The Tenth Case

19

"The People call Stacy Harrington."

A lot of prosecutors like to start off with a bang, calling a key witness first. While this practice makes for exciting TV drama, it often accomplishes little more than confusing jurors.

Tom Burke was anything but a showman, and drama was the last thing he was interested in. In the choice of his leadoff first witness, he made it clear that it wasn't ratings he was after, but chronology and clarity.

Stacy Harrington, small, black and attractive, was employed as an executive assistant-a new title for the old job Jaywalker had grown up calling a secretary-in the offices of Tannenbaum International, Barry Tannenbaum's flagship company. She'd been among the first to notice Barry's lateness in showing up one August morning, a year and a half ago. And the thing about Barry, at least one of the many things about Barry, was that he was never late for anything.

MR. BURKE: What did you do, when he didn't show up?

MS. HARRINGTON: I called his home, both homes.

MR. BURKE: And?

MS. HARRINGTON: He didn't answer.

MR. BURKE: At either place?

MS. HARRINGTON: At either place.

MR. BURKE: What did you do then?

MS. HARRINGTON: I called the police.

MR. BURKE: Which police?

MS. HARRINGTON: The New York City police. It was my understanding that

Barry, that Mr. Tannenbaum, was staying in the city. And that way was easier. I just di aled 9-1-1.

MR. BURKE: And what, if anything, did the police tell you?

MS. HARRINGTON: They recognized the name.

They said they'd send some one over, and would contact the Scarsdale police and have them do the same up there.

Jaywalker asked no questions of Ms. Harrington. His rule of thumb was that less was better, and none was even better than less. Too many cross-examiners insisted on making a show of questioning every witness called by an adversary. To Jaywalker, that made no sense at all. If a witness hadn't said anything to hurt his client, why disguise that fact by asking questions? Why not instead highlight it by shrugging and saying that you had no questions?

Joseph Teller

The Tenth Case

Burke called Anthony Mazzini. Mazzini was the super intendent of the building in which Barry Tannenbaum had a penthouse apartment. Around midday, two uni formed police officers had arrived at the building. They'd explained that Mr. Tannenbaum hadn't shown up for work that morning, and that people at his office were con cerned for his welfare. After unsuccessfully trying to reach Tannenbaum by intercom and telephone, Mazzini had taken the officers up to the penthouse. There he'd rung the doorbell and knocked on the door, getting no response. Eventually he'd unlocked it with a passkey. The door hadn't been chained or bolted from the inside, and the alarm had been off. Mazzini had followed the officers inside.

MR. BURKE: Did you find anything unusual?

MR. MAZZINI: Unusual? Yeah, plenty.

There was a ripple of nervous laughter from the jury box.

MR. BURKE: What was it?

MR. MAZZINI: We found Mr. Tannenbaum laying on the kitchen floor in a mess of blood.

Once again, Jaywalker had no questions. Mazzini was actually on his short list of suspects, but he knew that now was no time to go after him. For one thing, the rules of evidence limited cross-examination to those topics covered in direct examination. If Jaywalker wanted to attack the super, he would have to call him later, during the defense case, and, if need be, have him declared a hostile witness. But even beyond that technical consideration, what was he going to do? Come right out and ask Mazzini if he'd murdered Barry and framed Samara?

Burke called Susan Connolly, one of the two "first officers" to arrive at the scene. Officer Connolly had quickly determined that Tannenbaum was dead, and had probably been dead for a number of hours. She and her partner had established a crime scene, prohibiting any un authorized personnel from entering, and seeing to it that nothing was moved or otherwise disturbed. Then they'd called their precinct commander, who'd told them to wait there until the detectives arrived.

MR. BURKE: Which way was the body facing?

P.O. CONNOLLY: Excuse me?

MR. BURKE: Was the body lying faceup or facedown?

P.O. CONNOLLY: Facedown, mostly.

MR. BURKE: Did either you or your partner ever turn it over?

P.O. CONNOLLY: No, sir.

MR. BURKE: Thank you. No further questions.

At that point Jaywalker decided he might as well take a shot and see if he could raise some questions about the previous witness.

