Presumed innocent kc-1 Page 15

  IN THE SUPERIOR COURT OF KINDLE COUNTY

  PEOPLE

  VS. VIOLATION:

  ROZAT K. SABICH Section 76610 R. S. S.

  THE KINDLE COUNTY GRAND JURY, JUNE SESSION, charges as follows:

  On or about April 1 of this year, within the venue of Kindle County,

  ROZAT K. SABICH

  defendant herein, did commit murder in the first degree in that he did

  knowingly, intentionally, and with malice aforethought trespass with force

  and arms upon the person of Carolyn Polhemus, thereby taking the life of

  the aforementioned Carolyn Polhemus;

  In violation of Section 76610 of the Revised State Statutes.

  A TRUE BILL:

  Joseph Doherty, Foreperson

  Kindle County Grand Jury

  June Session

  – -/s

  Nico Della Guardia

  Kindle County Prosecuting Attorney

  [SEAL)

  Chapter 18

  "The documents and reports are in the front. The witness statements are in the back," says Jamie Kemp as he sets a heavy cardboard box on the faultless finish of the walnut meeting table. We are in the small conference room in the offices of his employer, Alejandro Stern, my attorney. Kemp is sweating. He walked two blocks in the July sun from the County Building with these papers. His navy tie has been pulled away from his collar and some of his fancy blond Prince Valiant hairdo, an affectation left over from his younger days, is matted to his temples.

  "I'm going to check my phone messages," Kemp says, "then I'll be back to look at this stuff with you. And remember," Kemp points. "Don't panic. Defense lawyers have a name for what you're feeling. They call it clong."

  "What's clong?"

  "Clong is the rush of shit to your heart when you see the state's evidence." Kemp smiles. I am glad he thinks I can still take a joke. "It is not fatal."

  It is July 14, three weeks since my indictment for murdering Carolyn Polhemus. Later this afternoon I will appear before Chief Superior Court Judge Edgar Mumphrey for my arraignment. Under state statutes governing discovery in criminal cases, the prosecution is required, prior to arraignment, to make available to the defense all physical evidence they intend to introduce, and a list of witnesses, including copies of their statements. Thus, this box. I stare at the familiar label applied to the cardboard: PEOPLE v. ROZAT K. SABICH. I am full of that feeling again: This hasn't happened. Alone in this comfortable room, with its dark wainscoting and rows of crimson-jacketed law books, I wait for this now familiar adhesion of dread and longing to pass.

  There is another copy of the indictment in the front of the box. I always focus on the same words. Trespass with force and arms. Trespass vi et annis, a term of the common law. With these same words for centuries persons in the English-speaking countries were accused of acts of violence. The phrase is archaic, long abandoned in most jurisdictions, but it is part of the text of our state statute, and reading it here always leaves me with the sense of a bizarre heritage. I have made league with the all-stars of crime, John Dillinger, Bluebeard, Jack the Ripper, and the million lesser lights, the half-mad, the abused, the idly evil, and the many who surrendered to a moment's terrible temptation, to an instant when they found themselves well acquainted with our wilder elements, our darker side. After two months of daily press leaks, of rumor, innuendo, cruel gossip, I said resolutely that it would be a relief if an indictment finally came down. I was wrong. The day before, Delay sent Stern what is called the defendant's "courtesy copy." I first read the charges about forty feet from here, down the hall in Sandy's tasteful cream-colored office, and my heart and all my other organs were at once all stalled and so full of pain that I was certain that something in those regions must have burst. I could feel the blood gone from my face and I knew that my panic was visible. I tried to sound composed, not to show courage but because I suddenly realized it was simply the only alternative.

  Sandy was sitting beside me on the sofa, and to him I mentioned Kafka.

  'Does it sound horrible and trite to say that I can't believe this' I asked. 'That I am full of incomprehension and rage.'

  From Sandy these words had a kind of reach, the span of authentic wisdom. There is, with his soft Spanish accent, an elegance to the sound of even his ordinary speech. His dignity is soothing. Over time, I have found that I hover, like a lover, on every courtly gesture.

  'Rusty,' Sandy said to me, touching the page I held in my hand, 'you make no mention of the only thing'-he searched for a word-'which is encouraging.'

  'What's that?'

  'No notice. No Section 5 notice.'

