But not now.
Even before Tom Burke rose and asked to approach the bench, Jaywalker knew he would. Rather than start his cross-examination now, at quarter of five, he asked Judge Sobel's permission to go over to the morning.
"Not the morning," said the judge. "I've got my calendar call then. But, yes, you can begin with her tomorrow af ternoon." Then he proceeded to explain to the jurors that they wouldn't have to show up until two o'clock the fol lowing day. To those who had jobs, children, parents or even pets to look after, the five-hour respite seemed to come as the best news in the world. Press people into in voluntary servitude for a couple of weeks, and they'll rejoice over a slice of stale bread.
"Great job," Burke said to Jaywalker, once the jurors had filed out of the courtroom.
"I'm sure you'll blow her away in the first five minutes," said Jaywalker.
If the exchange represented mind games played by op ponents, and surely it did, at the same time it reflected hard earned respect and genuine affection between two men who were not only among the very best at what they did for a living, but who also might have been the best of friends, had only Jaywalker allowed himself that sort of indulgence.
Jaywalker walked Samara up to Canal Street. "You did great," he told her. "Do half as well tomorrow, and I'll take care of the rest."
"Do you want to go over cross-examination?" she asked. "One last time?"
"No," he said, "you're ready." Which was his way of saying, If you're not now, you never will be. He hailed her a cab and opened the door for her to get in.
"You sure?" she asked. "I mean, we have until tomorrow afternoon. To get me even readier, I mean."
He smiled at the transparency of her invitation. "Re member what we said," he reminded her.
"After," she said.
"After," he echoed.
At home that evening, Jaywalker pondered the trial schedule. Tomorrow was Thursday. Burke could easily take all afternoon cross-examining Samara. Add on re direct and recross, and she might even be back on the stand Friday morning. Having steered clear of the Seconal issue, Jaywalker had no other witnesses to call, and he doubted that Burke would feel the need to put on a rebuttal case. But even if Samara were to finish up tomorrow, that still left the charge conference with the judge, which would take an hour, and the two summations, figure a couple of hours each. Judge Sobel wouldn't charge the jury and give them the case on Friday afternoon, not with the weekend coming. It was one thing to bring a deliberating jury back on a Saturday and then waste Sunday when you had no choice, but quite another to do it deliberately. Particularly in winter, when it meant having to heat the courtroom and the jury room.
So whenever Samara finished, whether it was tomorrow afternoon or sometime Friday, summations wouldn't take place until Monday, at the earliest. Which meant that Tom Burke was the only one who had to stay up late tonight, working on his cross-examination of Samara. Well, too bad for him. For once in his life, Jaywalker could afford to relax and forget about a case he was in the midst of trying.
As if.
26
POUNDING THE TABLE
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. Partying 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 maga
zine, 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: Touché. To 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?
The Tenth Case Page 29