by Scott Turow
“And I am instructing you as a matter of law, ladies and gentlemen, that when this case is over and you are deliberating on it, that you are entitled to consider not just this testimony but the failure of the prosecution to make the glass available to the defense. And it is permissible—I’m not tellin you what to do—but it is permissible for that one fact alone to raise a reasonable doubt in your mind which would require Mr. Sabich’s acquittal.
“All right. Proceed.”
Molto, at the podium, takes a moment to stare up at the judge. By now both men have abandoned pretense. There is an outright hatred between them, and it is visible and intense. In the meantime, the force of Larren’s limiting instruction settles over the courtroom. The defense, in this instant, has staged a nine-run rally. The fingerprint evidence has been impeached from the mouth of the judge. Acquittal, he says, is a permissible conclusion. The suggestion that an error has been made, that there has been a mistake, is like a cut to the bone in a criminal trial.
Morrie Dickerman comes to the witness stand. The pure professional. An angular New Yorker with large, dark-framed glasses, Morrie finds fingerprints fascinating. He used to like me because I would sit there and listen to him. Morrie is as good as Painless Kumagai is bad—the kind of grab bag of abilities you encounter in public service. He sits there with his photographs and slides and shows the jury how it is done. He explains how prints are made, a residue of oils left by certain persons, at certain times. Some people don’t ever leave prints. Most people will leave prints at some times and not at others. It depends on how much they sweat. But when they leave a print, it is unique. No one fingerprint is like any other. Morrie lays all of this out in his openhanded way, then nails my butt to the barn door in the last five minutes of his testimony with his pictures of the bar, the glass, the lifts, and enlargements from my county employee’s file card. All the matching points of comparison have been identified with red arrows. Morrie, as usual, has prepared well.
Stern spends some time on his feet, studying the photographic blowup of one of my fingerprints from the glass before he begins. He turns the picture toward Morrie.
“What time on April first was that fingerprint made, Mr. Dickerman?”
“I would have no idea.”
“But you’re certain it was made on the first of April?”
“No way to tell that, either.”
“I’m sorry?” Stern draws his mouth downward in mock surprise. “Well, certainly you can tell us that it was made around April first?”
“No.”
“Well, how long can fingerprints last?”
“Years,” says Dickerman.
“I’m sorry?”
“It can be years before the oils break down.”
“What is the oldest fingerprint you have taken in all the time you have worked for the police department?”
“In a kidnapping case, I took a fingerprint off the steering wheel of an abandoned car that had to be three and a half years old.”
“Three and one half years?” Stern makes a sound. He is a marvel. The man who laid waste to Raymond Horgan now feigns gentle-spirited befuddlement, deference to the expert. He acts as if he is slowly figuring all of this out as he goes. “Then Mr. Sabich could have handled this glass six months earlier when he was at Ms. Polhemus’s apartment in connection with the McGaffen trial?”
“I can’t tell you when Mr. Sabich handled it. I can tell you it has two of his fingerprints. That’s all.”
“Suppose Mr. Sabich had touched it for some reason—merely had an unnoticed drink of water, or only the interior of the glass had been rinsed after he used it—is it possible that his prints would remain?”
“Yes. And by the way, it is theoretically possible that the entire glass could have been immersed. Usually soap and water will remove the oils, but there are cases in the literature where fingerprints have been identified even after the object was rinsed in soap and water.”
“No,” says Sandy Stern in wonder.
“I’ve never seen that,” says Dickerman.
“Well, at least we know that no one else handled the glass, because there were no other fingerprints on it.”
“No.”
Stern goes still. “I’m sorry?”
“There’s another latent.”
“No,” says Stern again. He is laying it on self-consciously. There is an odd theatricality to Sandy. Early in the trial the jury had not seen him enough to know that he was acting. Now in our second week, he is more broad in some gestures, as if to acknowledge the deliberateness of his behavior. I know and you know, he is saying to them. An act of confidence. So they understand that he is not really trying to put anything past them. “You mean there is another fingerprint on the glass?”
