Overkill

by Joseph Teller

  So it was time to get down to work. And work would begin with hitting the bricks.

  The first thing he wanted to do was to locate and nail down defense witnesses. Jeremy’s mother and twin sister could testify to the changes they’d observed in Jeremy as a result of his torment at the hands of the Raiders. But their value as witnesses would be limited. For one thing, they hadn’t actually seen any of the gang members or directly observed any of the events that had occurred. And even if they had, their relationship with Jeremy, and their understandable loyalty toward him, would immediately render their testimony suspect. But the good news was that neither Carmen nor Julie was going anywhere. They’d be right there for Jaywalker to interview indepth and prepare to testify, whenever he got around to it.

  He was much more concerned with locating the two people who’d actually witnessed the harassment. The first of these, and by far the more important, was Miranda. For starters, she’d been the catalyst who’d set off the entire chain of events; she was the case’s Helen of Troy. Next, according to Jeremy, she’d been present on a number of occasions when Sandro and the others had confronted Jeremy and bullied him. Finally, she’d been right there at the fight between Jeremy and Victor Quinones, and at the shooting itself. Whatever Victor’s girlfriend Teresa Morales could say about those events, Miranda could contradict and hopefully neutralize. So in every sense of the word, she was indispensable.

  But neither Jeremy nor his family had seen or heard from Miranda since the days following the shooting. And as Jaywalker pondered that fact, he realized that he didn’t even know her last name. It was a sobering thought, and it reminded him once again of how much work he had ahead of him.

  The other witness he needed to find was the owner of the barbershop where the gang had tried to get at Jeremy. Jaywalker had already been told that the shop had since closed and the owner had returned to Puerto Rico. On top of that, in this instance Jaywalker didn’t even have a first name to work with, let alone a last.

  He walked to the bathroom, opened the medicine cabinet and searched for something strong. But most of the pill bottles were either empty or bore expiration dates from the previous millennium. He settled on a couple of Motrin. Motrin? Perhaps some overnight guest had left them behind. Then again, headaches were sort of like brain cramps, weren’t they? Next he brewed himself a pot of strong caffeinated coffee and downed two cups, black and bitter.

  No migraine was going to get in his way.

  An hour later, Jaywalker found himself standing on the corner of 112th Street and Third Avenue, where, according to Jeremy, there’d once been a barbershop. He stopped everyone who looked like they might speak English, and asked them if they remembered one. To those who answered him with a blank stare and a “No comprendo,” he tried “Barberio” and pointed to his own hair, just to make sure they wouldn’t mistake him for a barbarian. Finally an old man with no teeth shook his head and said, “No más.”

  “Sí, sí,” said Jaywalker. “But donde was it?”

  Like an idiot, he’d taken French and Latin.

  “Come with me,” said the man, in perfect English. And took him a half a block east, where he pointed out a small shop with the word Botanica printed above it.

  Inside were rows upon rows of shelves overflowing with dusty jars and amber bottles of vitamins, supplements and herbal remedies. Bilingual hand-lettered signs explained which were good for stomach ailments, which immediately improved eyesight or hearing, and which promised to cure cancer or SIDA, the Spanish equivalent of AIDS. There were cloves for toothaches, mercury compounds for gout, and dried chicken heads for use in Santeria rituals.

  Jaywalker was not tempted.

  The proprietor, a small woman with a ready smile, spoke no English. “Momentito,” she said, and ducked beneath a curtain and into a back room. When she returned a momentito later, she was accompanied by a girl of seven or eight, presumably her daughter and translator.

  Jaywalker explained his business. Did they know if the place had ever been a barbershop? Yes. By any chance, had they bought out the lease from the owner of the barbershop? Yes, exactly. Did they happen to remember his name? No, but if he cared to wait a few minutes, they had papers.

  As Jaywalker’s former therapist might have said, “Ahaaa!”

