"The documents and reports are in the front. The witness statements are in the back," says Jamie Kemp as he sets a heavy cardboard box on the faultless finish of the walnut meeting table. We are in the small conference room in the offices of his employer, Alejandro Stern, my attorney. Kemp is sweating. He walked two blocks in the July sun from the County Building with these papers. His navy tie has been pulled away from his collar and some of his fancy blond Prince Valiant hairdo, an affectation left over from his younger days, is matted to his temples.
"I'm going to check my phone messages," Kemp says, "then I'll be back to look at this stuff with you. And remember," Kemp points. "Don't panic. Defense lawyers have a name for what you're feeling. They call it clong."
"What's clong?"
"Clong is the rush of shit to your heart when you see the state's evidence." Kemp smiles. I am glad he thinks I can still take a joke. "It is not fatal."
It is July 14, three weeks since my indictment for murdering Carolyn Polhemus. Later this afternoon I will appear before Chief Superior Court Judge Edgar Mumphrey for my arraignment. Under state statutes governing discovery in criminal cases, the prosecution is required, prior to arraignment, to make available to the defense all physical evidence they intend to introduce, and a list of witnesses, including copies of their statements. Thus, this box. I stare at the familiar label applied to the cardboard: PEOPLE v. ROZAT K. SABICH. I am full of that feeling again: This hasn't happened. Alone in this comfortable room, with its dark wainscoting and rows of crimson-jacketed law books, I wait for this now familiar adhesion of dread and longing to pass.
There is another copy of the indictment in the front of the box. I always focus on the same words. Trespass with force and arms. Trespass vi et annis, a term of the common law. With these same words for centuries persons in the English-speaking countries were accused of acts of violence. The phrase is archaic, long abandoned in most jurisdictions, but it is part of the text of our state statute, and reading it here always leaves me with the sense of a bizarre heritage. I have made league with the all-stars of crime, John Dillinger, Bluebeard, Jack the Ripper, and the million lesser lights, the half-mad, the abused, the idly evil, and the many who surrendered to a moment's terrible temptation, to an instant when they found themselves well acquainted with our wilder elements, our darker side. After two months of daily press leaks, of rumor, innuendo, cruel gossip, I said resolutely that it would be a relief if an indictment finally came down. I was wrong. The day before, Delay sent Stern what is called the defendant's "courtesy copy." I first read the charges about forty feet from here, down the hall in Sandy's tasteful cream-colored office, and my heart and all my other organs were at once all stalled and so full of pain that I was certain that something in those regions must have burst. I could feel the blood gone from my face and I knew that my panic was visible. I tried to sound composed, not to show courage but because I suddenly realized it was simply the only alternative.
Sandy was sitting beside me on the sofa, and to him I mentioned Kafka.
'Does it sound horrible and trite to say that I can't believe this' I asked. 'That I am full of incomprehension and rage.'
From Sandy these words had a kind of reach, the span of authentic wisdom. There is, with his soft Spanish accent, an elegance to the sound of even his ordinary speech. His dignity is soothing. Over time, I have found that I hover, like a lover, on every courtly gesture.
'Rusty,' Sandy said to me, touching the page I held in my hand, 'you make no mention of the only thing'-he searched for a word-'which is encouraging.'
'What's that?'
'No notice. No Section 5 notice.'
'Ah,' I said, and a shiver passed through me. In our state the prosecution must give notice at the time of indictment if it is seeking the death penalty. With all my finely calibrated calculations of Delay's intentions over the months, some zealous internal defense had prevented my mind from even lighting on that possibility. My look, I believe, revealed some of my embarrassment, even humiliation, that I was already so detached from routine professional perspectives. 'I assumed,' I said weakly.
'Ah well.' Sandy smiled gently. 'We have these habits,' he said.
At Sandy's advice, we were not in town when the indictment was returned. Barbara and Nat and I went to a cabin owned by friends of her parents, up near Skageon. At night, you could hear the rushing of Crown Falls, a mile away, and the trout fishing proved better than at any time I can recall.
But, of course, the calamity four hundred miles south was never out of mind. The day after, George Leonard from the Trib somehow got the number of the cabin and asked me for a comment. I referred him to Stern. Later, I came in to hear Barbara in conference with her mother. After she put down the phone I asked, somehow feeling that I should.
"It's all over?"
"Everywhere. TV. Both papers. Front page. Pictures. Your old officemate Delay handed out every scummy detail."
