Overkill

25

The read-back went even worse than Jaywalker had anticipated. He’d arrived in court uncharacteristically late, though still early by normal standards. Several court officers went out of their way to comment that he looked rested and seemed in unusually good spirits, at least for him.

Following the elevatorus interruptus episode and the standoff with Judge Sternbridge, Katherine Darcy and Jaywalker had bade each other good-night and headed to their respective homes. Famished, Jaywalker had stopped off at an all-night pizza joint and inhaled three slices. It was times like that when even he had to admit that living in the big city had its advantages. Once back at his apartment, he’d undressed, pausing only momentarily to wonder where his socks had gone, fallen onto his sofa and slept like a baby for the first time in weeks, if only for a few hours.

As for Katherine Darcy, she, too, looked just fine and seemed in good spirits, but there was nothing new there. And each time she made eye contact with Jaywalker she quickly looked away, obviously afraid she’d burst out laughing.

But none of that made the read-back any easier to listen to. Even in the rapid-fire monotone of the court reporter, the testimony of Magdalena Lopez, Wallace Porter and Teresa Morales was nothing short of devastating. Each of them had recounted how Jeremy, gun in hand, had chased Victor down and delivered the final shot at point-blank range. Lopez had described how the two of them had moved to “a different spot” just before that had happened. Porter recalled how Jeremy had chased Victor and then “shot him like three more times.” And when Victor had fallen to the ground, Jeremy had “picked him up by the collar and he shot one or two more times at him.” But it was Teresa’s version that stung the most.

I told Victor, “Run, run!” And when he ran, the guy shot him, and Victor like went down on the ground. Then he got up, and the guy shot again, and it hit the street. Then Victor ran again, inside the park, around a bench. But he tripped. And then the guy just walked over, grabbed him and killed him.

And since the read-back ended right there, the silence that followed it was absolutely deafening. Finally Judge Wexler turned to the jurors. “You may retire to continue your deliberations,” he told them, and they filed out of the courtroom. Then he told the lawyers to approach the bench.

“Still want to offer him the manslaughter plea?” he asked Darcy.

She seemed to think for a moment. She had to know how close she was to a guilty verdict. She could hang tough now if she wanted to, holding out for a conviction on the murder count. But after a moment she said, “Sure, why not?”

“Talk to your client,” Wexler told Jaywalker. “Man One, fifteen years. Right now, before it’s too late.”

Jaywalker glanced up at the clock, saw it was 10:22 a.m.

He walked back to the defense table, sat down and began explaining things to Jeremy. Not only were they still offering him the manslaughter count in the face of a near-certain conviction, he said, but Wexler himself had softened and come down to fifteen years, by far the best offer yet.

“How much would I have to do?” Jeremy asked.

“Twelve,” Jaywalker estimated.

Jeremy smiled his sheepish smile. “If it’s okay with you,” he said, “I’d rather take my chances with the jury.”

Jaywalker tried his best to convince Jeremy that from all indications, the jurors had turned against him. Even if they’d begun their deliberations looking for some way to acquit him-and the intent-to-kill note had suggested just that-by now they’d moved on and had come to view the final shot the same way the prosecution did, as pure overkill.

Jeremy shrugged, smiled again and said, “Still…”

Jaywalker got Wexler’s permission for a court visit. The court officers obligingly cleared the front row of spectators, moved Jeremy’s chair to the solid wooden railing, placed another chair on the audience side of it, and allowed first Carmen and then Julie to speak with Jeremy for a few minutes. The idea was for them to talk him into doing what Jaywalker had been unable to do.

They couldn’t.

Jaywalker tried once more, before catching the judge’s eye and shaking his head back and forth. Wexler stood up and left the courtroom without comment. Jaywalker looked at the clock-10:51 a.m. He guessed he’d be home by one, two at the latest.

He was wrong.

The buzzer sounded at 11:33 a.m. One buzzer, not two. Though in the two seconds it took to determine that there wouldn’t be a second one, Jaywalker felt his heart go into serious fibrillation. Or maybe a lost butterfly had strayed up and into his chest to flap its wings in panic. He turned to Jeremy and said, “Relax,” and they shared a laugh at the absurdity of the notion.

We, the jury, would like to know if there is any way we can send the defendant a message that what he did was absolutely wrong, and criminal according to the law. At the same time, some of us strongly suspect that the defendant’s actions were out of character and feel it highly unlikely that he will repeat them, or similar criminal acts, in the future. How can we send that message without violating our oaths as jurors?

William Craig

Jury Foreman

“You can’t,” Harold Wexler told them once they were back in the jury box. “You’re not here to send the defendant or anyone else a message. Your job, and your only job, is to make a determination as to whether the defendant’s guilt on each count of the indictment has been proven to your satisfaction or not. Period. As for punishment, that is a matter that is solely within the province of the court. Or to put that into plain English, that’s my job.

“Now let me say this,” he continued, removing his glasses and looking up from his notes. “Despite rumors circulating to the contrary, I am a human being. I listened to the same testimony that you did. I have read your most recent note and understand your concerns. You may rest assured, each of you, that if and when it comes time for me to impose sentence upon Mr. Estrada, I will take into consideration all of the facts and circumstances of this very tragic case.

“I trust that answers your question,” he told them. “Now you may retire and resume your deliberations.”

