Overkill

17

As things turned out on Wednesday, Judge Wexler’s calendar spilled over into the afternoon session, and it was after three o’clock before the trial resumed. Jaywalker regarded the delay as a minor blessing. For one thing, it gave him an additional hour to make sure that Carmen and Frankie the Barber were fully prepared to testify. Not that that they wouldn’t have been without it; he’d already spent hours with each of them. But there was prepared, and then there was Jaywalker prepared.

Beyond that, the delay made it all but certain that Jeremy wouldn’t be taking the stand until Thursday morning. That was good for several reasons. It would give Jaywalker an opportunity to reconcile Jeremy’s version of the facts with anything unexpected his mother or Frankie might say. And it would mean that in all likelihood Jeremy’s testimony would begin and end on a single day, rather than being broken up and spread out over two days. Not only would that enhance his story, at the same time it would deprive Katherine Darcy of the luxury of an overnight between Jaywalker’s direct examination and her cross.

It was little things like that, Jaywalker knew, that could affect the outcome of a close case. What worried him right now, however, were those last three words: a close case. Because as prepared as his witnesses were, not one of them was going to be able to tell the jury much of anything about the fatal shot. Carmen and Frankie because they hadn’t been there, and Jeremy because even though he had been and didn’t dispute the fact that he’d fired it, it seemed he had no real recollection of doing so.

Carmen Estrada didn’t so much walk to the witness stand as waddle. She promised to tell the truth, the whole truth, and nothing but the truth in a voice so low and gravelly that Jaywalker abandoned the lectern in favor of standing back by the wooden rail that separated the front of the courtroom from the spectator section. Years of experience had taught him that the farther he stood from the witness, the more that witness would be forced to raise his or her voice. If that didn’t work, he’d try cupping a hand behind one ear, in an exaggerated parody of deafness. And if all else failed, he’d badger and bully his witness into speaking more loudly. That last technique usually did the trick and often created an extra measure of sympathy for the poor witness.

Little things.

JAYWALKER: Do you know the defendant, Jeremy Estrada?

CARMEN: Sure, I know him. He’s my son.

Jaywalker took her back two years. She’d been living on the Upper East Side with Jeremy and his twin sister, Julie, their father having left some ten years earlier. That May, Jeremy had been seventeen. He’d been attending Catholic school at All Hallows High. But Carmen had reached a point where she could no longer afford the tuition, so Jeremy had transferred to public school and was by that time attending Park East, on 105th Street between Second and Third Avenues.

JAYWALKER: In addition to going to school, was Jeremy doing anything else?

CARMEN: Yes, sure. After school and on weekends he was working.

JAYWALKER: Where was he working?

CARMEN: At a bodega, and a dry-cleaning store, and later a hardware store. Lots of places.

JAYWALKER: Did something happen, some change with respect to Jeremy, that May or June, that you became aware of?

CARMEN: Yeah.

JAYWALKER: Tell us about it, please.

CARMEN: Well, before he was normal, regular. You know, like any other seventeen-year-old boy.

JAYWALKER: And then?

CARMEN: After a while he became very nervous-like. I see him walking back and forth in the house, looking out the window through the venetian blinds. He stop eating, stop talking. I ask him what happen to him. He say, “Nothing.” He don’t want to tell me.

JAYWALKER: Anything else you remember?

CARMEN: Sometime he be shaking or crying in the nighttime, while he’s sleeping. I try to wake him up. I say, “What happen, what’s the matter?” And he say, “Nothing, nothing.” Finally, one day in June, a letter had arrived from school.

JAYWALKER: Did you open the letter?

CARMEN: Yes.

JAYWALKER: What did it say?

CARMEN: That he was absent from school.

JAYWALKER: After you read the letter, did you do anything?

CARMEN: Yeah, sure. I spoke with Jeremy.

JAYWALKER: And what did he say?

CARMEN: In the beginning, he don’t want to say anything. But I make him tell me what the problem is. He say he’s afraid to go to school because they follow him and threat him.

