This is a desperate tactic, assailing your own witness in this fashion. Yet in a way I respect Tommy for it, for not giving up, for not abandoning his own view of the truth. Throughout his presentation, I've felt the force of a personal appeal: Don't direct me out. Don't say the case was a stinker. Let me lose on the merits - say the evidence raised too many questions to travel to the land beyond reasonable doubt. But don't say we never should have been here in the first place. Don't let the pols in the PA's Office cover themselves with told-you-so's. He's urging this for pride, and also because he knows that technically, legally, adhering to the rules he adores, the very sticks and bones of his character, he's correct. Tommy is a lawyer to the core. It's both his glory and his weakness that he believes so potently in the rules.
'But here's one thing, Judge,' says Tommy, 'about that $10,000 check from the state party. Now, I saw the check. I know it's a real check. But we still haven't heard testimony that Nile actually delivered any cash from that check to Hardcore. We haven't heard that.'
'Your Honor!' Hobie's on his feet. ‘I tried to ask that very question.'
'Sit down, Mr Turtle.' As usual, Hobie's being diversionary. He' d prefer I not notice what Tommy' s doing, which is challenging him to put Nile on the stand. Down to his last dollar, Tommy's betting he can turn his case around with Nile's cross. A good move, in these circumstances. But not bait I expect Hobie to rise to. I interrupt Tommy.
'As long as we're on the money, Mr Molto, I've heard Mr Turtle's theory - why don't you tell me yours for the cocaine traces on those bills.'
'Judge, again, that's not in evidence yet. And I'd argue, given the discovery violation, the way Mr Tuttle hid those lab results, that proof never should be received. But since you've asked, let me just say this: I think if you get paid to kill someone, you'd store the money in the same place, in the same way, you'd store other contraband. That's what I would suggest. I don't think you take it to the bank. If you have a floorboard, or a stash pad, or a medicine cabinet you pull out of the wall to hide your dope, Judge, I'd think that's where this money would go.'
'Except your witness, Hardcore, said he kept those funds carefully segregated.'
'And he must have made a mistake in saying that, I concede that,' says Tommy, although he can't quite force his glance to meet mine, as he makes this gallant admission.' He' s not the FBI, Judge. He doesn't keep an evidence log. And again, Judge. Right now, as the case stands, the defense has not actually established there was cocaine on the currency.'
He's right about that. If I end the case now, I'd reward Hobie for his miserable behavior. With that in mind, I eventually deny the motion, careful to say that my ruling reflects no evaluation of credibility and is, accordingly, no prediction of my ultimate judgment in the case. The lawyers are seated at their tables as I rule, and I eye each of them to make sure the message is clear. I have given Tommy the latitude he deserves, and the last he's getting. Singh actually grips Molto's arm in mild delight.
'Now, Mr Tuttle, where's your client?'
He asks for a recess so he can check. When I return to the bench, perhaps a quarter of an hour later, Seth, improbably, is seated beside Hobie at the defense table, drawn close to him in urgent, hushed conversation. My heart does another of those ballet jumps at the sight of him within the well of the court and comes down crashing when I take in the significance of the two of them in league. By this morning, I had put yesterday's suspicions aside to sleep-deprived paranoia.
With my appearance, Seth jumps to his feet. He parts from Hobie, with a pointed finger and a sharp downstroke of his head, leaving the impression they're cross with one another. Seth walks to the jury box, but does not step inside, waiting there in his rumpled khakis and his blazer. His tie knot is pulled down several inches from his open collar.
'Your Honor,' Hobie says. He stands but for some time says nothing. The light makes two bright balls on the open regions over his forehead. 'We'll have to adjourn, if the court please. My client cannot be located.'
We all take a moment with that.
'He's on my bond, Mr Turtle. Don't you think I'm entitled to a little fuller account?'
'Your Honor, I called him three times this morning. When he didn't appear, I asked a friend of his to go to his apartment, but he's not around. Your Honor,' he says, ‘I would speculate, estimate, if I have to - I would think, Judge Klonsky, he might, unwisely, have been doing some premature celebrating after yesterday. That's a guess.'
‘I see.' It strikes me at once that Hobie's up to something again. Briefly, I look at Seth. He's watching both Hobie and me tensely.
