Overkill

by Joseph Teller

  Just one more example of how the words I told you so always seemed to come into play down at 100 Centre Street.

  Katherine Darcy called Detective Regina Fortune. A member of the Crime Scene Unit, Detective Fortune would succeed in demonstrating, by the time she stepped down from the witness stand, that her name was far and away the best thing about her.

  Darcy began her examination by asking about the duties of her unit.

  FORTUNE: CSU responds to certain crimes within the five boroughs. All homicides, assaults where a person is likely to die, sex crimes—rape, sodomy, child abuse—and what we call pattern robberies or pattern burglaries. We respond in order to preserve the crime scene, and we do that through taking photos, making notes and drawing sketches and diagrams. And when we recover any type of evidence at a scene, we photograph it and note it in our sketches and diagrams.

  Darcy drew Detective Fortune’s attention to September 6th. Referring to her notes, she testified that she’d arrived at 113th Street and Third Avenue shortly after four o’clock that afternoon. She’d found the scene already secured and evidence preserved by uniformed patrol officers who’d arrived earlier. She’d noted a sweatshirt, two .380 shell casings and a spent round, which she more accurately described as “a piece of deformed lead.” She’d made notes, taken measurements and photographs, and drawn a rough sketch of the area. Back at her office, she’d created a large diagram of the scene, drawn to scale and showing the relative location of the various items she’d spotted. Without objection from Jaywalker—he had no interest in making it seem worth fighting over—the diagram was received in evidence and published to the jurors. For some reason that Jaywalker had never understood, lawyers seem to prefer using words like publish when mundane ones like show would do just fine.

  Up to that point, Regina Fortune had been a model witness, and perhaps it was that fact that led Katherine Darcy to get greedy. As Harold Wexler might have put it, it was a big mistake. But prosecutors are lawyers, too, and they occasionally succumb to the temptation to ask too many questions of a witness.

  DARCY: You mentioned a .380 shell.

  FORTUNE: Yes.

  DARCY: What is a .380 shell?

  FORTUNE: The number signifies the size of the caliber. Guns come in all sizes—.38s, 9 mms, .45s. A .380 is a middle-range gun. It’s bigger than a .38, smaller than a 9 mm, much smaller than a .45. Those are all caliber sizes.

  DARCY: Have you seen .38s and .380s?

  FORTUNE: Yes, I have.

  DARCY: And are you able to approximate the size of a .380?

  FORTUNE: A .380 would probably be the size of my hand. It’s an automatic. It’s streamlined, kind of thin. But it would probably be the size of my hand.

  It suddenly dawned on Jaywalker where Darcy was going with this line of questioning. Wallace Porter had claimed to have seen Jeremy pulling the gun from beneath two or three pairs of sweat socks. Despite the unlikelihood of that having happened—Teresa Morales’s waistband version had struck Jaywalker as far more plausible—Darcy was now casting her lot with Porter and trying to get Detective Fortune to say that it could have happened the way he’d testified. And sure enough…

  DARCY: Anything about a .380 that would be inconsistent with its being carried in somebody’s sock?

  FORTUNE: No, it could be carried in somebody’s sock.

  DARCY: Are you familiar with ankle holsters?

  FORTUNE: Yes.

  DARCY: If somebody were to pull sweat socks over an ankle holster, would that conceal the holster?

  FORTUNE: Yes, it would.

  Sooner or later, there came a moment in most trials when Jaywalker woke up. Not that he’d been asleep up to this point. But knowing that he would eventually be putting Jeremy on the stand, he’d pretty much sat back and let the early witnesses have their say. He hadn’t even gone after the eyewitnesses too hard—Magdalena Lopez, Wallace Porter and Teresa Morales—preferring to get them off the stand fairly quickly. But for some reason, Katherine Darcy’s last line of questioning with Detective Fortune pissed him off. Perhaps it was no more than his frustration over not being able to dent the consensus that it had been Jeremy who’d pulled the gun and murdered a defenseless victim. Or perhaps it had been Harold Wexler’s certainty that there was going to be a conviction and that he was going to bang Jeremy out at sentencing time. Maybe it had even had something to do with Miles Sternbridge’s cameo appearance that morning, and his snide remark about being glad to hear that Jaywalker had been behaving himself. Whatever it was, the juices were suddenly boiling within Jaywalker’s belly. That was something that didn’t happen all that often, but when it did, it made him an exceedingly dangerous cross-examiner, as Regina Fortune was about to find out.

