Overkill

by Joseph Teller

  “I’ll tell you what,” he’d added. “I’ll agree to call them at the very beginning of the defense case.”

  “And keep whoever you’re calling second outside while the first one’s on the stand?”

  “You got it,” Jaywalker had said, and they’d had a deal.

  That afternoon Darcy called Magdalena Lopez to the stand. She was an eyewitness, one of the people who’d observed the fight and the shooting. She was a middle-aged, dark-skinned woman employed as an outreach worker at a cancer center for women. On the morning of the incident, she’d been walking through the projects with a friend when she’d noticed two young males arguing. As she’d watched, they’d begun fighting.

  DARCY: What did you see?

  LOPEZ: I seen them hitting each other.

  DARCY: With what?

  LOPEZ: Their fists.

  DARCY: What happened next?

  LOPEZ: One of them reached down the front of his pants. And when I looked at him, he had a gun in his hand. He started shooting at the other one, from very close to him. I heard one shot, then another. I got scared, and I started running toward the building. My friend grabbed me, pulled me back. There was a stray bullet coming our way. It passed me so close I could hear it as it went by. I seen it hit the building we was running to, cracked a piece of the brick. I looked back and I heard one more shot. They were in a different spot now, but I could still see good. And I seen the person down on the ground, the other one.

  DARCY: The man who did the shooting. Do you see him in the courtroom?

  LOPEZ: Yes, I do.

  DARCY: Can you point him out for us?

  LOPEZ: [Pointing] He’s over there.

  Over there was Jeremy.

  Jaywalker had a loose rule of thumb that went something like this. When he was going to put his client on the stand to dispute the testimony of an eyewitness who was pretty much telling the truth, he wanted to get that eyewitness off the stand quickly. He’d found over the years that too many lawyers spent too much time cross-examining such witnesses. They rarely made much headway, and their efforts often served only to reinforce the witness’s testimony in the minds of the jurors.

  Still, he couldn’t resist asking Magdalena Lopez about the bullet she’d heard whiz by her and then seen strike the building. To have actually observed either of those things was a long shot up there with winning the lottery. To have observed both of them was flat-out impossible, the stuff of grade B Westerns or video games. Yet Ms. Lopez stuck to her story, insisting that her memory of what she’d heard and seen was still vivid.

  JAYWALKER: How about the friend you were with? What can you tell us about her? Or him?

  LOPEZ: Her.

  JAYWALKER: Okay, her. What’s her name?

  LOPEZ: I don’t know.

  Jaywalker had known that would be her answer. A month ago he’d asked Katherine Darcy for the name of Ms. Lopez’s friend so he could try to find her on his own and see what she’d seen and heard. A week later Darcy had reported back that Lopez had never supplied the name and could no longer recall it.

  JAYWALKER: Well, did you ever know her name?

  LOPEZ: Yes, sure, back then. But that was a long time ago, like a whole year or more.

  JAYWALKER: So let me get this straight. Today you’re telling us you can no longer remember the name of your own friend who was with you that day?

  LOPEZ: That’s right.

  JAYWALKER: Not even her first name?

  LOPEZ: No.

  JAYWALKER: A nickname?

  LOPEZ: No.

  It wasn’t much, but he figured it was as good a place to quit as he was going to get. Come summation time, he’d point out to the jurors that if Magdalena Lopez’s memory was so faulty, they should discount her account of the incident itself, which had actually taken place a year and a half ago. Or, in the alternative, if they disbelieved her testimony that she couldn’t remember her friend’s name, they might want to wonder why she’d lied about that. Had she been afraid, perhaps, that if identified, located and called to testify, her friend might have described the events in quite different terms?

  Katherine Darcy followed up Lopez’s testimony by calling Wallace Porter to the stand. Porter was the second of the prosecution’s three eyewitnesses, and in some ways he would prove to be the most damaging to the defense.

