Presumed innocent kc-1 Page 28

  I would have expected to become closer to Sandy. I am fond of him, and my respect for his professional abilities, never slight, has grown progressively. But I would not say that we have become friends. Perhaps it is because I am a client, charged with murder no less. But Stern's view of human capacity is itself large enough that I doubt any one act, no matter how heinous, would disqualify someone from his affections. The problem, if there is a problem, is the man and his inner restraints. He draws his lines in his professional life and I doubt anyone passes. He has been married thirty years. I have met Clara once or twice. Their three children are now spread all around the country; the youngest, a daughter, will finish at Columbia Law School next year. But as I think about it, I do not know many other people who claim to be close to Stern. He is a pleasant companion on any social occasion, and he is a polished raconteur. I remember that a friend of Barbara's father told me years ago that Stern tells marvelous stories in Yiddish, a skill I, of course, cannot confirm. But there are sharp limits on Sandy Stern's sense of intimacy. I know very little of what he really thinks, particularly about me.

  "I have two comments about this morning," I say, as I help myself to corn. "I thought it went very well, and I enjoyed it a great deal. The cross has been brilliant."

  "Oh well," says Stern. Sandy, despite his fine manners, is a considerable egotist, like every other noted trial lawyer. He shakes his head, but then takes a moment to savor my praise. A number of the reporters and courtroom observers whispered their compliments as we were on the way over here. Stern, only halfway through the cross, still wears the light air of triumph. "He did it to himself, really. I do not think I recognized before the start of this case how vain a person Raymond is. Even so, I do not know how far it takes us."

  "You embarrassed him very badly."

  "Apparently. He is bound to remind me of it someday. But that is not our problem now."

  "I was surprised Larren was so protective of Raymond. If I had to guess, I would have bet that he'd have bent over backward to appear neutral." "Larren has never been afraid of being regarded as a man with his own affinities." Sandy sits back as a waiter sets down his plate. "Well," says Stern, "I only hope we do as well at the next critical juncture. I am not as optimistic."

  I do not understand what he is talking about.

  "There are two pivotal cross-examinations in this trial, Rusty," he says.

  "We are only in the midst of the first."

  "What's the other-Lipranzer?"

  "No." Stern frowns a bit, unhappy, apparently, merely with the prospect of Lip's testimony. "Detective Lipranzer for us will be primarily a holding action. In that case, we will be hoping, merely, to ease the sting. No, I was thinking of Dr. Kumagai."

  "Kumagai?"

  "Oh yes." Sandy nods to himself. "You see, of course, that the physical evidence is the center of the prosecutors' case. But in order to fully utilize that evidence, Nico must call a scientific expert. Della Guardia cannot stand before the jury at the end of the case and offer only conjecture on how this act took place. His theories must be buttressed by a scientist's opinions. So he will call Kumagai." Sandy samples his lunch with obvious appreciation. "Forgive me for being didactic. I am unaccustomed to counseling trial lawyers. At any rate, Kumagai's testimony becomes critical. If he performs well, he will solidify the prosecution case. But his testimony also offers an opportunity for us. It is really the only chance we will have to blunt the edge somewhat on the physical evidence-the fingerprints, the fibers, all of these items that are normally unassailable. If we make Kumagai look dubious, the physical evidence, all of it, suffers as well."

  "And how do you do that?"

  "Ah," says Stern, somewhat wistfully, "you ask all the difficult questions. We must turn our attention to that shortly." He taps his bread knife and casts his eyes toward the skyline, not really focused on it. "Kumagai is not a pleasant individual. A jury will not warm to him. Something will suggest itself. In the meantime," Stern says, looking back to me abruptly, "what was this blunder I almost made? Something awful would have been disclosed when I asked how you and Horgan met?"

  "I didn't think you wanted the jury to hear about how the Yugoslavian freedom fighter went to federal prison."

  "Your father? Oh dear. Rusty, I must apologize to you for that improvisation the other day. It came to me as I was there. You understand these things, I am sure."