  JAYWALKER: Detective Fortune, have you ever owned a .380 automatic?

  FORTUNE: Me? No.

  But Jaywalker had, back in his DEA days. A nickel-plated one, with genuine walnut grips. It had been big, the exact size of a .45, and had taken one round in the chamber and eleven in the clip, and you could go to war with it if you had to.

  JAYWALKER: Are you by any chance familiar with the Browning .380?

  FORTUNE: I’ve seen it. It’s about the size of my hand.

  JAYWALKER: Is the Browning .380 a very common .380?

  FORTUNE: I wouldn’t know.

  JAYWALKER: What are some other makes of .380s?

  FORTUNE: I see so many guns, I wouldn’t know.

  JAYWALKER: Tell me one other.

  FORTUNE: I can’t remember right now.

  JAYWALKER: I’ll give you a few minutes.

  FORTUNE: I don’t know makes of guns, really.

  JAYWALKER: Do you know the difference between a .380 and a 9 mm?

  FORTUNE: The size of the gun. Because the caliber is a little bigger?

  From the way she raised her voice at the end, turning her answer into question, it was clear that not even Detective Fortune believed that one. But before Jaywalker could continue, Judge Wexler came to her rescue.

  THE COURT: You’re not a ballistics expert, are you?

  FORTUNE: No, I’m not.

  But by asking her about guns on direct examination, Katherine Darcy had opened the door to Jaywalker’s line of questioning, and Wexler was obviously smart enough to know he had no choice but to let things continue.

  JAYWALKER: Detective, when we talk about millimeters, a 9 mm versus a .380, say, what are we referring to?

  FORTUNE: It’s the size of the caliber of the gun.

  JAYWALKER: What does that mean?

  FORTUNE: It’s the size of the bullet.

  JAYWALKER: Is that in length? Diameter? Radius? Or circumference?

  FORTUNE: It’s measured by weight.

  That one took even Jaywalker surprise. Here he’d been nice enough to make things easy for the witness by asking her a multiple-choice question. And she’d decided to go with “none of the above.”

  JAYWALKER: The millimeter is a unit of weight?

  FORTUNE: That’s how they determine it.

  JAYWALKER: How about a meter? Is that a unit of weight?

  FORTUNE: No, it’s not.

  JAYWALKER: Isn’t a millimeter a fraction of a meter?

  FORTUNE: Yes.

  JAYWALKER: What fraction would that be?

  FORTUNE: A hundredth?

  JAYWALKER: Close. How about a thousandth?

  FORTUNE: Okay.

  JAYWALKER: Does that perhaps cause you to change your previous answer that a millimeter is a unit of weight?

  FORTUNE: Yes.

  JAYWALKER: Good. So do millimeters refer to the diameter of the bullet, the radius of the bullet, the circumference of the bullet, or the length of the bullet? Now that we’ve ruled out weight.

  FORTUNE: I believe it’s lengthwise, the length of the shell.

  This from a detective, mind you. A detective assigned to the Crime Scene Unit.

  JAYWALKER: Ever heard of a .22?

  FORTUNE: Yes.

  JAYWALKER: Is there s
uch a thing as a .22 long?

  FORTUNE: Yes, there is.

  JAYWALKER: Such a thing as a .22 short? Sometimes called a .22 corto?

  FORTUNE: The .22 short I know. Yes.

  JAYWALKER: Yet they’re all .22’s, in spite of the fact that they have different lengths. Aren’t they?

  FORTUNE: Yes.

  JAYWALKER: Does that by any chance cause you to change your previous answer that the term millimeters refers to length? To think that it refers instead to the diameter of the bullet?

  FORTUNE: I guess so. I’m not an expert.

  At least that much was clear. But Jaywalker still needed to undermine the detective’s claim that the discovery of .380 shell casings told her something about the size of the gun they’d come from.