“That’s what I mean.”
“Could it be, sir, that Mr. Sabich touched the glass months before, and someone else handled the glass on April first?”
“It could be,” says Dickerman evenly. “It could be anything.”
“Well, we know Mr. Sabich was there that night because his prints are on many other objects in the apartment, are they not?”
“No, sir.”
“Well, there must be some things. For example, the window latches were opened. Were there identifiable prints there?”
“Identifiable, sir. But not identified.”
“These were the fingerprints of someone, but not Mr. Sabich?”
“Or Ms. Polhemus. We excluded her.”
“A third person left those prints?”
“Yes, sir.”
“Just as with the glass?”
“True.”
Stern goes through the entire list of locations within the apartment from which lifts were taken without discovery of my prints. The coffee table that was upset. The fireplace tools printed with the thought that one might be the murder weapon. The surface of the bar. The cocktail tables. The window. The door. Five or six other places.
“And Mr. Sabich’s prints appeared in not one of those places?”
“No, sir.”
“Only on this glass that can no longer be found?”
“Yes, sir.”
“One place?”
“That’s all.”
“He would have left prints throughout the apartment had he been there, would he not?”
“He might have. He might not have. Glass is an unusually receptive surface.”
Stern, of course, knew the answer.
“But the table,” asks Stern, “the windows?”
Dickerman shrugs. He is not here to explain. He is here to identify fingerprints. Stern makes the most of Dickerman’s inability and, for the first time since we started, looks directly to the jury, as if for consolation.
“Sir,” says Stern, “how many other identifiable prints were there of a third person, not Mr. Sabich, not Ms. Polhemus?”
“Five, I think. One on the latch. One on the window. A couple on the liquor bottles. One on a cocktail table.”
“And are any of those made by the same person?”
“I wouldn’t know.”
Stern, who has still not left the side of the defense table, bends forward a bit to indicate that he does not understand.
“I’m sorry?” he says once more.
“No way to tell. I can tell you whoever it is has not been printed by the county, because we did a computer run. They don’t have a criminal record. They haven’t worked for the county. But they could be five different people or the same person. It could be the cleaning lady or a neighbor or some boyfriend. I can’t tell you.”
“I don’t understand,” says Stern, who understands very well.
“People have ten fingers, Mr. Stern. I don’t know that unknown A isn’t the index finger, and B is the third finger. Plus left hand and right hand. There’s no way to tell without knowns to work from.”
“Well, certainly, Mr. Dickerman—” Stern stops. “Which prosecutor supervised your activities after Mr. Sabich?”
“Molto,�
� says Dickerman. You get the feeling at once that Morrie does not care for Tom very much.
“Well, certainly he asked you to compare these five unidentified prints to see if two of them might be from the same finger?”
Very good, I think to myself. Excellent. This is the kind of detail that I always overlooked as a prosecutor. I thought about the defendant, and the defendant of course thought about everybody else.
But when Dickerman answers, “No, sir, he did not,” one of the jurors, the part-time computer jock, turns away shaking his head. He looks straight at me, like, Can you believe this? I am astounded that we have come back so far from yesterday. The juror turns to the person beside him, the young woman who runs the drugstore, and they exchange remarks.
“It can be done overnight,” says Dickerman.
“Well, I’m sure,” says Stern, “that Mr. Molto may remember now.” Stern is about to sit down. “Do you know, Mr. Dickerman, why Mr. Molto did not ask you to make that comparison of the other prints?” A good trial lawyer never asks why, unless he knows the answer. Stern does, as I do. Neglect. Too much to do and not enough time to do it. The problem of focus. Any answer will suffice to raise doubts about Molto.
“I assume he didn’t care,” says Dickerman. He is trying to downplay the significance of the omission, but his answer has an ominous air, as if Molto would not be concerned about the truth.
