“Yes, that is my verdict.”
And then it’s over.
No “Thank you.” No “I appreciate your attention.” No “You’ve been a great jury.” As he always did, Jaywalker left the pleasantries to others. Instead he simply turned from the jury box, returned to the defense table and took his seat next to Jeremy. By that time he’d been on his feet for an hour and a half, give or take a few minutes. He’d put everything he had—every ounce of sweat and every drop of blood—into that hour and a half. It wouldn’t have been an under-statement to say that he’d been working on it for a year. Though never as hard as he had at three o’clock that morning, when, finally more or less satisfied with what he wanted to say—more or less being as good as it ever got when you were Jaywalker—he’d downed yet another pot of black coffee and forced himself to memorize the first and last names of all twelve jurors. In order.
And yet as good as he felt about what he’d said and how he’d said it, and as buoyed as he was by what he took to be the jurors’ uniformly positive reactions, Jaywalker sat down not just in relief and exhaustion, but in dread. Dread that all he’d said and done might not be enough to save the young man seated beside him.
23
WATCHING THE CLOCK
Katherine Darcy stood up to speak after a fifteen-minute recess. Until then, Jaywalker had barely been aware of her presence in the courtroom, so focused had he been on his own summation. True, she’d congratulated him as soon as the jurors had filed out of the courtroom, and he’d thanked her. But it wasn’t until they’d reconvened and she’d stood up to deliver her own summation that he really noticed her.
And being Jaywalker, naturally the first thing he noticed was how good she looked. If Jaywalker’s rumpled hair, gray complexion and the dark circles around his eyes were testimony to how little he’d slept and eaten over the past two weeks, Darcy looked as though the trial had barely fazed her, and that summing up was something she did every day of the week.
She was wearing all black, and Jaywalker had to wonder for a moment if she was trying to send the jurors a subliminal message that, like César Quinones and his wife, she was in symbolic mourning for Victor. No, he decided, a moment later. She just happened to look good in black and must have known it, to her credit. Even if it did mean wearing a long, narrow skirt in the middle of May. Then again, the courtroom was air-conditioned to a fault, so why not?
When he was exhausted, Jaywalker tended go off on absurd mental tangents like that. And at the moment he was way beyond exhausted. So he bit the inside of his cheek, dug a bent paper clip under his thumbnail and forced himself to concentrate not on Darcy’s outfit but her words.
And she was good.
Not Jaywalker good, perhaps, but that could be said for pretty much the rest of the world. Still, she was comfortable on her feet and had a nice way with the jury. And she knew the case every bit as well as Jaywalker did. But while his delivery had brimmed with emotion, hers was grounded and factual. Missing from all the talk about Jeremy and Miranda and their puppy love, she told the jurors, was any possible explanation of how Victor Quinones had ended up with a bullet between his eyes, other than that offered by three eyewitnesses who were total strangers to one another, a medical examiner who knew none of the players, and a detective who might know nothing about millimeters but surely was capable of stretching a tape measure forty-five feet.
And as soon as she’d put it that way, the same jurors who’d nodded so enthusiastically during Jaywalker’s summation began doing the exact same thing during Darcy’s. She didn’t dispute the fact that Jeremy had been treated badly by Sandro and his friends. She acknowledged that the jurors would be less than human if they failed to feel sympathy for him. And she termed the group’s conduct during the barbershop incident nothing less than despicable. But then she reminded the jurors of their oaths and obligations. “What you may not do,” she told them, “is let your sympathy cloud your reason and your emotions eclipse your judgment.”
One by one, she reviewed the testimony of each witness who’d testified at the trial, leaning heavily on the observations of the three eyewitnesses, the autopsy findings, and the forty-five feet Jeremy had chased Victor before firing the final shot but had conveniently forgotten since. “He can’t admit it,” Darcy suggested, “because that would be the end of the case right there. But given the evidence, he can’t possibly deny it, either. So he does the only thing he can possibly do. He says he doesn’t remember it that way.” And as she paused to raise both eyebrows in an exaggerated expression of frank disbelief, Jaywalker felt himself slide ever so slightly lower in his chair.
Darcy did agree with Jaywalker on one point. She, too, told the jurors not to use extreme emotional disturbance to compromise on a manslaughter verdict. But where he’d asked them to acquit Jeremy altogether, she urged them to convict him of murder. “What it comes down to,” she said, “is that final, fatal shot. The one fired between the eyes at point-blank range. Until then, you might be able to stretch things almost to the breaking point and argue that the defendant was justified. Bringing the gun that morning, beating up Victor, maybe—and I say maybe—even firing the first shot. But then he closes that forty-five-foot distance, picks Victor’s head up from the pavement, places the business end of the gun within five inches or less of the bridge of Victor’s nose, ignores Victor’s plea for his life and pulls the trigger. That, ladies and gentlemen, is where justification ends and extreme emotional disturbance goes out the window.
