The Tenth Case

20

Jaywalker had left court Thursday afternoon expecting Tom Burke to begin the next day's session by calling one of the two detectives who'd "caught" the case and done the major investigative work on it. But Burke called Jaywalker at home that evening to let him know that the detective would be unavailable, and that as a result Burke would be reshuffling the order of his witnesses.

"Thanks for letting me know," said Jaywalker, who was genuinely appreciative. He'd long had mixed feelings about what sort of prosecutor he liked going up against at trial. There were the sneaky ones, and there were the open ones, of which Burke was a perfect example. But the thing was, with the sneaky ones, Jaywalker could feel free to fight fire with fire. With someone like Burke, he was com pelled to return decency with decency. Not as much fun sometimes, but in the long run, probably better for every one. "By the way," he asked Burke, "how'd you get my home number?" It was unlisted, and although Jaywalker gave it out freely enough, he didn't remember Burke's ever having asked for it.

"Ve haff our vays," said Burke.

They shared a laugh, and said they'd see each other in the morning. Jaywalker poured himself a cup of coffee, his third of the evening, all sans Kahlua, and retrieved the files he now knew he would have to review for Friday, thanks to Burke's sense of fair play.

A week or so before the trial had begun, Burke had confided to Jaywalker that he was putting in an applica tion for a Criminal Court judgeship and might ask Jay walker for a written letter of recommendation.

"I'd be delighted," Jaywalker had said. "But me? I mean, you do know what they think of me, don't you? I could be the kiss of death."

"Nonsense. Just because they can't figure out how to control you, it doesn't stop them from knowing you're the best there is."

"Cut the bullshit. I said I'd write the letter. You want it now?"

"No," Burke had said. "Wait till after the trial. You may hate my guts by then."

"I'm sure I'll hate your guts by then. But you can still count on the letter."

"Thanks," said Burke. "And when you write it, make sure you use my middle name, Francis. I understand there's an A.D.A. on Staten Island named Tom Burke who's thinking of putting his name in, too. Guy's supposed to be a total loser."

"Right, like you're not?"

Jaywalker smiled now, remembering the exchange. Robert Morgenthau, the octogenarian Manhattan D.A., had long enjoyed enough clout to get just about any of his assistants onto the bench, and he'd used that clout often, with generally good results. Contrary to popular wisdom, former prosecutors didn't always turn out to be tough judges, any more than former defense lawyers turned out to be lenient ones. Defense lawyers, after all, knew that their clients lied. Prosecutors, on the other hand, knew that cops lied, and a few prosecutors even had the balls to say so. Tom Burke was such a prosecutor, and he would make a terrific judge someday. The problem was that Bob Morgenthau, whether he knew it or not, couldn't afford to lose the Burkes in his office; there was a whole new generation of non-Burkes working their way up the ladder.

As he'd told Jaywalker he would, Burke led off Friday with the second of the two police officers who'd responded to Barry Tannenbaum's apartment and found him mur dered. Burke's purpose was a limited one, to show that the body in the apartment was the same one the officer had seen the following day at the morgue, waiting to be autop sied. The officer confirmed that it was, and Jaywalker had no reason to question him.

Next Burke called Charles Hirsch, the Chief Medical Examiner. Jaywalker knew Dr. Hirsch well from having cross-examined him on two previous murder cases. Thin and just slightly gawky-looking, Hirsch was an extraordi nary witness. He had a resume that ran to fifteen pages of advanced degrees, hands-on research, teaching fellow ships, academic positions and awards. He'd been qualified as an expert in forensic pathology in more courts than most lawyers set foot in during a lifetime. Jaywalker quickly rose and offered to stipulate to that expertise. This time, Burke accepted the offer, but he still spent a solid five minutes having Hirsch summarize his credentials. Without the stipulation, he could have gone on for hours.

MR. BURKE: Would you explain to the jury what you mean by the term "fo rensic pathologist."

DR. HIRSCH: Certainly. In its most basic mean ing, a pathologist is a physician who specializes in learning the cause or causes of death. A forensic pa thologist is a pathologist who brings that training and knowledge to the courtroom, where the disci plines of medicine and the law intersect.

Already, the jurors were ready to take this guy home and make him part of their families.

MR. BURKE: What is the primary tool em ployed by the forensic patholo gist?

DR. HIRSCH: That would be the autopsy.

MR. BURKE: And what is an autopsy?

