Innocent

CHAPTER 31

Nat, June 23, 2009

My dad picks out the violet tie and knots it, looking in the men's room mirror, then faces me for approval.

"Perfect," I tell him.

"Thanks again for making the trip." For a second we stare at each other, as unspoken misery floats through his face. "What a fucking mess," he says.

"You see the Traps last night?" I ask.

He moans. "When are they going to get a closer?" That's an eternal question. He considers himself in the mirror another second. "Time to rock and roll," he says.

Ever the formalist in court, my father waits until Judge Yee has asked him to resume the stand before he takes his seat beneath the walnut canopy, so the jurors can watch him do it. Stern and Marta and Mina, the jury consultant, all thought they'd gotten a pretty good group. They wanted black guys from the city and suburban men who'd identify with my father, and nine of the first twelve seats are occupied by males of the two categories. I watch to see if any of them are willing to look at my dad after the beat-down he took yesterday. That is supposed to be an indication of their sympathies, and I'm heartened to notice that two of the African-Americans, who live within a block of each other in the North End, smile and nod at him minutely as he is settling in.

In the meantime, Sandy uses the table and a boost from Marta to get slowly to his feet. The rash today is definitely not quite as red.

"Now, Rusty, yesterday when you were answering Mr. Molto's questions, you pointed out to him a number of times that he was asking you to guess about different things, especially the cause of your wife's death. Do you recall those questions?"

"Objection," Molto says. He doesn't like the summary, but Judge Yee overrules him.

"Rusty, do you know for certain how your wife died?" Stern asks.

"I know I didn't kill her. That's all."

"You have listened to the testimony?"

"Of course."

"You know the coroner first ruled that she died of natural causes."

"I do."

"And you and Mr. Molto discussed the possibility that in her excitement about having your son and his new girlfriend to dinner, your wife accidentally took an overdose of phenelzine."

"I remember."

"And you also talked about the possibility she took a standard dose of phenelzine and died accidentally because of a fatal interaction with something she ate or drank?"

"I recall."

"And Rusty, since Mr. Molto asked, do any of these other theories about the mode of your wife's death-natural causes, or accidental overdose, or drug interaction-do any seem incompatible with the evidence?"

"Not really. They all seem plausible."

"But do you, sir, have a surmise based on the evidence about how your wife died, a theory that, given all the proof, seems most likely to you?"

"Objection," says Molto. "That calls for an opinion the witness is not qualified to offer."

The judge taps a pencil on the bench while he thinks.

"This theory of the defense?" he asks.

"As framed, Your Honor, yes," answers Stern. "Without excluding other possibilities, this is the theory of the defense about how Mrs. Sabich died."

Defendants are granted special latitude in offering hypotheses of their innocence, a way to explain the proof that leaves them blameless.

"Very well," says Yee. "Objection overruled. Proceed."

"Do you recall the question, Rusty?" Stern asks.

"Of course," says my father. He takes a second more to adjust himself in his seat and looks straight at the jury, something he has not done often before. "I believe my wife killed herself by means of a deliberate overdose of phenelzine."

In court, I've noticed, you measure shock value by sound. Sometimes a particular answer produces the swarming buzz of a hive. At other moments, like this one, the consequence of a response is reflected by the absolute silence that follows it. Everyone here must think. But in me, this answer unearths a fear long entombed in the darkest part of my heart. The effect ripples outward, chest to lung to limbs. And I know with a sense of unspeakable relief that it is the absolute truth.

"You surely did not tell the police that," Sandy says.

"I knew a fraction then, Mr. Stern, of what I know now."

"Just so," Stern answers. He is holding on to the corner of the defense table with one hand and pivots a step or two around his grip. "There was no note, Rusty."

"No," he says, "I believe Barbara's hope was to make her death appear to have been from natural causes."

"Just as the coroner first ruled," says Stern.

"Objection," says Molto. Yee sustains the objection, but he smiles in a private way at Sandy's art.

"And why would Mrs. Sabich want to obscure the fact she had taken her own life, in your view?"

"For my son's sake, I believe."

"And by your son, are you referring to this handsome lad in the front row?"

"I am." My father smiles at me for the benefit of the jury. It is not a moment when I feel much like being exposed, and I struggle even to smile back.

"And why would your wife want your son not to know she had died at her own hand?"

"Nat is an only child. I think my son would be the first to say he had a hard time growing up. He's a fine man with a fine life now. But his mother was always very protective of him. I'm sure Barbara would want to limit the anguish and injury to Nat if she ended her life that way."

Stern says nothing but nods slightly, as if it all makes sense to him. As it does to me. It's the kind of unspoken lore that accumulates in a family that my own depression descends from my mother's. Because of that, my mom would not have wanted me to know she'd been unable to tame the savage god. It would have been too bleak a prophecy for me.

