Innocent

  The problem was going to be Brand, who had begun making a case after court. Even though the card was real, he said, there was no way to prove Rusty wasn't the one who had created it last September. It was on his computer, after all. He had planned to kill Barbara, hoping it would be taken as a death by natural causes, but if anybody saw through that, Sabich would haul out this suicide/frame-up stuff in stages.

  And given the realities, Jimmy might even be right. After all, who killed herself to set up somebody else? But Tommy had made the essential point to Brand a long time ago: Rusty Sabich was too smart, and too wary of Tommy, to kill his wife, except in a way that would virtually prohibit conviction. Even if Sabich had orchestrated it all this way, he had the better argument. Could he have planted that card and left his prints on the phenelzine or the Web searches on his computer? Tommy and Brand were screwed. If they tried to account for the new evidence, they would be stuck trying to add a third floor to their theory, when they'd already built the house and taken the jury on a tour. Sure, if they had been allowed to prove that Rusty already got away with killing one woman, then the jurors might believe he'd schemed so elaborately to murder another. But Yee was not going back on those rulings at this stage. And as far as the record was concerned, it was Barbara, not Rusty, who was the computer geek and knew how to seed that card in September to bloom at year end.

  If the PAs hung tough on their case, then Yee would probably dismiss them out. You could see that on the judge's face yesterday. They could try now to persuade him to let the case go to verdict, arguing that it was the jury's right exclusively to decide what witnesses to believe. But Yee would never buy that. The issue wasn't credibility. The prosecutors' evidence provided no way to conclude beyond a reasonable doubt that this was murder rather than suicide. It was a null set, as the math guys say--the proof came to nothing.

  So they were where they were. If they stood down on the case now, they would be good guys who just did their jobs and followed the evidence where it seemed to lead. If they pressed on, as Brand would want, they would be embittered crusaders who couldn't face the truth.

  By now, having again thought through everything he had pondered the night before, Tommy had arrived in the marble lobby of the old County Building, acknowledging the familiar faces arriving to start the workday. Nobody came over to chat, which was a sign of how deeply the news coverage last night before had cut. Goldy, the elevator operator, who'd looked old when Tommy started here thirty years ago, took him up and he passed through the office door.

  Down the long dim hall, Tommy could see Brand waiting for him. It was going to be a hard conversation, and as Molto approached he was looking for words, wishing he had spent some time thinking about what to tell a man who was not simply his most loyal deputy, but also his best friend. When Tommy was about fifty feet away, Brand started dancing.

  Too astonished to move any farther, Tommy watched as Jim did the kind of hip-hop juke that NFL players performed in the end zone. He knew Brand well enough to realize that Jim, who'd run back several interceptions for TDs in his time, had practiced these steps in front of the bathroom mirror, wishing he hadn't been born a generation too soon.

  Brand's gyrations were taking him Tommy's way, and when he got closer, Molto could hear him singing, although you wouldn't call it much of a tune. He belted out a word or two each time he hopped from one foot to the other.

  "Rus-ty.

  "Gone down.

  "Rus-ty.

  "Gone down.

  "Rus-ty.

  "Gone away.

  "Rus-ty.

  "Gone away.

  "Rus-ty.

  "Gone to the Big House."

  Despite being well off meter, he sang the last line like a Broadway performer with his arms thrown wide and at booming volume. Several secretaries and cops and other deputies had stopped to witness the performance.

  "You go, girl," one of them remarked, which filled the hallway with laughter.

  "What?" Molto asked.

  Brand was too exultant to talk. Smiling hugely, he came up to Tommy and bent down to clutch the boss, a good eight inches shorter, in a fierce embrace. Then he walked the PA into his own office, where someone was waiting. It turned out to be Gorvetich, who resembled a scraggly version of Edward G. Robinson in his latter days.

  "Tell him," said Brand. "Milo had an amazing idea last night."

