by Scott Turow
Recognizing all of that, I have put my hostility aside and told Sandy that he has my blessings to treat Raymond gently. As Stern has pointed out before, Raymond’s credibility, born of years in the public light, will make him hard to successfully assail, in any event. But it is clear from Stern’s demeanor that he will be neither courtly nor accommodating to Raymond. Perhaps Stern believes the direct was too damaging to simply absorb. But I am surprised that Sandy has begun any attack this abruptly. There are some favorable things Raymond will have to concede—compliments on my performance in the office in the past, for example. The traditional wisdom is that you take what a witness will give before you slap him.
“And you applied these standards for disclosure to yourself as well?”
“I tried.”
“Certainly you would give all appropriate information to someone on your staff doing a job for you?”
“Again, Mr. Stern, I’d try.”
“And certainly the case concerning Ms. Polhemus’s death was a very important case in your office?”
“Given its political significance, I would call it critical.” Raymond looks in my direction as he says this. His eyes are hard as ball bearings.
“But even though you yourself saw this as a critical case, you did not give Mr. Sabich all the information at your disposal about the matter, or about Ms. Polhemus, did you?”
“I tried.”
“Did you? Was it not very important to know everything Ms. Polhemus was working on, so that any person who might have a motive to do her harm could be identified?”
Raymond suddenly sees where this is going. He sits back in his chair. But he still tries to fight.
“That wasn’t the only thing that was important.”
Bad mistake. Lawyers really are lousy witnesses. Raymond is going to deny that Carolyn’s docket was an important source of leads. Sandy embarrasses him badly in the next few moments. People in law enforcement often fear reprisals from those they prosecute? Such reprisals all too frequently occur? Law enforcement would be impossible if prosecutors and police could be assaulted, maimed, murdered by those they investigate? Certainly when Ms. Polhemus was killed it was a thought, indeed it was speculated in the press, was it not, that a former defendant might have been her attacker? Raymond sees he’s lost after a few questions, and answers simply yes.
“So all of Ms. Polhemus’s cases were important? It was important to know whom she was investigating, what she was looking into?”
“Yes.”
“And in spite of knowing that, Mr. Horgan, you personally removed a file from Ms. Polhemus’s drawer after the investigation of her murder began, didn’t you?”
“Yes.”
“A very sensitive matter, was it not?”
Larren has observed the cross, lying back in his chair. For the most part he has appeared faintly amused by this contest between two well-known professionals. Now he interrupts.
“What’s the relevance of this, Counsel?”
Sandy for a moment is wordstruck.
“Your Honor, I think that the relevance of this is clear.”
“Not to me.”
“The witness has testified on direct examination that Mr. Sabich did not bring to his attention information that Mr. Horgan regarded as pertinent. The defendant is entitled to explore Mr. Horgan’s standards in this regard.”
“Mr. Horgan was the prosecuting attorney, Mr. Stern. You’re mixing apples and oranges,” says the judge.
Relief comes from an unexpected source. Della Guardia is on his feet.
“We have no objection to this line of questioning, Judge.” Larren lets his glance linger in Nico’s direction. Molto immediately grabs Delay’s forearm. I assume that Nico wants the discussion about professional standards to continue in the belief that it will further educate the jury about the extent of my deviation. But he is well out of place here. For one thing, Horgan is not his witness. And I take it from the heated way that Molto speaks to him as Delay resumes his seat that Nico does not recognize the drift of Sandy’s questioning. I wonder if he even knows about the B file or has just forgotten. I make a note which I will give to Stern at the break: Who did Horgan tell re B file? Molto? Nico? Neither?
With new daylight, Sandy quickly proceeds.
“As I said, this was a very sensitive matter, was it not?”
“Yes.”
“It involved allegations—”
Larren again injects himself, more faithful than a Labrador.
“We don’t need the details of the internal workings of the prosecuting attorney’s office or of its investigations, many of which, I remind you, Mr. Stern, are protected by rules of grand-jury secrecy. This was a sensitive case. Let us move on.”
“Of course, Your Honor, I had no interest in disclosing any secrets.”
“Of course not,” says Larren. He smiles with apparent disbelief and turns toward his water carafe, which, it so happens, is in the direction of the jury. “Proceed.”
“And, in fact, this case was so sensitive, Mr. Horgan, that you assigned it to Ms. Polhemus without informing any other person in your office that you had done so. Yes?”
“Yes.”
Sandy quickly lists everyone in the office who was not told: Mac. The Special Investigations Chief, Mike Dolan. Three or four more names. He ends with me. Raymond acknowledges each.
“And you gave the file to Mr. Sabich only when he personally informed you that a file appeared to be missing from Ms. Polhemus’s office, is that not true?”
“True.”
Sandy takes a little tour around the courtroom to let all of this sink in. Raymond has been tarnished. The jury is paying close attention.
“Now, Ms. Polhemus was an ambitious woman, was she not?”
“I suppose it depends on what you mean by ambitious.”
“She enjoyed being in the public eye, she wanted to progress in your office, did she not?”
“All true.”
“She wanted to handle this case?”
“As I recall.”
