The Tenth Case

26

There's a general rule that prosecutors make poor crossexaminers. Not that there's anything innate about this par ticular characteristic, at least not in the sense that the job somehow attracts underqualified questioners or corrupts qualified ones. Rather, it's more likely a simple matter of insufficient practice. Many trials, if not most, consist of a series of prosecution witnesses and few, if any, defense wit nesses. As a result, the assistant district attorney typically gets all sorts of opportunities to conduct direct examina tions of various sizes, shapes and varieties, but only rarely does he get a chance to cross-examine. And when he does, that lack of practice tends to show.

Not so with Tom Burke.

Because a handful of cases from Judge Sobel's calendar call were still left over from the morning session, Burke didn't begin with Samara until just after three o'clock. When he did, he took her back to her very first encounter with Barry, back to when she was eighteen and working as a cocktail waitress at Caesars Palace.

MR. BURKE: That was a very short time after you had, as you put it, been accepting money and other gifts for sexual favors. Isn't that so?

MS. TANNENBAUM:

MR. BURKE:

MS. TANNENBAUM:

MR. BURKE: I'm not sure I said "sexual favors," but yes, it was a short time after that. So whatever you want to call it, you'd stopped doing it. That's right. I'd turned eigh teen, finally, and I was get ting a paycheck. And then one night you spied Barry Tannenbaum.

MS. TANNENBAUM: Right. Although I didn't

MR. BURKE:

MS. TANNENBAUM:

MR. BURKE:

MS. TANNENBAUM:

MR. BURKE:

MS. TANNENBAUM: know he was Barry Tan nenbaum, or who Barry Tannenbaum was. I see. Tell us, did he initiate contact with you, or did you initiate contact with him? I'm not sure what you mean by initiate contact. Did he approach you first, or did you approach him? I approached him. In fact, you began bringing him drinks. Diet Cokes.

MR. BURKE: Those are drinks, aren't they?

MS. TANNENBAUM: Not in Vegas, they're not.

A ripple of laughter from the jury box signaled that Samara had scored a point. More importantly, it suggested that they were still willing to like her. But Jaywalker also detected a danger sign in Samara's answers. She was sparring with Burke, trying to get the better of him whenever she could, even in little ways. Jaywalker had warned her against that, but now he was seeing how hard it was for her to suppress her natural feistiness. Chill out, he told her subliminally, and just answer the questions. But even as he sent her the message, he doubted that she was fully capable of hearing it.

MR. BURKE: And isn't it a fact, Mrs. Tan nenbaum, that when your shift ended that night, you and Barry went out?

MS. TANNENBAUM: Went out? No, that's not a fact.

MR. BURKE: Where did you go?

MS. TANNENBAUM: To his apartment, upstairs in the hotel.

MR. BURKE: Ah. That's not going out, is it?

MS. TANNENBAUM: Here's the problem I'm having, Mr. Burke.

Jaywalker cringed in his seat. The last thing he wanted from Samara was combativeness. Sixty seconds into her cross-examination, she was about to deliver a lecture to Burke, to tell him what was wrong with his questions. Jay walker tried to think of a basis on which to object, but couldn't. Besides, the jury would only see it for what it was, an attempt to shut up his own client. He slid down in his seat, gritted his teeth and waited for the worst.

MS. TANNENBAUM: (Continuing) Where I come from, and especially in Las Vegas, some of these terms you're using have special meanings. Drinks have alcohol in them. P artying means doing cocaine. Dating means having sex. And going out means hav ing sex on a regular basis.

There was actually an audible clap from somewhere in the jury box. Jaywalker felt his teeth unclench ever so slightly, and his body began to relax a bit. He allowed himself to straighten up in his chair and exhale a breath he suddenly realized he'd been holding so long he could feel his pulse pounding in his temples. Maybe, just maybe, Samara had what it took to pull this off, after all.

But Burke had a nice way of rolling with the punch. Instead of taking issue with Samara's speech and trying to pick it apart, he genuinely seemed to get a kick out of it. He quickly established that whatever one wanted to call it, she had indeed spent a number of hours in Barry's hotel room that first night. He left it to the jurors to decide pre cisely what they were doing. Then he took Samara to the point where she'd learned who Barry was, and how much money he was reported to have.

MR. BURKE: When did you learn about that?

MS. TANNENBAUM: I'm not sure. Maybe two weeks after we'd met. Something like that.

MR. BURKE: From an article in a magazine, right?

MS. TANNENBAUM: Right.

MR. BURKE: And how soon after that did

MS. TANNENBAUM: You're doing it again.

MR. BURKE: Excuse me? you fly to New York to be with him?

