Presumed innocent

Chapter 33

"Doctor Kumagai," says Sandy Stern in a tone which from its first syllable bristles with derision. It is five past two, the beginning of the afternoon session, and these are the first words of a cross-examination which both Kemp and Stern have promised me privately will be the most eventful of the trial.

Tatsuo Kumagai-Ted to his friends-the state's final witness, faces Stern, limp with indifference. His hands are folded. His brown face is placid. To this audience, he presents himself as a man without need of expression. He is an expert, an unaffected observer of facts. He is dressed in a blue pincord suit, and his abundant black hair is folded back neatly in a small pompadour. His direct examination this morning was the first occasion on which I've seen Painless testify and he was somewhat better than I expected. The medical terminology, and his unique speech patterns, caused the court reporter to interrupt a number of times to ask for answers to be repeated or spelled. But he has an undeniable presence. His native arrogance is translated by the witness chair into a developed confidence becoming an expert physician. His qualifications are impressive. He has studied on three continents. He has given papers a over the world. He has testified as a forensic pathologist in homicide cases throughout the United States.

These credentials emerged as part of the lengthy process of qualifying Painless as an expert. Unlike a so-called occurrence witness, who is confined to telling what he saw or heard or did, Painless is charged with considering all of the forensic evidence and rendering an opinion on what occurred. Prior to his appearance, various stipulations were read. The forensic chemist's analysis. The results of blood tests. On the stand, Painless used these facts and his own examination of the body to provide a comprehensive account. On the night of April 1, Ms. Polhemus had had sexual relations, almost certainly consensual in nature. This opinion was based on the presence of a 2 percent concentration of the chemical nonoxynol-9 and various jelly bases, indicating the use of a diaphragm. The man with whom Ms. Polhemus had intercourse was, as I am, a type-A secreter. Soon after she had had sex-the relative time indicated by the depth within the vagina of the primary seminal deposit-Ms. Polhemus was bludgeoned from behind. Her attacker was right-handed, as I am. This can be determined from the angle of the blow to the right side of her head. His height cannot be approximated without knowing her posture at the time of the attack or the length of the murder weapon. The best indication from the cranial wound is that she had reached her feet, if only briefly, when she was struck. The diaphragm was apparently removed at this time, and Ms. Polhemus, already dead, was bound. Without Stern's objection, Painless testified that the presence of the spermicidal compound, coupled with the unlocking of the doors and windows, led him to believe that a rape had been simulated in order to conceal the murderer's identity, and that the murderer was someone familiar with the methods of detection of crime and Ms. Polhemus's routine responsibilities in the P.A.'s office.

When Nico had led Painless through this summary, he asked if his opinion of how the crime occurred had ever been communicated to me.

"Yes, sir, I met Mr. Sabich about April 10 or 11 this year and we discuss the case."

"Tell us what was said."

Well, Mr. Sabich try to convince me that Ms. Polhemus must have die accidentally as part of some kind of deviant sexual activity, in which she had voluntarily been bound."

"And how did you respond?"

"I say that was ridiculous, and explain what the evidence show really occur."

"And after you informed Mr. Sabich of your theory of what occurred, did you have any further discussion?"

"Yes. He became quite upset. Angry. He stood up. He threaten me. He say that I better be careful or he gonna prosecute for tamperin with an investigation. There's some more, but basically, that's it."

Both Stern and Kemp on either side of me watched Painless do his stuff with a calm approaching the beatific. Neither one bothered to take notes. I do not yet know what is coming, although that is my choice.

Kumagai made a mistake, Kemp told me when I arrived at their offices this morning. A big one.

How big? I asked.

Enormous, said Kemp. Huge.

I nodded. To myself I thought that if it were somebody other than Painless, I would be more surprised.

Do you want to know what it is? Kemp asked me.

Strangely I found that Stern's assessment was right. It was better not to know details. Simple hearing that there was some outsized error was enough to steer me directly to the peripheries of my deepest rage. I had no desire to enter that region of disorder.

Surprise me, I told Kemp. I'll hear it in court.

Now I wait. Painless sits there, unfluttered, impassive. At lunch, Kemp told me he believed that Kumagai's career could be over tonight.

