Innocent

  The computer in particular was a point of warfare, because my dad, who worked a lot at night, regularly downloaded court documents to the home PC. There were dozens and dozens of draft opinions on there, many of them involving appeals in which the Kindle County Prosecuting Attorney's Office was a party, as well as lots of memorandums reflecting the internal workings of the court of appeals, in which the judges sort of dropped their shorts and shared candid thoughts about lawyers, arguments, and occasionally one another. The appellate judges were gonzo when they realized this had come into the prosecutors' hands.

  George Mason, who became acting chief, didn't want the court of appeals to be seen as shielding my dad, but he would have had to go to court to calm his colleagues were it not for a twist I couldn't help finding amusing: There was no judge to settle the dispute. Everybody in the superior court had already declined to hear my dad's case, and even when a judge was appointed, there was going to be nowhere for the loser to appeal since the appellate court itself was one of the parties. Eventually Molto agreed with George that the PAs would image the hard drive, making an exact copy, and then examine the drive under the supervision of George or someone he appointed, so that no internal court documents were viewed. They made the same agreement about the computer that had been in my dad's chambers.

  After my dad's personal PC was analyzed, the home computer was turned over to Judge Mason, and both computers, from home and court, remained in George's chambers side by side for the month it took before Judge Yee was appointed. During that period, my father was allowed to get what he needed off the hard drives to finish his pending opinions or keep his calendar, but only when George or his delegate could witness this and make an exact log of every keystroke. My dad went over there once and found his return to the realm he used to rule far too humiliating to repeat under these conditions. After that, the prosecutors agreed that any further copying from the PCs could be done by emissaries approved by Judge Mason and the PAs, who turned out to be me or, at Judge Mason's suggestion, Anna, whom he knew and trusted as my dad's former clerk and a minor tech guru. Once Yee was appointed, he sided with the prosecutors and ordered both computers turned over to them. The computer from my dad's chambers had nothing of value on it--just like my mom's. But my dad's PC was kind of a gold mine for the PAs and they haul it up to court each day in the same pink shrink-wrap in which it's remained ever since their expert, Dr. Gorvetich, came to the court of appeals to retrieve it in December.

  "Now the day before your wife died, Judge, you shredded several e-mails on your home PC, didn't you?"

  "I did not do that, Mr. Molto."

  "All right," says Tommy. He nods as if he had expected the denial, and walks a little bit, with the grim air of a parent about to give a spanking. "Your Internet provider is ClearCast, is that right?"

  "Yes."

  "Now, just so we're all on the same page, when someone sends you an e-mail, it actually goes to ClearCast's server, and you then pull it down to your home PC through your e-mail client. Right?"

  "I'm not a computer guy, Mr. Molto, but that sounds about right."

  "And going back to Professor Gorvetich's testimony, you set up your account at ClearCast so that e-mails were deleted from the ClearCast server after thirty days, correct?"

  "Not to be difficult, Mr. Molto, but it was my wife who dealt with that sort of thing. She was a PhD in math and knew a great, great deal more about computers than I did."

  "But we can agree, Judge, that unlike your computer at the court of appeals, you actually downloaded e-mails from the ClearCast server to your e-mail client at home."

  "If I understand what you're saying, you mean that when I was at work, I'd go to the ClearCast website to see my personal e-mail, but at home, those e-mails came right to the e-mail program on my PC and were stored there."

  "Exactly what I'm saying. And after thirty days, that was the only place those e-mails remained, right?"

  "I'd have to take your word for it. But it sounds right."

  "Now, did you routinely delete the e-mail on your PC at home?"

  "No. Sometimes I'd send documents from the court to my personal account, and I could never really tell what I was going to need, so I tended to just let e-mail accumulate."

  "And by the way, Judge. You told us before that your wife sometimes used your PC."

  "I said she sometimes used it for brief Web searches because it was right outside our bedroom."

  "Mr. Brand reminded me during the break. Wasn't there a lot of confidential information from the court of appeals on your PC?"

  "There was. Which was why we had two computers in our house, Mr. Molto. Barbara understood that she wasn't supposed to look at my documents or e-mails. But she didn't have to, if she was doing a quick Web search."

  "I see," said Molto. He shows the same smug little smile that's appeared now and then when he's found my dad's explanation too tidy. "Now, you heard Dr. Gorvetich testify that after doing a forensic examination of your PC, he concluded that several messages had been deleted from your personal e-mail, and that based on dates in the registry, that had been done the day before your wife died. Did you hear that?"

  "I did."

  "And in fact he says they were not simply deleted, but that a shredding software called Evidence Eraser was downloaded and used to accomplish the task, so that there could be no forensic reconstruction of what had been on your computer. Did you hear that?"

  "Yes."

  "And you deny doing that?"

  "I do."

  "And who else lived at home with you, Judge?"

  "My wife."

  "And you said your wife and you had an understanding that she would not go near your e-mail."

  "That's true."

  "Your testimony doesn't make much sense, Judge, does it?"