  JAYWALKER: Now you told us that a .380 automatic is smaller than a 9 mm. Right?

  FORTUNE: Right.

  JAYWALKER: Yet they can both fire .380 ammunition, can’t they?

  FORTUNE: Yes, I guess so.

  JAYWALKER: And either one can be as big as a .45 automatic. Right?

  FORTUNE: Right.

  JAYWALKER: Which would make it considerably bigger than your hand. Right again?

  FORTUNE: Right.

  JAYWALKER: So the fact that .380 shell casings were found at the scene really tells us just about nothing in terms of the overall size of the gun they came from. Isn’t that true?

  FORTUNE: Yes.

  From there, Jaywalker moved on to the subject of ankle holsters.

  JAYWALKER: You’ve seen lots of ankle holsters, haven’t you?

  FORTUNE: Yes.

  JAYWALKER: And is it fair to say that whenever you’ve seen one, it was for a two-inch, snub-nosed .38 revolver?

  FORTUNE: Yes.

  JAYWALKER: You’ve never, ever seen one for a .380 automatic, have you?

  FORTUNE: No.

  JAYWALKER: Or a 9 mm?

  FORTUNE: No.

  JAYWALKER: In fact, neither of those guns would fit into an ankle holster made for a two-inch .38 revolver? Would they?

  FORTUNE: No.

  JAYWALKER: What would be likely to happen if you tried to wear one of them in such an ankle holster?

  FORTUNE: It’s too big. It would probably fall out.

  JAYWALKER: Kind of like if you tried to wear it in just your socks, without a holster?

  FORTUNE: Kind of like that.

  JAYWALKER: Probably fall out?

  FORTUNE: Yes.

  JAYWALKER: Same thing even if you wore extra pairs of socks?

  FORTUNE: Same thing.

  At some point during the morning, Jaywalker’s daughter had slipped into the courtroom. She’d been in the neighborhood, having had to pick up some document at the Board of Health a few blocks away. As soon as Jaywalker finished his cross-examination of Detective Fortune, Judge Wexler recessed for lunch. At that point Jaywalker’s daughter walked over to him, hugged him and said, “You shredded her, Dad.”

  And it was true. Regina Fortune had been a terrible witness, far too ready to testify to things about which she knew little or nothing. And Katherine Darcy had been complicit in unmasking the detective by asking her questions she didn’t need to and never should have.

  But Jaywalker knew something his daughter didn’t. From Detective Fortune’s scale-drawn diagram of the crime scene, the jurors would be able to determine the precise distance between the area where Jeremy Estrada and Victor Quinones had fought to the spot where Victor had ultimately sustained the fatal shot and bled out onto the pavement. That distance, Jaywalker also knew, would form the cornerstone of Katherine Darcy’s summation argument that Victor had indeed attempted to flee from Jeremy after being shot the first time, and that Jeremy in turn had run him down and executed him.

  That distance had been forty-five feet.

  As Jaywalker was busy explaining that little detail to his daughter, Jeremy’s mother sidled up to them, another greasy paper bag in her hands.

  “She’s your daughter,” said Carmen.

  Not “Is she your daughter?” or “This must be your daughter.” No, the way Carmen stated it left absolutely no room for doubt. She might just as easily have been presenting a newborn baby to a mother in the delivery room, or announcing the results of a DNA test excluding any other possibility by a factor of a billion to one. And while it was true that there was a certain resemblance between Jaywalker and his daughter, it wasn’t like they were mirror images of each other. Which made Carmen’s pronouncement seem all the more like something straight from the mouth of a clairvoyant or a Gypsy fortune-teller.

  Jaywalker introduced the two of them, and they traded a “Pleased to meet jew” for an “I hope things work out for your son.” Then Carmen turned back to Jaywalker, and the dreaded moment came.

  “Chicken,” she said. “I made jew chicken with brown graven.”

  Jaywalker took the bag and thanked her. They spoke for a few more seconds before a court officer anxious to clear the courtroom ushered Carmen out. Jaywalker and his daughter he left alone, knowing they’d know to use the side door.

  “Thanks for stopping by,” said Jaywalker, who saw little of his daughter these days, now that she was living in New Jersey with her husband and children of her own. “I miss you. And do me a favor, will you?”

