I make the note. Stern has a question.
“You had drinks in Carolyn’s apartment, of course, when you were there in the past?”
“Sure,” I say. “And she wasn’t much of a housekeeper. But I think she’d wash a glass once in six months.”
“Yes,” Stern says simply.
We are both grim.
Kemp has another idea.
“I’d like to get a complete inventory of everything in that apartment. Every physical object. Where’s the contraceptive jelly or whatever it is that this chemist is saying he finds present? Wouldn’t that have been in her medicine cabinet?” He looks to me for confirmation, but I shake my head.
“I don’t even remember discussing birth control with Carolyn. I may be male chauvinist of the year, but I never asked her what she was doing.”
Stern is ruminating, temporizing in the air with his cigar.
“Caution here,” he says. “These are productive thoughts, but we do not want to lead Della Guardia to evidence he has not thought to obtain. Our requests, whatever they are, must be unobtrusive. Remember that everything that the prosecution discovers which favors the defense must be turned over to us. Anything we discuss which might be useful to them will be better left forgotten.” Sandy gives me a sidewise look, quite amused. He enjoys being so candid with a former opponent. Perhaps he is thinking of some specific piece of evidence he kept from me in the past. “Best we conduct this search ourselves without disclosing our intentions.” He points at Kemp; it is his turn. “Another motion, then: for an inventory of all items seized from the apartment of the decedent and for an opportunity to conduct a view and inspection of our own. The apartment remains under seal?” he asks me.
“I presume.”
“Also,” says Stern, “your mention of Carolyn’s personal habits leads to this thought. We should subpoena her doctors. No privileges survive her death. Who knows what we might discover? Drugs?”
“Rope burns in the past,” says Kemp.
We all laugh, a grisly moment.
Sandy, decorous as ever, asks if the name of one of Carolyn’s doctors is “known to me.” It is not, but all county employees are covered by Blue Cross. A subpoena to them, I suggest, is bound to uncover a good deal of information, including doctors’ names. Stern is pleased by my contribution.
The next group of documents we look at are the phone records from Carolyn’s home number and my own, an inch-thick bundle of xeroxed pages with an endless train of 14-digit numbers. I hand the sheets one by one to Stern. From my phone, there are one-minute calls to Carolyn’s recorded on March 5, 10, and 20. When I get to April 1, I spend a long time looking. I just lay my finger on the number that is recorded there at 7:32 p.m. A two-minute call.
“Carolyn’s,” I tell him.
“Ah,” says Stern. “There must be a commonsense explanation for all of this.” Observing Stern work is like tracking smoke, watching a shadow lengthen. Is it the accent that allows him to lay that perfect subtle stress on the word “must”? I know my assignment.
He smokes.
“You do what at home, when you babysit?” he asks.
“Work. Read memos, indictments, prosecution packages, briefs.”
“Must you confer with other deputy prosecuting attorneys?”
“Occasionally.”
“Of course,” says Stern. “Now and then, there is the need to ask a brief question, schedule an appointment. No doubt in all these months of records”—Stern taps them—“there are a number of such calls to deputy prosecuting attorneys other than Carolyn.”
I nod with each suggestion.
“There are a lot of possibilities,” I say. “I think Carolyn was working on a big indictment that month. I’ll look over some things.”
“Good,” says Stern. He looks back to my MUD sheets for the murder night. His lips are rumpled, his look disturbed.
“No further calls after 7:32,” he says finally, and points.
In other words, no proof that I was home, where I say I was.
“Bad,” I say.
“Bad,” Stern finally says aloud. “Perhaps someone called you that evening?”
I shake my head. None that I remember. But I know my lines now.
“I’ll think about it,” I say. I take back the MUD sheet for April 1, studying it a moment.
“Can those things be dummied up?” asks Kemp. “The MUDs?”
I nod.
“I was thinking about that,” I say. “The P.A. gets a bunch of xeroxes of the phone company’s printouts. If a deputy, or somebody else, wanted to do a job on a defendant, he could make a great cut-and-paste and nobody would know the difference.” I nod again and look at Kemp. “These things could be faked.”
