The Tenth Case

29

Jaywalker arrived at the courthouse neurotically early, as he always did on summation day. He showed up drawn, pale, gaunt and tired. But inside, he was pumped on adren aline. Over the past two weeks, he'd slept an average of three hours a night and had lost a total of seventeen pounds. His good-luck suit hung loosely enough on him by now that, had he wanted to, he could have had the buttons moved and worn it double-breasted. His hair was combed, more or less, and he was clean-shaven, but even shaving had extracted its price. Jaywalker shaved two hundred and fifty times a year without incident. (He took weekends and holidays off.) He could shave with one eye closed. Hell, he could have shaved with both eyes closed, if he'd had to. But on summation day, he always managed to cut himself and then to bleed like a hemophiliac. Always. One time he'd had to sum up with tiny pieces of toilet tissue stuck to his chin and neck, in order to keep from bleeding onto his shirt and tie, his notes, or even the jurors in the front row of the box. They'd acquitted his client, they told him afterward, not so much because they'd doubted his guilt, but because they'd been afraid that a conviction might have pushed Jaywalker over the line, and made him go home and finish the job.

Chances were they'd only been kidding. Then again, did it really matter? An acquittal was an acquittal in Jay walker's book, and he wasn't about to apologize for it.

The courtroom was packed by the time Jaywalker entered. More of the media were on hand than during the testimony itself. Summations were easy for the press; they produced ready-made sound bites, perfect for the evening news or the following morning's print columns. And from the beginning, this case had had everything. A beautiful young woman from an obscure, impoverished past. Dark hints of sex abuse, persistent rumors of prostitution, veiled accusations of gold digging. A much older man, eccentric, powerful, fabulously wealthy, three times married and three times divorced. Sprinkle in generous measures of in fidelity, jealousy and humiliation. Take one fatal stabbing to the heart. Add a murder weapon, hidden and found in the wife's home, stained with the husband's blood. Stir until a perfect motive reveals itself. And, just before serv ing, finish it off with an old secret, newly unearthed, a dark secret of rape and revenge.

Even the lawyers, it seemed, had been perfectly cast for their parts. An earnest young prosecutor who'd worked his way up in one of the best offices in the country, without having checked his good nature or sense of proportion at the courtroom door. Against him, an iconoclastic, rulebreaking veteran with a reputation for being among the very best in the business, particularly when it came time to sum up. And there would be no two-day Johnnie Coch rane filibuster from him. Whatever he had to say, they knew, Jaywalker could be counted on to compact it into the morning session and then sit down. They knew it not because he'd confided in them that he would, but because he'd always kept it short. He was hardly one of their darlings, Jaywalker. He might be ten times the lawyer that some of them were, but he would never sit for an interview, tip them off to his trial strategy, or say something clever when a microphone was shoved in his face. Still, he was a winner, and the public loved winners.

Yet this time there was even more.

The media had long ago learned of Jaywalker's difficul ties with the disciplinary committee. His suspension had actually appeared in print, though only buried deep in the pages of the New York Law Journal, a daily whose circu lation, beyond actual members of the bar, ranked it right up there with such heralded publications as Klezmer Music Enthusiast, Tadpole Lovers' World and The Big Apple Alternate-Side-of-the-Street-Parking Almanac. As the be ginning of Samara's trial had drawn near, Judge Sobel had circulated a request among the media, asking them to refrain from reporting on Jaywalker's suspension and the facts underlying it, including one particular event said to have occurred in a stairwell of the very courthouse where the main drama was to be played out. The media had grudgingly complied, on the proviso that the moment the jurors were sequestered to begin their deliberations-and presumably insulated from the news-the media could run with the story in all its sordid details. So tonight's commen taries and tomorrow's articles would be assured of having yet one more enticing garnish to top them off, a juicy bit of dirt about one of the key players.

Nothing like a little human interest to give a lift to an otherwise flaccid story.

The butterflies were back.

Even before he took his seat at the defense table, a good twenty minutes before the judge took the bench, Jaywalker could feel them beginning to stir. It was almost as though they had ears and knew to begin beating their wings as soon as the clerk said, "All rise!" or the judge announced, "Bring in the jury." As if on cue, they would take flight then, hun dreds of them, thousands of them. They absolutely tortured Jaywalker, causing an excruciating sensation to his mid section, filling his ears with a high-pitched ringing sound and pushing him to the very edge of nausea. But they fueled him, too, the butterflies did. And in a very real sense, they made him what he was.

