The Tenth Case

27

If Jaywalker thought he and Samara had hit bottom the previous afternoon, he was about to learn a whole new defi nition of the phrase. Before the jury was led in Friday morning, Tom Burke asked for a conference in the judge's robing room. Jaywalker told Samara to relax and wait in the courtroom, then followed the judge, the clerk, the court reporter and Burke through the side door.

"What gives?" he asked Burke.

"I'm afraid you're not going to like it," was all Burke would say. And from the grim look on his face, it was clear he meant it.

Once the reporter was seated and ready, Burke wasted no time in getting to the point. "I learned this morning," he said, "less than an hour ago, in fact, what I'm about to place on the record. It concerns the defendant, and an incident that dates back to when she was fourteen years old and living in Vigo County, Indiana, under the name Sa mantha Musgrove."

The name actually sounded vaguely familiar, but Jay walker was already too busy feigning righteous indigna tion to pursue that tangent. He'd donned his most exaggerated stage frown, making sure Sobel didn't miss it. No matter what it was that Burke had dug up, it was ancient history, too remote in time to allow into evidence. More over, Samara had been a child at the time. And what if she'd chosen to condense her name? So had Jaywalker, for that matter. Big deal. What mattered was that Samara was twenty-eight now. There was no way in hell Judge Sobel was going to permit Burke to question her about something she'd done when she'd been fourteen.

"It seems," said Burke, "that contrary to the defendant's earlier testimony that she left home because she didn't get any birthday presents, the facts are actually a little differ ent. The real reason seems to have been that she was molested by one of her mother's boyfriends, a man by the name of Roger McBride. The defendant appears to have gotten even with Mr. McBride by assaulting him and then fleeing the state immediately afterward. And incidentally, according to my atlas, at least, Vigo County includes Prai rie Creek."

"Assuming for the moment that this is all true," said the judge, "you're going to have a very hard time convincing me that it bears directly on her credibility. First, she was fourteen at the time. Second, it was a long time ago. Third, for all we know, her act may have been justified. And fourth, assault isn't one of those crimes, such as perjury or forgery, for example, that have much to do with truth-telling."

Jaywalker smiled. He couldn't have said it better himself.

"All true," said Burke. "Which is why The People con cede we'd have no right to go into it on the issue of the de fendant's credibility."

"And how else would you be entitled to bring it up?"

"As a prior similar act."

By that, Burke meant some previous act that could shed light not just on the defendant's credibility but on her having committed the crime itself. For example, proof that a defendant had robbed banks in the past with a unique modus operandi — say by presenting a demand note written in red crayon and illustrated with five happy faces-would be admissible to show that he'd robbed one more in pre cisely the same fashion.

"You've convinced me it was prior," said the judge. "But that it was an assault, and this case is, in effect, an assault causing death? That hardly meets the similar test."

"With all due respect," said Burke, "you're going to change your mind when you hear how she assaulted Mr. McBride. It seems she took a knife and plunged it into his chest, up to the hilt. It happened to miss his heart by an eighth of an inch. Apparently the blade wasn't quite long enough."

Jaywalker felt his knees go weak and almost buckle. All he could do was watch helplessly as Burke produced copies of four pages of material he said he'd received by fax that morning. There was an incident report, a follow-up report, a wanted notice and a copy of a photograph. Though it was grainy, black-and-white and of poor quality, there was no mistaking Samara's dark eyes peering out from the page, or her pouty lower lip.

Burke had been dead-on when he'd predicted that Judge Sobel would change his mind. And though Jaywalker argued long and hard, claiming remoteness, surprise, lack of adequate notice and denial of due process, he got nowhere. The one thing he couldn't argue was ambush, that Burke had known about the incident all along and had sat on it, waiting to spring it at the perfect moment. Jay walker knew prosecutors who pulled stunts like that, and he wouldn't have been the least bit shy about accusing them of doing so. But he knew Tom Burke too well to even suggest it. Besides which, there was a perfect rebuttal to any claim of ambush. Had she chosen to, Samara could have told her lawyer about the incident herself, instead of waiting for the prosecutor to discover it, or fail to. If anyone had ambushed Jaywalker, it hadn't been Burke, it had been Samara.