MR. JAYWALKER: What about Mr. Mazzini, the super? What did he do?

P.O. CONNOLLY: He didn't touch him, neither.

MR. JAYWALKER: No, not what he didn't do, what he did do.

P.O. CONNOLLY: When?

MR. JAYWALKER: The entire time he was in the apartment.

P.O. CONNOLLY: I don't know. Stood around, mostly. Looked around.

MR. JAYWALKER: Looked around in various rooms?

P.O. CONNOLLY: I guess so.

MR. JAYWALKER: You yourself stayed with the body, though. Right?

P.O. CONNOLLY: Right, once we'd secured the area and made sure that there was no one else in the apart ment.

MR. JAYWALKER: I see. How long did it take be fore the detectives arrived?

P.O. CONNOLLY: (Refers to memo book)

Twenty-five minutes.

MR. JAYWALKER: When they arrived at the apart ment, did they have much con versation with Mr. Mazzini?

P.O. CONNOLLY: Some. I wouldn't say much.

MR. JAYWALKER: So he was still there?

P.O. CONNOLLY: I'm not sure.

MR. JAYWALKER: Didn't you just tell us the de tectives had some conversation with him when they arrived at the apartment?

(No response)

MR. JAYWALKER: Was Mr. Mazzini still there?

P.O. CONNOLLY: Yes.

MR. JAYWALKER: So by that time, he'd been there a good half an hour, right?

P.O. CONNOLLY: I guess so, right.

MR. JAYWALKER: Like you said, standing around, looking around in various rooms?

P.O. CONNOLLY: Right.

If it wasn't much, at least it was a start. It showed that the super, who had a passkey, had also had full access to the apartment the day after the murder. And that the integ rity of the crime scene had been compromised, a fact that jurors raised on a diet of O.J. and CSI might find troubling.

Then again, what was Jaywalker really doing here? Hoping for the cops to screw up? Waiting for manna to fall from the heavens? It seemed so.

They broke for lunch.

That afternoon Burke led off with Detective Anne Maloney. Maloney was assigned to the Crime Scene Unit, a fact that immediately grabbed the attention of the jury. Having labored for years in almost total obscurity, CSU had almost overnight become the darlings of the department. The agent of change, of course, had been the television set. Programs like CSI, along with myriad spinoffs and com petitors, had thrust the unit into the forefront of police work. These days, if you were to canvas a roomful of twelve- to fourteen-year-olds, you'd likely find that of all the careers the youngsters aspired to, crime scene technician outpolled its nearest competitor by a margin of twenty to thirty per centage points. Kids no longer wanted to be doctors, movie stars, shortstops, firemen or forest rangers; they wanted to be David Caruso or Marg Helgenberger. (Assuming, of course, that they couldn't be the next F antasia.)

Detective Maloney was no American Idol. Plain and a bit on the stocky side, with a pageboy haircut straight out of the fifties, she was all business. She and fellow members of her unit had arrived at the scene at, as she put it, "fourteen forty-five hours." Translated for the jury, that was a quarter of three in the afternoon. She'd found that the apartment had been secured by two uniformed patrol officers, who'd es tablished a crime scene, indicated by the presence of familiar yellow-and-black tape at the door to the apartment.

Inside, things had seemed quite orderly, with two excep tions, both in the kitchen. First, there were a half-dozen half-empty cartons of Chinese food spread out on the coun tertop. And then there was the floor. On it was a body, sub sequently identified as that of Barry Tannenbaum.

MR. BURKE: Can you describe the condition of the body for us?

DET. MALONEY: It was dead.

Her understatement drew a few nervous snickers from the jury box.

MR. BURKE: I was actually hoping you could give us a little more detail.

The snickers erupted into laughter. Burke had a nice way of putting jurors at ease. That said, Jaywalker had no doubt that he'd planted that little bit of comic relief, even if he hadn't bothered telling his witness what he was doing.

Jaywalker knew that because, from time to time, he did the same thing with his own witnesses.

DET. MALONEY: The body was lying facedown, bent into a sort of fetal position. A significant amount of dried blood was visible underneath it.

