Presumed innocent kc-1 Page 32

  "So that's it, huh? That's the big secret. Tommy done it. That's what I'm waiting to hear?"

  "Go ahead, Delay," I say quietly, while my back is to him. "I'll. give you a preview. One question. Right here. Me and you, as you say. Off the record. Just the old buds. Nobody repeats anything to anyone else." I revolve and look at him directly.

  "Did you do it?" he asks.

  I knew he would. Sooner or later somebody had to put it right to me. I finish drying my hands, and I summon up everything in me that belongs to the truth, every badge of sincerity I own in my manner.

  "No, Nico," I say very quietly, and look him dead in the eye, "I did not kill Carolyn."

  I can see that I reach him: some kind of enlargement in the pupils; his eyes become darker instantly. Some tone seems to change in his face.

  "Very good," he says at last. "You'll be very good." Then he finally smiles. "So this has been kind of a bitch, hah? Falsely accused and all of that?"

  "Go fuck yourself, Delay."

  "I knew I'd hear that, too."

  Both of us come out of the john laughing. When I look up, I see that I have attracted the attention of Stern and Kemp, who are standing a short distance down the corridor conferring with Berman, the private investigator. He is very tall, with a large belly and a loud tie. Stern's look is nettled. Perhaps he is upset to see me with Nico, but it seems that he has been interrupted. He waves his hand, dismissing the other two, and returns to the courtroom. Kemp walks off with Berman a few steps, then comes back to me. We watch Delay follow Sandy inside.

  "I won't be here this afternoon," Jamie says. "Something came up."

  "Something good?"

  "Very good, if it pans out."

  "Is this a secret?"

  Jamie looks back at the courtroom door.

  "Sandy said not to discuss it right now. Don't raise false hopes. He wants to be cautious. You understand."

  "Not really," I say.

  Berman, some distance away, tells Jamie they have to go. Kemp touches my sleeve.

  "If it works out, you'll be delighted. Trust me."

  My look, I'm sure, is abject, confused and thwarted by my own attorneys. But I know I cannot object. I myself have taught Jamie Kemp to be frugal with his confidence. I educated him in professional skepticism, in believing that the best judgment waits.

  "Something came up with one of the subpoenas," he says. Berman calls again: They told the guy they'd be there at one. Jamie backs away. "Trust me," he says once more before he jogs off down the hall.

  "Ladies and gentlemen," Larren reads to the jury. "You are about to hear the testimony of a fingerprint expert, Maurice Dickerman, concerning evidence he claims to have identified on a certain glass. In considering this evidence you must-I say must-bear in mind that the defense has had no chance to examine the glass. The testimony is proper, but it is up to you to determine what weight to give it. The defense hasn't had any opportunity to see what scientific explanation there may be for the prosecution's evidence. They have had no opportunity to see whether there was some form of chicanery-I'm not sayin there was, but I'm tellin you that the defense hasn't had the chance to get a scientist of their own to say yea or nay about that. They haven't had a chance to see if there's some mistake. An innocent mistake, but still a mistake. They haven't even had the chance to see if some other scientist would look at the glass and say those were another person's fingerprints.

  "And I am instructing you as a matter of law, ladies and gentlemen, that when this case is over and you are deliberating on it, that you are entitled to consider not just this testimony but the failure of the prosecution to make the glass available to the defense. And it is permissible-I'm not tellin you what to do-but it is permissible for that one fact alone to raise a reasonable doubt in your mind which would require Mr. Sabich's acquittal.

  "All right. Proceed."

  Molto, at the podium, takes a moment to stare up at the judge. By now both men have abandoned pretense. There is an outright hatred between them, and it is visible and intense. In the meantime, the force of Larren's limited instruction settles over the courtroom. The defense, in this instant, has staged a nine-run rally. The fingerprint evidence has been impeached from the mouth of the judge. Acquittal, he says, is a permissible conclusion. The suggestion that an error has been made, that there has been a mistake, is like a cut to the bone in a criminal trial.