DR. HIRSCH: An autopsy is a full postmortem examination of a body, both external and internal, aided by microscopic and other types of studies of various organs, chiefly the blood, brain and liver.

MR. BURKE: Over the course of your career, how many autopsies have you conducted?

DR. HIRSCH: I would say that I've personally conducted upwards of ten thousand, and been pres ent at and observed another five thousand.

MR. BURKE: I offer the witness as an expert in forensic pathology.

THE COURT: I believe Mr. Jaywalker has already stipulated that he is.

MR. BURKE: Did there come a time, Doctor, when you were called upon to perform an autopsy on the body of one Barrington Tannenbaum, also known as Barry Tannenbaum?

DR. HIRSCH: Yes, there did.

Burke had the witness recount the date, time, and con dition in which he'd first seen the body. It had been fully clothed, the upper half covered by a white cashmere sweater with a large dark-red stain covering the chest and upper ab dominal area. Removal of the sweater had revealed a camel colored cotton turtleneck pullover, with a corresponding stain even larger than that on the sweater. Beneath the pullover, Dr. Hirsch had observed a large amount of what appeared to be dried blood, covering the chest area. He'd proceeded to wash the blood away with a saline solution and had observed a wound. He described the location of the wound, first in reference to the midline of the body, then in terms of its distance from the soles of the body's feet.

MR. BURKE: Would you describe the wound itself for us.

DR. HIRSCH: Yes. It was a laceration, specifi cally

MR. BURKE: Let me stop you. What's a laceration?

DR. HIRSCH: A laceration is a cut in or through the skin, as opposed to an abrasion, which is a rub bing away of the skin, or a contusion, which is a bruising of the skin.

MR. BURKE: Thank you. I believe I inter rupted you midsentence.

DR. HIRSCH: There are several types of lacera tions. There are elongated lacerations, in which the skin has been sliced open. There are punctures, in which the skin has been torn by an object coming into contact with it at more or less a right angle, in other words perpendicular. And there are combinations of the two, where the angle is significantly shallower. In this particular case, I was able to determine that the wound was a puncture, just about perpendicular to the surface of the chest.

MR. BURKE: How large was the wound?

DR. HIRSCH: Superficially, that is, on the sur face, it was about three quarters of an inch in length, from left to right, by about one sixteenth of an inch in width. In terms of penetration, it was approxi mately five inches deep.

MR. BURKE: Were you able to determine where it led to?

DR. HIRSCH: Yes. By inserting a metal probe and following the path of least resistance, I was able to track the wound from its point of entry at the skin, and from there through the various layers of fat and muscle tissue. Whether by luck or design, it passed between two of the victim's ribs. From there it en tered the chest cavity and proceeded through the wall of the pericardium. The pericardium is a sac that sur rounds and contains the heart. Once inside the peri cardium, the track continued and entered the left ventricle of the heart, rupturing it.

MR. BURKE: What happens when the left ven tricle of the heart is ruptured?

DR. HIRSCH: Unless there's immediate medi cal intervention, massive bleeding occurs. That bleeding can be into the chest cavity, into the lungs, or out of the entrance wound itself.

MR. BURKE: And in this particular case?

DR. HIRSCH: In this particular case, it was all three. The individual bled into his chest cavity and his lungs, as well as out through the entrance wound. Hence the blood we see on the upper body garments he was wearing. Furthermore, the amount of blood on those garments, which was fairly significant, sug gests that the instrument that had caused the wound was removed relatively quickly, probably before death. Otherwise, given the narrowness of the wound, the continued presence of the instrument would likely have acted something like a cork or stopper, limiting the volume of blood that could have escaped through the wound.

MR. BURKE: Can you tell us, to a degree of medical certainty, what the cause of death was?

DR. HIRSCH: Yes. The victim's heart stopped because of a massive loss of blood. That massive loss of blood was the direct result of the rupture to the left ventricle of his heart.

MR. BURKE: From examining the wound, can you tell us anything about the instrument that caused it?

DR. HIRSCH: Yes. I can tell you that it was a thin blade of some sort, no more than three-quarters of an inch wide, and no more than a sixteenth of an inch in thickness. It was sharply pointed at the tip. It was at least partly serrated on the cutting edge.

MR. BURKE: How do you know that?

DR. HIRSCH: I know that because I was able to observe a jagged tearing pattern in the tissue along one edge of the wound track, as opposed to a smooth pattern along the opposite edge.

