“Of the bar? My Lord! What was the crime?”
“Taxes,” I say. I take the first bite of my lunch. “My father didn’t file for twenty-five years.”
“Twenty-five years! Oh my. How is your fish?”
“Good. Would you care for a little?”
“If you don’t mind. Thank you. You are much too kind. They really do this very well here.”
Sandy chats on. He is serene and comfortable amid the silverplate table settings and the waiters in pastel cutaway coats. His retreat. In forty-five minutes he will resume cross-examining one of the most prominent lawyers in the city. But like all virtuosos he has a well-deserved faith in his instincts. He has worked hard. The rest is inspiration.
When the meal is near its end, I show Sandy the notes I made this morning. “Oh yes,” he tells me. “Very good.” Some matters he is determined not even to respond to. “You are falsely accused and he says you seem to lack composure? Really, this is too silly to repeat.”
At another table, he sees a friend, an older red-haired man. Sandy departs for a second to greet him. I review the pad I have brought along from the courthouse, but most of it has been covered in our discussion. Instead, I look out toward the city and, as usual, think about my father with despair. I had been wildly angry with him throughout that episode, both because of my own discomfiture and because I felt he had no right to seek attention after ignoring my mother’s illness, then in its initial stages. But as I watched my father in Mulcahy’s outer office, a worm of pain began to eat at my heart. In his distraction, my father, usually rigid about his personal hygiene, had failed to shave. His beard grew quickly and his cheeks were whitish with the stubble. He held the felt brim of his hat in his fingers and turned it in his hands. He had a tie on, which he seldom wore; the knot was a kind of crumbled mess pulled off to the side, and his shirt was soiled around the collar. He did not seem to fill his chair, or even his clothing. He looked at his feet on the floor. He appeared much older than he was. And terribly afraid.
I do not believe I had ever seen my father visibly frightened before that. His almost invariable mien was of a rough-tempered, sullen indifference. I did not wonder what produced the change. My father seldom spoke to me about his history. Virtually everything I knew came from his relatives. The shooting of his parents; my father’s flight; the camps of one side or the other where my father passed the last years of his youth. They ate a horse, my cousin Ilya told me once when I was nine or ten. The story inspired nightmares for most of a week. An old nag had died. It keeled over in the night and froze. It lay in the snow for three days, and then some guard allowed it to be dragged beyond the barbed-wire fence of the compound. The inmates attacked it; they pulled off the hide with their bare hands and grabbed at the flesh. Some meant only to take something to cook, but others in their panic began to eat it there. My father had seen that. He came to America. He had survived. And now in a lawyer’s office, almost three decades later, he could foresee a repetition. I was twenty-five years old, and I understood more of my father’s life then, and how his deprivations, in that odd heredity of material effects, had become my own—I recognized more of that in a moment than in all the time before. And I was overcome by grief.
Mulcahy pled my father guilty. The assistant U.S. attorney promised not to recommend more than a year in jail, and old Judge Hartley, a soft touch, gave him only ninety days. I saw him just once while he was in. I had no stomach for it, and my mother by then was nearing the end.
When I asked how he was, he looked around, as if he were only now seeing the place for the first time. He was chewing on a toothpick.
I been in worse, he told me. He had regained all his old harshness, and I found it more upsetting than his fear. Iron-headed, ignorant, he embraced his deepest misfortunes with a kind of pride. The things for which not only he, but I, eventually, had come to suffer he claimed as badges of achievement. He had played in the Olympics of confinement. He could survive a local jail. He had no gratitude to me; no apologies for my shame, or for his stupidity. No knowledge of his real prison. It was late in his life; he died not quite three years later. But the truth is that for everything that went before, it was not until that moment that I finally gave him up.
The afternoon’s cross begins where I thought the morning’s might, in those areas where Horgan is our witness. Stern starts with the calls in March from my phone to Carolyn’s. Horgan promptly recollects the recidivist rapist indictment she was trying to draw together that month, and he acknowledges that one of the chief deputy’s primary functions is to assist in the drafting of charges, especially in complex cases. Raymond does not resist Stern’s suggestion that Carolyn’s trial schedule and my crowded daytime calendar could easily have led to those consultations taking place by phone at night, or, at least, to calls aimed at scheduling meetings about the proposed indictment.