'Judge,' says Tommy, ‘I' m not going to agree to an adjournment. The defendant knows our schedule. I'm not agreeing at all. He's absented himself voluntarily, we should go ahead.'
'Your Honor, I don't know where Nile Eddgar is. And neither does Molto. He can't just say he's voluntarily absent. Maybe there's a car wreck. Maybe my client picked a fight in a barroom. Maybe he's in a hospital or a police station. Lord, he could be a victim of some kind of foul play. His face has been all over the TV. Who knows what's happened?'
But it's Seth and his knitted expression that has my attention. Recollecting what he told me yesterday about his continued relationship with Nile, I finally catch on.
'Mr Turtle, whom did you send to look for your client?' Caught short, Hobie doesn't answer. 'I think I should hear from him directly. Don't you, Mr Turtle?'
Hobie looks as big and empty as a kettledrum. A hand, glistening with his manicure, loiters midair. 'Well' is all he finally brings out. Seth's already started forward.
'Mr Molto,' I say, 'Mr Weissman has been a personal friend of mine for twenty-five years. I'm sure he can help inform the court, but only if that doesn't present a problem to you.'
Tommy shrugs. 'Suit yourself, Judge.'
And so the moment. Oh, it's mad! I think. Is this every woman's dream, to swear him under oath and make him speak the truth? To see if he will place her above others? Beleaguered, Seth shuffles to the center of the courtroom. What did he say? Everyone six feet below me and remote? Not remote. My heart races. As he addresses me, his eyes are deep and even. With the first word, I know he's telling me the truth.
He recites the story in a few strokes. The janitor let him into Nile's apartment. The bedroom was a mess. There were two soft-sided bags on the bed, the drawers were empty.
it looked to me like he left town,' Seth adds. Hobie has just lifted a hand in hopes of dashing that remark. Now we all are silent.
'He's fled?' The words, like so many before them, leap from me impulsively. They sail into the courtroom causing a sudden hushed consternation among the smaller group of spectators behind the glass today.
'Well, "fled," ' says Hobie. 'He had an emotional reaction to yesterday's testimony, probably. That's how I'd assess it.'
' I thought your assessment was your client was out celebrating.'
Gunned down, Hobie pulls a mouth, but otherwise looks up without apology, or resentment. We both know the score now. He takes the constant fooling around as his job, his duty. Tommy raises a hand.
'Judge, I want to proceed,' he says.
'Come on,' Hobie answers.
'Judge, we should go ahead.' Molto has not had much opportunity to ponder. All he knows is that something is different, and given where things were going, that can't be bad for him.
'I'm sure he'll turn up,' says Hobie. 'Why don't you give him a day, Your Honor?'
Tommy is on his drumbeat now. The defense should be forced to proceed.
'For Godsake, Your Honor,' answers Hobie. 'He's my only witness. I have a few stipulations, a few exhibits, and Nile. I can't proceed.'
'Two o'clock. You find your client, Mr Turtle. Otherwise, we're going on without him.'
Seth has shrunk back in the courtroom and watches somberly from the rear wall, awaiting my reaction, my judgment.
Lunch in chambers, signing orders. Annie is still clearing files from yesterday's call. Out th
e door, Marietta, who has brought in carryout, has skillfully deployed a napkin between her pizza slice and her TV. I remain agitated.
'He's up to something,' I say to Marietta from my desk.
She cocks one earphone. 'Who?'
'Hobie. Tuttle. What's he doing, Marietta?'
She shakes her head for some time. 'You know, the boy is not right, Judge. The defendant? He's crazy as a coot.' We all know that. Watching Nile day in and out you can't escape that impression. Functional, but not a mainstream personality. Eccentric.
'It's another trick. Like Dubinsky. Like the chemist's report or the check. Hobie can't walk a straight line. If Nile's run, who do you think told him to do it?' I check Annie, who, as always, listens carefully, attempting to learn from our assessments, while she continues loading files into the steel carts from the chief clerk's office.
'Probably. Only thing is, Judge,' says Marietta, 'what's he get? Molto's gonna kick and carry on. He's gotta know that.'
That's the clue: Hobie knew Tommy would demand that the case go forward.
