The Tenth Case

12

In terms of trial preparation, the difference between having a client in jail and having one out on bail is all the differ ence in the world. Conversations that would otherwise have to be conducted in whispers through bars or wire mesh, or over antique telephones, can suddenly be held in normal tones, unimpeded by physical barriers. Documents that would have to be copied and mailed, or slid through security slits, can instead be studied shoulder to shoulder. Friendly witnesses can be approached as a unified team, rather than by a solitary stranger bearing a dubious letter of introduc tion scribbled on a square of jailhouse toilet paper.

The very act of getting a client out of jail also tends to win the trust of that client in a way that little else can, short of actually winning an acquittal. Especially when the charge is murder, and the odds against getting bail set had seemed almost as prohibitive as those that it was someone else's blood besides Barry's on the items found in Samara's town house.

It was Jaywalker's hope, and in fact his honest expec tation, that he would be able to parlay that newly earned trust into getting Samara to level with him, to finally tell him the truth about what had happened the evening of Barry's death. While the terms of her release kept her largely confined to her home, they allowed her to travel to and from the courthouse, her lawyer's office and a short list of stores, so long as she phoned ahead to announce her intention, and received permission to come and go. The least infraction would land her back on Rikers Island, Judge Sobel had promised her. And should she attempt to remove the electronic monitoring device, or cut the bracelet that fastened it to her ankle, a signal would be automati cally transmitted to the corrections department, and she could expect to be apprehended within thirty minutes. Still, it was a lot of freedom, compared to the conditions she'd lived under for the previous month.

There was yet another reason why Jaywalker held high hopes that Samara would come clean with him. They were co-conspirators now. Each of them had played a role in a scheme to obtain bail under what amounted to false pre tenses. As was typical of his signature stunts, Jaywalker hadn't exactly broken the law, though he'd come about as close as he could without ever quite crossing the line. Nothing he'd said to Judge Sobel had been literally untrue. Samara had indeed become a target on Rikers Island. As much as Jaywalker hated playing the race card, the com bination of his client's whiteness, her prettiness, her size and her notoriety had been too much for the other inmates to ignore. She'd been taunted, cursed at, spat at, shoved and slapped around. Even the business about a sexual assault had been true, though it had amounted to little more than a hallway groping. What's more, Samara had called the corrections commissioners. But she'd done so only because Jaywalker had instructed her to, knowing full well that the commission's investigation would have the precise neg ative repercussions that it turned out to.

For her part, Samara had accentuated her physical decline by starving herself of both food and sleep. Her daily visits to the courthouse allowed her to miss her twoa-week showers; while she made a concession to that dep rivation when it came to deodorant, the absence of sham poo took a visible toll on her hair. As far as the shiner, the forehead gash and the bandaged hand were concerned, Jaywalker neither knew nor particularly wanted to know the details, but her rapid recovery from all three ailments strongly suggested they'd been greatly exaggerated, if not out-and-out self-inflicted.

So they were in this together, this soon-to-be-suspended lawyer and his malingering murderer of a client. And Jay walker had every reason to hope that, just as it's said that there's honesty among thieves, so too would there be candor between conspirators.

He made his first stab at it in his office, five days after he'd walked Samara out of the courthouse. She was half sitting, half reclining on his sofa, an old thrift-shop thing that a lot of Naugas must have surrendered their hides to cover. He sat half a room away, by design safely en sconced behind the barrier of his desk. It wasn't Samara he was afraid of this time; it was he himself Jaywalker didn't trust.

"Listen, Samara," he said.

"I'm listening."

"I need you to talk to me."

"Once upon a time-"

"Stop," he said. "I know you're happy to be out, and I'm happy for you. But this is serious. I mean I need you to talk to me about the case."

"What about it?"