From the calls, Stern moves on to the conversation in Raymond’s office the Wednesday after the election. By offering my statement that I was at home the night Carolyn was murdered, the prosecution has, in essence, put in evidence of my defense and Stern elaborates upon it.
Sandy emphasizes that my statement was voluntary. Ms. MacDougall encouraged Mr. Sabich not to speak? You, Mr. Horgan, asked him not to speak? You, sir, in the strongest terms? You told him to keep his mouth shut? Yet he spoke, and he was clearly quite provoked, was he not? Nothing calculated in his manner? His remarks appeared spontaneous? Stern develops at length a prosecutor’s learning about the hazards to an investigation subject of talking. The implication, carefully teased out, is that any person of my background who’d had time to contemplate the prospect of confrontation would have known better than to speak up, especially in this fashion. A man who had been at the scene, Stern is suggesting, who had done what the prosecutors say I did, and who was in charge of the investigation, would know better than to choose a lie so easily exposed. Only a person who truly had not been there and who was ignorant of the real circumstances could be provoked by fresh insult to burst out with this truthful response, which chance has bizarrely undermined. Watching Stern do the cross, I foresee his closing argument, and perceive clearly the reasons for keeping me off the stand. Rusty Sabich made his spontaneous explanation the day he was first confronted. What else is there really that he can add now, so long after the fact?
With my version before the jury, Stern goes about building my credibility. He takes Raymond on an extensive tour of my achievements as a deputy P.A. He begins, in fact, with Law Review and goes through the succeeding years. When Molto finally objects that this is unnecessary, Sandy explains that Horgan has questioned my judgment in the direction of the Polhemus investigation. It is appropriate that the jury know the full extent of my professional background, so that they are able to recognize that what has been portrayed as unwillingness or insubordination may merely be a disagreement between two veteran prosecuting attorneys. The logic of this position is largely unassailable and Larren directs Molto to resume his seat. The canonization of St. goes on.
“And so, nearly two years ago now,” Sandy eventually asks, “when Mr. Sennett, then your chief deputy, moved to San Diego, you turned to Mr. Sabich to fill that spot?”
“I did.”
“And is it fair to say that the chief deputy is the person in the office in whose judgment you place the greatest confidence?”
“You could say that. I regarded him as the best lawyer for the job.”
“All right. You had 120 other deputies?”
“About that.”
“Including Mr. Della Guardia and Mr. Molto?”
“Yes.”
“And you chose Mr. Sabich?”
“I did.”
Nico looks up, irked, but neither he nor Molto objects. Sandy works like a jeweler, tapping, tapping at his themes of past resentments. Two of the jurors seem to nod.
“And you did not think Mr. Sabich would commit a crime, you had absolute and complete confidence in his judgment and integrity, based on working closel
y with him for more than a decade?”
The question is compound, and argumentative, but also obvious. “Let it stand,” says Larren when Molto objects. Raymond weighs the answer.
“That’s fair,” he finally says. This small concession seems to have had a substantial effect in the jury box. I see now why Stern attacked Raymond at the outset. He had a point to make. Not with the jury—but with Raymond Horgan. Matters are not as clear to Raymond as they were when he walked into the courtroom.
“Just so. And it was not necessary for him to check with you on all matters to be sure that he was proceeding in exactly the manner you wished?” Stern asks. I take it that he is trying to minimize the significance of my delay in pursuing the fingerprint report.
“I always gave the people who worked for me some leeway.”
“Well, is it not true, Mr. Horgan, that in conducting the investigation of Ms. Polhemus’s murder, Mr. Sabich knew that you had trusted his judgment on many occasions in the past, including on many substantial matters?”
“I don’t know what he knew, but I had obviously approved of his judgment in the past on a lot of things.”
