Guilty as Sin (4 page)

“What?”

“He was right,” said Barnett. “He
had
saved my life, and I
did
owe him. When it came right down to it, that was the truth. And it was a truth that no matter how hard I tried to look away from it, it kept looking me in the face.”

“So…?”

“So I said okay. The next day I made a few phone calls and found out who was doing what. It wasn't hard. And I paid off the favor, just like he asked. Just like he told me I owed him.”

They talked for another forty-five minutes about what had followed. Jaywalker jotted down some details on a yellow pad. But he hardly needed to. He knew the story. He'd known it before he'd become a lawyer ten years earlier. He'd known it from his undercover days as a DEA
agent. Unbeknownst to both Clarence Hightower and Alonzo Barnett, the customer—the “real live one” with all sorts of cash money, the one looking to buy weight—was the Man. And the story wouldn't end until both men had been arrested, Hightower for possession and Barnett for sale.

As they say, no good deed goes unpunished.

 

Replaying the story in his mind that night, Jaywalker was struck by the almost tragic aspect of it. Here was a guy who'd done everything right. Given up drugs, found a job and a place of his own, kept his nose clean, even reestablished contact with his daughters. And then along comes his past to catch up with him. He says no half a dozen times, only to be told he has a debt to repay, a favor owed. So he does it. And as a result, his whole world comes crashing down.

Jaywalker could recite the various defenses to crimes laid out in the Penal Law, as well as others mandated by the Constitution, remembered from law school, or grounded in case law or common law. He knew which were complete defenses and which were partial ones, which were primary defenses and which were affirmative ones.

There was alibi. There was justification, coercion and duress. There was entrapment and agency. There was infancy, along with insanity, incompetence, incapacity and impossibility. There were abandonment, renunciation and attenuation, lack of intent and lack of scienter. There were misidentification and mistake, whether of fact or law. Diplomatic immunity, transactional immunity and use immunity, the statute of limitations and the statutory right to a speedy trial. You had voluntary intoxication and involuntary intoxication, ex post facto and post-traumatic
stress. Then you had extreme emotional disturbance, malicious prosecution, vindictive prosecution and selective prosecution. Also lack of jurisdiction and improper venue, double jeopardy and double punishment.

But nowhere, absolutely nowhere, was there a defense called “doing somebody a favor.”

Grasping at straws

T
he average lawyer would have stopped right there, Jaywalker knew. Here was a client who was flat-out admitting his guilt to every single one of the charges against him. No ifs, ands or buts. The only explanation he could come up with for his actions—that he'd been doing somebody a favor—was no defense at all. Try killing someone and then telling the police it was just a favor you did for a friend, and see how far that gets you.

Yet, as Jaywalker and Barnett had continued to talk, Barnett had made it quite clear that he had no intention of pleading guilty. “Look,” he'd said, “if I'm going to spend the rest of my life in prison—and it looks like I am—the last thing I want to do is put myself there. I may not have much of a chance at trial, but if I lose, at least I'll be able to say I went down swinging.”

Much of a chance at trial?

Try
no chance at all,
Jaywalker had told him, though not quite in those words. But it hadn't seemed to matter. Alonzo Barnett was stone-cold guilty. The prosecution could prove it, and in spades. Without even a theoretical defense, Jaywalker had absolutely nowhere to go at
trial. Yet a trial was exactly what Barnett was insisting on having.

Not that any of those things, or all of them added up, would have fazed most lawyers. Especially those working on the clock. To most of them, a trial simply meant a bigger payday. Not that you got rich back then on assigned counsel rates. But even at forty dollars an hour for in-court time and twenty-five for out-of-court, a two-week trial could generate a nice four-figure check. And since there was no chance of winning, there was also no pressure on the lawyer to knock himself out. If the defendant wanted to take the stand, fine. If he didn't, also fine. Either way, it was going to be his funeral.

The problem was, of course, that Jaywalker wasn't your average lawyer. Never had been, never would be. If Alonzo Barnett wanted a trial, then a trial he would get. But that didn't mean that Jaywalker was going to relax, sit back and listen to the meter click. Doing any of those things would have been constitutionally impossible for him, the functional equivalent of his donning a tuxedo, renting a stretch limo and going out dancing.

The problem was, where to begin?

A lawyer who comes into a case late finds himself at a serious disadvantage. Prior to his arrival, his adversary has been at work lining up witnesses, cementing and reconciling their stories, boning up on the law if necessary, and doing hundreds of other little things to maximize his head start. Which isn't to say that Jaywalker's predecessors on the defense side hadn't been doing some of those things, too. But occasionally there's a good reason—or even a number of good reasons—behind a client's dissatisfaction with his representation.

