Bronx Justice

“Docket number X974513, Darren Kingston,” called the bridgeman, his title derived from his position between the judge and the rest of the courtroom. “Charged with rape, on the complaint of Joanne Kenarden. Detective Rendell.” Shielding rape victims’ identities didn’t happen back then, either.

Jaywalker rose, made his way forward and took his place at the center of a long wooden table in front of the judge’s bench. To his left stood Darren, hands cuffed in front of him, a uniformed court officer immediately behind him. To Jaywalker’s right stood Jacob Pope, Detective Rendell and Joanne Kenarden.

“Miss Kenarden,” said the bridgeman, “do you swear to the truth and contents of your affidavit?” In 1979, there was no such thing as a Ms. You were Miss, or you were Mrs.

“I do.”

“Counselor, do you waive the reading of the rights and charges?”

“Yes,” said Jaywalker, “we do.”

The judge, a fairly recent appointee named Howard Goldman, turned to Pope, waiting for his bail recommendation. Pope responded by describing the Kenarden rape and sodomy, emphasizing the knife. He pointed out that there were four additional rape victims, and added that it had taken the police several weeks to locate the defendant once he’d been identified. The clear implication was that Darren would be likely to flee if released. “Accordingly,” Pope concluded, “the People request that bail be set in the amount of fifty thousand dollars.”

It was Jaywalker’s turn. He pointed to Darren’s family in the courtroom, described Darren’s job and theirs, and mentioned the lack of any prior convictions. He stressed Darren’s wife, their child and her pregnancy. He said that he’d known the family for almost two years and felt privileged to have done so.

“I consider these very serious charges,” said Judge Goldman.

“So do I,” Jaywalker agreed. “I also consider it very possible that this is the wrong man.”

Goldman turned toward Joanne Kenarden. “Young lady,” he said, “I want you to answer me truthfully. Is there any doubt in your mind, any doubt whatsoever, that this is the man who attacked you? Take a good look at him before you answer me.”

Jaywalker took a step back so that she could get a better look at Darren. But even as he did so, he knew it was a futile gesture. They were enacting a charade, after all. Not twenty minutes earlier, having seen Darren led into the courtroom by Detective Rendell, she’d put her signature on an affidavit, swearing that this was the man who’d raped and orally sodomized her. What was she supposed to say now, that she’d changed her mind?

“No doubt whatsoever,” she said.

“Bail is fifty thousand dollars,” said the judge.

Out of the corner of his eye, Jaywalker could see Darren’s shoulders sag, notice him shake his head slowly from side to side. The case was adjourned one week, for a preliminary hearing. But Jaywalker knew there would be no hearing. Pope would present his case directly to a grand jury, who would listen to Joanne Kenarden, and perhaps the other victims as well, and vote an indictment. Jaywalker toyed briefly with the idea of having Darren testify at the grand jury, but quickly rejected it. All Darren could say was that he was innocent. Having him do so, and then exposing him to cross-examination at this early stage, would accomplish little and risk much.

“Anything else?” asked the judge.

“No,” said Jaywalker.

“Next case.”

Less than ten minutes after it had begun, the arraignment was over. Darren was led back into the pen from which he’d come.

Outside on the sidewalk, Jaywalker explained the bail to Darren’s parents. In order to get their son out of jail, they would either have to come up with fifty thousand dollars in cash or go to a bondsman, who would require maybe half that much, as well as the balance in property—bank-books, jewelry, deeds to buildings or similar collateral. Marlin Kingston shook his head in disbelief, or maybe despair. Jaywalker told him they had an option, to let a few days pass and then go over to the Supreme Court building on the Grand Concourse, where they could make an application to get the figure reduced.

He kissed Inez goodbye, something he didn’t ordinarily do. Perhaps it was her own warmth, radiating outward, that compelled him to do so. When he went to shake Marlin’s hand, he felt something pressed against his palm.

“What’s this?” he asked.

“A hundred dollars,” said Marlin. “For today.”

“No,” said Jaywalker. “You save it. You’re going to need every penny to try to get Darren out.” But he realized he was only getting to know this little man, who could cry unashamedly one minute and fight like a warrior the next, when Marlin spoke again.

“This is yours, Jay,” he said. “Darren is my son. I’ll get him out somehow. Don’t you worry.”

