To speak for the dead

17

in the name and by the authority of the state of florida:

The Grand Jurors of the State of Florida, duly called, empaneled and sworn to inquire and true presentment make in and for the body of the County of Dade, upon their oaths, present that on the 14th day of October, 1986, within the County of Dade, State of Florida, ROGER A. SALISBURY did, unlawfully and feloniously, from a premeditated design to effect the death of PHILIP CORRIGAN, a human being, kill PHILIP CORRIGAN, by injecting him with a dangerous drug, in violation of Florida Statute Section 782.04(l)(a), to the evil example of all others in like cases offending and against the peace and dignity of the State of Florida.

The indictment was signed by the foreman of the grand jury and delivered to my house by a messenger from Abe Socolow's office. I telephoned Roger, regretful and apologetic.

"I'll understand if you file a complaint with the Bar," I said.

"Then who'd defend me? The phony malpractice case was bad enough. But a murder charge? It's crazy, and you're the only one I trust to beat it."

He made it sound easy, as if I could pull a few strings, get him a bye. I halfheartedly tried to talk him out of it. "I'm a little rusty in Criminal Court. There are some big gun criminal lawyers you could get."

"But you believe I'm innocent. None of them will."

He had me there. I believed he was innocent, but I wanted to know. He was surprised when I asked him to take a polygraph test. When he agreed, I believed him a little more.

"This machine is so primitive," Roger Salisbury said. "I don't trust it, not a bit."

He was squirming in a hard wooden chair, a blood pressure cuff wrapped around his right arm, pneumograph tubes circling his chest and abdomen, electrodes attached to two fingers of his left hand. He sat on an inflatable rubber bladder and leaned back against another one, trying to balance his weight.

He was right; the equipment was primitive. The polygraph hasn't changed much since a psychologist named William

Marston started fooling around with blood pressure deception tests seventy years ago. Dr. Roger Salisbury would have been more comfortable lashed to a shiny chrome device with microchips and digital readouts, not this Rube Goldberg contraption.

"Just try to relax," I said. "They used to throw people into wells to see if they were demons. The ones who drowned were found innocent. The ones who floated were obviously children of Satan deserving of death. We've progressed a bit."

The technician had spent an hour with Roger getting him prepared, gaining his confidence. And setting him up. That's what polygraph examiners do. Some small talk, convince the subject he has to tell the truth, then try to solicit a lie to an irrelevant question to measure the response against the relevant one: Did you steal the petty cash, do you smoke dope on the job, then… did you murder Philip Corrigan?

Roger Salisbury wouldn't know this. And he wouldn't know what every con learns while still in reform school- how to screw up the test with a nail in the shoe, a hard bite into the tongue, or other ways of jacking up blood pressure. Good. That's the way I wanted it. I wanted the truth about the death of Philip Corrigan. Not to determine whether to defend Roger. I could do that either way, guilty or innocent. Even if Roger told me he planned the murder for months and carried it out, I could still give him a defense, force the state to meet its burden of proof. That's our system. But I couldn't let him take the stand and lie. So I needed the knowledge for strategy purposes and for another reason, too. I just wanted to know. I had gotten too close to this one, nearly seduced by the widow, sleeping with the daughter, and now defending Roger Salisbury a second time.

Regardless of the test result, it would not be admissible in the murder trial. Although juries frequently hear witnesses whose powers of observation are impaired by booze, drugs, or lack of intellect, polygraph tests are barred as not meeting scientific standards of proof. The courts constantly struggle to determine who lies and who tells the truth. Some judges claim to be experts on body language. A witness who raises one heel from the floor, bites a lip, or shifts his eyes is considered untrustworthy. I tell my witnesses to ogle the lawyer asking the question and not to keep time to show tunes with their feet. And I carry ChapStick for the biters.

"Do you understand that you must answer every question truthfully?" The polygraph examiner, a retired cop named Tony Cuevas, twisted the dial on the galvanic skin monitor and waited for Roger's response. Before he went on pension, Cuevas had a more direct way of eliciting the truth. A nightstick smashed against an ankle. But that was Cuevas the cop. Cuevas the security consultant was a laid-back, soft-spoken forty-seven-year-old guy of average build and pleasant demeanor. He could have been an assistant vice president at a small town bank. Today Cuevas was relaxed and informal, wearing a short-sleeved white shirt and nondescript tie, fiddling with the balance on the cardio amplifier.

