The Tenth Case Read online

  And never did she retreat one inch from her insistence on her innocence. Not when Jaywalker cornered her repeat edly during his mock cross-examinations, not when he confronted her with some new damning piece of evidence, not when he lied to her one day and told her that Tom Burke was willing to let her serve as little as four years if only she would plead guilty to manslaughter, not even when he proposed that she take a lie detector test. In fact, she readily agreed to the suggestion, and it was Jaywalker who vetoed the idea. Polygraph examinations, he'd learned long ago, were useful tools. But their value pretty much began and ended with finding out who was willing, or even eager, to take one and who was afraid to, a test Samara had passed. In terms of their actual scientific validity, well, he was fond of saying there was a reason polygraphs weren't ad missible in court.

  There were times when Samara's denials moved him close to the point of believing her. But then he would refocus on the evidence and on the two questions for which he had absolutely no answers: If Samara hadn't murdered Barry, who had? And how had they managed to leave things in such a way that everything pointed at her?

  Having begun with her arrest two Augusts ago, Sa mara's case was now about to enter its third calendar year, a considerable span for a criminal case but not all that unusual for a murder prosecution involving a defendant out on bail. Yet when they went back to court in the second week of December, it was clear that Judge Sobel was under pressure to move the case to trial. Whether that pressure was the result of the simple passage of time, came from the urging of Tom Burke, or was a response to a renewed interest on the part of the media was unclear. Jaywalker secretly suspected that the disciplinary committee judges, their patience tested over the length of his suspended sus pension, might have had a hand in it. But after sixteen months of delays, he was hardly in a position to complain.

  "January fifth," said the judge, "for hearing and trial. And, counsel?"

  "Yes?" said Jaywalker and Burke in unison.

  "Clear your calendars, because that's a date certain."

  It was how judges warned lawyers to set aside all other business and be ready to start without fail. If the admoni tion posed any sort of logistical problem for Burke, he offered no complaint. Assistant district attorneys are, in a very real sense, associates in a large law firm. When or dered to trial, they simply pass their other business on to other assistants, other associates in the firm. Jaywalker, all of whose other business had long ago been set aside or passed on, made a note of the date in his otherwise spotless pocket calendar and circled it.

  "I can do that," he said.

  With the trial less than a month away, Jaywalker really got down to business. He met half a dozen times with Nicky Legs, and together they interviewed several of the people on Barry Tannenbaum's enemies list. The co-op board presi dent, a beady-eyed retired navy SEAL, readily admitted that he'd feuded with Barry but laughed at the suggestion that he'd murdered him. The building's super, an earnestlooking Puerto Rican, was shocked at the thought. "Me? Kill Tannenbaum? I no killer. I change lightbulbs, wash windows, fix locks, clean ovens. I no kill Tannenbaum."

  But the two individuals who interested Jaywalker the most, Barry's accountant and his former lawyer, refused to be interviewed. "You want me to testify," said the lawyer, "you serve me with a subpoena. Otherwise, don't bother me." The accountant said pretty much the same thing, albeit more politely. "Whatever I have to say," he told Jay walker, "I'd prefer to say in court," leading Jaywalker to suspect that the two might have talked the matter over together, and to wonder if Burke might be planning on calling one or both of them as witnesses.

  He increased his sessions with Samara, both in fre quency and duration, gradually polishing the rough edges off her. Her locker-room language gave way to an accept able version of plain English. Her denials took on more plausibility. Her eye contact, never a problem, expanded to take in the imaginary jurors, as well as her questioner. But Jaywalker also knew when to quit. He didn't want her to come off as rehearsed. Memorizing a few key phrases was good, but not at the expense of spontaneity. By the end of the month, she was good enough that he called a halt to their sessions. It was a hard thing for him to do, but he knew it was time. Samara would be a good enough witness. Under different circumstances, she might even have been a great one. But the problem had never been her. From day one, the problem had always been the facts.

  And two days before the year ended, when other New Yorkers were returning presents, recovering from over eating and readying themselves for yet another round of parties, Jaywalker convinced Tom Burke to take him on a tour of Barry Tannenbaum's penthouse apartment. Jay walker was surprised to see the yellow-and-black crime scene tape still in place. But Barry had lived alone and on the top floor, and evidently its presence hadn't bothered anyone enough to remove it. Now a detective who had ac companied them lifted the tape above their heads, broke the seal, unlocked the door and let them in.

  It struck Jaywalker as a modest enough pied-à-terre, by billionaire standards. A thirty-foot living room, formal dining room, den, library, study, kitchen, pantry, three bed rooms, and four and a half bathrooms. And Samara had been right about the kitchen: there was no oven or range in sight, only a small microwave on the countertop. The room was at one end of the apartment, meaning it shared a common wall with the adjacent penthouse, no doubt kitchen-to-kitchen. The woman next door probably had a TV set in her kitchen, where she'd no doubt been when she'd heard Samara and Barry arguing the evening of his murder.