Jaywalker pocketed the money. It was 1979, and he couldn’t afford to sneeze at a hundred dollars. Not with a wife, a child of his own, a mortgage and a stack of bills. But he did worry. If a hundred dollars was nothing to sneeze at, what did that say about fifty thousand?

3

EIGHTY YEARS

On Friday, Jaywalker got another call from Inez Kingston. “We bailed Darren out,” she said, “and I was wondering if you wanted to talk to him or anything.”

“You’re kidding!” Jaywalker couldn’t believe it.

“I’m not kidding. Marlin went out to Rikers Island last night to get him. They didn’t get back till three this morning, and I didn’t want to wake you. But he’s here now, if you want to talk to him.”

“Of course I do. Put him on.”

There was a pause, followed by Darren’s voice. “Hello, J-J-Jay.”

“Hey! How the hell are you?”

“P-p-pretty good, Jay.”

They spoke for a few minutes. Jaywalker told Darren he didn’t want him to be alone at all, whether he was indoors or out, that some responsible adult should be with him at all times. That way, if any more rapes were to occur, they would have an alibi, proof that it couldn’t be him. Darren said he would make sure of that. They made an appointment to meet at Jaywalker’s office on Monday. Jaywalker ended the conversation by telling Darren how happy he was.

“M-me, too, Jay.”

Jaywalker hung up the phone absolutely elated. He marveled at the way the Kingstons must have scraped together every cent they had, borrowed what they didn’t and put up their small house as collateral. But as happy as he was for them and Darren, he also had a selfish reason to be pleased. A defendant who can’t make bail has two strikes against him. His opportunities to sit down and discuss his case with his lawyer are limited in terms of time, place and privacy. He’s unable to assist in the legwork of investigating and preparing his case—visiting the scene of the crime, locating and rounding up witnesses, and helping out with a bunch of other details about which he, as the accused, may have the greatest knowledge. He loses his job or drops out of school, or both. As a result, he becomes a less compelling witness in front of the jury, and a less likely candidate for a lenient sentence in the eyes of the judge. Bail, and having the resources to post it, may not be the most obvious way the system discriminates between the rich and the poor, but it often becomes one of the most significant.

So Darren’s getting bailed out was as crucial as it was surprising. It was also, Jaywalker dared to hope, something of a good omen. The case had started out badly. The arrest, the disclosure of multiple rapes, the certainty of Joanne Kenarden’s identification and the setting of high bail had been one blow after another. Maybe the tide was beginning to turn. Maybe something else good would happen.

Nothing happened.

Had Jaywalker simply been deluding himself when he’d told Darren he wanted his movements monitored round-the-clock by a responsible adult? Had he been engaging in nothing but wishful thinking by pretending that Darren wasn’t the rapist, and that somehow five victims could all have misidentified him?

Or had he simply been doing what defense lawyers do, willingly playing along with a client’s insistence upon his innocence until the time was ripe to get real and face the unpleasant truth? In quiet moments that weekend, it surely seemed so.

On Monday afternoon, Darren showed up at Jaywalker’s office, accompanied by his father. They spent two hours together, a good part of it with Marlin banished to the waiting room. Admitting you were a rapist was hard enough, Jaywalker reasoned; admitting it in front of your father might border on the impossible. But to Darren, it seemed to make no difference. He continued to deny any knowledge of the rapes.

Jaywalker did his best to hide his disbelief. One victim could certainly be mistaken. Two, perhaps. Even three, however unlikely, was possible. But five?

Yet throughout the session, Darren never once wavered in his denials. Nor did he avoid making and holding eye contact, or lapse into any of the other familiar tells Jaywalker had seen so often in his Legal Aid days—the barely noticeable facial tics, the collar tugs, the hand involuntarily rising to cover the mouth, the sudden interest in one’s shoes or the pencils on the desk or the pictures on the wall. He did stutter from time to time, but—or so it seemed to Jaywalker—no more or less than usual when pressed about his claim of innocence. And every so often, in spite of himself, Jaywalker would find himself wondering if perhaps Darren might be telling the truth after all. But then he would remember that there were five women, each of them prepared to point Darren out as her attacker. As much as he liked this young man—and he was terribly easy to like—and wanted to believe him, Jaywalker kept reminding himself that Darren was lying. He had to be.

