The Burden of Proof kc-2

by Scott Turow

  When he came in, she was in a white terry-cloth robe, combing out her hair at the cable-spool table. Un-made-up, undone, she remained herself, strong and. pretty, confident of her own appeal. She went to the bed to move Sam to the smaller room, but Stern insisted on carrying him and, with Sonny directing, bore the warm, small form to the cot in the adjacent room. Sam remained miles off in the profound grasp of a child's sleep.

  "Strawberries? Cottage cheese?" Sonny was eating and the food was on the table. Stern declined. "So how do we do this? You're going to tell me what you know and I'm going to tell you if you're wrong. Is that the deal?"

  "Sonny, I was perhaps too insistent.

  "No," she said, seizing a strawberry. "Sennett is screw ing you around.

  I was never sure why before. Your client do" deserves better treatment. But there's only so much I can.

  "I understand."

  "All right," she said. "Shoot."

  This was a boundary, a line he preferred not to cross.

  He went on, merely because he remained grateful for her company, their conversation, for any reason not to depart.

  He started with the basics, the large orders, the two ex, changes, the error trades, When he mentioned the use of the house error account, she drew back with a marveling smile.

  "Now, how did you figure that out? Sennett is sure you'll never get it." When he hesitated, she turned the back of her hand. It did not matter. "Go on."

  "Can the government show, by the way, that market prices were affected by any of these trades, or that someone.was otherwise harmed?" He had been thinking about this point for some time. After indictment, a motion to dismiss on these grounds would be called for, claiming the prosecution could not prove a crime.

  "We've looked at the cases," Sonny said. "There's an offense here. If you profit off the customers' information, you're taking something from them, one way or the other.

  What do you think the customers would say?"

  Stern lifted his hands noncommittally. In the abstract, he probably agreed with her. 'He was more certain a judge would.

  "Go on," she told him again.

  He described how the accumulating profits, after further/ manipulations, were invested in the Wunderkind account-where over time they were lost, all of them, not to mention a good deal more.

  "And you suspect Dixon of controlling this account."

  "Go on," she' said yet again. She had offered no other comment when he told her what evidence he thought they might have.

  "I am certain the government can explain," said Stern dryly, "why someone would steal $600,000 in order. to lose "That's not an element of the offense." She meant that the government could prove the crime without solving that riddle. The fact that the money was lost might not even come into evidence,

  "Nonetheless," said Stern.

  "Go on," said Sonny. She had become grave and composed and clearly had no interest in debates.

  "Right now, you seem to be energetically seeking the documents which show who established the Wunderkind account. Without.that, of course, you will have no way to tie Dixon to the account, to the profits, and to the trading ahead."

  For the first time, she was completely quiet. Stern waited until he realized that he was being informed he had missed a step.

  "Is that where John comes in?"

  "I don't know where he fits, Sandy. Honestly."

  That matched what TooIcy had told him; Mel was dealing strictly with Sennett. Stern wondered if that meant that John was being extraordinarily cooperative or more difficult than expected-or simply that Sennett, as usual, was being high-handed and secretive, even with his own staff. Yet even if John had a perfect recollection of Dixon calling in every dishonest trade, the government would want proof that Dixon controlled the Wunderkind account, where the profits briefly rested. Without that, the prosecutors tould have difficulty establishing that Dixon was not acting innocently or at the behest of someone else. Stern repeated this thought aloud.

  "But you still require the signature forms in order to establish Dixon's relationship to the Wunderkind account."

  Again, she made no answer. "I am wrong?" asked Stern.

  Sonny reached to the bowl and ate another strawberry, while he tried to concentrate. This was ordinarily his strength, picking out the nuances of the evidence. But he had missed something of consequence. He remained quiet.

  "Last year," said Sonny, after a bit, "starting out in the office, I prosecuted a lot of dope cases."

  "Yes?" He had no idea where she was leading.

  "You know how those cases go. DEA sees suspicious activity.

