The Burden of Proof

by Scott Turow

  He thought suddenly: What happened there at the end? If anger and despair had emboldened her wildly, would he have stopped her? ‘Oh, what do you care?’ He still had no idea what Fiona had meant, but recollected, her remark set up a shiver, as if it were a tantalizing message of libertine permission. What did he care?

  “Absurd,” he said aloud, and tried to sleep, galled to think that he was taken up with half-drunk fantasies of Fiona. Fiona! She was one of those creatures he had never found appealing. But now, as he crept in and out of a dusky night-town on the borders of sleep, she appeared in his mind alarmingly confused with the young woman for whom Nate had spurned her. Clara had been twenty pounds overweight since Peter’s birth, and Stern did not recall wishing even for a second that that were not so. But now he dwelled on the slim body of that much younger woman, transposed in dreaming moments to Fiona. Near five he slept solidly and then bolted awake. He had had the crudest and most direct of dreams that he had supplanted Nate; his penis stood erect, burning with sexual and urinary urgency. What nimble gesture, he wondered with sudden languor, would have been utilized to speed his response? He imagined, somehow, the fingering of a flute.

  Before six, he drove down to the office. The sky was beginning to be colored, gray and rose, a certain prairie feel to it. The night of sleeplessness left him feeling shattered; he concentrated poorly, while the sensations of his smoky dreams persisted, leaking over him. Behind his desk, he remained stimulated, so that even his fingertips, the hairs atop his knuckles, were quick with sensation. And he heard, remote but insistent, that insinuating voice:

  Oh, what do you care?

  6

  THREE YEARS AGO, Stern had been retained to represent the chief deputy in the Kindle County Prosecutor’s Office, who was charged with murdering a female colleague. It had been the tricities’ trial of the decade, revealing tawdry passions and political intrigues, and Stern’s role had briefly riveted attention on him across the nation. In the aftermath, his practice, never insubstantial, had grown significantly. While formerly he’d had one associate, Stern now employed three younger lawyers, all of whom insisted lately that at least one more attorney was needed. One of the lawyers working for Stern, Alec Vestos, dealt exclusively with civil matters and was largely on his own; Stern, even three decades along, felt little confidence with the endless rigmarole of civil procedure—depositions, interrogatories, and requests to admit. The other two lawyers—Raphael Moya and Sondra Duhaney—were both former state defenders and had come to Stern about the same time, two years ago. They followed criminal files in the state court, while Stern usually took principal responsibility for the federal criminal work.

  Alec, Raphael, and Sondra were capable of handling most matters without guidance, and since Clara’s death, they had been piloting the ship. Stern’s hours here were significantly reduced. After his broken nights, he would find himself in the mornings stricken by morose visions from his dreams, often too forbidding to fully recollect. He would lie in bed, feeling as if he were coated by film, seeing himself in a distant, abstracted way as some figure on air, like one of the dybbuks dancing through the background of a Chagall, or an astronaut barely tethered to his capsule, someone who was nowhere, in no field of gravity, able at any instant to drift off forever into the limitless universe. When he managed to rouse himself, he felt enervated as soon as he passed through the office door.

  The dispositions of a lifetime made it impossible for him to treat legal problems with indifference; the law would ever amaze him, the way some children were always fascinated by a certain toy. Even now, his abilities struck him as unimpaired; yet his commitments were lagging. Clients with their problems, their urgencies—it all seemed beyond his present reserves. There was a limited number of matters to which Stern was inalterably committed. The rest were shifted to the younger lawyers. Each day here he would receive reports from his associates, meet with those clients he was required to see, examine pleadings, make the necessary phone calls or court appearances, and spend the remainder of the day in aimless desultory reflection. He would say he was thinking of Clara, but that was not completely so. He meditated on virtually anything: TV advertisements, graffiti on an alley wall; the children and their miseries; groceries he needed; bills; planting he still had time to do; the four or five occasions he had promised to return with Clara to Japan and had failed to make the trip, or even preparations. Last week he had read brochures on a new word-processing system for an entire day.

