The Burden of Proof

by Scott Turow

“Ah, this is great.”

  “I feared you had heat stroke.”

  “Just tired.”

  She reached over and laid her hand very briefly on his forearm. “It was nice out there.”

  “Yes.”

  “I’m glad we’ve become friends.”

  “As well.”

  These things came out of Sonny trippingly; she spoke from the heart as a regular matter. For him, it was all a muddle. He felt, as so often in his life, the important moment, the one of high emotion, deep feeling, sliding beyond him, not merely beyond control but wholly out of reach. He would never stop being himself.

  “Can I tell you a story that will embarrass you?” she asked.

  “If you believe I can stand it.”

  “I think you can.” She looked off in the darkness. “When I was in law school, I went down to watch you in court. When you were defending Judge Sabich. I was there every day. It was like close-up magic. You know—how it doesn’t really matter whether the balls are disappearing, because it truly is magic that human skill can make it look that way? That’s how I felt. I didn’t care whether he was guilty or innocent. I just wanted to be able to do what you did. What do you think of that?”

  “I think you are most kind to tell me.” She peered over; he could see she did not understand, and he inched somewhat lower in the tub. “I find it difficult, of late, to think of my professional life as an example to anyone. Given its costs.”

  “Are you talking about your wife?”

  He made a sound.

  “Huh,” Sonny said. She was quiet. “Is there something you could have done?”

  “Paid greater attention.”

  She did not seem inclined to respond, and he was quickly seized by a fear that she found this morose or, worse, self-pitying. For a second she disappeared, plunging beneath the surface of the water and came up glistening, shedding water and light, bubbling her lips and smoothing her hair.

  “You know what I think?” she asked.

  “What is that?”

  “I think you can only be yourself.” She wrung out her hair. Was this the thought for the night? Stern wondered. “I tell myself that a thousand times a day. Everybody’s screwed up. And things happen that screw you up worse. You get cancer. Or somebody dies. But you do your best. I would give anything to be a lawyer as good as you are, to think I did something important that well. I mean, look at what you’ve done.”

  “I look,” he said, “and feel that I could have done better.”

  “Then do better next time.”

  “With the next life?”

  “With the next part of this one.”

  That was, he realized, the only answer, the sole sane response. This, too, seemed to be a repetitive theme.

  “And remember,” she said, “that you’re an example to people like me.”

  “You flatter me.”

  “I mean it.”

  He looked over to Sonny. She had laid her arm on the back of the tub and he touched her most briefly, as she had touched him. Then he went on.

  “Apparently, I was not example enough, inasmuch as you chose the wrong side.”

  She drew back, as he expected. “Is this humor?”

  “Of course.”

  “Oh.” She smiled, shirking off the sense of injury. “I always thought I’d become a defense lawyer. But prosecutors have so much power. To do good things, you know—not just bad.”

  “Of course,” he said again. “I admire the rectitude for which prosecutors stand.”

  “But you wouldn’t think of doing it?”

  “I have thoughts. But my view—purely an idiosyncratic one, I stress—is that I would only be doing further damage to what is already smashed and broken. Understand, I truly believe yours is a job that must be done—but better not by me.”

  “Is the story true, then?”

  “What story is that?”

  “That you turned down the offer to be U.S. Attorney before they gave the job to Stan?”

  He waited, reflecting. “Is that worn-out rumor circulating again?”

  She knew she was being put off.

  “I’m not asking so I can tell someone else.” With all her terrible pride, she was, he saw, somewhat offended. “I have a reason for wanting to know.”

  He described his meeting with the senator’s aide in a few sentences. “I was never told that I was the first choice. I have no idea who would have been selected, even had I been disposed.”

  “You know it would have been you,” she said, “and so does Stan. I think that bothers him. A lot,” she added.

  Stern privately had long harbored the same view. She was pensive, and then dipped again beneath the water.

  “I’m getting out,” she said when she emerged. “The o.b. doesn’t like me in here for more than ten minutes.”

  Stern turned away to stare at the moon and the darkness.

  “When you’re ready,” she said behind him, “we can have that talk.” He heard her pad off and, after telling himself not to, turned to watch her go, with her bundled clothes clutched to her chest, her hair dripping, the broadened lower proportions of her form still a becoming sight, wet and shining, as she retreated.

  In a minute, he rose. He was on the edge of the tub, in his full naked glory, when Sonny leaned out the window with another towel. “You should see the look on your face,” she said, and hung the towel on the window frame. He could hear her laughing inside as she walked away.

  When he came in, she was in a white terry-cloth robe, combing out her hair at the cable-spool table. Un-made-up, undone, she remained herself, strong and pretty, confident of her own appeal. She went to the bed to move Sam to the smaller room, but Stern insisted on carrying him and, with Sonny directing, bore the warm, small form to the cot in the adjacent room. Sam remained miles off in the profound grasp of a child’s sleep.

  “Strawberries? Cottage cheese?” Sonny was eating and the food was on the table. Stern declined. “So how do we do this? You’re going to tell me what you know and I’m going to tell you if you’re wrong. Is that the deal?”

