Innocent

CHAPTER 24

Tommy, June 22, 2009

Tommy Molto had always had mixed feelings about Sandy Stern. Sandy was good, there was no doubt about that. If you were a cobbler and took pride in your craft, then you had to admire somebody who found flawless leather and made shoes that wore like iron and felt like velvet on the foot. Sandy was a maestro in the courtroom. An Argentinian who'd come here in the late 1940s during the turmoil with Peron, he still played the polished Latin gentleman sixty years later, with a trace accent that enhanced his speech like some fancy seasoning-truffle oil or sea salt-and the manners of the staff in an expensive hotel. His routine went down better than ever these days, when an occasional aside en espanol could be interpreted for other jurors by at least two or three of their number.

But you had to watch Sandy. Because he appeared so elegant, so proper, he got away with more stuff than the average drug court hustler. Tommy knew that all the crap that rained down on him during Rusty Sabich's first trial, the subtle accusations of taking part in a frame-up, had been concocted by Sandy, who in the years since acted with Tommy as if nothing of consequence had happened, rather than putting a place holder on Tommy's life that was still there today.

At the moment, Sandy was tussling with cancer. From the look of it, things were not going well. He had the Daddy Warbucks haircut and had parted with a good sixty pounds, and the drugs had given him a rash that seemed to be literally burning through his face. Just a few minutes ago, before court resumed, Tommy asked Sandy how he was doing.

'Stable,' said Sandy. 'Holding my own. We'll know more in a few weeks. Some good signs with the latest round of treatment. Despite becoming the Scarlet Pimpernel.' He pointed to his cheek.

'In my prayers,' said Tommy. He never told someone that without carrying through.

But that was how it went with Sandy Stern. You prayed for his soul, and he mounted you from the rear. The defendant never testified first. The accused was always the last act in a trial, the star attraction, who went on at the final possible minute, so the wisdom of testifying could be evaluated in light of all the other evidence and so the defendant would make the biggest impression on the jury as they deliberated. Not that Tommy has been taken totally by surprise. He had figured all along Rusty might be coming, ever since Judge Yee's pretrial ruling, in chambers, out of earshot of the press, that nothing of the first trial-not the new DNA results nor Carolyn Polhemus's murder, nor any of the related legal proceedings-was ever going to be mentioned in this courtroom. But Tommy was planning to spend the next few nights preparing, getting Rusty's cross sequenced, playing it through with Brand. Now it was going to be like Tommy's days in drug court thirty years ago, when there were so many cases that you couldn't get completely ready for any of them and had to cross from the seat of your pants. In those days, when the rare defendant chose to testify, the first thing you wanted to ask him was to remind you of his name.

Standing at the defense table, pretending to examine his notes as if there were actually some order to what he'd scribbled down, Tommy was visited by a stillness that had been with him throughout the case. Nobody would ever mark Tommy as relaxed in the courtroom, not in this trial or any other, but at night, when the trial process usually left him a mass of teeming anxieties, he had been more or less at ease, able to sleep through the night beside Dominga, rather than rising several times as had been his routine over the years. The impact of this verdict on his future and his family's, on the way he would forever be perceived, was so large that he knew he simply must accept the will of God. Ordinarily, he did not like to believe God wasted His time worrying about a creature as unimportant as Tommy Molto. But how could Rusty have come around again, against all the odds, if the outcome in the first case didn't cross some rule of divine justice?

Tommy's mood had also been fortified by the fact that the prosecution evidence turned out to make a prettier package than he had foreseen. After trying cases for thirty years, Tommy knew that at this stage of the proceedings, you drank your own Kool-Aid. You needed to believe you were going to win to have any chance of convincing the jurors, even while you had to remain in the grip of paranoia. And he was wary. There was no telling yet what Stern was up to, but from long experience with the man, Tommy expected the unexpected.

