Scott Turow - Presumed innocent

Larren glances balefully at Della Guardia from the corner of his eye. Nico does not even flinch. He is doing a pretty good job. He has both hands in his lap and is making his best effort to appear the suppliant. This is not an attitude that comes to him naturally, and his readiness to humble himself before the judge is actually quite winning. There must have been hell to pay last night between Molto and him. That's why Tommy looks so bad.

Larren, however, is not about to let the subject go. As usual he has caught all the implications quickly. For better than a month the prosecutors have been promising to produce a glass they knew they could not find.

"Isn't this somethin?" the judge asks. He looks, for support, to Stern. "You know, Nico, I don't issue these orders just for the hell of it. You do with your evidence as you like, but really-Who had this glass last?"

"There's some disagreement, Judge, but we believe it was the police."

"Naturally," says Larren. He looks off toward the distance in disgust.

"Well, you see what we have here. You have defied an order of the court. The defense has not had an opportunity to prepare. And you have given an opening statement, Nico, in which you must have referred to this evidence half a dozen times. Well, that's your problem now. When you find the glass, assuming you find it, then we'll determine whether or not it comes into evidence. Let's go try this case."

Nico's difficulties, however, are more complex than one angry judge. The state case has been prepared with the witnesses expected in an established sequence, referred to as an order of proof. The first person to testify is supposed to describe the crime scene, and accordingly, he will mention the glass.

"Not in my courtroom," says Larren. "No, sir. We're not gonna be talkin anymore about evidence that nobody can find." Stern finally speaks up. He announces that we have no objection to Delay proceeding as he had planned.

"Your Honor, if the prosecution fails to find the glass, we will object to any further evidence regarding it." He means, of course, the fingerprints. "But for the time being, there is no purpose to delay, if Your Honor will permit it."

Larren shrugs. It's Sandy's lawsuit. This is the subject Sandy and I discussed in the judge's outer office. If we object, we can make Nico take witnesses out of the order he had planned, but Sandy thinks the advantage is greater if Nico's first witness has to explain that a piece of evidence is missing. Better that they look like Keystone Kops was how Stern put it. The disorganization will make a poor impression on the jury. Besides, there is little damage to me in the bare fact that a glass was found. And as I pointed out to Kemp, the police-evidence custodians-will eventually locate the glass; they always do.

"I would think you should give Mr. Stern an order of proof so that he has notice of when we're coming to this area again."

Molto speaks up. "We have one, Judge. We'll give it to them right now."

Tommy fiddles in the sloppy heap of papers on his lap, and eventually passes a sheet to Kemp.

"And let's put this on the record," Larren says. Nico's punishment. He must explain this screw-up in public after all.

While the lawyers are before the bench, repeating our chambers conference in the presence of the court reporter, I examine the order of proof I am eager to know when Lipranzer will be testifying. The sooner he does, the sooner the search for Leon can resume. I have tried to get Sandy's PI to look further, but he claims there is nothing to do. The list, however, provides no good news. Lip is scheduled toward the latter put of the case. Leon and I win have to wait.

Even in my disappointment, I recognize that Tommy and Nico have constructed their case with care. They will begin with the murder scene and the collection of the physical evidence, and will then start a slowly accelerating demonstration of why I am the murderer. First will come their proof, equivocal as that is, of my relationship with Carolyn; then my questionable handling of the investigation; near the end they will offer the various bits of evidence that put me at the murder scene: the fingerprints, the fibers, the phone records, the Nearing maid, the blood test results. Painless Kumagai will testify last and, I suppose, offer an expert opinion on how it was done.

Up on the bench Larren is still chewing Nico out, for the record.

"And the prosecutors will immediately advise the defense when the evidence is located. Is that correct?"

Nico promises.

With that matter settled, the jury is brought in, and Nico announces the name of the prosecution's first witness, Detective Harold Greer. He enters from the corridor and stands before Larren to be sworn.

As soon as Greer is up there, it is obvious to all of us why Nico wanted to maintain the predetermined order of proof. Juries for obvious reasons tend to remember the first witness, and Greer is impressive, a huge, well-spoken black man, calm and orderly in his presentation of himself. With or without the glass, he is the image of competence. The department is full of officers like Greer, men and women with the IQ's of college professors who became cops because it was, within their horizons, the best thing available.

Molto is doing the questioning. He looks rumpled but his direct examination is well prepared.

"And where was the body?"

Greer was the third officer on the scene. Carolyn was discovered about 9:30 a.m. She missed an eight o'clock meeting and a nine o'clock court call. Her secretary called the super directly. All he did, he told me months ago, was push the door open and look around. He could see then he needed the cops. The beat guys called for Greer.

Greer describes what he observed and the way the evidence techs did their work under his direction. Greer identifies a sealed plastic packet that contains the fibers that were lifted from Carolyn's body, and a larger packet that contains her skirt, from which more of the Zorak V fibers were obtained. Molto and he smooth over the glass. Greer describes, finding it on the bar, watching the evidence techs seal the Baggie.

"And where is the glass at present?"

"We've had a little trouble locating it. It should turn up in the police evidence room."

Next Molto raises the specter of the removed diaphragm. Greer says that in a thorough search of the apartment he found no contraceptive device. Then, with all the little bits of evidence which the police discovered inventoried before the jury, Molto moves to his climax.

"Based on your experience in nine years as a homicide detective, and the appearance of the scene, did you have any opinion as to what had taken place?" Molto asks.

Stern makes his first objection before the jury.

"Your Honor," Stern scolds, "this is speculative. This cannot be regarded as an expert opinion. Mr. Molto is asking about a hunch."

Larren strokes his cheeks with his big hand, but shakes his head.

"Overruled."

Molto repeats the question.

"Based on the position of the body," Greer responds, "the way it was tied, the signs of disturbance, the open window over the fire escape, on first looking at the scene I was of the opinion that Ms. Polhemus had been murdered in the course of, or as the result of, a sexual assault."

"A rape?" asks Molto, a leading question, not usually permitted on direct examination but harmless under the circumstances.

"Yes," says Greer.

"And were police photographers at the scene?"

"They were."

"What, if anything, did they do?"

"I asked them to take a number of photos of the scene. And they did that."

"In your presence?"

From the evidence cart the prosecutors wheeled into court this morning, Molto takes the collection of photos I looked at four months ago in my office. He shows each to Sandy before he presents them to Greer. Molto has set his examination up cleverly. Usually a judge will limit the prosecution's use of photos in a murder case. It is grisly and prejudicial. But by emphasizing the appearances, which the prosecution of course will argue were staged, Tommy has deprived us of the usual grounds for objections. We sit, attempting to appear implacable, while Greer describes each of the gruesome photos and identifies them as having accurately reflected the scene. When Molto offers them, Sandy approaches the bench and asks the judge to look them over himself.