Overkill

6

Under New York State law, the crime of murder is defined as intentionally causing the death of another person. Gone are such archaic considerations as motive, premeditation and malice aforethought. It is sufficient that the defendant intends to cause the death of another and succeeds. It isn’t even necessary that his victim be the one he meant to kill.

But there’s a defense written into the statute, too. If the jury can be persuaded that the defendant acted under the influence of “extreme emotional disturbance,” it may return a verdict of not guilty on a murder charge.

If those words applied to anyone, Jaywalker decided, they had to apply to Jeremy Estrada. The cumulative effect of his torment at the hands of Sandro, Shorty, Diego, Victor and the rest of the Raiders had surely disturbed Jeremy, not only emotionally, but physically, as well. Could there possibly be any doubt that that disturbance had been “extreme”? It would take a closer reading of the statute to make sure, and an exhaustive study of the case law, but already Jaywalker knew he had the raw materials to make a good argument that the words fit Jeremy like a glove.

There was one hitch, however, and it was a big one. The same statute that spoke of extreme emotional disturbance made it abundantly clear that it was a defense only to murder, not to manslaughter. In other words, it was a partial defense, permitting a jury to knock the crime down a notch, but not to forgive it altogether.

Not that it wasn’t a start. A murder conviction would mean a mandatory life sentence, with the minimum to be set by the judge at anywhere from fifteen to twenty-five years. A sentence for first-degree manslaughter, on the other hand, had to be a determinate-or fixed-one, and could range from as little as five years to as many as twenty-five, again depending on the judge’s discretion.

So in his mind, Jaywalker had already figured out a way to avoid a life sentence for Jeremy, even if a term of twenty-five years still loomed as a very real possibility. But he’d accomplished something else, too. He’d found the key with which he might just be able to unlock Katherine Darcy’s stranglehold on the case. She could talk all she wanted to about the case being an execution, and how she’d never offer a Man One on it. But Jaywalker no longer needed her to do that; a jury could do it on its own, without her blessing and even over her objection.

Which, of course, Jaywalker would be sure to point out to her, next time they met. But he felt no particular need to rush back to see her. He might not exactly be in the driver’s seat yet, but at least he was no longer being dragged along bodily, clinging to the back bumper.

The following Wednesday they appeared in Part 55 before the man who, for better or for worse, was to be their trial judge. Unlike Judge McGillicuddy, who worked in an “up front” part and sent cases out after a single appearance, Harold Wexler would hold on to the case forever. Forever being a relative term, but not all that relative. In Jeremy Estrada’s case, it would include all pretrial proceedings and hearings, the trial itself, if there was to be one, and the sentencing in the event the prosecution prevailed, which was about eighty percent of the time generally, though only about ten percent of the time if Jaywalker happened to be representing the defendant. Only after all that would the case finally leave Part 55 to begin its climb through appellate courts manned by other judges.

Actually, to say, “They appeared in Part 55,” while technically true, would be pregnant with omission. A more instructive way of phrasing it would be, “Jaywalker appeared in Part 55 before Katherine Darcy did.”

Jaywalker had been knocking around 10 °Centre Street for more than twenty years. It was his home court, as he liked to call it, and he knew the players. He especially knew the judges, because it was his business to. Not that he socialized with them; Jaywalker didn’t socialize with anybody if he could help it. But he’d known a lot of the judges from back when they’d been colleagues of his at Legal Aid or adversaries in the D.A.’s office. Together they’d grown up in the system, often battling, sometimes brutally, but never personally. Jaywalker’s occasional antics might drive some of them crazy, but not one among them doubted that if the police were ever to come banging on the door after midnight, his would be the number they’d call.

Jaywalker had known Harold Wexler as an angry young civil rights lawyer, long before he’d become an angry middle-aged judge. As bright as anyone on the bench and as well-read in the law, he too often fell victim to his own impatience and his inability to suffer fools, be they defendants, defenders, prosecutors or innocent bystanders. He appreciated good lawyering when he saw it in his courtroom, and he saw it unfailingly in Jaywalker. Those he didn’t see it in, he attacked with a biting wit, his sarcasm projecting to the farthest row of the audience. A lawyer who hadn’t done his homework could expect to be told, “I see you’ve avoided the dangers of over-preparation, Mr. Jacobs.” Another, forced to answer “No” when asked if she was ready for trial, might hear, “Well, at least that has the virtue of clarity.”

