Presumed innocent kc-1 Page 20

  And now, dear God, I think, dear God in whom I do not believe, I pray to you to stop this, for I am deathly frightened. Dear God, I smell my fear, with an odor as distinct as ozone on the air after a lightning Bash. I feel fear so palpably it has a color, an oozing fiery red, and I feel it pitifully in my bones, which ache. My pain is so extreme that I can barely move down this hot avenue, and for a moment cannot, as my backbone bows with fear, as if a smelted rod, red-hot and livid, had been laid there. Dear God, dear God, I am in agony and fear, and whatever I may have done to make you bring this down upon me, release me, please, I pray, release me. Release me. Dear God in whom I do not believe, dear God, let me go free.

  Chapter 22

  In the United States, the prosecution in a criminal case may not appeal the outcome. This is a constitutional principle, declared by the U.S. Supreme Court. An American prosecutor, alone among all the advocates who stand before the bench-among the sophisticates and hacks, the collection lawyers in their rayon suits, the bankruptcy moguls, the divorce-court screamers, the gold-chained dope lawyers or the smooth likes of Sandy Stern, the big-firm "litigators" who perform even routine courtroom tasks in pairs-the prosecutor alone is without right to seek review of a judge's trial rulings. Whatever the majesty of his office, the power of the policemen he commands, the bias in his favor jurors always bring to court, a prosecutor is often under a continuing duty to endure in silence various forms of judicial abuse.

  Nowhere, while I was a P.A., was that obligation more regularly or onerously home than in the courtroom of Judge Larren Lyttle. He is sly and learned and indisposed by the experience of a lifetime to the state's point of view. The habits of twenty years as a defense lawyer, in which he regularly manhandled and belittled prosecutors and police, have never left him on the bench. And beyond that, he has a black man's authentic education in the countless ways that prosecutorial discretion can be used to arrogantly excuse unreasoning caprice. The random and complete injustices which he witnessed on the streets have become a kind of emotional encyclopedia for him, informing each decision that is made almost reflexively against the state. After two or three years, Raymond gave up coming to court to argue. The two of them would bellow at each other as they must have done in their old law office. Then Larren would bang his gavel, more adamant than ever, and declare a recess so that he and Raymond could make up back in chambers and plan to have a drink.

  Judge Lyttle is on the bench, receiving status reports on other cases, when Stern and I arrive. It is always as if there is a spotlight. He is the only person you see-handsome, mercurial, extraordinarily prepossessing. Judge Lyttle is a big human being, six foot four or five and broad across. His first fame came as a football and basketball hero at the U., where he went on scholarship. He has a full head of medium-length African hair, most of it gone gray, a big face, enormous hands, a princely style of oratory, with a large voice, full across all the male ranges. His intelligence, which is mighty, is also somehow transmitted by his presence. Some say Larren sees his future on the federal bench; others guess that his real goal is to succeed Albright Williamson as the congressman from the district north of the river, whenever it is that Williamson ceases defying age and his cardiologist's predictions. Whatever his inclinations, Larren is someone whose prospects and personal powers make him in these parts a man of capital importance.

  We were summoned here yesterday morning by a phone call from the judge's docket clerk. With the filing of the defendant's pre-trial motions two days ago, His Honor desires to hold a status hearing on my case. I suspect that he is going to rule on some of our requests, and perhaps discuss a trial date.

  Sandy and I wait in silence. Kemp has stayed behind. The three of us spent yesterday together and I told them everything I knew about each witness Nico has listed for the case. Stern's questions remained precise and limited. He still did not ask me if I screwed Carolyn that night, or was there for any other reason, or whether, notwithstanding my prior proclamations, I own any instrument that might conform to the crack atop her head.

  I spend these moments, familiar downtime in a Courtroom lawyer's life, looking about. The reporters are all here again, although the sketchers have stayed home.