MS. TANNENBAUM: I need to know what you mean by "be with him."

MR. BURKE: Touche. T o visit him. Is that better?

MS. TANNENBAUM: Much better. I came to New York about two weeks after I found out.

MR. BURKE: And within six months, you were married.

MS. TANNENBAUM: That's right.

Burke left it there. The timing of the events made the implication clear enough. Jaywalker had spent hours pre paring Samara for a barrage of questions about how much Barry's wealth had to do with her marrying him. It was a factor, she was readily prepared to admit, but so were his tenderness, his gentleness and his interest in the things she had to say, which were all novel concepts to her. But Burke was smart enough to know that Jaywalker would have primed Samara with just that sort of response, and he wasn't about to give her an opening.

He showed her a copy of the prenuptial agreement, which bore a date one week before the wedding, and asked her if the signature at the bottom was hers.

MS. TANNENBAUM: Yes, it is.

MR. BURKE: Do you remember signing it?

MS. TANNENBAUM: Not specifically, but I can

MR. BURKE: I'll offer it as People's

MR. JAYWALKER: No objection.

THE COURT: Received. see that I did. It's my hand writing. Eleven.

MR. BURKE: Do you recall who pre sented it to you for your sig nature?

MS. TANNENBAUM: I really don't. It might have been Barry, it might have been Bill Smythe.

MR. BURKE: Did you read it before sign ing it?

MS. TANNENBAUM: I'm sure I didn't. It's, let me see, twenty-two pages long.

MR. BURKE: Did you understand what you were agreeing to?

MS. TANNENBAUM: Basically, yes.

MR. BURKE: And what was that?

MS. TANNENBAUM: That if I ever divorced Barry, I would get abso lutely nothing.

MR. BURKE: Did you believe that to be true?

MS. TANNENBAUM: Sure. I didn't think they'd go and waste twenty-two pages on it if it wasn't.

MR. BURKE: Over the years since, did you ever come to rethink the subject and decide it wasn't true?

MS. TANNENBAUM: No, I've always assumed it was true.

MR. BURKE: Even after eight years of marriage?

MS. TANNENBAUM: Yes. I figured "ever" meant exactly that.

Nice job, Jaywalker had to admit. Question by question, Burke had painted Samara into a corner. Even though no judge in the world would have strictly enforced a prenup tial agreement after eight years of marriage, Burke had gotten Samara to say that she didn't know that. So as far as she was concerned, divorce wasn't an option, not unless she wanted to be out on the street again. From there, Burke shifted gears and moved on to other avenues by which Samara might hope to end up with a chunk of Barry's money.

MR. BURKE: Did you know anything about your husband's will?

MS. TANNENBAUM: No, I didn't.

MR. BURKE: Do you know anything about wills in general?

MS. TANNENBAUM: I know what a will is.

MR. BURKE: Was it your understanding that if Barry were to die, you'd inherit a fortune?

MS. TANNENBAUM: I didn't know. I mean, I didn't know if that was the case or not.

MR. BURKE: Had you ever heard that under the law, an individual can't disinherit his or her spouse? That even if the individual should try to do that, the spouse would still be entitled to half of the estate? MS. TANNENBAUM: No, I hadn't heard that.

MR. BURKE: So as far as you knew, not only would you have gotten nothing if you divorced Barry, but the same might have been true if he'd died?

MS. TANNENBAUM: I suppose so. I really didn't

MR. BURKE: It didn't interest you?

MS. TANNENBAUM: Not really. spend a lot of time trying to figure out stuff like that.

MR. BURKE: You married one of the rich est men on the planet, yet you weren't really inter ested in his money?

MS. TANNENBAUM: I don't think I said that. I loved the fact that Barry was rich, and that I had a nice place to live and all sorts of other nice things, and that I didn't have to worry about money any more. But did I wake up in the morning thinking about his will, or how much I'd get if he died? No.

MR. BURKE: Yesterday you told us that Barry was convinced he was going to die.

MS. TANNENBAUM: That's right, he was.

MR. BURKE: In fact, he was convinced you were going to kill him, wasn't he?

MS. TANNENBAUM: If he was, he was very good at keeping it secret.

MR. BURKE: Let's talk about life insur ance for a minute, okay?

MS. TANNENBAUM: Okay.

MR. BURKE: Disregarding for the mo ment the twenty-five-million-dollar policy that you signed the application for, did your husband have any other life insurance?

MS. TANNENBAUM: I have no idea.

MR. BURKE: Did Barry ever mention it?

MS. TANNENBAUM: Not that I recall.

MR. BURKE: Did you ever ask?

