Presumed Innocent

by Scott Turow

  “We certainly did.”

  “And yet, sir, you failed to find not merely a diaphragm but also any cream or jelly or other substance that could be expected to be utilized with it—is that not correct?”

  Greer hesitates. He had not thought of this before.

  “That’s correct,” he says at last.

  Nico turns immediately to Tommy. They are seated fifteen feet in front of me, facing the jury. I’ve never had the chance before to watch my opponents. From the prosecutor’s table you focus on the jurors. Nico is whispering. It seems to be something like, Where the hell is the stuff? A couple of the jury members respond alertly to this part of the examination.

  Stern is about to sit down when I ask him to bring the photos over. Sandy casts me a black look. This is proof that Stern would just as soon be forgotten. I motion to him again, however, and he hands me the stack. I finally find the picture of the bar and make my point to Stern. He bows briefly to me before returning to the witness.

  “You identified this photograph, Detective Greer, State Exhibit 6—G?”

  “Yes, sir.”

  “It reflects the bar where you found this glass?”

  “It does.”

  “Tell me, sir—this would be easier if we had the glass, but is your recollection of it good?”

  “I think so. It’s like the ones in the picture.”

  “Just so. The glass you seized was one of this set of barware laid out here on this towel?” Sandy has turned the photograph around so both Greer and the jurors can see the portion of the picture Stern means to indicate.

  “Right.”

  “Count the glasses, would you?”

  Greer lays his finger on the photo and does it slowly.

  “Twelve,” he says.

  “Twelve,” Stern repeats. “So the missing glass would make thirteen?”

  Greer knows this is peculiar. He waggles his head. “I guess so.

  “An odd set?”

  Molto objects, but Greer answers, “Very,” before Larren can rule.

  “Really,” Sandy says to me when we break for lunch, “I appreciate your thoughts, Rusty, but you must share them with us before the last moment. This detail may be significant.”

  I look at Stern as we are heading out of court.

  “I just noticed,” I tell him.

  The prosecutors have a dismal afternoon. I never tried a case as a deputy P.A. that did not have a low spot, a trough, a place where my evidence was weak. I used to talk about walking through the Valley of Death. For Nico, as we’ve long known, the valley is trying to prove what went on between Carolyn and me. His hope, quite clearly, is to get just enough evidence before the jury that they can make a comfortable guess. The overall plan Molto and he seemingly made was to start strong with Greer, stagger through this portion, and then dash for home, with the physical evidence providing a note of rising credibility. A reasonable strategy. But all the lawyers come to court after lunch knowing that these hours will belong to the defense.

  The state’s next witness is Eugenia Martinez, my former secretary. She clearly sees this as her moment. She comes to the stand in a broad slouch hat and dangling earrings. Nico presents her testimony, which is succinct. Eugenia testifies that she has been employed in the P.A.’s office fifteen years. For two of those fifteen years, ending last April, she worked for me. One day last September or October, in answering the phone, Eugenia picked up the wrong line. She heard just a few words of conversation, but she recognized the voices as those of Ms. Polhemus and me. I was talking about meeting Ms. Polhemus at her home.

  “And how did they sound to you?” asks Nico.

  “Object to ‘sound,’” says Stern. “It calls for a characterization.”

  “Sustained.”

  Nico faces Larren. “Judge, she can testify to what she heard.”

  “What she heard, but no opinions.” From the bench, Larren addresses Eugenia. “Ms. Martinez, you cannot tell us what you thought when you heard the conversation. Just the words and the intonation.”

  “What was the intonation?” Nico asks, back close to where he wanted to be.

  Eugenia, however, is not ready for the question.

  “Nice-like,” she finally answers.

  Stern objects, but the response is too innocuous to merit exclusion. Larren flips a hand and says that the answer may stand.

  Nico is having a difficult time with something important. Again, I am struck by how difficult it has been for him to prepare.

  “Did they sound intimate?” he asks.

  “Objection!” Stern shoots to his feet. The question is leading and unfairly suggestive.

  Larren again takes off on Nico before the jury. The question was clearly improper, Larren says. It is stricken and the jurors are ordered to disregard it. But there is method to Nico’s breach. He was trying to find some way to signal Eugenia.