This proved to be an understatement. My case is the stuff of supermarket tabloids: CHIEF PROSECUTOR CHARGED WITH MURDER-HAD AFFAIR WITH VICTIM. Sex, politics, and violence mix in Kindle County. Not only was the local press full of this for days, but the national media, too. Out of curiosity, I began to read these accounts myself. The library in Nearing has an excellent periodical section, and I have little to do now during the days. On Stern's advice I refused to resign as a deputy P.A. and was placed on an indefinite administrative leave, with pay. As a result I have spent more time in the library than I would have expected. I join the old men and the bag ladies in enjoying the silence and the air conditioning as I inspect these national reports of my misconduct. The New York Times was, as usual, dryly factual, referring to everyone as Mr. and laying out the entire antic circumstance. It was, surprisingly, the national news magazines, Time and Newsweek, that did their best to make it all seem lurid. Each article was accompanied by the same photo, taken by some asshole I saw lurking in the bushes for a couple of days. Stern finally advised me to walk outside and let him take his picture, on the condition that he promise to beat it. That worked. The Minicam units which, according to the neighbors, were camped before the house for a week, while we were hiding out near Skageon, are yet to return.
That makes little practical difference. After twelve years in winch I sometimes prosecuted the biggest cases in town, the papers and TV stations had enough footage of me on file to put my face everywhere. I cannot walk around Nearing without enduring endless staring. There is now a permanent hesitation in everybody's manner, a few portions of a second lost before a greeting. The comments of solace that are made, which are few, are ludicrous and inept-my cleaner telling me, "Tough break," or the teenage gas-station attendant asking if that's really me he's been reading about in the paper. Another thing I like about the library is that no one is allowed to talk.
And how do I feel, so instantly struck low, brought down from my station as model citizen and become a pariah instead? To say that there are no words is inaccurate. There are words, but they would be so many. My spirits keel about wildly. The anxiety is corrosive and I spend much time in a tumult of anger and disbelief. For the most part there is a numbness-a sense of idle refuge. Even in my concern for Nat, and how all of this will warp his future, the dawning thought is that it has happened, ultimately, just to me. I alone am the foremost victim. And to some extent, I can endure that. I acquired more of my father's fatalism than I expected; a side of me has always been without faith in reason or in order. Life is 'simply experience' for reasons not readily discerned, we attempt to go on. At instants I am amazed that I am here. I have taken to watching my shoes as I cross the pavement, for the fact that I am moving, that I am going anywhere, doing anything, strikes me, at odd moments, as amazing. That in the midst of this misfortune life continues seems bizarre.
And mostly I am like this, floating and remote. Of course, a great deal of the time is also spent wondering why this has occurred. But I find that at some point along the way my ability to assay ceases. My speculation seems to lead to a dark and frightening periphery, the edge of a black vortex of paranoia and rage from which, thus far, I have instantly withdrawn. I know that on some levels I cannot take much more, and I simply do not. I worry instead about when it will be over, and what the result will be. I want, with a desperation whose size cannot be encompassed by metaphor, I want all of this never to have taken place; I want things to be as they were before, before I allowed my life to be ransacked by Carolyn, and everything that followed. And then there is my consuming anxiety for Nat: What will happen to him? How can he be sheltered? How can I protect him from shame? How can I have brought him to the brink of being, for all purposes, half an orphan? These are in some ways my worst moments: this raging, lashing frustration, this sense of incompetence, these tears. And then, once or twice, in the last weeks, an extraordinary feeling, lighter than air, more soothing than a breeze, a hope that seems to settle in without accounting, and which leaves me with the sense that I have mounted some high rampart and have the courage simply to look ahead.
The case against me, as I assess it from the contents of the cardboard box, is straightforward. Nico has listed about a dozen witnesses of substance, more than half of them related to the physical and scientific evidence he plans to introduce. Lipranzer will be called, apparently to say I instructed him not to subpoena my home phone tolls. Mrs. Krapotnik has identified me as someone she saw in Carolyn's building, although she is not positive I am the stranger she observed on the night of the murder. Also listed is a maid from Nearing whose somewhat cryptic statement suggests that she saw me on the Nearing City bus one night close to the time Carolyn was killed. Raymond Horgan is named; Tommy Molto; Eugenia, my secretary; Robinson, the psychiatrist I saw on a few occasions; and a number of scientific experts, including Painless Kumagai.
Nonetheless, this is clearly a circumstantial case. No one will say they saw me kill Carolyn Polhemus. No one will testify to my confession (if you do not consider Molto, whose file memorandum pretends to treat my last remark to him that Wednesday in April as if it was not rendered in a get-screwed tone). The heart of this case is the physical evidence: the glass with two of my fingerprints, identified from the knowns I gave a dozen years ago when I became a deputy P.A.; the telephone MUD records showing a call from my house to Carolyn's about an hour and a half before her murder; the vaginal smear, revealing the presence within Carolyn's genitalia of spermatozoa of my blood type, thwarted in their urgent blind migration by a contraceptive compound whose presence implies a consensual sex act; and finally, the malt-colored Zorak V fibers found on Carolyn's clothing, and her corpse, and strewn about the living area, which match samples taken from the carpeting in my home.
These last two pieces of evidence were developed as the result of a visit to my house by three state troopers, which took place a day or two after the Black Wednesday meeting, as Barbara and I now refer to it, in Raymond's office. The doorbell rang and there was Tom Nyslenski, who has served subpoenas for the P.A.'s office for at least six years. I was still sufficiently unfocused that my initial reaction was to be mildly pleased to see him.
