The Tenth Case

18

When he'd begun trying cases, more than twenty years ago, Jaywalker had been schooled in the Legal Aid Meth od. Whatever you did, they'd taught him, never commit to any single defense or trial strategy, lest something happen in the middle of the trial to turn you into a fool and your client into a convict. Keep your options open at all times. Play things close to the vest. Adopt a wait-and-see attitude. Avoid unnecessary risks.

The first way you put those guiding principles into action, they explained, was to refrain from making an opening statement. Or, if you absolutely insisted upon making one, you were to keep it short, general and non committal. Talk, if talk you must, about maintaining an open mind, waiting until all the evidence was in before drawing any conclusions, and keeping your eyes and ears open, and your nose to the grindstone.

To Jaywalker's way of thinking, it made no sense at all. As far as he was concerned, about all you got by keeping your nose to the grindstone was a smaller nose.

Still, he'd given it a try. And what he'd gotten for being a good soldier were convictions. Not always, but a good half of the time out. "Fifty percent acquittals?" said his supervisor. "That's fabulous! "

Not to a perfectionist, it wasn't. Not to Jaywalker.

So over time he gradually abandoned the Legal Aid Method in favor of the Jaywalker Method. By the time he went out on his own two years later, he was committing to a particular trial strategy long before jury selection even began. He knew precisely what his defense would be, whether or not his client was going to testify, what he would say when he did, and how he would say it. And he told the jurors, at the very first opportunity.

He discovered that the opening statement, long avoided as nothing but a death trap by the mavens at Legal Aid, pre sented the perfect opportunity to shape the course of ev erything that followed. Why wait for a poorly educated, inarticulate defendant to haltingly tell his story from the witness stand, interrupted by questions, objections and rulings until it came out like some jerky, stop-and-go amateur home movie, when Jaywalker himself could present it to the jury in free-flowing, wide-screen, threedimensional, stereophonic, living color?

Almost immediately, his acquittal rate jumped to seventy-five percent. And while he continued to work on perfecting the rest of his trial skills until that number would climb into the low nineties, never again would he miss an opportunity to open, and to open expansively.

Samara's case would be no different.

That said, months had gone by in which Jaywalker had had absolutely no clue what he could possibly say in his opening. The problem was a direct corollary of his cer tainty that not only was Samara guilty as charged, but that her case was all but unwinnable.

A lot of criminal defense lawyers-including Jaywalker himself in the early days of his career-went into such a trial hoping to somehow discover a defense in the testi mony. A key prosecution witness would fail to material ize, perhaps, or recant his previous version of the facts. A cop would screw up, either in his paperwork, on the stand, or both. An inexperienced prosecutor would inadvertently leave something important out of his case. Manna would fall from the heavens.

But Jaywalker had come to learn that on overwhelming cases, there were always other witnesses who would show up, who wouldn't recant. That there would be other cops who wouldn't screw up. That Tom Burke was not only ex perienced, but talented and extremely thorough. And that manna rarely, if ever, fell from heaven. So going into the most daunting trials, along with bringing his own experi ence, talent and thoroughness, Jaywalker always brought something else with him. Always.

What he brought was a theory.

And he would share that theory with the jurors early on, so that even as the prosecutor's evidence came in and piled up and threatened to crush the defense table with its sheer weight, the jurors would at the very least have an alterna tive framework in which to consider that evidence.

There was another thing Jaywalker liked to do, and that was to concede things. If he was trying a possession of stolen property case, for example, he would readily concede that the property had in fact been stolen, that the defendant had indeed possessed it, and that it was even worth whatever dollar amount the prosecution's expert claimed it was. But, Jaywalker would argue, the defendant hadn't known it was stolen, and without that essential knowledge, he wasn't guilty. Making concessions not only narrowed the focus of the trial to something debatable, it carried the added benefit of earning both Jaywalker and his client credibility with the jury, so that when it came time to argue about whether or not the defendant had known of the theft, the jurors were open to the possibility that he hadn't. After all, he'd been so forthcoming and honest in admitting all those other things, didn't it follow that his one denial deserved deference?

Weeks ago, when Jaywalker had finally allowed himself to at least consider the remote possibility that Samara wasn't guilty, he'd been forced to come up with a theory of defense. The lack of phone calls to or from Barry after she'd gotten home had left her utterly without an alibi. Selfdefense wouldn't work, with Samara continuing to insist she'd never stabbed Barry, not even to protect herself from attack or abuse, whether real, threatened or merely imag ined. And with Samara looking and sounding perfectly normal and having no history of mental illness, insanity was out of the question.

It had been the discovery of the Seconal, along with Samara's insistence that she knew absolutely nothing about it, that had ultimately provided Jaywalker with a theory. Someone had framed Samara. Someone had murdered Barry and then gone to great lengths to not only cover his own tracks, but to plant evidence making it look as though Samara had committed the crime. He'd been smart enough to know that in looking to solve a murder, particularly one without a robbery component, the police invariably focused their suspicions on the husband or wife, boyfriend or girl friend. And hadn't they done just that in Samara's case?

