Presumed innocent kc-1 Page 31

  "I quite understand," says Larren. "You may want to do some research on this issue, Mr. Stern. And I'll be happy to hear you. And I can tell you right now, I'm not eager to let anybody get up on the witness stand in my courtroom and give his opinions about what he says was once observed on some physical object that nobody can even find anymore." He casts a rough-tempered glance toward Molto. "So you look in the books tonight and I'll listen to you. And, Mr. Della Guardia, if I were you, I'd roll up my shirt-sleeves and get over to that evidence room myself."

  "Yes, Your Honor," says Nico dutifully.

  Stern gives me a meaningful look from beneath his extended brow as we head into the courtroom. He seems to be inquiring. It is almost as if he thinks that I can account for the glass's absence. Perhaps it is merely a sense of promise that gives Sandy this expression. If Larren were to keep the prosecutors from presenting the fingerprint evidence, the case against me would certainly fail. Stern is not sure whether or not he should be hopeful. Nor am I.

  "Would he really think about keeping out that proof?" I ask Stern as we stand behind counsel table. We are waiting for the jury to return to the courtroom, so that the judge can tell them they are being dismissed for the day.

  "It strikes me as a serious question of evidence. Is it not? We must study tonight." More time for Kemp and me in the library. I nod, accepting Stern's unspoken instruction.

  About 9:30 that night, Kemp comes back to Stern's small library to tell me that I have a call. He remains behind to inspect the series of cases I have copied from the reports of the state supreme and appellate courts, while I go to the receptionist's desk, where Jamie has picked up the phone. A line is blinking, on hold. I assume it is Barbara. She usually calls about now, hoping to review the day's evidence for a few moments; and every evening I go through an arabesque of diffidence and contained response.

  The truth is that I have done my best to avoid Barbara since the days immediately before the trial. I have suggested she go to sleep each night before I return; I have eaten dinner with Stern and Kemp, enjoining her even from leaving me a meal. I cannot stand to have her abstracted curiosity turned on this evidence like some high-powered light. I do not want those late-night scenes where we chew over the events of my trial as we did those malefactors I accused. It would make me unbearably ill at ease to hear Barbara engage in close analysis of the tactical decisions undertaken in this trial for my life. Most of all, I do not wish to get drawn into discussions of my discomfort. With the evidence being trotted out each day before us, I know the conclusions she might reach, and in my present state I could not abide that confrontation-to allay suspicions or confirm them. But when I pick up the phone, it is not Barbara's voice I hear.

  "How'd I do?" Lip says. "I thought they were goin to give you a medal or somethin with all these terrific things you and I done."

  "You were great," I tell him. There is no point in the truth.

  "Fuckin Delay, I'll tell you," he says. "Schmidt come to see me this mornin before I got on. He says a little birdie wanted to make sure that I got the message that if I fucked around on the stand, I'd be walkin beats in the North End by myself in the middle of the night. Nice subtle stuff with this guy."

  I make a sound, general agreement. I have sent a few such messages myself from time to time-to coppers who have a peculiar friendship with defense counsel; who know the defendant from the 'hood. It's part of the job.

  "I thought maybe we could get together tonight," Lip says. "Talk about that thing I said I'd help you with." He means finding Leon. "How about I drive you home? You be there a while?"

  "Another two hours probably."

  "That's good for me. They got me workin 4:00 to midnight. I'll take my coffee early. Corner Grand and Kindle at 11:30? I'll be drivin the unmarked Aries."

  We work it like a spy movie. I am in the lobby until the car moves into sight and Lip is barely at the curb five seconds before he is moving. Now that he is off the witness stand, the pressure on him has lessened, but there are many people who would tell him that the better part of wisdom right now lies in staying away from me. He pulls around the corner so quickly that the rear end gives way a little bit on the pavement, which is slick from a light rain.

  I compliment him again on his testimony. "It was good," I say, "because you played it straight."

  "I'm tryin," he says, and reaches for his radio, which is putting out a tremendous ruckus. "This is great," says Lip, of the radio. "We're workin on a dope bust with the G-men to make up for that fiasco in April and these guys can't get on the air together often enough to make sure nobody gets turfed. They better hope their subject don't have a scanner, because he couldn't miss this posse comin."