I don't like to be here, he said. He then handed me two grand-jury subpoenas, one to produce physical evidence-a blood specimen-and one to testify. He also had a search warrant, narrowly drawn, which authorized the troopers to take samples of the carpeting throughout my home, as well as every piece of exterior clothing I owned. Barbara and I sat there in our living room as three men in brown uniforms walked from room to room with plastic bags and scissors. They spent an hour in my closet, cutting tiny swatches from the seams. Nico and Molto had been clever enough not to search for the murder weapon, too. A law enforcement professional would know better than to keep the thing around. And if the troopers searched for it, the prosecutors would have to admit in court that it could not be found.
Is the stuff in here called Zorak V? I asked Barbara quietly while the troopers were upstairs.
I don't know what it is, Rusty. Barbara, as usual, seemed to be placing a premium on maintaining her composure. She had a little pursed-up expression, peeved but no worse. As if they were fourteen-year-olds setting off firecrackers too late at night.
Is it synthetic? I asked.
Do you think we could afford wool? she replied.
I called Stern, who had me make an inventory of what they took. The next day I voluntarily provided a blood sample downtown. But I never testified. Stern and I had our one serious dispute about that. Sandy repeated the accepted wisdom that an investigation target accomplishes nothing by pre-trial statements except to prepare the prosecutor for the defense. In his own gentle way, Stern reminded me of the damage I had already done with my outburst in Raymond's office. But in late April, unindicted, and convinced I never would be charged, my goal was to prevent this mad episode from damaging my reputation. If I took five and refused to testify, as I had the right to do, it would probably never reach the papers, but every lawyer in the P.A.'s office would know, and through them half the others on the street. Sandy prevailed when the results of the blood test came back and identified me as a secreter-that is, someone who produced A-type antibodies, just like the man who had last been with Carolyn. The chances of this being a coincidence were about one in ten. I realized then that my last opportunity for quick exoneration had passed. Tommy Molto refused to accept any substitute for my assertion of the privilege and so one bleak afternoon in May, I, like so many others I had often ridiculed, snuck into the grand-jury room, a little windowless chamber that looks something like a small theater, and repeated in response to thirty-six different questions, 'On the advice of my attorney, I will decline to answer because it may tend to incriminate me.'
"So," says Sandy Stern. "How do you enjoy seeing the world from the other side?" Engrossed in mysteries of the cardboard box, I did not notice him enter the conference room. He stands, with one hand on the door handle, a short, roundish man, in a flawless suit. There are just a few stray hairs that cross his shining pale scalp, emanating from what was once a widow's peak. Tucked between the fingers is a cigar. This is a habit which Stern indulges only in the office. It would be uncivil in a public place and Clara, his wife, forbids it at home.
"I didn't expect you back so soon," I tell him.
"Judge Magnuson's calendar is dreadful. Naturally, the sentencing will be called last." He is referring to another case on which he has been engaged. Apparently he has spent a good deal of time waiting in court and the matter is not yet concluded. "Rusty, would you mind terribly if Jamie appears with you at the arraignment?" He begins to explain at length, but I interrupt.
"No problem."
"You're very kind. Perhaps then we can take a few moments with what your friend Della Guardia has sent over. What is it you call him?"
"Delay."
Sandy's consternation is apparent. He cannot figure out the reason for the nickname and he is too gentlemanly to ask me to reveal even the most trivial confidence of the P.A.'s office, with which he is so often a contestant. He removes his coat and calls for coffee. His secretary brings it and a large crystal ashtray for his cigar.
"So," he says. "Do we now understand Della Guardia's case?"
"I think I do."
"Fine, then. Let me hear it. Thirty-second summation, if you please, of Nico's opening statement."
When I retained Sandy, within three or four hours of that bizarre meeting in Raymond's office, we spent thirty minutes together. He told me what it would cost-a $25,000 retainer, against a fee to be billed at $150 an hour for time out of court and $300 an hour in, the balance, strictly as a courtesy to me, to be returned if there was no indictment; he told me not to talk to anyone about the charges and, in particular, to make no more outraged speeches to prosecutors; he told me to avoid reporters and not to quit my job; he told me this was frightening, reminiscent of the scenes of his childhood in Latin America; he told me that he was confident that with my extraordinary background this entire matter would be favorably resolved. But Sandy Stern, with whom I have done business for better than a decade, against whom I have tried half a dozen cases, and who on matters of gravity, or of little consequence, has always known that he could accept my word-Sandy Stern has never asked me if I did it. He has inquired from time to time about details. He asked me once, quite unceremoniously, whether I'd had 'a physical relationship' with Carolyn, and I told him, without flinching, yes. But Stern has remained far clear of ever putting the ultimate question. In that he is like everybody else. Even Barbara, who evinces by various proclamations a belief in my innocence, has never asked me directly. People tell you it's tough. They cling or, more often, seem visibly repulsed. But nobody has sufficient sand to come out with the only question you know they have in mind.
