The Burden of Proof

by Scott Turow

  On his feet again, Stern, as he often did, took a moment to stare from his window in Morgan Towers, the city’s tallest building, down to the Kindle River, whose swift waters ran here, through various tributaries, out to the Mississippi. With its shining, silvery face, the Kindle had been first named La Chandelle, the candle, by the French trader Jean-Baptiste DuSable, who had tarried here on his way from New Orleans to what eventually became Chicago. DuSable’s trading post, named after him, was now by far the largest part of a consolidated tri-city municipality of almost a million. Just south, where the river branched and rejoined, two other towns, Moreland, settled by the English, who had Anglicized the river’s name, and Kewahnee, once an Indian encampment, had grown up from barge ports and had been merged into DuSable in the mid-1930s. In this era of urban sprawl, the entire area, including the tri-cities, was usually referred to by the name of the surrounding county—Kindle—a hodgepodge megalopolis of city and suburb, prosperity and blight, home in total to almost three million people. The willingness of locals to see their city known by the county name had probably not been dampened by the rediscovery during the 1960s that DuSable, traditionally referred to as the first white man in these parts, had been black.

  Dixon was speaking behind him. He wanted to know if they were obliged to turn over all the records the government required. Most of the trades, given their size, had been executed in Chicago, and the search for documents would occupy days for Margy Allison, Dixon’s executive vice president, who ran the Chicago office, three hundred miles from here.

  “I see no choice,” said Stern. “I shall complain to the prosecutor bitterly about the burdens of production. Tell her your business will be brought to a standstill. And I must have some time to look at the records, to see if I can make out what the government suspects. But eventually we must produce. We cannot challenge the subpoena as overbroad—it is quite precise.”

  “Whatever happened to the Fifth Amendment?” That was Dixon for you, cavalier where other executives would stammer before the words could come from their mouths. Stern explained that the subpoena sought records which belonged in law to the corporation rather than to Dixon himself. The corporation, not an individual, had no Fifth Amendment rights. Dixon could refuse to testify about the records; but the papers themselves would have to be handed over.

  Claudia buzzed. She had Klonsky. Dixon, in the meanwhile, chewed on his cigar and puzzled over the mysterious logic of the law.

  “Ms. Klonsky,” he said.

  “Mr. Stern,” she answered. A clear, self-assured voice. They had never met, but Stern had seen her in the courtroom when she approached the podium for status calls. She was in her late thirties, Stern thought, a robust-appearing woman with broad shoulders, dark hair, strong hands. In court, she had emitted the forbidding persona familiar to many Assistants, including a number of the women; eager to prove themselves as tough as their male counterparts, they often came across as humorless and driven, citizens of the late century who saw brutality as a necessary mode in female style. It was largely a pose, but under the circumstances, Stern saw little reason to be retiring.

  “Two of your storm troopers arrived at my home a few days ago with a subpoena for my client Dixon Hartnell.”

  An instant passed without sound. Storm troopers. Stern himself was surprised by the ruffian edge in his voice. Ordinarily, he prided himself on his civility. In the meantime, Dixon, across the desk, was beaming. He had rarely been exposed to Stern when he was so pointed.

  “Perhaps I need to explain the circumstances,” Stern said.

  “I understand the circumstances,” Ms. Klonsky shot back. She was bristling already.

  No doubt, everyone understood the circumstances, Stern thought. He had many friends in the prosecuting offices, both the Kindle County Prosecutor’s and the United States Attorney’s Office, but they were adversaries, too—and human. It was delicious gossip. Did you hear? About Stern’s wife? Here again, as he contemplated this, the world seemed to open, and the force of painful emotion rushed up at him out of his own breast. How, how was it possible? It was such an unreasoning mess. He closed his eyes, which were burning, and he could sense Dixon stirring. It was a sad comment that his shame, more than anything else, brought on these moments, and that the same pride carried him through—some forward-struggling thing impelled him to go on with dignity. Where, damn it, was his cigar? When he spoke, there was no tremor in his voice.

