by Linda Wolfe
She was feeling it still in the courthouse when Spitz testified. Life had hit her hard. But she wasn’t down on her knees anymore.
When she rested her case, Linda Fairstein was exhausted. She was also frustrated. She had seen her witnesses humiliated and discredited, lost the battle to suggest Robert had robbed Jennifer, been unable to make use of his early lies to the police, and even been denied permission to develop a theory she had dearly wanted to develop—the theory that Robert, before killing Jennifer, had gagged her with her denim jacket. She’d been denied the permission because Litman had persuaded Bell that the scientific evidence to support this theory was too new and unreliable. Now Fairstein longed to take a breather, to go away for a few days or, better yet, stay home and sleep. Sleep late and deep, without the obsessive thoughts and memories of the day’s arguments that kept pervading her dreams.
But in a trial, she knew, there is no rest, and immediately she began trying to line up witnesses who could rebut those Litman was planning to put on. There were all sorts of people he’d hinted he might produce. Nora Bray, the girl at whose apartment Robert and Jennifer had slept together the night before Jennifer left for California. Steve Saracco, who’d been handling the case before it was reassigned to her. Bob Chambers. Maybe even Phyllis Chambers.
Saracco was one of the first witnesses that Litman called. He didn’t know what Litman wanted from him. Maybe, the ex-Marine thought as he waited, chain-smoking, to take the stand, he wants to make something out of the fact that I didn’t order a search warrant for Robert’s clothes the night he was arrested. Maybe he’s hoping to imply I took a slipshod approach to the case. Well, if he does that, I know what I’m going to say. I’m going to say that we didn’t need the clothes. Because we knew who killed Jennifer.
But Litman didn’t give him the chance to deliver the line he’d rehearsed. He didn’t even ask about the search warrant. He just kept asking about Jennifer’s panties, and whether he’d known while Robert was confessing that any panties had been found. Saracco said he hadn’t known, and Litman used the answer to cast doubt once again on the police story about finding the panties far from the body. If they had found them there, he implied to the jury, and if the location was so significant, how come they hadn’t even mentioned the panties to Saracco?
Saracco was on the stand only a few minutes, but he learned something from the experience that astonished him. It was that there was no carryover between being a prosecutor and being a witness. It didn’t matter that he’d tried maybe a hundred murder cases. When he sat in the witness box, he got terribly nervous. And it struck him that being a prosecutor was one hell of a lot better than being a witness.
In Brazil, people who went to police stations could disappear. Marilei, who had gotten another message from Linda Fairstein, was filled with apprehension about hearing from her, but at last she forced herself to go down to her office one evening. When she did, she answered all of Fairstein’s questions. She told her everything she remembered about the day that Jennifer died—about talking to Phyllis about Robert’s scratches and even about washing his bloodied shirt.
Fairstein wasn’t particularly interested in the shirt. But she was very interested in the fact that Phyllis had put peroxide on Robert’s scratches, for during’the summer hearings Phyllis had testified that the scratches had seemed so insignificant she’d hardly even noticed them. “If Phyllis testifies,” she said to Marilei, “I may ask you to do so, too.”
“Oh, God, I hope not, I hope not,” Marilei said.
But that wasn’t the worst thing that happened that evening. The worst thing was that Fairstein showed her Jennifer’s death pictures. She felt like swooning when she saw the girl’s naked splayed-out body. And then when she didn’t faint, but instead made herself look at the pictures, compelled herself to stare unblinkingly at the lurid red welts all over the girl’s neck, she realized in an instant that despite what Phyllis and Robert had been telling her all year, the girl could not have died in an accident.
It made her dreadfully upset. But she thought she understood why Robert had strangled Jennifer. Maybe the girl started bossing him, she said to herself. Maybe the girl say, No, don’t do that. Do this. Start here. Stop there. And Hrobert think of his mother, how she push him, pull him, and how she is all the time with him, with him, and when he is holding the girl by the throat, he doesn’t let go, because he isn’t really killing a girl, he is killing his mother.