"Doctor Kumagai," Stern begins, "you have testified here as an expert, is that right?"

"Yes, sir."

"You have told us about your papers and your degrees, have you not?"

"I answer questions about that, yes."

"You said you have testified on many prior occasions."

"Hundreds," says Painless. Each answer has a kind of screw-you brittleness. He means to be a smart guy and tough, the better of any cross-examiner.

"Doctor, has your competence ever been called into question, to your knowledge?"

Painless adjusts himself on the stand. The assault has begun.

"No, sir," he says.

"Doctor, is it not true that many deputy prosecuting attorneys over the years have complained about your competence as a forensic pathologist?"

"Not to me."

"No, not to you. But to the chief of police, resulting in at least one memorandum being placed in your personnel file?"

"I don't know about that."

Sandy shows the document first to Nico, then to Kumagai on the stand.

"No, I never seen that," he says at once.

"Do you not have to be notified under police regulations of any addition to your personnel file?"

"Could be, but you ask what I remember. I don't remember that."

"Thank you, Doctor." Sandy removes the document from Kumagai's hands. As Stern is strolling back to our table, he asks, "Do you have any nicknames?"

Kumagai stills. Perhaps he is wishing he had acknowledged the letter.

"Friend call me Ted."

"Aside from that?"

"Don't use nicknames."

"No, sir, not that you use. But by which you are known?"

"I don't understand question."

"Has anybody ever referred to you as Painless?"

"To me?"

"To anyone, to your knowledge?"

Again Painless takes a moment to shift around in his seat.

"Could be," he says finally.

"You do not enjoy that nickname, do you?"

"Don't think about it."

"You acquired that nickname some years ago from the former chief deputy prosecuting attorney Mr. Sennett, in an unflattering context, did you not?"

"If you say-"

"Mr. Sennett told you to your face, did he not, that you had bungled an autopsy and that the only person who found working with you painless was the corpse, because it was dead?"

The laughter thunders in the courtroom. Even Larren is chuckling up on the bench. I shift in my seat. Whatever Stern has better be good, because for the first time he has abandoned his innate decorousness. His cross so far verges on the cruel.

"I don't remember that," says Painless coldly when the room has come back to order again. Over the years he has grown adroit in his knowledge of the rules of evidence. Every cop and P.A. in Kindle County knows that story. Stan Sennett would be happy to tell it from the stand. But the judge is not likely to allow such a diversion, called collateral impeachment. Painless has drawn his shoulders around him. He looks out at Stern, waiting for more. He has apparently taken some pleasure in what he regards as his own small triumph.

"Now, Mr. Della Guardia and Mr. Molto are two persons from the P.A.'s office with whom you have worked with less-let us say disagreement, is that right?"

"Sure. They my good friends." On this point, Painless has apparently been well schooled. He will acknowledge his contacts with Tommy and Delay, in order to minimize their importance.

"Did you discuss this investigation with either one of them while it was in progress?"

"I talk to Mr. Molto sometime."

"How often did you speak to him?"

"We stay in touch. We talk now and then."

"Did you talk to him more than five times in the first few weeks of April?"

"Sure," he says, "if you say." Painless is taking no chances. He knows that subpoenas are out. He can't be sure whose MUDs we have obtained.

"And you talked in detail about this investigation?"

"Mr. Molto's a friend. He ask what I'm doin, I tell him. We talk about public information. Nothin from the grand jury." Painless resumes his satisfied smile. These answers, of course, have been the subject of prior discussion with the prosecutors.

"Did you tell Mr. Molto the results of the forensic chemist's analysis prior to conveying them to Mr. Sabich? I am talking specifically about the specimen which showed the spermicidal jelly."

"I understand," says Painless curtly. He looks directly over at Tommy. Molto has his hand over part of his face, and with Kumagai's glance, he straightens up and takes it away.

"I think so," says Kumagai.

He has not quite finished his response when Larren interrupts.

"Just a second," says the judge. "Just one second. The record will reflect that Prosecuting Attorney Molto has just made a gesture which I recognize to be a signal to the witness in connection with his last answer. There will be further proceedings with regard to Mr. Molto at a later time. Proceed, Mr. Stern."

