Innocent

  "A perfect ten," said Rory Gissling when Tommy returned from a quick call to Dominga. Tommy had gotten just one second on the phone with his wife. Talking and sometimes downright sassy, Tomaso was frequently a trial to his mother these days.

  "Y'know," answered Tommy, but added nothing else for quite some time.

  The four of them were around Tommy's big desk. Jim and he had dumped their coats and propped their feet up on the public property.

  Rory said, "I think Yee should have let you get into the girl."

  "Yee isn't going to let us get to the girl," said Tommy. "And I think I've figured out why."

  "Because he doesn't want to get reversed," said Brand, employing the steady refrain whenever they talked about Judge Yee.

  "It's because he knows we don't need it. You'll have twelve people in the jury room. Between all of them, they'll have lived, say, at least five hundred years. And what's the first thing anybody says when you hear about a middle-aged guy dumping his college sweetheart?"

  Rory laughed. She took the point. "He must have something going on the side."

  "That's exactly what half the people in that room are going to say. And frankly, whatever the bunch of them make up is probably a ton better than anything we can prove."

  Brand took his feet down and leaned forward. "So what are you worried about?"

  Brand was the only person here who knew Tommy well enough to see it. Tommy took a second to search himself, but he still couldn't quite identify the answer.

  "Sandy Stern is a counterpuncher," he said. "That's one thing." Stern had always understood that a trial is a war of expectations, where no one could always control the courtroom mood. Sandy knew he could survive the prosecutors having a good day, even a good week, as long as he could come back. In fact, it was clear now why Stern had put his client on first. Because he was going to rebuild Rusty's credibility from here. Tommy even suspected Stern had wanted Rusty to look bad at moments, so the jurors would end up somewhat shamed by their doubts when some of them were allayed. Tommy had long ago stopped trying to match chess moves with Stern in the courtroom. He would never prevail at Sandy's game. He played his own. Straight ahead every day. "You watch," Tommy said. "Stern always lives to fight another day."

  "We'll handle it," said Brand.

  "We will," said Tommy. "But you know, two weeks from now what the jury's going to remember about today is that they heard Rusty say he didn't do it. And that he didn't look bad. He was calm most of the time. He didn't get real evasive."

  "He fought too much," said Rory. Ruta, the paralegal, was watching, but she was sure to add nothing. She was a chunky blonde, twenty-nine years old, about to start law school, and thrilled just to be in the PA's office to hear these conversations.

  "He fought a little too much," said Tommy. "But he did a good job. A really good job given everything he has to answer for. But--" Tommy stopped. He suddenly knew what had been bothering him. He had pounded Sabich, but there had been a stubborn center to the man. There was not a minute when he looked as if he had killed anybody. Not that he would. Tommy had never spent a lot of time trying to figure out exactly what was wrong with Rusty, but it was something deep and complex, something Jekyll and Hyde. But he had his act down cold. No shifting eyes. Nothing apologetic. Reason was on the prosecutors' side. But the emotional content in the courtroom had been more complex. True, there was an insanely long list of things Rusty had to pass off as coincidental--Harnason, the fingerprints, picking up the phenelzine, going for the wine and cheese, the Web searches about the drug. But against his will, Tommy had experienced a second or two of intense frustration with the placid way Rusty explained it all. Sabich probably deserved his own chapter in the DSM to define his psychopathology, but after thirty years as a prosecutor, there was a lie detector in Tommy's gut that he trusted better than even the best operator interpreting the box's fluttering styluses. And somebody on that jury, maybe most of them, must have seen the same thing Tommy saw. Even if Rusty was the only person in room who fully believed it, he had somehow convinced himself he wasn't guilty.

  "How did you like him blaming the wife for Googling phenelzine on his computer?" Brand asked. "That's nuts. Like she's taken this drug for twelve years and doesn't know everything about it."

  "He had to go there," Rory said.

