by Scott Turow
Stern reaches over and, as only he could do, pats me on the hand. He has a look of deep, if practiced, sadness. And as I meet this brown-eyed spaniel expression I realize that Alejandro Stern, one of this town’s finest defense lawyers, has heard these ardent proclamations of innocence too many times before.
19
At ten minutes to two Jamie and I meet Barbara at the corner of Grand and Filer and advance with her to the courthouse. The press horde is waiting for us on the steps beneath the columns. I know a back entrance through the heating and cooling plant, but I figure I can use that trick only once, and I have had the dismal thought that there may come another day when I am particularly eager to avoid this clawing mass, with their halogen lights, their boom mikes, their shoving and their shouting. For the moment, I am content to push my way through, saying, No comment.
Stanley Rosenberg from Channel 5, splendidly handsome except for particularly prominent front teeth, is the first to reach us. He has left his camera person and sound crew behind and approaches me alone, walking beside us. We address each other by first names.
“Any chance you’ll do something on camera?”
“None,” I answer.
Kemp already is trying to intervene, but I hold him off as we continue walking.
“If you change your mind, will you promise to call me first?”
“Not now,” Jamie says, and lays his hand on Stanley’s sleeve. Stanley to his credit maintains his good humor. He introduces himself and makes his pitch to Kemp instead. Right before the trial, Rosenberg says, a broadcast interview with Rusty would be good for everybody. Stern will never let me make statements to anyone, but Kemp, as we approach the steps and the waiting crowd of cameras, lights, and microphones, says merely, “We’ll think about it.” Stanley remains behind as we start up, Kemp and I flanking Barbara, more or less boosting her by the elbows as we shove our way through.
“What do you think about the fact that Raymond Horgan is going to testify against you?” Stanley shouts as we are parting.
I pivot quickly. Stanley’s bad teeth are fully revealed. He knew he’d get me with that one. Where does that come from, I wonder. Stanley may have made assumptions upon reading the court file where Nico’s witness list was filed. But Rosenberg has long-term connections to Raymond, and instinct tells me that he would not use Horgan’s name loosely.
The cameras are barred by judicial order inside the courthouse, and as we swing through the brass revolving doors, it is only the print and radio reporters who follow us in a pack, thrusting out their tape recorders and shouting questions to which none of us respond. As we hurry down the corridor toward the elevators, I reach for Barbara’s hand, which is around my arm.
“How are you doing?” I ask.
Her look is strained, but she tells me she is fine. Stanley Rosenberg is not as good-looking as he appears on TV, she adds. None of them is, I tell her.
My arraignment is before the Honorable Edgar Mumphrey, chief judge of the Kindle County Superior Court. Ed Mumphrey was leaving the P.A.’s office just about the time that I began. He was regarded with a kind of awe even then, for one reason: he is very rich. His father opened a chain of movie theaters in this town, which he eventually parlayed into hotels and radio stations. Ed naturally has labored to appear immune to his fortune’s influence. He was a deputy for almost a decade; then he entered private practice, where he remained for only a year or two before the call came to the bench. He has proved a straight, capable judge, short just enough candlepower to keep him from being regarded as brilliant. He became chief judge last year, an assignment which is primarily administrative, although he hears all arraignments, and negotiates and takes guilty pleas when they are offered in the early stages of proceedings.
I take a seat in Judge Mumphrey’s dark, rococo courtroom, in the front row. Barbara is beside me in a fine blue suit. For reasons that baffle me, she has also chosen to wear a hat, from which descends a coarse black mesh, presumably intended to suggest a veil. I think of telling her that the funeral is not yet, but Barbara has never shared the blacker side of my sense of humor. Beside me, sketching madly, are three artists from the local TV stations drawing my profile. Behind them are the reporters and the court buffs, all awaiting my reactions upon first being called a murderer in public.
At two o’clock Nico enters from the cloakroom, with Molto close behind. Delay is without restraint and goes on answering the questions of reporters who followed him into the little side anteroom. He talks to them through the open door. The prosecuting attorney, I think to myself. The fucking P.A. Barbara has taken my hand, and with Nico’s appearance she grips it a little tighter.