Stern, who has never moved from the defense table, stands there one second more.
“Just so,” he says. “Just so.”
Molto approaches the podium and Ms. Maybell Beatrice, who works as a domestic in Nearing, is called. I am relieved to see Tommy up there again. For all of Nico’s sloppiness, he now seems to have found his place in the courtroom. Tommy is far less adaptable. In the P.A.’s office there was always a kind of cultural divide, a barrier over which my friendship with Nico was ultimately stranded. Raymond picked an elite corps, young lawyers with law-school credentials he liked and, after an apprenticeship, set them to work on Special Investigations. We prosecuted the guilty and rich for bribery and fraud; we ran long-term grand-jury investigations; we learned to try cases against the likes of Stern, lawyers who argued law to the judges and nuance to the jurors. Molto—and Della Guardia—never rose above the advanced prosecution of street crimes. Tommy’s particular mix of pride and passion has been nurtured too long in the homicide courtrooms and branch courts. Those are places where no holds are barred, where defense lawyers use every cheap strategy and device, and prosecutors learn to imitate them. Tommy has become the kind of prosecutor that the P.A.’s office too often breeds: a lawyer who can no longer make out the boundaries between persuasion and deception, who regards the trial of a lawsuit as a series of gimmicks and tricks. I thought at the start that it would be his molten-hot personality that would be a detraction for the state. Instead, the burden he attaches to the prosecution is his inability to escape from his experience. He is brighter than Nico, with a gimlet-eyed cleverness, and he is always prepared, but by now every person in the courtroom suspects that his zeal has no limit. He will do anything to win. Whatever the old rivalry or jealousy surrounding Carolyn, I take it that this trait as well must be a partial source of the antipathy between the judge and him.
And it is the same thing that keeps my curiosity high about Leon and the B file, and whatever shadows lurk in Molto’s past. I found Nico’s comment about Molto’s close relations with Carolyn intriguing. Who knows exactly how she beguiled him? More and more, like everyone else here, I find myself persuaded that there is something sinister in Molto’s character. It is too easy for Molto to justify all of his behavior; there is no obvious catch point below which he won’t sink. What started out as another of Stern’s courtroom illusions seems to have acquired a life of its own. I have wondered, as I have tried to guess at the revelation that Kemp is off chasing, if Molto is not the target. Certainly as Stern has gone on with the old defense lawyer’s artifice of placing the prosecutor on trial, Molto has responded poorly. He makes what is perhaps his biggest blunder yet in his direct examination of this Nearing maid.
Ms. Beatrice says that she saw a white man on the eight o’clock bus one Tuesday night in April. She does not know what Tuesday night it was, but it was Tuesday, because she works late on Tuesdays, and it was April, because she remembered it as last month when she first spoke to the police, who were doing random interviews in the bus station in May.
“Now, ma’am,” Molto says, “I ask you to look around the courtroom to see if there is anyone you recognize.”
She points at me.
Molto sits down.
Stern begins cross. Ms. Beatrice greets him without apprehension. She is an elderly woman, quite stout, with a lively and kindly face. Her gray hair is drawn back in a bun, and she wears round wire-rimmed glasses.
“Ms. Beatrice,” says Stern amiably, “I take it that you are the kind of person who gets to the bus station a bit early.” Stern knows this, of course, because of the time shown in her police interview.
“Yes, sir. Ms. Youngner run me up each night at quarter to so’s I can buy me a paper and a Baby Ruth and get me a seat.”
“And the bus on which you go into the city is the same bus that comes out of the city, is that right?”
“Yes, sir.”
“It terminates—that is, it ends its run in Nearing and goes back in?”
“It turn round in Nearing, that’s right.”
“And you are there each night when that bus arrives at a quarter to?”
“Quarter to six. Most every night, yes, sir. ’Cept Tuesday, as I explain.”
