Innocent Page 22

  "In fact, Judge, Dr. Dickerman testified that the length and width of all of those impressions would suggest you gripped the bottle tightly so the childproof cap could be opened. Did you hear that testimony?"

  "Yes. But I also could have been gripping it tightly to pull it out of the bag."

  Molto stares with the inklings of another smile. My dad has handled all of that fairly well, ignoring the fact that my mom's prints appear nowhere on the bottle.

  "Well, let's talk about the pharmacy, Judge Sabich. Ten phenelzine tablets were purchased at your pharmacy on September 25, 2008, four days before your wife's death."

  "That was the evidence."

  "And the signature on the credit card slip, Judge, People's Exhibit 42--that's yours, is it not?" The slide of the slip, which was passed among the jurors in another transparent envelope when it was admitted, pops up next on the screen beside the witness stand. My father does not bother to turn.

  "Yes."

  "You purchased the phenelzine, didn't you, Judge?"

  "I do not remember doing that, Mr. Molto. I can only agree that it is plainly my signature and tell you that I often picked up the prescription when I was coming home, if Barbara asked me to do it. The pharmacy is across the street from the bus I rode to work every day."

  Molto checks his exhibit list and whispers instructions for the next slide.

  "And referring to People's 1B, a photograph, you heard Officer Krilic testify that the bottle of phenelzine portrayed there is in the same condition as when he removed it."

  "Yes."

  "And calling your attention to People's 1B, I think you can see that there are only six pills in the container, is that right?"

  In the photo, taken looking down into the plastic vial, the six tablets, dead ringers for the burnt-orange ibuprofen I take for occasional headaches, rest on the bottom. It's hard to believe that pills so common-looking could kill anybody.

  "Right."

  "And do you know where the four missing pills went?"

  "If you're asking, Mr. Molto, whether I had anything to do with removing those pills, the answer is no."

  "But you heard Dr. Strack's testimony that four pills of phenelzine taken at once would constitute a lethal dose?"

  "I heard that."

  "Do you have any reason to disagree with that?"

  "I understand that if taken at once, four tablets of phenelzine could constitute a lethal dose. But you pointed out that I picked up the prescription on September 25. And a single pill is the recommended daily dose. The twenty-fifth, the twenty-sixth, the twenty-seventh, the twenty-eighth." My father counts it out on the four fingers of his left hand.

  "So are you contending, Judge, that your wife took the phenelzine daily prior to her death?"

  "I'm not here to contend anything, Mr. Molto. I know that Dr. Strack, your expert, conceded that it's possible that a combination of a single dose of phenelzine taken in combination with certain food or drink could induce a fatal reaction."

  "So your wife's death was an accident?"

  "Mr. Molto, she was alive when I went to sleep and dead when I awoke. As you know, none of the experts can even tell for sure whether it was phenelzine that killed Barbara. Not one of them can say she didn't die of a hypertensive reaction like her father."

  "Well, let's consider the possibility it was an accident, Judge, can we?"

  "Whatever you like, Mr. Molto. I'm here to answer your questions." Again there is a little too much acid in my dad's response. Tommy and I--and now the jury--all know the same thing about my father. After twenty years on the bench and a dozen as chief judge, he is not accustomed to answering questions from anybody. The faint whiff of arrogance helps Molto because it implies that beneath it all, my dad may be a law unto himself.

  "You mention there is a severe poisoning reaction when phenelzine is consumed with certain foods, right?"

  "So I have learned."

  "Speaking of what you've learned, did it surprise you, Judge, when Dr. Gorvetich testified, that information about the danger of phenelzine when it's taken along with any one of a number of foods containing tyramine--red wine and aged cheese and herring and dry sausage--did it surprise you to see that that information is freely available on the Internet?"

  "I knew, Mr. Molto, that one of the drugs Barbara took from time to time could interact with certain foods. I knew that."

