Overkill

by Joseph Teller

  DARCY: The person you described as his lady. Do you know her name?

  TERESA: I heard her name was Miranda. But I don’t really know her.

  DARCY: Do you know what she looks like?

  TERESA: She’s got reddish hair. She’s slim.

  DARCY: Tell us what happened.

  TERESA: Victor told him, “Come on, tough guy. I heard you want to fight me.” And they were calling each other names. “Punk.” “Chicken.” Stuff like that.

  She described how she and Victor had walked north to 113th Street, when she noticed that Jeremy and his lady had followed them.

  DARCY: Then what happened?

  TERESA: When I noticed he was behind us, I tried to get Victor to walk faster. But it happened so quickly. They just started fighting, hitting each other.

  DARCY: Tell us what you saw.

  TERESA: The guy, he punched Victor in the lip. Victor took off his sweatshirt, and they kept on fighting. After a minute or two they backed off, and the guy just pulled out a gun from his waist. 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.

  She recounted how, following the shooting, Jeremy and his lady had run from the scene, toward Third Avenue and out of sight.

  DARCY: What did you do?

  TERESA: I was screaming for help.

  DARCY: What else?

  TERESA: I was laying down, holding his neck.

  DARCY: Why?

  TERESA: I was putting my fingers on the hole at the back of his neck where he was bleeding from.

  DARCY: What happened then?

  TERESA: After a while, the cops came, and then an ambulance. We went to the hospital, to the emergency room, and they wheeled him away.

  DARCY: Did you ever see Victor alive again?

  TERESA: No.

  Cross-examining a sympathetic witness could be tricky business, as Jaywalker well knew. Even if she’d gone and gotten married to another man not too long after the incident, Teresa Morales had seen her boyfriend gunned down in front of her, and he’d all but died in her arms. To top that off, in the eyes of the jury she’d come off as a pretty straightforward witness. Jeremy insisted that it had been Victor, not he, who’d first pulled the gun, and he continued to deny any recollection of firing the last shot as Victor lay helpless on the ground. Jaywalker’s own internal jury was still out on both those questions. But the jurors had now heard three accounts of the incident, and while they varied from version to version, all three put the gun in Jeremy’s hands first and pretty much agreed about the final shot.

  The execution.

  What was more, Teresa hadn’t even appeared to stretch things. Her account of the barbershop incident had been pretty much as Jeremy had described it. Her graphic demonstration of the way in which Victor and his friends had mimed shooting had, Jaywalker strongly suspected, taken Katherine Darcy by surprise. And it had been Darcy, rather than Teresa, who’d tried to gloss it over as nothing but an innocent pointing gesture. So Jaywalker knew he had to proceed cautiously, lest he run the risk of antagonizing the jurors. Still, he couldn’t tread all that carefully; Teresa had been too damaging a witness for him to leave alone.

  He began gently, asking her about her relationship with Victor, trying to establish her loyalty to him and, consequently, her natural bias against the man who’d killed him. He asked her what Victor had done for a living, and when the best she could come up with was “odd jobs,” Jaywalker decided to let her off the hook. He figured there was little to be gained from attacking the victim’s reputation with not only his former girlfriend on the witness stand, but his grieving parents present, as well. Besides, Jaywalker had a surrogate to attack, another member of the gang who had no supporters in the courtroom.

  JAYWALKER: Tell me about Alesandro.

  TERESA: Who?

  JAYWALKER: Maybe you knew him as Sandro?

  TERESA: I knew him. Not well, though.

  JAYWALKER: How long had you known him for?

  TERESA: Not long. Three or four years.

  JAYWALKER: What was his last name?

  TERESA: I don’t know.

  JAYWALKER: You knew him three or four years, yet you never learned his last name?

  TERESA: Yeah. It’s like that on the street. You know people by their first names, or maybe their nicknames.

  JAYWALKER: I see. What were some of the other first names or nicknames of the members of the gang?

  DARCY: Objection to the term “gang.” There’s been absolutely no testimony—

  THE COURT: Sustained. Rephrase the question.