  He asks, “Could you further describe the tone of the remarks you heard?”

  Stern objects again with force. The question has been previously asked and answered.

  Larren peers down. “Mr. Delay Guardia, I suggest that you move on.

  Suddenly help comes to Nico from an unexpected source.

  “He say ‘my angel,’” Eugenia volunteers.

  Nico faces her, stunned.

  “That’s what he say. Okay? He say he be comin at eight o‘clock and call her ‘my angel.’”

  For the first time since the trial began my composure fails before the jury. I let out a sound. My look, I’m certain, is inflamed. Kemp lays a hand on mine.

  “My angel!” I whisper. “For Chrissake.”

  Over his shoulder, Stern looks at me severely.

  Suddenly ahead of where he expected to be, Nico sits down.

  “Cross-examination.”

  Sandy advances on Eugenia. He speaks as soon as he reaches his feet, not waiting to arrive at the podium. He has maintained the same scolding expression which only seconds ago he turned on me.

  “For whom do you work now in the prosecuting attorney’s office, Ms. Martinez?”

  “Work?”

  “Whose typing do you do? Whose phones do you answer?”

  “Mr. Molto.”

  “This gentleman? The prosecutor at the table?” Eugenia says yes. “When Mr. Sabich was forced to take leave because of this investigation, Mr. Molto advanced to Mr. Sabich’s position, is that right?”

  “Yes, sir.”

  “And that position is one of considerable authority and influence in the P.A.’s office, is that right?”

  “Number-two man,” answers Eugenia.

  “And Mr. Molto was in charge of the investigation that brought him Mr. Sabich’s job?”

  “Objection!”

  “Your Honor,” Sandy says to the judge, “I am entitled to develop bias. The woman is testifying before her employer. Her perception of his motives is important.”

  Larren smiles. Stern is developing more than that, but his excuse will pass. The objection is overruled.

  The court reporter rereads the question and Eugenia answers yes. Sandy, in his opening, touched only lightly on the election and the change of administration. This is his first attempt to develop rivalry for power as a theme. It will answer, in part, his question to the jury in his opening statement about why the prosecutors might move ahead on an insufficient case. It had never struck me that he might do that by picking on Molto rather than Della Guardia.

  “Now, in the course of investigating Mr. Sabich, did Mr. Molto ask you to speak to a police officer about what you remembered of Mr. Sabich’s relationship with Ms. Polhemus?”

  “Sir?”

  “Didn’t you speak in May to Officer Glendenning?” Tom is in and out of court, but right now he is here and Sandy points at him, seated in uniform at the prosecutor’s table.

  “Yes, sir.”

  “And you knew that the investigation was a very important one, particularly to your boss, Mr. Molto, did you not?”

  “Seemed like
.”

  “And yet, madam, when you were asked about Mr. Sabich’s relationship with Ms. Polhemus, you never told Officer Glendenning that you heard Mr. Sabich call Ms. Polhemus ‘my angel,’ did you?” Sandy says it with a special cold emphasis. He appears furious with the perjury. He has Glendenning’s report in his hand.

  Eugenia suddenly recognizes that she is trapped. She gets a slow, unwilling look and sags a little. She probably had no idea that the defense would know what she said before.

  “No, sir,” she says.

  “You didn’t tell Officer Glendenning that you recalled Mr. Sabich using any term of endearment, did you, madam?”

  “No, sir.” She is brooding; I have seen this look a hundred times. Her eyes close; her shoulders draw around her. This is when Eugenia is at her meanest. “I never said anythin like that.”

  “Not to Mr. Glendenning?”

  “No time.”

  Sandy, before I do, recognizes where Eugenia is going. She has thought of a way out. He walks a few steps toward her.

  “Didn’t you testify five minutes ago, madam, that Mr. Sabich called Ms. Polhemus ‘my angel’?”

  Eugenia draws herself up in the witness stand, fierce and proud.

  “No way,” she says loudly. Three or four of the jurors look away. One of them, the man who is learning about hamburgers, laughs out loud, just one little hiccup.

