Presumed innocent

Chapter 28

The first thing I notice as Raymond Horgan comes into the courtroom is that he has on the same suit he wore to bury Carolyn, a subtle blue serge. The added weight does not detract from his public bearing. You would describe him now as burly, and still, in the rolling way he walks, a person of stature. He and Larren exchange the same sage grin while Raymond is sworn. Seated, Horgan looks outward to assess the crowd in a composed professional manner. He nods to Stern first, then his glance crosses mine and he acknowledges me. I do not move. I do not allow an eyelash to flutter. At this moment I wish-with all my heart-that I may be acquitted, not for the general sake of freedom, but so that I can see the look on Raymond Horgan the first time he has to face me on the street.

Here in the courtroom, awaiting Raymond's entry, there was more of that epic atmosphere, the extra amperage of a special moment-four hundred people on edge, an urgent undertone in the courtroom murmur. Today, I notice, the press gallery is larger by a row and a half, and the journalistic first-string is on hand-the anchor people and columnists. I have been surprised during the trial by the extent to which the reporters have been willing to honor Stern's injunctions to keep wide berth of me. Now that they have their file footage of me entering the courthouse, which they can show with each night's story on TV, Barbara and I are able to come and go in relative peace. Now and then someone-usually a journalist whom I have know for years-will stop me with a question in the hallway. I refer all these matters to Stern. Last week I also encountered a freelance journalist from New York who says he is considering writing a book about the case. He believes it will make good reading. I declined his invitation to buy me dinner.

I would be oblivious to the press were it not for the morning papers. I have stopped watching the accounts on TV. The summaries seem so inept that they make me furious, even when the errors favor me. But I cannot avoid the headlines, which I see on the paper-dispensing machines as we drive into the city. The two dailies seem to have sworn a feud to see which can take the lead in trashy tabloid coverage of the case. Nico's revelation in opening of Raymond's amours with Carolyn produced tasteless headlines for two days. P.A. SEX the Herald blared, with all kinds of kickers and subheads. It is impossible that the jury does not view these headlines, too. They pledged during voir dire not to read the papers, but that is a promise few trial lawyers trust.

In the jury box, at the moment, there is a considerable stirring. The jurors seem far more excited to see Raymond than was the case, for example, when they first glimpsed Nico during the voir dire. Then I noticed only a few of the prospective jury members leaning over to one another and nodding in Delay's direction. Horgan brings a greater aura to the courtroom. He has been well known for most of everybody's adult life. He is a celebrity; Della Guardia is a replacement. Perhaps the suggestion of fleshy intrigue Nico floated in opening also contributes to the high interest. It is clear, however, that as Stern weeks ago predicted, we have reached a critical juncture in this trial. Each juror has revolved his chair to face the witness stand. As Molto comes to the podium to begin the direct examination, the large courtroom is quiet.

"State your name, please."

"Raymond Patrick Horgan," he answers. "The third." With that he grins very briefly up at Larren. A private joke. I never knew that Raymond was a third. Amazing, sometimes, what comes out under oath.

Molto again has readied himself with care for the examination. Raymond clearly knows what is coming, as he should, and he and Tommy develop a nice rhythm at once. Horgan's hands are folded. In his blue suit and finest public manner, he looks serene. All his beguiling charm is present; his candor. His gruff baritone is reduced one marking on the volume register in an effort at understatement.

Tommy is taking his time. They are going to get everything they can from Horgan, recover quickly from yesterday's debacle in the war of impressions. They cover Raymond's background. Born right here. High school on the East End at St. Viator's. Two years' college, then his dad died. He became a cop. Seven years on the force, was already a sergeant when he graduated from night law school. I am afraid for a moment that Molto is going to bring out the fact that Raymond practiced law with Larren, but that is elided. Horgan simply says it was a three-man partnership, doing primarily criminal work. After sixteen years in practice, politics.

"Some elections I won," says Raymond, "some I lost." With that he turns to smile fondly at Nico at the prosecutor's table. Delay rears his half-bald head from taking notes and beams back. My God, how they look at each other! The fastest friends. The jurors seem delighted by his alliance, forged on well-known past adversity. The smiling schoolteacher watches the unspoken exchange between the two with apparent delight. I feel my soul sinking. This will be a very hard day.

"And do you know the defendant, Rozat Sabich?"

"I know Rusty," Raymond says.

"Do you see him here in court?"

"I do."

"Would you point to him and describe what he is wearing."

"Next to Mr. Stern. Second at the defense table, in a blue chalk-stripe suit."

