Joseph Teller - The Tenth Case

"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 anyway. When they begin asking her questions about her and her husband, but refuse to tell her what it's all about, she decides it's none of their business and barely gives them the time of day. In fact, she lies to them, telling them she hadn't been at Barry's the evening before. As soon as they tell her they know otherwise, she admits it. They ask her if she and Barry fought, and she says no. They spend a few minutes debating the difference between a fight and an argument. And then, just like that, they slap handcuffs on her and arrest her for murdering her husband."

If only it were so simple, thinks Jaywalker, if only that's all there was to it. But there's more, much more, and like it or not, he has to deal with it. So it's theory time.

"Members of the jury, you are about to embark on the journey of a lifetime. Nothing you've ever been through, in all your years, will have fully prepared you for it. And nothing you will ever experience over the rest of your lives will even come close to matching it. Put your hands firmly on the armrests of your seat, and hold on as tightly as you can. And make sure you use both hands. Because this isn't going to be just one journey, but two."

A few of them-not all, but a few-actually do as they're told, grip the armrests of their seats.

"Mr. Burke has ably and forcefully outlined the first journey for you. His is a journey that's going to take you from one piece of evidence to the next, and then to the one after that. And each piece of that evidence, whether it comes to you in the form of a witness's testimony, some physical object or a sheet of paper, is going to point over whelmingly to the guilt of Samara Tannenbaum. That's right, you heard me correctly. If you choose to take that first journey, and that first journey alone, you'll end up con vinced that Samara's guilty. Because it'll all be there right in front of you, served up on a silver platter. Samara's presence at Barry's apartment shortly before the murder. Their voices raised in argument. Her initial lie to the de tectives. A knife capable of having caused the fatal wound hidden away in her home, along with a blouse of hers and a towel, all three of them with Barry's blood on them. A month-old application for an insurance policy on Barry's life, with Samara's signature on it. The policy that was issued, worth twenty-five million dollars in the event of Barry's death. A perfect motive, if ever there was one.

"Jurors, you can confine yourselves to this one journey, the journey Mr. Burke has outlined for you. If you decide to do that, it'll take you no time at all to become convinced of Samara's guilt, and you'll come out of this trial thinking that this was the strongest case there ever was. And in a sense, you'll be right. Strong? The word doesn't begin to do it justice. Try o verwhelming. Airtight. Perfect. So perfect, in fact, that it should scare the living daylights out of you and make you ask yourselves if things are ever, e ver, so perfect in real life.

"Because, jurors, there's another journey you can take, if you're up to it. If you dare. A second journey through the very same evidence outlined by Mr. Burke. A second journey I beg you to take, implore you to take. This journey begins with a proposition, a proposition that flows from the rule of law that asks you, r equires you, demands of you, that you presume Samara innocent. It's a proposition that, if you give it a chance, may explain why this case seems so in credibly strong, so utterly convincing, so absolutely perfect, when almost nothing ever is in this world we inhabit.

"And here-" dropping his voice again now, forcing them to lean forward once more "-is the proposition. Samara Tannenbaum is being framed."

The collective gasp is so audible that Jaywalker fears he's gone over the top and lost them. But there's no turning back. All he can do now is repeat himself, dig in, and hope that one or two of them will stay with him.

"That's right," he says, " framed. As you listen to the evidence, jurors, try not to be dazzled by it. Shield your eyes from the blinding light, protect yourselves from the blast of heat, and try to see through to the core of it, the essence, the part that truly makes sense. The damning items found in Samara's home, for example. Was that really where she would have hidden them, if indeed she'd mur dered her husband? In a place where they were absolutely sure to be found? The life insurance policy. Did she really expect to collect twenty-five million dollars on a policy taken out a month before murdering her husband? Did she think nobody would notice? This woman who lives in the glare of publicity? Come on, she's smarter than that, and so are you. The clumsy, obvious lies to the detectives. Proof that Samara's a murderer? Or that she's simply someone who doesn't particularly like cops, especially cops who seem to be prying into the details of her mar riage? The fact that she argued with her husband. Earth shaking? Or a pretty common thing? The list goes on and on. What you'll find is that every single piece of evidence against Samara has a flip side to it, if only you'll allow it to reveal itself.