Innocent

CHAPTER 26

Nat, June 22, 2009

While a witness is on the stand, no one is allowed to talk to him about his testimony, including his lawyers. Stern and Marta nod at my dad from the prosecution table, and Sandy makes a little fist to tell him to hang in, but neither approaches him. I feel bad about this. It comes too close to the reality of what's been going on to have him shunned by everybody in the room, so I go up just to ask if he needs another glass of water. He answers with another indifferent shrug.

"You okay?" I ask.

"Bloodied but still standing. He's kicking the shit out of me."

I'm not supposed to respond to that, and how could I, anyway? I say the same stupid thing he used to shout to me from the stands when my Little League team was down 12 to nothing in the second inning.

"Long way to go," I say.

"Whatever." He smiles a little. He has become so dourly fatalistic in the last several months, it often frightens me. Whoever my dad was, he will never be the same, even if Zeus hurled a thunderbolt that freed him right now. He won't ever fully plug himself back into life. He places his hand on my shoulder for a second and announces, "I'm going to pee."

Our conversation is largely typical of the recent past. I have not exactly stopped talking to my dad. I just say next to nothing to him of any consequence, even compared with the stilted conversations we had before. I'm sure he's noticed, but it's not as if the law really leaves us any choice. I'm a witness in the case and cannot talk to him about the evidence or the way the trial is going, and at this point, he really doesn't seem to think about anything else, not that I would, either. The silence serves me well. I don't know if my dad is guilty or not. There is a big part of me that will never accept it if he is. But I have known with a rock-hard intuition that my mother's death had some connection to my father's affair. Anna, who does not care for protracted discussions of this topic because she does not like getting between me and my father, asked me more than once what reason I have for thinking that. The short answer is I knew my mom. Anyway, at base I believe my dad really wants to know one thing from me, which is what I think of him and, more to the point, whether I still love him. Sometimes I feel I should hand him a Post-It note that says, "I'll let you know when I figure it out."

Understanding my dad has always been a chore. He seems to like being the man of mystery with me, a routine I've cared for less and less as I've gotten older. I know him, naturally, in the unsparing way kids know their parents, which is sort of the same way somebody knows a hurricane when they're standing at the eye. I know all his aggravating habits-the way he can just drift off in the middle of a conversation, as if what's crossed his mind is far more important than anybody in the room; or how he sits silent when people talk about anything a little bit personal, even if it's like how much their feet itch in wool socks; or the self-important air he's always assumed with me, as if being my father is a responsibility equal to carrying the signals for all of America's nukes. But the trial, the charges, the affair, have all gone to emphasize the fact that I don't really know my father on his own terms.

While I try to piece through that, I teeter between extremes. Sometimes I'm terrified the endless anxiety, which has left my father a kind of burned-out zombie, is going to kill him and that I will lose my second parent within a year. At other instants I'm so righteously honked off, I feel he's getting everything he deserves. But mostly, of course, I'm just angry about the many moments when I'm not sure one foot will go in front of the other, or that the cars going down the street will remain glued to the earth, because so much has changed so suddenly that I don't know what to believe in.

"Just a couple more subjects, Judge," says Molto when they resume.

"Whatever you like, Mr. Molto." My dad does a little better job of sounding like he's okay with that.

"All right, Judge. Now tell me this. Were you happy in your marriage to Mrs. Sabich?"

"It was like many marriages, Mr. Molto. We had our ups and downs."

"And at the time your wife died, Judge, were you up or were you down?"

"We were getting along, Mr. Molto, but I was not especially happy."

"And by getting along, you mean you weren't having marital spats?"

"I wouldn't say none, Mr. Molto, but there certainly hadn't been any big blowups that week."

"But you told us you were unhappy. Any particular reason for that, Judge?"

My dad takes quite a bit of time. I know he is weighing the fact that I am seated thirty feet away.

"It was an accumulation of things, Mr. Molto."

"Such as?"

"Well, one thing, Mr. Molto, was that my wife really hated my campaigning. She felt exposed by it in a way I thought was not entirely realistic."

"She was acting crazy?"

"In a colloquial sense."

"And you were sick of it?"

"I was."

