Scott Turow - Presumed innocent

That was almost eight years ago, right after we had been assigned to the felony courts. We were both hungry for jury work, and therefore we agreed to try a dead-bang loser of a rape case on reassignment from somebody smarter.

'Delay had the complaining witness, Lucille Fallon, on the witness stand,' I told Sandy and Kemp. Lucille, a dark-skinned lady, had been in a bar at four in the afternoon, when she met the defendant. Her husband, on unemployment, was home with the four kids. Lucille got to talking with the defendant, Freddy Mack, and agreed to accept a ride home. Freddy was a four-time loser, with a prior rape and an assault-which the jury of course never heard anything about-and he got a little overeager and took a straight edge from his pocket, thereby helping himself to what by all appearances was already going to come his way. Hal Lerner had the defendant, and he knocked every black out of the box, so there were a dozen middle-aged white people looking over this Negro lady who'd gotten a little rougher treatment than she wanted when she went out to wander.

Nico and I had spent hours attempting to prepare Lucille for her testimony, with no visible result. She looked terrible, a frumpy fat lady in a tight dress, rumbling on about this awful thing that happened to her. Her husband was in the front row and she laid it on thick, making up an entirely new version of events right in the courtroom. Now she had met Freddy as he was emerging from the tavern and asked her for directions. She was already heading for devastation on cross when Nico finally began to elicit testimony about The Act.

And what did Mr. Mack do then, Mrs. Fallon?

He done it.

What was that, ma'am?

What he been sayin he do.

Did he have intercourse with you, Mrs. Fallon?

Yes, sir, he done.

Did he place his sex organ inside yours?

Uh huh.

And where was the razor?

Right here. Right here on my throat. Pressin right there, I thought every time I breathe he goin to slice me open.

All right, ma'am. Nico was about to move on, when I, seated at counsel table, handed him a note. That's right, said Nico, I forgot. Did he have a climax, ma'am?

Sir?

Did he have a climax?

No, sir. He be drivin a Ford Fairlane.

Delay never smiled. Judge Farragut was laughing so hard that he hid under the bench, and one of the jurors, literally, rolled out of his seat. Nico never even quivered. 'And after they came back NG,' I told Jamie and Sandy, 'he swore he would never try a case with me again. He said that because I had not managed to keep a straight face, I gave the jury the feeling it wasn't a serious case.'

Nico is looking happy enough today. The radiance of power hangs around him. He is wearing his carnation again, and he could not possibly carry himself more erect. He looks trim and well turned out in a new dark suit. There is an attractive vitality to him, as he moves back and forth, trading shots with the reporters, mixing answers to serious questions with personal remarks. One thing is for sure, I think, the son of a bitch is enjoying himself at my expense. He is this season's media hero, the man who solved the murder of the year. You cannot pick up a local paper without seeing his face. Twice last week I saw columns suggesting that Nico might try out for the mayoral race, two years down the line. Nico responded by pledging his loyalty to Bolcarro, but you wonder where those columns came from.

Nonetheless, Stern has insisted that Nico has endeavored to handle the case fairly. He has talked to the press far more than either of us believes is appropriate, but not all of the leaks have come from him, or even Tommy Molto. The police department is beyond its meager capacities for restraint with a case like this. Nico has been candid with Stern about the progress of the investigation; he shared the physical evidence as it developed, and he gave me notice of the indictment. He agreed that I was not a flight risk, and will consent to entry of a signature bond. Most important, perhaps, he has thus far done me the favor of not adding an additional charge of obstruction of justice.

It was Stern, during one of our early conferences, who first pointed out the jeopardy I was in were I to be indicted for willfully concealing facts material to the investigation.

'A jury, Rusty, is very likely to believe you were in that apartment that night, and that at the very least you should have spoken up about it and certainly not lied in your meeting with Horgan and Motto and Delta Guardia and MacDougall. Your conversation with Detective Lipranzer concerning the MUD sheets from your home is also very damaging.'

Stern was matter-of-fact about all this. His cigar was stuck in the corner of his mouth as he spoke. Did his eye flicker up for just an instant? He is the most subtle man I've met. Somehow I knew why the topic had been raised. Should he go to Nico with that deal? That was what he was asking. I could not get more than three years for obstruction of justice. I would be out in eighteen months. I would have my son again before he's grown. In five years I could probably regain my license to practice law.

I have not lost my power to reason. But I cannot overcome the emotional inertia. I want back the life I had. No less. I want this not to be. I do not want to be marked as long as I live. To plead would be the same as conceding to an unneeded amputation. Worse.

No plea, I told Sandy.

No, of course not. Of course. He looked at me with disbelief. He had not raised the subject.

In the weeks that followed, we assumed that Della Guardia would include this surer count in the indictment.

In moments of weird buoyancy, particularly in the last weeks, when it became clear that charges were being readied, I fantasized that the indictment might be for obstruction alone. Instead, the indictment charged only murder. There are tactical reasons that a prosecutor might make that choice. An obstruction count would offer a tempting-and to a prosecutor, unsatisfying-compromise for a jury inclined to find me guilty but uneasy with the circumstantial nature of Nico's case. But on the day the indictment was returned, Sandy gave me what I found a surprising account of Nico's decision.

'I have spent a good deal of time, of course, speaking with Nico, lately,' Sandy told me. 'He speaks of you and Barbara with some feeling. He has told me on two or three occasions stories of your early days together in the office. Briefs he says you wrote for him. Evenings that he enjoyed with the two of you while he was married. I must say, Rusty, that he seems sincere. Molto is a zealot. He hates every person he prosecutes. But about Nico I am not so sure. I believe, Rusty, that he has been deeply affected by this case and that he made this choice as a matter of fairness. He has decided that it would be irresponsible to put an end to your professional life simply because you were indiscreet, for whatever reason, and to whatever degree. If you are guilty of this murder, then you must be punished, he thinks. Otherwise, he is content to let you go. And I for one applaud him for that. I believe,' said the lawyer whom I have thus far paid $25,000 to defend me, 'that is the correct approach.'

"Criminal case 86-1246," calls out Alvin, Judge Mumphrey's handsome black docket clerk. My stomach sinks and I head up toward the podium. Jamie is behind me. Judge Mumphrey, who entered only a moment ago, is getting settled on the bench. The cynics sometimes explain Ed's ascension to chief judge as a function of his good looks. He was an elected judiciary's concession to the media age, someone whom voters would think of with comfort when they faced the judge's retention ballot. Ed's appearance is wonderfully judicial, with fine silver hair drawn straight back from the brow and features regular and yet sharp enough to be stern. He is asked a couple times each year to pose for one of the bar journals in some piece of advertising.