The Tenth Case

by Joseph Teller

  "Do you have any idea," he asked Samara, "who killed your husband?"

  "No."

  "Can you think of anyone who might've wanted him out of the way?" As soon as he'd said the words, he regretted them. They sounded like something out of an old blackand-white movie from the forties.

  "You don't make billions of dollars," said Samara, "without making enemies along the way."

  Come to think of it, she belonged in an old black-and white movie from the forties.

  "I only know one thing," she added.

  "What's that?"

  "I didn't do it. You gotta believe me."

  "I do," Jaywalker lied.

  9

  NICKY LEGS

  That had been ten months ago, that first sit-down in which Samara had protested her innocence and Jaywalker had mumbled his "I do" with all the conviction of a shotgun groom. It had been two weeks before his appearance before the judges of the disciplinary committee, when he'd learned of his three-year suspension and begged to be per mitted to complete work on his pending cases. He'd coun tered their offer to let him "dispose of " five with a list of seventeen, which they'd then pared down to ten.

  Now, in June, with nine of those ten disposed of, Jay walker found himself in the strangest of all positions, a criminal defense lawyer with only one criminal left to defend.

  Why had he included Samara Tannenbaum in his mustkeep list, when her case was barely two weeks old at that point and he had dozens of others in which he'd invested far more time, effort and emotion? To put it into the ver nacular of modern mallspeak, it had been a no-brainer. First off, Samara's was a murder case. Jaywalker had once heard a colleague refer to a murder charge as nothing but an assault case in which you knew the complainant wasn't going to show up in court to testify against your client. Either the lawyer was joking, or he was a total jerk. Murder was like no other crime. There were longer trials, to be sure, and more complicated ones, and ones with lots more witnesses and paper and hearings and tape recordings and exhibits. There were crimes that carried equally severe sentences. Arson, for example, or kidnapping, or selling a couple of ounces of heroin or cocaine. Still, murder stood apart. Judges knew that, juries knew that and Jaywalker knew that. A life had been taken, the most important of the holy commandments had been broken, and the passion play that followed was almost biblical in its proportions. If for no other reason than that it was a murder charge, Samara's case deserved to be on Jaywalker's short list.

  But there'd been other reasons, too.

  By holding on to the case, Jaywalker knew that he would be able to keep the wolf from the door for as long as possible. With Samara insisting on her innocence, however ludi crously, came the promise of months of investigation, motions and preparation, followed by a trial and then, if she was convicted, a sentencing. If he strung it all out, it might even be long enough for his final act. He was tired, Jay walker was. Twenty years of defending criminals might not seem like much to an outsider, but to Jaywalker, it had felt like an eternity. The thing about it was, you were always fighting. You fought prosecutors, cops and witnesses. You fought judges. You fought court officers and corrections officers. You fought your own clients, and your clients' family and friends. And if you had your own family and friends—which Jaywalker, perhaps tellingly, had precious few of—you got around to fighting them, too, sooner or later.

  There'd been a time when he'd laughed at the word burnout. Like when his daughter had called from college two months into her freshman year to report that she was burned out from all the stress and needed plane fare to come home over Thanksgiving. He'd sent her a check, of course, but he'd had a good laugh at her complaint. Now, after twenty years of almost ceaseless fighting, Jaywalker knew there was indeed such a thing as burnout.

  If he played his cards right, he figured, he could ride this hand for a year or more, maybe even two or three, before they began his actual suspension. That would be enough. No reapplying, no promises to the Character and Fitness Committee to behave himself better next time around. They could pull his ticket and do whatever they wanted to with it at that point. He'd get a job, write a book, drive a cab, go on welfare, get food stamps, rob a bank. Whatever. So simply in terms of forestalling the inevitable for as long as possible, Samara's case, coupled with her denial of her guilt, was an ideal one.

  But if Jaywalker really wanted to be honest with him self, he knew there was more to it even than that. There was Samara herself.

  From the moment he'd first seen her six years ago, when she'd come in on that drunk driving charge, he'd been swallowed whole by her dark eyes and pouting lower lip. Even as he'd fought to play the mature, steady defender to her reckless, impulsive child, from the beginning it had been she who'd owned him. Owned him in the sense that, try as he might, he could never take his eyes off her when he was in her presence. He'd dreamed of her at night and fantasized about her by day. Sexual fantasies, to be sure. But life-altering ones, as well. In one of his darker reveries, it had been the sudden, unexplained death of Samara's older husband that had driven her headlong into Jay walker's comforting arms. So real and so elaborate had that particular scenario been that years later, when he first heard that Samara had been arrested for Barry's murder, Jay walker had been forced to wonder if he himself weren't somehow complicit in the crime.

  So the reasons were many why he'd hung on to her case, even at seventy-five dollars an hour. And now, as June gave way to July, it was all he had left, the only thing that stood between practicing his craft and being put out to pasture. And it represented his one last grand chance to overcome the impossible odds, slay the drag on, and win the dark-haired, dark-eyed princess of his dreams.