"And was that one of the things that drove you to consult Dana Mann three weeks before your wife died?"

"I suppose."

"Is it true, Judge, you were thinking of ending your marriage?"

"Yes."

"Not for the first time, was it?"

"No."

"You'd seen Mr. Mann in July 2007?"

There is a delicate dance here on both sides. My father's conversations with Mann are shielded under the attorney-client privilege. As long as my dad steers clear of any discussion of what he told Dana, Molto can't ask, since forcing my dad or Stern to assert the privilege in front of the jury would risk a mistrial. But my dad, too, needs to be careful. If he were to lie about what he said to Mann, or even deliberately create a misleading impression on that score, the law might oblige Dana to come to court to correct him. It was pretty clear when Dana testified during the prosecution case that he is basically terrified of Molto and Jim Brand and the whole situation, even though he wasn't up there more than five minutes. He acknowledged a couple meetings with my dad and identified the bills he sent last September and in July the year before, and the cashier's checks my father returned in payment.

"And in fact, Judge, your conversation with Mr. Mann in the summer of 2007-that occurred not too long after you'd asked Mr. Harnason what it was like to poison someone, right?"

"Within a couple of months, give or take."

"And what happened then, Judge? Why did you not carry through on ending your marriage?"

"I was pondering my options, Mr. Molto. I got Mr. Mann's advice and decided not to seek a divorce."

The implication of all the evidence the jury won't hear, the stuff that Sandy and Marta have shown me-the STD tests and the witnesses' statements about my dad lurking around various hotels-is that instead of getting divorced, he recovered his sanity and ended the affair and stayed with my mom. I've never quite gotten around to asking my dad if I have it right. The one conversation we had on that subject is about all I can take. The weird part is that I never believed my parents had a wonderful marriage or that they were especially happy with each other, and I'd thought at least once a year that one of them was going to call it quits. But this-my dad doing some thirty-year-old on the sly in the middle of the afternoon? Sick.

"Now, you saw Mr. Mann again in the first week of September in 2008."

"I did."

"And was poisoning your wife among the options on your mind this time, just as it had been when you spoke to Mr. Harnason around the time of your first visit with Mann?"

I see Marta poke her father's arm, but Stern does not stir. I guess it's obvious the question is ridiculously argumentative and thus not worth an objection. In preparing me emotionally to see my father up there, Marta has explained that as a judge, my dad will look better fending for himself in court, without his lawyer trying too hard to protect him. And that's what my dad does now. He makes a small face and tells Tommy, "Of course not."

"Were you more determined to end your marriage this time when you saw Mr. Mann in September 2008?"

"I don't know, Mr. Molto. I was confused. Barbara and I had been together a long time."

"But you admit you'd already received advice from Mr. Mann in July 2007?"

"Yes."

"And so, Judge, it's a fair conclusion that you went back because you were ready to proceed on the advice and bring the marriage to an end."

Molto is going along as precisely as an ice-skater, avoiding the actual question of what my dad asked Dana.

"I suppose, Mr. Molto, for a brief period, I was more intent on terminating my marriage. I cooled off after that and reassessed."

"It wasn't the fact that you were at the height of your election campaign for the supreme court that made you hesitate, was it?"

"I certainly wouldn't have filed for divorce before November 4."

"Would have looked bad, wouldn't it?"

"I was much more concerned about the fact that I would have made news by filing then, whereas it would have been immaterial to anybody but my family after the election."

"But you concede, Judge, don't you, that some voters wouldn't be pleased to learn you were ending your marriage?"

"I imagine that's true."

"While they could be expected to be sympathetic if you suddenly found yourself a widower?"

My dad doesn't answer. He just shrugs and tosses up a hand.

"Did you tell your wife, Judge, that you were thinking of ending the marriage?"

"I didn't, no."

"Because-?"

"Because I was undecided. Because my mood changed again after I saw Mr. Mann. And because my wife was volatile. She could become very, very angry. There was no value in discussing it before I had made a final decision."

"You didn't look forward to talking about this with her, then, Judge?"

"Not at all. It would have been extremely unpleasant."

"So we can say, Judge, can't we, that the fact that your wife died when she did seemed to save you from confronting her or the voters?"

