Presumed innocent kc-1 Page 17

  "Why does he need Raymond to testify, if he intends to call Molto?" I ask.

  Principally, says Stern, because Molto is, in all likelihood, not going to testify. Della Guardia has referred a number of times to Tommy trying the case. A lawyer is prohibited from being a witness and advocate in the same proceeding. Nonetheless, Sandy reminds Jamie that we ought to file a motion to disqualify Molto, since he is on the witness list. If nothing else, this will promote consternation in the P.A.'s office. And it will force Nico to forswear any use of my statement to Molto. Like me, Sandy considers it unlikely that Nico would really want to offer this in the prosecution's case. As Della Guardia's best friend and chief assistant, Molto would be too easy to impeach. But on the other hand, the statement could be used effectively in cross-examining me. It is best, therefore, to file the motion and force Nico's hand.

  Sandy moves ahead. "This I do not understand," he says. He holds aloft the statement of the maid who says she saw me on a bus into the city from Nearing on a night near the time Carolyn was murdered. "What is Della Guardia up to?"

  "We only have one car," I explain. "I'm sure Molto checked the registrations. Barbara took it that night. So I had to have another way to get to Carolyn. I bet they had a trooper standing out at the bus station in Nearing for a week, looking for someone who could make my picture."

  "This interests me," Stern says. "They apparently accept that Barbara indeed left you at home that night. I understand why they would concede that she took the car. There have been too many unfortunate episodes with women around the university for anyone to believe she would be using public transportation at night. But why agree she left at all? No prosecutor would want to argue that the defendant rode a bus to a murder. It does not sound authentic. They must have found nothing with the taxi companies and rent-a-car. I take it that they are looking at records of some kind which confirm Barbara's absence."

  "Probably the log-in sheet at the U.," I say. Nat and I have gone to watch his mother work on the computer on occasion. "It'll show she used the machine. She signs in when she gets there."

  "Ah," says Stern.

  "What time would that be?" Jamie asks. "Not late, right? She'll know you were home at the time of the murder-or at least that she left you there, won't she?"

  "Absolutely. Her computer time's at eight. She leaves for the U. seven-thirty, twenty-to the latest."

  "And Nat?" asks Sandy. "When is he in bed?"

  "Around then. Most of the time, Barbara gets him down before she goes."

  Kemp asks, "Does Nat get up a lot or does he sleep soundly?"

  "Like a coma," I say. "But I'd never leave him alone in the house."

  Stern makes a sound. That is not the kind of thing we will be able to prove.

  "Nonetheless," says Stern, "these facts are helpful. We are entitled to whatever records they have. That is Brady material"-evidence favorable to the defense. "We must make another motion. Fiery and outraged. A good assignment for you, Rusty." He smiles, kindly.

  I make the note. I tell Sandy there is only one more witness I want to talk about. I point to Robinson's name.

  "He's a shrink," I say. "I saw him a few times." Molto, I'm sure, is behind the ugly gesture of naming my former psychiatrist as a potential witness. Tommy is pulling my chain. I used to do things like that to defendants. Make sure they knew I'd been all over their lives. Last month Molto subpoenaed my bank account in Nearing. The president, an old friend of Barbara's deceased father, Dr. Bernstein, will not look at me now when I come in. From my checks, no doubt, Molto got Robinson's name.

  I am surprised by Stern's reaction to my disclosure.

  "Yes, Dr. Robinson," Sandy says. "He called me right after the return of the indictment. I neglected to mention that." He was too decorous is what Stern means. "He had seen my name in the paper as your lawyer. He merely wanted me to know he had been identified and that the police had attempted an interview. He was reluctant to trouble you with this information. At any rate, he told me he refused to make any statement on the grounds of privilege. I reaffirmed that and said we would not waive."

  "We can waive. I don't care," I say. I don't either. It seems like a minor intrusion, compared to what has taken place in the last few months.

  "Your attorney is ordering you to care. Della Guardia and Molto are no doubt hoping we will make a waiver, in the belief that this doctor will testify to your general mental health and the unlikeliness of criminal behavior."

