Presumed innocent kc-1 Read online

  "Have you spoken with Mr. Molto about your testimony?"

  "Many a time."

  "And have you told him of what you've just told us?"

  "Oh, yes, sir."

  Sandy turns in Molto's direction with a look of silent and lofty reproof.

  After court, Stern tells me to go home. He takes hold of Barbara and draws her toward me.

  "Take your pretty wife to dinner. She certainly deserves some reward for her fine support."

  I tell Stern that I was hoping we would begin talking about the defense, but Sandy shakes his head.

  "Rusty, you must forgive me," he says. As chairman of the Bar Association's Committee on Criminal Procedure, he is responsible for a formal dinner to be given tomorrow night in honor of the retirement of Judge Magnuson, who has sat as a felony judge for three decades. "And I must spend an hour or two with Kemp," he adds off-handedly.

  "Would you like to tell me where he has been?"

  Stern screws up his face.

  "Rusty, please. Indulge me." He again takes Barbara's arm and mine. "We have some information. I will tell you that. It bears on my examination tomorrow of Dr. Kumagai. But it is not worth repeating now. It may be a complete misunderstanding. I do not wish to raise false hopes. You are better off in the dark, rather than having your expectations dashed. Please. Accept my advice on that. You have been working long hours. Take an evening off. Over the weekend, we can discuss a defense, if it comes to that."

  "'If it comes to that'?" I ask. His meaning is elusive. Is he proposing we rest--offer no evidence? Or is this new information so explosive that the trial will come to a halt?

  "Please," Sandy says again. He begins leading us out of the courtroom. Barbara now intervenes. She takes my hand.

  So we have a dinner at Rechtner's, an old-fashioned German place near the courthouse which I have always liked. Barbara seems especially cheerful after the pleasant developments today. She, too, was apparently affected by the dour events of yesterday. She suggests a bottle of wine and, once it is open, questions me about the trial. She enjoys the opportunity to finally have me at close quarters. Clearly, my unavailability has frustrated her. She asks serial questions with her large dark eyes still and intent. She is very concerned about the Hair and Fiber stipulation of yesterday. Why did we choose that, rather than testimony? She requires a full account of everything the lab report revealed. Then she inquires at length about Kumagai and what his testimony is expected to show. My responses, as they have been throughout, are laconic. I answer briefly, telling her to eat her meal, while I try to contain my discomfort. As ever, there is an aspect to Barbara's interest that I find frightening. Is her wonder truly as abstracted as it seems? Is it the procedures and puzzles that attract her, more even than their impact on me? I try to shift the conversation, asking what we hear of Nathaniel, but Barbara realizes she is being put off.

  "You know," she says, "you're getting like you were before."

  "What does that mean?" A terrible evasion.

  "You're like that again-distant."

  I am where I am and she complains. Even with the wine, a jolt of galvanic anger rockets through me. My face, I imagine, is like my father's with that monumental look of something dark and untamed. I wait until it has passed.

  "It is not an easy experience, Barbara. I am trying to get through it. Day by day."

  "I want to help you, Rusty," she says. "However I can."

  I do not answer. Perhaps I should be angry again, but as always happens, in the wake of rage I am left in the lightless caverns of the deepest sadness of my life.

  I reach across the table and take both her hands between mine.

  "I have not given up," I say. "I want you to know that. It is very hard now. I am just trying to get to the end. But I am not giving up on anything. I want as much left as possible, if I get the chance to start again. All right?"

  She looks at me with a directness she seldom has, but she finally nods. As we are driving home, I ask again about Nat, and Barbara tells me, as she has not before, that she has had a number of calls from the director of his camp. Nathaniel is waking twice a night with screaming nightmares. The director, who originally put this off under the rubric of adjustment, has now decided that the problem is acute. The boy is more than homesick. There is a special anxiety about my fate which has been exaggerated by being away. The director has recommended sending him home.

  "How does Nat sound on the phone?"

  Barbara has called him twice, during luncheon recesses, the only time he can be reached. I have been with Stern and Kemp on both occasions.

