The Burden of Proof

by Scott Turow

  Klonsky suddenly spoke up in the silent office.

  “You still want to write a brief for Judge Winchell?” she asked Marta.

  “Sure.”

  “I think you should write a brief,” said Sonny. “I think our discussions have persuaded me that there are serious issues.”

  Marta blinked once. “Sure,” she said again.

  Stern began to speak. What discussions, he was going to say, but his daughter dug her hand into his sleeve and spun about with a harsh look that bordered on violence. She mouthed the words distinctly: Shut Up.

  Stern turned from her. “Sennetl will fire you,” he told Sonny.

  “Goddamn it!” said Marta.

  “This whole thing is sick,” Sonny said. The remark was directed to no one in particular: a final conclusion. Stern had no idea who it was that she meant to condemn, but her judgment was firm. She focused on Stern. “You were right, you know. Do you understand me?”

  He did not at first. Then it came to him: the informant. That was what had upset her—seeing Sennett’s duplicity, his mean, clever game.

  The door to the judge’s chambers opened then. Bud Bailey was standing behind Moira Winchell.

  “Sandy,” she said, even before the company was over the threshold, “Bud will go with you to the grand jury. When you’re done, he’ll keep you in custody in his office until the court of appeals rules on your petition for a stay. That’s the best I can do.” Even Moira Winchell, firm and unflappable, was somewhat undone. Her head moved about in the loose wobble of an old lady as she told him she could do no more.

  Marta spoke up then. She and Klonsky, after discussion, had agreed there were serious issues. The government now would agree to a week’s adjournment in order to allow Stern to file a brief.

  “Oh, really?” said Judge Winchell. She turned to Klonsky. “Mr. Sennett had seemed so intent.”

  “He may not agree with me,” said Sonny. “If he doesn’t, I won’t be here next week.” She smiled vaguely at her own irony.

  “Do you want to speak with him?” asked the judge.

  “He can’t be reached,” she said.

  “I see,” said the judge. Moira knew she was getting a message of some kind. “Off the record,” she said. “What’s the deal?”

  Stern, his daughter, Sonny exchanged looks among themselves. No one answered the judge.

  “Your brief Monday, response Wednesday, a reply if you wish when you appear Thursday morning, 10 a.m.,” said the judge, pointing at, Marta, Sonny, then Marta again. She looked once more at the three silent lawyers, then shrugged at Bailey, the marshal. “It’s a secret,” she said.

  45

  AS A CHILD, Peter was a sleepwalker. These were horrifying occasions. Because Clara tended to turn in early, it was usually Stern who had to deal with the situation. Once, Stern found him about to head out wearing his hat and mittens, although they were in the steamy depths of summer. Another night, Peter came down and practiced the clarinet. One other time, Stern heard the bathwater running. Assuming it was Clara, he only happened to peek in to find Peter lying in the tub in his pajamas. He remained fully asleep, the water a shining frame about his dark, serene face. The advice in those years—probably still today—was not to rouse him. Stern pulled him from the water gently, stripped off his clothes, and dried the lean young body, then dressed his son again. In these states, Peter responded to instruction like a magician’s assistant in a trance. Walk. Turn left. Turn right. He was, however, incapable of speech. It was a disturbing sight. Like waking the dead. The private theater of dream and sleep were not stage enough to relieve Peter’s inner forces. They needed, literally, to be acted out. After the bathtub episode, Peter reported he had dreamed he was dirty.