  There's an informant. They get a warrant, knock down the door of a stash house, find ten keys of cocaine and no one inside it. Then they come to the poor Assistant to issue grand jury subpoenas so they can figure out who owns the house-and the dope."

  "Yes," he said again.

  "When you get the title to the property, or the lease to the apartment, whatever, it's point]ess. It's always some little.Old lady from the North End with whiskers and a bunch of cats. But we prove it's their house, anyway."

  Stern nodded. He was familiar with the government's techniques. They went to the gas company, electric, telephone, and found out who was paying the bills. In one case that Jamie Kemp had handled before moving to New York, the government proved control of the house by showing that their client had purchased the-garbage cans in the alley.

  He took it that Klonsky had issued a broad hint but for a moment it was lost on him.

  "The deficit," said Stern suddenly.

  She smiled.

  "Dixon paid for the quarter-million-dollar debit balance left in the Wunderkind account," he told her.

  "Go on."

  "That is why you subpoenaed his bank records. To find the check he wrote to cover that debit. You were never tracing the funds he'd deposited."

  "Go on," said Sonny.

  "And you have the check?"

  "Go on," said Sonny again.

  He waited. Dixon, too, had apparently missed the point of the inquiries at the bank. Protecting its informant, the government with its various subpoenas had made a convincing show of being more interested in the money Dikon received than what he'd paid out.

  "So why, then, are you so concerned about the accountopening documents?"

  Of course, she would not answer. Stern subsided again to silence. What if Dixon had filched those papers? Why would the government initiate such hot pursuit of what was beside the point?

  Unless the prosecutors knew in advance that Dixon had made off with the records. Of course. Their informant had once more led them to the right spot. The prosecutors-Sennett, at least-never expected the Wunderkind records to turn up in Margy's hands. That was why Sonny had recovered her good humor after she had gone to speak with him. She had learned what Sennett had counted on all along, that the prosecution would end up with the best of both worlds: evidence that Dixon controlled the account and proof he was trying to conceal that fact.

  With that kind of showing-state-of-mind evidence, as it was called-the government could cut off any clever conjectural defenses that might be ventured at trial to suggest a half-sane or innocent motive for Dixon's conduct. Once the prosecution was able to establish that Dixon was covering his tracks, there could be little argument about what he thought of his own activities. John, at this point, remained Dixon's sole hope, and a faint one at that. If John's memory failed in some critical regard about who had instructed him to place the error orders, there might be a minute space in which to turn a sly pirouette. Yet that was not likely. The prosecutors had the critical proof in hand now. The walls were closing in on Dixon, as on some Poe character; the light was growing weak. Here, supercharged by the presence of this young woman, the weight of these developments did not really seem to settle upon Stern fully.

  "You really like him, don't you?" Sonny asked, after watching him a moment.

  "I care greatly about my sister. Perhaps my feelings for Dixon a
re merely force of habit. But I am very sad to hear this."

  "This is just between us," Sonny said. "Stan would hang me."

  "You have told me nothing." He crossed his heart, a schoolboy habit from Argentina, from a time when Gentile friends demanded the gesture, never understanding his reluctance. "There will be no communication. To anyone. No hint. My promise."

  He looked at her across the table. He had exhausted the excuse that brought him here. He rose, slapping his sides.

  Sonny yawned.

  "Believe it or not," she said, "I think I'm going to sleep.

  ' '

  She insisted he take an enormous bag of berries. As they approached the door, he made her promise to say goodbye for him to Sam. Then she grabbed him, applying a quick comradely hug, coming close enough to bump her firm belly against him and sweep her wet hair across his cheek. His arms came together slowly and never reached her before she was gone again. / brief ache of some kind, of deprivation, rose up and subsided.

