Scott Turow - The Burden of Proof

"Here's what I think," said the judge. She had finished reading Marta's cases and apparently was not even going to allow argument. "I think these opinions are not on point.

In this circuit, under decisions like Feldman and Walsh, an attorney must make a specific showing in support as to each question asked or item sought for which the privilege is claimed. The privilege must actually, not potentially,.apply. From this I conclude that the privilege does not protect Mr. Stern or any other witness from answering whether he has a subpoenaed item in his possession. Otherwise, the court and counsel might become embroiled in lengthy proceedings that are, in reality, pointless. Accordingly, Ms. Stern, I am going to overrule your objection and order your client to answer. Now." The judge laid her long hands on the ta-bletop. She wore no jewelry other than a slim wedding band, and her nails were unpolished. "I would like to know whether or not your client. intends to respond, since I'd rather have some time to reflect before dealing with any contempt. Why don't you use my study to confer?"

"I think she's right," said Maa as soon as she had closed the door to the study.

"Of course, she is," said Stern. The room was com-pactprobably the quarters for a scrivener when the building was first erected. There was a wall of books, and various photos of Jason Winchell, and also a dog, an Irish setter, in the phases of its life from puppyhood to mothering a litter. The dog's eyes were green and eerie in the light of the flash as her pups suckled beneath her. "Your desire is that I answer this question?"

"That's my advice," said his daughter.

They returned to the table. Marta said that Stern would answer. The prosecutors showed nothing, but the judge nodded. She was pleased.

"All right, now," said the judge. "What's the next question going to be? I'd like to avoid wasting the grand jurors' time-I don't want all of you trooping back and forth repeatedly."

"Well, what's the answer to the question?" asked Sennett.

The judge looked at Stern, and Marta raised a hand to prevent her father from speaking.

"I believe my client will indicate that he has the safe in his possession." Marta knew this much, having seen the safe in the office again. But Stern had kept to himself what had further transpired between Dixon and him, and Marta,. to her credit, had not inquired. She took seriously her ftther's obligation to maintain Dixon's confidences.

With the news that Stern had the safe, Sennett wheeled about and gave Klonsky a look. Perhaps he had been betting against that. Sonny did not respond. In the grand jury, she was businesslike, but now, confronting the consequences she was considerably less animated and seemed increasingly withdrawn from the proceedings, which Sennett was conducting more or less on his own. She was paler, showing less of her usual rosy glow. Stern could not help thinking of Kate or taking small comfort from what he viewed as signs of Sonny's sympathy.

"Next question," said the judge again.

"The next question," said Sennett, "is whether the safe, including its contents, is in the same condition as when Mr. Stern received it or whether, to his knowledge, anything has been removed."

Marta started to object; but the judge was already shaking her head. One question at a time, she told Sennett. He whispered to Klonsky, who somewhat listlessly shrugged.

"The question," he said, "is whether, to the best o.f Mr. Stern's knowledge, anything has been removed from the safe since the time the subpoena was served."

This, regrettably, was a clever improvement. As re framed, the question followed the lines of the judge's prior ruling and went no further than asking whether Stern had maintained possession of what had been subpoenaed from him.

Sennett was working in increments. If Stern answered that nothing had been removed since Sonny served him, Sennett would attempt to move back to the time Stern had received the safe. That might be more objectionable. Of course, Stern realized, he was never going to answer the first question.

"All right now, Ms. Stern, any objection to that question?"

"Asking him if he knows," said Marta, "doesn't distinguish between what his client might have told him and what he has learned on his own."

"We'll limit the question to exclude any communications with his client," interjected Sennett.

"So the question, then," said the judge, "is, leaving aside client communications, does Mr. Stern know of anything removed from the safe since the time the subpoena was first served upon him?"

Sennett nodded. That was the question.

"Any further objections?" asked the judge.

Stern whispered to Marta: Assert privilege. She did, stating that the question still called upon knowledge gained in the attorney-client relationship and might reveal the attorney's own mental impressions.

"Very well," said the judge, "I'll overrule those objections. This question, no less than the one before it, simply deals with what is and is not in respondent's possession, without regard to client communications.

Therefore, I'll order Mr. Stern to answer. Again, I'd prefer to know now whether he intends to respond." The judge once more gestured grandly to her study.

"No," said Stern when they were alone.

"Daddy!"

"I shall not answer."

"Why not?"

"I cannot respond." There was a small sofa, a love seat of heavy brown tweed, and Stern fell down upon it. He suddenly felt quite tired. Marta remained on her feet. "You told me before he took the safe that he'd never let you open it."

"True," said Stern.

"So you don't know if anything has been removed,"

Marta stared at her father. "How could you know?" He shook his head-he would not answer, "Come on," she said.

Stern glanced up at the walls-the judge had various citations there, a medal from a woman's group. As Stern would have guessed, she kept acluttered desk here in her private space..

"If I were to answer," said Stern, "that to my knowledge the contents of the safe are not the same, what would transpire?"* "They'd ask you what's missing, how you know it's gone, who had access to the safe, where it was Iocated, whether you know who's got what was taken." Marta was counting off the questions on her fingers.

"And would our privilege' objections to such questions be sustained?"

"Maybe. To some of them. It depends how you know."

"Perhaps to some. But certainly Judge Winchell would require that I state who had access to the safe or where it may have been located."

"Thaffs a reasonable guess," Marta said. "Are you really' telling me that he took something out of there and you know itT Once more, he refused to answer her,.

"Dad-' "Marta, if I testify that Dixon took the safe, that Dixon returned the safe, and that some item is missing, vhat inference will the prosecutors and the grand jury draw?"

"That's obvious. ' "Just so," said Stern. "And thus I cannot indulge this line of inquiry.

I shall not give answers that imply wrongdoing by my client. Nor, frankly, have I any intention of responding to questions from anyone about the safe's contents." ' "On what grounds?"

Stern, baffled, thought an instant. "The right to privacy.."

There was no such thing in criminal proceedings. They both understood that. Marta studied her father. Stern knew the internal race taking place, the mind dashing ahead of the emotions. Somewhere, ff she was nimble enough, there was an argument to be made that would persuade him, save him from himself. Her small dark eyes were intent..

"You're not being asked any of those questions now," she said. "All they want to know is whether the contents of the safe are the same. Yes or no. If you have a problem later, we'll deal with it then."

"I refuse. Once we start down that road, there is no logical stopping point."