“Your Honor—”
“Mr. Delay Guardia, we went over this carefully the first day of the trial. You may not call Mr. Molto.”
“Judge, we had no idea—”
“Mr. Delay Guardia, if I were inclined to allow Mr. Molto to testify, then I oughta declare a mistrial right now, because if this case ever got to the court of appeals—ever, I say hypothetically—but if it ever got there, they would turn it around and send it right back. Mr. Stern asked the first day of trial about Mr. Molto’s testimony and you said No how and No way, and that’s how it stands.”
“Judge, you said that we would be entitled to some leeway if the defense proceeded with this frame-up theory. You said that.”
“And I allowed you to stand before the jury and make one entirely improper statement in their presence. Do you recall what occurred while Mr. Horgan was on the witness stand? But I should have had more faith in Mr. Stern’s professional acumen than to suppose he would venture down that road without reason. I didn’t know then, Mr. Della Guardia, that the state’s chief piece of evidence was going to disappear after last being seen with Mr. Molto. I didn’t know that Mr. Molto and the chief pathologist were going to manufacture evidence, or testimony—and I tell you, sir, that is a reasonable interpretation of the events of yesterday. I’m still considering the question of what happens with Mr. Molto. But one thing that isn’t gonna happen is that he gets up on the witness stand and makes matters worse. Now, what’s the other thing you wanted to bring up?”
Nico is silent, his head bowed for a second. When he straightens up, he takes an instant to adjust his jacket.
“Judge, we’re going to call a new witness.”
“Who is that?”
“Dr. Miles Robinson, Mr. Sabich’s psychiatrist. He was on our witness list. We omitted him from the order of proof, but I informed Mr. Stern about the change last night.”
Beside Stern, I have tensed. He has his hand on my arm to prevent a more precipitous reaction.
“What the hell is this?” I whisper.
“I was going to discuss this with you this morning,” says Stern quietly. “I’ve spoken with the doctor. I will give you my estimate of what the prosecutors are up to in a moment.”
“And what’s the problem?” asks Larren. “Mr. Stern objects to calling the witness without notice?”
Stern stands. “No, Your Honor. I object to the witness’s testimony, but not on that basis.”
“State your objection, Mr. Stern.”
“Your Honor. We object on two grounds. Whatever the enlightened view may be of psychotherapy, many persons continue to regard it as a stigma. This testimony therefore risks serious prejudice to Mr. Sabich. More important, I expect that Mr. Molto—who as I understand it will be questioning Dr. Robinson—will elicit material that would violate the physician-patient privilege.”
“I see,” Larren says again. “Are you moving to suppress?”
Stern looks down at me. Something is on his mind. He leans in my direction, then seems to think better of it.
“Your Honor—my remarks are likely to give offense, for which I apologize. But I believe they are appropriate and necessary to articulating my client’s interests. Judge Lyttle, I question the prosecutors’ motives in offering this proof. I perceive no factual basis for overcoming the testimonial privilege that prevents a physician, certainly a psychotherapist, from testifying about his treatment-oriented conversations with a patient. I believe that this testimony is offered knowing that the defense must move to suppress it, and that the court must allow that motion. When that occurs, the prosecutors will have someone else to blame when this case reaches the end for which we all now know it is destined.”
Nico becomes fiery. He pounds on the podium, incensed by Stern’s suggestion that he and Molto are out to trick-bag the judge.
“I deny that,” he says. “I deny that! I think that is an outrage!” He does another of his stomping routines, revolving away, and ends up at the prosecutors’ table, staring fiercely at Stern as he drinks a cup of water.
Larren is quiet for a long time. When he speaks he makes no comment on what Stern has suggested.
“Mr. Della Guardia, on what basis will you seek to overcome the privilege?”
Nico and Molto confer. “Your Honor, we expect the evidence to show that Mr. Sabich saw Dr. Robinson on only a few occasions. As a result we believe that Mr. Sabich’s statements were not for the purpose of seeking treatment and are outside the privilege.”
I have heard all I can handle. Aloud, if under my breath, I remark, “What bullshit.”
Perhaps the judge hears me. Certainly he looks in my direction.