  "Exactly my point. And we do know, Judge, don't we, because of Dr. Gorvetich's testimony, that the two websites you visited in late September specify those interactions, don't they?"

  Molto nods, and the two pages from the Net, with yellow highlights drawn in on the slides, appear next to my father.

  "I can see what's on the pages, Mr. Molto."

  "Are you denying you visited those sites in late September last year?"

  "I don't know exactly what happened, Mr. Molto. My wife took about twenty different drugs, and some were more dangerous than others. It was not completely unusual for me to check on the Internet after picking up Barbara's medications to remind myself of the properties of one or the other, so I could help her keep track of them. But if your question is whether I visited those websites on my home computer in the days before Barbara died--"

  "That's exactly what I'm asking, Judge."

  "My best recollection is that I didn't."

  "You didn't?" Tommy is surprised. I am, too. My dad has already given a plausible explanation for going to those sites. It seems unnecessary to deny it. Stern has not stopped writing, but I can see from the way his lips have folded, he is not pleased.

  "All right," says Tommy. He strolls a little bit, running his hand across the prosecution table, before he faces my dad again. "But we have no dispute, Judge, do we, that the night before your wife died, you in fact went out and purchased red wine, aged cheddar cheese, pickled herring, yogurt, and Genoa salami. Correct?"

  "I remember doing that."

  "That you do remember," says Tommy, one of those nice courtroom jabs meant to show the inconsistencies in my father's memory.

  "I do. My wife had another prescription to pick up and she asked me to buy those items while I was at the store."

  "You don't have the shopping list she handed you, Judge, do you?"

  "Objection," says Stern, but my dad makes the point for him.

  "I didn't say there was a shopping list, Mr. Molto. My wife asked me to buy a bottle of red wine that she liked, aged cheddar, Genoa salami, and multigrain crackers because our son who was coming to dinner enjoys those things, and to get some herring--which she liked--and yogurt to make a dip for the vegetables she already had."

  It's true I love cheese and salami and have since I was four or five. The family legend is that I wouldn't eat much else when I was that age, and I will say that when I'm called again to testify later this week. From the time Debby Diaz first visited, I have had a clear memory of my mom removing the items from the white cellophane bags my dad carried in that night, and of her inspecting each. Although I wonder at times about the desperate suggestibility of my memory, and how much my hope that my dad is innocent is influencing things, I'm nearly as sure I recall my father asking her, 'Is that what you wanted?' I will say that, too, when I get back up on the stand. But what I don't know is whether my mom requested those items or simply told him to get some wine and appetizers, or even whether he'd proposed getting hors d'oeuvres in the first place. Each alternative would be possible, although the truth is that my mom, being my mom, would have been most likely to name exactly what she liked and even told my dad the brands and what aisles they were in.

  "Now, Judge. Who managed your wife's drug regimen for her manic-depression? Who selected the drugs on a day-to-day basis?"

  "My wife. If she had questions, she called Dr. Vollman."

  "Was she a bright woman?"

  "Brilliant, in my opinion."

  "And did you hear Dr. Vollman's testimony that he warned her repeatedly that when she was taking phenelzine, she had to be very careful
about what she ate?"

  "Yes, I heard him."

  "In fact, Dr. Vollman testified that it would have been his regular practice to warn you as well. Do you remember him warning you about phenelzine?"

  My dad looks at the coffered courtroom ceiling with its crisscrossing decorated walnut beams.

  "It's vague, Mr. Molto, but yes, I think I do remember that." This is another fact my dad has no need to admit. I wonder if the jurors will give him credit for his candor, or just take it as a sly device from someone who has spent most of his adult life around courtrooms.

  "And so, Judge, you want us to believe that she asked you to get wine and cheese and salami and herring, knowing she was taking phenelzine? And more than that, that she drank the wine and ate the cheese and salami?"

  "Excuse me, Mr. Molto, but I don't believe anyone has testified that my wife drank wine or ate cheese. I certainly didn't, because I have no memory of that happening."