Judge Sobel spent a few minutes telling the jurors what summations were. Mostly he told them what they weren't: evidence. Jaywalker wasn't overly fond of that particular instruction. Had it been up to him, he would have dis pensed with the evidence altogether and had the jurors instead decide the case purely on the basis of the summa tions. Particularly Samara's case.

Now the judge turned from the jury box to the defense table. "Mr. Jaywalker," he said. Nothing more, nothing less.

By the time he would sit down again, Jaywalker would have spoken to the jurors for close to two and a half hours, without a break and without glancing at his notes more than once or twice, just to make sure he hadn't left anything out. He reminded them what they'd learned as far back as jury selection, that it wasn't their job to figure out whether or not Samara had killed her husband; it was their job to decide if the prosecution had proved that she had, and had proved it beyond all reasonable doubt. He pointed out how totally different those two jobs were.

He retold Samara's life story for them, from being raped in a trailer in Prairie Creek, Indiana, to her escape to Las Vegas, to becoming Mrs. Barry Tannenbaum in New York. He posed the extreme unlikelihood that a woman of her small size and strength, even if she'd wanted to, could have plunged a knife up to the hilt into someone's chest. He pointed out the total absurdity of the notion that she would have then saved the murder weapon, still caked with her husband's blood, as some sort of souvenir for the police to find. He warned them of the terrible danger of convict ing someone on nothing but circumstantial evidence. He exalted the majesty of the presumption of innocence, the logic of placing the burden of proof upon the prosecution, and the special wisdom of a system that demanded proof beyond all reasonable doubt. He reminded them about Alan Manheim and his two hundred and twenty-seven million reasons for having wanted Barry Tannenbaum dead. But even as he did that, he cautioned them not to saddle the defense with the burden of proving Manheim's guilt, or anyone else's. The only burden of proof, he told them over and over again, was squarely upon the prosecu tion. The defense didn't have to prove or disprove anything.

He spoke from the lectern and moved around the court room, returning periodically to where Samara sat. He quoted from the testimony and used the exhibits. His voice rose and fell, and toward the very end he was reduced to a hoarse, gravelly whisper, which served only to accentuate his final words, which he used to beseech the jurors to find Samara not guilty.

Those who made it a habit to show up for Jaywalker summations-and there were literally scores who did exactly that-would afterward agree among themselves that his closing argument on behalf of Samara Tannenbaum had to rank among his very best ever, particularly if one were to consider what he'd been up against. It was crisp, dramatic, well modulated, emotional and extraordinary in every sense imaginable. In a word, it was everything it could possibly have been.

Everything, that is, but good enough.

Tom Burke delivered his summation early that same af ternoon. He began by conceding that "Things aren't always what they seem to be. But," he quickly added, "sometimes they are. " From there he led the jurors through an exhaus tive and methodical review of the evidence that firmly linked Samara to the murder. Her presence at Barry's apart ment right around the time of his death. Their heated argument. Her lies to the detectives the next day. The murder weapon and other items found in her town house, complete with Barry's blood. The life insurance policy, along with Samara's belief that it was the only way she would end up with anything from Barry. And, finally, the fourteen-year-old assault, which, Burke argued, placed Samara's unique signature on Barry Tannenbaum's murder.

Listening to the argument and looking at the jurors, Jaywalker found himself wondering how they could possibly reject Burke's analysis. There was simply no way that they could fail to convict Samara. He was reduced to fantasizing that there might be some closet weirdo on the jury, someone who would refuse to deliberate or might hold out irrationally, leading to an eleven-to-one hung jury and a mistrial. What a win that would be. He started bar gaining with the god he didn't believe in, offering up small sacrifices in exchange for that lone holdout. He would stop drinking. He would start eating three meals a day. He would file his back taxes, visit his daughter, make a dentist appointment, go for that PSA test he kept putting off.

At one point, as quietly as he could, Jaywalker reached for his briefcase. He located his jury folder, slipped his chart out of it and scanned the notes he'd scribbled almost two weeks ago. Twelve names, twelve occupations, twelve sets of notations, ratings and question marks. But, so far as he could tell, no indication of a weirdo among them.

Burke sat down after an hour and a half. As Jaywalker had long ago learned, it generally takes less time to say something than it takes to say nothing.