  Judge Lyttle, politic in the ways a judge can be, treats reporters well. There is a table set aside for them against the western wall and he always gives the press room a call before issuing any decision of import. The courtroom where the course of the rest of my life will be determined is a jewel. The jury box is set off by a walnut rail and descending baubles, round spheres of beautifully grained wood. The witness stand is similarly constructed and abuts the judge's bench, which is well elevated and covered by a walnut canopy supported by two red marble pillars. The docket clerk, the bailiff, and the court reporter (whose job is to write down every word spoken in open court) are in a well before the bench. A few feet in front of them, two tables have been placed, finely hewn, again in darker walnut, with carefully turned legs. These tables for the lawyers on trial sit perpendicular to the bench. The prosecution, by tradition, will sit nearer the jury.

  When all the other business is finished, our case is called. Some of the reporters creep up to the defense table to better hear the proceedings, and the assembly of lawyers-and me-convene before the bench. Stern, Molto, and Nico state their names. Sandy notes my presence. Tommy shoots me a little grin. I bet he's heard about our meeting with Raymond last week. "Gentlemen," Judge Lyttle begins, "I asked you here because I thought we could do a little work to move this case along. I have some motions from the defendant and I'm prepared to rule on them, unless the prosecutors are particularly anxious to make a response."

  Tommy speaks in Nico's ear.

  "Only to the motion to disqualify Mr. Molto," Nico says.

  Naturally, I think. An entire office working for him, and he's still gun-shy about putting things on paper.

  Larren says that he will leave the motion to disqualify to the end, although he has some thoughts about it.

  "Now the first motion," Larren says, with the stack of paper right before him, "is a motion to set an immediate trial date. And I've thought about this, and as the prosecutors know, the Rodriguez case pled earlier this morning, so I will be free for twelve trial days beginning three weeks from today." Larren looks to his calendar. "August 18. Mr. Stern, can you be here?"

  This is an extraordinary development. We had expected nothing sooner than the fall. Sandy will have to set everything else aside-but he barely hesitates.

  "With pleasure, Your Honor."

  "And the prosecution?"

  Nico at once begins to back and fill. He has a vacation planned. So does Mr. Molto. There is still evidence to be developed. With that, Vesuvius erupts.

  "No, no," says Judge Lyttle, "I will hear none of that. No, sir, Mr. Delay Guardia." He pronounces Nico's name that way, as if he is trying to incorporate the nickname. With Larren, you can never tell. "These charges here-These charges are the most serious crime-What else could you do to Mr. Sabich? A prosecutor his entire professional life, and you bring charges like this. We all know why Mr. Stern wants a quick trial. There're no secrets here. We've all been tryin cases for a good part of our lives. Mr. Stern has looked at the evidence you have provided by way of discovery, Mr. Delay Guardia, and he doesn't think you have much of a case. He may not be right. I wouldn't know about that. But if you come into this courtroom chargin a man with a crime, you better be ready to prove it. Right now. Don't be tellin me about what's going to develop. You can't leave this hangin over Mr. Sabich like that old sword of Damocles. No, sir," Larren says again. "We're gonna have a trial three weeks from today."

  My blood is ice. Without excusing myself, I take a seat at the head of the defense table. Stern glances back momentarily and seems to smile.

  "Now, what else have we got?" says Larren. Just for an instant, as he looks about, there is a private smile. He can never quite hide his satisfaction with himself for trashing a prosecutor. He passes quickly on our motions for
production. Every one is granted, as they should be. Tommy complains a little bit about the motion to produce the glass. He reminds the court that the prosecution has the burden of proving a chain of custody-that is, that the glass was never out of the state's hands-an impossibility if the glass is turned over to the defense.

  "Well, what is it that the defense wants to do with this glass?"

  I stand immediately. "I want to take a look at it, Your Honor."

  Sandy give me a corrosive glance. With his hand on my forearm, he puts me back down in my seat. I will have to learn: it is not my place to speak.

  "Fine," says Larren, "Mr. Sabich wants to look at the glass. That's all. He's got that right. The prosecution has got to show him the evidence. You know, I've looked over the discovery and I understand why Mr. Sabich might want to look very carefully at that glass. So that motion will be allowed."