When I first met Nico, a dozen years ago, I recognized him instantly as a smart-ass ethnic kid, familiar to me from high school and the streets, the kind who, over the years, I had self-consciously chosen not to be: savvier than he was smart, boastful, always talking. But with few others to look to, I formed with Nico the sort of fast association of fresh recruits. We went to lunch together. We helped each other with briefs. After our first few years, we drifted, a result of our native differences. Having clerked for the Chief Justice of the State Supreme Court, I was perceived as lawyerly. Nico, like dozens of deputy P.A.’s for decades past, arrived in the office with his political network already thick. I would listen to him on the telephone. He had been a precinct captain in the organization of his cousin, Emilio Tonnetti, a county commissioner who had secured Nico’s position, one of the last political hirings Raymond agreed to. Nico knew half the hacks and functionaries in the County Building, and he never stopped buying tickets to the political golf outings and dinners, and making the rounds.
In truth, he proved a better lawyer than was expected. He can write, although he hates to spend time in the library; and he is effective before a jury. His courtroom persona, as I have observed it over the years, is typical of many prosecutors: humorless, relentless, blandly mean. He has a unique intensity which I always illustrate by telling what is known as the Climax story. I told it last week to Sandy and Kemp, when they asked about the last case I tried with Della Guardia.
That was almost eight years ago, right after we had been assigned to the felony courts. We were both hungry for jury work, and therefore we agreed to try a dead-bang loser of a rape case on reassignment from somebody smarter.
‘Delay had the complaining witness, Lucille Fallon, on the witness stand,’ I told Sandy and Kemp. Lucille, a dark-skinned lady, had been in a bar at four in the afternoon, when she met the defendant. Her husband, on unemployment, was home with the four kids. Lucille got to talking with the defendant, Freddy Mack, and agreed to accept a ride home. Freddy was a four-time loser, with a prior rape and an assault—which the jury of course never heard anything about—and he got a little overeager and took a straight edge from his pocket, thereby helping himself to what by all appearances was already going to come his way. Hal Lerner had the defendant, and he knocked every black out of the box, so there were a dozen middle-aged white people looking over this Negro lady who’d gotten a little rougher treatment than she wanted when she went out to wander.
Nico and I had spent hours attempting to prepare Lucille for her testimony, with no visible result. She looked terrible, a frumpy fat lady in a tight dress, rambling on about this awful thing that happened to her. Her husband was in the front row and she laid it on thick, making up an entirely new version of events right in the courtroom. Now she had met Freddy as he was emerging from the tavern and asked her for directions. She was already heading for devastation on cross when Nico finally began to elicit testimony about The Act.
And what did Mr. Mack do then, Mrs. Fallon?
He done it.
What was that, ma’am?
What he been sayin he do.
Did he have intercourse with you, Mrs. Fallon?
Yes, sir, he done.
Did he place his sex organ inside yours?
Uh huh.
And where was the razor?
Right here. Right here on my throat. Pressin right there, I thought every time I breathe he goin to slice me open.
All right, ma‘am. Nico was about to move on, when I, seated at counsel table, handed him a note. That’s right, said Nico, I forgot. Did he have a climax, ma’am?
Sir?
Did he have a climax?
No, sir. He be drivin a Ford Fairlane.
Delay never smiled. Judge Farragut was laughing so hard that he hid under the bench, and one of the jurors, literally, rolled out of his seat. Nico never even quivered. ‘And after they came back NG,’ I told Jamie and Sandy, ‘he swore he would never try a case with me again. He said that because I had not managed to keep a straight face, I gave the jury the feeling it wasn’t a serious case.’
Nico is looking happy enough today. The radiance of power hangs around him. He is wearing his carnation again, and he could not possibly carry himself more erect. He looks trim and well turned out in a new dark suit. There is an attractive vitality to him, as he moves back and forth, trading shots with the reporters, mixing answers to serious questions with personal remarks. One thing is for sure, I think, the son of a bitch is enjoying himself at my expense. His is this season’s media hero, the man who solved the murder of the year. You cannot pick up a local paper without seeing his face. Twice last week I saw columns suggesting that Nico might try out for the mayoral race, two years down the line. Nico responded by pledging his fealty to Bolcarro, but you wonder where those columns came from.