From Sandy this indirection seems more of his classical manner, the formal presence that lies over him like brocaded drapes. But I know it serves for more. Perhaps he does not ask because he is not certain of the verity of the answer he may get. It is a given of the criminal justice system, an axiom as certain as the laws of gravity, that defendants rarely tell the truth. Cops and prosecutors, defense lawyers and judges-everybody knows they lie. They lie solemnly; with sweaty palms and shifty eyes; or, more often, with a look of schoolboy innocence and an incensed disbelief when their credulity is assailed. They lie to protect themselves; they lie to protect their friends. They lie for the fun of it, or because that is the way they have always been. They lie about big details and small ones, about who started it, who thought of it, who did it, and who was sorry. But they lie. It is the defendant's credo. Lie to the cops. Lie to your lawyer. Lie to the jury that tries your case. If convicted, lie to your probation officer. Lie to your bunkmate in the pen. Trumpet your innocence. Leave the dirty bastards out there with a grain of doubt. Something can always change.
Thus it would be an act contrary to his professional acumen were Sandy Stern to commit himself to an unreserved faith in everything I say. Instead, he does not ask.
This procedure has one further virtue. If I were to meet any new evidence by frontally contradicting what I had told Sandy in the past, legal ethics might require him to withhold me from the witness stand, where I almost certainly intend to go. Better to see everything the prosecution has, to be certain that my recollection, as the lawyers put it, has been fully "refreshed," before Sandy inquires about my version. Caught in a system where the client is inclined to lie and the lawyer who seeks his client's confidence may not help him do that, Stern works in the small open spaces which remain. Most of all, he desires to make an intelligent presentation. He does not wish to be misled, or to have his options curbed by rash declarations that prove to be untrue. As the trial approaches, he will need to know more. He may ask the question then; and I certainly will tell him the answer. For the time being, Stern has found, as usual, the most artful and indefinite means by which to probe.
"Della Guardia's theory is something like this," I say. "Sabich is obsessed with Polhemus. He's calling her house. Can't let go. He has to see her. One night, knowing that his wife will be going out and that he can get to Carolyn on the sneak, he calls up, begs to see her, and Polhemus finally agrees. She rolls around with him for auld lang syne, but then something goes wrong. Maybe Sabich is jealous of another relationship. Maybe Carolyn says that this was merely the grand finale. Whatever it is, Sabich wants more than she will give. He blows a gasket. He gives her what-for with some heavy instrument. And decides to make it took like rape. Sabich is a prosecutor. He knows that this way there will be dozens of other suspects. So he ties her up, opens the latches to make it look like somebody slipped in, and then-this is the diabolical part-pulls her diaphragm out of her, so there won't be any evidence of consent. Like all bad guys, of course, he makes a few mistakes. He forgets the drink he had when he came in, the glass he left on the bar. And he does not think-maybe even realize-that the forensic chemist will be able to I.D. the spermicide. But we know he did evil to this woman, because he never revealed-he lied-about his presence on the night of the murder, which is established by all the physical evidence."
This exposition is eerily comforting to me. The heartless hip analysis of crime is so much a part of my life and my mentation that I cannot make myself sound ruffled or even feel a fragment of concern. The world of crime has its argot, as ruthless as the jazzman's is sweet, and speaking it again I feel I am back among the living, among those who see evil as a familiar if odious phenomenon with which they have to deal, like the scientist studying diseases through his microscope.
I go on.
"That's Nico's theory, something like that. He has to straddle a little bit on the question of premeditation. He might argue that Sabich had it in mind to do her in from minute one, that he chose this night so he had an alibi, in case she refused to build the old fire anew. Maybe Sabich was on a different trip: You can't live if you won't be mine. That'll depend on evidentiary nuances. Probably Nico will give an opening that won't lock him in. But he'll be close to this. How does it sound?"
Sandy looks over his cigar. They are Cuban, he told me a few weeks ago. A former client gets them, he does not ask how. The wrapper, deep brown, burns so cleanly that you can see the leaf veins etched within the ash.
"Plausible," he says at last. "Evidence of motive is not strong here. And it is usually critical in a circumstantial case. Nothing ties you to any instrument of violence. The state is further disadvantaged because you were, in essence, a political opponent of Della Guardia-never mind that you did not consider yourself a political employee, a jury will not believe that, and for our purposes should not be told that. There is additional evidence of bad feeling between you and the prosecuting attorney inasmuch as you personally fired him from his post. The importance of these matters, however, could be greatly reduced if the prosecuting attorney himself did not try this case."
"Forget that," I say. "Nico would never move out of the spotlight."
Stern seems to smile as he draws on the cigar.
"I quite agree. So we will have those advantages. And these factors, which would raise questions in the mind of any reasonable person, will take on large importance in a circumstantial case, from which you and I both know juries are disinclined. Nevertheless, Rusty, we must be honest enough to tell ourselves that the evidence overall is very damaging."