  He had closed the cover on his case, preparing for his night of wandering at home, when Alec appeared with a telecopy that had just arrived in the mailroom. It was near seven, and the office was still, only the lawyers present, surveying what remained now that the phones had stopped ringing. The message Stern had received—a cover sheet and a letter—identified Dixon as its sender, transmitting from his magnificent stone home in Greenwood County, where his study was replete with gadgets: fax, computers, tickers, modems. A modern executive, Dixon was never out of touch. The phone rang then, Stern’s private number.

  “You get that?” Dixon asked.

  “I am studying it now.” As promised, Dixon’s case was one of the few matters to which Stern had given continuing attention. He had tracked down the three clients of Dixon’s mentioned in the government’s subpoena whom he had not reached before. Their lawyers confirmed that each had been contacted by the FBI, but only one was willing to provide Stern with copies of the records the grand jury had subpoenaed. Then, earlier this week, Al Greco, from Dixon’s office here in DuSable, had called with the names of two large local customers who had received subpoenas for the same kinds of documents. The government’s specific concerns were no more apparent.

  The letter Dixon had faxed, however, offered some insight. It was from his personal banker at First Kindle, who announced that yet another grand jury subpoena had been served on the bank more than a month ago. According to the letter, agents had visited the bank and briefly reviewed the statements for Dixon’s checking accounts. Then, pursuant to the subpoena’s command, they had required copies of all items Dixon had deposited and the checks he had written over the last year. This was an exhaustive task, requiring clerks to search through reels of microfilm, but the bank was scheduled to finally produce these items next week. The FBI, as usual, had requested confidentiality, yet the banker, after consultation with his lawyers, had determined to advise Dixon should he wish to venture any objection. The letter portrayed this gesture as an act of heroic defiance in behalf of a valued customer, but it was, in truth, routine.

  “What does it mean?” asked Dixon.

  Many things, Stern knew. Certainly that Dixon was the target of the government’s inquiry; and that somehow they had figured out where Dixon banked. At this point, a few months ago, Stern would have lit a cigar as a way to gather a moment to think. His fingers still wandered toward the handsome crystal ashtray on his desk, as if the nerves had some instinct of their own. It was twenty-nine days, by his calculation, since he’d had his last cigar, the day he flew off to Chicago. This was a lugubrious South American notion, he knew, the idea of a penance, moth-eaten Catholic baggage he was still lugging around from his adolescence, and he a Jew at that. It was typical of the entirely unpredictable ways that Argentina would episodically haunt him.

  “It means, I would think,” said Stern, “that the government is attempting to trace money. They believe, Dixon, that you somehow unlawfully profited from these enormous trades they are scrutinizing.”

  Dixon was quiet.

  “It’s a bunch of crap,” he said finally. “What do they think? I stole all this money and mailed it right into my checking account so I could be sure someone would notice? How stupid am I supposed to be?”

  Stern did not answer. In his indignation Dixon was convincing, but the sequence of events described by the banker—the fact that the agents had reviewed the statements first—gave every indication that they believed they were on the right track. Dixon had admitted last time t
hat the orders the government was investigating were large enough to significantly alter market prices. Perhaps Dixon had been paid off by traders on the market floor for informing them about his customers’ plans. That would fit. The prosecutor would want to examine any personal checks Dixon had received from other members of the exchanges.

  “And if they’re tracing money I deposit, what do they need my goddamn canceled checks for?” Dixon asked.

  “Generally, your checks are desired not for what is on the front but on the back.” Dixon did not seem to understand. “By examining the endorsements, Dixon, they are able to identify other accounts, other financial institutions with whom you have dealings. If they do not find what they are seeking in this account, they will move on to the others.”

  “Great,” said Dixon. He went quiet again. Stern, in the interim, scribbled a quick draft of a letter to the bank, asking for copies of the subpoena and whatever they produced to the government. As the bankers’ lawyers well knew, there were no grounds to prevent the bank from complying.

