Presumed innocent kc-1 Read online

  Up on the bench Larren is still chewing Nico out, for the record.

  "And the prosecutors will immediately advise the defense when the evidence is located. Is that correct?"

  Nico promises.

  With that matter settled, the jury is brought in, and Nico announces the name of the prosecution's first witness, Detective Harold Greer. He enters from the corridor and stands before Larren to be sworn.

  As soon as Greer is up there, it is obvious to all of us why Nico wanted to maintain the predetermined order of proof. Juries for obvious reasons tend to remember the first witness, and Greer is impressive, a huge, well-spoken black man, calm and orderly in his presentation of himself. With or without the glass, he is the image of competence. The department is full of officers like Greer, men and women with the IQ's of college professors who became cops because it was, within their horizons, the best thing available.

  Molto is doing the questioning. He looks rumpled but his direct examination is well prepared.

  "And where was the body?"

  Greer was the third officer on the scene. Carolyn was discovered about 9:30 a.m. She missed an eight o'clock meeting and a nine o'clock court call. Her secretary called the super directly. All he did, he told me months ago, was push the door open and look around. He could see then he needed the cops. The beat guys called for Greer.

  Greer describes what he observed and the way the evidence techs did their work under his direction. Greer identifies a sealed plastic packet that contains the fibers that were lifted from Carolyn's body, and a larger packet that contains her skirt, from which more of the Zorak V fibers were obtained. Molto and he smooth over the glass. Greer describes, finding it on the bar, watching the evidence techs seal the Baggie.

  "And where is the glass at present?"

  "We've had a little trouble locating it. It should turn up in the police evidence room."

  Next Molto raises the specter of the removed diaphragm. Greer says that in a thorough search of the apartment he found no contraceptive device. Then, with all the little bits of evidence which the police discovered inventoried before the jury, Molto moves to his climax.

  "Based on your experience in nine years as a homicide detective, and the appearance of the scene, did you have any opinion as to what had taken place?" Molto asks.

  Stern makes his first objection before the jury.

  "Your Honor," Stern scolds, "this is speculative. This cannot be regarded as an expert opinion. Mr. Molto is asking about a hunch."

  Larren strokes his cheeks with his big hand, but shakes his head.

  "Overruled."

  Molto repeats the question.

  "Based on the position of the body," Greer responds, "the way it was tied, the signs of disturbance, the open window over the fire escape, on first looking at the scene I was of the opinion that Ms. Polhemus had been murdered in the course of, or as the result of, a sexual assault."

  "A rape?" asks Molto, a leading question, not usually permitted on direct examination but harmless under the circumstances.

  "Yes," says Greer.

  "And were police photographers at the scene?"

  "They were."

  "What, if anything, did they do?"

  "I asked them to take a number of photos of the scene. And they did that."

  "In your presence?"

  From the evidence cart the prosecutors wheeled into court this morning, Molto takes the collection of photos I looked at four months ago in my office. He shows each to Sandy before he presents them to Greer. Molto has set his examination up cleverly. Usually a judge will limit the prosecution's use of photos in a murder case. It is grisly and prejudicial. But by emphasizing the appearances, which the prosecution of course will argue were staged, Tommy has deprived us of the usual grounds for objections. We sit, attempting to appear implacable, while Greer describes each of the gruesome photos and identifies them as having accurately reflected the scene. When Molto offers them, Sandy approaches the bench and asks the judge to look them over himself.

  "We can do with just two of the body," Larren says. He removes another two, but he allows Molto to pass the ones admitted among the jurors at the end of Greer's examination. I do not dare to look up often, but I can sense from the stillness in the box that the blood and Carolyn's contorted corpse have had the effect the prosecutors hoped. The schoolteacher will not be smiling at me again for quite a while.

  "Cross-examination," says the judge.

  "Just a few matters," says Sandy. He smiles a bit at Greer. We will not be challenging this witness. "You mentioned a glass, Detective. Where is that?" Stern starts to look among the exhibits Greer identified.

