Overkill

23

Katherine Darcy stood up to speak after a fifteen-minute recess. Until then, Jaywalker had barely been aware of her presence in the courtroom, so focused had he been on his own summation. True, she’d congratulated him as soon as the jurors had filed out of the courtroom, and he’d thanked her. But it wasn’t until they’d reconvened and she’d stood up to deliver her own summation that he really noticed her.

And being Jaywalker, naturally the first thing he noticed was how good she looked. If Jaywalker’s rumpled hair, gray complexion and the dark circles around his eyes were testimony to how little he’d slept and eaten over the past two weeks, Darcy looked as though the trial had barely fazed her, and that summing up was something she did every day of the week.

She was wearing all black, and Jaywalker had to wonder for a moment if she was trying to send the jurors a subliminal message that, like Cesar Quinones and his wife, she was in symbolic mourning for Victor. No, he decided, a moment later. She just happened to look good in black and must have known it, to her credit. Even if it did mean wearing a long, narrow skirt in the middle of May. Then again, the courtroom was air-conditioned to a fault, so why not?

When he was exhausted, Jaywalker tended go off on absurd mental tangents like that. And at the moment he was way beyond exhausted. So he bit the inside of his cheek, dug a bent paper clip under his thumbnail and forced himself to concentrate not on Darcy’s outfit but her words.

And she was good.

Not Jaywalker good, perhaps, but that could be said for pretty much the rest of the world. Still, she was comfortable on her feet and had a nice way with the jury. And she knew the case every bit as well as Jaywalker did. But while his delivery had brimmed with emotion, hers was grounded and factual. Missing from all the talk about Jeremy and Miranda and their puppy love, she told the jurors, was any possible explanation of how Victor Quinones had ended up with a bullet between his eyes, other than that offered by three eyewitnesses who were total strangers to one another, a medical examiner who knew none of the players, and a detective who might know nothing about millimeters but surely was capable of stretching a tape measure forty-five feet.

And as soon as she’d put it that way, the same jurors who’d nodded so enthusiastically during Jaywalker’s summation began doing the exact same thing during Darcy’s. She didn’t dispute the fact that Jeremy had been treated badly by Sandro and his friends. She acknowledged that the jurors would be less than human if they failed to feel sympathy for him. And she termed the group’s conduct during the barbershop incident nothing less than despicable. But then she reminded the jurors of their oaths and obligations. “What you may not do,” she told them, “is let your sympathy cloud your reason and your emotions eclipse your judgment.”

One by one, she reviewed the testimony of each witness who’d testified at the trial, leaning heavily on the observations of the three eyewitnesses, the autopsy findings, and the forty-five feet Jeremy had chased Victor before firing the final shot but had conveniently forgotten since. “He can’t admit it,” Darcy suggested, “because that would be the end of the case right there. But given the evidence, he can’t possibly deny it, either. So he does the only thing he can possibly do. He says he doesn’t remember it that way.” And as she paused to raise both eyebrows in an exaggerated expression of frank disbelief, Jaywalker felt himself slide ever so slightly lower in his chair.

Darcy did agree with Jaywalker on one point. She, too, told the jurors not to use extreme emotional disturbance to compromise on a manslaughter verdict. But where he’d asked them to acquit Jeremy altogether, she urged them to convict him of murder. “What it comes down to,” she said, “is that final, fatal shot. The one fired between the eyes at point-blank range. Until then, you might be able to stretch things almost to the breaking point and argue that the defendant was justified. Bringing the gun that morning, beating up Victor, maybe-and I say maybe-even firing the first shot. But then he closes that forty-five-foot distance, picks Victor’s head up from the pavement, places the business end of the gun within five inches or less of the bridge of Victor’s nose, ignores Victor’s plea for his life and pulls the trigger. That, ladies and gentlemen, is where justification ends and extreme emotional disturbance goes out the window.