My dad makes the same face, part wince, part frown, as if this is all too stupid, trying to seem indifferent to the trap he's wandered into.

"You could say that if you wanted to, Mr. Molto."

"All in all, Judge, it was a very convenient time for Mrs. Sabich to die, wasn't it?"

"Objection," Stern says with vigor.

"Enough now," Judge Yee says quietly. "Time for other subject."

"Very well," Tommy says again, more deliberately than last time, and wanders back to his notes. He is preening just a little. Molto knows he is still knocking it out of the park. "Let's talk some more about your computer."

The night my father learned he was going to be indicted-November 4, 2008, a date I'm not likely to forget, the day his legal career was supposed to have reached its absolute zenith-the Kindle County Unified Police Force searched our house in Nearing. The police took both computers out of the house and, clearly looking for traces of phenelzine, seized all of my dad's clothing plus every implement from the kitchen-every plate, every glass, every open bottle or container in the refrigerator or the cabinets-and all my father's tools. Even after that, they weren't done. During the initial search, they had discovered some concrete patching my dad had done a few months before in the basement-my parents were always fighting seepage-and the cops returned and opened up the walls with jackhammers. Then they came back with another warrant and tore up the backyard, because one of the neighbors said he was sure my father had been out there digging around the time my mom died. He had been, too, planting that rhododendron for her the day the four of us had dinner. Furthermore, the prosecutors were not only jerks about ransacking the house, they also refused to release anything they seized, meaning my father basically had no wardrobe, no personal PC, and not so much as a pot to boil water in the kitchen for months.

The computer in particular was a point of warfare, because my dad, who worked a lot at night, regularly downloaded court documents to the home PC. There were dozens and dozens of draft opinions on there, many of them involving appeals in which the Kindle County Prosecuting Attorney's Office was a party, as well as lots of memorandums reflecting the internal workings of the court of appeals, in which the judges sort of dropped their shorts and shared candid thoughts about lawyers, arguments, and occasionally one another. The appellate judges were gonzo when they realized this had come into the prosecutors' hands.

George Mason, who became acting chief, didn't want the court of appeals to be seen as shielding my dad, but he would have had to go to court to calm his colleagues were it not for a twist I couldn't help finding amusing: There was no judge to settle the dispute. Everybody in the superior court had already declined to hear my dad's case, and even when a judge was appointed, there was going to be nowhere for the loser to appeal since the appellate court itself was one of the parties. Eventually Molto agreed with George that the PAs would image the hard drive, making an exact copy, and then examine the drive under the supervision of George or someone he appointed, so that no internal court documents were viewed. They made the same agreement about the computer that had been in my dad's chambers.

After my dad's personal PC was analyzed, the home computer was turned over to Judge Mason, and both computers, from home and court, remained in George's chambers side by side for the month it took before Judge Yee was appointed. During that period, my father was allowed to get what he needed off the hard drives to finish his pending opinions or keep his calendar, but only when George or his delegate could witness this and make an exact log of every keystroke. My dad went over there once and found his return to the realm he used to rule far too humiliating to repeat under these conditions. After that, the prosecutors agreed that any further copying from the PCs could be done by emissaries approved by Judge Mason and the PAs, who turned out to be me or, at Judge Mason's suggestion, Anna, whom he knew and trusted as my dad's former clerk and a minor tech guru. Once Yee was appointed, he sided with the prosecutors and ordered both computers turned over to them. The computer from my dad's chambers had nothing of value on it-just like my mom's. But my dad's PC was kind of a gold mine for the PAs and they haul it up to court each day in the same pink shrink-wrap in which it's remained ever since their expert, Dr. Gorvetich, came to the court of appeals to retrieve it in December.

"Now the day before your wife died, Judge, you shredded several e-mails on your home PC, didn't you?"

"I did not do that, Mr. Molto."

"All right," says Tommy. He nods as if he had expected the denial, and walks a little bit, with the grim air of a parent about to give a spanking. "Your Internet provider is ClearCast, is that right?"

"Yes."

"Now, just so we're all on the same page, when someone sends you an e-mail, it actually goes to ClearCast's server, and you then pull it down to your home PC through

your e-mail client. Right?"

