Overkill

by Joseph Teller

  Harold Wexler was on his feet, banging his gavel and ordering other officers to remove the jurors from the courtroom. But the officers, evidently mishearing or misunderstanding him, must have thought he meant for them to remove the young men instead. As a result, two officers rushed to join their colleague, one of them dramatically vaulting over the wooden rail that separated the front of the room from the audience section. And sixteen jurors, quite naturally, turned as one to see what was going on.

  What they saw were three uniformed court officers trying their best to usher half a dozen uniformed young men out the door. Uniformed, to the extent that every one of the young men wore either a black jacket, sweatshirt or T-shirt with an identical motif. Specifically, the menacing one-eyed, crossed-sword likeness of an Oakland Raider. Nor were the young men leaving willingly, with several of them loudly and pointedly objecting that it was a public courtroom and they had every right to be there. One of them added, “What? You gonna throw us out just ’cause we’re Latino?”

  Judge Wexler finally succeeded in getting the jury removed and the Raiders brought before him in handcuffs. He had each of them identify himself by name and nickname, under threat of an immediate thirty-day contempt citation.

  “Alesandro Comacho,” said the first. “They call me Sandro.”

  “Esteban Izquierdo. Shorty.”

  “Diego Herrera. I don’t got no nickname.”

  “Wilfredo Rivera. Me neetha.”

  “Jorge Santana. Just Santana.”

  “Who put you up to this?” Wexler demanded to know.

  “Nobody put us up to nussing,” said Just Santana.

  “Do you know this man here?” the judge asked, pointing at Jaywalker.

  “No.”

  “Ever seen him before?”

  “No.”

  “Spoken to him?”

  “No.”

  To the court clerk, Wexler said, “Get me Judge Sternbridge.” Then, turning back to the five in handcuffs, he asked them what they thought they were doing there.

  “Exercisin’ our constitutional right to assemblify,” said Shorty. “Jus’ like cops do when wunna them gets murdered. Nobody stops them from showin’ up at the trial, do they?”

  He actually had a point there.

  “Showin’ support for a fallen brotha,” chimed in Sandro.

  “Get them out of here,” Wexler ordered the captain. “Now.”

  “Maricon,” muttered one of the Raiders, but no one could say exactly which one.

  Too bad the jurors missed that, thought Jaywalker, smiling ever so slightly, but apparently not so slightly that Wexler missed it. “Mr. Jaywalker!” boomed the judge. “If I find out you had anything to do with this, anything at all, you’ll think that three-year suspension of yours was nothing but a hiccup. We’ll be in recess for fifteen minutes.”

  And all Jaywalker could think was that somehow, in all the excitement, the butterflies had vanished. Well, that and one other thought.

  Johnny Cantalupo.

  22

  THE LAST WORD

  “It is twenty months ago,” Jaywalker told the jurors once they’d reassembled in the courtroom. “September. Labor Day, in fact. You and I are waking up to a beautiful morning with temperatures promised in the low eighties. Perhaps it’s a family gathering we’re looking forward to this day, a picnic or a barbecue.

  “Up on 115th Street, in the tiny apartment he shares with his mother and twin sister, Jeremy Estrada wakes up, too. Has it been one of those nights of little or no sleep, of vivid nightmares? Has he been up with stomach cramps or diarrhea? Is it one of those mornings when he has to take his sheets, roll them into a ball and hide them in the bottom of his closet because he’s wet his bed and doesn’t want his mother and sister to know? Even though you and I now understand that they did know, and were just too kind to let on.”

  The image of Jeremy and his urine-drenched sheets blindsided Jaywalker for a moment, just as, during his opening statement a week and a half ago, the first encounter between Jeremy and Miranda had blindsided him. But this time Jaywalker refused to let it stop him, and he managed to continue without interruption. Still, he could tell that the jurors hadn’t missed it, could sense that they were every bit as affected by Jeremy’s plight as he himself was.