  'Ah,' I said, and a shiver passed through me. In our state the prosecution must give notice at the time of indictment if it is seeking the death penalty. With all my finely calibrated calculations of Delay's intentions over the months, some zealous internal defense had prevented my mind from even lighting on that possibility. My look, I believe, revealed some of my embarrassment, even humiliation, that I was already so detached from routine professional perspectives. 'I assumed,' I said weakly.

  'Ah well.' Sandy smiled gently. 'We have these habits,' he said.

  At Sandy's advice, we were not in town when the indictment was returned. Barbara and Nat and I went to a cabin owned by friends of her parents, up near Skageon. At night, you could hear the rushing of Crown Falls, a mile away, and the trout fishing proved better than at any time I can recall.

  But, of course, the calamity four hundred miles south was never out of mind. The day after, George Leonard from the Trib somehow got the number of the cabin and asked me for a comment. I referred him to Stern. Later, I came in to hear Barbara in conference with her mother. After she put down the phone I asked, somehow feeling that I should.

  "It's all over?"

  "Everywhere. TV. Both papers. Front page. Pictures. Your old officemate Delay handed out every scummy detail."

  This proved to be an understatement. My case is the stuff of supermarket tabloids: CHIEF PROSECUTOR CHARGED WITH MURDER-HAD AFFAIR WITH VICTIM. Sex, politics, and violence mix in Kindle County. Not only was the local press full of this for days, but the national media, too. Out of curiosity, I began to read these accounts myself. The library in Nearing has an excellent periodical section, and I have little to do now during the days. On Stern's advice I refused to resign as a deputy P.A. and was placed on an indefinite administrative leave, with pay. As a result I have spent more time in the library than I would have expected. I join the old men and the bag ladies in enjoying the silence and the air conditioning as I inspect these national reports of my misconduct. The New York Times was, as usual, dryly factual, referring to everyone as Mr. and laying out the entire antic circumstance. It was, surprisingly, the national news magazines, Time and Newsweek, that did their best to make it all seem lurid. Each article was accompanied by the same photo, taken by some asshole I saw lurking in the bushes for a couple of days. Stern finally advised me to walk outside and let him take his picture, on the condition that he promise to beat it. That worked. The Minicam units which, according to the neighbors, were camped before the house for a week, while we were hiding out near Skageon, are yet to return.

  That makes little practical difference. After twelve years in winch I sometimes prosecuted the biggest cases in town, the papers and TV stations had enough footage of me on file to put my face everywhere. I cannot walk around Nearing without enduring endless staring. There is now a permanent hesitation in everybody's manner, a few portions of a second lost before a greeting. The comments of solace that are made, which are few, are ludicrous and inept-my cleaner telling me, "Tough break," or the teenage gas-station attendant asking if that's really me he's been reading about in the paper. Another thing I like about the library is that no one is allowed to talk.

  And how do I feel, so instantly struck low, brought down from my station as model citizen and become a pariah instead? To say that there are no words is inaccurate. There are words, but th
ey would be so many. My spirits keel about wildly. The anxiety is corrosive and I spend much time in a tumult of anger and disbelief. For the most part there is a numbness-a sense of idle refuge. Even in my concern for Nat, and how all of this will warp his future, the dawning thought is that it has happened, ultimately, just to me. I alone am the foremost victim. And to some extent, I can endure that. I acquired more of my father's fatalism than I expected; a side of me has always been without faith in reason or in order. Life is 'simply experience' for reasons not readily discerned, we attempt to go on. At instants I am amazed that I am here. I have taken to watching my shoes as I cross the pavement, for the fact that I am moving, that I am going anywhere, doing anything, strikes me, at odd moments, as amazing. That in the midst of this misfortune life continues seems bizarre.