JAYWALKER: They?

CARMEN: These guys. This gang.

JAYWALKER: What did you say?

CARMEN: I say, “We gotta go to the police.” He say no, he was scared for his life. A gang was following him, and they was going to kill him.

Carmen described how she’d pulled Jeremy out of school at that point. By that time it was too late to put him in another school, so he’d just stopped going. Her son’s life, she said, was more important than anything they could teach him at school.

Jaywalker tried to draw Carmen out as to the changes she’d noticed in Jeremy, but despite all his hours of preparation, she used conclusive words when descriptive ones would have been more compelling. He was “panic,” she recalled, “nervous,” “hysteric.” But she did manage to say that he’d lost one job after another because he was scared he was being followed.

Jaywalker moved to the very end of August and the day of the barbershop incident.

JAYWALKER: Do you know a man by the name of Francisco Zapata?

CARMEN: That’s Frankie, the man from the barbershop.

JAYWALKER: Did there come a time when something happened just before Labor Day, involving Frankie?

CARMEN: Yeah.

JAYWALKER: Tell us what you remember.

CARMEN: I was in my kitchen cooking when they knocked on the door. It was about six-o’clock. When I opened the door I get scared. I see my son all white, like pale.

JAYWALKER: Was anyone with him?

CARMEN: The girl, Miranda. And Frankie from the barbershop.

JAYWALKER: How was Jeremy acting?

CARMEN: He was very nervous. He can’t even talk. He was panic, crying. I asked him what happened, he can’t answer me. The man, Frankie, he told me to keep him home, don’t let him go downstairs.

JAYWALKER: Did Frankie say why?

CARMEN: No. But I could tell it must have been very, very bad.

It was time to bring Carmen to the day of the shooting.

JAYWALKER: Do you remember a day about five or six days later, in the very beginning of September? Do you remember something happening then?

CARMEN: You mean the accident?

There it was again: the accident. Jaywalker had warned her at least a dozen times not to use the term. He realized now she simply couldn’t help herself, that she would go to her grave thinking of it as just that.

JAYWALKER: The shooting. Tell us the first thing you remember about that day.

CARMEN: I remember when Jeremy came home.

JAYWALKER: Was he alone, or was he with someone else?

CARMEN: He was with the girl, Miranda.

JAYWALKER: What did you see when they came in?

CARMEN: I see Jeremy very, very nervous, walking back and forth. He can’t talk. There was blood on his face, his mouth. And his shirt was all like burn, with like a little hole in it. And under it, right under it, his skin was red.

She found a spot on her own midsection, and began rubbing it. Even as she answered the next few questions, recalling that Jeremy had been so nervous he couldn’t talk, she continued to massage her belly.

It had finally fallen to Miranda to describe what had happened.

JAYWALKER: After that conversation, did you do something with Jeremy?

CARMEN: Yeah. I took him and Miranda out of the apartment.

JAYWALKER: Why did you do that?

CARMEN: Because when he could talk again, he told me he was too scared to stay there.

JAYWALKER: Did he say who he was scared of?

CARMEN: Yeah. He told me that the gang, the gang was going to kill him.

JAYWALKER: Where did you take him?

CARMEN: I took them to the Bronx.

JAYWALKER: What was in the Bronx?

CARMEN: My sister.

JAYWALKER: Did Jeremy stay in the Bronx for a long time?

CARMEN: No, just one night.

JAYWALKER: Where did he go from there?

CARMEN: I send him to Puerto Rico.

Jaywalker paused. He figured seven months was certainly worth a pause.

JAYWALKER: Did there come a time when Jeremy came back to New York?

CARMEN: Yes.

JAYWALKER: Did you and he go somewhere then?

CARMEN: Yes.

JAYWALKER: Where did you go?

CARMEN: To a lawyer.

JAYWALKER: And did you and the lawyer and Jeremy do something?

CARMEN: Yeah.

