Innocent kc-8

by Scott Turow

"Fifteen years."

  "A prosecutor for fifteen years, and a judge for twenty more, it didn't occur to you that this man wanted to know the decision in advance so he could run away?"

  "He appeared very upset, Mr. Molto. He told me, as he admitted when he testified, that he was overwhelmed by anxiety."

  "He conned you?"

  "I think Mr. Harnason said he decided to flee after learning about the outcome. I don't deny I shouldn't have told him, Mr. Molto. And I don't deny that one of many reasons that was wrong was because it ran the risk he would jump bail. But, no, at the time, it didn't occur to me that he would run."

  "Because you were thinking of something else?"

  "Probably."

  "And what you were thinking about, Judge, was poisoning your wife, wasn't it?"

  This is the artifice of the courtroom. Molto knows that my dad was probably worried about being nabbed with the girl he was screwing. And can't say that. He must be satisfied with answering, simply, "No."

  "Would you say, Judge, you were doing Mr. Harnason a favor?"

  "I don't know what I'd call it."

  "Well, he was asking for something improper and you obliged him. Right?"

  "Right."

  "And in return, Judge-in return you asked him what it was like to poison someone, didn't you?"

  The time-honored strategy on cross-examination is never to ask a question to which you don't know the answer. As my father has explained to me many times, that is not a rule of unlimited application. More properly put, the rule is never to ask a question to which you do not know the answer-if you care about the response. In this case Molto must feel he cannot really lose. If my father denies saying asking what it was like to poison someone, Molto will verify Harnason by going over the many other parts of the conversation my dad has already acknowledged.

  "There was no 'in return,' Mr. Molto."

  "Really? You're telling us that you violated all these rules in order to give Mr. Harnason a piece of information he desperately wanted-and you did that without thinking Mr. Harnason was going to do anything for you?"

  "I did it because I felt sorry for Mr. Harnason and guilty about the fact that when you and I were both young prosecutors, I had sent him to the penitentiary for a crime that I now see didn't merit that punishment."

  Caught, Tommy stares at my dad. He knows-and so does everybody in the courtroom-that my dad is trying to remind the jury not only about his past relationship with Tommy, but that prosecutors sometimes go too far.

  "Now, you heard Mr. Harnason's testimony?"

  "We've already agreed to that."

  The response, slightly snippy, is the first time my dad has seemed in less than complete control. Stern sits back and looks straight at him, a cue to mind himself.

  "And are you telling us he lied when he said that after revealing the decision in his case, you asked him what it was like to poison someone?"

  "I do not remember the conversation exactly as Mr. Harnason did, but I do remember that question being asked."

  "Being asked by you?"

  "Yes, I asked him that. I wanted-"

  "Excuse me, Judge. I didn't ask what you wanted. How many trials have you taken part in or observed as a prosecutor or a trial judge or an appellate court judge?"

  On the stand, my dad smiles ruefully about the long march of time.

  "God knows. Thousands."

  "And after thousands of trials, Judge, you understand that you're supposed to answer the questions I ask you, not the questions you wish I asked?"

  "Objection," says Stern.

  "Overruled," says Yee. Tommy might be hectoring a regular witness, but this is fair game with a judge on the stand.

  "I understand that, Mr. Molto."

  "I asked just this: Did you ask Mr. Harnason what it was like to poison someone?"

  My father does not pause. He says, "I did," in a labored tone that suggests there is much more to it, but the answer nonetheless sets off one of those little courtroom murmurs I always thought were corny on shows like Law amp; Order, which I watched habitually as a kid, the next best thing to videotapes of my dad at work. Tommy Molto has scored.

  In the interval, Brand motions Tommy to the prosecution table. The chief deputy whispers something, and Tommy nods.

  "Yes, Mr. Brand just reminded me. To be clear, Judge, Mr. Harnason had not been recaptured when your wife died, had he?"

  "I think that's right."

  "He'd been gone more than a year?"

  "Yes."

  "So when your wife died, Judge, you had no reason for serious concern that Mr. Harnason would be telling the police that you'd asked him what it was like to poison somebody?"