  “Sonny, I was perhaps too insistent. If—”

  “No,” she said, seizing a strawberry. “Sennett is screwing you around. I was never sure why before. Your client deserves better treatment. But there’s only so much I can do.”

  “I understand.”

  “All right,” she said. “Shoot.”

  This was a boundary, a line he preferred not to cross. He went on, merely because he remained grateful for her company, their conversation, for any reason not to depart.

  He started with the basics, the large orders, the two exchanges, the error trades. When he mentioned the use of the house error account, she drew back with a marveling smile.

  “Now, how did you figure that out? Sennett is sure you’ll never get it.” When he hesitated, she turned the back of her hand. It did not matter. “Go on.”

  “Can the government show, by the way, that market prices were affected by any of these trades, or that someone was otherwise harmed?” He had been thinking about this point for some time. After indictment, a motion to dismiss on these grounds would be called for, claiming the prosecution could not prove a crime.

  “We’ve looked at the cases,” Sonny said. “There’s an offense here. If you profit off the customers’ information, you’re taking something from them, one way or the other. What do you think the customers would say?”

  Stern lifted his hands noncommittally. In the abstract, he probably agreed with her. He was more certain a judge would.

  “Go on,” she told him again.

  He described how the accumulating profits, after further manipulations, were invested in the Wunderkind account—where over time they were lost, all of them, not to mention a good deal more.

  “And you suspect Dixon of controlling this account.”

  “Go on,” she said yet again. She had offered no other comment when he told her what evidence he thought they might have.

&n
bsp; “I am certain the government can explain,” said Stern dryly, “why someone would steal $600,000 in order to lose it.”

  “That’s not an element of the offense.” She meant that the government could prove the crime without solving that riddle. The fact that the money was lost might not even come into evidence.

  “Nonetheless,” said Stern.

  “Go on,” said Sonny. She had become grave and composed and clearly had no interest in debates.

  “Right now, you seem to be energetically seeking the documents which show who established the Wunderkind account. Without that, of course, you will have no way to tie Dixon to the account, to the profits, and to the trading ahead.”

  For the first time, she was completely quiet. Stern waited until he realized that he was being informed he had missed a step.

  “Is that where John comes in?”

  “I don’t know where he fits, Sandy. Honestly.”

  That matched what Tooley had told him; Mel was dealing strictly with Sennett. Stern wondered if that meant that John was being extraordinarily cooperative or more difficult than expected—or simply that Sennett, as usual, was being high-handed and secretive, even with his own staff. Yet even if John had a perfect recollection of Dixon calling in every dishonest trade, the government would want proof that Dixon controlled the Wunderkind account, where the profits briefly rested. Without that, the prosecutors would have difficulty establishing that Dixon was not acting innocently or at the behest of someone else. Stern repeated this thought aloud.

  “But you still require the signature forms in order to establish Dixon’s relationship to the Wunderkind account.”

  Again, she made no answer.

  “I am wrong?” asked Stern.

  Sonny reached to the bowl and ate another strawberry, while he tried to concentrate. This was ordinarily his strength, picking out the nuances of the evidence. But he had missed something of consequence. He remained quiet.

  “Last year,” said Sonny, after a bit, “starting out in the office, I prosecuted a lot of dope cases.”

  “Yes?” He had no idea where she was leading.

  “You know how those cases go. DEA sees suspicious activity. There’s an informant. They get a warrant, knock down the door of a stash house, find ten keys of cocaine and no one inside it. Then they come to the poor Assistant to issue grand jury subpoenas so they can figure out who owns the house—and the dope.”

  “Yes,” he said again.

  “When you get the title to the property, or the lease to the apartment, whatever, it’s pointless. It’s always some little old lady from the North End with whiskers and a bunch of cats. But we prove it’s their house, anyway.”

  Stern nodded. He was familiar with the government’s techniques. They went to the gas company, electric, telephone, and found out who was paying the bills. In one case that Jamie Kemp had handled before moving to New York, the government proved control of the house by showing that their client had purchased the garbage cans in the alley. He took it that Klonsky had issued a broad hint but for a moment it was lost on him.

  “The deficit,” said Stern suddenly.

  She smiled.

  “Dixon paid for the quarter-million-dollar debit balance left in the Wunderkind account,” he told her.

  “Go on.”

  “That is why you subpoenaed his bank records. To find the check he wrote to cover that debit. You were never tracing the funds he’d deposited.”

  “Go on,” said Sonny.

  “And you have the check?”

  “Go on,” said Sonny again.

  He waited. Dixon, too, had apparently missed the point of the inquiries at the bank. Protecting its informant, the government with its various subpoenas had made a convincing show of being more interested in the money Dixon received than what he’d paid out.

  “So why, then, are you so concerned about the account-opening documents?”

  Of course, she would not answer. Stern subsided again to silence. What if Dixon had filched those papers? Why would the government initiate such hot pursuit of what was beside the point?