Generally, Jaywalker had learned, you got a fair trial from Harold Wexler. But he tended to get emotionally involved in his cases. If your client was truly sympathetic, Wexler could be your best friend. But if he decided your client was a total slimebag who deserved to be locked up for the remainder of the century, you were in for a long week or two.

It mattered.

And because it mattered, Jaywalker had made it a point to arrive at Part 55 that morning neurotically early, so early that the doors hadn’t even been unlocked by the court officers. Jaywalker knew them, too, and the clerks and interpreters and stenographers and corrections officers. They knew him and liked him, and it made his job easier in a hundred little ways.

So once the doors had been unlocked and the other early arrivals had begun trickling in, the clerk mentioned to Judge Wexler that Mr. Jaywalker was there on Jeremy Estrada’s case.

“Why don’t you come up and tell me about it?” said the judge.

Which, of course, was the whole idea.

Katherine Darcy, meanwhile, was nowhere in sight. So a younger assistant joined Jaywalker at the bench, an assistant who had a file but knew absolutely nothing about the case. He kept glancing toward the front door, hoping Ms. Darcy would show up and rescue him.

“What do we have here?” the judge wanted to know.

“What we have,” said Jaywalker, “is a seventeen-year-old kid who makes the mistake of falling in love. A local gang of thugs rewards him by tormenting him for three months, placing him under virtual house arrest. Finally, he sees one of them alone. They have a fistfight, which by all accounts the defendant wins. But the other guy turns out to be a poor loser. According to my guy, he pulls a gun, they struggle over it, my guy gets it away from him and shoots him. Unfortunately, his aim happens to be very good.”

Wexler looked to the young A.D.A., but the poor guy was busy leafing through the file, trying his best to decipher handwritten notes.

“It’s Katherine Darcy’s case,” said Jaywalker. “She’s going to tell you it’s a no-plea case, an execution.”

“And you? What are you going to tell me?”

“I’m going to tell you that if it’s not justification, it’s certainly extreme emotional disturbance. To me it’s a Man One, five years.”

“Here comes Ms. Darcy now,” said the young assistant. All eyes turned to see her hurrying up the aisle like a bride late for her own wedding.

“Looks like I missed something,” she said.

“Feel free to arrive in my courtroom at nine-thirty,” Judge Wexler told her, “and I assure you you’ll miss nothing.”

“Sorry.”

Not that the judge didn’t give Katherine Darcy a chance to explain her view of the case. He did, and she placed the gun in Jeremy’s hand, not Victor’s, and described how he’d delivered the final shot to a victim who lay helpless on the ground, begging for mercy.

At that Wexler turned to Jaywalker and said, “There goes your justification defense.”

“That’s why I told you Man One and five years.”

“No way,” said Darcy.

The judge gave her a hard look. “You really see this as a no-lesser-plea case?”

“Absolutely,” she said, trying to trump his skepticism with complete certainty.

Jaywalker said nothing. But he did look up at the ceiling, his not-so-subtle substitute for rolling his eyes in exasperation.

“I see cases like this all the time,” said Wexler. “Two guys, one girl, much too much testosterone. I’d split the difference. I agree it’s a first-degree manslaughter, but I think it’s worth the maximum, twenty-five years. Talk to your client, Mr. Jaywalker. And you go meet with your supervisors, Ms. Darcy. Only this time?”

“Yes?”

“I suggest you don’t show up late.”

She didn’t call him until the following afternoon. He was sitting at his computer at the time, trying to write. He’d been trying to write for several years now, trying being the operative word. Still, he had this fantasy of getting out, of running from the law and becoming a bestselling author, the next John Grisham or Scott Turow. Because the thing was, he had all these incredible stories from his years in the trenches, and he thought he knew how to write well enough to tell them. Hell, he’d been an English major once. Which was why he’d had to go off to law school after college, to learn a trade. But he really could write, no small feat for a lawyer. The problem seemed to lie elsewhere. His old therapist had suggested that perhaps Jaywalker didn’t want to get out at all, that in fact he preferred to spend the rest of his days down at 10 °Centre Street, trying cases until they carried him out in a box.

He answered the phone on the third ring with his customary, “Jaywalker.”