“That’s where it becomes, if we were to use Mr. Jaywalker’s term, an execution. Personally, I reject that term and all the drama it suggests. I prefer to use the term overkill. Because that’s exactly what we have here, the use of deadly force when any conceivable need for deadly force no longer exists. But the truth is, you can forget Mr. Jaywalker’s term and you can forget mine. Execution, overkill, it makes no difference at all. Because the New York State Penal Law just happens to have a term of its own for it. It’s the very same term you’ll find in the indictment, and it’s the very same term Justice Wexler will use when he instructs you on the law in a few minutes. So here it is, here’s what they all choose to call it-

“Murder.”

Having spoken for just under an hour, Katherine Darcy thanked the jurors and sat down. It was close to two o’clock by that time, and Judge Wexler sent the jurors back to the jury room, where their lunch orders were waiting. Then he turned to the lawyers and told them to be back in forty-five minutes for the court’s charge.

The charge took the better part of an hour. Wexler began by instructing the jury on the general principles of law they were to follow, including the presumption of innocence, the burden of proof and reasonable doubt. Next he defined the various crimes charged in the indictment. “Murder,” he told them, “is causing the death of another person accompanied by the intent to cause death.”

Then he instructed them on the law of extreme emotional disturbance and justification. He made good on his promise to limit the defense’s claim of justification as much as he possibly could. “Even if you should find that the defendant was initially justified in using deadly physical force,” he told them, “the statute permits him to do so only to the extent he reasonably believes such force to be necessary to defend himself. If the evidence convinces you that at some point in the encounter he continued to use deadly physical force when he no longer believed such force was necessary to defend himself, you must find that his doing so was no longer justified, and you must find him guilty.”

And then, just in case any of the jurors had missed the point, he repeated himself verbatim.

He also cautioned them not to decide the case on the basis of sympathy, whether for the defendant, the victim or their family members. “Nor,” he added, looking directly at Jaywalker as he spoke, “should you let your emotions overcome your reason.” In the same vein, the subject of punishment was not theirs to consider; it was for the court alone to decide. Not possible punishment, Jaywalker noticed. Just punishment. Their verdict was to be unanimous on each count of the indictment, either guilty or not guilty. And if they needed further instructions, wished any portion of the testimony read back to them or wanted to see any of the exhibits received in evidence, they were to communicate with the court by having their foreman, Mr. Craig, send out a written note. But in no way was that note, or anything Mr. Craig might say in the courtroom, to divulge how the jury stood in terms of any votes taken on any of the charges.

“You may now retire,” he told them, “to begin your deliberations.”

Jaywalker looked at the clock, saw it was 3:56 p.m. It was something he would do hundreds, if not thousands, of times over the course of the hours to follow. He knew from years of experience that with the testimony over, the evidence in and the lawyers silenced, the clock would now become a major player in how things unfolded. Whether it had completely dawned on the jurors or not, they were sequestered, prisoners themselves after a fashion. Jaywalker liked that fact, and whenever it was left up to him he insisted that they be locked up, just so they could get a tiny taste of what it had to be like for the defendant. But at the same time he knew that sequestration could work against him, that as the hours passed and the jurors became more and more anxious to return to their families and their lives, justice could sometimes fall victim to expedience. And expedience often showed up looking an awful lot like compromise.

He looked again. 3:58 p.m.

The first note arrived at 4:49 p.m.

The receipt of a note from the jury invariably produces a tense moment in the courtroom. In order to transmit their note to the judge, the jurors must use a buzzer to summon one of the court officers, a buzzer loud enough to be heard in the courtroom. And although the jurors are instructed to buzz once if they have a note and twice if they’ve reached a verdict, they’ve been known to mix up those directions, leading to untold numbers of anxiety attacks or worse. So while this time there’d been only a single buzz, it was more than enough to get Jaywalker’s butterflies moving again.

The spectator section began filling up. Family members took their places. Jeremy was brought in from the pens and seated at the defense table. Jaywalker and Darcy took their seats. Judge Wexler entered from a side door. The court reporter nodded to indicate that she was ready. The clerk walked up to the bench and handed the note to the judge. He read it twice, once silently to himself, the second time aloud.