JAYWALKER: What did you do?

CARMEN: We took him to the police.

JAYWALKER: And did Jeremy give himself up?

CARMEN: Yeah.

Jaywalker thanked Carmen and sat down. Despite hours of preparation, she’d earned no better than a C in his book. Her nervousness had caused her to leave out most of the details she’d been able to recall at the office, her home, and even in the courthouse as recently as an hour before she’d taken the stand. And whose fault was that? Jaywalker’s, of course. Because Carmen was his witness, he’d been barred from asking her leading questions in which he could have suggested the answers to her, such as “Did Jeremy suffer from nightmares?” Nor could he have asked her to repeat conversations she’d had with Miranda; those would have been hearsay. Still, he knew, when a witness underperformed, as Jeremy’s mother had, it was rarely the fault of the witness and almost always that of the examiner. Whatever shortcomings Carmen had, it had been Jaywalker’s job to identify them and overcome them. In failing to do so, he’d failed her and, more importantly, Jeremy.

And that had only been on direct. With cross-examination about to begin, Jaywalker shuddered at the thought of Carmen trying to answer questions she was even less prepared for. And it didn’t take long for his fears to be realized.

Katherine Darcy began by getting Carmen to concede that she herself had never been a witness to anyone following her son, chasing him or threatening him. That she’d never seen a weapon of any sort either displayed or mimicked. And that she’d never encountered a gang member, and knew nothing about the Oakland Raiders or the jackets their fans wore. Then she asked about Jeremy’s attendance record at All Hallows High School, before he’d ever met Miranda. It had been very good back then, Carmen assured him.

But Darcy had done her homework. She’d subpoenaed records from All Hallows, and now she handed them to the witness.

CARMEN: I don’t have my glasses.

DARCY: Do you have them in the courthouse?

CARMEN: No.

THE COURT: Here, try mine. They’re reading glasses, magnifiers.

CARMEN: Thank you. [Puts on glasses.] No, these are no good. I don’t see this. I got, what you call it, a stigmatoid.

THE COURT: And you never thought to bring your reading glasses with you?

CARMEN: I thought I was going to have to talk, not read.

She did have a point there.

Darcy moved on, evidently figuring she’d have a crack at Jeremy on the subject of his attendance, once he took the stand. And perhaps unconsciously, Jeremy took that moment to take off his glasses and slip them into his shirt pocket.

Darcy wanted to know about Miranda’s current whereabouts. Jaywalker had long anticipated her interest in the matter. If she could show that Carmen knew where Miranda was, she could suggest that the defense had deliberately decided against calling her as a witness, and might even succeed in getting the judge to give a missing witness charge, an instruction to the jury that they could infer that Miranda’s testimony would not have supported the rest of the defense’s case.

DARCY: When was the last time you saw her?

CARMEN: Miranda?

DARCY: Yes.

CARMEN: Last time I saw her was exactly the day I brought her to Mr. Jackwalker’s office.

DARCY: A few months ago?

CARMEN: Yeah. She disappear after that.

Darcy moved on to Carmen’s contacts with the police while Jeremy had been in Puerto Rico. The detectives’ reports strongly suggested that she’d withheld her son’s whereabouts from them, and Jaywalker had told her it was absolutely essential that she admit she’d lied to them.

DARCY: Did the police come visit you shortly after the shooting?

CARMEN: Yes.

DARCY: Did they ask you where Jeremy was?

CARMEN: Yes.

DARCY: Did you tell them you didn’t know where he was?

CARMEN: Yeah. I lied to the police.

For once, Carmen came through perfectly.

DARCY: Did you tell them you’d try to find out where Jeremy was, and let them know?

CARMEN: Yeah. That was a lie. I lied to the police. I did.

Apparently she was determined to admit it every chance she got.

DARCY: In fact, you knew at the time that he was in Puerto Rico. Didn’t you?

CARMEN: Of course I know. I send him to Puerto Rico because he told me his life is in danger because of the gang, the same gang.