Tommy is crimson as he struggles to his feet.

"Your Honor, I am terribly sorry. I don't know what you are talking about." Neither do I, and I was watching Molto. But Larren is inflamed.

"This jury is not blind, Mr. Molto. And neither am I. Proceed," he says to Stern, but his anger is too great to store away and he immediately wheels his chair around in Molto's direction and gestures with the gavel. "I warned you. I told you before. I am very upset with your conduct during this trial, Mr. Molto. There will be proceedings."

"Judge," says Tommy despairingly.

"Resume your seat, sir. Mr. Stern, proceed."

Stern comes over to the table. I explain what I saw. He, too, observed nothing. But Stern does not let the incident pass. In a mincing tone he asks, "It is fair to say, Dr. Kumagai, that you and Mr. Molto have always had good communication, is it not?"

The question evokes a few snickers, especially from the reporters' section.

Kumagai blinks with disdain and fails to answer.

"Dr. Kumagai," asks Stern, "it is your ambition, is it not, sir, to become coroner of Kindle County?"

"I like to be coroner," says Painless with disarmingly little hesitation.

"Dr. Russell doin a good job now. Couple years he retire, maybe I put in for the job."

"And the P.A.'s recommendation would help you obtain that position, would it not?"

"Who knows?" Painless smiles. "Can't hurt."

Grudgingly, I must admire Delay. Kumagai is his witness and he has obviously counseled him to play it straight about whatever was going on during the election campaign. Nico quite clearly wants to have some prosecutorial candor to troop before the jury to make up for some of Molto's gaffes. And his judgment strikes me as correct. If it were not for the incident with the judge a moment ago, it would all sit pretty well.

"By April, had you and Mr. Molto ever discussed the possibility of you becoming coroner, Dr. Kumagai."

"I say. Mr. Molto and me friends. I talk about what I wanna do, he talk about what he wanna do. Talk all the time. April. May. June."

"And in April you also spoke about this investigation a number of times before you received the forensic chemist's report?"

"I'd say so."

"Now, that report, sir, concerned the semen specimen which you had taken from Ms. Polhemus during the autopsy, is that right?"

"Right."

"And it is that specimen which has been identified as being of Mr. Sabich's blood type and as containing chemicals consistent with the use by Ms. Polhemus of a birth control device-a diaphragm. Am I correct?"

"You are correct."

"And the presence in that specimen of this birth-control chemical, the spermicide, is critical to your opinion, is it not?"

"All facts important, Mr. Stern."

"But that fact is particularly important, because you, sir, want us to believe that this tragic incident merely had the appearance of a rape, do you not?"

"Don't want you to believe nothin. I give you my opinion."

"But it is your opinion-to get down to brass tacks, as they say-that Mr. Sabich tried to make this look like a rape, correct?"

"If you say so."

"Well, is that not what you are trying to suggest? You and Mr. Molto, and Mr. Della Guardia? Let us be plain with these people." Sandy points to the jury. "Your opinion is that this was a staged rape. And that the way it was done suggests some knowledge of investigative techniques and of Ms. Polhemus's regular duties in the P.A.'s office, correct?"

"That's what I say on direct."

"And all of that points at Mr. Sabich, does it not?"

"If you say so," Painless says eventually, with a smile. You can see his reluctance to believe that Stern is inept enough to implicate his own client. But Sandy keeps forcing the issue, saying more than Kumagai would risk on his own, and Painless takes his characteristic pleasure in someone else's misfortune.

"And all of those deductions depend in the end on the presence of spermicidal jelly in the specimen you sent to the forensic chemist, do they not?"

"More or less."

"Much more than less, is it not?"

"I would say."

"So this specimen, and the presence of the spermicide, is critical to your expert opinion?" says Stern, arriving at the point where he was a moment ago. This time Painless concedes. He shrugs his shoulders and says all right.

"Now, does your expert opinion, Dr. Kumagai, take any account of the fact that no spermicidal jelly was found in Mr. Polhemus's apartment? Are you familiar with that testimony that was given here by Detective Greer?"