"Yes sir," Roger Salisbury answered. The five pens on the charts made their little hills.

"Do you live in Florida?" Cuevas asked. That is a neutral question. The blood pressure, respiration, and perspiration are recorded, setting the lower borders for the test.

"Yes." v ' 208

"Did you ever take anything that didn't belong to you?" A control question.

Salisbury paused, then a soft "Yes."

That one didn't work. The idea of a control question is to get a false answer. Nearly everybody has stolen something, if only a candy bar. If Salisbury had falsely denied it, his physiological response to this irrelevant question would have been compared to the response to the biggie: Did you kill Philip Corrigan? If the reaction is greater to the irrelevant control question than to the relevant question about the killing, chances are he's telling the truth. If the reaction is greater to the relevant question, chances are he's more concerned about that answer, and it's a lie.

Tony Cuevas may have wanted to stomp on Roger Salisbury's instep to get a better answer, but he simply smiled and asked, "Did you ever cheat in school, even once?"

Another short pause, then a soft "No." I couldn't see the charts, but that was the answer Cuevas wanted. An almost sure lie to an irrelevant question.

A pause for about thirty seconds to let the reactions die.

"Did you kill Philip Corrigan?"

A hasty, firm "No, sir."

"Is your name Roger?" Back to the neutral question to start the sequence again.

"Yes."

"Did you ever wish anyone harm?" Again, a control question, eliciting the lie.

"No." It's amazing how many people refuse to admit the truth to questions they believe are irrelevant. They're afraid that if they admit to skullduggery or viciousness in the past, it's an admission of guilt on the subject of the polygraph test, and figuring the question isn't the one that's being tested, they lie about it.

The required pause, and then: "Did you inject succinylcholine or any other substance into Philip Corrigan in an attempt to kill him?"

"No."

"Were you born in May?"

"Yes."

"Have you ever told a lie to get out of trouble?"

Silence, then "Yes." Roger Salisbury was more honest than most, but he still denied two of the control questions, enough for Cuevas to evaluate the charts.

"One more question, Dr. Salisbury. Do you know who killed Philip Corrigan?"

"No sir," Roger Salisbury said.

Cuevas went through the same questions two more times. The answers stayed the same. The pens never stopped gliding up and down the moving paper. Tony Cuevas never changed his expression. When it was over, Roger Salisbury ran a hand through his neat, salt-and-pepper hair and gave me a wary look. His shirt was soaked and he seemed worn out. I told him that honest men sweat, too, and sent him home.

I used to think I was a good judge of character. Then I got burned a few times. Now I watched Roger Salisbury heading out the door. Good looking in that bland, undefined way. A mild, passive demeanor. Troubled now. He was either an honest man worried about the reliability of the strange contraption or a killer fearful that his mask was about to be peeled back.

Very perceptive, Lassiter. And you are either a brilliant 210 lawyer riding the crest of a dazzling career or a has-been ex-jock who should be selling hurricane shutters.

Cuevas kicked open a mini-refrigerator and offered me a beer. I was thirsty and he was sociable, so we polished off a six-pack while going over the charts. Cuevas measured the little lines, some forming the Appalachians, others the Rockies. He made notes, used a calculator, scratched his head with a pencil, and said, "I got a plus eight or better on two of the three relevant questions."

"Meaning?"

"Truthful. He didn't kill Philip Corrigan. Or more properly stated, his physiological responses lead me to conclude that he doesn't believe that he did."

"So what did he lie about?"

"Nothing for sure. The machine gives us three categories. Truthful, deceptive, and inconclusive. He got a minus four when I asked him if he knew who killed the guy. Minus six would be clearly deceptive. Minus four is close but still inconclusive. Here, look at this."

He pointed at some squiggly lines. They trailed off, becoming shorter, then taller, then shorter again.

"Looks like the Dow Jones," I said.

"That's called a staircase suppression. See, it's like a series of steps. It shows suppression of respiration just after I asked if he knows who killed Corrigan. That's one of the indications of deception."

"So does he know who did the killing?"

"A definite maybe. Sorry, best I can do is he didn't kill Corrigan but may know who did. If he clearly lied about not knowing, I'd be even more convinced he was innocent of the murder itself."

I must have looked puzzled because Cuevas continued, "It's this way, Lassiter. If the test shows clearly truthful to the denial of having committed the crime and clearly deceptive as to the denial of knowing who did, he's absolutely innocent. Money back, guaran-fucking-teed clean as a whistle. A killer will never show a stronger response to the question of who did it than whether he did it."