Judge Sobel took just under an hour to charge the jury. It was quarter of four by the time he finished ruling on the lawyers' objections, exceptions and additional requests. Turning back to the jury box, he announced, "You may now retire to begin your deliberations."

And the butterflies came back.

They came back because that first hour of deliberations was always a dangerous time. If there was going to be an acquittal driven purely by emotion-and by now Jaywalker knew that was the only kind of an acquittal he had a right to hope for-it had to come quickly. It had to come before the jurors had a chance to settle back and begin to analyze the evidence. On the other hand, there were juries that began by taking a preliminary vote to see where everyone stood. Jaywalker could easily imagine this jury deciding to do just that, only to realize that all twelve of them had cast their ballots for conviction.

5:00.

An hour had gone by, and nothing had happened. No quick verdict, either guilty or not guilty. Bit by bit, the but terflies landed, folded their wings and sat still. But Jay walker knew only too well how lightly they slept. The instant there was the slightest noise from the jury room, even if it turned out to be a single buzzer signifying nothing more than a desire for a fresh pitcher of water or a look at some mundane exhibit, the butterflies would take flight again.

5:45.

With six o'clock approaching, the question on all lips was, what was the judge going to do about dinner? Was he going to break for it soon and bring the jury back afterward for more deliberations? Or would he instead let them work for another couple of hours, with the jurors then taken to a hotel immediately following their dinner? Some judges even gave their deliberating juries the option of choosing. Whenever that happened, the jurors would huddle and answer through their foreperson, and Jaywalker would always try to read their response like tea leaves, searching for the tiniest indication that they were close to a verdict, or digging in for lengthy deliberations.

He read everything there was to read. He looked for tips from the court officers, who liked him not only because he was a former DEA agent, but because he was a civil servant at heart, one of them. They hung out by the door to the jury room and usually had a pretty good idea of what was happening on the other side. Were the jurors arguing, fighting, shouting down a dissenting voice? Were they carefully working their way through the testimony, witness by witness? Or had they stopped talking to each other altogether? Jaywalker needed to know. He needed to know which way they were leaning, how they were split, and whether they were making progress or hopelessly divided. If he knew those things, or at least had a pretty good idea, he would know whether to urge the judge to declare a mistrial, or to argue that the jurors should be given more time. And knowing which position to take could make all the dif ference in the world.

He even read lunch orders, Jaywalker did. He'd get the clerk to give him a peek at the list of sandwiches and bev erages the jurors submitted each morning of their seques tration. In one particular case he'd tried a few years back, Jaywalker had come across an order requesting eleven ham-and-Swiss sandwiches on hard rolls, and one peanut butter-and-bacon on light white toast with the crust cut off. Right then he'd known he had a hung jury, eleven to one.

6:10.

Judge Sobel told the lawyers that he intended to let the jury deliberate for another hour before sending them to dinner and a hotel. Jaywalker voiced no objection. As far as he was concerned, the window for a quick emotional ac quittal had already slammed shut. The danger right now was of a Don't-lock-us-up, we'll-reach-a-verdict-soon con viction. He would sweat out every one of the next sixty minutes, he and his butterflies.

And Samara?

It was hard to tell. About the last thing she struck Jay walker as being was a religious person. Yet looking at her now, as she sat alone toward the very back of the court room, he had to marvel at her composure. Didn't she know what was going on?

From time to time, he would wander over and sit down next to her, though whether the gesture was made to offer her comfort or to receive it from her, he couldn't have answered with certainty. But each time he joined her, it would only be for a few minutes. Soon it would become clear that their metabolisms were totally out of synch, he with his frenzied hordes of butterflies, she with her strange, calm composure.

He was reminded of a young woman he'd once come across in an emergency room. Jaywalker had been there because he'd dislocated a shoulder in a Saturday morning pickup basketball game and was waiting to have it popped back into place. The woman, who wore a gauzy purple shawl over her head and spoke only Spanish, was there on much more serious business. Her three-year-old son had fallen three stories from an unprotected window onto the asphalt pavement below and was clinging to life. Yet she sat there in the waiting area the entire time, her hands clasped together, a beatific smile on her face. From time to time, he could hear her speak the words, "Si dios quiere." If it's God's will.

What a blessing, he'd thought back then.

What lunacy, he thought now.