MR. BURKE: Did you check for a pulse, or other vital signs?

DET. MALONEY: No. That had already been done, with negative results.

MR. BURKE: Did there come a time when you turned the body over?

DET. MALONEY: Yes. After photographing the body in the exact position we found it in, we turned it over.

MR. BURKE: And what, if anything, did you observe at that time?

DET. MALONEY: We observed

MR. JAYWALKER: Objection.

THE COURT: Yes, sustained. You can tell us only what you yourself observed.

DET. MALONEY: I observed a large area of what appeared to be a bloodstain on the front of the victim's clothing.

At this point Burke walked to the prosecution table and retrieved a large brown paper bag. Returning to the lectern, he withdrew an item and handed it to one of the uniformed court officers, who in turn placed it in front of the witness.

MR. BURKE: I show you what has been marked People's One for identification, and ask you if you recognize it.

DET. MALONEY: Yes, I do.

MR. BURKE: And what is it?

DET. MALONEY: It's a white cashmere sweater, the outer garment Mr. Tannen baum was wearing.

MR. BURKE: How do you recognize it?

DET. MALONEY: From the large stain on the front of it. Also, these are my initials, A.L.M. I wrote them on the label that day, in ink.

Burke repeated the process with the inner garment, a long-sleeved beige turtleneck. The stain on it was even larger than the one on the sweater. Both stains were almost black in color, with only a suggestion of red around the edges.

After photographing and examining the body, Maloney had conducted a search of the apartment, finding nothing remarkable and nothing out of place. There'd been no signs of a forced break-in, and nothing to suggest a burglary. From the absence of bloodstains anywhere else in the apartment, she'd been able to conclude that the victim had been killed right where he'd fallen.

Maloney had taken a series of photographs, which Burke now entered into evidence. She'd made measure ments and drawn a rough sketch, which she'd later enlarged into a poster-sized diagram, also received in evidence. She'd also dusted the apartment for fingerprints, paying particular attention to the Chinese food containers and the area around the doorknob to the entrance. She'd succeeded in lifting several latent prints, and she'd photographed several others. She'd also taken the fingerprints of the victim and the two uniformed officers, so their prints could be ruled out when comparisons would later be made.

Next, Burke had Maloney describe how she'd collected a number of hairs and fibers from the body and clothing of the victim. She'd retrieved each one with tweezers, inserted each into an individual plastic bag, and marked each bag with the specific location where the enclosed evidence had been found. Later, she'd catalogued the items and turned them over to the Criminal Identification Division for analysis.

Burke asked Maloney if her search of the apartment, or any of the areas surrounding it, had turned up anything in the way of a possible weapon. No, she replied. Along with other CSU members, she'd combed the hallway, the elevator bank, the trash area, the rooftop and even the air shafts and ground level beneath the apartment, all without finding a knife or similar instrument that might have been used in the murder.

Burke was finished with the witness, but before turning her over to Jaywalker for cross-examination, he asked Judge Sobel for permission to "publish" the diagram and the pho tographs. The judge agreed, and an easel containing the diagram was placed directly in front of the jury box, so that the jurors could see it. They leaned forward to look at it, but gave no sign that they were overly impressed with it.

The photographs were a different matter.

Prior to jury selection, Jaywalker had fought hard to keep them out. The worst of them showed Barry Tannen baum, lying facedown and slightly curled up, in a puddle of what looked like very, very dark red paint. In one par ticular photo, the body had been turned over to reveal a large stain of the same color on the chest area of Barry's otherwise white cashmere sweater. Jaywalker had lost the fight, and although he'd made a point of describing the photos during jury selection and eliciting the jurors'assur ances that they wouldn't be overwhelmed when they saw them, he now heard audible groans from the jury box. Death had a way of doing that, he knew. Especially gruesome death, recorded in glossy, 81/2 x 11" living color.

On cross-examination, Jaywalker asked Maloney if she'd fingerprinted Mr. Mazzini, as well.

DET. MALONEY: Who?

MR. JAYWALKER: Mr. Mazzini, the building superintendent.