I fooled around with the blood pressure cuff, then turned to Cuevas: "He told me he doesn't know who killed Corrigan. I don't like it if he's lying to me."

"He might have had an itchy foot or a chest pain when he answered. Or he might know the killer and be protecting him."

"Or her," I said.

Cuevas nodded. "Or them. But your guy looks clean on the big questions, so you got what you want, an innocent lamb being led to the slaughter."

Which means someone is telling lies about Roger Salisbury. I remembered the line from Kafka: "Someone must have been telling lies about Joseph K. for without having done anything wrong he was arrested one fine morning." Which also meant we needed to prepare for The Trial.

The next morning I was at my desk at eight o'clock when the call came on my private line. "You gonna surrender that pervert murderer or should a couple boys from major crimes cuff him and bring him in the front door with all the TV assholes outside?"

Abe Socolow had such a folksy way of saying hello. He was delivering a message, just in case I missed it the day before. There would be no breaks, no special treatment because we used to break bread together. Now I was just another problem for him. After he brushed me aside, he could sweep up the scum he saw in front of him.

"You shouldn't skip breakfast, Abe. Affects your disposition."

He snorted at me. "I chew nails for breakfast."

"And spit out tacks," I said. "Roger will be there whenever you want. We aim to cooperate. But we'd like some cooperation from the state, too."

"Like what?" he asked, suspicion rising in him like steam in a kettle.

"Bond, reasonable bond for someone never before arrested, much less convicted of a crime."

"Hey, Jake, don't pee on my leg, okay. We're talking a capital crime here. No bond. You remember your criminal procedure, don't you, or is the money too good handling divorces and corporate mergers?"

Socolow was going to make my life miserable, and if I couldn't figure that out, he was telling me about it. He wanted me to grovel a little, so I did. It wouldn't help my client to insult the guy trying to fry him. "Abe, the court will grant him bond if the state stipulates to it. He's not going anywhere. He's got his medical practice here. He'll show up for arraignment, the preliminary, the trial, the whole works."

"And what if he splits for Argentina with some bambina? I'll look like a schmuck."

"Who'd notice the difference?" I said, without thinking. I pictured Socolow scowling at me at the other end of the line.

"Fuck him and the horse he rode in on. Let him sit in the can with all the other shitheads."

Stay in the prosecutor's office long enough, you get warped. You start thinking like a cop and talking like a cop. Cops are everywhere-homicide, vice, narcs-telling macho stories, hanging together in the paranoid world of Us against Them. Then in the corridors of the Justice Building, you rub up against the silk-suited shoulders of criminal lawyers and their depraved clients. No way you can stay sane. Not after eighteen years.

He always thought I was too flippant. Become a judge if you want to be a wiseguy, Socolow once told me. They get away with that shit.

"So what's it gonna be?" Socolow said finally.

"I'll bring him in, but I want an immediate bond hearing. You and I both know he shouldn't have to cool his heels in that hellhole across the street."

Socolow laughed. "Good enough for spicks and spades, but not for the saintly doctor. Bring him in, and I'll get you a bond hearing this afternoon. But you know your burden under Arthur v. State."

I knew, I knew. Unlike a trial, where the state has the burden of proving guilt beyond a reasonable doubt, at a bond hearing in a capital case, the defendant must show that the state lacks sufficient evidence of guilt. But there was something in that for us, too. I could cross-examine Socolow's witnesses. One more time to put them under oath, a great advantage, because the best trick in the defense lawyer's trial bag is to elicit conflicting statements from prosecution witnesses. Jurors love that, even if the testimony is as innocuous as the color of the tie someone was wearing on the day of a murder. So the state's case would be unfolded in front of me, and the state's star witness, Mrs. Melanie Corri-gan, would have to testify much sooner than she could have expected.

"I can't believe Melanie set me up," Roger Salisbury said as we looked for a parking space in front of the Justice Building. He squirmed in the bucket seat.

"Believe it," I said. "Hey, she sued you for malpractice, planted the drug in your house, and gave the State Attorney's Office an affidavit for the search warrant. What more does it take?"

He slammed a hand against the dashboard. "I'll believe it when I see her take the stand against me, not before."

"Fine," I said, pulling the old convertible into the meager shade of a thatch palm. "That should be right after lunch."