  Larren points at me. It is the first real notice he has taken of my presence. "And by the way now, Mr. Sabich, you of course will be heard through counsel, but if it's your desire to speak yourself, you have that right. At any time. When we have our conferences in chambers or during the proceedings, you have every right to attend. I want you to know that. We all know Mr. Sabich is a fine trial lawyer, one of the finest trial lawyers we have in these parts, and I'm sure he'll be curious about what we're doin from time to time."

  I look at Sandy, who nods, before I answer. I thank the court. I tell him I will listen. My lawyer will speak.

  "Very well," the judge says. But his eyes hold the light of a warmth that I have never seen from him in court. I am a defendant now, in his special custody. Like a chieftain or a Mafia don, he owes me some protection while I am in his domain. "Next we have this motion to get into the apartment."

  Molto and Nico confer.

  "No objection," Nico says, "so long as a police officer is present."

  To that, Sandy instantly objects. A few moments of typical courtroom skirmishing follow. Everybody knows what's going on. The prosecutors want to figure out what we are looking for. On the other hand, they have a valid point. Any disturbance of the contents of Carolyn's apartment will hinder their ability to make further use of the scene for evidentiary purposes.

  "Well, you have pictures by now," Larren says. "Every time I have one of these cases, I wonder if the prosecutors haven't formed some kind of alliance with Kodak." The reporters all laugh and Larren himself smiles. He is like that. He loves to entertain. He directs his gavel at Della Guardia. "You can have a trooper by the door so you can be sure that no members of the defense remove anything, but I'm not gonna let you snoop on what they're lookin at. The prosecution's had four months to look all over that apartment," Larren says, including in his count the month when I was head of the investigative team. "I think the defense is entitled to a few minutes in peace. Mr. Stern, you draft an appropriate order and I'll sign it. And let's be sure that you give notice in advance to Ms. Polhemus's administrator or executor or whoever represents her estate, so they know what the court intends to allow.

  "Now, let's talk about this motion to disqualify Mr. Molto." This is our request to prevent Tommy Molto from acting as one of the trial lawyers on the case, because Nico has said Molto may be a witness.

  Nico, starts right in. To disqualify one of the prosecutors with three weeks to trial would be an onerous burden. Impossible. The state could never be ready. I do not know if Nico is looking for more time, or trying to defeat the motion. He is probably not sure himself.

  "Well, look now, Mr. Della Guardia, I'm not the person who told you to put Mr. Molto on your witness list," Judge Lyttle says. "I cannot imagine how you thought you were going to proceed with a prosecutor who might be a witness. A lawyer may not be an advocate and a witness in the same proceeding. We've been doin business in our courts the same way for about four hundred years now. And I do not intend to change it for this trial, no matter how important it is to any of the participants, no matter how many reporters show up from Time or Newsweek or anyplace else." Judge Lyttle pauses and squints toward the reporters' gallery, as if he only now had noticed them there.

  "But let me say this-" Larren stands up, and wanders behind the bench. Five feet off the ground to start with, he speaks from an enormous height. "Now, I take it, Mr. Delay Guardia, that the statement you are speaking of is the one where Mr. Sabich responds to Mr. Molto's accusation of murder by saying, 'You're right.'"

  "Yeah, you're right," says Nico.

  Larren accepts the correction, bowing his large head.

  "All right. Now, the state has not offered the statement yet. However, you've indicated your intentions and Mr. Stern has made his motion for that reason. But this is what occurs to me. I really am not sure that statement will come into evidence. Mr. Stern hasn't made any objection yet. He would rather see Mr. Molto disqualified first. But I imagine, Mr. Delay Guardia, that when we get there Mr. Stern is gonna say that this statement is not relevant." This is one of Larren's favorite means of assisting the defense. He predicts objections he is likely to hear. Some of them-like this one-are clearly going to come. Others never would have occurred to defense counsel. In either event, when formally made, the objections foretold inevitably succeed.

  "Your Honor," says Nico, "the man admitted the crime."