"Well, for starters, you were the only one at Barry's apartment that evening. The two of you have an argument, loud enough to be heard through the wall of a prewar building. After you leave, the apartment suddenly be comes quiet. Barry's body gets found the next day with a fatal stab wound to the heart. Along with a blouse and a towel, a knife is found hidden away in your place. All three have Barry's blood on them. Nobody but you had been there since his death. When questioned by the police, you lie about having been at Barry's, and about having argued."

"Looks bad, huh?"

"Yes, it looks bad." Jaywalker realized that, almost un consciously, he'd gradually been lowering his volume as he'd progressed through his narrative, and at the same time he'd slowed his tempo. It was his sad voice, his voice of the inevitable. By using it, he'd been verbally putting his arms around Samara from across the room, hugging her to him as a father might hug a daughter, all the while calming her, patting her, stroking her softly. With the modulation of his voice, he'd been telling her that it was all right for her to let go of the awful burden that came with not being able to share some terrible secret. He'd been trying to make it seem that her not opening up to him would be infinitely worse, nothing less than a betrayal, in fact, a signal that he wasn't a trustworthy friend after all, just another lawyer better kept at arm's length.

Now he put it into words, offering her the key. Lowering his voice even further, he looked into her eyes and said the actual sentence that needed to be said. "It's okay to tell me."

Samara sat up straight. For a second Jaywalker's ego got the better of him, and he readied himself to hear her mea culpa.

"You know what?" Samara asked him.

"What?"

" Fuck you, that's what." Then she said it again, at least the Fuck you part, as though he needed to hear it more than once. Then she stood up, grabbed her jacket and said, "Can I use your phone? I've got to tell them I'm going home."

"Sit down, Samara."

The firmness of his own voice took Jaywalker by surprise. It seemed to make something of an impression on Samara, too. She didn't actually sit down, but she did at least look his way and engage him.

"I don't care how bad things look," she hissed. "You can't possibly know I killed Barry."

Given her choice of the word know, Jaywalker was about to agree on a technicality, when he realized Samara had merely taken a midsentence breath and had more to say.

"Because I didn't," she added. "So fuck you for making it sound like I did. You have no right."

"Sorry," he said, "but not only do I have the right, I have the obligation. It's my job. It's what you're paying me the big bucks for. Look, Samara, you may not enjoy looking at the evidence and seeing how strong it is, but sooner or later that's exactly what a jury's going to be asked to do. So we've got a choice. We can stick our heads in the sand and ignore it, or we can talk about what they're going to see when they look. Besides which, if you didn't kill Barry-and you're right, I can't possibly know if you did or you didn't-it's only by looking at the evidence that we're ever going to figure out a way to win this thing."

That seemed to help. At least she sat back down.

But there are victories, and there are victories. Though they talked for another hour, not once did Samara even come close to admitting that she'd killed her husband. She was evidently one of those people, he decided, who found denial the toughest addiction of all to break.

Outside the lone window to the office, the November darkness was already settling in, and Jaywalker decided it was time to call a halt to the meeting. Samara phoned the corrections department to tell them she was heading home, well in advance of her eight o'clock curfew. Jaywalker shared a cab uptown with her, stopping directly in front of her building. Opening the door to get out, she turned to him and asked, "Want to come in?"

"Uh, I don't think that would be, uh, the best, uh… Know what I mean?"

Smiling at his embarrassment, Samara turned away and got out. He watched her until she'd unlocked the door of her building and disappeared from view. Then he gave his own address to the cabdriver. The man, who looked Middle Eastern and according to the placard on the partition went by the name of Ali Bey Ali, responded with something that sounded like Y oonorn. Though Jaywalker couldn't quite make sense of it, he figured it might have been New York, so he said, "Yes, New York." It was only twenty blocks later that it came to him.

The man had said, "You moron."