  It was the thought that Peter ought to be allowed to share his burdens which had brought Stern, late Thursday afternoon, to the rehab’ed apartment building where his son lived. After his adventures in the grand jury, he found himself too distracted for work. He was concerned about Klonsky, who, in her dismay over Sennett’s high-handed tactics, might have placed a black mark on a promising career, while emotionally Stern felt some need to take advantage of his reprieve. Eventually, his mind turned to Peter. Near three, he had called his son’s office, where the staff reminded Stern that Peter had no hours on Thursdays. Next he tried him at home. He was there apparently—the line was busy—and after failing to get through on a number of tries, Stern decided to go ahead while his courage remained high. He wanted no confrontation. No fussing. His manifest assumption was to be that Peter was well-meaning and bound by professional obligations. But Stern had decided it was best to get this out in the open. He preferred to have no other distractions when he proceeded to the calamitous showdown that he was headed for sooner or later with John and Kate. That one, he feared, might blow the Stern family to smithereens; they would float through space like an asteroid belt, pieces of the same matter, within the same orbit, but no longer attached. Only Marta might see things her father’s way in the end, and even she would be somewhat divided.

  Stern stood in the lobby’s dim light, attempting to correlate the name with a button. “4B P. Stern.” There. In Stern’s opinion, this was a desolate part of town, south along the river. It had been formerly the habitat of skid-row bums and mission houses, until the developers had arrived here in force about five years ago. The old churches, the printing plants, even the unused former train station were turned into loft apartments, but the area did not quite catch on. The streets were empty; there was little planting, no children. A few of the reprobate bums would get soused and return here out of habit or confusion and lie in the sandblasted doorways, their grimy heads against the shining brass kickplates of the refinished doors. Apparently, the denizens here were all like Peter, young and childless, happy to trade the convenience of a location adjoining the Center City for other amenities.

  A pretty young woman came into the lobby. She carried her cleaning and was dressed in full urban regalia—a blue suit, aerobic shoes for the walk from the office, and yellow headphones. The inner lobby door was activated by some electronic-card pass which she drew out of her handbag. Stern pressed the button for Peter’s apartment and, as the young woman held the door, entered. Climbing the stairs—none of these buildings had elevators—he once more prepared himself. No scenes, he promised himself. He knocked on his son’s door. After a moment, Peter’s face appeared in the seam allowed by the chain lock between the frame and the paneled door.

  “Dad.” All the usual emotions swam across Peter’s face: discomfiture, surprise. Oh God, this—this eternal nuisance.

  “May I come in?”

  Peter did not answer. Instead, he closed the door to sweep aside the chain. Was there the sound of movement inside? There was no one else when Peter threw the door wide. The young man himself was dressed in a spandex cycling outfit—a garish top and black knickers, with lime blocks of reflective material running down his flanks, and little low shoes. Peter’s blondish hair was rumpled after his ride. His bike, with the black headgear strung along the handlebars, was propped near the doorway, as much a part of the furnishings as anything else.

  “Jesus, Dad, why didn’t you call?”

  He explained that he could not get through. “There are matters,” said Stern, “that I wish to discuss.”

  “Matters?” asked Peter. They were still standing near the doorway and Stern looked into the apartment hopefully and actually took a step farther inside. It was only a little better than a studio. The kitchen and dining room and living area were merged, with a single bedroom and bath behind the common wall. The decoration was modest—opera posters and bright furniture filled with polyfoam, inexpensive modern stuff. Peter still did not invite him to sit. “What kind of matters?”

  “Concerning your mother,” said Stern. “I am hoping to have a candid discussion with you.”

  Peter virtually winced. Perhaps it was the subject—or more likely the notion of an open exchange with his father. Ignoring
his son’s lack of hospitality, Stern wandered farther into the living room, looking about. “Very nice,” he said. He had been here only once, after the closing, when the place was empty and entirely white.

  “Look, Dad,” said Peter, “I’m kind of into something right now.”

  “I do not anticipate a lengthy discussion, Peter. I suspect I shall have rather more to say than you, and that is not very much.”

  “What about?”

  Stern, at last, helped himself to a seat on the foam sofa.

  “Peter, I have long suspected that you were concerned for more than your own emotional well-being when you urged me not to allow an autopsy of your mother.”

  Peter stared straight at him, his blue eyes and gaunt face still.

  “Frankly, I was thrown off when I visited you at your office,” said Stern. “You seemed so easily convinced that I had come there because a new partner of mine had this problem. I realize now that your theory was that I had been infected before, sub-clinically, and was the one who had actually passed this on to my new acquaintance. That was why you insisted on such a rigorous course of testing.”