  “This gal is really a pistol,” Dixon said. He was speaking apparently of Klonsky. “She wants everything. Margy told me the records they subpoenaed already take up half a room.” A few boxes, is what Margy had said to Stern, but he would see for himself. He was going to Chicago next week to review the documents before turning them over to the government. “You know what they call her, don’t you?” Dixon asked. “Klonstadt? Have you heard this? The Titless Wonder.” Dixon laughed. On Friday nights at Gil’s, within whose mock-elegant foil walls the federal practitioners gathered to pass information about ongoing trials and the tribulations of practice, Stern had heard the nickname. That kind of cruel humor had never been much to his taste.

  Dixon was deeply aggrieved. Aggravated. Hounded. Ms. Klonsky’s resourcefulness exceeded his expectations. And in his gruff effort to insist that this vulgarity was funny, Stern, for the first time, detected a familiar tone. Stern had listened to it for decades. The willies or the creeps. Call it what you like. It was the sound of incipient internal corrosion, of inner fortifications giving way. That abandoned edge in Dixon’s voice touched Stern himself with the cold trickle of something close to fright. Clearly, given his new knowledge of the prosecutor’s nickname, Dixon had found himself unable to obey Stern’s advice not to talk about the investigation. Instead, in the steam bath at the club, or in some corner of the locker room where he usually talked grain prices or the girls on the floor he’d like to screw, Dixon had bellied out his troubles to somebody—a lawyer probably, given the information he had retrieved. One could only hope it was someone discreet.

  “Do you know what the latest is?” Dixon asked. “I’m not supposed to have heard this, but two FBI agents have been up at Datatech all week looking over records on one of the MD accounts. I picked that up today.”

  Stern made a deeper sound. No wonder Dixon was feeling surrounded. Datatech was Dixon’s data-processing vender, which prepared the computer tabulations on all of MD’s accounts.

  “Which account, Dixon?”

  “The house error account.”

  “What is that, please?”

  “Just what it sounds like. Where we clear up mistakes. Customer wants to buy two cars of beans and we buy him corn instead. When we notice what we’ve done, we’ll buy him beans and move the corn into the house error account, so we end up owning the corn instead of the customer.”

  “And the government wants the records of this account?”

  “Better than that. The jokers asked Datatech to put together a special computer run. They just want errors made on trades on the KCFE.” The Kindle County Futures Exchange.

  “Kindle?” asked Stern.

  “Right. It doesn’t make sense, does it?”

  “No,” answered Stern simply. The customer trades about which the government had been subpoenaing information previously had all been executed on the Chicago Exchange. The errors which the government now wished to examine arose, according to Dixon’s information, from trades placed on the smaller exchange here. It was like investigating transactions on the New York Stock Exchange by requesting records from the Pacific Stock Exchange in San Francisco. Baffling. But there was something in Dixon’s uneasy tenor which suggested to Stern that the government was on the right trail. “From whom do you hear these things, Dixon? About the FBI at Datatech?”

  “I got that on the QT. They fouled their britches over at Datatech when they saw the subpoena. I pay those jagoffs three hundred thousand dollars a year, and now they promise to keep this a secret from me.”

  “Just so,” said Stern. “But you have reason to believe in the accuracy of this information?”

  “A young lady,” said Dixon finally. “I’ve known her for some time. She wouldn’t give me any malarkey. I promised this wouldn’t come back on her. I don’t want Titless hearing about it.”

  “Of course.” For Dixon, like the others on the exchanges, his word given was exalted. To someone’s back a knife could be freely applied, but a deal made eye to eye could not be broken.

  “How long is she going to keep this up, anyway,” Dixon asked, “what’s-her-name, Kronstadt?”

  “Klonsky,” said Stern. “There is no telling.”

  “Months?”

  “Years, in theory.”

  “Jesus. And they can just go on sending out one subpoena after another? Even to me?”