The opening statement Sandy gave when the trial began two weeks ago was a bland mantra of 'reasonable doubt,' in which Stern invoked the term 'circumstantial proof' no fewer than eighteen times: 'The evidence will not show a confession, an eyewitness. The evidence instead will consist almost entirely of the conjecture of various experts about what might have happened. You will hear experts from the prosecution, and then equally if not more qualified experts from the defense who will tell you that the prosecution's experts are quite likely wrong. And even the prosecution's experts, ladies and gentlemen, will not be able to tell you with any certainty that Mrs. Sabich was murdered, let alone by who.' Before the jurors, Stern had paused with a troubled frown, as if it had just occurred to him how inappropriate it was to charge somebody with murder on such a flimsy basis. He was gripping the rail of the jury box for support-having come several feet closer to them than any judge in this county would normally permit. Despite the summer heat outside, Stern wore a three-piece suit, undoubtedly from his stoutest period, so it hung on him as shapelessly as-no coincidence-a hospital gown. There was nothing that happened in life that Sandy Stern would not contrive to use to advantage in the courtroom. His whole being was tilted that way, he couldn't help himself, the same as some guys who could not stop thinking of sex or money. Even looking as repulsive as a figure from one of the Friday the 13th movies was something he had figured out how to use for his client's benefit, Sandy's mere presence seeming to suggest that he had risen from his deathbed to prevent a savage injustice. Free Rusty, he seemed to say, and I can die in peace.

There was no telling if the jurors were buying that, but if they were paying attention at all to the State's evidence, they had to recognize that the prosecutors had a point. After some debate they had called Rusty's son, Nat, to start the case. That was risky, especially since Yee had already ruled that when Nat climbed down from the witness stand, he would be allowed to remain in the courtroom to support his father, notwithstanding the fact that he was going to testify again for the defense. Still, it was always a nice touch when you got your evidence from the other side, and Nat was a straight kid, who, sitting here day after day, often looked to have his own doubts. On the stand, the younger Sabich gave up what he had to-his father not wanting to call the cops after Barbara died, or the fact that the night before she bought it, Rusty had cooked the steaks and poured Barbara's wine, giving him ample opportunity to slip his wife a lethal dose of phenelzine.

The PAs put on Nenny Strack next. She was better than she'd been in Tommy's office, but even so, she took back almost everything on cross-examination. Still, they were stuck with her. If they'd called a different toxicologist, then Strack would be up there testifying for the defense, undercutting the other guy and saying she'd expressed all those doubts to the prosecutors. Instead, Brand cleaned up the mess with the coroner, who offered the opinion that Barbara had died of phenelzine poisoning. Dr. Russell had a lot to eat on cross, and Marta Stern had fed it to him piece by piece. She emphasized that Russell had believed initially that Barbara died by natural causes and, given postmortem redistribution, still could not definitively rule out that possibility.

From that valley, the prosecution had steadily climbed back into sunshine. Barbara's own pharmacologist got up there briefly to say he'd warned her repeatedly about the dangers of phenelzine and the foods she needed to avoid when taking it. Harnason was Harnason, sneaky-looking and strange, but he stayed on script. His sentence was going to drop from one hundred years to fifty in exchange for his testimony, but Harnason seemed to be the only person in the courtroom who didn't realize he was going to die in prison. He was the first witness Stern cross-examined rather than Marta, but it was an oddly understated performance. Sandy barely bothered flaying Harnason with the ugly facts he had already acknowledged during Brand's direct examination-that Harnason was a veteran liar and cheat, a fugitive who had already broken his oath to the court when he ran, and a murderer who had slept beside his lover night after night at the same time he knew he was poisoning him. Instead, Stern spent most of his time on Harnason's first prosecution thirty years ago, encouraging the man to rumble on about how unjustified his prison sentence was and how Rusty's decision had basically ruined his life. But Stern did not directly challenge Harnason's testimony that Rusty tipped him about the appellate court's decision or asked what it felt like to poison someone.

George Mason, the acting chief of the court of appeals, had followed Harnason with a lengthy dissection of the judicial canons, quite damaging to Sabich, even though on cross, Judge Mason, admittedly Rusty's longtime friend, reiterated his enduring high opinion of Sabich's integrity and credibility.

Slick but visibly nervous as a witness, Prima Dana Mann testified that his practice was limited to matrimonial matters and admitted consulting with Rusty twice, including once three weeks before Barbara died.