“Listen here,” says Larren, “this case hasn’t gone very well for the state. Any jackass would know that, and nobody here is a jackass. But if you think, Mr. Delay Guardia, that I’m gonna let you elicit privileged testimony so that you can try to pull a rabbit out of a hat, you better have another think or two. I can’t and I won’t allow that. Now, sir, I’m not gonna suppress this testimony. I don’t have any comments on Mr. Stern’s observations. I don’t know whether he’s right. I will only say that it is appropriate to adjudicate a claim of privilege on a question-by-question basis. If you wanna put this witness on in the jury’s presence, be my guest. But I’ll tell you right now that you’re on the edge as it is. The conduct of one of the prosecutors has been deplorable. And if he starts attempting to elicit privileged material in the jury’s presence, then you’re at your peril. Have you conferred with Dr. Robinson so that you know the permissible areas of inquiry?”
“Dr. Robinson has refused to meet with us.”
“Well, good for him,” says Larren. “You do what you want, Mr. Delay Guardia. But you better have a lot you can get from this witness. Because I can only imagine what this jury is thinkin by now.”
Nico asks for a moment to confer. He and Molto walk together to a corner of the courtroom. Tommy is vehement. He has a high color, and he swings his hands emphatically. I am not surprised when Nico announces that they intend to proceed.
So the jury is brought back to the box and Miles Robinson comes to the witness stand. He is in his mid-sixties, trim, with white hair cropped very close. He is soft-spoken and exceedingly dignified. In another era, he would have been called an octaroon. He is fairer than I am, but he is black. I met him briefly many years ago when he was called as a witness in an insanity case. The nation’s leading expert on memory loss. He is a full professor at the medical school at the U., co-chair of the Psychiatry Department. When I had my troubles, he seemed pretty clearly to be the best shrink I could think of.
“Do you know Rusty Sabich?” Molto asks, as soon as Robinson has stated his name, his office address, and his profession.
Dr. Robinson turns to the judge.
“Do I have to answer that, Your Honor?”
Larren leans over. He speaks kindly.
“Dr. Robinson, Mr. Stern over there”—he points—“represents Mr. Sabich. Anything he does not think you ought to be obliged to answer, he will object to. Otherwise, you should answer the questions posed. Don’t worry now. He’s highly qualified.”
“We’ve spoken,” says Robinson.
“Very good, then,” says the judge. “Reread the question, please,” Larren tells the court reporter.
“Yes,” says Robinson when that has been done.
“How do you know him?”
“He was my patient.”
“How many times did you see him?”
“I checked my records last night. Five times.”
“From when to when?”
“February to April of this year. April third was the last time.”
“April third?” asks Molto. He faces the jury, who refuse to look at him. He means, however, to call attention to the fact that my last session was two days after the murder.
“Yes, sir.”
“Did Mr. Sabich ever discuss Carolyn Polhemus with you?”
The doctor-patient p
rivilege protects conversations, not acts. Up until now Molto has not asked Robinson to repeat anything I have said. With this question, however, Stern quietly comes to his feet.
“Objection,” he says.
“Sustained,” says the judge distinctly. He has folded his arms over his chest, and he glares down at Molto. It is clear that he shares Sandy’s perception of the motives here. And he has conceived of his own politic compromise. He will let Robinson take the stand, and then sustain objections to any questions of consequence.
“Your Honor, may I have the basis of that ruling?” asks Molto. He looks up to the bench defiantly. Lord, how these men hate each other. By now it would require an archaeological dig to get through the sedimentary layers of resentments built up over the years. Some of it has to have been Carolyn. Molto is too primitive not to have been jealous. Did he know, back in their days in the North Branch, about the other dimension to Larren’s relations with her? I puzzled on that most of the night. Who knew what about whom back then? And what does Larren think Molto knows now? Tangled webs. Whatever else, it is clear that the dispute between these men by now has nothing to do with me.
“Mr. Molto, you know the basis of the ruling. It was discussed before the jury entered. You have established a physician-patient relationship. Any communications are privileged. And if you question another of my rulings in the jury’s presence, sir, your examination will end. Proceed.”