MS. TANNENBAUM: No.

MR. BURKE: In eight years of marriage, the subject never even came up in conversation?

MS. TANNENBAUM: I don't think you have a very clear understanding of our marriage, Mr. Burke. I was Barry's wife, not his business partner.

MR. BURKE: So you had absolutely no idea if he had any life insurance or not. Is that what you're telling us? Again, we're not counting that twenty-five-million-dollar policy.

MS. TANNENBAUM: I had no idea about that, either.

Score one for Samara.

MR. BURKE: So just to review for a mo ment. So far as you knew, you'd have gotten abso lutely nothing if you'd divorced Barry. Correct?

MR. JAYWALKER: Objection. Asked and an swered.

THE COURT: I'll permit it.

MR. BURKE: Was that your understanding?

MS. TANNENBAUM: Yes.

MR. BURKE: And for all you knew, you might have gotten absolutely nothing under Barry's will if he were to die. Right?

MS. TANNENBAUM: Right.

MR. BURKE: And finally, you might have gotten absolutely nothing in the way of life insurance, because again, there might not have been any? Right?

MS. TANNENBAUM: Right.

MR. BURKE: You were sitting in a pretty precarious position, wouldn't you say?

MR. JAYWALKER: Objection. Argumentative.

Even as the judge sustained the objection, Jaywalker knew that Burke had not only wiped out Samara's previous point, but had scored heavily on his own. The jury didn't need to hear Samara's answer in order to understand that, at least so far as she knew, her fortunes were in serious jeopardy of turning full circle, from trailer trash to princess, and then back again to trailer trash.

Still, Burke wasn't quite ready to take his foot off

Samara's throat. He got her to admit that the relationship had gradually disintegrated over the years, as she felt in creasingly trapped in a marriage to a man who constantly put his business affairs ahead of her, even as he grew more and more bitter about the various ways in which she hu miliated him.

MR. BURKE: Now, shortly before your husband was murdered, you were aware that his health was bad, weren't you?

MS. TANNENBAUM: I knew that he had a cold that last night I saw him, or the flu. Something like that.

MR. BURKE: Something like that. Any thing else?

MS. TANNENBAUM: Like I said, he was always complaining about something or other, always afraid he was sick or dying.

MR. BURKE: How about coronary disease, heart disease? Did you know anything about that?

MS. TANNENBAUM: I knew he'd had a heart at tack, back before I knew him.

MR. BURKE: How about cancer? Did you

MS. TANNENBAUM: No.

MR. BURKE: You never knew that? know he was suffering from cancer?

MS. TANNENBAUM: No, not until after his death.

MR. BURKE: You're telling us that this ec centric hypochondriac, who was constantly complain ing he was sick and continually expressing his fears that he was dying, never once told you he had cancer?

Jaywalker's objection and Samara's feeble "That's right" were completely beside the point. Burke's implication was crystal clear: Samara was lying. Not only had she believed she was financially vulnerable in a marriage that was rapidly disintegrating, but even were the marriage to somehow survive, she'd known full well that her husband might not. Desperate to protect herself in one way or another, she'd gambled on insuring Barry's life for a huge sum, and then murdered him during the brief six-month window afforded by the policy. Or so Tom Burke would argue in his summa tion, with logic that was pretty irresistible.

And just as Jaywalker knew it would, that brought Burke to the insurance policy. He pulled out the applica tion now, folded it so that the last page was on top, and had a court officer place it in front of Samara.

MR. BURKE: Tell us again whose signa ture that is, please.

MS. TANNENBAUM: Mine.

MR. BURKE: In your own handwriting?

MS. TANNENBAUM: It's my own handwriting, yes.

MR. BURKE: No one put a gun to your head and ordered you to sign it, did they?

MS. TANNENBAUM: No.

MR. BURKE: No one tricked you or de ceived you into signing it, did they?

MS. TANNENBAUM: I have no idea. I don't re member signing it, so I can't really tell you the spe cific circumstances.

MR. BURKE: No one blindfolded you?

MS. TANNENBAUM: No one blindfolded me. I'm pretty sure I'd remember that.

MR. BURKE: Would you turn the page, please, so that the cover page is on top. Have you done that?

MS. TANNENBAUM: Yes.

MR. BURKE: Do you see some capital let ters in bold print at the very top of that cover page?

MS. TANNENBAUM: Yes.

MR. BURKE: Would you read that portion

MS. TANNENBAUM: Out loud?

MR. BURKE: Yes, out loud.

MS. TANNENBAUM: (Reading) " Application for to the jurors, please. term life insurance policy."