  I ask about what is going down.

  "It's cute," says Lip. "They got a nice-lookin little female agent in a mink coat that got seized last time the Strike Force went in on Muds Corvino's bolita game. She's makin out to be some dope-crazed suburbanite and she's gonna buy ten keys of coke from somebody in Nearing."

  "Probably one of my neighbors," I say. "There's a guy down the block named Cliff Nudelman whose nose is redder than Rudolph's."

  We are quiet, listening to the radio traffic. Cops and robbers. I feel a vague melancholy when I admit to myself that I miss it. There is lots of static because of the rain. Thunder and lightning must not be far off. I am reluctant to mention Leon first, but I finally ask how Lip is doing.

  "I haven't started," he says. "I will. First thing. Only I haven't got a fuckin idea where I oughta look. That's what I wanted to hear. You got some suggestions?"

  "I don't know, Lip. It shouldn't be that hard to find a faggot named Leon. Go interview waiters. Or interior decorators."

  "Probably moved to San Francisco, you know. Or died of AIDS or some crap."

  I refuse to respond to Lip's suggestion that his efforts will be futile. We are quiet a moment; the radio barks. "Can I ask a question?" he says after a while. "Is this really so important?"

  "To me?"

  "Yeah."

  "Damn right."

  "Can I ask why? I mean, you really think this jamoche's gonna give you somethin?"

  I tell him what I told him before. "I want to find something, Lip. That's the most honest way I can put it."

  "On Molto?"

  "On Molto. Right. That's the way I've got it figured. As much as I can figure at all." We are down near the bus terminal, a bleak place at any hour, but especially at midnight with rain. I look out toward it, a sad hulk in the dark. Lip's dwindling faith in me hangs in here with a misty sadness of its own. More even than the risks, that is what bothers him. From his own perspective he's figured it out. I want to use this thing with Molto as a diversion-as Nico put it, a red herring. Lip's reluctance is obvious to both of us, and it is a dismal sign of where I am that I must lever him with our friendship to make him do what I know he would resist for almost anyone else. "Let's run a sheet at least. Berman, Sandy's P.I., says he couldn't even get a rap sheet out of the department."

  "I told you, man, they closed down tight on this thing. They're gonna be in Kenneally's shit in a big way for givin you the time of day."

  I take a moment.

  "How did you hear about that?"

  "Watch commander don't get anywhere that people don't notice." The rain beads on the window. The air is close. I understand the spy stuff on the street corner now. "What's he tell you?" Lip asks.

  "Not much. He told me that Carolyn and Larren used to be an item a long time ago. What do you think of that?"

  "I think she got around," says Lipranzer, "same thing I always thought."

  "He said that Larren clouted her into the P.A.'s office through Raymond."

  "That fits," says Lip.

  "That's what I thought."

  "He tell you anythin else?"

  "More ancient history. You know: the North Branch used to be a dirty old place, but he thinks Motto was clean."

  "And you believe him? About Molto?"

  "I don't want t
o."

  "I wouldn't take that guy's advice on clean or dirty. I'll tell you that. God only knows where he's comin from."

  "What is it with you and Lionel?"

  "Not my kinda cop," says Lipranzer simply. We have crossed the Nearing bridge by now and have entered the sudden dark of the suburban neighborhoods, out of the garishness of the highway's yellow sulfur lights.

  "I worked out his way when I started, you know."

  "I didn't know that."

  "Yeah," he says. "I seen him in action. Not my kinda cop."

  I decide I won't ask.

  Lip looks out the windshield. The shadows of the wipers move across his face.

  "We're talkin twelve, fourteen years ago now," he says at last. "Things were different. I'm the first to admit that. Okay? Everybody's on the pad back then. All right? Everybody." Lip looks straight at me and I know what he means. I find it unsettling. "The pimps, the barkeeps, they just put up the dough. You didn't even talk about it. It was there. So I'm not castin stones, okay?