Nonetheless, Stern has insisted that Nico has endeavored to handle the case fairly. He has talked to the press far more than either of us believes is appropriate, but not all of the leaks have come from him, or even Tommy Molto. The police department is beyond its meager capacities for restraint with a case like this. Nico has been candid with Stern about the progress of the investigation; he shared the physical evidence as it developed, and he gave me notice of the indictment. He agreed that I was not a flight risk, and will consent to entry of a signature bond. Most important, perhaps, he has thus far done me the favor of not adding an additional charge of obstruction of justice.
It was Stern, during one of our early conferences, who first pointed out the jeopardy I was in were I to be indicted for willfully concealing facts material to the investigation.
‘A jury, Rusty, is very likely to believe you were in that apartment that night, and that at the very least you should have spoken up about it and certainly not lied in your meeting with Horgan and Molto and Della Guardia and MacDougall. Your conversation with Detective Lipranzer concerning the MUD sheets from your home is also very damaging.’
Stern was matter-of-fact about all this. His cigar was stuck in the corner of his mouth as he spoke. Did his eye flicker up for just an instant? He is the most subtle man I’ve met. Somehow I knew why the topic had been raised. Should he go to Nico with that deal? That was what he was asking. I could not get more than three years for obstruction of justice. I would be out in eighteen months. I would have my son again before he’s grown. In five years I could probably regain my license to practice law.
I have not lost my power to reason. But I cannot overcome the emotional inertia. I want back the life I had. No less. I want this not to be. I do not want to be marked as long as I live. To plead would be the same as conceding to an unneeded amputation. Worse.
No plea, I told Sandy.
No, of course not. Of course. He looked at me with disbelief. He had not raised the subject.
In the weeks that followed, we assumed that Della Guardia would include this surer count in the indictment. In moments of weird buoyancy, particularly in the last weeks, when it became clear that charges were being readied, I fantasized that the indictment might be for obstruction alone. Instead, the indictment charged only murder. There are tactical reasons that a prosecutor might make that choice. An obstruction count would offer a tempting—and to a prosecutor, unsatisfying—compromise for a jury inclined to find me guilty but uneasy with the circumstantial nature of Nico’s case. But on the day the indictment was returned, Sandy gave me what I found a surprising account of Nico’s decision.
‘I have spent a good deal of time, of course, speaking with Nico lately,’ Sandy told me. ‘He speaks of you and Barbara with some feeling. He has told me on two or three occasions stories of your early days together in the office. Briefs he says you wrote for him. Evenings that he enjoyed with the two of you while he was married. I must say, Rusty, that he seems sincere. Molto is a zealot. He hates every person he prosecutes. But about Nico I am not so sure. I believe, Rusty, that he has been deeply affected by this case and that he made this choice as a matter of fairness. He has decided that it would be irresponsible to put an end to your professional life simply because you were indiscreet, for whatever reason, and to whatever degree. If you are guilty of this murder, then you must be punished, he thinks. Otherwise, he is content to let you go. And I for one applaud him for that. I believe,’ said the lawyer whom I have thus far paid $25,000 to defend me, ‘that is the correct approach.’
“Criminal Case 86—1246,” calls out Alvin, Judge Mumphrey’s handsome black docket clerk. My stomach sinks and I head up toward the podium. Jamie is behind me. Judge Mumphrey, who entered only a moment ago, is getting settled on the bench. The cynics sometimes explain Ed’s ascension to chief judge as a function of his good looks. He was an elected judiciary’s concession to the media age, someone whom voters would think of with comfort when they faced the judge’s retention ballot. Ed’s appearance is wonderfully judicial, with fine silver hair drawn straight back from the brow and features regular and yet sharp enough to be stern. He is asked a couple times each year to pose for one of the bar journals in some piece of advertising.