  “If you understood, I must say I find your conduct deplorable. Perhaps I should speak to Mr. Sennett.” Stan Sennett, a career prosecutor, had been U.S. Attorney for two or three years now. He was the toughest and most humorless of all, and far from an ally of Stern’s. Sennett was unlikely to become exercised—the agents, after all, were just doing their jobs—but Klonsky could not say that.

  “Look, Mr. Stern, this was an honest mistake. It might even be,” she said, “that if you gave me half a chance, I would have apologized. I’ve been calling you for days now.” Stern, rebuked, still chose not to answer. She had been an Assistant for only a year, following a clerkship in the U.S. court of appeals, and, presumably, a distinguished law school career, and he sensed an advantage in her inexperience. She had acquired a reputation as bright but phlegmatic, even flaky, the kind to blow hot and cold. He did not wish to lend her any reassurance.

  “Tell me, Ms. Klonsky,” said Stern, shifting the subject, “what is the nature of your investigation?”

  “I’d prefer not to say right now.”

  “Are other agencies involved besides the FBI?” Stern wanted to know about the IRS in particular. They were always trouble. And if the federal regulators were involved—the Commodities Futures Trading Commission—he might gain some idea how the charges originated.

  “I can’t answer,” said Klonsky.

  “What about Mr. Hartnell? Are you willing to say whether or not he is a target?”

  She paused, being careful. Klonsky had had her share of bad experiences with the defense bar already.

  “I can’t tell you he’s not.”

  “I see.” Stern thought. “When will you be able to be more precise about his status?”

  “Perhaps after we look at the documents we’ve subpoenaed. They’re due today.”

  “Well, I am afraid that we shall be a bit late providing them. You are basically asking that Mr. Hartnell and his employees stop running his business and look for records for weeks.”

  “It’s not that bad,” said Klonsky.

  “I am assured it is.”

  Klonsky sighed. She was tiring of the conversation. “How long?”

  “We need an extension of at least three weeks,” he said. Dixon was looking on approvingly. He had his cigar tucked in his cheek, and a large enthusiastic smile. This was better than TV. “No, I am sorry,” said Stern, “I had not consulted Mr. Hartnell. Best make it a full month.”

  “That’s ridiculous. These records are probably in a few cabinets.”

  “I am informed otherwise, Ms. Klonsky. This is a federal grand jury investigation. I represent both the corporation and Mr. Hartnell personally. You will not identify your targets. I must be alert to conflicts at the same time that I try to be certain that our compliance with your subpoena is exact. I am required to make at least one trip to Chicago, if not more, to do that. If you wish to limit your requests, or tell me what is needed first, I would try to oblige.” She was silent. If she narrowed her request, she might disclose her interests. “If you think I am being unreasonable, make a motion to compel. I shall be happy to explain all this to Judge Winchell.”

  Chief Judge Winchell, a former prosecutor, would rule for the government eventually. But no judge in the federal courthouse would set strict deadlines for Sandy Stern this month. His personal circumstances required no mention here. Ms. Klonsky knew the score.

  “No further extensions,” she said. She gave him a date—the second of May. “I’ll send you a letter.”

  “Very well,” said Stern. “I shall look f
orward to meeting with you, after you have reviewed what we provide.”

  “Right,” she said.

  “And, of course, Ms. Klonsky, I do accept your apology.”

  Klonsky, pierced, hesitated, but thought better of whatever she had in mind.

  “Right,” she said again and clapped down the phone.

  Stern could not restrain his satisfaction. That had gone well. Ms. Klonsky was high-strung and ill-humored and he had gotten the better of her. When the month was over, they could ask for another week or two, if need be.

  Dixon was laughing, delighted to see the government bashed. He asked what she had told him.

  “Very little. Except that she would not rule out the possibility that you are a target of her investigation.”

  Dixon drew on his cigar. He was instantly far more subdued, but he shrugged Callantly.

  “You slowed her down,” he said.

  Stern listed what he would be doing near-term: the other customers he would contact; his trip to Chicago to look over the records for the subpoena as soon as they had been gathered.

  “In the meantime, you know how these things go, Dixon. Discuss this with no one but me. Act on the assumption that everyone around you is wearing a tape recorder. It would not be surprising if one of them is.”

