The next day, at around four-thirty, the jury told Judge Karoly that it was hung.
The beautician was the foreperson. The nutritionist, with whom she had seemed friendly, would not look at her.
Standing beside Tony, Saul whispered, “Our foreperson is voting defense.”
“I think so too,” Tony whispered, and cursed himself for letting the nutritionist get past him. Next to Saul and Tony, Sam’s shoulders sagged.
Stella, like Tony, scanned the jurors’ faces.
“Madam Foreperson,” Karoly said, “without telling me who the votes favor, could you tell me how the voting stands?”
The beautician glanced toward the nutritionist. “Nine on one side. Three on the other.”
“How many ballots have you taken?”
“Four, Your Honor. The votes haven’t changed.”
Karoly’s brow furrowed. “And do you think, with more deliberations, you can reach a verdict?”
The beautician shook her head, frowning. “The three won’t budge.”
Tony looked at Stella. There was a split-second decision to be made: depending on their guess as to whether they were winning, or losing, Tony and Stella would want—or would not want—more deliberations, which might end in a verdict. When Stella hesitated, Tony made his decision. “May I approach the bench, Your Honor?”
When Karoly nodded, Stella followed Tony, to huddle with the judge out of earshot of the jury. “Your Honor,” Tony murmured, “three days of deliberations is not long in a complex case. I wonder if, in fairness to everyone, there might be some way the court can be helpful to the jury.”
Stella shook her head. “I think we should take the jury at its word. They know what their situation is, and as disappointing as the lack of a verdict is, to force the jury through any more is to run the risk of coercion and an unjust verdict.” Pausing, she glanced at Tony. “If necessary, the state is prepared to try this case again.”
Karoly hesitated and then turned to the jury. “The court would like to thank you for your service,” he began.
* * *
The vote was nine to three for acquittal.
Watching the jurors leave the courtroom, silent and unhappy, Tony patted Sam on the shoulder. Then he walked across the courtroom and shook Stella’s hand.
“Good guess,” he told her.
Her smile, fleeting and faint, did not hide the bitterness of her disappointment. “It’s the same guess you made.” She paused, studying Sam Robb, and then looked back at Tony. “Come by my office around two on Monday. After I’ve had some time to live with this.”
Without waiting for an answer, she began clearing the table of her papers.
When Tony returned, Sam and Sue were talking quietly with Saul. “I’ll try to catch some of the jurors,” Saul said quietly to Tony. “Before Stella does. Find out what went on in there.”
Tony nodded. “Thanks.”
Stella, he noticed, was gone.
Sam and Sue were silent now. Sam had grasped her hand; Sue looked stiff, pale, weary. Suddenly Tony felt how tired he was.
“I’m sorry,” he murmured. “I wanted to win.”
Slowly, Sam nodded. “We nearly did, pal. At least I’m not in jail. You did everything you could—”
“You did,” Sue broke in softly. “Everything.”
Reporters were gathering behind them, waiting for a statement from Tony, a chance at Sam or Sue. “I’ll talk to Stella,” Tony said. “Monday.”
Turning, he looked at the Calders.
They were frozen in their seats, shoulders barely touching. Frank Calder’s eyes were empty, exhausted; tears ran down Nancy Calder’s face. A reporter from the Steelton Press hovered behind them, blocked by an assistant from Stella’s office.
Sue followed Tony’s gaze. There was nothing for anyone to say.
* * *
That night, Saul called him. He had talked to most of the jurors.
“You know what I think happened?” Saul told Tony. “Our client hung the jury.”
“How so?”
“My sense is, before Sam got on the stand, you had them—twelve people, unanimous in their unhappiness that reasonable doubt kept them from putting our man away. Sam polarized them: for nine, including the beautician, he either made no difference or helped them feel a little better about their vote.…”
“And the three?”
“Hated his guts and thought he was a liar. Their response to his testimony was absolutely visceral—especially our nutritionist, the mom. After these three women saw him, they just didn’t want him walking around. Period.”
Tony lay back on the bed, his headache a dull pounding in his temples and the back of his neck. “So,” he said tiredly, “what you’re saying is that Sam bought Stella another shot at him.”
