by Scott Turow
Judge Yee looked to the ceiling and touched his chin.
"Now," he said.
"I'm sorry," said Tommy. In his frugality with words, the judge was frequently Delphic.
"Ask now. Not with jury."
"Now?" said Tommy. Somehow he caught the eye of Rusty, who appeared as startled as Molto.
"You wanna ask," said the judge, "ask."
Tommy, who had expected to get nowhere, found himself briefly word-struck.
"Judge Sabich," he finally said, "did you have an affair in the spring of 2007?"
"No, no, no," said Yee. He shook his head in the schoolmarmish fashion he occasionally employed. The judge was a few pounds overweight, moon-faced, with heavy glasses and thin gray hair plastered over his scalp. Like Rusty, Tommy had been acquainted with Yee for decades. You couldn't say you knew the guy, because he was too accustomed to keeping to himself. He'd grown up in Ware as one of a kind, shunned by almost everybody, not only because he was by downstate standards so foreign in look and speech, but also because he was one of those schooltime brainiacs nobody could have understood, even if he could actually speak English. Why Yee had decided to become a trial lawyer, which was maybe the one job in the world anybody with common sense would have told him to stay away from, was a mystery. He'd had something in his head; people always do. But there was no way the prosecuting attorney's office down in Morgan County could refuse to hire him, a local guy whose law school performance-first in his class at State-outranked that of any applicant for at least twenty years. Against the odds, Yee had done well as a deputy PA, although he was at his best as an appellate lawyer. The PA eventually moved heaven and earth to get him on the bench, where Basil Yee had basically shined. He was known to let his hair down at judicial conferences. He drank a little too much and stayed up all night playing poker, one of those guys who didn't get away from his wife much and made the most of it when he did.
When Yee had been appointed to this case by the supreme court, Brand had been excited. Yee's record in bench trials, where he decided guilt or innocence himself, was astonishingly one-sided in favor of the prosecution, and thus they knew that Stern would be deprived of the option of allowing the judge, rather than a jury, to decide the case. But over the years, Tommy had learned that there were three interests at stake in every trial-those of the prosecution, the defense, and the court. And the judge's agenda frequently had nothing to do with the issues in the case. Yee was chosen for this assignment almost certainly on the basis of statistics, since he was the least-reversed trial judge in the state, a distinction of which he was fiercely proud. But he had not achieved that kind of record by accident. It meant he would take no chances. In the criminal world, solely the defendant had the right to appeal, and thus Judge Yee would rule against Sabich on evidentiary questions only if the precedents were unequivocally in Tommy's favor. Yee remained a prosecutor at heart. If they convicted Rusty, he was going to get life. But until then, Judge Yee was going to cut Sabich every break.
"Better I ask, Mr. Molto." The judge smiled. He was by nature a gentle man. "Will be faster," he said. "Judge Sabich, when your wife die, were you having an affair, romance, whatever"-Yee threw his small hands around to make the point-"any kind of being involved with another woman?"
Rusty had turned about fully in the witness chair to face the judge. "No, sir."
"And back, say, three month-any affair, romance?"
"No, sir."
The judge nodded with his whole upper body and lifted a hand toward Molto to invite further questions.
Tommy had retreated to the prosecution table beside Brand's seat. Jim whispered, "Ask if he hoped to see any woman romantically."
When Tommy did, Yee responded as he had before, with a steady head shake.
"No, no, Mr. Molto, not in America," said the judge. "No prison for what in man's head." Yee looked at Rusty. "Judge," said Yee, "any talk with another woman about romance? Anytime, say, three months before missus die?"
Rusty took no time and said, "No, sir," again.
"Same ruling, Mr. Molto," said the judge.
Tommy shrugged as he glanced back at Brand, who looked as though Yee had put a shiv through him. The whole deal made Tommy wonder a bit about Yee. As square as he appeared with his rayon shirts and out-of-date plastic glasses, he might have wandered. Still waters run deep. You could never tell with sex.
