Written motion papers are the vehicle by which a defense lawyer seeks to trigger an evidentiary hearing, one in which witnesses testify, to determine whether something ought to be suppressed. If that something happens to be physical evidence, the lawyer must assert facts to support three things. First, he must demonstrate illegality, that an unreasonable search in fact occurred and led to the seizure of the evidence. Second, that there was state action, that it was some branch of law enforcement, whether federal, state or local, that conducted the unreasonable search. Third, that the defendant has the requisite standing to complain about the illegality, by being the person aggrieved by the violation of his reasonable expectation of privacy.
The knife, the blouse and the towel fit the bill nicely enough. There certainly had been a search, and if the affi davit in support of the search warrant recited less than probable cause to believe that Samara had committed some crime, then the seizure of the items was illegal. The detec tives were employed by the NYPD, satisfying the state action requirement. And Samara was certainly the person aggrieved by any illegality, since it was her home that had been searched.
The requirements are similar, though slightly different, when it comes to confessions or admissions, which are partial confessions, elicited from suspects. In that case the issue changes from whether the search was reasonable or not to whether the statement was voluntary or not. First, there must have been a statement made; defendants who make no statements therefore get nowhere by insisting they were never read their Miranda rights. Second, there must once again have been state action; the statement must have been made in response to questioning by law en forcement personnel. A spontaneous utterance therefore fails the test, as does a confession made to a private person. Third, the questioning must have taken place in a custo dial setting—at a point in time when the individual was under arrest or, at very least, under the impression that he wasn't free to leave. Finally, there must have been a failure on the part of the questioner to both advise the individual of his right not to answer, and to obtain from the individual a knowing and intelligent waiver of that right.
Samara's false exculpatory statements—first that she hadn't been at Barry's apartment that evening, and then that they hadn't argued—qualified as admissions. They were made to detectives, who were certainly law enforce ment personnel. And never did those detectives read her her Miranda rights, or obtain a waiver of them from her. Once she asked for a lawyer, there would have been no point to their doing so, since the questioning was effectively termi nated at that point. The stumbling block, Jaywalker knew, would be the custody issue. The detectives had been careful to question Samara before placing her under arrest. He would have to argue that their presence in her home, coupled with their overbearing demeanor, reasonably led her to believe that she wasn't free to leave or to kick them out.
It would be an uphill battle, to say the least.
When he was done, Jaywalker's motion papers ran to ten pages, longer than in most of his cases. Unhappy about the fact, he reminded himself that this was a murder case. And he took consolation from having seen lawyers bring ing motions to the clerk's office in shopping carts.
That afternoon, Jaywalker got a call from Nicolo LeGrosso.
"Howyadoon?" LeGrosso said.
"Okay," said Jaywalker. "Whadayagot for me?"
When Jaywalker's wife had been alive, she'd often com plained about his chameleonlike habit of seamlessly lapsing into the speech pattern of whomever he was talking to, whether it happened to be a defendant, a witness, a cop or someone else accustomed to butchering the English language. "Speak like a lawyer," she'd scolded him. "You'll never win their respect by sounding like one of them." He'd tried to explain that it wasn't respect he was trying to win, only cases.
Now that his wife was dead, he still heard her voice every time he broke her admonition. But he couldn't help himself. Four years in law enforcement had done it to him, the same way four years in the military probably would have, or four years in a locker room. And the truth was, he wouldn't have changed even if he could have. It was one of the things that drew people to him, made them feel at ease with him. It's not such a long leap, after all, from "He sounds like one of us" to "He is one of us."
"I got bobkiss," said Nicky, proving that Italians who try to talk Jewish shouldn't. "Got the LUDDs and MUDDs you subpoenaed on your girlfriend's phones."
"She's not my girlfriend."
"Yeah, right. I seen her picture. I give you one month before you're in the sack with her."
Jaywalker thought about protesting, but let the remark go. You never won an argument with Nicky, he'd learned. Besides, he made it a policy never to bet against himself. "Anything on the phone records?" he asked instead.
"Nah. A couple of calls that night, but nothing to Barry boy."
"How about finding out if Barry had any enemies?" Jaywalker asked him. "Any luck there?"
"You bet," said Nicky. "A shitload of 'em, actually. Gimme a couple days, I'll have a whole who's who for you."
"Good."
Maybe one of them would turn out to have had a reason to kill Barry. And even if Jaywalker couldn't prove that some enemy had been able to get into the apartment that evening to do it, at least it would be a start. Because up until now, with unrelenting consistency, everything continued to point in Samara's direction. Something needed to happen, and it needed to happen soon.
Something did.
But when it did, it was anything but what Jaywalker was hoping for.
Tom Burke phoned to announce that Jaywalker now owed him not ten but twenty bucks.