  And mostly I am like this, floating and remote. Of course, a great deal of the time is also spent wondering why this has occurred. But I find that at some point along the way my ability to assay ceases. My speculation seems to lead to a dark and frightening periphery, the edge of a black vortex of paranoia and rage from which, thus far, I have instantly withdrawn. I know that on some levels I cannot take much more, and I simply do not. I worry instead about when it will be over, and what the result will be. I want, with a desperation whose size cannot be encompassed by metaphor, I want all of this never to have taken place; I want things to be as they were before, before I allowed my life to be ransacked by Carolyn, and everything that followed. And then there is my consuming anxiety for Nat: What will happen to him? How can he be sheltered? How can I protect him from shame? How can I have brought him to the brink of being, for all purposes, half an orphan? These are in some ways my worst moments: this raging, lashing frustration, this sense of incompetence, these tears. And then, once or twice, in the last weeks, an extraordinary feeling, lighter than air, more soothing than a breeze, a hope that seems to settle in without accounting, and which leaves me with the sense that I have mounted some high rampart and have the courage simply to look ahead.

  The case against me, as I assess it from the contents of the cardboard box, is straightforward. Nico has listed about a dozen witnesses of substance, more than half of them related to the physical and scientific evidence he plans to introduce. Lipranzer will be called, apparently to say I instructed him not to subpoena my home phone tolls. Mrs. Krapotnik has identified me as someone she saw in Carolyn's building, although she is not positive I am the stranger she observed on the night of the murder. Also listed is a maid from Nearing whose somewhat cryptic statement suggests that she saw me on the Nearing City bus one night close to the time Carolyn was killed. Raymond Horgan is named; Tommy Molto; Eugenia, my secretary; Robinson, the psychiatrist I saw on a few occasions; and a number of scientific experts, including Painless Kumagai.

  Nonetheless, this is clearly a circumstantial case. No one will say they saw me kill Carolyn Polhemus. No one will testify to my confession (if you do not consider Molto, whose file memorandum pretends to treat my last remark to him that Wednesday in April as if it was not rendered in a get-screwed tone). The heart of this case is the physical evidence: the glass with two of my fingerprints, identified from the knowns I gave a dozen years ago when I became a deputy P.A.; the telephone MUD records showing a call from my house to Carolyn's about an hour and a half before her murder; the vaginal smear, revealing the presence within Carolyn's genitalia of spermatozoa of my blood type, thwarted in their urgent blind migration by a contraceptive compound whose presence implies a consensual sex act; and finally, the malt-colored Zorak V fibers found on Carolyn's clothing, and her corpse, and strewn about the living area, which match samples taken from the carpeting in my home.

  These last two pieces of evidence were developed as the result of a visit to my house by three state troopers, which took place a day or two after the Black Wednesday meeting, as Barbara and I now refer to it, in Raymond's office. The doorbell rang and there was Tom Nyslenski, who has served subpoenas for the P.A.'s office for at least six years. I was still sufficiently unfocused that my initial reaction was to be mildly pleased to see him.

  I don't like to be here, he said. He then handed me two grand-jury subpoenas, one to produce physical evidence-a blood specimen-and one to testify. He also had a search warrant, narrowly drawn, which authorized the troopers to take samples of the carpeting throughout my home, as well as every piece of exterior clothing I owned. Barbara and I sat there in our living room as three men in brown uniforms walked from room to room with plastic bags and scissors. They spent an hour in my closet, cutting tiny swatches from the seams. Nico and Molto had been clever enough not to search for the murder weapon, too. A law enforcement professional would know better than to keep the thing around. And if the troopers searched for it, the prosecutors would have to admit in court that it could not be found.

  Is the stuff in here called Zorak V? I asked Barbara quietly while the troopers were upstairs.

  I don't know what it is, Rusty. Barbara, as usual, seemed to be placing a premium on maintaining her composure. She had a little pursed-up expression, peeved but no worse. As if they were fourteen-year-olds setting off firecrackers too late at night.

  Is it synthetic? I asked.

  Do you think we could afford wool? she replied.

  I called Stern, who had me make an inventory of what they took. The next day I voluntarily provided a blood sample downtown. But I never testified. Stern and I had our one serious dispute about that. Sandy repeated the accepted wisdom that an investigation target accomplishes nothing by pre-trial statements except to prepare the prosecutor for the defense. In his own gentle way, Stern reminded me of the damage I had already done with my outburst in Raymond's office. But in late April, unindicted, and convinced I never would be charged, my goal was to prevent this mad episode from damaging my reputation. If I took five and refused to testify, as I had the right to do, it would probably never reach the papers, but every lawyer in the P.A.'s office would know, and through them half the others on the street. Sandy prevailed when the results of the blood test came back and identified me as a secreter-that is, someone who produced A-type antibodies, just like the man who had last been with Carolyn. The chances of this being a coincidence were about one in ten. I realized then that my last opportunity for quick exoneration had passed. Tommy Molto refused to accept any substitute for my assertion of the privilege and so one bleak afternoon in May, I, like so many others I had often ridiculed, snuck into the grand-jury room, a little windowless chamber that looks something like a small theater, and repeated in response to thirty-six different questions, 'On the advice of my attorney, I will decline to answer because it may tend to incriminate me.'