  Twenty minutes later, Jaywalker reemerged into the sunlight. In his left pocket, as a result of his appreciation and a twenty-dollar bill, was a small bottle containing a scary fetal-like object labeled Black Toadwort and unconditionally guaranteed to cure him of migraines forever. But even were it to fail to live up to its claim, it would be well worth the investment. For in his right pocket was a piece of paper bearing the careful, practiced lettering of a third grader.

  Francisco Zapata

  Frankie and Friends

  Barbershop

  It wasn’t all that far, so from the botanica Jaywalker walked north to 115th Street and the projects, where he found the building that matched the address Jeremy had listed at the time of his arrest. He slipped the lock of the outer door with a credit card and found the tenant board. There were two Estradas listed, one for 3G and the other for 8F. He pressed the buzzer for 3G, hoping it would be the right one. He knew from experience that the chances of either of the elevators working were slim, and the prospect of climbing seven floors was somewhat less than appealing.

  “Quit pressing the buzzer, you fuckin’ junkie bastards!”

  He tried 8F.

  “Who are jew?” came the familiar gravelly voice of a woman.

  He spent the first half hour in Carmen’s apartment trying to catch his breath, the next half hour declining her offers of food, and the final half hour quizzing her on what she knew about Miranda.

  “Very, very pretty.”

  There seemed to be something of a consensus on that point.

  “Miranda Raven.”

  A last name.

  “’Cause her father was like a Indian, a real Indian. From Florida. Her mother told me that, when Jeremy was in Puerto Rico. The Semaphore tribe, I think she said.”

  Or perhaps the Seminoles. But whichever it was, she’d fled the city immediately after the shooting, afraid for her daughter. “To Baltimore,” said Carmen. “That’s in Marilyn.” She still had a phone number for them, though. She’d saved it for Jeremy, so that when the problem was finally over, he could call Miranda up if he wanted to and go looking for her.

  “Very, very pretty,” she repeated, as though that was explanation enough. And maybe it was.

  She dug out the number and let Jaywalker copy it down. “Jew going to call her?” she asked.

  “No,” said Jaywalker, who didn’t want to frighten Miranda off with a call from a total stranger. “You’re going to call her mother and ask her to have Miranda call me.”

  “Okay. But are jew sure you don’t want something to eat?”

  Funny, she didn’t look Jewish.

  The following day Jaywalker checked with the licensing division of the Department of State. Francisco Zapata had indeed been the sole proprietor of the barbershop where the botanica now was, and he’d done business under the name “Frankie and Friends.” If he’d employed anyone, it had been strictly off the books. Officially, at least, his “friends” appeared to have been his customers. And a little over seven months ago, Zapata had indeed sold his shop and requested that his licensing status be changed from active to retired. Despite a requirement that he furnish a forwarding address for tax purposes and service of process, he’d failed to do so, and the appropriate blank on the form listed his current whereabouts as “unknown” and his next of kin as “none.”

  Now most other investigators, and just about all other lawyers, would have quit right there, writing off the notion of the barbershop owner being a witness as a dead end. But Jaywalker was stubborn to a fault. To him there were no dead ends, just detours. So he made a note in his To Do file, which had by that time grown to a dozen pages. He’d reached the age in life where he no longer trusted his memor
y to serve him. If something was worth remembering, it was worth putting down on paper. That way, he could save his diminishing brain cells for the important stuff, like remembering to eat at least once a day, shaving every other day and calling his daughter once a week. Back when his wife had been alive, one of her jobs had been to serve as his constant reminder. He’d been ambivalent about it at the time, and had even accused her of being a nag when she got pushy about it. Only with her death had he come to realize just how many hats she’d worn during their marriage, and how utterly lost he was without her.

  Katherine Darcy called the following day. Evidently Jaywalker’s “close to the breast” slip had caused her to take a step back from being Katie. Once again, she was all business on the phone.

  “The toxicology and serology reports have come in,” she said. Not “I found them,” or “I’ve decided to let you in on what they say.” No, they’d come in. Almost a year late. Which, to Jaywalker, could only mean there had to be something in them that was good for him and bad for her.