  Gorvetich scratched for a second at his yellowish goatee. "It was really Jim's idea," he said.

  "Not even close," said Brand.

  "Whoever," said Tommy. "You can share the Nobel Prize. What's the scoop?"

  Gorvetich shrugged. "You remember when I met you, Tom, you were catching hell from the appellate judges."

  Tommy nodded. "They didn't want us looking at the internal court documents on Rusty's computer."

  "Right. And so we imaged the hard drive--"

  "Made a copy," said Molto.

  "An exact copy. And we turned the actual computer over to the chief judge there."

  "Mason."

  "Judge Mason. Well, Jim and I were talking last night, and we decided that just to be sure about this Christmas card, we should go back and look at the image of Sabich's hard drive we made last November, when you first seized the computer. And we did. And that object, the card? It's not there."

  Tommy sat down in his big chair and looked at both of them. His first reaction was to distrust Gorvetich. The old man was no match for Brand and must have been pushed into a critical mistake by his former student.

  "I thought the card was made up last September before Barbara died?" Molto asked.

  "As did I," said Gorvetich. "It gives every appearance. But it wasn't. Because it's not on the image. It was placed on the computer after we first seized it."

  "When?"

  "Well, I don't know. Because the .pst file now bears yesterday's date."

  "Because the defense opened that file in court when they turned on the computer," Brand said. He was too happy right now to remind Tommy that he'd warned against letting the Sterns do that.

  "Exactly," said Gorvetich. "But the card had to have been added during the month the PC was over at Judge Mason's. It was shrink-wrapped and sealed right in Judge Mason's chambers the day Judge Yee ordered it returned to our custody."

  Tommy thought. Somehow it was Stern's words yesterday that came back to him: 'Interesting case.'

  "Where was the image?"

  "The imaged copy of the hard drive was preserved on an external drive in your evidence room. Jim got it out and burned a copy for me last night."

  Tommy didn't like that at all. "Sandy's guys weren't with you?"

  Brand broke in. "If you're worried that they'll claim we screwed with the image, we gave them a copy when we made it. They can look at this themselves on their copy. The card won't be there."

  Gorvetich explained that the image had been made with a program called Evidence Tool Kit. The software's algorithms were proprietary and the image could be deciphered only with the same software, which by design was read-only to ensure that no one could attempt to alter an image after it was made.

  "I guarantee you, Tommy," Gorvetich said, "Rusty found a way to put this on there."

  Molto asked how Rusty could have done that. Gorvetich was not positive, but after thinking on it all night, he had a working theory. There was a piece of software called Office Spy, a hacker's invention now available as Internet shareware, that allowed someone to go into a calendar program and recast the objects stored there. You could roll back the date on a reminder, erase an incriminating entry from the calendar, or omit--or add--the names of people who had been at a critical meeting. Once the new object--the Christmas card, in this case--had been inserted on Sabich's computer, Office Spy had to be removed from the hard drive with shredding software, and then that software itself also had to be deleted, which required manual changes to registry files. Not only was the object--the card--missing on the image from last fall, but now that Gorvetich had made the compa
rison, he'd noticed subtle differences in the debris remnants of the shredding software held in various empty sectors of the drive. The implication was that shredding software had been added and removed from the computer twice, once before Barbara's death and once after the computer had first been seized.

  "I thought Mason had the computer completely secure."

  "He did. Or he thought he did," said Gorvetich.

  "I mean, Jesus, Boss. Rusty ran that court for thirteen years. You think he didn't have the keys to everything? It would have been better to examine the fucking drive again when we got it back, but Mason said he made a log of everything Rusty's people looked at, and Yee just ordered the computer sealed as a condition of returning it to our custody. We couldn't start arguing with him about that."

  Tommy explained it to himself again. Barbara didn't create the Christmas card, because Barbara was dead when that happened. And the only person who had anything to gain from placing the card on the calendar was Rusty Sabich. So much for the crap that Rusty didn't know about computers.

