Presumed innocent kc-1 Read online

  Thus it would be an act contrary to his professional acumen were Sandy Stern to commit himself to an unreserved faith in everything I say. Instead, he does not ask.

  This procedure has one further virtue. If I were to meet any new evidence by frontally contradicting what I had told Sandy in the past, legal ethics might require him to withhold me from the witness stand, where I almost certainly intend to go. Better to see everything the prosecution has, to be certain that my recollection, as the lawyers put it, has been fully "refreshed," before Sandy inquires about my version. Caught in a system where the client is inclined to lie and the lawyer who seeks his client's confidence may not help him do that, Stern works in the small open spaces which remain. Most of all, he desires to make an intelligent presentation. He does not wish to be misled, or to have his options curbed by rash declarations that prove to be untrue. As the trial approaches, he will need to know more. He may ask the question then; and I certainly will tell him the answer. For the time being, Stern has found, as usual, the most artful and indefinite means by which to probe.

  "Della Guardia's theory is something like this," I say. "Sabich is obsessed with Polhemus. He's calling her house. Can't let go. He has to see her. One night, knowing that his wife will be going out and that he can get to Carolyn on the sneak, he calls up, begs to see her, and Polhemus finally agrees. She rolls around with him for auld lang syne, but then something goes wrong. Maybe Sabich is jealous of another relationship. Maybe Carolyn says that this was merely the grand finale. Whatever it is, Sabich wants more than she will give. He blows a gasket. He gives her what-for with some heavy instrument. And decides to make it took like rape. Sabich is a prosecutor. He knows that this way there will be dozens of other suspects. So he ties her up, opens the latches to make it look like somebody slipped in, and then-this is the diabolical part-pulls her diaphragm out of her, so there won't be any evidence of consent. Like all bad guys, of course, he makes a few mistakes. He forgets the drink he had when he came in, the glass he left on the bar. And he does not think-maybe even realize-that the forensic chemist will be able to I.D. the spermicide. But we know he did evil to this woman, because he never revealed-he lied-about his presence on the night of the murder, which is established by all the physical evidence."

  This exposition is eerily comforting to me. The heartless hip analysis of crime is so much a part of my life and my mentation that I cannot make myself sound ruffled or even feel a fragment of concern. The world of crime has its argot, as ruthless as the jazzman's is sweet, and speaking it again I feel I am back among the living, among those who see evil as a familiar if odious phenomenon with which they have to deal, like the scientist studying diseases through his microscope.

  I go on.

  "That's Nico's theory, something like that. He has to straddle a little bit on the question of premeditation. He might argue that Sabich had it in mind to do her in from minute one, that he chose this night so he had an alibi, in case she refused to build the old fire anew. Maybe Sabich was on a different trip: You can't live if you won't be mine. That'll depend on evidentiary nuances. Probably Nico will give an opening that won't lock him in. But he'll be close to this. How does it sound?"

  Sandy looks over his cigar. They are Cuban, he told me a few weeks ago. A former client gets them, he does not ask how. The wrapper, deep brown, burns so cleanly that you can see the leaf veins etched within the ash.

  "Plausible," he says at last. "Evidence of motive is not strong here. And it is usually critical in a circumstantial case. Nothing ties you to any instrument of violence. The state is further disadvantaged because you were, in essence, a political opponent of Della Guardia-never mind that you did not consider yourself a political employee, a jury will not believe that, and for our purposes should not be told that. There is additional evidence of bad feeling between you and the prosecuting attorney inasmuch as you personally fired him from his post. The importance of these matters, however, could be greatly reduced if the prosecuting attorney himself did not try this case."

  "Forget that," I say. "Nico would never move out of the spotlight."

  Stern seems to smile as he draws on the cigar.

  "I quite agree. So we will have those advantages. And these factors, which would raise questions in the mind of any reasonable person, will take on large importance in a circumstantial case, from which you and I both know juries are disinclined. Nevertheless, Rusty, we must be honest enough to tell ourselves that the evidence overall is very damaging."

  Sandy does not pause long, but the words, even though I probably would have said as much myself, feel like something driven against my heart. The evidence is very damaging.

  "We must probe. It is difficult, of course, and I am sure painful, but now is the time that you must put your fine mind to work on this case, Rusty. You must tell me every flaw, every defect. We must look scrupulously at each piece of evidence, each witness, again and again. Let us not say that any of this hard work will be done tomorrow. Best to begin right now, today. The more deficiencies we find in this circumstantial case, the better our chances, the more Nico must explain, and explain with difficulty. Do not be afraid to be technical. Every point for which Della Guardia cannot account increases your opportunities for acquittal."

  Although I have hardened myself, one word catches me like a blow. Opportunities, I think.

