The Burden of Proof kc-2

by Scott Turow

  Resolutely, Stern differed. If he did as Marta wanted, the prosecutors would promptly obtain a use immunity order dissolving his Fifth Amendment rights. Nothing would have been gained and the judge would feel taunted by the desperate tactics.

  Defeated, Marta sat down beside him.

  "I don't understand this. How can you do this to yourself, just to suit him?"

  "If I were to suit your uncle, I would commit perjury and solve all my problems. Perhaps I am simply too much of a coward to adopt that approach"

  "Daddy, please. If you confront her in an area like this, where we have no legitimate grounds to resist, she'll put you in jail,"

  "Then that is what will occur."

  His daughter looked at him for some time.

  "Jesus Christ," said Marta. "And you complain about him as a client. What was in the goddamn safe?"

  He shook his head again.

  They returned to the table. The judge and the Court reporters were chatting about movies.

  "All right, on the record," said the judge.

  Marta folded her hands, placed them squarely on the table before her, and announced that Stern would refuse to answer the question posed, on the grounds of the attorney-client privilege and the Sixth Amendment's guarantee of the right to counsel. The ter of personal philosophy, not law."

  "So far as I am concerned, Marta, this is not discretionary. And if it were, I would not use the legal system to settle my differences with Dixon."

  Frustrated, Marta threw down her hand.

  "What about the Fifth?" she asked suddenly.

  "No," said Stern. "In my judgment, Dixon has no Fifth Amendment rights in these circumstances."

  "No, no. What about you? You can be innocent and assert the Fifth. If you disclose that something was taken while you were under subpoena, you might be incriminating yourself.

  You've got a Fifth." Marta was excited. She had convinced herself this was the solution.

  Resolutely, Stern differed. If he did as Marta wanted, the prosecutors would promptly obtain a use immunity order dissolving his Fifth Amendment rights. Nothing would have been gained and the judge would feel taunted by the desperate tactics.

  Defeated, Marta sat down beside him.

  "I don't understand this. How can you do this to yourself, just to suit him?"

  "If I were to suit your uncle, I would commit perjury and solve all my problems. Perhaps I am simply too much of a coward to adopt that approach"

  "Daddy, please. If you confront her in an area like this, where we have no legitimate grounds to resist, she'll put you in jail,"

  "Then that is what will occur."

  His daughter looked at him for some time.

  "Jesus Christ," said Marta. "And you complain about him as a client. What was in the goddamn safe?"

  He shook his head again.

  They returned to the table. The judge and the Court reporters were chatting about movies.

  "All right, on the record," said the judge.

  Marta folded her hands, placed them squarely on the table before her, and announced that Stern would refuse to answer the question posed, on the grounds of the attorney-client privilege and the Sixth Amendment's guarantee of the right to counsel. The judge, the prosecutors, even the court reporters took a second to absorb this.

  "Move contempt," said Sennett at last.

  "My client believes that the government is attempting to use him as a witness against his client," added Marta.

  "Whether that is true or not," said Judge Winchell, whose eyes were cast to the floor, "he must answer. Neither the attorney-client privilege nor the Constitution allows him a basis to refuse."

  "He will not respond," said Marta. She leaned toward the judge with erect posture and an implacable look. She betrayed not an iota of doubt. Marvelous, Stern thought, in spite of everything else.

  The judge covered her eyes with one hand.

  "Well," she said at last. "I will reflect on how this contempt should be addressed, assuming it takes place. And I'll listen carefully to arguments.": She straightened up.

  "But I want you to know, Mr. Stern, if you Persist, my present intention is to remand you to the c.ustody of the marshal, and I will leave it to the court of apPeals to determine whether my order should be stayed while they consider the matter. And I also caution you that I will not terminate your grand jury apPearance. You will have to go on answering the prosecutors' questions, or refusing, as the case may be."

  Judge Winchell had fixed him with her icy tOugh-guy look.

  No friendship. No bullshit. No symphony intermissions. They were now in the heartland of Moira Winchell's judicial existence-her rightful authority. Sharing this look with considerable apprehension, Stern' managed to nod.

  In silence, the party proceeded back down the street to the new federal building. A block away, Stan broke off. He had a luncheon speech tO deliver. No doubt it disappointed him not to be there to see the marshals clap on the cuffs, but there were at least forty-five minutes more and Stan, always precise, did not have the time. He said a word or two to Klonsky and left them tO proceed ensemble in the noontime heat, the sounds of downtown construction and traffic banging about them.

  Outside the grand jury room, the jUrors were lounging, drinking coffee, gabbing, smoking their cigarettes. Sonny raised a hand to round them up.

