The Burden of Proof kc-2

by Scott Turow

  'Has the government reconsidered, perhaps?" 'We'll compromise,' said Sonny. 'You deliver the safe and an affidavit that says that it's in the same condition as when you received it, and you won't have to appear before the grand jury.".

  'I see." The government, as usual, would get everything it wanted, but their moderated stance would please the judge.

  'I think this is fair, Sandy,' said Sonny. 'I really do.

  The fact that you have the safe just isn't privileged. All we want is the safe and to know that we have everything that was in it. We'd be entitled to get the thing if he'd left it at MD, where it belonged. We can't allow someone to avoid a subpoena duces tecum by conveying what we want to his lawyer."

  Even if he had the safe, Stern might not have agreed, but there was no point in quarreling now. Speaking with Sonny, in fact, made him unbearably sad. The whole situation-all aspects-was impossible.

  Stern called Marta to pass on this news, and then at her suggestion drafted a motion to withdraw as Dixon's counsel.

  It was a simple paper, stating that there were irreconcilable differences between lawyer and client. He sent it to Dixon by messenger just before he left-to meet Remo, along with a note saying that he would file the motion next Tuesday, Unless the point of difference between them was immediately resolved. The motion was not actually required in a grand jury proceeding, but Dixon would not realize that, and Marta believed it would be an appropriate prelude with Judge Winchell.

  Considering the judge now, as Appleton went on begging for more time, it was clear that some groundwork was in order.

  When Stern rejected the prosecutors' compromise, offered none of his own, and simply refused to produce the safe-his latest plan-Moira's reaction would be severe. Standing here, Stern saw admirable prescience in Marta's prediction of jail.

  The judge made Moses plead miserably, but ultimately set Remo's case down for trial the first week in August.

  "And work on that other matter, won't you, Mr. Stern?" she said as she rose from the bench. There, from that considerable height, she smiled in her icy, domineering way, a person accustomed to being obeyed.

  In the corridor, Remo again began to quarrel with Stern as soon as they were alone. He was still dead-set against a "How much more is she gonna give me if I take a trial?"

  Remo asked. "With this babe," he said, "I could catch a real whack."

  Stern again played Remo the music: If he was convicted, he was going to the penitentiary for a lengthy period, in any event, guilty plea or not': The evidence, all factors considered, warranted proceeding to trial.

  "Yeahi but what's it cost?" asked Remo. "You don't work for nothin, right?"

  That, Stern allowed, was true.

  "Sure," said Remo. "Right. No one works for notbin." So what I gotta give you? Five, maybe?" When Stern hesitated, Remo's dark eyes widened.

  "More? See. Iain' been doin much as it is. You know, few months now, there ain' much." Stern had no idea whether Remo was referring to legitimate endeavors or not, and by long habit was disinclined to ask.

  From other remarks, he took it that Remo's routine at present was confined to visiting the neighborhood social clubs, drinking aperitifs from eleven in the morning on, and playing backroom card games, throwing down money with great show and cursing in Italian. "What's the odds in that? I go way," said Remo, "there ain't notbin as there is for the old lady and the kid. And I give you five?" Remo had settled the matter of fee with himself. "I don't see it. Neh," he said, then furtively smiled. He stepped closer to Stern and whispered, the trace of Frangelico or something else still on his breath from his idle morning.

  "Course," he said with a lively look of amusement, "if you had a job or somethin, we could maybe work it out. You know."

  Stern peered at Remo.

  "You know: Do me, I'll do you. You know. No offense or nothin. You probably ain't that kind of guy." Remo was not at all certain what he had otten himself into or how to read Stern's expression of almost brutal concentration. "No offense," said Remo again. "Right?"

  ON Saturday night, Stern returned home prepared for another desolate evening. He was beginning to give in to old habits and was once more spending the weekends in the office, trying to swim through the ocean of items neglected for months. He had spoken with Silvia this morning and with spurious innocence asked what their weekend held in store.

  As he had predicted to Remo, she and Dixon would spend both days at the country club. He refused the invitation to join them; legal work called. With whatever honor he retained, he declined to be more specific about his plans. Besides, he was still not certain he really had the nerve to carry through.

