Overkill

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, nowwould 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.

“I think February or March is realistic,” he said. “I’ve got a couple of witnesses to locate. One is out of state, and the other is out of the country.”

“This case is already fourteen months old,” said Wexler. The implication was clear.

“So it is,” said Jaywalker. “And that’s exactly how much time Ms. Darcy has had to prepare. I’ve had three months.”

“February first,” said the judge. “For trial.”

“That’s a Sunday,” observed the court clerk.

“Terrific. February second.”

And that was Harold Wexler on a good day.

“What witnesses?” Katherine Darcy asked Jaywalker as soon as they were outside the courtroom.

He could have told her it was none of her business. Under New York rules, neither side was under an obligation to reveal the names of its witnesses at this point, and with a few specific exceptions like alibis and psychiatrists, the defense was never required to do so. But Jaywalker was a horse trader at heart, and he immediately sized up the question as an opportunity to learn something.

“Who wants to know?” he asked in mock seriousness.

“Never mind,” she said. All serious, no mock.

“Don’t you ever lighten up?”

“Of course I do,” she insisted. “Only this is a murder case, and a bad one.” And with that, she began walking away, toward the elevator bank.

“Got any good ones?” he asked, lengthening his stride to catch up to her without making it too obvious.

“You know what I mean.”

“Let me guess,” he said. “You mean it’s an execution.”

“Don’t make fun of me.”

“Listen,” said Jaywalker. “Do you have anything else on?”

Her response was to glance down at her dress, then to look back up at him with a mixture of confusion and panic. Had it been a New Yorker cartoon contest calling for a caption, his entry would have been, “What do you have, X-ray eyes?”

He decided some clarification was in order. “In court, I mean. Do you have anything else on in court? Like