The Burden of Proof

by Scott Turow

  “No,” said Stern simply.

  “I’m tellin you,” she said. “It’s all gone. All those forms go on microfiche. Fiche for the month that account opened last year ain’t to be found. Three copies. Then we got a little computer screen on every customer. You know: name, address, social security. Somebody’s gone in on the system and zapped it out. You put in that account number, you get nothin but a blinkin light. And a’ course, the hard copy on all the forms—they been swiped right out of the file.”

  “And where were those records kept?”

  “Depends. Central microfiche is in Chicago, but we got a backup here. Hard copy for this account’d be here. Computer you can get on anywhere. If you know what you’re doin.”

  “And would Dixon have access to these records?” The question, even to Stern’s own ear, sounded weak. The answer was obvious. Margy put it her own way.

  “Honey, there ain’t nothin in three cities that Dixon don’t have access to from the receptionist’s be-hind to the drawer where I keep my Maalox. It’s Maison Dixon. You askin me if somebody saw him piddlin around in a file cabinet they’d say, Hey there, watcha doin? No chance. I told you. They’re all scared a’ him.”

  “You searched thoroughly, Margy?”

  “I went through the files here myself last night.”

  “I see.” He flipped up the humidor and looked at the cigars, snug in their brown jackets like military men at ease. Last week, he’d had Claudia fill the box, but he had not yet lit or even pressed his teeth into a cigar. “Of course,” said Stern, “there have been times that records have been lost in the process of copying for microfiche, correct?”

  “Shore.”

  “And accidental erasures of computer information probably occur daily?”

  “Maybe,” said Margy.

  “And if you have no microfiche in either city, perhaps you never had one in the first place?”

  Margy looked at Stern with outthrust chin and gimlet eye, as he made these efforts in the mode of piercing cross-examination. Her expression was easy to read: No sale.

  Stern took a long swallow of his coffee and turned to the window. From here on the thirty-eighth floor of Morgan Towers, the river held a liquid gleam. Some days it was leaden and murky. In high winds, the current increased and the water spit and lashed at the brown standards used to moor barges and other slow-moving hauling craft that sometimes made their way upstream. Over time he’d come to know the meaning of its changing tones. Stern could tell from the density of color if the barometer was dropping, if the cloud cover was heavy or likely soon to lift. That was the value of experience, he supposed, to be able to read the meaning of signs, to know the large impact signaled by small things.

  This would go badly with the government. Quite badly. He had been warning Dixon against this for months now, to no apparent avail. Dixon was shrewd enough to recognize that even if the prosecutors could not figure out what he had done with the money, they would have a case if they could prove he had stolen it—and proof that he controlled this Wunderkind account would suffice. But it was a desperate response to destroy the documents. The government could barely avoid proving Dixon was responsible. As Margy said, there was probably no other person in the company who could have gone into the files in two cities with the same impunity. As the government showed Dixon’s access to each missing record, the circumstantial web would take on a taut, sinister look. And for that kind of action there was never an innocent explanation. Stern was good. He could refer to error accounts and margin calls and limit drops and make a jury dizzy. But when the prosecutors wheeled the MD shredder into the courtroom, there would be no way to cross-examine the machine. Dixon might as well have jumped inside. You could never save clients from themselves, Stern thought. Never.

  So begins the last act in the tableau of Dixon Hartnell, small-town boy made good, gone bad. For Stern, in every case which came to grief there was a moment when his knowledge of a gruesome future fact became firm and thoroughly delineated. Occasionally, it was not until the jury spoke; but more often there was some telling instant along the way when Stern, as the saving went, could see beyond the curve. In the matter of Dixon Hartnell, husband to his sister, client, compatriot, sporting and military companion, today was the day. Too much was accumulating here—knowledge, motive, opportunity; the error account, John’s recollections, the documents gone. Today he knew the end of the story.

  Dixon was going to the penitentiary.

