The Last Trial Page 31

  “Ah,” he says.

  She offers him the calendar for his inspection, but he touches her hand and guides it back into her large purse.

  She prepares to call a ride service to get home, and Stern instead summons Ardent to take her. Sandy helps Donatella with her coat and sees her to the elevator.

  She considers him a moment longer. Donatella, he can see, is suffering.

  “There really is no dignity in being elderly, Sandy, is there?” she asks. That, he suspects, is much more a comment on her life at the moment than his. Donatella sways her head with an air of deep sadness, then kisses Stern on each cheek and steps into the waiting elevator with Ardent.

  31. Final Motions

  On Saturday, largely to stall, the Sterns file a motion to dismiss the indictment, which the government answers within hours. On Monday morning, when the lawyers are again assembled before the judge, Sonny talks respectfully about the decisions the Sterns cited, but says the situations are not the same and refuses to dismiss the indictment.

  “Mr. Stern, do you have any other motions at this stage?”

  Clearly, Sonny now expects Sandy to request a mistrial. Kiril has given them permission to make the motion, but only in the most minimal way. If they do not offer even a bare-bones request, then under the law Kiril will have waived many legal points, essentially giving up any reasonable chance on appeal, if he doesn’t win his long-shot bet with this jury.

  “Defendant Pafko requests a mistrial,” Stern says.

  Sonny nods. “Please proceed with your argument.”

  Stern answers, “Defendant will stand on his motion.”

  There have been moments during this trial when he has seen on Sonny’s face an expression that has not been directed at him in almost thirty years. They started out as fierce rivals in a case in which Stern’s brother-in-law, Silvia’s first husband, was the target of a commodities fraud investigation. Sonny was at the end of her tether for many reasons, pregnant by a man she no longer wanted to be married to, working for a demanding and somewhat underhanded boss in the US Attorney’s Office. She flared often in the course of her dealings with Stern, especially at the start, and on sight regarded him with a narrow-eyed look, awaiting his next trick. And that is what he sees now. She knows instantly that Sandy is trying to have it both ways—to proceed to verdict with this jury and then, if that goes wrong, to argue on appeal that Kiril was unfairly prejudiced when she denied his mistrial motion. Judges never like being middled in that manner.

  “Any response, Mr. Appleton?”

  Feld answers. “A mistrial is not warranted, Your Honor. Even without the murder charges, the prosecution was entitled to prove that g-Livia caused actual deaths.”

  “No, it wasn’t,” the judge answers tartly. “In proving fraud, you cannot go beyond what the defendant knew. Dr. Pafko was never confronted with direct evidence of any death. As to him, it was all hearsay. The reports of deaths required investigation, and as such they support your charges. But the weeping victims, the involved testimony about survival rates, let alone allegations of the most serious crime known to our law—none of that was in order in this case. The jury never should have heard it.”

  She is arguing the defendant’s motion for them. Stern’s heart rises in hope that she will declare a mistrial anyway.

  After her expression of pique, Sonny plunges her mouth onto her palm and drums the fingers of the other hand on the desk blotter on the bench, while she tries to think.

  “And if I deny your motion, Mr. Stern, what will the defense offer?”

  “We shall rest, Your Honor.”

  His candor does a bit to calm her.

  “The defendant will waive his right under the Fifth Amendment to testify?”

  “He shall.”

  She has the full picture now.

  “And your client is fully advised, including about the fact that you are making no argument in support of your mistrial motion?”

  “He is.”

  “All right,” she says. “All right. Given the fact that the defense refuses to offer any argument in support of its mistrial motion, I will deny it, since it is clear the defense has made a strategic choice to go to verdict with this jury, as is its right.” Understandably, she is sticking it back to Stern as hard as she can.