DET. MALONEY: I didn't see any building superintendent.

MR. JAYWALKER: The officers didn't tell you he'd had the run of the apart ment for half an hour?

MR. BURKE: Objection to "run of the apart ment."

THE COURT: Sustained.

MR. JAYWALKER: Did the officers tell you that the super had let them in?

DET. MALONEY: Not that I recall.

MR. JAYWALKER: And that he'd remained in the apartment for a good half an hour?

DET. MALONEY: No.

MR. JAYWALKER: During which time he'd walked from room to room?

DET. MALONEY: No.

MR. JAYWALKER: If you'd known those things, would you have fingerprinted the super, as well?

MR. BURKE: Objection, calls for specula tion.

THE COURT: Sustained.

MR. JAYWALKER: Would it have been good po lice practice to fingerprint everyone who'd been in the apartment that day?

MR. BURKE: Objection.

THE COURT: Overruled.

DET. MALONEY: I guess so.

MR. JAYWALKER: You guess so? Or is the answer, "Yes, it would have been"?

DET. MALONEY: Yes, it would have been.

It wasn't much, but it was as good a place as any to quit. When it came time for deliberations, juries often requested read-backs of various witnesses' testimony, and Jaywalker liked to end on a positive note whenever he could. He'd even toyed with the idea of asking Maloney if she'd bothered to fingerprint the co-op board president, or Barry Tannen baum's accountant or his recently fired lawyer, knowing he would get a "Who?" from the witness. But he knew that line of questioning would also get him a series of objections from Burke and likely an adverse ruling from the judge, the combination of which would serve to dilute any gains the questions might earn him. Once again, less was more.

Next Burke called Roger Ramseyer, a detective assigned to the Criminal Investigation Division. Ramseyer had received a number of items brought in by Detective Ma loney, including latent prints, hairs and fibers. He'd sub sequently been supplied with fingerprint cards and sample hairs representing individuals who'd been known to have been in Barry Tannenbaum's apartment the day his body was discovered. He referred to the first group of items as "questioned" and the second group as "known." Burke took him carefully through each item.

With respect to the latent, or questioned, fingerprints found in the apartment, Ramseyer was able to make positive comparisons to the known prints of Barry Tannenbaum, Police Officer Susan Connolly and Samara Tannenbaum. Specifically, Samara's prints had been found on the interior doorknob to the apartment, as well as the exterior doorknob and lock plate, two of the Chinese food containers, and on two glasses, one empty, the other partially filled with water. Two hairs removed from Barry Tannenbaum's sweater proved to be of human origin and microscopically indistin guishable from known hair samples supplied by Samara. And one red silk thread, also lifted from Barry's sweater, was similarly indistinguishable from the red threads of a multicolored silk woman's blouse, separately delivered to Ramseyer by a different detective, two days later.

Jaywalker started to rise to object, but decided against it. The detective who'd brought the blouse in hadn't testified yet, so technically there'd been no proper foundation laid as to where the blouse had been found. But the judge would no doubt either take Ramseyer's testimony about the threads subject to later connection or make Burke recall his witness later on in his case. Either way, Jaywalker's victory would be short-lived, and in the long run it would only place more emphasis on the testimony. Better to let it in unchallenged. Trying to keep it out would only highlight it for the jury.

So, too, with the reliability of hair and fiber compari sons. Jaywalker had tried enough cases and done enough reading to know that the science behind such testimony was shaky, particularly when judged by DNA standards, or even against fingerprint research. But he had little interest in showing off, and none in disputing Ramseyer's conclusions. His defense, he'd already told the jury, was that his client was being framed. She'd been in Barry's apartment on the evening of his murder, and she was going to testify to as much. It was only to be expected that her fingerprints would be found there, on the food containers she ate from, the glass she drank from, and the doorknob she turned to let herself out. So, too, her hairs, and even a fiber from her clothing. Either those items had ended up on Barry's sweater naturally or they'd been planted there. No mileage was to be gained by arguing with Ramseyer that the scientific basis for his findings might be dubious.

So when Burke finished with the witness, Jaywalker had only a few questions for him.