  He took a few minutes to coach Margy on the basics of dealing with Klonsky: Listen to the question. Answer it narrowly and precisely. Volunteer nothing. Never say no when asked if particular events occurred; answer, rather, I do not recollect. Name, rank, serial number. Hard facts. No opinions. If asked to speculate, decline to. And in the grand jury, remember that Stern literally would be at the door. She had an absolute right to consult with counsel at any time and should ask to speak to her lawyer if there was any question, no matter how trivial, for which she felt remotely unprepared.

  He helped her pack the documents back into her briefcase and slipped into his suit coat by the door. He picked up her bag and asked if she was ready. Margy lingered in the chair.

  “I was pretty tough on you,” she said quietly. She looked at her coffee cup, against which she rested one bright nail. “When we were talkin a few weeks ago?”

  “Not without warrant.”

  “You know, Sandy, I got lots of calluses.” She looked up briefly and smiled almost shyly. “The only thing a gal wants is for you to pretend a little bit.”

  Stern moved a step or two closer. As usual with Margy, the thought of her boss was not far away. Dixon was probably very good at pretending, resorting to every corny gesture; he would throw his coat down in a puddle if need be, or croon outside the window. And here was Margy telling him that women liked that sort of thing. Stern waited, summoning himself. The best he could manage was diplomacy.

  “Margy, this has been a time of extraordinary turmoil. Many unexpected developments.”

  “Shore.” Margy smiled stiffly and tilted the cup, garishly rimmed with her lipstick, gazing down with great interest at her cold coffee. “Shore,” she said again.

  Well, thought Stern, here one could begin to understand her dilemma. Margy wanted her gentlemen friends to pretend—so that she could tell them coldly that she did not believe them. Stern was certain that he had now arrived at an essential vision. He had heard the pitch, found the harmonics of a perfect composition in the scale of personal pain. Margy’s creation was as clever as Chinese handcuffs. Constrained, however you moved. His heart, as usual, went out to her.

  And so, out of some impulse of tenderness, he told her what he took to be the truth. “I have lately been seeing a good deal of a woman who was a friend of ours for many years.” Very brief. To the point. He was not quite certain what he meant to accomplish by this eruption of candor, except the virtue of honesty itself. Indeed, after his bizarre interlude with Fiona, in which Helen had not been so much as a momentary thought, he had no idea whether this fact was any better than convenient. But clarification was called for, and Margy, whatever his admiration, was not his destiny. The news had the predictable effect. Her pupils took on the contracted look they might have in strong light. He had cast her again in her inevitable role: once more, the loser; the flop-and-drop gal. She was not pleased. Margy, like everyone else, wanted a better life than the one she had.

  “Nice for you,” said Margy. She snatched her purse, closed her case, smoothed her skirt as she rose, grazing him with a tight, penetrating smile. What was the poet’s phrase? Zero at the bone. She had put on again her blank tough-guy look that she brought to business meetings, once more Dixon Hartnell’s hard-ass hired hand.

  They walked the three blocks to the courthouse in virtual silence. Stern’s only remarks were directions: Just up there we turn. They were escorted back to Klonsky’s narrow office at once and Margy settled herself in the old oak armchair like a rider in the rodeo. She was
ready.

  “Margy,” she said, when Klonsky asked what she liked to be called. “Hard g.” Hard g, indeed, thought Stern. Like a diamond drill.

  They had arrived late, and Klonsky cast an eye up at the clock. Time before the grand jury was assigned by a deputy court clerk in quarter-hour intervals and was zealously guarded by the Assistants, who were always pressed to get their business done in the period allotted. Klonsky began questioning Margy, even while Stern was reviewing her non-subject letter. It was signed by the U.S. Attorney himself and assured Margy that she was not suspected of any criminal involvement, assuming she told the truth before the grand jury. Stern put the letter in his case and looked on as Klonsky worked. She asked Margy questions, all of them routine, and wrote down the answers on a yellow pad. Wearing her prosecutor’s hat, Sonia was like most of her colleagues, relentless, humorless, intense. Her pace was sufficiently methodical that Stern actually grew hopeful that the matter of the missing documents might not come up. That would allow him to have a pointed conversation first with Mr. Hartnell. But with only a few minutes remaining before they were scheduled to appear at the grand jury, Klonsky removed her tissue copy of the subpoena from the file and went through it, item by item. When Margy handed over the statements for the Wunderkind account, she added brightly, “That’s it.”