MR. BURKE: Can you tell us anything about the length of the instrument that pro duced the wound?

DR. HIRSCH: I can say with certainty that the blade was at least five inches in length. Otherwise, the tip would not have reached as far as it did. I am less certain about its maximum length, but my belief is

Jaywalker put one hand on the table in front of him, pre paring to rise. The witness was about to speculate, and an objection might well be sustained. But the last thing Jay walker wanted to do was give the jury the impression that he was trying to keep things out. Besides, from studying the autopsy report, he knew where this was going and didn't see how it would hurt. He decided to let the witness continue. Trials were like that. You had a split second in which to consider and weigh seven or eight variables before making a decision that might well determine the outcome of the entire trial. You learned to do it. After a while, you learned to do it without even thinking about it on a con

scious level. There was no room for the hesitant at trial, no place for the second-guesser. — that the blade was just about five inches, and no longer.

MR. BURKE: Upon what do you base that be lief?

DR. HIRSCH: I base it upon my observation of a small depressed area surrounding the skin at the very beginning of the wound track. That depression suggests to me that the instrument used to inflict the wound was a knife with a handle, and the hilt, the per pendicular part that separates the blade from the han dle and serves as a safety device of sorts, struck the skin with sufficient force to create a stamp, if you will. It's my belief that it was the presence of that hilt that stopped the knife from penetrating even deeper.

Furthermore, it very probably tells us the overall length of the blade, though certainly not that of the handle, or therefore the total length of the knife itself.

At that point Burke withdrew from underneath the lectern an item wrapped in brown paper. He identified it as People's Exhibit 5, for identification and subject to con nection. As before, he had a court officer hand it to the witness. Unwrapped, it appeared to be a silver-colored steak knife with a thin pointed blade and a serrated cutting edge. The blade looked to be about five inches long, by perhaps three-quarters of an inch wide. Separating the blade from the handle was a hilt.

MR. BURKE: Doctor, please take a look at that knife. First, have you ever seen it before?

DR. HIRSCH: Yes, you showed it to me several weeks ago, and again earlier this morning.

MR. BURKE: Are the properties of that knife consistent with the wound you observed during your postmortem examination of Barry Tannenbaum?

DR. HIRSCH: Yes, they are.

MR. BURKE: In every way?

DR. HIRSCH: In every way.

Finally Burke did what good prosecutors do. He antici pated the areas ripe for cross-examination and tried to limit any gains Jaywalker might be able to make in exploring them. Hirsch had identified some general health concerns during his autopsy of Barry Tannenbaum and addressed them in his report. Specifically, there had been evidence of fairly advanced prostate cancer, with infiltration into the colon and bladder. There had also been a tumor, about the size of a golf ball, in Tannenbaum's large intestine. Finally, the heart itself had been enlarged, and there was some evidence of old scarring. Taken together, according to Hirsch, these last two findings were indicative of chronic heart disease. More specifically, they suggested that at some time in the past, perhaps as far back as a decade or more, Tannenbaum had survived a heart attack.

MR. BURKE: Did any of those things, either separately or in combination with each other, contrib ute in any way to the death of Mr. Tannenbaum?

DR. HIRSCH: No, absolutely not. This death was clearly a homicide, caused by bleeding due to the rupture of the left ventricle of the heart. Nothing more, nothing less.

During the autopsy, Hirsch had removed samples of blood, brain tissue and liver, and submitted those samples for laboratory study. The results had come back in the form of serology and toxicology reports. A small level of ethanol had been detected, as well as a moderate amount of Seconal, a barbiturate.

MR. BURKE: First of all, what is ethanol?

DR. HIRSCH: Ethanol is ethyl alcohol. It's the kind we ingest when we drink a beer, a glass of wine or a mixed drink.

MR. BURKE: How about a straight drink?

DR. HIRSCH: That, too.

Which brought a couple of laughs from the jury box, perhaps at the expense of Burke's Irish ancestry.

MR. BURKE: Are you able to tell us how much Mr. Tannenbaum had had to drink?

DR. HIRSCH: Yes. He'd had perhaps a single drink, no more than one and a half, during the six hours preceding his death.

MR. BURKE: And the Seconal?

DR. HIRSCH: That's a bit harder to quantify. Two pills, three or four at most. In other words, the amount an individual would take in order to sleep, as suming he'd experienced difficulty doing so, and had built up a bit of tolerance to the medication over time.