  Why impossible odds?

  Because in the ten months since he'd first sat down across from Samara in the counsel room to hear her say she hadn't killed her husband, things had indeed gone as Jay walker had suspected they would—from bad to worse to downright dreadful.

  The progression had begun almost immediately. From the twelfth-floor counsel visit room, Jaywalker had ridden the elevator down to the seventh floor, where he'd paid a visit to Tom Burke.

  "Hey, Jay. Howyadoon?"

  A lot of people called him Jay. Not having a first name kind of limited their options.

  "Okay, I guess," said Jaywalker. "I've just spent the last three hours with Samara Tannenbaum." It was true. After Samara's denial of her guilt and his own assurance that he believed her, they'd talked for another hour and a half. If he'd been impressed with her willingness to miss the one o'clock bus back to Rikers, he was somewhat troubled by her evident need to keep the meeting going as long as possible.

  "From what I hear," said Burke, "people have paid good money to spend thirty minutes with her. But I'll say this. She sure is good to look at."

  "That she is," Jaywalker agreed.

  "It's a shame she's a cold-blooded killer."

  Jaywalker said nothing. He was there to listen and, hopefully, to learn a thing or two, not to posture about his client's innocence. Particularly when he himself was hav ing trouble buying it.

  "Did you read the stuff I gave you Friday?" Burke asked him.

  "Yeah. And I appreciate your generosity." Jaywalker wasn't being facetious. They both knew Burke had handed over much more than the law required at such an early stage of the proceedings.

  "Hey," said Burke. "I got nothing to hide on this one. In my office, it's what we call a slam dunk."

  "Why?"

  "Why? I've got witnesses who put her there and have her arguing with the deceased at the time of death. I've got her false exculpatory statements, first that she wasn't there, then that they didn't fight. I've got the murder weapon hidden in her home. And I've got ten bucks that says that little dark-red stain on it is going to turn out to be a perfect DNA match with Barry's blood."

  "No," said Jaywalker. "I didn't mean, Why is it a slam dunk? I meant, Why did she do it?"

  Burke gave an exaggerated shrug. Jaywalker decided he could use a
lesson or two on the art from Samara. "Hey," said Burke, "why do seventy percent of murders happen? Two people who know each other get into an argument about some trivial piece of bullshit. They start swearing and calling each other names. Maybe they've been drinking, or smoking something. One thing leads to another. If there happens to be a gun around, or a knife…" He extended his arms, elbows bent slightly, palms turned upward, as if to say that in such situations, murder was all but inevitable, a part of the human condition.

  "That's it?"

  "What are you looking for?" Burke asked. "A motive?"

  "God forbid," said Jaywalker. The prosecution was never required to come up with a motive; the most they were ever asked to prove was intent. They taught you the difference in law school. You shot or stabbed or clubbed someone to death with the intent to kill them. Whether your motive behind that intent happened to be greed, say, as opposed to revenge or sadism, didn't matter.

  Only it did matter, Jaywalker knew. Because if a crime didn't make sense to him, it might not make sense to a jury, either.

  "Tell you what," said Burke, reading Jaywalker's mind. "Give me two weeks, I bet I'll have a motive for you. Want to go double or nothing on that ten bucks?"

  "Sure," said Jaywalker. "You're on."

  It was less than two weeks later that Jaywalker found himself standing before the three disciplinary committee judges. So if now he needed yet another reason to include Samara's name on his list, he had it: he had twenty bucks riding on the outcome.

  With Samara indicted but yet to appear in Supreme Court for her arraignment, the case fell into a legal limbo of sorts. In terms of formal proceedings, nothing would happen for the time being. No written motions could be filed yet, no hearings could be asked for, no plea could even be entered. Before any of those things could take place, the case would first have to travel from the fourth floor of 100 Centre Street to the eleventh. In real time, such a journey might be expected to take two minutes, three if the eleva tors were out of order, a fairly regular occurrence. But in courthouse time, it took three weeks.

  "Sorry, counselor," the lower court judge would always say. "If I give you an earlier date, the papers won't make it upstairs in time."

  "Give 'em to me," Jaywalker had pleaded over the years. "I'll have 'em up there before you can unzip your robe." But all it ever got him were unamused stares and even longer adjournments. To paraphrase an old saying, judges don't get mad, they get even.

  That said, the fact that Samara's case was stalled in traffic for the next three weeks didn't mean it was time for Jaywalker to sit on his hands or catch up on old issues of The New Yorker. Quite the opposite.

  Perhaps the single most overlooked job of the criminal defense lawyer—overlooked by not only the general public but by too many defense lawyers themselves—is investi gation. To far too many lawyers, investigation meant read ing the reports turned over by the prosecution and, in the rare case that the defendant screamed loudly enough and often enough that he had an alibi, going through the motions of checking it out.