  "But one night, I'm comin out of a place-two, three in the mornin-squad comes runnin down the street full speed and stops dead. First I think it's me he wants. So I come a little closer. But he don't even see me. It's Kenneally. You know, he's a sergeant by then, so he's ridin alone, beat supervisor. And he's lookin across the street. Right in a doorway. There's a hooker, okay? Black gal. You know, she's got the skirt on up to her chin, and leopard top or some such shit. Anyway, I hear his whistle. You know? Like for a dog or horse. Big loud number like that. And he pulls the black-and-white into the alley. Gets out and looks down the street toward this pro, and he's pointin like this." Lip shoots an index finger down toward his groin. "Big smile. And this lady, she waits and she waits. And he keeps pointin and smilin. He says somethin I don't quite hear. Don't say no. Somethin like that. Anyway, she goes slow down the street like, Oh, man, don't tell me, draggin her purse like she's got maybe an anvil inside. And Kenneally's got his big smile. Sits down right there in the squad. All I see is his legs stickin out the door, his shorts down around his ankles, and this lady on her knees while she's working. Fucker didn't even take off his hat."

  Lip swings into my driveway. He takes the car out of gear and lights a cigarette. "He ain't my kinda cop," he says again.

  Chapter 32

  The trial's first pitched battle over an issue of law occurs the next day and occupies the entire morning. Nico describes a six-hour item-by-item search of the police evidence room. They cannot find the glass. Both sides have prepared written memoranda addressed to whether testimony about the fingerprints on the glass may nonetheless be received. Kemp wrote our brief sometime after midnight. Molto must have started later than that, since Nico said they were in the warrens of the evidence room past one o'clock. Each man wears the hazy red-eyed look of a lawyer on trial. Larren retires to his chambers to read both briefs, then returns to hear oral argument. At the start, it is supposed to be only Nico and Stern addressing the court, but each turns so often to his second that before long all four lawyers are talking, with the judge interrupting, posing hypothetical questions and, on occasion, thinking out loud. Stern makes his points with greater vehemence than at any time during the trial. Perhaps he senses an opportunity for triumph; perhaps desperation is gathering after yesterday's sobering events. He keeps emphasizing the fundamental unfairness of forcing the defendant to confront scientific testimony whose basis we have had no chance to assess. Nico, then Molto, repeatedly state that the so-called chain of custody has been uncontested. Whether the glass can be found or not, the testimony of Greer, Lipranzer, and Dickerman, the lab supervisor, will establish, taken together, that the prints were identified from lifts obtained from the glass the day after the murder.

  The back-and-forth between the lawyers is endless, and I find my spirits in a sickening spiral, escalating, then instantly descending from elation to bitter lament. It is clear that the judge is undecided. This is one of those issues, of which there are so many during a trial, where a judge is within legal boundaries no matter what he does. The authorities support a ruling for either side. The way Larren gives it to Nico and Tommy about the carelessness of the police makes me certain, at moments, that the evidence is going to be excluded. But the prosecutors are frank about the devastation that this would bring to their case, and without saying it aloud, they hint at the impropriety of disposing of a celebrated prosecution as the result of police negligence. In the end, this thought appears persuasive and Larren rules against the defense.

  "I'm gonna admit this testimony," the judge says, shortly after the court clock has reached noon. Then he explains the basis of his ruling for the record, so that the court of appeals can assess his judgment, if it ever comes to that.