  Alone now, facing his empty house, he thought with considerable regret of the invitations he had spurned in April and May. Many people now believed Helen had first call on his time. He would have to send up smoke signals or whatever signs were used by a widower willing to sit at dinner beside the aging malden cousin. Disheartening, he thought, but better than lonely solitude. He opened the car door and recalled in a dizzying rash that two weeks ago he had believed he was in love.

  With a foot in the drive, he stopped. Nate Cawley was across the smooth of expanse of lawn between the two homes, tending to his garden.

  Shirtless in the balmy evening. Nate drove a shovel energetically in the beds of his evergreens.

  Stern, taken aback, wondered if he truly had the will to deal with this, too. But the moment for decision passed quickly. Nate became aware of his gaze and Stern rose from the auto and the two men faced each other across the short distance. They met a step or two onto the Cawley property.

  "Thought maybe I could get you to make me a drink," said Nate.

  Involuntarily perhaps, he glanced over his shoulder in the direction of his house and, presumably, Fona. He was glazed with sweat:Grass clippings and specks of dirt clung to the patchy gray hair on his upper body; both hands were caked with dried soil. He briefly developed the courage to look at Stern directly. "Fiona and I had quite a conversation a few nights ago. We probably oughta talk."

  "Of course," said Stern and, in spite of himself, swallowed. His heart plunged somewhat and then stalled. It-and be-were not going do Remo, she and Dixon would spend both days at the country club. He refused the invitation to join them; legal work called. With whatever honor he retained, he declined to be more specific about his plans. Besides, he was still not certain he really had the nerve to carry through.

  Alone now, facing his empty house, he thought with considerable regret of the invitations he had spurned in April and May. Many people now believed Helen had first call on his time. He would have to send up smoke signals or whatever signs were used by a widower willing to sit at dinner beside the aging malden cousin. Disheartening, he thought, but better than lonely solitude. He opened the car door and recalled in a dizzying rash that two weeks ago he had believed he was in love.

  With a foot in the drive, he stopped. Nate Cawley was across the smooth of expanse of lawn between the two homes, tending to his garden.

  Shirtless in the balmy evening. Nate drove a shovel energetically in the beds of his evergreens.

  Stern, taken aback, wondered if he truly had the will to deal with this, too. But the moment for decision passed quickly. Nate became aware of his gaze and Stern rose from the auto and the two men faced each other across the short distance. They met a step or two onto the Cawley property.

  "Thought maybe I could get you to make me a drink," said Nate.

  Involuntarily perhaps, he glanced over his shoulder in the direction of his house and, presumably, Fona. He was glazed with sweat:Grass clippings and specks of dirt clung to the patchy gray hair on his upper body; both hands were caked with dried soil. He briefly developed the courage to look at Stern directly. "Fiona and I had quite a conversation a few nights ago. We probably oughta talk."

  "Of course," said Stern and, in spite of himself, swallowed. His heart plunged somewhat and then stalled. It-and be-were not going down any further. W
hatever was in store would apparently be absorbed under the existing quota.

  Stern showed Nate through the front door and directed him back to the sun room. He asked for a diet soda.-Stern recalled Fiona's mention of AAmand was standing there, facing the garden, when Stern returned with the glass. Nate was a slight fellow, narrow across the shoulders and back.

  His dirty khaki shorts hung down from his seat, and he was sockless in a pair of old loafers. Except for the bald spot, you might have been reminded of a young boy. Perhaps this was what women found so appealing.

  Nate raised the glass in salute, and took a great breath.

  He began.

  "First off, I owe you a heckuvan apology."

  In the courtroom, Stern had learned to say as little as possible in uncertain terrain. He dropped his chin now in a fashion that might have passed as a nod.

  "After twenty-odd years, I should have known better than to believe Fiona. She was so full of vinegar. Probably couldn't enjoy the real thing half asmuch as she liked telling me." Nate smiled a bit. "And boy, was she ticked off that I talked to you. How dare I." Nate tossed his head about in frank wonderment. "There's only one Fiona," he said.

