Scott Turow - Presumed innocent

Stern appears now. He is almost jaunty. His flesh is invigorated by the high excitement; the broadcloth of his shirt is so white and free of creases that it appears almost holy as it meets his full cheeks. He is about to give the opening statement in the most noted case of his career. Suddenly I am full of envy. I have not thought in all the months about how much fun it would be to try this case, an understandable omission. But those old inclinations suddenly surge forth amid this supercharged air. The big Night Saints case, a twenty-three-defendant conspiracy which I tried with Raymond, had a fraction of this attention, but it was still like taking hold of a live wire, a drumming excitement that did not stop, even in sleep, for seven weeks. Like motorcycling or mountain climbing: you know that you have been here. I am sad suddenly, briefly despairing over my lost trade.

"So?" Sandy asks me.

"I told him I thought that he would win," says Kemp.

Stern speaks Spanish; his eyebrows shoot up toward the hairless crest of his scalp.

"Never out loud," he says. "Never." Then he takes my hand and faces me with his deepest look. "Rusty, we will do our best."

"I know," I say.

Coming back into the courtroom, Barbara, who has gone back and forth from the U. over lunch, emerges from the crowd to hug me. It is half an embrace, one arm firmly around my waist. She kisses my cheek, then wipes away the lipstick with her hand. She talked to Nat.

"He wants you to know he loves you," she says. "I do too." She says this in a cute way, so that the tone, in spite of her good intentions, is still somewhat equivocal. Nonetheless, she has done her best. It is the right time and the right place for maximum performance.

The jury files in from the waiting room, where they will eventually deliberate. It is located right behind the jury box. The divorced schoolteacher actually smiles at me as she takes her seat.

Larren explains the function of opening statements: a prediction of the evidence. A forecast. "It is not an argument," he says. "The lawyers will not set forth the inferences which they think arise from the proof. They will simply tell you in an unvarnished fashion what the actual evidence will be." Larren says this no doubt as a warning to Delay. In a circumstantial case, a prosecutor needs some way at the outset to make a jury see how it all fits together. But Nico will have to do this carefully. However Della Guardia feels about Larren, the jury is in love with the judge already. His charm is like a floral scent he emits into the air. Nico will gain nothing from being upbraided.

Larren says, "Mr. Delay Guardia," and Nico stands. Trim, erect, bristling with anticipation. A person at the very top.

"May it please the court," he says, the traditional beginning. Right from the start, he is surprisingly bad. I know immediately what has happened. The time constraints and the burden of running the office have impinged severely on his preparation. He has never gone over this before. Some of it is being improvised, perhaps in response to Larren's warning right before he began. Nico cannot shake his drawn, nervous look, and he cannot find a rhythm. He keeps hesitating in spots.

Even with Nico's inadequate preparation, much of this is difficult for me to hear. Nico may lack his usual style and organization, but he is still hitting the high spots. The counterpoint of the physical evidence against what I said and did not say to Horgan and Lipranzer is, as I always feared, particularly effective. On the other hand, Delay misses points of emphasis. He tells the jury too little about things he should be the one to disclose. A smart prosecutor usually seeks to defuse defense evidence by mentioning it first, demonstrating from his own mouth that his case can stand the defense's strongest blows. But Nico does not adequately detail my background-he fails to say that I was second-in-command of the office-and, in describing my relationship with Carolyn, he omits any mention of the McGaffen trial. When Stern gets up, in his own quiet way he will make these abbreviations appear to be concealment.

In the area of my relations with Carolyn, Nico makes the only deviation from what we had predicted. Nico's problem is deeper than I, or even Stern, had understood. Delay does not simply lack proof of my relationship with Carolyn. He has not even correctly guessed what occurred.

"The evidence," he tells the jury, "will show that Mr. Sabich and Ms. Polhemus had a personal relationship that had gone on for many months, at least seven or eight months before the murder. Mr. Sabich was in Ms. Polhemus apartment. She called him on the phone. He called her. It was, as I say, a personal relationship." He pauses. "An intimate relationship.

"But all was not well in this relationship. Mr. Sabich was, apparently, very unhappy. Mr. Sabich was, it seems, intensely jealous."

Larren on the bench has swung about and now is glaring. Nico is doing what the judge warned him about, arguing rather than simply describing his witnesses and exhibits. In his agitation, the judge glances now and then in Sandy's direction, a signal for Sandy to object, but Stern is quiet. Interruptions are discourteous, and Sandy is himself in court. More important, Nico is at the point in his oration where he is saying things that Stern knows he may not prove.

"Mr. Sabich was jealous. He was jealous because Ms. Polhemus was seeing not only him. Ms. Polhemus had formed a new relationship, a relationship that apparently infuriated Mr. Sabich." Another weighty caesura. "A relationship with the prosecuting attorney, Raymond Horgan."

This detail has never before found public life. Nico undoubtedly cabined it to protect his new alliance with Raymond; but he cannot help himself, he is still Nico, and he actually turns to the press rows as he lets this news into the world. There is a audible stirring in the courtroom, and Larren, with the mention of his former partner, finally loses his cool.

"Mr. Delay Guardia!" he thunders, "you were warned, sir. Your remarks are not to be in the nature of a closing argument. You will confine yourself to a sterile recitation of the facts or your opening will be over. Do I make myself clear?"

Nico faces the bench. He actually looks surprised. His prominent Adam's apple bobs as he swallows.

"Certainly," he says.

Jealousy, I write on my notepad, and pass it to Kemp. Given the choice between no motive and a motive he cannot quite prove, Nico has chosen the latter. It may even be the smarter gamble. But at the end, he will be working hard to stretch the facts.

Stern moves to the podium as soon as Nico is through. The judge offers a recess, but Sandy smiles gently and says he is prepared to go on right now, if the court please. Sandy is unwilling to let Nico's remarks accumulate force on reflection.

He steps around the podium and rests one elbow on it. He wears a brown suit, tailor-made, that conforms subtly to his full shape. His heavy face is still with portent.

"How are we to answer this," he asks, "Rusty Sabich and I? What can we say when Mr. Della Guardia tells you about two fingerprints but not another? What can we say when the evidence will show you gaps and suppositions, gossip and cruel innuendo? What can we say when a distinguished public servant is put on trial on the basis of circumstantial evidence which, as you will be able to determine, does not approach that precious standard of reasonable doubt?

"Reasonable doubt." He turns, he steps, he comes two feet closer to the jury. "The prosecution must prove guilt beyond a reasonable doubt." He harks back to everything they heard over the last two days from Judge Lyttle. At the outset, Stern has locked arms before the jurors with that mighty and learned jurist, a particularly effective device in light of Larren's first put-down of Delay. Sandy uses the term 'circumstantial evidence' repeatedly. He mentions the words 'rumors' and 'gossip.' Then he talks about me.