perfecting the rest of his trial skills until that number would climb into the low nineties, never again would he miss an opportunity to open, and to open expansively.
Samara's case would be no different.
That said, months had gone by in which Jaywalker had had absolutely no clue what he could possibly say in his opening. The problem was a direct corollary of his cer tainty that not only was Samara guilty as charged, but that her case was all but unwinnable.
A lot of criminal defense lawyers-including Jaywalker himself in the early days of his career-went into such a trial hoping to somehow discover a defense in the testi mony. A key prosecution witness would fail to material ize, perhaps, or recant his previous version of the facts. A cop would screw up, either in his paperwork, on the stand, or both. An inexperienced prosecutor would inadvertently leave something important out of his case. Manna would fall from the heavens.
But Jaywalker had come to learn that on overwhelming cases, there were always other witnesses who would show up, who wouldn't recant. That there would be other cops who wouldn't screw up. That Tom Burke was not only ex perienced, but talented and extremely thorough. And that manna rarely, if ever, fell from heaven. So going into the most daunting trials, along with bringing his own experi ence, talent and thoroughness, Jaywalker always brought something else with him. Always.
What he brought was a theory.
And he would share that theory with the jurors early on, so that even as the prosecutor's evidence came in and piled up and threatened to crush the defense table with its sheer weight, the jurors would at the very least have an alterna tive framework in which to consider that evidence.
There was another thing Jaywalker liked to do, and that was to concede things. If he was trying a possession of stolen property case, for example, he would readily concede that the property had in fact been stolen, that the defendant had indeed possessed it, and that it was even worth whatever dollar amount the prosecution's expert claimed it was. But, Jaywalker would argue, the defendant hadn't known it was stolen, and without that essential knowledge, he wasn't guilty. Making concessions not only narrowed the focus of the trial to something debatable, it carried the added benefit of earning both Jaywalker and his client credibility with the jury, so that when it came time to argue about whether or not the defendant had known of the theft, the jurors were open to the possibility that he hadn't. After all, he'd been so forthcoming and honest in admitting all those other things, didn't it follow that his one denial deserved deference?
Weeks ago, when Jaywalker had finally allowed himself to at least consider the remote possibility that Samara wasn't guilty, he'd been forced to come up with a theory of defense. The lack of phone calls to or from Barry after she'd gotten home had left her utterly without an alibi. Selfdefense wouldn't work, with Samara continuing to insist she'd never stabbed Barry, not even to protect herself from attack or abuse, whether real, threatened or merely imag ined. And with Samara looking and sounding perfectly normal and having no history of mental illness, insanity was out of the question.
It had been the discovery of the Seconal, along with Samara's insistence that she knew absolutely nothing about it, that had ultimately provided Jaywalker with a theory. Someone had framed Samara. Someone had murdered Barry and then gone to great lengths to not only cover his own tracks, but to plant evidence making it look as though Samara had committed the crime. He'd been smart enough to know that in looking to solve a murder, particularly one without a robbery component, the police invariably focused their suspicions on the husband or wife, boyfriend or girl friend. And hadn't they done just that in Samara's case?
Sure, it was a long shot. But when you were down to one shot, it didn't much matter how long or short it was. You took it, and you hoped for the best.
Now it was time to tell the jurors about it.
For the first time since they'd been selected, the jurors took their permanent seats, assigned to them in the order in which they'd been chosen. They were sworn in once again, this time as a body. The judge then spoke to them for twenty minutes, explaining their function and his, and outlining the course of the trial that was about to begin in earnest. Then it was Tom Burke's turn to open. He spoke for fifteen minutes, pretty much following the book that all prosecutors seem to use. First he read the indictment, lin gering an extra beat on the word murder. Then he com pared his opening statement to a table of contents, a guide to what he intended to prove through his witnesses and by his exhibits. Next he got down to specifics. He told the jurors about the discovery of Barry Tannenbaum's body; the next-door neighbor's account of having heard Barry and his wife 'Sam' arguing; Samara's lies to the detectives; the finding of the bloodstained evidence in her town house; the DNA match of that evidence to a known sample of Barry's; and finally the piece de resistance, the motive, the life insurance policy application, complete with Samara's signature. It was strong stuff, and Jaywalker couldn't help but notice that more than a single pair of jurors' eyes rolled upward as the list grew in length and weight. Finally Burke did what all prosecutors do.
'At the end of the evidence,' he said, 'the rules will provide me another opportunity to address you. And at that time I'll ask you to find the defendant guilty as charged, guilty of the murder of her husband, Barry Tan nenbaum.' Then he thanked them and sat down.
Under New York law, prosecutors are required to deliver opening statements; they're given no say in the matter. Defense lawyers get to choose. This apparent inequity is really no inequity at all. It's nothing but a logical exten sion of the rule that the prosecution bears the burden of proving guilt, while the defense bears no burden at all.
Judges routinely inquire of defense lawyers ahead of time whether they intend to open or not, and in this regard Judge Sobel had been no exception. Jaywalker, who'd been up all night going back over his opening, had known forever that he would open; he always opened. Nonethe less, when asked by the judge earlier that morning, before the jury had entered the courtroom, he'd answered, 'It depends upon what Mr. Burke has to say in his remarks.' It was a lie, to be sure, but a harmless one, meant to fool no one. And judging from the grins it brought from both the judge and Burke, it didn't.
Still, like everything Jaywalker did during the course of a trial, the lie had its purpose, and that purpose be came clear now.
'Mr. Jaywalker,' said the judge, 'do you wish to make an opening statement on behalf of the defendant?'
For a second or two he just sat there, as though ponder ing the offer and trying to decide whether to take the judge up on it or not. Eighteen pairs of eyes peered at him from the jury box. Finally, he said, 'Yes, I do,' gathered some notes, decided not to use them after all, rose from his chair and walked to the front of the jury box.
'It is August,' he tells them, starting off in a voice so soft that the jurors in the second row have to lean forward and cock their heads just to hear him. No introduction, no 'Mr. Foreman, ladies and gentlemen,' no 'May it please the court.' Just 'It is August.'
'Not this past August, but two Augusts ago. Samara Tannenbaum has been invited to her husband's apart ment for dinner. If that sounds strange to you-and it sure sounds strange to me-the evidence will show that while the couple shared a home in Scarsdale, both Barry and Samara had their own separate places in the city. Theirs was not a perfect marriage, by any stretch of the imagination.'
A couple of jurors smile, and there's even an audible chuckle. As Jaywalker's voice gradually rises, they no longer need to crane forward to hear him. Still, none of them have settled back into their seats. None of them are looking anywhere but into his eyes. Thirty seconds into his opening, and he has them.
'They eat Chinese takeout food. They argue about something foolish, as they almost always do. They raise their voices, call each other names. Sometime around eight o'clock, Samara, having had enough, gets up, says goodnight and leaves. There has been no fight, no struggle, no physical contact whatsoever. Absolutely no crime of any sort has been committed.
'Samara hails a cab and goes directly home. Tired, she goes to bed before ten. Without showering or bathing, without so much as washing her hands and face, in fact.'
A juror in the first row picks up on the significance of that and nods thoughtfully. Jaywalker fights the impulse to include Samara's little detail about having 'jerked off.' He's decided that as credible as the addition might be, it's decidedly a double-edged sword.
'Later that same day, two detectives show up. Samara, who's never been overly fond of cops, lets them in