  "Mr. Molto, none of this makes sense, frankly. You say I carefully shredded the e-mail on my computer so it couldn't be reconstructed, and at the same time, I didn't bother to erase my searches about phenelzine, not to mention carelessly leaving my fingerprints on the pill bottle. So, yes, Mr. Molto, it all sounds ridiculous."

  This cannot quite be classified as an outburst, because my dad has reeled all of this off in a fairly patient tone. And he's right. The contradictions in the prosecutors' theories are heartening. It is the first time my dad has really pinned Molto's ears back. Tommy stares at him as he says to Judge Yee, "Move to strike, Your Honor. The defendant will have an opportunity to give a closing argument."

  "Read back, please," Yee tells the court reporter. This only makes it worse for the prosecution, since the jury gets to hear my dad's little rant again. And at the end, Yee shakes his head.

  "He was answering, Mr. Molto. Better not to ask what makes sense. And Judge--" He addresses my dad with the same patience and courtesy he's shown throughout. "Please no arguments."

  "I'm sorry, Your Honor."

  Yee shakes his head to dismiss the apology. "Fair answer, bad question. Many good questions, but not that one."

  "I agree, Your Honor," says Molto.

  "Okay," says the judge, "everybody happy." The line, in the middle of a murder trial, strikes everybody in the courtroom as hysterical, and the judge, who is said to be a card in private, laughs hardest of all. "Okay," he says when the laughter has passed.

  "Now, Judge, were there e-mails on your home computer you wouldn't want anyone else to see? That is, before they were deleted?"

  "As I said, a lot of confidential court material."

  "I meant personal material."

  "Some," says my dad.

  "What, exactly?"

  The first thing that crosses my mind is his messages to the girl he was screwing. They were probably there, too, but there is clearer evidence from another source.

  "For one thing, as he testified, Mr. Mann confirmed my appointments with him by e-mail."

  "And Judge, were Mr. Mann's e-mails on your home PC when it was seized, to the best of your knowledge?"

  "I know the te
stimony is that they were not."

  "In fact, because he could place the time of those messages, Dr. Gorvetich was able to determine that Evidence Eraser had been used on those messages."

  "So he claimed."

  "You doubt him?"

  "I think our expert will question his conclusion that shredding software was used. Obviously, the message wasn't there."

  "And you deny deleting it?"

  "I don't recall deleting Mr. Mann's messages, but clearly I would have a reason to do that. I know I didn't download any shredding software or use it at any time on my computer."

  "So without the use of Evidence Eraser, an investigator looking through your e-mail might realize you had been thinking of leaving your wife?"

  I see now where Tommy is going. He will argue that my dad was employing a kind of belt and suspenders, sanitizing his computer in case the authorities recognized the phenelzine poisoning. But if things got to that point, it seems to me my dad would already have been in a lot of trouble.

  "Possibly."

  "Possibly," says Molto. He minces along again.

  "Now, Judge, on September 29, if I understand what you told the police, you awoke to find your wife beside you dead. Correct?"

  "Yes."

  "And for the next day, close to twenty-four hours, actually, you called no one. Is that correct?"

  "Yes."

  "You didn't call paramedics to see if she could be revived?"

  "She was cold to the touch, Mr. Molto. She had no pulse."

  "You made the medical judgment yourself, and didn't call the paramedics. Right?"

  "Yes."

  "You did not let your son or any of your wife's relatives or friends know she'd passed, correct?"

  "Not then."

  "And according to what you told the police, you just sat around for a solid day thinking about your wife and your marriage. Right?"

  "I straightened up a little so that she looked better when my son saw her. But yes, for the most part, I just sat there and thought."

  "And finally, virtually a day later, you called your son?"

  "Yes."

  "And as he's testified, when you spoke to Nathaniel"--I quake a little at hearing my name from Molto's mouth--"you argued with him about whether to call the police."

  "He didn't call it an argument and neither would I. It hadn't dawned on me that the police should be called, and frankly, at that point I wasn't looking forward to outsiders coming in."

  "How many years were you a prosecutor, Judge?"

  "Fifteen."

  "And you're saying that you didn't realize that the police should be summoned in the case of any suspicious death?"

  "It was not suspicious to me, Mr. Molto. She had high blood pressure and heart problems. Her father had died the same way."

  "But you did not want to call the police?"

  "I was confused, Mr. Molto, about what to do. I hadn't had a wife die lately." There is a snicker from the jury, which is a bit of a surprise. Stern's eyebrows are furrowed. He doesn't want my dad to be a smart guy.

  "Now, you say you knew your wife had health problems. But she was in outstanding shape, wasn't she?"

  "She was. But she worked out because she knew she was at risk genetically. Her father barely made it into his fifties."

  "So not only did you make the medical judgment your wife was dead, without any qualified assistance, but you also decided the cause of death."

  "I'm telling you what I was thinking. I'm explaining why I didn't consider calling the police."

  "It wasn't, of course, Judge, to delay an autopsy?"

  "It wasn't."

  "It wasn't to allow the gastric juices to wash away all traces of the foods you'd fed her that would interact with the phenelzine you poured into the wine she drank?"

  "It was not."