"What?" Jaywalker asked. He'd forgotten what their double-or-nothing had been riding on.
"Motive," said Burke.
Jaywalker, who'd been standing up when he answered the phone, slumped into his chair, already feeling as though he might lose his lunch. Not that losing a bag of pretzels and a bottle of Snapple iced tea would be the end of life as he knew it.
"Check this out," said Burke, with barely restrained glee. "A month before the murder—actually thirty-three days, if you want to get technical—your client takes out a life insurance policy on her husband. Costs her a pretty penny, too, like twenty-seven grand. Want to guess how much the policy was for?"
"A trillion dollars." Jaywalker always went for the ri diculous in such conversations. That way he could pretend to be unfazed when he heard the actual lesser amount.
"Close," said Burke. "Twenty-five mil."
"Shit," said Jaywalker, way beyond fazed.
13
GIVING UP
Looking back on the case afterward, Jaywalker would never fail to remember that phone call, in which Tom Burke had broken the news of the life insurance policy to him, as the moment he gave up on Samara Tannenbaum.
It had long been Jaywalker's belief that if you were to pull any ten criminal cases out of a hat, one of those ten could be won by the very worst of defense lawyers. A vital prosecution witness would die or disappear, the arresting officer would get indicted as part of a car-theft ring, or something else would happen, causing the case against the defendant to disintegrate in front of the jury. At the opposite end of the spectrum would be the tenth case, one that even the best of defense lawyers couldn't possibly win. The D.A. would not only have the proverbial smoking gun, but would be prepared to back it up with a videotape of the de fendant committing the crime, a DNA match, fingerprints and a signed confession. In between those two extremes lay eight cases that were up for grabs. With prosecuting offices reporting conviction percentages anywhere from the mid-sixties all the way up to the high nineties, it followed that many defenders won none of the remaining eight—ever. Average lawyers won two, maybe three. It was only the exceptional lawyer who could win half.
Jaywalker won them all.
He knew, because he kept track.
He hadn't always done so. He'd begun after one particu larly satisfying acquittal on a double-murder case, when it dawned on him that it made six in a
row. Ever since, he'd kept tabs. Not on paper—that would have been far too vain. He kept tabs in his head, the way he'd secretly kept track of his batting average in Little League, comparing himself to Rod Carew or Wade Boggs, or whoever hap pened to be leading the major leagues at the time. In a business where most of his colleagues were struggling to win a third of their cases, Jaywalker's success rate topped ninety percent. It was the same success rate that the disci plinary committee had taken note of, even as they'd handed down his three-year suspension.
Now he'd learned that barely a month before her hus band's murder, Samara had secretly bet twenty-seven thou sand dollars on a thousand-to-one shot that Barry would be dead before the year was out. Secretly, because accord ing to Burke, she'd taken out the policy on her own, au thorizing in writing the payment of the premium from her own bank account, apparently without Barry's even know ing about it. And before the year was out, because it was a term policy, the term being six months, without so much as a standard renewability clause.
With that knowledge, Jaywalker had mentally taken Samara's case and moved it from the up-for-grabs stack over to the can't-be-won pile. It wasn't just the insurance policy itself, even with its pregnant timing and damning clauses. No, it was more than that. It was the way that Samara had hidden its existence from him, just as she'd hidden it from Barry. And the way that, when confronted about it, she continued to deny knowing anything about it. Jaywalker was forced to obtain from Burke one of the original duplicate application forms, so that he could have Samara examine her signature, her address, her date of birth, her Social Security number and her designation of herself as sole beneficiary.
"It sure looks like my writing," she admitted. "But maybe we should get one of those handwriting expert guys, just to make sure."
"Don't worry," Jaywalker told her. "Burke's already doing that."
He spent Thanksgiving at his daughter's, in New Jersey. Both she and her husband remarked about how tired he looked and asked him if it was the suspension that was getting him down.
"Not really," he said. "I was working too hard on a murder case, I guess."
"How'd it turn out?" his son-in-law asked.
"It's still going on."
Though they said nothing, he gathered from their stares that there'd been something strange about the way he'd said I was working, as though the case was indeed over.
November gave way to December, and Jaywalker turned his attention to other cases on his list of ten, by now down to seven. He rented a car and drove two hours up to Rhinebeck to visit his fourteen-year-old client in drug rehab, bringing a smile to the kid's face that lit up the whole rec room. He obtained an S visa for his Sudanese umbrella salesman, saving him from almost certain deportation. And he held the hand of his janitor's helper, making it three straight court appearances that the man hadn't wet his pants while standing in front of the judge.
