Innocent kc-8

by Scott Turow

  I nodded. That made some sense, although those questions had never crossed my mind.

  'One of the coppers has got a note that you said your father didn't want to call the police?'

  'He was blanking. That's all. I mean, he's been around long enough to know somebody has to call the cops, right?'

  'Seems like that to me,' said Detective Debby.

  'Yeah, but it was the situation,' I said. 'I mean, this heart stuff ran in her family, but my mom was in great condition, worked out, stayed fit. Did you ever lose somebody you loved without warning? It's like there's no gravity all the sudden, like everything is just floating around. You don't know if you should stand up or sit down. You can't really think about doing anything. You just need to get a grip.'

  'Anything look out of place when you got there?'

  There was something out of place all right: My mother was lying dead in my parents' bed. How could this detective really think I'd remember anything else? My father had laid both of her hands out on the covers, and she had taken on a color, pale as water, that by itself left no question she was gone. I don't know how young a kid is when he figures out his mom and dad are headed to the exits before him. But age never seemed to have touched my mother. If one of them was going to just hit the floor, I would have expected it to be my father, who seems a little puffy with age and complains a lot about his back and his cholesterol.

  'And when was the last time you were together with your mom?'

  'The night before. We had dinner at the house. My girlfriend and me.'

  'And how'd that go?'

  'It was the first time the four of us had a meal together. Everybody seemed kind of nervous, which was weird because my girlfriend knew my parents before we started going out. But you know, sometimes that makes things harder, changing context with somebody? And, I think my parents have always been secretly worried that I'd end up alone, too moody and stuff, so this was kind of a big deal. Do you have kids?'

  'Oh, yeah. All growed up, just like you.' That sounded strange to me, the way she put it. I don't think either of my parents would have described me as all grown up. Truth, I might not have used those words myself. 'My son, he works for Ford, has two of his own, but my daughter, she ain't married and I don't know she ever will be. Like her mom, I guess, wants to go it alone. Her father? That man was an absolute rat, but now sometimes I wish I hadn't of told her so often. She's on the job. Tried to talk her out of it, too, but she just had to do it.' The way she tossed her head in wonder made us both laugh, but she went right back to asking about the night before my mom died.

  'How'd your mom seem to you? Happy? Unhappy? Anything stick out in your mind?'

  'I mean, my mom-you know, she's been treated for bipolar for years, sometimes, you can see she's struggling. Could see.' I grimaced over the tense. 'I guess that it all seemed pretty normal to me. My mom was a little high-strung, I'd say, and my dad was quieter than usual, and my girlfriend was nervous.'

  'You say this was for dinner,' said Detective Diaz. 'Remember what you all ate?'

  'Ate?'

  She looked at her pad. 'Yeah, somebody wants to know what you ate.' She shrugged, like, Don't ask me, I just work here.

  That was the last time I saw my mom, so the night had been on replay for weeks and the details remained incredibly fresh. I had no trouble answering the detective's questions about who cooked and what we ate, but it just made no sense to me, and somewhere along I began to realize I needed to shut up.

  'And who poured the wine for your mom while you were eating dinner? Your dad again?'

  I gave the detective a look.

  'I'm just trying to think of every question somebody could possibly ask,' she said. 'I don't want to have to bother you again.'

  'Who poured the wine at dinner?' I asked aloud, as if I didn't really recall. 'Maybe my dad. He has this Rabbit corkscrew my mom never could figure out. But I'm not really sure. It could even have been me.'

  Debby Diaz asked another question or two, to which I gave similarly vague answers. She probably realized I was shining her on by then, but I really didn't care. Finally, she smacked her thighs and headed to the door. Once she had it open she snapped her fingers.

  'Say, what's your girlfriend's name? Might be I need to talk to her.'

  I had to keep from laughing. Some detective. Standing in the woman's condo and absolutely no clue. But I shook my head as if I didn't know the answer. Diaz gave me a really tough look then. We were both done pretending.

  'Well, that can't be a secret,' she said. 'Don't make me have to find out.'

