Jaywalker used six more of his challenges, leaving him with twelve to Burke's fifteen. The three jurors who hadn't been challenged were sworn in, including the cab driver foreman. Then they were excused for the balance of the process.
Jaywalker checked his watch, saw it was almost four o'clock. They'd been at it most of the day and had three sworn jurors to show for it.
The clerk, going to her bingo drum, filled the box with eighteen new jurors, and the process started all over again, beginning with the judge's questions. And that was as far as they got that day.
"God, it takes forever," complained Samara on the way out of the courtroom. "And talk about boring."
Jaywalker agreed with her on both counts. Jury selec tion was time-consuming and repetitive, especially with his own insistence on hammering home the twin concepts of burden of proof and reasonable doubt. It was, as a result, by far the most neglected portion of the trial. But he knew that it was also one of the most critical. Approached prop erly, it presented a unique opportunity to condition jurors to be receptive to arguments they might otherwise reject out of hand. And handled skillfully, it could set the stage for winning all but the most difficult of trials.
What worried Jaywalker right now, as he rode the ancient elevator down to the ground floor, were those two little words in the caveat: all but.
They were back in court the following morning, with Tom Burke addressing the new group of prospective jurors, followed by Jaywalker. This time there were three chal lenges granted for cause. Burke used four of his peremp tories, leaving him with eleven. Jaywalker used six of his twelve. The remaining five jurors were sworn in, bringing the number selected to eight.
On the third round, four were knocked off for cause. Burke peremptorily challenged six, Jaywalker five. But the numbers were still working against him. With one regular juror still to be picked, Burke had five challenges left to Jaywalker's one.
Jaywalker used his remaining challenge on the final round as best as he could, but Burke took advantage of the numbers to cherry-pick the twelfth juror, a retired marine colonel, muscles bulging beneath a skin-tight, mustardcolored turtleneck. Jaywalker had caught him looking at Samara at one point with nothing short of firing-squad contempt in his eyes.
From the remaining jurors, they picked six alternates who would hear the testimony but join in the deliberations only if one of the twelve regulars became incapacitated. It was almost five-thirty by the time they broke for the day.
But they had their jury.
Stanley Merkel, the cabdriver and foreman: white, balding, fortyish. Leona Sturdivant, a retired school admin istrator: white, prim, sixty-something. Vito Todesco, an importer-exporter: white, Italian-American, fiftyish. Shir ley Johnson, a nurse's aide at a Catholic hospital: black, God-fearing, seventy. David Wong, an engineering student: Chinese-American, late twenties. Mary Ellen TomlinsonMarchetti, an investment counselor: fortyish, white, Pro testant, evidently married to an Italian-American. Leonard Schrier, a retired shopkeeper: white, late sixties, either a sympathetic Jew inclined to forgive Samara or a former storm trooper ready to herd her into the ovens. Carmelita Rosado, a kindergarten teacher: Hispanic, very quiet, thirtysomething. Ebrahim Singh, a speech therapist: Indian or Pakistani, fiftyish. Angelina Olivetti, an out-of-work actress waiting tables: white, Italian-American and cute. Theresa McGuire, a self-described homemaker: white, Irish-American, ageless. George Stetson, the Colonel Mustard whom Burke had settled on when Jaywalker ran out of challenges: sixtyish, ramrod-straight, and very, very white.
Six men, six women. Eight white, one black, one His panic, one Asian, one Middle Eastern. Six Catholics, two Protestants, one likely Buddhist, and three question marks. No one with anything more than a master's degree, if that.
Backed up by six alternates of assorted sizes, shapes, colors and religious backgrounds, these were the jurors who would ultimately decide Samara Tannenbaum's fate. On a scale of ten, Jaywalker might have given them a collective two or three, at very best. But the truth was, he wasn't interested in who they'd been when they'd first walked into the courtroom. He'd had his two minutes with each of them since then—his chance to condition them, to desensitize them to the worst Tom Burke could possibly throw at them. And, yes, his chance to brainwash them. If he'd failed, the fault was his, and no one else's.
Though the consequences would be Samara's.
18
TWO JOURNEYS
When he'd begun trying cases, more than twenty years ago, Jaywalker had been schooled in the Legal Aid Meth od. Whatever you did, they'd taught him, never commit to any single defense or trial strategy, lest something happen in the middle of the trial to turn you into a fool and your client into a convict. Keep your options open at all times. Play things close to the vest. Adopt a wait-and-see attitude. Avoid unnecessary risks.
The first way you put those guiding principles into action, they explained, was to refrain from making an opening statement. Or, if you absolutely insisted upon making one, you were to keep it short, general and non committal. Talk, if talk you must, about maintaining an open mind, waiting until all the evidence was in before drawing any conclusions, and keeping your eyes and ears open, and your nose to the grindstone.
To Jaywalker's way of thinking, it made no sense at all. As far as he was concerned, about all you got by keeping your nose to the grindstone was a smaller nose.
Still, he'd given it a try. And what he'd gotten for being a good soldier were convictions. Not always, but a good half of the time out. "Fifty percent acquittals?" said his supervisor. "That's fabulous!"
