by Scott Turow
The case against me, as I assess it from the contents of the cardboard box, is straightforward. Nico has listed about a dozen witnesses of substance, more than half of them related to the physical and scientific evidence he plans to introduce. Lipranzer will be called, apparently to say I instructed him not to subpoena my home phone tolls. Mrs. Krapotnik has identified me as someone she saw in Carolyn’s building, although she is not positive I am the stranger she observed on the night of the murder. Also listed is a maid from Nearing whose somewhat cryptic statement suggests that she saw me on the Nearing–City bus one night close to the time Carolyn was killed. Raymond Horgan is named; Tommy Molto; Eugenia, my secretary; Robinson, the psychiatrist I saw on a few occasions; and a number of scientific experts, including Painless Kumagai.
Nonetheless, this is clearly a circumstantial case. No one will say they saw me kill Carolyn Polhemus. No one will testify to my confession (if you do not consider Molto, whose file memorandum pretends to treat my last remark to him that Wednesday in April as if it was not rendered in a get-screwed tone). The heart of this case is the physical evidence: the glass with two of my fingerprints, identified from the knowns I gave a dozen years ago when I became a deputy P.A.; the telephone MUD records showing a call from my house to Carolyn’s about an hour and a half before her murder; the vaginal smear, revealing the presence within Carolyn’s genitalia of spermatozoa of my blood type, thwarted in their urgent blind migration by a contraceptive compound whose presence implies a consensual sex act; and finally, the malt-colored Zorak V fibers found on Carolyn’s clothing, and her corpse, and strewn about the living area, which match samples taken from the carpeting in my home.
These last two pieces of evidence were developed as the result of a visit to my house by three state troopers, which took place a day or two after the Black Wednesday meeting, as Barbara and I now refer to it, in Raymond’s office. The doorbell rang and there was Tom Nyslenski, who has served subpoenas for the P.A.’s office for at least six years. I was still sufficiently unfocused that my initial reaction was to be mildly pleased to see him.
I don’t like to be here, he said. He then handed me two grand-jury subpoenas, one to produce physical evidence—a blood specimen—and one to testify. He also had a search warrant, narrowly drawn, which authorized the troopers to take samples of the carpeting throughout my home, as well as every piece of exterior clothing I owned. Barbara and I sat there in our living room as three men in brown uniforms walked from room to room with plastic bags and scissors. They spent an hour in my closet, cutting tiny swatches from the seams. Nico and Molto had been clever enough not to search for the murder weapon, too. A law enforcement professional would know better than to keep the thing around. And if the troopers searched for it, the prosecutors would have to admit in court that it could not be found.
Is the stuff in here called Zorak V? I asked Barbara quietly while the troopers were upstairs.
I don’t know what it is, Rusty. Barbara, as usual, seemed to be placing a premium on maintaining her composure. She had a little pursed-up expression, peeved but no worse. As if they were fourteen-year-olds setting off firecrackers too late at night.
Is it synthetic? I asked.
Do you think we could afford wool? she replied.
I called Stern, who had me make an inventory of what they took. The next day I voluntarily provided a blood sample downtown. But I never testified. Stern and I had our one serious dispute about that. Sandy repeated the accepted wisdom that an investigation target accomplishes nothing by pre-trial statements except to prepare the prosecutor for the defense. In his own gentle way, Stern reminded me of the damage I had already done with my outburst in Raymond’s office. But in late April, unindicted, and convinced I never would be charged, my goal was to prevent this mad episode from damaging my reputation. If I took five and refused to testify, as I had the right to do, it would probably never reach the papers, but every lawyer in the P.A.’s office would know, and through them half the others on the street. Sandy prevailed when the results of the blood test came back and identified me as a secreter—that is, someone who produced A-type antibodies, just like the man who had last been with Carolyn. The chances of this being a coincidence were about one in ten. I realized then that my last opportunity for quick exoneration had passed. Tommy Molto refused to accept any substitute for my assertion of the privilege and so one bleak afternoon in May, I, like so many others I had often ridiculed, snuck into the grand-jury room, a little windowless chamber that looks something like a small theater, and repeated in response to thirty-six different questions, ‘On the advice of my attorney, I will decline to answer because it may tend to incriminate me.’