  He reminded them how it had been six days since the barbershop incident, six days during which Jeremy hadn’t once left the apartment. And there would no doubt have been a seventh such day, and more to follow, had not Miranda called to say she was taking her little sister and niece to the carnival.

  “And Jeremy? Jeremy dares to think that in the midst of the carnival there’ll be safety. With all those hundreds of people, with dozens of police officers mingling with the crowd, what can possibly go wrong?

  “We watch as he dresses for the warm weather. Jeans, a shirt, sneakers. There are no two or three pairs of sweat socks, no ankle holster tucked into them. To this day, Jeremy honestly can’t tell us if he put on a single pair of socks or not that morning. And why would he remember?

  “We follow him downstairs and out onto the avenue as he walks to meet Miranda and the girls. We imagine them greeting each other, smiling, holding hands. We enjoy the rides, the games, the music, the food, the aromas. And we, too, dare to think that maybe, just maybe, things will be all right today.

  “We’re wrong, of course. Things will not be all right this day. By nightfall, Victor Quinones will be dead, and Jeremy Estrada will be transformed from a seventeen-year-old boy to a haunted young man fleeing retaliation and facing life in prison. But like Jeremy, we don’t know any of that yet.”

  Jaywalker paused for just a moment. Barely ten minutes into his summation, he knew already that he had them, just as he’d known the same thing during his opening statement. The case was his to win or lose, he told himself. If he did it right, if he did it absolutely perfectly, he could walk Jeremy out of the courtroom. Never mind the fact that extreme emotional disturbance was a defense to murder but not to manslaughter. Never mind that justification ended when the threat to one’s life no longer existed. Never mind Katherine Darcy’s ability to show just how far Jeremy had chased Victor before taking final aim at him, or just how close he’d held the gun to him before squeezing the trigger. And never mind Harold Wexler and his guarantee of not only a conviction, but a maximum sentence. No, this wasn’t Darcy’s case, wasn’t Wexler’s case. It never had been. This wasn’t even Jeremy’s case anymore.

  Right now, this was Jaywalker’s case.

  “Suddenly,” he told them, “we see Victor. And worse yet, Victor has seen us. There’s no place to hide, and it’s too late to run. Victor approaches, his girlfriend Teresa in tow. There’s a confrontation, a conversation and a challenge. Although Jeremy’s no fighter, the thought of a fistfight somehow strikes him as acceptable. Win or lose, it holds out the promise of bringing to an end a summer’s worth of torture. So he says okay, he accepts the challenge.”

  Jaywalker turned from the jury box, walked over to the defense table and placed his hands on Jeremy’s shoulders. “This poor kid is so naive, and so stupid, that he really thinks it’s going to be a fair fight. What does it cost him?” Jaywalker asked. “A sucker punch, hard enough to put him on the pavement. Right after Victor had pretended to be a gentleman and refused to fight with the girls present.

  “Does Jeremy stay down? After all, he’s spent the entire summer staying down. What difference could one more humiliation possibly make? But something in Jeremy says no, not this time. Something in Jeremy causes him to get back up off the pavement and give chase.”

  Jaywalker spent a few minutes describing how Jeremy had run after Victor, fast enough to catch up with him. He pointed out how difficult that would have been if he’d had a gun in his waistband or his socks. And if he’d had a gun, what better time would there ever be to use it than right now? “But that doesn’t happen, does it? It doesn’t happen for one simple reason. It doesn’t happen because Jeremy doesn’t have a gun.”
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  He described the fight, dwelling on the time-out Victor called to pull his sweatshirt over his head. Again a perfect opportunity for Jeremy to have pulled a gun and shot him. “Only Jeremy doesn’t have a gun,” Jaywalker repeated. “Instead he waits, waits like an idiot for the fight to resume. And he wins the fight, Jeremy does. Victor raises his hands and surrenders. And Jeremy, still playing by the rules, stops fighting.

  “Who wants to get even after a fight?” Jaywalker asked the jurors. He waited just long enough to see several understanding nods and even hear one “The loser” from the second row.