This is a formality to establish that the Sabich spoken of is me. Yesterday with Eugenia, Sandy rose and agreed-"stipulated" is the term-to the identification so that we did not have to go through this exercise in finger-pointing. But now Stern quietly says to me, "Stand." I do. I rise slowly and face Raymond Horgan. I do not smile or grimace, but I am sure my abject fury is plain. Certainly Raymond's affability fades somewhat, even while his hand is in the air.

"That's him," says Raymond quietly.

Molto breezes through the history of my association with Raymond. Sandy will bring it out in detail anyway. Then he asks Raymond about Carolyn. Here Horgan becomes instantly somber. He lets his eyes fall to the rail of the witness box and says, "Yes, I knew her, too."

"What was the nature of your relationship?"

"I met her first as a probation officer. For eight years she was employed as a deputy prosecuting attorney in our office, and for a very brief time at the end of last year we had a personal relationship as well."

Nice, succinct. They move to the murder. Molto never mentions the election, but it emerges in Raymond's answers by reference.

"And is there any practice in the P.A.'s office in supervising police investigations?"

"Certainly in a major case-and this was a very major case in my mind-there was a practice to assign a deputy P.A. to guide and assist the police."

"Who made the assignment in this case?"

"Well, to short-circuit things a little bit, I would say that Mr. Sabich and I decided that he should have that role in this case."

Tommy for the first time pauses. Raymond, it seems, may have backed down a little as a result of his meeting with Stern and me. Molto did not expect that. He asks again:

"How did Mr. Sabich get that assignment?"

"I don't really remember whether I suggested it or he did. Like everybody else, I was confused and upset at that time. He got the case. But he was glad to have it. I remember that. He was not reluctant at all, and promised to pursue it vigorously."

"Did he?"

"Not to my way of thinking." This is objectionable as a conclusion but Stern does not want to interrupt. One of his thick fingers has been laid from his chin to his nose and he watches intently, not even bothering to take notes. At many times his concentration in court is trance-like. He shows very little, just absorbs. I have the same sense that I did when we were in Horgan's office that Sandy's calculations are not about facts or strategy but character. He is trying to figure Horgan out.

Raymond registers his complaints with my handling of the case, including having to urge me to speed up the fingerprint and fiber reports. The impression comes through clearly that I was dogging it. Then he describes the conversation in his office that night we both first realized he was going to lose.

"He asked me if I had been intimate with Carolyn."

"And what did you tell him?"

"The truth," says Raymond, quite simply. No big deal. "We'd been on for three months, then off."

"And when you told him this, did Mr. Sabich express surprise in any way?"

"None at all."

I get it. They're going to reason backward. I asked, but I knew anyway. What is their theory? That I was outraged when I found out? Or that I gave in to the weight of accumulated grievances? Neither one makes complete sense, when you suppose, as Nico has, that my relationship with Carolyn was ongoing. Not having the right facts always hurts. I can feel many of the jurors watching me now, trying to read in me the truth of the prosecutors' surmise.

"And at any time in this conversation or at any time earlier, did Mr. Sabich inform you that he himself had a personal relationship with Ms. Polhemus?"

Sandy is instantly back to life, on his feet.

"Objection. Your Honor, there is simply no proof of record of any personal relationship between Mr. Sabich and Ms. Polhemus." A good tactic, if for no other reason than to break the rhythm now and draw the jury back to yesterday. But this obstacle we are throwing up still presents a painful straddle for me. We cannot continue to make an issue of this failure of proof if I am going to get on the witness stand and tell the jury that everything Stern contested for two weeks is true, that Carolyn and I indeed had a warm romance. This is one of the many delicate means that Stern is employing seemingly to discourage my testimony.

"We-e-e-ll," drawls Larren. He turns around in his chair. "I would say almost no proof." A nice comment for the defense. "I'm gonna let the question stand, but I want to give the jury a limiting instruction." He faces them. 'Ladies and gentlemen, Mr. Molto is asking a question based on an assumption. It's up to you to decide, based on the evidence you hear in court, whether that assumption is true. Just because he says this doesn't make it so. Mr. Stern says there is not sufficient evidence to warrant that assumption, and at the end of the case that will be one of the things for you to determine. Proceed, Mr. Molto."

Molto repeats the question.

"Certainly not," says Raymond. The Gaelic humor has now left his face.

"Is that something you would have wanted to know?"

"Objection."