“And should we pursue that possibility?” asks Stern. Is there some hint of rebuke in his voice? He is studying a thread pulled on his shirt-sleeve, but when his eyes light on mine for the briefest instant, they are penetrating as lasers.
“We might think about that,” I say at last.
“Mmm hmm,” says Stern to himself. He is quite solemn. He points at Kemp to make a note. “I do not believe we should explore this before the conclusion of the state’s evidence. I would not want to see them introduce the fact that we made efforts to challenge the accuracy of these records and failed.” He directs this remark to Kemp, but it is clear to me who is meant to catch its import.
Stern reaches resolutely for another file. He checks his watch, a slim golden Swiss piece. The arraignment is in forty-five minutes. Sandy himself is due back in court sooner. He suggests we talk about the witnesses. I summarize what I have read thus far. I mention that Molto and Della Guardia provided no statements from two of the listed witnesses: my secretary, Eugenia, and Raymond. Sandy absently tells Kemp to list another motion for production. He has put his glasses back on, tortoiseshell half-frames, and continues studying the witness list.
“The secretary,” he says, “does not trouble me, for reasons I will explain. Horgan, candidly, does.”
I start when Sandy says this.
“Certain witnesses,” Sandy explains, “Della Guardia must bring to the stand, whatever their disadvantages to him. You know this, of course, Rusty, far better than I. Detective Lipranzer is an example. He was quite candid in his interview with Molto the day after the election and acknowledged that you asked him not to order your home telephone records. That is sufficiently helpful to the prosecution that Lipranzer will be called, notwithstanding the many fine things he will say about you personally. Horgan, on the other hand, is not a witness whom I would think a good prosecutor would ordinarily be eager to see. He will be known to all the jurors, and his credibility is such that it would seem quite risky to call him unless—” Sandy waits. He picks up his cigar again.
“Unless what?” I ask. “Unless he is going to be hostile to the defense? I don’t believe Raymond Horgan will put the bricks to me. Not after twelve years. Besides, what can he say?”
“It is a matter of tone, not so much as content. I take it that he is going to testify to your statement in his office on the day after the election. One would think that Nico would be better off putting on Ms. MacDougall, if he had to accept an unfriendly witness. She at least has not been a local personality for more than a decade. On the other hand, if it appears that Horgan, Della Guardia’s political opponent, and your friend and employer for a dozen years, is sympathetic to the prosecution—that could be extremely damaging. That is the kind of courtroom nuance on which you and I both know close cases often turn.”
I look at him squarely. “I don’t believe that.”
“I understand,” he says. “And you are probably correct. Probably there is something we have missed that will seem obvious when we know Horgan’s prospective testimony. Nonetheless—” Sandy thinks. “Raymond would meet with you?”
“I can’t imagine why not.”
“I will call him and see. Where is he now?” Kemp remembers the law firm. About six names. The League of Na
tions. Every ethnic group is mentioned. O’Grady, Steinberg, Marconi, Slibovich, Jackson, and Jones. Something like that. “We should plan a meeting for Horgan, you, and me as soon as possible.”
Strangely, this is the first thing Sandy has said that is both entirely unexpected, and whose effect I cannot seem to shake. It is true that I have not heard from Raymond since that day in April that I walked out of his office, but he has had his own concerns: new job, new office. More particularly, he is an experienced criminal defense lawyer and knows how circumscribed our talks would necessarily have to be. His silence I had taken as a professional accommodation. Until now. I wonder if this is not simply some malicious effort by the prosecutors to unsettle me. That would be like Molto.
“Why does he need Raymond to testify, if he intends to call Molto?” I ask.