Marlin asked what the fee was going to be. Jaywalker started to explain that it looked as though they were in this for the long haul, that there was going to be a trial, maybe even several.

“I understand, Jay. You tell me how much, and I’ll pay it. It may take me some time, but I’ll pay it.”

Up to that point, the most that Jaywalker had ever charged for a case had been twenty-five hundred dollars. It had been a drug dealer, who’d probably been pocketing that much in a week. Jaywalker had gotten him a plea bargain, five years probation. For Darren, there wasn’t going to be a plea bargain, and there certainly wasn’t going to be any probation.

“Five thousand dollars,” said Jaywalker, and held his breath.

Marlin squinted skeptically. “Are you sure that’s enough?” he asked.

“I’m sure,” said Jaywalker, and they shook hands on it.

Enough? Jaywalker felt like he’d broken the bank.

Wednesday came. Jaywalker met Darren outside the courtroom known as Part 1-D. Both his parents were with him, as well as his wife, Charlene. She’d missed the arraignment and the office appointment because she’d been home caring for their son, and because she’d feared the experience might prove too much for her. Or maybe it was the thought that her husband was a rapist. In any event, on this day Darren’s sister Janie had been enlisted to babysit, freeing Charlene to come. She was short and a bit on the heavy side, not so unlike her mother-in-law. Perhaps it was her pregnancy beginning to show, perhaps not. Although she had a pleasant enough smile, she wasn’t nearly as pretty as Darren was handsome. Jaywalker found himself wondering if Charlene’s physical shortcomings might not have contributed to her husband’s having become a rapist.

Inez reported that Darren’s name didn’t seem to be listed on the calendar posted outside the courtroom. Jaywalker looked and couldn’t find it, either. A check with the clerk’s office revealed the reason.

KINGSTON, Darren

Docket No. X974513

Off Calendar—Indicted

Part 12, 9/21

Jaywalker explained to the Kingstons that their trip had been a wasted one. As expected, Jacob Pope had gone directly to the grand jury. There would be no preliminary hearing. Instead, Darren would be arraigned on an indictment in Supreme Court that Friday. Not that anyone had called Jaywalker to alert him and save them the trip. To the system, defendants, their families and their lawyers were pretty much chopped liver.

Downstairs, Jaywalker ushered Darren away from his family. He had a question for him, and he not only wanted to hear Darren’s answer, but he also wanted to see his reaction. And he didn’t want Darren posturing for the benefit of his family, or looking to them for advice. He watched the young man closely as he spoke to him.

“Darren,” he said, “how would you feel about taking a lie detector test?” He used the phrase lie detector test, instead of the more technically correct polygraph examination, because he wanted to make sure Darren understood the question the first time he asked him and wouldn’t be able to buy time by asking, “What’s that?”

Darren’s answer came without hesitation. “I’d love to, Jay, if it’ll help.”

“Well,” said Jaywalker, “I can’t promise it’ll help. But it will show if you’re telling the truth. The problem is, it’ll also show if you’re lying. I can guarantee that.”

“I’m not lying, Jay.”

“I know that, Darren.” It was Jaywalker’s second lie in as many statements. “But I’m prejudiced. I’m your lawyer. Besides that, I like you. So as much as I believe you, I have to remind myself that I could be wrong. And you have to understand that if you did commit the rapes, the worst possible thing you could do now would be to take the test.”

Darren started to say something, but Jaywalker held up a hand and cut him off in mid-stutter. He wanted Darren to hear him out.

“Look,” he said, “if you did do those things, if something happened to make you snap, if it is you these women are talking about, it’s not the end of the world. There are doctors, psychiatrists, programs. There are ways to get you help. Believe it or not, there are even ways to keep you out of prison.” It was yet another lie. “So take a moment to think before you decide.”

Jaywalker’s little speech finished, he looked Darren hard in the eye. And as he waited for a response, he realized that just as he was torn between wanting to believe Darren and not being able to, so, too, was he torn between wanting him to be innocent and wanting him to be guilty. What he really wanted was for Darren to tell him, “I can’t take a lie detector, Jay. I did those things.” Together they could break the news to his parents, to his wife. There would be some initial shock and disbelief, followed by a lot of crying all around. But the rest would be simple and straightforward. Psychiatrists, psychologists. Perhaps even an insanity defense, but more likely a guilty plea. But the worst would be over, the nagging uncertainty gone, and the terrible burden of representing a man who seemed to be guilty but claimed to be innocent lifted from his shoulders. Oh, how Jaywalker wanted Darren to break down and come clean at that moment!

