The Burden of Proof kc-2

by Scott Turow

  Two older men slept; a young thuggish man, with heavy sideburns and long, greasy hair, read the. paper. Some listened abjectly. A slender, attractive, middle-aged woman sat with a pad, taking notes for her own benefit. There was no window, no natural light.

  "Where do you reside, Mr. Stern?"

  He gave his home address, and in response to the next question answered that he was an attorney. Sonny moved to the table.

  "Mr. Stern, I show you what the court reporter has marked as G.J. 89-86 Exhibit 192. Do you recognize it?"

  It was the subpoena she'd served on him. One hundred ninety-two exhibits, Stern thought. John had been a busy fellow. No question, the investigation was nearly complete, indictment was near. Klonsky established Stern's receipt of the subpoena and had him read the text aloud.

  "Now, Mr. Stern, do you have in your possession, custody, or control the safe referred to?"

  "I decline to answer."

  "On what grounds?"

  "The attorney-client privilege."

  Klonsky, who expected this, turned to the grand jury foreperson, a gray-haired woman with glasses.

  "Ms. Foreperson, please direct the witness to answer."

  Abashed by the thought of a speaking Part in the drama that occurred routinely before her, the foreperson barely glanced at Stern and said simply, "Answer."

  "I decline," said Stern.

  "On what grounds?" asked Klonsky.

  "As stated."

  Sonny, who up until now had been proficient and formidable, appeared to have second thoughts. Her pregnancy had progressed to the point that it had wholly erased her usual solid grace. She waited before him, with her own thoughts and a rankled look. "Mr. Stern, I advise you that I shall have to ask the chief judge to hold you in contempt."

  "I intend contempt for no one," said Stern, Klonsky asked the grand jurors to recess so that Stern and she could proceed to Chief Judge Winchell's chambers. The grand jurors were more or less familiar with this trip, since they strolled down the block en masse and appeared before Judge Winchell each week to return indictments.

  Stern, now and then, had seen them coming, a covey of happy executioners. It was a function to them, $30 a day, part of the customs of the law as arcane as the habits of the Chinese. For the defendant, it was often the end of a respectable life.

  Sonny threw open the jury room door, and Marta, dressed in a dark suit and nylons-nylons!-peered inside.. "What's up?" she asked her father.

  "We are on our way to see the chief judge."

  On her face, Stern saw his own reflective Latin expression, accepting the inevitable.

  The group-Sonny, Sandy, Marta, and Shirley, the court reporter, who was also required-waited silently in the corridor for the tardy elevators of the new federal building, "I called Stan," said Sonny. "He'll meet us there." The U.S. Attorney was going to smite his staff and call for justicel It was evident that to a degree Stern had never fully appreciated Sennett hated his guts. Shame, spite, humiliation; the bitter yearning for self-respect. Human beings, thought Stern, were such pitifully predictable creatures.

  The small Party walked down the teeming avenue in the summery heat.

  Shirley had packed her machine and notes in a small case, and toted it along on one of the little wheeled carrying racks that airline stewardesses use for their luggage. She talked to Stern about her children. The youngest, in college at the U., hoped for a career in radio and TV. Sonny and Marta, in spite of themselves, got along admirably. They had finished law school at virtually the same time and had mutual acquaintances. A.fellow named Jake, a law school friend of Marta's, had clerked with Sonny in the Court of appeals.

  Sennett, in his flawless blue suit and perfect shirt, waited for them in the judge's anteroom. As they walked through the door, the U.S.

  Attorney was, literally, studying his nails. He shook Marta's hand, and Stern's.

  Feeling somewhat surly, Stern did not return his greeting.

  . After a minute, Moira Winchell's door opened and the chief 3udge swept a hand to usher them in. She was in a straight skirt, and her hair, more and more visibly shot through with gray, was held back by a headband today, so that she looked a bit schoolgirlish.

  "Well, I can't say I'm happy to see any of you." She called out the side door for her own court reporter.

  The group was seated again at the judge's conference table, solid as a fortress. The light of the day fell through the heavy windows, long parallelograms of brilliance that gave the rest of the room a kind of prison gloom by contrast.

  Pure metaphor, thought Stern of the association.

  "On the record," Judge Winchell said to her court reporter.

  "Mr. Sennett, I take it you have a motionT"

  Stan raised a hand to Sonny, who drew out of a manila folder a short written motion which had been prepared in advance. It asked that Stern be ordered to reappear before the grand jury and to respond to the questions he had refused to answer. Reappearance was required because the grand jury had no power of its own to compel him to respond. It was only for violating the judge's order to answer that Stern could be found in contempt-and jailed.

  Moira put the motion aside.

  "All right, let's hear what happened. This is the court reporter?"

  Shirley was sworn, and read from the narrow stenotype pad in a singsong voice, stumbling at moments as she interpreted the symbols. The judge's court rep6rter, Bob, sat beside Shirley, taking it all down on a machine of his owm "Answer by Mr. Stern," she read at the conclusion," '! intend contempt for no one,'"

  Stern saw Sennett, at the foot of the table, frown. Stan was not buying anY.

