Presumed Innocent (40 page)

"Yes, sir."

"He did not bring it up?"

"No."

"He did not ask you in advance not to obtain the records from his home? Am I right?"

"Absolutely correct."

"In point of fact, he informed you at the start that you might find calls from Ms. Polhemus to one of his phones?"

"In his office, right."

"He didn't ask you or tell you not to seek any records for that reason, did he?"

"No, sir."

There is a ringing emphasis to all of Lip's answers. Stern is putting on a demonstration now, showing what a cross-examiner can do with a friendly witness. But it is all too clear. There is no resistance. Lip is more or less allowing Stern to testify. He quickly endorses Stern's proposal that it was Lipranzer's own idea not to obtain my home records. He considered them irrelevant; I simply acquiesced in the suggestion, saying, as people often do, that a subpoena was best avoided since it might upset my wife. Sandy returns to counsel table for a document. He numbers it, and hands it to Lip for identification. It is the original subpoena
duces tecum
to the phone company.

"Now, what prosecutor issued that subpoena?"

"Rusty. Mr. Sabich."

"His name appears as the authorizing signatory on the face, does it not?"

"Yes."

"And by its terms does that subpoena require production of these very records?"

"According to what it says?"

"That's my question."

"The answer is yes. The subpoena would cover these records."

"Does it contain any exemption for Mr. Sabich's home?"

"No."

"And any time you or anyone else wanted to examine the records of Mr. Sabich's home, this subpoena would require the production of those records?"

"Yes."

"As a matter of fact — please do not answer if this is beyond your knowledge — when Mr. Molto and Mr. Della Guardia decided that they wanted those records, they relied on the authority of this subpoena to obtain them, did they not?"

"I think that's right."

"And so Mr. Sabich stands on trial here on the basis of evidence that he himself subpoenaed, correct?"

The courtroom ruffles. Nico objects. "The question is argumentative."

Larren shakes his head benignly.

"Mr. Della Guardia, you're tryin to show here that Mr. Sabich hindered the gathering of evidence, as a way to prove guilty knowledge. And the prosecution is entitled to do that, but the defense is entitled to show that the evidence that is being presented was actually gathered through his efforts. I don't know how else they meet your proof. Overruled."

"I repeat," says Stern, standing before Lipranzer, "Mr. Sabich is being tried here with evidence he himself subpoenaed."

"Right," says Lip. Eager as a recruit, he adds, "Just like the fingerprints."

"Just so," says Sandy. He proceeds to the fingerprints. It was Sabich who personally visited McGrath Hall, met with Lou Balistrieri, demanded that the prints be processed. True, Sabich was busy, running the entire P.A.'s office while Horgan campaigned, but again it was his own efforts that produced the evidence now being used in an attempt to convict him.

"Did he obstruct you?" Sandy asks at the end.

Lip sits straight up in his chair. "No."

"Did he impede you?"

"Not in my book."

"Indeed, Detective, I believe you told Mr. Della Guardia that even if you had known of this evidence, your respect and affection for Rusty Sabich after many years' association is such that you would never have suspected, let alone believed, that he had committed this murder. Is that right?"

The way Lip hesitates, I fear for a moment that Stern has gone too far. But then I see that Lip is merely making his own ungainly effort at dramatic effect.

"Never," he repeats, and Stern sits down. As he does, he smiles furtively at me, a gesture meant largely for the jury. Nonetheless, for the first time I have the feeling that the jurors are not satisfied by Stern's performance. It is unconvincing. This tour de force still does not explain why I did not volunteer to Lip the information about the calls from my phone, especially the one on the night of the murder. Stern's cross does not offer any reason why I could not work with Harold Greer, whose appearance is surely far more impressive to the jury than Lipranzer's. It does not show what alternatives I had to going to Lou Balistrieri when Lipranzer — not to mention Horgan — was nagging me to do that. And this last exchange, while touching in its awkwardness, is simply baloney. No one could fail to be discomfited by the discovery of the phone records and the prints. The doubtful nature of the cross is emphasized by Lip's obedient response to Stern's guidance. It is all too clear: Lipranzer is a friend, willing to be misled. The jury will not fail to perceive this. It is as I always feared. The rule of equal and opposite reactions applies in the courtroom as well. Due in large part to his visible reluctance, Dan Lipranzer has been the most damaging witness against me to date.