“If she takes it.” Saul paused and, out of compassion, tried for fatalism. “You never really know, Tony—jury dynamics are funny. Maybe it would have hung anyhow.”
For a moment, Tony was quiet, wondering. But this was pointless. “Monday,” he finally answered, “we’ll see what she thinks.”
* * *
On Monday, at two o’clock, Tony went to Stella’s office.
To his surprise, Stella was in a tennis dress, her wavy brown hair pulled back by an elastic band. “As soon as we’re through,” she explained, “I’m out of here. I’m taking a little time.”
Tony nodded: decompression, the fatigue and lack of focus that follows a hard case, was something he understood. He was feeling it too.
“For me,” he told her, “it’s back to San Francisco. Tomorrow.”
Stella studied him across the desk, a mess of files she had not bothered to straighten.
“Well,” she said at last, “you probably won’t have to come back.”
“How so?”
Her face was calm, without expression. “You carried them nine to three. Next time, I figure, you’ll shoot Sam Robb before you let him testify.” She paused, as though reluctant to finish, and then did. “I’ve told the chief I recommend against retrying it. Unless, somehow, the case gets better. More evidence—bloody clothes or something. Though I imagine Sam Robb got rid of those long since.”
There was little to say. “I guess your boss agrees,” Tony ventured.
“Yes. So you can tell your client.”
She had done this quickly, Tony thought, and with as much grace as she could muster. “Thank you,” he said.
Stella gave him the smallest of smiles. “Please. Don’t.”
She excused herself to play tennis. Tony went to call Sam, and Sue.
TWO
That night, at Sam’s insistence, Sam and Sue took Tony for dinner at the country club.
“I’m free,” Sam had said emphatically. “So I’ve got to start living like I am, or I can’t live here at all. It’ll be easier, the first time, if we have you for company.”
To Tony, the “we” was optimistic; at their table in the corner, the same one where Tony had dined with Sue, she watched Sam and Tony as if she were a spectator. As though to compensate for her silence, Sam seemed heartier: maybe this wasn’t a celebration, he remarked, somewhat defensive, but it was sort of a coming out. Halfway through the dinner, he had finished his fourth bourbon on the rocks, served by a young, slightly scared-looking waitress who was straining to pretend that she did not know who Sam was. Tony nursed his chardonnay and mostly listened; conscious of Sue’s quiet scrutiny, he sensed that but for him, she would not be here at all. The minutes passed slowly.
Sam ordered another drink and then, swallowing half of it, settled back in his chair and looked about the room with a replete, satisfied look that, to Tony, was jarringly at odds with the realities of Sam’s life. “Remember our prom night?” Sam asked. “The dance was right here.”
Sure, Tony thought sardonically. You drank too much then too. So I punched you out, helped Sue carry you home, and then made love with her, creating a memory so sweet that I can feel her, right now, thinking th
e same things I am. Answering, Tony was careful not to look at her. “Sure, I remember. But do you?”
The remark, pointed beneath its lightness, drew a crooked smile from Sam. He knows what he’s doing, Tony thought, and wondered if Sam would ever put the suspicion of Tony and Sue behind him. “I don’t remember as much as you do,” Sam answered. “You guys never really told me about the last part.”
Tony heard Sue draw a breath. “Oh,” she put in softly. “The part where Tony and I went to the grove of maple trees and made love until I climaxed for the first time. There really wasn’t much more to it. Except that I fell in love with him, of course.”
Her voice was so matter-of-fact that the remark could have been a deadpan joke or, more likely, an expression of deep weariness. But Tony felt the tingle of astonishment and danger; a flush spread across Sam’s face, and his smile was the resentful one of a man who did not get the joke but knew he was the butt of it. He turned to Tony, his tone between jocular and accusatory. “Is that how you remember it, Tony?”
Tense, Tony looked at him, wondering what to do. Then he smiled at Sue and, quite casually, said to Sam, “Pretty much. I guess I’d have to say that Sue’s the reason I came back here.” Reaching out, he patted Sam on the arm. “You know, I’m really glad we’ve gotten to talk about this. I’m sure that Sue is too.”