“Dr. Robinson, isn’t it true that Mr. Sabich stopped seeing you?”
“Yes, sir.”
“Your treatment of him ceased?”
“Yes, sir.”
“Judge, I submit that these conversations are not privileged.”
“You are in contempt, Mr. Molto. Proceed with your examination.”
Molto looks over to Nico. Then he lets it all out. He considers his armaments and reaches for the nuclear bomb.
“Did Rusty Sabich ever tell you that he had killed Carolyn Polhemus?” There is the abrupt sound of people gasping throughout the courtroom. But I realize now why Nico was pounding on the podium. This is the question they brought Robinson here to answer. Nothing marginal like whether I used to sleep with her. They are taking one last blind shot. The judge, however, is enraged.
“That is all,” he screams. “That is all! I have had it with you, Mr. Molto. Had it! If the other questions are privileged, how isn’t that one?”
I whisper to Stern. He says to me, “No,” and I say to him, “Yes,” and I actually take his elbow and push him to his feet. There is a rare tone of uncertainty as he speaks.
“Your Honor, we would not object to the question, as phrased, being answered.”
Larren and Molto are both slow to respond, the judge because of his wrath and Molto in sheer confusion. They both finally comprehend at the same time.
Molto says, “I move to withdraw the question.”
But the judge knows what is occurring.
“No, sir. You will not make an inquiry so prejudicial in the presence of the jury and then seek to withdraw it. So the record is clear, Mr. Stern, are you waiving the privilege?”
Stern clears his throat.
“Your Honor, the question does seek to elicit privileged communications, but in my view the question, as framed, can be answered without invading the privilege.”
“I see,” says Larren. “Well, I suppose that’s right. If it goes one way. You ready to take your chances?”
Stern’s eyes trail off toward me for an instant, but he responds clearly, “Yes, Your Honor.”
“Well, let’s listen to the answer, then. We’ll know where we stand. Ms. Court Reporter, would you please read back Mr. Molto’s last question.”
She stands, with the stenographic tape in her hand. She reads in a flat voice:
“Question by Mr. Molto: ‘Did Rusty Sabich ever tell you that he had killed Carolyn Polhemus?’”
Larren holds up a hand so that the court reporter can resume her seat and prepare to take down the response. Then the judge nods to the witness.
“The answer to the question,” says Robinson in his measured way, “is no. Mr. Sabich never told me anything like that.”
The courtroom ruffles in a fashion that it has not to date, with an air of release. The jurors nod. The schoolteacher smiles at me.
Molto will never give up.
“Did you ever speak in any way about the subject of murdering Ms. Polhemus?”
“Objection to that question and to all further questions concerning communication between Mr. Sabich and the doctor.”
“The objection is sustained. The objection is taken as a limiting motion and is granted. Any further inquiry being prohibited or irrelevant to these proceedings, I intend to terminate this examination. Dr. Robinson, you are excused.”
“Your Honor!” shouts Molto. But Nico instantly has him by the arm. He leads Tommy away from the podium, as they exchange words. Nico nods to humor him, but he seems to have a firmness, a resolve that does not partake of Tommy’s outrage.
The judge looks only at Nico.
“Do I take it, Mr. Delay Guardia, that the state rests?”
Nico answers. “Yes, Judge. On behalf of the people of Kindle County, the state rests.”
Larren will dismiss the jury now for the weekend and hear the motion for a directed verdict. He turns to them:
“Ladies and gentlemen, I would ordinarily ask you to leave the courtroom at this point in time. But I am not going to do that. Your service in this case is now over—”
I do not understand these words at first, but when I feel Jamie Kemp’s arms around me, then Stern’s, I know what has occurred. My trial is over. The judge has gone on speaking. He tells the jurors that they may stay if they please. I am weeping. I put my head down on the table for a moment. I am sobbing, but I lift my head to listen, as Larren Lyttle sets me free.