  "You were most kind to have me," he said from the other side of the screen.:

  "We'll do it again," she'said. As he trudged up the stairs, her voice, full of her own ironic laughter, reached him in the dark. She'd had. an afterthought remained Dixon's sole hope, and a faint one at that. If John's memory failed in some critical regard about who had instructed him to place the error orders, there might be a minute space in which to turn a sly pirouette. Yet that was not likely. The prosecutors had the critical proof in hand now. The walls were closing in on Dixon, as on some Poe character; the light was growing weak. Here, supercharged by the presence of this young woman, the weight of these developments did not really seem to settle upon Stern fully.

  "You really like him, don't you?" Sonny asked, after watching him a moment.

  "I care greatly about my sister. Perhaps my feelings for Dixon are merely force of habit. But I am very sad to hear this."

  "This is just between us," Sonny said. "Stan would hang me."

  "You have told me nothing." He crossed his heart, a schoolboy habit from Argentina, from a time when Gentile friends demanded the gesture, never understanding his reluctance. "There will be no communication. To anyone. No hint. My promise."

  He looked at her across the table. He had exhausted the excuse that brought him here. He rose, slapping his sides.

  Sonny yawned.

  "Believe it or not," she said, "I think I'm going to sleep.

  ' '

  She insisted he take an enormous bag of berries. As they approached the door, he made her promise to say goodbye for him to Sam. Then she grabbed him, applying a quick comradely hug, coming close enough to bump her firm belly against him and sweep her wet hair across his cheek. His arms came together slowly and never reached her before she was gone again. / brief ache of some kind, of deprivation, rose up and subsided.

  "You were most kind to have me," he said from the other side of the screen.:

  "We'll do it again," she'said. As he trudged up the stairs, her voice, full of her own ironic laughter, reached him in the dark. She'd had. an afterthought.

  "If I'm still married to Charlie."

  HE arrived home near one, after traveling down the dark country roads and then the highway, tugged through the night by the beam of his headlights, and the heavy currents of his own thoughts. He had tuned the radio to the mumble of a Trappers game, but after a time snapped it off and drove enftrely in silence, dominated by sensation-the heat and scent of the strawberry field, the reverberating charge when she had slid so quietly into the water. At moments, of course, he pondered about Dixon. Soon they would have to seriously consider the alternatives. For a few minutes Stern worked at it all in his mind, probing, tangling and untangling, but he saw no avenues of quick escape.

  He thought, naturally, of his sister then. Silvia would suffer. Full of high emotion in the dark, he endured that pain anew.

  Inside the door of his home, Stern plunged his heavybottomed body down on the antique milking chair in the front foyer, his thick legs poked out before him. The bag of strawberries, moistened now by their own juice, lay in his lap. Across the hail, he caught a piece of his reflection in the wig-stand mirror and saw how ridiculous he looked; he had been in that tub more than an hour and never let a drop of water touch his head. The little pouches of haft on either side, brittle with the sun, were lifted out like chemb's wings, and two or three dirty streaks of dried sweat ran from his crown to his cheeks.

  Licking his lips, he could still taste the dried salt gathered in the hollow beneath his nose.

  He was exhausted. But there was no resisting in the safety of his home the measure of his own excitement. Here in this known space, close and his alone, something finally gave way, and riding up in him he felt at last the full expression of what had waited throughout the day. He made a sound'out loud as the longing radiated through him and he sat riveted by passion..This was remarkable. His blood carried an electric charge.

  His heart and male organs were affected by an aura of desire which was not just that deep body-wanting thing, that longing like a stifled moan, but something else, something needier, softer, and more yearning. He wanted, simply, this young woman. To be with her.

  To hold her and be held. My God! It passed over him in waves as he marveled at the overpowering, transforming feeling of it all. The rest of life did not exist, not simply the boundary lines of circumstance, but the hobbling limits of personality. Here, for a moment, all limitations could be exceeded. He would croon beneath her window or, more simply, confess to this wild yearning. He had half a mind to go directly to the phone, until he recalled that he had seen none in the cabin. This was what drove grown men to shirk their families and young men to foolish daredevil acts. He sat gripping the arms of his chaff.