Principally, says Stern, because Molto is, in all likelihood, not going to testify. Della Guardia has referred a number of times to Tommy trying the case. A lawyer is prohibited from being a witness and advocate in the same proceeding. Nonetheless, Sandy reminds Jamie that we ought to file a motion to disqualify Molto, since he is on the witness list. If nothing else, this will promote consternation in the P.A.’s office. And it will force Nico to forswear any use of my statement to Molto. Like me, Sandy considers it unlikely that Nico would really want to offer this in the prosecution’s case. As Della Guardia’s best friend and chief assistant, Molto would be too easy to impeach. But on the other hand, the statement could be used effectively in cross-examining me. It is best, therefore, to file the motion and force Nico’s hand.
Sandy moves ahead. “This I do not understand,” he says. He holds aloft the statement of the maid who says she saw me on a bus into the city from Nearing on a night near the time Carolyn was murdered. “What is Della Guardia up to?”
“We only have one car,” I explain. “I’m sure Molto checked the registrations. Barbara took it that night. So I had to have another way to get to Carolyn. I bet they had a trooper standing out at the bus station in Nearing for a week, looking for someone who could make my picture.”
“This interests me,” Stern says. “They apparently accept that Barbara indeed left you at home that night. I understand why they would concede that she took the car. There have been too many unfortunate episodes with women around the university for anyone to believe she would be using public transportation at night. But why agree she left at all? No prosecutor would want to argue that the defendant rode a bus to a murder. It does not sound authentic. They must have found nothing with the taxi companies and rent-a-car. I take it that they are looking at records of some kind which confirm Barbara’s absence.”
“Probably the log-in sheet at the U.,” I say. Nat and I have gone to watch his mother work on the computer on occasion. “It’ll show she used the machine. She signs in when she gets there.”
“Ah,” says Stern.
“What time would that be?” Jamie asks. “Not late, right? She’ll know you were home at the time of the murder—or at least that she left you there, won’t she?”
“Absolutely. Her computer time’s at eight. She leaves for the U. seven-thirty, twenty-to the latest.”
“And Nat?” asks Sandy. “When is he in bed?”
“Around then. Most of the time, Barbara gets him down before she goes.”
Kemp asks, “Does Nat get up a lot or does he sleep soundly?”
“Like a coma,” I say. “But I’d never leave him alone in the house.”
Stern makes a sound. That is not the kind of thing we will be able to prove.
“Nonetheless,” says Stern, “these facts are helpful. We are entitled to whatever records they have. That is Brady material”—evidence favorable to the defense. “We must make another motion. Fiery and outraged. A good assignment for you, Rusty.” He smiles, kindly.
I make the note. I tell Sandy there is only one more witness I want to talk about. I point to Robinson’s name.
“He’s a shrink,” I say. “I saw him a few times.” Molto, I’m sure, is behind the ugly gesture of naming my former psychiatrist as a potential witness. Tommy is pulling my chain. I used to do things like that to defendants. Make sure they knew I’d been all over their lives. Last month Molto subpoenaed my bank account in Nearing. The president, an old friend of Barbara’s deceased father, Dr. Bernstein, will not look at me now when I come in. From my checks, no doubt, Molto got Robinson’s name.
I am surprised by Stern’s reaction to my disclosure.
“Yes, Dr. Robinson,” Sandy says. “He called me right after the return of the indictment. I neglected to mention that.” He was too decorous is what Stern means. “He had seen my name in the paper as your lawyer. He merely wanted me to know he had been identified and that the police had attempted an interview. He was reluctant to trouble you with this information. At any rate, he told me he refused to make any statement on the grounds of privilege. I reaffirmed that and said we would not waive.”
“We can waive. I don’t care,” I say. I don’t either. It seems like a minor intrusion, compared to what has taken place in the last few months.
“Your attorney is ordering you to care. Della Guardia and Molto are no doubt hoping we will make a waiver, in the belief that this doctor will testify to your general mental health and the unlikeliness of criminal behavior.”
“I bet he will.”
“I see I did not make my point,” says Stern. “I commented before. Evidence of motive here is weak. You summarized Della Guardia’s theory very ably, I think. Sabich is obsessed, you said. Sabich is unwilling to let go. Tell me, Rusty. You have looked over Della Guardia’s case. Where is the proof here of any prior amorous relationship between the defendant and the decedent? A few telephone calls that can be accounted for by business needs? There is no diary here. No note that came with flowers. No lovers’ correspondence. That, I take it, is what your secretary will be called for, to add what she can, which I assume is not very much.”