  She stood with Stern and Marta before the door.

  "I know this is a matter of principle for you," she said to Stern. She put her hand on his, a mildly shocking gesture in the surroundings. "But I think this is a mistake. Please reconsider." 'In the grand jury room, Stern resumed his seat. Klonsky read the first question from her notes: Was he in possession of the safe?

  She studied her pad again.

  "Leaving aside client communications, does Mr. Stern -strike that-do you know of anything.removed from the safe since the time the sub pom, G.J. 89-86 Exhibit 192, was first served upon you?"

  "I decline to answer."

  Sonny peered at him, pale, grim.

  "State the grounds."

  They were quickly finished. The grand jUrors groaned when Klonsky called another recess.

  Marta was standing immediately outside the door. "Shit," she said as it opened.

  Klonsky asked Barney Hill the grand jury clerk, to Call Judge Winebell's secretary to tell her they were on the way back. The four of them headed out onto the street. Marta lagged behind with Stern, and spoke to him heatedly.

  "Now I'm going to beg and plead. I'll use everyihing-thirty years of service in this court, Mornroy's death, everything. And I don't want any back talk. Do you hear me?"

  He nodded to her, smiling a bit, and marched down the street, shockingly free of apprehension or doubt.

  The judge's staff knew what was transpiring and went quiet as soon as they entered. The secretary called in to the judge to announce their return, but the door to the chambers remained closed, and the foUr of them Stern and his daughter, Klonsky and the court repOrter-waited in the judge's anteroom. Sonny, if anything, appeared paler. She took the lone seat across from Stern, her lips drawn into her mouth, her jaw gripped firmly, while she stared into space. She was, Stern thought to himself, in a kind of remote observation, so terribly pretty. Then Bud Bailey, one of the deputy marshals, blundered through the door, a sweet bald headed oaf, with his gun and uniform and jangling keys. His arrival jarred Stern, like a note of music misplayed.

  Bailey greeted both Stern and Klonsky by name, then looked at the judge's secretar7. "She rang?" Sonny had sat up tensely with Bailey's appearance.

  The secretary sent Bailey in first. He would be getting instructions about taking Stern into custody. Stern had imagined all this and felt well girded. He would be escorted to the marshal's lockup, a mesh-fenced holding pen on the third floor which looked much like a birdcage for human beings. He would sit there for an hour or two. If the motion judge in the court of appeals did not role promptly, he would be transported by jail van to the federal correctional center.
There he would be asked to disrobe completely, then searched from head to toe and made to bend over while the guard examined his anus with the beam of a flashlight, Afterwards, he would be given a blue jumpsuit.

  He would not be inside long. They had drafted the petition for a stay last night; Marta had it with her and would go at once to the twelfth floor to file it. Marta and he had contacted George Mason, president of the county bar association, a figure of prominence, who promised to attempt to get his Board of Governors to file an amicus brief. In any event, Mason would organize dozens of lawyers who would join in a petition to the court of appeals. The court, most surely, would order Stern's release and set an expedited schedule for briefing and arguments. To proceed with the appeal, Marta had already insisted on deferring to Mason, a decision with which Stern agreed. The question, of course-the real question-was what he would do once the court of appeals ruled against him and he was required to respond in the grand jury or return to jail.

  Klonsky suddenly spoke up in the silent office.

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

  "Sure." 'q 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. "Sennett will fire you," he told Sonny….

  "God damn 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 meT'

  He did not at first. Then it came to him: the informant.

  That was what had upset her-seeing SenneWs 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 unfiappable, 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 Klon-sky.

  "Mr. Sennctt had seemed so intent.."

  "lie may not agree with me," said Sonny. "If he doesn't, I won't be here next week." She smiled vague13 at her OWl irony,,

  "Do you want to speak with him?" asked the judge. "He can't be reached," she saicL "I see," said the judge. Moira knew she was getting a message of some kind. "Off the record," she said. "What's the dealT'

  Stern, his daughter, Sonny exchanged looks among them selves. 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, ther shrugged at Bailey, (he marshal, "It's a secret," she sai amp;.

  AS a child, Peter was a sleepwalker. These were horrifying occasions.

  Because Clara tended to turn in arly, it was usually Stern who had to deal with the situatin. 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 yearsmprobably still todaymwas 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 vas, 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 Klon-sky, 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 show. down 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 skidrow 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 li. me 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 th
e 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 corpanon wall. The decoration was modest-opera posters and bright furniture filled with polyfoam, inexpensive modem 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 aboutT'

  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, subclinically, 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.