Tony watched Sam struggle with his choice—to believe them or to pretend it was all in fun. “You’re drinking again,” Tony said softly. “You shouldn’t. It does things to you.”
Sam’s eyes widened; for a moment, Tony did not know what would happen next. Then, as if the circuits of his brain had reconnected, Sam said, “Yeah, I know. Knock off this one, and I’m through. It’s just that I’ve been so scared, I don’t know how to act anymore.” He drained his drink in one deep swallow, shivering at the rawness of so much whiskey. Turning to Sue, he murmured, “Sorry, babe.”
Sue did not answer. To cover this, Tony asked, “So what will you do now?”
Sam traced the rim of his glass, as though to taste the whiskey with his finger; Tony guessed that he wanted another drink quite desperately. “I don’t know,” Sam said. “I guess the first thing is whether we stay here.…”
His voice fell off. The first thing, Tony knew, was whether Sue would stay with Sam. She stared at the room with the abstracted look of someone who had internalized a great deal of pain and, perhaps, drunk more wine than usual. He would find a way to talk with her alone, Tony decided.
“I’d be tempted to take off,” Tony said to Sam. “In fact, I did take off, when it was me. This town’s too small.”
Sam gave a bewildered shrug. “Where would I go, Tony? This place is all I know.”
Anywhere Sue wants you to, Tony thought, if that would make a difference. Tony tried to smile. “Maybe near one of the kids, if they’ll have you. In my own case, imagining Christopher in his twenties, I’m not so sure he would.”
Sam did not smile back. “I don’t know why mine should, pal. I really don’t.” He looked from Tony to Sue, hesitant. “Mind if I have one more, guys? Then we can hit the road.”
There was a shamed, pleading note in his voice; for Sam Robb, Tony was certain, reality would be hard to face. Sue shrugged her indifference.
“I’ll join you,” Tony told Sam.
They drank their whiskeys in relative quiet, Tony telling harmless anecdotes about Stacey and Christopher, the things they had done in his absence. “Amazing,” Tony said. “The kid may actually go to Harvard. As he pointed out to me, he’s got an old man who can afford it. Christopher’s world is a very different place.…”
It was, Tony realized, not the best thing to say. But Sam touched his glass to Tony’s. “To your success, pal. And to all our kids. If they don’t make it, the rest doesn’t matter very much, does it?” He paused, his glance at Sue tentative but fond. “And if they do make it, maybe someone’s done something right.”
To Tony, the glance was a veiled plea for the value of their life together. But Sue did not look at Sam.
“Better go,” Tony said at last. “I’ve got a plane out in the morning.” He smiled again. “Besides, as they say, tomorrow is the first day of the rest of your life.”
On the ride home, Sue drove. Sam slumped wearily in his seat, undone by whiskey and weeks of broken sleep. He looked less drunk than exhausted.
The living room lights were on. Entering, the three of them stood there, Sam facing Tony, Sue to the side. “I’m whipped,” Sam said to Tony, then summoned the ghost of his old smile. “But I’ll be great tomorrow. Sure you don’t want to stay for one more day, finish our game? It’s a tie, remember?”
Smiling, Tony shook his head. “A tie’s good enough for me, Sam. Especially with you.”
Sam studied his face for a moment. Then he stepped forward, hugging Tony with fierce affection. “Thanks,” he murmured. “Thanks for everything. It means more to me than I can say, and so do you.”
“I know,” Tony answered. “I know.”
Sam leaned away from him, eyes glistening. Then he turned, climbing the stairs, glancing briefly back at Sue and Tony, as though to signal his hope that, soon, Sue would follow. “So long, pal,” he said simply, gave Tony a casual wave, and was gone.
She turned back to Tony. “Can I pour you a glass of wine?” she said. “I’m having one.”
She seemed weary, dispirited. But Tony wished to talk with her, and being her guardian was not the way. “Sure,” he said, and sat on the sofa.
She returned with two glasses. “Let’s go outside,” she said. “It’s a warm night, and I feel cooped up.”