  Tommy agreed. "He had to. Otherwise how can he explain just skipping off to the store and buying everything in the place that had a chance of killing her? You read those sites, you have to say, 'No, no, honey, we're gonna have tortilla chips and guacamole.' At least you would talk to her about it."

  "But he blamed her for shredding the e-mail messages, too," said Brand.

  Rory was shaking her head. "That was actually the one decent point he made," she said. "Why does he shred the e-mail but not the cached stuff for his Web browser?"

  "Because he fucking forgot," said Brand. "Because he was getting ready to kill his wife, and that makes even somebody like him a little nervous and scattered. That's the same crappy argument you hear in every case. 'If I'm such a smart crook, why did I get caught?' I mean, he did. Besides, maybe he ran out of time."

  "Before what?" asked Rory.

  "Before she hit her expiration date. He's a sick fuck," said Brand. "He obviously decided he's gonna let the mama see her baby one last time before he sends her to the great beyond. I mean, that's a sick fuck's idea of kindness."

  Listening to the byplay, Tommy sank a little further into himself. There was something about Brand calling Rusty a 'sick fuck' that troubled him. It was not as if calling Rusty names were unwarranted--what else could you say about a guy who elaborately planned the murder of a second woman after getting away with killing a first? But the truth was that in that entire courtroom, there was nobody who knew Rusty Sabich as roundly as Tommy himself. Not the judge's lawyer--not even Rusty's kid. Tommy had met Rusty thirty-five years ago when Tommy was still a law student and he'd worked on the Matuzek case, the bribery trial of a county commissioner where Rusty was the third trial chair for Ray Horgan. Since then, Tommy had observed the man from every angle--labored in the office next door to him, tried cases beside him, been supervised and bossed by him, watched Rusty as a defendant across the courtroom and then as a judge on the bench. In the early days, especially before Nat was born, they had actually been close. When Tommy was hired, Rusty and Tommy's high school bud Nico Della Guardia often hung on the weekends, and Tommy frequently joined them. They went to Trappers games, got slammed together more than once. The three of them sat around smoking three Cubans Nico had gotten hold of when Rusty came back into the office the day after Nathaniel was born. In time, Tommy had learned to like Rusty less. As Sabich advanced in the office, usually at Nico's expense, he had become aloof and impressed with himself. And after Carolyn's trial, when Tommy had returned here after being investigated for a year, he had seen Rusty's face as nothing but an ill-fitting mask that feigned unconvincing welcome whenever the two men met.

  But still. Still. Tommy did not often bother asking himself why or how, in this job. You saw people go wrong: beloved priests who'd helped bring God into the lives of thousands of people, who ended up videotaping their tricks with naked six-year-olds; multizillionaires who owned football teams and shopping centers, and who'd cheat somebody out of fifteen grand because they always had to have an edge; pols elected as long-recognized reformers, who were barely sworn into office before they had their hands out for bribes. Tommy didn't try to understand why some people needed to defy themselves. That was above his pay grade. His duty was to follow the evidence, present it to twelve good people, and move on to the next case. But after three and a half decades, he knew one thing about Rusty Sabich: He was not a sick fuck. Wound tight? And how. Capable of obsessing on a woman like Carolyn so she became the only truth he knew or cared about? That could happen, too. He could have raged and choked her and then covered up. But the one thing Tommy always demanded of himself as he sat in the high-backed leather chair in which the PAs h
ad been putting their butts for the last two decades was honesty. And confronting Rusty in the courtroom had ended up forcing Tommy to face off with questions he'd been pushing aside for close to a year. And this was what had most disturbed him: A crime as calculated as this one, planned for months and executed over the course of a week, didn't seem within the compass of the man Tommy had known so long.