"Mr. Jaywalker," said the judge, "I'm prepared to let Mr. Burke question the defendant about this, both the incident itself and the flight, including the name change. At the ap propriate time, I'll instruct the jurors about how they may use the evidence and how they may not. That said, I suggest, as strongly as I possibly can, that you spend the next fifteen minutes talking to your client about taking a plea. We'll be in recess until ten-fifteen."

So first there'd been bottom, and now there was rock bottom.

He took Samara into one of the stairwells, where they wouldn't be in danger of being overheard by any of the jurors milling about.

"Is this where you ask me for a blow job?" she joked.

"You wish," he said. Then he looked her hard in the eye and asked her, "Does the name Samantha Musgrove mean anything to you?"

He expected her to say no, to deny it was her. In a way, he hoped she would. He had no idea how Burke had come up with the stuff, but it seemed unlikely it had been based upon fingerprint records. Samara-or Samantha, or who ever she was-had been fourteen at the time of the inci dent. That, plus the fact that it didn't appear she'd ever been arrested in connection with it, made it highly unlikely that she'd been fingerprinted. Had she been, it wouldn't have taken all this time to surface. Sure, the names were suspiciously similar and the locations virtually identical. And the photo certainly looked like a younger version of Samara. But suppose she were to insist that it wasn't her? What could Burke do about it, really, other than ask her the same questions over and over, only to hear her repeated denials?

"I'm Samantha Musgrove," Samara said instead. "Or at least I was, until I ran away from home."

So much for denial.

Jaywalker proceeded to tell Samara everything that had occurred in the robing room, right up to and including the judge's strong suggestion to work out a guilty plea. He even showed her copies of the documents Burke had supplied him with.

"Yeah, I stabbed that guy McGuire, or whatever his name was," she said. "I'm only sorry I didn't kill the bas tard. Want to know what he did to me?"

Jaywalker nodded.

"He came up behind me, put a knife to my throat, pulled down my jeans and raped me, but I mean hard. And not even where you're supposed to rape someone, if you know what I mean."

Jaywalker nodded again, by way of acknowledging that he had a pretty good idea of what she meant by that.

"Afterwards, he was so damn drunk he fell asleep and started snoring, right there on the floor. So yeah, I rolled him over, took his knife out of his hand and tried to kill him with it. And I'd do it again today, if I got the chance. But Barry? I never touched him. I swear on my life. So you tell me. Am I supposed to plead guilty to something I didn't do because of something I did do fourteen years ago?"

"Maybe," said Jaywalker. "If it saves you ten years of your life, or something like that."

"Well, fuck it, I'm not going to do it. They can give me a hundred years, for all I care. I don't give a fuck."

Her bravado was matched only by her tears. Yet in the face of all the facts and all the evidence, and now with this prior similar act piled on as the icing on top of the prose cution's case, Samara still wasn't budging. And so help him, Jaywalker couldn't quite bring himself to the point of calling her a liar to her face. Because some tiny part of him still wasn't fully convinced she was lying about Barry's stabbing. In spite of how damning everything looked, his own internal jury was still out on the question of whether history had in fact repeated itself.

"Okay," he said, once she'd calmed down enough to listen to him. "I need you to do me a favor."

"What's that?"

"You can admit what you did to McBride, and you can deny that you stabbed Barry, any way you like. But try to go easy on the language. I mean personally, I've got no problem with it. But you use the word fuck more often in one sentence than a lot of those jurors have heard over a lifetime. Think you can manage that?"

"I'll try," said Samara, breaking into something more or less resembling a smile.

"And answer me one other thing, if you don't mind."

"What?"

"Why didn't you tell me about it?"

Samara's only answer was a shrug.

