Scott Turow - The Burden of Proof

Marta groaned. "What was in the safe?" Stern shook his head. "How do you know?" He shook his head again.

Marta watched him with the same driven concentration.

"Aunt Silvia," she said at last. "She told you. You're protecting her."

"You are brilliant, Marta, but not 'correct."

"I don't undtrstand this," Marta said. "I don't understand what you think you know..And I don't understand your loyalty to him. Don't you hate him? After all the stuff he's pulled?"

Stern hesitated.

"Come on," said his daughter.

"I have a duty to Dixon. The government can seek evidence against him in every other comer of the world, and seems to have done so. He is entitled to know that his lawyer will not join the melee."

"You don't have a duty to violate court orders. This is a matter of personal philosophy, not law."

"So far as I am concerned, Marta, this is not discretionary. And if it were, I would not use the legal system to settle my differences with Dixon."

Frustrated, Marta threw down her hand.

"What about the Fifth?" she asked suddenly.

"No," said Stern. "In my judgment, Dixon has no Fifth Amendment rights in these circumstances."

"No, no. What about you? You can be innocent and assert the Fifth. If you disclose that something was taken while you were under subpoena, you might be incriminating yourself.

You've got a Fifth." Marta was excited. She had convinced herself this was the solution.

Resolutely, Stern differed. If he did as Marta wanted, the prosecutors would promptly obtain a use immunity order dissolving his Fifth Amendment rights. Nothing would have been gained and the judge would feel taunted by the desperate tactics.

Defeated, Marta sat down beside him.

"I don't understand this. How can you do this to yourself, just to suit him?"

"If I were to suit your uncle, I would commit perjury and solve all my problems. Perhaps I am simply too much of a coward to adopt that approach"

"Daddy, please. If you confront her in an area like this, where we have no legitimate grounds to resist, she'll put you in jail,"

"Then that is what will occur."

His daughter looked at him for some time.

"Jesus Christ," said Marta. "And you complain about him as a client. What was in the goddamn safe?"

He shook his head again.

They returned to the table. The judge and the Court reporters were chatting about movies.

"All right, on the record," said the judge.

Marta folded her hands, placed them squarely on the table before her, and announced that Stern would refuse to answer the question posed, on the grounds of the attorney-client privilege and the Sixth Amendment's guarantee of the right to counsel. The ter of personal philosophy, not law."

"So far as I am concerned, Marta, this is not discretionary. And if it were, I would not use the legal system to settle my differences with Dixon."

Frustrated, Marta threw down her hand.

"What about the Fifth?" she asked suddenly.

"No," said Stern. "In my judgment, Dixon has no Fifth Amendment rights in these circumstances."

"No, no. What about you? You can be innocent and assert the Fifth. If you disclose that something was taken while you were under subpoena, you might be incriminating yourself.

You've got a Fifth." Marta was excited. She had convinced herself this was the solution.

Resolutely, Stern differed. If he did as Marta wanted, the prosecutors would promptly obtain a use immunity order dissolving his Fifth Amendment rights. Nothing would have been gained and the judge would feel taunted by the desperate tactics.

Defeated, Marta sat down beside him.

"I don't understand this. How can you do this to yourself, just to suit him?"

"If I were to suit your uncle, I would commit perjury and solve all my problems. Perhaps I am simply too much of a coward to adopt that approach"

"Daddy, please. If you confront her in an area like this, where we have no legitimate grounds to resist, she'll put you in jail,"

"Then that is what will occur."

His daughter looked at him for some time.

"Jesus Christ," said Marta. "And you complain about him as a client. What was in the goddamn safe?"

He shook his head again.

They returned to the table. The judge and the Court reporters were chatting about movies.

"All right, on the record," said the judge.

Marta folded her hands, placed them squarely on the table before her, and announced that Stern would refuse to answer the question posed, on the grounds of the attorney-client privilege and the Sixth Amendment's guarantee of the right to counsel. The judge, the prosecutors, even the court reporters took a second to absorb this.

"Move contempt," said Sennett at last.

"My client believes that the government is attempting to use him as a witness against his client," added Marta.

"Whether that is true or not," said Judge Winchell, whose eyes were cast to the floor, "he must answer. Neither the attorney-client privilege nor the Constitution allows him a basis to refuse."

"He will not respond," said Marta. She leaned toward the judge with erect posture and an implacable look. She betrayed not an iota of doubt. Marvelous, Stern thought, in spite of everything else.

The judge covered her eyes with one hand.

"Well," she said at last. "I will reflect on how this contempt should be addressed, assuming it takes place. And I'll listen carefully to arguments.": She straightened up.

"But I want you to know, Mr. Stern, if you Persist, my present intention is to remand you to the c.ustody of the marshal, and I will leave it to the court of apPeals to determine whether my order should be stayed while they consider the matter. And I also caution you that I will not terminate your grand jury apPearance. You will have to go on answering the prosecutors' questions, or refusing, as the case may be."

Judge Winchell had fixed him with her icy tOugh-guy look.

No friendship. No bullshit. No symphony intermissions. They were now in the heartland of Moira Winchell's judicial existence-her rightful authority. Sharing this look with considerable apprehension, Stern' managed to nod.

In silence, the party proceeded back down the street to the new federal building. A block away, Stan broke off. He had a luncheon speech tO deliver. No doubt it disappointed him not to be there to see the marshals clap on the cuffs, but there were at least forty-five minutes more and Stan, always precise, did not have the time. He said a word or two to Klonsky and left them tO proceed ensemble in the noontime heat, the sounds of downtown construction and traffic banging about them.

Outside the grand jury room, the jUrors were lounging, drinking coffee, gabbing, smoking their cigarettes. Sonny raised a hand to round them up.

She stood with Stern and Marta before the door.

"I know this is a matter of principle for you," she said to Stern. She put her hand on his, a mildly shocking gesture in the surroundings. "But I think this is a mistake. Please reconsider." 'In the grand jury room, Stern resumed his seat. Klonsky read the first question from her notes: Was he in possession of the safe?

She studied her pad again.

"Leaving aside client communications, does Mr. Stern -strike that-do you know of anything.removed from the safe since the time the sub pom, G.J. 89-86 Exhibit 192, was first served upon you?"

"I decline to answer."

Sonny peered at him, pale, grim.

"State the grounds."

They were quickly finished. The grand jUrors groaned when Klonsky called another recess.

Marta was standing immediately outside the door. "Shit," she said as it opened.

Klonsky asked Barney Hill the grand jury clerk, to Call Judge Winebell's secretary to tell her they were on the way back. The four of them headed out onto the street. Marta lagged behind with Stern, and spoke to him heatedly.