He is addressing the jury:
“I have reflected on this case at length over the last twenty-four hours. At this time, normally a defense lawyer makes a motion for a judgment of acquittal. And most often a judge decides to let the case proceed. Usually there is enough evidence so that a reasonable jury might find a defendant guilty. I think it’s fair to say that there ought to be. No man ought to be brought to trial without sufficient evidence that some fair people might conclude beyond a reasonable doubt that he is guilty. I think justice requires that. And I think that in this case justice has not been done. I understand the prosecutors have suspicions. Before yesterday, I might even have said that there were reasonable grounds for suspicion. Now I’m not so sure of that. But I cannot let you deliberate on evidence like this, which is so clearly inadequate. It would be unfair to you and—most importantly—to Mr. Sabich. No person should be held on trial on evidence such as this. I have no doubt that your verdict would be a ringing not guilty. But Mr. Sabich should not have to live with this specter a moment longer. There is no proof of motive here, no concrete evidence that there was ever an intimate relationship. There is no effective proof, so far as I am concerned, after yesterday, to give any reasonable person grounds to believe that Mr. Sabich even had carnal relations with Ms. Polhemus on the night of her death. And, as we have just seen, there is not a shred of direct proof that he murdered Ms. Polhemus. Perhaps he was there that night. The state might be entitled to that inference. If the prosecutors had ever found that glass, I might be more confident. But under all the circumstances, I cannot let the case proceed.”
“Your Honor.” Nico is on his feet.
“Mr. Della Guardia, I understand you are despairing at this time, but I am speaking and I would like you to hear me out.”
“Your Honor—”
“I have a few words to say about Mr. Molto.”
“Judge, I want to move to dismiss.”
Larren starts, actually draws back. In the courtroom, there is a larger stir and then the serial sound of people moving. I know without looking back that the reporters are fleeing for their phones. The TV guys will have to get the
ir camera vans down here. Nobody was planning for the shit to hit the fan at this point. Larren bangs his gavel and demands order. Then he opens his large hand to indicate that Nico may proceed.
“Judge, I just wanted to say a couple of things. First, it seems like a lot of people have started to think that this case is some kind of frame-up or sham. I deny that. I want to deny that. On behalf of all members of the prosecution. I think we were right to bring this case—”
“You had a motion, Mr. Delay Guardia?”
“Yes, Judge. I hoped when I came to court this morning that you would let the case go to the jury. Some judges would, I think. I think that’s the right thing. But some judges probably wouldn’t. And since you’ve apparently made up your mind—”
“I certainly have.”
“For Mr. Sabich’s sake, I don’t think there should be any question about whether this was a proper legal decision on your part or not. I disagree with you. We do disagree. But I don’t think it’s fair to pretend that I think you’re outside the law. And I certainly don’t want anyone thinking I’m looking for excuses.” Nico turns, if only barely, to look over his shoulder in the direction of Stern. “So for those reasons, I would like to accept your judgment and move to dismiss this case.”
“That motion is allowed.”
Larren stands.
“Mr. Sabich, you are discharged. I cannot tell you how sorry I am that any of this has taken place. Not even the pleasure of seeing you free can make up for this disgrace to the cause of justice. I wish you Godspeed.”
He bangs his gavel. “Case dismissed,” he says, and leaves.
36
Turmoil. My wife. My lawyers. Reporters. Onlookers, I do not know. They all wish to touch me. Barbara is the first. The feeling of her arms around me so firmly, her breasts girdled against me, her pelvis squeezed against mine is astonishingly stimulating. Perhaps this is the first sign of the regeneration of my life.
“I am so glad.” She kisses me. “I am so glad for you, Rusty.”
She turns from me and hugs Stern.
Today, I elect to make my once-only exit through the heating plant. I do not wish to face the press’s disordered melee. I gather Barbara, Stern, and Kemp toward the end of the lobby and then we drop out of sight. But of course there is no escaping. Another gaggle is waiting when we reach Stern’s building. We make our way upstairs with little comment. From somewhere a luncheon has appeared in the conference room, but there is no opportunity to eat. The phones ring. And the secretaries soon report that the reception room is a mob scene, with reporters spilling out into the halls. The hungry monster must be fed. I cannot deny Stern this moment. He deserves it, and the consequences of this kind of success in a celebrated case, in terms of both economics and professional stature, will enlarge Stern’s career for years to come. He is now a lawyer of national standing.