Sandy does not pause long, but the words, even though I probably would have said as much myself, feel like something driven against my heart. The evidence is very damaging.
"We must probe. It is difficult, of course, and I am sure painful, but now is the time that you must put your fine mind to work on this case, Rusty. You must tell me every flaw, every defect. We must look scrupulously at each piece of evidence, each witness, again and again. Let us not say that any of this hard work will be done tomorrow. Best to begin right now, today. The more deficiencies we find in this circumstantial case, the better our chances, the more Nico must explain, and explain with difficulty. Do not be afraid to be technical. Every point for which Della Guardia cannot account increases your opportunities for acquittal."
Although I have hardened myself, one word catches me like a blow. Opportunities, I think.
Sandy summons Jamie Kemp to take part in our discussion, as it is bound to suggest various motions for discovery that we will soon be called upon to file. To hold down my expenses, Stern has agreed to allow me to assist in research and investigation, but I must act under his direction. With Kemp, I share the work of the junior lawyer, and I have enjoyed this collaboration more than I had counted on. Kemp has been Stern's associate about a year now. As I get the story, quite some time ago Jamie was a guitarist in a medium-popular rock-and-roll band. They say he went through the whole shot, records and groupies and road shows, and when things went downhill he decamped for Yale Law School. I dealt with him in the P.A.'s office on two or three occasions without incident, but he had a reputation there for being preppie and stuck-up, impressed by his own blond good looks and a lifetime of good fortune. I like him, though he sometimes cannot suppress a little of that Waspy amusement with a world by which, he is convinced, he will never quite be touched.
"First," says Stern, "we must file a notice of alibi." This is a declaration, no questions. We will formally notify the prosecution of our intention to stand by my statement in Raymond's office that I was at home the night Carolyn was murdered. This position deprives me of what, in theory, is probably the best defense-conceding that I saw Carolyn that night for an unrelated reason. That posture would dampen the force of the physical evidence and focus instead on the last of any proof tying me to the murder. For weeks, I have been expecting some artful effort by Stern to discourage the alibi, and I find myself relieved. Whatever Sandy thinks of what I said, he apparently recognizes that to reverse field now would be too difficult. We would have to conceive an innocent explanation for my eruption on Black Wednesday-why I went out of my way to lie, in outraged tones, to my boss, my friend, and the two top lawyers from the new administration.
Stern pulls the box to him and begins sorting through the documents. He starts from the front, the physical evidence.
"Let us go to the heart of the matter," says Stern. "The glass." Kemp goes out to make copies of the fingerprint report, and the three of us read. The computer people made their findings the day before the election. By then Bolcarro was playing ball with Nico, and so Morano, the police chief, surely was as well. This report must have gone straight to the top and right out to Nico. So Delay probably told the truth himself when he claimed that Wednesday in Horgan's office that he had acquired significant evidence against me during the campaign and chose not to publicize it. Too much of a last-minute mess, I would suppose.
As for the report, it says, in brief, that my right thumb and middle finger have been identified. The other latent present remains unknown. It is not mine; it is not Carolyn's. In all likelihood it belongs to one of the initial onlookers at the scene: the street cops who responded to the call, who always seem to run around touching everything before the homicide dicks arrive; the building manager, who found the body; the paramedics; maybe even a reporter. Nonetheless, it will be one of the difficult stray details for Della Guardia to cope with.
"I would like to look at that glass," I say. "It might help me figure some things out."
Stern points at Kemp and tells him to list a motion for production of physical evidence.
"Also," I say, "we want them to produce all the fingerprint reports. They dusted everything in the apartment."
This one Stern assigns to me. He hands me a pad:
"Motion for production of all scientific examinations: all underlying reports, spectographs, charts, chemical analyses, et cetera, et cetera, you know it better than I do."
I make the note. Stern has a question.
"You had drinks in Carolyn's apartment, of course, when you were there in the past?"
"Sure," I say. "And she wasn't much of a housekeeper. But I think she'd wash a glass once in six months."
"Yes," Stern says simply.
We are both grim.
Kemp has another idea.
"I'd like to get a complete inventory of everything in that apartment. Every physical object. Where's the contraceptive jelly or whatever it is that this chemist is saying he finds present? Wouldn't that have been in her medicine cabinet?" He looks to me for confirmation, but I shake my head.
"I don't even remember discussing birth control with Carolyn. I may be male chauvinist of the year, but I never asked her what she was doing."
Stern is ruminating, temporizing in the air with his cigar.
"Caution here," he says. "These are productive thoughts, but we do not want to lead Della Guardia to evidence he has not thought to obtain. Our requests, whatever they are, must be unobtrusive. Remember that everything that the prosecution discovers which favors the defense must be turned over to us. Anything we discuss which might be useful to them will be better left forgotten." Sandy gives me a sidewise look, quite amused. He enjoys being so candid with a former opponent. Perhaps he is thinking of some specific piece of evidence he kept from me in the past. "Best we conduct this search ourselves without disclosing our intentions." He points at Kemp; it is his turn. "Another motion, then: for an inventory of all items seized from the apartment of the decedent and for an opportunity to conduct a view and inspection of our own.