Then the case had ended with the best stuff the prosecution had: Rusty picking up the phenelzine, the fingerprint results from Barbara's medicine cabinet, Rusty's shopping trip the day Barbara died, and finally Milo Gorvetich, the computer expert, who laid out all the incriminating stuff they'd mined after seizing Rusty's home computer.

Once the prosecution rested, Marta had made an impassioned argument that the prosecution had failed to establish corpus delicti, meaning they had not offered evidence from which a jury could find beyond a reasonable doubt that there had been a murder. Judge Yee had reserved ruling. Usually that was a sign that the judge was considering flushing the case if the jury didn't, but Tommy tended to think it was just Basil Yee being himself, as aloof and cautious as certain house cats.

Now, as Tommy flipped through his yellow pad while he stood at the corner of the defense table, Jim Brand, still smelling of this morning's aftershave, scooted his chair over and leaned close.

"You going to ask about the girl?"

Tommy did not have much hope on this point, but he felt Yee was wrong to start. He stepped forward. Yee had been attending to other papers and finally looked down at Molto below the bench.

"Your Honor, may we be heard before I begin?"

The jury, into the third week of trial, knew what that meant and stirred in the box. Out of deference to Stern, who could not stand long at any of the whispered conferences beside the bench, the judge cleared the courtroom for sidebars. The jurors disliked the shuttling in and out, especially since it meant they were being treated like children who mustn't hear what the grown-ups were talking about.

Once they were gone, Molto took another step closer to the bench.

"Your Honor, since the defendant has chosen to testify, I'd like to be able to ask him about the affair he had the prior year."

Marta shot up at once to object. In a setback Tommy had not anticipated, Judge Yee had granted the defense motion to keep the prosecutors from showing that Rusty had been seeing another woman in the spring of 2007. Marta Stern had argued that even accepting the State's iffy evidence that Sabich had been unfaithful-the hotel sightings and the STD test-the behavior, particularly the chief judge's alleged pattern of pinching off cash from his paychecks to finance the affair, had ceased fifteen months before Barbara's death. In the absence of anything to show he had been seeing this woman when Mrs. Sabich died, the proof was irrelevant.

'Judge, it shows motive,' Tommy had protested.

'How?' asked Yee.

'Because he may have wanted to be with this woman, Your Honor.'

' "May"?' Judge Yee had moved his head from side to side. 'Proving Judge Sabich had affair sometime before-that not proof he a murderer, Mr. Molto. If that proof,' said the judge, 'lot of men are murderers.' The press, in the front row for the pretrial proceedings, had roared as if the quiet country judge were doing stand-up.

Now Marta, with her red ringlets like Shirley Temple and a brocaded jacket, came forward to oppose Tommy's efforts to ask the same questions the judge had disallowed prior to trial.

"Your Honor, that's obviously unacceptably prejudicial. It injects speculation that Judge Sabich had an affair, something which the Court has already recognized is irrelevant to these proceedings. And it's unfair to the defendant, who made his decision to testify based on the Court's prior rulings."

"Judge," said Tommy, "the whole point of your ruling was that there was no evidence whether the defendant was seeing this woman, whoever she is, at the time of the murder. Now that he's up there, aren't we at least entitled to ask about that very point?"

Judge Yee looked to the ceiling and touched his chin.

"Now," he said.

"I'm sorry," said Tommy. In his frugality with words, the judge was frequently Delphic.

"Ask now. Not with jury."

"Now?" said Tommy. Somehow he caught the eye of Rusty, who appeared as startled as Molto.

"You wanna ask," said the judge, "ask."

Tommy, who had expected to get nowhere, found himself briefly word-struck.

"Judge Sabich," he finally said, "did you have an affair in the spring of 2007?"