"My opinion on scientific evidence. I don't read the transcript-"

"But are you familiar with that testimony?"

"I heard about it."

"And are you not concerned, as an expert, that your opinion depends on the presence of a substance not found in the victim's belongings?"

"Am I concerned?"

"That is my question."

"Not concerned. I got an opinion on scientific evidence."

Stern gives Painless the long look.

"Spermicide came from somewhere, Mr. Stern. I don't know where lady hides this stuff. It's in the specimen. Test says what it says."

"Just so," says Sandy Stern.

"You stipulated," says Kumagai.

"That the spermicide was in the specimen you sent. Yes, sir, we did agree to that." Sandy walks around the courtroom. I still cannot guess what it is that Kumagai missed. Until Painless mentioned the stipulation I was ready to bet that the spermicide was misidentified.

"Now, sir," says Stern, "your initial impressions at the time of the autopsy took no account of the presence of a spermicide, did they?"

"Can't remember now."

"Well, think back, please. Was it not your original theory that the person who had last had intercourse with Ms. Polhemus was sterile?"

"Don't recall."

"Really? You told Detective Lipranzer that Ms. Polhemus's attacker seemed to have a condition in which he produced dead spermatozoa, did you not? Detective Lipranzer has already testified once before the jury. I am sure it would be no problem for him to return. Please reflect, Dr. Kumagai, is that not what you said?"

"Maybe. Very preliminary."

"All right, it was your very preliminary opinion. But it was your opinion then?"

"I guess."

"Now, do you recall the physical findings that led you to that opinion?"

"No, sir."

"As a matter of fact, Doctor, I am sure it is difficult for you to recall, unaided, any autopsy within days of when it took place, is that right?"

"Sometime."

"How many autopsies do you do in a week, Dr. Kumagai?"

"One, two. Sometime ten. Depends."

"Do you remember how many you performed in the thirty days surrounding Carolyn Polhemus's death?"

"No, sir."

"Would you be surprised to know that it was eighteen?"

"Sound right.

"And with that number, it is obvious, is it not, that the specifics of any one examination may slip your mind?"

"True."

"But when you spoke to Lipranzer the details were fresher. Were they not?"

"Probably."

"And you told him then that you believed the attacker was sterile?"

"I say, I somewhat remember that."

"Well, let us review for a moment those findings you presently recall that might have led to that preliminary opinion."

Sandy runs through it quickly. The rigor mortis, blood coagulation, and digestive enzymes established the time of death. The primary deposit of male fluids in the rear of the vagina, away from the vulva, indicated that Carolyn had spent little time on her feet after sex, meaning that intercourse had occurred near the time of her attack. And there was an absence in the fallopian tubes of any live spermatozoa, which one would expect to find ten to twelve hours after intercourse, assuming no contraception had been used.

"And to explain those phenomena, particularly the dead spermatozoa, you theorized that the attacker was sterile. It did not occur to you at first, Doctor, that a spermicide had been used, did it?"

"Apparently not."

"As you look back, you must think you were a fool to have missed something so obvious as the use of a contraceptive spermicide?"

"Make mistakes," allows Painless with a flip of his hand.

"You do?" asks Stern. He eyes the state's expert. "How often?"

Kumagai does not answer that. He recognizes his miscue.

"Mr. Stern, I find no birth-control device. No diaphragm. Apparently, I assume no birth control used."

"But certainly, Dr. Kumagai, an expert of your stature could not have been so easily misled?"

Kumagai smiles. He knows he is being taunted.

"Any single fact important," he says. "Kind of thing that murderer knows."

"But you yourself were not trying to mislead Detective Lipranzer when you gave him your initial impression, were you?"

"Oh no." Painless shakes his head vigorously. He has been prepared for that suggestion.

"You must have been convinced, Doctor, at that time, that birth control had not been used-so convinced that you considered the use of a spermicide to be out of the question?"

"Look, Mr. Stern. I got an opinion. Chemist has results. Opinion changes. Lipranzer know opinion's preliminary."

"Let us consider some alternatives. For example, Dr. Kumagai, you would be convinced that birth control would not be used by a woman who knew she could not bear children, correct?"