"The apartment remains under seal?" he asks me.
"I presume."
"Also," says Stern, "your mention of Carolyn's personal habits leads to this thought. We should subpoena her doctors. No privileges survive her death. Who knows what we might discover? Drugs?"
"Rope burns in the past," says Kemp.
We all laugh, a grisly moment.
Sandy, decorous as ever, asks if the name of one of Carolyn's doctors is "known to me." It is not, but all county employees are covered by Blue Cross. A subpoena to them, I suggest, is bound to uncover a good deal of information, including doctors' names. Stern is pleased by my contribution. The next group of documents we look at are the phone records from Carolyn's home number and my own, an inch-thick bundle of xeroxed pages with an endless train of 14-digit numbers. I hand the sheets one by one to Stern. From my phone, there are one-minute calls to Carolyn's recorded on March 5, 10, and 20. When I get to April 1, I spend a long time looking. I just lay my finger on the number that is recorded there at 7:32 p.m. A two-minute call.
"Carolyn's," I tell him.
"Ah, " says Stern. "There must be a commonsense explanation for all of this." Observing Stern work is like tracking smoke, watching a shadow lengthen. Is it the accent that allows him to lay that perfect subtle stress on the word "must"? I know my assignment.
He smokes.
"You do what at home, when you babysit?" he asks.
"Work. Read memos, indictments, prosecution packages, briefs."
"Must you confer with other deputy prosecuting attorneys?"
"Occasionally."
"Of course," says Stern. "Now and then, there is the need to ask a brief question, schedule an appointment. No doubt in all these months of records,"-Stern taps them-"there are a number of such calls to deputy prosecuting attorneys other than Carolyn."
I nod with each suggestion.
"There are a lot of possibilities," I say. "I think Carolyn was working on a big indictment that month. I'll look over some things."
"Good," says Stern. He looks back to my MUD sheets for the murder night. His lips are rumpled, his look disturbed.
"No further calls after 7:32," he says finally, and points.
In other words, no proof that I was home, where I say I was.
"Bad," I say.
"Bad," Stern finally says aloud. "Perhaps someone called you that evening?"
I shake my head. None that I remember. But I know my lines now.
"I'll think about it," I say. I take back the MUD sheet for April 1, studying it a moment.
"Can those things be dummied up?" asks Kemp. "The MUDs?"
I nod.
"I was thinking about that," I say. "The P.A. gets a bunch of xeroxes of the phone company's printouts. If a deputy, or somebody else, wanted to do a job on a defendant, he could make a great cut-and-paste and nobody would know the difference." I nod again and look at Kemp. "These things could be faked."
"And should we pursue that possibility?" asks Stern. Is there some hint of rebuke in his voice? He is studying a thread pulled on his shirt-sleeve, but when his eyes light on mine for the briefest instant, they are penetrating as lasers.
"We might think about that," I say at last.
"Mmmm hmmm," says Stern to himself. He is quite solemn. He points at Kemp to make a note. "I do not believe we should explore this before the conclusion of the state's evidence. I would not want to see them introduce the fact that we made efforts to challenge the accuracy of these records and failed." He directs this remark to Kemp, but it is clear to me who is meant to catch its import.
Stern reaches resolutely for another file. He checks his watch, a slim golden Swiss piece. The arraignment is in forty-five minutes. Sandy himself is due back in court sooner. He suggests we talk about the witnesses. I summarize what I have read thus far. I mention that Molto and Della Guardia provided no statements from two of the listed witnesses: my secretary, Eugenia, and Raymond. Sandy absently tells Kemp to list another motion for production. He has put his glasses back on, tortoiseshell half-frames, and continues studying the witness list.
"The secretary," he says, "does not trouble me, for reasons I will explain. Horgan, candidly, does."
I start when Sandy says this.
"Certain witnesses," Sandy explains, "Della Guardia must bring to the stand, whatever their disadvantages to him. You know this, of course, Rusty, far better than I. Detective Lipranzer is an example. He was quite candid in his interview with Molto the day after the election and acknowledged that you asked him not to order your home telephone records. That is sufficiently helpful to the prosecution that Lipranzer will be called, notwithstanding the many fine things he will say about you personally. Horgan, on the other hand, is not a witness whom I would think a good prosecutor would ordinarily be eager to see. He will be known to all the jurors, and his credibility is such that it would seem quite risky to call him unless-" Sandy waits. He picks up his cigar again.
"Unless what?" I ask. "Unless he is going to be hostile to the defense? I don't believe Raymond Horgan will put the bricks to me. Not after twelve years. Besides, what can he say?"