  "Frankly, Mr. Molto, I never thought about that part of our conversation. I was much more concerned that I'd unwittingly given Harnason reason to flee." After a second, he adds, "My conversation with Mr. Harnason was more than fifteen months before my wife died, Mr. Molto."

  "Before you poisoned her."

  "I did not poison her, Mr. Molto."

  "Well, let's consider that, Judge. Now, did you read the transcript of Mr. Harnason's trial in deciding his appeal?"

  "Of course."

  "Would it be fair to say you read the transcript carefully?"

  "I hope that I read every trial transcript carefully in deciding an appeal."

  "And what Mr. Harnason had done, Judge, was poison his lover with arsenic. Is that right?"

  "That was what the State contended."

  "And what Mr. Harnason told you he had done?"

  "True enough, Mr. Molto. I thought we were talking about what was in the transcript."

  Molto nods. "Correction accepted, Judge."

  "That was why I asked Mr. Harnason what it was like to poison someone-because he'd admitted he'd done it."

  Molto looks up, and Stern too places his pen down. The rest of the conversation between Harnason and my father, which concerned his first trial, is out of bounds under Judge Yee's order. My dad has recovered a little of the ground he lost to Molto before, but I can see that Sandy is worrying that my father will stray too close to the line and open the door to a far more dangerous subject. Molto seems to be considering that, but he chooses to go where he was headed.

  "Well, one thing that was certainly in the transcript, Judge, was a very detailed description of which drugs American Medical, the reference laboratory under contract to the Kindle County coroner-the transcript recites which drugs American tests for in the course of a routine toxicology screen on blood samples from an autopsy. Do you recall reading that?"

  "I take it for granted I read it, Mr. Molto."

  "And it turns out, Judge, that arsenic is a drug that is not included in a routine tox screen. Is that right?"

  "I remember that."

  "And because of that, Mr. Harnason had nearly gotten away with murder, hadn't he?"

  "As I recall, the coroner originally ruled Mr. Millan's death to be by natural causes."

  "Which was how the coroner originally classified Mrs. Sabich's death as well. True?"

  "Yes."

  "Now, Judge, are you familiar with a class of drugs called 'MAO inhibitors'?"

  "That was not a term I knew well formerly, but I'm certainly familiar with it now, Mr. Molto."

  "And how about a drug called phenelzine. Are you familiar with that?"

  "I certainly am."

  "And how did you first hear about phenelzine?"

  "Phenelzine is a kind of antidepressant that my wife took from time to time. It had been prescribed for her for several years."

  "And phenelzine, Judge, is an MAO inhibitor, is it not?"

  "I know that now, Mr. Molto."

  "You knew it for some time, didn't you, Judge?"

  "I really can't say that."

  "Well, Judge, you heard the testimony during the prosecution case of Dr. Gorvetich, didn't you?"

  "Yes."

  "And you recall, I'm sure, that he described doing a forensic examination of your pers
onal computer after it was removed from your house. Do you recall that?"

  "I recall his testimony and I recall my home being searched at your order and my computer being seized." My dad does his best not to sound too bitter, but he has made the point purposefully about the intrusion.

  "And you recall Dr. Gorvetich testifying that the cache on your Web browser shows that at some point in time, which he isolated as late September 2008, there were searches on your personal computer of two sites that describe phenelzine."

  "I remember that testimony."

  "And looking at the pages visited, Judge-" Tommy turns to a paralegal at the prosecution table and gives an exhibit number. The blank screen beside my dad fills up, and Tommy uses a laser pointer to highlight as he reads. "'Phenelzine is a monoamine oxidase (MAO) inhibitor.' Do you see that?"

  "Of course."

  "Do you recall reading that in late September 2008, Judge?"

  "I do not, Mr. Molto, but I take your point."

  "And page 463 of the Harnason transcript, which was previously introduced into evidence as People's Exhibit 47, which I believe you have just admitted you read-that page states, doesn't it, that MAO inhibitors are not tested for as part of a toxicology screen routinely performed on a postmortem examination of someone who has died unexpectedly?"