Sure, it was a long shot. But when you were down to one shot, it didn't much matter how long or short it was. You took it, and you hoped for the best.

Now it was time to tell the jurors about it.

For the first time since they'd been selected, the jurors took their permanent seats, assigned to them in the order in which they'd been chosen. They were sworn in once again, this time as a body. The judge then spoke to them for twenty minutes, explaining their function and his, and outlining the course of the trial that was about to begin in earnest. Then it was Tom Burke's turn to open. He spoke for fifteen minutes, pretty much following the book that all prosecutors seem to use. First he read the indictment, lin gering an extra beat on the word murder. Then he com pared his opening statement to a table of contents, a guide to what he intended to prove through his witnesses and by his exhibits. Next he got down to specifics. He told the jurors about the discovery of Barry Tannenbaum's body; the next-door neighbor's account of having heard Barry and his wife "Sam" arguing; Samara's lies to the detectives; the finding of the bloodstained evidence in her town house; the DNA match of that evidence to a known sample of Barry's; and finally the piece de resistance, the motive, the life insurance policy application, complete with Samara's signature. It was strong stuff, and Jaywalker couldn't help but notice that more than a single pair of jurors' eyes rolled upward as the list grew in length and weight. Finally Burke did what all prosecutors do.

"At the end of the evidence," he said, "the rules will provide me another opportunity to address you. And at that time I'll ask you to find the defendant guilty as charged, guilty of the murder of her husband, Barry Tan nenbaum." Then he thanked them and sat down.

Under New York law, prosecutors are required to deliver opening statements; they're given no say in the matter. Defense lawyers get to choose. This apparent inequity is really no inequity at all. It's nothing but a logical exten sion of the rule that the prosecution bears the burden of proving guilt, while the defense bears no burden at all.

Judges routinely inquire of defense lawyers ahead of time whether they intend to open or not, and in this regard Judge Sobel had been no exception. Jaywalker, who'd been up all night going back over his opening, had known forever that he would open; he always opened. Nonethe less, when asked by the judge earlier that morning, before the jury had entered the courtroom, he'd answered, "It depends upon what Mr. Burke has to say in his remarks." It was a lie, to be sure, but a harmless one, meant to fool no one. And judging from the grins it brought from both the judge and Burke, it didn't.

Still, like everything Jaywalker did during the course of a trial, the lie had its purpose, and that purpose be came clear now.

"Mr. Jaywalker," said the judge, "do you wish to make an opening statement on behalf of the defendant?"

For a second or two he just sat there, as though ponder ing the offer and trying to decide whether to take the judge up on it or not. Eighteen pairs of eyes peered at him from the jury box. Finally, he said, "Yes, I do," gathered some notes, decided not to use them after all, rose from his chair and walked to the front of the jury box.

"It is August," he tells them, starting off in a voice so soft that the jurors in the second row have to lean forward and cock their heads just to hear him. No introduction, no "Mr. Foreman, ladies and gentlemen," no "May it please the court." Just "It is August."

"Not this past August, but two Augusts ago. Samara Tannenbaum has been invited to her husband's apart ment for dinner. If that sounds strange to you-and it sure sounds strange to me-the evidence will show that while the couple shared a home in Scarsdale, both Barry and Samara had their own separate places in the city. Theirs was not a perfect marriage, by any stretch of the imagination."

A couple of jurors smile, and there's even an audible chuckle. As Jaywalker's voice gradually rises, they no longer need to crane forward to hear him. Still, none of them have settled back into their seats. None of them are looking anywhere but into his eyes. Thirty seconds into his opening, and he has them.

"They eat Chinese takeout food. They argue about something foolish, as they almost always do. They raise their voices, call each other names. Sometime around eight o'clock, Samara, having had enough, gets up, says goodnight and leaves. There has been no fight, no struggle, no physical contact whatsoever. Absolutely no crime of any sort has been committed.

"Samara hails a cab and goes directly home. Tired, she goes to bed before ten. Without showering or bathing, without so much as washing her hands and face, in fact."

A juror in the first row picks up on the significance of that and nods thoughtfully. Jaywalker fights the impulse to include Samara's little detail about having "jerked off." He's decided that as credible as the addition might be, it's decidedly a double-edged sword.

"Later that same day, two detectives show up. Samara, who's never been overly fond of cops, lets them in anyway. When they begin asking her questions about her and her husband, but refuse to tell her what it's all about, she decides it's none of their business and barely gives them the time of day. In fact, she lies to them, telling them she hadn't been at Barry's the evening before. As soon as they tell her they know otherwise, she admits it. They ask her if she and Barry fought, and she says no. They spend a few minutes debating the difference between a fight and an argument. And then, just like that, they slap handcuffs on her and arrest her for murdering her husband."

If only it were so simple, thinks Jaywalker, if only that's all there was to it. But there's more, much more, and like it or not, he has to deal with it. So it's theory time.