“And the people coming home from downtown get off the bus and walk past you, is that right, and you have occasion to see their faces?”
“Oh, yes, sir. They looks tired and weary, many a them.”
“Now, ma’am—well, I shouldn’t ask you this—” Stern looks again at the report of the police interview. “You are not saying you recognize Mr. Sabich as the man you saw on the bus that Tuesday night, are you?” There is nothing to lose with the question. Molto’s direct has left the impression that is, in fact, the case. But Ms. Beatrice makes a face. She shakes her head most emphatically.
“No, sir. They is somethin here I like to explain.”
“Please do.”
“I knowed I seen this gentleman.” She nods to me. “I tol’ Mr. Molto that many a time. I seen this man when I go to get on the bus. Now I recollect, they was a man on that bus one Tuesday night, cause I works late that night on account of Ms. Youngner don’t get home till near 7:30 on Tuesdays. And I recollect he was a white man, cause we don’t get many white gentlemens that ride on the bus goin into town that time a night. Now I just can’t remember whether ’twould be this man or another man. I know he look real familiar to me, this man do; but I can’t say that’s cause I seen him in the station or cause I seen him on the bus that night.”
“You have some doubt that it was Mr. Sabich you saw that night.”
“That’s right. Can’t say ’twas him. Coulda been him. I just can’t say.”
“Have you spoken with Mr. Molto about your testimony?”
“Many a time.”
“And have you told him all of what you’ve just told us?”
“Oh, yes, sir.”
Sandy turns in Molto’s direction with a look of silent and lofty reproof.
After court, Stern tells me to go home. He takes hold of Barbara and draws her toward me.
“Take your pretty wife to dinner. She certainly deserves some reward for her fine support.”
I tell Stern that I was hoping we would begin talking about the defense, but Sandy shakes his head.
“Rusty, you must forgive me,” he says. As chairman of the Bar Association’s Committee on Criminal Procedure, he is responsible for a formal dinner to be given tomorrow night in honor of the retirement of Judge Magnuson, who has sat as a felony judge for three decades. “And I must spend an hour or two with Kemp,” he adds offhandedly.
“Would you like to tell me where he has been?”
Stern screws up his face.
“Rusty, please. Indulge me.” He again takes Barbara’s arm and mine. “We have some information. I will tell you that. It bears on my examination tomorrow of Dr. Kumagai. But it is not worth repeating now. It may be a complete misunderstanding. I do not wish to raise false hopes. You are better off in the dark, rather than having your expectations dashed. Please. Accept my advice on that. You have been working long hours. Take an evening off. Over the weekend, we can discuss a defense, if it comes to that.”
“‘If it comes to that’?” I ask. His meaning is elusive. Is he proposing we rest—offer no evidence? Or is this new information so explosive that the trial will come to a halt?
“Please,” Sandy says again. He begins leading us out of the courtroom. Barbara now intervenes. She takes my hand.
So we have dinner at Rechtner’s, an old-fashioned German place near the courthouse which I have always liked. Barbara seems especially cheerful after the pleasant developments today. She, too, was apparently affected by the dour events of yesterday. She suggests a bottle of wine and, once it is open, questions me about the trial. She enjoys the opportunity to finally have me at close quarters. Clearly, my unavailability has frustrated her. She asks serial questions with her large dark eyes still and intent. She is very concerned about the Hair and Fiber stipulation of yesterday. Why did we choose that, rather than testimony? She requires a full account of everything the lab report revealed. Then she inquires at length about Kumagai and what his testimony is expected to show. My responses, as they have been throughout, are laconic. I answer briefly, telling her to eat her meal, while I try to contain my discomfort. As ever, there is an aspect to Barbara’s interest that I find frightening. Is her wonder truly as abstracted as it seems? Is it the procedures and puzzles that attract her, more even than their impact on me? I try to shift the conversation, asking what we hear of Nathaniel, but Barbara realizes she is being put off.
