Scott Turow - The Burden of Proof

"I have no combination, and no permission from your uncle."

Marta set a toe against it; she wore pink socks under her huaraches. Her legmas much as showed when her billowy skirt fell away-was, Stern noted, dense with hair.

"Jesus, what is this made of?. Lead? This thing would survive nuclear war."

"Dixon values his privacy," said Stern simply.

"Well, that's a problem, don't you think? How do we say that you received the contents for the purpose of providing legal advice when you've never seen them?"

Stern, who had not focused previously on this dilemma, reached for his unlit cigar.

"But, on the other hand," aid Marta, "doesn't it tend to disclose confidential communications if you admit you've never opened the safe?

Doesn't that reveal the client's instructions and show that the client has, in essence, told the lawyer that the contents ar6o sensitive he will not or cannot share them? And what about the Fifth Amendment in Dixon's behalf?"

Marta went on a bit about that. She had a large, subtle mind. Stern, well aware of his daughter's brilliance, was nonetheless impressed by her facility with matters to which she'previously had had little exposure. She had gone to Stern's library and digested the leading Supreme Court case as soon as they arrived, absorbing its difficult distinctions without lengthy study. Marta was wholly at ease in one of those complex areas where the law's abstractions occasionally became as unavailable as higher mathematics.to Stern himself.

Eventually, as they sat together drafting, they determined that their legal position foi now was simple: given the potential applicability of attorney-client privilege, Stern could not properly proceed without instructions from Dixon.

Accordingly, they asked the court to continue the subpoena briefly to allow Stern to consult with his client when he returned to town. Marta wrote each sentence on a yellow pad, reciting it aloud, and she and Stern edited, trading words. Stern, who by long habit did all such work alone, was delighted by the ease of this collaboration. When the motion was complete, Marta signed it as Stern's lawyer.

"What happens if she orders you to testify tomorrow?"

Marta asked. She was referring to Judge Winchell.

"I have to refuse, no?"

"And the government will move to hold you in contempt. She won't put you in jail, will she?"

"Not tomorrow," said Stern. "I would expect the judge to give me time to reconsider, or at least grant a stay, so we could go to the court of appeals. Eventually, of course, if I persist after being ordered to produce-" His hand drifted off. This happened, on occasion, lawyers jailed for resisting court orders detrimental to their clients. Among the defense.bar, such imprisonments-usually brief-were regarded as a badge of honor, but Stern had no interest in martyting himself, particularly in Dixon's behalf. "I am in your hands," Stern told his daughter.

"No problem," Marta said, and hugged him. "But be sure you bring your toothbrush."

On Thursday morning at ten o'clock, at the precise moment he had been scheduled to appear before the grand jury, Stern and Marta entered the reception area of the chambers of Moira Winchell, chief judge of the federal district court. The allocation of space reflected the proportions Of another century; while the judge's chambers were grand and cavernous, the outer rooms constructed for secretaries, clerks, and criers were stinting, the desks and office equipment wedged together a little like a packed trunk. The narrow waiting area was bounded by a hinged balustrade of broad spindles. When they arrived, Sonny Klonsky sat on the sole available seat, flushed and pretty in spite of her grim demeanor. Stern's heart spurted at the sight of her, then settled when she fixed him with a baleful look. He reintroduced Marta.

"We're waiting for Stan," said Klonsky, and with that, the United States Attorney pushed through the door, narrow and flawlessly kempt, humorless as a hatchet blade. Even to Stern, who regarded himself as fastidious about his personal appearance-treating himself to custom-made suits and shirts and even, once a year, a pair of shoes from a bootmaker in New York-Stan was impressive. He was the sort of fellow who did not cross his legs for fear of.wrinkling his trousers. He greeted Stern properly, shaking his hand, and managed a smile when he was introduced to Marta.

With that, they were ushered into the chambers. of the chief judge.

Because of the secrecy of grand jury matters, the hearing-much to Stern's good fortune-would be conducted here in private. Although the judge's court reporter arrived through a Side door, carrying his stenotype machine, the transcript would be held under seal, unavailable to reporters, the public, even other lawyers.

In the privacy of her chambers, Moira Winchell was personable. She wore a dark dress-no robe-and came out from behind her enormous mahogany desk, larger than certain small automobiles, to venture a cordial word to each of them. She had met Marta more than a decade ago-Stern had no recollection of this-and greeted her warmly. "Are you practicing with your father now? How wonderful for him."

The arrangement, Marta indicated, was temporary. As the greetings went on, Sonny ended up at Stern's shoulder. She was almost exactly his height-he had made no note of that before-and he turned, without a thought of resistance, to stare at her, her strong face and handsome features. Like any good trial lawyer,s, her attention was entirely on the judge; she took no notice of Stern at first, and when she finally felt his gaze, she provided him with a quick distracted grin and turned away, following the judge's suggestion that they all be seated at the conference table.

The furnishings here were in the ponderous Federal mode, massive pieces of handsome dark woods, ornamented only with deep, many-planed with no European gewgaws. Huge arched windows rose on two sides of the chambers, but the light remained somehow indirect, as if, in the dark style of the late nineteenth century, the architects had turned the building obliquely to the path of the sun. The judge as usual spoke her mind without inviting comment.

"Now look, Stan, I've read this motion. How can you refuse Sandy time to talk to his client?"

Marta, without expression, caught her father's eye. Sonny, rather than Sennett, answered for the government: The United States Attorney was present merely for emphasis, to let the judge know that the government viewed this as a signal matter. There was a history here, Klonsky said.

The government had been seeking the documents it believed were in the safe for many weeks.

"Are you telling the court," asked Marta, "that the grand jury has heard evidence about the contents of the safe?"

This was an adroit question, turning the tables on the government in the hope that they might reveal something about their informant in order to support their position.

But Klon-sky veered at once from that course, saying that she was not commenting at all on what the government or grand jury knew.

"Then on what basis do you even issue the subpoena?" The two young women went on contending. Stern, who had accepted his daughter's caution to say nothing, sat back with peculiar detachment. With no speaking part, he did not feel fully himself. Sennett, at the far end of the table, kept his hands crossed primly as he listened; he was customarily a person of few words. The court reporter was taking down nothing, awaiting the judge's instruction to go on the record. Stern after a moment realized he had lost track of the argument. Without looking back, he could not tell which of the young women was speaking; each had the same heated tone and confident timbre. The thought, for reasons he could not fathom, made him dizzy and sick at heart.

"Look. Look," said the judge at last, "let's cut through this. With documents missing, the government clearly has a broad right to inquire.