  I tell Sandy that I understand.

  "Your father went to jail? How did that happen? Horgan represented him?"

  "Steve Mulcahy. Raymond just covered a couple of the court calls. That was how we met. He was very nice to me. I was quite upset."

  "Mulcahy was the other partner?" In those days it was Mulcahy, Lyttle amp; Horgan. "He has been dead many years. We are talking about some time ago, I take it."

  "I was still in law school. Mulcahy was my professor. When my father got the first summons, I went to him. I was terribly embarrassed. I thought character and fitness might keep me out."

  "Of the bar? My Lord! What was the crime?"

  "Taxes," I say. I take the first bit of my lunch. "My father didn't file for twenty-five years."

  "Twenty-five years! Oh my. How is your fish?"

  "Good. Would you care for a little?"

  "If you don't mind. Thank you. You are much too kind. They really do this very well here."

  Sandy chats on. He is serene and comfortable amid the silverplate table settings and the waiters in pastel cutaway coats. His retreat. In forty-five minutes he will resume cross-examining one of the most prominent lawyers in the city. But like all virtuosos he has a well-deserved faith in his instincts. He has worked hard. The rest is inspiration.

  When the meal is near its end, I show Sandy the notes I made this morning.

  "Oh yes," he tells me. "Very good." Some matters he is determined not even to respond to. "You are falsely accused and he says you seem to lack composure? Really, this is too silly to repeat."

  At another table, he sees a friend, an older red-haired man. Sandy departs for a second to greet him. I review the pad I have brought along from the courthouse. but most of it has been covered in our discussion. Instead, I look out toward the city and, as usual, think about my father with despair. I had been wildly angry with him throughout that episode, both because of my own discomfiture and because I felt he had no right to seek attention after ignoring my mother's illness, then in its initial stages. But as I watched my father in Mulcahy's outer office, a worm of pain began to eat at my heart. In his distraction, my father, usually rigid about his personal hygiene, had failed to shave. His beard grew quickly and his cheeks were whitish with the stubble. He held the felt brim of his hat in his fingers and turned it in his hands. He had a tie on, which he seldom wore; the knot was a kind of crumbled mess pulled off to the side, and his shirt was soiled around the collar. He did not seem to fill his chair, or even his clothing. He looked at his feet on the floor. He appeared much older than he was. And terribly afraid.

  I do not believe I had ever seen my father visibly frightened before that. His almost invariable mien was of a rough-tempered, sullen indifference. I did not wonder what produced the change. My father seldom spoke to me about his history. Virtually everything I knew came from his relatives. The shooting of his parents; my father's Right; the camps of one side or the other where my father passed the last years of his youth. They ate a horse, my cousin Ilya told me once when I was nine or ten. The story inspired nightmares for most of a week. An old nag had died. It keeled over in the night and froze. It lay in the snow for three days, and then some guard allowed it to be dragged beyond the barbed-wire fence of the compound. The inmates attacked it; they pulled off the hide with their bare hands and grabbed at the flesh. Some meant only to take something to cook, but others in their panic began to eat it there. My father had seen that. He came to America. He had survived. And now in a lawyer's office, almost three decades later, he could foresee a repetition. I was twenty-five years old, and I understood
more of my father's life then, and how his deprivations, in that odd heredity of material effects, had become my own-I recognized more of that in a moment than in all the time before. And I was overcome by grief.

  Mulcahy pled my father guilty. The assistant U.S. attorney promised not to recommend more than a year in jail, and old Judge Hartley, a soft touch, gave him only ninety days. I saw him just once while he was in. I had no stomach for it, and my mother by then was nearing the end.

  When I asked how he was, he looked around, as if he were only now seeing the place for the first time. He was chewing on a toothpick.