“Now, Mr. Horgan, you assigned this case to Ms. Polhemus, this highly sensitive matter to her, this case that only you and she knew about, this case she was eager to handle while you two were personally involved, correct?”
Raymond begins to roll again in his seat. He knows that Stern will spare him nothing now. He has hunkered down a little, so that to my eye it looks as if he is trying to duck.
“I really don’t recall exactly when I made that assignment.”
“Let me remind you, then.” Sandy gets the file jacket, shows Raymond the docketing date, reminds him of his direct testimony about when he and Carolyn were dating. “So,” he concludes, “you assigned this very sensitive case to Ms. Polhemus while you were personally involved with her?”
“That appears to be when it happened.”
Stern stands still and looks at Horgan.
“The answer to the question,” says Raymond, “is yes.”
“Your failure to inform anyone of this assignment contradicted established procedure in your office, did it not?”
“I was the prosecuting attorney. I decided when there would be exceptions to the rules.” He has picked up Larren’s hint.
“And you made an exception for Ms. Polhemus?”
“Yes.”
“With whom you were—Strike that. Ordinarily such a case would have been assigned to a lawyer with more experience in such matters, would it not?”
“That’s a consideration ordinarily.”
“But that wasn’t a consideration here?”
“No.”
“And this remained your secret with Ms. Polhemus, did it not, even after your relationship with her ended?”
“True,” says Raymond. He smiles for the first time in a while. “There was no change in my conduct.”
“Because you were embarrassed?”
“It didn’t occur to me.”
“And when Mr. Sabich was trying to assemble all the information
in the office about Ms. Polhemus’s cases, it did not occur to you that you had gone to her office and put the file in your drawer?”
“I suppose it didn’t.”
“You were not attempting to conceal anything, were you, Mr. Horgan?”
“I was not.”
“There was an election campaign taking place, was there not?”
“Yes.”
“A tough campaign?”
“Brutal.”
“A campaign in which, as it turned out, you were losing?”
“Yes.”
“A campaign in which your opponent, Mr. Della Guardia, had been a deputy in your very office and had many friends there?”
“That’s true.”
“And you were not concerned, Mr. Horgan, in the midst of this brutal campaign about word leaking out, through one of Mr. Della Guardia’s friends, that you had given choice assignments to an assistant with whom you were sleeping?”
“Maybe it crossed my mind. Who knows, Mr. Stern? It was not an ideal situation.”
“Far from it,” says Stern. “I ask you again, sir, were you not trying to hide the fact that you had had an affair with a member of your staff?”
“It wasn’t something I ordinarily talked about, if that’s what you mean.”
“No indeed. It could be viewed as unprofessional.”
“It could be, but it wasn’t. We were both adults.”
“I see. You had confidence in your judgment, notwithstanding this affair?”
“Very much so.”
Stern has gradually approached Horgan. Now he takes the last few steps and reaches out to touch the rail of the witness stand, so that he stands only a few feet from Raymond.
“And yet, sir, you come to this courtroom where the life of a man who served you faithfully for a dozen years now hangs in the balance, and you tell us that you would have none of the same confidence in him?”
Horgan’s look locks with Stern’s. From where I am, I cannot quite see Raymond’s expression. He finally faces about and when he does he has his tongue tucked into his cheek. He is looking now in Della Guardia’s direction, somewhat sheepishly. I am not sure if he is seeking help or casting apologies.
“I wish he had said something, that’s all. It would have looked better for him. It would have looked better for me.”
One of the jurors says, “Hmm.” I hear the sound, but do not see whom it came from. Others are looking toward the floor. It is hard to figure why this seems to have such impact. Nothing has changed the fingerprints, or the fibers, or the records from my phone. But it has been a splendid moment for the defense. Molto and Nico have brought Raymond Horgan to this courtroom as the model of propriety, the arbiter of standards. Now it turns out that things have been overblown. Just as he did in representing Colleen McGaffen, Sandy Stern has found the message to this jury that he wishes to send but never speak aloud. So what? he is saying. Suppose it is true that Sabich and the decedent had been intimate. Suppose that he chose, wisely or not, to keep that to himself. It is still no different from what Horgan did. If I was too embarrassed to confess aspects of my past conduct, everyone should understand. The knot between what I did not say and what I did has been untied; the juncture has been severed between murder and deceit.
Sandy walks away. He lets Horgan sit. Raymond sighs a couple of times and removes his handkerchief. As Stern paces by our table, he places his hand on my shoulder and I cover it with mine. A spontaneous gesture, but it seems to go down well with one or two jurors who notice.
“Let us turn to another subject, Mr. Horgan. How did you meet Mr. Sabich?”
Sandy is still strolling, headed back now toward the witness, and below the table I motion to him, no. I forgot to tell him not to ask that question.
“Perhaps we should not loiter with ancient history,” says Sandy casually. “I shall withdraw that question, if the court please. As a matter of fact, Your Honor, if this would be a convenient point, perhaps we could all do with some lunch.”
“Very well,” says Larren. He seems particularly sober after Raymond’s performance. Before he leaves the bench, Judge Lyttle glances back at Horgan, who has still not moved.