"I'm not a computer guy, Mr. Molto, but that sounds about right."

"And going back to Professor Gorvetich's testimony, you set up your account at ClearCast so that e-mails were deleted from the ClearCast server after thirty days, correct?"

"Not to be difficult, Mr. Molto, but it was my wife who dealt with that sort of thing. She was a PhD in math and knew a great, great deal more about computers than I did."

"But we can agree, Judge, that unlike your computer at the court of appeals, you actually downloaded e-mails from the ClearCast server to your e-mail client at home."

"If I understand what you're saying, you mean that when I was at work, I'd go to the ClearCast website to see my personal e-mail, but at home, those e-mails came right to the e-mail program on my PC and were stored there."

"Exactly what I'm saying. And after thirty days, that was the only place those e-mails remained, right?"

"I'd have to take your word for it. But it sounds right."

"Now, did you routinely delete the e-mail on your PC at home?"

"No. Sometimes I'd send documents from the court to my personal account, and I could never really tell what I was going to need, so I tended to just let e-mail accumulate."

"And by the way, Judge. You told us before that your wife sometimes used your PC."

"I said she sometimes used it for brief Web searches because it was right outside our bedroom."

"Mr. Brand reminded me during the break. Wasn't there a lot of confidential information from the court of appeals on your PC?"

"There was. Which was why we had two computers in our house, Mr. Molto. Barbara understood that she wasn't supposed to look at my documents or e-mails. But she didn't have to, if she was doing a quick Web search."

"I see," said Molto. He shows the same smug little smile that's appeared now and then when he's found my dad's explanation too tidy. "Now, you heard Dr. Gorvetich testify that after doing a forensic examination of your PC, he concluded that several messages had been deleted from your personal e-mail, and that based on dates in the registry, that had been done the day before your wife died. Did you hear that?"

"I did."

"And in fact he says they were not simply deleted, but that a shredding software called Evidence Eraser was downloaded and used to accomplish the task, so that there could be no forensic reconstruction of what had been on your computer. Did you hear that?"

"Yes."

"And you deny doing that?"

"I do."

"And who else lived at home with you, Judge?"

"My wife."

"And you said your wife and you had an understanding that she would not go near your e-mail."

"That's true."

"Your testimony doesn't make much sense, Judge, does it?"

"Mr. Molto, none of this makes sense, frankly. You say I carefully shredded the e-mail on my computer so it couldn't be reconstructed, and at the same time, I didn't bother to erase my searches about phenelzine, not to mention carelessly leaving my fingerprints on the pill bottle. So, yes, Mr. Molto, it all sounds ridiculous."

This cannot quite be classified as an outburst, because my dad has reeled all of this off in a fairly patient tone. And he's right. The contradictions in the prosecutors' theories are heartening. It is the first time my dad has really pinned Molto's ears back. Tommy stares at him as he says to Judge Yee, "Move to strike, Your Honor. The defendant will have an opportunity to give a closing argument."

"Read back, please," Yee tells the court reporter. This only makes it worse for the prosecution, since the jury gets to hear my dad's little rant again. And at the end, Yee shakes his head.

"He was answering, Mr. Molto. Better not to ask what makes sense. And Judge-" He addresses my dad with the same patience and courtesy he's shown throughout. "Please no arguments."

"I'm sorry, Your Honor."

Yee shakes his head to dismiss the apology. "Fair answer, bad question. Many good questions, but not that one."

"I agree, Your Honor," says Molto.

"Okay," says the judge, "everybody happy." The line, in the middle of a murder trial, strikes everybody in the courtroom as hysterical, and the judge, who is said to be a card in private, laughs hardest of all. "Okay," he says when the laughter has passed.

"Now, Judge, were there e-mails on your home computer you wouldn't want anyone else to see? That is, before they were deleted?"

"As I said, a lot of confidential court material."

"I meant personal material."

"Some," says my dad.

"What, exactly?"

The first thing that crosses my mind is his messages to the girl he was screwing. They were probably there, too, but there is clearer evidence from another source.

"For one thing, as he testified, Mr. Mann confirmed my appointments with him by e-mail."

