Overkill

He had Jeremy brought over two days later for a counsel visit. The two trips to Rikers Island had worn Jaywalker out. He figured it was Jeremy’s turn to travel.

“What’s up?” Jeremy asked, his eyes puffy from the 3:00 a.m. wake-up.

“The D.A.’s willing to give you a manslaughter plea,” Jaywalker told him. “But only if we agree to a twenty- five year sentence.”

“How much do I do on that?”

“Around twenty.” A dozen years back, truth-in-labeling had come to sentencing. Gone were the days when a judge could sentence a defendant to a public-pleasing thirty-year prison term, confident the parole board would quietly let him go home in six months.

“Do I have to take it?” Jeremy asked.

“Of course not.”

“Will you be mad at me if I don’t?”

“Jeremy, this isn’t my case. It’s yours.”

“And you’ll still fight your hardest for me, even if I don’t take it?”

“Absolutely.”

Jeremy’s mother was somewhat more empathetic.

“That’s too much time, Mr. Walkerjay. He was only a boy. They made him do it.”

Jaywalker tried to explain that he was simply the messenger. But the distinction seemed totally lost on Carmen Estrada. “Jew gotta do better for him,” she insisted. “I’m paying jew a lotta money here. Jew gotta get him less time, a lot less.” And she handed him another envelope, this one with seventy-five dollars in it.

A lotta money indeed.

They went back before Judge Wexler in mid-October. He ruled on Jaywalker’s motions, predictably refusing to dismiss the murder charge or reduce it to manslaughter. He postponed until just before trial any decision on whether the prosecution would be entitled to ask Jeremy Estrada about his prior arrest if he were to take the stand. When it came to the issue of the fairness of the lineup at which Teresa Morales had picked Jeremy out, the judge turned to Ms. Darcy.

“You’re saying the identification was purely confirmatory?”

“That’s correct.”

“They knew each other?” the judge asked.

“So to speak.”

“What she’s trying to tell you,” said Jaywalker, “is that Teresa Morales is one of the gang members who stalked the defendant for three months.”

“Gang members?” said Wexler and Darcy in unison.

Jaywalker let out a snort, a hybrid somewhere between a laugh and a grunt. The existence of gangs in the five boroughs had long been one of the city’s dirty little secrets. Gangs were a phenomenon supposedly restricted to other places, like the Watts area of Los Angeles, the South Side of Chicago, and pretty much all of Newark and Camden, New Jersey. New York City might have a colorful history of Irish Westies and Italian Mafiosi, but when it came to modern counterparts with names like Bloods and Crips and Latin Kings, the official word of the day was denial. So Jaywalker’s use of the term had bordered on burn-him-at-the-stake heresy.

“Please forgive me,” he said. “The last thing I want to do is to disparage the emperor’s new clothes.”

“You’ll have to excuse Mr. Jaywalker,” said Wexler to Ms. Darcy. “From time to time he mistakes my constant smile and jovial good humor as an invitation to make bad jokes.”

“Let me withdraw the term gang,” said Jaywalker. “How about marauding band of drug-dealing thugs?”

“How about instead we get to the point?” suggested the judge. “How many times, Ms. Darcy, had your witness encountered the defendant prior to the incident?”

Which, of course, was precisely what Jaywalker had wanted to hear all along. If her answer were to be “just once or twice,” then the lineup hadn’t been merely confirmatory, and the defense would be entitled to a pretrial hearing on its admissibility. If, on the other hand, she were to say “a dozen or more,” that fact would play nicely into Jeremy’s claim of constant, continued harassment at the hands of the Raiders.

Ms. Darcy’s hesitation to answer suggested she recognized the trap. “I don’t know the precise number,” she said.

“Perhaps,” said Wexler, “you could give us a ballpark figure. Like more than five, ten to twenty, less than a thousand.”

“Less than a thousand,” she said, apparently taking the judge literally.

“She likes to play things close to the breast.” As soon as the words were out of Jaywalker’s mouth, he knew they didn’t sound quite right. He hoped the other two had missed it. But Harold Wexler never missed anything.

“I believe,” he said, “that the expression is close to the vest.”

“That, too.”

“Once again, Ms. Darcy, you’ll have to forgive Mr. Jaywalker. If only a small fraction of recent rumors are to be credited, his competence before the court is rivaled only by his legendary exploits between the sheets.”

Jaywalker could only wince, while Katherine Darcy actually blushed, something Jaywalker thought had gone extinct around 1940, along with fainting couches and lace handkerchiefs.

“Listen,” said the judge. “Can’t we resolve this case? Is there still no offer here?”

“As a matter of fact, there is an offer,” said Ms. Darcy, happy to move on. “I’ve told counsel that Mr. Estrada can have the first-degree manslaughter plea if he wants it.”

“With twenty-five years,” added Jaywalker.

“Fair enough,” said Wexler. “Mr. Jaywalker?”

“We’re not even close. He’d take five, maybe six or seven, though I’d probably have to break his arm. But twenty-five? That’s way-”

“Let me make my own position clear,” said the judge. “I’m strongly inclined to agree with Ms. Darcy’s assessment of this case. The first shot doesn’t disturb me too much. But the second one, the one at point-blank range between the eyes, as the victim lies on the ground begging for his life? I think execution is an appropriate description of that. So the defendant can have the twenty-five years and be out in twenty. Or he can go to trial, get convicted of murder, and have the exact same twenty-five years, but as his minimum, with life as his maximum. His choice. I could care less. Next case.”

If you happen to be a devotee of old black-and-white Westerns, as Jaywalker had been in his youth, you soon learn that long before the arrival of Technicolor, things were already pretty much color-coded. The good guy almost invariably sported a white hat and rode a white horse, or perhaps a palomino, if white horses happened to be in short supply. The bad guys just as uniformly wore black and rode black.

Just three weeks ago, Katherine Darcy had been the villain in Part 55 for the sin of refusing to offer a manslaughter plea. She’d quickly discovered it was a role she didn’t enjoy playing. So she’d done something about it. She’d offered Jeremy Estrada the plea, but only on the condition that he accept the maximum allowable sentence of twenty-five years. Now the judge had not only agreed with her and adopted her position as his own, he’d threatened to impose the maximum sentence for murder if the defendant rejected the offer and the jury were to convict him of the top count.

Or, put another way, in the short space of three weeks, Jaywalker had gone from good guy to bad guy. He would ride into trial wearing the black hat, astride the black horse. The judge would do everything in his power to make sure there was a guilty verdict on the murder count. Not that he would be obvious about it. Harold Wexler was much too smart to be heavy-handed in dispensing biased justice. No, he’d do it in small and subtle ways, all but unnoticeable to both a jury and an appellate court reviewing a transcript. But the cumulative effect would be absolutely devastating.

Welcome to Tombstone.