“Very little,” I say. Sandy is right. I did not see this hole. As a prosecutor, I would never have missed it. But it is harder when you have all the facts. Still, I battle back a lightheaded sensation of hope. I cannot believe that Nico could be weak on this essential. I point at the MUD sheets. “There are calls to my home from Carolyn’s in late October, last year.”
“Yes? And who is to say they are not from Ms. Polhemus to you? You had been lawyers on an important case that was tried the month preceding. No doubt there were continuing developments. Bond questions. As I recall, there was a substantial dispute surrounding custody of the boy. What was his name?”
“Wendell McGaffen.”
“Yes Wendell. These are matters to which the chief deputy might have difficulty giving attention in the office.”
“And why did I tell Lipranzer not to get my home phone tolls?”
“More difficult.” Sandy nods. “But I take it for granted that a person of innocent state of mind would rule himself out as a suspect and prevent a busy detective from wasting his time.” The way he puts things. I take it for granted. Like sleight of hand.
“Mrs. Krapotnik?” I ask, alluding to her expected testimony that I was seen around Carolyn’s apartment.
“You were on trial together. Matters needed to be discussed. Certainly, if you want to get away from the Kindle County P.A.’s office, a most dreary environment, you are not going to go out to Nearing, where you live. No one denies you were in the apartment on occasion. We agree. Your fingerprints are on the glass.” Sandy’s smile is Latin, complex. His defense is taking shape, and he is quite persuasive. “No,” Sandy says. “Della Guardia cannot call you, of course, or, presumably, your wife. And so he faces difficulties. Tongues no doubt have wagged, Rusty. I am sure half the attorneys in Kindle County now believe that they suspected your affair. But gossip will not be admitted. The prosecution has no witnesses. And thus no proof of motive. I would be more hopeful,” Sandy says, “were it not for the problem of your testimony.” His eyes, large and dark,
deep and serious, briefly cross my own. The problem of my testimony. The problem, he means, of telling the truth. “But these are questions for the future. Our job, after all, is merely to raise a doubt. And it may be that when Della Guardia concludes his case the jury will be led to wonder if you are not the victim of a miserable coincidence.”
“Or if I was set up.”
Sandy is a reasonable man and judicious. He again acquires his grave look in response to my proposal. He would obviously prefer that there be no illusions between client and counsel. He glances at his watch. It is getting close to show time. I touch his wrist.
“What would you say if I told you that Carolyn seems to have had something to do with a case on which a deputy P.A. was bribed? And the P.A. on the case was Tommy Molto?”
Sandy takes a very long time with this, his look tightly drawn.
“Please explain.”
I tell him in a few moments about the B file. These are, I explain, grand-jury secrets. Until now, I have preferred to keep them to myself.
“And your investigation led where?”
“Nowhere. It stopped the day I left.”
“We must find some way to continue. I would suggest an investigator ordinarily. Perhaps you have some other idea.” Sandy puts out his cigar. He grinds the stub down carefully and looks at it an instant reverentially. He sighs, before he stands to put on his coat. “To attack the prosecutor, Rusty, is a tactic that is almost always pleasing to the client, and seldom convincing to a jury. These matters I mentioned before—your political opposition to Della Guardia, your firing of him—are items that will tarnish him, diminish his credibility. They will help us explain the prosecutor’s zeal to accuse on insufficient evidence. But before we venture down the road to actual accusation, we must consider the matter very carefully. Successes by suggesting sinister motives in the state are, as you well know, quite rare.”
“I understand,” I say. “I wanted you to know,” I tell him.
“Of course. And I appreciate that.”
“It’s just,” I tell him, “that’s the way I feel. That it isn’t a coincidence it lays out this way. I mean,” and now, on sudden impulse, I finally bring myself to say what vestigial pride has so long prevented: “Sandy, I’m innocent.”