“So,” says Sandy Stern. “How do you enjoy seeing the world from the other side?” Engrossed in mysteries of the cardboard box, I did not notice him enter the conference room. He stands, with one hand on the door handle, a short, roundish man, in a flawless suit. There are just a few stray hairs that cross his shining pale scalp, emanating from what was once a widow’s peak. Tucked between the fingers is a cigar. This is a habit which Stern indulges only in the office. It would be uncivil in a public place and Clara, his wife, forbids it at home.
“I didn’t expect you back so soon,” I tell him.
“Judge Magnuson’s calendar is dreadful. Naturally, the sentencing will be called last.” He is referring to another case on which he has been engaged. Apparently he has spent a good deal of time waiting in court and the matter is not yet concluded. “Rusty, would you mind terribly if Jamie appears with you at the arraignment?” He begins to explain at length, but I interrupt.
“No problem.”
“You’re very kind. Perhaps then we can take a few moments with what your friend Della Guardia has sent over. What is it you call him?”
“Delay.”
Sandy’s consternation is apparent. He cannot figure out the reason for the nickname and he is too gentlemanly to ask me to reveal even the most trivial confidence of the P.A.’s office, with which he is so often a contestant. He removes his coat and calls for coffee. His secretary brings it and a large crystal ashtray for his cigar.
“So,” he says. “Do we now understand Della Guardia’s case?”
“I think I do.”
“Fine, then. Let me hear it. Thirty-second summation, if you please, of Nico’s opening statement.”
When I retained Sandy, within three or four hours of that bizarre meeting in Raymond’s office, we spent thirty minutes together. He told me what it would cost—a $25,000 retainer, against a fee to be billed at $150 an hour for time out of court and $300 an hour in, the balance, strictly as a courtesy to me, to be returned if there was no indictment; he told me not to talk to anyone about the charges and, in particular, to make no more outraged speeches to prosecutors; he told me to avoid reporters and not to quit my job; he told me this was frightening, reminiscent of the scenes of his childhood in Latin America; he told me that he was confident that with my extraordinary background this entire matter would be favorably resolved. But Sandy Stern, with whom I have done business for better than a decade, against whom I have tried half a dozen cases, and who on matters of gravity, or of little consequence, has always known that he could accept my word—Sandy Stern has never asked me if I did it. He has inquired from time to time about details. He asked me once, quite unceremoniously, whether I’d had ‘a physical relationship’ with Carolyn, and I told him, without flinching, yes. But Stern has remained far clear of ever putting the ultimate question. In that he is like everybody else. Even Barbara, who evinces by various proclamations a belief in my innocence, has never asked me directly. People tell you it’s tough. They cling or, more often, seem visibly repulsed. But nobody has sufficient sand to come out with the only question you know they have in mind.
From Sandy this indirection seems more of his classical manner, the formal presence that lies over him like brocaded drapes. But I know it serves for more. Perhaps he does not ask because he is not certain
of the verity of the answer he may get. It is a given of the criminal justice system, an axiom as certain as the laws of gravity, that defendants rarely tell the truth. Cops and prosecutors, defense lawyers and judges—everybody knows they lie. They lie solemnly; with sweaty palms and shifty eyes; or, more often, with a look of schoolboy innocence and an incensed disbelief when their credulity is assailed. They lie to protect themselves; they lie to protect their friends. They lie for the fun of it, or because that is the way they have always been. They lie about big details and small ones, about who started it, who thought of it, who did it, and who was sorry. But they lie. It is the defendant’s credo. Lie to the cops. Lie to your lawyer. Lie to the jury that tries your case. If convicted, lie to your probation officer. Lie to your bunkmate in the pen. Trumpet your innocence. Leave the dirty bastards out there with a grain of doubt. Something can always change.