  She then calls Kiril to the podium and goes through the elaborate procedure required these days in federal court to waive his right to give testimony on his own behalf. Once that is done, she asks both sides to get her their proposed instructions to the jury and sets a hearing on them for 3:00 p.m. this afternoon, which Marta will attend. The defense will formally rest in front of the jury in the morning, and closing arguments in the case will follow.

  “I will tell the jury that I expect to give them the case for deliberation after lunch tomorrow.”

  Following Descartes, who supposedly did his deepest thinking in bed, Stern has long composed most of his closing arguments here, a tray with food and several yellow pads beside him. He writes down little. Instead, he reasons through arguments, then phrases, uttering the same words again and again in his mind, and occasionally mumbling a few aloud to test the tone. Even at this age, he is confident he will retain it all in memory.

  Perhaps because he is lying down during the day, or more likely because he breaks his own rules and occasionally feeds the little dog a scrap or two, Gomer leaps up on the bed and keeps him company throughout. It helps Stern to feel the heat of the dog’s body beneath his hand, the dense fur, Gomer’s breath and heartbeat.

  Yet bed is a good idea in this case for more reasons than habit. He meant what he told Kiril. This case has exhausted him, taken him far beyond his capacities. For the last couple of days, the racing of his tachycardia, like a small bird trapped in his chest, has been more frequent. He vows, not fully believing himself, that he will call Al, his internist, as soon as the jury is instructed.

  What he has to say about the case comes easily. A good closing has always been in preparation every minute of a trial, and because he feels secure about that, he gives his body what it most needs and dozes. He wakes after night has fallen, to find it is not so much Kiril’s past but rather his own that preoccupies him. His short-term memory remains good, but after living so long, there are moments when he wonders if his recollection is a work of fiction. He is no longer positive that Peter was a sleepwalker, that the scene in his mind of the boy in his pajamas, fully immersed in the bathtub except for his eyes and nose, did not come from a movie. And was Clara truly as stony and elusive as he sometimes remembers? He had never thought of himself as unhappily married, but now, in his waning days, he does not recall a waterfall of happy times. Yes, the birth of the children: absolute exultation. And the power and purity of his love for her at the start of their relationship was real. But her openness with him in the early days was what made him feel they had achieved something special. As time went on and her unhappiness became more deeply engraved and more complex, as adult life repeated rather than repaired everything that troubled her, she had become more closed off, more difficult. And in her subtle but unrelenting way, she let him know he was much of the problem.

  Although he had never thought about it before Kiril first walked into his office, he now suspects that what drew Clara and Donatella together in friendship was not simply appreciation of symphonic music but the bond of women with impossible husbands—impossible in different ways, but neither genuinely committed to his spouse’s happiness. They did not say much on that score, he suspected. Both women were too dignified. But even imagining the nods, the glances, the snorts of disapproval, is lacerating. Was he really the same kind of selfish buffoon as Kiril? And without a Nobel Prize in compensation.

  He has never told himself he was without grave deficiencies as Clara’s partner. He was in his office with his cigars, his books, his phone, his clients, from seven in the morning until nine or ten at night. When he returned, the children had been fed and bathed and put to bed. Clara waited with a book
on her lap in the living room, something classical on the hi-fi at low volume, the aroma of his warming dinner in the air: an image of order, resourcefulness, self-sufficiency. She was like some Swedish minister, a character from a Bergman film, enduring existential torment in silence and low light.

  Now, when his life stands in relief, as observed by the backward-looking eye, the trauma of Clara’s suicide looms like a skyscraper. He has been trying to crawl out from the shadow of mystification and guilt for decades. They did their best, he supposes. She could not subdue her depression and he, given the turmoil and uncertainties of his youth, could only be a slave to his anxiety. But a part of him rebels. He did his best; but isn’t that what everyone always claims? Was it really true, or only an excuse for having lived as he had wanted to? And her as well. Clara had killed herself at the beginning of the Prozac era but had refused all advice to take the medication. She did not want to be parted from her elemental self.