"Sure," he says. "But Ms. Polhemus got a child."

"So the evidence has shown," remarks Stern. "But let us not consider the particulars of Ms. Polhemus. Just bear my example in mind. If a woman knew she could not conceive, it would be unreasonable for her to use a spermicide, would it not?"

"Sure. Unreasonable." Painless agrees, but his answers are growing slower. His eyes seem thick. He has no idea where Stern is headed.

"Absurd?"

"I'd say."

"Can you, as a forensic expert, conceive of any reason that such a woman might use a diaphragm or a spermicide?"

"We not talkin about a lady in menopause?"

"We are speaking of a woman who knows without question that she cannot conceive."

"No reason. No medical reason. I think of nothin."

Sandy looks up at Larren. "Your Honor, may the court reporter mark the last five questions and answers so that she can read them back later, if need be?"

Kumagai conducts a slow survey of the courtroom. He looks at the judge, the reporter, finally the prosecutors' table. He is actually frowning now. The trap, whatever it is, has been set. Everyone knows it. The reporter attaches a clip to the narrow sheaf of stenographic notes.

"Is it not your expert opinion, Dr. Kumagai," asks my lawyer, Alejandro Stern, "that Carolyn Polhemus was a woman who knew she could not conceive?"

Kumagai looks out at Stern. He bends over the microphone before the witness chair.

"No," Painless says.

"Please do not rush yourself, Doctor. You did eighteen autopsies in those weeks. Would you not rather consider your original notes?"

"I know the lady use birth control. You stipulate," he says again.

"And I, sir, say once more that we stipulated to the chemist's identification of the specimen that you sent."

Stern returns to our table. Kemp is already holding aloft the document Sandy wants. Stern drops a copy with the prosecution and delivers the original to Kumagai.

"Do you recognize the notes of your autopsy of Ms. Polhemus, Dr. Kumagai?"

Painless flips a few pages.

"My signature," he says.

"Would you please read aloud the short passage marked by the paper clip?" Sandy turns to Nico. "Page 2, Counsel." Kumagai has to change glasses.

"The fallopian tubes are ligated and separated. The fibrillated ends appear normal." Kumagai looks down at the sheet he has read from. He pages again to the end. He is frowning, deeply now. Finally he shakes his head.

"Not right," he says.

"Your own autopsy notes? You dictate them as you are conducting the procedure, do you not? Surely, Doctor, you are not suggesting you made a contemporaneous error?"

"Not right," he says again.

Stern comes back to the defense table for another piece of paper. I have gotten it now. I look up to him as he takes the next document from Kemp. I whisper: "Are you telling me that Carolyn Polhemus had her tubes tied?"

It is Kemp who nods.

The next few seconds are blank. Weirdly, unaccountably, I feel alone, locked in my own teetering sensations. An essential connection has been interrupted. For a moment it is like deja vu. I cannot make out reasons. What takes place in the courtroom seems remote. I am aware, in a dislocated way, that Painless Kumagai is being devastated. He denies two or three more times that it is possible that Ms. Polhemus had had her fallopian tubes surgically separated to prevent conception. Stern asks if other facts might affect his opinion and pushes into Kumagai's hands the records of the West End gynecologist who performed the tubal ligation six and a half years ago, after Carolyn aborted a pregnancy. It was this doctor, no doubt, whom Kemp went to meet yesterday afternoon.

"I ask you again, sir, would those records alter your expert opinion?"

Kumagai does not answer.

"Sir, is it now your expert opinion that Carolyn Polhemus knew she could not conceive?"

"Apparently." Kumagai looks up from the papers.

In my confusion, I find that I actually feel sorry for him. He is slow now, hollow. It is to Molto and Nico he speaks, not Stern or the jury. "I forgot," he tells them.

"Sir, is it not absurd to believe that Carolyn Polhemus used a spermicide on the night of April first?"

Kumagai does not answer.

"It is not unreasonable to believe that?"

Kumagai does not respond.

"There is no reason known to you that would explain why she might do that, is there, sir?"