  He had taken a seat on one of the white wicker chairs that surrounded the glass-topped table on which Stern and his children had played cards the morning of the funeral. The late light, almost umber, fell through the broad French windows of the solarium.

  "I guess it just suited me to think that something was goin' on. Would have made things easier for me a lot of different ways." He laughed, a nervous sound which Stern realized he had heard from him on other occasions. "I know I should have thought better of you, Sandy. If I had, I'd realized why Fiona hauled you over there when I found that letter under the medicine cabinet. Instead of thinking one silly thing or another.

  "But frankly, even after we talked, it didn't dawn on me that was how you'd put it together. I figured then-" Nate paused, and held his own thought with a quick smile which seemed to be at his own expense. "Well, I didn't figure that. I take it you found Clara's pills in her stuff and asked somebody what they were for. Then when Fiona showed you that bottle, it was just like two and two. She told me you counted the caps." Nate looked up, seeking confirmation apparently, and, receiving nothing, laughed in the same fashion. "She didn't have the damnedest idea what was going on, by the way. She thought you figured I had it."

  Nate laid his thumb against his chest and smiled at the thought.

  Of course, he enjoyed the notion of Fiona being misled.

  To this soliloquy Stern listened with only passing comprehension. But somewhere, as Nate went along, Fiona began to enlarge in Stern's estimation. Recanting, she had apparently mentioned nothing of Stern's advances-or the full nature of their conversations. Perhaps that suited her purposes as well. But all in all, Stern believed she had better motives. Having taken his name falsely once, she had decided not to blacken it again, even with the truth. A gesture of decency-from Fiona, no less. People, thought Stern, could always surprise you.

  "So the pills Clara had here came from the bottle in your medicine cabinet?"

  "Sure," said Nate. He nodded emphatically, "She wouldn't have them in the house on a bet. She figured you'd know what the pills were for or.start asking about 'cm. I could never talk her out-of that." Nate, downcast, shook his head. "I had to do every damn thing but take the pills for her. Get the prescription, keep the bottle, bring her her caps for the day every morning. Hell, I had to promise I'd write the 'scrip in my name." Nate smiled gently, then looked intently at Stern.

  "Nothing was more important to Clara than being sure you didn't find out." He took a second to allow that to settle in. "Afterwards," said Nate, "after what happened, I thought it was just as well to keep it to myself. But when you showed up asking question about that bill, I panicked,' "You were protecting her memory," said ste.rn, "That's a nice way to put it, Sandy. But you and I both know I was trying to save my own ass."

  Bent over, he looked away. On the table beside him, framed photos of the family were arranged in a row. The faces of the children at younger ages, Clara, Stern gazed out in witness.

  "Look," said Nate, glancing up at once, "I don't want to get sued. I've just fiat-ass decided to tell you that. I've been practicing medicine for twenty years, and I'm one of the few guys I know who doesn't spend half his week with lawyers and depositions. I guess my feeling was that this Would be the worst time. After hitting the rocks with Fiona. It's the last thing I need, to see my malpractice premium double. I can't afford it, with two kids in school, not to mention alimony. And more to the point, the thought bothers the hell out of merebeing an enemy with your patients. I realize that's the world we live in. The patient died, the doctor mistreated her. What's the term you guys have? The thing speaks for itself. I heard what you said the other day: it's a big check for Clara's estate. I followed you, believe me. That's who sues, right?

  The estate? I'm sure there's lots of money to be made here.

  But I wanted to try to explain this to you, since I did a piss-poor job of that the last time we talked. Maybe you'll reconsider."

  Stern, who had lost Nate entirely for a moment, like a plane off the rndar, suddenly had it all, everything, clearly in focus. Nate was Clara's doctor. Her physician.

  No more. Stern opened his mouth to speak, but Nate, 'hanging his head down, remained under way.

  "I'm not gonna pretend that I'd handle the situation the same way today.

  I've looked backwards and I see that there were a hundred different th'mgs I could have done. In retrospect, I should have brought a shrink in. That's obvious.

  Maybe I should have involved you, too. But I was trying to keep her faith."

  "Nate," said Stern softly, "I was overwrought during our last conversation. There will be no lawsuit concerning your care of Clara."