We, the jury, request to hear again your charge concerning intent to commit murder.

William Craig

Foreman

Short of an acquittal, it was as good as Jaywalker could have hoped for. In his summation he’d stressed Jeremy’s explanation for having killed Victor Quinones, that in Jeremy’s mind it had been to save his life. While that testimony, if believed, was relevant on the question of justification, it also went to the even more fundamental issue of intent. If Jeremy had never intended to cause Victor’s death, that was the end of the murder charge right there.

As elated as Jaywalker felt about this development, Wexler and Darcy reacted with visible disbelief. After all, didn’t the evidence establish that Jeremy had lifted Victor’s head from the pavement at a point when Victor had been unarmed and helpless, before delivering the final shot between his eyes at point-blank range? If ever there’d been a classic example of intent to cause death, surely that was one. How could any jury be hung up on something so straightforward?

But hung up they were.

“Bring them in,” said Wexler. Not the jury, not the jurors. Them.

A court officer could be heard banging on the door to the jury room and shouting, “Cease deliberations!” A few moments later the jurors filed into the courtroom and resumed their places in the jury box. Jaywalker looked hard for some clue from them. Several made eye contact with him, a good sign. Beyond that, it was hard to read them.

The butterflies did their thing.

“Mr. Foreman,” said the clerk. “Please rise.”

Mr. Craig dutifully stood.

“Will the defendant please rise.”

Jaywalker and Jeremy stood up as one.

“Mr. Foreman, has the jury reached a verdict?”

And even though Jaywalker’s brain knew that they hadn’t, his heart pounded wildly in his chest. He could only wonder at how Jeremy and his family, who were strangers to the ritual, would deal with it. Having not expected the question in the first place, they had no way of anticipating the answer.

“No,” said Mr. Craig. “We have not.”

“Thank you. You may be seated.”

He sat. So did Jaywalker and Jeremy.

Judge Wexler read the note aloud again, barely attempting to disguise his astonishment at the jury’s question. It was at times like this, Jaywalker knew, that Wexler was at his most dangerous. Grimaces didn’t show up in the transcript. Appellate judges had no way of knowing if words had been spoken declaratively or sarcastically. More than once Jaywalker had gone on the record to describe in detail how a prosecutor had rolled his eyes or how a judge had smacked his own forehead in disbelief. His efforts had gained him few friends and a couple of overnights on Rikers Island. He let it go this time. With Harold Wexler, you had to pick your battles.

The jurors appeared to listen attentively as the judge reread the portion of his charge in which he’d discussed intent. “Under the law,” he told them, “a person intends to cause the death of another person when his conscious aim or objective is to cause the death of that person.” He told them to consider the defendant’s actions and what the “natural and probable consequences” of those actions might be expected to be. Then he looked up from his notes and added, “You know, the law doesn’t impose a requirement upon the People to prove that the defendant said, ‘I’m going to kill you’ to his intended victim, or words of that sort. So you should look at his actions, not his words or lack of them.

“One other thing,” he added, his voice softening. “Jury deliberation isn’t intended to be a stress test. It’s intended to be a time when you thoughtfully review the evidence and apply the law. It’s been a long day already, and you know your needs better than I do. You know when you’re tired or when you’re hungry. If you want to go to dinner now, fine. If you want to go to the hotel now, also fine. If you want to go to dinner and then come back to deliberate further, even that can be arranged. So when the time comes, let me know, and I’ll be guided by your wishes.” Then he told them to go back to the jury room and continue their deliberations.

To a disinterested layman, the remarks might have demonstrated nothing but a gentler, more compassionate side of Harold Wexler. Jaywalker was no layman, and he was anything but disinterested. Besides, he knew the judge better than that. Fearful that the jurors were on the verge of resolving the case with a quick acquittal, Wexler was telling them to slow down, back up and settle into the fairly lengthy, predictable process that deliberations so often became. Just as his earlier suggestion to focus on the defendant’s actions had been his way of telling them to pay little or no attention to Jeremy’s words, particularly those he’d uttered from the witness stand.