Thus it would be an act contrary to his professional acumen were Sandy Stern to commit himself to an unreserved faith in everything I say. Instead, he does not ask. This procedure has one further virtue. If I were to meet any new evidence by frontally contradicting what I had told Sandy in the past, legal ethics might require him to withhold me from the witness stand, where I almost certainly intend to go. Better to see everything the prosecution has, to be certain that my recollection, as the lawyers put it, has been fully “refreshed,” before Sandy inquires about my version. Caught in a system where the client is inclined to lie and the lawyer who seeks his client’s confidence may not help him do that, Stern works in the small open spaces which remain. Most of all, he desires to make an intelligent presentation. He does not wish to be misled, or to have his options curbed by rash declarations that prove to be untrue. As the trial approaches, he will need to know more. He may ask the question then; and I certainly will tell him the answer. For the time being, Stern has found, as usual, the most artful and indefinite means by which to probe.
“Della Guardia’s theory is something like this,” I say. “Sabich is obsessed with Polhemus. He’s calling her house. Can’t let go. He has to see her. One night, knowing that his wife will be going out and that he can get to Carolyn on the sneak, he calls up, begs to see her, and Polhemus finally agrees. She rolls around with him for auld lang syne, but then something goes wrong. Maybe Sabich is jealous of another relationship. Maybe Carolyn says that this was merely the grand finale. Whatever it is, Sabich wants more than she will give. He blows a gasket. He gives her what-for with some heavy instrument. And decides to make it look like rape. Sabich is a prosecutor. He knows that this way there will be dozens of other suspects. So he ties her up, opens the latches to make it look like somebody slipped in, and then—this is the diabolical part—pulls her diaphragm out of her, so there won’t be any evidence of consent. Like all bad guys, of course, he makes a few mistakes. He forgets the drink he had when he came in, the glass he left on the bar. And he does not think—maybe even realize—that the forensic chemist will be able to i.d. the spermicide. But we know he did evil to this woman, because he never revealed—he lied—about his presence on the night of the murder, which is established by all the physical evidence.”
This exposition is eerily comforting to me. The heartless hip analysis of crime is so much a part of my life and my mentation that I cannot make myself sound ruffled or even feel a fragment of concern. The world of crime has its argot, as ruthless as the jazzman’s is sweet, and speaking it again I feel I am back among the living, among those who see evil as a familiar if odious phenomenon with which they have to deal, like the scientist studying diseases through his microscope.
I go on.
“That’s Nico’s theory, something like that. He has to straddle a little bit on the question of premeditation. He might argue that Sabich had it in mind to do her in from minute one, that he chose this night so he had an alibi, in case she refused to build the old fire anew. Maybe Sabich was on a different trip: You can’t live if you won’t be mine. That’ll depend on evidentiary nuances. Probably Nico will give an opening that won’t lock him in. But he’ll be close to this. How does it sound?”
Sandy looks over his cigar. They are Cuban, he told me a few weeks ago. A former client gets them, he does not ask how. The wrapper, deep brown, burns so cleanly that you can see the leaf veins etched within the ash.
“Plausible,” he says at last. “Evidence of motive is not strong here. And it is usually critical in a circumstantial case. Nothing ties you to any instrument of violence. The state is further disadvantaged because you were, in essence, a political opponent of Della Guardia—never mind that you did not consider yourself a political employee, a jury will not believe that, and for our purposes should not be told that. There is additional evidence of bad feeling between you and the prosecuting attorney inasmuch as you personally fired him from his post. The importance of these matters, however, could be greatly reduced if the prosecuting attorney himself did not try this case.”
“Forget that,” I say. “Nico would never move out of the spotlight.”
Stern seems to smile as he draws on the cigar.
“I quite agree. So we will have those advantages. And these factors, which would raise questions in the mind of any reasonable person, will take on large importance in a circumstantial case, from which you and I both know juries are disinclined. Nevertheless, Rusty, we must be honest enough to tell ourselves that the evidence overall is very damaging.”