  And would the Sandy Stern of today—the husband Helen had—have been attentive and empathetic enough to make Clara less desperate? Was it the darkest, the ugliest, the most unsettling truth that he simply did not care to make the effort, that at some level he understood he could live a happier life without her? And Clara’s death had freed him. His children suffered. But with Helen he had found contentment. No, Moses could not bring murder charges against Stern. Yet he had sensed for years that Clara was standing on the cliff’s edge. He did not push her, or even shout ‘Boo!’ But he had let her face the storm alone.

  These were the kinds of truths that approached the unbearable, like performing torturous physical therapy on his heart. Here, at least, he bested Kiril, who could never for a minute bear the anguish of these kinds of questions. But he did not really know which of them was better off as a result.

  Everything ends, of course. Life ends and thus all beforehand. Stern stands looking at his naked self in the mirror after his morning shower, confronting in the most meaningful way yet the approaching reality: By the end of the day, he will be a former trial lawyer. So much of his life’s energy has been spent in actual courtrooms or the courtroom of the mind, where he would play out the next day’s possible developments as an intricate mental experiment, that he cannot even gauge the precise effect of leaving this work behind. Although he would risk sounding like a lout, the fact, he knows, is that there will be moments when losing this career will be harder even than losing Helen. He loved Helen, and each day was far fuller with her. But her death reminded him of the existence of his fundamental being. Indeed, it is that something—soul, fragment, spirit—that remains most enigmatic, the subjective, ineradicable piece of him that seems to have always been here, unaltered since he was five or fifteen, the invisible space where he is who he has always been. He can imagine his grandchildren and great-grandchildren frolicking through life without his presence: graduating, marrying, suffering their own disappointments and even deaths; he can see the ice caps melting and Miami awash. But confronting the thought that this basic piece of his universe will be gone—that is somehow unimaginable. Not to say he can’t accept it. For there is always this truth: He must.

  Stern is in the office early, readying himself, sorting out the exhibits he will display to the jury and that Pinky will project as slides. With that done, he takes up his familiar pose at the window to appreciate the rising colors of morning and thinks suddenly about his career. Was it really worth it? But he has no doubt. Some speak of the nobility of the law. Stern has not always found that to be true. Too much of the grubby bone shop, the odor of the abattoir, emanates from every criminal courtroom. It is at heart a very nasty business to accuse, to judge, to punish. But the law, at least, seeks to govern misfortune, to ensure that a society’s wrath is not visited at random. In human affairs, reason will never fully triumph; but there is no better cause to champion.

  At 8:30, he heads to the reception area to meet Marta.

  “So, Mrs. Aquaro,” Stern says, addressing her as she has been known in her private life, at places like her children’s school, and as she will now be called far more often. “You are done now. How do you feel?”

  “I know it’s killing you, Dad, to stop, but I have to tell you, I’m not going to miss this. The idea that somebody’s freedom depends on how I perform? I never had the same zest for it as you. Or the same gifts.”

  “Untrue,” he says. “You are—were—a very fine lawyer.”

  “I agree with that. But I was never Sandy Stern.”

  “Lucky for you,” he says. “But we had an outstanding partnership.”

  “I agree with that, too.”

  She hugs her father. They hold on to one another for a moment.

  Knowing it is the finale, the entire office staff is lined up to see them off. He passes between these loyal friends, feeling like Marta and he are passing under the raised swords of fellow officers. He thanks every person for their help, the hours they have given him and Marta and their clients. At the door, he turns, touches his heart, bows. Then he offers Marta his arm.

  “Let us go forth one more time,” he says, “to slay the zombies.”

  32. Closing

  Ladies and Gentlemen of the jury,” says Mr. Alejandro Stern. With both hands on the knob of his walking stick, he has come to his feet, a little like a boater poling out of the mud. He is in the same outfit he wore for his opening—blue suit, white shirt, a red-and-blue rep tie, which was a gift from Clara when he argued his first case after leaving her father’s law office. Whatever the fashions, he has worn it for every argument he has given since then.