  "I must say that I'm pretty reluctant to do so, but I am influenced by its obvious importance to the case. Naturally, that same fact, given the overall tone of some of the things that have occurred here"-the judge looks toward Molto-"leads me to understand the defense's skepticism. They are right that they have not had the opportunity to examine an object of physical evidence. On the other hand, the object itself is not gonna be presented. The absence of this exhibit is attributed to the police evidence room. I want to note for the record that the police evidence room custodians have been guilty for years of this kind of slipshod record keeping and handling of exhibits. This is probably the most dramatic, but certainly not the only example that we all know about. And I must say that it is that knowledge, derived outside the record, that influences me to allow the testimony. The fact of the matter is that the best-intentioned prosecutors-and I by no means am ruling on the intentions of Mr. Della Guardia or of Mr. Molto, who seems to have had the glass last-" Again Larren stares darkly at Tommy. Did Greer really say that? I wonder. "-but the best-intentioned prosecutors cannot seem to control what happens to exhibits once they leave their hands. It could be that there is bad faith here. I will be lookin out for further evidence of that, and if there is that kind of bad faith, then this prosecution is gonna end. Period. But overall, that thought strikes me as so unpalatable that I'm gonna assume it isn't true. So I will admit this proof, over objection, and with my own reservations noted. I am, however, gonna give the jury a strongly worded limiting instruction, which I want to take some time to craft over the lunch hour. We will resume at two o'clock."

  The judge leaves the bench, asking the lawyers to remain for a few moments so he can have their thoughts on the instruction he wants to draft. Sandy is philosophical. It is clear now that he believed we were going to win. I explain what has occurred to Barbara, who appears particularly upset by Larren's ruling. "It isn't fair," she tells me. "You haven't even had a chance to look at it."

  "I understand," I say. "It's one of those calls a judge gets to make." I'm not trying to be heroic. All along I have tested Larren against my own internal barometer. On this one, I would have ruled the same way. I go to the john. When I come out, Nico again is at the sink, washing his hands as he feints left and right to see the position of his hairs under the light.

  "Well, Rusty," he says. "Are we going to be hearing from you next week?"

  Under the state discovery laws, the defense is under no obligation to inform the prosecution of its witnesses. Whether or not the defendant will testify is often the most closely guarded secret of the defense camp. The prosecution should rest tomorrow. Assuming the judge takes a day for arguments on the directed-verdict motion, our case will begin next Monday. If the prosecutors receive no indication of our intentions, they will not know whether to spend the weekend preparing for cross-examination or closing arguments. Most of the time, you end up strung out in both directions.

  "I'm sure Stern will tell you, Delay, whenever we make up our minds."

  "I have a sawbuck that says you're coming."

  Nico is playing games, testing my nerve. He is a lot harder than he was during our encounter here last week. This is the crafty Delay of old.

  "Maybe you'll win," I tell him. "You
got the cross?"

  "Had to," he says. "I couldn't cross Barbara. She's too nice a lady."

  Again Nico is probing. He wants to know if Barbara will testify to support my alibi. Perhaps he's trying to see if I flinch at the thought of Molto working over my wife.

  "You're just a softie, Delay." I look at myself in the mirror. I've had enough of this conversation. Nico, upbeat with the pleasant current of events the last two days, will not let it go.

  "Don't let me down, Rusty. I really want to hear it. You know, sometimes I wonder. I think, How could the guy I knew do a thing like that? I admit it. I wonder sometimes."

  "Nico, if I told you what really happened" you wouldn't want to believe it."

  "Now, what does that mean?"

  I turn away and he takes my elbow.

  "Really, what does that mean?" he asks. "This isn't that crap about Tommy framing you, is it? I mean, that's for the papers, Rusty. This is Delay." He touches his shirt. "You can't believe that. That's a bunch of crap. I mean, off the record, all that shit. Me and you. Right here. Old buddies. Nobody repeats anything. You're telling me you believe that crap?"

  "Where's the glass?"

  "Oh, screw that. The cops lose everything. We both know that."

  "He seemed to have primed the pump with Eugenia."

  "What? You really think he told her to say 'my angel' Come on. He heated her up too much. I admit that. And that was stupid. I told him that. I told him that. He's compulsive. You know. He was very fond of Carolyn. Very close to her. He considered her one of his closest friends. Big sister kind of thing almost. Looked up to her. He's very committed to this case."

  "Did you ever look at that file, Nico?"

  "The one from Raymond's drawer?"

  "Do some homework. On your own. You may get some surprises. About big sister and little brother."

  Nico smiles and shakes his head to show he isn't buying it. But I can tell that I've gotten under his skin now. I enjoy the advantage. I've had Nico's number for years. I dry my hands on one of the paper towels, with my mouth pursed to show that I will say no more.