MR. JAYWALKER: Detective Ramseyer, did you end up with any latent prints that you still would have to classify as "unknown"?

DET. RAMSEYER: Yes.

MR. JAYWALKER: How many?

DET. RAMSEYER: May I review my notes?

MR. JAYWALKER: By all means. In fact, why don't you turn to the top of page four of your report.

DET. RAMSEYER: Thank you. Yes, I was left with six unknown prints, corre sponding to four individuals.

Jaywalker asked him the same question with respect to hairs and fibers. The detective answered that he'd been left with four unknown hairs, belonging to three individuals, and three unknown fibers, each one indistinguishable from the others.

MR. JAYWALKER: So you ended up knowing for a fact that at least four additional individuals left their fingerprints in the apartment. And three or four individuals, perhaps the same ones, perhaps not, left human hairs or fibers on the victim's body or cloth ing. Is that correct?

DET. RAMSEYER: That's correct.

MR. JAYWALKER: And yet you have absolutely no way of telling us who those people were?

DET. RAMSEYER: Correct.

MR. JAYWALKER: Tell me, detective. Were you ever supplied known finger prints, hairs or fibers corre sponding to one Anthony Mazzini?

DET. RAMSEYER: No, sir.

MR. JAYWALKER: Corresponding to one Alan Manheim?

DET. RAMSEYER: No, sir.

MR. JAYWALKER: To one William Smythe?

DET. RAMSEYER: No.

MR. JAYWALKER: To one Kenneth Redding?

DET. RAMSEYER: No.

MR. JAYWALKER: Thank you.

It was after four-thirty, and Jaywalker guessed that Judge Sobel would adjourn for the day. But Burke indi cated at the bench that he had a short witness he'd like to get in before they broke.

"Who is he?" the judge asked.

"She," said Burke. "The victim's sister."

"Body ID?" Jaywalker wanted to know.

Burke nodded.

"I'll stipulate," Jaywalker offered. He was ready to concede that it was in fact Barry Tannenbaum who'd been murdered, and the last thing he wanted was a sobbing relative on the stand, particularly at the end of the day.

"No, thanks," said Burke, who had the right to refuse Jaywalker's offer.

"Keep it brief," said the judge.

As soon as they'd returned to their tables, Burke called Loretta Tannenbaum Frasier. A stooped-over woman was led into the courtroom. By Jaywalker's estimate, she couldn't have been five feet tall, even in shoes. A short witness, indeed.

As soon as she'd been sworn in and had identified her self as the victim's sister, Jaywalker stood up, the judge's ruling notwithstanding. "We're quite willing to concede that it was indeed her bother who was murdered," he said. "If that's what calling this witness is all about."

"You may proceed, Mr. Burke," said Judge Sobel, as annoyed at Jaywalker's theatrics as Jaywalker was at Burke's.

With a shrug that would have done Samara proud, Jay walker sat down. But he'd made his point. As early as jury selection, one of the things he'd warned the jurors about was that the prosecution might bring in a grieving family member to stir their sympathies. What's more, he would remind them of this stunt in his summation. But for the moment, all he could do was feel sorry for this poor little woman whose only brother had been stabbed to death.

Just as the jurors were no doubt doing.

Then again, had Jaywalker been in Tom Burke's shoes, he would have done the same thing. Hell, he would have brought in a dozen family members, each one of them sobbing more pitifully than the previous one.

To his credit, Burke got to the point with Mrs. Frasier and didn't overdo things. When Jaywalker indicated he had no cross-examination, they broke for the day.

They'd gotten through six witnesses, and Samara wasn't dead yet. But to Jaywalker, that was little comfort. Tom Burke was a good lawyer with a strong case, albeit a cir cumstantial one. He was putting it together brick by brick. If the first day's witnesses had only touched Samara tan gentially, that was by design. Tomorrow would be another day, Jaywalker knew. The jurors would hear from the real witnesses, the detectives who'd investigated the bulk of the case. They would tell the jurors about Samara's lies, what they'd found hidden in her apartment-and her motive.

The worst, in other words, was yet to come.