Overkill

12

“Jurors entering!”

With those two words the trial of the People of the State of New York versus Jeremy Estrada got under way. No “Hear ye, hear ye, hear ye.” No “Draw nigh, give your attention, and you shall be heard.” Not in Harold Wexler’s court. About the only concession to ritual that Wexler made was the black robe he wore from time to time. Other judges circulated detailed written rules of decorum, banged their gavels, raised their voices and threatened to clear their courtrooms at the slightest disruption. Wexler simply peered out over rimless reading glasses, his shoulders hunched slightly forward, his jaw set tightly in a withering stare. Rumor had it that back in his Legal Aid days he’d punched out his immediate supervisor, a guy who’d outweighed him by fifty pounds and stood five inches taller than he did. Jaywalker happened to have been there at the time and knew it was no rumor.

As soon as the last of the seventy-five prospective jurors had found seats, they were directed to stand up again so they could be sworn in. A couple of them declined to take an oath and were permitted to repeat the word “affirm” in place of “swear.” There was no real difference, of course. Except to Jaywalker. He looked for jurors who were willing to stand up for their beliefs-or their non-beliefs-even if that put them in a distinct and perhaps uncomfortable minority. And he was especially looking for them in Jeremy’s case, which he’d long ago decided was going to be an uphill battle at best. On the rare occasion when he was the favorite going into trial, Jaywalker wanted normal, mainstream jurors. When he was a long shot he wanted misfits, weirdos, people who liked to swim against the current. And he was definitely a long shot in this one. So he jotted down descriptions of the two affirmers and what they were wearing, since he didn’t yet have names to attach to them.

Then Jaywalker turned to Jeremy, seated at the defense table alongside him. He’d dressed Jeremy up for the trial, but only a little. No jacket or tie; that would have been phony. But khakis and a white shirt. Jeremy had wanted to wear his reading glasses, and Jaywalker had said okay, but told him to keep them off most of the time. They were rimless and made him look studious, which was good. But, perhaps influenced by Katherine Darcy’s example, Jaywalker felt they made Jeremy look older. And he wanted the jurors to think of him as young. Hell, he wanted them to think of him as a baby. Now, putting one hand on the young man’s shoulder and using the other to gesture toward the jurors, he explained the significance of what had just happened. Jaywalker liked to keep his client informed of everything. He was forever reminding Jeremy that it was his case, not Jaywalker’s. Except for tactical decisions, that was, like what their defense would be and whether Jeremy would take the stand or not. Autonomy was sweet, democracy noble, discussion fine. But they had no place at the trial table. There, such lofty notions gave way. There, winning trumped everything.

There was quite another reason Jaywalker had gone to the trouble of explaining to Jeremy the difference between swearing and affirming. He wanted the jurors to see the interaction between the two of them, wanted them to see that hand of his resting on Jeremy’s shoulder. In short order those jurors would hear from the judge and the lawyers, but it would be days, perhaps weeks, before they’d hear from Jeremy. So Jaywalker needed to immediately establish what the case was about. It wasn’t about Victor Quinones or Teresa Morales. It wasn’t about justification or extreme emotional disturbance. It wasn’t even about murder as opposed to manslaughter. It was about Jeremy. So the explaining and the hand on the shoulder were about personalizing Jeremy, showing the jurors right off the bat that he was not only approachable and touchable, but he was concerned, he was interested. And above all, he was important.

One by one, the court clerk pulled eighteen slips of paper from a wooden drum and read off eighteen names, mispronouncing as many of them as she possibly could. One by one, eighteen prospective jurors gathered up their belongings, rose from their seats, made their way to the jury box and took the seats that corresponded to the order in which their names had been called. Harold Wexler spent the next hour and a half talking to them, first as a group, then individually. By the time he turned things over to Katherine Darcy, he’d told the eighteen a little bit about the case, but only a little bit; introduced the lawyers and the defendant to them; found out what each of the jurors did, the general neighborhood where they lived, whether they were married or single, and whether they’d ever been convicted of a crime. Those jurors who succeeded in persuading him that they either couldn’t be impartial or had something far more important to do than sit on a murder trial, he excused with a sarcastic comment and a promise to send them across the street to a boring civil trial.

