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
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