  I told her to leave a card and said I'd get it to my girlfriend.

  I had reached my dad on his inside line before the detective was through the lobby downstairs. He'd voted when the polls opened, then gone to work as if it were a normal day, even though there were no normal days for either of us just then.

  He sounded so happy when he heard my voice. He always is when I call. But I couldn't speak for a second. I hadn't fully realized what I was going to say until just then.

  'Dad,' I said. 'Dad, I'm really scared you may be in trouble.'

  CHAPTER 24

  Tommy, June 22, 2009

  Tommy Molto had always had mixed feelings about Sandy Stern. Sandy was good, there was no doubt about that. If you were a cobbler and took pride in your craft, then you had to admire somebody who found flawless leather and made shoes that wore like iron and felt like velvet on the foot. Sandy was a maestro in the courtroom. An Argentinian who'd come here in the late 1940s during the turmoil with Peron, he still played the polished Latin gentleman sixty years later, with a trace accent that enhanced his speech like some fancy seasoning-truffle oil or sea salt-and the manners of the staff in an expensive hotel. His routine went down better than ever these days, when an occasional aside en espanol could be interpreted for other jurors by at least two or three of their number.

  But you had to watch Sandy. Because he appeared so elegant, so proper, he got away with more stuff than the average drug court hustler. Tommy knew that all the crap that rained down on him during Rusty Sabich's first trial, the subtle accusations of taking part in a frame-up, had been concocted by Sandy, who in the years since acted with Tommy as if nothing of consequence had happened, rather than putting a place holder on Tommy's life that was still there today.

  At the moment, Sandy was tussling with cancer. From the look of it, things were not going well. He had the Daddy Warbucks haircut and had parted with a good sixty pounds, and the drugs had given him a rash that seemed to be literally burning through his face. Just a few minutes ago, before court resumed, Tommy asked Sandy how he was doing.

  'Stable,' said Sandy. 'Holding my own. We'll know more in a few weeks. Some good signs with the latest round of treatment. Despite becoming the Scarlet Pimpernel.' He pointed to his cheek.

  'In my prayers,' said Tommy. He never told someone that without carrying through.

  But that was how it went with Sandy Stern. You prayed for his soul, and he mounted you from the rear. The defendant never testified first. The accused was always the last act in a trial, the star attraction, who went on at the final possible minute, so the wisdom of testifying could be evaluated in light of all the other evidence and so the defendant would make the biggest impression on the jury as they deliberated. Not that Tommy has been taken totally by surprise. He had figured all along Rusty might be coming, ever since Judge Yee's pretrial ruling, in chambers, out of earshot of the press, that nothing of the first trial-not the new DNA results nor Carolyn Polhemus's murder, nor any of the related legal proceedings-was ever going to be mentioned in this courtroom. But Tommy was planning to spend the next few nights preparing, getting Rusty's cross sequenced, playing it through with Brand. Now it was going to be like Tommy's days in drug court thirty years ago, when there were so many cases that you couldn't get completely ready for any of them and had to cross from the seat of your pants. In those days, when the rare defendant chose to testify, the first thing you
wanted to ask him was to remind you of his name.

  Standing at the defense table, pretending to examine his notes as if there were actually some order to what he'd scribbled down, Tommy was visited by a stillness that had been with him throughout the case. Nobody would ever mark Tommy as relaxed in the courtroom, not in this trial or any other, but at night, when the trial process usually left him a mass of teeming anxieties, he had been more or less at ease, able to sleep through the night beside Dominga, rather than rising several times as had been his routine over the years. The impact of this verdict on his future and his family's, on the way he would forever be perceived, was so large that he knew he simply must accept the will of God. Ordinarily, he did not like to believe God wasted His time worrying about a creature as unimportant as Tommy Molto. But how could Rusty have come around again, against all the odds, if the outcome in the first case didn't cross some rule of divine justice?