"And Rusty, to the best of your knowledge, did your wife have any history of suicide attempts?"

"Because of the depth of Barbara's depressions, Dr. Vollman had always advised me to keep my eyes open. And yes, I was aware of one attempt that had taken place in the late eighties when Barbara and I were separated."

"Move to strike," says Molto. "If it took place while they were separated, Judge Sabich cannot be testifying from personal knowledge."

"Sustained," says Yee.

Stern nods agreeably and says, "Then we shall have to call another witness."

Molto stands again. "Same motion, Your Honor. That was not a question. It was stage directions."

"Was that an objection, Your Honor, or a review?" responds Stern.

Yee, who has a sense of humor, is smiling broadly, revealing his small teeth. "Boys, boys," he says.

"Question withdrawn," says Stern.

During this byplay, my father's eyes have again found mine. I know now why he was apologizing yesterday. The move to Detroit when I was ten did not make my mother any happier, whatever she might have anticipated. As kids always do, I knew something was desperately wrong. I had frequent nightmares and would awaken with the covers in turmoil and a screaming heart and would shout out for my mom. Sometimes, she came. Sometimes I had to get up to find her. She was almost always sitting in her bedroom in the dark, so lost to herself that it took her several seconds to see me standing right in front of her. More and more often, I would simply wake up to check on her. One night I couldn't find her. I went from room to room, screaming her name, until I thought about the bathroom. She was there, in a full tub. It was an amazing moment. I was not accustomed any longer to seeing my mother naked. But that mattered far less than the fact that she had a small lamp in her hand, which had been plugged in across the room with an extension cord.

I want to say I stood there for a minute. I'm sure it was actually far less than that, only seconds, but she waited far too long before turning back to me, and life.

'It's okay,' she said then. 'I was going to read.'

'No it isn't,' I said.

'It's okay,' she said. 'I was going to read, Nat.'

I cried, wild with despair. She stood up in the nude to hug me, but I had the good sense to go straight for the phone to call my father. My mom was diagnosed as bipolar within a few days. The road back to my dad, to our family, to our former life, began then. But that moment, like a specter, was never fully banished from the times my mom and I were together for the rest of her life.

"Did you and your wife ever discuss the fact that she had been suicidal?"

"Objection," says Molto. "Hearsay."

"Did you and your wife ever discuss whether she would commit suicide?"

Across the courtroom, Tommy frowns. But he is finally stuck. For reasons I could never understand in law school, what my mother said about the past is hearsay and what she said about the future is not.

"When we began living together again in the late 1980s, she assured me repeatedly that she would never do that again to Nat-that he would never walk into a room to confront that." I know this is true, because she made the same promise hundreds of times to me.

"Was Nat living at home last year when Barbara died?"

"No."

"And does your wife's promise concerning Nat also inform your belief about why she would prefer to make her suicide appear to be a death by natural causes?"

"It does."

"To the best of your knowledge, Rusty, did Barbara make any attempt at suicide while you were living together?"

"No."

"And so, you had no experience with the outward behavior your wife might exhibit if she were intent on taking her life?"

"I did not."

"But if she had made it apparent that she were bent on such a course, what would you have done?"

"Objection. Speculation," says Molto.

"Would you have attempted to stop her?"

"Of course."

The second question and answer are interjected quickly before Judge Yee can rule on the initial objection.

"Sustained, sustained," says Yee.

"And so if Barbara was intent on killing herself, Rusty, she would have had to hide that fact from your son and you?"

"Judge!" Molto says sharply.

On the stand, my father's head shoots around in Molto's direction and he answers, "Yes?" He draws back at once, flabbergasted by his own mistake. "Oh, my God," he says.

Yee, that merry fellow, is wildly amused, and the entire courtroom chortles along with him. It's comic relief in a grim discussion, and the laughter goes on for a while. At the end, Yee shakes a finger at Stern.

"Enough, Mr. Stern. We all have point."

Stern responds by declining his head, a hobbled effort at a humble bow, before he goes on.

"Was your wife familiar, if you know, with John Harnason's case?"

"We talked about the matter when it was before me and afterwards. She was interested because she'd read about the case in the papers, and also because I'd described the way Mr. Harnason had accosted me after the oral argument. And of course in the weeks before Barbara died, Mr. Harnason was the subject of television ads being aired by my opponent in the election for the state supreme court. My wife complained to me often about the ads, so I know she saw them."

"Did Mrs. Sabich read the Court's decision in the Harnason case?"

"Yes. I dissented very rarely. Barbara didn't take great interest in my work, but, as I said, she'd followed the case and she asked me to bring home a copy of the decision."

"And to review what is already in evidence, the decision discusses the fact that certain drugs, including MAO inhibitors, are not covered in a routine toxicology screen?"

"It does."