Katherine Darcy rose, gathered her notes and stepped to the lectern. She, too, was wearing her glasses for the occasion, apparently having opted for looking serious at the expense of looking older. Why did Jaywalker dwell on such things? Because they mattered, that was why. If his adversary was going to try to impress the jurors with her seriousness, that meant Jaywalker would need to adjust his game plan. He’d need to both out-serious her at times, while every once in a while undercutting her by injecting a little humor into the proceedings. The idea was to outflank her on both sides.

But as soon as Darcy began to address the panel, he realized it wasn’t going to be easy. She had a nice conversational way of interacting with the jurors. Not that she was entirely comfortable on her feet; a slight quiver in her voice and a bit of fumbling through her notes gave her away from time to time. But Jaywalker knew that those lapses were anything but deal-breakers: a little nervousness often went over well with jurors. He himself had profited from that bit of knowledge in his younger days, when he’d played the role of the new kid on the block. But as he’d aged he’d had to adjust, much the way a veteran pitcher learns to add changeups and sliders to compensate for a fading fastball. By now he’d settled into the role of the experienced, confident defender who’d been around long enough to recognize a bogus prosecution when he saw one. And if it wasn’t as much fun as his former incarnations, it seemed to serve him pretty well.

What Darcy hadn’t learned was what type of questions to ask the jurors. She spent far too much time on their interests and hobbies, what kind of TV shows they watched or magazines they read, and whether they’d ever been crime victims. Jaywalker knew where she was going with that stuff, of course. She was trying to find mainstream, conservative jurors more likely to identify with the People of the State of New York than with a defendant accused of murder. The problem was that every bit of information she learned, Jaywalker learned, too. So even as she succeeded in identifying jurors she wanted, Jaywalker knew to challenge them.

Still, she was good, and by the time she sat down it was clear that the jurors liked her. And Jaywalker knew not to underestimate the importance of that. A prosecutor who comes off as likeable has accomplished something significant. In liking her, the jurors would tend to trust her and believe in the legitimacy of her case, and would be prone to find her witnesses credible. For Jaywalker, the job would be a little trickier. Not only would he have to get the jurors to overcome the affection they’d developed for Katherine Darcy and come to like him and trust him more, he’d also have to get them to like his client, that very same accused murderer.

Only he wasn’t going to get his chance yet, not with Harold Wexler declaring a recess for lunch. So at the moment, all Jaywalker could do was sit at the defense table as close as he possibly could to Jeremy, while fifty-eight jurors-down from the original seventy-five-filed out of the courtroom. Only when the last of them had left and the door had been closed would a court officer lead Jeremy out. But they would use a side door, one that led into the pens instead of out to the corridor. Rather than being free to choose from among the restaurants and coffee shops in the area, Jeremy would spend the next hour and a quarter in a five-by-ten cell. And instead of getting to order the curried chicken salad or the sushi, he’d dine on a bologna or cheese sandwich, washed down with the lukewarm brown water they called coffee. Jaywalker knew; he’d had more than a few of those meals himself over the years. But he’d never been facing twenty-five years of them, as Jeremy was.

That said, his lunch this day would consist of a container of iced tea, sipped as he sat on a windowsill on the eleventh floor. The liquid would keep his kidneys from shutting down, the sugar would get him through the afternoon session, and the lemon would protect him against scurvy. And don’t think you can’t get scurvy at 10 °Centre Street, along with just about every other malady known to Western civilization.

When jury selection resumed that afternoon, Jaywalker lost no time in asking the kind of questions that had become his trademark. They weren’t the information-seeking questions that Harold Wexler and Katherine Darcy had asked, and the answers they elicited were of almost no consequence. Instead it was the questions themselves, and the information contained in them, that were important. And like everything Jaywalker did when he was on trial, this was no accident.

He began by reminding the jurors that this was a murder case in which one young man had taken another’s life. He added the fact that the fatal shot had been fired at extremely close range and had struck the victim between the eyes. Then, just before drawing an objection from Darcy that he was testifying-an objection that Wexler no doubt would have sustained-he turned the information into a question.

“Now, Ms. Leach, does hearing any of that make you feel that perhaps this isn’t the kind of case you should sit in on?”

Even before Ms. Leach had finished assuring him that she was perfectly capable of judging such a case, Jaywalker was moving on. “Suppose I were to tell you, Mr. Lowden, that my client is in fact the young man who fired that fatal shot? Does that end the case for you? Or do you want to know more? Do you want to know what led up to that shot?”