  "Your son, Judge, testified that your wife drank the wine, sir."

  "My son testified that I poured a glass of wine for my wife. I didn't see Barbara drink it. Nat and I went outside then to grill the steaks, so I don't know who ate what."

  Tommy stops. This is the first time my dad has really zinged him. My dad is right, too, about all of this. But searching my memory of that night, I seem to recall my mom with a wineglass in her hand, certainly at dinner.

  "But let's be clear, Judge. Assume your wife was taking the phenelzine once a day as you've suggested. Does your own testimony make sense to you, sir, that she would send you to the store with a shopping list full of items that could kill her? That she would ask for herring, for instance, or yogurt, which you tell us she intended to eat?"

  "You're asking me to guess, Mr. Molto, but I would bet that Barbara knew just how much she could 'cheat' without an adverse reaction. She'd probably started with a sip of wine, or half a piece of herring, and over the years figured out how much she could tolerate. She'd taken this medication from time to time for quite a while."

  "Thank you, Judge." Molto's tone is suddenly triumphant as he stands there peering at my dad. "But if your wife didn't drink the wine and she didn't eat the salami and she didn't eat the cheese or the herring or the yogurt, Judge, then there's no chance, is there, that she died accidentally?"

  There is just a second dropped before my dad answers. He--and I--realize something significant just occurred.

  "Mr. Molto, you're asking me to speculate about things that happened when I was out of the room. It would have been odd for Barbara to eat or drink those things in any quantity. And I don't remember her doing it. But she was very excited about seeing my son and his girlfriend. She thought it was a great match. So I can't say she couldn't have forgotten herself. That's why they call it an accident."

  "No, Judge, I'm not asking you to guess. I'm trying to confront you with the logic of your own testimony."

  "Objection," says Stern. "Argumentative."

  "Overruled," says the judge, who's pretty clearly saying my dad got himself into this mess.

  "You told us your wife might have been taking a regular dose of phenelzine and died accidentally, didn't you?"

  "I said that was a possibility raised by the testimony."

  "You told us that it was your wife's decision to have you get all that stuff to eat that was dangerous to her, despite the fact that she was taking phenelzine. Right?"

  "Yes."

  "And then you told us that maybe she did that because she was not going to have any of it, or minuscule amounts that she knew wouldn't hurt her. Right?"

  "I was speculating, Mr. Molto. It's only one possibility."

  "And you told us you didn't see her eat or drink any of it. Right?"

  "Not that I remember."

  "And, Judge, if your wife didn't eat or drink anything containing tyramine, then she couldn't have died accidentally from a phenelzine reaction. Correct?"

  "Objection," says Stern from his seat. "He's asking for an expert opinion from the witness."

  Judge Yee looks up to think and sustains the objection. It doesn't matter, though. My dad cornered himself and has taken a pounding as a result. Molto is doing a great job of harping on the little pieces of evidence that have nagged at me all along. The PA lets what he's accomplished sink in as he shuffles through his notes.

  "Now, Judge, one reason we are having this discussion about what your wife might have eaten and might have drunk is because the autopsy of the contents of her stomach didn't answer that question. Right?"

  "I agree, Mr. Molto. The gastric contents were unrevealing."

  "Didn't show if she ate cheese or steak. Right?"

  "True."

  "But normally, Judge, if an autopsy was performed within the first twenty-four hours after her death, we would have a better idea of what she'd eaten the night before, wouldn't we?"

  "I heard the coroner's testimony, Mr. Molto, and without giving anything away, you know that our expert, Dr. Weicker from Los Angeles, disagrees with him, especially about how fast the salami or the herring would have broken down in the gastric fluids."

  "But you and I, Judge, and the experts can agree on this much, can't we? The twenty-four hours you sat with your wife's body without notifying anybody of her death--that delay could only go to make it harder to identify what she ate."

  My father waits. From the way his eyes move, you know he is trying to figure a way out.

