The Burden of Proof

  And while his reputation was devastated, the actual bricks and mortar of Dixon’s business life would begin to collapse. Competitors would vigorously woo Dixon’s stunned clients, and key employees would start freshening their résumés. In light of the RICO charges, a restraining order would be entered at once, tying up all of Dixon’s visible assets, so that Stern would have to call Klonsky for permission before Dixon could cash a check for spending money. The reporters would lurk outside Dixon’s home and call him on his private line at work. And Dixon, everywhere, would see some reflex of aversion or harsh judgment pass behind the eyes of each person he met. To Stern, this remained unfathomable—it was impossible to think of Dixon brought so low or, more pertinently, being able to soldier on in the face of such disgrace.

  “Here’s what I think,” said the judge. She had finished reading Marta’s cases and apparently was not even going to allow argument. “I think these opinions are not on point. In this circuit, under decisions like Feldman and Walsh, an attorney must make a specific showing in support as to each question asked or item sought for which the privilege is claimed. The privilege must actually, not potentially, apply. From this I conclude that the privilege does not protect Mr. Stern or any other witness from answering whether he has a subpoenaed item in his possession. Otherwise, the court and counsel might become embroiled in lengthy proceedings that are, in reality, pointless. Accordingly, Ms. Stern, I am going to overrule your objection and order your client to answer. Now.” The judge laid her long hands on the tabletop. She wore no jewelry other than a slim wedding band, and her nails were unpolished. “I would like to know whether or not your client intends to respond, since I’d rather have some time to reflect before dealing with any contempt. Why don’t you use my study to confer?”

  “I think she’s right,” said Marta as soon as she had closed the door to the study.

  “Of course, she is,” said Stern. The room was compact—probably the quarters for a scrivener when the building was first erected. There was a wall of books, and various photos of Jason Winchell, and also a dog, an Irish setter, in the phases of its life from puppyhood to mothering a litter. The dog’s eyes were green and eerie in the light of the flash as her pups suckled beneath her. “Your desire is that I answer this question?”

  “That’s my advice,” said his daughter.

  They returned to the table. Marta said that Stern would answer. The prosecutors showed nothing, but the judge nodded. She was pleased.

  “All right, now,” said the judge. “What’s the next question going to be? I’d like to avoid wasting the grand jurors’ time—I don’t want all of you trooping back and forth repeatedly.”

  “Well, what’s the answer to the question?” asked Sennett.

  The judge looked at Stern, and Marta raised a hand to prevent her father from speaking.

  “I believe my client will indicate that he has the safe in his possession.” Marta knew this much, having seen the safe in the office again. But Stern had kept to himself what had further transpired between Dixon and him, and Marta, to her credit, had not inquired. She took seriously her father’s obligation to maintain Dixon’s confidences.

  With the news that Stern had the safe, Sennett wheeled about and gave Klonsky a look. Perhaps he had been betting against that. Sonny did not respond. In the grand jury, she was businesslike, but now, confronting the consequences, she was considerably less animated and seemed increasingly withdrawn from the proceedings, which Sennett was conducting more or less on his own. She was paler, showing less of her usual rosy glow. Stern could not help thinking of Kate or taking small comfort from what he viewed as signs of Sonny’s sympathy.

  “Next question,” said the judge again.

  “The next question,” said Sennett, “is whether the safe, including its contents, is in the same condition as when Mr. Stern received it or whether, to his knowledge, anything has been removed.”

  Marta started to object, but the judge was already shaking her head. One question at a time, she told Sennett. He whispered to Klonsky, who somewhat listlessly shrugged.

  “The question,” he said, “is whether, to the best of Mr. Stern’s knowledge, anything has been removed from the safe since the time the subpoena was served.”

  This, regrettably, was a clever improvement. As reframed, the question followed the lines of the judge’s prior ruling and went no further than asking whether Stern had maintained possession of what had been subpoenaed from him. Sennett was working in increments. If Stern answered that nothing had been removed since Sonny served him, Sennett would attempt to move back to the time Stern had received the safe. That might be more objectionable. Of course, Stern realized, he was never going to answer the first question.

  “All right now, Ms. Stern, any objection to that question?”

  “Asking him if he knows,” said Marta, “doesn’t distinguish between what his client might have told him and what he has learned on his own.”

  “We’ll limit the question to exclude any communications with his client,” interjected Sennett.

  “So the question, then,” said the judge, “is, leaving aside client communications, does Mr. Stern know of anything removed from the safe since the time the subpoena was first served upon him”

  Sennett nodded. That was the question.

  “Any further objections?” asked the judge.

  Stern whispered to Marta: Assert privilege. She did, stating that the question still called upon knowledge gained in the attorney-client relationship and might reveal the attorney’s own mental impressions.

  “Very well,” said the judge, “I’ll overrule those objections. This question, no less than the one before it, simply deals with what is and is not in respondent’s possession, without regard to client communications. Therefore, I’ll order Mr. Stern to answer. Again, I’d prefer to know now whether he intends to respond.” The judge once more gestured grandly to her study.