"And Judge, were Mr. Mann's e-mails on your home PC when it was seized, to the best of your knowledge?"

"I know the testimony is that they were not."

"In fact, because he could place the time of those messages, Dr. Gorvetich was able to determine that Evidence Eraser had been used on those messages."

"So he claimed."

"You doubt him?"

"I think our expert will question his conclusion that shredding software was used. Obviously, the message wasn't there."

"And you deny deleting it?"

"I don't recall deleting Mr. Mann's messages, but clearly I would have a reason to do that. I know I didn't download any shredding software or use it at any time on my computer."

"So without the use of Evidence Eraser, an investigator looking through your e-mail might realize you had been thinking of leaving your wife?"

I see now where Tommy is going. He will argue that my dad was employing a kind of belt and suspenders, sanitizing his computer in case the authorities recognized the phenelzine poisoning. But if things got to that point, it seems to me my dad would already have been in a lot of trouble.

"Possibly."

"Possibly," says Molto. He minces along again.

"Now, Judge, on September 29, if I understand what you told the police, you awoke to find your wife beside you dead. Correct?"

"Yes."

"And for the next day, close to twenty-four hours, actually, you called no one. Is that correct?"

"Yes."

"You didn't call paramedics to see if she could be revived?"

"She was cold to the touch, Mr. Molto. She had no pulse."

"You made the medical judgment yourself, and didn't call the paramedics. Right?"

"Yes."

"You did not let your son or any of your wife's relatives or friends know she'd passed, correct?"

"Not then."

"And according to what you told the police, you just sat around for a solid day thinking about your wife and your marriage. Right?"

"I straightened up a little so that she looked better when my son saw her. But yes, for the most part, I just sat there and thought."

"And finally, virtually a day later, you called your son?"

"Yes."

"And as he's testified, when you spoke to Nathaniel"-I quake a little at hearing my name from Molto's mouth-"you argued with him about whether to call the police."

"He didn't call it an argument and neither would I. It hadn't dawned on me that the police should be called, and frankly, at that point I wasn't looking forward to outsiders coming in."

"How many years were you a prosecutor, Judge?"

"Fifteen."

"And you're saying that you didn't realize that the police should be summoned in the case of any suspicious death?"

"It was not suspicious to me, Mr. Molto. She had high blood pressure and heart problems. Her father had died the same way."

"But you did not want to call the police?"

"I was confused, Mr. Molto, about what to do. I hadn't had a wife die lately." There is a snicker from the jury, which is a bit of a surprise. Stern's eyebrows are furrowed. He doesn't want my dad to be a smart guy.

"Now, you say you knew your wife had health problems. But she was in outstanding shape, wasn't she?"

"She was. But she worked out because she knew she was at risk genetically. Her father barely made it into his fifties."

"So not only did you make the medical judgment your wife was dead, without any qualified assistance, but you also decided the cause of death."

"I'm telling you what I was thinking. I'm explaining why I didn't consider calling the police."

"It wasn't, of course, Judge, to delay an autopsy?"

"It wasn't."

"It wasn't to allow the gastric juices to wash away all traces of the foods you'd fed her that would interact with the phenelzine you poured into the wine she drank?"

"It was not."

"And you say, Judge, that you straightened up a bit. Did your straightening up perhaps include washing out the glass in which you'd dissolved the phenelzine the night before?"

"No."

"Whose word do we have besides yours that you did not wash out the glass that contained the traces of the poison you gave your wife?"

"Is your point that it's only my word, Mr. Molto?"

"Whose word do we have, Judge, that you didn't scrub the counter where'd you crushed the phenelzine, or the tools you used to do it?"

My dad doesn't bother to answer.

"Whose word, Judge, do we have that you didn't spend that twenty-four-hour period doing your best to hide every last little bit that would reveal how you'd poisoned your wife? Who, Judge? Who else's word do we have but yours?"

Tommy has crept close to my dad and stands now only a few feet from the witness stand, attempting to stare my father down.

"I understand, Mr. Molto. Only my word."

"Only yours," says Tommy Molto, and faces my father a bit longer before he goes back to the prosecution table, where he evens his notes before taking his seat.