"Rephrase it, Mr. Molto. Is it something that the witness would have expected Mr. Sabich to tell him, based on the witness's understanding of his office's practices?" It is rare for Larren to be so helpful to the prosecutors. I can see that Raymond is having the impact I long feared. When the question is put as the judge suggested, Raymond buries me. "I certainly did expect that. I never would have allowed him to handle that investigation. It raises more questions than it answers. The public should know that things are being done for professional, not personal, reasons," he Adds, a gratuitous shot. Stern, in front of me, frowns.

Molto then takes Raymond to the end. The meeting in his office. Horgan faithfully recounts my outbursts in spite of Mac's and his warnings.

"Describe Mr. Sabich's appearance as he left the meeting."

"He looked quite excited, I would say. Very upset. He seemed to have completely lost his composure."

Molto looks at Nico, then says he has nothing further on direct.

Larren takes a recess before cross. In the john, as I come out of a stall, I find Della Guardia two sinks down. His hair is too thin now to comb; instead, he tries to tickle it into place with his fingertips. His eyes flick a little bit when he notices me in the mirror.

"Not a bad witness, huh?" he asks. His intent is hard to divine. I don't know if this is a casual aside or gloating. I keep getting the feeling that Nico is out of place emotionally. He is not oriented in this case-like offering me his hand on the day of the arraignment. He has never been the kind of person to make a frontal approach to unpleasantness, especially once someone has reached him. I remember when he divorced Diana; even though she had been running around, he took her back into the apartment for a few weeks when she was thrown out by the other guy. Nico reads something in my hesitation. "I mean, you have to admit, he is not a bad witness." I dry my hands. I realize now what it is. Nico still wants me to like him. God, human beings are strange. And maybe Nico even has his redeeming side. Horgan at this moment would be cold as a saber's edge. It seem pointless at this little minute to resist him. I smile a bit. I use his nickname.

"Better than Mrs. Krapotnik, Delay."

"Now, Mr. Horgan, you mentioned that you had a personal relationship with Ms. Polhemus? Is that correct?"

"It is."

"And you also told us that you believe Mr. Sabich should have informed you that he had had such a relationship as well?"

"At a later time," says Raymond carefully. He wants to rule out jealousy on his part. "I felt when the investigation began he had a professional obligation to tell me."

"Have you any personal knowledge, Mr. Horgan, that there was ever such a relationship between Mr. Sabich and Ms. Polhemus?"

"That's the point," says Horgan. "He never told me."

Sandy does not take getting stuck cheerfully. He looks at length toward Horgan. He wants the jury to notice that Raymond Horgan is taking shots.

"Please answer the question I asked you. Do you remember it?"

"I do."

"But you chose not to answer it?"

Raymond's mouth moves without words. "I apologize, Mr. Stern. I have no personal knowledge of such a relationship."

"Thank you." Sandy strolls. "But assuming there was something to reveal, you believe an honest official would make such disclosures to someone in a responsible position?"

"I do."

"I see," says Stern. He takes a moment to face Raymond. Sandy is short and soft, but in the courtroom he emits tremendous power. He is clearly equal to Raymond Horgan, who, too, is looking very firm. He sits there with his reddened Irish bulk, his hands folded, waiting for Sandy to take him on. Assuming that he comes out of this intact, Raymond's combination of prominence and skill is likely to make him the leading defense attorney in this city. His nearest rival will be the man who is examining him now. In the years ahead there are no doubt going to be a number of multiple-defendant cases in which they will sit together as co-counsel. In a very real sense, preservation of his relationship with Raymond is of far more practical importance for Stern than anything that happens to me. The rule of life in the defense bar ordinarily is to go along and get along. The state is the only professional enemy these guys want to have. Recognizing all of that, I have put my hostility aside and told Sandy that he has my blessings to treat Raymond gently. As Stern has pointed out before, Raymond's credibility, born of years in the public light, will make him hard to successfully assail, in any event. But it is clear from Stern's demeanor that he will be neither courtly nor accommodating to Raymond. Perhaps Stern believes the direct was too damaging to simply absorb. But I am surprised that Sandy has begun any attack this abruptly. There are some favorable things Raymond will have to concede-compliments on my performance in the office in the past, for example. The traditional wisdom is that you take what a witness will give before you slap him.

"And you applied these standards for disclosure to yourself as well?"

"I tried."

"Certainly you would give all appropriate information to someone on your staff doing a job for you?"

"Again, Mr. Stern, I'd try."

"And certainly the case concerning Ms. Polhemus's death was a very important case in your office?"

"Given its political significance, I would call it critical." Raymond looks in my direction as he says this. His eyes are hard as ball bearings.