  Porter hadn’t come to court alone. Rather than being summoned from the witness room or the hallway, he was led in through a side door and escorted to the witness stand by a pair of uniformed court officers. Accompanying him was a young man whom the judge introduced to the jury as Mr. Porter’s lawyer. The reason for all this special attention would soon become obvious. Wallace Porter was, like Jeremy Estrada, a guest of the state. Several weeks earlier he’d pleaded guilty to a low-level sale of drugs, and he was awaiting sentencing.

  Porter was a slender, dark-skinned African-American, dressed in a gaudy red satin warm-up suit. Both his appearance and his demeanor suggested something slick and evasive, and Jaywalker eyed the jurors to see if they were responding to him the same way he was. That said, Jaywalker knew better than to sit back and relax. He’d learned over the years that the same juror who’s tough on crime is at the same time fascinated by criminals. Having already pleaded guilty to the charges against him, Porter had nothing to lose by admitting that he was a drug seller. And Katherine Darcy would have worked long and hard with him to make sure he did just that. His willingness to do so, and to go into the details of his own crimes, would end up earning him points for candor. “Look at how honest he was in talking about his past,” Darcy would argue to the jury. “That shows he’s telling you the truth about what he saw.”

  It didn’t, of course, not for a minute. Still, there was a logic of sorts to the argument. And Jaywalker knew that if he chose to underestimate either it or Wallace Porter, he’d be doing so at his peril and, more importantly, at Jeremy’s.

  Darcy wasted no time in bringing out Porter’s criminal record. In addition to the case he was awaiting sentencing on, Porter admitted to two prior arrests, a larceny bust in Massachusetts back in 1999, and a drug possession in Brooklyn in 2005. Both were misdemeanors, minor crimes. From there Darcy moved on to the day of the shooting.

  DARCY: Do you recall that day?

  PORTER: Yup.

  DARCY: Where were you about five o’clock that afternoon?

  PORTER: I was playing cards in a little park area in the projects, the Jefferson Houses.

  DARCY: How many people were playing cards?

  PORTER: It was four of us, and two others on the side.

  DARCY: Other than playing cards, what were you doing?

  PORTER: We was barbecuing. We had chicken, franks and burgers. Stuff like that.

  DARCY: As you were playing cards and barbecuing, did something happen?

  PORTER: Yeah. We was sitting there, we was playing cards. And I seen this girl and this dude walk by, and this guy running behind them, and another girl following him. And they started fighting, the two guys. The one was pretty good, and he beat up the other one pretty bad. He was bleeding a little from his nose and his mouth. He reached into his socks. He had like two or three pairs of sweat socks on. I thought he was pulling out a knife, but he had a gun, he pulled out a gun. And he just shot the guy, he shot him. Then he chased him and shot him like three more times. When he fell to the ground, he picked him up by the collar and he shot one or two more times at him.

  Katherine Darcy had to back up and have her witness clarify who was who. It was the guy who’d won the fight, Porter explained, who’d pulled the gun and done all the chasing and shooting.

  DARCY: Do you think you’d recognize him if you saw him again today?

  PORTER: Yup.

  DARCY: Would you look around the courtroom and see if you see him?

  PORTER: I see him right there.

  And he pointed directly at Jeremy.

  It got worse. Porter described seeing the shooter pull back the slide of the gun just before fir
ing it. He recounted how the victim had begged for his life before the final shot, asking, “Why you gotta shoot me?” He recalled looking at the victim close-up following the shooting, seeing the police arrive and telling them that he’d witnessed the incident. He concluded by saying he knew neither the shooter nor the victim, nor the two girls who’d been with them, nor a woman named Magdalena Lopez, the witness who’d preceded him.

  During the short span of twenty-five minutes, Wallace Porter had transformed himself from a sleazy-looking drug dealer to an astute, impartial observer. An observer who, if believed, had described a scenario in which Jeremy Estrada was nothing but a cold-blooded murderer. As Jaywalker rose from behind the defense table, he knew he had to go after Porter. Ridiculing him for claiming he’d ducked a bullet whizzing by his head, as he’d been able to do with Magdalena Lopez, wasn’t an option and wouldn’t have been good enough, anyway.

  JAYWALKER: It was hot that day, wasn’t it?

  PORTER: In more ways than one.