  “What’s that?”

  He extended the bag in her direction. She laughed at the offer, but immediately put her hands behind her back. Family resemblances were one thing, and blood might indeed be thicker than water. But when it came to chicken and brown graven, it seemed Jaywalker was still pretty much on his own.

  That afternoon Katherine Darcy called Dr. Seymour Kaplan to the stand as her eighth and final witness. Dr. Kaplan was an assistant to the chief medical examiner of the City of New York, and he would prove to be as good a witness as Detective Fortune had been a bad one.

  Darcy began by having Dr. Kaplan run through his credentials and qualifications, and they were truly impressive. After graduating from Harvard, he’d earned a doctorate in neuroanatomy, and taught anatomy and histology at Albert Einstein Medical School, before enrolling there himself. Following graduation and an internship, he’d completed a three-year residency in pathology at Massachusetts General Hospital. From there he’d returned to New York to accept a teaching fellowship in forensic pathology at Mount Sinai. He was board certified in both anatomical pathology and forensic pathology, which he described as the interaction between the science of the medical cause of death and the legal world of the criminal justice system. He’d worked as an assistant medical examiner in New York for eleven years, during which time he’d performed over two thousand autopsies himself, as well as assisting at more than three times that number.

  Twice during the recital Jaywalker offered to stipulate that Dr. Kaplan was qualified as an expert in forensic pathology. But Katherine Darcy could evidently sense the jury’s reaction to her witness’s résumé and intended to play it for all it was worth. Finally, on the third attempt, Jaywalker’s offer was accepted. At that point Judge Wexler took a moment to explain to the jurors that having been qualified as an expert, Dr. Kaplan would be permitted to offer his medical and scientific opinion within the field of his particular expertise.

  Darcy had him describe what an autopsy was, and how he’d performed one on the body of Victor Quinones. In response to her questions, he stated that he’d found two gunshot wounds, a non-fatal one to the torso, and a fatal one to the head, both complete with telltale entrance and exit holes. He was careful to say that from his examination he had no way of telling which wound had been sustained first.

  DARCY: Would you describe for us the shot to the torso?

  KAPLAN: Yes. That shot was actually a bit unusual, out of the ordinary in terms of its geometry. It was a shot through the body wall. It entered just below the ribs on the left side, and the bullet stayed within the soft tissue of the body wall. It came out the body wall without ever entering the abdomen or causing internal damage. It formed a very nice line
ar streak, which is visible on the body. I probed the line, opened it up. And found there was no injury at all from it.

  What also made it unique was that after the bullet left the body, there was a gap of a few inches where the skin was perfectly normal. And then there was an extension of that same line on the hip, indicating what appeared to me to be the continuation of the path of that bullet. It caused a grazing wound, a contusion. There was a bruise of the hip without the skin being broken. In other words, a bruising injury in a perfect line with the streak on the body wall that I described earlier.

  Because I didn’t think these injuries were fatal, I didn’t include them on the death certificate as contributing in any way to the cause of death.

  Darcy asked him to describe the other wound, the one that had proved fatal.

  KAPLAN: There was a small, well-circumscribed wound just above the bridge of the nose, equidistant from the eyes. By “well-circumscribed,” I mean it was almost a complete circle in shape. I deemed it to be an entrance wound of a projectile, almost certainly a bullet. Following its trajectory with a thin metal probe, I discovered that it went through the skull, breaking off several small fragments as it did so. From there it entered the left cerebral hemisphere of the brain, just slightly off the midline that divides the two hemispheres. At that point the projectile began to “wander” somewhat in what appeared to me to be a tumbling motion. As it did so, it caused massive damage to both hemispheres. There was significant evidence of herniation, or swelling of the brain itself within the skull. That would have happened as a result of bleeding, most of which would have taken place in the minutes following the impact.

  After passing through the brain, the projectile again encountered the skull, this time from the inside, as it exited through the back of the head, the upper portion of the neck. Unlike the entrance wound, this exit wound was large and irregular, further evidence that the projectile had tumbled in the brain and had picked up both skull fragments and brain matter as it did so.