  Jaywalker walked to the window. As did most of the windows, it faced north, providing a commanding view of Central Park. Off to the east and west were the roofs of other, lower buildings. You were high above everything else here. Whoever had murdered Barry hadn't had to worry about being seen doing it, not unless there'd been a Peeping Tom at work that night in a helicopter, with a Hubble quality telescope trained on the penthouse windows.

  On the quarry tile kitchen floor was the outline of a body, just like you saw on TV shows. A large area of tile, toward the midsection of the outline, was stained almost black. People tended to think of blood as red, Jaywalker knew. But dried, it darkened and became almost unrecog nizably black. He'd discovered that the hard way. It had been after his wife's surgery, after the chemotherapy and the radiation, after the last of the time-buying transfusions. It had been after he'd signed her out of the hospital against medical advice and brought her home to die. Each morning there would be blackened clots on her pillowcase, a few more than the morning before. Each day he would throw the pillowcase away and replace it with a fresh one. Then, after a week, the stains began to be smaller, and he dared to hope for a miracle, one last remission. But the truth was, she'd simply been running out of blood.

  "This is where it happened," said the detective.

  "No shit," said Burke.

  It did seem pretty obvious, but Jaywalker had long ago learned not to trust the obvious. "How do you know?" he asked.

  "No other blood," said the detective.

  "Unless the killer cleaned it up."

  "Ever try getting blood outa this kinda tile?"

  "No," said Jaywalker, who'd never tried to get blood out of any kind of tile, at least so far as he could recall. "And everything's exactly the way it was?"

  "Yup. The first officer on the scene secured it right away. We haven't even let the maid in, or the real estate brokers in to get a look at it. And I've got to tell you, we could've made a bundle by giving one or two of 'em a sneak preview. Had to tell them sorry, no peeking until after the conviction."

  "Suppose there is no conviction?"

  The detective laughed politely, to let Jaywalker know that he'd gotten his joke. But when they left a few minutes later, he was back to all-business, locking the apartment door, replacing the broken seal with a new one and restring ing the crime scene tape.

  Jaywalker celebrated New Year's Eve home alone, having turned down an offer from Samara to come over. Some things didn't change, he guessed. He was
still a moron. But the professional in him, or at least what was left of the professional in him, knew that no matter how much you wanted to, you didn't sleep with your client. Not till after the case was over, anyway. By which time, of course, it would be too late. Last he'd checked, they weren't allowing conjugal visits on Rikers Island.

  He made it to midnight this time, draining the final drops from his last bottle of Kahlúa. There would be no place in his life for alcohol once the trial began, he knew. And as far as sleep was concerned, well, there would pretty much be no place for that, either.

  17

  PANEL ENTERING

  "Calendar number one," read the clerk, "for trial. The People of the State of New York versus Samara Tannen baum."

  Once again they took their places at the defense table in the front of the courtroom. "Are The People ready?" asked Judge Sobel.

  "Yes," said Tom Burke.

  "The defendant?"

  "Yes," said Jaywalker.

  "Bring in the panel."

  He'd done it a hundred times, two hundred. He knew the case now, forward, backward and inside out. He could have delivered his opening statement at a second's notice. Hell, he could have delivered his summation, if called upon to do so. He was as ready as any lawyer had ever been for any trial. Yet none of that kept the butterflies from making their presence known. They were beating their wings now, just beginning to flap wildly, rising somewhere between his stomach and his throat. They would quiet down soon enough. They always did, the way a prizefighter's nerves quieted down with the first punch, or a quarterback's with the first completion. But for the moment, they were all he could feel, the butterflies.

  They'd barely been around the day before, when they'd had the suppression hearing. Of course, there'd been no jurors then, and the whole thing had lasted barely an hour. Burke had called a single witness, one of the two detectives who'd gone to Samara's town house the day after the murder. She'd invited them in, he testified, and answered their questions willingly. She'd denied having been at her husband's apartment the previous evening, and then, when told she'd been both seen and heard there, she'd changed her story. She'd denied that they'd argued, and then she'd admitted that, too, once they'd confronted her with the facts. At no time during the interview had Samara been in custody. It was only when she'd said she wanted to call a lawyer that the questioning had stopped and they'd arrested her. Sub sequently, the detectives had applied for and obtained a search warrant for her home, and it had been during that search that they'd found the knife, the blouse and the towel, hidden behind the toilet tank of an upstairs bathroom.