Sandy does not pause long, but the words, even though I probably would have said as much myself, feel like something driven against my heart. The evidence is very damaging.
“We must probe. It is difficult, of course, and I am sure painful, but now is the time that you must put your fine mind to work on this case, Rusty. You must tell me every flaw, every defect. We must look scrupulously at each piece of evidence, each witness, again and again. Let us not say that any of this hard work will be done tomorrow. Best to begin right now, today. The more deficiencies we find in this circumstantial case, the better our chances, the more Nico must explain, and explain with difficulty. Do not be afraid to be technical. Every point for which Della Guardia cannot account increases your opportunities for acquittal.”
Although I have hardened myself, one word catches me like a blow. Opportunities, I think.
Sandy summons Jamie Kemp to take part in our discussion, as it is bound to suggest various motions for discovery that we will soon be called upon to file. To hold down my expenses, Stern has agreed to allow me to assist in research and investigation, but I must act under his direction. With Kemp, I share the work of the junior lawyer, and I have enjoyed this collaboration more than I had counted on. Kemp has been Stern’s associate about a year now. As I get the story, quite some time ago Jamie was a guitarist in a medium-popular rock-and-roll band. They say he went through the whole shot, records and groupies and road shows, and when things went downhill he decamped for Yale Law School. I dealt with him in the P.A.’s office on two or three occasions without incident, but he had a reputation there for being preppie and stuck-up, impressed by his own blond good looks and a lifetime of good fortune. I like him, though he sometimes cannot suppress a little of that Waspy amusement with a world by which, he is convinced, he will never quite be touched.
“First,” says Stern, “we must file a notice of alibi.” This is a declaration, no questions. We will formally notify the prosecution of our intention to stand by my statement in Raymond’s office that I was at home the night Carolyn was murdered. This position deprives me of what, in theory, is probably the best defense—conceding that I saw Carolyn that night for an unrelated reason. That posture would dampen the force of the physical evidence and focus instead on the lack of any proof tying me to the murder. For weeks, I have been expecting some artful effort by Stern to discourage the alibi, and I find myself relieved. Whatever Sandy thinks of what I said, he apparently recognizes that to reverse field now would be too difficult. We would have to conceive an innocent explanation for my eruption on Black Wednes
day—why I went out of my way to lie, in outraged tones, to my boss, my friend, and the two top lawyers from the new administration.
Stern pulls the box to him and begins sorting through the documents. He starts from the front, the physical evidence.
“Let us go to the heart of the matter,” says Stern. “The glass.” Kemp goes out to make copies of the fingerprint report, and the three of us read. The computer people made their findings the day before the election. By then Bolcarro was playing ball with Nico, and so Morano, the police chief, surely was as well. This report must have gone straight to the top and right out to Nico. So Delay probably told the truth himself when he claimed that Wednesday in Horgan’s office that he had acquired significant evidence against me during the campaign and chose not to publicize it. Too much of a last-minute mess, I would suppose.
As for the report, it says, in brief, that my right thumb and middle finger have been identified. The other latent present remains unknown. It is not mine; it is not Carolyn’s. In all likelihood it belongs to one of the initial onlookers at the scene: the street cops who responded to the call, who always seem to run around touching everything before the homicide dicks arrive; the building manager, who found the body; the paramedics; maybe even a reporter. Nonetheless, it will be one of the difficult stray details for Della Guardia to cope with.
“I would like to look at that glass,” I say. “It might help me figure some things out.”
Stern points at Kemp and tells him to list a motion for production of physical evidence.
“Also,” I say, “we want them to produce all the fingerprint reports. They dusted everything in the apartment.”
This one Stern assigns to me. He hands me a pad:
“Motion for production of all scientific examinations: all underlying reports, spectographs, charts, chemical analyses, et cetera, et cetera, you know it better than I do.”
