The Burden of Proof kc-2

by Scott Turow

  Witnesses and prospective defendants, too poor or too untutored to be accompanied by lawyers,.sat with grand jury subpoenas in their hands, awaiting the Assistants who would make use of them. Now and then federal agents, or an occasional defense lawyer, looking hangdog and disappointed, would emerge from the offices. And of course today Mr.

  Alejandro Stern, prominent member of the federal criminal bar, sat here as well, surrounded by two ponderous document cases as he awaited Ms.

  Klonsky, who the receptionist said was on the phone.

  This office had always struck Stern as a happy place. The lawyers were young and inspired, and almost all of them knew they were merely passing through. They did not remain AUSAs for long-five years, six was the average. Enough time to learn to try a jury case, for each to feel she or he had made a sincere effort to improve community wellbeing, before the greener glades of the private sector, of what Stern still thought of as real practice, beckoned. It was a good job, Stern thought. He had lost the best younger lawyer he'd ever had, Jamie Kemp, to the U.S.

  Attorney's Office in Manhattan, where Kemp had gone to try cases on his own and work on a rock musical which resurrected certain songs Kemp had composed two decades before when he had briefly been some kind of musical star.

  Kemp was quite nearly not the only one to join federal employment.

  Before the present United States Attorney, Stan Sennett, had been returned here from San Diego by the Justice Department, Stern had been approached about taking the job. The top aide of the state's senior senator had invited Stern to breakfast at one of the downtown clubs.

  This young man, who looked something like the singing star Garfunkel, with a head of shocked whitish hair that stood erect like a dandelion gone to seed, had thrown around every corny platitude known'to man; it was worse than an obituary. This offer was a compliment to Stern's abilities, the young man insisted, and to the wisdom, Stern knew, of a life in which he had never been politically aligned. While Mayr Bolcarro was not allowed by the senator to reward his retainers with federal appointments, his known enemies were rarely elevated.

  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 nonuniformed armies of the IRS,, the DEA, the FBI, and deploy them as he saw fit. No more of the drag 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 ajury'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 Sternwa proud apologist for deviation. No perton 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 Tiff ess 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 conditit;n-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 statesman-like 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 viiifled 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 every-one-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 ivestiga-tions, 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 circumspeetly 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 Kandinsky-like 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 rubberbanded, 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 ppeared 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 rubberbanded, 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. Harmell 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.