by Scott Turow
"Right."
"And it is that specimen which has been identified as being of Mr. Sabich's blood type and as containing chemicals consistent with the use by Ms. Polhemus of a birth control device-a diaphragm. Am I correct?"
"You are correct."
"And the presence in that specimen of this birth-control chemical, the spermicide, is critical to your opinion, is it not?"
"All facts important, Mr. Stern."
"But that fact is particularly important, because you, sir, want us to believe that this tragic incident merely had the appearance of a rape, do you not?"
"Don't want you to believe nothin. I give you my opinion."
"But it is your opinion-to get down to brass tacks, as they say-that Mr. Sabich tried to make this look like a rape, correct?"
"If you say so."
"Well, is that not what you are trying to suggest? You and Mr. Molto, and Mr. Della Guardia? Let us be plain with these people." Sandy points to the jury. "Your opinion is that this was a staged rape. And that the way it was done suggests some knowledge of investigative techniques and of Ms. Polhemus's regular duties in the P.A.'s office, correct?"
"That's what I say on direct."
"And all of that points at Mr. Sabich, does it not?"
"If you say so," Painless says eventually, with a smile. You can see his reluctance to believe that Stern is inept enough to implicate his own client. But Sandy keeps forcing the issue, saying more than Kumagai would risk on his own, and Painless takes his characteristic pleasure in someone else's misfortune.
"And all of those deductions depend in the end on the presence of spermicidal jelly in the specimen you sent to the forensic chemist, do they not?"
"More or less."
"Much more than less, is it not?"
"I would say."
"So this specimen, and the presence of the spermicide, is critical to your expert opinion?" says Stern, arriving at the point where he was a moment ago. This time Painless concedes. He shrugs his shoulders and says all right.
"Now, does your expert opinion, Dr. Kumagai, take any account of the fact that no spermicidal jelly was found in Mr. Polhemus's apartment? Are you familiar with that testimony that was given here by Detective Greer?"
"My opinion on scientific evidence. I don't read the transcript-"
"But are you familiar with that testimony?"
"I heard about it."
"And are you not concerned, as an expert, that your opinion depends on the presence of a substance not found in the victim's belongings?"
"Am I concerned?"
"That is my question."
"Not concerned. I got an opinion on scientific evidence."
Stern gives Painless the long look.
"Spermicide came from somewhere, Mr. Stern. I don't know where lady hides this stuff. It's in the specimen. Test says what it says."
"Just so," says Sandy Stern.
"You stipulated," says Kumagai.
"That the spermicide was in the specimen you sent. Yes, sir, we did agree to that." Sandy walks around the courtroom. I still cannot guess what it is that Kumagai missed. Until Painless mentioned the stipulation I was ready to bet that the spermicide was misidentified.
"Now, sir," says Stern, "your initial impressions at the time of the autopsy took no account of the presence of a spermicide, did they?"
"Can't remember now."
"Well, think back, please. Was it not your original theory that the person who had last had intercourse with Ms. Polhemus was sterile?"
"Don't recall."
"Really? You told Detective Lipranzer that Ms. Polhemus's attacker seemed to have a condition in which he produced dead spermatozoa, did you not? Detective Lipranzer has already testified once before the jury. I am sure it would be no problem for him to return. Please reflect, Dr. Kumagai, is that not what you said?"
"Maybe. Very preliminary."
"All right, it was your very preliminary opinion. But it was your opinion then?"
"I guess."
"Now, do you recall the physical findings that led you to that opinion?"
"No, sir."
"As a matter of fact, Doctor, I am sure it is difficult for you to recall, unaided, any autopsy within days of when it took place, is that right?"
"Sometime."
"How many autopsies do you do in a week, Dr. Kumagai?"
"One, two. Sometime ten. Depends."
"Do you remember how many you performed in the thirty days surrounding Carolyn Polhemus's death?"
"No, sir."
"Would you be surprised to know that it was eighteen?"
"Sound right.
"And with that number, it is obvious, is it not, that the specifics of any one examination may slip your mind?"
"True."
"But when you spoke to Lipranzer the details were fresher. Were they not?"