The day after Marilei saw Jennifer’s death pictures, the jury visited the scene of the crime. The trees were wintry bare, the air was dense with fog, the ground was covered with mud. Robert waited in a detective’s car while the jurors, silent and shivering, examined the tree under which Jennifer’s body had been found and the tree under which the prosecution believed she had first been assaulted.
From his desk in the courthouse pressroom, Mike Pearl answered the phone that afternoon. “What were the jurors wearing?” Esther Pessin of UPI wanted to know. She was home with the flu and had been unable to make the trek to the park. “What was the forewoman wearing?”
“You’re sick,” Pearl told her. The walls were hung with the trophies of his career, sheet after yellowing sheet of his front-page stories about murder and mayhem. “Forget it. You’re not going to be able to write about it, so why do you need to know?”
“I just have to,” Pessin wailed. “I can’t bear missing a detail. I’m obsessed.”
Pearl shrugged as if she was nuts, but began flipping through his notebook and spelling out the clothing for her. “Number Five had on a men’s fedora,” he said. “And tall boots. The forewoman had on a black leather jacket you’d have killed for. Smooth. With a—whaddya call it—a peplum.”
“I can’t believe this,” Tim Clifford of Newsday called out. “She just asked me the same questions! Tell her to lie down and watch it on TV tonight.”
But Pearl understood Pessin’s obsession. He too had been thinking of nothing lately but the Chambers case. The presidential primaries. The NATO summit. People, even some editors, considered that stuff important. But the fact of the matter was that it wasn’t. What was important were only five things. Kids. Animals. Famous names. Violence. And sex. At least to a reporter. Any two of those things got a reporter a lead story. Any three got him a front-page lead. The Chambers case had three out of the five, and had kept getting him—and Esther Pessin, he had to admit—prime placement for over a year and a half.
He was expounding his theory of the Five Important Things to acolytes in the pressroom when he got another call, this one from Jack Litman, whom he’d phoned earlier to get a few extra details about the jurors’ trip to the park. “How’m I doing?” Litman asked when he started talking.
“You’re doing all right,” Pearl said. “But you should smile more.” Then he said, “No, I’m just kidding. You’re doing fine. You’re probably going to win.”
Tim Clifford couldn’t believe his ears. “Why’d you tell him that?” he asked Pearl as soon as he was off the phone.
Pearl shrugged. “I tell ’em all they’re gonna win.”
“Gee, I don’t do that,” Clifford said. “I ask them things. I don’t offer my opinion.”
“They may not want yours,” Pearl sniffed. “I’ve been doing this stuff for thirty, thirty-five years. They know I know.” Then he grinned. “Besides, Litman knows he can’t get a straight answer out of me.”
Clifford wasn’t assuaged. “Well, it does look as if the jury might be leaning toward Litman,” he said. “But it’s because he’s dragged the trial out so long with his nonstop cross-examination that the jurors have become his hostages. If they go with him, it’ll be because of the damn Stockholm syndrome.”
Jack Litman may have felt, as some members of the press did, that the jury was in his pocket, for in the next few days he moved swiftly to bring his case to a conclusion. He had already produced a hand surgeon who had supported Robert’s version of events by testifying that the bone injury on Robert’s right
hand suggested not that he had hurt his hand while punching Jennifer but that he’d hurt it because he’d rolled onto it while lying pinned on the ground. Now he produced the medical examiner of Los Angeles, Dr. Ronald Kornblum, author of Trauma in Hot Tubs, who further substantiated aspects of Robert’s story.
Jennifer’s many bruises, the tall and suntanned Kornblum said, could have occurred from her tripping or falling while she was in the park. Her swollen left eye need not have been punched but merely made puffy because of the position in which she landed after Robert flipped her. He also said that the scratches she’d inflicted on Robert could have been just the signs of “playful” sexual activity, and that Robert could have compressed her neck for only five to fifteen seconds. Finally, he opined, “I believe Levin died as the result of an arm choke hold,” thus contradicting Dr. Spitz’s theory that she had been strangled with her blouse.