  Tommy finally laughed out loud. It wasn't glee he felt so much as amazement.

  "Boy, am I going to enjoy my conversation with that arrogant little Argentinian," said Molto. "Boy," he repeated.

  Across the room, Brand, who'd never sat down, lifted his hands.

  "Wanna dance?" he asked.

  CHAPTER 38

  Nat, June 25, 2009

  Just as Marta had foreseen, the prosecutors arrive in court this morning with a new theory about why my dad is guilty. Jim Brand stands up and tells Judge Yee that the prosecutors have decided overnight the Christmas card is a fraud.

  "Your Honor!" protests Sandy from his chair. He paws like a cartoon character in his labored efforts to rise. Marta finally helps haul him to his feet. "The prosecution's own expert acknowledged yesterday that this so-called object was genuine."

  "That was before we examined the image," Brand answers. He calls on pompous little Professor Gorvetich to explain his new conclusions. Before Gorvetich has stopped speaking, Marta gropes in her purse for her cell phone and is charging out of the courtroom to call Hans and Franz.

  Judge Yee is clearly losing patience. The pencil started going about halfway through Gorvetich's lecture.

  "People," he says finally, "what we doing here? Young Mr. Sabich supposed to be on witness stand. Jurors are by their phones. We trying this lawsuit or what?"

  "Your Honor," says Stern, "I had hoped the prosecutors would terminate this proceeding today. I can hardly believe this. May I ask if they actually intend to offer evidence to support their new theory about the card?"

  "You bet your life," answers Brand. "This was a fraud on the Court."

  Stern shakes his head sadly. "The defense obviously cannot proceed, Your Honor, until we have conducted our own examination."

  We all head back to Stern's to await word from Hans and Franz, who have their own copy of the imaged hard drive in storage at their office. I call Anna in the interval to tell her what has transpired. She has believed all along that when push came to shove, Tommy Molto would cheat to win, and she's certain he's trying to do it again.

  "The leopard doesn't change his spots," Anna says now. Last night, she made the same prediction as Marta that Molto would figure out some excuse to avoid dismissing.

  Hans and Franz are in the office in an hour, dressed pretty much as they were yesterday, in their designer jeans and gelled hair. It seems the boys are in the clubs every night until closing, and they look like Marta got them out of bed.

  "Even a broken clock is right twice a day," says Hans, the taller of the two. "Gorvetich is correct."

  "The card isn't on the image?" Marta asks. She had taken off her heels, perching her squat feet in her hose on one of her father's coffee tables, and nearly falls over. I groan out loud. I am sick of not knowing what to believe. The last to react is my father, who emits a shrill laugh.

  "It's Barbara," he says. He puts his fingers on the bridge of his nose and pivots his head back and forth in utter amazement. It seems like a bizarre idea, but even so, I feel instantly he may be right. "She figured out a way to do this so it wouldn't show up on the image."

  "Could that be?" Marta asks the two experts. "Could she have used something like invisible ink and created this object so it wouldn't copy?"

  Hans shakes his head but looks at Franz for confirmation. He also shakes his head emphatically.

  "No way," says Ryzard. "This software, the Evidence Tool Kit, that's like the bomb, man. Industry standard. Makes exact copy. Been used thousands of times in thousands of cases, with no variation reported."

  "You didn't know Barbara," my father says.

  "Judge," says Franz, "I got an ex-wife. Sometimes I think she got superpowers, too, especially when I get some extra money. She's like in court for more alimony before the check clears."

  "You didn't know Barbara," my father says again.

  "Judge, listen to me," says Franz. "She would have to have known exactly what software was going to be used--"

  "You just said it's the industry standard."

  "Sixty percent of the market. But not one hundred. Then she would have had to penetrate the algorithms. And create a whole program to run counter to the software, which would launch on start-up. And which wouldn't show anywhere on the image. Or on the drive when we looked at it yesterday. I mean, dude, you can take every geek in the Silicon Valley and put them together, they couldn't do that. You're talkin every kind of impossible."