"It is a matter of tone, not so much as content. I take it that he is going to testify to your statement in his office on the day after the election. One would think that Nico would be better off putting on Ms. MacDougall, if he had to accept an unfriendly witness. She at least has not been a local personality for more than a decade. On the other hand, if it appears that Horgan, Della Guardia's political opponent, and your friend and employer for a dozen years, is sympathetic to the prosecution-that could be extremely damaging. That is the kind of courtroom nuance on which you and I both know close cases often turn."
I look at him squarely. "I don't believe that."
"I understand," he says. "And you are probably correct. Probably there is something we have missed that will seem obvious when we know Horgan's prospective testimony. Nonetheless-" Sandy thinks. "Raymond would meet with you?"
"I can't imagine why not."
"I will call him and see. Where is he now?" Kemp remembers the law firm. About six names. The League of Nations. Every ethnic group is mentioned. O'Grady, Steinberg, Marconi, Slibovich, Jackson, and Jones. Something like that. "We should plan a meeting for Horgan, you, and me as soon as possible."
Strangely, this is the first thing Sandy has said that is both entirely unexpected, and whose effect I cannot seem to shake. It is true that I have not heard from Raymond since that day in April that I walked out of his office, but he has had his own concerns: new job, new office. More particularly, he is an experienced criminal defense lawyer and knows how circumscribed our talks would necessarily have to be. His silence I had taken as a professional accommodation. Until now. I wonder if this is not simply some malicious effort by the prosecutors to unsettle me. That would be like Molto.
"Why does he need Raymond to testify, if he intends to call Molto?" I ask.
Principally, says Stern, because Molto is, in all likelihood, not going to testify. Della Guardia has referred a number of times to Tommy trying the case. A lawyer is prohibited from being a witness and advocate in the same proceeding. Nonetheless, Sandy reminds Jamie that we ought to file a motion to disqualify Molto, since he is on the witness list. If nothing else, this will promote consternation in the P.A.'s office. And it will force Nico to forswear any use of my statement to Molto. Like me, Sandy considers it unlikely that Nico would really want to offer this in the prosecution's case. As Della Guardia's best friend and chief assistant, Molto would be too easy to impeach. But on the other hand, the statement could be used effectively in cross-examining me. It is best, therefore, to file the motion and force Nico's hand.
Sandy moves ahead. "This I do not understand," he says. He holds aloft the statement of the maid who says she saw me on a bus into the city from Nearing on a night near the time Carolyn was murdered. "What is Della Guardia up to?"
"We only have one car," I explain. "I'm sure Molto checked the registrations. Barbara took it that night. So I had to have another way to get to Carolyn. I bet they had a trooper standing out at the bus station in Nearing for a week, looking for someone who could make my picture."
"This interests me," Stern says. "They apparently accept that Barbara indeed left you at home that night. I understand why they would concede that she took the car. There have been too many unfortunate episodes with women around the university for anyone to believe she would be using public transportation at night. But why agree she left at all? No prosecutor would want to argue that the defendant rode a bus to a murder. It does not sound authentic. They must have found nothing with the taxi companies and rent-a-car. I take it that they are looking at records of some kind which confirm Barbara's absence."
"Probably the log-in sheet at the U.," I say. Nat and I have gone to watch his mother work on the computer on occasion. "It'll show she used the machine. She signs in when she gets there."
"Ah," says Stern.
"What time would that be?" Jamie asks. "Not late, right? She'll know you were home at the time of the murder-or at least that she left you there, won't she?"
"Absolutely. Her computer time's at eight. She leaves for the U. seven-thirty, twenty-to the latest."
"And Nat?" asks Sandy. "When is he in bed?"
"Around then. Most of the time, Barbara gets him down before she goes."
Kemp asks, "Does Nat get up a lot or does he sleep soundly?"
"Like a coma," I say. "But I'd never leave him alone in the house."
Stern makes a sound. That is not the kind of thing we will be able to prove.
"Nonetheless," says Stern, "these facts are helpful. We are entitled to whatever records they have. That is Brady material"-evidence favorable to the defense. "We must make another motion. Fiery and outraged. A good assignment for you, Rusty." He smiles, kindly.
I make the note. I tell Sandy there is only one more witness I want to talk about. I point to Robinson's name.
"He's a shrink," I say. "I saw him a few times." Molto, I'm sure, is behind the ugly gesture of naming my former psychiatrist as a potential witness. Tommy is pulling my chain. I used to do things like that to defendants. Make sure they knew I'd been all over their lives. Last month Molto subpoenaed my bank account in Nearing. The president, an old friend of Barbara's deceased father, Dr. Bernstein, will not look at me now when I come in. From my checks, no doubt, Molto got Robinson's name.
I am surprised by Stern's reaction to my disclosure.
"Yes, Dr. Robinson," Sandy says. "He called me right after the return of the indictment. I neglected to mention that." He was too decorous is what Stern means. "He had seen my name in the paper as your lawyer. He merely wanted me to know he had been identified and that the police had attempted an interview. He was reluctant to trouble you with this information. At any rate, he told me he refused to make any statement on the grounds of privilege. I reaffirmed that and said we would not waive."