29
“So what did you think of this morning? Hmm?” asks Stern. He reaches for the relish tray. “You must try the corn willie, Rusty. Such a simple dish, but really very well prepared.”
Stern has worked through lunch each day preceding, but you can tell that it is not his chosen routine. A civilized life includes a meal at noontime, he would say, and today, Horgan or not, he takes me to his dining club for lunch. It is on the forty-sixth floor of Morgan Towers, one of the tallest buildings in town. From here you can see the river bend and sway, the serried ranks of the city skyline, which these days looks mostly like so many shoe boxes end on end. If you had a telescope you could probably make out my home in Nearing.
I would have expected to become closer to Sandy. I am fond of him, and my respect for his professional abilities, never slight, has grown progressively. But I would not say that we have become friends. Perhaps it is because I am a client, charged with murder no less. But Stern’s view of human capacity is itself large enough that I doubt any one act, no matter how heinous, would disqualify someone from his affections. The problem, if there is a problem, is the man and his inner restraints. He draws his lines in his professional life and I doubt anyone passes. He has been married thirty years. I have met Clara once or twice. Their three children are now spread all around the country; the youngest, a daughter, will finish at Columbia Law School next year. But as I think about it, I do not know many other people who claim to be close to Stern. He is a pleasant companion on any social occasion, and he is a polished raconteur. I remember that a friend of Barbara’s father told me years ago that Stern tells marvelous stories in Yiddish, a skill I, of course, cannot confirm. But there are sharp limits on Sandy Stern’s sense of intimacy. I know very little of what he really thinks, particularly about me.
“I have two comments about this morning,” I say, as I help myself to corn. “I thought it went very well, and I enjoyed it a great deal. The cross has been brilliant.”
“Oh well,” says Stern. Sandy, despite his fine manners, is a considerable egotist, like every other noted trial lawyer. He shakes his head, but then takes a moment to savor my praise. A number of the reporters and courtroom observers whispered their compliments as we were on the way over here. Stern, only halfway through the cross, still wears the light air of triumph. “He did it to himself, really. I do not think I recognized before the start of this case how vain a person Raymond is. Even so, I do not know how far it takes us.”
“You embarrassed him very badly.”
“Apparently. He is bound to remind me of it someday. But that is not our problem now.”
“I was surprised Larren was so protective of Raymond. If I had to guess, I would have bet that he’d have bent over backward to appear neutral.”
“Larren has never been afraid of being regarded as a man with his own affinities.” Sandy sits back as a waiter sets down his plate. “Well,” says Stern, “I only hope we do as well at the next critical juncture. I am not as optimistic.”
I do not understand what he is talking about.
“There are two pivotal cross-examinations in this trial, Rusty,” he says. “We are only in the midst of the first.”
“What’s the other—Lipranzer?”
“No.” Stern frowns a bit, unhappy, apparently, merely with the prospect of Lip’s testimony. “Detective Lipranzer for us will be primarily a holding action. In that case, we will be hoping, merely, to ease the sting. No, I was thinking of Dr. Kumagai.”
“Kumagai?”
“Oh yes.” Sandy nods to himself. “You see, of course, that the physical evidence is the center of the prosecutors’ case. But in order to fully utilize that evidence, Nico must call a scientific expert. Della Guardia cannot stand before the jury at the end of the case and offer only conjecture on how this act t
ook place. His theories must be buttressed by a scientist’s opinions. So he will call Kumagai.” Sandy samples his lunch with obvious appreciation. “Forgive me for being didactic. I am unaccustomed to counselling trial lawyers. At any rate, Kumagai’s testimony becomes critical. If he performs well, he will solidify the prosecution case. But his testimony also offers an opportunity for us. It is really the only chance we will have to blunt the edge somewhat on the physical evidence—the fingerprints, the fibers, all of these items that are normally unassailable. If we make Kumagai look dubious, the physical evidence, all of it, suffers as well.”
“And how do you do that?”
“Ah,” says Stern, somewhat wistfully, “you ask all the difficult questions. We must turn our attention to that shortly.” He taps his bread knife and casts his eyes toward the skyline, not really focused on it. “Kumagai is not a pleasant individual. A jury will not warm to him. Something will suggest itself. In the meantime,” Stern says, looking back to me abruptly, “what was this blunder I almost made? Something awful would have been disclosed when I asked how you and Horgan met?”
“I didn’t think you wanted the jury to hear about how the Yugoslavian freedom fighter went to federal prison.”
“Your father? Oh dear. Rusty, I must apologize to you for that improvisation the other day. It came to me as I was there. You understand these things, I am sure.”
I tell Sandy that I understand.
“Your father went to jail? How did that happen? Horgan represented him?”
“Steve Mulcahy. Raymond just covered a couple of the court calls. That was how we met. He was very nice to me. I was quite upset.”
“Mulcahy was the other partner?” In those days it was Mulcahy, Lyttle & Horgan. “He has been dead many years. We are talking about some time ago, I take it.”
“I was still in law school. Mulcahy was my professor. When my father got the first summons, I went to him. I was terribly embarrassed. I thought character and fitness might keep me out.”