When Kornblum was finished, Litman announced to Linda Fairstein that he was ready to rest his case.
Fairstein was taken by surprise. She’d expected Litman to call several more witnesses. She’d lined up rebuttal witnesses. Gotten all prepared. And now it was over. She wondered if Litman had rested so quickly because there was someone he hadn’t wanted her to cross-examine. And she wondered if his sudden rest had anything to do with an anonymous phone call she’d received, a phone call informing her that Shawn Kovell lived in the same building as one of the jurors. Could the juror have seen Robert visiting her there? Or seen him do something there that, if Litman had known about it, might have made him hurry to close? She, Litman, and Bell called the juror in and questioned him. But he’d never seen Robert in his building or even exchanged a word with Shawn Kovell.
At last Fairstein came to the unhappy conclusion that Litman had simply decided he’d made his case, said all there was to say. In a way that was worse than any of her speculations. Because his lightning-speed presentation was like a message to the jury—a message that said, Look, my client’s clearly so innocent that I don’t even have to belabor the matter.
The trial had taken a terrible toll on Steve Levin. He had been sitting in the courtroom almost every day for over two months, unable to attend to his work, unable to concentrate on anything but his daughter’s killer and her killer’s tricky lawyer. Some days he had grown so tense and angry that he had stood up and briefly glared at Robert, or cursed him under his breath. But on the weekend that Litman ended his case, Levin tried to relax. He drove out to his house in Montauk and on Saturday went surfing.
It was a sparkling sunny day with a trace of spring in the air, and the sea in which he had shared so many happy moments with Jennifer looked calm and manicured. Wearing a wet suit and a helmet, he plunged into the icy water. And he remained in it for half an hour.
He wasn’t the only surfer to brave the cold. There were four or five others. But I’m the oldest, he thought, I’m the old man of the sea.
He was only forty-six, but his experiences over the last seventeen months had made him feel like eighty-six.
“Did you see the article in the News?” a reporter said to a newscaster while they waited on a crowded press line the morning that the lawyers were due to give their summations.
“You mean the one about the murder trial that shocked the city.”
“Yeah, whaddidya think?”
“I didn’t know what trial they were talking about,” the newscaster shrugged. “Not this one, that’s for sure. I mean, did you hear anything shocking at this trial?”
“No,” the reporter said, and several of his colleagues nodded their heads, for the trial had in fact contained few surprises and no shocks. Robert hadn’t testified, so the unsavory secrets of his past had remained hidden. And despite all the preliminary talk about how Litman was going to blame Jennifer for her own death, the lawyer—perhaps because protests and demonstrations had been mounted on Jennifer’s behalf—had been moderate in his attacks on the dead girl. He had simply gone after the prosecution’s evidence, done so fairly and legitimately, and fairly and legitimately destroyed it. They’d been cheated, some members of the press murmured. It wasn’t as bad as some other times, like the time they’d gotten themselves all psyched up for Sid Vicious’s trial and the guy had ruined it all by OD-ing. But still, it was a rotten break.
In the courtroom that morning, a courtoom so packed that the struggle to get seats had erupted into fistfights, Litman told the jury, “You have been here ten weeks, and you still don’t know what the prosecution’s theory of this case is.” It was true. He had blocked and interrupted the prosecution’s story so successfully that it had emerged as a jigsaw of lost and ill-fitting bits and pieces. But the jurors needn’t be mystified, he went on, for Robert had explained everything there was to explain in his videotaped statement to the police, and that statement could certainly be trusted because, “Was that the kind of story you make up to get out of something?”
When he said this, juror Mosconi nodded.
Litman then proceeded, methodically and slowly, to compare the often flawed evidence and witnesses the prosecution had introduced with Robert’s own explanations.
He spoke for four hours; and the whole time he did, Robert’s generally vacant eyes were focused and intense, clinging to Litman’s face the way a man being rescued at sea clings to a life buoy.