“That’s where it becomes, if we were to use Mr. Jaywalker’s term, an execution. Personally, I reject that term and all the drama it suggests. I prefer to use the term overkill. Because that’s exactly what we have here, the use of deadly force when any conceivable need for deadly force no longer exists. But the truth is, you can forget Mr. Jaywalker’s term and you can forget mine. Execution, overkill, it makes no difference at all. Because the New York State Penal Law just happens to have a term of its own for it. It’s the very same term you’ll find in the indictment, and it’s the very same term Justice Wexler will use when he instructs you on the law in a few minutes. So here it is, here’s what they all choose to call it—
“Murder.”
Having spoken for just under an hour, Katherine Darcy thanked the jurors and sat down. It was close to two o’clock by that time, and Judge Wexler sent the jurors back to the jury room, where their lunch orders were waiting. Then he turned to the lawyers and told them to be back in forty-five minutes for the court’s charge.
The charge took the better part of an hour. Wexler began by instructing the jury on the general principles of law they were to follow, including the presumption of innocence, the burden of proof and reasonable doubt. Next he defined the various crimes charged in the indictment. “Murder,” he told them, “is causing the death of another person accompanied by the intent to cause death.”
Then he instructed them on the law of extreme emotional disturbance and justification. He made good on his promise to limit the defense’s claim of justification as much as he possibly could. “Even if you should find that the defendant was initially justified in using deadly physical force,” he told them, “the statute permits him to do so only to the extent he reasonably believes such force to be necessary to defend himself. If the evidence convinces you that at some point in the encounter he continued to use deadly physical force when he no longer believed such force was necessary to defend himself, you must find that his doing so was no longer justified, and you must find him guilty.”
And then, just in case any of the jurors had missed the point, he repeated himself verbatim.
He also cautioned them not to decide the case on the basis of sympathy, whether for the defendant, the victim or their family members. “Nor,” he added, looking directly at Jaywalker as he spoke, “should you let your emotions overcome your reason.” In the same vein, the subject of punishment was not theirs to consider; it was for the court alone to decide. Not possible punishment, Jaywalk
er noticed. Just punishment. Their verdict was to be unanimous on each count of the indictment, either guilty or not guilty. And if they needed further instructions, wished any portion of the testimony read back to them or wanted to see any of the exhibits received in evidence, they were to communicate with the court by having their foreman, Mr. Craig, send out a written note. But in no way was that note, or anything Mr. Craig might say in the courtroom, to divulge how the jury stood in terms of any votes taken on any of the charges.
“You may now retire,” he told them, “to begin your deliberations.”
Jaywalker looked at the clock, saw it was 3:56 p.m. It was something he would do hundreds, if not thousands, of times over the course of the hours to follow. He knew from years of experience that with the testimony over, the evidence in and the lawyers silenced, the clock would now become a major player in how things unfolded. Whether it had completely dawned on the jurors or not, they were sequestered, prisoners themselves after a fashion. Jaywalker liked that fact, and whenever it was left up to him he insisted that they be locked up, just so they could get a tiny taste of what it had to be like for the defendant. But at the same time he knew that sequestration could work against him, that as the hours passed and the jurors became more and more anxious to return to their families and their lives, justice could sometimes fall victim to expedience. And expedience often showed up looking an awful lot like compromise.
He looked again. 3:58 p.m.
The first note arrived at 4:49 p.m.
The receipt of a note from the jury invariably produces a tense moment in the courtroom. In order to transmit their note to the judge, the jurors must use a buzzer to summon one of the court officers, a buzzer loud enough to be heard in the courtroom. And although the jurors are instructed to buzz once if they have a note and twice if they’ve reached a verdict, they’ve been known to mix up those directions, leading to untold numbers of anxiety attacks or worse. So while this time there’d been only a single buzz, it was more than enough to get Jaywalker’s butterflies moving again.
The spectator section began filling up. Family members took their places. Jeremy was brought in from the pens and seated at the defense table. Jaywalker and Darcy took their seats. Judge Wexler entered from a side door. The court reporter nodded to indicate that she was ready. The clerk walked up to the bench and handed the note to the judge. He read it twice, once silently to himself, the second time aloud.
We, the jury, request to hear again your charge concerning intent to commit murder.
William Craig
Foreman
Short of an acquittal, it was as good as Jaywalker could have hoped for. In his summation he’d stressed Jeremy’s explanation for having killed Victor Quinones, that in Jeremy’s mind it had been to save his life. While that testimony, if believed, was relevant on the question of justification, it also went to the even more fundamental issue of intent. If Jeremy had never intended to cause Victor’s death, that was the end of the murder charge right there.
As elated as Jaywalker felt about this development, Wexler and Darcy reacted with visible disbelief. After all, didn’t the evidence establish that Jeremy had lifted Victor’s head from the pavement at a point when Victor had been unarmed and helpless, before delivering the final shot between his eyes at point-blank range? If ever there’d been a classic example of intent to cause death, surely that was one. How could any jury be hung up on something so straightforward?
But hung up they were.
“Bring them in,” said Wexler. Not the jury, not the jurors. Them.
A court officer could be heard banging on the door to the jury room and shouting, “Cease deliberations!” A few moments later the jurors filed into the courtroom and resumed their places in the jury box. Jaywalker looked hard for some clue from them. Several made eye contact with him, a good sign. Beyond that, it was hard to read them.