Of course Mr. Lowden wanted to know more. And so did the other fifty-seven jurors in the room, who now-not because of any answer from Mr. Lowden, but by the very asking of the question itself-knew that the case was no longer about who had killed Victor Quinones, but about the events that had preceded the killing. Just like that, Jaywalker had changed it from a whodunnit to a yesbut.

Still in the guise of asking questions, he told them about Jeremy’s prior marijuana case, which the judge had ruled Ms. Darcy could ask about. It turned out Jeremy had pleaded guilty to the charge in exchange for doing two days of community service. Some lawyer, perhaps Alan Fudderman, had done him no favor there. He told them about Jeremy’s having gotten rid of the gun, having fled the city, and having spent seven months hiding out in Puerto Rico. He told them about Miranda and how, as Jeremy’s girlfriend, she’d witnessed the incident from start to finish. But, he told them, her whereabouts were now unknown, and neither side would be calling her as a witness.

“Are you going to hold that against my client, Mrs. Fisher?”

Mrs. Fisher assured him that she wouldn’t.

What he didn’t tell them was that the reason Miranda’s whereabouts were unknown was that Jaywalker had decided not only that he didn’t want to call her as a witness, but that he didn’t want Katherine Darcy calling her, either. So he’d struck a deal with her. He’d fulfilled his part of the bargain by making good on his earlier promise to get her into Rikers Island to see Jeremy. It had required a bit of an identity switch, arming her with identification belonging to Jeremy’s twin sister, Julie. But it had worked. Which was good, because had it not, both Miranda and Jaywalker would have been looking at serious felony time. Miranda’s part of the bargain was that after seeing Jeremy and returning Julie’s identification, she was to disappear, to vanish. And she had.

Finally Jaywalker told them about one witness he was going to call. “And the name of that witness-” and here he paused just a beat for effect, being careful not to overdo it “-is Jeremy Estrada.” He asked them if they could listen to him with their minds open despite his prior brush with the law, despite his quiet voice, his habit of speaking slowly, and his perhaps not being the smartest kid they’d ever come across. In the run-up to a presidential debate they might have called all of that lowering expectations, and the phrase could be applied pretty well to trials, as well.

One by one the jurors assured Jaywalker that they could still be open-minded, just as they did when he told them they would witness sobbing from the victim’s grieving parents, see gruesome photos of the deceased, learn grisly details from the medical examiner, and hear the word execution from the prosecutor’s lips. The jurors’ assurances, once again, were hardly the point. The idea was to get these things out in the open now, to strip away from them as much of their shock value as Jaywalker possibly could. And to get the jurors to remember, as each of the things would in turn come up during the course of the trial, that they already knew that and had promised not to be influenced by it. So implicitly, without even being aware of what they were doing, the jurors were agreeing to discount the prosecution’s evidence-not in the sense of ignoring it altogether, but in the other, more literal meaning of the word: to devalue it, to mark it down drastically even before Katherine Darcy had had a chance to call a single witness to the stand.

Of such little things are trials won or lost.

This was Monday. It would take them until late Thursday afternoon to complete the process. It was a murder trial, after all, a class A felony that carried a mandatory life sentence, and each side had the full complement of twenty peremptory challenges to use. And the thing was, there wasn’t that much daylight between the type of jury Jaywalker was looking for and the one Katherine Darcy wanted. Sure, Jaywalker preferred renegades, loners, anti-establishment types, while Darcy was seeking people more compliant and less likely to question the government’s case. But notwithstanding that difference, their concerns were remarkably similar. Both the defendant and the victim were Latin Americans; both had been young at the time of the incident; both had had prior encounters with the law that included drug arrests; and both had sympathetic family members who would testify at the trial. Those similarities made for less-than-obvious choices when it came time to either challenge or accept a particular juror, and for the better part of four days the lawyers engaged in something of a cat-and-mouse game, trying to shape the final product in sometimes subtle ways.

Throughout the process, Jaywalker was struck by how controlled Darcy was. Not just conservative in her choices, but careful about how she played. Her guiding principle seemed to be retaining a numerical edge over Jaywalker at all times. The challenges were exercised in rounds, meaning that both sides were presented with eighteen prospective jurors at a time and forced to strike those they didn’t want, right then and there. Faced with such a now-or-never dilemma, Jaywalker felt compelled to challenge jurors about whom he was on the fence. He couldn’t afford to let someone slip by who might turn out to be a closet law-and-order type who couldn’t wait to take over deliberations and engineer a conviction. Darcy, on the other hand, seemed more preoccupied in guarding her challenges so that when the end game came, as it finally did on Thursday afternoon, she would have a greater say in the last few jurors selected.