"We can waive. I don't care," I say. I don't either. It seems like a minor intrusion, compared to what has taken place in the last few months.
"Your attorney is ordering you to care. Della Guardia and Molto are no doubt hoping we will make a waiver, in the belief that this doctor will testify to your general mental health and the unlikeliness of criminal behavior."
"I bet he will."
"I see I did not make my point," says Stern. "I commented before. Evidence of motive here is weak. You summarized Della Guardia's theory very ably, I think. Sabich is obsessed, you said. Sabich is unwilling to let go. Tell me, Rusty. You have looked over Della Guardia's case. Where is the proof here of any prior amorous relationship between the defendant and the decedent? A few telephone calls that can be accounted for by business needs? There is no diary here. No note that came with flowers. No lovers' correspondence. That, I take it, is what your secretary will be called for, to add what she can, which I assume is not very much."
"Very little," I say. Sandy is right. I did not see this hole. As a prosecutor, I would never have missed it. But it is harder when you have all the facts. Still, I battle back a lightheaded sensation of hope. I cannot believe that Nico could be weak on this essential. I point at the MUD sheets. "There are calls to my home from Carolyn's in late October, last year."
"Yes? And who is to say they are not from Ms. Polhemus to you? You had been lawyers on an important case that was tried the month preceding. No doubt there were continuing developments. Bond questions. As I recall, there was a substantial dispute surrounding custody of the boy. What was his name?" "Wendell McGaffen."
"Yes. Wendell. These are matters to which the chief deputy might have difficulty giving attention in the office."
"And why did I tell Lipranzer not to get my home phone tolls?"
"More difficult." Sandy nods. "But I take it for granted that a person of innocent state of mind would rule himself out as a suspect and prevent a busy detective from wasting his time." The way he puts things. I take it for granted. Like sleight of hand.
"Mrs. Krapotnik?" I ask, alluding to her expected testimony that I was seen around Carolyn's apartment.
"You were on trial together. Matters needed to be discussed. Certainly, if you want to get away from the Kindle County P.A.'s office, a most dreary environment, you are not going to go out to Nearing, where you live. No one denies you were in the apartment on occasion. We agree. Your fingerprints are on the glass." Sandy's smile is Latin, complex. His defense is taking shape, and he is quite persuasive. "No," Sandy says. "Della Guardia cannot call you, of course, or, presumably, your wife. And so he faces difficulties. Tongues no doubt have wagged, Rusty. I am sure half the attorneys in Kindle County now believe that they suspected your affair. But gossip will not be admitted. The prosecution has no witnesses. And thus no proof of motive. I would be more hopeful," Sandy says, "were it not for the problem of your testimony." His eyes, large and dark, deep and serious, briefly cross my own. The problem of my testimony. The problem, he means, of telling the truth. "But these are questions for the future. Our job, after all, is merely to raise a doubt. And it may be that when Della Guardia concludes his case the jury will be led to wonder if you are not the victim of a miserable coincidence."
"Or if I was set up."
Sandy is a reasonable man and judicious. He acquires his grave look in response to my proposal. He would obviously prefer that there be no illusions between client and counsel. He glances at his watch. It is getting close to show time. I touch his wrist.
"What would you say if I told you that Carolyn seems to have had something to do with a case on which a deputy P.A. was bribed? And the P.A. on the case was Tommy Molto?"
Sandy takes a very long time with this, his look tightly drawn.
"Please explain."
I tell him in a few moments about the B file. These are, I explain, grand-jury secrets. Until now, I have preferred to keep them to myself.
"And your investigations led where?"
"Nowhere. It stopped the day I left."
"We must find some way to continue. I would suggest an investigator ordinarily. Perhaps you have some other idea." Sandy puts out his cigar. He grinds the stub down carefully and looks at it an instant reverentially. He sighs, before he stands to put on his coat. "To attack the prosecutor, Rusty, is a tactic that is almost always pleasing to the client, and seldom convincing to a jury. These matters I mentioned before-your political opposition to Della Guardia, your firing of him-are items that will tarnish him, diminish his credibility. They will help us explain the prosecutor's zeal to accuse on insufficient evidence. But before we venture down the road to actual accusation, we must consider the matter very carefully. Successes by suggesting sinister motives in the state are, as you well know, quite rare."
"I understand," I say. "I wanted you to know," I tell him.
"Of course. And I appreciate that."
"It's just," I tell him, "that's the way I feel. That it isn't a coincidence it lays out this way. I mean," and now, on sudden impulse, I finally bring myself to say what vestigial pride has so long prevented: "Sandy, I'm innocent."
Stern reaches over and, as only he could do, pats me on the hand. He has a look of deep, if practiced, sadness. And as I meet this brown-eyed spaniel expression I realize that Alejandro Stern, one of this town's finest defense lawyers, has heard these ardent proclamations of innocence too many times before.