Silent, he followed her out the kitchen door to the rear yard, where, at fourteen, Sam and Tony had once thrown a football and, without seeming to acknowledge this, become friends.
Now Tony sat next to Sue on the hammock. For a moment, he looked up at the stars, remembering when they had laid Sam in the hammock and then spent the night alone. “I’ve been thinking about you,” he said.
“Me too,” she answered. But she seemed very far away.
“You asked me to give you an innocent man, Sue. I wish I could have.”
“That isn’t your fault.” Her speech was slightly slurred now, and she paused before saying, “You did more than you know, I think. There’s nothing left for you to do.”
To Tony, the ambiguous remark begged the question of how Sue would cope. Softly, he said, “I just wish there were something I could do for you.”
For a long time, Sue was silent, and then Tony felt her shiver. “There is, Tony. Don’t come back here, ever. Not even if there’s another trial.”
Startled, Tony turned to her. “If I hurt you…”
“Oh, God, it’s not that.” Sue faced him. “Don’t you understand?”
He touched her hand. “Tell me.”
Sue swallowed, her face filling with anguish. “He’s lying, Tony. He lied in court, and I think he’s lied to you.”
Tony stiffened; although this was a moment he had always feared, it took him by surprise. Quietly, he said, “About what?”
“The clothes.” She fingered the sleeve of Tony’s suit, her voice a taut, rushed undertone. “There’s a pair of gray sweat clothes missing—Sam always kept an extra pair at school. After he testified, I realized it wasn’t here. And it couldn’t still be at school. The police would have found it.”
The words jolted Tony. Keep cool, he told himself. Think, don’t feel. “Memory’s a funny thing, Sue. Sometimes we ‘remember’ what we’re afraid of.…”
“It’s more like I’ve been afraid to remember.” Sue glanced up at the bedroom window. “Sam did have an old pair of running shoes. But they’re gone.”
Tony could feel the pulse in his own throat. “If Sam were lying, wouldn’t he be afraid of what you know?”
Sue looked down. “If he were afraid of what I know,” she said softly, “Sam wouldn’t have said he’d never had anal intercourse. Trust me about this. Because I know what Sam likes, bet
ter than anyone, and he knows I know.…”
Gently, Tony pulled her close.
She was stiff for a moment, and then clung to him in silent desperation. “I’m not sure we can talk about this,” Tony murmured. “Or anything about Sam.”
“We have to.” She pulled back from him, fingers resting on his cheek, as if to seek his forgiveness. Her voice quavered. “I think there’s more.…”
“Much more,” Tony cut in. All at once, he felt sick. “You’re his wife, Sue. I’m his lawyer.”
“You’re not just his lawyer.” She looked away, as though the sight of him were painful. “Can I ask you one question, Tony?”
Tony hesitated. His thoughts were a chaotic mix of dread and tenderness and obligation—his love for her, his duty to Sam, the fear of knowing that his friend and client, the husband of the woman he held, had murdered Marcie Calder. “What is it?”
For a last moment, she was silent, and then tears began running down her face. “When you found Alison’s body,” she asked, “what time was it?”
All at once, Tony understood. The breath he took made him shiver as Sue had. “You’ve always said Sam was with you.…”
“He was.” Her eyes shut. “But no one ever asked how long, and I didn’t want to think about it then.”
Tony stared at her. In a voice not his own, he said, “Tell me what happened, Sue. Everything.”
* * *
It was strange, Sue thought, how winning affected Sam. There were times when it filled him with elation; tonight, after his catch in the last football game he would ever play for Lake City High, she had seen that rapture she associated with much laughter and the desire to make love with her. But the separation from Tony and Alison seemed to change his mood abruptly. When they parked near the grove of maples, Sam made no move to touch her. Instead he drank, staring out the windshield at nothing.
“This stuff doesn’t matter to him,” Sam said at last. “I don’t really matter.”
She turned to him, puzzled. “Tony?”
Sam did not answer. “People do what he wants,” he said. “And things turn out the way he expects them to. ‘Nice catch, Sam; now it’s time for me to fuck Alison.…’ ”
Silent Witness Page 49
