The Burden of Proof kc-2

by Scott Turow

  "Whose writing?" he asked, pointing.

  "Betty's."

  "And to whom," asked Stern, "was' this check made payable?"

  "We looked for the canceled check." He pushed a button on his telephone console and asked that Ms. Fiofi be summoned.

  She appeared at once, another person in a dark blue suit.

  She recited the steps she had taken to find the wayward check. Their own check-reconciliation department had searched; their bank; the Fed.

  The trust officers, who normally received the canceled checks and statements on this account, had looked high and low. It was this tracing process, clearly, which had gone on while the bank had been holding Cal at bay.

  "I'm positive it hasn't cleared," Ms. Fiofi said. "Can we stop it?" asked Cal.

  "Stop?" asked Wagoner. "It's a certified check. We've guaranteed payment."

  "It hasn't been presented."

  "How could we stop it?" asked Wagoner.

  "It's stale, isn't it?"

  Stern spoke up. The question he had asked before had not yet been answered.

  "To whom was this check made payable?"

  Ms. Fiofi looked to Wagoner.

  "We don't ordinarily make a record of that," he said. "We have no reason to."

  "You do not know?" Stern spoke to Ms. Fiofi. Wagoner might never answer directly.

  "We don't know," she said. "Usually, you have the returned check.

  Sometimes we'll put a note on the requisition. It wasn't made payable to Mrs. Stern, if it helps. I remember that."

  "You do?" asked Stern. "Yes."

  "Clearly?"

  He was in the mode of cross-examination now. Familiar ground.

  Something, he suspected, had made an impression on her.

  "There is a particular reason you recall?" She shrugged.

  "Not really."

  "You remember the name?"

  "I don't, Mr. Stern. I've racked my brain."

  "But it was not an entity? A corporation? Partnership?"

  "No, I'm sure of that."

  "Not a charity or a foundation?"

  "No."

  "An individual?"

  "I believe so."

  "I see," said Stern. He knew the rest. It was obvious now why she remembered. "A man's name," said Stern finally.

  Ms. Fiori, involuntarily, allowed her teeth to close a bit against her upper lip.

  "Yes," she said.

  Yes, thought Stern. Of course.

  For a moment no one in the room spoke.

  "So some fellow is walking around with my wife's check for $850,000 in his pocket?"

  It was absurd, of course, but the humiliation was unbearable. It raced through him, like acrid fumes, and seemed to rome its way to his eyes. He knew he was flushed. Cal at last said something.

  "Jack, there has to be a way to stop that check."

  "Cal, it's certified. We'd be buying ourselves a lawsuit for wrongful dishonor. We don't know what kind of transaction was involved here."

  Wagoner, provoked by Cal, glanced as an afterthought at Stern. He had been indelicate. "I promise you this much. We'll let you know when the check is presented. If you want to get an injunction at that point, God bless you."

  Stern was already on his feet. He spoke to Wagoner and Ms. Fiori, thanking them for their assistance, told Cal he would be in touch, then left the office. He was-againm reeling.

  Outside the bank's revolving doors, he placed Marta's skimmer on his head and watched as the wind took the hat away and bounced it down the pavement, weaving among the pedestrians. When he turned, Cal was beside him, watching it go.

  'TI1 chase it," Cal said, but did not move.

  Stern gestured that he ought not bother. They walked in the direedon of the hat without speaking.

  'TII bet," said Cal at last, "when everything is said and done, we'll still have a chance to unwind that transaction.

  She couldn't have had the slightest idea of the tax implications of what she was doing."

  Stern barely contained himself. What a numskull Cal was, always congratulating himself at length because he was not even dumber. Who gave a damn about the money? Here at last, three decades along, Clara had found the way to curtail his interest in her wealth. When he turned back, Stern found his eyes fastening on the dark spot behind Cal's ear.

  "I am not concerned, Cal. Whatever it was, shah be." He caught sight of the banner on his hat; it was resting against a mesh trash bin a hundred yards away.