Litman wasn’t that strong, Fairstein thought when he had finished. Not as strong as he was when he cross-examined.
She was glad for many reasons, not the least of which was that Litman had angered her by persuading Judge Bell that she shouldn’t be permitted—as she had asked to be permitted—to do her summation the next morning. He wants the jury to hear me when they’re tired out from listening to him, she thought as she rose and stood before the jury box. And then she snapped the jurors alert with a poignant opening. “Even if you disregard the testimony of every witness who appeared before you,” she said, “the photographs of Jennifer Levin celebrating her future at Dorrian’s in the hours before her death, lying sprawled on the ground in Central Park later that night, and spread out the next day against the cold backdrop of the autopsy room of the city morgue argue to you the violent nature of her murder better than any testimony.”
A few minutes later she was attacking and mocking Robert’s story. “He says he was tied down,” she said. “And that when he got an arm free, he had no choice but to put it around Jennifer’s neck. But where was his other arm? Tied to the Woolworth Building?”
Juror Cole Wallace smiled.
She admitted she didn’t know what had motivated Robert to kill Jennifer, but reminded the jury that they didn’t need to have a motive in order to convict. Still, she suggested one. Robert’s fight with Jennifer might have started, she said, because he was in a rage at being impotent with her, an impotence caused by his consumption of “too many beers and too much tequila.” And then she marshaled the medical evidence, asserting that all the experts, including Litman’s, had agreed that, in general, it would take fifteen to thirty seconds of pressure on the neck to cause the kinds of hemorrhages that had been found in Jennifer’s eyes.
She’s gonna pull the watch stunt, now, Litman said to himself worriedly as he heard Fairstein talk about the hemorrhages. She’s gonna take out a watch and show the jury how long fifteen seconds can be. Let it crawl by. Ask them to imagine what it’s like to be strangled that long. That’s always powerful stuff.
But a moment later, Fairstein was ending her four-hour speech. “Don’t make the mistake that Jennifer Levin did,” she said in a final, once again poignant, coda. “Don’t trust Robert Chambers.”
She missed a good one, Litman thought. And what she did throughout most of her summation was, she substituted emotion for logic.
Down in the lobby a vast crowd of spectators, gathered to hear the summations, began drifting slowly away. A reporter noticed the psychologist who had helped Litman pick the jury and hurried over to talk to her. “I didn’t hear every day of jury selection,” she said. “Bell only le
t a few press people in at a time. But I was there the day Juror Number Twelve was selected, and I could see why you wanted him, but not why Fairstein let you have him. He was terrifically argumentative. The kind of guy that hangs a jury.”
“There are several like that!” the psychologist, Andrea Longpre, said proudly.
The following morning—it was March 17, St. Patrick’s Day—Judge Bell gave his instructions to the jury, which from now on would be sequestered, confined to their deliberation room all day, put up in cheap hotels at night. He told them that if they could not convict Robert of intentional or depraved indifference murder, they could consider lesser charges. One was manslaughter in the first degree, a crime which the law defines as a defendant’s causing death to someone while not intending to kill but merely to cause serious physical harm. The second was manslaughter in the second degree, a crime which the law defines as a defendant’s causing death to someone while intending neither to kill nor harm him, but as a result of consciously disregarding the possibility that his actions may cause death. The third was criminally negligent homicide, a crime which the law defines as a defendant’s causing someone’s death without either intent or conscious awareness that he might, by his actions, do so—what the rest of us call an accident.
Any of these crimes might fit the evidence, Bell explained. It was up to the jury to decide. But before proceeding to the lesser charges, they must first reach a unanimous decision about each of the murder charges.
The jurors, who for nearly three months had been enjoined from discussing the case with anyone, even one another, were like children dismissed from school that morning. They were voluble, excited, exhilarated, and each person believed that what he thought about the case would prove to be what the others thought. Then they took a vote. Three people were in favor of convicting Robert of intentional murder. The others were opposed.