  Sandy studies Eugenia. “I see,” he finally says. “Well, tell me, Ms. Martinez, when you answer Mr. Molto’s phone these days do you listen in on his conversations?”

  Her thick eyes go sidelong with contempt. “Nope,” she says.

  “You would not listen a moment longer than you had to in order to recognize that someone is on the line, is that not correct?”

  This, of course, is Eugenia’s problem. She probably heard a good deal more pass on the telephone between Carolyn and me than she has disclosed. But even with the P.A. and his chief deputy prosecuting the case, she cannot admit to eavesdropping. The winds of fortune change too quickly, and Eugenia, a bureaucratic animal, knows that such an admission would eventually be the long-awaited dynamite to dislodge her from her sinecure in civil service concrete.

  “What you heard, you heard in an instant?”

  “That’s all.”

  “No more?”

  “No, sir.”

  “And you tell us it was ‘nice-like’? Were those not your words?”

  “What I say, yes, sir.”

  Stern comes and stands beside Eugenia. She weighs about two hundred pounds. She is broad-featured and surly, and even dressed in her finest, as she is today, she still does not look very good. Her dress is much too loud and is stretched tight over her bulk.

  “You base this answer,” he asks, “on your experience in such things?”

  Sandy is poker-faced, but a couple of the jurors get it. They look down as they smile. Eugenia certainly gets it. Killers’ eyes do not grow colder.

  Stern does not ask for an answer.

  “And this conversation about meeting at Ms. Polhemus’s apartment took place last September, you say?”

  “Yes, sir.”

  “Do you remember that Mr. Sabich and Ms. Polhemus tried a case together as co-prosecutors last September?”

  Eugenia stops. “Uh-uh,” she says.

  “You do not remember the McGaffen case? A child, a little boy, had been hideously tortured by his mother? His head put in a vise? His anus burned with cigarettes? You do not remember Mr. Sabich securing the conviction of this—” Stern makes it look as if he is searching for a word, before he ends with “woman?”

  “Oh, that one,” she says. “I recall.”

  “The McGaffen case, I take it, was not recalled in your discussions with Mr. Molto?”

  “Objection.”

  Larren ponders.

  “I will withdraw it,” says Stern. He’s made his point to the jury. Prosecutor Molto seems to be taking it in the shorts so far today. He has the tag for the missing glass. He has inspired Eugenia’s perjury.

  “Ms. Martinez, do you remember how warm it was in Kindle County last year around Labor Day?”

  Her brows close. She has taken enough of a beating that she is trying to cooperate.

  “Past 100 two days.”

  “Correct,” Stern says, improperly. “Is the P.A.’s office air-conditioned?”

  Eugenia snorts. “Only if you believe what they say.”

  Laughter throughout the courtroom. The judge, the jury, the spectators. Even Stern finally smiles.

  “I take it you try to leave as soon as the day ends when the heat is like that?”

  “You got that right.”

  “But the prosecutors, when they are in the midst of a trial, do not leave at the end of the day, do they?”

  She looks at Sandy suspiciously.

  “Isn’t it commonplace, in your experience, for the deputy P.A.’s to prepare for the next day of trial in the evenings?” Stern asks.

  “Oh yes.”

  “Now, madam, would you not prefer to work in air conditioning rather than the P.A.’s office on a very warm evening?”

  “Objection,” Nico says. It’s largely pointless.

  “I’ll let it stand.”

  “Sure would.”

  “You don’t know of your own knowledge that Ms. Polhemus’s apartment was air-conditioned, I take it?”

  “No, sir.”

  “But you do know that the riverfront is much closer to the P.A.’s office than Mr. Sabich’s home in Nearing?”

  “Yes, sir.”

  Whatever the jury makes of Eugenia, it is probably favorable compared to their opinions of Mrs. Krapotnik, who is called next. Her few minutes on the witness stand achieve the level of pure burlesque. Mrs. Krapotnik is a widow. She does not say what Mr. Krapotnik died from, but it is hard to believe that Mrs. Krapotnik was not partly the cause. She is heavy-bosomed and garishly made up. Her hair is reddish, teased out so that it stands like a shrub, and her jewelry is thick. A difficult human being. She refuses to answer questions and narrates, free-flow. Mrs. Krapotnik explains as she is going along that the late Mr. Krapotnik was an entrepreneur of sorts. He bought their loft building on the riverfront when, as Mrs. K. puts it, “the neighborhood was still a mess, with trucks and junk, whatever.” She nods to the jury when she says this, confident that they know what she means. Mr. Krapotnik directed the refurbishment of the property himself.