  He took a step in that direction, and then stood still while that ugly interrogatory suddenly burned through him: Who? Oh yes, it was time for that again. Who was it? In the first few days, Stern with considerable discipline, and an aversion to pain, had refused to lower himself to this debased parlor game. But eventually the outrage boiled up in him and he could not suppress his dismal curiosity. It would have been more noble to be able to claim that it was vengeance for Clara's sake he was after-to find and punish the heartless scoundrel who'd inflicted what became a mortal disease. But his needs were more basic, and entirely his own. Whether or not it was a lurid interest, he simply had to fill in the picture.

  In these moods, he suspected virtually every man who came into his view.

  Was it the mailman or, as in some filthy story, a salesman trayeYing door-to-door? Today he'd learned that it was someone who needed money-perhaps an impoverished student of hers whom she had fallen for and sought to mother; or a straggling musician in a garret who wanted a permanent endowment? Perhaps a young man starting out in business. Or an older, married fellow who needed cash to finance his divorce?

  Once or twice, at home, he'd picked up Clara's leathercovered address book and had gone through it page by page, weighing prospects with every male's name, no matter how anlikely. Any man would do. How about Cal?

  Perhaps his surprise at the money's disappearance was only an elaborate act. With a lover's gratitude, Clara had made a gift of what Cal had long superintended. But Ms. Fiori surely could not have failed to recall Cai's name with him seated right there. Perhaps it was Dixon. Of course, Clara's distaste for him seemed so sincere, and Dixon with his plasticcoated penis was, by Peter's evidence, not likely to be spreading--or contracting any such disease. Nor had Dixon the need for anybody else's money. How about Nate CawIcy?

  He had the sex life of a chimpanzee. Perhaps all hisslmlking about was a reflection of guilt. Or the pompous rabbi at the temple? He certainly was an object of Clara's esteem and generosity.

  Abjectly, unwillingly, Stern on the street corner placed his hand across his heart. Cal was down the avenue waving Stern's hat to show it had been safely recovered. Stern studied the throng of suited men striding the street. Who? he thought, seething with hatred, weakened by shame. Who?

  In MD's offices in the Kindle County Futures Exchange, Stern asked the receptionist for John Oranurn and took a seat. Dixon had a showpiece office a few blocks south of here, a place with exposed brick walls and banners and baffles used for sound deadening that was often pictured in architectural magazines; that was the site of MD's local trading room and central executive offices. But the order desk and back office remained here in a bright, functionallooking space in the KCFE.

  After a few moments AI Oreco, Dixon's number-two person in Kindle, affable, half bald, too fat, greeted him. Dreading this 'meeting, Stern had put it off much longer than he should have. Finally, this morning he had left a message that he was coming, but John apparently had been needed on the floor. They would have to go get him. From his desk drawer, AI grabbed his red plastic trading badge, engraved with his initials and MD's clearing number, and pulled his navy-blue ttoor jacket off a hook. Downstairs, at a security desk, Stern was signed onto the floor for fifteen minutes. Two years ago, a fellow in a wig had placed dozens of trades and disappeared without settling the losing transactions. Now, if Stern exceeded his granted time by more than a minute, a cadre of security officers would spill across the floor and pull him out as unceremoniously as a spy.

&n
bsp; This was an exciting place. On the Exchange floor, the profusion of color and the volume were exceptional. It was like being on the playing field in a thronged athletic stadium. The huge black tote boards thirty feet overhead flashed in optic shades of orange, red, green, and yellow as their digits fell, while a red band of local and national news raced by below. Young people-runners, traders, order clerks-dashed about in their colored coats and corduroys, each looking purposeful, hyped-up, singleminded. The floor was confettied with discarded orders. In the meantime, in the tiered trading pits, the fundamental business went on, the brokers, the locals, the top stair men, forty and fifty deep, buying and selling in a screaming melee of surging hands. Fingers up and out; beckoning or refusing. From their black wrought-iron observation posts, the pit reporters overhead copied down each fill. For all the electronic circuitry, the phones and faxes and computers that took information to and from this place, at the junction point one still depended on physical skills: visual acuity, strong lungs, and good ears.

