Presumed innocent kc-1 Page 23

  Run, I think now as I sit in the dark contemplating Marcy Lupino. Run. The thought always comes that suddenly: run. As a prosecutor, I could never understand why they stayed around to let it fall, to face trial, sentencing, prison. But they remained for the most part, as I have. There is $1600 in my checking account and I have no other money in the world. If I looted Barbara's trust, I would have enough to go, but then I would probably lose the only real motive I have for freedom-the chance to see Nat. And even if I could spend summers with him in Rio or Uruguay or wherever it is that they do not extradite for murder, the powers of even a desperate fancy are too meager to imagine how I would survive without a language I know or a skill those cultures would recognize. I could simply disappear to the center of Cleveland or Detroit, become somebody different, and never see my son again. But the fact is that none of these are visions of what I recognize as life. Even in these lightless hours, I want the same things I wanted when I got off the bus at night in the village green in Nearing. We are so simple sometimes, and fortified so strangely. I sit here in the dark with my heels drawn against me, and as I shiver, I imagine the odor of the smoke of cigarettes.

  Chapter 26

  "People versus Rozat K. Sabich!" calls Ernestine, Judge Lyttle's docket clerk, into the crowded courtroom. She is a stern-looking black woman, six feet tall. "For trial!" she cries.

  Not much is like the first day of a murder trial. Sun-up on the morning of battle; Christians against lions back in Rome. Blood is on the air. Spectators have crammed themselves into every linear inch available along the public benches. There are four full rows of press, five sketch artists at the head. The judge's staff-his secretary and law clerks, who are not ordinarily present-are in folding chairs against the rear wall of the courtroom, next to his chambers door. Bailiffs, armed for this solemn occasion, are positioned at the forward corners of the bench beside the marble pillars. The atmosphere is busy and intense, full of a racing murmur. No one here is bored.

  Judge Lyttle enters and the room comes to its feet. Ernestine makes her announcements. "Oyez, oyez. The Superior Court for the County of Kindle is now in session, the Honorable Larren L. Lyttle, Judge Presiding. Draw near and give your attention and you shall be heard. God save the United States and this Honorable Court." Ernestine bangs her gavel. When everyone is seated, she calls my case for trial.

  The lawyers and I move to the podium. Stern and Kemp; Molto and Nico; Glendenning has appeared and will be the case investigator, sitting with the prosecutors. I stand behind the lawyers. Judge Lyttle looms above, his hair newly cut and smoothly groomed. It is August 18, a few days short of two months since I was indicted.

  "Are we ready to call for a jury?" Larren asks.

  "Judge," says Kemp, "we have a few matters that we can address while you are bringing up the prospective jurors." Kemp's role on this case will be Law Man. Stern has put him in charge of research and Jamie will address the judge with regard to points of law, outside the jury's presence. When they are in the box, he will not say a word.

  From the courtroom phone, Ernestine calls the clerk's reception room and asks for a venire, citizens summoned for jury duty who will be questioned by the judge and lawyers to determine if they should serve in this case.

  "Judge," Kemp says again, "we have received all the production you ordered from the prosecution. With one exception. We have still not been given an opportunity to see that glass."

  Stern has instructed Jamie to raise this for reasons besides our curiosity about the glass. He wants Judge Lyttle to know that the prosecutors are conforming to the judge's dim expectations. It works. Larren is upset. "What about this, Mr. Delay Guardia?" Nico clearly does not know. He looks for Molto.

  "Judge," says Tommy, "we'll take care of it after court."

  "All right," says Larren. "That will be done today."

  "Also," Kemp says, "you have not ruled on our motion to disqualify Mr. Molto."

  "That is correct. I have been waiting for the prosecutor's response. Mr. Delay Guardia?"

  Tommy and Nico exchange glances and nod to one another. They will proceed according to their prior agreement, whatever that is.

  "Your Honor, the state will not call Mr. Molto. So we suggest that the motion is moot."

  Stern steps forward and asks to be heard.

  "Do I understand then, Your Honor, that Mr. Molto will not be called under any circumstances-that his testimony is forsworn throughout the case and at all stages?"

  "That's right," Larren agrees. "I'd like us all to be clear at the start, Mr. Delay Guardia. I don't want to be hearin later about you didn't expect this or you didn't except that. Mr. Molto is not testifying at this trial. Correct?"

  "Correct," Nico says.

  "Very well. I will deny the defendant's motion on the representation of the prosecutors that Mr. Molto will not be called as a witness at this trial." Ernestine whispers to him. The prospective jurors are in the corridor.

  So in they come, seventy-five people, twelve of whom will soon be in charge of deciding what happens to my life. Nothing special, just folks. You could skip the summonses and the questionnaires and grab the first seventy-five people who walked by on the street. Ernestine calls sixteen to sit in the jury box, and directs the remainder to the first four rows on the prosecution side, from which the bailiffs have dismissed the spectators amid great grumbling, sending them to form a waiting line out in the hall. Larren starts by telling the venire what the case is about. He has probably seen a thousand juries chosen during his career. His rapport is instantaneous: this big, good-looking black man, kind of funny, kind of smart. The white people take to him too, thinking, probably, they all should be like this. Nowhere in a trial is Larren's advantage to the defense likely to be greater than at this juncture. He is skilled in addressing juries, canny in divining hidden motivations, and committed to the foundation of his soul to the fundamental notions. The defendant is presumed innocent. Innocent. As you sit here you have gotta be thinking Mr. Sabich didn't do it.

