Scott Turow - The Burden of Proof

"Strawberries? Cottage cheese?" Sonny was eating and the food was on the table. Stern declined. "So how do we do this? You're going to tell me what you know and I'm going to tell you if you're wrong. Is that the deal?"

"Sonny, I was perhaps too insistent.

"No," she said, seizing a strawberry. "Sennett is screw ing you around.

I was never sure why before. Your client do" deserves better treatment. But there's only so much I can.

"I understand."

"All right," she said. "Shoot."

This was a boundary, a line he preferred not to cross.

He went on, merely because he remained grateful for her company, their conversation, for any reason not to depart.

He started with the basics, the large orders, the two ex, changes, the error trades, When he mentioned the use of the house error account, she drew back with a marveling smile.

"Now, how did you figure that out? Sennett is sure you'll never get it." When he hesitated, she turned the back of her hand. It did not matter. "Go on."

"Can the government show, by the way, that market prices were affected by any of these trades, or that someone.was otherwise harmed?" He had been thinking about this point for some time. After indictment, a motion to dismiss on these grounds would be called for, claiming the prosecution could not prove a crime.

"We've looked at the cases," Sonny said. "There's an offense here. If you profit off the customers' information, you're taking something from them, one way or the other.

What do you think the customers would say?"

Stern lifted his hands noncommittally. In the abstract, he probably agreed with her. 'He was more certain a judge would.

"Go on," she told him again.

He described how the accumulating profits, after further/ manipulations, were invested in the Wunderkind account-where over time they were lost, all of them, not to mention a good deal more.

"And you suspect Dixon of controlling this account."

"Go on," she' said yet again. She had offered no other comment when he told her what evidence he thought they might have.

"I am certain the government can explain," said Stern dryly, "why someone would steal $600,000 in order. to lose "That's not an element of the offense." She meant that the government could prove the crime without solving that riddle. The fact that the money was lost might not even come into evidence,

"Nonetheless," said Stern.

"Go on," said Sonny. She had become grave and composed and clearly had no interest in debates.

"Right now, you seem to be energetically seeking the documents which show who established the Wunderkind account. Without.that, of course, you will have no way to tie Dixon to the account, to the profits, and to the trading ahead."

For the first time, she was completely quiet. Stern waited until he realized that he was being informed he had missed a step.

"Is that where John comes in?"

"I don't know where he fits, Sandy. Honestly."

That matched what TooIcy had told him; Mel was dealing strictly with Sennett. Stern wondered if that meant that John was being extraordinarily cooperative or more difficult than expected-or simply that Sennett, as usual, was being high-handed and secretive, even with his own staff. Yet even if John had a perfect recollection of Dixon calling in every dishonest trade, the government would want proof that Dixon controlled the Wunderkind account, where the profits briefly rested. Without that, the prosecutors tould have difficulty establishing that Dixon was not acting innocently or at the behest of someone else. Stern repeated this thought aloud.

"But you still require the signature forms in order to establish Dixon's relationship to the Wunderkind account."

Again, she made no answer. "I am wrong?" asked Stern.

Sonny reached to the bowl and ate another strawberry, while he tried to concentrate. This was ordinarily his strength, picking out the nuances of the evidence. But he had missed something of consequence. He remained quiet.

"Last year," said Sonny, after a bit, "starting out in the office, I prosecuted a lot of dope cases."

"Yes?" He had no idea where she was leading.

"You know how those cases go. DEA sees suspicious activity.

There's an informant. They get a warrant, knock down the door of a stash house, find ten keys of cocaine and no one inside it. Then they come to the poor Assistant to issue grand jury subpoenas so they can figure out who owns the house-and the dope."

"Yes," he said again.

"When you get the title to the property, or the lease to the apartment, whatever, it's point]ess. It's always some little.Old lady from the North End with whiskers and a bunch of cats. But we prove it's their house, anyway."

Stern nodded. He was familiar with the government's techniques. They went to the gas company, electric, telephone, and found out who was paying the bills. In one case that Jamie Kemp had handled before moving to New York, the government proved control of the house by showing that their client had purchased the-garbage cans in the alley.

He took it that Klonsky had issued a broad hint but for a moment it was lost on him.

"The deficit," said Stern suddenly.

She smiled.

"Dixon paid for the quarter-million-dollar debit balance left in the Wunderkind account," he told her.

"Go on."

"That is why you subpoenaed his bank records. To find the check he wrote to cover that debit. You were never tracing the funds he'd deposited."

"Go on," said Sonny.

"And you have the check?"

"Go on," said Sonny again.

He waited. Dixon, too, had apparently missed the point of the inquiries at the bank. Protecting its informant, the government with its various subpoenas had made a convincing show of being more interested in the money Dikon received than what he'd paid out.

"So why, then, are you so concerned about the accountopening documents?"

Of course, she would not answer. Stern subsided again to silence. What if Dixon had filched those papers? Why would the government initiate such hot pursuit of what was beside the point?

Unless the prosecutors knew in advance that Dixon had made off with the records. Of course. Their informant had once more led them to the right spot. The prosecutors-Sennett, at least-never expected the Wunderkind records to turn up in Margy's hands. That was why Sonny had recovered her good humor after she had gone to speak with him. She had learned what Sennett had counted on all along, that the prosecution would end up with the best of both worlds: evidence that Dixon controlled the account and proof he was trying to conceal that fact.

With that kind of showing-state-of-mind evidence, as it was called-the government could cut off any clever conjectural defenses that might be ventured at trial to suggest a half-sane or innocent motive for Dixon's conduct. Once the prosecution was able to establish that Dixon was covering his tracks, there could be little argument about what he thought of his own activities. John, at this point, remained Dixon's sole hope, and a faint one at that. If John's memory failed in some critical regard about who had instructed him to place the error orders, there might be a minute space in which to turn a sly pirouette. Yet that was not likely. The prosecutors had the critical proof in hand now. The walls were closing in on Dixon, as on some Poe character; the light was growing weak. Here, supercharged by the presence of this young woman, the weight of these developments did not really seem to settle upon Stern fully.

"You really like him, don't you?" Sonny asked, after watching him a moment.

"I care greatly about my sister. Perhaps my feelings for Dixon are merely force of habit. But I am very sad to hear this."

"This is just between us," Sonny said. "Stan would hang me."

"You have told me nothing." He crossed his heart, a schoolboy habit from Argentina, from a time when Gentile friends demanded the gesture, never understanding his reluctance. "There will be no communication. To anyone. No hint. My promise."