  “He was a visionary. Do you know what I’m saying? He saw things. That place—you know what was in there? Tires, I’m not kidding, Mr. Dioguardi. Tires. Really, you could not believe the smell. I am not squeamish and it is embarrassing to say it, but one time he took me in there, I swear to God I thought I would retch.”

  “Madam,” Nico says, not for the first time.

  “He was a plumber. Who thought he knew real estate? Yes, Mr. Dioguardi?” She squints. “Is that your name? Dioguardi?”

  “Della Guardia,” says Nico, and casts his face despairingly toward Molto, seeking help.

  By and by Mrs. Krapotnik reaches Carolyn. She was their tenant originally when she moved in almost a decade ago. During the conversion craze, the building went condo and Carolyn bought. Listening to Mrs. Krapotnik, I write Kemp a note. “Where does a probation officer going to law school at night get the money to rent on the waterfront?” Kemp nods. He has thought of the same thing. For almost a decade, Carolyn lived on the second floor and Mrs. Krapotnik the first. Carolyn sent flowers, not really the right thing, when Mr. Krapotnik died.

  Nico is eager to get Mrs. Krapotnik out of there. The lady is beyond control. He does not bother asking about the night Carolyn was murdered. Any identification Mrs. Krapotnik made at this point would be sorely impeached by her prior failures.

  Instead, Nico simply asks, “Do you see in the courtroom, Mrs. Krapotnik, anyone you have seen in the vicinity of Ms. Polhemus’s apartment?”

  “Well, I know I seen that one,” she says. She throws both hands and her bangle bracele
ts in the direction of the judge.

  Larren covers his face with both hands. Nico pinches the bridge of his nose. The laughter in the spectator sections is suppressed, but seems after an instant to grow. Mrs. Krapotnik, recognizing that she has blown it, looks about desperately. She points at Tommy Molto, seated at the prosecutor’s table.

  “Him too,” she says.

  Molto makes matters worse by turning to see if there is anyone behind him.

  By now the jurors are laughing.

  Nico retreats to the evidence cart and brings Mrs. Krapotnik the photo spread from which she has previously identified a snap of me. She looks at the spread, glances up in my direction, and shrugs. Who knows?

  “Do you recall previously identifying photograph number 4?” Nico asks.

  This time she says it out loud: “Who knows?” When Nico closes his eyes in frustration, she adds, “Oh, all right. I said it was him.”

  Nico heads for his seat.

  “Cross-examination.”

  “One question,” says Stern. “Mrs. Krapotnik, I take it your building is air-conditioned?”

  “Air condition?” She turns to the judge. “What’s his business if we got air condition?”

  Larren stands to his full height and places his hands on the far side of the bench, so he is canted over Mrs. Krapotnik, five or six feet above her head.

  “Mrs. Krapotnik,” he says quietly, “that question can be answered yes or no. If you say anything else I will hold you in contempt.”

  “Yes,” says Mrs. Krapotnik.

  “Nothing further,” says Stern. “Your Honor, the record will reflect that there was no identification of Mr. Sabich?”

  “The record will reflect,” says Judge Lyttle, shaking his head, “that Mr. Sabich was one of the few persons in the courtroom Mrs. Krapotnik missed.”

  Larren leaves the bench, with the laughter still ringing.

  Afterward the reporters crowd around Stern. They want a comment from him on the first day’s testimony, but he will make none.

  Kemp is packing back into Sandy’s large trial case the documents—duplicates of statements and exhibits—that we withdrew during the day and which now litter the table. I am helping, but Stern takes my elbow and steers me toward the corridor.

  “No gloating,” he says. “We have a long night’s work. Tomorrow they will be calling Raymond Horgan.”