  "Yes, it says that."

  Molto then calls up to the screen Judge Hamlin's opinion for herself and Judge Mason in Harnason's case, which also says that arsenic and many other compounds, including MAO inhibitors, aren't tested for in connection with autopsies.

  "And you read Judge Hamlin's opinion?"

  "Yes, sir. Several drafts."

  "So you know, Judge, that an overdose of phenelzine would not be detected by a routine tox screen, right? Just like the arsenic used to kill Mr. Harnason's lover?"

  "Argumentative," says Stern by way of objection.

  Judge Yee wags his head, as if it's no big deal, but says, "Sustained."

  "Well, let me put it to you like this, Judge Sabich: Didn't you poison your wife with phenelzine, knowing it wasn't going to be detected by a routine toxicology screen and hoping to pass off her death as one by natural causes?"

  "No, Mr. Molto, I did not."

  Tommy pauses then and strolls a bit. The issue, as they like to say in very old court opinions, has been joined.

  "Now, Judge, you heard the testimony of Officer Krilic about removing the contents of your wife's medicine cabinet from your house the day after she died?"

  "I remember Officer Krilic asking me if he could do that rather than making a list of the drugs while he was at our house, and I recall giving him permission, Mr. Molto."

  "It would have looked pretty suspicious if you'd refused, wouldn't it, Judge?"

  "I told him to do whatever he needed to do, Mr. Molto. If I wanted to keep anyone from examining those pill bottles, I'm sure I could have thought of a reason to ask him to write down the names of the drugs while he was there."

  At the prosecution table, Jim Brand feigns touching his chin while he rolls his fingers toward Molto. He's telling Molto to move on. My dad has just scored.

  "Let's get to the point, Judge. Those are your fingerprints on the bottle of phenelzine from your wife's medicine cabinet, right?" Tommy calls out an exhibit number, and a paralegal from the PA's office puts up a series of slides, with several golden fingerprints displayed against an iridescent blue background. Etched in gold, the prints look like something from the Holy Ark.

  "I heard Dr. Dickerman's testimony."

  "We all heard him offer his opinion, Judge, that those are your prints, but now in front of the jury"-Tommy sweeps his hand toward the sixteen people behind him-"I'm asking if you admit those in fact are your fingerprints on your wife's phenelzine?"

  "I regularly picked up Barbara's pills at the pharmacy and often put them on the shelves in her medicine cabinet. I have no reason to doubt those are my prints. I do recall, Mr. Molto, that in the week before her death, Barbara had been in the garden when I came home, and her hands were dirty and she asked me to show her a bottle I'd picked up and then to put it in her medicine cabinet, but I can't tell you for certain that was the phenelzine."

  Molto stares a second with the barest smirk, enjoying the utter convenience of the explanation.

  "So you're saying the prints came from showing your wife the bottle you'd picked up?"

  "I'm telling you that's possible."

  "Well, let's look more carefully, Judge." Tommy returns to the prosecution table and comes back with the actual vial, now sealed in a glassine envelope. "Referring to People's Exhibit 1, the phenelzine you picked up at the pharmacy four days before your wife's death-you're saying you showed it to her, something like this, right?" Gripping the small bottle through the plastic, he extends it toward my father.

  "Again, yes, if it was the phenelzine I showed her."

  "And I'm holding the bottle between my right thumb and the side of my index finger, correct?"

  "Right."

  "And my right thumb, Judge, is pointing down toward the label on the front of the vial, isn't it?"

  "Yes."

  "But calling your attention again to People's Exhibit 1A, the slide of the fingerprints Dr. Dickerman developed, three of the four prints, your right thumb, your right index finger, your right middle finger-they're all pointing up toward the label, Judge. Aren't they?"

  My dad takes a second to look at the slide. He nods before being reminded by Judge Yee to speak for the record.

  "I had to reach in the bag to get the bottle out, Mr. Molto."

  "But the prints are on the bottom of the vial, aren't they, Judge?"

  "It might have been upside down in the bag, Mr. Molto."

