Overkill

Finally Jaywalker told them about one witness he was going to call. “And the name of that witness-” and here he paused just a beat for effect, being careful not to overdo it “-is Jeremy Estrada.” He asked them if they could listen to him with their minds open despite his prior brush with the law, despite his quiet voice, his habit of speaking slowly, and his perhaps not being the smartest kid they’d ever come across. In the run- up to a presidential debate they might have called all of that lowering expectations, and the phrase could be applied pretty well to trials, as well.

One by one the jurors assured Jaywalker that they could still be open-minded, just as they did when he told them they would witness sobbing from the victim’s grieving parents, see gruesome photos of the deceased, learn grisly details from the medical examiner, and hear the word execution from the prosecutor’s lips. The jurors’ assurances, once again, were hardly the point. The idea was to get these things out in the open now, to strip away from them as much of their shock value as Jaywalker possibly could. And to get the jurors to remember, as each of the things would in turn come up during the course of the trial, that they already knew that and had promised not to be influenced by it. So implicitly, without even being aware of what they were doing, the jurors were agreeing to discount the prosecution’s evidence-not in the sense of ignoring it altogether, but in the other, more literal meaning of the word: to devalue it, to mark it down drastically even before Katherine Darcy had had a chance to call a single witness to the stand.

Of such little things are trials won or lost.

This was Monday. It would take them until late Thursday afternoon to complete the process. It was a murder trial, after all, a class A felony that carried a mandatory life sentence, and each side had the full complement of twenty peremptory challenges to use. And the thing was, there wasn’t that much daylight between the type of jury Jaywalker was looking for and the one Katherine Darcy wanted. Sure, Jaywalker preferred renegades, loners, anti- establishment types, while Darcy was seeking people more compliant and less likely to question the government’s case. But notwithstanding that difference, their concerns were remarkably similar. Both the defendant and the victim were Latin Americans; both had been young at the time of the incident; both had had prior encounters with the law that included drug arrests; and both had sympathetic family members who would testify at the trial. Those similarities made for less-than-obvious choices when it came time to either challenge or accept a particular juror, and for the better part of four days the lawyers engaged in something of a cat-and-mouse game, trying to shape the final product in sometimes subtle ways.

Throughout the process, Jaywalker was struck by how controlled Darcy was. Not just conservative in her choices, but careful about how she played. Her guiding principle seemed to be retaining a numerical edge over Jaywalker at all times. The challenges were exercised in rounds, meaning that both sides were presented with eighteen prospective jurors at a time and forced to strike those they didn’t want, right then and there. Faced with such a now-or-never dilemma, Jaywalker felt compelled to challenge jurors about whom he was on the fence. He couldn’t afford to let someone slip by who might turn out to be a closet law-and-order type who couldn’t wait to take over deliberations and engineer a conviction. Darcy, on the other hand, seemed more preoccupied in guarding her challenges so that when the end game came, as it finally did on Thursday afternoon, she would have a greater say in the last few jurors selected.

That said, they ended up with a jury that, had you woken Jaywalker up during the middle of the night and asked him for his opinion, he would have had to admit that while he wasn’t in love with any of them individually, as a group they weren’t all that bad. There was William Craig, 53, white, an electrical engineer, and by virtue of having been the first juror called to be selected, the foreman; Lucille Hendricks, 67, black, a retired elementary school teacher; Gladys Leach, 44, white, a homemaker; George Gonsalves, 38, Hispanic, a Wall Street trader; Miriam Goldring, 51, white, a registered nurse; Sanford Washington, 60, black, a probation officer; Lillian Koppelman, 58, white, a sales clerk; Vincent Tartaglia, 33, white, unemployed; Consuela Marrero, 24, Hispanic, an administrative assistant and college student; Desiree Smith-Hammond, 32, black, a waitress and aspiring actress; Walter van der Kaamp, 72, white, a retired history professor; and Jennifer Wang, 28, Asian, a Web site master. Five men, seven women. Six white, three black, two Hispanic, one Asian. Average age, 45. All things considered, they could have been a lot worse. Jaywalker had had juries that were all white; juries stacked with government employees, bankers and actuaries; juries so timid or fearful that their responses to questions were all but inaudible; and juries whose average age was deceased. Against that sort of standard, Jeremy Estrada’s jury struck him as pretty good.