  Sandy summons Jamie Kemp to take part in our discussion, as it is bound to suggest various motions for discovery that we will soon be called upon to file. To hold down my expenses, Stern has agreed to allow me to assist in research and investigation, but I must act under his direction. With Kemp, I share the work of the junior lawyer, and I have enjoyed this collaboration more than I had counted on. Kemp has been Stern's associate about a year now. As I get the story, quite some time ago Jamie was a guitarist in a medium-popular rock-and-roll band. They say he went through the whole shot, records and groupies and road shows, and when things went downhill he decamped for Yale Law School. I dealt with him in the P.A.'s office on two or three occasions without incident, but he had a reputation there for being preppie and stuck-up, impressed by his own blond good looks and a lifetime of good fortune. I like him, though he sometimes cannot suppress a little of that Waspy amusement with a world by which, he is convinced, he will never quite be touched.

  "First," says Stern, "we must file a notice of alibi." This is a declaration, no questions. We will formally notify the prosecution of our intention to stand by my statement in Raymond's office that I was at home the night Carolyn was murdered. This position deprives me of what, in theory, is probably the best defense-conceding that I saw Carolyn that night for an unrelated reason. That posture would dampen the force of the physical evidence and focus instead on the last of any proof tying me to the murder. For weeks, I have been expecting some artful effort by Stern to discourage the alibi, and I find myself relieved. Whatever Sandy thinks of what I said, he apparently recognizes that to reverse field now would be too difficult. We would have to conceive an innocent explanation for my eruption on Black Wednesday-why I went out of my way to lie, in outraged tones, to my boss, my friend, and the two top lawyers from the new administration.

  Stern pulls the box to him and begins sorting through the documents. He starts from the front, the physical evidence.

  "Let us go to the heart of the matter," says Stern. "The glass." Kemp goes out to make copies of the fingerprint report, and the three of us read. The computer people made their findings the day before the election. By then Bolcarro was playing ball with Nico, and so Morano, the police chief, surely was as well. This report must have gone straight to the top and right out to Nico. So Delay probably told the truth himself when he claimed that Wednesday in Horgan's office that he had acquired significant evidence against me during the campaign and chose not to publicize it. Too much of a last-minute mess, I would suppose.

  As for the report, it says, in brief, that my right thumb and middle finger have been identified. The other latent presen
t remains unknown. It is not mine; it is not Carolyn's. In all likelihood it belongs to one of the initial onlookers at the scene: the street cops who responded to the call, who always seem to run around touching everything before the homicide dicks arrive; the building manager, who found the body; the paramedics; maybe even a reporter. Nonetheless, it will be one of the difficult stray details for Della Guardia to cope with.

  "I would like to look at that glass," I say. "It might help me figure some things out."

  Stern points at Kemp and tells him to list a motion for production of physical evidence.

  "Also," I say, "we want them to produce all the fingerprint reports. They dusted everything in the apartment."

  This one Stern assigns to me. He hands me a pad:

  "Motion for production of all scientific examinations: all underlying reports, spectographs, charts, chemical analyses, et cetera, et cetera, you know it better than I do."

  I make the note. Stern has a question.

  "You had drinks in Carolyn's apartment, of course, when you were there in the past?"

  "Sure," I say. "And she wasn't much of a housekeeper. But I think she'd wash a glass once in six months."

  "Yes," Stern says simply.

  We are both grim.

  Kemp has another idea.

  "I'd like to get a complete inventory of everything in that apartment. Every physical object. Where's the contraceptive jelly or whatever it is that this chemist is saying he finds present? Wouldn't that have been in her medicine cabinet?" He looks to me for confirmation, but I shake my head.

  "I don't even remember discussing birth control with Carolyn. I may be male chauvinist of the year, but I never asked her what she was doing."

  Stern is ruminating, temporizing in the air with his cigar.

  "Caution here," he says. "These are productive thoughts, but we do not want to lead Della Guardia to evidence he has not thought to obtain. Our requests, whatever they are, must be unobtrusive. Remember that everything that the prosecution discovers which favors the defense must be turned over to us. Anything we discuss which might be useful to them will be better left forgotten." Sandy gives me a sidewise look, quite amused. He enjoys being so candid with a former opponent. Perhaps he is thinking of some specific piece of evidence he kept from me in the past. "Best we conduct this search ourselves without disclosing our intentions." He points at Kemp; it is his turn. "Another motion, then: for an inventory of all items seized from the apartment of the decedent and for an opportunity to conduct a view and inspection of our own.

  "The apartment remains under seal?" he asks me.

  "I presume."

  "Also," says Stern, "your mention of Carolyn's personal habits leads to this thought. We should subpoena her doctors. No privileges survive her death. Who knows what we might discover? Drugs?"

  "Rope burns in the past," says Kemp.

  We all laugh, a grisly moment.

  Sandy, decorous as ever, asks if the name of one of Carolyn's doctors is "known to me." It is not, but all county employees are covered by Blue Cross. A subpoena to them, I suggest, is bound to uncover a good deal of information, including doctors' names. Stern is pleased by my contribution. The next group of documents we look at are the phone records from Carolyn's home number and my own, an inch-thick bundle of xeroxed pages with an endless train of 14-digit numbers. I hand the sheets one by one to Stern. From my phone, there are one-minute calls to Carolyn's recorded on March 5, 10, and 20. When I get to April 1, I spend a long time looking. I just lay my finger on the number that is recorded there at 7:32 p.m. A two-minute call.

  "Carolyn's," I tell him.

