The Burden of Proof

by Scott Turow

  For Stern, the prospect of being the federal prosecutor was not easily dismissed. This was an advocate’s job of sweeping power. For four years Stern could command the non-uniformed armies of the IRS, the DEA, the FBI, and deploy them as he saw fit. No more of the drug agents’ gruesome shenanigans. An end to the heartless prosecutions of widows and firemen for failing to report the income from part-time jobs or CDs. But, of course, he would have to be a prosecutor. Stern would have to dedicate himself to apprehension, accusation, punishment, that triad of unmentionables that by long-nurtured reflex he despised. Could Alejandro Stern rise magisterially in court and excite a jury’s ugly passions, could he beg them to inflict suffering they would quail to bear themselves? He could not. No. Could not. The imagery unloosed in Stern a real feeling of illness. Oh, he did not hate prosecutors. He had gotten over that early in his career. He admired at times the incandescent zeal of these young people as they attempted to smite evil for the sake of life on the straight and narrow. But that was not his role, not his calling. He was Sandy Stern—a proud apologist for deviation. No person Argentine by birth, a Jew alive to hear of the Holocaust could march in the jackboots of authority without intense self-doubt; better to keep his voice among the voices, to speak out daily for these frail liberties, so misunderstood, whose existence, far more than any prosecution, marked us all as decent, civilized, as human. He could not abandon the credo of a lifetime now.

  Ms. Klonsky was off the phone. Beyond the single office door, opened electronically by a solemn guardian behind yellow-tinged bulletproof glass, lay a half block of clatter. Telephones pealed; typewriters, still used in this era of word processing, banged. The Assistant United States Attorneys, distinguished young lawyers with law-review backgrounds, were made into ruffians by the atmosphere and stood in the hallways shouting to one another.

  Stern came to this office often, generally with a singular mission: to hinder, to thwart, to delay. On occasions—rare occasions, usually at the very start of an investigation—he arrived to offer an openhearted portrayal of what he believed to be the truth. But most often the defense was one of avoidance. It was his goal to learn as much as possible while revealing only what the prosecutor already knew, would never care about, or which might trouble or distract her. There were those prosecutors who believed in candor, who would lay their case out as a bare challenge. But, for most, the appeal of secretiveness was irresistible. Stern could merely float notions, ask questions, lighting from fact to fact, like some pest nibbling at fruit.

  “My best wishes to you,” said Stern to Ms. Klonsky, as he entered her small office. Robust-looking and dark, she had come to her feet to greet him. To Stern’s surprise, she wore a maternity dress, a blue cotton jumper of plain finish which as yet hung loosely. Observed in an abstracted way, Ms. Klonsky was quite attractive—large eyes, a straight nose, prominent cheekbones, the sort of routine good looks one would expect to see in a restaurant hostess. She presented a full figure of peasant proportions, strong legs and arms, and an ample bust, although the latter feature, according to nasty bruiting, was somewhat misleading. At Gil’s it was said that Ms. Klonsky had undergone a single mastectomy while she was a law student. Ergo, the Titless Wonder. Stern had never been convinced of the verity of this information—at Gil’s the jokes at the prosecutors’ expense seemed to grow crueler as the night wore on—and his doubts rose again now. Would a former cancer patient risk pregnancy, with its hormonal surges and vast bodily changes?

  “My daughter is also in this wonderful condition,” he said. “Our first grandchild.” Stern heard himself say ‘our,’ but had no will to correct himself. He would have to search some time to know how else to put it.

  Klonsky also appeared to take in this odd note. She congratulated Stern, and inquired about Kate’s condition—Stern had noticed long ago that the affinity of women for each other was never greater than in the process of childbearing, this circle no man could enter. But then she added, by the unpredictable logic that always brought people to it, “My condolences on your loss.”

  He nodded without a word. The two document cases, each the size of an accordion, were beside him. They waited, amenities exhausted, on the outskirts of adversity. He took a seat before her desk.

  “You seem, Ms. Klonsky, to have misconceptions about my client.”

