by Scott Turow
“He is the son of an immigrant, a Yugoslavian freedom fighter who was persecuted by the Nazis. His father came here in 1946 to a land of freedom, where there would be no more atrocities. What would Ivan Sabich think today?”
I would squirm were I not under the sternest orders to show nothing. I sit with my hands folded and look ahead. At all moments, I am to appear resolute. Lamentably, Stern did not give me a preview of this portion. Even if I testify, I will not testify to this—not that the prosecutors would be likely to disprove it.
Stern’s manner is somehow commanding. The accent lends an intrigue to his speech, and his considered formality gives him substance. He makes no predictions of what the defense will show. He steers clear of promising my testimony. Instead, he focuses on deficiencies. No evidence, not a scintilla of direct evidence that Rusty Sabich handled any murder weapon. No sign that Rusty Sabich took part in any violence.
“And what is the cornerstone of this circumstantial case? Mr. Della Guardia told you many things about the relationship of Mr. Sabich and Ms. Polhemus. He did not tell you, as the evidence will show, that they were co-workers, that they worked as trial lawyers, not as lovers, on a case of tremendous importance. He did not mention that. He left that for me to tell you. All right, then, I have, and the evidence will show that to you, too. You should mind closely what the evidence shows you, and does not show you, about the relationship of Rusty Sabich and Carolyn Polhemus. Mind that closely in this circumstantial case where Mr. Della Guardia seeks to prove guilt beyond a reasonable doubt. I tell you flatly, flatly, that the evidence will not show you what Mr. Della Guardia has said it would. It will not. You see this case will not involve facts, but rather supposition upon supposition, guess upon guess—”
“Mr. Stern,” says Larren mildly. “You seem to be falling into the same trap as Mr. Della Guardia.”
Sandy turns; he actually bows in an abbreviated way.
“I am so sorry, Your Honor,” he says. “He seems to have inspired me.”
A laugh, a small one, from everyone. The judge. A number of members of the jury. A small laugh at Delay’s expense.
Sandy turns back to the jury, and remarks as if he were speaking to himself: “I must keep myself from getting carried away by this case.” Then he plants his last seed. No commitments, just a few words.
“Well, one cannot help asking why. As you listen to the evidence, ask why. Not why Carolyn Polhemus was murdered. That regrettably is something no one will be learning from this proof. But why Rusty Sabich sits here falsely accused. Why offer a circumstantial case, a case that is supposed to show guilt beyond a reasonable doubt and does not?”
Sandy stops. He tilts his head. Perhaps he knows the answer; perhaps he does not. He speaks softly.
“Why?” is the last thing that he says.
27
They cannot find the glass.
Nico admits this as soon as Stern and Kemp and I arrive on the third morning of trial. The first witnesses will be called today.
“How in the world?” asks Stern.
“I apologize,” says Nico. “Tommy tells me he forgot about it at first. He really did. Now they’re looking high and low. It’ll turn up. But I have a problem.” Della Guardia and Stern stroll away, conferring. Molto watches them with obvious concern. He seems reluctant to leave his place at the prosecution table, like a whipped dog. Really, Tommy does not look well. It is too early in the trial to be as exhausted as he appears. He has a yellow cast to his skin, and his suit, the same as yesterday’s, does not seem to have had any time to rest. I would not be surprised if Molto never made it home last night.
“How can they lose a piece of evidence like that?” Kemp asks me.
“Happens all the time,” I answer. The Police Evidence Center, over in McGrath Hall, has more unclaimed items than a pawnshop. Tags get knocked off; numbers are reversed. I started many cases with evidence misplaced. Unfortunately, Nico is right: the glass will turn up.
Stern and Della Guardia have agreed to advise the judge of this development, before he takes the bench. We will all go back to chambers. This will save Nico from a public whipping. Stern’s concession on points like this, minor courtesies, is the kind of thing that has made him popular around the P.A.’s office. Other lawyers would demand to be on the record so that Nico could take a hiding before the press.
We all wait a moment in the judge’s outer office, while his secretary, Corrine, keeps an eye on the phone light to see when the judge completes the call he is presently taking. Corrine is stately and large-chested, and the courthouse wags regularly speculated on the nature of her relationship with Larren, until last fall, when she married a probation officer named Perkins. Larren has always been a ladies’ man of some renown. He divorced about ten years ago, and over time I’ve heard a lot of tales about him drinking Jack Daniel’s in the pretty-people night spots down on Bayou Boulevard, that pickup strip which certain sages refer to as the Street of Dreams.
“He says come right in,” Corrine tells us, putting down the phone after a brief conversation with the judge to announce our group. Kemp and Nico and Molto precede us. Stern wants a moment with me to confer.
When we enter, Nico has already begun telling the judge the problem. He and Kemp are in armchairs before the judge’s desk. Molto sits a distance away on the sofa. The chambers, the judge’s inner sanctum, has a distinguished bearing. One wall is solid with the gold-toned spines of the state law reports, and Larren also has his own Wall of Respect. There is a large picture of the judge and Raymond, among a number of photos of the judge with politicians, mostly black.