  "I'm sorry, sir. In the first row, what is your name?"

  "Mahalovich."

  "Mr. Mahalovich. Did Mr. Sabich commit the crime that he is charged with?"

  Mahalovich, a stout middle-aged man who has his paper folded in his lap, shrugs.

  "I wouldn't know, Judge."

  "Mr. Mahalovich, you are excused. Ladies and gentlemen, let me tell you again what you are to presume. Mr. Sabich is innocent. I am the judge. I am tellin you that. Presume he is innocent. When you sit there, I want you to look over and say to yourself, There sits an innocent man."

  He goes through similar exercises, expounding upon the state's burden to prove guilt beyond a reasonable doubt and the defendant's right to remain silent. Talking to a thin, gray-haired lady in a shirtwaist dress, who is seated in the chair beside the one Mahalovich once occupied.

  "Now don't you think, ma'am, that an innocent person oughta get up there and tell you it's not so?"

  The lady is torn. She saw what happened to Mahalovich. But you don't lie to a judge. She touches her dress at the collar before she speaks.

  "I would think so," she says.

  "Of course you would. And you have to presume that Mr. Sabich thinks the same thing, since we're presuming that he's innocent. But he doesn't have to do that. Because the Constitution of the United States says he doesn't have to. And what that means is that if you sit as jurors on this case, you have promised to put that thought out of your mind. Because Mr. Sabich and his lawyer, Mr. Stern, may decide to rely on that constitutional right. The folks who wrote the Constitution said, God bless you, sir, God bless you, Mr. Sabich, you don't have to explain. The state's got to prove you guilty. You don't have to say a thing if you don't want. And Mr. Sabich can't really receive that blessing if any of you have it in your mind that he should explain anyway."

  As a prosecutor, I used to find this part of Larren's routine unbearable, and Nico and Molto both look pale and upset. No matter how many times you tell yourself t
hat the judge is right, you can't believe that anybody ever thought it was going to be explained so emphatically. Nico looks particularly drawn. He listens with an alert, humorless expression. He has lost weight and there is a new darkening in the sallow skin beneath his eyes. To get a case of this stature prepared in three weeks is a terrible burden, and he has an office to run as well. Moreover, it must have occurred to him often how much he has put on the line. He has taken klieg lights and run them across the sky telling the near world to watch Nico Della Guardia. If he loses, he will never have the same credibility in office. His silent campaign to be earmarked as Bolcarro's successor will be finished not long after its start. His career, much more than mine, hangs in the balance. I have lately come to realize that my career, after this indictment and the hoopla of this trial, is probably over in any event.

  Next, Larren takes up the subject of publicity. He questions jurors about what they have read. For those who are being coy he points out the article announcing the start of the trial on the front page of today's Trib. Jurors always lie about this. People who want to get out of jury service usually find a way. The ones who come to the courthouse are, for the most part, eager to serve and less willing to confess to obvious disqualifications. But Larren slowly wins the truth from them. Nearly everybody here has heard something about this case, and over about twenty minutes Judge Lyttle tells them that is worthless information. "Nobody knows anything about this case," he says, "because there has not been a word of evidence heard." He excuses six people who admit that they will not be able to put the publicity out of their minds. It is unsettling to consider what the others, subjected to Nico's media splash, must think about the case. It's hard to believe that anyone can really fully put aside those preconceptions.

  Late in the morning, questioning about the jurors' backgrounds begins-this process is called voir dire, truth-telling, and it continues throughout the afternoon and into the second morning. Larren asks everything he can think of and the lawyers add more. Judge Lyttle will not allow questioning directed to the issues of the case, but the attorneys are permitted to roam freely into personal details, limited largely only by their own reluctance to give offense. What TV shows do you watch, what newspapers do you read? Do you belong to any organizations? Do your children work outside the home? In your house, are you or your spouse in charge of the monthly bookkeeping? This is the subtle psychological game of figuring out who is predisposed to favor your side. Consultants now earn hundreds of thousands of dollars making such predictions for lawyers, but an attorney like Stern knows most of this by instinct and experience.

  To pick a jury effectively you must know the case you want to try. Stern has not said anything to me, but it is becoming clearer that he has a strong notion not to offer evidence for the defense. He thinks he can whittle away at Nico's proof. Perhaps my actions in the past, when I have been beyond control in spite of his instructions, have convinced him I would be a poor witness in my own behalf. No doubt the decision to testify or not will be mine in the end. But I suspect that Stern is simply trying to move things to the point that I am convinced we can win without my testimony, before he forces my hand. In any event, he has spent little time talking to me about the defense case. Mac and a few of the judges have agreed to appear as character witnesses. Stern also has asked me about neighbors who would be willing to offer that kind of testimony. Clearly, though, he wants to try a reasonable doubt case. At the end, if all goes as he hopes, no one will know what happened. The state will have failed to meet its burden of proof and I should be acquitted. With that goal, we need jurors bright enough to appreciate the legal standard and strong enough to forthrightly apply it-people who will not convict merely because they are suspicious. For that reason Sandy has told me that he thinks younger jurors will be better overall than old. In addition, they may be more in tune with some of the nuances of male and female relations that so strongly flavor the case. He wants, in other words, people who might believe that co-workers adjourn to a woman's apartment for reasons other than sexual intercourse. On the other hand, he has said, older people will have more immediate respect for my past attainments, my position, and my reputation.