  "Oh, Mr. Delay Guardia," says Judge Lyttle. "Really! You see, that is my point. You tell a man he's engaged in wrongdoing and he says, 'Yeah, you're right.' Everyone recognizes that's facetious. We all are familiar with that. Now, in my neighborhood, had Mr. Sabich come from those parts, he would have said, 'Yo' momma.'"

  There is broad laughter in the courtroom. Larren has scored again. He sits on the bench, laughing himself.

  "But you know, in Mr. Sabich's part of town, I would think people say, 'Yeah, you're right,' and what they mean is 'You are wrong.'" Pausing. "To be polite."

  More laughter.

  "Your Honor," Nico says, "isn't that a question for the jury?"

  "On the contrary, Mr. Delay Guardia, that is initially a question for the court. I have to be convinced this evidence is relevant. That it makes the proposition for which it is offered more probable. Now, I am not ruling yet, but, sir, unless you are a good deal more persuasive than you have been so far, I expect that you will find me ruling that this evidence is not relevant. And you might want to keep that in mind in addressing Mr. Stern's motion, because if you're not going to be offering that evidence, or relying on it in cross-examination of the defendant, why then, I'd have to deny the defendant's motion."

  Larren smiles. Nico, of course, is screwed. The judge has as much as told him that the statement will not be admitted. Nico's choice is to lose Molto and make a futile effort to introduce the evidence, or to keep Tommy and abandon the proof. It is really no choice at all for him-better to take half a loaf. My statement to Molto has just disappeared from this case. Molto approaches the podium. "Judge-" he says, and gets no further. Larren interrupts. His face drains of all good humor.

  "Now, Mr. Molto, I will not listen to you address the admissibility of your own testimony. Maybe you can convince me that that time-honored rule prohibiting a lawyer from bein a witness in a case he tries shouldn't be applied here, but until you do, I will not hear further from you, sir."

  Larren closes business quickly. He says he will see us for trial on August 18. With one more glance toward the reporters, he leaves the bench. Molto is still standing there, his look of disgruntlement plain. Tommy's always had a bad habit for a trial lawyer of allowing his dissatisfaction to be evident. But Judge Lyttle and he have been going at each other now for many years. I may not have recalled Carolyn's service in the North Branch, but I could never have forgotten Larren and Molto. Their disputes were notorious. Exiled by Bolcarro to that judicial Siberia, Judge Lyttle applied his own rough justice. The cops were guilty of harassment, unless proven otherwise. Molto, beleaguered and bitterly unhappy, used to claim that the pimps and junkies and sneak thieves, some of whom made daily appearances in Larren's cou
rt room, would rise to applaud him when he assumed the bench for the morning call. The police despised Judge Lyttle. They invented racial epithets that showed the same imagination which put humankind upon the moon. Larren had been downtown for years by the time I finished the Night Saints investigation and Lionel Kenneally was still complaining whenever he heard Larren's name. There was one story Kenneally must have told me ten times about a battery case, brought by a cop who claimed that the defendant had resisted arrest. The cop, named Manos, said he and the defendant had gotten into a tussle shortly after the defendant called the cop a name.

  What name? Larren asked him.

  Here in court, said Manos, I'd rather not say, Judge.

  Why, Officer, are you afraid you might offend those present? Larren gestured toward the forward benches, where the defendants on the morning call were seated, an assemblage of hookers, pickpockets, and junkie thieves. Speak freely, Judge Lyttle said.

  He called me motherfucker, Your Honor.

  From the benches there were whistles, catcalls, lots of joviality. Larren gaveled silence, but he was laughing, too.

  Why, Officer, said Larren again, still smiling, didn't you know that is a term of endearment in our community?

  The folks on the benches went wild: black-power salutes and a frenzy of stroking palms. Manos took all of this in silence. A minute later, when Molto rested, Larren directed a verdict for defense.

  'And the great part,' Kenneally told me, 'is that Manos comes up to the bench then, stands there with his hat in his hand, and says to Lyttle, sweet as a school kid, "Thank you, motherfucker," before he walks away.'

  I have heard this story from two other people. They agree on the final exchange. But both of them swear the last remark came from the bench.