  Tommy realized nobody was meaner to him than Tomassino Molto III. He liked to make himself suffer, and he was doing that now. It was his Catholic martyr thing. In a minute, in an hour, he'd have his legs under him again. But there was no further point in battling. It was one of those thoughts you didn't want to have that you had anyway--like thinking about the instant you would die or what life would be like if something happened to Tomaso. Now, while Brand and Rory bantered, Tommy dwelled for a minute on an idea that had not visited him in months. It was against the odds, against the evidence and the course of pure reason, but he asked himself anyway. What if Rusty was innocent?

  CHAPTER 28

  Nat, June 22, 2009

  We return as we have done each night to the fancy-schmancy offices of Stern & Stern. Sandy is one of those up-from-nothing guys who likes to be surrounded by the evidence of his success, and Marta, whose casualness seems like a deliberate contrast to her father, jokes behind his back that it all reminds her of an upscale steakhouse--lots of dark wood and low light through the stained-glass lamps, pleated leather furniture and crystal decanters on the conference room tables. There is also a tony quiet here compared with the atmosphere in most other law offices I've visited, as if Sandy is above routine disturbances. Here the phones blink rather than ring, and the computer keyboards are muted.

  But a different silence has prevailed since we packed up to leave court. Stern is rigorous about discussing nothing within earshot of anyone who might be an unsuspected ally of Molto's or a relative of a juror's, and as result I have learned that when we are in the courthouse, elevator talk is confined to current events, preferably uncontroversial ones, like sports. But tonight we rode down without a word being spoken, not even the usual harmless drivel. Although it's only a few blocks back to the LeSueur Building, Sandy must drive these days, and he asked me to join him and my dad in his Cadillac, because he wants to discuss my testimony for the defense, which is expected to start late in the day tomorrow. Sometimes on the way out of the courthouse, Sandy will make a remark to the immense press horde that awaits the lawyers on both sides each evening, but we struggled through tonight with Sandy limping along, muttering, 'No comment.'

  Even in the privacy of the car, we said next to nothing. Everybody plainly wants some time to recharge and to assess how much damage Molto did. My dad looked out the window the whole time, and I could not keep from thinking of some dude on a prison bus, passing by the streets he will no longer stroll.

  Upstairs, the usual apres-court procedure is reversed. My dad goes off with Marta, while Stern takes me into his large office and closes the door. He orders up a soft drink for each of us from one of his assistants and we sit side by side in a couple of tall maroon leather chairs. Sandy's office has the precious feel of a museum, the walls full of pastel sketches of Stern in court, with many of the exhibits from his most famous trials in little plastic boxes on the tables. I am afraid even to put down my glass until he points out a cork-bottomed coaster.

  As it turns out, my meeting with Stern is largely diplomatic. My initial interviews on the case, where I learned about the evidence, were with Sandy, who did his best at the time to point out the bright side, namely that Tommy had made no mention of the death penalty and had also agreed to allow my father to have bail. But usually when I'm in the office, I'm doing what I can to help Marta. As a result, Marta and he have decided it would be better if she presented my testimony. Stern wants to be sure that I have no objections.

  "I love Marta," I tell him.

  "Yes, you seem simpatico. I'm sure you'll make a good impression on the jurors together." He sips a moment. "So, what was the assessment from the spectators' seats? What did you make of today's proceedings?" Among Stern's many strengths, which I have observed in the last month, is utter fearlessness about feedback. I'm sure he also wants to take a seismic reading on the emotional state in which I'll testify.

  "I thought Molto did a very good job."

  "As did I." The unproductive cough comes then, as it often does, as punctuation. "Tommy has become a better lawyer with age, with the flame turned down on his jets. But that was as good as I have seen him."

  I've wondered why Marta and he decided to put my father on first, and I ask. "Anna says defendants almost always testify last."

  "True. But it seemed better here to alter the normal course."

  "To screw up Tommy?" That was Anna's guess.