DARCY: And because the police were looking for him, right?

CARMEN: No, not right. He wasn’t scared of the police. He was scared of the guys from the gang. They said he go to jail, they was going to kill him in jail.

Darcy asked her about the last job Jeremy had held, at a hardware store. Jaywalker noticed that again she was working from a document in her hand.

DARCY: Isn’t it a fact that your son only worked there for two weeks?

CARMEN: Yes. He stopped working there.

DARCY: He was fired. Isn’t that correct?

CARMEN: They fired him because he had to stop going. Because the guys, they followed him there.

Katherine Darcy gave up at that point. Carmen Estrada had proved to be a difficult witness for both sides. If anything, Jaywalker felt she’d helped her son more on cross-examination than on direct. Still, he needed to clarify one point.

JAYWALKER: Miss Darcy asked you when it was that you brought Miranda to my office.

CARMEN: Yes.

JAYWALKER: How many times did that happen?

CARMEN: Just one time.

JAYWALKER: Do you remember exactly when that one time was?

Of course she didn’t. But Jaywalker had brought his last year’s calendar book with him. It was the kind of thing you did when you were driven to prepare for every conceivable contingency. He asked permission to approach the witness, intending to show her the entry he’d made of the meeting, in order to refresh her recollection of the date. Then he remembered that without her glasses, Carmen wouldn’t be able to see it. He caught himself halfway to the witness stand, pivoted and showed the book instead to Katherine Darcy, who agreed to stipulate that the meeting had taken place on January 26th.

Four months ago.

JAYWALKER: Have you seen Miranda since that day?

CARMEN: No.

JAYWALKER: Spoken with her?

CARMEN: No.

JAYWALKER: Do you know where she is?

CARMEN: No.

He thanked her and sat down.

Later that afternoon, when they would break for the day, Carmen would come up to Jaywalker and ask him how she’d done. The truth was, she’d made up some ground on cross-examination and then redirect, to offset her disappointing performance on direct. To Jaywalker, she’d ended up as an okay witness. The problem was, Jeremy didn’t need okay witnesses; he needed nothing less than dynamite witnesses.

“You were terrific,” he would tell her, just as he would have had she been unable to remember her son’s name on the stand, or her own. What was he supposed to say, that because of her testimony Jeremy was more likely than ever to go to prison?

Jaywalker called Francisco Zapata to the stand. Zapata was a good-looking man in his mid-fifties, with a thick head of black hair turning gray at the temples. A full mustache failed to hide his ready smile. Jaywalker had spent far less time with him than he had with Carmen, and only a small fraction of the many hours he’d devoted to preparing Jeremy. Still, there was something about the man that inspired confidence and prompted Jaywalker to feel the jurors would not only like him but would believe what he had to say. It had been Zapata, after all, who’d stood up to the Raiders that day outside his barbershop, with nothing but his words and his wits.

JAYWALKER: Mr. Zapata, where do you live?

ZAPATA: I live in Baldaria, Puerto Rico.

JAYWALKER: What are you doing here in New York?

ZAPATA: I’m here because you asked me to come, to describe some things that happened a while ago.

JAYWALKER: Who paid for your trip?

ZAPATA: Me. I paid for it.

JAYWALKER: Do you work?

ZAPATA: Yes, I cut hair. I am a barber.

Jaywalker took him back to the end of August, nearly two years ago. Zapata had been living in Queens at the time, and working at a barbershop in Manhattan, at 112th Street, between Second and Third Avenue.

JAYWALKER: What was the name of that barbershop?

ZAPATA: Frankie and Friends.

JAYWALKER: And who was Frankie?

ZAPATA: Me. I’m Frankie.

Jaywalker walked over to the defense table, where Jeremy sat. Standing behind him, he placed his hands on his client’s shoulders.

JAYWALKER: Do you know this young man here?

ZAPATA: Yes. He was a customer of mine. I used to cut his hair, ever since he was a small boy.