  "I bet he will."

  "I see I did not make my point," says Stern. "I commented before. Evidence of motive here is weak. You summarized Della Guardia's theory very ably, I think. Sabich is obsessed, you said. Sabich is unwilling to let go. Tell me, Rusty. You have looked over Della Guardia's case. Where is the proof here of any prior amorous relationship between the defendant and the decedent? A few telephone calls that can be accounted for by business needs? There is no diary here. No note that came with flowers. No lovers' correspondence. That, I take it, is what your secretary will be called for, to add what she can, which I assume is not very much."

  "Very little," I say. Sandy is right. I did not see this hole. As a prosecutor, I would never have missed it. But it is harder when you have all the facts. Still, I battle back a lightheaded sensation of hope. I cannot believe that Nico could be weak on this essential. I point at the MUD sheets. "There are calls to my home from Carolyn's in late October, last year."

  "Yes? And who is to say they are not from Ms. Polhemus to you? You had been lawyers on an important case that was tried the month preceding. No doubt there were continuing developments. Bond questions. As I recall, there was a substantial dispute surrounding custody of the boy. What was his name?" "Wendell McGaffen."

  "Yes. Wendell. These are matters to which the chief deputy might have difficulty giving attention in the office."

  "And why did I tell Lipranzer not to get my home phone tolls?"

  "More difficult." Sandy nods. "But I take it for granted that a person of innocent state of mind would rule himself out as a suspect and prevent a busy detective from wasting his time." The way he puts things. I take it for granted. Like sleight of hand.

  "Mrs. Krapotnik?" I ask, alluding to her expected testimony that I was seen around Carolyn's apartment.

  "You were on trial together. Matters needed to be discussed. Certainly, if you want to get away from the Kindle County P.A.'s office, a most dreary environment, you are not going to go out to Nearing, where you live. No one denies you were in the apartment on occasion. We agree. Your fingerprints are on the glass." Sandy's smile is Latin, complex. His defense is taking shape, and he is quite persuasive. "No," Sandy says. "Della Guardia cannot call you, of course, or, presumably, your wife. And so he faces difficulties. Tongues no doubt have wagged, Rusty. I am sure half the attorneys in Kindle County now believe that they suspected your affair. But gossip will not be admitted. The prosecution has no witnesses. And thus no proof of motive. I would be more hopeful," Sandy says, "were it not for the problem of your testimony." His eyes, large and dark, deep and serious, briefly cross my own. The problem of my testimony. The problem, he means, of telling the truth. "But these are questions for the future. Our job, after all, is merely to raise a doubt. And it may be that when Della Guardia concludes his case the jury will be led to wonder if you are not the victim of a miserable coincidence."

  "Or if I was set up."

  Sandy is a reasonable man and judicious. He acquires his grave look in response to my proposal. He would obviously prefer that there be no illusions between client and counsel. He glances at his watch. It is getting close to show time. I touch his wrist.

  "What would you say if I told you that Carolyn seems to have had something to do with a case on which a deputy P.A. was bribed? And the P.A. on the case was Tommy Molto?"

  Sandy takes a very long time with this, his look tightly drawn.

  "Please explain."

  I tell him in a few moments about the B file. These are, I explain, grand-jury
secrets. Until now, I have preferred to keep them to myself.

  "And your investigations led where?"

  "Nowhere. It stopped the day I left."

  "We must find some way to continue. I would suggest an investigator ordinarily. Perhaps you have some other idea." Sandy puts out his cigar. He grinds the stub down carefully and looks at it an instant reverentially. He sighs, before he stands to put on his coat. "To attack the prosecutor, Rusty, is a tactic that is almost always pleasing to the client, and seldom convincing to a jury. These matters I mentioned before-your political opposition to Della Guardia, your firing of him-are items that will tarnish him, diminish his credibility. They will help us explain the prosecutor's zeal to accuse on insufficient evidence. But before we venture down the road to actual accusation, we must consider the matter very carefully. Successes by suggesting sinister motives in the state are, as you well know, quite rare."