"Bring in jury," Judge Yee told the courtroom deputy.
Ready to start, Tommy felt suddenly at sea.
"How do I address him?" he whispered to Brand. "Stern said to call him 'Rusty.'"
"'Judge,'" Brand whispered tersely. That was right, of course. First names would play right into the vendetta stuff.
Tommy buttoned his coat. As always, it was just a bit too snug across the belly to really fit.
"Judge Sabich," he said.
"Mr. Molto."
From the witness stand, Rusty nonetheless managed a nod and a Mona Lisa smile that somehow reflected the decades of acquaintance. It was a subtle but purposeful gesture, the kind of little thing jurors never missed. Tommy suddenly remembered what he had pushed out of mind for months now. Tommy had come into the PA's office a year or two after Rusty, but they were close enough to being peers that over time they might have competed for the same trials, the same promotions. They never did. Tommy's best friend, Nico Della Guardia, was Rusty's main rival. Tommy didn't rank. It was obvious to all that he lacked Rusty's smarts, his savvy. Everybody had known that, Molto remembered. Including him.
CHAPTER 25
Nat, June 22, 2009
As soon as I hear what Tommy Molto wants to raise with Judge Yee, I move to the defense table and, crouching there, whisper to Stern that I'm taking a time-out. Alert to the proceedings, Sandy nonetheless nods soberly. I hustle to the doors before Molto can get very far.
Within a few hours after Debby Diaz's visit on election day, my dad had found out he was going to be indicted. In the weeks following my mom's death, he'd largely suspended his campaign. Koll followed suit briefly, but put his attack ads on the air in mid-October. My dad responded with his own tough commercials, but the only actual event he participated in was a broadcast debate for the League of Women Voters.
Election night, however, required a party, not for his sake, but for the campaign workers who'd knocked on doors for weeks. I showed up a little before ten p.m., because Ray Horgan had asked me to come down and pose for pictures with my dad. Knowing Ray would be there, I didn't push it when Anna asked me to go alone.
Ray had booked a big corner suite at the Dulcimer, and when I arrived there were about twenty people watching TV as they hovered around the chafing dishes with the hors d'oeuvres. My dad was nowhere to be seen, and I was eventually directed to a room next door, where I found my father in sober conversation with Ray. They were the only people in the room, and as I would have figured, Ray beat it as soon as he saw me. My dad had his tie dragged down his shirtfront and looked even more vacant and worn out than he had in the weeks since my mom had died. My parents were never easy with each other, but her passing seemed to have depleted him to the core. He was sad in this total way I might not have foreseen.
I hugged him and congratulated him, but I was too nervous about Debby Diaz not to bring her up immediately.
'I did,' he said when I asked if he'd found out what all that had been about. He motioned for me to sit. I grabbed a piece of cheese from the tray that was on the coffee table between us. My father said, 'Tommy Molto plans to indict me for murdering your mother.' He held my eyes while the hard drive spun uselessly inside my brain for quite some time.
'That's crazy, right?'
'It's crazy,' he answered. 'I expect they're going to end up calling you as a witness. Sandy was over there late today. He got a little courtesy preview of their evidence.'
'Me? Why am I a witness?'
'You didn't do anything wrong, Nat, but I'll let Sandy explain. I shouldn't be discussing the evidence with you. But there are a few thi
ngs I want you to hear from me.'
My dad got up to turn off the TV. Then he plunged back into the overstuffed easy chair he'd been in. He looked the way elderly people do when they're struggling to find the thread, with the uncertainty spreading through their face and adding a tremble near the jaw. I was not any better. I knew the tears would be coming any instant. Somehow, I've always been embarrassed about crying in front of my father, because I know it's something he would never do.
'I'm sure it will be on the news tonight and in the papers tomorrow,' he said. 'They searched the house around six, as soon as the polls closed. Sandy was still at the PA's office. Nice touch,' my father said, and shook his head.
'What are they searching for?'