  In Samara's case, Jaywalker had read, reread and all but memorized every word in the materials supplied by Tom Burke. He'd picked his client's brain and probed the recesses of her memory for a solid three hours, more time than a lot of lawyers spent talking with their clients over the life of a case. As far as any alibi defense was concerned, he'd ruled that out in the first five minutes. Samara, after initially lying to the detectives, now freely admitted that she'd been at Barry's apartment right around the time of his murder and had gone straight home from there, spending the rest of the evening alone.

  Still, one of the first things Jaywalker did was to sub poena the records for both her home phone and her cell. There'd been a time when all you could get were records of outgoing long distance calls. Nowadays, with everything done by computer, there was a record of every call. MUDDs and LUDDs, they called them, for Multiple Usage Direct Dialed and Local Usage Direct Dialed. Who knew what might turn up? Suppose she'd phoned Barry right after getting home and had since forgotten that she'd done so. If he'd picked up, that fact would show up on her records, proving that he'd been alive, or at least that someone who was alive had been there. Either way, it would mean that Samara was innocent.

  Innocent.

  Funny word, thought Jaywalker. To him, it had an almost religious mystique. For in criminal law, the word all but disappeared. You pleaded guilty or not guilty, and the jury was instructed to decide if your guilt had been proven or not, and told to return a verdict of guilty or not guilty. The only time the words innocent or innocence were even uttered during the course of a trial occurred when the judge charged the jury to remember that in the eyes of the law, the defendant was presumed innocent. After that, it was all about guilty or not guilty; rarely was the word innocent ever heard again.

  Which was just as well, particularly in Samara's case. For despite her insistence that she hadn't done it, Jaywalker knew it was just a matter of the passage of time and the building up of trust until she told him otherwise. Murder cases fell into two categories, he'd come to understand. There were the whodunnits and the whyithappeneds. If the evidence demonstrating that your client was the killer was shaky, you turned the trial into a whodunnit, raising what was sometimes referred to as the SODDI defense, for Some Other Dude Did It. On the other hand, if the evidence that your client did it was overwhelming, you looked around for things like self-defense, insanity or extreme emotional dis turbance. In other words, you conceded that it was your client who committed the act that resulted in the victim's death, and focused instead on the circumstances, particu larly the defendant's state of mind at the time of the incident.

  What you never did was try to cover all bases. You didn't tell the jury, "My client didn't do it. And if he did, it was self-defense. And if it wasn't self-defense, he was insane." There was a name for lawyers who hedged their bets like that.

  Losers.

  Jaywalker was confident that Samara's case was going to turn into a whyithappened. When, sooner or later, she got around to admitting that she'd killed Barry, they would talk about the why. Her husband had done something to provoke her, no doubt. Perhaps he'd tormented her or threatened her, or come at her with something that, in her desire to conceal her presence at his apartment, she'd hidden or taken with her. Whatever it was, there had to be a reason. Samara wasn't a cold-blooded killer, Jaywalker was pretty sure. Something had happened that night, some thing significant enough to cause her to pick up a knife and plunge it into her husband's chest. Getting Samara to let go of the truth might prove to be a slow and painful process, but it would happen.

  Only it hadn't happened yet. Which meant that, for the time being at least, Jaywalker had to proceed as though his client were, well, innocent. As though indeed, some other dude (or dame) had done it. In other words, it was time for some investigation.

  One of the things that set Jaywalker apart from his col leagues was that he did a lot of his own investigation. He came by it naturally enough. Before he'd passed the bar and landed his first lawyering job with Legal Aid, he'd put in four years as an undercover agent with the DEA, the Drug Enforcement Administration. There they'd taught him how to bug a room, tap a phone, pick a lock, lift a print, tail a car, run a license plate and locate the subscriber of an unlisted phone number. He'd learned how to shoot a gun, too, and, for that matter, how to break a nose, crush a larynx and deliver a knee to the balls with astonishing ef ficiency, though those particular skills had pretty much atrophied over the years. Most of all, he'd learned how to pass, how to blend in. How to wear the clothes, walk the walk and talk the talk of the street like one who'd grown up on it. So once he'd made the move from apprehender to defender, whenever a case called for some investiga tion—and to Jaywalker's thinking, all cases called for in vestigation—he liked nothing better than to assign the task to himself.

  There were times, however, when that didn't work. Chief among them was when it was reasonable to believe that somewhere down th
e line, Jaywalker the lawyer might have to call Jaywalker the investigator to testify at trial. Woody Allen had actually given it a pretty good try in Take the Money and Run, alternately posing questions from the lectern and then racing to the witness stand to answer them. But it was pulling stunts just like that that had landed Jaywalker in hot water with the disciplinary committee, and he knew this was a particularly inopportune time to stage a retrospective of his antics. He decided that the in vestigation needed at the moment in Samara's case might indeed become the subject of trial testimony. It was, there fore, time to call someone else.