'Don't you see, Marietta? It's an excuse for not putting Nile on. Did you hear that malarkey just now how Nile's his only witness?'
'He's just tryin to slow you down, Judge. No way that young fella's gettin up there. Uh-uh,' adds Marietta, envisioning Nile on cross.
But perhaps that's the point. Nile surely is under no obligation to take the stand, and the law forbids me from making anything of his failure to testify. But Molto's already thrown down the gauntlet; he'll point out every detail of the defense which is unsupported. This way, Hobie's got an excuse. Whatever he's up to, I'm hellbound that Hobie won't get away with more smelly antics.
When I resume the bench, the courtroom is tense. Before, without the defendant present, many of the journalists didn't even bother to come in from the corridor. Now word has circulated that something of consequence is at hand. The jury box is full, all the familiar faces, except for Seth, who is probably on the street, a one-man posse. The sketchers have their pads open. Hobie and the large white cardboard boxes are by themselves at the defense table.
'Mr Turtle?'
'Your Honor, I have to move for a further continuance.' 'You haven't found him?'
'Not yet, Your Honor.' He turns his large head to the corners of the courtroom, as if he might find Nile here. He'd rather not look at me.
'And, Mr Molto, you still desire to proceed?'
Tommy comes to the podium. 'The People move to reopen their case,' he says. ‘I want to offer Mr Eddgar's non-appearance as evidence of flight, of consciousness of guilt.' He and Rudy have cooked this one up in the interval and it's clever. The law has always reasoned that an innocent person would stay to defend himself. Only the guilty run away. Privately, the logic of this rule has eluded me. Who, having been falsely accused, would have enough faith in the system to stick around for trial? It's an assumption from a more formal era, when people lived by concepts like Honor and Obedience. But rule it is, age-old. Hobie explodes.
'Consciousness of guilt! Any person with eyes in his head could see what went on in this courtroom yesterday. That's ridiculous, Your Honor.'
'Mr Tuttle, you know the law as well as I do. Tell me why the state is not entitled to urge the traditional inference from the defendant's absence?'
'Because it makes no sense. Judge Klonsky, this case is going well from the defendant's perspective. Your Honor knows that. He has no reason to flee. None.'
'Then why's he gone, Mr Turtle?'
Hobie gasps and blusters; he might as well be a landed fish. For the first time in the trial, Tommy appears to have outflanked him. After all of Hobie's tricks, it's hard not to relish his comeuppance. He tries again.
'Your Honor, with all respect, you have to think about the emotional aspects of this case. This is pretty hard on the defendant. His mother's gone. And then he had to confront yesterday. That had to be a terrible moment. He had an emotional reaction. But that's not a guilty reaction. His reaction, I guess, it would appear, was "I can't stand this, I can't handle this." Your Honor, how hard is it for you, for any of us, to understand his feeling that way?' Very eloquent - and very much what my reflections in chambers led me to suspect. Hobie wouldn't have sent Nile away without cooking up a compelling explanation, one that would make me willing to recall the bond forfeiture warrant when Nile appears an hour or so after the case has come to a close. I tell Hobie he can argue that at the end of the case.
'Judge,' says Tommy, 'let me suggest that the defendant didn't like watching his father take the blame for a crime he knew he committed himself. I think that makes a lot more sense than what Turtle's saying.'
'Mr Tuttle, why isn't the prosecution entitled to make that
point? Tell me why not.' I motion toward Tommy. Hobie again looks around the courtroom for help.
'Your Honor, you can't,' he finally says. 'You just can't do this.'
'Mr Turtle, in my first years out of law school, I was law clerk to Justice Ringler, and one of the things he taught me, which I have never forgotten, is that the three most dangerous words in the English language are "Judge, you can't." I can and I will.'
'Judge Klonsky. Please!'
'Mr Turtle, I'll give you until tomorrow morning to find your client. If he doesn't appear, we're going to proceed. And at that point, I'm going to allow the People to reopen. I will take notice that the defendant is absent, and I will allow the parties to argue the inferences that flow from that non-appearance, including availing the state of the traditional presumption that flight implies a consciousness of guilt. That's my ruling.' I drop my head decisively. No more bullshit. No more playing chicken.
