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 elevators 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 investigation. To far too many lawyers, investigation meant reading 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 subpoena 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 disturbance. 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, particularly 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, something 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