Kumagai looks up. There is no way to tell if he is thinking or simply being ravaged by shame. He has taken hold of the beveled rail of the witness stand. He still does not answer.

"Shall I have the court reporter read back your answers to the questions I asked a few moments ago?"

Kumagai shakes his head.

"Is it not clear, Dr. Kumagai, that Carolyn Polhemus did not use a spermicide on April first? Would that not be your expert opinion? Does it not seem to you, sir, as an expert and a scientist, the most obvious reason that no trace of a spermicide could be found in her apartment?"

Kumagai seems to sigh. "I cannot answer your questions, sir," he says with some dignity.

"Well, answer this question, Dr. Kumagai: Is it not clear, given these facts, that the specimen you sent to the chemist was not taken from the body of Carolyn Polhemus?"

Kumagai now sits back. He pushes his glasses back up on his nose.

"I have a regular procedure."

"Are you telling this jury, sir, that you have a clear recollection of taking that specimen, marking it, sending it on?"

"No."

"I repeat: Is it not likely that the specimen containing the spermicide, the specimen identified as containing fluids of Mr. Sabich's blood type, was not taken from the body of Carolyn Polhemus?"

Painless shakes his head again. But this is not denial. He does not know what occurred.

"Sir, is it not likely?"

"Is it possible," he finally says.

From the jury box, clear across the courtroom, I can hear one of the men say, "For Chrissake."

"And that specimen, Dr. Kumagai, was sent, was it not, while you were having these regular conversations with Mr. Molto, am I right?"

With this, Kumagai finally rediscovers his spark. He draws himself up in the chair.

"Do you accuse me, Mr. Stern?"

It is some time before Stern speaks.

"We have had enough unsupported accusations for one case," he says. Then, before resuming his chair, Stern nods in the direction of the witness, as if to dismiss him. "Doctor Kumagai," he adds.

After court, Jamie Kemp and I sit in Stern's conference room describing Kumagai's cross-examination for a small audience composed of Sandy's secretary, the private investigator Berman, and two law students who work in the office as clerks. Kemp has brought out a bottle of champagne, and one of the young people has turned on a radio. A fine actor, Kemp does a burlesque in which he plays the parts of both Stern and Kumagai. He repeats Stern's most damaging questions in an insistent tone, and then falls in a chair, where he beats his feet and makes the sounds of a person being choked. We are roaring when Stern comes through the door. He has on a tuxedo, or, more properly, part of it: only the striped trousers and the boiled shirt; a red bow tie, not yet knotted, is through his collar. Inspecting the scene he is livid; a fierce anger grips all his features. You can tell that he is struggling to keep himself in check.

"This is inappropriate," he says. He is speaking to Kemp. "Entirely inappropriate. We are on trial. This is not the time to congratulate ourselves. We may not bring a trace of smugness to that courtroom. Juries sense such things intuitively. And they resent it. Now, if you would please clean this up, I wish to speak with my client. Rusty," he says, "when you have a moment."

He wheels and I follow Stern to his office with its soft, almost feminine interior. I suspect that Clara had a hand in the decoration.

Everything is done in the same creamy tone. Full-length drapes cover the windows, and furnishings upholstered in Haitian cotton crowd the office, so that it feels as if you are being pushed into a seat. Stern has a heavy crystal ashtray at each corner of his desk.

"It's my fault more than Jamie's," I say when I enter.

"Thank you, but you are not charged with making judgments at this time. He is. That was entirely inappropriate."

"It was a great triumph. He's worked hard. We were enjoying it. He was trying to put your client at ease."

"You need not defend Kemp to me. He is a first-rate attorney and I value his work. Perhaps I am to blame. As a case is headed toward conclusion I always become tense."

"You should savor today, Sandy. No lawyer gets many crosses like that, especially of the state's expert."

"That is so," says Stern, and he indulges in a brief whimsical smile. "What a colossal blunder." He makes a sound, a groan of sorts, and shakes his head. "But that is past now. You have been very insistent and so I wanted to take one moment with you to discuss the case for the defense. I wish there were more time, but I have committed myself months ago to this dinner for Judge Magnuson. Della Guardia will be there, so we will all be evenly disadvantaged." He smiles in appreciation of his own understated humor. "At any rate, your defense: Decisions on these matters are always the client's. If you wish, I will give you my advice. If not, feel free to dictate. I am at your disposal." As I anticipated all along, Sandy has waited until we are clearly ahead on points before allowing me to make my decisions. I know what he would suggest.

