Overkill

allowed first Carmen and then Julie to speak with Jeremy for a few minutes. The idea was for them to talk him into doing what Jaywalker had been unable to do.

They couldn’t.

Jaywalker tried once more, before catching the judge’s eye and shaking his head back and forth. Wexler stood up and left the courtroom without comment. Jaywalker looked at the clock-10:51 a.m. He guessed he’d be home by one, two at the latest.

He was wrong.

The buzzer sounded at 11:33 a.m. One buzzer, not two. Though in the two seconds it took to determine that there wouldn’t be a second one, Jaywalker felt his heart go into serious fibrillation. Or maybe a lost butterfly had strayed up and into his chest to flap its wings in panic. He turned to Jeremy and said, “Relax,” and they shared a laugh at the absurdity of the notion.

We, the jury, would like to know if there is any way we can send the defendant a message that what he did was absolutely wrong, and criminal according to the law. At the same time, some of us strongly suspect that the defendant’s actions were out of character and feel it highly unlikely that he will repeat them, or similar criminal acts, in the future. How can we send that message without violating our oaths as jurors?

William Craig

Jury Foreman

“You can’t,” Harold Wexler told them once they were back in the jury box. “You’re not here to send the defendant or anyone else a message. Your job, and your only job, is to make a determination as to whether the defendant’s guilt on each count of the indictment has been proven to your satisfaction or not. Period. As for punishment, that is a matter that is solely within the province of the court. Or to put that into plain English, that’s my job.

“Now let me say this,” he continued, removing his glasses and looking up from his notes. “Despite rumors circulating to the contrary, I am a human being. I listened to the same testimony that you did. I have read your most recent note and understand your concerns. You may rest assured, each of you, that if and when it comes time for me to impose sentence upon Mr. Estrada, I will take into consideration all of the facts and circumstances of this very tragic case.

“I trust that answers your question,” he told them. “Now you may retire and resume your deliberations.”

Not that Jaywalker hadn’t argued long and hard against what Wexler had proposed to say. Wrapped in all those comforting words was an implicit promise to treat Jeremy with not only understanding but leniency. But sentencing wasn’t “solely the province of the court” at all. By imposing strict minimum terms, the legislature had made it very much its province, as well. Wexler could go on as long as he liked about being a human being, understanding the jurors’ concerns and considering all aspects of “this very tragic case,” but murder sentences still began at fifteen to life, and first-degree manslaughter at five years, which Jeremy could surely forget about, having just turned down fifteen on a plea. Therefore, Jaywalker contended, the judge was playing fast and loose with the jurors, lulling them into thinking Jeremy would get at most a slap on the wrist if they were to convict him, when in fact a lengthy prison term awaited him.

“You have your exception,” Wexler had told him. Which in layman’s terms translated into “Shut up and sit down.” And the fact was, as duplicitous as the judge was being, he was standing on pretty solid ground, and he’d no doubt known it. The genteel way in which he’d answered the jurors’ question had hewed closely enough to the law-which did indeed leave sentencing up to the court and not the jury-that it would no doubt satisfy the concerns of any appellate judge reviewing the statement long after the conviction.

So forty minutes later, when the buzzer sounded not once, but twice, nobody in the courtroom was surprised. Not Jaywalker, certainly, who’d known precisely what would happen next. Not Katherine Darcy, who looked sympathetic to his concerns but obviously felt powerless to do anything about them. Not the court officers, who even as they mumbled that Jaywalker had been shafted-which wasn’t quite how they phrased it-called for reinforcements, a guilty verdict being a time when even the most docile of defendants tended to act out unpredictably. Not Harold Wexler, who made a point of loudly asking the clerk what a convenient sentencing date might be. Not Carmen or Julie, who sat in the audience hugging each other, sobbing softly. Not even Jeremy, who for once lowered his head and seemed intent on studying the floor, the sheepish smile finally gone from his face.

“Mr. Foreman, please rise.”

As he had on each previous occasion, William Craig stood. At the defense table, so did Jaywalker and Jeremy. By now they knew the ritual well enough that they no longer waited to be asked.

“Mr. Foreman, has the jury reached a verdict?”

“Yes, we have.”

In his right hand he held a single sheet of paper, called a verdict sheet. It listed the different counts of the indictment in order, by number and crime charged. Jaywalker knew from years of experience that whatever Mr. Craig were to do with it next would be a tell, an indication whether the jury had convicted Jeremy of all twelve counts or just some of them. If it was all, Mr. Craig would have no need to refer to the sheet; he could simply say the word “Guilty” each of the twelve times he was asked. So, too, if all of his responses were to be “Not guilty.”

“With respect to the first count of the indictment,” said the clerk, “charging the defendant with the crime of murder. How do you find the defendant, guilty or not guilty?”

William Craig lifted the verdict sheet and looked at it. So it was to be a split decision, Jaywalker immediately knew, a mix of convictions and acquittals. Guilty of murder but not manslaughter, for example. Or, God willing, the other way around. It had come down to that, Jaywalker the atheist praying for the compromise verdict he’d begged the jurors not to settle on.

“Not guilty,” said Mr. Craig.

Jaywalker exhaled ever so slightly and thought he felt Jeremy do the same alongside him. So it was going to be a manslaughter conviction. A victory of sorts, one most lawyers would be thrilled with, given how close they’d come to a murder conviction.

“With respect to the second count of the indictment,” said the clerk, “charging the defendant with the crime of manslaughter in the first degree. How do you find the defendant, guilty or not guilty?”

“Not guilty.”

A muffled cry came from the spectator section directly behind Jaywalker. Carmen or Julie. The judge banged his gavel, harder and more angrily than Jaywalker would have thought necessary.

Nine more times the clerk asked William Craig how the jury had found the defendant, of second- and third- degree manslaughter, reckless endangerment, menacing, two degrees of assault and three degrees of unlawful possession of a deadly weapon. Nine more times Mr. Craig, still checking his verdict sheet, spoke the words, “Not guilty.”

Only on the twelfth and final count of the indictment was his answer different. “Guilty,” he said, “with a recommendation of-”

Wexler banged his gavel repeatedly, loud enough to drown out the rest. Only when the courtroom had fallen silent, save for some muffled sobbing from the rear, did Mr. Craig take the opportunity to say “leniency.”

Jaywalker and Jeremy slumped down into their seats like a pair of marionettes whose strings had suddenly been cut.

“Do you wish the jury polled?” Jaywalker heard the judge asking him. He was about to say no, it wasn’t necessary. The twelfth count of the indictment had charged Jeremy with a violation of the New York City Administrative Code that made it unlawful to fire a gun within city limits. It was an unclassified misdemeanor that carried a maximum sentence of six months in jail or a five hundred dollar fine. Jeremy had already done a year in jail, the equivalent of time served. If anything, the system owed him six months change. So no, he had absolutely no problem at all with the verdict.