  JAYWALKER: Well, let’s stick with the weather for a moment, okay?

  PORTER: Okay.

  JAYWALKER: It was hot?

  PORTER: Yup.

  JAYWALKER: So in addition to the burgers and franks you were barbecuing, you and your group were having something to drink, right?

  PORTER: No, we wasn’t drinking at all. We just had food and beers. Not beers, soda and stuff.

  JAYWALKER: Didn’t you just say food and beer?

  PORTER: You confused me.

  JAYWALKER: How did I confuse you?

  PORTER: By mentioning beer.

  Jaywalker had the court reporter read the exchange back from her stenotype notes. Then he got Porter to agree that he himself had made the first mention of beer. He’d made an honest mistake, Porter then explained.

  JAYWALKER: No beer?

  PORTER: No beer.

  JAYWALKER: Just soda and stuff.

  PORTER: Yup.

  JAYWALKER: The kind of stuff you smoke? Or the kind you might sniff through a straw?

  PORTER: No, man. None of that kind of stuff.

  JAYWALKER: What did you mean by “stuff,” then?

  PORTER: Just soda.

  JAYWALKER: So when you said “just soda and stuff,” you really meant “soda and soda.” Is that right?

  PORTER: You messin’ wid me, man.

  JAYWALKER: Sorry.

  It wasn’t much, but at least it restored some of Porter’s slipperiness. From there, Jaywalker moved on to an inconsistency he’d noticed between Porter’s testimony and something he’d told the detectives at the scene, shortly after the incident.

  JAYWALKER: Did you hear the shooter and the victim arguing about money?

  PORTER: No.

  JAYWALKER: Did you tell the detectives you had?

  PORTER: I mighta.

  JAYWALKER: Did you tell them [reading], “Right before the shooting, I could hear the two of them arguing about money?” Were those your words to the detectives, just minutes after the incident?

  PORTER: Yeah, I said that to the detectives. But it was a mistake.

  JAYWALKER: Can you tell us how it is that you made that mistake?

  PORTER: I don’t know. It just came out.

  JAYWALKER: You just said it, even though there was absolutely no truth to it?

  PORTER: Yeah.

  JAYWALKER: Did you ever correct it?

  PORTER: They never asked me again.

  JAYWALKER: Did you ever take it upon yourself to say, “Hey, I made a mistake back there. I said I heard them arguing about money, but I didn’t. I just decided to make that part up”? Did you ever say anything like that?

  PORTER: No.

  Jaywalker had done a little amateur boxing back in his youth. Right now he felt like he was seriously behind in the last round and needed a knockout in order to win the fight. But all he seemed capable of doing was scoring a few points here and there on jabs. He knew it wasn’t going to get the job done.

  He moved on to Porter’s criminal record. Katherine Darcy had done her best to preempt the subject by bringing it out herself. But that didn’t mean Jaywalker couldn’t take a shot at it.

  JAYWALKER: How many times have you been locked up, Mr. Porter?

  DARCY: Objection.

  THE COURT: Sustained.

  JAYWALKER: May we approach?

  Up at the bench, Judge Wexler reminded Jaywalker that only convictions, not arrests, were relevant to the witness’s credibility.

  “I know that,” said Jaywalker. “But Ms. Darcy asked about prior arrests. By doing so, she opened the door. I have a right to ask if there’ve been more arrests than the two the witness admitted to. If there are, he lied, and that goes to credibility, too.”

  It wasn’t often that Harold Wexler was forced to reverse himself on a ruling, but when Darcy nodded meekly at Jaywalker’s account of her direct examination, Wexler did just that. But in order to make it look otherwise, he directed Jaywalker to rephrase the question, without using the objectionable words locked up.

  JAYWALKER: How many times, in total, have you been arrested, Mr. Porter?

  PORTER: No more than five or six.

  JAYWALKER: I see. The 1999 Massachusetts larceny, right?

  PORTER: Right.

  JAYWALKER: What did you steal?

  PORTER: Nothing.

  JAYWALKER: What did they say you stole?

  PORTER: A TV set.

  JAYWALKER: The Brooklyn drug possession in 2005.