That said, they ended up with a jury that, had you woken Jaywalker up during the middle of the night and asked him for his opinion, he would have had to admit that while he wasn’t in love with any of them individually, as a group they weren’t all that bad. There was William Craig, 53, white, an electrical engineer, and by virtue of having been the first juror called to be selected, the foreman; Lucille Hendricks, 67, black, a retired elementary school teacher; Gladys Leach, 44, white, a homemaker; George Gonsalves, 38, Hispanic, a Wall Street trader; Miriam Goldring, 51, white, a registered nurse; Sanford Washington, 60, black, a probation officer; Lillian Koppelman, 58, white, a sales clerk; Vincent Tartaglia, 33, white, unemployed; Consuela Marrero, 24, Hispanic, an administrative assistant and college student; Desiree Smith-Hammond, 32, black, a waitress and aspiring actress; Walter van der Kaamp, 72, white, a retired history professor; and Jennifer Wang, 28, Asian, a Web site master. Five men, seven women. Six white, three black, two Hispanic, one Asian. Average age, 45. All things considered, they could have been a lot worse. Jaywalker had had juries that were all white; juries stacked with government employees, bankers and actuaries; juries so timid or fearful that their responses to questions were all but inaudible; and juries whose average age was deceased. Against that sort of standard, Jeremy Estrada’s jury struck him as pretty good.

But if Jaywalker was satisfied with the result of four days’ work, Harold Wexler wasn’t. Ignoring the fact that it was already after five o’clock, he directed the clerk to call the names of twenty more jurors-they were by that time on their fourth panel of seventy-five each-from which they would select four alternates. The clerk sighed, the court officers grumbled, and the stenographer called for someone to relieve her. But Wexler pushed on. He’d promised the lawyers they would have a jury by the close of business that day, and he wasn’t about to let the time or a little grumbling stand in his way.

It was almost nine o’clock by the time Jaywalker got home, time to change his clothes, wash his face, make himself something to eat and grab four hours of sleep. He set his alarm for 3:00 a.m. But he needn’t have; he knew full well he’d be up anyway. Tomorrow was Friday, and he’d have the weekend to recuperate.

Some cases, Jaywalker had long ago learned, were won during pretrial investigation and preparation, which was why he obsessed over those endeavors like no one else. Others cases were won by tactics and strategy, the way a chess match was won, by outplotting your opponent. And some were won by brilliant questioning of the witnesses, whether on direct examination or cross. But this case, Jaywalker was firmly convinced, wasn’t going to be won by any of those things. This case was going to be won by whichever side succeeded in telling the better story. The facts that underpinned that story, to be sure, would come from the mouths of witnesses. But to Jaywalker’s way of thinking, not one of those witnesses-not Teresa Morales, not the medical examiner, not Jeremy’s mother or sister, not even Jeremy himself-would be able to dictate the jury’s verdict. When the evidence was finally in, the winning side wasn’t going to be the one with more witnesses or better exhibits. It was going to be the side whose lawyer had put it all together and told the better story.

For the defense, that story would be divided into two parts. Jaywalker liked to think of them as bookends at the far opposite ends of a shelf. In between them would be everything else: the prosecution’s case, the defense case, the competing accounts of the various witnesses, the physical exhibits, the objections sustained or overruled. But all of that stuff was pretty much predetermined, fixed long ago by what people had seen and heard and photographed and drawn and written down and committed to memory, accurately or not. It might contain a surprise here or there, and an effective direct or cross-examination might enhance or undermine it a bit. But only a bit. Because all that stuff was static, in the sense that it was history. What was different, what was still to be written, was how each lawyer took that raw material and shaped it into a narrative that provided the jurors with a lens to view the case through, until they had a meaningful understanding of not only what had happened, but why it had happened. And with that understanding, they would ultimately either convict Jeremy or acquit him. That was the dynamic part of the case, and that was where Jaywalker was going to win it, if ever he was going to. And Friday would bring with it his first real chance to set his plan in motion. Friday would be the day of his opening statement, the first of the two bookends.