"Members of the jury, you are about to embark on the journey of a lifetime. Nothing you've ever been through, in all your years, will have fully prepared you for it. And nothing you will ever experience over the rest of your lives will even come close to matching it. Put your hands firmly on the armrests of your seat, and hold on as tightly as you can. And make sure you use both hands. Because this isn't going to be just one journey, but two."

A few of them-not all, but a few-actually do as they're told, grip the armrests of their seats.

"Mr. Burke has ably and forcefully outlined the first journey for you. His is a journey that's going to take you from one piece of evidence to the next, and then to the one after that. And each piece of that evidence, whether it comes to you in the form of a witness's testimony, some physical object or a sheet of paper, is going to point over whelmingly to the guilt of Samara Tannenbaum. That's right, you heard me correctly. If you choose to take that first journey, and that first journey alone, you'll end up con vinced that Samara's guilty. Because it'll all be there right in front of you, served up on a silver platter. Samara's presence at Barry's apartment shortly before the murder. Their voices raised in argument. Her initial lie to the de tectives. A knife capable of having caused the fatal wound hidden away in her home, along with a blouse of hers and a towel, all three of them with Barry's blood on them. A month-old application for an insurance policy on Barry's life, with Samara's signature on it. The policy that was issued, worth twenty-five million dollars in the event of Barry's death. A perfect motive, if ever there was one.

"Jurors, you can confine yourselves to this one journey, the journey Mr. Burke has outlined for you. If you decide to do that, it'll take you no time at all to become convinced of Samara's guilt, and you'll come out of this trial thinking that this was the strongest case there ever was. And in a sense, you'll be right. Strong? The word doesn't begin to do it justice. Try o verwhelming. Airtight. Perfect. So perfect, in fact, that it should scare the living daylights out of you and make you ask yourselves if things are ever, e ver, so perfect in real life.

"Because, jurors, there's another journey you can take, if you're up to it. If you dare. A second journey through the very same evidence outlined by Mr. Burke. A second journey I beg you to take, implore you to take. This journey begins with a proposition, a proposition that flows from the rule of law that asks you, r equires you, demands of you, that you presume Samara innocent. It's a proposition that, if you give it a chance, may explain why this case seems so in credibly strong, so utterly convincing, so absolutely perfect, when almost nothing ever is in this world we inhabit.

"And here-" dropping his voice again now, forcing them to lean forward once more "-is the proposition. Samara Tannenbaum is being framed."

The collective gasp is so audible that Jaywalker fears he's gone over the top and lost them. But there's no turning back. All he can do now is repeat himself, dig in, and hope that one or two of them will stay with him.

"That's right," he says, " framed. As you listen to the evidence, jurors, try not to be dazzled by it. Shield your eyes from the blinding light, protect yourselves from the blast of heat, and try to see through to the core of it, the essence, the part that truly makes sense. The damning items found in Samara's home, for example. Was that really where she would have hidden them, if indeed she'd mur dered her husband? In a place where they were absolutely sure to be found? The life insurance policy. Did she really expect to collect twenty-five million dollars on a policy taken out a month before murdering her husband? Did she think nobody would notice? This woman who lives in the glare of publicity? Come on, she's smarter than that, and so are you. The clumsy, obvious lies to the detectives. Proof that Samara's a murderer? Or that she's simply someone who doesn't particularly like cops, especially cops who seem to be prying into the details of her mar riage? The fact that she argued with her husband. Earth shaking? Or a pretty common thing? The list goes on and on. What you'll find is that every single piece of evidence against Samara has a flip side to it, if only you'll allow it to reveal itself.

"So, jurors, there's an easy way to look at this case, and a hard way. Mr. Burke makes it all sound easy. In fact, he's already told you that at the end of the trial he'll be asking you to convict Samara. He's told you that, as a matter of fact, before you've had a chance to hear one single word of testimony. Think about that for a minute. Me? I'm not asking you to acquit Samara. I have no right to do that at this point, not before you've heard the evidence. What I'm asking you to do instead- all I'm asking you to do, in fact-is to take both journeys, the obvious one and the notso-obvious one, the easy one and the hard one. I'm asking you to listen with both ears, to watch with both eyes, and, if you detect something a little foul in the air, to smell with both nostrils.

"Who's framing Samara? I don't know. I wish I did, but I don't. Maybe the evidence will yield a clue or two. Maybe not. But remember this-I have no burden of proof in this trial. I don't have to identify the framer. Nor do you. At the end of the day, it will be enough if you walk back into this courtroom, look us squarely in the eye and tell us that, having taken both journeys through the evidence, you are unable to say that you are convinced that my client is guilty of murder, and that you are certainly unable to say you are convinced beyond all reasonable doubt."

He turned from them, walked back to the defense table and sat down. He'd spoken for almost half an hour. He had no idea if he had them or not. At very least, though, he'd presented them with a theory-a proposition, he'd called it-and none of them had laughed. That itself he counted as a victory of sorts.

The bad news, of course, was that the evidence was about to begin.