The butterflies did their thing.
“Mr. Foreman,” said the clerk. “Please rise.”
Mr. Craig dutifully stood.
“Will the defendant please rise.”
Jaywalker and Jeremy stood up as one.
“Mr. Foreman, has the jury reached a verdict?”
And even though Jaywalker’s brain knew that they hadn’t, his heart pounded wildly in his chest. He could only wonder at how Jeremy and his family, who were strangers to the ritual, would deal with it. Having not expected the question in the first place, they had no way of anticipating the answer.
“No,” said Mr. Craig. “We have not.”
“Thank you. You may be seated.”
He sat. So did Jaywalker and Jeremy.
Judge Wexler read the note aloud again, barely attempting to disguise his astonishment at the jury’s question. It was at times like this, Jaywalker knew, that Wexler was at his most dangerous. Grimaces didn’t show up in the transcript. Appellate judges had no way of knowing if words had been spoken declaratively or sarcastically. More than once Jaywalker had gone on the record to describe in detail how a prosecutor had rolled his eyes or how a judge had smacked his own forehead in disbelief. His efforts had gained him few friends and a couple of overnights on Rikers Island. He let it go this time. With Harold Wexler, you had to pick your battles.
The jurors appeared to listen attentively as the judge reread the portion of his charge in which he’d discussed intent. “Under the law,” he told them, “a person intends to cause the death of another person when his conscious aim or objective is to cause the death of that person.” He told them to consider the defendant’s actions and what the “natural and probable consequences” of those actions might be expected to be. Then he looked up from his notes and added, “You know, the law doesn’t impose a requirement upon the People to prove that the defendant said, ‘I’m going to kill you’ to his intended victim, or words of that sort. So you should look at his actions, not his words or lack of them.
“One other thing,” he added, his voice softening. “Jury deliberation isn’t intended to be a stress test. It’s intended to be a time when you thoughtfully review the evidence and apply the law. It’s been a long day already, and you know your needs better than I do. You know when you’re tired or when you’re hungry. If you want to go to dinner now, fine. If you want to go to the hotel now, also fine. If you want to go to dinner and then come back to deliberate further, even that can be arranged. So when the time comes, let me know, and I’ll be guided by your wishes.” Then he told them to go back to the jury room and continue their deliberations.
To a disinterested layman, the remarks might have demonstrated nothing but a gentler, more compassionate side of Harold Wexler. Jaywalker was no layman, and he was anything but disinterested. Besides, he knew the judge better than that. Fearful that the jurors were on the verge of resolving the case with a quick acquittal, Wexler was telling them to slow down, back up and settle into the fairly lengthy, predictable process that deliberations so often became. Just as his earlier suggestion to focus on the defendant’s actions had been his way of telling them to pay little or no attention to Jeremy’s words, particularly those he’d uttered from the witness stand.
Once again, vintage Wexler.
The second note arrived at 6:14 p.m.
We, the jury, would like to go to dinner. After that, we would like to come back and resume our deliberations. And several of us would like permission to have wine with dinner.
William Craig
Foreman
So much for a quick acquittal.
With the jurors being taken to a local establishment for dinner and a single glass of wine each, Jaywalker was forced to be rude and decline Carmen and Julie’s offer to join them at a nearby Jamaican restaurant. “They got good jerk chicken,” Carmen assured him. He hadn’t eaten a thing in a day and a half, but the thought of chicken, let alone jerk chicken, whatever that was, was a nonstarter. So instead he joined Jeremy in the pens and bummed a cheese sandwich from a corrections officer. It turned out to be nothing more than two slices
of stale white bread separated by a thin layer of Velveeta, but it hit the spot. Jaywalker had done army food in his youth, and prison food wasn’t all that different. Put him on an airplane in the old days, back when they’d actually served meals, and he’d been in heaven.
“So what do you think?” Jeremy asked him.
“Not bad,” Jaywalker had to admit.
It was only later, when he was down on Centre Street stretching his legs and trying to get some fresh air, that it struck him that Jeremy might not have been asking him about the sandwich. But even if he hadn’t misunderstood Jeremy’s meaning, Jaywalker would have had no good answer to the question. At times like this, early on in the deliberations, he never knew what to think.
The jurors returned from dinner just before eight o’clock and resumed their deliberations. Judge Wexler had left word that he’d be in his chambers upstairs. Katherine Darcy checked in by phone from her office, which was located in the same building. Jaywalker, who had no chambers and no office, stuck around. He talked with the clerk, the court officers, the corrections officers and the court reporter. He tried to calm Carmen and Julie down, but the truth was, they seemed calmer by far than he was. Twice he went into the pens to make sure Jeremy was okay. Both times he found Jeremy lying on a bench, his eyes closed. Jaywalker chalked it up to sleep deprivation, rather than complacency. Still, he couldn’t imagine falling asleep in Jeremy’s situation. Jaywalker himself was running on fumes, not having slept more than a couple of hours over the last two days. But the idea of sitting down, closing his eyes and napping was nothing less than unthinkable.
Overkill Page 25