Stern then turns to other subjects. My dad explains at some length that he and my mom ended their separation in 1988 with an agreement that she would stay on her meds for bipolar disease, and that was why he was so involved in picking up her pills and even putting them away. All this is clearly meant to explain why his prints are on the bottle of phenelzine. Stern then whispers to Marta, who steps across the courtroom to speak to Jim Brand. She returns with an exhibit in its glassine envelope.

"Now, Rusty, Mr. Molto asked you about your visits to Dana Mann. Do you recall that?"

"Of course."

"And was your wife acquainted with Mr. Mann?"

"Yes. Dana and his wife, Paula Kerr, were both law school classmates of mine. We had socialized a lot as couples, especially then."

"And did she know Mr. Mann's specialty in practice?"

"Certainly. Just one example, but five or six years ago, while Dana was president of the Matrimonial Bar Association, he'd asked me to give a speech to the organization. Paula came, and so Barbara had also attended the dinner."

"Now, Mr. Molto asked you on cross-examination about your two visits with Mr. Mann. And I believe you indicated that the second time you saw him, September 4, 2008, you briefly thought you were going to file for divorce. Correct?"

"Yes."

"And Mr. Mann sent you bills for his services."

"At my request. I didn't want him to make a gift of his services, for many reasons."

"You get what you pay for?" Sandy asks.

My father smiles and nods. The judge reminds him to answer aloud, and my dad says yes.

"And calling your attention to People's Exhibit 22, is that the latter invoice he sent you September 2008?" It comes up on the screen at that moment.

"Yes."

"And it's addressed to you at your home address in Nearing, correct?"

"It is."

"Is that how you received that bill-at home?"

"No, what I received was an e-mailed copy. I'd asked that all correspondence be by e-mail to my personal account."

"But you paid that invoice, People's 22, is that right?"

"Yes. I made two ATM withdrawals and bought a cashier's check at the bank."

"What bank was that?"

"First Kindle in Nearing."

"And this is the cashier's check you sent, People's 23, correct?"

"Correct." It comes up on the screen. In the memo section is the invoice number and the words "9/4/08 Consultation."

"And again, Rusty, you sent a cashier's check, rather than a personal check, for what reason?"

"So I didn't have to tell Barbara that I'd seen Dana, or why."

"Very well," says Stern. He shoots just a tiny glance toward Tommy, to let him know that he'd picked up on yesterday's imitations.

"And finally, calling your attention to People's Exhibit 24, which was also admitted during Mr. Mann's testimony. What is that?"

"That's a receipt for my payment."

"And again, it's addressed to your home in Nearing. Is that how you received it?"

"No, I received it by e-mail."

"Now, Rusty, all of these exhibits that you received by e-mail-People's 22, 23, 24, and two confirmations of your appointments-all those records were deleted from your personal computer. Is that right?"

"I heard Dr. Gorvetich's testimony to that effect."

"Did you delete those e-mails?"

"It makes sense, Mr. Stern, that I would have done that, because, as I testified, I did not want Barbara to know about my visits with Dana until I was sure I was going to proceed with a divorce. But my best recollection is that I didn't do that. And I know for certain that I never downloaded any shredding software to my computer."

"And you never discussed with Mrs. Sabich those visits to Mr. Mann or the fact that you were contemplating divorce?"

"No."

Stern leans down to speak to Marta. Finally, he tells the judge, "Nothing further."

Yee nods to Molto, who springs up like a jack-in-the-box.

"Judge, as to your theory that your wife killed herself by taking an overdose of phenelzine. Are there any fingerprints of hers on the bottle of phenelzine that was in her medicine cabinet?"

"No."

"Whose fingerprints are on that vial, Judge?"

"Mine," my father says.

"Only yours, correct?"

"Correct."

"And the websites about phenelzine-they were visited on whose computer in late September 2008?"

"Mine."

"Was your wife's computer also forensically examined?"

"As Dr. Gorvetich testified."

"Any searches about phenelzine on her computer?"

"None that were identified."

"And about this idea that your wife killed herself, Judge. For twenty years, from 1988 to 2008, she made no attempts on her life, right?"

"To the best of my knowledge."

"And in late September 2008, had anything with Mrs. Sabich changed, so far as you know?"

My dad looks hard at Tommy Molto. I don't know exactly what's happened, but this is clearly a moment my father has been waiting for.

"Yes, Mr. Molto," says my father, "there had been a significant change."

Tommy looks as though he's been slapped. He asked a question he thought was safe and walked off a cliff instead. Molto glances at Brand, who below the prosecution table opens his palm and lowers his hand an inch. Sit down, he's telling Tommy. Don't make it worse.

That's what Tommy does. He says, "Nothing further," and Judge Yee tells my father to step down. My dad closes his coat and slowly descends the three stairs from the witness stand. He looks like a proud soldier, shoulders back, head high, eyes forward. However impossible it might have seemed late yesterday, my dad suddenly seems to have won.