'I don't know, exactly. I know they took my computer. Which is a problem because there's so much internal material from the court. Sandy has already had several conversations with George Mason.' My dad looked off at the heavy drapes, which were made of some kind of paisley brocade, ugly stuff that was somebody's idea of what looked rich. He tossed his head around a little, because he knew he had wandered off point. 'Nat, when you talk to Sandy about the case, you're going to hear things I know will disappoint you.'
'What kind of things?'
He folded his hands in his lap. I have always loved my father's hands, big and thick, rough in any season.
'Last year I was seeing someone else, Nat.'
The words would not go through at first.
'You mean a woman? You were seeing another woman?' "Seeing someone else" made it sound almost innocuous.
'That's right.' I could tell my dad was trying to be courageous, refusing to look away.
'Did Mom know?'
'I never told her.'
'God, Dad.'
'I'm sorry, Nat. I won't even try to explain.'
'No, don't,' I said. My heart was banging and I was flushed, even while I thought, Why in the fuck am I embarrassed? 'Jesus, Dad. Who was it?'
'That really doesn't matter, does it? She's quite a bit younger. I'm sure a shrink would say I was chasing my youth. It was over and done for a long time before your mother died.'
'Anyone I know?'
He rotated his head emphatically.
'Jesus,' I said again. I've never been a quick study. I arrive at my views, whatever they are, only after things have boiled inside me for a long time, and I realized I was going to have to thrash around with this one for quite a while. All I knew for sure was that this was not cool at all, and I wanted to leave. I stood up and said the first thing in my head. 'I mean, Jesus Christ, Dad. Why didn't you buy a fucking sports car?'
His eyes rose to me and then went down. I could tell he was sort of counting to ten. My father and I have always had trouble about his disapproval. He thinks he is stoic and unreadable, but I inevitably see his brow shrink, if only by micrometers, and the way his pupils darken. And the effect on me is always as harsh as a lash. Even now, when I knew I had every right to be angry, I was abashed by what I had just said.
Finally, he spoke quietly.
'Because I guess I didn't want a fucking sports car,' he said.
I had a paper napkin balled in my fist and threw it on the table.
'One more thing, Nat.'
I was too messed up by now to talk.
'I didn't kill your mother. You'll have to wait to understand everything that's going on, but this case is old wine in new bottles. It's just a lot of rancid crap from a compulsive guy who never figured out how to give up.' My father, usually the soul of moderation, looked taken aback by permitting this blunt evaluation of the prosecutor. 'But I'm telling you this. I've never killed anyone. And God knows, not your mother. I didn't kill her, Nat.' His blue eyes had come back up to mine.
I stood over the table wanting nothing more than to get away, so I simply blurted out, 'I know,' before I left.
Marta Stern's head hangs outside the courtroom door. She has a kind of wind-sprung do of reddish curls and long arty earrings with colored glass, and the slightly dried-out look of a formerly fat person who got thin by exercising like mad. Throughout the trial, she's sort of been in charge of me, halfway between guardian angel and chaperone.
"They're ready." As I shuffle in beside her, she grips my arm and whispers, "Yee didn't change his ruling."
I shrug. As with so many other things, I'm not sure if I'm relieved I won't have to sit there pretending not to care while I listen in public to the details of my father's affair, or if instead I would have preferred to do the cross-examination myself. I say what I've felt so often since this whole stupid thing began.
"Let's just get it over with."
I take my seat in the front row at the same time the jurors are returning. Tommy Molto is already standing in front of my dad, a little like a boxer off his stool before the bell sounds. Beside my father, the projection screen the PAs have been using to show the jury computer slides of various documents admitted in evidence has been opened again.
"Proceed, Mr. Molto," Judge Yee says when the sixteen jurors-four alternates-are back in the fancy wooden armchairs in the jury box.
"Judge Sabich," says Molto.
"Mr. Molto." My dad gives this little nod as if he's known for a thousand years the two of them were going to find themselves here.