  JAYWALKER: Sure. Ms. Morales, it’s true that you used to hang out with Victor and Sandro and some other guys, right?

  TERESA: Sort of.

  JAYWALKER: And that’s what you were doing the day the guys were going like this [demonstrating] outside the barbershop? Not doing anything illegal, just hanging out like a gang of friends. Right?

  TERESA: Yes.

  DARCY: Objection, again, to the word “gang.”

  THE COURT: Well, the witness seems to have agreed with Mr. Jaywalker’s terminology. So your objection is overruled.

  JAYWALKER: Was Victor there that day?

  TERESA: Yes.

  JAYWALKER: Sandro?

  TERESA: Yes.

  JAYWALKER: Who else?

  TERESA: Shorty. Diego. Mousey. Maybe a couple of others. I don’t remember.

  JAYWALKER: How many of them were wearing their Raiders jackets that day?

  TERESA: Excuse me?

  By sneaking the question in unexpectedly, Jaywalker had hoped to camouflage its importance from Teresa and get not only a number out of her, but an acknowledgment that the group referred to themselves as the Raiders. But she hadn’t bitten. He asked her a few innocuous questions before taking another stab at it.

  JAYWALKER: Whose idea was it to call the group the Raiders?

  Not “Did the group have a name?” or “Was the group called the Raiders?” or even “Wasn’t the group called the Raiders?” Put any of those ways, the question not only telegraphed its own significance but could be answered with a simple “no.” But by phrasing it in such a way as to assume that the group was called the Raiders, asking instead the completely irrelevant question of whose idea that had been, Jaywalker hoped to slide it by Teresa and get her to identify the person. In so doing, of course, she’d be agreeing with the assumption.

  He also needed to slide it past Katherine Darcy. A question that contains an assumption not established by the evidence is improper. The oft-cited example is “When did you stop beating your wife?” But Jaywalker had burned Darcy a few minutes earlier over his inclusion of the word gang in several of his questions. Granted, her initial objection had been sustained, but a moment later he’d gotten Teresa to concede that she and her friends had been just that. Darcy had won the skirmish but lost the battle, and Jaywalker guessed that this time she’d be gun-shy and let the question be answered without objecting. And in fact, she did.

  But Teresa didn’t.

  TERESA: We didn’t call ourselves anything.

  JAYWALKER: Well, weren’t you aware that other people called you the Raiders?

  TERESA: I wouldn’t know.

  JAYWALKER: But members of the gang—I’m sorry, the group—did wear Raiders jackets, didn’t they?

  TERESA: Not that I’m aware of.

  Twice burned, Jaywalker gave up on the Raiders and got back to Sandro. He asked Teresa if she knew what he did for a living. She said she didn’t, that she hadn’t been aware that he’d had a job of any sort.

  JAYWALKER: In all of the three or four years you knew him, he never once went to work?

  TERESA: Not that I remember.

  JAYWALKER: Never talked about working?

  TERESA: No.

  JAYWALKER:
And that’s because Sandro supported himself by selling drugs, didn’t he?

  TERESA: I don’t know.

  Jaywalker stared at her, letting her words hang in the air for a few seconds.

  JAYWALKER: Were you ever aware of a relationship between Sandro and Miranda, the young woman who was with Jeremy the day of the shooting?

  TERESA: Sandro once told me he was seeing her.

  JAYWALKER: Did you ever see the two of them together, Sandro and Miranda?

  TERESA: What do you mean, together?

  JAYWALKER: Well, not when the group was chasing Jeremy, or pretending their fingers were guns and—

  DARCY: Objection.

  THE COURT: Sustained.

  JAYWALKER: I mean “together” like man and woman, like you and Victor. Did you ever see Sandro and Miranda like that?

  TERESA: No.

  JAYWALKER: Never?

  TERESA: Never.

  He took her through the barbershop incident, making her repeat some of the names the group had called Jeremy by, and some of the taunts they’d hurled his way. He had her describe how the owner had come out and finally gotten them to leave.