  “Do you want me to send you copies of them?” she asked. “Or fax them to you?”

  “You can send them,” he said. “My fax is down at the moment.” As it no doubt would have been, if he’d had one. “So what do they show?” he asked her, knowing it would make her squirm to read off anything that might give him an advantage, however small.

  “The usual,” she said. “Ethanol and opiates in blood, bile and brain.”

  Unless Victor Quinones had been tanking up on gasoline additives, the presence of ethanol meant he’d been drinking. And opiates would be heroin.

  “How much ethanol?” he asked.

  “Let me see. Point one one.”

  “And the opiates?”

  “Not quantified,” she said.

  “Didn’t this thing happen in the morning?” Jaywalker asked. He knew the answer, of course. The witnesses had placed the shooting at a few minutes after 11:00 a.m.

  “The victim was pronounced at twelve-fifteen in the afternoon. And they didn’t take samples until the autopsy, which was conducted the next day.”

  She was right, technically. According to the death certificate, which Jaywalker had also committed to memory some time ago, Quinones hadn’t been officially pronounced dead until an hour after the shooting, at the hospital. And the autopsy hadn’t been performed until the following afternoon. But none of that mattered. Death had a funny way of bringing the body’s metabolism to a screeching halt. If Victor had had a .11 reading lying on the morgue table, he’d had the same exact reading when he’d taken a bullet between the eyes some thirty hours earlier. A .11 meant eleven hundredths of a percentage point of alcohol in his system, by weight. It might not have sounded like much to a layman, but to Jaywalker it translated out to roughly five drinks, all of them knocked back well before noon. Enough to place him over the limit for driving and into the category of legally intoxicated. And that was before you even started talking about the undetermined amount of heroin he’d had in his system.

  “Nice breakfast,” said Jaywalker.

  Over the weeks that followed, he spent three full days rereading the crime-scene reports, the ballistics findings and the autopsy protocol. When the serology and toxicology reports showed up in the mail, he read those, too, even though he’d already had Katherine Darcy read them to him over the phone two days earlier. He revisited the crime scene, taking more measurements and snapping more photos than he had the last time he’d been there.

  He had Jeremy brought over to 100 Centre Street for a dozen more counsel visits, each time probing for greater detail about both the months leading up to the fatal day and the events of that day itself. The process continued to feel like dentistry, but over time Jeremy gradually became a more cooperative patient. Where he’d once dug in and resisted every inch of the way, he now finally began to let go of his secrets. Not happily, and certainly not easily. But with Jaywalker constantly reminding him how important it was to their chances at trial, Jeremy finally demonstrated that he got it, that he made the connection between his providing sufficient detail and a jury believing what he was telling them. Still, it continued to be a painstaking process, as well as one that promised to continue right up to the minute the young man would finally take the witness stand.

  Jaywalker met twice more with Jeremy’s mother and his twin sister, Julie, pushing them to tell him again about the changes they’d noticed in Jeremy over the course of the summer of the “problem.” After the second session, he was already on his feet, gathering up his papers and stuffing them back into his briefcase, having politely but firmly resisted Carmen’s insistence that he take home some pork, rice and beans in a “dog bag,” when she stopped him.

  “Oh,” she said. “I almost forgot to tell jew.”

  “Forgot what?”

  “She called.”

  “She?”

  “The girl,” said Carmen. “The girl, Miranda. She called, just like I told her mother she had to do.”

  Jaywalker sat back down. His instructions had actually been for Miranda to call him. But this was a start, at least. “And?” he said.

  “And they’re coming to New Jork. In January they’re coming.”

  “To stay?”

  “No,” said Carmen. “Just for a weekend. There’s a wedding. A uncle of the girl’s is getting married. Her mother’s brother, I think. So I told her she gotta talk to jew.”

  “And?”

  “And that’s it. I told her she gotta talk to jew. That means she gotta talk to jew. Right?”

  And all Jaywalker could think to say in return was, “Right.”

  And finally, when he’d run out of other things to do, he hit the books. Doing legal research had never been Jaywalker’s favorite pastime, but as much as he tended to put it off, he knew it was an indispensable part of his job.