With Samara firmly in denial, Jaywalker realized that, in contrast to the way things had proceeded in her DWI case six years earlier, this time there would be no quick guilty plea. He was in the case for the long haul. Which meant it was time to prepare written motions. He had long ago devised a computer template for the purpose, and the following day he pulled it up on his screen. His motions, like most everything else about him, differed markedly from those of his colleagues. Where theirs were lengthy and exhaustive, asking for all sorts of things they weren't entitled to, his were short and focused. Where theirs cited long strings of cases that were rarely if ever on point, his rarely contained a single citation. And where theirs were written in florid and redundant legalese, his were crafted in crisp, short sentences. He'd tried preaching his method to those who were willing to listen, but he'd won few converts. The more pages a set of motion papers ran to, the more hours its creator felt justified in billing for. In the end, as so often happened, other lawyers tended to make more money, while Jaywalker got better results.

As required by the statute, Jaywalker made a motion to have Samara's indictment dismissed. But knowing it would be denied, he wasted little time on it. Ditto when it came to discovery. Tom Burke had already given the defense far more than it was entitled to under the statutory timetable, and he could be counted on to continue doing so. When it came to the matter of suppression of evidence, however, Jaywalker slowed down. This was the important part of motion practice, he knew.

The constitutions of both the United States and the state of New York prohibit, among other things, conducting un reasonable searches and compelling a person to testify against himself. For many years, if a police officer violated either of those provisions-say by searching an individ ual's home with no good reason, or by beating a confes sion out of a suspect-the officer could be prosecuted, administratively punished, even sued for damages. But those things happened about as often as Martian landings. Beginning in the 1950s, the Supreme Court (the real one this time, not the one on the upper floors of 10 °Centre Street) finally got around to realizing that if the prohibitions were to amount to anything in real life terms, the judges would have to come up with a more meaningful formula for discouraging police misconduct. What they came up with has come to be known as the exclusionary rule.

The exclusionary rule, surprisingly enough, means pretty much what it sounds like. It means that, in order to deter that unreasonable search or beating, the fruits of it will be excluded from trial, or suppressed. In a series of landmark cases, among them Mapp v. Ohio (search and seizure) and Miranda v. Arizona (confessions), the so-called Warren court added teeth to the exclusionary rule, by defining "unreasonable" and "involuntary" in broad terms. More recently, the so-called Rehnquist court did its level best to pull those teeth, but with no better than mixed results.

Written motion papers are the vehicle by which a defense lawyer seeks to trigger an evidentiary hearing, one in which witnesses testify, to determine whether something ought to be suppressed. If that something happens to be physical evidence, the lawyer must assert facts to support three things. First, he must demonstrate illegality, that an unreasonable search in fact occurred and led to the seizure of the evidence. Second, that there was state action, that it was some branch of law enforcement, whether federal, state or local, that conducted the unreasonable search. Third, that the defendant has the requisite standing to complain about the illegality, by being the person ag grieved by the violation of his reasonable expectation of privacy.

The knife, the blouse and the towel fit the bill nicely enough. There certainly had been a search, and if the affi davit in support of the search warrant recited less than probable cause to believe that Samara had committed some crime, then the seizure of the items was illegal. The detec tives were employed by the NYPD, satisfying the state action requirement. And Samara was certainly the person aggrieved by any illegality, since it was her home that had been searched.

The requirements are similar, though slightly different, when it comes to confessions or admissions, which are partial confessions, elicited from suspects. In that case the issue changes from whether the search was reasonable or not to whether the statement was voluntary or not. First, there must have been a statement made; defendants who make no statements therefore get nowhere by insisting they were never read their Miranda rights. Second, there must once again have been state action; the statement must have been made in response to questioning by law en forcement personnel. A spontaneous utterance therefore fails the test, as does a confession made to a private person. Third, the questioning must have taken place in a custo dial setting-at a point in time when the individual was under arrest or, at very least, under the impression that he wasn't free to leave. Finally, there must have been a failure on the part of the questioner to both advise the individual of his right not to answer, and to obtain from the individual a knowing and intelligent waiver of that right.