  She summoned a small, sealed smile, meant to reflect poise and fearlessness. As the years had passed, Stern found himself practicing against young men and women close to his children’s ages. In general, it was his impression that they found him charming; his accumulated attainments lent him an almost statesmanlike stature. The Assistants were often deferential, without abandoning the poses required by conflict. At moments, Stern would find himself wondering how Peter or Marta would react if they could see the naturalness, the virtual honesty he brought to his relations with persons just like them. What would they think? Would this be the stuff of epiphany, or would they seize on the obvious? These people were not his children.

  “In what way, Mr. Stern?”

  “I know you suspect him of a crime. Yes?” She seemed to nod. “Tell me, Ms. Klonsky—”

  “You can call me Sonia, Mr. Stern.”

  Stern took her graciousness as a sign that she believed she could hold her own.

  “You must do the same, then. Please call me Sandy.”

  “Thank you.”

  “Certainly.”

  She smiled at him so suddenly, with a flash of such remarkable open amusement at their maneuvering, that Stern himself was taken aback.

  “You are inclined to tell me nothing?”

  “I can’t, Sandy.”

  “Is there an informant? Is that the reason for your hesitation?”

  “No comment.”

  “Because I have already assumed as much.”

  “If there’s an informant, Sandy, I haven’t the foggiest idea who it is.”

  This, Stern knew, was a clever response. The Assistants were often in the dark about the identity of informants, particularly those who had been promised they would never have to testify. The secret remained with the FBI agents, who would conduct covert meetings with their source and write reports to the U.S. Attorneys identifying the “c/i”—cooperating individual—only by a number assigned at Bureau headquarters in D.C.

  “Mr. Hartnell is not a retiring sort,” said Stern. “The business landscape is no doubt replete with those he has offended. Persons fired. Jealous competitors. You are aware, I am sure, that the comments of such persons have to be evaluated carefully.”

  Ms. Klonsky laid her pretty face daintily upon her fingertips and smiled agreeably. She was taking it all in, watching him work.

  “He’s had his troubles before,” she said. “The CFTC. One of the exchanges, or was it two?” She took a beat. “Not to mention the IRS.”

  Oh yes, thought Stern, she had developed a thick file. To be expected.

  “I represented Dixon on all of those occasions. There are times that he has put business expansion before recordkeeping. Candidly, Ms. Klonsky, the Exchanges and the IRS enforce a punctiliousness that the U.S. Attorney’s Office itself would have difficulty adhering to.” Stern gestured out the door. At times, in this office, you could learn the gravest grand jury secret simply by moving at deliberate speed in the corridors. The young Assistants stood in their doorways, gossiping about investigations. Names were tossed about. Old files were stacked like refuse, without regard to the confidences they contained. Some years ago Stern had seen two large accordion folders with the name of Mayor Bolcarro on them, waiting for storage, and felt a painful twinge of regret for the government’s apparent lack of success. His observation made Ms. Klonsky laugh.

  “You are wonderful. Stan Sennett said you’d walk through the door and just charm the pants off me, and here you are doing it.”

  “Me?” He maintained a look of humble innocence, but he registered the mention of Sennett’s name with some concern. Stern and the present United States Attorney were
not mutual admirers. The relationship went back at least a dozen years, to the period when Sennett was a state court prosecutor and could not seem to win a jury trial when Stern was defending. If anything, the wound had deepened of late. In one of his rare courtroom appearances, Sennett, in January, had prosecuted a case in which Stern represented a local city councilman charged with extorting sexual favors and cash payments from members of his staff. Stern had vilified the government’s chief witness, whom he characterized as a professional informant, a so-called private investigator who seemed to find someone prominent to tattle on whenever his own questionable activities brought him to grief. The councilman was convicted only of one count—a tax misdemeanor—and remained in office, while Sennett lamely claimed victory, a boast openly scoffed at in the press.

  In passing, they were cordial—Stern was with everyone—but Stan’s memory was long and the rancor deep. As meaningful, for present purposes, was Ms. Klonsky’s inadvertent admission that the U.S. Attorney had been consulted about this case. With five hundred indictments every year, and three times the number of grand jury investigations, only matters of prime significance reached the front office. All in all, this was a most unwelcome word. Dixon was making the wrong enemies.