The afternoon continues the downward movement. The stipulations are prepared and read. Coming on the heels of Lipranzer's testimony, the revelation of the actual content of the telephone records is crushing. Nico reads the stip himself. He has finally caught the measure of this jury. They are a bright bunch and want the facts delivered without varnish. Nico assumes a flat, understated tone and looks up just a little when he finishes reading so that he can watch the evidence drive home. The jurors are attentive to him and I feel the weight of their calculations. I discover that, as a defendant, you experience the lows in the courtroom far more acutely than as an advocate. My afternoon settles into a feeling of weakness, suppression with a coefficient of palpable nausea.

The stipulation about the carpet fibers is lengthy, but it has a similar impact. By agreeing to forgo the testimony, Nico, in theory, lost the drama of a live presentation. But the technical witnesses tend to be dry and overly involved. The written summaries are direct enough to have some bite. There is no chance this way that Stern can engage in any of his masterful misdirection or minimization. The facts, as they are, emerge with painful salience. The one favorable aspect — that none of my clothing matched any of the fibers found — is too easily explained. The clothes I wore that night were discarded — with the murder weapon. Or simply did not shed. These conclusions, inevitable and arithmetically direct, seem to thicken the air of the courtroom. I can sense them taking place in every quarter. And with them a kind of hush or calm inhabits the place, a dawning resolution. It is more than the mid-afternoon lull. Instead, it seems that all of the observers, including the jurors, have perceived a change in direction, a swing of momentum more in line with original expectations. It has taken the prosecutors longer than it should have, but they are assuming control of the trial, proving their case.

As usual, it is Molto, heedless and overeager, who begins to drag me back from the abyss. When the last stipulation is read, he asks for a corridor conference.

"What is it?" asks Larren when we are all assembled.

"Judge," he says, "we are ready to proceed with the fingerprint expert. There is just one small difficulty."

Kemp eyes me with wicked glee. The difficulty, so called, is obvious to both of us: They have not found the glass. Jamie's smile is welcome. It is the first sign of any renewed warmth between us in better than a day, and it comes at the right moment, for the members of the defense have each been wordless and grim all afternoon. During the 3:30 recess, I encountered Stern in the john and we did not say a thing aloud. He gave me one of his Judeo-Latin shrugs. His eyes were listless. We knew this was coming, he seemed to say. Our time on the high wire has ended.

Now, in the small anteroom to his chambers, Judge Lyttle fulminates. Molto still cannot do anything right in Larren's eyes.

"Are you telling me that you have completed your search and this object absolutely cannot be found?"

"Judge—" he starts to say.

"Because that's one set of facts. And I'll have to rule on that basis. But if you're tellin me that you think the thing is gonna turn up but it's convenient right now for you to go ahead without it, then that's quite another. We aren't gonna be talkin about proceeding now and discovering the evidence later. Am I understood?"

Nico catches Tommy's arm. He tells the judge they would like to take one more night.

"That's fine, then," Larren says. "Do I take it that you're moving for an adjournment for the day?"

Nico crisply says, "Yes." It is clear that the day's success has fortified him. He can tolerate adversity without distress. His old confidence seems to possess him again.

"Your Honor," says Stern. "I hope the court has not decided to let the prosecution proceed with the fingerprint evidence in the absence of the glass. Certainly, if Your Honor please, we would ask to be heard on that question."

"I quite understand," says Larren. "You may want to do some research on this issue, Mr. Stern. And I'll be happy to hear you. And I can tell you right now, I'm not eager to let anybody get up on the witness stand in my courtroom and give his opinions about what he says was once observed on some physical object that nobody can even find anymore." He casts a rough-tempered glance toward Molto. "So you look in the books tonight and I'll listen to you. And, Mr. Della Guardia, if I were you, I'd roll up my shirt-sleeves and get over to that evidence room myself."