But he didn’t. Break down? Come clean? He didn’t flinch. He didn’t even stutter, for once. Instead he looked directly into Jaywalker’s eyes and said, “I want the test.”

On Friday morning Jaywalker drove to the Bronx County Courthouse, which housed all of the Supreme Court parts. It covered then, as it covers now, an entire city block, from the Grand Concourse on the east to Walton Avenue on the west, and from 160th Street to 161st. From its upper floors you could see then, as you can still see today, the elevated train tracks above Jerome Avenue, and Yankee Stadium just beyond.

Jaywalker took one of the elevators to the sixth floor. The building was laid out around a square center courtyard, and no matter how many times he’d been there, he always found himself disoriented as soon as he stepped off the elevator. As usual, he walked three-quarters of the way around just to get to a courtroom that would have been right around the corner, had only he chosen to walk the other way.

Darren, Charlene, Inez and Marlin Kingston were waiting for him outside Part 12. They exchanged greetings and went inside. Jacob Pope was already there. He handed Jaywalker a copy of the indictment.

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX

——————————————————-x

THE PEOPLE OF THE STATE OF NEW YORK

x

x INDICTMENT

—against—

x 5476/79

DARREN KINGSTON, x

Defendant.

——————————————————-x

THE GRAND JURY OF THE COUNTY OF BRONX, by this indictment, accuse the defendant of the crime of RAPE IN THE FIRST DEGREE, committed as follows:

The defendant, in the County of Bronx, on or about August 16, 1979, being a male, engaged in sexual intercourse with Eleanor Cerami, a female, by forcible compulsion.

SECOND COUNT:

AND THE GRAND JURY AFORESAID, by this indictment, further accuse the defendant of the crime of RAPE IN THE FIRST DEGREE, committed as follows:

The defendant, in the County of Bronx, on or about August 16, 1979, being a male, engaged in sexual intercourse with Joanne Kenarden, a female, by forcible compulsion.

THIRD COUNT:

AND THE GRAND JURY AFORESAID, by this indictment, further accuse the defendant of the crime of AN ATTEMPT TO COMMIT THE CRIME OF RAPE IN THE FIRST DEGREE, committed as follows:

The defendant, in the County of Bronx, on or about August 17, 1979, being a male, attempted to engage in sexual intercourse with Tania Maldonado, a female, by forcible compulsion.

FOURTH COUNT:

AND THE GRAND JURY AFORESAID, by this indictment, further accuse the defendant of the crime of AN ATTEMPT TO COMMIT THE CRIME OF RAPE IN THE FIRST DEGREE, committed as follows:

The defendant, in the County of Bronx, on or about September 5, 1979, being a male, attempted to engage in sexual intercourse with Elvira Caldwell, a female, by forcible compulsion.

And that was only page one. The indictment went on to charge Darren with additional counts of first-degree sodomy, sexual misconduct, sexual abuse, assault against two of the victims, and criminal possession of a weapon—a knife—on each occasion. In all, there were twenty-three separate crimes charged. The only pieces of good news, if they could be called that, were that from the original five victims, it seemed now they were down to four who were willing to testify, and of those only two had apparently been actually raped; the other two counts were of attempted rape. Still, Jaywalker could do the math in his head: two completed rapes, each carrying a maximum sentence of twenty-five years, plus two attempts, worth fifteen each. Add them all up, and Darren was facing eighty years in prison.

The case was called in its turn, and Jaywalker accompanied Darren to the podium. The clerk asked how the defendant pleaded, and Darren answered, “Not guilty.” His voice was soft, but he didn’t stutter. Perhaps he’d been practicing the words, having been told ahead of time by Jaywalker that he would be required to say them. Bail was ordered continued, and the case was adjourned for three weeks, to give the defense time to submit written motions.