  "It's not here."

  "I am sorry. I thought you testified about it."

  "I did."

  "Oh." Sandy appears flustered. "But you do not have it?"

  "No, Sir."

  "When was the last time you saw it?"

  "At the scene."

  "You have not seen it since?"

  "No, Sir."

  "Have you tried to find it?"

  Greer smiles, probably the first time since he took the stand. "Yes, Sir."

  "I see from your expression you have put some effort into this?"

  "Yes, Sir."

  "And the glass still cannot be found?"

  "No, sir."

  "And who would have handled it last?"

  "I don't know. Mr. Molto over there has got the evidence receipts."

  "Oh." Sandy turns in Tommy's direction. Molto appears faintly amused. It is Sandy's playacting that he finds humorous, but the jury of course does not realize that is the source of this slight grin. To them Tommy must appear somewhat arrogant. "Mr. Molto has them?"

  "Yes, Sir."

  "Ordinarily we would have the evidence, too?"

  "Yes, sir. The prosecutor gets the evidence and the original tags."

  "So Mr. Molto has the tag but not the glass?"

  "That's right."

  Sandy turns again to Molto. While looking at him, Stern says, "Thank you, Detective." He appears to ruminate before he again faces the witness. Stern spends a few minutes on the details of the collection of various pieces of evidence. When he reaches the diaphragm he pauses with some apparent emphasis.

  "A contraceptive device was not the only item you failed to find, is that right, Detective?"

  Greer's face narrows. He did not find the Hope Diamond or Aunt Tillie's missing lace hankie. The question can't be answered.

  "Well, Detective, you and the officers under your command made a very thorough search of the apartment, did you not?"

  "We certainly did."

  "And yet, sir, you failed to find not merely a diaphragm but also any cream or jelly or other substance that could be expected to be utilized with it-is that not correct?"

  Greer hesitates. He had not thought of this before.

  "That's correct," he says at last.

  Nico turns immediately to Tommy. They are seated fifteen feet in front of me, facing the jury. I've never had the chance before to watch my opponents. From the prosecutor's table you focus on the jurors. Nico, is whispering.

  It seems to be something like, Where the hell is the stuff? A couple of the jury members respond alertly to this part of the examination.

  Stern is about to sit down when I ask him to bring the photos over. Sandy casts me a black look. This is proof that Stern would just as soon be forgotten. I motion to him again, however, and he hands me the stack. I finally find the picture of the bar and make my point to Stern. He bows briefly to me before returning to the witness.

  "You identified this photograph, Detective Greer, State Exhibit 6-G?"

  "Yes, sir."

  "It reflects the bar where you found this glass?"

  "It does."

  "Tell me, sir-this would be easier if we had the glass, but is your recollection of it good?"

  "I think so. It's like the ones in the picture."

  "Just so. The glass you seized was one of this set
of barware laid out here on this towel?" Sandy has turned the photograph around so both Greer and the jurors can see the portion of the picture Stern means to indicate.

  "Right."

  "Count the glasses, would you?"

  Greer lays his finger on the photo and does it slowly.

  "Twelve," he says.

  "Twelve," Stern repeats. "So the missing glass would make thirteen?"

  Greer knows this is peculiar. He waggles his head. "I guess so."

  "An odd set?"

  Molto objects, but Greer answers, "Very," before Larren can rule.

  "Really," Sandy says to me when we break for lunch, "I appreciate your thoughts, Rusty, but you must share them with us before the last moment. This detail may be significant."

  I look at Stern as we are heading out of court.

  "I just noticed," I tell him.

  The prosecutors have a dismal afternoon. I never tried a case as a deputy P.A. that did not have a low spot, a trough, a place where my evidence was weak. I used to talk about walking through the Valley of Death. For Nico, as we've long known, the valley is trying to prove what went on between Carolyn and me. His hope, quite clearly, is to get just enough evidence before the jury that they can make a comfortable guess. The overall plan Molto and he seemingly made was to start strong with Greer, stagger through this portion, and then dash for home, with the physical evidence providing a note of rising credibility. A reasonable strategy. But all the lawyers come to court after lunch knowing that these hours will belong to the defense.