  Morrie Dickerman comes to the witness stand. The pure professional. An angular New Yorker with large, darkframed glasses, Morrie finds fingerprints fascinating. He used to like me because I would sit there and listen to him. Morrie is as good as Painless Kumagai is bad-the kind of grab bag of abilities you encounter in public service. He sits there with his photographs and slides and shows the jury how it is done. He explains how prints are made, a residue of oils left by certain persons, at certain times. Some people don't ever leave prints. Most people will leave prints at some times and not at others. It depends on how much they sweat. But when they leave a print, it is unique. No one fingerprint is like any other. Morrie lays all of this out in his openhanded way, then nails my butt to the barn door in the last five minutes of his testimony with his pictures of the bar, the glass, the lifts, and enlargements from my county employee's file card. All the matching points of comparison have been identified with red arrows. Morrie, as usual, has prepared well.

  Stern spends some time on his feet, studying the photographic blowup of one of my fingerprints from the glass before he begins. He turns the picture toward Morrie.

  "What time on April first was that fingerprint made, Mr. Dickerman?"

  "I would have no idea."

  "But you're certain it was made on the first of April?"

  "No way to tell that, either."

  "I'm sorry?" Stern draws his mouth downward in mock surprise. "Well, certainly you can tell us that it was made around April first?"

  "No."

  "Well, how long can fingerprints last?"

  "Years," says Dickerman.

  "I'm sorry?"

  "It can be years before the oils break down."

  "What is the oldest fingerprint you have taken in all the time you have worked for the police department?"

  "In a kidnapping case, I took a fingerprint off the steering wheel of an abandoned car that had to be three and a half years old."

  "Three and one half years?" Stern makes a sound. He is a marvel. The man who laid waste to Raymond Horgan now feigns gentle-spirited befuddlement, deference to the expert. He acts as if he is slowly figuring all of this out as he goes. "Then Mr. Sabich could have handled this glass six months earlier when he was at Ms. Polhemus's apartment in connection with the McGaffen trial?"

  "I can't tell you when Mr. Sabich handled it. I can tell you it has two of his fingerprints. That's all."

  "Suppose Mr. Sabich had touched it for some reason-merely had an unnoticed drink of water, or only the interior of the glass had been rinsed after he used it-is it possible that his prints would remain?"

  "Yes. And by the way, it is theoretically possible that the entire glass could have been immersed. Usually soap and water will remove the oils, but there are cases, in the literature where fingerprints have been identified even after the object was rinsed in soap and water."

  "No," says Sandy Stern in wonder.

  "I've never seen that," says Dickerman.

  "Well, at least we know that no one else handled the glass, because there were no other fingerprints on it."

  "No."

  Stern goes still. "I'm sorry?"

  "There's another latent."

  "No," says Stern again. He is laying it on self-consciously. There is an odd theatricality to Sandy. Early in the trial the jury had not seen him enough to know that he was acting. Now in our second week, he is more broad in some gestures, as if to acknowledge the deliberateness of his behavior. I know and you know, he is saying to them. An act of confidence. So they understand that he is not really trying to put anything past them. "You mean there
is another fingerprint on the glass?"

  "That's what I mean."

  "Could it be, sir, that Mr. Sabich touched the glass months before, and someone else handled the glass on April first?"

  "It could be," says Dickerman evenly. "It could be anything."

  "Well, we know Mr. Sabich was there that night because his prints are on many other objects in the apartment, are they not?"

  "No, sir."

  "Well, there must be some things. For example, the window latches were opened. Were there identifiable prints there?"

  "Identifiable, sir. But not identified."

  "These were the fingerprints of someone, but not Mr. Sabich?"

  "Or Ms. Polhemus. We excluded her."

  "A third person left those prints?"

  "Yes, sir."

  "Just as with the glass?"

  "True."

  Stern goes through the entire list of locations within the apartment from which lifts were taken without discovery of my prints. The coffee table that was upset. The fireplace tools printed with the thought that one might be the murder weapon. The surface of the bar. The cocktail tables. The window. The door. Five or six other places.