  “If there is any legitimate investigative purpose, yes.” Across the phone lines, Stern heard the little metal click of Dixon’s lighter. “Do I take it you have a particular concern, Dixon?”

  “It’s nothing,” he said. He emitted a heavy breath. “Can they get anything with a subpoena?”

  “I am not following, Dixon.”

  “Suppose I have some personal stuff. Can they subpoena that?”

  Stern waited. What was Dixon telling him?

  “Where are these private items housed, Dixon?”

  Stern could hear his brother-in-law drawing on his cigarette, weighing how much to admit.

  “My office. You know. There’s a small safe. It fits in the bottom of my credenza.”

  “And what is in it?”

  Dixon made an equivocal sound.

  “Generally,” said Stern.

  “Personal,” said Dixon. “Stuff.”

  Stern ran his tongue along his mouth. Dixon needed no education in being less chatty. At times, there was a peculiar fellowship between Stern and his brother-in-law. Dixon was a clever man with a winning sense of humor; it was easy at moments to enjoy his company. He and Stern attended ball games together; engaged in such athletic competitions as Stern could manage. Both men were lovers of gadgets, and there were two stores on East Charles which they visited only together, one afternoon a year. And yet there had always been absolute boundaries, guarded by some rumbling unspeaking rivalry, disapproval, distrust. Stern was content to let Dixon leave him often in the dark. He did not want a rundown on Dixon’s illicit rendezvous or his borderline business practices. Over the years, this relation of lawyer and client had proved more agreeable to both of them than some jovial effort to feign any kind of filial intimacy. Stern asked only what the law in its rigors and proprieties demanded, and Dixon listened carefully and answered narrowly, and as he liked.

  “Are we speaking of truly personal materials, Dixon? Items which are yours alone and not the corporation’s, which were prepared outside the corporation and to which you do not give corporate personnel access?”

  “Right. Can they get that with a subpoena?”

  Stern pondered. He never liked providing these kinds of saddleback opinions. The client was always holding on to some detail which changed everything.

  “In general, you cannot be compelled to produce personal items, absent a grant of immunity. That is not likely to occur at this point in the investigation. A search warrant, of course, is another matter.”

  “A search warrant?”

  “These investigations of brokerage houses are sometimes
most unpleasant. Depending on what the prosecutors are seeking, they may find it convenient to attempt to grab up all your records at once. If they start in the office and believe items are missing, your home would be next.”

  “I better move this stuff? Is that what you’re telling me?”

  “Only if you’re concerned about it falling into the government’s hands. If that thought troubles you for some reason, you might think about storing your safe somewhere less likely to be searched.”

  “Which is where?”

  “How big is it?” Stern asked.

  A foot square, Dixon said.

  “You could send it here, then. Federal prosecutors are more reluctant, even these days, to search attorneys’ offices. The warrant requires special approval from the Justice Department in Washington, and the conduct smacks of a violation of the right to counsel. It is very untidy, from their perspective.”

  “And how do I get to the safe, if I need something?”

  Stern declined to state the obvious. Dixon had already made it clear that he had no wish to share the contents.

  “I shall give you a key to the office. Come and look as you like. Or better yet, what about another lawyer who is not involved in this present matter? Wally Marmon’s office would serve excellently.” This was the large firm which represented Dixon on the routine business matters that Stern declined to handle, but Dixon grunted at the notion.

  “He’ll charge me rent,” Dixon said, “by the hour. And he’d get too nervous. You know Wally.”

  On reflection, Dixon was probably correct about that.

  “If this arrangement makes you uncomfortable, then leave the safe where it is, Dixon. Or take it home. As your lawyer, I prefer to see it here.”

  It would be best to have Dixon’s zone of privacy clearly bounded. Lord only knew where they’d end up if Dixon had continuing access to some black box into which he could stuff any document the government sought whose contents made him uncomfortable. Both the client and the lawyer could come to substantial grief that way.