  JAYWALKER: Even as they were leaving, they said things to Jeremy, didn’t they?

  TERESA: Yes.

  JAYWALKER: What did they say?

  TERESA: “We’ll get you next time.”

  JAYWALKER: Excuse me?

  TERESA: “We’ll see you next time.”

  JAYWALKER: Well which was it, “We’ll see you” or “We’ll get you”?

  TERESA: “We’ll see you.”

  Jaywalker had heard her correctly the first time, of course. He just wanted to make sure the jurors had.

  JAYWALKER: And that day at the barbershop, that wasn’t the first time the group had chased Jeremy and threatened to get him, was it?

  TERESA: No.

  JAYWALKER: It had happened a number of times that summer, hadn’t it?

  TERESA: A few times.

  JAYWALKER: A few times? How about seventeen times, not counting the barbershop?

  He’d made up the number on the spot. He’d learned over the years that if you were specific enough with numbers or pretended to be reading from some official-looking piece of paper, people tended to get intimidated and ended up agreeing with you.

  TERESA: I don’t know. I wasn’t really keeping count.

  Jaywalker decided to leave it there, figuring it was about as good as he was going to get before he began to draw denials from Teresa and yawns from the jury box. He knew that when it came time for him to put Jeremy on the stand, he’d be able to go into the earlier confrontations in depth and breadth. And all he’d be up against would be Teresa’s lame I don’t know, I wasn’t counting as the prosecution’s version.

  Now he took a look at the clock, saw it was ten minutes to one. He was about to move forward to the day of the fight and the shooting, but he didn’t want to do so only to have to stop ten minutes in. So rather than ask a question, he caught Judge Wexler’s eye. Wexler, who’d tried a few cases in his day as a defense lawyer, got the message.

  “This might be a good time,” he announced, “to break for lunch.”

  Once the jurors had been led out one door and Jeremy had been escorted through a very different one, Jaywalker sat back down and began gathering up his notes and files. As always, he intended to find a bench or a windowsill where he could spend the next hour refining the rest of his cross-examination. But suddenly Jeremy’s mother was hovering over him, extending a brown paper bag his way.

  “What’s that?” he asked.

  “Lunch,” she said. “Jew gotta eat somesing.”

  Jaywalker stared at the bag. There was a large grease spot on one side of it, and a strong smell emanating from it. Cumin, perhaps? Garlic? He looked away, forcing himself to breathe through his mouth. Had he eaten breakfast, he would have been in serious danger of losing it right then and there.

  “It’s good,” Carmen assured him. “I make it myself. Pork, rice and beans. Very good for jew. Give jew energy, Mr. Jailwalker.”

  He looked around for help, but the only court officer in sight, an old friend who was quite familiar with Jaywalker’s trial diet, was trying his hardest not to burst out laughing at the scene. Everyone else had left, like rats fleeing a doomed ship. Next thing he knew, Jaywalker found himself not only accepting the bag—grease spot, aroma and all—but thanking Carmen for her thoughtfulness. He’d learned over time that you didn’t reject heartfelt offerings from people of modest means. When the court-appointed client with no roof over his head extended a twenty-dollar bill your way after a hard-earned acquittal, you explained that the rules prohibited you from accepting it, that the city would be sending you a check to cover your hours. But when the guy insisted and said, “Please, you saved my life,” you took the twenty and you pocketed it. To refuse a second time would be nothing less than a slap in the face, a rejection of a kindness. And if the disciplinary judges wanted to disbar him for that, so be it, they could have his ticket.

  He thanked Carmen again and took the bag with him to the fifteenth floor, where he opened it, gagged from an overwhelming whiff of its contents and left it on a bench. Someone, he told himself, would be thrilled to discover it. Someone with a stomach far stronger and even emptier than his own.