  “That’s it?” asked Klonsky, with an immediate look of apprehension. She glanced back to her papers.

  Stern, for the first time, spoke up. Somewhere, he said, there was a misunderstanding. The various account-opening documents—signature forms, applications, et cetera—seemed to have been misplaced and could not presently be located. A diligent search had been conducted by Ms. Allison and would be continued, Stern stated, under his direction.

  “They’re gone?” asked Klonsky. “Trashed?”

  Margy started to speak, but Stern reached out to grab her wrist where a heavy bracelet lay. It was far too early, said Stern, to assume the documents could not be located. The subpoena had been served barely three weeks ago, and MD was a substantial company with hundreds of employees and more than one office.

  “I don’t believe this,” Klonsky said. She largely ignored Stern and put a series of questions to Margy, identifying the documents, the copies, the places they were stored. She extracted, in more precision than Stern had, the details of Margy’s search. Conducting this inquiry, Klonsky was rigid and intent behind her desk. Whatever her occasional geniality, Ms. Klonsky, when provoked, was quick to anger.

  She looked at Stern. “I’m going to have to talk to Stan about this.”

  “Sonia,” said Stern, “again, I think you are leaping unnecessarily—”

  She cut him off with an ill-tempered wave of her hand. Clad in her familiar blue jumper, she bumped her belly a bit against her desk as she climbed out from behind her chair and led the way downstairs to the grand jury.

  When the judges had deserted the new federal building, they left the grand jury behind. The defense lawyers protested this propinquity to the United States Attorney’s Office, but it was recognized as vain posturing. For all practical purposes, the grand jury belonged to the prosecutors. An unmarked door in the corridor a floor below led into what looked like a doctor’s reception room; it held the same inexpensive furniture, with cigarette burns and splintered veneers, as in the U.S. Attorney’s Office upstairs. Behind two additional doors lay the grand jury rooms themselves. Stern had often peeked inside. It did not look like much: a tiny raised bench at the front of the room and rows of tiered seats, like a small classroom. The twenty-three grand jurors, who had been called out of the regular jury pool to help the prosecutors determine whether they had enough evidence to try someone for a crime, tended to be union workers of one kind or another who had no store to mind, or else the retired, women at home who could manage the time, or frequently those out of work who valued the $30 daily fee.

  To Stern, the grand jury, purportedly intended to protect the innocent, remained one of the preeminent fictions of the criminal-justice scheme. Occasionally, the defense bar was warmed by tales of a renegade grand jury that returned a no bill or two, or quarreled with the prosecutors about a case. But usually the jurors deferred, as one would expect, to the diligent young faces of the U.S. Attorney’s Office. By all reports, the grand jurors sat knitting, reading papers, picking at their nails, while a given individual, brought here by the might and majesty of the United States, was grilled at will by the Assistants.

  “Remember I am here,” he told Margy. She strolled inside, hauling her briefcase, and did not look back. She remained in poor humor with him. Klonsky also was put out, and, perhaps without meaning to, slammed the door on Stern as she called the session to order.

  The proceedings were secret. The room had no windows and a single door. The grand jurors, the prosecutors, the court reporter could not disclose what had occurred, unless there was a trial, when the government was required to reveal the prior testimony of witnesses. In this federal district, commendably, there were seldom leaks of grand jury matters and much went on here that was never heard about again, a comforting fact for those subjected to baseless or even unprovable allegations. But it was the same respectable principle of secrecy that was cited to bar the witness’s lawyer from attending; Stern had only the right to wait at the door, in the fashion of a well-trained dog. The witness, under no bans of confidentiality, could leave if need be after every question to ask the lawyer’s advice. But intimidated by the setting, and eager to appease the interrogator, they seldom did so. His clients usually left Stern maintaining his vigil at the door, his case and hat in hand, his stomach grinding.