  Oh, it made no sense, but that was hardly the point. The empire of dreams, the region where images preceded words and sensation was supreme, had given up this fixation and there was no logical quarreling with it. How much, really, did we ever understand about this? He'd had prescriptions from everyone, advice from every soul on earth about how to run the remainder of his life. But this was what he had been awaiting-to find what was beyond humdrum propriety or custom and to learn his own true ambition. And it was this young woman, troubled but straggling each instant, no matter how else she faltered, to be the real thing, her best and most authentic self.

  But, of course, nothing would happen.

  The thought swung through him like the closing of a heavy door. Not a thing would actually occur. He had proved that convincingly when he sat inches from her, naked as Adam and Eve, and had been powerless, inert.

  Her troubled talk of leaving her husband was just that-angry idle talk.

  She was merely becoming accustomed to the fact that the pathways in her life were, finally, marked out, established. At the age of fifty-six, he had now managed to lead the emotional life of a seventeen-year-old, full of moonstruck fantasies that would never be fulfilled. The anguish sang through him for a short time with the perfect reverberations of a high note rung from crystal.

  And somehow, then, he thought of Clara. The association was not direct, for his thoughts were actually bittersweet, some admiration of the pure sentience of his present state.

  He had been immobile throughout, but now a new shock passed through him, for he recognized, with a precision that passed beyond the realm of any allowable doubt, what it was that Clara had been seeking when she turned away from him.

  Just this: the mercy of passion. And here in his chair he was equally certain-sure, if he had learned a thing about her in the decades-sure not merely that she had never found that grace but that she had discovered that for her-in her -it would never be attainable. Never.

  In this instant, there was not a grain of ill feeling, only comprehension, definite-complete. Eyes wide, he sat, somehow rebuked by the enormous silence of the large home and the harshness of these judgments which he made about himself and his entire life. His blood was coursing; the image of
that young woman a hundred miles away still seemed so near, so compelling, that he remained half inclined to lift his hand in greeting. And yet he held that thought of Clara at her ultimate moment, grappling with desperation, as the biblical figures were portrayed in lush oil paintings wrestling God's winged angels of death. Never, she had thought. Never, he thought now. Never.

  "I was engaged," said Clara that night as they sat in the dark car over the river, with 'the sweet julep smell of the liquor around them. "We broke it off a year ago last June."

  It was nearly December now. The street lamps and scattered light from the sky, vaguely refracted, cast deep shadows; he could see only the movement of her eyes as she looked ahead through the car window. Some spirit of bravery gripped her, though. There was a finer, noble look to her as she spoke; Stern Was impressed, as he had been often lately, by her beauty. "His name was Hamilton Kreitzer. Do you remember him? From law school?"

  The name meant nothing to Stern. He had the vaguest image of a fellow with a callow, luminescent smile and half head of wiry blondish hair.

  "He's older. Than we are. Than I am. He had left Easton before 1 started. But, well, he was glamorous. You know, he came driving out on the weekends. He had that little English car, whatever it's called. The roadster. He,d come flying onto campus with the topdown in the middle of the winter and his scarf blowing behind him. He went out for some time with Betty Tabourney' s sister. He had a terrible reputation. But girls don't ever know what they really like, do they? He's very handsome. You have to give him that. He's got a tiny little mustache like Errol Flynn.

  And, of course, he's quite well-to-do. His father is one of Daddy's clients. They make candy. You see it in all the five-and-dimes.

  Packaged stuff. It's been stale whenever I've bought it. At any rate."

  She stopped to adjust herself in the seat. She was probably not accustomed to speaking at such length. For a moment, even in the dark, Stern could discern some tentative reflex: she was not certain that she wanted to go on. Then she straightened somewhat and continued, looking again through the front window, raising that fine profile. "They call him Ham. Nice name for a Jewish boy." She laughed. "Of course, my parents liked that. You know how they are. They don't like anything to be 'too Jewish,' which means Jewish at all."