"Yes, Your Honor," says Nico dutifully.

Stern gives me a meaningful look from beneath his extended brow as we head into the courtroom. He seems to be inquiring. It is almost as if he thinks that I can account for the glass's absence. Perhaps it is merely a sense of promise that gives Sandy this expression. If Larren were to keep the prosecutors from presenting the fingerprint evidence, the case against me would certainly fail. Stern is not sure whether or not he should be hopeful. Nor am I.

"Would he really think about keeping out that proof?" I ask Stern as we stand behind counsel table. We are waiting for the jury to return to the courtroom, so that the judge can tell them they are being dismissed for the day.

"It strikes me as a serious question of evidence. Is it not? We must study tonight." More time for Kemp and me in the library. I nod, accepting Stern's unspoken instruction.

About 9:30 that night, Kemp comes back to Stern's small library to tell me that I have a call. He remains behind to inspect the series of cases I have copied from the reports of the state supreme and appellate courts, while I go to the receptionist's desk, where Jamie has picked up the phone. A line is blinking, on hold. I assume it is Barbara. She usually calls about now, hoping to review the day's evidence for a few moments; and every evening I go through an arabesque of diffidence and contained response.

The truth is that I have done my best to avoid Barbara since the days immediately before the trial. I have suggested she go to sleep each night before I return; I have eaten dinner with Stern and Kemp, enjoining her even from leaving me a meal. I cannot stand to have her abstracted curiosity turned on this evidence like some high-powered light. I do not want those late-night scenes where we chew over the events of my trial as we did those malefactors I accused. It would make me unbearably ill at ease to hear Barbara engage in close analysis of the tactical decisions undertaken in this trial for my life. Most of all, I do not wish to get drawn into discussions of my discomfort. With the evidence being trotted out each day before us, I know the conclusions she might reach, and in my present state I could not abide that confrontation — to allay suspicions or confirm them.

But when I pick up the phone, it is not Barbara's voice I hear.

"How'd I do?" Lip says. "I thought they were goin to give you a medal or somethin with all these terrific things you and I done."

"You were great," I tell him. There is no point in the truth.

"Fuckin Delay, I'll tell you," he says. "Schmidt come to see me this mornin before I got on. He says a little birdie wanted to make sure that I got the message that if I fucked around on the stand, I'd be walkin beats in the North End by myself in the middle of the night. Nice subtle stuff with this guy."

I make a sound, general agreement. I have sent a few such messages myself from time to time — to coppers who have a peculiar friendship with defense counsel; who know the defendant from the 'hood. It's part of the job.

"I thought maybe we could get together tonight," Lip says. "Talk about that thing I said I'd help you with." He means finding Leon. "How about I drive you home? You be there a while?"

"Another two hours probably."

"That's good for me. They got me workin 4:00 to midnight. I'll take my coffee early. Corner Grand and Kindle at 11:30? I'll be drivin the unmarked Aries."

We work it like a spy movie. I am in the lobby until the car hoves into sight and Lip is barely at the curb five seconds before he is moving. Now that he is off the witness stand, the pressure on him has lessened, but there are many people who would tell him that the better part of wisdom right now lies in staying away from me. He pulls around the corner so quickly that the rear end gives way a little bit on the pavement, which is slick from a light rain.

I compliment him again on his testimony. "It was good," I say, "because you played it straight."

"I'm tryin," he says, and reaches for his radio, which is putting out a tremendous ruckus. "This is great," says Lip, of the radio. "We're workin on a dope bust with the G-men to make up for that fiasco in April and these guys can't get on the air together often enough to make sure nobody gets turfed. They better hope their subject don't have a scanner, because he couldn't miss this posse comin."

I ask about what is going down.

"It's cute," says Lip. "They got a nice-lookin little female agent in a mink coat that got seized last time the Strike Force went in on Muds Corvino's bolita game. She's makin out to be some dope-crazed suburbanite and she's gonna buy ten keys of coke from somebody in Nearing."