Presumed innocent kc-1 Read online

  Stern speaks Spanish; his eyebrows shoot up toward the hairless crest of his scalp.

  "Never out loud," he says. "Never." Then he takes my hand and faces me with his deepest look. "Rusty, we will do our best."

  "I know," I say.

  Coming back into the courtroom, Barbara, who has gone back and forth from the U. over lunch, emerges from the crowd to hug me. It is half an embrace, one arm firmly around my waist. She kisses my cheek, then wipes away the lipstick with her hand. She talked to Nat.

  "He wants you to know he loves you," she says. "I do too." She says this in a cute way, so that the tone, in spite of her good intentions, is still somewhat equivocal. Nonetheless, she has done her best. It is the right time and the right place for maximum performance.

  ***

  The jury files in from the waiting room, where they will eventually deliberate. It is located right behind the jury box. The divorced schoolteacher actually smiles at me as she takes her seat.

  Larren explains the function of opening statements: a prediction of the evidence. A forecast. "It is not an argument," he says. "The lawyers will not set forth the inferences which they think arise from the proof. They will simply tell you in an unvarnished fashion what the actual evidence will be." Larren says this no doubt as a warning to Delay. In a circumstantial case, a prosecutor needs some way at the outset to make a jury see how it all fits together. But Nico will have to do this carefully. However Della Guardia feels about Larren, the jury is in love with the judge already. His charm is like a floral scent he emits into the air. Nico will gain nothing from being upbraided.

  Larren says, "Mr. Delay Guardia," and Nico stands. Trim, erect, bristling with anticipation. A person at the very top.

  "May it please the court," he says, the traditional beginning. Right from the start, he is surprisingly bad. I know immediately what has happened. The time constraints and the burden of running the office have impinged severely on his preparation. He has never gone over this before. Some of it is being improvised, perhaps in response to Larren's warning right before he began. Nico cannot shake his drawn, nervous look, and he cannot find a rhythm. He keeps hesitating in spots.

  Even with Nico's inadequate preparation, much of this is difficult for me to hear. Nico may lack his usual style and organization, but he is still hitting the high spots. The counterpoint of the physical evidence against what I said and did not say to Horgan and Lipranzer is, as I always feared, particularly effective. On the other hand, Delay misses points of emphasis. He tells the jury too little about things he should be the one to disclose. A smart prosecutor usually seeks to defuse defense evidence by mentioning it first, demonstrating from his own mouth that his case can stand the defense's strongest blows. But Nico does not adequately detail my background-he fails to say that I was second-in-command of the office-and, in describing my relationship with Carolyn, he omits any mention of the McGaffen trial. When Stern gets up, in his own quiet way he will make these abbreviations appear to be concealment.

  In the area of my relations with Carolyn, Nico makes the only deviation from what we had predicted. Nico's problem is deeper than I, or even Stern, had understood. Delay does not simply lack proof of my relationship with Carolyn. He has not even correctly guessed what occurred.

  "The evidence," he tells the jury, "will show that Mr. Sabich and Ms. Polhemus had a personal relationship that had gone on for many months, at least seven or eight months before the murder. Mr. Sabich was in Ms. Polhemus apartment. She called him on the phone. He called her. It was, as I say, a personal relationship." He pauses. "An intimate relationship.

  "But all was not well in this relationship. Mr. Sabich was, apparently, very unhappy. Mr. Sabich was, it seems, intensely jealous."

  Larren on the bench has swung about and now is glaring. Nico is doing what the judge warned him about, arguing rather than simply describing his witnesses and exhibits. In his agitation, the judge glances now and then in Sandy's direction, a signal for Sandy to object, but Stern is quiet. Interruptions are discourteous, and Sandy is himself in court. More important, Nico is at the point in his oration where he is saying things that Stern knows he may not prove.

  "Mr. Sabich was jealous. He was jealous because Ms. Polhemus was seeing not only him. Ms. Polhemus had formed a new relationship, a relationship that apparently infuriated Mr. Sabich." Another weighty caesura. "A relationship with the prosecuting attorney, Raymond Horgan."

