The Tenth Case

28

Jaywalker was by nature a procrastinator. He'd realized it early on in school, when he'd found it all but impossible to tackle a homework assignment, however mundane and simple, until the last conceivable moment. "Don't worry, I'll do it," he'd explained on one occasion to his father, a stickler for advance preparation. "It's just that I work better under pressure."

He'd been five at the time.

That said, Jaywalker had been working on summing up in Samara's case, in one way or another, for a year and a half now. If that sounds like an exaggeration, it isn't. As soon as Jaywalker got a case-and he'd gotten Samara's a year ago August-he began to think of it in terms of an argument, a debate. What facts were beyond contesting? What others were less certain, but still worth conceding in the name of gaining credibility with the jury? And what one or two issues did that leave to go to war over? Then he would print the word SUMMATION at the top of a sheet of paper, jot down some preliminary thoughts and place the page in a folder bearing the same title. As his investigation of the case progressed over time, he would add to the folder, a word here, an idea there, even a bit of specific language that he felt might resonate with a jury someday. Over the months that followed, the folder would gradually grow thick with additions, revisions and modifications, until it contained, in rough form, just about everything that would go into his summation. About all that remained was for the trial itself to unfold and reveal just how closely the actual testimony would track Jaywalker's expectations. Sometimes there were a few surprises, necessitating minor modifications. More often, there weren't. If you worked hard enough before a trial, not only were you ready for what took place, you actually dictated what took place, caused it to unfold precisely the way you'd planned.

Samara's case had been different.

Samara's case, from the very beginning, had defied all the rules. In one sense, the facts were barely in dispute. Someone who'd been at Barry Tannenbaum's apartment had taken a knife and plunged it into his chest, causing his death. Samara had been there at the time it had happened, or pretty close to it. The two of them had been heard argu ing loudly, and she'd left minutes afterward. Confronted by detectives the following day, she'd lied about having been there, and about whether or not she'd argued with Barry. A search of her apartment had revealed a knife con sistent in all ways with the murder weapon, a blouse she admitted owning and a towel. All three items had Barry's blood on them.

It only got worse from there.

Samara, who'd knowingly signed a prenuptial agree ment leaving her with nothing were she to divorce Barry, also believed she could be disinherited by him under the terms of his will. And as far as she knew, her husband had no life insurance. Barry was in poor health, with cancer and heart disease. Although she denied knowing about the cancer, she acknowledged that Barry was obsessed with his health and fearful he was dying. A month before he actually did, she'd signed her name to an application for a twentyfive-million-dollar policy on his life. For it to pay off, Barry would have had to die within six months, though not of heart disease or cancer.

Nobody other than Samara appeared to have been in Barry's apartment around the time he was murdered. No one but she had been in the home where the knife, the blouse and the towel were subsequently found.

And now, to top things off, it turned out that once before in her life, Samara had taken a knife and stabbed a man in the chest. Although, by the grace of God or the fortuitous intervention of a couple of millimeters of human tissue, the difference depending upon one's particular set of beliefs, that earlier victim had managed to survive.

The problem with Samara's case was that absolutely ev erything was beyond contesting. Everything, that was, except whether it had been Samara or somebody else who'd murdered Barry. Early on in the trial, Jaywalker had told the jurors that it had been somebody else. He'd even hinted at four possible suspects. But one by one, the testimony had cleared them. Anthony Mazzini, the super, might have milled around Barry's apartment after letting the detectives in, but other than that he was above suspi cion. Kenneth Redding, the co-op board president, had had a minor disagreement with Barry but hardly a reason to kill him. Alan Manheim, the recently fired lawyer, might or might not have stolen a lot of money from Barry, but he was fully prepared to defend himself. And William Smythe, Barry's accountant, had come off on the witness stand as a straight shooter. More to the point, none of those individuals, not one of them, had had access to Samara's town house. Even if one of them, or all of them acting together, had murdered Barry, there was still no way they could have gotten the knife, the blouse and the towel into Samara's place.