  "And you say, Judge, that you straightened up a bit. Did your straightening up perhaps include washing out the glass in which you'd dissolved the phenelzine the night before?"

  "No."

  "Whose word do we have besides yours that you did not wash out the glass that contained the traces of the poison you gave your wife?"

  "Is your point that it's only my word, Mr. Molto?"

  "Whose word do we have, Judge, that you didn't scrub the counter where'd you crushed the phenelzine, or the tools you used to do it?"

  My dad doesn't bother to answer.

  "Whose word, Judge, do we have that you didn't spend that twenty-four-hour period doing your best to hide every last little bit that would reveal how you'd poisoned your wife? Who, Judge? Who else's word do we have but yours?"

  Tommy has crept close to my dad and stands now only a few feet from the witness stand, attempting to stare my father down.

  "I understand, Mr. Molto. Only my word."

  "Only yours," says Tommy Molto, and faces my father a bit longer before he goes back to the prosecution table, where he evens his notes before taking his seat.

  CHAPTER 27

  Tommy, June 22, 2009

  In the umber light of the prosecuting attorney's office, where there seemed to be only two times of day, dusk and darkness, several members of Tommy's staff awaited him, eager to be the first to shake the boss's hand. As the brass elevator doors parted, Jim Brand exited initially, wheeling the trial cart. The open-topped buggy of stainless-steel wire, which looked like an elongated grocery basket, was employed to haul the trial files and Rusty's home computer across the street to court each day. The two women in court with the PAs each day, the detective, Rory Gissling, and their paralegal, Ruta Wisz, trailed a step behind Jim. As soon as they were all buzzed inside the office's steel-reinforced door, a round of applause broke out from a gauntlet of employees, many of whom had been in the courtroom pews to take in the cross-examination. Accepting handshakes and fist knocks, Tommy proceeded behind the cart down the dim hall toward the PA's corner office. It was a little like a scene in one of those old movies about Rome, where the conquerors entered a walled city behind a carriage bearing the remains of the former ruler.

  The deputies hooted jokes comparing Rusty to butchered meat.

  "He was turning like a chicken on a spit, Boss."

  "Welcome to Benihana. Chef Tommy will slice and dice."

  Even Judge Yee had caught Tommy's eye for a second when they recessed and nodded in respect. Truth told, Tommy was a bit at sea with all the acclaim. He had recognized long ago that he was the kind of man who did not really feel good when he succeeded. It was another of his embarrassing little secrets, tempered in the last few years by the realization that there were a lot more people like him than you might think. But when things went really well for Tommy Molto, he often felt guilty, convinced deep down he did not fully deserve it. Even Dominga's love was something he sometimes felt he was unworthy of. It was all too typical that even while he knew he was inflicting serious wounds on Sabich, Tommy had felt some worry begin to nag at him.

  Yet with all that said, there was no taking away the fact he had been really good up there. He knew better than to give himself too much credit. You could prepare and prepare, but cross-examination was a tightrope act, and sometimes you ended up sure-footed and sometimes you fell on your head, and a lot of it was simply in the stars. Until Rusty tried to score by saying he didn't see Barbara eat the foods that had obviously killed her, Tommy had never completely realized how absurd it was to think she'd died by accident. That had been a great moment for him, and there were a few others--and he'd committed some miscues, too, opened the door too wide a couple of times, which always happened. But on balance, the rationale of the prosecution had seemed like a trumpet blast in the courtroom.

  Even the mob of reporters outside the courthouse finally seemed impressed. Tommy had few total fans in the press. He tended to stiffen up in front of cameras, and the relentless personality that served him well in the courtroom didn't go down well with journalists, who hated being treated as the adversaries they often were. And these days, with that crowd, Tommy was pla
ying with one hand behind his back anyway. As soon as Yee was appointed, Stern had filed a sealed motion about the DNA results from the first trial. Ruling in chambers, outside the open public record, Yee not only sequestered the DNA results, as Tommy had long predicted, but required the prosecution to identify anybody aware of them and placed each person under court order not to discuss the test until the verdict. It amounted to the judge announcing there would be contempt proceedings if the test results leaked. In the meantime, the papers--no doubt with Stern's encouragement--spun out the revenge theory every day, going through the first trial in detail, emphasizing the way the case had fallen apart and frequently mentioning that afterward, Tommy had been investigated for a year before returning to work. Tommy, who had long since stopped expecting fairness from the American press, could venture no response, except that the record would be clear by the time the case was over. But after his performance today, especially when the DNA results became public, Tommy knew that no lawyer or journalist would say anything except that Jim Brand and he had brought a case they had to prosecute.

  Several deputies continued to accost them as they proceeded down the hall. When they reached Tommy's office, though, he stood in his door like a reluctant host. He allowed only his trial team to join him. He accepted a few more handshakes, then clapped several times to encourage everyone to return to work. The people in this office knew better than to declare victory at the midpoint in a trial, and the fact that so many of them wanted to celebrate the cross actually betrayed their own doubts about the case, the fact that it all sounded better than they might have expected. Many of the most experienced lawyers knew there was still a good chance they would not be in here drinking champagne after the verdict.