  "I understand," I say. "I wanted you to know," I tell him.

  "Of course. And I appreciate that."

  "It's just," I tell him, "that's the way I feel. That it isn't a coincidence it lays out this way. I mean," and now, on sudden impulse, I finally bring myself to say what vestigial pride has so long prevented: "Sandy, I'm innocent."

  Stern reaches over and, as only he could do, pats me on the hand. He has a look of deep, if practiced, sadness. And as I meet this brown-eyed spaniel expression I realize that Alejandro Stern, one of this town's finest defense lawyers, has heard these ardent proclamations of innocence too many times before.

  Chapter 19

  At ten minutes to two Jamie and I meet Barbara at the corner of Grand and Filer and advance with her to the courthouse. The press horde is waiting for us on the steps beneath the columns. I know a back entrance through the heating and cooling plant, but I figure I can use that trick only once, and I have had the dismal thought that there may come another day when I am particularly eager to avoid this clawing mass, with their halogen lights, their boom mikes, their shoving and their shouting. For the moment, I am content to push my way through, saying, No comment.

  Stanley Rosenberg from Channel 5, splendidly handsome except for particularly prominent front teeth, is the first to reach us. He has left his camera person and sound crew behind and approaches me alone, walking beside us. We address each other by first names.

  "Any chance you'll do something on camera?"

  "None," I answer.

  Kemp already is trying to intervene, but I hold him off as we continue walking.

  "If you change your mind, will be promise to call me first?"

  "Not now," Jamie says, and lays his hand on Stanley's sleeve. Stanley to his credit maintains his good humor. He introduces himself and makes his pitch to Kemp instead. Right before the trial, Rosenberg says, a broadcast interview with Rusty would be good for everybody. Stern will never let me make statements to anyone, but Kemp, as we approach the steps and the waiting crowd of cameras, lights, and microphones, says merely, "We'll think about it." Stanley remains behind as we start up, Kemp and I flanking Barbara, more or less boosting her by the elbows as we shove our way through.

  "What do you think about the fact that Raymond Horgan is going to testify against you?" Stanley shouts as we are parting.

  I pivot quickly. Stanley's bad teeth are fully revealed. He knew he'd get me with that one. Where does that come from, I wonder. Stanley may have made assumptions upon reading the court file where Nico's witness list was filed. But Rosenberg has long-term connections to Raymond, and instinct tells me that he would not use Horgan's name loosely.

  The cameras are barred by judicial order inside the courthouse, and as we swing through the brass revolving doors, it is only the print and radio reporters who follow us in a pack, thrusting out their tape recorders and shouting questions to which none of us respond. As we hurry down the corridor toward the elevators, I reach for Barbara's hand, which is around my arm.

  "How are you doing?" I ask.

  Her look is strained, but she tells me she is fine. Stanley Rosenberg is not as good-looking as he appears on TV, she adds. None of them is, I tell her.

  My arraignment is before the Honorable Edgar Mumphrey, chief judge of the Kindle County Superior Court. Ed Mumphrey was leaving the P.A.'s office just about the time that I began. He was regarded with a kind of awe even then, for one reason: he is very rich. His father opened a chain of movie theaters in this town, which he eventually parlayed into hotels and radio stations. Ed naturally has labored to appear immune to his fortune's influence. He was a deputy for almost a decade; then he entered private practice, where he remained for only a year or two before the call came to the bench. He has proved a straight, capable judge, short just enough candlepower to keep him from being regarded as brilliant. He became chief judge last year, an assignment which is primarily administrative, although he hears all arraignments, and negotiates and takes guilty pleas when they are offered in the early stages of proceedings.

  I take a seat in Judge Mumphrey's dark, rococo courtroom, in the front row. Barbara is beside me in a fine blue suit. For reasons that baffle me, she has also chosen to wear a hat, from which descends a coarse black mesh, presumably intended to suggest a veil. I think of telling her that the funeral is not yet, but Barbara has never shared the blacker side of my sense of humor. Beside me, sketching madly, are three artists from the local TV stations drawing my profile. Behind them are the reporters and the court buffs, all awaiting my reactions upon first being called a murderer in public.