So who did that leave? The detectives? At least they would have had the opportunity to plant the evidence, assuming they'd wanted to. But why? Well, it went some thing like this. A murder's been committed. Who do the police immediately suspect? The husband or wife, boy friend or girlfriend, that's who. Why? Well, the police would have us think it's because statistics show that some one close to the victim is most often the guilty party. But those statistics are fatally skewed from the outset. Once the authorities fix on a suspect, abuses immediately begin to creep into the process. Other possible suspects are allowed to disappear entirely or fade from consideration, to be re membered only twelve or fifteen years later, when some newly tested piece of DNA evidence walks someone out of prison. But in the moment, all attention gets focused on the person closest to the victim. Careless statements made by that person, minor inconsistencies in his or her story, and anything short of an airtight alibi, soon turn the police's suspicion into certainty. A confession follows. Never mind whether it happens to be full or partial, consistent with the facts or at odds with them, true or false. An arrest is made, a favorite reporter is alerted, and a perp walk is arranged. That afternoon, just in time for the evening news, the police commissioner holds a triumphant press conference. The media eat it up and spit it out, and a public on the verge of panic is assured it can rest easy. The murder, it turns out, was nothing but a domestic squabble gone bad. No random killer remains at large, walking their streets and stalking their loved ones.

And why did the police focus on that spouse or lover or best friend in the first place? Because it was easy, that's why. They knew right off the bat who they were looking for and where to do the looking. Crime solved, killer ap prehended, case closed, end of story.

But could Jaywalker really stand up in front of the jurors and tell them with a straight face that the detectives, having actually found the knife, the blouse and the towel at Barry's apartment, or inside some trash can or storm drain nearby, had decided to plant the items in Samara's town house out of their own misplaced certainty of her guilt? And even if they'd done that-already a leap of gigantic length-that still didn't explain who'd murdered Barry in the first place.

That was Friday night.

By Saturday morning, Jaywalker had decided that the best way to present his defense would be to come right out and admit to the jury that he had no idea who'd murdered Barry, except that it hadn't been Samara. And the genius of the American court system, he would explain, was that he didn't have to know, and neither did they. Remember, he would tell them, the defendant has no burden of proof. It wasn't the defense's job to convince you who actually committed the murder. It was the prosecution's job to convince you that Samara did it, and they had to convince you beyond all reasonable doubt. So the jurors mustn't let Tom Burke get away with an argument that went If not Samara, who? That wasn't good enough. And if, during de liberations, a fellow juror were to try to make that argu ment, they should soundly reject it.

You'll be given a verdict sheet, he would tell them, right before you begin your deliberations. It's going to list the crime that Samara's charged with: murder. Right after that, it's going to ask you to check one of two boxes, "Guilty" or "Not guilty." After "Not guilty," there's not going to be a P.S., "Well, if 'Not guilty,'please explain who did do it."

In other words, he would tell them, you're not being asked to play detectives here, to solve the crime. We've got plenty of detectives who get paid good taxpayer money to do just that. Nor are you being called upon to play God, to somehow transport yourselves back a year and a half ago in order to try to divine what might have happened that August night. You are jurors. Your job, as awesomely im portant as it is, is at the same time magnificently simple.

He crossed off magnificently and substituted majestically.

Your job is to pass judgment, he would tell them, to pass judgment on the evidence that you heard in this court room. Does that evidence convince you that it was Samara Tannenbaum who murdered her husband? And does it convince you of that beyond all reasonable doubt? Your answer must be a resounding "No!"

Was ringing better than r esounding? How about both? Okay, a ringing and resounding "No!"

Not bad.

By Saturday night Jaywalker's kitchen floor was littered with torn pieces of paper, all of them discarded arguments that at one moment had sounded like possibilities but twenty minutes later had struck him as totally worthless.

Maybe he needed to focus on a single suspect.

He went back to his List of Four. Anthony Mazzini, the super, was a nonstarter. Among other things, the jurors would never believe he had the intellect to pull off such an elaborate frame. Kenneth Redding, the co-op board pres ident, simply hadn't had enough at stake to do it. And William Smythe, Barry's accountant, had come off too squeaky-clean to seem capable of murder.

That left Alan Manheim, Barry's recently fired personal lawyer. Jaywalker reviewed his notes from Manheim's tes timony. On direct, Burke had had Manheim admit that he and Barry had had a "falling-out." They'd parted company over Barry's accusations of embezzlement six months before Barry's murder. True, Manheim denied the charge, even to the point of boasting that shortly after leaving Barry's employ, he'd landed a better paying position.

Jaywalker had gotten Manheim to offer the opinion that he'd been underpaid by Barry, even at the rate of over four million dollars annually, counting his bonus. And the amount of that little alleged embezzlement? Jaywalker would remind the jurors of that. In Manheim's own words, two hundred and twenty-seven million dollars. Jaywalker would repeat the numbers, as though in absolute awe of them. There were people on the jury who felt lucky to make two hundred and twenty-seven dollars a week, in cluding overtime. There were jurors who couldn't count to two hundred and twenty-seven million, let alone visualize the significance of that kind of wealth.