"Mr. Stern asked you on direct examination if you'd heard the testimony of the prosecution witnesses."
"I recall."
"And I want to ask you some more about the testimony you heard and the way you understood it."
"Certainly," says my dad. As a witness in this case, I can't be one of my dad's lawyers, but I help carry things back to the Sterns' office after court. Now that I've done my thing for the prosecution, I tend to hang around there until Anna is ready to meet me after work. The last three nights, my dad's legal team has practiced his cross-examination in a moot courtroom at Stern amp; Stern. Ray Horgan has been there to grill my dad, and Stern and Marta and Ray and the jury consultant they've employed, Mina Oberlander, have examined a videotape afterward, giving my dad pointers. For the most part, he's been directed to answer briefly and directly and to try to disagree, when he does, without appearing uncooperative. When it comes to cross-examination, especially of the defendant, apparently it's all about looking as though you have nothing to hide.
"You heard the testimony of John Harnason?"
"I did."
"And is it true, Judge, that in a conversation between just the two of you, you indicated to Mr. Harnason he was going to lose his appeal?"
"That is true," says my dad, with the kind of clipped, unhesitating response he has been practicing. I have known this fact since last November, but my father's confirmation is news in the courtroom and there is a stir, including in the jury box, where I'm sure many members took John Harnason as too weird to be believed. Across the way, Tommy Molto's thin lips are pursed in apparent surprise. With Mel Tooley as a witness in reserve, Molto must have expected to batter my dad when he denied telling Harnason.
"You heard Judge Mason's testimony in the prosecution case that doing that violated several rules of judicial behavior, didn't you?"
"I heard his testimony."
"Do you disagree with him?"
"I do not."
"It was improper, Judge, to engage in a private conversation with a defendant about his case while it was awaiting decision, wasn't it?"
"Surely."
"It violates a rule against what we call ex parte contact, right-without the other party?"
"Correct."
"Someone from my office was entitled to be there. True?"
"Absolutely."
"And as a judge of the court of appeals, were you free to reveal the court's decisions before they had been published?"
"There is not an explicit rule prohibiting that, Mr. Molto, but I would have been disappointed in any other member of the court who had done that, and I consider it a serious mistake in judgment on my part."
Responding to my father's characterization of thi
s breach as 'a mistake in judgment,' Molto makes my dad agree that there are elaborate security procedures in the court of appeals to prevent word of decisions leaking out in advance, and that the law clerks and other employees are warned when they are hired never to reveal a decision beforehand.
"Now how many years, Judge, have you been on the bench?"
"Including the time I sat as a trial judge in the superior court?"
"Exactly."
"More than twenty years."
"And during the entire two decades you have been on the bench, Judge, how many times previously have you disclosed a decision that was not yet public to just one side?"
"I've never done that, Mr. Molto."
"So this was a serious violation not just of the rules, but also of the way you've always done business?"
"It was a terrible mistake in judgment."
"It was more than a mistake in judgment, Judge, wasn't it? It was improper."
"As I said, Mr. Molto, there is no specific rule, but I agree with Judge Mason that it was clearly wrong to tell Mr. Harnason about the outcome. It struck me as a formality at the moment because I knew the case was fully resolved. It didn't dawn on me that Mr. Harnason might flee as a result."
"You knew he was on bail?"
"Of course. I'd granted the motion."
"Exactly the point I was going to make," says Molto. Small, tight, with his bunchy form and timeworn face, Tommy smiles a little as he faces the jury. "You knew he would be in prison the rest of his life once his conviction was affirmed?"
"Naturally."
"But it didn't dawn on you he might run?"
"He hadn't run yet, Mr. Molto."
"But with your court's decision he was really out of chances, wasn't he? In any realistic sense? You believed the state supreme court wouldn't take the case, didn't you? You told Harnason he was at the end of the line, right?"
"That's right."
"And so you're telling us that after being a prosecutor for what-fifteen years?"