  I been in worse, he told me. He had regained all his old harshness, and I found it more upsetting than his fear. Iron-headed, ignorant, he embraced his deepest misfortunes with a kind of pride. The things for which not only he, but I, eventually, had come to suffer he claimed as badges of achievement. He had played in the Olympics of confinement. He could survive a local jail. He had no gratitude to me; no apologies for my shame, or for his stupidity. No knowledge of his real prison. It was late in his life; he died not quite three years later. But the truth is that for everything that went before, it was not until that moment that I finally gave him up.

  ***

  The afternoon's cross begins where I thought the morning's might, in those areas where Horgan is our witness. Stern starts with the calls in March from my phone to Carolyn's. Horgan promptly recollects the recidivist rapist indictment she was trying to draw together that month, and acknowledges that one of the chief deputy's primary functions is to assist in the drafting of charges, especially in complex cases. Raymond does not resist Stern's suggestion that Carolyn's trial schedule and my crowded daytime calendar could easily have led to those consultations taking place by phone at night, or, at least, to calls aimed at scheduling meetings about the proposed indictment.

  From the calls, Stern moves on to the conversation in Raymond's office the Wednesday after the election. By offering my statement that I was at home the night Carolyn was murdered, the prosecution has, in essence, put in evidence of my defense and Stern elaborates upon it.

  Sandy emphasizes that my statement was voluntary. Ms. MacDougall encouraged Mr. Sabich not to speak? You, Mr. Horgan, asked him not to speak? You, sir, in the strongest terms? You told him to keep his mouth shut? Yet he spoke, and he was clearly quite provoked, was he not? Nothing calculated in his manner? His remarks appeared spontaneous? Stern develops at length a prosecutor's learning about the hazards to an investigation subject of talking. The implication, carefully teased out, is that any person of my background who'd had time to contemplate the prospect of confrontation would have known better than to speak up, especially in this fashion. A man who had been at the scene, Stern is suggesting, who had done what the prosecutors say I did, and who was in charge of the investigation, would know better than to choose a lie so easily exposed. Only a person who truly had not been there and who was ignorant of the real circumstances could be provoked by fresh insult to burst out with this truthful response, which chance has bizarrely undermined. Watching Stern do the cross, I foresee his closing argument, and perceive clearly the reasons for keeping me off the stand. Rusty Sabich made his spontaneous explanation the day he was first confronted. What else is there really that he can add now, so long after the fact?

  With my version before the jury, Stern goes about building my credibility. He takes Raymond on an extensive tour of my achievements as a deputy P.A. He begins, in fact, with Law Review and goes through the succeeding years. When Molto finally objects that this is unnecessary, Sandy explains that Horgan has questioned my judgment in the direction of the Polhemus investigation. It is appropriate that the jury know the full extent of my professional background, so that they are able to recognize that what has been portrayed as unwillingness or insubordination may merely be a disagreement between two veteran prosecuting attorneys. The logic of this position is largely unassailable and Larren directs Molto to resume his seat. The canonization of St. Rozat goes on.

  "And so, nearly two years ago now," Sandy eventually asks, "when Mr. Sennett, then your chief deputy, moved to San Diego, you turned to Mr. Sabich to fill that spot?"

  "I did."

  "And is it fair to say that the chief deputy is the person in the office in whose judgment you place the greatest confidence?"

  "You could say that. I regarded him as the best lawyer for the job."

  "All right. You had 120 other deputies?"

  "About that."

  "Including Mr. Della Guardia and Mr. Molto?"

  "Yes."

  "And you chose Mr. Sabich?"

  "I did."

  Nico looks up, irked, but neither he nor Molto objects. Sandy works like a jeweler, tapping, tapping at his themes of past resentments. Two of the jurors seem to nod.

  "And you did not think Mr. Sabich would commit a crime, you had absolute and complete confidence in his judgment and integrity, based on working closely with him for more than a decade?"

  The question it compound, and argumentative, but also obvious. "Let it stand," says Larren when Molto objects. Raymond weighs the answer.

  "That's fair," he finally says. This small concession seems to have had a substantial effect in the jury box. I see now why Stern attacked Raymond at the outset. He had a point to make. Not with the jury-but with Raymond Horgan. Matters are not as clear to Raymond as they were when he walked into the courtroom.