  He started with the Penal Law and the Criminal Procedure Law, the twin bibles of the New York criminal law practitioner. He read and reread the relevant sections on justification, physical force, deadly physical force and extreme emotional disturbance until he knew them by heart. From there he moved on to the case law, the written opinions of appellate judges in which they’d interpreted the statutes and measured them against specific fact patterns presented by actual cases. He searched for key words and phrases that might apply to the facts of his own case.

  Suppose the jury were to find that Jeremy, and not Victor Quinones, had been the initial aggressor? Did that finding strip the defense of its claim of justification? Had Jeremy been under a duty to retreat, to run from Victor? Did justification end at the point when Victor lay on his back, begging for mercy? Did Jeremy’s perception that his life was in immediate danger have to be a reasonable appraisal of the facts? If so, was the test of reasonableness an objective one or a subjective one? In other words, were Jeremy’s actions to be measured against the standard of what a reasonable person should have done under the circumstances, or of a person who’d been through everything Jeremy had been through? Suppose, for example, that Jeremy’s perception had been severely distorted by the events of the summer and of the day of the fight? Could that distortion be considered? Were the jurors to act as cold, detached, impassionate judges of the facts? Or were they supposed to somehow place themselves in Jeremy’s shoes and try to see things as he’d seen them?

  And who had to prove what? Justification, it turned out, was defined as a defense, so once it was raised, the prosecution bore the burden of proving its absence. But extreme emotional disturbance was an affirmative defense, meaning Jaywalker would have to prove its existence.

  But prove to what standard? While the lack of justification had to be proved by the prosecution beyond a reasonable doubt, the presence of extreme emotional disturbance could be proved by the defense with a mere preponderance of the evidence.

  But offsetting that important advantage for the defense was the far more significant one that favored the prosecution. Justification was a complete defense, requiring a jury
to acquit a defendant altogether. Extreme emotional disturbance, on the other hand, was only a partial defense, reducing the offense from murder to first-degree manslaughter. It still left a defendant exposed to a twenty-five year sentence, a twenty-five year sentence that Harold Wexler had promised in no uncertain terms to Jeremy Estrada, even if Jaywalker were to succeed in knocking out the murder count.

  He went to bed dizzy and exhausted, with statutes and cases spinning wildly in his head, knowing that with sleep would come nightmares of being shot between the eyes and left to bleed out on the pavement. Seven nights in a row he went to bed like that. But by the end of the week there was no one in the universe who understood the principles, permutations and nuances of justification and extreme emotional disturbance half as well as Jaywalker did.

  With the possible exception of Harold Wexler.

  8

  DUTCH TREAT

  They went back to court just before Thanksgiving. When Jaywalker indicated that Jeremy still had no interest in a manslaughter plea and a twenty-five year sentence, Harold Wexler could barely conceal his irritation.

  “You want a trial, Mr. Estrada? Then a trial you shall get. How soon can the People be ready?”

  By the People, he meant the prosecutor, who technically represented the People of the State of New York. It was a designation that Jaywalker hated and refused to use. To his way of thinking, its sole purpose was to suggest to the jury that the assistant district attorney was one of them, while the defendant and his lawyer were outsiders. Non-people.

  “The People can be ready in two weeks,” said Katherine Darcy.

  “Mr. Jaywalker?”

  Two weeks would take them pretty close to the holidays, a time when almost no trials started, especially murder trials, which tended to last a couple of weeks at a minimum. Jaywalker would have loved to bluff, just to unsettle Ms. Darcy a bit, but even were he to answer that the defense was ready now, he knew full well that as a practical matter, now would end up meaning sometime in January at the very earliest. But the truth was, he was nowhere near ready. Miranda Raven wasn’t due to return to the city for another six weeks, and Frankie the Barber was somewhere in Puerto Rico, a pretty big place. On top of that, he still had an awful lot of preparation to do with Jeremy, and a lot of other stuff, as well.