  Jaywalker had gone into the hearing knowing he had no chance of getting any evidence suppressed. But he'd wanted to put Burke through it anyway, to use it as discov ery. On cross-examination, Jaywalker had asked the detec tive a dozen or so questions, nailing him down on a couple of things he wanted to use at trial and generally sizing him up as a witness. He'd called no witnesses of his own; there had been no reason to expose Samara to cross-examination. Better to save her for the trial, when he would be needing her, than to give Burke a crack at her now.

  As expected, Judge Sobel had refused to suppress any thing. Samara's statements had been noncustodial, he ruled, and therefore required no Miranda warnings. And since they'd been voluntarily made, they hadn't tainted the issuance of the search warrant.

  They'd then had a Sandoval hearing, a misnomer, be cause it wasn't really a hearing at all—no witnesses were called—but a legal argument. Burke wanted to be able to bring out Samara's six-year-old drunk driving conviction if she were to take the stand at trial, on the theory that the jurors might feel it adversely affected her credibility. Jay walker argued against it. The conviction had been for driving while impaired, he pointed out, which was only a traffic infraction. Unlike a conviction for perjury, fraud, or even larceny, it had little to do with credibility and every thing to do with prejudicing the jury against Samara. The judge had agreed. Burke would be prohibited from asking about it, unless Samara were to testify that she'd never been arrested or convicted of anything. As for the Las Vegas arrest for attempted soliciting, or whatever the charge had been, Burke either didn't know about it or realized it was too old to ask about. Whichever was the case, Jaywalker wasn't about to bring it up.

  "Anything else?" the judge had asked.

  There'd been nothing else.

  "Panel entering!" announced a court officer, and a hun dred and twenty prospective jurors were ushered into the courtroom. They carried overcoats, hats, briefcases, tote bags, shopping bags, umbrellas, books, knitting, laptops, cell phones, lunch bags and whatever else they'd thought to bring with them to the courthouse that morning. They looked at the judge, at the lawyers, at the court officers, and at the American flag and the curious IN OD WE TRUST sign on the wall above it. But mostly they looked at Samara Tannenbaum. Stared at her, to be more precise. With jury selection looming, the media had recently rediscovered the case, and any of the prospective jurors who claimed over the next two days to know nothing about the defen dant or the crime she stood accused of—and there would be a handful—were either brain-dead, living on another planet or flat-out lying.

  Jaywalker, sitting next to the object of the stares, did his best to project an attitude of quiet confidence. Right now, as the prospective jurors took seats in the long rows of benches that made up the spectator section, he was speaking with his client, one hand on her shoulder, the way a father might speak with a daughter. Look at me, he was telling the jurors. Look at how I trust her. I'm sitting right next to her, talking with her, touching her, making contact with her. There's nothing scary about her, no reason for me to be afraid of her. Or for you to be, either, for that matter.

  The touching was a big part of it, so much so that there was actually one judge in the system who'd gone so far as to prohibit it altogether. Jaywalker, who personally be lieved that the consensual touching of another adult was a form of expression protected by the First Amendment, had persisted in doing so, despite several mid-trial warnings. His behavior had cost him a contempt citation, a thousanddollar fine and a one-night sleepover date at Rikers Island.

  But he'd won the trial.

  Judge Sobel didn't have a no-touching rule, and Tom Burke either hadn't noticed or was too confident of his case to worry about it. Even Jaywalker himself knew that it was going to take a lot more than touching Samara to get her off. In fact, jury selection itself posed a huge prob lem for him. Going into a trial, Jaywalker almost always had a preconceived notion as to what kind of jurors he wanted on that specific case. Because the process was a crapshoot—meaning you never really knew what you were getting with any particular individual—you were pretty much reduced to playing hunches and going with the odds. And going with the odds meant you followed stereotypes. Prosecutors invariably looked for establishment types— clean-shaven, Republican-voting, white businessmen who showed up wearing suits and ties, carrying leather attaché cases. Jaywalker sought out ethnic minorities drawn to teaching, social work and the humanities, people who would no more put on a necktie to do jury service than they would rent a tuxedo to watch a ball game on TV. He looked for those young enough to still be idealistic, or old enough to have learned how to forgive. Unemployed was good, a military background bad. Irish, Germans and Italians were to be avoided as tough on crime, blacks and Jews embraced as empathetic toward underdogs. Crime victims were suspect, while those who'd been accused of crimes were sought after. And so the guessing game went.

  But beyond stereotypes, it was the nature of the case— and, even more so, the nature of the defendant—that dictated what type of juror Jaywalker wanted. If his client was African-American, he wanted blacks; if Hispanic, he wanted fellow Latinos. If the case was likely to turn on the word of police witnesses, he wanted jurors from Harlem who knew that cops stole and lied. People who viewed them as oppressors, in other words, rather than protectors. If it was sympathy he needed, he wanted women. But not just any women. No, he wanted wo
men who took in HIV-positive foster children, looked after crack babies, volunteered at soup kitchens and read to the blind in their spare time.