Jaywalker had come into Alonzo Barnett's case a full year and a half late, and had had not one predecessor, but
three of them. The day after his second sit-down with Barnett, he took stock of what those lawyers had done, or failed to do, before his arrival.

First was the fact that none of them had made a serious attempt to get bail set in the case. While that might have made sense early on in the proceedings, at a time when Barnett had a parole violation detainer on him and couldn't have gotten out in any event, there'd soon come a time when the detainer had been lifted. Barnett had had so little time remaining on his parole that the authorities had simply terminated him, marking his file closed with the notation “unsatisfactory adjustment.” Whether whoever was representing him at the time had noticed or not, or even bothered to check, was unclear. The result had been that on the new arrest, Barnett continued to be held in remand status. Jaywalker checked, of course, and when he discovered the omission, he went back in to see his client and bring him the news.

“Is there any amount of bail you could make?” he asked. “Anything at all?” He knew that even a defendant on a bad case with a bad record had a chance of getting a reasonable bail in Shirley Levine's courtroom. And in addition to knowing his client would much prefer to be out than in, Jaywalker had selfish reasons of his own in mind. It's much easier for the lawyer when he can meet with a defendant in his office than it is when he's got to visit him in jail. Even a jail around the corner from the courthouse, like the Tombs. And after all, Barnett had been caught selling heroin, and in pretty substantial amounts. It was only logical to figure he might have some money stashed away somewhere.

But Barnett surprised him.

“Don't get me bail,” he said.

Which marked a first for Jaywalker. Because the thing
is, every detainee ever locked up in the history of the world wants to get out, with the possible exception of some homeless drunk in the middle of winter who's happy to have “three hots and a cot” while he sleeps things off.

But Alonzo Barnett was neither homeless nor drunk, and instead of it being midwinter, it was mid-May. So Jaywalker was forced to ask him why he didn't want to get out.

“It would be too hard on my daughters,” Barnett said. “I've told them to give up on me, that I won't be coming out for a very long time, if ever. And it would be too hard on
me,
knowing I'd be living on borrowed time and would have to turn myself in sooner or later. I might decide to do something stupid, like run away. I couldn't do that to my girls. Although,” he added, “I've got no place to run away
to.
”

In the end, Jaywalker convinced Barnett that it made sense to have a bail amount set, even if he had no intention of ever trying to post it, and the following day went before Judge Levine and had her set bail at $25,000. If nothing else, it downgraded Barnett's classification as a threat within the Tombs, freeing him up from having both his cell and his person subject to constant searches.

Another thing the trio of earlier lawyers had screwed up were the pretrial motions. They'd filed them—at least Lawyer Number 2 had—but done a pretty half-assed job. Long on paper but short on persuasion, they'd failed to recite sufficient grounds for the ordering of any evidentiary hearings prior to trial. The only thing that remained to be decided was how many of the defendant's convictions the prosecutor would be able to bring out if Barnett were to take the stand. As for discovery, a lot of things had been asked for, but Daniel Pulaski had successfully
resisted turning over just about all of them. As a result, Jaywalker knew the dates and approximate times and locations of the three sales, as well as the amounts of heroin involved in each. That and the fact that the prosecution claimed to know of no exculpatory material that might in any way materially assist the defense.

Not much to work with.

But in addition to being a compulsive overpreparer, Jaywalker was a former investigator. Not all of his time at the Drug Enforcement Administration had been spent buying narcotics. When he hadn't been undercover, Jaywalker had been, like any other federal agent, an investigator. He knew how to slip a lock, tap a phone and bug a room. He could make a crime scene speak to him. He could walk into an apartment or pull over a car, and have a pretty good idea where the drugs were hidden. He was good with a camera and had a working knowledge of ballistics. He knew how to lift a fingerprint and match it to one on file. And he knew the back channels, the ins and outs of the criminal justice system.

It was that last piece of knowledge that he put to work now. And he began at the only place he could possibly think of.

Other than the cops and agents and state troopers who'd made the case against Alonzo Barnett and weren't about to speak with a defense lawyer, there was only one person who was in a position to know anything at all about the facts. His name was Clarence Hightower, and he was the guy who'd called in the favor. According to Barnett, Hightower had been arrested only minutes after Barnett himself, though for possession, rather than sale.

Finding Hightower's papers in the courthouse turned out to be a bit tricky, because they'd been sealed. The No Public Record stamp on the file could mean only one
of three things, Jaywalker knew. First, that Hightower had been a juvenile or a youth, and Jaywalker knew he'd been neither. Second, that his case had ended with a dismissal or an acquittal. Or third, that he'd been convicted, but only of a
violation,
a minor noncriminal offense. Which struck Jaywalker as a bit unusual, seeing as Hightower's criminal record was in pretty much the same league as Barnett's, if not worse.