  “That’s right—it’s the loser who wants to get even. Jeremy’s won. He’s thinking his torment may finally be over. He’s shown Victor and Teresa and the rest of the Raiders that he’s willing and able to take a punch and fight back. He’s not a pussy after all, not a cunt-face, not a maricon. Finally, in his moment of triumph, his humiliation may be over.

  “So who’s humiliated?” Jaywalker asked, and it seemed as though sixteen mouths in front of him formed the name Victor. “Who’s issued a challenge, fought dirty and still lost?” Sixteen more silent Victors.

  “Forget what Teresa Morales told you. She’s one of them. She was Victor’s girlfriend, for God’s sake. Forget Magdalena Lopez and her ability to hear bullets whiz by her head and then turn in time to see them hit buildings. And forget Wallace Porter and his lies about not drinking beer, having heard an argument about money, having seen a gun pulled from two or three pairs of sweat socks, and everything else he said in an attempt to lower his own sentence. Forget them and use your own, everyday common sense. You win a fight, you’re on top of the world. You lose, and you’re humiliated. Jeremy and humiliation were no strangers. Hell, he’d spent an entire summer being humiliated. But Victor? Victor had just been beaten up in a fair fight by the pussy, the cunt-face, the maricon. How was he ever going to live that down?

  “The answer is, he wasn’t. So he pulled his gun.

  “Jeremy reacts instinctively. Too close to turn and run, he lunges at Victor and grabs for the gun. When it goes off, the sound of the explosion and the burning sensation to his abdomen convince him he’s been shot in the gut. Still, he manages to wrestle the gun away from Victor and turn it on him.

  “Does Jeremy shoot Victor at that point? You bet he does, and he’s never once denied it. He shoots him, and he keeps shooting him until Victor’s motionless, until the nightmare’s over. And he tells you that.”

  Now came the hard part, Jaywalker knew, the part about the forty-five feet and the no more than four or five inches. Up till now, everything had been easy. Right now was when he would win the case—or lose it.

  “Much has been said about Jeremy’s having chased Victor down after the first shot, and having fired the final shot at a point when Victor was defenseless. Maybe those things happened. Witnesses have said they did, or must have. Ms. Darcy will tell you that if they’re right, it was an execution. Here’s what I tell you—it doesn’t matter.

  “Not one bit.

  “And here’s why. In order for you to decide this case, to truly decide it, you have to stop being William Craig and Lucille Hendricks and Gladys Leach and George Gonsalves and Miriam Goldring and Sanford Washington. You have to forget you’re Lillian Koppelman and Vincent Tartaglia and Consuela Marrero and Desiree Smith-Hammond and Walter van der Kaamp and Jennifer Wang. And instead, you have to become Jeremy Estrada. Because in a very real sense, that’s precisely what the law requires you to do in this case.

  “Here’s what you may not do. You may not ask yourselves what a reasonable person would have done standing in Jeremy’s shoes. Nor may you ask yourselves what you yourselves would have done. Because you didn’t fall in love with Miranda. You didn’t spend your seventeenth summer wetting your bed and defecating in your pants. You weren’t reduced to the status of a prisoner in your own apartment because you were too afraid of a gang of thugs to go outside. You didn’t live with that kind of pain and panic and paranoia.

  “Jeremy did.”

  Jaywalker turned again, this time to face his client directly. “But you know? You were mistaken about something, Jeremy. You used the wrong word when you said you felt paranoid. When you’re really being followed, when you’re actually being chased, we don’t call that paranoid. We call it terrorized.”

  He told the jurors that although the shooting of Victor Quinones had played out in slow motion during the testimony, to Jeremy it had taken place in real time, and taken only seconds. All of the witnesses had described it as having happened very fast, so fast that they disagreed on something as basic as the number of shots fired. “To Jeremy,” he told them, “it must have been nothing but a blur. So when he’s confronted twenty months later in the sterile confines of a courtroom and asked about the forty-five feet and the precise geometry of the fatal shot, all he’s able to say is that he honestly doesn’t remember it happening that way. That’s his truth. And that’s the only truth that matters.