  "It made it harder, yes." This point, too, registers in the jury box. Molto is doing well.

  "Now let me go back to what you told us only a moment ago, Judge. You said your wife was excited that night about seeing your son and his girlfriend."

  "I did."

  "She seemed happy?"

  "'Happy' is a relative term, Mr. Molto, when we're talking about Barbara. She seemed very pleased."

  "But you told the police, didn't you, Judge, that your wife did not seem clinically depressed at dinner, or in the days before? Is that what you said?"

  "I did tell them that."

  "And was that true?"

  "That was my impression at the time."

  "And the phenelzine, Judge--you heard the testimony of Dr. Vollman that she referred to that drug as the A-bomb, to be used for her darkest moods."

  "I heard that."

  "And after thirty-five-plus years with your wife, Judge, did you think you were good at gauging her moods?"

  "Very often her serious depressions were obvious. But I can recall occasions when I had totally misread her state of mind."

  "But again, Judge, accepting the fact that the phenelzine was reserved for her darkest days, you saw no sign that night as you four were having dinner that she was in that condition, did you?"

  "I didn't."

  "Or in the days before?"

  "True."

  I've already testified to the same thing. Thinking back to that night, I would have called my mom 'up,' frankly. She seemed to be looking forward to things.

  "And so, Judge, based on what you observed and reported to the police--based on that, Judge, there was no reason for your wife to be taking a daily dose of phenelzine."

  "Again, Mr. Molto, I never thought my estimates of her emotional state were perfect."

  "But when you had picked up the phenelzine three days before, did you ask her if she was feeling depressed?"

  "I don't remember such a conversation."

  "Even though you'd picked up the A-bomb for her?"

  "I don't recall taking particular note of what I'd picked up."

  "Even though your fingerprints are on the bottle?"

  "It was mechanical, Mr. Molto. I brought home the scrips. I put them on the shelf."

  "And even though you visited websites and searched for information about the drug in late September, you're saying you didn't notice what you picked up?"

  "Objection," says Stern. "Asked and answered. The judge already testified about what he remembers about those searches."

  The pause, if nothing
else, disturbs Molto's rhythm, which is why Stern has struggled to his feet. But everybody here knows that Tommy Molto is beating the crap out of my father. It doesn't make sense. That's the long and short. My father can have the rest of it his way. Maybe he missed her moods. There were times, especially when my mom was angry, that you didn't know it until the rage broke surface. And since I made those runs to the pharmacy myself when I was living at home, I can side with him about not noticing which of the dozens of medications she took he was picking up. But the Web searches--those are devastating. About the best thing to say, which I'm sure Stern will put out there in closing argument, is that it would be an odd thing for a judge and former prosecutor elaborately planning murder to use his own computer that way. To which Molto will respond in rebuttal with the obvious: He was not planning on getting caught, he was planning on passing this off as a death by natural causes.

  But all of this depends on the screwy epistemology of the courtroom, where the million daily details of a life suddenly get elevated to evidence of murder. The truth is that my dad, and just about everybody else, could have noticed the phenelzine, taken a spin through those websites three days before just to remind himself this was in fact the A-bomb, and then just let it go, especially in the kind of marriage my parents had. There were oceans of stuff that went unspoken in my parents' house--the air there always seemed full of things struggling not to be said. And my mom never liked to be questioned about her medications. I heard her say a million times she could take care of herself.

  Judge Yee overrules the objection, and my father repeats placidly that he has searched his memory and does not recall visiting those sites. The response rankles Tommy.

  "Who else lived in your house, Judge, in late September 2008?"

  "It was my wife and I."

  "You're saying that your wife researched phenelzine on your computer?"

  "It's a possibility if she had some question."

  "Did she have her own computer?"

  "She did."

  "Did she routinely use your computer?"

  "Not routinely. And not at length. But my computer was right outside our bedroom, so occasionally, she'd tell me and use it for a second."