Not to a perfectionist, it wasn't. Not to Jaywalker.
So over time he gradually abandoned the Legal Aid Method in favor of the Jaywalker Method. By the time he went out on his own two years later, he was committing to a particular trial strategy long before jury selection even began. He knew precisely what his defense would be, whether or not his client was going to testify, what he would say when he did, and how he would say it. And he told the jurors, at the very first opportunity.
He discovered that the opening statement, long avoided as nothing but a death trap by the mavens at Legal Aid, pre sented the perfect opportunity to shape the course of ev erything that followed. Why wait for a poorly educated, inarticulate defendant to haltingly tell his story from the witness stand, interrupted by questions, objections and rulings until it came out like some jerky, stop-and-go amateur home movie, when Jaywalker himself could present it to the jury in free-flowing, wide-screen, threedimensional, stereophonic, living color?
Almost immediately, his acquittal rate jumped to seventy-five percent. And while he continued to work on perfecting the rest of his trial skills until that number would climb into the low nineties, never again would he miss an opportunity to open, and to open expansively.
Samara's case would be no different.
That said, months had gone by in which Jaywalker had had absolutely no clue what he could possibly say in his opening. The problem was a direct corollary of his cer tainty that not only was Samara guilty as charged, but that her case was all but unwinnable.
A lot of criminal defense lawyers—including Jaywalker himself in the early days of his career—went into such a trial hoping to somehow discover a defense in the testi mony. A key prosecution witness would fail to material ize, perhaps, or recant his previous version of the facts. A cop would screw up, either in his paperwork, on the stand, or both. An inexperienced prosecutor would inadvertently leave something important out of his case. Manna would fall from the heavens.
But Jaywalker had come to learn that on overwhelming cases, there were always other witnesses who would show up, who wouldn't recant. That there would be other cops who wouldn't screw up. That Tom Burke was not only ex perienced, but talented and extremely thorough. And that manna rarely, if ever, fell from heaven. So going into the most daunting trials, along with bringing his own experi ence, talent and thoroughness, Jaywalker always brought something else with him. Always.
>
What he brought was a theory.
And he would share that theory with the jurors early on, so that even as the prosecutor's evidence came in and piled up and threatened to crush the defense table with its sheer weight, the jurors would at the very least have an alterna tive framework in which to consider that evidence.
There was another thing Jaywalker liked to do, and that was to concede things. If he was trying a possession of stolen property case, for example, he would readily concede that the property had in fact been stolen, that the defendant had indeed possessed it, and that it was even worth whatever dollar amount the prosecution's expert claimed it was. But, Jaywalker would argue, the defendant hadn't known it was stolen, and without that essential knowledge, he wasn't guilty. Making concessions not only narrowed the focus of the trial to something debatable, it carried the added benefit of earning both Jaywalker and his client credibility with the jury, so that when it came time to argue about whether or not the defendant had known of the theft, the jurors were open to the possibility that he hadn't. After all, he'd been so forthcoming and honest in admitting all those other things, didn't it follow that his one denial deserved deference?
Weeks ago, when Jaywalker had finally allowed himself to at least consider the remote possibility that Samara wasn't guilty, he'd been forced to come up with a theory of defense. The lack of phone calls to or from Barry after she'd gotten home had left her utterly without an alibi. Selfdefense wouldn't work, with Samara continuing to insist she'd never stabbed Barry, not even to protect herself from attack or abuse, whether real, threatened or merely imag ined. And with Samara looking and sounding perfectly normal and having no history of mental illness, insanity was out of the question.
It had been the discovery of the Seconal, along with Samara's insistence that she knew absolutely nothing about it, that had ultimately provided Jaywalker with a theory. Someone had framed Samara. Someone had murdered Barry and then gone to great lengths to not only cover his own tracks, but to plant evidence making it look as though Samara had committed the crime. He'd been smart enough to know that in looking to solve a murder, particularly one without a robbery component, the police invariably focused their suspicions on the husband or wife, boyfriend or girl friend. And hadn't they done just that in Samara's case?
Sure, it was a long shot. But when you were down to one shot, it didn't much matter how long or short it was. You took it, and you hoped for the best.
Now it was time to tell the jurors about it.
For the first time since they'd been selected, the jurors took their permanent seats, assigned to them in the order in which they'd been chosen. They were sworn in once again, this time as a body. The judge then spoke to them for twenty minutes, explaining their function and his, and outlining the course of the trial that was about to begin in earnest. Then it was Tom Burke's turn to open. He spoke for fifteen minutes, pretty much following the book that all prosecutors seem to use. First he read the indictment, lin gering an extra beat on the word murder. Then he com pared his opening statement to a table of contents, a guide to what he intended to prove through his witnesses and by his exhibits. Next he got down to specifics. He told the jurors about the discovery of Barry Tannenbaum's body; the next-door neighbor's account of having heard Barry and his wife "Sam" arguing; Samara's lies to the detectives; the finding of the bloodstained evidence in her town house; the DNA match of that evidence to a known sample of Barry's; and finally the pièce de résistance, the motive, the life insurance policy application, complete with Samara's signature. It was strong stuff, and Jaywalker couldn't help but notice that more than a single pair of jurors' eyes rolled upward as the list grew in length and weight. Finally Burke did what all prosecutors do.