"Probably."
"And you told him then that you believed the attacker was sterile?"
"I say, I somewhat remember that."
"Well, let us review for a moment those findings you presently recall that might have led to that preliminary opinion."
Sandy runs through it quickly. The rigor mortis, blood coagulation, and digestive enzymes established the time of death. The primary deposit of male fluids in the rear of the vagina, away from the vulva, indicated that Carolyn had spent little time on her feet after sex, meaning that intercourse had occurred near the time of her attack. And there was an absence in the fallopian tubes of any live spermatozoa, which one would expect to find ten to twelve hours after intercourse, assuming no contraception had been used.
"And to explain those phenomena, particularly the dead spermatozoa, you theorized that the attacker was sterile. It did not occur to you at first, Doctor, that a spermicide had been used, did it?"
"Apparently not."
"As you look back, you must think you were a fool to have missed something so obvious as the use of a contraceptive spermicide?"
"Make mistakes," allows Painless with a flip of his hand.
"You do?" asks Stern. He eyes the state's expert. "How often?"
Kumagai does not answer that. He recognizes his miscue.
"Mr. Stern, I find no birth-control device. No diaphragm. Apparently, I assume no birth control used."
"But certainly, Dr. Kumagai, an expert of your stature could not have been so easily misled?"
Kumagai smiles. He knows he is being taunted.
"Any single fact important," he says. "Kind of thing that murderer knows."
"But you yourself were not trying to mislead Detective Lipranzer when you gave him your initial impression, were you?"
"Oh no." Painless shakes his head vigorously. He has been prepared for that suggestion.
"You must have been convinced, Doctor, at that time, that birth control had not been used-so convinced that you considered the use of a spermicide to be out of the question?"
"Look, Mr. Stern. I got an opinion. Chemist has results. Opinion changes. Lipranzer know opinion's preliminary."
"Let us consider some alternatives. For example, Dr. Kumagai, you would be convinced that birth control would not be used by a woman who knew she could not bear children, correct?"
"Sure," he says. "But Ms. Polhemus got a child."
"So the evidence has shown," remarks Stern. "But let us not consider the particulars of Ms. Polhemus. Just bear my example in mind. If a woman knew she could not conceive, it would be unreasonable for her to use a spermicide, would it not?"
"Sure. Unreasonable." Painless agrees, but his answers are growing slower. His eyes seem thick. He has no idea where Stern is headed.
"Absurd?"
"I'd say."
"Can you, as a forensic expert, conceive of any reason that such a woman might use a diaphragm or a spermicide?"
"We not talkin about a lady in menopause?"
"We are speaking of a woman who knows without question that she cannot conceive."
"No reason. No medical reason. I think of nothi
n."
Sandy looks up at Larren. "Your Honor, may the court reporter mark the last five questions and answers so that she can read them back later, if need be?"
Kumagai conducts a slow survey of the courtroom. He looks at the judge, the reporter, finally the prosecutors' table. He is actually frowning now. The trap, whatever it is, has been set. Everyone knows it. The reporter attaches a clip to the narrow sheaf of stenographic notes.
"Is it not your expert opinion, Dr. Kumagai," asks my lawyer, Alejandro Stern, "that Carolyn Polhemus was a woman who knew she could not conceive?"
Kumagai looks out at Stern. He bends over the microphone before the witness chair.
"No," Painless says.
"Please do not rush yourself, Doctor. You did eighteen autopsies in those weeks. Would you not rather consider your original notes?"
"I know the lady use birth control. You stipulate," he says again.
"And I, sir, say once more that we stipulated to the chemist's identification of the specimen that you sent."
Stern returns to our table. Kemp is already holding aloft the document Sandy wants. Stern drops a copy with the prosecution and delivers the original to Kumagai.
"Do you recognize the notes of your autopsy of Ms. Polhemus, Dr. Kumagai?"
Painless flips a few pages.
"My signature," he says.
"Would you please read aloud the short passage marked by the paper clip?" Sandy turns to Nico. "Page 2, Counsel." Kumagai has to change glasses.