  Tommy's mood had also been fortified by the fact that the prosecution evidence turned out to make a prettier package than he had foreseen. After trying cases for thirty years, Tommy knew that at this stage of the proceedings, you drank your own Kool-Aid. You needed to believe you were going to win to have any chance of convincing the jurors, even while you had to remain in the grip of paranoia. And he was wary. There was no telling yet what Stern was up to, but from long experience with the man, Tommy expected the unexpected.

  The opening statement Sandy gave when the trial began two weeks ago was a bland mantra of 'reasonable doubt,' in which Stern invoked the term 'circumstantial proof' no fewer than eighteen times: 'The evidence will not show a confession, an eyewitness. The evidence instead will consist almost entirely of the conjecture of various experts about what might have happened. You will hear experts from the prosecution, and then equally if not more qualified experts from the defense who will tell you that the prosecution's experts are quite likely wrong. And even the prosecution's experts, ladies and gentlemen, will not be able to tell you with any certainty that Mrs. Sabich was murdered, let alone by who.' Before the jurors, Stern had paused with a troubled frown, as if it had just occurred to him how inappropriate it was to charge somebody with murder on such a flimsy basis. He was gripping the rail of the jury box for support-having come several feet closer to them than any judge in this county would normally permit. Despite the summer heat outside, Stern wore a three-piece suit, undoubtedly from his stoutest period, so it hung on him as shapelessly as-no coincidence-a hospital gown. There was nothing that happened in life that Sandy Stern would not contrive to use to advantage in the courtroom. His whole being was tilted that way, he couldn't help himself, the same as some guys who could not stop thinking of sex or money. Even looking as repulsive as a figure from one of the Friday the 13th movies was something he had figured out how to use for his client's benefit, Sandy's mere presence seeming to suggest that he had risen from his deathbed to prevent a savage injustice. Free Rusty, he seemed to say, and I can die in peace.

  There was no telling if the jurors were buying that, but if they were paying attention at all to the State's evidence, they had to recognize that the prosecutors had a point. After some debate they had called Rusty's son, Nat, to start the case. That was risky, especially since Yee had already ruled that when Nat climbed down from the witness stand, he would be allowed to remain in the courtroom to support his father, notwithstanding the fact that he was going to testify again for the defense. Still, it was always a nice touch when you got your evidence from the other side, and Nat was a straight kid, who, sitting here day after day, often looked to have his own doubts. On the stand, the younger Sabich gave up what he had to-his father not wanting to call the cops after Barbara died, or the fact that the night before she bought it, Rusty had cooked the steaks and poured Barbara's wine, giving him ample opportunity to slip his wife a lethal dose of phenelzine.

  The PAs put on Nenny Strack next. She was better than she'd been in Tommy's office, but even so, she took back almost everything on cross-examination. Still, they were stuck with her. If they'd called a different toxicologist, then Strack would be up there testifying for the defense, undercutting the other guy and saying she'd expressed all those doubts to the prosecutors. Instead, Brand cleaned up the mess with the coroner, who offered the opinion that Barbara had died of phenelzine poisoning. Dr. Russell had a lot to eat on cross, and Marta Stern had fed it to him piece by piece. She emphasized that Russell had believed initially that Barbara died by natural causes and, given postmortem redistribution, still could not definitively rule out that possibility.

  From that valley, the prosecution had steadily climbed back into sunshine. Barbara's own pharmacologist got up there briefly to say he'd warned her repeatedly about the dangers of phenelzine and the foods she needed to avoid when taking it. Harnason was Harnason, sneaky-looking and strange, but he stayed on script. His sentence was going to drop from one hundred years to fifty in exchange for his testimony, but Harnason seemed to be the only person in the courtroom who didn't realize he was going to die in prison. He was the first witness Stern cross-examined rather than Marta, but it was an oddly understated performance. Sandy barely bothered flaying Harnason with the ugly facts he had already acknowledged during Brand's direct examination-that Harnason was a veteran liar and cheat, a fugitive who had already broken his oath to the court when he ran, and a murderer who had slept beside his lover night after night at the same time he knew he was poisoning him. Instead, Stern spent most of his time on Harnason's first prosecution thirty years ago, encouraging the man to rumble on about how unjustified his prison sentence was and how Rusty's decision had basically ruined his life. But Stern did not directly challenge Harnason's testimony that Rusty tipped him about the appellate court's decision or asked what it felt like to poison someone.