  "He sounds fine. He's trying to be brave. But it's one of those things. I think the director is right. He'll be better off home."

  I readily agree. I am touched and, with whatever perversity, heartened by the depth of my son's concern. But the fact that Barbara has kept this to herself plays on old strings. I find myself once more on the brink of anger, but I tell myself that I am unreasoning, irrational. The idea, I know, is not to increase my burdens. Yet she has a flawless and undetectable way of keeping things to herself.

  As we unlock the door, the phone is ringing. I imagine that it is Kemp or Stern, finally ready to share the big news, whatever it is. Instead, it is Lipranzer, who still does not give his name.

  "I think we got somethin," he says. "On that matter." Leon.

  "Can you talk now?"

  "Not really. I just want to be sure you're free tomorrow night. Late. After I'm off."

  "After midnight?"

  "Right. Thought maybe we could go for a drive. See a guy?"

  "You found him?" My heart picks up. Amazing. Lipranzer found Leon.

  "Seems like. I'll know tomorrow for sure. You're gonna love this one, too."

  In the phone, I hear someone speaking nearby. "Look, I gotta go. I just wanted to let you know. Tomorrow night," he says. He laughs, a rare sound from Dan Lipranzer, especially in these times. "You're gonna love it," he says.

  Chapter 33

  "Doctor Kumagai," says Sandy Stern in a tone which from its first syllable bristles with derision. It is five past two, the beginning of the afternoon session, and these are the first words of a cross-examination which both Kemp and Stern have promised me privately will be the most eventful of the trial.

  Tatsuo Kumagai-Ted to his friends-the state's final witness, faces Stern, limp with indifference. His hands are folded. His brown face is placid. To this audience, he presents himself as a man without need of expression. He is an expert, an unaffected observer of facts. He is dressed in a blue pincord suit, and his abundant black hair is folded back neatly in a small pompadour. His direct examination this morning was the first occasion on which I've seen Painless testify and he was somewhat better than I expected. The medical terminology, and his unique speech patterns, caused the court reporter to interrupt a number of times to ask for answers to be repeated or spelled. But he has an undeniable presence. His native arrogance is translated by the witness chair into a developed confidence becoming an expert physician. His qualifications are impressive. He has studied on three continents. He has given papers a over the world. He has testified as a forensic pathologist in homicide cases throughout the United States.

  These credentials emerged as part of the lengthy process of qualifying Painless as an expert. Unlike a so-called occurrence witness, who is confined to telling what he saw or heard or did, Painless is charged with considering all of the forensic evidence and rendering an opinion on what occurred. Prior to his appearance, various stipulations were read. The forensic chemist's analysis. The results of blood tests. On the stand, Painless used these facts and his own examination of the body to provide a comprehensive account. On the night of April 1, Ms. Polhemus had had sexual relations, almost certainly consensual in nature. This opinion was based on the presence of a 2 percent concentration of the chemical nonoxynol-9 and various jelly bases, indicating the use of a diaphragm. The man with whom Ms. Polhemus had intercourse was, as I am, a type-A secre
ter. Soon after she had had sex-the relative time indicated by the depth within the vagina of the primary seminal deposit-Ms. Polhemus was bludgeoned from behind. Her attacker was right-handed, as I am. This can be determined from the angle of the blow to the right side of her head. His height cannot be approximated without knowing her posture at the time of the attack or the length of the murder weapon. The best indication from the cranial wound is that she had reached her feet, if only briefly, when she was struck. The diaphragm was apparently removed at this time, and Ms. Polhemus, already dead, was bound. Without Stern's objection, Painless testified that the presence of the spermicidal compound, coupled with the unlocking of the doors and windows, led him to believe that a rape had been simulated in order to conceal the murderer's identity, and that the murderer was someone familiar with the methods of detection of crime and Ms. Polhemus's routine responsibilities in the P.A.'s office.

  When Nico had led Painless through this summary, he asked if his opinion of how the crime occurred had ever been communicated to me.

