Innocent

  George Mason, the acting chief of the court of appeals, had followed Harnason with a lengthy dissection of the judicial canons, quite damaging to Sabich, even though on cross, Judge Mason, admittedly Rusty's longtime friend, reiterated his enduring high opinion of Sabich's integrity and credibility.

  Slick but visibly nervous as a witness, Prima Dana Mann testified that his practice was limited to matrimonial matters and admitted consulting with Rusty twice, including once three weeks before Barbara died.

  Then the case had ended with the best stuff the prosecution had: Rusty picking up the phenelzine, the fingerprint results from Barbara's medicine cabinet, Rusty's shopping trip the day Barbara died, and finally Milo Gorvetich, the computer expert, who laid out all the incriminating stuff they'd mined after seizing Rusty's home computer.

  Once the prosecution rested, Marta had made an impassioned argument that the prosecution had failed to establish corpus delicti, meaning they had not offered evidence from which a jury could find beyond a reasonable doubt that there had been a murder. Judge Yee had reserved ruling. Usually that was a sign that the judge was considering flushing the case if the jury didn't, but Tommy tended to think it was just Basil Yee being himself, as aloof and cautious as certain house cats.

  Now, as Tommy flipped through his yellow pad while he stood at the corner of the defense table, Jim Brand, still smelling of this morning's aftershave, scooted his chair over and leaned close.

  "You going to ask about the girl?"

  Tommy did not have much hope on this point, but he felt Yee was wrong to start. He stepped forward. Yee had been attending to other papers and finally looked down at Molto below the bench.

  "Your Honor, may we be heard before I begin?"

  The jury, into the third week of trial, knew what that meant and stirred in the box. Out of deference to Stern, who could not stand long at any of the whispered conferences beside the bench, the judge cleared the courtroom for sidebars. The jurors disliked the shuttling in and out, especially since it meant they were being treated like children who mustn't hear what the grown-ups were talking about.

  Once they were gone, Molto took another step closer to the bench.

  "Your Honor, since the defendant has chosen to testify, I'd like to be able to ask him about the affair he had the prior year."

  Marta shot up at once to object. In a setback Tommy had not anticipated, Judge Yee had granted the defense motion to keep the prosecutors from showing that Rusty had been seeing another woman in the spring of 2007. Marta Stern had argued that even accepting the State's iffy evidence that Sabich had been unfaithful--the hotel sightings and the STD test--the behavior, particularly the chief judge's alleged pattern of pinching off cash from his paychecks to finance the affair, had ceased fifteen months before Barbara's death. In the absence of anything to show he had been seeing this woman when Mrs. Sabich died, the proof was irrelevant.

  'Judge, it shows motive,' Tommy had protested.

  'How?' asked Yee.

  'Because he may have wanted to be with this woman, Your Honor.'

  ' "May"?' Judge Yee had moved his head from side to side. 'Proving Judge Sabich had affair sometime before--that not proof he a murderer, Mr. Molto. If that proof,' said the judge, 'lot of men are murderers.' The press, in the front row for the pretrial proceedings, had roared as if the quiet country judge were doing stand-up.

  Now Marta, with her red ringlets like Shirley Temple and a brocaded jacket, came forward to oppose Tommy's efforts to ask the same questions the judge had disallowed prior to trial.

  "Your Honor, that's obviously unacceptably prejudicial. It injects speculation that Judge Sabich had an affair, something which the Court has already recognized is irrelevant to these proceedings. And it's unfair to the defendant, who made his decision to testify based on the Court's prior rulings."

  "Judge," said Tommy, "the whole point of your ruling was that there was no evidence whether the defendant was seeing this woman, whoever she is, at the time of the murder. Now that he's up there, aren't we at least entitled to ask about that very point?"

  Judge Yee looked to the ceiling and touched his chin.

  "Now," he said.

  "I'm sorry," said Tommy. In his frugality with words, the judge was frequently Delphic.

  "Ask now. Not with jury."