Della Guardia ends up standing beside me. Molto is a few feet behind. As good as Nico looks, Tommy is a disheveled mess. His vest, absurd by itself in July, has ridden up on his substantial belly and his shirt-sleeves stick too far out of his jacket. His hair has not been combed. Now that I’ve seen Molto, the impulse to call him a twerp, which I thought I would have to stifle, has passed. Instead, I seek to look Nico in the eye. He nods.
“Rusty,” he says simply.
“Delay,” I answer. When I look down toward his waist, I see that he has covertly offered his hand.
I do not have a chance to test the full extent of my charity. Kemp has caught hold of my coat sleeve and jerks it violently to pull me aside. He comes to stand between Della Guardia and me. We both know that I do not have to be told not to talk to the prosecutors.
Judge Mumphrey from the walnut bench looks down and smiles at me circumspectly before he speaks. I appreciate the recognition.
“This is Criminal Case 86—1246. Let me ask counsel to identify themselves for the record.”
“Your Honor, I am Nico Della Guardia, on behalf of the people of the state. With me is Chief Deputy District Attorney Thomas Molto.”
Funny, the things that get you. I cannot suppress the briefest sound when I hear my title with Molto’s name. Kemp jerks my sleeve again.
“Quentin Kemp, Your Honor, of Alejandro Stern, P.C., on behalf of the defendant, Roat K. Sabich. I would request leave, Your Honor, to file our appearance.”
Jamie’s motion is allowed, and the court records now officially indicate that Stern and Co. are my lawyers. Jamie then moves on.
“Your Honor, the defendant is present in court. We would acknowledge receipt of Indictment 86—1246 and waive formal reading. In behalf of Mr. Sabich, Your Honor, we would ask the court to enter a plea of not guilty to the charge.”
“Plea of not guilty to the indictment,” repeats Judge Mumphrey, making a note on the court record. Bail is set by agreement as a $50,000 signature bond. “Is there a request from either party for a pre-trial conference?” This is the plea-bargaining session, usually an automatic, since it helps both sides buy time. Delay starts to speak, but Kemp interrupts.
“Your Honor, such a meeting would be an unnecessary waste o
f the court’s time.” He looks down at his legal pad for the words that Sandy wrote. When Kemp gets outside, he will read the same speech again live for the TV Minicam teams. “The charges in this case are very grave, and they are entirely false. The reputation of one of the city’s finest public servants and attorneys has been impugned and, perhaps, destroyed with no basis in fact. In the truest sense of the words, justice in this case must be swift, and we ask the court therefore to set an immediate trial date.”
The rhetoric is splendid, but tactics of course govern this demand. Sandy has emphasized to me that a quick disposition will avoid interminable strain on my shattered emotions. But disordered though I may be, I recognize the fundamental rationale. Time is with the prosecutor in this case. Delay’s principal evidence will not deteriorate. My fingerprints will not lose their memory. The MUD records will not die. With time the P.A.’s case can only become stronger. A witness from the scene might appear. There may be some account of what happened to the murder weapon.
Kemp’s request is a significant departure from form, since most defendants view delay as a second-best alternative to acquittal. Our demand seems to catch Nico and Molto short. Again, Della Guardia starts to speak, but Judge Mumphrey interrupts. For whatever reason, he has heard enough.
“The defendant has waived pre-trial conference. The matter will therefore be set over immediately for trial. Mr. Clerk,” he says, “please draw a name.” About five years ago, after a scandal in the clerk’s office, the last chief judge, Foley, solicited suggestions on a method to ensure that the selection of a trial judge for a lawsuit was completely random. I came up with the idea that the draw be made in court, in front of everybody. The proposal—put forth of course in Horgan’s name—was immediately adopted, and I believe was the touchstone for Raymond’s belief that I had executive ability. Now wooden plaques, each bearing the name of a judge, are spun inside a closed cage, borrowed from a bingo game. Alvin, the clerk, rolls the bones, as they are known. He pulls the first into the opening.