  "So," says Sandy Stern. "How do you enjoy seeing the world from the other side?" Engrossed in mysteries of the cardboard box, I did not notice him enter the conference room. He stands, with one hand on the door handle, a short, roundish man, in a flawless suit. There are just a few stray hairs that cross his shining pale scalp, emanating from what was once a widow's peak. Tucked between the fingers is a cigar. This is a habit which Stern indulges only in the office. It would be uncivil in a public place and Clara, his wife, forbids it at home.

  "I didn't expect you back so soon," I tell him.

  "Judge Magnuson's calendar is dreadful. Naturally, the sentencing will be called last." He is referring to another case on which he has been engaged. Apparently he has spent a good deal of time waiting in court and the matter is not yet concluded. "Rusty, would you mind terribly if Jamie appears with you at the arraignment?" He begins to explain at length, but I interrupt.

  "No problem."

  "You're very kind. Perhaps then we can take a few moments with what your friend Della Guardia has sent over. What is it you call him?"

  "Delay."

  Sandy's consternation is apparent. He cannot figure out the reason for the nickname and he is too gentlemanly to ask me to reveal even the most trivial confidence of the P.A.'s office, with which he is so often a co
ntestant. He removes his coat and calls for coffee. His secretary brings it and a large crystal ashtray for his cigar.

  "So," he says. "Do we now understand Della Guardia's case?"

  "I think I do."

  "Fine, then. Let me hear it. Thirty-second summation, if you please, of Nico's opening statement."

  When I retained Sandy, within three or four hours of that bizarre meeting in Raymond's office, we spent thirty minutes together. He told me what it would cost-a $25,000 retainer, against a fee to be billed at $150 an hour for time out of court and $300 an hour in, the balance, strictly as a courtesy to me, to be returned if there was no indictment; he told me not to talk to anyone about the charges and, in particular, to make no more outraged speeches to prosecutors; he told me to avoid reporters and not to quit my job; he told me this was frightening, reminiscent of the scenes of his childhood in Latin America; he told me that he was confident that with my extraordinary background this entire matter would be favorably resolved. But Sandy Stern, with whom I have done business for better than a decade, against whom I have tried half a dozen cases, and who on matters of gravity, or of little consequence, has always known that he could accept my word-Sandy Stern has never asked me if I did it. He has inquired from time to time about details. He asked me once, quite unceremoniously, whether I'd had 'a physical relationship' with Carolyn, and I told him, without flinching, yes. But Stern has remained far clear of ever putting the ultimate question. In that he is like everybody else. Even Barbara, who evinces by various proclamations a belief in my innocence, has never asked me directly. People tell you it's tough. They cling or, more often, seem visibly repulsed. But nobody has sufficient sand to come out with the only question you know they have in mind.

  From Sandy this indirection seems more of his classical manner, the formal presence that lies over him like brocaded drapes. But I know it serves for more. Perhaps he does not ask because he is not certain of the verity of the answer he may get. It is a given of the criminal justice system, an axiom as certain as the laws of gravity, that defendants rarely tell the truth. Cops and prosecutors, defense lawyers and judges-everybody knows they lie. They lie solemnly; with sweaty palms and shifty eyes; or, more often, with a look of schoolboy innocence and an incensed disbelief when their credulity is assailed. They lie to protect themselves; they lie to protect their friends. They lie for the fun of it, or because that is the way they have always been. They lie about big details and small ones, about who started it, who thought of it, who did it, and who was sorry. But they lie. It is the defendant's credo. Lie to the cops. Lie to your lawyer. Lie to the jury that tries your case. If convicted, lie to your probation officer. Lie to your bunkmate in the pen. Trumpet your innocence. Leave the dirty bastards out there with a grain of doubt. Something can always change.