  "Now?" said Tommy. Somehow he caught the eye of Rusty, who appeared as startled as Molto.

  "You wanna ask," said the judge, "ask."

  Tommy, who had expected to get nowhere, found himself briefly word-struck.

  "Judge Sabich," he finally said, "did you have an affair in the spring of 2007?"

  "No, no, no," said Yee. He shook his head in the schoolmarmish fashion he occasionally employed. The judge was a few pounds overweight, moon-faced, with heavy glasses and thin gray hair plastered over his scalp. Like Rusty, Tommy had been acquainted with Yee for decades. You couldn't say you knew the guy, because he was too accustomed to keeping to himself. He'd grown up in Ware as one of a kind, shunned by almost everybody, not only because he was by downstate standards so foreign in look and speech, but also because he was one of those schooltime brainiacs nobody could have understood, even if he could actually speak English. Why Yee had decided to become a trial lawyer, which was maybe the one job in the world anybody with common sense would have told him to stay away from, was a mystery. He'd had something in his head; people always do. But there was no way the prosecuting attorney's office down in Morgan County could refuse to hire him, a local guy whose law school performance--first in his class at State--outranked that of any applicant for at least twenty years. Against the odds, Yee had done well as a deputy PA, although he was at his best as an appellate lawyer. The PA eventually moved heaven and earth to get him on the bench, where Basil Yee had basically shined. He was known to let his hair down at judicial conferences. He drank a little too much and stayed up all night playing poker, one of those guys who didn't get away from his wife much and made the most of it when he did.

  When Yee had been appointed to this case by the supreme court, Brand had been excited. Yee's record in bench trials, where he decided guilt or innocence himself, was astonishingly one-sided in favor of the prosecution, and thus they knew that Stern would be deprived of the option of allowing the judge, rather than a jury, to decide the case. But over the years, Tommy had learned that there were three interests at stake in every trial--those of the prosecution, the defense, and the court. And the judge's agenda frequently had nothing to do with the issues in the case. Yee was chosen for this assignment almost certainly on the basis of statistics, since he was the least-reversed trial judge in the state, a distinction of which he was fiercely proud. But he had not achieved that kind of record by accident. It meant he would take no chances. In the criminal world, solely the defendant had the right to appeal, and thus Judge Yee would rule against Sabich on evidentiary questions only if the precedents were unequivocally in Tommy's favor. Yee remained a prosecutor at heart. If they convicted Rusty, he was going to get life. But until then, Judge Yee was going to cut Sabich every break.

  "Better I ask, Mr. Molto." The judge smiled. He was by nature a gentle man. "Will be faster," he said. "Judge Sabich, when your wife die, were you having an affair, romance, whatever"--Yee threw his small hands around to make the point--"any kind of being involved with another woman?"

  Rusty had turned about fully in the witness chair to face the judge. "No, sir."

  "And back, say, three month--any affair, romance?"

  "No, sir."

  The judge nodded with his whole upper body and lifted a hand toward Molto to invite further questions.

  Tommy had retreated to the prosecution table beside Brand's seat. Jim whispered, "Ask if he hoped to see any woman romantically."

  When Tommy did, Yee responded as he had before, with a steady head shake.

  "No, no, Mr. Molto, not in America," said the judge. "No prison for what in man's head." Yee looked at Rusty. "Judge," said Yee, "any talk with ano
ther woman about romance? Anytime, say, three months before missus die?"

  Rusty took no time and said, "No, sir," again.

  "Same ruling, Mr. Molto," said the judge.

  Tommy shrugged as he glanced back at Brand, who looked as though Yee had put a shiv through him. The whole deal made Tommy wonder a bit about Yee. As square as he appeared with his rayon shirts and out-of-date plastic glasses, he might have wandered. Still waters run deep. You could never tell with sex.

  "Bring in jury," Judge Yee told the courtroom deputy.

  Ready to start, Tommy felt suddenly at sea.

  "How do I address him?" he whispered to Brand. "Stern said to call him 'Rusty.'"