Samara's false exculpatory statements-first that she hadn't been at Barry's apartment that evening, and then that they hadn't argued-qualified as admissions. They were made to detectives, who were certainly law enforce ment personnel. And never did those detectives read her her Miranda rights, or obtain a waiver of them from her. Once she asked for a lawyer, there would have been no point to their doing so, since the questioning was effectively termi nated at that point. The stumbling block, Jaywalker knew, would be the custody issue. The detectives had been careful to question Samara before placing her under arrest. He would have to argue that their presence in her home, coupled with their overbearing demeanor, reasonably led her to believe that she wasn't free to leave or to kick them out.

It would be an uphill battle, to say the least.

When he was done, Jaywalker's motion papers ran to ten pages, longer than in most of his cases. Unhappy about the fact, he reminded himself that this was a murder case. And he took consolation from having seen lawyers bring ing motions to the clerk's office in shopping carts.

That afternoon, Jaywalker got a call from Nicolo LeGrosso.

"Howyadoon?" LeGrosso said.

"Okay," said Jaywalker. "Whadayagot for me?"

When Jaywalker's wife had been alive, she'd often com plained about his chameleonlike habit of seamlessly lapsing into the speech pattern of whomever he was talking to, whether it happened to be a defendant, a witness, a cop or someone else accustomed to butchering the English language. "Speak like a lawyer," she'd scolded him. "You'll never win their respect by sounding like one of them." He'd tried to explain that it wasn't respect he was trying to win, only cases.

Now that his wife was dead, he still heard her voice every time he broke her admonition. But he couldn't help himself. Four years in law enforcement had done it to him, the same way four years in the military probably would have, or four years in a locker room. And the truth was, he wouldn't have changed even if he could have. It was one of the things that drew people to him, made them feel at ease with him. It's not such a long leap, after all, from "He sounds like one of us" to "He is one of us."

"I got bobkiss, " said Nicky, proving that Italians who try to talk Jewish shouldn't. "Got the LUDDs and MUDDs you subpoenaed on your girlfriend's phones."

"She's not my girlfriend."

"Yeah, right. I seen her picture. I give you one month before you're in the sack with her."

Jaywalker thought about protesting, but let the remark go. You never won an argument with Nicky, he'd learned. Besides, he made it a policy never to bet against himself. "Anything on the phone records?" he asked instead.

"Nah. A couple of calls that night, but nothing to Barry boy."

"How about finding out if Barry had any enemies?" Jaywalker asked him. "Any luck there?"

"You bet," said Nicky. "A shitload of 'em, actually. Gimme a couple days, I'll have a whole who's who for you."

"Good."

Maybe one of them would turn out to have had a reason to kill Barry. And even if Jaywalker couldn't prove that some enemy had been able to get into the apartment that evening to do it, at least it would be a start. Because up until now, with unrelenting consistency, everything continued to point in Samara's direction. Something needed to happen, and it needed to happen soon.

Something did.

But when it did, it was anything but what Jaywalker was hoping for.

Tom Burke phoned to announce that Jaywalker now owed him not ten but twenty bucks.

"What?" Jaywalker asked. He'd forgotten what their double-or-nothing had been riding on.

"Motive," said Burke.

Jaywalker, who'd been standing up when he answered the phone, slumped into his chair, already feeling as though he might lose his lunch. Not that losing a bag of pretzels and a bottle of Snapple iced tea would be the end of life as he knew it.

"Check this out," said Burke, with barely restrained glee. "A month before the murder-actually thirty-three days, if you want to get technical-your client takes out a life insurance policy on her husband. Costs her a pretty penny, too, like twenty-seven grand. Want to guess how much the policy was for?"

"A trillion dollars." Jaywalker always went for the ri diculous in such conversations. That way he could pretend to be unfazed when he heard the actual lesser amount.

"Close," said Burke. "Twenty-five mil."

"Shit," said Jaywalker, way beyond fazed.