"After all this time, didn't you think you could trust me?"

"No," she said, "it wasn't that."

"What, then?"

"I almost told you the night we…the night I found the Seconal in my spice cabinet. Don't you remember?"

Jaywalker remembered the night. He nodded, though he wasn't quite sure what the connection was.

"I guess I was afraid that if I told you about the old stabbing, you'd never believe I was innocent, not in a million years…"

As guesses go, it was a pretty reasonable one.

"And as a result, you wouldn't have fought for me as hard."

The words stung him. In a single sentence, she'd knocked Jaywalker down to the level of every other lawyer in the world, the last place he wanted to be. But who could blame her? What it meant was that he'd failed her. In his egocentric concern over the prospect of losing his last trial, he had failed to convince Samara that he was different from all the rest of them. Who could possibly have ex pected her to understand that while the knowledge of the earlier stabbing might have been too much for every other defense lawyer in the world to have overcome, it wouldn't have mattered to him? That when it came time to go to war, Jaywalker fought for those he believed to be guilty no less than he fought for those he believed to be innocent?

Long ago, he'd heard that Abraham Lincoln had once boasted that he would never represent a guilty defendant. Lincoln might have been a great man, but in Jaywalker's book that one remark, if accurately quoted, branded him as an absolutely worthless criminal defense lawyer. Who was he to decide that help should be extended only to the virtuous and withheld from the sinners? To Jaywalker, it smacked of tax relief for only the wealthy. Luckily, and in spite of his gross misunderstanding of the defender's role, Lincoln had somehow managed to find other work, though, perhaps tellingly, as a Republican.

Matthew Sobel, who Jaywalker considered as fair and temperate a judge as there was in the system, couldn't conceal his disappointment when Jaywalker reported to him that there would be no guilty plea. He shook his head in something between disbelief and frustration, and the look on his face turned absolutely grave. It was obvious to Jaywalker that Sobel wasn't looking forward to sentenc ing Samara to life in prison. Yet that was exactly what the law would require him to do in the event of a conviction- an eventuality that was rapidly becoming a certainty.

To be fair to Samara, she did about as well as she possibly could have on the remainder of Burke's crossexamination, looking him squarely in the eye and answer ing every question he threw her way. She readily confessed to the fourteen-year-old stabbing, admitting that she'd done it at a point when her attacker had been sound asleep and no longer a threat to her. And she didn't flinch before an swering that, yes, she'd tried to kill the man and had even assumed she'd succeeded in doing so. Two weeks later, she'd happened to pick up a newspaper in Reno and had rec ognized Roger McBride in a photo buried near the back of the paper. McBride, described as the "random victim of a deranged teenager," was said to have miraculously survived a near-death experience and was shown leaving the hospital in a wheelchair, accompanied by his wife and two daugh ters. A warrant had been issued for the teenager's arrest.

As forthcoming as Samara was about the old assault, she wouldn't give an inch when Burke attempted to establish a link between the McBride assault and the murder of Barry Tannenbaum, with Samara's rage proposed as the common denominator. On five consecutive occasions, Burke began his questions with the phrase, "Isn't it a fact," trying to get her to admit that she'd stabbed both men. She listened patiently to each question before answering, "No, it isn't a fact," five times. Of course, the questions were never meant for her in the first place. Burke was much too smart to expect her to suddenly find religion at this late stage of the game and confess her guilt, too smart even to hope that she might commit some Freudian slip of the tongue and give herself away, however slightly. No, his questions were for the jurors; he was giving them a sneak preview of his summation, only in question form. And their faces, every one of them as grave as the judge's had been earlier, told Jaywalker everything he needed to know.

Bottom?

Rock bottom?

Right now they were beneath the ocean floor itself. They were miles down, down where the molten iron core of the planet lay. Down where life as we know it cannot exist.

Whatever other cross-examination Burke had saved for Samara from the previous afternoon, he decided to leave it on his notepad, choosing instead to end with his devas tating series of Isn't-it-a-fact questions.