“For example,” says Sandy, without any indication of what is coming, “you gave Mr. Sabich the authority to decide where and when to fire Mr. Della Guardia.”
Nico, understandably, erupts. Larren is disturbed. He calls immediately for a conference with the lawyers outside the jury’s presence. Some judges hold these meetings, known as sidebars, in the courtroom at the side of the bench away from the jury. Larren’s practice—designed to keep the jury from overhearing the lawyers’ arguments—is to leave the courtroom entirely and stand in the small anteroom outside his chambers.
Della Guardia, Molto, Kemp, Stern, the court reporter, and I all follow the judge out the back door to the courtroom behind his bench. It is clear even before everyone has assembled that the judge is put out with Stern. He regards the last question as a cheap shot.
“Now what are we going to do here?” he demands of Sandy. “Relive ancient history day by day? We are not gonna turn this lawsuit into a contest over personalities.”
Molto and Nico are both talking. Any past antagonism between the prosecutor and the defendant is irrelevant, they say. Judge Lyttle is clearly inclined to agree.
“Your Honor,” says Stern, “we do not accuse Mr. Della Guardia personally of bad faith. But we believe this is a circumstance indicating how and why he might be misled.” Without saying it, Stern is focusing again on Molto. He has been careful to pick on him, and not Nico, from the start. Della Guardia is a popular person in this town right now, and known to the jurors. Molto is a cipher. Perhaps Sandy also means to take advantage somehow of the unequivocal promise made at the start that Molto would not testify.
“Why Mr. Della Guardia might be misled, Mr. Stern, is irrelevant. What the prosecutor thinks of his case is no matter to this jury. Lord knows, you don’t want to start gettin into that.”
“Your Honor,” says Stern solemnly, “it is the theory of the defense that Mr. Sabich has been framed in this case.”
From this huddled group, I take a step backward myself. I am stunned. Stern had so thoroughly rejected this tactic weeks ago that I had given it no further thought. And things seemed to be going so well without it. Was Horgan’s direct that devastating? I no longer understand my own lawyer’s theory of defense. Just a moment ago, I thought he was working up one of his delicate unspoken messages to the jury: Molto wanted Sabich’s job. He pressed too hard to make a case in order to obtain it, and Della Guardia failed to recognize this because he, even unconsciously, was nursing a grudge of his own. That was vintage Sandy Stern, an artful assessment of human frailty, quietly communicated, designed to diminish the prosecutors’ credibility and to demonstrate how this grotesque error—accusing me—came to be made. That is the kind of believable undercurrent juries eagerly receive. But this is a blunderbuss technique, one which, I had come to agree with Stern, was not worth the risk. Certainly I was not prepared for this change of direction without consultation. And on the record. These corridor conferences are available to the public. The reporters at the break will crowd around the court reporter and beg her to read her notes. I can see the headline: SABICH FRAMED, LAWYER SAYS. Lord knows what the jurors will think, if any of them fail to miss the unavoidable. Improvising, Sandy has raised the stakes.
In the meantime, Nico walks up and down the corridor snorting. “I don’t believe it,” he says two or three times.
Larren looks to Molto for a response.
“Ridiculous,” Molto says.
“Your denial is noted for the record. I mean your response on the point of evidence. If Mr. Stern is truly going to endeavor to prove that the case against Mr. Sabich has been manufactured, then I suppose this history of antagonism is relevant for those purposes.”
That of course is one reason why Stern may have gone down the road now, to get normally inadmissible proof before the jury.
“I must say,” the judge says, “Mr. Stern, that you are playing with fire. I don’t know where this is gonna lead us. But I’ll tell you two things. You had better be prepared for the prosecution’s response. Because the prosecutor will be entitled to quite a bit of latitude in answering. And secondly, proof of this charge better be forthcoming or I’ll strike all the cross-examination on this theme and I’ll do that in the jury’s presence.” Larren from his considerable height looks down at Stern directly. At this juncture, most defense lawyers, caught running out of bounds, back off and withdraw the question.