Furious with me, Hobie stands before the bench, rowdily tossing his head. 'Your Honor, if you allow them to reopen -'
'Mr Turtle, there is no "if." I've ruled.'
'Judge, I'm going to have no choice but to move for a mistrial.'
It's as if the world has divided, right in front of me. What did Seth say about Hobie? He can't get over himself? Intent on having his way, he seems not to have noticed how angry I am. And of course he'd never sense how welcome the opportunity is which he's presented. Without a mistrial motion by the defendant, double jeopardy requires the trial to proceed to conclusion. But Hobie is claiming that by allowing the state to make hay from Nile's absence, I've so prejudiced the defense that he'd rather call the trial a washout and start over from scratch whenever Nile turns up. I can feel the courtroom trained on me, aware I've grown unusually still.
'Your motion is allowed, Mr Turtle.'
Utter stillness. Across the entire floor, in all eight courtrooms, it seems to be one of those breathless moments in which no one even moves. Hobie stares up at me, searching for a clue as to what he must do now.
'Judge, I'll withdraw my motion.'
‘I just granted it.'
'Your Honor, I said - I said I was going to make the motion. It was what I was contemplating for tomorrow morning. I didn't make the motion.'
'Your motion is deemed made and granted.'
'Then I move you to reconsider. I move you reconsider and take a day to think about it. I offended Your Honor. I can see that. I apologize. Humbly. Humbly, Judge Klonsky. But please reconsider.'
And so I reconsider - but only momentarily. In some part of me, I will always be sitting up here in judgment of myself, speaking out for my beliefs, fearing my own weaknesses, struggling with my past. Objectivity is, at best, a matter of degree. But after all the strange outside forces that have buffeted me - after Brendan Tuohey and Seth, after Hobie himself and his antics with Dubinsky - I'm no longer in the comfort zone that passes for impartiality. Probably, I should have known to start I'd end up here. I would go on if I had to. But I won't -1 can't - let this opportunity pass. It's the saddest thing in life to make the same mistake twice.
'Mr Turtle, this case is over. And because I have presided as the finder of fact, it would be inappropriate for me to hear the case again. I'm going to send it back to
Chief Judge Tuohey for reassignment. That will be the order of the court.'
'Your Honor,' says Hobie, in final desperation, 'please, don't be like this.'
I don't bother with a response. Molto looks dazed. As I stand, he finally wakes and comes to the podium to make a motion. 'People move to forfeit bond.'
Sallow little man, always lit by the eternal candle of one unending hatred or another. He is asking for Loyell Eddgar's house.
*
I retreat to chambers. For an hour the phone rings constantly, distracting me from the silence of my two court officers, who both clearly believe I lost my temper or my mind. Marietta handles each of the calls the same way. 'Judge don't give interviews.' She bangs the phone down. Any moment now Brendan Tuohey will be on the line. But as I busy myself I am jubilant. Free! Not of responsibility, but what greater gratitude can there be than to have been accidentally saved from our errors?
Near 4:00, I decide to call it a day. In the spirit of the season, the court deputies have hung a wreath over each of the metal detectors. As I am passing on the outer side, I catch sight of the haggard figure of Tommy Molto, also heading out. We arrive at the single exit at virtually the same moment.
He apologizes for the bond motion. I did not even rule, only glowered before stalking off the bench.
‘I didn't mean to put you on the spot,' he says.
'We were all in quite a state.'
'So what do you figure, Judge? Think Turtle sent him to the woods so he'd have a reason not to put him on? That's one of the guesses downstairs.'
Proprieties, judiciousness survive the case. I reply with an inscrutable fanning of my fingers, as if such a thought had never crossed my mind.
'Rudy thinks he did himself.'
'Really?' This alarms me. 'Any reason?'
'He's a screwy kid. Hell, "kid," ' Tommy snorts. 'Past thirty. He'll turn up. That's my bet.'
'We'll see, Tommy. It's a strange development.'
'I'll say.'
'You did a good job with what you had.' I tell him his direct of Eddgar was classic. With the compliment, he lights up like a little boy. Poor Molto. So seldom praised. 'The case was well tried on both sides. I'd tell Hobie that, too, but I don't expect he'll ever speak to me again.'