  George Mason, the acting chief of the court of appeals, had followed Harnason with a lengthy dissection of the judicial canons, quite damaging to Sabich, even though on cross, Judge Mason, admittedly Rusty's longtime friend, reiterated his enduring high opinion of Sabich's integrity and credibility.

  Slick but visibly nervous as a witness, Prima Dana Mann testified that his practice was limited to matrimonial matters and admitted consulting with Rusty twice, including once three weeks before Barbara died.

  Then the case had ended with the best stuff the prosecution had: Rusty picking up the phenelzine, the fingerprint results from Barbara's medicine cabinet, Rusty's shopping trip the day Barbara died, and finally Milo Gorvetich, the computer expert, who laid out all the incriminating stuff they'd mined after seizing Rusty's home computer.

  Once the prosecution rested, Marta had made an impassioned argument that the prosecution had failed to establish corpus delicti, meaning they had not offered evidence from which a jury could find beyond a reasonable doubt that there had been a murder. Judge Yee had reserved ruling. Usually that was a sign that the judge was considering flushing the case if the jury didn't, but Tommy tended to think it was just Basil Yee being himself, as aloof and cautious as certain house cats.

  Now, as Tommy flipped through his yellow pad while he stood at the corner of the defense table, Jim Brand, still smelling of this morning's aftershave, scooted his chair over and leaned close.

  "You going to ask about the girl?"

  Tommy did not have much hope on this point, but he felt Yee was wrong to start. He stepped forward. Yee had been attending to other papers and finally looked down at Molto below the bench.

  "Your Honor, may we be heard before I begin?"

  The jury, into the third week of trial, knew what that meant and stirred in the box. Out of deference to Stern, who could not stand long at any of the whispered conferences beside the bench, the judge cleared the courtroom for sidebars. The jurors disliked the shuttling in and out, especially since it meant they were being treated like children who mustn't hear what the grown-ups were talking about.

  Once they were gone, Molto took another step closer to the bench.

  "Your Honor, since
the defendant has chosen to testify, I'd like to be able to ask him about the affair he had the prior year."

  Marta shot up at once to object. In a setback Tommy had not anticipated, Judge Yee had granted the defense motion to keep the prosecutors from showing that Rusty had been seeing another woman in the spring of 2007. Marta Stern had argued that even accepting the State's iffy evidence that Sabich had been unfaithful-the hotel sightings and the STD test-the behavior, particularly the chief judge's alleged pattern of pinching off cash from his paychecks to finance the affair, had ceased fifteen months before Barbara's death. In the absence of anything to show he had been seeing this woman when Mrs. Sabich died, the proof was irrelevant.

  'Judge, it shows motive,' Tommy had protested.

  'How?' asked Yee.

  'Because he may have wanted to be with this woman, Your Honor.'

  ' "May"?' Judge Yee had moved his head from side to side. 'Proving Judge Sabich had affair sometime before-that not proof he a murderer, Mr. Molto. If that proof,' said the judge, 'lot of men are murderers.' The press, in the front row for the pretrial proceedings, had roared as if the quiet country judge were doing stand-up.

  Now Marta, with her red ringlets like Shirley Temple and a brocaded jacket, came forward to oppose Tommy's efforts to ask the same questions the judge had disallowed prior to trial.

  "Your Honor, that's obviously unacceptably prejudicial. It injects speculation that Judge Sabich had an affair, something which the Court has already recognized is irrelevant to these proceedings. And it's unfair to the defendant, who made his decision to testify based on the Court's prior rulings."

  "Judge," said Tommy, "the whole point of your ruling was that there was no evidence whether the defendant was seeing this woman, whoever she is, at the time of the murder. Now that he's up there, aren't we at least entitled to ask about that very point?"