Not that Jaywalker hadn’t argued long and hard against what Wexler had proposed to say. Wrapped in all those comforting words was an implicit promise to treat Jeremy with not only understanding but leniency. But sentencing wasn’t “solely the province of the court” at all. By imposing strict minimum terms, the legislature had made it very much its province, as well. Wexler could go on as long as he liked about being a human being, understanding the jurors’ concerns and considering all aspects of “this very tragic case,” but murder sentences still began at fifteen to life, and first-degree manslaughter at five years, which Jeremy could surely forget about, having just turned down fifteen on a plea. Therefore, Jaywalker contended, the judge was playing fast and loose with the jurors, lulling them into thinking Jeremy would get at most a slap on the wrist if they were to convict him, when in fact a lengthy prison term awaited him.

“You have your exception,” Wexler had told him. Which in layman’s terms translated into “Shut up and sit down.” And the fact was, as duplicitous as the judge was being, he was standing on pretty solid ground, and he’d no doubt known it. The genteel way in which he’d answered the jurors’ question had hewed closely enough to the law-which did indeed leave sentencing up to the court and not the jury-that it would no doubt satisfy the concerns of any appellate judge reviewing the statement long after the conviction.

So forty minutes later, when the buzzer sounded not once, but twice, nobody in the courtroom was surprised. Not Jaywalker, certainly, who’d known precisely what would happen next. Not Katherine Darcy, who looked sympathetic to his concerns but obviously felt powerless to do anything about them. Not the court officers, who even as they mumbled that Jaywalker had been shafted-which wasn’t quite how they phrased it-called for reinforcements, a guilty verdict being a time when even the most docile of defendants tended to act out unpredictably. Not Harold Wexler, who made a point of loudly asking the clerk what a convenient sentencing date might be. Not Carmen or Julie, who sat in the audience hugging each other, sobbing softly. Not even Jeremy, who for once lowered his head and seemed intent on studying the floor, the sheepish smile finally gone from his face.

“Mr. Foreman, please rise.”

As he had on each previous occasion, William Craig stood. At the defense table, so did Jaywalker and Jeremy. By now they knew the ritual well enough that they no longer waited to be asked.

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

“Yes, we have.”

In his right hand he held a single sheet of paper, called a verdict sheet. It listed the different counts of the indictment in order, by number and crime charged. Jaywalker knew from years of experience that whatever Mr. Craig were to do with it next would be a tell, an indication whether the jury had convicted Jeremy of all twelve counts or just some of them. If it was all, Mr. Craig would have no need to refer to the sheet; he could simply say the word “Guilty” each of the twelve times he was asked. So, too, if all of his responses were to be “Not guilty.”

“With respect to the first count of the indictment,” said the clerk, “charging the defendant with the crime of murder. How do you find the defendant, guilty or not guilty?”

William Craig lifted the verdict sheet and looked at it. So it was to be a split decision, Jaywalker immediately knew, a mix of convictions and acquittals. Guilty of murder but not manslaughter, for example. Or, God willing, the other way around. It had come down to that, Jaywalker the atheist praying for the compromise verdict he’d begged the jurors not to settle on.

“Not guilty,” said Mr. Craig.

Jaywalker exhaled ever so slightly and thought he felt Jeremy do the same alongside him. So it was going to be a manslaughter conviction. A victory of sorts, one most lawyers would be thrilled with, given how close they’d come to a murder conviction.

“With respect to the second count of the indictment,” said the clerk, “charging the defendant with the crime of manslaughter in the first degree. How do you find the defendant, guilty or not guilty?”

“Not guilty.”

A muffled cry came from the spectator section directly behind Jaywalker. Carmen or Julie. The judge banged his gavel, harder and more angrily than Jaywalker would have thought necessary.

Nine more times the clerk asked William Craig how the jury had found the defendant, of second- and third-degree manslaughter, reckless endangerment, menacing, two degrees of assault and three degrees of unlawful possession of a deadly weapon. Nine more times Mr. Craig, still checking his verdict sheet, spoke the words, “Not guilty.”

Only on the twelfth and final count of the indictment was his answer different. “Guilty,” he said, “with a recommendation of-”

Wexler banged his gavel repeatedly, loud enough to drown out the rest. Only when the courtroom had fallen silent, save for some muffled sobbing from the rear, did Mr. Craig take the opportunity to say “leniency.”

Jaywalker and Jeremy slumped down into their seats like a pair of marionettes whose strings had suddenly been cut.

“Do you wish the jury polled?” Jaywalker heard the judge asking him. He was about to say no, it wasn’t necessary. The twelfth count of the indictment had charged Jeremy with a violation of the New York City Administrative Code that made it unlawful to fire a gun within city limits. It was an unclassified misdemeanor that carried a maximum sentence of six months in jail or a five hundred dollar fine. Jeremy had already done a year in jail, the equivalent of time served. If anything, the system owed him six months change. So no, he had absolutely no problem at all with the verdict.

But when he looked to the jury box to say that, Jaywalker saw a dozen heads nodding his way expectantly. And then he remembered. In his summation he’d made a point of promising them that it wouldn’t be he or the prosecutor or the judge who would have the last word of the trial. It would be them. And now they were going to hold him to his promise.

“Yes,” he said. “Yes, we’d like the jury polled.”

He watched and listened as, one by one, twelve of his and Jeremy Estrada’s fellow citizens stood up, looked them in the eye and, when asked, answered in a loud and clear voice, “Yes, that is my verdict.”