  Unless the prosecutors knew in advance that Dixon had made off with the records. Of course. Their informant had once more led them to the right spot. The prosecutors—Sennett, at least—never expected the Wunderkind records to turn up in Margy’s hands. That was why Sonny had recovered her good humor after she had gone to speak with him. She had learned what Sennett had counted on all along, that the prosecution would end up with the best of both worlds: evidence that Dixon controlled the account and proof he was trying to conceal that fact. With that kind of showing—state-of-mind evidence, as it was called—the government could cut off any clever conjectural defenses that might be ventured at trial to suggest a half-sane or innocent motive for Dixon’s conduct. Once the prosecution was able to establish that Dixon was covering his tracks, there could be little argument about what he thought of his own activities. John, at this point, remained Dixon’s sole hope, and a faint one at that. If John’s memory failed in some critical regard about who had instructed him to place the error orders, there might be a minute space in which to turn a sly pirouette. Yet that was not likely. The prosecutors had the critical proof in hand now. The walls were closing in on Dixon, as on some Poe character; the light was growing weak. Here, supercharged by the presence of this young woman, the weight of these developments did not really seem to settle upon Stern fully.

  “You really like him, don’t you?” Sonny asked, after watching him a moment.

  “I care greatly about my sister. Perhaps my feelings for Dixon are merely force of habit. But I am very sad to hear this.”

  “This is just between us,” Sonny said. “Stan would hang me.”

  “You have told me nothing.” He crossed his heart, a schoolboy habit from Argentina, from a time when Gentile friends demanded the gesture, never understanding his reluctance. “There will be no communication. To anyone. No hint. My promise.”

  He looked at her across the table. He had exhausted the excuse that brought him here. He rose, slapping his sides.

  Sonny yawned.

  “Believe it or not,” she said, “I think I’m going to sleep.”

  She insisted he take an enormous bag of berries. As they approached the door, he made her promise to say goodbye for him to Sam. Then she grabbed him, applying a quick comradely hug, coming close enough to bump her firm belly against him and sweep her wet hair across his cheek. His arms came together slowly and never reached her before she was gone again. A brief ache of some kind, of deprivation, rose up and subsided.

  “You were most kind to have me,” he said from the other side of the screen.

  “We’ll do it again,” she said. As he trudged up the stairs, her voice, full of her own ironic laughter, reached him in the dark. She’d had an afterthought.

  “If I’m still married to Charlie.”

  30

  HE ARRIVED HOME NEAR ONE, after traveling down the dark country roads and then the highway, tugged through the night by the beam of his headlights and the heavy currents of his own thoughts. He had tuned the radio to the mumble of a Trappers game, but after a time snapped it off and drove entirely in silence, dominated by sensation—the heat and scent of the strawberry field, the reverberating charge when she had slid so quietly into the water. At moments, of course, he pondered about Dixon. Soon they would have to seriously consider the alternatives. For a few minutes Stern worked at it all in his mind, probing, tangling and untangling, but he saw no avenues of quick escape. He thought, naturally, of his sister then. Silvia would suffer. Full of high emotion in the dark, he endured that pain anew.

  Inside the door of his home, Stern plunged his heavy-bottomed body down on the antique milking chair in the front foyer, his thick legs poked out before him. The bag of strawberries, moistened now by their own juice, lay in his lap. Across the hall, he caught a piece of his reflection in the wig-stand mirror and saw how ridiculous he looked; he had been in that tub mor
e than an hour and never let a drop of water touch his head. The little pouches of hair on either side, brittle with the sun, were lifted out like cherub’s wings, and two or three dirty streaks of dried sweat ran from his crown to his cheeks. Licking his lips, he could still taste the dried salt gathered in the hollow beneath his nose.

  He was exhausted. But there was no resisting in the safety of his home the measure of his own excitement. Here in this known space, close and his alone, something finally gave way, and riding up in him he felt at last the full expression of what had waited throughout the day. He made a sound out loud as the longing radiated through him and he sat riveted by passion. This was remarkable. His blood carried an electric charge. His heart and male organs were affected by an aura of desire which was not just that deep body-wanting thing, that longing like a stifled moan, but something else, something needier, softer, and more yearning. He wanted, simply, this young woman. To be with her. To hold her and be held. My God! It passed over him in waves as he marveled at the overpowering, transforming feeling of it all. The rest of life did not exist, not simply the boundary lines of circumstance, but the hobbling limits of personality. Here, for a moment, all limitations could be exceeded. He would croon beneath her window or, more simply, confess to this wild yearning. He had half a mind to go directly to the phone, until he recalled that he had seen none in the cabin. This was what drove grown men to shirk their families and young men to foolish daredevil acts. He sat gripping the arms of his chair.

  Oh, it made no sense, but that was hardly the point. The empire of dreams, the region where images preceded words and sensation was supreme, had given up this fixation and there was no logical quarreling with it. How much, really, did we ever understand about this? He’d had prescriptions from everyone, advice from every soul on earth about how to run the remainder of his life. But this was what he had been awaiting—to find what was beyond humdrum propriety or custom and to learn his own true ambition. And it was this young woman, troubled but struggling each instant, no matter how else she faltered, to be the real thing, her best and most authentic self.

  But, of course, nothing would happen.