  Ms. Klonsky asked for the documents she had subpoenaed, and Stern lifted the cases onto the desk one by one. She rose with some awkwardness, apparently no longer able to judge her body’s dimensions confidently, and headed to the hallway to retrieve her file. Left by himself, Stern circumspectly examined the possessions in her narrow office. Working the endless hours of a young trial lawyer, she observed no distinction between home and workplace; the passions of her private life spilled out here. Amid the inevitable diplomas and licenses, a large Kandinskylike oil hung, and a banner from a world-peace parade was stretched across her bookcases. The books themselves were not merely the usual ponderous legal treatises and casebooks, but also rows of paperbacks. There seemed to be a good deal of Continental fiction and many political works. Stern saw the name of Betty Friedan a number of times; also Carl Jung. The bottom shelf appeared to be the place of honor. On one side was a single photograph of Ms. Klonsky and a broad, curly-headed man, noticeably younger than she. Four books were centered between silver bookends: three slim volumes that had the look of poetry, all by a man named Charles, and a hardcover book called Illness As Metaphor. On the other side, in a Lucite frame, was a snapshot of a gap-toothed boy; taped to it was a bright, sloppy child’s drawing of a figure, over awkward lettering: S, O, N, N, Y. Both N’s were drawn backwards.

  “Your son?” asked Stern, gesturing to the boy’s picture when Klonsky returned. She lugged a brown expandable file across her body. As Stern feared, it was of considerable bulk.

  “Sam is my husband’s son. He lives with his mother. This is our first.”

  Wonderful, said Stern. A special joy. He remained deeply attuned to his desire to move onto a friendly footing with her.

  “Wonderful or crazy,” she said. “I refer to this as a geriatric pregnancy. My obstetrician is absolutely paralyzed. A forty-one-year-old lawyer with a medical history! He’s afraid his malpractice premiums will double.”

  Stern smiled amiably, but naturally offered no comment. A medical history, he noted.

  “Sometimes I think I’m nuts getting started at this age.”

  “Well, you say your husband is experienced.”

  “Oh, Charlie? I’m not sure he’s noticed that I’m pregnant.” She laughed, but her eyes veered away as she measured some private thought, so that Stern knew they had abruptly reached the end of this road.

  Instead, she reached for the documents, sorted and rubber-banded, which Stern had piled on the desk. They had been organized trade by trade, and she checked them off the subpoena. As she worked, Stern again began quietly asking questions. He had closely examined the records, he said. They disclosed nothing exceptional. No apparent market manipulation, no passing off bad trades to discretionary accounts, no double-charging of customers, no bucketing, by which the customer would pay a worse price than the house had on the floor.

  “It is most difficult from these documents to imagine what your informant is alleging. You have not subpoenaed records of a single account that Dixon controls. Nothing here is tied to him.” There was some flicker, a reflexive contraction within her serious brown eyes. Stern made no mention of the house error account, or the documents that Klonsky was trying to obtain from Dixon’s bank. He would never belie the impression that he was as ignorant as the government wished to keep him.

  “Can I ask?” she said abruptly.

  “Of course.”

  “Why does it matter whether there’s an informant? Assume there is.”

  Indeed, thought Stern.

  “Do you not think your target is entitled to know what wrongdoing this informant is claiming against him?” He was about to use her name, but he did not feel comfortable with ‘Sonia’ and thought it would be too stiff reverting to ‘Ms. Klonsky.’ “Is Mr. Hartnell obliged to stand by idly while the government determines if it can puzzle together one scrap of paper here, another there, until it has its case and is ready, quite literally, to destroy his livelihood and his life?”

  “I don’t see how he’ll be hurt by waiting now.”

  “He may assist. If I understand what your informant says, I might be able to bring pertinent matters to your attention.”

  “And you might also be able to identify the witnesses in advance, try to influence them, and do your best to control the flow of information.”

  He stared at her a second.

  “Just so,” said Stern quietly. He could not prevent a momentary scowl. The barroom wags were right about her. Not that she was incorrect in her estimate of Stern’s intentions; hardly. But there was something naïve in the way she presumed to inhibit him. Whether Ms. Klonsky knew it or not, she was engaged in a contest, a process, not the search for the Holy Grail. When she brought witnesses quailing into the grand jury room, where their lawyers could not accompany them, where the thought of every indiscretion, every lapse, accosted them like bogeymen, so that these persons were slavish in their eagerness to please the prosecutors, this, per Klonsky, was not influence. It was the government at work. But if the target’s lawyer spoke to the witnesses himself, reviewed their records, and tried to keep their recollections balanced, that bordered on subornation. The problem was simple: she was still new to her job. Poor Sonia Klonsky. Past forty and still so much to learn. He found himself quite disappointed.