“Your Honor,” Nico is saying, “I learned the first time last night from Tommy—”
“Well, I thought Tommy indicated yesterday that you had the glass and he simply had overlooked this matter. Tommy, I’ll tell you something right now.” The judge is on his feet behind his desk, looking rather regal in a purple-toned shirt with white collar and cuffs. He has been roaming in his books and papers as he listens, but now he turns about and points a stout finger at Molto. “If I have the same kind of bullshit from you in this case I’ve had in the past, I’ll throw you in the lockup. I really will. Don’t be tellin me one thing and meanin something else. And I want to say this right in front of the prosecuting attorney. Nico, you know we’ve always gotten along. But there’s a history here.” The judge tips his large head in Molto’s direction.
“Judge, I understand. I really do. That’s why I was concerned as soon as I learned of the problem. I really do believe that it’s an oversight.”
Larren glances balefully at Della Guardia from the corner of his eye. Nico does not even flinch. He is doing a pretty good job. He has both hands in his lap and is making his best effort to appear the suppliant. This is not an attitude that comes to him naturally, and his readiness to humble himself before the judge is actually quite winning. There must have been hell to pay last night between Molto and him. That’s why Tommy looks so bad.
Larren, however, is not about to let the subject go. As usual he has caught all the implications quickly. For better than a month the prosecutors have been promising to produce a glass they knew they could not find.
“Isn’t this somethin?” the judge asks. He looks, for support, to Stern. “You know, Nico, I don’t issue these orders just for the hell of it. You do with your evidence as you like, but really—Who had this glass last?”
“There’s some disagreement, Judge, but we believe it was the police.”
“Naturally,” says Larren. He looks off toward the distance in disgust. “Well, you see what we have here. You have defied an order of the court. The defense has not had an opportunity to prepare. And you have given an opening statement, Nico, in which you must have referred to this evidence half a dozen times. Well, that’s your problem now. When you find the glass, assuming you find it, then we’ll determine whether or not it comes into evidence. Let’s go try this case.”
Nico’s difficulties, however, are more
complex than one angry judge. The state case has been prepared with the witnesses expected in an established sequence, referred to as an order of proof. The first person to testify is supposed to describe the crime scene, and accordingly, he will mention the glass.
“Not in my courtroom,” says Larren. “No, sir. We’re not gonna be talkin anymore about evidence that nobody can find.”
Stern finally speaks up. He announces that we have no objection to Delay proceeding as he had planned.
“Your Honor, if the prosecution fails to find the glass, we will object to any further evidence regarding it.” He means, of course, the fingerprints. “But for the time being, there is no purpose to delay, if Your Honor will permit it.”
Larren shrugs. It’s Sandy’s lawsuit. This is the subject Sandy and I discussed in the judge’s outer office. If we object, we can make Nico take witnesses out of the order he had planned, but Sandy thinks the advantage is greater if Nico’s first witness has to explain that a piece of evidence is missing. Better that they look like Keystone Kops was how Stern put it. The disorganization will make a poor impression on the jury. Besides, there is little damage to me in the bare fact that a glass was found. And as I pointed out to Kemp, the police-evidence custodians will eventually locate the glass; they always do.
“I would think you should give Mr. Stern an order of proof so that he has notice of when we’re coming to this area again.”
Molto speaks up. “We have one, Judge. We’ll give it to them right now.” Tommy fiddles in the sloppy heap of papers on his lap, and eventually passes a sheet to Kemp.
“And let’s put this on the record,” Larren says. Nico’s punishment. He must explain this screw-up in public after all.
While the lawyers are before the bench, repeating our chambers conference in the presence of the court reporter, I examine the order of proof. I am eager to know when Lipranzer will be testifying. The sooner he does, the sooner the search for Leon can resume. I have tried to get Sandy’s P.I. to look further, but he claims there is nothing to do. The list, however, provides no good news. Lip is scheduled toward the latter part of the case. Leon and I will have to wait.
Even in my disappointment, I recognize that Tommy and Nico have constructed their case with care. They will begin with the murder scene and the collection of the physical evidence, and will then start a slowly accelerating demonstration of why I am the murderer. First will come their proof, equivocal as that is, of my relationship with Carolyn; then my questionable handling of the investigation; near the end they will offer the various bits of evidence that put me at the murder scene: the fingerprints, the fibers, the phone records, the Nearing maid, the blood test results. Painless Kumagai will testify last and, I suppose, offer an expert opinion on how it was done.
Up on the bench Larren is still chewing Nico out, for the record.
“And the prosecutors will immediately advise the defense when the evidence is located. Is that correct?”
Nico promises.
With that matter settled, the jury is brought in, and Nico announces the name of the prosecution’s first witness, Detective Harold Greer. He enters from the corridor and stands before Larren to be sworn.