  "All right, Ms. Stern," said the judge, careful with her record, "What do you say to the motion?"

  "We object, Your Honor." Marta said that whether Stern had received or retained the safe were both questions that implicated communications with his client. She asked for a week to present a brief in support of that position, and Sennett, speaking for the government today, objected in his usual tone of suppressed vehemence. Briefs were unnecessary on this issue, he said, and would unfairly delay the grand jury's final action. Marta fought back bravely, but the judge eventually sided with the government. She would never tolerate briefing each question Stern was asked.

  "If you have cases, I'll read them right now," the judge said.

  Marta did. From her briefcase, she removed photocopies of various judicial opinions speaking. to the breadth of the attorney-client priviIege, and passed copies to the judge and the prosecutors. The company, including the two court reporters, sat silently while the judge and the lawyers read.

  Stan clearly remained intent on indicting quickly.

  Yesterday morning, Stern had received a letter from the Department of Justice granting him an appointment with the Organized Crime and Racketeering Section at 9 A.M. next Tuesday in Washington, D.C. If it went as usual, the meeting would be brief, polite, and entirely perfunctory. By two weeks from today at most, prosecution would be approved and Dixon Hartnell would be a former powerhouse, become instead the carcass for a three- or four-day media feeding.

  That Thursday morning the business pages would banner the rumor of his imminent indictment, as the result of a leak from the man at the end of the table. Then, following return of the charges that day, Stan would hold a news conference and read his press release with a still-eyed intensity that would make him appear properly tough whet/his sound bite flickered up on the evening news. On Friday morning the indictment would command the front page here, and probably an item in the Journal and The New York Times. Following that, the weekend papers would run a lengthy rehash, comparing Sennett's initi/(ive in combating corruption on the Kindle County Futures Exchange with others around the nation, or, even worse recounting the tragic rise and fall of Dixon Hartnell.

  And while his reputation was devastated, the actual bricks and mortar of Dixon's business life would begin to collapse. Competitors would vigorously woo Dixon's stunned clients, and key employee
s would start freshening their r6sum6s. In light of the RICO charges, a restraining order would be entered at once, tying up all of Dixon's visible assets, so that S:tern would have to call Klonsky for permission before Dixon could cash a check for spending money. The reporters would lurk outside Dixon's home and call him on his private line at work. And Dixon, everywhere, would see some refle of aversion or harsh judgment pass behind the eyes of each person he met. To Stern, this remained unfathomable-it was impossible to think of Dixon brought so low or, more pertinently, being able to soldier on in the face of such disgrace.

  "Here's what I think," said the judge. She had finished reading Marta's cases and apparently was not even going to allow argument. "I think these opinions are not on point.

  In this circuit, under decisions like Feldman and Walsh, an attorney must make a specific showing in support as to each question asked or item sought for which the privilege is claimed. The privilege must actually, not potentially,.apply. From this I conclude that the privilege does not protect Mr. Stern or any other witness from answering whether he has a subpoenaed item in his possession. Otherwise, the court and counsel might become embroiled in lengthy proceedings that are, in reality, pointless. Accordingly, Ms. Stern, I am going to overrule your objection and order your client to answer. Now." The judge laid her long hands on the ta-bletop. She wore no jewelry other than a slim wedding band, and her nails were unpolished. "I would like to know whether or not your client. intends to respond, since I'd rather have some time to reflect before dealing with any contempt. Why don't you use my study to confer?"

  "I think she's right," said Maa as soon as she had closed the door to the study.

  "Of course, she is," said Stern. The room was com-pactprobably the quarters for a scrivener when the building was first erected. There was a wall of books, and various photos of Jason Winchell, and also a dog, an Irish setter, in the phases of its life from puppyhood to mothering a litter. The dog's eyes were green and eerie in the light of the flash as her pups suckled beneath her. "Your desire is that I answer this question?"

  "That's my advice," said his daughter.

  They returned to the table. Marta said that Stern would answer. The prosecutors showed nothing, but the judge nodded. She was pleased.

  "All right, now," said the judge. "What's the next question going to be? I'd like to avoid wasting the grand jurors' time-I don't want all of you trooping back and forth repeatedly."

  "Well, what's the answer to the question?" asked Sennett.

  The judge looked at Stern, and Marta raised a hand to prevent her father from speaking.

  "I believe my client will indicate that he has the safe in his possession." Marta knew this much, having seen the safe in the office again. But Stern had kept to himself what had further transpired between Dixon and him, and Marta,. to her credit, had not inquired. She took seriously her ftther's obligation to maintain Dixon's confidences.

  With the news that Stern had the safe, Sennett wheeled about and gave Klonsky a look. Perhaps he had been betting against that. Sonny did not respond. In the grand jury, she was businesslike, but now, confronting the consequences she was considerably less animated and seemed increasingly withdrawn from the proceedings, which Sennett was conducting more or less on his own. She was paler, showing less of her usual rosy glow. Stern could not help thinking of Kate or taking small comfort from what he viewed as signs of Sonny's sympathy.

  "Next question," said the judge again.

  "The next question," said Sennett, "is whether the safe, including its contents, is in the same condition as when Mr. Stern received it or whether, to his knowledge, anything has been removed."