Jaywalker found out a little later that the boy had already been dead when he'd arrived at the hospital. He learned that from the doctor who popped his shoulder back into its socket. The boy had probably died right there on the pavement, the doctor told him, or in the am bulance. They just hadn't gotten around to telling his mother yet.

Samara, too, was already dead. But no one had gotten around to telling her, either. So she sat there now, com forted by her faith or her innocence, or whatever else it was that allowed her to get through this.

6:33.

The buzzer sounded.

The butterflies erupted into flight, and Jaywalker could actually feel his heart begin to fibrillate. He held his breath, waiting for a second buzz. Two buzzes meant a verdict; one signified nothing but a question or request of some sort.

There had only been one.

He allowed himself to exhale and take a new breath. The fibrillation gradually subsided. This was how his heart would give out, Jaywalker felt quite certain. He would die waiting for the second buzzer to sound.

A court officer appeared with a note. He was a friend of Jaywalker's, and as the two of them made eye contact, the officer pursed his lips and shook his head from side to side, almost imperceptibly, but not quite.

Fuck.

Dear Judge Sobel:

We the jury are very close to reaching a unanimous verdict, but first we have a question. Are we allowed to find the de fendant guilty, and recommend mercy at the time of her sentence, because of her past?

Stanley Merkel Foreman

Fuck, fuck, fuck.

So this is how it ends, thought Jaywalker. For Samara, for him, for the whole stupid business of having decided to be a criminal defense lawyer in the first place.

The judge was summoned to come down from his chambers. Even before he arrived, the media began appear ing, filtering into the courtroom. So far as Jaywalker knew, nobody had told them there was a note, much less what it said. But they knew. The fuckers knew. A couple of them tried to talk to him. Those who knew him knew enough to steer clear.

He walked back to where Samara sat. The expression on her face told him that while she still might be composed, she wasn't stupid, and she wasn't oblivious.

"Not good, huh?"

"Not good."

He told her what the note said. He didn't have to tell her what it meant. She nodded. He decided she was probably in shock, and that was why she could remain so calm.

The judge appeared, and Jaywalker led Samara to the defense table and sat down next to her. Sobel informed the lawyers that he intended to bring the jurors in and tell them that while they were free to make any recommendation they wanted, they needed to understand that sentencing was the province of the court, and he would feel free to reject their recommendation or even ignore it altogether, should it come to that.

Jaywalker objected. He wanted the judge to forbid the jurors from making any recommendations. If they felt Samara deserved mercy, they should acquit her.

Sobel said he would stick to his answer.

6:51.

As the jurors file in, they seem to give the defense table a wider berth as they pass it on their way to the jury box. They studiously refuse every chance to make eye contact. They study their hands, their feet, the judge, each other. And Tom Burke. They look like they've come from a funeral or a wake, held for someone very young, someone who hadn't been expected to die.

Jaywalker stares at them, trying to make it even harder for them. The only thing he gets in return is a fleeting glance from Juror Number 8, Carmelita Rosado, the kindergarten teacher. Yet even in that fleeting glance, he can see that her eyes are glassy, suggesting that she's been crying.

He grabs that scrap of information and holds on to it for dear life. He drags Samara onto it with him, and together they cling to it as tightly as they can.

"Will the foreman please rise," says the clerk.

Mr. Merkel stands.

"In the case of The People of the State of New York versus Samara Tannenbaum, has the jury reached a verdict?"

More butterflies, more fibrillation.

"No."

"Thank you. Please be seated."

It has only been a formality, one of the many rituals that take place during any trial. Yet even knowing that, and knowing full well from their note that the jurors haven't reached a verdict, for Jaywalker the little charade has amounted to a near-death experience. As for Samara, who doesn't know the rules of the ritual, he can't even begin to imagine what it must have been like. But outwardly, at least, she refuses to crumble.

The judge reads the jurors' note aloud and responds to it as he earlier indicated he would. When Mr. Merkel raises his hand with a question, the judge politely refuses to hear it. Instead, he sends the jurors back to the jury room, with instructions to communicate through another note.

So five minutes later there's another buzz, another onset of fibrillation and another note.

Dear Judge Sobel:

We the jury are disappointed in your an swer, but will abide by it. At this point, we are extremely close to reaching a unani mous verdict. We request that you allow us to continue our deliberations until 8:00 p.m., to give us a chance to resolve our differences. If we are unable to do it by then, we would like to stop for the eve ning.