Manheim had had everything to lose. His money, his reputation, his new job, his law license. Not to mention his freedom. That's grand larceny Barry Tannenbaum accused him of, Jaywalker would tell the jurors. That's about as grand as larceny can get, as a matter of fact. W as that reason enough for Manheim to want Barry Tannenbaum out of the way? Here was how he would like them to think of it, Jaywalker would tell them. Alan Manheim, the alleged thief and embezzler, didn't just have a reason to kill Barry Tannenbaum, he had two hundred and twenty-seven million reasons.

Manheim had come off as a terrible witness, a fact only enhanced because it had been the prosecution who'd called him in the first place. He was sleazy, smug and self-serving. If Jaywalker were to end up deciding to point the jurors in the direction of one suspect to the exclusion of all others, Alan Manheim was certainly going to be his guy.

Jaywalker turned the lights off. It was past two in the morning, and he suspected he was no longer operating on all cylinders. He knew if he were to refocus and read back the last of the notes he'd written, the stuff about Alan Manheim, they, too, would end up in pieces on the kitchen floor. So he told himself his thinking was getting too fuzzy to continue. And then he told himself something else, the sacred creed of all procrastinators.

There was always tomorrow.

But as seductive a lover as she can be at first, procras tination makes a hideously cruel mistress. He who allows himself to be folded into her welcoming arms buys no true respite. The warmth and safe harbor she promises him are but an illusion, a simple projection of his own needs. All he ends up with is pure agony, drawn out, intensified and robbed of the tiniest measure of comfort or the least sem blance of peace.

It would be hours before sleep would come to Jay walker, and when it did, it came in fits and starts, punctu ated by fragments of dreams that came and went, but refused to make sense. Alan Manheim appeared in one of them, laughing at Jaywalker from the witness stand, the pupils of his eyes dilated and transformed into dollar signs. "But how could I have gotten into her home," he taunted, "in order to hide the evidence?" Jaywalker's wife was in a second dream, gently scolding him for not emptying the dishwasher or being able to win the impossible case, the one out of ten nobody could win. In yet another, a serene Roger McBride was being wheeled from the hospital by his adoring wife and children, a knife still stuck in his chest. His hands were folded pontifically in his lap, clasped around something that at first glance looked like a large metal cross. Only when the wheelchair drew nearer was Jaywalker able to see that it wasn't a cross at all but an enormous jailer's key.

By Sunday morning Jaywalker was experiencing the first symptoms of panic. He wasn't talking to himself yet, or pacing the floor. In fact, he was still in what he consid ered his constructive mode, jotting ideas down on paper as they occurred to him, then discarding them as soon as it occurred to him that they were worthless. So it was a con trolled panic still, but an incremental step along the way to full-blown, out-and-out hysteria.

It had happened before, in other cases, preparing for other summations. Arguments that had seemed airtight suddenly developed leaks and needed patching, reinforc ing or restructuring. But there'd always been a solution; it had simply been a matter of holding the problem up to the light, identifying the weakness and addressing it.

Samara's case was, as it was in almost every other respect, different. It defied repair. It was almost as though it had taken on a life of its own at some point, a willful ness, and was intent on proving to Jaywalker that whatever he did and however he did it, it didn't matter; the evidence would change, mutate, morph and reinvent itself in order to defeat him. Look at how he'd proposed not one but four possible suspects for the jury to consider. Back comes De tective Roger Ramseyer to blow them all out of the water with new fingerprint checks. And Samara. Just when it had looked as though she'd survived the worst of Tom Burke's cross-examination, up pops the fourteen-year-old incident to make her look like a serial stabber.

It was even happening now with Jaywalker's summa tion. He'd promised the jurors in his opening that it would be the very strength of the prosecution's case that would point them to the realization that someone had to be framing Samara. Well, he'd been right about the first part of the equation. The evidence against Samara was over whelming, more overwhelming than even Jaywalker could have imagined. But the second part was missing in action. Nowhere did the evidence break down of its own weight; nowhere did it reveal meaningful cracks or gaps that in any way suggested innocence on Samara's part or guilt on anyone else's.

So what did you do when you couldn't sum up?

It was a question Jaywalker had never been forced to answer before, not in more than twenty years of trying cases. And even as it occurred to him, he forced himself to ignore it. There had to be a way to win this case, there simply had to be. It was just a matter of his not having figured it out yet. It was just a matter of time.

Something he was rapidly running out of.