  “No,” said Stern when they were alone.

  “Daddy!”

  “I shall not answer.”

  “Why not?”

  “I cannot respond.” There was a small sofa, a love seat of heavy brown tweed, and Stern fell down upon it. He suddenly felt quite tired. Marta remained on her feet. “You told me before he took the safe that he’d never let you open it.”

  “True,” said Stern.

  “So you don’t know if anything has been removed.” Marta stared at her father. “How could you know?”

  He shook his head—he would not answer.

  “Come on,” she said.

  Stern glanced up at the walls—the judge had various citations there, a medal from a woman’s group. As Stern would have guessed, she kept a cluttered desk here in her private space.

  “If I were to answer,” said Stern, “that to my knowledge the contents of the safe are not the same, what would transpire?”

  “They’d ask you what’s missing, how you know it’s gone, who had access to the safe, where it was located, whether you know who’s got what was taken.” Marta was counting off the questions on her fingers.

  “And would our privilege objections to such questions be sustained?”

  “Maybe. To some of them. It depends how you know.”

  “Perhaps to some. But certainly Judge Winchell would require that I state who had access to the safe or where it may have been located.”

  “That’s a reasonable guess,” Marta said. “Are you really telling me that he took something out of there and you know it?”

  Once more, he refused to answer her.

  “Dad—”

  “Marta, if I testify that Dixon took the safe, that Dixon returned the safe, and that some item is missing, what inference will the prosecutors and the grand jury draw?”

  “That’s obvious.”

  “Just so,” said Stern. “And thus I cannot indulge this line of inquiry. I shall not give answers that imply wrongdoing by my client. Nor, frankly, have I any intention of responding to questions from
anyone about the safe’s contents.”

  “On what grounds?”

  Stern, baffled, thought an instant. “The right to privacy.”

  There was no such thing in criminal proceedings. They both understood that. Marta studied her father. Stern knew the internal race taking place, the mind dashing ahead of the emotions. Somewhere, if she was nimble enough, there was an argument to be made that would persuade him, save him from himself. Her small dark eyes were intent.

  “You’re not being asked any of those questions now,” she said. “All they want to know is whether the contents of the safe are the same. Yes or no. If you have a problem later, we’ll deal with it then.”

  “I refuse. Once we start down that road, there is no logical stopping point.”

  Marta groaned. “What was in the safe?”

  Stern shook his head.

  “How do you know?”

  He shook his head again.

  Marta watched him with the same driven concentration.

  “Aunt Silvia,” she said at last. “She told you. You’re protecting her.”

  “You are brilliant, Marta, but not correct.”

  “I don’t understand this,” Marta said. “I don’t understand what you think you know. And I don’t understand your loyalty to him. Don’t you hate him? After all the stuff he’s pulled?”

  Stern hesitated.

  “Come on,” said his daughter.

  “I have a duty to Dixon. The government can seek evidence against him in every other corner of the world, and seems to have done so. He is entitled to know that his lawyer will not join the melee.”

  “You don’t have a duty to violate court orders. This is a matter of personal philosophy, not law.”

  “So far as I am concerned, Marta, this is not discretionary. And if it were, I would not use the legal system to settle my differences with Dixon.”

  Frustrated, Marta threw down her hand.

  “What about the Fifth?” she asked suddenly.

  “No,” said Stern. “In my judgment, Dixon has no Fifth Amendment rights in these circumstances.”

  “No, no. What about you? You can be innocent and assert the Fifth. If you disclose that something was taken while you were under subpoena, you might be incriminating yourself. You’ve got a Fifth.” Marta was excited. She had convinced herself this was the solution.

  Resolutely, Stern differed. If he did as Marta wanted, the prosecutors would promptly obtain a use immunity order dissolving his Fifth Amendment rights. Nothing would have been gained and the judge would feel taunted by the desperate tactics.

  Defeated, Marta sat down beside him.

  “I don’t understand this. How can you do this to yourself, just to suit him?”

  “If I were to suit your uncle, I would commit perjury and solve all my problems. Perhaps I am simply too much of a coward to adopt that approach.”

  “Daddy, please. If you confront her in an area like this, where we have no legitimate grounds to resist, she’ll put you in jail.”

  “Then that is what will occur.”

  His daughter looked at him for some time.

  “Jesus Christ,” said Marta. “And you complain about him as a client. What was in the goddamn safe?”

  He shook his head again.

  They returned to the table. The judge and the court reporters were chatting about movies.

  “All right, on the record,” said the judge.

  Marta folded her hands, placed them squarely on the table before her, and announced that Stern would refuse to answer the question posed, on the grounds of the attorney-client privilege and the Sixth Amendment’s guarantee of the right to counsel. The judge, the prosecutors, even the court reporters took a second to absorb this.

  “Move contempt,” said Sennett at last.

  “My client believes that the government is attempting to use him as a witness against his client,” added Marta.