  The din, the fierce voices, rang out incredibly. At the windows three stories above, various gawkers stood with' their faces pressed to the glass.

  In this world, greed had annealed with some kind of benighted manliness, so that there was at times'an atmosphere of savagery. Young men-too many of them Jewish for Stern's comfort-moved about with astonishing swagger.

  Twenty-eight years old, thirty. Kids who had barely schook. Downstairs, at a security desk, Stern was signed onto the floor for fifteen minutes.

  Two years ago, a fellow in a wig had placed dozens of trades and disappeared without settling the losing transactions. Now, if Stern exceeded his granted time by more than a minute, a cadre of security officers would spill across the floor and pull him out as unceremoniously as a spy.

  This was an exciting place. On the Exchange floor, the profusion of color and the volume were exceptional. It was like being on the playing field in a thronged athletic stadium. The huge black tote boards thirty feet overhead flashed in optic shades of orange, red, green, and yellow as their digits fell, while a red band of local and national news raced by below. Young people-runners, traders, order clerks-dashed about in their colored coats and corduroys, each looking purposeful, hyped-up, singleminded. The floor was confettied with discarded orders. In the meantime, in the tiered trading pits, the fundamental business went on, the brokers, the locals, the top stair men, forty and fifty deep, buying and selling in a screaming melee of surging hands. Fingers up and out; beckoning or refusing. From their black wrought-iron observation posts, the pit reporters overhead copied down each fill. For all the electronic circuitry, the phones and faxes and computers that took information to and from this place, at the junction point one still depended on physical skills: visual acuity, strong lungs, and good ears.

  The din, the fierce voices, rang out incredibly. At the windows three stories above, various gawkers stood with' their faces pressed to the glass.

  In this world, greed had annealed with some kind of benighted manliness, so that there was at times'an atmosphere of savagery. Young men-too many of them Jewish for Stern's comfort-moved about with astonishing swagger.

  Twenty-eight years old, thirty. Kids who had barely scraped their way through high school had bought seats on the Exchange and traded for their own accounts, often making millions. Others would lose their shirts or trade away an accumulated fortune in a matter of days. It made no difference. Those who went into the pits wore the macho pride of bullfighters. Like cavemen they lived on the unpredidictable whims of wind and rain, markets, seasons.

  This, they believed, made them tough. The risk made them high. Stern had heard stories, amusing if not true, of handjobs delivered in the jostling trading pits by certain female clerks. erity was not the point of these tales.

  They emphasized the exhilarated air that many believed they breathed here. 'They had it better than ordinary dripspmoney, the blood of life, was always passing through their hands in staggering amounts. Once, years ago, when Dixon was still often on the floor, Stern had met him for lunch and found him conletting with four younger colleagues, all traders.

  'I got this one,' a man'had said, moving in front of one of the elevators.

  'For what?" a second asked.

  'A bill." 'A big bill?"

  "Right."

  Dixon laughed and dug through his pockets. He stepped before the second elevator.

  Eventually, the five of them passed the stakes down to Stern. A thousand dollars a man. In cash. They were betting on which elevator would come first.

  A1, a dozen feet ahead of Stern on the floor, pointed to John in the MD trading booth, a narrow gray counter space that looked like a hotel newsstand. Between the pits, the various clearing corps had these tiny preserves where orders and fills could be phoned back and forth from the floor. Every inch down here was precious. Ten people would work in quarters closer than steerage.

  John was on the phone now, writing furiously, talking 'back. Upstairs at the other end of the line, Dixon, doing his ugly deeds, had found him. He must have asked for John by name. Was he counting on John's loyalty or his ignorance? Probably both. John was eager to please him.

  Dixon had mentioned that John had asked repeatedly to be advanced into the hurly-burly of the trading pits. He was not ready, Dixon said, had not been around long enough.