  "And Mr. Sabich's prints appeared in not one of those places?"

  "No, sir."

  "Only on this glass that can no longer be found?"

  "Yes, sir."

  "One place?"

  "That's all."

  "He would have left prints throughout the apartment had he been there, would he not?"

  "He might have. He might not have. Glass is an unusually receptive surface."

  Stern, of course, knew the answer.

  "But the table," asks Stern, "the windows?"

  Dickerman shrugs. He is not here to explain. He is here to identify fingerprints. Stern makes the most of Dickerman's inability and, for the first time since we started, looks directly to the jury, as if for consolation.

  "Sir," says Stern, "How many other identifiable prints were there of a third person, not Mr. Sabich, not Ms. Polhemus?"

  "Five, I think. One on the latch. One on the window. A couple on the liquor bottles. One on a cocktail table."

  "And are any of those made by the same person?"

  "I wouldn't know."

  Stern, who has still not left the side of the defense table, bends forward a bit to indicate that he does not understand.

  "I'm sorry?" he says once more.

  "No way to tell. I can tell you whoever it is has not been printed by the county, because we did a computer run. They don't have a criminal record. They haven't worked for the county. But they could be five different people or the same person. It could be the cleaning lady or a neighbor or some boyfriend. I can't tell you."

  "I don't understand," says Stern, who understands very well.

  "People have ten fingers, Mr. Stern. I don't know that unknown A isn't the index finger, and B is the third finger. Plus left hand and right hand. There's no way to tell without knowns to work from."

  "Well, certainly, Mr. Dickerman-" Stern stops. "Which prosecutor supervised your activities after Mr. Sabich?"

  "Molto," says Dickerman. You get the feeling at once that Morrie does not care for Tom very much.

  "Well, certainly he asked you to compare these five unidentified prints to see if two of them might be from the same finger?"

  Very good, I think to myself. Excellent. This is the kind of detail that I always overlooked as a prosecutor. I thought about the defendant, and the defendant of course thought about everybody else.

  But when Dickerman answers, "No, sir, he did not," one of the jurors, the part-time computer jock, turns away shaking his head. He looks straight at me, like, Can you believe this? I am astounded that we have come back so far from yesterday. The juror turns to the person beside him, the young woman who runs the drugstore, and they exchange remarks.

  "It can be done overnight," says Dickerman.

  "Well, I'm sure," says Stern, "that Mr. Motto may remember now." Stern is about to sit down. "Do you know, Mr. Dickerman, why Mr. Molto did not ask you to make that comparison of the other prints?" A good trial lawyer never asks why, unless he knows the answer. Stern does, as I do. Neglect. Too much to do and not enough time to do it. The problem of focus. Any answer will suffice to raise doubts about Molto.

  "I assume he didn't care," says Dickerman. He is tying to downplay the significance of the omission, but his answer has an ominous air, as if Molto would not be concerned about the truth.

  Stern, who has never moved from the defense table, stands there one second more.

  "Just so," he says. "Just so."

  ***

  Molto approaches the podium and Ms. Maybell Beatrice, who works as a domestic in Nearing, is called. I am relieved to see Tommy up there again. For all of Nico's sloppiness, he now seems to have found his place in the courtroom. Tommy is far less adaptable. In the P.A.'s office there was always a kind of cultural divide, a barrier over which my friendship with Nico was ultimately stranded. Raymond picked an elite corps, young lawyers with lawschool credentials he liked and, after an apprenticeship, set them to work on Special Investigations. We prosecuted the guilty and rich for bribery and fraud; we ran long-term grand-jury investigations; we learned to try cases against the likes of Stern, lawyers who argued law to the judges and nuance to the jurors. Molto-and Della Guardia-never rose above the advanced prosecution of street crimes. Tommy's particular mix of pride and passion has been nurtured too long in the homicide courtrooms and branch courts. Those are places where no holds are barred, where defense lawyers use every cheap strategy and device, and prosecutors learn to imitate them. Tommy has become the kind of prosecutor that the P.A.'s office too often breeds: a lawyer who can no longer make out the boundaries between persuasion and deception, who regards the trial of a lawsuit as a series of gimmicks and tricks. I thought at the start that it would be his molten-hot personality that would be a detraction for the state. Instead, the burden he attaches to the prosecution is his inability to escape from his experience. He is brighter than Nico, with a gimlet-eyed cleverness, and he is always prepared, but by now every person in the courtroom suspects that his zeal has no limit. He will do anything to win. Whatever the old rivalry or jealousy surrounding Carolyn, I take it that this trait as well must be a partial source of the antipathy between the judge and him.