  This detail has never before found public life. Nico undoubtedly cabined it to protect his new alliance with Raymond; but he cannot help himself, he is still Nico, and he actually turns to the press rows as he lets this news into the world. There is a audible stirring in the courtroom, and Larren, with the mention of his former partner, finally loses his cool.

  "Mr. Delay Guardia!" he thunders, "you were warned, sir. Your remarks are not to be in the nature of a closing argument. You will confine yourself to a sterile recitation of the facts or your opening will be over. Do I make myself clear?"

  Nico faces the bench. He actually looks surprised. His prominent Adam's apple bobs as he swallows.

  "Certainly," he says.

  Jealousy, I write on my notepad, and pass it to Kemp. Given the choice between no motive and a motive he cannot quite prove, Nico has chosen the latter. It may even be the smarter gamble. But at the end, he will be working hard to stretch the facts.

  Stern moves to the podium as soon as Nico is through. The judge offers a recess, but Sandy smiles gently and says he is prepared to go on right now, if the court please. Sandy is unwilling to let Nico's remarks accumulate force on reflection.

  He steps around the podium and rests one elbow on it. He wears a brown suit, tailor-made, that conforms subtly to his full shape. His heavy face is still with portent.

  "How are we to answer this," he asks, "Rusty Sabich and I? What can we say when Mr. Della Guardia tells you about two fingerprints but not another? What can we say when the evidence will show you gaps and suppositions, gossip and cruel innuendo? What can we say when a distinguished public servant is put on trial on the basis of circumstantial evidence which, as you will be able to determine, does not approach that precious standard of reasonable doubt?

  "Reasonable doubt." He turns, he steps, he comes two feet closer to the jury. "The prosecution must prove guilt beyond a reasonable doubt." He harks back to everything they heard over the last two days from Judge Lyttle. At the outset, Stern has locked arms before the jurors with that mighty and learned jurist, a particularly effective device in light of Larren's first put-down of Delay. Sandy uses the term 'circumstantial evidence' repeatedly. He mentions the words 'rumors' and 'gossip.' Then he talks about me.

  "And who is Rusty Sabich? Not simply, as Mr. Della Guardia told you, a top deputy in the prosecuting attorney's office. The top deputy. Among a handful of the finest trial lawyers in this county, this state. The evidence will show you that. A top graduate of the University Law School. A member of the Law Review. Clerk to the Chief Justice of the State Supreme Court. He gave his career, his life to public service. To stopping and preventing and punishing criminal behavior, not"-Stern glances contemptuously toward the prosecutors-to committing it. Listen, ladies and gentlemen, to the names of some of the persons whom the evidence will show you Rusty Sabich brought to justice. Listen, because these are persons whose wrongdoing was so well known that even you who are not regularly in this courthouse will recognize these names, and, I am sure, will once again be grateful for Rusty Sabich's work." He spends five minutes talking about the Night Saints and other cases, longer than he should, but Della Guardia is hard put to object after Sandy endured his opening without complaint.

  "He is the son of an immigrant, a Yugoslavian freedom fighter who was persecuted by the Nazis. His father came here in 1946 to a land of freedom, where there would be no more atrocities. What would Ivan Sabich think today?"

  I would squirm were I not under the sternest orders to show nothing. I sit with my hands folded and look ahead.
At all moments, I am to appear resolute. Lamentably, Stern did not give me a preview of this portion. Even if I testify, I will not testify to this-not that the prosecutors would be likely to disprove it.

  Stern's manner is somehow commanding. The accent lends an intrigue to his speech, and his considered formality gives him substance. He makes no predictions of what the defense will show. He steers clear of promising my testimony. Instead, he focuses on deficiencies. No evidence, not a scintilla of direct evidence that Rusty Sabich handled any murder weapon. No sign that Rusty Sabich took part in any violence.