"The fallopian tubes are ligated and separated. The fibrillated ends appear normal." Kumagai looks down at the sheet he has read from. He pages again to the end. He is frowning, deeply now. Finally he shakes his head.
"Not right," he says.
"Your own autopsy notes? You dictate them as you are conducting the procedure, do you not? Surely, Doctor, you are not suggesting you made a contemporaneous error?"
"Not right," he says again.
Stern comes back to the defense table for another piece of paper. I have gotten it now. I look up to him as he takes the next document from Kemp. I whisper: "Are you telling me that Carolyn Polhemus had her tubes tied?"
It is Kemp who nods.
The next few seconds are blank. Weirdly, unaccountably, I feel alone, locked in my own teetering sensations. An essential connection has been interrupted. For a moment it is like deja vu. I cannot make out reasons. What takes place in the courtroom seems remote. I am aware, in a dislocated way, that Painless Kumagai is being devastated. He denies two or three more times that it is possible that Ms. Polhemus had had her fallopian tubes surgically separated to prevent conception. Stern asks if other facts might affect his opinion and pushes into Kumagai's hands the records of the West End gynecologist who performed the tubal ligation six and a half years ago, after Carolyn aborted a pregnancy. It was this doctor, no doubt, whom Kemp went to meet yesterday afternoon.
"I ask you again, sir, would those records alter your expert opinion?"
Kumagai does not answer.
"Sir, is it now your expert opinion that Carolyn Polhemus knew she could not conceive?"
"Apparently." Kumagai looks up from the papers.
In my confusion, I find that I actually feel sorry for him. He is slow now, hollow. It is to Molto and Nico he speaks, not Stern or the jury. "I forgot," he tells them.
"Sir, is it not absurd to believe that Carolyn Polhemus used a spermicide on the night of April first?"
Kumagai does not answer.
"It is not unreasonable to believe that?"
Kumagai does not respond.
"There is no reason known to you that would explain why she might do that, is there, sir?"
Kumagai looks up. There is no way to tell if he is thinking or simply being ravaged by shame. He has taken hold of the beveled rail of the witness stand. He still does not answer.
"Shall I have the court reporter read back your answers to the questions I asked a few moments ago?"
Kumagai shakes his head.
"Is it not clear, Dr. Kumagai, that Carolyn Polhemus did not use a spermicide on April first? Would that not be your expert opinion? Does it not seem to you, sir, as an expert and a scientist, the most obvious reason that no trace of a spermicide could be found in her apartment?"
Kumagai seems to sigh. "I cannot answer your questions, sir," he says with some dignity.
"Well, answer this question, Dr. Kumagai: Is it not clear, given these facts, that the specimen you sent to the chemist was not taken from the body of Carolyn Polhemus?"
Kumagai now sits back. He pushes his glasses back up on his nose.
"I have a regular procedure."
"Are you telling this jury, sir, that you have a clear recollection of taking that specimen, marking it, sending it on?"
"No."
"I repeat: Is it not likely that the specimen containing the spermicide, the specimen identified as containing fluids of Mr. Sabich's blood type, was not taken from the body of Carolyn Polhemus?"
Painless shakes his head again. But this is not denial. He does not know what occurred.
"Sir, is it not likely?"
"Is it possible," he finally says.
From the jury box, clear across the courtroom, I can hear one of the men say, "For Chrissake."
"And that specimen, Dr. Kumagai, was sent, was it not, while you were having these regular conversations with Mr. Molto, am I right?"
With this, Kumagai finally rediscovers his spark. He draws himself up in the chair.
"Do you accuse me, Mr. Stern?"
It is some time before Stern speaks.
"We have had enough unsupported accusations for one case," he says. Then, before resuming his chair, Stern nods in the direction of the witness, as if to dismiss him. "Doctor Kumagai," he adds.