JAYWALKER: What do you call him?

ZAPATA: I call him Jerry.

JAYWALKER: Do you know his last name?

ZAPATA: No, I’m afraid I don’t. Sorry.

Jaywalker directed Frankie’s attention back to the very last day of that August, and asked him if he remembered an incident that had occurred at his shop. He replied that he did. Jerry had come in around five o’clock in the afternoon, and asked if he could wait there for his girlfriend.

JAYWALKER: And what did you say?

ZAPATA: I teased him at first. I still thought of him as a boy, and here he was telling me he had a girlfriend. But then I told him sure, he could wait there.

JAYWALKER: What happened next?

ZAPATA: When the girlfriend came, Jerry opened the door for her, and she came in. He said, “Close the door!” because some guys behind her wanted to come in and get him.

JAYWALKER: Who were these guys?

ZAPATA: I don’t know their names, but I had seen them hanging around on the street all the time. I’m pretty sure they were drug dealers.

DARCY: Objection. Move to strike.

THE COURT: Yes. The last part of the answer, what the witness thought, is stricken. The jury will disregard it.

Although the admonition was meant for the jurors, it was Jaywalker whom Wexler glared at while delivering it. Both men knew full well that despite the judge’s words, disregarding the suggestion that the Raiders were drug dealers was impossible. In fact, when Frankie had mentioned it to him months ago, down in Puerto Rico, Jaywalker had explained that the judge probably wouldn’t let him ask about it. “Then again,” Jaywalker had said at the time, “if you happen to say it without my asking you…” And Frankie, as quick a study as Carmen was a slow one, had picked it up, tucked it away, and now come out with it at the perfect moment.

Once the witness was off the stand and the jury excused, Harold Wexler would castigate Jaywalker, accusing him of planting the objectionable testimony. Jaywalker would deny it, naturally, and there would be little the judge could do beyond issue a stern warning. But stern warnings scared Jaywalker about the same way that sharp cliffs scared mountain goats. The jury had heard that the Raiders were drug dealers; there was simply nothing Wexler could do to unring that bell. And in Jaywalker’s book, that was precisely as it should be. Sometimes the rules of evidence worked just fine. But occasionally you had to fine-tune them on the fly.

JAYWALKER: Did the guys come inside?

ZAPATA: No. I locked the door. But they kept shouting through the window and threatening Jerry.

JAYWALKER: What did you see?

His answer was to point his index finger to his temple, his thumb pointed upward. Jaywalker described the demonstration for the record. Then he asked the witness if he’d been able to hear any of the things the guys had shouted.

ZAPATA: They were saying they were going to get him, to kill him. They were saying bad things, using bad language, in English and in Spanish. Very bad.

JAYWALKER: Please tell us exactly what they said.

ZAPATA: They called him a son of a bitch.

JAYWALKER: Was that the worst?

Frankie smiled nervously and looked down at his feet. Just two hours earlier, he’d told Jaywalker much worse. But now he was clearly too embarrassed to repeat the words in open court.

JAYWALKER: Would your honor direct the witness to answer.

THE COURT: Yes. Use the actual language you heard.

Frankie leaned over to the court reporter and repeated the words. But the courtroom had grown stone-cold quiet, and despite his whispering, no one could have missed his answer.

ZAPATA: They called him maricon. That’s how we say faggot in Spanish. They called him pussy and…

JAYWALKER: And?

ZAPATA: And cunt-face.

JAYWALKER: How many of them were there?

ZAPATA: Six or seven. I’m not sure.

JAYWALKER: How old did they look?

ZAPATA: A few years older than Jerry. Nineteen, twenty. Something like that.

JAYWALKER: Were they all guys?

ZAPATA: There was one girl.

Frankie described how finally he’d gone outside, shutting the door behind him, and tried to talk to them. They’d quieted down after a minute or two and assured the barber they had no problem with him. “But we’re going to get him,” they’d said, pointing.