  He kept John on the order desk, although John filled in down here whenever he could. Luke all the runners, the clerks, this business's perpetual flotsam and jetsam, John apparently shared the common dream:

  Get experience. Get a seat. Get rich. The pits remained one of the few places left where an unpromising young person, a high-school loser, a kid without an electric guitar or four-three speed could still hit it big. John, Stern took it, wanted one more chance to make it.

  John slid out of the booth while AI took his place. His son-in-law greeted Stern with much the same look of dismay Peter had recently.

  After a futile effort at conversation, they returned to MD's office. The only space John had of his own was a desk in the midst of the tumultuous back office. John stopped there to throw down various papers, then directed Stern to a conference room. A magnificent photo of Kate stood on the desk amid John's piles. His daughter, Stern thought again, was an exceptional beauty.

  Even chatting with his father-in-law, John looked childishly uncomfortable. His huge shoulders sloped, and he idly fingered an envelope on the desk. He wore the uniform of the floor, MD's unstructured navy cotton jacket, corduroys, and'a knotted tie dragged three or four inches below his open collar. A photo ID hung from his pocket.

  What was there about this young man that Stern found so infuriating? He was reminiscent sometimes of a comic-strip oaf, so large and amiable that he deserved a balloon over his head: Duh. He was not dumb. Clara, for years, had been at pains to make that point. He had had no difficulty finishing college, long after his athletic career had ended.

  But there was a fecklessness about him. Large, apple-cheeked, blond, plumper than in his playing days, he looked like an inflated two-year-old, with as little guile.

  Stern was, convinced that the present matter would render him numb. He would have no intuition about how to proceed and few resources with which to manage the strain of the coming months. Stern had seen these situations throughout his profeSsional life: a family member, a business colleague, wn a rope by a prosecutor, offered freedom in exchange for testimony. Some tossed it back, with royal indifference. But not many. Most tried to save themselves, bargaining with the truth and appealing to those they implicated for understanding. They ended up scorned by everyone. It was hard to imagine John having the suppleness to endure this storm.

  Stern had stood to close the door and after a 'brief preface came to the point.

  "Dixon Harmell is being investigated by a federal grand jury."

  "'Ooo," said John. He looked like a carpenter who had just walloped his thumb.

  "Yes. It is very unpleasant."

  "What for?"


  "Well, I think I should let someone else explain the details to you. In general, the government seems to suspect some form of improper trading ahead of customer orders. Has anyone from the FBI attempted to speak with you? A chap named Kyle Horn?"

  John shook his head. He didn't think so. "What does he look like?"

  "Big fellow." Big blond goyishe,looking lunk in a Cheap sport coat, thought Stern. But that would not do.

  John again shook his head uncertainly. You would think FBI credentials might make an impression, even on John, but there was never any telling.

  Stern removed the subpoena from his briefcase and tried to explain what it meant.

  "Due to our relationship-yours and mine-the prosecutors were courteous enough to allow me to receive this for you.

  However, because I already represent Dixon, you should consult with another lawyer before you answer the government' s questions."

  What kind of questions?"

  "I could speculate, John, but that would probably notbe best."

  John squinted. He didn't get it, of course. Stern explained that the government believed he had valuable information.

  "They want to use me to get him?"

  "Exactly."

  The large baffled look Stern would have predicted rose up in John's eyes. A deer in the road. He had no idea what to do. The conflicts were between all the simple things that he took as harmonious. Loyalty.

  Truthfulness. Selfpreservation.

  "John, you and your lawyer must decide whether you wish to negotiate with the government for immunity. If that is the case, then your lawyer will give the prosecutors a prediction, a proffer, of what you would say."

  "Yeah,"' said John, "but what if I don't want to talk?"

  "Again, John, that is a good question for you to put to your lawyer. But the government can always choose to grant -you immunity without regard to your desires, in which event your choices are between answering questions and jail."

  "Jail?" John took this in, too, with continuing ponderous reflection. "I really don't know that much."

  As this conversation proceeded, Stern had gradually felt his heart declining, and with this response, it plunged the remaining distance.