  "'Judge,'" Brand whispered tersely. That was right, of course. First names would play right into the vendetta stuff.

  Tommy buttoned his coat. As always, it was just a bit too snug across the belly to really fit.

  "Judge Sabich," he said.

  "Mr. Molto."

  From the witness stand, Rusty nonetheless managed a nod and a Mona Lisa smile that somehow reflected the decades of acquaintance. It was a subtle but purposeful gesture, the kind of little thing jurors never missed. Tommy suddenly remembered what he had pushed out of mind for months now. Tommy had come into the PA's office a year or two after Rusty, but they were close enough to being peers that over time they might have competed for the same trials, the same promotions. They never did. Tommy's best friend, Nico Della Guardia, was Rusty's main rival. Tommy didn't rank. It was obvious to all that he lacked Rusty's smarts, his savvy. Everybody had known that, Molto remembered. Including him.

  CHAPTER 25

  Nat, June 22, 2009

  As soon as I hear what Tommy Molto wants to raise with Judge Yee, I move to the defense table and, crouching there, whisper to Stern that I'm taking a time-out. Alert to the proceedings, Sandy nonetheless nods soberly. I hustle to the doors before Molto can get very far.

  Within a few hours after Debby Diaz's visit on election day, my dad had found out he was going to be indicted. In the weeks following my mom's death, he'd largely suspended his campaign. Koll followed suit briefly, but put his attack ads on the air in mid-October. My dad responded with his own tough commercials, but the only actual event he participated in was a broadcast debate for the League of Women Voters.

  Election night, however, required a party, not for his sake, but for the campaign workers who'd knocked on doors for weeks. I showed up a little before ten p.m., because Ray Horgan had asked me to come down and pose for pictures with my dad. Knowing Ray would be there, I didn't push it when Anna asked me to go alone.

  Ray had booked a big corner suite at the Dulcimer, and when I arrived there were about twenty people watching TV as they hovered around the chafing dishes with the hors d'oeuvres. My dad was nowhere to be seen, and I was eventually directed to a room next door, where I found my father in sober conversation with Ray. They were the only people in the room, and as I would have figured, Ray beat it as soon as he saw me. My dad had his tie dragged down his shirtfront and looked even more vacant and worn out than he had in the weeks since my mom had died. My parents were never easy with each other, but her passing seemed to have depleted him to the core. He was sad in this total way I might not have foreseen.

  I hugged him and congratulated him, but I was too nervous about Debby Diaz not to bring her up immediately.

  'I did,' he said when I asked if he'd found out what all that had been about. He motioned for me to sit. I grabbed a piece of cheese from the tray that was on the coffee table between us. My father said, 'Tommy Molto plans to indict me for murdering your mother.' He held my eyes while the hard drive spun uselessly inside my brain for quite some time.

  'That's crazy, right?'

  'It's crazy,' he answered. 'I expect they're going to end up calling you as a witness. Sandy was over there late today. He got a little courtesy preview of their evidence.'

  'Me? Why am I a witness?'

  'You didn't do anything wrong, Nat, but I'll let Sandy explain. I shouldn't be discussing the evidence with you. But there are a few things I want you to hear from me.'

  My dad got up to turn off the TV. Then he plunged back into the overstuffed easy chair he'd been in. He looked the way elderly people do when they're struggling to find the thread, with the uncertainty spreading through their face and adding a tremble near the jaw. I was not any better. I knew the tears would be coming any instant. Somehow, I've always been embarrassed about crying in front of my father, because I know it's something he would never do.

  'I'm sure it will be on the news tonight and in the papers tomorrow,' he said. 'They searched the house around six, as soon as the polls closed. Sandy was still at the PA's office. Nice touch,' my father said, and shook his head.

  'What are they searching for?'