As soon as Greer is up there, it is obvious to all of us why Nico wanted to maintain the predetermined order of proof. Juries for obvious reasons tend to remember the first witness, and Greer is impressive, a huge, well-spoken black man, calm and orderly in his presentation of himself. With or without the glass, he is the image of competence. The department is full of officers like Greer, men and women with the IQ’s of college professors who became cops because it was, within their horizons, the best thing available.
Molto is doing the questioning. He looks rumpled but his direct examination is well prepared.
“And where was the body?”
Greer was the third officer on the scene. Carolyn was discovered about 9:30 a.m. She missed an eight o‘clock meeting and a nine o’clock court call. Her secretary called the super directly. All he did, he told me months ago, was push the door open and look around. He could see then he needed the cops. The beat guys called for Greer.
Greer describes what he observed and the way the evidence techs did their work under his direction. Greer identifies a sealed plastic packet that contains the fibers that were lifted from Carolyn’s body, and a larger packet that contains her skirt, from which more of the Zorak V fibers were obtained. Molto and he smooth over the glass. Greer describes finding it on the bar, watching the evidence techs seal the Baggie.
“And where is the glass at present?”
“We’ve had a little trouble locating it. It should turn up in the police evidence room.”
Next Molto raises the specter of the removed diaphragm. Greer says that in a thorough search of the apartment he found no contraceptive device. Then, with all the little bits of evidence which the police discovered inventoried before the jury, Molto moves to his climax.
“Based on your experience in nine years as a homicide detective, and the appearance of the scene, did you have any opinion as to what had taken place?” Molto asks.
Stern makes his first objection before the jury.
“Your Honor,” Stern scolds, “this is speculative. This cannot be regarded as an expert opinion. Mr. Molto is asking about a hunch.”
Larren strokes his cheeks with his big hand, but shakes his head. “Overruled.”
Molto repeats the question.
“Based on the position of the body,” Greer responds, “the way it was tied, the signs of disturbance, the open window over the fire escape, on first looking at the scene I was of the opinion that Ms. Polhemus had been murdered in the course of, or as the result of, a sexual assault.”
“A rape?” asks Molto, a leading question, not usually permitted on direct examination but harmless under the circumstances.
“Yes,” says Greer.
“And were police photographers at the scene?”
“They were.”
“What, if anything, did they do?”
“I asked them to take a number of photos of the scene. And they did that.”
“In your presence?”
From the evidence cart the prosecutors wheeled into court this morning, Molto takes the collection of photos I looked at four months ago in my office. He shows each to Sandy before he presents them to Greer. Molto has set his examination up cleverly. Usually a judge will limit the prosecution’s use of photos in a murder case. It is grisly and prejudicial. But by emphasizing the appearances, which the prosecution of course will argue were staged, Tommy has deprived us of the usual grounds for objections. We sit, attempting to appear implacable, while Greer describes each of the gruesome photos and identifies them as having accurately reflected the scene. When Molto offers them, Sandy approaches the bench and asks the judge to look them over himself.
“We can do with just two of the body,” Larren says. He removes another two, but he allows Molto to pass the ones admitted among the jurors at the end of Greer’s examination. I do not dare to look up often, but I can sense from the stillness in the box that the blood and Carolyn’s contorted corpse have had the effect the prosecutors hoped. The schoolteacher will not be smiling at me again for quite a while.
“Cross-examination,” says the judge.
“Just a few matters,” says Sandy. He smiles a bit at Greer. We will not be challenging this witness. “You mentioned a glass, Detective. Where is that?” Stern starts to look among the exhibits Greer identified.
“It’s not here.”
“I am sorry. I thought you testified about it.”
“I did.”
“Oh.” Sandy appears flustered. “But you do not have it?”
“No, sir.”
“When was the last time you saw it?”
“At the scene.”
“You have not seen it since?”
“No, sir.”
“Have you tried to find it?”
Greer smiles, probably the first time si
nce he took the stand. “Yes, sir.”
“I see from your expression you have put some effort into this?”
“Yes, sir.”
“And the glass still cannot be found?”
“No, sir.”
“And who would have handled it last?”
“I don’t know. Mr. Molto over there has got the evidence receipts.”
“Oh.” Sandy turns in Tommy’s direction. Molto appears faintly amused. It is Sandy’s playacting that he finds humorous, but the jury of course does not realize that is the source of this slight grin. To them Tommy must appear somewhat arrogant. “Mr. Molto has them?”
“Yes, sir.”
“Ordinarily he would have the evidence, too?”
“Yes, sir. The prosecutor gets the evidence and the original tags.”
“So Mr. Molto has the tag but not the glass?”
“That’s right.”
Sandy turns again to Molto. While looking at him, Stern says, “Thank you, Detective.” He appears to ruminate before he again faces the witness.
Stern spends a few minutes on the details of the collection of various pieces of evidence. When he reaches the diaphragm he pauses with some apparent emphasis.
“A contraceptive device was not the only item you failed to find, is that right, Detective?”
Greer’s face narrows. He did not find the Hope Diamond or Aunt Tillie’s missing lace hankie. The question can’t be answered.
“Well, Detective, you and the officers under your command made a very thorough search of the apartment, did you not?”