  The state's next witness is Eugenia Martinez, my former secretary. She clearly sees this as her moment. She comes to the stand in a broad slouch hat and dangling earrings. Nico presents her testimony, which is succinct. Eugenia testifies that she has been employed in the P.A.'s office fifteen years. For two of those fifteen years, ending last April, she worked for me. One day last September or October, in answering the phone, Eugenia picked up the wrong line. She heard just a few words of conversation, but she recognized the voices as those of Ms. Polhemus and me. I was talking about meeting Ms. Polhemus; at her home.

  "And how did they sound to you?" asks Nico.

  "Object to sound," says Stern. "It calls for a characterization."

  "Sustained."

  Nico faces Larren. "Judge, she can testify to what she heard."

  "What she heard, but no opinions." From the bench, Larren addresses Eugenia. "Ms. Martinez, you cannot tell us what you thought when you heard the conversation. Just the words and the intonation."

  "What was the intonation," Nico asks, back close to where he wanted to be. Eugenia, however, is not ready for the question.

  "Nice-like," she finally answers.

  Stern objects, but the response is too innocuous to merit exclusion. Larren flips a hand and says that the answer may stand.

  Nico is having a difficult time with something important. Again, I am struck by how difficult it has been for him to prepare.

  "Did they sound intimate?" he asks.

  "Objection!" Stern shoots to his feet. The question is leading and unfairly suggestive.

  Larren again takes off on Nico before the jury. The question was clearly improper, Larren says. It is stricken and the jurors are ordered to disregard it. But there is method to Nico's breach. He was trying to find some way to signal Eugenia.

  He asks, "Could you further describe the tone of the remarks you heard?"

  Stern objects again with force. The question has been previously asked and answered.

  Larren peers down. "Mr. Delay Guardia, I suggest that you move on."

  Suddenly help comes to Nico from an unexpected source. He say 'my angel,'" Eugenia volunteers.

  Nico faces her, stunned.

  "That's what he say. Okay? He say he be comin at eight o'clock and call her 'my angel.'"

  For the first time since the trial began my composure fails before the jury. I let out a sound. My look, I'm certain, is inflamed. Kemp lays a hand on mine.

  "My angel!" I whisper. "For Chrissake."

  Over his shoulder, Stern looks at me severely.

  Suddenly ahead of where he expected to be, Nico sits down.

  "Cross-examination."

  Sandy advances on Eugenia. He speaks as soon as he reaches his feet, not waiting to arrive at the podium. He has maintained the same scolding expression which only seconds ago he turned on me.

  "For whom do you work now in the prosecuting attorney's office, Ms. Martinez?"

  "Work?"

  "Whose typing do you do? Whose phones do you answer?"

  "Mr. Molto."

  "This gentleman? The prosecutor at the table?" Eugenia says yes. "When Mr. Sabich was forced to take leave because of this investigation, Mr. Molto advanced to Mr. Sabich's position, is that right?"

  "Yes, sir."

  "And that position is one of considerable authority and influence in the P.A.'s office, is that right?"

  "Number-two man," answers Eugenia.

  "And Mr. Molto was in charge of the investigation that brought him Mr. Sabich's job?"

  "Objection!"

  "Your Honor," Sandy says to the judge, "I am entitled to develop bias. The woman is testifying before her employer. Her perception of his motives is important."

  Larren smiles. Stern is developing more than that, but his excuse will pass. The objection is overruled.

  The court reporter rereads the question and Eugenia answers yes. Sandy, in his opening, touched only lightly on the election and the change of administration. This is his first attempt to develop rivalry for power as a theme. It will answer, in part, his question to the jury in his opening statement about why the prosecutors might move ahead on an insufficient case. It had never struck me that he might do that by picking on Molto rather than Della Guardia.