  And it is the same thing that keeps my curiosity high about Leon and the B file, and whatever shadows lurk in Molto's past. I found Nico's comment about Molto's close relations with Carolyn intriguing. Who knows exactly how she beguiled him? More and more, like everyone else here, I find myself persuaded that there is something sinister in Molto's character. It is too easy for Molto to justify all of his behavior; there is no obvious catch point below which he won't sink. What started out as another of Stern's courtroom illusions seems to have acquired a life of its own. I have wondered, as I have tried to guess at the revelation that Kemp is off chasing, if Molto is not the target. Certainly as Stern has gone on with the old defense lawyer's artifice of placing the prosecutor on trial, Molto has responded poorly. He makes what is perhaps his biggest blunder yet in his direct examination of this Nearing maid.

  Ms. Beatrice says that she saw a white man on the eight o'clock bus one Tuesday night in April. She does not know what Tuesday night it was, but it was Tuesday, because she works late on Tuesdays, and it was April, because she remembered it as last month when she first spoke to the police, who were doing random interviews in the bus station in May.

  "Now, ma'am," Molto says, "I ask you to look around the courtroom to see if there is anyone you recognize."

  She points to me.

  Molto sits down.

  Stern begins cross. Ms. Beatrice greets him without apprehension. She is an elderly woman, quite stout, with a lively and kindly face. Her gray hair is drawn back in a bun, and she wears round wire-rimmed glasses.

  "Ms. Beatrice," says Stern amiably, "I take it that you are the kind of person who gets to the
bus station a bit early." Stern knows this, of course, because of the time shown in her police interview.

  "Yes, sir. Ms. Youngner run me up each night at quarter to so's I can buy me a paper and a Baby Ruth and get me a seat."

  "And the bus on which you go into the city is the same bus that comes out of the city, is that right?"

  "Yes, sir."

  "It terminates-that is, it ends its run in Nearing and goes back in?"

  "It turn round in Nearing, that's right."

  "And you are there each night when that bus arrives at a quarter to?"

  "Quarter to six. Most every night, yes, sir. 'Cept Tuesday, as I explain."

  "And the people coming home from downtown get off the bus and walk past you, is that right, and you have occasion to see their faces?"

  "Oh, yes, sir. They looks tired and weary, many a them."

  "Now, ma'am-well, I shouldn't ask you this-" Stern looks again at the report of the police interview. "You are not saying you recognize Mr. Sabich as the man you saw on the bus that Tuesday night, are you?" There is nothing to lose with the question. Molto's direct has left the impression that is, in fact, the case. But Ms. Beatrice makes a face. She shakes her head most emphatically.

  "No, sir. They is somethin here I like to explain."

  "Please do."

  "I knowed I seen this gentleman." She nods to me. "I tol' Mr. Molto that many a time. I seen this man when I go to get on the bus. Now I recollect, they was a man on that bus one Tuesday night, cause I works late that night on account of Ms. Youngner don't get home till near 7:30 on Tuesdays. And I recollect he was a white man, cause we don't get many white gentlemens that ride on the bus goin into town that time a night. Now I just can't remember whether would be this man or another man. I know he look real familiar to me, this man do; but I can't say that's cause I seen him in the station or cause. I seen him on the bus that night."

  "You have some doubt that it was Mr. Sabich you saw that night."

  "That's right. Can't say it was him. Coulda been him. I just can't say."