  "In fact, Judge, Dr. Dickerman testified that the length and width of all of those impressions would suggest you gripped the bottle tightly so the childproof cap could be opened. Did you hear that testimony?"

  "Yes. But I also could have been gripping it tightly to pull it out of the bag."

  Molto stares with the inklings of another smile. My dad has handled all of that fairly well, ignoring the fact that my mom's prints appear nowhere on the bottle.

  "Well, let's talk about the pharmacy, Judge Sabich. Ten phenelzine tablets were purchased at your pharmacy on September 25, 2008, four days before your wife's death."

  "That was the evidence."

  "And the signature on the credit card slip, Judge, People's Exhibit 42-that's yours, is it not?" The slide of the slip, which was passed among the jurors in another transparent envelope when it was admitted, pops up next on the screen beside the witness stand. My father does not bother to turn.

  "Yes."

  "You purchased the phenelzine, didn't you, Judge?"

  "I do not remember doing that, Mr. Molto. I can only agree that it is plainly my signature and tell you that I often picked up the prescription when I was coming home, if Barbara asked me to do it. The pharmacy is across the street from the bus I rode to work

  every day."

  Molto checks his exhibit list and whispers instructions for the next slide.

  "And referring to People's 1B, a photograph, you heard Officer Krilic testify that the bottle of phenelzine portrayed there is in the same condition as when he removed it."

  "Yes."

  "And calling your attention to People's 1B, I think you can see that there are only six pills in the container, is that right?"

  In the photo, taken looking down into the plastic vial, the six tablets, dead ringers for the burnt-orange ibuprofen I take for occasional headaches, rest on the bottom. It's hard to believe that pills so common-looking could kill anybody.

  "Right."

  "And do you know where the four missing pills went?"

  "If you're asking, Mr. Molto, whether I had anything to do with removing those pills, the answer is no."

  "But you heard Dr. Strack's testimony that four pills of phenelzine taken at once would constitute a lethal dose?"

  "I heard that.
"

  "Do you have any reason to disagree with that?"

  "I understand that if taken at once, four tablets of phenelzine could constitute a lethal dose. But you pointed out that I picked up the prescription on September 25. And a single pill is the recommended daily dose. The twenty-fifth, the twenty-sixth, the twenty-seventh, the twenty-eighth." My father counts it out on the four fingers of his left hand.

  "So are you contending, Judge, that your wife took the phenelzine daily prior to her death?"

  "I'm not here to contend anything, Mr. Molto. I know that Dr. Strack, your expert, conceded that it's possible that a combination of a single dose of phenelzine taken in combination with certain food or drink could induce a fatal reaction."

  "So your wife's death was an accident?"

  "Mr. Molto, she was alive when I went to sleep and dead when I awoke. As you know, none of the experts can even tell for sure whether it was phenelzine that killed Barbara. Not one of them can say she didn't die of a hypertensive reaction like her father."

  "Well, let's consider the possibility it was an accident, Judge, can we?"

  "Whatever you like, Mr. Molto. I'm here to answer your questions." Again there is a little too much acid in my dad's response. Tommy and I-and now the jury-all know the same thing about my father. After twenty years on the bench and a dozen as chief judge, he is not accustomed to answering questions from anybody. The faint whiff of arrogance helps Molto because it implies that beneath it all, my dad may be a law unto himself.

  "You mention there is a severe poisoning reaction when phenelzine is consumed with certain foods, right?"

  "So I have learned."

  "Speaking of what you've learned, did it surprise you, Judge, when Dr. Gorvetich testified, that information about the danger of phenelzine when it's taken along with any one of a number of foods containing tyramine-red wine and aged cheese and herring and dry sausage-did it surprise you to see that that information is freely available on the Internet?"

  "I knew, Mr. Molto, that one of the drugs Barbara took from time to time could interact with certain foods. I knew that."

  "Exactly my point. And we do know, Judge, don't we, because of Dr. Gorvetich's testimony, that the two websites you visited in late September specify those interactions, don't they?"

  Molto nods, and the two pages from the Net, with yellow highlights drawn in on the slides, appear next to my father.