  "Now, in the course of investigating Mr. Sabich, did Mr. Molto ask you to speak to a police officer about what you remembered of Mr. Sabich's relationship with Ms. Polhemus?"

  "Sir?"

  "Didn't you speak in May to Officer Glendenning?" Tom is in and out of court, but right now he is here and Sandy points at him, seated in uniform at the prosecutor's table.

  "Yes, sir."

  "And you knew that the investigation was a very important one, particularly to your boss, Mr. Molto, did you not?"

  "Seemed like."

  "And yet, madam, when you were asked about Mr. Sabich's relationship with Ms. Polhemus, you never told officer Glendenning that you heard Mr. Sabich call Ms. Polhemus 'my angel,' did you?" Sandy says it with a special cold emphasis. He appears furious with the perjury. He has Glendenning's report in his hand.

  Eugenia suddenly recognizes that she is trapped. She gets a slow, unwilling look and sags a little. She probably had no idea that the defense would know what she said before.

  "No, sir," she says.

  "You didn't tell Officer Glendenning that you recalled Mr. Sabich using any term of endearment, did you, madam?"

  "No, sir." She is brooding; I have seen this look a hundred times. Her eyes closed; her shoulders draw around her. This is when Eugenia is at her meanest. "I never said anythin like that."

  "Not to Mr. Glendenning?"

  "No time."

  Sandy, before I do, recognizes where Eugenia is going. She has thought of a way out. He walks a few steps toward her.

  "Didn't you testify five minutes ago, madam, that Mr. Sabich called Ms. Polhemus 'my angel'?"

  Eugenia draws herself up in the witness stand, fierce and proud.

  "No way," she says loudly. Three or four of the jurors look away. One of them, the man who is learning about hamburgers, laughs out loud, just one little hiccup.

  Sandy studies Eugenia. "I see," he finally says. "Well, tell me, Ms. Martinez, when you answer Mr. Molto's phone these days do you listen in on his conversations?"

  Her thick eyes go sidelong with contempt. "Nope," she says.

  "You would not listen a moment longer than you had to in order to recognize that someone is on the l
ine, is that not correct?"

  This, of course, is Eugenia's problem. She probably heard a good deal more pass on the telephone between Carolyn and me than she has disclosed. But even with the P.A. and his chief deputy prosecuting the case, she cannot admit to eavesdropping. The winds of fortune change too quickly, and Eugenia, a bureaucratic animal, knows that such an admission would eventually be the long-awaited dynamite to dislodge her from her sinecure in civil service concrete.

  "What you heard, you heard in an instant?"

  "That's all."

  "No more?"

  "No, sir."

  "And you tell us it was 'nice-like"? Were those not your words?"

  "What I say, yes, sir."

  Stern comes and stands beside Eugenia. She weighs about two hundred pounds. She is broad-featured and surly, and even dressed in her finest, as she is today, she still does not look very good. Her dress is much too loud and is stretched tight over her bulk.

  "You base this answer," he asks, "on your experience in such things?"

  Sandy is poker-faced, but a couple of the jurors get it. They look down as they smile. Eugenia certainly gets it. Killers' eyes do not grow colder.

  Stern does not ask for an answer.

  "And this conversation about meeting at Ms. Polhemus's apartment took place last September, you say?"

  "Yes, sir."

  "Do you remember that Mr. Sabich and Ms. Polhemus tried a case together as co-prosecutors last September?"

  Eugenia stops. "Uh-uh," she says.

  "You do not remember the McGaffen case? A child, a little boy, had been hideously tortured by his mother? His head put in a vise? His anus burned with cigarettes? You do not remember Mr. Sabich securing the conviction of this-" Stern makes it look as if he is searching for a word, before he ends with "woman?"

  "Oh, that one," she says. "I recall."

  "The McGaffen case, I take it, was not recalled in your discussions with Mr. Molto?"

  "Objection."