  “You want to know how to decide this case the right way?” he asked the jurors. “Here’s how you do it. You listen to Jeremy’s own words. Here they are.” Picking up the transcript, he found the page he’d marked with a paper clip, and read to them.

  JAYWALKER: Jeremy, you say you killed Victor Quinones.

  JEREMY: Yes, I did.

  JAYWALKER: Can you tell us why you killed him?

  JEREMY: I can only tell you what was in my mind at the time.

  JAYWALKER: And what was that?

  JEREMY: In my mind, I was trying to save my life.

  “In my mind,” Jaywalker repeated, “I was trying to save my life. Unless you can say you not only disbelieve those words, but disbelieve them beyond all reasonable doubt—something you cannot possibly do if you put yourselves in Jeremy’s shoes—this case ends right there. Because that, jurors, is the absolute, undistilled essence of what justification is all about. In my mind, I was trying to save my life.”

  Jaywalker would have loved to stop right there, on an emotional high, but he knew he couldn’t afford to. There was simply too much other stuff he had to talk about. Like whether or not Jeremy had been telling the truth or lying about Sandro, Shorty, Diego, Mousey and the rest of the gang, and the fact that they called themselves the Raiders and wore black jackets with pirate motifs. He couldn’t come right out and comment on the arrival of the Raiders in court that very morning; that event wasn’t in evidence. But just as some things said from the witness stand were “in the ear” even when stricken from the record, so too were some things “in the eye” even when they couldn’t be mentioned. Like intent to kill, which was one of the elements, or essential ingredients, to murder. And how if Jeremy had honestly been trying to save his life, however unreasonably he may have perceived things in the moment, then intent to kill was nowhere to be found in the case. And burden of proof, which was the prosecution’s, not the defense’s, even on the presence or absence of justification. Especially on the presence or absence of justification. And despite anything that Judge Wexler might tell them to the contrary, how utterly absurd it would be for them to sit in the relaxed atmosphere of an eleventh-floor courtroom twenty months after the fact and try to draw a bright line where justification ended. And extreme emotional disturbance, which in this case presented nothing but a trap for the jurors, a convenient out by which they could find Jeremy guilty of manslaughter instead of doing the hard work of deciding whether to convict him of murder or acquit him altogether.

  “Don’t you dare do that,” he told them. “Neither Katherine Darcy nor I spent four full days rejecting dozens of other prospective jurors before picking you just to have you come to the only real issue in this case and have you duck it. If you think she’s proved that Jeremy wasn’t justified in what he did, and proved it beyond all reasonable doubt, then tell us, tell us to our faces by convicting him of murder. But if you’re left with even the slightest reasonable doubt on that issue of justification, then tell us that.

  “How do
you that? Well, it’s been said that the prosecutor has the last word at trial, because she gets to sum up last. It’s not like during the testimony, where there was an opportunity for redirect examination and recross. No, when it comes to summations, there’s no such thing as rebuttal. Once I sit down, as I’m about to do, I’m done. Even if Ms. Darcy makes an argument to you that I have the perfect answer to, the rules simply don’t allow me to make it.

  “But you know something? In spite of that huge advantage, the prosecution doesn’t really have the last word at all. Not even the judge does. You know who does? You do. And you get to speak that last word, each of you, shortly after Mr. Craig here, as your foreman, rises from his seat to tell us that you’ve found Jeremy Estrada not guilty on each and every last count of the indictment. At that point the court clerk will address each of you individually, by name. She’ll ask you if that is your verdict. And you’ll get to look us squarely in the eye and wipe the tears from your face, and surely Jeremy’s face, and probably my face, too. And at that point you get the last word. Because that’s the moment you get to say as loudly and as proudly as you possibly can the words that will echo in your memory for the rest of your life.