  My father studies Franz with that stupefied, still-eyed look I see on my dad so often these days.

  "So when could the card have been added?" Marta asks.

  Franz looks to Hans, who shrugs.

  "Had to be when it was over in the other judge's office."

  "Judge Mason? Why? Why not after that?"

  "Dude, the whole computer was sealed and shrink-wrapped and initialed until yesterday. You saw it. Gorvetich even made us look at the seals before they took them off in court so I would agree they were the originals. And Matteus and Gorvetich and I peeled off the last of the evidence tape and connected the monitor and CPU in the courtroom together."

  "Couldn't they have taken off the wrappings and the seals and put them back on?"

  Hans and Franz are trying to explain why that is not possible--the evidence tape says "Violated" in blue once it's peeled away--when Sandy interrupts.

  "Prosecutors don't generally tamper with evidence in order to add proof that supports a defendant's innocence. If the card is a fraud, we will not get very far with the judge or the jury by arguing that this is the prosecutors' handiwork. Either we pursue Rusty's theory about Barbara, or we find another way to explain why the imaged hard drive did not capture what was actually there."

  "Didn't happen," Hans answers definitively.

  "Then we had better see if we can counter what the PAs are bound to say."

  In the last couple of days, Stern has begun using a cane. With it, he gets around a good deal more nimbly than in the courtroom. Now he poles his way behind his desk and dials the telephone.

  "Who are you calling, Dad?" Marta asks.

  "George," Sandy answers.

  Judge Mason, still the acting chief, is not available but calls back in twenty minutes. When he comes on, Stern and he have an exchange, obviously about Sandy's health, because Stern keeps answering, "All according to plan," and, "Better than expected." Finally, Stern asks if he can put the judge on the speakerphone so the rest of the trial team can hear. I probably should not be here, but I have no thought of leaving. I was one of the people, along with Anna and my dad, who used that computer while it was in Judge Mason's chambers.

  "I've already had a conversation this morning with Tommy Molto," says the judge. "As you remember, Sandy, when we received the computer, we all agreed that no one would have access to it alone, and that I would keep a log of every document that was examined. Tom asked me for a copy of the log, and I e-mailed it to him. I'd be happy to do
the same for you."

  "Please," answers Stern.

  Judge Mason and he agree that it makes more sense to talk after we've seen the log. While we are waiting for the document to cross the Net, Stern and Marta question Hans and Franz about what would have been required to pull this off. The two have already been engaged in rapid speculation, notions whizzing and pinging like bullets in a shooting gallery, and have pretty much agreed with Gorvetich that this was done with a piece of shareware called Office Spy, which would then have to be shredded.

  "And how long would it take to do all that?" Sandy asks. "Install the software, add the object, delete the software, and clean up the registry?"

  "An hour?" answers Hans, looking to Franz.

  "Maybe me, I could do it in forty-five minutes, if I'd practiced some," says Franz. "Let's imagine I've already got Spy and the object on a flash drive, so I can save a little download time. And I've done the same operation with another PC, so I know exactly where to look to clean up the deletion of Evidence Eraser. But you know, somebody who doesn't have an extensive background? Has to be twice as long. At least."

  "At least," says Hans. "More like several hours."

  When the log shows up, it records four separate visits. My father went to the private chambers where George had my dad's PC set up on November 12, a week after the election. It was a dismal experience that caused my dad to vow no more. George witnessed this himself. My dad was there for twenty-eight minutes. He copied four documents to a flash drive, three draft opinions and one research memo from one of his clerks, and opened up his calendar and wrote down his remaining appointments for the balance of the year.

  I came a week later to copy three more draft opinions and returned the next day for one more about which I'd misunderstood my dad's instructions. Riley, one of Judge Mason's law clerks, was with me on both occasions. And I was there for twenty-two minutes the first time and six minutes the day after.