  "No?" Nate took a moment to adjust to the thought. "That's a hell of a relief."

  The two men looked at each other. Nate, chilled by the house's air conditioning, rubbed his arms.

  "She spoke to you of this impulse, I take it?" asked Stern.

  "Ending her life?"

  "She did," said Nate. "She had a way of talking about it."

  Nate posed, studying the air so he could recall. "She said she wanted to put out the noise. Something like that. You know, she didn't always go on that way, but over seven years, when things got bad, I'd hear it once in a while.

  And I canit pretend I didn't take her seriously."

  Nothing, For an instant: no sound; no time, "Seven years," the man had said. Looking down, Stern realized he'd taken a chair;

  "Seven years, Nate?"

  "God-I'd assumed-" Natestopped. "Well, how would you know?" he asked himself. "Sandy, this wasn't a new condition. It was a recurrence."

  "A recurrence?."

  "You understand: she wasn't newly infected. This disease in some people returns. A6out two-thirds of all cases.

  Usually, it goes on for a couple of years. It gets better and better and finally peters out. But sometimes, pretty rarely, you can have bad episodes a number of years apart.

  That's what happened to Clara. I treated her originally about seven years ago. I really thought that what happened now was going to happen then. The only thing that kept her from giving up was the fact that you weren't around.?"

  "I was not?" asked Stern. "Where could I have been?"

  "Kansas City,. as I recall," said Nate. "Some trial?"

  "Ayayay." Oh, it was terrible. It was the most shameful moment of his life, but he sat there, in his wicker chair, with his eyes closed, thanking God. Seven years ago. That at least neared the periphery of comprehension. Then, eventually, he was taken by a new thought: "My Lord, Nate, after all that time, what was there to hide?"

  "Sandy, I think in her eyes it was worse. Beeduse she had said nothing for so long. In some ways, she seemed to feel it was kind of an added deception. And being further from it, she was less accepting of her own behavior. Wh
atever she'd been thinking back then, she couldn't understand it now. It was this old, awful mistake that she couldn't get away from. And I didn't even know what to tell her anymore, ' ' "You mean medically, Nate? There were no answers?"

  "You have to understand the whole history." Nate looked into his glass.

  "She'd been treated for years with acyclovir. It saved her life originally. I mean it. I got things under control, just like that. She took it preventively for six months. But the drug's toxic enough that they warn against taking it longer. Eventually, she had recm'mnces. Two tiny ones, about two, three years apart. But with the drug-" Nate snapped his fingers. "We'd put her back on, and then five days from onset, good as new. I mean, it was always a trouble and a worry as far as she was concerned. The faintest sign, and she was in my office. I must have cultured her three times a year. But, you know, it was under control. All in all. I thought it was." Nate, who had raised both hands, made a face and let them fall.

  "About six weeks before she died, it flared up again. She took her pills and they didn't help. She had a full, florid course. We see that all the time with other viruses or bacteria-some kind of auto-mutation, so you end up with a resistant strain. She had a bad couple of weeks.

  And then it came back again. I consulted everybody I knew, but it was so damn unusual, and the virus is unpredictable to begin with. And by then she was talking pretty seriously about doing what she did. I could see her giving up. One time, just kind of like thinking out loud, I said something about talking to you, one of us, and I thought she'd jump right out the window. No way." He repeat:l that and, as many times before in this talk, shook his head.

  "Anyway, I'd thought I'd talked herinto trying one more course of medication. Double dosage for five days. That was what was recommended to me. But I had that conference in Montreal. And, to make a long story short, I went. That's where I get really critical of myselL" Nate was bent again, almost doubled over, studying his soiled hands. Behind him, out the large windows, the sky was pinking over, and the sun, dying in ember radiance, was masked in thin clouds. "I knew she was in crisis. I talked to her about my going. I gave her the chance to tell. me not to, but Clara would never say something like that. You know, she promised me nothing would happen, I gave her all the pills she'd need while I was gone-she said she'd just hide them. And I," said Nate, "I had consulted with another doctor who was aware of the situation, and I hoped he could just kind of watch things for me. But it was my responsibility. If wanted to play confessor, then I had to know what I was doing/"