  When they resumed that afternoon, Jaywalker had the sense that the jurors were looking at Teresa Morales a little differently from the way they’d regarded her first thing that morning. In their eyes, she’d begun the day as not just a witness but a victim of sorts. Her boyfriend had been beaten up in front of her, then shot, chased and murdered. She’d tried to stop him from bleeding to death and had been unable to. The last she’d seen of him had been when he’d been wheeled away from her at the emergency room.

  But as the morning wore on, the jurors had learned other things about Teresa. She’d gotten married to another man within a year, for one. She’d been forced to admit that she’d been part of a group that had followed Jeremy, called him names, taunted him, promised to “get” him, and finally backed up their words with gestures that could only be construed—unless you happened to be Katherine Darcy—as mimicking gunfire. So by the time the afternoon session began, the average defense lawyer would have concluded that Teresa had been softened up to the point where she was now ripe for the kill, and would have pounced on her.

  Jaywalker, however, was anything but your average defense lawyer. Never was, never would be. As strong as the temptation was to attack a wounded witness, he knew better than to try. For one thing, he considered it entirely plausible that Teresa Morales had told the truth that morning and would continue to do so that afternoon. With very few exceptions—the Raiders jackets and which boy had first pulled the gun—nothing Jeremy had ever told Jaywalker contradicted Teresa’s testimony in general and her account of the day of the shooting in particular. So a full-bore attack ran the risk of accomplishing nothing more than getting her to repeat herself, only in more—and more convincing—detail than before. Again Jaywalker reminded himself that Jeremy would have his turn on the witness stand. Any blanks in the story left by Teresa meant more room for Jeremy to fill in as he recalled things.

  In other words, less could actually be more. A proposition that sounded so alien and counterintuitive to most lawyers that they rejected it out of hand.

  JAYWALKER: Do you remember who threw the first punch, Victor or Jeremy?

  TERESA: No.

  JAYWALKER: But after a while it became apparent that Jeremy was winning the fight. Right?

  TERESA: Right.

  JAYWALKER: And at some point Victor stopped to take off his sweatshirt. Right?

  TERESA: Right.

  JAYWALKER: In order to do that, did he have to pull it up over his head?

  TERESA: Yes.

  JAYWALKER: Did Jeremy attack him while Victor was busy doing that, while—

  TERESA: No.

  JAYWALKER: —he was blind and defenseless?

  TERESA:
No, not that I remember.

  JAYWALKER: And then they resumed fighting?

  TERESA: Yes.

  JAYWALKER: Victor was now wearing just a T-shirt, a long T-shirt. Right?

  This was actually an important point. According to Jeremy, the first he’d seen of the gun had been when Victor had pulled it from his waistband. That meant it must still have been hidden by something after Victor had removed his sweatshirt.

  TERESA: I don’t remember.

  JAYWALKER: Well, he wasn’t bare-chested, was he?

  TERESA: I don’t remember.

  Jaywalker decided that was good enough. Jeremy would testify that Victor still had on a shirt of some sort. Teresa claimed she couldn’t remember, and neither of the other eyewitnesses, Magdalena Lopez and Wallace Porter, had ever described Victor as being shirtless at any point. In his summation, Jaywalker would argue that had that been so, surely at least one of them would have recalled it and mentioned it, if only to differentiate between the two young men who’d been nameless strangers to them.

  JAYWALKER: How about Jeremy? He had a shirt on the whole time, too. Didn’t he?

  TERESA: Yes.

  JAYWALKER: Did you ever notice what Jeremy had on his feet?

  TERESA: No, not really.

  JAYWALKER: Do you have any recollection that he had two or three pairs of sweat socks on?

  That, of course, had been Wallace Porter’s version, along with his claim that he’d seen Jeremy pull the gun from his socks.

  TERESA: No.

  JAYWALKER: No recollection whatsoever. Right?

  TERESA: Right.

  JAYWALKER: So who finally won the fight?

  TERESA: Him, I guess [pointing].

  JAYWALKER: Jeremy?

  TERESA: Yeah.

  JAYWALKER: Victor kind of gave up?

  TERESA: Kind of.