  "Admittedly, I was hoping to catch Tommy unaware, but that was not the principal goal." Stern looks off in space for a second, trying to measure how much he can say, given the fact that I will be on the stand again tomorrow. In the light of the table lamp beside us, the rash on the right side of his face seems to have receded just a tad today. "Frankly, Nat, I wanted to make sure we had time to recover if your father's testimony ended up in catastrophe."

  There is a lot in that one sentence.

  "Does that mean you didn't want him up there?"

  In the intervals when Stern used to get time to think with his cigar, he now draws a finger across his lips.

  "Generally speaking, a defendant is better off if he testifies. About seventy percent of acquittals, Nat, come in cases in which the defendant takes the stand in his own defense. The jury wants to hear what he has to say about all of this, and that's especially true in a case like this one, where the defendant is a law-trained individual, familiar with the courts and accustomed to speaking in public."

  "I hear a 'but' in there."

  Sandy smiles. I have the sense both the Sterns really like me. I know they feel for me, which is true of a lot of people these days. Mom dead. Dad on trial. There has been no end to folks telling me I'll remember this period the rest of my life, which offers not the remotest clue how to get through it.

  "In a circumstantial case like this one, Nat, where the evidence is so diffuse, you take the risk of allowing the prosecutor to make his closing argument in cross-examination. It's hard for a jury to see how all the pieces fit together, and you'd rather not allow the PAs to demonstrate that twice. It was a very close question, but all in all, I thought your father was better off not testifying. It was certainly not as risky. But your father chose otherwise."

  "So are you disappointed now?"

  "Hardly. No, no. Tommy was better organized than I might have hoped, and for the most part he didn't allow himself to become distracted, even when your father goaded him a bit. The chemistry between the two of them is a bit mystical, don't you think? They have been antagonists for decades, but they seem to hold attitudes toward one another that are too complex to be called raw hatred. But all in all, everything that occurred today was within the zone of expectations. Your father was an A minus and Tommy was an A plus, but that's tolerable. If I had known in advance it would have turned out with that kind of marginal loss, I would have been in favor of your father's testimony. The jury heard him say he is innocent. And he looked composed at all times."

  "So what were you worried about?"

  A phone call comes in then, and Stern struggles to his feet. He speaks only a minute but takes the opportunity once he is done to hang his coat behind the door along the way. It is a jarring sight to see him so slender, half the man I remember. He is using suspenders to support his trousers, and the pants gap on him so much that he looks almost like a circus clown. His knee is virtually paralyzed by the arthritis, and he collapses backward when he resumes the chair. But despite his discomforts, he still has my question in mind.

  "There is no end of things that can go wrong when a defendant testifies. One of the possibilities that most concerned me was that Molto would make the very motion t
o Judge Yee he did at the start of cross-examination." Sandy is referring to Molto's attempt to question my dad in front of the jury about his affair. "I was fairly confident Judge Yee would not change his mind now, but the issue was hardly free from doubt. Many judges would have yielded to the prosecutors' arguments that these events were part of the whole story."

  I actually grunt considering the prospect. Stern has told me that it's paramount for the jury to see I'm supporting my dad, but it would have been horrible for me to sit through that. When I say that to Stern, he frowns a bit.

  "I don't think your father would have allowed that to occur, Nat. I never pressed the point, but I believe he was determined not to answer any questions about that young woman, whoever she is, even if Judge Yee held him in contempt before the jury or struck his testimony. Either of those events, needless to mention, would have been disastrous."

  I struggle with this news, as Stern watches.

  "You are unsettled," he says.

  "I'm pissed that he'd fuck up his chances to go free to protect that girl. He doesn't owe her that."

  "Just so," he responds. "Which is why I suspect it was you more than this young woman he was seeking to spare."

  This is the advocate as artist. A trial is sometimes like a great play, where the air of the entire theater fills up with the currents of emotion and each line resounds in the present tense from a hundred different angles. And Stern is like one of those amazing actors who seem to be holding the hand of everybody in the place. His unspoken sympathies are magical, but I'm not really buying it now.