"You think we'll even get the chance to offer a defense?"

"You mean, do I think Judge Lyttle will direct a verdict for us tomorrow?"

"In your view, is that possible?"

"I would be surprised." He takes up his cigar from the ashtray. "Realistically, my answer is no."

"What's left that ties me to the crime?"

"Rusty, there is no need for me to lecture you. But you must remember that the inferences at this stage must be taken in the light most favorable to the prosecution. Even Kumagai's direct testimony, preposterous as it now seems, must be credited for purposes of the motion. And the answer to your question is that the evidence, in any light, ties you to the scene. Your fingerprints are there. Carpeting which could be yours is there. The phone records show you were in contact. And all of this was concealed.

"On a more practical level, no judge is eager to usurp the jury's role as decision maker in a case of this stature. He invites criticism, and perhaps more importantly, he leaves a sense abroad that the case was never fairly resolved. I regard the prosecution evidence, as it stands, as paper-thin. It is likely that the judge sees it the same way. But he would no doubt prefer to have the jury discharge you. If, unaccountably, they fail in that responsibility, he can grant a motion for acquittal post trial, notwithstanding the verdict. I would consider that far more likely in this case."

He makes sense, but I was hoping he would say something else.

"So that brings us to the question of a defense," Stern says. "Certainly if we proceed we must offer certain documents. We want to establish that Barbara was at the U., as you claimed. So we will present the computer log to demonstrate she signed on shortly after eight o'clock. We want to show that the rent-a-car and taxi companies have no records to support the notion that you traveled to the city on the night of April first. The gynecologist's records we spoke of today must, of course, be offered. Other odds and ends. I take all of that as given. Whether we bring on testimony is the question."

"Who would you consider calling?"

"Character witnesses. Certainly Barbara."

"I don't want her to testify," I say at once.

"She is an attractive woman, Rusty, and there are five men on the jury. She can support your alibi, quite effectively. No doubt she is willing."

"If I testify, and she's sitting in the first row smiling at me, the jury will know that she supports my alibi. There's no need for her to get chewed up."

Stern makes a sound. I have disrupted his plans.

"You don't want me to get up there, do you, Sandy?"

He does not answer at first. Instead, he brushes a trace of cigar ash from the pleats on his shirt.

"Are you reluctant because of my relationship with Carolyn?" I ask. "I won't deny it, you know."

"I know that, Rusty. And I do not find that encouraging. I think it would give a large boost to the state, which they desperately need. Frankly, we run some risk that the same facts might also emerge on Barbara's cross-examination. The confidential communications privilege would probably prohibit inquiry into your admissions to your wife about your affair, but one can never be certain. Overall, it is probably not worth the chance."

Stern seems casual in admitting that I was right after all-it really does not make much sense to talk about calling Barbara. "But disclosure of these, matters is not my principal concern about your testimony," Sandy says, getting to his feet. He feigns stretching, but I know by now that he wants to come sit beside me on the couch, the place where he delivers all the bad news. He adjusts a picture of Clara and the children on the white birch credenza behind his desk; then, most naturally, settles next to me.

"Rusty, I prefer to see the defendant take the stand. No matter how often and how insistently jurors are told that they must not hold a defendant's silence against him, it is an impossible instruction to follow. A jury wants to hear a denial, particularly when the defendant is a person accustomed to presenting himself in public. But in this case I am against it. We both know this, Rusty: Two groups of persons make good witnesses. Those who are essentially truthful. And skilled liars. You are an essentially truthful person and would ordinarily make a fine witness in your own behalf. Certainly, you have years of training in how to communicate with a jury. I have no doubt that if you were to testify to everything you knew you would do so convincingly and that you would be acquitted. Deservingly, I might add.