“Hi,” said a woman’s voice he didn’t recognize. “This is Katie Darcy. From the D.A.’s office. Jeremy Estrada’s case?”

“Sure,” said Jaywalker. “Right.” His silence wasn’t the result of his not knowing who she was, or who employed her, or what case they had together. It was the first name that had caught him. Just when had she ceased to be Katherine and become Katie? And whenever it had been, wasn’t it, as Martha Stuart might have put it, a good thing?

“Is this a bad time?” she asked.

“No, no. It’s a fine time.”

For a moment neither of them said anything. As curious as he was about the reason for her call, Jaywalker wasn’t about to ask. As they used to say back in the old days, before double-digit inflation, it was her dime.

“I truly believe,” she finally said, “that Judge Wexler is dead wrong. I think the case is a murder case. But I’ve got to tell you. After spending fifteen minutes with him, I have no desire to be his punching bag for two weeks. If your client wants the Man One, he can have it.”

“With five years?”

“No,” she laughed. Actually laughed. “With twenty-five years, and not a day less.”

If the “it” wasn’t quite ice in the wintertime, it was pretty close. Nonetheless, Jaywalker didn’t want to be rude. Not when Katherine had become Katie and made them an offer of any sort, all in one conversation. “I’ll talk to Jeremy,” he said. He could have said “my client,” but he preferred to personalize him. He wanted to begin the process of getting Katie to think of Jeremy Estrada as a kid, instead of as a case.

Obviously that Katherine-to-Katie switch had gotten to him. So much so that it seemed silly to ignore it. “So,” he asked her, “when did you become Katie?”

“I’ve always been Katie,” she deadpanned. “My middle initial is T. So I’m really K. T. Darcy.”

“What’s the T stand for?”

“Ahhh,” she said. “That’s for me to know.”

He had Jeremy brought over two days later for a counsel visit. The two trips to Rikers Island had worn Jaywalker out. He figured it was Jeremy’s turn to travel.

“What’s up?” Jeremy asked, his eyes puffy from the 3:00 a.m. wake-up.

“The D.A.’s willing to give you a manslaughter plea,” Jaywalker told him. “But only if we agree to a twenty-five year sentence.”

“How much do I do on that?”

“Around twenty.” A dozen years back, truth-in-labeling had come to sentencing. Gone were the days when a judge could sentence a defendant to a public-pleasing thirty-year prison term, confident the parole board would quietly let him go home in six months.

“Do I have to take it?” Jeremy asked.

“Of course not.”

“Will you be mad at me if I don’t?”

“Jeremy, this isn’t my case. It’s yours.”

“And you’ll still fight your hardest for me, even if I don’t take it?”

“Absolutely.”

Jeremy’s mother was somewhat more empathetic.

“That’s too much time, Mr. Walkerjay. He was only a boy. They made him do it.”

Jaywalker tried to explain that he was simply the messenger. But the distinction seemed totally lost on Carmen Estrada. “Jew gotta do better for him,” she insisted. “I’m paying jew a lotta money here. Jew gotta get him less time, a lot less.” And she handed him another envelope, this one with seventy-five dollars in it.

A lotta money indeed.

They went back before Judge Wexler in mid-October. He ruled on Jaywalker’s motions, predictably refusing to dismiss the murder charge or reduce it to manslaughter. He postponed until just before trial any decision on whether the prosecution would be entitled to ask Jeremy Estrada about his prior arrest if he were to take the stand. When it came to the issue of the fairness of the lineup at which Teresa Morales had picked Jeremy out, the judge turned to Ms. Darcy.

“You’re saying the identification was purely confirmatory?”

“That’s correct.”

“They knew each other?” the judge asked.

“So to speak.”

“What she’s trying to tell you,” said Jaywalker, “is that Teresa Morales is one of the gang members who stalked the defendant for three months.”

“Gang members?” said Wexler and Darcy in unison.

Jaywalker let out a snort, a hybrid somewhere between a laugh and a grunt. The existence of gangs in the five boroughs had long been one of the city’s dirty little secrets. Gangs were a phenomenon supposedly restricted to other places, like the Watts area of Los Angeles, the South Side of Chicago, and pretty much all of Newark and Camden, New Jersey. New York City might have a colorful history of Irish Westies and Italian Mafiosi, but when it came to modern counterparts with names like Bloods and Crips and Latin Kings, the official word of the day was denial. So Jaywalker’s use of the term had bordered on burn-him-at-the-stake heresy.