  "Just so. And it was not necessary for him to check with you on all matters to be sure that he was proceeding in exactly the manner you wished?" Stern asks. I take it that he is trying to minimize the significance of my delay in pursuing the fingerprint report.

  "I always gave the people who worked for me some leeway."

  "Well, is it not true, Mr. Horgan, that in conducting the investigation of Ms. Polhemus's murder, Mr. Sabich knew that you had trusted his judgment on many occasions in the past, including on many substantial matters?"

  "I don't know what he knew, but I had obviously approved of his judgment in the past on a lot of things."

  "For example," says Sandy, without any indication of what is coming, "you gave Mr. Sabich the authority to decide where and when to fire Mr. Della Guardia."

  Nico, understandably, erupts. Larren is disturbed. He calls immediately for a conference with the lawyers outside the jury's presence. Some judges hold these meetings, known as sidebars, in the courtroom at the side of the bench away from the jury. Larren's practice-designed to keep the jury from overhearing the lawyers' arguments-is to leave the courtroom entirely and stand in the small anteroom outside his chambers.

  Della Guardia, Molto, Kemp, Stern, the court reporter and I all follow the judge out the back door to the courtroom behind his bench. It is clear even before everyone has assembled that the judge is put out with Stern. He regards the last question as a cheap shot.

  "Now what are we going to do here?" he demands of Sandy. "Relive ancient history day by day? We are not gonna turn this lawsuit into a contest over personalities."

  Molto and Nico are both talking. Any past antagonism between the prosecutor and the defendant is irrelevant, they say. Judge Lyttle is clearly inclined to agree.

  "Your Honor," says Stern, "we do not accuse Mr. Della Guardia personally of bad faith. But we believe this is a circumstance, indicating how and why he might be misled." Without saying it, Stern is focusing again on Molto. He has been careful to pick on him, and not Nico, from the start. Della Guardia is a popular person in this town right now, and known to the jurors. Molto is a cipher. Perhaps Sandy also means to take advantage somehow of the unequivocal promise made at the start that Molto would not testify.

  "Why Mr. Della Guardia might be misled, Mr. Stern, is irrelevant. What the prosecutor thinks of his case is no matter to this jury. Lord knows, you don't want to start gettin into that."

  "Your Honor," says Stern solemnly, "it is the theory of the defense that Mr. Sabich has been framed in this case."

  From this huddled group, I
take a step backward myself. I am stunned. Stern had so thoroughly rejected this tactic weeks ago that I had given it no further thought. And things seemed to be going so well without it. Was Horgan's direct that devastating? I no longer understand my own lawyer's theory of defense. Just a moment ago, I thought he was working up one of his delicate unspoken messages to the jury: Molto wanted Sabich's job. He pressed too hard to make a case in order to obtain it, and Della Guardia failed to recognize this because he, even unconsciously, was nursing a grudge of his own. That was vintage Sandy Stern, an artful assessment of human frailty, quietly communicated, designed to diminish the prosecutors' credibility and to demonstrate how this grotesque error-accusing me-came to be made. That is the kind of believable undercurrent juries eagerly receive. But this is a blunderbuss technique, one which, I had come to agree with Stern, was not worth the risk. Certainly I was not prepared for this change of direction without consultation. And on the record. These corridor conferences are available to the public. The reporters at the break will crowd around the court reporter and beg her to read her notes. I can we the headline: SABICH FRAMED, LAWYER SAYS. Lord knows what the jurors will think, if any of them fail to miss the unavoidable. Improvising, Sandy has raised the stakes.

  In the meantime, Nico walks up and down the corridor snorting. "I don't believe it," he says two or three times.

  Larren looks to Molto for a response.

  "Ridiculous," Molto says.

  "Your denial is noted for the record. I mean your response on the point of evidence. If Mr. Stern is truly going to endeavor to prove that the case against Mr. Sabich has been manufactured, then I suppose this history of antagonism is relevant for those purposes."