JAYWALKER: Who did they point at?

ZAPATA: At Jerry.

JAYWALKER: Did there come a time when they left?

ZAPATA: Finally. I had a van parked around the corner. I went and got it, and pulled in front of the shop. I put Jerry and his girlfriend in my van, and I took them to his house.

JAYWALKER: How did Jerry seem on the way to his house?

ZAPATA: He was very, very nervous, shaking. His face was white. His eyes, he was like he wanted to cry. But I guess he was ashamed to cry in front of his girlfriend.

THE COURT: The part about what the witness guesses is stricken. The jury will disregard it.

JAYWALKER: Mr. Zapata, you can only tell us what you saw, what you heard and what you did. Okay?

ZAPATA: Okay. Sorry.

The remark hadn’t been for the witness, of course. It had been for the contempt citation, in case Harold Wexler were to decide that Jaywalker had planted that little nugget of objectionable testimony, too. Although that one Wexler would forget.

JAYWALKER: When you got to Jerry’s building, did you leave him and his girlfriend downstairs?

ZAPATA: No, I was too scared for Jerry. I took them upstairs, and I told his mother to keep him there in the house, not let him go out.

Katherine Darcy spent only a few minutes cross-examining Zapata. Jaywalker sensed that she knew his testimony had been truthful, and that probing for inconsistencies or more detail could only get her into trouble. Or perhaps she was trying to take a page from Jaywalker’s playbook and send a message to the jurors that Zapata really hadn’t hurt her case.

DARCY: Did you see any guns that day?

ZAPATA: Real guns?

DARCY: Yes, real guns.

ZAPATA: No.

DARCY: Any knives?

ZAPATA: No.

DARCY: Did the shop have a large storefront window?

ZAPATA: Not so large.

DARCY: Did they break it?

ZAPATA: No.

DARCY: Did they try?

ZAPATA: No.

DARCY: When you went outside to talk to them, did they harm you?

ZAPATA: No.

DARCY: And they left, didn’t they?

ZAPATA: Not right away.

DARCY: But after a few minutes?

ZAPATA: Yes. After a few minutes, they left.

Francisco Zapata stepped down from the stand, and Judge Wexler excused the jury for the day. The following morning, Frankie the Barber would board a plane and fly back to Puerto Rico. Although he’d been able to testify to less than an hour of Jeremy Estrada’s torment, Jaywalker felt that Zapata’s had been a powerful presence at the trial. The simple fact was that he’d traveled some fifteen hundred miles at his own expense in order to answer questions about an incident that had taken place some twenty months earlier, involving a young man whose last name he didn’t even know. To Jaywalker, that said an awful lot about Frankie right there. Perhaps, to the jurors, it might say something about Jeremy, too.

After sitting through his warning from Judge Wexler, Jaywalker retreated to the pens to spend one last hour preparing Jeremy for his testimony the following day. Had this been a court-appointed case, Jaywalker would have been expected to keep track of his time and how he’d spent it. But even in those situations, he’d ended up seriously under-reporting when it had come time to enter a number alongside Trial Preparation. While most of his colleagues padded their hours, some flagrantly, Jaywalker had known better than to submit an honest accounting of the sessions he’d devoted to readying his witnesses. How, for example, could he submit a voucher asserting that he’d spent over a hundred hours with Jeremy alone, when he knew lawyers who routinely put their clients on the stand after interviewing them for forty-five minutes? So he always ended up cutting his hours by more than half, fully expecting trial judges to do the same again before signing off on them.

The unreimbursed hours? He’d tended to think of them as taxes withheld by the government, and he liked to think he’d compensated for the lost income by cheating on his 1040 Form as much as he possibly could. But even if he hadn’t, he still would have gone into the pens to spend one last hour getting his client ready. He told himself it was for Jeremy, because of how much he liked the kid and what a raw deal life had given him. But that was only part of the story, of course. The rest was that he was Jaywalker, and being Jaywalker, he simply couldn’t help himself.