  PORTER: Right.

  JAYWALKER: What drug?

  PORTER: Cocaine.

  JAYWALKER: Powder?

  PORTER: No.

  JAYWALKER: Crack?

  PORTER: Yeah.

  JAYWALKER: What else?

  PORTER: A coupla loiterings, a disorderly conduct kinda thing. That’s all. Nothing big.

  JAYWALKER: And the sale case you’re awaiting sentencing on.

  PORTER: Yeah.

  JAYWALKER: What are you looking at on that?

  PORTER: Two to six.

  JAYWALKER: Years?

  PORTER: Yeah.

  JAYWALKER: The original charge carried eight and a third to twenty-five, right?

  PORTER: Yeah.

  JAYWALKER: Do you expect to get two to six?

  PORTER: I hope to get time served.

  JAYWALKER: In other words, you might walk on it, do no more time at all?

  PORTER: Yup.

  JAYWALKER: And why might that happen, do you think?

  PORTER: In consideration of my testimony.

  JAYWALKER: Your testimony where?

  PORTER: Here.

  JAYWALKER: In other words, if Ms. Darcy is pleased with your testimony in this trial, she’s going to go to bat for you and try to get you less time, or no additional time at all, on your case. Is that your understanding?

  PORTER: Yeah, something like that.

  JAYWALKER: Well, am I wrong, the way I just described your understanding?

  PORTER: No, you ain’t wrong.

  JAYWALKER: Tell me, Mr. Porter. Have you discussed this case with anyone?

  PORTER: No.

  JAYWALKER: No one at all?

  PORTER: No one at all.

  JAYWALKER: How about your lawyer here? Haven’t you discussed it with him?

  PORTER: My lawyer? Sure.

  JAYWALKER: How about Ms. Darcy? Discussed it with her?

  PORTER: Yeah.

  JAYWALKER: Discussed it with the detectives?

  PORTER: Yeah.

  There were two factual areas Jaywalker would have liked to question Porter about. The first was the business about the shooter’s having pulled the gun out from his socks, and the second was his having jacked the slide back before firing. He decided to let the first one go, fearing all he would accomplish was to reinforce Porter’s version. But he took a stab at the second.

  JAYWALKER: Now you know a little something about guns, right?

  DARCY: Objection.

  THE COURT: Sustained.

&nb
sp; JAYWALKER: You say you saw the shooter pull back the slide of the gun. Is that right?

  PORTER: Yup.

  JAYWALKER: How many times do you claim you saw him do that?

  PORTER: Just once.

  Jaywalker did his best to hide his disappointment. He’d been hoping Porter would say “each time he fired.” That would have made no sense at all. The signature feature of a semiautomatic weapon was that each squeeze of the trigger not only fired off a round, but at the same time it caused the slide to move back and forth, first ejecting the spent shell, then chambering the next bullet in the magazine. Either Porter had been telling the truth when he’d said “just once,” or he knew enough about guns to spot Jaywalker’s trap and steer clear of it. Still, his “just once” left the obvious question, “When?”

  Logically, the shooter would have had a good reason to jack the slide back before firing the first shot, if the chamber had been empty up to that point. To have jacked the slide at any other point would have accomplished nothing but ejecting one live bullet just to replace it with the next one. Jaywalker was toying with idea of trying to get Porter to say the “just once” had been right before the final shot. He was thinking if he loaded the question up enough—by using words like deadly, fatal or coup de grace—he might appeal to Porter’s ego and get him to bite. But would Porter even understand coup de grace? And as Jaywalker was searching his mind for a suitable street synonym, he noticed that Porter was looking directly into his eyes from the witness stand, a tiny but unmistakable smirk on his face.

  I dare you, he was saying.

  “No further questions,” said Jaywalker.

  They broke for the day.

  Though he was tired and hungry, having slept little the night before and eaten nothing all day, Jaywalker didn’t leave the courtroom by walking out the front door with just about everyone else. Instead he fell in behind Jeremy as a couple of uniformed court officers led them through a side door and into the pens, where a corrections officer locked lawyer and client into a holding cell.