. But now, as he thought about it, he began to wonder if they shouldn’t be careful about what they asked for, on the chance that they might just get it.

      He opted to postpone making a decision on the matter. It could wait, he knew, until such time as he and Pope had to argue the question in front of a trial judge. By that time, though, he would have to decide if he really wanted separate trials or would prefer for the judge to turn him down. There was a way to argue forcefully, after all, and a way to just go through the motions. Besides which, if his motion was turned down and they were forced to defend against all the charges in front of a single jury, and convictions resulted on all counts—as they almost surely would—the issue would have been preserved, and the judgment might well be reversed on appeal. Then, with retrials ordered, they would get a second bite at the apple—or four or five bites, to be more accurate.

      The phone rang. It was John McCarthy, calling with the initial results of some legwork. By checking NYPD and Housing Authority records, he’d confirmed that a fifth victim, Maria Sanchez, had been attacked. But she’d been only fourteen, and her parents had refused to let her view photos, testify at the grand jury or otherwise cooperate with the investigation. About all McCarthy had been able to find out about her was that she’d lied about her age to her attacker, telling him she was only twelve, and he’d let her go. McCarthy had also gotten hold of the various descriptions of the perpetrator given by the victims following the attacks. To McCarthy, it seemed there were more than the usual discrepancies that invariably arose. All the victims had described a man slightly heavier and a bit older-looking than the twenty-two-year-old Darren. And although all of them had reported things the attacker had said to them, none of the reports included any mention of a stutter. He was anxious to take a shot at interviewing the victims himself.

      Jaywalker thought about it, but only for a moment. “No,” he said. “I want you to hold off. I want Pope’s answer on the polygraph first.”

      “These witnesses don’t belong to him, you know.”

      It was true. Despite the common perception that someone is a prosecution witness or a defense witness, those labels only attach at trial and are determined by which side calls the individual to the stand. Unlike expert or character witnesses, “fact witnesses,” as they’re called, are the exclusive province of neither side; their only allegiance is to the facts themselves. Or so the theory goes.

      “You’re right,” Jaywalker told McCarthy. “But I can’t afford to make waves right now. You reach out to the victims, the first thing they’re going to do is pick up the phone and call Pope or Rendell. They may even have been instructed to do so. That could sour Pope on the polygraph. And the way I look at it, John, that little black box may be the only real chance this kid has. So I need you to hold off for now.”

      “Hey,” said McCarthy, “it’s your show, Jay.”

      They went over a few other things before hanging up. McCarthy was right on both counts, Jaywalker knew. They needed to interview the victims, and it was Jaywalker’s show. And when it came down to the tough calls, he had to make them and hope he was right. On this one, he had to play it safe.

      Which didn’t stop him from wondering if maybe his biggest mistake hadn’t been deciding against becoming a doctor.

      

      October came. The motions Jaywalker had made and Pope had opposed were formally submitted to the Part 12 judge for consideration, a process that would take several weeks. This was a bail case, after all, and there was no particular urgency on anyone’s part to put it on a fast track. The fact that there were motions outstanding meant they would be looking at another postponement on the next date, as well, the 18th.

      Again Jaywalker played catch-up with the rest of his cases, and reintroduced himself to his wife and daughter. They made it to a museum and a movie, and he even created a pizza from scratch, managing not to burn the bottom of the crust too badly. They paid a visit to a farm stand and bought the biggest pumpkin they could find. It took up the entire backseat of the Volkswagen, weighed about a ton, required all three of them to lug it into the house and cost Jaywalker half the retainer that Marlin Kingston had pressed into his hand a month earlier.

      Not that Marlin hadn’t been as good as his word, following up with small sums every time they met at court or at Jaywalker’s office. And to a lawyer accustomed to getting most of his income in the form of small checks, smaller money orders, bail receipts conditioned upon a defendant’s return to court or hand-scribbled IOUs, cash was always a delight, even as it had a way of burning a hole in Jaywalker’s pocket. But no matter. As his daughter assured him, it was a great pumpkin, Charlie Brown.

      

      The 18th came, and with it the first court appearance before the man who would become Darren Kingston’s trial judge.

      Even though it’s a jury that renders the verdict, the judge can affect that verdict in many ways—some major, others minor; some obvious, others subtle; some entirely legitimate, others highly inappropriate. The judge decides if the defendant remains out on bail or is returned to custody once the trial commences. He rules on motions, acting as both judge and jury at pretrial hearings. He decides which items of evidence will be allowed in and which will be kept from the jury. A judge can shape the outcome of a trial by sustaining or overruling a single objection, or by the way in which he treats one lawyer or the other in front of the jurors, or by something so seemingly insignificant as the inflection of his voice when he reaches a key word or phrase during his charge to the jury. So it not only matters who the trial judge is, it matters a lot. Any lawyer who doubts that ought to think seriously about another career.

      Max Davidoff was in his mid-to late-sixties, but his face was deeply lined and his hair nearly white. To Jaywalker,

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