As the holidays approached, business at 100 Centre Street slowed to a crawl, and Samara's case was adjourned into January. There were developments, none of which were particularly good. The only difference was that, having given up on her, Jaywalker no longer took them per sonally, no longer winced at each disappointment, no longer cringed at each setback. She'd murdered her hus band; he now knew that for sure. Let her handle the pain herself. She deserved it, and then some.
Burke responded to Jaywalker's motions, and Judge Sobel ruled that the search warrant had been properly issued and executed. He ordered a hearing on the issue of whether Samara's false exculpatory statements to the de tectives would be admissible at trial. But it hardly mattered, Jaywalker knew; Samara's lies were the least of the evidence against her.
Nicky Legs phoned to say that he'd narrowed Barry's enemy list down from eight to four. Out of the original eight, two had airtight alibis, one turned out to be a para plegic, and another had died a few months before the murder. The four that were left included one of Barry's former lawyers, who'd left over an accusation of embezzle ment; an accountant who'd wielded tremendous power over Barry's personal finances; the president of the co-op board, who wanted Barry to pay for water damage to his own apartment directly beneath Barry's, caused by a leak from an unauthorized washing machine; and the building's super, who'd sided with the president on the issue and had once been overheard calling Barry "a worthless Jew billionaire."
And Tom Burke called with the results of the handwrit ing analysis performed on the insurance policy application. An expert who'd compared the writing on the application with known exemplars of Samara's handwriting had found the two to be identical, to a certainty factor of ninety-nine percent. Not quite the astronomical numbers you got with DNA comparisons, to be sure, but good enough to amount to yet another body blow in an already one-sided fight.
A copy of the autopsy protocol arrived in the mail, along with the serology and toxicology reports. Jaywalker skimmed over the preliminaries—height, weight, clothing, old scars, general health, evidence of disease and stomach contents—and zeroed in on the important stuff. As sus pected, Barry Tannenbaum had died of a single puncture wound to the left ventricle of his heart, inflicted by a blade at least five inches in length by about three-quarters of an inch wide, serrated on the cutting edge and smooth on the opposite edge. The case had been ruled a homicide and the official cause of death listed as "cardiac arrest following exsanguination." In plain English, that meant Barry had bled to death. Samples of blood, brain and liver had been taken at the post mortem examination and sent for labora tory analysis, which subsequently revealed the presence of a small amount—.03%—of ethanol and an indeterminate amount of Seconal, a fairly strong barbiturate. Apparently Barry had had a drink sometime that afternoon or evening, and he'd probably taken a sleeping pill sometime during the twenty-four hours preceding his death. Then again, maybe Samara had slipped something into his egg drop soup or his fried rice before stabbing him. It might explain the absence of any signs of a struggle.
As was his habit, Jaywalker dutifully reported each new discovery to Samara. He knew a lot of lawyers who kept things from their clients, the way a lot of doctors kept things from their patients. Jaywalker was a firm believer in sharing things. Sharing, he believed, was an essential building block in the construction of attorney-client trust, even if it had so far failed to inspire Samara to reciprocate. By telling his clients about every development, both the good ones and the bad, he sent them the message that he wasn't going to censor anything or slip a rose-colored filter over it. That way, when he broke some piece of news to them, they would know they were hearing it straight, and that it was really as good—or as bad—as he was making it out to be. Moreover, on an ethical level, he felt he had no right to withhold information from a client in the name of protectionism or paternalism. It wasn't his case he was working on, after all; it was the client's case.
But there was yet another reason behind Jaywalker's sharing each new development with Samara. The news that kept coming in was so consistently bad that he figured that sooner or later the cumulative effect of it would have to overwhelm her resistance and force her to admit her guilt.
He figured wrong.
Every time he presented her with some new damning piece of evidence that Tom Burke or Nicky Legs had un covered, she would deflect it, deny any role in it, or insist that she had no recollection of it. An extremely stubborn man himself, Jaywalker had to marvel at her intransigence, even as he despaired at her self-destructiveness.
At his daughter's insistence, Jaywalker spent Christ mas Eve and the following day in New Jersey. But with New Year's Eve approaching, he begged out of making a return trip, citing a mild case of the flu. He dozed off in front of the television set well before midnight, spared Dick Clark and the dropping ball, an almost empty tumbler of Kahlúa by his side.
14
COURT DATES
Murder indictments tend to work their way through the court system more slowly than other cases. Perhaps it's the relative complexity of the proof involved, or the seriousness of th
e charge, or even the fact that there's no complaining witness around to give the D.A.'s office a nudge. Even the law recognizes that murder cases are different in terms of how quickly they must be brought to trial. Not only are murders exempted from the statute of limitations, which de termines how long after the commission of a crime a defen dant may be charged, but in New York murders are also excluded from the speedy trial law, which determines how soon after being charged a defendant must be brought to trial.
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