“Please forgive me,” he said. “The last thing I want to do is to disparage the emperor’s new clothes.”

“You’ll have to excuse Mr. Jaywalker,” said Wexler to Ms. Darcy. “From time to time he mistakes my constant smile and jovial good humor as an invitation to make bad jokes.”

“Let me withdraw the term gang,” said Jaywalker. “How about marauding band of drug-dealing thugs?”

“How about instead we get to the point?” suggested the judge. “How many times, Ms. Darcy, had your witness encountered the defendant prior to the incident?”

Which, of course, was precisely what Jaywalker had wanted to hear all along. If her answer were to be “just once or twice,” then the lineup hadn’t been merely confirmatory, and the defense would be entitled to a pretrial hearing on its admissibility. If, on the other hand, she were to say “a dozen or more,” that fact would play nicely into Jeremy’s claim of constant, continued harassment at the hands of the Raiders.

Ms. Darcy’s hesitation to answer suggested she recognized the trap. “I don’t know the precise number,” she said.

“Perhaps,” said Wexler, “you could give us a ballpark figure. Like more than five, ten to twenty, less than a thousand.”

“Less than a thousand,” she said, apparently taking the judge literally.

“She likes to play things close to the breast.” As soon as the words were out of Jaywalker’s mouth, he knew they didn’t sound quite right. He hoped the other two had missed it. But Harold Wexler never missed anything.

“I believe,” he said, “that the expression is close to the vest.”

“That, too.”

“Once again, Ms. Darcy, you’ll have to forgive Mr. Jaywalker. If only a small fraction of recent rumors are to be credited, his competence before the court is rivaled only by his legendary exploits between the sheets.”

Jaywalker could only wince, while Katherine Darcy actually blushed, something Jaywalker thought had gone extinct around 1940, along with fainting couches and lace handkerchiefs.

“Listen,” said the judge. “Can’t we resolve this case? Is there still no offer here?”

“As a matter of fact, there is an offer,” said Ms. Darcy, happy to move on. “I’ve told counsel that Mr. Estrada can have the first-degree manslaughter plea if he wants it.”

“With twenty-five years,” added Jaywalker.

“Fair enough,” said Wexler. “Mr. Jaywalker?”

“We’re not even close. He’d take five, maybe six or seven, though I’d probably have to break his arm. But twenty-five? That’s way-”

“Let me make my own position clear,” said the judge. “I’m strongly inclined to agree with Ms. Darcy’s assessment of this case. The first shot doesn’t disturb me too much. But the second one, the one at point-blank range between the eyes, as the victim lies on the ground begging for his life? I think execution is an appropriate description of that. So the defendant can have the twenty-five years and be out in twenty. Or he can go to trial, get convicted of murder, and have the exact same twenty-five years, but as his minimum, with life as his maximum. His choice. I could care less. Next case.”

If you happen to be a devotee of old black-and-white Westerns, as Jaywalker had been in his youth, you soon learn that long before the arrival of Technicolor, things were already pretty much color-coded. The good guy almost invariably sported a white hat and rode a white horse, or perhaps a palomino, if white horses happened to be in short supply. The bad guys just as uniformly wore black and rode black.

Just three weeks ago, Katherine Darcy had been the villain in Part 55 for the sin of refusing to offer a manslaughter plea. She’d quickly discovered it was a role she didn’t enjoy playing. So she’d done something about it. She’d offered Jeremy Estrada the plea, but only on the condition that he accept the maximum allowable sentence of twenty-five years. Now the judge had not only agreed with her and adopted her position as his own, he’d threatened to impose the maximum sentence for murder if the defendant rejected the offer and the jury were to convict him of the top count.

Or, put another way, in the short space of three weeks, Jaywalker had gone from good guy to bad guy. He would ride into trial wearing the black hat, astride the black horse. The judge would do everything in his power to make sure there was a guilty verdict on the murder count. Not that he would be obvious about it. Harold Wexler was much too smart to be heavy-handed in dispensing biased justice. No, he’d do it in small and subtle ways, all but unnoticeable to both a jury and an appellate court reviewing a transcript. But the cumulative effect would be absolutely devastating.

Welcome to Tombstone.