"No, no, no," said Yee. He shook his head in the schoolmarmish fashion he occasionally employed. The judge was a few pounds overweight, moon-faced, with heavy glasses and thin gray hair plastered over his scalp. Like Rusty, Tommy had been acquainted with Yee for decades. You couldn't say you knew the guy, because he was too accustomed to keeping to himself. He'd grown up in Ware as one of a kind, shunned by almost everybody, not only because he was by downstate standards so foreign in look and speech, but also because he was one of those schooltime brainiacs nobody could have understood, even if he could actually speak English. Why Yee had decided to become a trial lawyer, which was maybe the one job in the world anybody with common sense would have told him to stay away from, was a mystery. He'd had something in his head; people always do. But there was no way the prosecuting attorney's office down in Morgan County could refuse to hire him, a local guy whose law school performance-first in his class at State-outranked that of any applicant for at least twenty years. Against the odds, Yee had done well as a deputy PA, although he was at his best as an appellate lawyer. The PA eventually moved heaven and earth to get him on the bench, where Basil Yee had basically shined. He was known to let his hair down at judicial conferences. He drank a little too much and stayed up all night playing poker, one of those guys who didn't get away from his wife much and made the most of it when he did.

When Yee had been appointed to this case by the supreme court, Brand had been excited. Yee's record in bench trials, where he decided guilt or innocence himself, was astonishingly one-sided in favor of the prosecution, and thus they knew that Stern would be deprived of the option of allowing the judge, rather than a jury, to decide the case. But over the years, Tommy had learned that there were three interests at stake in every trial-those of the prosecution, the defense, and the court. And the judge's agenda frequently had nothing to do with the issues in the case. Yee was chosen for this assignment almost certainly on the basis of statistics, since he was the least-reversed trial judge in the state, a distinction of which he was fiercely proud. But he had not achieved that kind of record by accident. It meant he would take no chances. In the criminal world, solely the defendant had the right to appeal, and thus Judge Yee would rule against Sabich on evidentiary questions only if the precedents were unequivocally in Tommy's favor. Yee remained a prosecutor at heart. If they convicted Rusty, he was going to get life. But until then, Judge Yee was going to cut Sabich every break.

"Better I ask, Mr. Molto." The judge smiled. He was by nature a gentle man. "Will be faster," he said. "Judge Sabich, when your wife die, were you having an affair, romance, whatever"-Yee threw his small hands around to make the point-"any kind of being involved with another woman?"

Rusty had turned about fully in the witness chair to face the judge. "No, sir."

"And back, say, three month-any affair, romance?"

"No, sir."

The judge nodded with his whole upper body and lifted a hand toward Molto to invite further questions.

Tommy had retreated to the prosecution table beside Brand's seat. Jim whispered, "Ask if he hoped to see any woman romantically."

When Tommy did, Yee responded as he had before, with a steady head shake.

"No, no, Mr. Molto, not in America," said the judge. "No prison for what in man's head." Yee looked at Rusty. "Judge," said Yee, "any talk with another woman about romance? Anytime, say, three months before missus die?"

Rusty took no time and said, "No, sir," again.

"Same ruling, Mr. Molto," said the judge.

Tommy shrugged as he glanced back at Brand, who looked as though Yee had put a shiv through him. The whole deal made Tommy wonder a bit about Yee. As square as he appeared with his rayon shirts and out-of-date plastic glasses, he might have wandered. Still waters run deep. You could never tell with sex.

"Bring in jury," Judge Yee told the courtroom deputy.

Ready to start, Tommy felt suddenly at sea.

"How do I address him?" he whispered to Brand. "Stern said to call him 'Rusty.'"

"'Judge,'" Brand whispered tersely. That was right, of course. First names would play right into the vendetta stuff.

Tommy buttoned his coat. As always, it was just a bit too snug across the belly to really fit.

"Judge Sabich," he said.

"Mr. Molto."

From the witness stand, Rusty nonetheless managed a nod and a Mona Lisa smile that somehow reflected the decades of acquaintance. It was a subtle but purposeful gesture, the kind of little thing jurors never missed. Tommy suddenly remembered what he had pushed out of mind for months now. Tommy had come into the PA's office a year or two after Rusty, but they were close enough to being peers that over time they might have competed for the same trials, the same promotions. They never did. Tommy's best friend, Nico Della Guardia, was Rusty's main rival. Tommy didn't rank. It was obvious to all that he lacked Rusty's smarts, his savvy. Everybody had known that, Molto remembered. Including him.