Once again, vintage Wexler.

The second note arrived at 6:14 p.m.

We, the jury, would like to go to dinner. After that, we would like to come back and resume our deliberations. And several of us would like permission to have wine with dinner.

William Craig

Foreman

So much for a quick acquittal.

With the jurors being taken to a local establishment for dinner and a single glass of wine each, Jaywalker was forced to be rude and decline Carmen and Julie’s offer to join them at a nearby Jamaican restaurant. “They got good jerk chicken,” Carmen assured him. He hadn’t eaten a thing in a day and a half, but the thought of chicken, let alone jerkchicken, whatever that was, was a nonstarter. So instead he joined Jeremy in the pens and bummed a cheese sandwich from a corrections officer. It turned out to be nothing more than two slices of stale white bread separated by a thin layer of Velveeta, but it hit the spot. Jaywalker had done army food in his youth, and prison food wasn’t all that different. Put him on an airplane in the old days, back when they’d actually served meals, and he’d been in heaven.

“So what do you think?” Jeremy asked him.

“Not bad,” Jaywalker had to admit.

It was only later, when he was down on Centre Street stretching his legs and trying to get some fresh air, that it struck him that Jeremy might not have been asking him about the sandwich. But even if he hadn’t misunderstood Jeremy’s meaning, Jaywalker would have had no good answer to the question. At times like this, early on in the deliberations, he never knew what to think.

The jurors returned from dinner just before eight o’clock and resumed their deliberations. Judge Wexler had left word that he’d be in his chambers upstairs. Katherine Darcy checked in by phone from her office, which was located in the same building. Jaywalker, who had no chambers and no office, stuck around. He talked with the clerk, the court officers, the corrections officers and the court reporter. He tried to calm Carmen and Julie down, but the truth was, they seemed calmer by far than he was. Twice he went into the pens to make sure Jeremy was okay. Both times he found Jeremy lying on a bench, his eyes closed. Jaywalker chalked it up to sleep deprivation, rather than complacency. Still, he couldn’t imagine falling asleep in Jeremy’s situation. Jaywalker himself was running on fumes, not having slept more than a couple of hours over the last two days. But the idea of sitting down, closing his eyes and napping was nothing less than unthinkable.

The buzzer sounded at 8:19 p.m.

Once.

We, the jury, would like to rehear the testimony of Dr. Seymour Kaplan regarding his reasons for concluding how close the gun was to Victor’s head when the defendant shot him between the eyes.

William Craig

Foreman

P.S. Both direct and cross-examination.

This was bad, thought Jaywalker, bad for a number of reasons. First of all, Kaplan was the last witness Jaywalker wanted the jurors to hear again. His opinion that the tip of the gun’s barrel had been at most five inches from its target was as devastating to Jeremy’s claim of self-defense as Detective Fortune’s forty-five-foot measurement had been. But unlike Fortune, Kaplan had come off as a thoroughly believable witness. So the jurors weren’t asking to hear his testimony again because they doubted him. Next there was the manner in which the note referred to the two young men. Victor Quinones had become “Victor,” in what Jaywalker took to be a humanizing touch. In contrast, Jeremy Estrada had had his name stripped away completely and had been reduced to the status of a depersonalized “defendant.” Then there was the inclusion of the phrase “shot him between the eyes.” To Jaywalker, those words seemed not only unnecessarily gratuitous but pointedly accusatory. The jurors could have said “the final shot,” “the fatal shot,” or even “the head shot.” But they hadn’t. They’d gone out of their way to make it sound like the overkill Katherine Darcy had argued it had been. Finally there was the specification that they wanted both direct examination and cross on the matter. That was a typical enough request, and under different circumstances Jaywalker would have been heartened by it. But here it had clearly been an afterthought. Not only had it been tacked onto the note as a postscript, it had been added in a handwriting visibly different from that of Mr. Craig’s. And whoever had written it apparently hadn’t felt on solid enough ground to have signed his or her name beneath it.