"But even though you yourself saw this as a critical case, you did not give Mr. Sabich all the information at your disposal about the matter, or about Ms. Polhemus, did you?"

"I tried."

"Did you? Was it not very important to know everything Ms. Polhemus was working on, so that any person who might have a motive to do her harm could be identified?"

Raymond suddenly sees where this is going. He sits back in his chair. But he still tries to fight.

"That wasn't the only thing that was important."

Bad mistake. Lawyers really are lousy witnesses. Raymond is going to deny that Carolyn's docket was an important source of leads. Sandy embarrasses him badly in the next few moments. People in law enforcement often fear reprisals from those they prosecute? Such reprisals all too frequently occur? Law enforcement would be impossible if prosecutors and police could be assaulted, maimed, murdered by those they investigate? Certainly when Ms. Polhemus was killed it was a thought, indeed it was speculated in the press, was it not, that a former defendant might have been her attacker? Raymond sees he's lost after a few questions, and answers simply yes.

"So all of Ms. Polhemus's cases were important? It was important to know whom she was investigating, what she was looking into?"

"Yes."

"And in spite of knowing that, Mr. Horgan, you personally removed a file from Ms. Polhemus's drawer after the investigation of her murder began, didn't you?"

"Yes."

"A very sensitive matter, was it not?"

Larren has observed the cross, lying back in his chair. For the most part he has appeared faintly amused by this contest between two well-known professionals. Now he interrupts.

"What's the relevance of this, Counsel?"

Sandy for a moment is word-struck.

"Your Honor, I think that the relevance of this is clear."

"Not to me."

"The witness has testified on direct examination that Mr. Sabich did not bring to his attention information that Mr. Horgan regarded as pertinent. The defendant is entitled to explore Mr. Horgan's standards in this regard."

"Mr. Horgan was the prosecuting attorney, Mr. Stern. You're mixing apples and oranges," says the judge.

Relief comes from an unexpected source. Della Guardia is on his feet.

"We have no objection to this line of questioning, Judge."

Larren lets his glance linger in Nico's direction. Molto immediately grabs Delay's forearm. I assume that Nico wants the discussion about professional standards to continue in the belief that it will further educate the jury about the extent of my deviation. But he is well out of place here. For one thing, Horgan is not his witness. And I take it from the heated way that Molto speaks to him as Delay resumes his seat that Nico does not recognize the drift of Sandy's questioning. I wonder if he even knows about the B file or has just forgotten. I make a note which I will give to Stern at the break: Who did Horgan tell re B file? Molto? Nico? Neither?

With new daylight, Sandy quickly proceeds.

"As I said, this was a very sensitive matter, was it not?"

"Yes."

"It involved allegations-"

Larren again injects himself, more faithful than a Labrador.

"We don't need the details of the internal workings of the prosecuting attorney's office or of its investigations, many of which, I remind you, Mr. Stern, are protected by rules of grand-jury secrecy. This was a sensitive case. Let us move on."

"Of course, Your Honor, I had no interest in disclosing any secrets."

"Of course not," says Larren. He smiles with apparent disbelief and turns toward his water carafe, which it so happens, is in the direction of the jury. "Proceed."

"And, in fact, this case was so sensitive, Mr. Horgan, that you assigned it to Ms. Polhemus without informing any other person in your office that you had done so. Yes?"

"Yes."

Sandy quickly lists everyone in the office who was not told: Mac. The Special Investigations Chief, Mike Dolan. Three or four more names. He ends with me. Raymond acknowledges each.

"And you gave the file to Mr. Sabich only when he personally informed you that a file appeared to be missing from Ms. Polhemus's office, is that not true?"

"True."

Sandy takes a little tour around the courtroom to let all of this sink in. Raymond has been tarnished. The jury is paying close attention.

"Now, Ms. Polhemus was an ambitious woman, was she not?"

"I suppose it depends on what you mean by ambitious."

"She enjoyed being in the public eye, she wanted to progress in your office, did she not?"

"All true."

"She wanted to handle this case?"

"As I recall."

"Now, Mr. Horgan, you assigned this case to Ms. Polhemus, this highly sensitive matter to her, this case that only you and she knew about, this case she was eager to handle while you two were personally involved, correct?"

Raymond begins to roll again in his seat. He knows that Stern will spare him nothing now. He has hunkered down a little, so that to my eye it looks as if he is trying to duck.

"I really don't recall exactly when I made that assignment."