MR. BURKE: Look halfway down the page, if you would, to the words, "Summary of con tents." Would you read the print, also in capitals and also in bold, immediately following those words.

MS. TANNENBAUM: (Pointing) Here?

MR. BURKE: Yes, there.

MS. TANNENBAUM: (Reading) "Name of in sured, Barrington Tannenbaum. Amount of policy, twenty-five million dollars. Term of policy, six months. Name of beneficiary, Samara M. Tannen baum."

MR. BURKE: Thank you.

Burke put the application away and moved to the items found in Samara's town house. As Jaywalker had on direct examination, he had her identify the towel as one that looked like hers, the blouse as definitely hers, and the knife as identical to a set in her kitchen. And as Jaywalker had, he gave her an opportunity to explain who, other than she, might have hidden the items behind the toilet tank of her upstairs bathroom. Samara had no answer. She'd been home alone the entire time, from her arrival after visiting Barry until the detectives showed up the following day. Did she think someone had sneaked in and hidden the things there without her noticing, or put them there after she'd been taken away in handcuffs? Or perhaps the detec tives had planted the items, out of some inexplicable desire to frame her?

Again, Samara had no answers.

Had she perhaps hidden them there only temporarily, figuring to get rid of them as soon as she could, only to be surprised by the speed with which the police had shown up? No, she insisted, that wasn't the case; she'd never put them there in the first place, though she couldn't say who had, or how they'd managed to accomplish it.

There comes a time in cross-examination when jurors have heard enough, when their eyes begin to glaze over out of skepticism, and they slide back in their chairs with something that looks very much like outright disbelief. As often as not, that time comes without a clear line of demarcation. In Hollywood, or on the TV screen, there was always a dramatic Gotcha! instant, followed by either loud music or a fade to a commercial break. In real life, there's generally nothing to accompany the moment but sadness.

Samara was no longer being believed. And if Samara was no longer being believed, this trial was as good as over. Jay walker knew that as surely as he knew his own last name.

It was nearly five o'clock. Burke asked to approach the bench. There he requested permission to go over to the fol lowing morning to complete his cross-examination. Judge Sobel agreed. Jaywalker was too beaten to object, and aware that even if he did, it would do no good. At that point, in fact, he'd pretty much decided that nothing would do any good.

Trials are a little like sporting events, at least in the sense that both are contests that develop rhythms of their own after a while. Almost invariably, there's a series of momentum shifts, a pattern of highs and lows that could almost be charted on graph paper. An hour ago, the defense had been riding a crest of sorts. Samara's feistiness had earned her points in the early sparring. But Burke had weathered it, and bit by bit he'd succeeded in surrounding her with the evidence and trapping her with the facts. It reminded Jaywalker of the unsolicited advice he'd once heard an old-time trial lawyer dispensing in the hallway to anyone willing to stop long enough to listen. "When you've got the facts," he'd been saying, "pound the facts. When you've got the law, pound the law. When you don't have either one, pound the table."

From the outset, the trouble with this case had been that the prosecution had both the facts and the law on its side. At one or two minor high points in the trial, Jaywalker had deluded himself into believing that in spite of that imbal ance, he might somehow figure out a way to walk Samara out of court. Now, he realized, he was going to be pretty much reduced to pounding the table. And while that might produce some noise, it was facts and law that generally produced victories.

That night, in spite of knowing better, Jaywalker poured himself a generous measure of Kahlua, placed it on his kitchen countertop and pulled up a stool. For a good twenty minutes he sat in front of it in near darkness, doing nothing but staring at the tumbler and the almost-black liquid that filled the lower half of it. Even without putting his nose over it, he could smell the thick coffee aroma drifting his way, all but taste the syrupy sweetness as it magically kissed away the harsh bite of the alcohol. Only when he'd told himself for the twentieth time that he couldn't do it- not to himself, not to his profession and most of all not to his client-did he dare to shift his weight slightly, first to one side, then to the other, in order to remove his hands from underneath him, where they'd grown numb from his weight.

Slowly, carefully, he poured the liquid back into the bottle from which it had come. He didn't want to spill any, after all, not with a verdict likely by early next week. He would be needing it then, it and a lot more.

He rinsed out the glass and opened the dishwasher, then saw that it was full, not of dirty dishes and glasses, but of clean ones he hadn't bothered putting away earlier in the week. So he set the glass in the sink. His wife would've scolded him for that act of laziness, he knew. But his wife was dead, and he lived alone now. And suddenly the full impact of that terrible aloneness hit him head-on and knocked the wind right out of him, and he found himself gripping the counter with both hands in order to steady himself. Thank God for that suspension, he told himself. Thank God I won't have to keep doing this anymore.