  For the first time today, Dixon briefly sported a look of discomfort: he buttoned up his lips and shook his head. Then he ground out the cigar and stood.

  “I’m sorry this comes up now, Stern,” Dixon said. “I hate to be the thing that drags you back into the office.”

  Stern raised a hand. “I suspect I shall be here a good deal.” He said this somewhat heroically, but that lost feeling came over him again. He had no notion, really, of the immediate future, or even, for that matter, of what lay further ahead. A few images had stirred themselves: figures of stillness and order. He would mind the office and his clients in a state of settled dotage.

  Dixon, of course, had different thoughts in mind.

  “Oh, you’ll have other distractions eventually.” He glanced down at his stubbed cigar with the most minute salaciousness. Stern recoiled a bit, but he knew that Dixon was merely crude enough to say what others were thinking. Even in tear-stained eyes thick with grief and sympathy, Stern could see he was already differently regarded. A single man. Certain facts were elemental. In his present mood, Stern was persistently repelled by contemplation of this subject. More to the point, he knew that his circumstance was hardly ordinary. What woman of even modest sense would be eager for the company of a man with whom another female had literally found life not worth living?

  “I assume this will cost a fortune,” Dixon said as he picked his sport coat off the sofa arm.

  “It will be expensive,” said Stern, barely able to suppress a smile. Dixon was rich. His business was worth millions, and he paid himself a seven-figure salary each year, but he maintained the typical frugality of a man who had struggled. He groused unremittingly about the appalling level of his legal fees. But years ago, in Stern’s salad days, during that period when Dixon was still attempting to win Stern back after marrying Silvia, Dixon had obligingly urged Stern to bill him like any other client, and Stern had never forgotten the instruction. One more peculiar harmonic had been established between them. Dixon paid for Stern’s tolerance, and Stern was willing to allow it to be purchased. And always the concern on either side about who was getting the better of the deal. “I can leave some of the documents to the younger lawyers to examine,” Stern said, “but we know too little. I must do most of this myself. Ms. Klonsky will take priority over other matters.”

  “Please,” said Dixon. Once more, he looked around the room. The weight of things had begun to settle on him. He was unhappy. “I don’t want to fuck around with this.”

  Stern considered his brother-in-law with his manifold secrets. Clara’s voice, as ever now, came into his mind. Little as she cared for Dixon, she had never seemed surprised by their alliance. Stern had complained often that he did not know Dixon, was not sure he had ever gotten through to him, found the man at times as elusive as smoke.

  ‘I imagine,’ she had answered, ‘that he says the same of you.’

  4

  IN THE MOCK-CHIPPENDALE RECEPTION ROOM of Barstow Zahn and Hanks, a huge law firm, Stern sat with his children, awaiting Cal Hopkinson, with whom they had an appointment to learn the details of Clara’s will. Stern regarded this event with the same maelstrom of contradictory emotions that lingering concentration on Clara’s wealth had always prompted, but for the moment most of that was lost in the strong feelings—regretful, fond, salutary—of having his children near at hand.

  Tomorrow, Marta would leave. She had stayed a week following the funeral. Work was slow, she said, and Kate and she had planned to sift through Clara’s things. Instead, Marta had spent hours alone, looking dreamily about her own room, poking through the house as if it were a new location. She had already mentioned that she would need to return soon to finish.

  With the departure of Marta—the child who liked him best, or, more correctly, feared him least—Stern would be alone. His children had offered him what comfort they could in the last weeks, but he felt them drawn away by the onrush of their lives and their plain bewilderment at having to deal with him on their own. With all the children, Clara had been his mediator; they had far less direct experience of him. Oh, he had cared. Deeply. But, in his compulsive orderly way, in its place. No matter how late he returned home from the office, in a routine as fixed as prayer, he received from Clara each night news of the children, the disturbances and triumphs, the unfolding of each small life. Somehow, at the time, he thought they would know that a portion of her interest was his own. When they reached their teens, he was baffled and stung as, one by one, they took up attitudes which silently accused him of being aloof, uninvolved. The lines of attachment were to their mother. As in old-time law, he saw now, the benefits ran only to those in direct contact, in privity.