"Let me remind you, then." Sandy gets the file jacket, shows Raymond the docketing date, reminds him of his direct testimony about when he and Carolyn were dating. "So," he concludes, "you assigned this very sensitive case to Ms. Polhemus while you were personally involved with her?"

"That appears to be when it happened."

Stern stands still and looks at Horgan.

"The answer to the question," says Raymond, "is yes."

"Your failure to inform anyone of this assignment contradicted established procedure in your office, did it not?"

"I was the prosecuting attorney. I decided when there would be exceptions to the rules." He has picked up Larren's hint.

"And you made an exception for Ms. Polhemus?"

"Yes."

"With whom you were-Strike that. Ordinarily such a case would have been assigned to a lawyer with more experience in such matters, would it not?"

"That's a consideration ordinarily."

"But that wasn't a consideration here?"

"No."

"And this remained your secret with Ms. Polhemus, did it not, even after your relationship with her ended?"

"True," says Raymond. He smiles for the first time in a while. "There was no change in my conduct."

"Because you were embarrassed?"

"It didn't occur to me."

"And when Mr. Sabich was trying to assemble all the information in the office about Ms. Polhemus's cases, it did not occur to you that you had gone to her office and put the file in your drawer?"

"I suppose it didn't."

"You were not attempting to conceal anything, were you, Mr. Horgan?"

"I was not."

"There was an election campaign taking place, was there not?"

"Yes."

"A tough campaign?"

"Brutal."

"A campaign in which, as it turned out, you were losing?"

"Yes."

"A campaign in which your opponent, Mr. Della Guardia, had been a deputy in your very office and had many friends there?"

"That's true."

"And you were not concerned, Mr. Horgan, in the midst of this brutal campaign about word leaking out, through one of Mr. Della Guardia's friends, that you had given choice assignments to an assistant with whom you were sleeping?"

"Maybe it crossed my mind. Who knows, Mr. Stern? It was not an ideal situation."

"Far from it," says Stern. "I ask you again, sir, were you not trying to hide the fact that you had had an affair with a member of your staff?"

"It wasn't something I ordinarily talked about, if that's what you mean."

"No indeed. It could be viewed as unprofessional."

"It could be, but it wasn't. We were both adults."

"I see. You had confidence in your judgment, not withstanding this affair?"

"Very much so."

Stern has gradually approached Horgan. Now he takes the last few steps and reaches out to touch the rail of the witness stand, so that he stands only a few feet from Raymond. "And yet, sir, you come to this courtroom where the life of a man who served you faithfully for a dozen years now hangs in the balance, and you tell us that you would have none of the same confidence in him?" Horgan's look locks with Stern's. From where I am, I cannot quite see Raymond's expression. He finally faces about and when he does he has his tongue tucked into his cheek. He is looking now in Della Guardia's direction, somewhat sheepishly. I am not sure if he is seeking help or casting apologies.

"I wish he had said something, that's all. It would have looked better for him. It would have looked better for me.

One of the jurors says, "Hmm." I hear the sound, but do not see whom it came from. Others are looking toward the floor. It is hard to figure why this seems to have such an impact. Nothing has changed the fingerprints, or the fibers, or the records from my phone. But it has been a splendid moment for the defense. Molto and Nico have brought Raymond Horgan to this courtroom as the model of propriety, the arbiter of standards. Now it turns out that things have been overblown. Just as he did in representing Colleen McGaffen, Sandy Stern has found the message to this jury that he wishes to send but never speak aloud. So what? he is saying. Suppose it is true that Sabich and the decedent had been intimate. Suppose that he chose, wisely or not, to keep that to himself. It is still no different from what Horgan did. If I was too embarrassed to confess aspects of my past conduct, everyone should understand. The knot between what I did not say and what I did has been untied; the juncture has been severed between murder and deceit.

Sandy walks away. He lets Horgan sit. Raymond sighs a couple of times and removes his handkerchief. As Stern paces by our table, he places his hand on my shoulder and I cover it with mine. A spontaneous gesture, but it seems to go down well with one or two jurors who notice.

"Let us turn to another subject, Mr. Horgan. How did you meet Mr. Sabich?"

Sandy is still strolling, headed back now toward the witness, and below the table I motion to him, no. I forgot to tell him not to ask that question. "Perhaps we should not loiter with ancient history," says Stern casually. "I shall withdraw that question, if the court please. As a matter of fact, Your Honor, if this would be a convenient point, perhaps We could all do with some lunch."

"Very well," says Larren. He seems particularly sober after Raymond's performance. Before he leaves the bench, Judge Lyttle glances back at Horgan, who has still not moved.