Stanley Merkel Foreman

With both lawyers in agreement, Judge Sobel com poses a note of his own and has it delivered to the jury room. Essentially, it informs the jurors that their request will be granted.

7:00.

One hour to get through.

By now it's absolutely clear to Jaywalker that the jury stands eleven-to-one for conviction, or at best ten-to two. From her glassy eyes, he guesses that Carmelita Rosado is his holdout. If there's another, he'll put his money on Juror Number 10, Angelina Olivetti, the actress waiting tables between casting calls. Two young women, both on the quiet side. Jaywalker thought about chal lenging both of them, but ended up having to save his per emptories for other jurors he feared more. While neither Rosado nor Olivetti struck him as particularly defense oriented, he was at least able to take comfort from the fact that they seemed weak. In other words, while they might go along with the majority, they weren't leaders. They weren't the kind of jurors likely to organize a stampede to convict Samara.

Now that same weakness has suddenly turned into a li ability. Will the two of them, or one of them, if that's what it's already down to, have the strength to withstand the pressure now being applied by the rest of the jurors?

"Where were you during the testimony, on another planet or something?"

"Weren't you listening?"

"Are you saying the rest of us are all wrong?"

"What part of 'Guilty' don't you get?"

"You know you're the only thing that's standing be tween us and going home, don't you?"

"As long as you know you're the one who's locking us up in some godforsaken, flea-bag motel."

"I don't want to say anything, but I've got an eighty-six year-old mother at home, waiting for me to give her her insulin shot and put her to bed. But I'm sure you couldn't care less."

7:30.

Halfway there.

According to one court officer, there have been a few raised voices in the jury room but no outright shouting. Shouting would be good, a suggestion that someone has dug in and is being stubborn. Raised voices are harder to read.

7:46.

The same court officer reports to Jaywalker that he's heard some crying from what sounds like a woman juror. Crying is bad. Crying can only mean despair at having to convict, coupled with frustration over not being able to force the judge to be lenient. Crying is very bad.

7:48.

Has the clock stopped moving? Has someone been tam pering with it?

7:50.

Jaywalker can no longer sit still. His bladder has been calling to him for a half an hour now, but he's afraid to leave the courtroom, afraid that as soon as he does, the buzzer will sound twice, afraid that his leaving the court room will cause that to happen. So he paces the floor, out of nervousness, and to keep from wetting his pants. If he can just hold out for another ten minutes, he figures, so can Carmelita Rosado or Angelina Olivetti.

Or so his magical thinking goes.

7:57.

Judge Sobel reappears and takes the bench. Jaywalker and Samara resume their places at the defense table, Burke at the prosecution's. Jaywalker's legs are crossed tightly, his knees knocking together almost audibly. Let them think it's nerves, he tells himself. He remembers his former client, the one who used to wet himself every time he had to stand before the judge unless Jaywalker was there to hold his hand and squeeze it tightly.

"It's not eight o'clock yet," says Burke.

"Bring in the jury," says the judge.

"Would the foreman please rise."

Mr. Merkel stands.

"Mr. Foreman, in the case of The People of the State of New York versus Samara Tannenbaum, has the jury reached a verdict?"

"No, not yet."

Jaywalker exhales.

As soon as the jurors had been led out to a late dinner and an even later overnight stay, Tom Burke rose and renewed his application to have Samara remanded. "It's obvious to all of us that the jury is on the verge of-"

"Excuse me," said Jaywalker, also rising, "but I'm on the verge of wetting my pants. I need a three-minute break. Then I'll be happy to come back and talk about this for as long as you like."

"There's nothing to talk about," said Judge Sobel. "Mr. Burke, if you're afraid the defendant is going to flee, station your detectives outside her building tonight, front and back. Mrs. Tannenbaum, I trust you'll be here promptly at nine-thirty tomorrow morning?"

"Yes, Your Honor."

"Mr. Jaywalker. Mr. Jaywalker?"

But Jaywalker was already halfway down the aisle. Magical thinking or not, his strategy seemed to have worked. Now if only the janitorial crew hadn't already locked the door to the men's room, it would be an unmiti gated triumph.

To think about it, all that had really happened was that Samara wouldn't be convicted tonight. Tomorrow, of course, would be another story. Right now, that tiniest of victories felt like pure nirvana to Jaywalker. It felt almost as good, in fact, as it did when a turn of the knob succeeded in opening the men's room door.