  “Whether that is true or not,” said Judge Winchell, whose eyes were cast to the floor, “he must answer. Neither the attorney-client privilege nor the Constitution allows him a basis to refuse.”

  “He will not respond,” said Marta. She leaned toward the judge with erect posture and an implacable look. She betrayed not an iota of doubt. Marvelous, Stern thought, in spite of everything else.

  The judge covered her eyes with one hand.

  “Well,” she said at last. “I will reflect on how this contempt should be addressed, assuming it takes place. And I’ll listen carefully to arguments.” She straightened up. “But I want you to know, Mr. Stern, if you persist, my present intention is to remand you to the custody of the marshal, and I will leave it to the court of appeals to determine whether my order should be stayed while they consider the matter. And I also caution you that I will not terminate your grand jury appearance. You will have to go on answering the prosecutors’ questions, or refusing, as the case may be.”

  Judge Winchell had fixed him with her icy tough-guy look. No friendship. No bullshit. No symphony intermissions. They were now in the heartland of Moira Winchell’s judicial existence—her rightful authority. Sharing this look with considerable apprehension, Stern managed to nod.

  In silence, the party proceeded back down the street to the new federal building. A block away, Stan broke off. He had a luncheon speech to deliver. No doubt it disappointed him not to be there to see the marshals clap on the cuffs, but there were at least forty-five minutes more and Stan, always precise, did not have the time. He said a word or two to Klonsky and left them to proceed ensemble in the noontime heat, the sounds of downtown construction and traffic banging about them.

  Outside the grand jury room, the jurors were lounging, drinking coffee, gabbing, smoking their cigarettes. Sonny raised a hand to round them up.

  She stood with Stern and Marta before the door.

  “I know this is a matter of principle for you,” she said to Stern. She put her hand on his, a mildly shocking gesture in the surroundings. “But I think this is a mistake. Please reconsider.”

  In the grand jury room, Stern resumed his seat. Klonsky read the first question from her notes: Was he in possession of the safe?

  “I am.”

  She studied her pad again.

  “Leaving aside client communications, does Mr. Stern—strike that—do you know of anything removed from the safe since the time the subpoena, G.J. 89–86 Exhibit 192, was first served upon you?”

  “I decline to answer.”

  Sonny peered at him, pale, grim.

  “State the grounds.”

  They were quickly finished. The grand jurors groaned when Klonsky called another recess.

  Marta was standing immediately outside the door. “Shit,” she said as it opened.

  Klonsky asked Barney Hill, the grand jury clerk, to call Judge Winchell’s secretary to tell her they were on the way back. The four of them headed out onto the street. Marta lagged behind with Stern, and spoke to him heatedly.

  “Now I’m going to beg and plead. I’ll use everything—thirty years of service in this court, Mommy’s death, everything. And I don’t want any back talk. Do you hear me?”

  He nodded to her, smiling a bit, and marched down the street, shockingly free of apprehension or doubt.

  The judge’s staff knew what was transpiring and went quiet as soon as they entered. The secretary called in to the judge to announce their return, but the door to the chambers remained closed, and the four of them—Stern and his daughter, Klonsky and the court reporter—waited in the judge’s anteroom. Sonny, if anything, appeared paler. She took the lone seat across from Stern, her lips drawn into her mouth, her jaw gripped firmly, while she stared into space. She was, Stern thought to himself, in a kind of remote observation, so terribly pretty. Then Bud Bailey, one of the deputy marshals, blundered through the door, a sweet bald-headed oaf, with his gun and uniform and jangling keys. His arrival jarred Stern, like a note of music misplayed.

  Bailey greeted both Stern and Klonsky by name, t
hen looked at the judge’s secretary. “She rang?” Sonny had sat up tensely with Bailey’s appearance.

  The secretary sent Bailey in first. He would be getting instructions about taking Stern into custody. Stern had imagined all this and felt well girded. He would be escorted to the marshal’s lockup, a mesh-fenced holding pen on the third floor which looked much like a birdcage for human beings. He would sit there for an hour or two. If the motion judge in the court of appeals did not rule promptly, he would be transported by jail van to the federal correctional center. There he would be asked to disrobe completely, then searched from head to toe and made to bend over while the guard examined his anus with the beam of a flashlight. Afterwards, he would be given a blue jumpsuit. He would not be inside long. They had drafted the petition for a stay last night; Marta had it with her and would go at once to the twelfth floor to file it. Marta and he had contacted George Mason, president of the county bar association, a figure of prominence, who promised to attempt to get his Board of Governors to file an amicus brief. In any event, Mason would organize dozens of lawyers who would join in a petition to the court of appeals. The court, most surely, would order Stern’s release and set an expedited schedule for briefing and arguments. To proceed with the appeal, Marta had already insisted on deferring to Mason, a decision with which Stern agreed. The question, of course—the real question—was what he would do once the court of appeals ruled against him and he was required to respond in the grand jury or return to jail.