  "Ah, " says Stern. "There must be a commonsense explanation for all of this." Observing Stern work is like tracking smoke, watching a shadow lengthen. Is it the accent that allows him to lay that perfect subtle stress on the word "must"? I know my assignment.

  He smokes.

  "You do what at home, when you babysit?" he asks.

  "Work. Read memos, indictments, prosecution packages, briefs."

  "Must you confer with other deputy prosecuting attorneys?"

  "Occasionally."

  "Of course," says Stern. "Now and then, there is the need to ask a brief question, schedule an appointment. No doubt in all these months of records,"-Stern taps them-"there are a number of such calls to deputy prosecuting attorneys other than Carolyn."

  I nod with each suggestion.

  "There are a lot of possibilities," I say. "I think Carolyn was working on a big indictment that month. I'll look over some things."

  "Good," says Stern. He looks back to my MUD sheets for the murder night. His lips are rumpled, his look disturbed.

  "No further calls after 7:32," he says finally, and points.

  In other words, no proof that I was home, where I say I was.

  "Bad," I say.

  "Bad," Stern finally says aloud. "Perhaps someone called you that evening?"

  I shake my head. None that I remember. But I know my lines now.

  "I'll think about it," I say. I take back the MUD sheet for April 1, studying it a moment.

  "Can those things be dummied up?" asks Kemp. "The MUDs?"

  I nod.

  "I was thinking about that," I say. "The P.A. gets a bunch of xeroxes of the phone company's printouts. If a deputy, or somebody else, wanted to do a job on a defendant, he could make a great cut-and-paste and nobody would know the difference." I nod again and look at Kemp. "These things could be faked."

  "And should we pursue that possibility?" asks Stern. Is there some hint of rebuke in his voice? He is studying a thread pulled on his shirt-sleeve, but when his eyes light on mine for the briefest instant, they are penetrating as lasers.

  "We might think about that," I say at last.

  "Mmmm hmmm," says Stern to himself. He is quite solemn. He points at Kemp to make a note. "I do not believe we should explore this before the conclusion of the state's evidence. I would not want to see them introduce the fact that we made efforts to challenge the accuracy of these records and failed." He directs this remark to Kemp, but it is clear to me who is meant to catch its import.

  Stern reaches resolutely for another file. He checks his watch, a slim golden Swiss piece. The arraignment is in forty-five minutes. Sandy himself is due back in court sooner. He suggests we talk about the witnesses. I summarize what I have read thus far. I mention that Molto and Della Guardia provided no statements from two of the listed witnesses: my secretary, Eugenia, and Raymond. Sandy absently tells Kemp to list another motion for production. He has put his glasses back on, tortoiseshell half-frames, and continues studying the witness list.

  "The secretary," he says, "does not trouble me, for reasons I will explain. Horgan, candidly, does."

  I start when Sandy says this.

  "Certain witnesses," Sandy explains, "Della Guardia must bring to the stand, whatever their disadvantages to him. You know this, of course, Rusty, far better than I. Detective Lipranzer is an example. He was quite candid in his interview with Molto the day after the election and acknowledged that you asked him not to order your home telephone records. That is sufficiently helpful to the prosecution that Lipranzer will be called, notwithstanding the many fine things he will say about you personally. Horgan, on the other hand, is not a witness whom I would think a good prosecutor would ordinarily be eager to see. He will be known to all the jurors, and his credibility is such that it would seem quite risky to call him unless-" Sandy waits. He picks up his cigar again.

  "Unless what?" I ask. "Unless he is going to be hostile to the defense? I don't believe Raymond Horgan will put the bricks to me. Not after twelve years. Besides, what can he say?"

  "It is a matter of tone, not so much as content. I take it that he is going to testify to your statement in his office on the day after the election. One would think that Nico would be better off putting on Ms. MacDougall, if he had to accept an unfriendly witness. She at least has not been a local personality for more than a decade. On the othe
r hand, if it appears that Horgan, Della Guardia's political opponent, and your friend and employer for a dozen years, is sympathetic to the prosecution-that could be extremely damaging. That is the kind of courtroom nuance on which you and I both know close cases often turn."

  I look at him squarely. "I don't believe that."

  "I understand," he says. "And you are probably correct. Probably there is something we have missed that will seem obvious when we know Horgan's prospective testimony. Nonetheless-" Sandy thinks. "Raymond would meet with you?"

  "I can't imagine why not."

  "I will call him and see. Where is he now?" Kemp remembers the law firm. About six names. The League of Nations. Every ethnic group is mentioned. O'Grady, Steinberg, Marconi, Slibovich, Jackson, and Jones. Something like that. "We should plan a meeting for Horgan, you, and me as soon as possible."

  Strangely, this is the first thing Sandy has said that is both entirely unexpected, and whose effect I cannot seem to shake. It is true that I have not heard from Raymond since that day in April that I walked out of his office, but he has had his own concerns: new job, new office. More particularly, he is an experienced criminal defense lawyer and knows how circumscribed our talks would necessarily have to be. His silence I had taken as a professional accommodation. Until now. I wonder if this is not simply some malicious effort by the prosecutors to unsettle me. That would be like Molto.