  Cal appeared at last. He shook everybody’s hand, precise as a clockmaker, and apologized for the wait. Cal was an unremarkable fellow—temperate, genial, a journeyman of sorts. The most impressive thing about him was a single physical feature: an inch or so behind his left ear, just below his hairline, was a round depression that darkened and appeared to head straight into his skull, as if someone had stuck a little finger into a ball of dough. The mark looked for all the world like a bullet hole—and that was what it was, a war wound from Korea, a medical marvel. The shot had passed straight through, with the only damage to Cal’s outer skull. Once noticed, it was the kind of thing you could not keep your eyes off of. Stern spent his meetings with Cal awaiting the instant when he would turn away and Stern could stare freely.

  Cal ushered the family toward a wainscoted conference room. Stern was the last to enter, and Cal detained him at the door.

  “Before we start, Sandy—As I told you on the phone last week, there’s a question or two I wanted to ask you about Clara’s estate—some peculiarities I imagine you’re aware of.”

  “Me?” Over the years, his commerce with Clara about her finances was limited to those rare occasions when she raised the subject, and usually he referred her to her bankers or attorneys.

  They were interrupted by the arrival of Cal’s associate, a young woman with spectacles and straight brown hair named Van Zandt. Marta poked her head out the door to see what the holdup was, and at Stern’s suggestion they all proceeded into the conference room, where they were seated around the long walnut table. Little plate engravings, precious caricatures of various legal scenes, ringed the walls, and there was the usual majestic view of the city—the law firms and the corporate headquarters gobbled up all the best space. Harry Fagel had tried years ago to lure Stern into this modern Versailles, but he would have none of it.

  “I think,” said Cal, “I should just start at the beginning and tell you all about Clara’s estate.” Stern nodded. Marta nodded. Everyone agreed this was appropriate. Van Za
ndt handed Cal a document—a memo, no doubt, summarizing the will—and Cal solemnly began. Like most sophisticated estate plans, Clara’s had been composed with the first eye on the tax laws. As the result of her father’s providence decades before, and careful advice since, Clara had been able to dispose of a significant fortune without the payment of a single penny in federal estate tax. Cal disclosed this fact with a refulgent smile of minor triumph.

  The great bulk of Clara’s wealth had never been transferred to her directly. Her inheritance from her father, mother, and maiden aunt had been placed in a series of trusts that Henry Mittler had established at the River National Bank; these trusts would endure for generations, spilling out income and preserving corpus, in the venerated fashion of old money. When he was younger, Stern had believed that Henry had made these elaborate arrangements because he feared that his son-in-law was some kind of bounder. Now Stern knew that Henry’s faith was simpler: any discretion, no matter how constrained, was liable to abuse. This brass-knuckled cynicism had made Henry a formidable attorney, although the same qualities of character also probably contributed to his daughter’s lifetime discontent with him. Clara’s fiercest internal struggles had been with her father, a clever, domineering, willful man. Now Clara was interred in the synagogue’s small cemetery, in the sight of the large monument that Henry Mittler had erected to himself and Clara’s mother, Pauline, by the terms of the same will that had created the trusts. The earth reclaimed them all, and their passions, while their bank accounts survived. Stern, never without an appreciation for money, nonetheless contemplated these sad facts with amazement.

  “According to our notes,” said Cal, “when we revised the estate plan after the most recent changes in the tax laws, the trusts were valued at a little over $7 million. Clara’s own estate,” he said, referring to the interest spun off to Clara by the trusts over the years which, largely unspent, had been invested for her by the bank, “was in the neighborhood of $2 million. Of course, there have been changes, with the stock market crash and other financial developments, but you have the general picture.” Cal had taken his time getting to this point, and you could see that he enjoyed the effect the numbers had on his listeners. Kate’s eyes widened and Peter whistled out loud. It was something of an achievement, Stern determined, to have kept the children in the dark about this. He himself was neither shocked by the figures nor far off in the estimates he had made on the way down today, or periodically over the years, concerning these dollars he had seldom deigned to touch.