  "And what is the cornerstone of this circumstantial case? Mr. Della Guardia told you many things about the relationship of Mr. Sabich and Ms. Polhemus. He did not tell you, as the evidence will show, that they were coworkers, that they worked as trial lawyers, not as lovers, on a case of tremendous importance. He did not mention that. He left that for me to tell you. All right, then, I have, and the evidence will show that to you, too. You should mind closely what the evidence shows you, and does not show you, about the relationship of Rusty Sabich and Carolyn Polhemus. Mind closely in this circumstantial case where Mr. Della Guardia seeks to prove guilt beyond a reasonable doubt. I tell you flatly, flatly, that the evidence will not show you what Mr. Della Guardia has said it would. It will not. You see this case will not involve facts, but rather supposition upon supposition, guess upon guess."

  "Mr. Stern," says Larren mildly. "You seem to be falling into the same trap as Mr. Della Guardia."

  Sandy turns; he actually bows in an abbreviated way.

  "I am so sorry, Your Honor," he says. "He seems to have inspired me."

  A laugh, a small one, from everyone. The judge. A number of members of the jury. A small laugh at Delay's expense.

  Sandy turns back to the jury, and remarks as if he were speaking to himself: "I must keep myself from getting carried away by this case." Then he plants his last seed. No commitments, just a few words.

  "Well, one cannot help asking why. As you listen to the evidence, ask why. Not why Carolyn Polhemus was murdered. That regrettably is something no one will be learning from this proof. But why Rusty Sabich sits here falsely accused. Why offer a circumstantial case, a case that is supposed to show guilt beyond a reasonable doubt and does not?"

  Sandy stops. He tilts his head. Perhaps he knows the answer; perhaps he does not. He speaks softly.

  "Why?" is the last thing that he says.

  Chapter 27

  They cannot find the glass.

  Nico admits this as soon as Stern and Kemp and I arrive on the third morning of trial. The first witnesses will be called today.

  "How in the world?" asks Stern.

  "I apologize," says Nico. "Tommy tells me he forgot about it at first. He really did. Now there're looking high and low. It'll turn up. But I have a problem." Della Guardia and Stern stroll away, conferring. Molto watches them with obvious concern. He seems reluctant to leave his place at the prosecution table, like a whipped dog. Really, Tommy does not look well. It is too early in the trial to be as exhausted as he appears. He has a yellow cast to his skin, and his suit, the same as yesterday's, does not seem to have had any time to rest. I would not be surprised if Molto never made it home last night.

  "How can they lose a piece of evidence like that?" Kemp asks me.

  "Happens all the time," I answer. The Police Evidence Center, over in McGrath Hall, has more unclaimed items that a pawnshop. Tags get knocked off, numbers are reversed. I started many cases with evidence misplaced. Unfortunately, Nico is right: the glass will turn up.

  Stern and Della Guardia have agreed to advise the judge of this development, before he takes the bench. We will all go back to chambers. This will save Nico from a public whipping. Stern's concession on points like this, minor courtesies, is the kind of thing that has made him popular around the P.A.'s office. Other lawyers would demand to be on the record so that Nico could take a hiding before the press. We all wait a moment in the judge's outer office, while his secretary, Corrine, keeps an eye on the phone light to see when the judge completes the call he is presently taking. Corrine is stately and large-chested, and the courthouse wags regularly speculated on the nature of her relationship with Larren, until last fall, when she married a probation officer named Perkins. Larren has always been a ladies' man of some renown. He divorced about ten years ago, and over time I've heard a lot of tales about him drinking Jack Daniel's in the pretty-people night spots down on Bayou Boulevard, that pickup strip which certain sages refer to as the Street of Dreams.

  "He says come right in," Corrine tells us, putting down the phone after a brief conversation with the judge to announce our group. Kemp and Nico and Molto precede us. Stern wants a moment with me to confer.

  When we enter, Nico has already begun telling the judge the problem. He and Kemp are in armchairs before the judge's desk. Molto sits a distance away on the sofa. The chambers, the judge's inner sanctum, has a distinguished hearing. One wall is solid with the gold-toned spines of the state law reports, and Larren also has his own Wall of Respect. There is a large picture of the judge and Raymond, among a number of photos of the judge with politicians, mostly black.

  "Your Honor," Nico is saying, "I learned the first time last night from Tommy."