  Whatever the plans, you usually go in the end on gut impressions. Certain jurors just seem to be people you think you like, folks you can talk to. On the second morning, as we begin making our choices, Stern and Kemp and I have few disagreements. We huddle together at the counsel table, directing our decisions to prospective jurors taken up in groups of four. Barbara is invited by Sandy to come up from the nearest spectator bench to join in our consultation. She places her hand lightly on my shoulder, but offers no comment. Standing close to me as we confer, dressed in a dark blue silk suit and again, a matching hat, she conveys an impression of somber dignity, of grieving well restrained. Overall, the effect is a little like the Kennedy widows. She is playing her small part well. Last night, after the voir dire started, Sandy explained to Barbara that he would be calling on her in this fashion. At home, she expressed appreciation for Sandy's courtesy and I explained to her that courtesy was not his prime intent. Stern again wants all the jurors to see at the outset that my wife is still on my side and that we, in this modern age, defer to the opinions of women.

  The defense gets to excuse ten jurors without explanation-so-called peremptories. The prosecution gets six. Nico's plan seems to be pretty much the inverse of ours, although with fewer challenges he does not have the same opportunity to shape the panel. In general, he seems to be looking for his voters, older ethnic types, generally Roman Catholics. For that reason, without having planned to do it earlier, we strike all the Italians. I am more comfortable with the group that we end up with than was often the case when I was a prosecutor. There is a preponderance of younger people, many of them single. A female drugstore manager in her late twenties. A young woman who is an accountant with a brokerage house. A twenty-six-year-old man is an assembly-line foreman, and another fellow about his age runs restaurant services at a local hotel and fiddles part-time with computers. There is a young black woman who does auditing at a local insurance company. Among the twelve, we have a divorced female schoolteacher, a secretary for a local rail line, a man who retired last year from running a high school music program, and an auto mechanic; also a Burger King management trainee, a retired nurse's aide, and a cosmetics saleswoman from Morton's. Nine whites, three blacks. Seven women, five men. Larren also seats four alternates, who will hear the evidence but not take part in deliberations unless one of the twelve regulars falls ill or is otherwise excused.

  With the jury chosen, early in the second afternoon we are ready to start my trial.

  ***

  At ten minutes to two we arrive again at the courthouse for opening statements. The atmosphere is now the same as yesterday morning. The lull of jury selection is past and the blood urge is on the air. The adrenalized excitement of beginning becomes a kind of painful irritant that I feel seeping into my bones. Kemp calls me into the hallway outside the courtroom, and we walk some distance to get away from the gaggle of unhappy onlookers for whom the bailiffs have not been able to find seats. Out here you can never be certain who is listening. The best journalists would not report something they overheard, but you can ever tell who is talking to the prosecutors.

  "I want to say something," Jamie tells me. He has chopped a good two inches off the curled edges of his pageboy, and he is turned out in a distinguished blue pinstriped suit purchased from J. Press in New Haven. He is handsome enough to have chosen Hollywood instead of law. From comments, I have come to realize that he made enough money playing his guitar to be quite comfortable without working. Instead, he is in the office, reading cases, writing memos, conferring with Stern and me until eleven and twelve o'clock at night.

  "I like you," Jamie says.

  "I like you, too," I answer.

  "And I really hope you beat this thing. I've never told a client this before. But I think you will."

  There are no more than a
year or two's worth of clients in Jamie's life and so the comment is not worth that much as a prediction, but I am touched by his good feeling. I put a hand on his shoulder and I thank him. He did not tell me, of course, that I am innocent. He knows better than to be convinced of that; the evidence is against me. Probably if you shook him awake in the middle of the night and put the question, he would tell you he does not know.

  Stern appears now. He is almost jaunty. His flesh is invigorated by the high excitement; the broadcloth of his shirt is so white and free of creases that it appears almost holy as it meets his full cheeks. He is about to give the opening statement in the most noted case of his career. Suddenly I am full of envy. I have not thought in all the months about how much fun it would be to try this case, an understandable omission. But those old inclinations suddenly surge forth amid this supercharged air. The big Night Saints case, a twenty-three-defendant conspiracy which I tried with Raymond, had a fraction of this attention, but it was still like taking hold of a live wire, a drumming excitement that did not stop, even in sleep, for seven weeks. Like motorcycling or mountain climbing: you know that you have been here. I am sad suddenly, briefly despairing over my lost trade.

  "So?" Sandy asks me.

  "I told him I thought that he would win," says Kemp.