So he found a friendly clerk he'd known for years, gave him a sob story, and convinced the guy to look the other way for a few minutes. The clerk was taking a chance, but not all that much of one. Had they been caught, he knew Jaywalker would have taken the weight, explaining that he'd swiped the file without the clerk's knowledge. The clerk knew this because that's exactly the kind of thing Jaywalker had done in the past, whenever one of his little capers had been discovered. Even as it had led to a few of Jaywalker's overnights at Rikers Island, it explained his reputation as a stand-up guy who could be trusted if the shit were to hit the fan.

One of the things Jaywalker always looked for in a court file was a photograph of the defendant. He liked to put a face on things. When he found Hightower's mug shot, two things immediately jumped out at him. First, the guy wasn't much to look at. Second, he'd never win a best-dressed contest, not in his stained and ratty blue denim work shirt.

So much for first impressions.

According to the file, Hightower had indeed been arrested on October 5, 1984. It seemed that he'd walked right into the middle of things, not realizing that the three or four guys in plainclothes surrounding Barnett were handcuffing him and reading him his rights. Jaywalker already knew this, having heard it from Barnett, who'd
explained that Hightower had walked over intending to hit Barnett up for some of the money left over from the transaction, just as he had after the second one. Hightower had been promptly rewarded for his greed by being stood up against a wall and searched, and the search had revealed a tinfoil packet containing a small amount of white powder.

Jaywalker continued combing through the file until he found the lab report. Unlike the drugs bought and seized from Barnett, which had been delivered to the United States Chemist for analysis, Hightower's tinfoil packet had been considered no big deal and had therefore been taken to the NYPD's lab. There, according to the report, it had been found to contain heroin, as well as lactose and dextrose—two sugars commonly used as additives—and quinine. Because the total weight had come to just under a tenth of an ounce, less than the eighth-of-an-ounce threshold required for a felony, Hightower had been charged with only a misdemeanor. Still, it could have cost him up to a year in jail, as well as a violation of his parole. But luckily for him, he'd been permitted to plead down to disorderly conduct, a violation, receiving the maximum permissible sentence of fifteen days, which by that time he'd already served. Jaywalker looked through the papers, hunting for the name of the judge who'd been so kind as to approve such a generous plea bargain: Robert H. Straub, Criminal Court Judge.

Now, if Shirley Levine was a plus fifteen on a scale of leniency, Ronald Straub was a minus twenty. Which explained why he'd handed out the longest sentence he possibly could, but not why he'd gone along with the plea arrangement in the first place. That, Jaywalker knew, could only have been due to the urging of whatever
A.D.A. had stood up on the case: Jonathan Hillebrand, Assistant District Attorney.

Jaywalker knew better than to question Judge Straub about the matter. He no doubt had been dealing with a calendar of over a hundred cases that day, and a year and a half later could hardly be expected to remember a plea that had probably taken two minutes at most. Besides, Straub might become curious about how Jaywalker had learned the disposition of a case that was supposed to have been sealed.

Jonathan Hillebrand was another matter. Jaywalker found him in one of the Criminal Court trial parts. He was a regular assistant, not in Special Narcotics like Daniel Pulaski. Which made sense, since Pulaski's office took only felonies, and Hightower's case had been a misdemeanor.

Not surprisingly, Hillebrand had no recollection of the matter. “It wasn't my case,” he told Jaywalker, adding that he might have remembered the name had it been. “The way it works,” he explained, “is that I get handed a bunch of files in the morning. Each one has a note on it from the assigned assistant, telling me to answer ready for trial or ask for an adjournment, and if there's an offer, what it is. The case you're asking me about must have had a note saying to offer the defendant a violation and fifteen days.”

And the thing was, Jaywalker knew from experience that that was exactly how it worked.

Nor did he do any better when he tracked down the assistant whose case it
had
been, a young woman named Annie MacMurray. “Who remembers?” she told him. “I get hundreds of these things. We're told to get rid of the misdemeanors as fast as we can and pay attention to the felonies. I'm sure that's what I was doing.”

“But the guy was on parole.”

She shrugged her shoulders and said, “What can I tell you? I must not have noticed that. Or maybe he didn't have enough time left on his parole for it to matter.”

In other words, Clarence Hightower had simply lucked out. He'd managed to slip through a small crack in a big system. It happened.

Still, Hightower was all Jaywalker had at this point. If Alonzo Barnett insisted on going to trial so that he could tell a jury he'd done someone a favor, the least Jaywalker could do was locate the guy he'd done the favor for, put him on the witness stand and have him corroborate the fact. It might not add up to a legal defense, but it might win some sympathy points with a jury. And from there, who knew? Stranger things had happened.