  “You’re angry,” she said.

  “Not so.”

  “I wasn’t suggesting that you would do anything unethical.”

  “Nor did I take it that way.”

  Stern spent a further moment unloading his cases, withdrawing bundles of documents with their blackened edges of copier murk. Ms. Klonsky was still disconcerted by the change of mood.

  “I thought we were having”—she waved a hand—“an exchange.”

  “We disagree,” said Stern. “Consider it a matter of obligation, of our respective roles.” He stood. “Where might I expect you to go next?”

  She looked at him a moment.

  “I don’t feel satisfied, Sandy.”

  How in the world had Stan Sennett hired this woman? Did she want to have sensitivity sessions in the grand jury? What a remarkable person. In spite of his reluctance to admit it, she had some quality of magnetism. Her smile, especially in its sly aspect, was endearing; a deep, serious intelligence glinted in her eyes. But he felt braced by the recognition of a moment before. With Sonia Klonsky, one had the sense that, for all her woman-on-the-go composedness, a fragment of her soul remained on the verge of hysteria. There was something seething, molten, uncontrolled, unknown. That had a touching quality as well—a woman past forty, still on the voyages of a teenager.

  “Ms. Klonsky,” he said, “we really do not need to engage in hand-wringing. I assure you, we shall remain on cordial terms.” He offered his hand. Instead, she sank
down in the chair behind her desk, her face still dark and troubled, and rattled open a drawer.

  “There’s one other thing. Since you represent Mr. Hartnell, we can’t agree to serve you when we subpoena other witnesses from MD. The potential for conflict is too great.”

  Something new was coming, Stern realized. Klonsky was saying, in effect, that she would soon be setting sails for Dixon’s employees, attempting to get them to testify against the boss. If the government had its way, each would have a different lawyer. This was the prosecutors’ usual stance. Divide and conquer. Under the guise of concern about professional ethics, they tried to ensure that anyone who might have something to blab to them would not be under the influence of the target’s lawyer. Stern agreed wholeheartedly about the ethical precepts, but believed that the right to determine conflicts in the first instance was his, not the U.S. Attorney’s. He protested now, but Ms. Klonsky reverted to her firm look, forbidding further discussion.

  “Anyway,” she said, “Stan thought there was one subpoena that should be served on you. As a courtesy.” Klonsky opened a manila folder and removed a single sheet of paper, offering it to Stern. “We gave him a long date—almost a month—so you’ll have plenty of time to help him arrange for separate counsel.” Dumbly, Stern nodded. When he looked back, Klonsky was filling out a return of service on the back of her file copy, recording on whom and when the subpoena had been served.

  He had been having such a buoyant spell, Stern thought with sudden forlornness, gibing with this able young woman, assaying her character. Now this. His arms, as he looked at the subpoena, were leaden with alarm. Some primitive curse rose up in him against Dixon and his inevitably tortured courses. From the way this was being handled, the acknowledged special treatment, Stern suspected at once what was afoot.

  “Are there other persons from the order desk whom you expect to call?” he asked offhandedly, hoping the import of the question would slip past her, and Klonsky simply shook her head no as she wrote. Stern, at once, felt his condition grow worse. The order tickets Margy had promised to request from the Kindle office had not yet reached him, but he knew now what they would show. Dixon had not called just anyone on the order desk to trade ahead, as Margy had speculated; that, apparently, would have entailed too much risk, the chance that someone shrewd and less obedient might speak up, object. Instead, Dixon had conveyed the orders to a single compliant sap, the only soul on the order desk with whom the government needed to speak. And, of course, his daughter had married him. Stern folded the subpoena into three even parts. “John Granum” had been typed on the dotted lines reserved for name and address. His son-in-law now had a date certain for grand jury testimony. Klonsky’s guile, her fear of undue influence on the critical witnesses, was growing more understandable.