MR. BURKE: And did either the alcohol or the Seconal, alone or in combination, contribute in any way to Mr. Tannenbaum's death?

DR. HIRSCH: Absolutely not.

Jaywalker knew better than to attack Hirsch, and the truth was, he had no reason to. The case wasn't about whether Barry Tannenbaum had been stabbed to death or not. He had, and everyone knew it. Still, there were a few points to be made. Cross-examination doesn't necessarily mean beating up a witness, Jaywalker knew. Often you could accomplish much more by adopting the witness as your own.

MR. JAYWALKER: Doctor, I'm interested in the expression Mr. Burke used when he showed you the knife and asked you if its properties are consistent with the wound sustained by Mr. Tannenbaum.

DR. HIRSCH: Yes.

MR. JAYWALKER: By agreeing, did you mean to say that this knife in fact caused the wound?

DR. HIRSCH: No. Only that it could have.

MR. JAYWALKER: I see. Might you care to esti mate how many other knives in the city could have caused the wound, just as easily?

MR. BURKE: Objection.

THE COURT: Overruled.

MR. JAYWALKER: Dozens?

DR. HIRSCH: Sure.

MR. JAYWALKER: Hundreds?

DR. HIRSCH: Yes.

MR. JAYWALKER: Thousands?

DR. HIRSCH: I'd say so.

MR. JAYWALKER: And this depression you de scribed, this stamp you believe was created by the hilt of whatever knife was used. Would I be right in con cluding that if you're correct about its origin, it tells us that considerable force was used in plunging the knife into the body?

MR. BURKE: Objection to "considerable."

THE COURT: Overruled. You may answer.

DR. HIRSCH: I would agree with "consid erable force." We would have had a better idea of just how much if the blade had struck a rib. Then some thing would have had to give. Either the rib would have fractured or splintered, or the blade would have bent, broken or stopped moving forward. But as I said earlier, the blade missed the ribs.

MR. JAYWALKER: So we'll never know for sure.

DR. HIRSCH: Exactly.

MR. JAYWALKER: And we'll have to settle for "considerable force."

DR. HIRSCH: Right.

MR. JAYWALKER: Suggesting that a rather powerful person was responsible for the thrust of that knife, and that he plunged it home with an awful lot of muscle behind it.

This time, Burke's objection was sustained. But Jay walker had made his point. And he knew that when it came time for summations, he would be allowed to argue it, and to ask the jurors to take a good look at Samara and ask themselves if she seemed capable of wielding a weapon with such brutal strength.

It wasn't much, but it was enough to send the jury out to lunch on.

By two o'clock Burke's detective was still unavailable, and rather than scurry around trying to find other witnesses to call out of turn, Burke asked to go over to Monday. That sort of thing occurs in just about every case that gets tried, and is a good reason never to believe a judge when he tells prospective jurors how long he expects a trial to last. To paraphrase a not-so-old expression, stuff happens.

"All right," said Judge Sobel, "we'll give the jury a long weekend. But make sure you have your detective here first thing Monday morning, or-"

"Or you'll dismiss the case?" suggested Jaywalker.

"In your dreams," said the judge. "In your dreams." Ap parently he'd been taking a peek at the rest of the evidence.

"You'll probably get to testify sometime around the middle of next week," Jaywalker told Samara, once they'd walked up to Canal Street and were safely out of earshot of the jurors. "We'll need to spend some time getting you ready."

Spend some time. Not spend some more time, given the fact that they'd already had a dozen such sessions, spanning twice that number of hours. Though Jaywalker lived in dread that his witnesses might come off as rehearsed and memorized, he clung to his belief that there was no such thing as overpreparation. He would continue to work with Samara right up until the day she took the stand. The day? More like the minute.

"Want to come over this evening?" she asked. "I'd say now, but I'm going to enjoy my afternoon off, right up to curfew time. After that, though, I could be all yours."

Jaywalker looked at her, trying to figure out if she'd intended the double entendre, or if it existed only in his mind. "Let's make it nine o'clock tomorrow morning," he said. "At my office. There'll be fewer distractions there."

The way she somehow managed to pout and smile simul taneously told him no, it hadn't been just in his mind. And once again, as he turned from her and headed for the entrance to the subway, the words that came to mind were, Y ou moron.