  'I don't know, exactly. I know they took my computer. Which is a problem because there's so much internal material from the court. Sandy has already had several conversations with George Mason.' My dad looked off at the heavy drapes, which were made of some kind of paisley brocade, ugly stuff that was somebody's idea of what looked rich. He tossed his head around a little, because he knew he had wandered off point. 'Nat, when you talk to Sandy about the case, you're going to hear things I know will disappoint you.'

  'What kind of things?'

  He folded his hands in his lap. I have always loved my father's hands, big and thick, rough in any season.

  'Last year I was seeing someone else, Nat.'

  The words would not go through at first.

  'You mean a woman? You were seeing another woman?' "Seeing someone else" made it sound almost innocuous.

  'That's right.' I could tell my dad was trying to be courageous, refusing to look away.

  'Did Mom know?'

  'I never told her.'

  'God, Dad.'

  'I'm sorry, Nat. I won't even try to explain.'

  'No, don't,' I said. My heart was banging and I was flushed, even while I thought, Why in the fuck am I embarrassed? 'Jesus, Dad. Who was it?'

  'That really doesn't matter, does it? She's quite a bit younger. I'm sure a shrink would say I was chasing my youth. It was over and done for a long time before your mother died.'

  'Anyone I know?'

  He rotated his head emphatically.

  'Jesus,' I said again. I've never been a quick study. I arrive at my views, whatever they are, only after things have boiled inside me for a long time, and I realized I was going to have to thrash around with this one for quite a while. All I knew for sure was that this was not cool at all, and I wanted to leave. I stood up and said the first thing in my head. 'I mean, Jesus Christ, Dad. Why didn't you buy a fucking sports car?'

  His eyes rose to me and then went down. I could tell he was sort of counting to ten. My father and I have always had trouble about his disapproval. He thinks he is stoic and unreadable, but I inevitably see his brow shrink, if only by micrometers, and the way his pupils darken. And the effect on me is always as harsh as a lash. Even now, when I knew I had every right to be angry, I was abashed by what I had just said.

  Finally, he spoke quietly.

  'Because I guess I didn't want a fucking sports car,' he said.

  I had a paper napkin balled in my fist and threw it on the table.

  'One more thing, Nat.'

  I was too messed up by now to talk.

  'I didn't kill your mother. You'll have to wait to understand everything that's going on, but this case is old wine in new bottles. It's just a lot of rancid crap from a compulsive guy who never figured out how to give up.' My father, usually the soul of moderation, looked taken aback by permitting this blunt evaluation of the prosecutor. 'But I'm telling you this. I've never killed anyone. And God knows, not your mother. I didn't kill her, Nat.' His blue eyes had come back up to mine.

  I stood over the table wanting nothing more than to get away, so I simply blurted out, 'I know,' before I left.

  Marta Stern's head hangs outside the courtroom
door. She has a kind of wind-sprung do of reddish curls and long arty earrings with colored glass, and the slightly dried-out look of a formerly fat person who got thin by exercising like mad. Throughout the trial, she's sort of been in charge of me, halfway between guardian angel and chaperone.

  "They're ready." As I shuffle in beside her, she grips my arm and whispers, "Yee didn't change his ruling."

  I shrug. As with so many other things, I'm not sure if I'm relieved I won't have to sit there pretending not to care while I listen in public to the details of my father's affair, or if instead I would have preferred to do the cross-examination myself. I say what I've felt so often since this whole stupid thing began.

  "Let's just get it over with."

  I take my seat in the front row at the same time the jurors are returning. Tommy Molto is already standing in front of my dad, a little like a boxer off his stool before the bell sounds. Beside my father, the projection screen the PAs have been using to show the jury computer slides of various documents admitted in evidence has been opened again.

  "Proceed, Mr. Molto," Judge Yee says when the sixteen jurors--four alternates--are back in the fancy wooden armchairs in the jury box.

  "Judge Sabich," says Molto.

  "Mr. Molto." My dad gives this little nod as if he's known for a thousand years the two of them were going to find themselves here.

  "Mr. Stern asked you on direct examination if you'd heard the testimony of the prosecution witnesses."