  Sometimes, particularly with male voices of a certain timbre, Stern found that the seat nearest to the grand jury room enabled him, if he moderated his breathing and others outside were not gabbing, to overhear the proceedings word for word. Today he was not as fortunate. Barney Hill, the deputy court clerk who slotted time and filled out attendance forms for witnesses, chatted to Stern about the Trappers, and the women’s voices did not seem to carry as well through the heavy door. He could hear Klonsky at a certain pitch and the confident tone of Margy’s response. After fifteen minutes, the door banged open and both women emerged. They were finished. Predictably, Margy had chosen not to visit with her lawyer.

  “I’m still concerned about those documents,” said Klonsky from the threshold of the grand jury room, with a number of the grand jurors milling about behind her. “Ms. Allison’s going to be looking for them again.”

  “Of course,” said Stern.

  “As far I’m concerned, we’re beginning an investigation for an O.O.J.” Obstruction of Justice.

  Stern once more attempted to mollify her, but Klonsky, with half a smile at his familiar excuses, waved him off. She repeated again that she was going to talk to the U.S. Attorney, and headed out, apparently to do just that.

  Stern, left with Margy, pointed her to one of the narrow rooms immediately beside the grand jury chamber which were set aside for witnesses’ consultations with their counsel. The room, six by ten, was bare; it contained a worn table and two chairs, and the gray walls were marred and filthy. Stern’s practice, invariable over the decades, was to debrief his clients right here, while their memories were fresh, question by question.

  Stern closed the door and Margy sat, frosty with him but otherwise calm. He asked how it had been.

  “Fine,” she said serenely. “I lied.”

  Stern stood with his hand on the knob of the door. This happened now and then, of course. Not as often as was commonly imagined. But now and then. A client chucks up her chin and frankly admits to committing a felony. Notwithstanding, he promptly felt feverish, weak.

  He sat down, facing her. She remained bitter and cross.

  “May I ask,” said Stern, “in what manner you provided incorrect information?”

  She flipped her white hand, her bracelets and long nails.

  “I don’t know. She asked if I had any idea where the records wen
t.”

  Realizing that he was somehow the target of all this, he tried to avoid showing his relief. Barring further stupidity—an outright confession—the government would never make a case for perjury based on the fact that Margy had kept her opinions to herself.

  “She asked if I knew anything about this Wunderkind account from any other source.”

  “You told her no?”

  “Right.”

  “That was untrue?”

  “Yep.”

  Stern had not been bright enough to ask that question in his office. Perhaps Margy might have responded fully then. Certainly she was not likely to expand now.

  “Anything further?”

  “She asked if I talked to Dixon about the documents. I told her no to that, too.”

  “But you had?”

  “Shore.”

  What made him think he was wily when he had neglected the obvious? Naturally, she talked to Dixon about this. Who else would know where the records had gone? In all probability he had ventured a few suggestions concerning what she ought to say to the government—and to Stern. In truth, he had no desire to learn exactly what Dixon had told her. It was sure to enrage him—and at any rate, the conflict of interests which the U.S. Attorney had so gratuitously predicted had now come to pass. Margy’s lying, from a coarse perspective, almost certainly advanced Dixon’s cause; Stern could no longer counsel both clients. He knew he had himself to blame for that predicament. In thirty years, his personal relationships had never interfered with his professional obligations, but one way or another, his widower’s priapism had brought him here—if nowhere else, to the point that Margy was furious enough with him to admit what she had done. For the present, however, his humiliation was subordinate to his duties, which were clear.

  “Margy, I would like to introduce you to another lawyer, who, I believe, will counsel you to return to the grand jury at once and recant.”

  “‘Recant’?”