  “I am an old, old man. Alas, you may have noticed.” They smile, all of them. A good sign. “I have spent much of my life in courtrooms or thinking about being there. Not all of those places have the architectural grandeur of this one”—he raises his arthritic hand toward the ceiling coffers and the glorious chandeliers—“but they are all beautiful places in spirit, because they are where we as a community come together to try to do justice—all of us, lawyers and laypeople, the judge, the court staff, you as jurors, all of us united in the same all-important enterprise. ‘All important,’ I say, because truly, there can be no society, no civilization, without a reliable and accurate system of telling wrong from right, a system that punishes those who are a danger and frees those who have been unfairly accused.

  “Please forgive me if I seem to lecture you. You are my last jury. It is inevitable that it will be your faces I see in whatever time I have left, when I think about my career in court. So I hope you excuse me if, in talking about the case against Kiril Pafko, I share a few lessons learned over a lifetime.”

  He gives them a long look, stirred himself by the way the river of time has carried him forward to this moment.

  “I admit that not every client I have stood beside is Kiril Pafko, with a lifelong record of aiding humanity. You can understand, I suspect, why I tell you how proud and honored I am to be here speaking for him, why I am so pleased to be able to tell you that the charges against Dr. Pafko are unwarranted and entirely unproven, and to be doing that in the culminating act of my career.

  “But even when I have represented clients whose record in life is not as glorious as Kiril’s, I have been glad to do this work. In my own mind, what I have done for more than half a century is defend liberty. She, the figure of Liberty, has truly been my other client in every case. In every case, I have defended the right of each American to remain free unless and until the state has met the mighty burden of proving them guilty beyond a reasonable doubt. We do not live in a country, unlike many others, where people get locked up on mere suspicion. Or simply because they have displeased the powers that be. We live in a country that cherishes every single person’s freedom and takes as a central belief that, as we have all heard said, it is better that a hundred guilty people go free than one innocent person be convicted. That is why the burden of proof on the state is so, so heavy.

  “It is a horrible thing to be convicted of a crime. For a pers
on like Kiril Pafko, it is the end, in every sense. An end to a long life as an honored individual. To his medical career, of course. The end. You know that. You do not need me to go through the details of what might follow. But please accept my thanks, Kiril’s thanks, for approaching your duty here with a sense of the utter gravity of your deliberations and your conclusions.

  “This system in which you today play a central part, our jury system, goes back more than eight centuries. In the Magna Carta, the Great Charter, the British king made a promise that our government still follows today, a vow that in a matter so serious—a matter where liberty, where a person’s very existence will be changed forever—in such cases, the decision whether a defendant deserves to face the court’s punishment—that decision belongs in the hands not of other government officials, or even a group of lawyers, or even an extraordinarily able judge, like Judge Klonsky”—he faces her and delivers his characteristic little cutaway bow, which she answers with a minute nod—“not any of them. No, the decision belongs in the hands of Kiril Pafko’s peers, the people who live and work and worship beside him, in the same neighborhoods and streets. What an amazing concept that is. Think about it, please. Yes, we elect our leaders. But no decision our government makes, not how to spend the national budget, not how to deal with foreign countries, not how to levy our taxes or pay out social security, none of those decisions are entrusted to the people, even though a little common sense would probably help in all of those arenas.” He smiles, they smile.

  “This decision alone, guilty or not guilty, to punish or not, is laid before so-called ordinary folks—because, in the end, you are not ordinary at all. You, as good citizens, as good people, know every bit as much about right and wrong as prosecutors or defense lawyers or judges. And therefore you alone, the jury—not the judge, not the prosecutor, not the defense lawyers—you alone, as the voice and conscience of our community, will render the verdict in this case. There will be no critics to review or contradict your decision. The verdict you will return is right and just, for one simple reason: because you all say it is.