Jaywalker managed to pry himself up from his seat and spend fifteen minutes on redirect. He had no real hope of rehabilitating Samara; she was way beyond rehabilitation by that point. But he couldn't let Burke have the last word, not with the jurors about to depart for the weekend. So he picked and chose from his notes, pretending it still mattered. He asked Samara when she'd first learned her husband had cancer; she replied that it hadn't been until Jaywalker himself had read Barry's autopsy report to her. Did she understand the meaning of the phrase, a spouse's right to take against the will? No, she'd never heard it and had no idea what the words meant.

Lame stuff like that.

When Burke avoided the temptation of overkill and declined to recross Samara, Jaywalker stood up and an nounced that the defense was resting. He tried to do it in his firmest, most confident voice, but he knew full well that he wasn't fooling anyone. Not the jurors, not the specta tors, not his client, not the judge. Not even himself.

"And The People rest, as well," echoed Burke.

Judge Sobel read the jurors his usual admonitions. He instructed them to report back Monday morning for the lawyers' summations, the court's charge and their delibera tions. He told them the court officers would be giving them additional instruction regarding bringing an overnight bag with toilet articles and a change of clothes, in the event that their deliberations were to go over to a second day. Jay walker noticed that the judge seemed to go out of his way to avoid mentioning the term sequestration, much the way doctors of an earlier generation used to refrain from utter ing the word cancer. But this being a murder trial, once the jurors were given the case to decide, they wouldn't be per mitted to return to their homes, families and jobs until such time as they reached either a verdict or an intractable impasse. Jaywalker could have waived the sequestration rule, had he chosen to. But he actually liked the idea of jurors being locked up, even if only overnight and in some motel out by LaGuardia Airport. Let them get a taste of what it was like to sleep in a strange bed, doubled up with a roommate not of their own choosing, having been told what TV programs they could or couldn't watch and what newspapers they could or couldn't read. Maybe they would think twice before sending someone off to prison for years of infinitely tighter restrictions.

With the jurors excused, the judge spent the next fortyfive minutes explaining what he intended to include in his charge to the jury. Jaywalker had a few additional requests and a couple of objections, but it was all pretty standard stuff. About the only point of contention was the stabbing of Roger McBride, the prior similar act, and the way in which the jury could and could not use it.

Then, just before one o'clock, Burke rose to make a request. Jaywalker had in fact been expecting it for some time now, dreading it. He'd even dared to think that Burke might somehow forget to do it, or decide not to. No such luck.

"Based on this morning's developments," Burke said in an even, untheatrical voice, "which reveal not only a prior stabbing to the chest of another victim, but also an admitted history of flight, complete with a name change, The People ask that the defendant's bail be exonerated at this time, and that she be remanded."

Jaywalker stood up, feigning shock and surprise. "My client has made herself available to the court without fail," he pointed out. "She wears a bracelet around her ankle. It contains a GPS transponder that tells the corrections department and the district attorney's office where she is at any given moment, within sixteen feet, I believe it is. Should she cut it off, an electronic signal would go out in a fraction of a second, allowing law enforcement to liter ally beat her to the airport by an hour. Considering all-"

Judge Sobel held up one hand. Here it comes, thought Jaywalker, the extreme likelihood of a conviction, coupled with the Indiana warrant, when weighed against the rela tively minimal inconvenience to the defendant of a weekend spent on Rikers Island.

"I'm satisfied that the present bail conditions are suffi cient to insure the defendant's return to court," said the judge. "Should she be so foolish as to prove me wrong, the law gives me extremely wide latitude at the time of sen tencing. Do I make myself clear, Mrs. Tannenbaum?"

"Yes, Your Honor."

"Have a good weekend, everyone."

Jaywalker found himself standing there like an idiot, re alizing for the first time that he'd been on the verge of tears. He managed to nod in the judge's direction and silently mouth the words, "Thank you." He didn't dare try to say anything out loud.