All things considered, it was a very bad note.

It was after nine o’clock by the time the jurors got what they’d asked for, and from the looks on their faces they would be more careful next time. It had taken the court reporter fifteen minutes to locate and mark the portions of the testimony relevant to the request, another fifteen minutes to reassemble everyone in the courtroom, and a third fifteen minutes for the reporter to read the questions and answers aloud to the jury. She did so, as reporters are instructed to do, without inflection, in order to avoid favoring one side or the other, either deliberately or unconsciously. The result was, as it almost always is in read-backs, a rapid-fire monotone so flat and so uninteresting as to be positively numbing.

That said, it didn’t come off as devastatingly as Jaywalker had feared. To be sure, there was Dr. Kaplan’s opinion that the gun had been anywhere from a quarter of an inch to four or five inches away from its target. And in support of that opinion was his finding of “radial tearing” around the edge of the wound, indicating that the scalp had been literally lifted off the skull. But on cross, Jaywalker had succeeded in getting Kaplan to admit that he’d found no evidence of a “muzzle stamp,” singed eyebrows, “stippling” or “fouling.” And if the absence of those things didn’t truly undermine the doctor’s conclusion, it made for good listening.

At least for Jaywalker.

The jury’s final note of the evening arrived at 10:23 p.m., precisely seven minutes before Judge Wexler was going to send them to a hotel for the night whether they liked it or not.

We, the jury, are tired and would like to stop deliberating. We also would like to hear, very first thing tomorrow morning, the testimony of the three eyewitnesses, Miss Lopez, Mr. Porter and Teresa Morales, regarding how after the first shot or shots, the defendant chased the victim before shooting him the last time, and exactly how the defendant fired the last shot.

Nothing else, please. And we need only the direct examination this time.

William Craig

Jury Foreman

This was worse, far worse.

And not just the direct-examination-only specification. While it was painful to hear, the truth was that Jaywalker had asked few if any questions about the final chase and shot, having preferred at the time to get the three eyewitnesses off the stand before they could inflict more damage. And Jeremy’s testimony had never really addressed the issue. When it came right down to it, the most he’d been able to say was that he didn’t remember.

No, this was worse because it meant that in the morning the jurors would resume their deliberations immediately after hearing the three most damaging portions of the eyewitness accounts, the portions that blew away Jeremy’s claim of self-defense and changed the case from justification to execution.

So this was how it was going to end. The jurors would come back in the morning, listen to the three accounts and find Jeremy guilty. They might throw him a break and convict him only of manslaughter, on the theory that he’d been under the influence of extreme emotional disturbance. Or they might not. But what was the difference? Either way, he wouldn’t be seeing daylight for the next twenty or twenty-five years.

The jurors were sent to their hotel. Jeremy was led back into the pens. The judge went home. The clerk and court officers began locking up. It was the court reporter who stopped Jaywalker and Katherine Darcy.

“Listen,” she said. “I rotate with another reporter, and I’m not due back here until two o’clock tomorrow afternoon. If you want the transcript marked for the read-back, we’ve got to do it now.”

Darcy seemed agreeable enough. And why not? Here she was, on the verge of a conviction in her first murder trial. And she could always go down to her office on the seventh floor, find a sofa to curl up on and catch six or seven hours of sleep. Jaywalker, on the other hand, was totally out of adrenaline, in serious danger of crashing and a long subway ride from home. But it seemed he had no choice.

It took them forty minutes to isolate and mark all the relevant portions of the testimony. Jaywalker pretty much sat back and let Darcy and the reporter do the work. They’d been her witnesses, after all, and she knew from her notes where she’d asked them what. Still, it seemed to take forever. When they were finally finished, the reporter thanked them and ducked out the side door, the only one that wasn’t double-bolted shut. “Turn off the lights on your way out,” she told them. “The door will lock itself.”