Outside the courtroom, Jaywalker cornered Pope and asked him if he would consider giving Darren a polygraph examination. Pope raised an eyebrow as he seemed to think about it, but Jaywalker could see Why rock the boat? written all over his face.

Finally he said, “Let me run it by my boss.” Passing the buck, no doubt, not wanting to be the one to say no. “Oh, one other thing,” he added. “Tell your man he’d better keep out of the area up there.”

“What do you mean?” Jaywalker was puzzled.

“I mean this,” said Pope, in a tone even more serious than his usual humorless one. “I got a call from Detective Rendell the other day. He said one of the girls phoned him and said she’d seen the guy again, in her lobby. Rendell figured shit, maybe we’ve got the wrong guy locked up. He called me. I did some checking and found out your client had made bail.”

“When was this?”

“I don’t know,” said Pope. “Beginning of the week, maybe. He was out before the weekend, right?”

“Right,” Jaywalker had to agree. It was true.

“Now understand me,” said Pope, his eyes narrowing. “This is a free country. I’m not telling your man where he’s allowed to go and where he’s not. But he starts intimidating my witnesses, I’ll have him back in jail in an hour, and his family can see if they can make fifty million dollars. I suggest you tell him that.”

“I will,” Jaywalker said soberly. “She’s sure it was him?”

“She’s sure.”

Jaywalker didn’t know whether to hate Pope for threatening them or thank him for the warning. Before he had a chance to do either, Pope turned and walked away.

Jaywalker lost no time in confronting Darren with what he’d just been told. He was about to read him the riot act for disobeying explicit instructions when Darren interrupted him. “Jay, you know that’s not m-m-me she’s talking about. I haven’t been out of the house alone for one minute since I got out.”

Darren’s family jumped to his defense, backing him up completely and persuasively. So Jaywalker sent them off with homework assignments. Each of them was to take paper and pencil and write out everything they could remember about Darren’s movements since his release on bail, as well as his whereabouts on the three days listed in the indictment, August 16th and 17th, and September 5th. Jaywalker instructed Darren to buy a pocket calendar and begin making detailed entries of his comings and goings each day, cursing himself for not thinking of it earlier. Then they set up an appointment at his office for Monday and parted ways.

Jaywalker headed for his car buoyed by a feeling of excitement. Admittedly, the indictment had been bad. Of the five victims, Pope had succeeded in getting four of them before the grand jury on short notice, and if he got the fifth, he could always go back in, have her testify and get a superseding indictment. Jaywalker’s suggestion of a polygraph examination had met with fairly predictable skepticism, but at least Pope hadn’t quite responded with a flat-out no. But by far the most interesting development had been the business about one of the victims claiming to have seen Darren in the lobby of her building since his release. For starters, Darren and the rest of the Kingston family insisted that he hadn’t been out alone since Marlin had brought him home from Rikers Island. But even beyond that, it just didn’t make sense. In the movies and on TV, the perpetrator invariably returns to the scene of the crime, blending into the crowd or lurking around furtively to watch the investigators at work. But in real life, having been unlucky enough to be arrested but lucky enough to have gotten out on bail, wouldn’t he want to stay as far away as he possibly could?

It sure seemed that way to Jaywalker.

Monday’s meeting produced very little. While Darren’s recollection of his whereabouts since being released from jail was detailed and complete, mid-August was another matter. He’d been working nights at the post office, midnight to 8:00 a.m., to be exact. During the daytime, he was generally home alone, either sleeping or attending to chores. Charlene had been working days, and their son—whose name was Philip, but whom everyone called “Pooh”—was left in the care of Darren’s sister, Janie, at their parents’ house, the same house that was now the collateral on Darren’s bail bond. Nobody had any specific recollection regarding the first two dates in the indictment, August 16th—when two of the incidents had occurred—and August 17th. But September 5th stood out a bit. That was the day after Labor Day, and therefore the day Janie’s classes at school had resumed after summer vacation. So on that day, for the first time, Pooh had been left with a neighbor. Darren recalled having come home from work as usual, about 9:30 in the morning, and hearing Pooh crying next door. He’d called his mother and asked her if she thought he should go knock on the door. Inez had said no, that if he did that the woman would feel they didn’t trust her, and that anyway, the child would have to get used to the new arrangement. Darren had reluctantly accepted the advice, stayed in his apartment and gone to bed.