But if Jaywalker was satisfied with the result of four days’ work, Harold Wexler wasn’t. Ignoring the fact that it was already after five o’clock, he directed the clerk to call the names of twenty more jurors-they were by that time on their fourth panel of seventy-five each-from which they would select four alternates. The clerk sighed, the court officers grumbled, and the stenographer called for someone to relieve her. But Wexler pushed on. He’d promised the lawyers they would have a jury by the close of business that day, and he wasn’t about to let the time or a little grumbling stand in his way.

It was almost nine o’clock by the time Jaywalker got home, time to change his clothes, wash his face, make himself something to eat and grab four hours of sleep. He set his alarm for 3:00 a.m. But he needn’t have; he knew full well he’d be up anyway. Tomorrow was Friday, and he’d have the weekend to recuperate.

Some cases, Jaywalker had long ago learned, were won during pretrial investigation and preparation, which was why he obsessed over those endeavors like no one else. Others cases were won by tactics and strategy, the way a chess match was won, by outplotting your opponent. And some were won by brilliant questioning of the witnesses, whether on direct examination or cross. But this case, Jaywalker was firmly convinced, wasn’t going to be won by any of those things. This case was going to be won by whichever side succeeded in telling the better story. The facts that underpinned that story, to be sure, would come from the mouths of witnesses. But to Jaywalker’s way of thinking, not one of those witnesses-not Teresa Morales, not the medical examiner, not Jeremy’s mother or sister, not even Jeremy himself-would be able to dictate the jury’s verdict. When the evidence was finally in, the winning side wasn’t going to be the one with more witnesses or better exhibits. It was going to be the side whose lawyer had put it all together and told the better story.

For the defense, that story would be divided into two parts. Jaywalker liked to think of them as bookends at the far opposite ends of a shelf. In between them would be everything else: the prosecution’s case, the defense case, the competing accounts of the various witnesses, the physical exhibits, the objections sustained or overruled. But all of that stuff was pretty much predetermined, fixed long ago by what people had seen and heard and photographed and drawn and written down and committed to memory, accurately or not. It might contain a surprise here or there, and an effective direct or cross-examination might enhance or undermine it a bit. But only a bit. Because all that stuff was static, in the sense that it was history. What was different, what was still to be written, was how each lawyer took that raw material and shaped it into a narrative that provided the jurors with a lens to view the case through, until they had a meaningful understanding of not only what had happened, but why it had happened. And with that understanding, they would ultimately either convict Jeremy or acquit him. That was the dynamic part of the case, and that was where Jaywalker was going to win it, if ever he was going to. And Friday would bring with it his first real chance to set his plan in motion. Friday would be the day of his opening statement, the first of the two bookends.

13

I HAD A SON

The sixteen jurors-twelve regulars and four alternates-were led into the courtroom and seated in the order they’d been selected. Judge Wexler addressed them for twenty minutes, outlining what they should expect over the coming week or two, instructing them on several basic principles of law, and describing both his role in the trial and theirs. Then he called upon Katherine Darcy to open on behalf of the People.

As Jaywalker had by that time fully expected she would, Darcy delivered a coherent, competent opening statement. Barely glancing at her notes, she demonstrated a comfortable command of the facts. She made the obligatory comparison between her opening and the table of contents of a book. She read the indictment, word for word. She outlined what witnesses she would call and, in broad strokes, what each of them would say. Then she told them that once all the evidence was in, she would have another opportunity to address them, at which time she would ask them to find the defendant guilty of murder. With that she sat down, barely fifteen minutes after