  "Well, I thought Tommy indicated yesterday that you had the glass and he simply had overlooked this matter. Tommy, I'll tell you something right now." The judge is on his feet behind his desk, looking rather legal in a purple-toned shirt with white collar and cuffs. He has been roaming in his books and papers as he listens, but now he turns about and points a stout finger at Molto. "If I have the same kind of bullshit from you in this case I've had in the past, I'll throw you in the lockup. I really will. Don't be tellin me one thing and meanin something else. And I want to say this right in front of the prosecuting attorney.

  "Nico, you know we've always gotten along. But there's a history here." The judge tips his large head in Molto's direction.

  "Judge, I understand. I really do. That's why I was concerned as soon as I learned of the problem. I really do believe that it's oversight."

  Larren glances balefully at Della Guardia from the corner of his eye. Nico does not even flinch. He is doing a pretty good job. He has both hands in his lap and is making his best effort to appear the suppliant. This is not an attitude that comes to him naturally, and his readiness to humble himself before the judge is actually quite winning. There must have been hell to pay last night between Molto and him. That's why Tommy looks so bad.

  Larren, however, is not about to let the subject go. As usual he has caught all the implications quickly. For better than a month the prosecutors have been promising to produce a glass they knew they could not find.

  "Isn't this somethin?" the judge asks. He looks, for support, to Stern. "You know, Nico, I don't issue these orders just for the hell of it. You do with your evidence as you like, but really-Who had this glass last?"

  "There's some disagreement, Judge, but we believe it was the police."

  "Naturally," says Larren. He looks off toward the distance in disgust.

  "Well, you see what we have here. You have defied an order of the court. The defense has not had an opportunity to prepare. And you have given an opening statement, Nico, in which you must have referred to this evidence half a dozen times. Well, that's your problem now. When you find the glass, assuming you find it, then we'll determine whether or not it comes into evidence. Let's go try this case."

  Nico's difficulties, however, are more complex than one angry judge. The state case has been prepared with the witnesses expected in an established sequence, referred to as an order of proof. The first person to testify is supposed to describe the crime scene, and accordingly, he will mention the glass.

  "Not in my courtroom," says Larren. "No, sir. We're not gonna be talkin anymore about evidence that nobody can find." Stern finally speaks up. He announces that we have no objection to Delay proceeding as he had planned.

 
; "Your Honor, if the prosecution fails to find the glass, we will object to any further evidence regarding it." He means, of course, the fingerprints. "But for the time being, there is no purpose to delay, if Your Honor will permit it."

  Larren shrugs. It's Sandy's lawsuit. This is the subject Sandy and I discussed in the judge's outer office. If we object, we can make Nico take witnesses out of the order he had planned, but Sandy thinks the advantage is greater if Nico's first witness has to explain that a piece of evidence is missing. Better that they look like Keystone Kops was how Stern put it. The disorganization will make a poor impression on the jury. Besides, there is little damage to me in the bare fact that a glass was found. And as I pointed out to Kemp, the police-evidence custodians-will eventually locate the glass; they always do.

  "I would think you should give Mr. Stern an order of proof so that he has notice of when we're coming to this area again."

  Molto speaks up. "We have one, Judge. We'll give it to them right now."

  Tommy fiddles in the sloppy heap of papers on his lap, and eventually passes a sheet to Kemp.

  "And let's put this on the record," Larren says. Nico's punishment. He must explain this screw-up in public after all.

  While the lawyers are before the bench, repeating our chambers conference in the presence of the court reporter, I examine the order of proof I am eager to know when Lipranzer will be testifying. The sooner he does, the sooner the search for Leon can resume. I have tried to get Sandy's PI to look further, but he claims there is nothing to do. The list, however, provides no good news. Lip is scheduled toward the latter put of the case. Leon and I win have to wait.

  Even in my disappointment, I recognize that Tommy and Nico have constructed their case with care. They will begin with the murder scene and the collection of the physical evidence, and will then start a slowly accelerating demonstration of why I am the murderer. First will come their proof, equivocal as that is, of my relationship with Carolyn; then my questionable handling of the investigation; near the end they will offer the various bits of evidence that put me at the murder scene: the fingerprints, the fibers, the phone records, the Nearing maid, the blood test results. Painless Kumagai will testify last and, I suppose, offer an expert opinion on how it was done.