  "Yes, sir, I met Mr. Sabich about April 10 or 11 this year and we discuss the case."

  "Tell us what was said."

  Well, Mr. Sabich try to convince me that Ms. Polhemus must have die accidentally as part of some kind of deviant sexual activity, in which she had voluntarily been bound."

  "And how did you respond?"

  "I say that was ridiculous, and explain what the evidence show really occur."

  "And after you informed Mr. Sabich of your theory of what occurred, did you have any further discussion?"

  "Yes. He became quite upset. Angry. He stood up. He threaten me. He say that I better be careful or he gonna prosecute for tamperin with an investigation. There's some more, but basically, that's it."

  Both Stern and Kemp on either side of me watched Painless do his stuff with a calm approaching the beatific. Neither one bothered to take notes. I do not yet know what is coming, although that is my choice.

  Kumagai made a mistake, Kemp told me when I arrived at their offices this morning. A big one.

  How big? I asked.

  Enormous, said Kemp. Huge.

  I nodded. To myself I thought that if it were somebody other than Painless, I would be more surprised.

  Do you want to know what it is? Kemp asked me.

  Strangely I found that Stern's assessment was right. It was better not to know details. Simple hearing that there was some outsized error was enough to steer me directly to the peripheries of my deepest rage. I had no desire to enter that region of disorder.

  Surprise me, I told Kemp. I'll hear it in court.

  Now I wait. Painless sits there, unfluttered, impassive. At lunch, Kemp told me he believed that Kumagai's career could be over tonight.

  "Doctor Kumagai," Stern begins, "you have testified here as an expert, is that right?"

  "Yes, sir."

  "You have told us about your papers and your degrees, have you not?"

  "I answer questions about that, yes."

  "You said you have testified on many prior occasions."

  "Hundreds," says Painless. Each answer has a kind of screw-you brittleness. He means to be a smart guy and tough, the better of any cross-examiner.

  "Doctor, has your competence ever been called into question, to your knowledge?"

  Painless adjusts himself on the stand. The assault has begun.

  "No, sir," he says.

  "Doctor, is it not true that many deputy prosecuting attorneys over the years have complained about your competence as a forensic pathologist?"

  "Not to me."

  "No, not to you. But to the chief of police, resulting in at least one memorandum being placed in your personnel file?"

  "I don't know about that."

  Sandy shows the document first to Nico, then to Kumagai on the stand.

  "No, I never seen that," he says at once.

  "Do you not have to be notified under police regulations of any addition to your personnel file?"

  "Could be, but you ask what I remember. I don't remember that."

  "Thank you, Doctor." Sandy removes the document from Kumagai's hands. As Stern is strolling back to our table, he asks, "Do you have any nicknames?"

  Kumagai stills. Perhaps he is wishing he had acknowledged the letter.

  "Friend call me Ted."

  "Aside from that?"

  "Don't use nicknames."

  "No, sir, not that you use. But by which you are known?"

  "I don't understand question."

  "Has anybody ever referred to you as Painless?"

  "To me?"

  "To anyone, to your knowledge?"

  Again Painless takes a moment to shift around in his seat.

  "Could be," he says finally.

  "You do not enjoy that nickname, do you?"

  "Don't think about it."

  "You acquired that nickname some years ago from the former chief deputy prosecuting attorney Mr. Sennett, in an unflattering context, did you not?"

  "If you say-"

  "Mr. Sennett told you to your face, did he not, that you had bungled an autopsy and that the only person who found working with you painless was the corpse, because it was dead?"

  The laughter thunders in the courtroom. Even Larren is chuckling up on the bench. I shift in my seat. Whatever Stern has better be good, because for the first time he has abandoned his innate decorousness. His cross so far verges on the cruel.

  "I don't remember that," says Painless coldly when the room has come back to order again. Over the years he has grown adroit in his knowledge of the rules of evidence. Every cop and P.A. in Kindle County knows that story. Stan Sennett would be happy to tell it from the stand. But the judge is not likely to allow such a diversion, called collateral impeachment. Painless has drawn his shoulders around him. He looks out at Stern, waiting for more. He has apparently taken some pleasure in what he regards as his own small triumph.