"At the end of the evidence," he said, "the rules will provide me another opportunity to address you. And at that time I'll ask you to find the defendant guilty as charged, guilty of the murder of her husband, Barry Tan nenbaum." Then he thanked them and sat down.
Under New York law, prosecutors are required to deliver opening statements; they're given no say in the matter. Defense lawyers get to choose. This apparent inequity is really no inequity at all. It's nothing but a logical exten sion of the rule that the prosecution bears the burden of proving guilt, while the defense bears no burden at all.
Judges routinely inquire of defense lawyers ahead of time whether they intend to open or not, and in this regard Judge Sobel had been no exception. Jaywalker, who'd been up all night going back over his opening, had known forever that he would open; he always opened. Nonethe less, when asked by the judge earlier that morning, before the jury had entered the courtroom, he'd answered, "It depends upon what Mr. Burke has to say in his remarks." It was a lie, to be sure, but a harmless one, meant to fool no one. And judging from the grins it brought from both the judge and Burke, it didn't.
Still, like everything Jaywalker did during the course of a trial, the lie had its purpose, and that purpose be came clear now.
"Mr. Jaywalker," said the judge, "do you wish to make an opening statement on behalf of the defendant?"
For a second or two he just sat there, as though ponder ing the offer and trying to decide whether to take the judge up on it or not. Eighteen pairs of eyes peered at him from the jury box. Finally, he said, "Yes, I do," gathered some notes, decided not to use them after all, rose from his chair and walked to the front of the jury box.
"It is August," he tells them, starting off in a voice so soft that the jurors in the second row have to lean forward and cock their heads just to hear him. No introduction, no "Mr. Foreman, ladies and gentlemen," no "May it please the court." Just "It is August."
"Not this past August, but two Augusts ago. Samara Tannenbaum has been invited to her husband's apart ment for dinner. If that sounds strange to you—and it sure sounds strange to me—the evidence will show that while the couple shared a home in Scarsdale, both Barry and Samara had their own separate places in the city. Theirs was not a perfect marriage, by any stretch of the imagination."
A couple of jurors smile, and there's even an audible chuckle. As Jaywalker's voice gradually rises, they no longer need to crane forward to hear him. Still, none of them have settled back into their seats. None of them are looking anywhere but into his eyes. Thirty seconds into his opening, and he has them.
"They eat Chinese takeout food. They argue about something foolish, as they almost always do. They raise their voices, call each other names. Sometime around eight o'clock, Samara, having had enough, gets up, says goodnight and leaves. There has been no fight, no struggle, no physical contact whatsoever. Absolutely no crime of any sort has been committed.
"Samara hails a cab and goes directly home. Tired, she goes to bed before ten. Without showering or bathing, without so much as washing her hands and face, in fact."
A juror in the first row picks up on the significance of that and nods thoughtfully. Jaywalker fights the impulse to include Samara's little detail about having "jerked off." He's decided that as credible as the addition might be, it's decidedly a double-edged sword.
"Later that same day, two detectives show up. Samara, who's never been overly fond of cops, lets them in anyway. When they begin asking her questions about her and her husband, but refuse to tell her what it's all about, she decides it's none of their business and barely gives them the time of day. In fact, she lies to them, telling them she hadn't been at Barry's the evening before. As soon as they tell her they know otherwise, she admits it. They ask her if she and Barry fought, and she says no. They spend a few minutes debating the difference between a fight and an argument. And then, just like that, they slap handcuffs on her and arrest her for murdering her husband."
If only it were so simple, thinks Jaywalker, if only that's all there was to it. But there's more, much more, and like it or not, he has to deal with it. So it's theory time.
"Members of the jury, you are about to embark on the journey of a lifetime. Nothing you've ever been through, in all your years
, will have fully prepared you for it. And nothing you will ever experience over the rest of your lives will even come close to matching it. Put your hands firmly on the armrests of your seat, and hold on as tightly as you can. And make sure you use both hands. Because this isn't going to be just one journey, but two."
A few of them—not all, but a few—actually do as they're told, grip the armrests of their seats.
"Mr. Burke has ably and forcefully outlined the first journey for you. His is a journey that's going to take you from one piece of evidence to the next, and then to the one after that. And each piece of that evidence, whether it comes to you in the form of a witness's testimony, some physical object or a sheet of paper, is going to point over whelmingly to the guilt of Samara Tannenbaum. That's right, you heard me correctly. If you choose to take that first journey, and that first journey alone, you'll end up con vinced that Samara's guilty. Because it'll all be there right in front of you, served up on a silver platter. Samara's presence at Barry's apartment shortly before the murder. Their voices raised in argument. Her initial lie to the de tectives. A knife capable of having caused the fatal wound hidden away in her home, along with a blouse of hers and a towel, all three of them with Barry's blood on them. A month-old application for an insurance policy on Barry's life, with Samara's signature on it. The policy that was issued, worth twenty-five million dollars in the event of Barry's death. A perfect motive, if ever there was one.
The Tenth Case Page 15