  At two o'clock Nico enters from the cloakroom, with Molto close behind. Delay is without restraint and goes on answering the questions of reporters who followed him into the little side anteroom. He talks to them through the open door. The prosecuting attorney, I think to myself. The fucking P.A. Barbara has taken my hand, and with Nico's appearance she grips it a little tighter.

  When I first met Nico, a dozen years ago, I recognized him instantly as a smart-ass ethnic kid, familiar to me from high school and the streets, the kind who, over the years, I had self-consciously chosen not to be: savvier than he was smart, boastful, always talking. But with few others to look to, I formed with Nico the sort of fast association of fresh recruits. We went to lunch together. We helped each other with briefs. After our first few years, we drifted, a result of our native differences. Having clerked for the Chief Justice of the State Supreme Court, I was perceived as lawyerly. Nico, like dozens of deputy P.A.'s for decades past, arrived in the office with his political network already thick. I would listen to him on the telephone. He had been a precinct captain in the organization of his cousin, Emilio Tonnetti, a county commissioner who had secured Nico's position, one of the last political hirings Raymond agreed to. Nico knew half the hacks and functionaries in the County Building, and he never stopped buying tickets to the political golf outings and dinners, and making the rounds.

  In truth, he proved a better lawyer than was expected. He can write, although he hates to spend time in the library; and he is effective before a jury. His courtroom persona, as I have observed it over the years, is typical of many prosecutors: humorless, relentless, blandly mean. He has a unique intensity which I always illustrate by telling what is known as the Climax story. I told it last week to Sandy and Kemp, when they asked about the last case I tried with Della Guardia.

  That was almost eight years ago, right after we had been assigned to the felony courts. We were both hungry for jury work, and therefore we agreed to try a dead-bang loser of a rape case on reassignment from somebody smarter.

  'Delay had the complaining witness, Lucille Fallon, on the witness stand,' I told Sandy and Kemp. Lucille, a dark-skinned lady, had been in a bar at four in the afternoon, when she met the defendant. Her husband, on unemployment, was home with the four kids. Lucille got to talking with the defendant, Freddy Mack, and agreed to accept a ride home. Freddy was a four-time loser, with a prior rape and an assault-which the jury of course never heard anything about-and he got a little overeager and took a s
traight edge from his pocket, thereby helping himself to what by all appearances was already going to come his way. Hal Lerner had the defendant, and he knocked every black out of the box, so there were a dozen middle-aged white people looking over this Negro lady who'd gotten a little rougher treatment than she wanted when she went out to wander.

  Nico and I had spent hours attempting to prepare Lucille for her testimony, with no visible result. She looked terrible, a frumpy fat lady in a tight dress, rumbling on about this awful thing that happened to her. Her husband was in the front row and she laid it on thick, making up an entirely new version of events right in the courtroom. Now she had met Freddy as he was emerging from the tavern and asked her for directions. She was already heading for devastation on cross when Nico finally began to elicit testimony about The Act.

  And what did Mr. Mack do then, Mrs. Fallon?

  He done it.

  What was that, ma'am?

  What he been sayin he do.

  Did he have intercourse with you, Mrs. Fallon?

  Yes, sir, he done.

  Did he place his sex organ inside yours?

  Uh huh.

  And where was the razor?

  Right here. Right here on my throat. Pressin right there, I thought every time I breathe he goin to slice me open.

  All right, ma'am. Nico was about to move on, when I, seated at counsel table, handed him a note. That's right, said Nico, I forgot. Did he have a climax, ma'am?

  Sir?

  Did he have a climax?

  No, sir. He be drivin a Ford Fairlane.

  Delay never smiled. Judge Farragut was laughing so hard that he hid under the bench, and one of the jurors, literally, rolled out of his seat. Nico never even quivered. 'And after they came back NG,' I told Jamie and Sandy, 'he swore he would never try a case with me again. He said that because I had not managed to keep a straight face, I gave the jury the feeling it wasn't a serious case.'