Stern says simply, “I understand. Your Honor, I think, will see exactly how this will develop. We will offer evidence addressed to the issue.”
“Very well.”
We return to the courtroom.
“What the hell is he doing?” I ask Kemp as we sit down again at the defense table. Jamie shakes his head. Sandy has not conferred with him either about this.
Stern quickly leaves the subject of Nico’s firing and moves on to smaller matters. He makes a few more minor points at random and then comes back to the counsel table to confer.
“Almost done,” he whispers to Kemp and me. “I have one further area. Anything more?”
I ask what he was doing out in the hallway and he places his hand on my shoulder. He says he will discuss it later. Kemp tells Sandy he has nothing else and Stern once more addresses the witness.
“Just a few more questions, Mr. Horgan. You have been most patient. We spoke earlier about a file you assigned Ms. Polhemus, a very sensitive case. Do you recall that part of the examination?”
“I believe I’ll remember it for quite some time,” says Raymond. He smiles, though.
“Did you know, Mr. Horgan, that Mr. Molto was involved in the case described there?”
Nico is on his feet first, bellowing in outrage. Larren for the first time before the jury shows anger with Stern.
“Sir, I have warned you about this area of inquiry.”
“Your Honor, it is relevant to the defense position I set forth earlier at sidebar.” He means the frame-up theory. Stern is being elliptical in order to keep the content of the hallway conference from the jury, who were not supposed to hear that conversation. “I must tell the court that we have every intention of continuing to investigate this file with the jury, and to offer evidence about it when it is our turn. Indeed, this is the proof I alluded to.” Stern is saying that we are going to put in proof about the B file to support the charge that the case is manufactured. Again, I am astounded by his position. The judge sits back; he rests his hands atop his head and puffs out his cheeks to blow off steam.
“For the time being, we have heard enough,” he says.
“Two questions more,” says Sandy with magisterial authority, and turns back to Horgan without waiting for the judge to tell him he may not.
“Did Mr. Molto ever ask you about that file?”
“As I recall, yes. After I resigned as P.A. he went over everything Rusty—Mr. Sabich??
?had done on the Polhemus case.”
“And Mr. Molto had that file then?”
“He did.”
“And do you know what investigation, if any, he conducted of the allegations contained there?”
“I do not.”
“I’ll answer that,” says Nico suddenly. He is standing. He has quite clearly lost his temper. His color is up and his eyes are wide. “He took no action. He wasn’t going to chase Rusty Sabich’s red herrings.” This speech before the jury would ordinarily be grossly improper. But it is precisely the kind of riposte that Larren’s warning in the hallway seemed to invite, and Della Guardia has taken full advantage of the opportunity. No doubt he and Tommy discussed this on the way back in from the corridor and decided that Nico would attempt to make a spirited defense of Molto in the jury’s presence. Stern ventures no objection. Instead, he slowly turns to face Molto.
“Mr. Della Guardia,” he says, “perhaps we will all learn something about red herrings.” He pauses. “And scapegoats.”
Those are the last words from Stern on Raymond’s cross.
Larren recesses for the week. On Fridays he hears motions in other cases. I wait for some explanation from Stern of his new tactics, but he goes on picking up papers from the defense table. Raymond stops by to shake Sandy’s hand on his way from the courtroom. He wanders wide of me.
Finally Stern comes to see me. He wipes his face with his handkerchief. He appears relaxed. Leaving aside the last bit, the cross-examination of Horgan went exceptionally well.
I am too concerned, however, to congratulate him.
“What is this?” I ask. “I thought you told me we weren’t going down the road to accusation.”
“Clearly, Rusty, I changed my mind.”
“Why?”
Stern gives me his Latin smile: the world is full of mystery.
“Instinct,” he replies.
“And what evidence are we going to offer?”
“Now you remind me,” he says. He is quite a bit shorter than I am and he cannot comfortably swing his arm around my shoulder. Instead, he uses another confidential gesture and touches my lapel. “For the time being, I will have to leave that concern to you,” he says, and turns away.