  Watching with a frantic, disbelieving look, Peter suddenly held up both hands.

  “Dad, not now.”

  “I am not here to criticize you. On the contrary, I believe—”

  Peter leaned down to his father and spoke with a determined clarity.

  “Dad, there’s somebody here. I have a guest.”

  With that, on cue, a distinct cough was emitted from the bedroom. There was no mistaking the sound, either.

  It was a man.

  “I see,” said Stern. He stood up at once. As resolved as he was to resist this, a response of dizziness, sickness gripped him. This lifestyle, choice—whatever it was called—remained beyond him. Not the acts, but the very philosophy. Stern, in truth, did not care much for men. They were rough, sometimes vicious, and generally unreliable. Women were far better, except, of course, they frightened him. “Well, we must speak soon,” said Stern. He attempted to look at his son, but failed by a fair margin and instead let his eyes fall to the toe of his shoe. There he saw a briefcase, the visitor’s no doubt, resting against the block of laminate that passed for the coffee table. The case was zippered, blue vinyl, with a large brass tag hanging from it. Stern had seen the case before. With that realization, he felt an outbreak of something else—panic, riot, emotion out of control: the man was someone he knew.

  “Look, we’ll have dinner,” said Peter.

  “This evening?”

  “Not tonight. But I’ll call.” Peter rested a hand on his elbow.

  It was, of course, weak and sick. There were secrets he could live without knowing, were there not? Life’s compulsions were hopeless. Obliquely, Stern glanced back at the briefcase. The tag was an enlargement of the man’s business card—Stern had seen these items before—but it was not visible from here. He let Peter lead him two steps to the door.

  “Sometime this week,” said Stern. “Soon after, I may be in jail.”

  “Jail?”

  “An interesting story.”

  Peter at once waved a hand. He did not want to know—or to have his visitor hear it. With that, that clue, there was a sudden pulse of alarm. Stern let his eyes shift to the case again. With the gift of farsightedness, the tag might be legible.

  And it was. Not the name, actually. He recognized the crest. When he did, Stern pulled his arm free from Peter’s grasp and bent to be sure he had made no mistake.

  “Oh, shit,” said Peter behind him.

  Stern stood up and covertly pulled on the hem to straighten his jacket, a courtroom gesture that he used before confronting a difficult witness.

  “Agent Horn,” said Stern loudly. “Show yourself.”

  “Oh, shit,” Peter said again, more despairingly.

  Stern did not bother to look back at his son. He was watching the bedroom door.

  “How do you say it, Agent? ‘Don’t make me come in there to get you’?”

  Kyle Horn, in his sport coat and white shoes, stepped into the living room. He was chewing gum, trying to smile.

  “Hey, Sandy,” he said.

  When Stern finally glanced about, Peter had taken a seat on his sofa and was looking out the window toward the far distance, where he no doubt wished to be. Horn, shameless, had continued smiling. Stern was erect as a soldier.

  “Please tell the distinguished United States Attorney for me that it will be a most interesting set of motions.”

  Horn at once shook his head.

  “We didn’t do anything wrong. Nobody’s rights got violated. You can just cool it.”

  “I shall not ‘cool it.’ Any person of decent sensibility will be deeply offended. To use counsel’s son—the target’s nephew—as an informant?”

  “It was all done right,” said Horn. He approached Stern briefly and snatched his case from near Stern’s shoes. “You’ll see.”

  “I shall never see,” said Stern.

  Horn was near the door. He pointed to Peter, a form of goodbye.

  “Stay in touch,” he told Peter.

  “What can I say, Kyle? ‘Shit happens’?”

  “Hey,” said Horn as he opened the door. He actually winked. “Life,” he told Peter, “is full of surprises.”

  46

  “ I’M NOT SORRY,” Peter said to his father. “It was the right thing to do. So don’t give me your disdainful look.”