Jaywalker took one last look at the clock. 11:43 p.m. He discovered he could barely stand up. It wasn’t just lack of sleep, and it certainly wasn’t lack of food: that Velveeta-on-white must have had a good two hundred calories in it, not to mention a week’s requirement of sodium, guar gum, xanthan gum and food coloring. No, it was the losing, or at least the certainty that he was going to.

“You okay?” Darcy asked him.

“Yes,” he said. “No. I don’t know. But hey, congratulations.”

“Don’t be silly,” she said. “Anything can still happen. They’re a weird bunch, this jury.”

Like she was an old hand at this.

He followed her out of the courtroom, flicking off the lights and pulling the side door closed until he heard the lock click. He knew from night-court experiences that the north bank of elevators would be shut down. Besides which, only the south bank ones opened onto the seventh floor, where the district attorney’s offices were. But when he pressed the button, no little orange light came on. He figured maybe the bulb had burned out, but when he tried the button on the other side of the bank, the same thing happened.

They waited five or six minutes, elevatorless.

“You up for walking?” he asked her.

“Okay,” she said. “But no funny stuff. I’ve heard about you and stairwells.”

He smiled as much as he could, which wasn’t much. But when he tried the doorknob to the first set of stairs, he found it locked. As he did with the second set. “Welcome to post-9/11 security,” he said. “I guess they lock these things up at night now.”

“So we’re stranded?”

“Nah,” he said. “Got your cell phone?”

“It’s in my office.”

“Great.”

“How about yours?”

“Don’t own one.” It was the truth, a lawyer without a cell phone. But Jaywalker was a dinosaur among lawyers, a throwback to the Jurassic era, and he was determined to go to his grave without ever having had one of the damned things.

Then he got an idea. “Follow me,” he said, and started walking back to the north end of the corridor.

Darcy hesitated. Some part of her must have sensed that following Jaywalker was right up there with falling in line behind a column of lemmings. But follow she did, though at a distance.

Down at the end of the hall was a door. It, too, was locked, as Jaywalker had fully expected. He reached into his jacket pocket. He might not have a cell phone, but he did have a wallet. There was no money in it-that he carried folded in his back pocket and secured against jostlers by a thick rubber band-but he did have plastic. He found his get-out-of-jail card, more officially known as a New York City Department of Corrections Attorney Identification. It took him ten seconds to slip the lock with it. Back in his DEA days, it would have been less than five.

“What’s in here?” Darcy asked.

“Judges’ chambers. And,” he added, turning on the lights and rounding a corner, “voila! Their private elevator.” He pressed the button, and within half a minute an empty elevator opened in front of their eyes and beckoned them aboard. It was much smaller than the building’s regular ones, and much nicer. Instead of graffiti-resistant brushed metal walls, this one was paneled in what looked to be real wood. In place of industrial flooring, it sported red carpeting. A bit faded and worn, to be sure, but red carpeting nonetheless. And where the building’s other elevators were illuminated by harsh fluorescent bulbs glaring down through low-hanging plastic grids, this one was bathed in soft tones from invisible fixtures recessed into a ceiling a good ten feet above their heads.

“So this is how the other half lives,” said Darcy, stepping in gingerly, not unlike the way Cinderella must have mounted the steps to the coach that was to take her to the ball.

“This, a black robe and a gavel,” said Jaywalker. “Not to mention a special ticket-proof license plate.” He followed her on and pressed One. The door closed, and they began descending silently.

“Well,” said Darcy, “I want to thank you for getting us out of here. And I’ll see you in the morning.”

Jaywalker looked at his watch. “It is morning,” he announced, noticing that it was actually a minute past midnight.

But evidently Jaywalker’s watch was a minute fast. Or perhaps it was a matter of the elevator’s automatic timing mechanism being a minute slow. Whichever was the case, the result was indisputable. Only seconds into their descent, the lights above them flickered once and went off, leaving them in absolute blackness as they gently slowed to a complete stop.