He looks at me briefly, a quick but penetrating expression. I am not positive whether that is a vote of confidence in my innocence or another comment on the poor quality of the state's case, but I sense the former and I find myself pleasantly surprised. With Stern, of course, it is possible that he had offered that now only to sweeten this pill.

"However," he says, "I am convinced after observing you for several months now that you will not testify to everything you know. Some matters remain your secret. Certainly at this juncture I do not wish to pry. I mean that sincerely. With some clients persuasion is called for. With others you would just as well not know. In a few cases, it is best to leave things undisturbed. That is my sense here. I am confident that the choice you have made is a deliberate one, and well considered. But be that as it may, when one comes to the witness stand determined to tell less than the truth, he is like a three-legged animal in the wild. You are not a skillful liar. And if Nico blunders into this area of sensitivity, whatever it is, things will go very badly for you."

A pause, a silence just a bit longer than need be, passes between us.

"We must assess the case as it is," Stern says. "We have not had a bad day yet for the defense. Well, perhaps one. But there is not a piece of evidence that stands untarnished. And this afternoon we have dealt a blow from which the state is not likely to recover. It is my best professional judgment that you should not testify. Whatever your chances-and I admit that I think after today they are quite good-whatever your chances, they are best this way."

"Having said all of that, let me remind you that it is your decision. I am your attorney. And I will present your testimony, if you choose to give it, with confidence and conviction-no matter what you choose to say. And certainly no choices need be made tonight. But I wanted to let you begin your period of final reflection with my own views in mind."

He is gone a few moments later, his tie knotted and his perfect jacket removed from its hanger behind the door. I remain in his office, made somber by his remarks. This is the closest Stern and I have come to a heart-to-heart. His candor, after so many months of suppression, is disturbing, no matter how kindly or elegantly phrased. I wander down the hallway with the thought in mind to have another glass of champagne. Kemp's light is still on. He is at work in his small office. Over one of the filing cabinets, merely pasted to the wall, is a poster. Dropped out against a vibrant red background is a young man in a spangled jacket. He is playing a guitar, and the photo has caught him in motion so that his hair stands on end like a dandelion gone to seed. The word GALACTICS crosses from corner to corner in white caps. I am sure that few people who walk in recognize the Jamie Kemp of a decade ago.

"I got you in some hot water with the boss," I say. "I apologize."

"Shit, that's my own fault." He points to a chair. "He's the most disciplined human being I know."

"And one hell of a lawyer."

"Isn't he? Have you ever seen anything like what went on today?"

"Never," I tell him. "Never in twelve years. How long have you guys had that stuff?"

"Sandy noticed the line in the autopsy Sunday night. We got the records from the gynecologist yesterday. You want to hear something? Stern thinks it was just a mistake. He feels Kumagai does everything half-ass. When he got the chemist's results, he went on from there and forgot about the autopsy. I don't buy that."

"No? What do you think?"

"I think you were set up."

"Well," I say, after an instant, "I've thought that a lot longer than you."

"I believed it," says Kemp. "Most of the time." I am sure he is thinking about the phone records again, but he does not mention them. "Do you know who did it?"

I take a moment with that.

"Why wouldn't I tell my lawyers?"

"What do you think about Molto?"

"Maybe," I say. "Probably."

"What does he get out of it? Keeps you from looking into that file? What do you call it? The B file?"

"The B file," I repeat.

"Except he can't believe you're not going to mention it, if he puts it to you."

"Yeah, but look at the position I'm in. Would you rather be accused by the chief deputy P.A., or some wild man you're trying to nail for murder? Besides, he wouldn't know how far along we were. He'd just want to keep anybody from going forward."

"That's pretty amazing, don't you think? Bizarre?"

"That's probably one reason I don't quite believe it."

"What are the others?"

I shake my head. "I'll have a better idea tonight."

"What's tonight?"

I shake my head again. For Lipranzer's sake I cannot take any chances. This will be between only him and me.

"Is this do-it-yourself night?"

"That it is," I say.

"You better be careful. Don't start doing Della Guardia any favors."

"Don't worry," I say. "I know what I'm doing." I stand up and consider my last statement, one of the most farfetched I have recently made. I bid Kemp good night and go back down the hallway to look for the champagne.