  "Now, Mr. Della Guardia and Mr. Molto are two persons from the P.A.'s office with whom you have worked with less-let us say disagreement, is that right?"

  "Sure. They my good friends." On this point, Painless has apparently been well schooled. He will acknowledge his contacts with Tommy and Delay, in order to minimize their importance.

  "Did you discuss this investigation with either one of them while it was in progress?"

  "I talk to Mr. Molto sometime."

  "How often did you speak to him?"

  "We stay in touch. We talk now and then."

  "Did you talk to him more than five times in the first few weeks of April?"

  "Sure," he says, "if you say." Painless is taking no chances. He knows that subpoenas are out. He can't be sure whose MUDs we have obtained.

  "And you talked in detail about this investigation?"

  "Mr. Molto's a friend. He ask what I'm doin, I tell him. We talk about public information. Nothin from the grand jury." Painless resumes his satisfied smile. These answers, of course, have been the subject of prior discussion with the prosecutors.

  "Did you tell Mr. Molto the results of the forensic chemist's analysis prior to conveying them to Mr. Sabich? I am talking specifically about the specimen which showed the spermicidal jelly."

  "I understand," says Painless curtly. He looks directly over at Tommy. Molto has his hand over part of his face, and with Kumagai's glance, he straightens up and takes it away.

  "I think so," says Kumagai.

  He has not quite finished his response when Larren interrupts.

  "Just a second," says the judge. "Just one second. The record will reflect that Prosecuting Attorney Molto has just made a gesture which I recognize to be a signal to the witness in connection with his last answer. There will be further proceedings with regard to Mr. Molto at a later time. Proceed, Mr. Stern."

  Tommy is crimson as he struggles to his feet.

  "Your Honor, I am terribly sorry. I don't know what you are talking about." Neither do I, and I was watching Molto. But Larren is inflamed.
r />   "This jury is not blind, Mr. Molto. And neither am I. Proceed," he says to Stern, but his anger is too great to store away and he immediately wheels his chair around in Molto's direction and gestures with the gavel. "I warned you. I told you before. I am very upset with your conduct during this trial, Mr. Molto. There will be proceedings."

  "Judge," says Tommy despairingly.

  "Resume your seat, sir. Mr. Stern, proceed."

  Stern comes over to the table. I explain what I saw. He, too, observed nothing. But Stern does not let the incident pass. In a mincing tone he asks, "It is fair to say, Dr. Kumagai, that you and Mr. Molto have always had good communication, is it not?"

  The question evokes a few snickers, especially from the reporters' section.

  Kumagai blinks with disdain and fails to answer.

  "Dr. Kumagai," asks Stern, "it is your ambition, is it not, sir, to become coroner of Kindle County?"

  "I like to be coroner," says Painless with disarmingly little hesitation.

  "Dr. Russell doin a good job now. Couple years he retire, maybe I put in for the job."

  "And the P.A.'s recommendation would help you obtain that position, would it not?"

  "Who knows?" Painless smiles. "Can't hurt."

  Grudgingly, I must admire Delay. Kumagai is his witness and he has obviously counseled him to play it straight about whatever was going on during the election campaign. Nico quite clearly wants to have some prosecutorial candor to troop before the jury to make up for some of Molto's gaffes. And his judgment strikes me as correct. If it were not for the incident with the judge a moment ago, it would all sit pretty well.

  "By April, had you and Mr. Molto ever discussed the possibility of you becoming coroner, Dr. Kumagai."

  "I say. Mr. Molto and me friends. I talk about what I wanna do, he talk about what he wanna do. Talk all the time. April. May. June."

  "And in April you also spoke about this investigation a number of times before you received the forensic chemist's report?"

  "I'd say so."

  "Now, that report, sir, concerned the semen specimen which you had taken from Ms. Polhemus during the autopsy, is that right?"