  Marta started to object; but the judge was already shaking her head. One question at a time, she told Sennett. He whispered to Klonsky, who somewhat listlessly shrugged.

  "The question," he said, "is whether, to the best o.f Mr. Stern's knowledge, anything has been removed from the safe since the time the subpoena was served."

  This, regrettably, was a clever improvement. As re framed, the question followed the lines of the judge's prior ruling and went no further than asking whether Stern had maintained possession of what had been subpoenaed from him.

  Sennett was working in increments. If Stern answered that nothing had been removed since Sonny served him, Sennett would attempt to move back to the time Stern had received the safe. That might be more objectionable. Of course, Stern realized, he was never going to answer the first question.

  "All right now, Ms. Stern, any objection to that question?"

  "Asking him if he knows," said Marta, "doesn't distinguish between what his client might have told him and what he has learned on his own."

  "We'll limit the question to exclude any communications with his client," interjected Sennett.

  "So the question, then," said the judge, "is, leaving aside client communications, does Mr. Stern know of anything removed from the safe since the time the subpoena was first served upon him?"

  Sennett nodded. That was the question.

  "Any further objections?" asked the judge.

  Stern whispered to Marta: Assert privilege. She did, stating that the question still called upon knowledge gained in the attorney-client relationship and might reveal the attorney's own mental impressions.

  "Very well," said the judge, "I'll overrule those objections. This question, no less than the one before it, simply deals with what is and is not in respondent's possession, without regard to client communications.

  Therefore, I'll order Mr. Stern to answer. Again, I'd prefer to know now whether he intends to respond." The judge once more gestured grandly to her study.

  "No," said Stern when they were alone.

  "Daddy!"

  "I shall not answer."

  "Why not?"

  "I cannot respond." There was a small sofa, a love seat of heavy brown tweed, and Stern fell down upon it. He suddenly felt quite tired. Marta remained on her feet. "You told me before he took the safe that he'd never let you open it."

  "True," said Stern.

  "So you don't know if anything has been removed,"

  Marta stared at her father. "How could you know?" He shook his head-he would not answer, "Come on," she said.

  Stern glanced up at the walls-the judge had various citations there, a medal from a woman's group. As Stern would have guessed, she kept acluttered desk here in her private space..

  "If I were to answer," said Stern, "that to my knowledge the contents of the safe are not the same, what would transpire?"* "They'd ask you what's missing, how you know it's gone, who had access to the safe, where it was Iocated, whether you know who's got what was taken." Marta was counting off the questions on her fingers.

  "And would our privilege' objections to such questions be sustained?"

  "Maybe. To some of them. It depends how you know."

  "Perhaps to some. But certainly Judge Winchell would require that I state who had access to the safe or where it may have been located."

  "Thaffs a reasonable guess," Marta said. "Are you really' telling me that he took something out of there and you know itT Once more, he refused to answer her,.

  "Dad-' "Marta, if I testify that Dixon took the safe, that Dixon returned the safe, and that some item is missing, vhat inference will the prosecutors and the grand jury draw?"

  "That's obvious. ' "Just so," said Stern. "And thus I cannot indulge this line of inquiry.

  I shall not give answers that imply wrongdoing by my client. Nor, frankly, have I any intention of responding to questions from anyone about the safe's contents." ' "On what grounds?"

  Stern, baffled, thought an instant. "The right to privacy.."

  There was no such thing in criminal proceedings. They both understood that. Marta studied her father. Stern knew the internal race taking place, the mind dashing ahead of the emotions. Somewhere, ff she was nimble enough, there was an argument to be made that would persuade him, save him from himself. Her small dark eyes were intent..


  "You're not being asked any of those questions now," she said. "All they want to know is whether the contents of the safe are the same. Yes or no. If you have a problem later, we'll deal with it then."

  "I refuse. Once we start down that road, there is no logical stopping point."

  Marta groaned. "What was in the safe?" Stern shook his head. "How do you know?" He shook his head again.

  Marta watched him with the same driven concentration.

  "Aunt Silvia," she said at last. "She told you. You're protecting her."

  "You are brilliant, Marta, but not 'correct."

  "I don't undtrstand this," Marta said. "I don't understand what you think you know..And I don't understand your loyalty to him. Don't you hate him? After all the stuff he's pulled?"

  Stern hesitated.

  "Come on," said his daughter.

  "I have a duty to Dixon. The government can seek evidence against him in every other comer of the world, and seems to have done so. He is entitled to know that his lawyer will not join the melee."

  "You don't have a duty to violate court orders. This is a matter of personal philosophy, not law."

  "So far as I am concerned, Marta, this is not discretionary. And if it were, I would not use the legal system to settle my differences with Dixon."

  Frustrated, Marta threw down her hand.

  "What about the Fifth?" she asked suddenly.

  "No," said Stern. "In my judgment, Dixon has no Fifth Amendment rights in these circumstances."

  "No, no. What about you? You can be innocent and assert the Fifth. If you disclose that something was taken while you were under subpoena, you might be incriminating yourself.

  You've got a Fifth." Marta was excited. She had convinced herself this was the solution.