***
After court, Jamie Kemp and I sit in Stern's conference room describing Kumagai's cross-examination for a small audience composed of Sandy's secretary, the private investigator Berman, and two law students who work in the office as clerks. Kemp has brought out a bottle of champagne, and one of the young people has turned on a radio. A fine actor, Kemp does a burlesque in which he plays the parts of both Stern and Kumagai. He repeats Stern's most damaging questions in an insistent tone, and then falls in a chair, where he beats his feet and makes the sounds of a person being choked. We are roaring when Stern comes through the door. He has on a tuxedo, or, more properly, part of it: only the striped trousers and the boiled shirt; a red bow tie, not yet knotted, is through his collar. Inspecting the scene he is livid; a fierce anger grips all his features. You can tell that he is struggling to keep himself in check.
"This is inappropriate," he says. He is speaking to Kemp. "Entirely inappropriate. We are on trial. This is not the time to congratulate ourselves. We may not bring a trace of smugness to that courtroom. Juries sense such things intuitively. And they resent it. Now, if you would please clean this up, I wish to speak with my client. Rusty," he says, "when you have a moment."
He wheels and I follow Stern to his office with its soft, almost feminine interior. I suspect that Clara had a hand in the decoration.
Everything is done in the same creamy tone. Full-length drapes cover the windows, and furnishings upholstered in Haitian cotton crowd the office, so that it feels as if you are being pushed into a seat. Stern has a heavy crystal ashtray at each corner of his desk.
"It's my fault more than Jamie's," I say when I enter.
"Thank you, but you are not charged with making judgments at this time. He is. That was entirely inappropriate."
"It was a great triumph. He's worked hard. We were enjoying it. He was trying to put your client at ease."
"You need not defend Kemp to me. He is a first-rate attorney and I value his work. Perhaps I am to blame. As a case is headed toward conclusion I always become tense."
"You should savor today, Sandy. No lawyer gets many crosses like that, especially of the state's expert."
"That is so," says Stern,
and he indulges in a brief whimsical smile. "What a colossal blunder." He makes a sound, a groan of sorts, and shakes his head. "But that is past now. You have been very insistent and so I wanted to take one moment with you to discuss the case for the defense. I wish there were more time, but I have committed myself months ago to this dinner for Judge Magnuson. Della Guardia will be there, so we will all be evenly disadvantaged." He smiles in appreciation of his own understated humor. "At any rate, your defense: Decisions on these matters are always the client's. If you wish, I will give you my advice. If not, feel free to dictate. I am at your disposal." As I anticipated all along, Sandy has waited until we are clearly ahead on points before allowing me to make my decisions. I know what he would suggest.
"You think we'll even get the chance to offer a defense?"
"You mean, do I think Judge Lyttle will direct a verdict for us tomorrow?"
"In your view, is that possible?"
"I would be surprised." He takes up his cigar from the ashtray. "Realistically, my answer is no."
"What's left that ties me to the crime?"
"Rusty, there is no need for me to lecture you. But you must remember that the inferences at this stage must be taken in the light most favorable to the prosecution. Even Kumagai's direct testimony, preposterous as it now seems, must be credited for purposes of the motion. And the answer to your question is that the evidence, in any light, ties you to the scene. Your fingerprints are there. Carpeting which could be yours is there. The phone records show you were in contact. And all of this was concealed.
"On a more practical level, no judge is eager to usurp the jury's role as decision maker in a case of this stature. He invites criticism, and perhaps more importantly, he leaves a sense abroad that the case was never fairly resolved. I regard the prosecution evidence, as it stands, as paper-thin. It is likely that the judge sees it the same way. But he would no doubt prefer to have the jury discharge you. If, unaccountably, they fail in that responsibility, he can grant a motion for acquittal post trial, notwithstanding the verdict. I would consider that far more likely in this case."
He makes sense, but I was hoping he would say something else.
"So that brings us to the question of a defense," Stern says. "Certainly if we proceed we must offer certain documents. We want to establish that Barbara was at the U., as you claimed. So we will present the computer log to demonstrate she signed on shortly after eight o'clock. We want to show that the rent-a-car and taxi companies have no records to support the notion that you traveled to the city on the night of April first. The gynecologist's records we spoke of today must, of course, be offered. Other odds and ends. I take all of that as given. Whether we bring on testimony is the question."