  Peter held his father’s eye a second, then moved away. From his refrigerator, he removed a bottle of soda, pulled off the cap, and sat alone at the small butcher-block table, where he drank down the contents. When he belched he covered his mouth, then appeared to concentrate on the wall.

  Stern eventually followed him into the kitchen, a narrow whitewashed space built with typical late-century efficiency, the toaster and microwave slotted beneath the cabinets. Stern swung his dark suit jacket over the back of the wire-mesh chair opposite Peter’s and sat. His son glanced at him once or twice.

  “Peter, I believe I am representing an innocent man.”

  Peter removed something from his tongue and stared at his fingers.

  “He hasn’t told you anything, has he?”

  Stern reflected. “Very little.”

  “That figures. I couldn’t imagine you were holding back for tactical reasons.” He was still not looking at his father. “I was pretty sure you didn’t know.”

  “I know enough, Peter, to believe you have been spreading lies.”

  Peter turned to him then.

  “Don’t make judgments,” he said. “You don’t understand how it happened.”

  Neither spoke. The compressor clicked on in the refrigerator and a bus wheezed by down in the street. Peter flexed his jaw about ruminatively.

  “About five or six weeks before Mom died,” said Peter, “Kate comes to see me. One morning, before school. She’s forty-five minutes in traffic and as soon as she gets here she does a beeline for the John and I hear her retching. So the great diagnostician says, ‘You know, maybe you’re pregnant.’ And she answers, ‘I am. That’s why I came. I need the name of a decent place to get an abortion.’

  “I’m like, what? And so she tells me this long, involved story. About John. How he thinks he’ll never be anything that matters. How inferior he feels in this family. You know, everything we’ve all thought to ourselves a million times. And how, because of that, and because of her, too, he’s done something really stupid at work. Really, really stupid.

  “He had his heart set on becoming a floor trader. I guess his idea was that if he could show some ability, he was going to ask you and Mom to put up the money so he could rent a seat. But Uncle Dixon wouldn’t really let him near the pits. John kept asking. But Dixon thought the same thing about him as everybody else: dumb as a post. And he’s not. He really is not.”

  “Apparently not,” said Stern. Peter, absorbing his father’s dry tone, actually smiled.

  Kate, Peter said, believ
ed no one would take John seriously until he could demonstrate that he had made money trading. So she suggested they open an account at MD. He was right there on the central desk. He could put in his own orders. It would be almost as if he were in the pits. Kate signed the forms. They both knew that employees of member firms weren’t supposed to trade, but it was a minor infraction, Peter said. Everyone did it.

  “And they call it Wunderkind because that’s what he is, you know, in their heads, that’s who they figure he’ll be.” Peter dwelled on the thought. “I guess he’d promised her he could scrape together $5,000 to get started, but neither one of them is making much money, and so, eventually, he got another idea.”

  The idea was trading ahead. He’d put in small orders here when he knew that big orders were going to be executed in Chicago or New York. And he’d learned enough when he’d worked in MD’s operational areas to know how to use the house error and Wunderkind accounts to hide the profits.

  “He promised himself that he was only going to do it once or twice, just to get himself started. Famous last words from the penal colony, right?” Peter asked.

  “Those,” said Stern, “and ‘Just one more time.’”

  “Right.” Peter actually laughed for a second. Then he sobered himself and went on. “Obviously, the front-running worked. But when he traded, the money was gone like that.” Peter snapped his fingers. “He decided he didn’t have enough capital to handle the ups and downs in the market. What he needed was real money. So he traded ahead again, say thirty times, and picked up $300,000 in a month.”

  “And why did he simply not buy his seat on the Exchange at this point?” asked Stern.

  “Why didn’t he do a lot of things?” Peter smiled, in a way. “I think basically he was afraid to. He couldn’t explain to anybody where the money came from. And, frankly, he still didn’t know his ass from a hole in the ground as a trader. He’d have lost the seat in a week. He wanted to try to stay even for a couple of months.”

  “And how much, may I ask, did your sister know about this?”