Scott Turow - Presumed innocent

"Just so. And it was not necessary for him to check with you on all matters to be sure that he was proceeding in exactly the manner you wished?" Stern asks. I take it that he is trying to minimize the significance of my delay in pursuing the fingerprint report.

"I always gave the people who worked for me some leeway."

"Well, is it not true, Mr. Horgan, that in conducting the investigation of Ms. Polhemus's murder, Mr. Sabich knew that you had trusted his judgment on many occasions in the past, including on many substantial matters?"

"I don't know what he knew, but I had obviously approved of his judgment in the past on a lot of things."

"For example," says Sandy, without any indication of what is coming, "you gave Mr. Sabich the authority to decide where and when to fire Mr. Della Guardia."

Nico, understandably, erupts. Larren is disturbed. He calls immediately for a conference with the lawyers outside the jury's presence. Some judges hold these meetings, known as sidebars, in the courtroom at the side of the bench away from the jury. Larren's practice-designed to keep the jury from overhearing the lawyers' arguments-is to leave the courtroom entirely and stand in the small anteroom outside his chambers.

Della Guardia, Molto, Kemp, Stern, the court reporter and I all follow the judge out the back door to the courtroom behind his bench. It is clear even before everyone has assembled that the judge is put out with Stern. He regards the last question as a cheap shot.

"Now what are we going to do here?" he demands of Sandy. "Relive ancient history day by day? We are not gonna turn this lawsuit into a contest over personalities."

Molto and Nico are both talking. Any past antagonism between the prosecutor and the defendant is irrelevant, they say. Judge Lyttle is clearly inclined to agree.

"Your Honor," says Stern, "we do not accuse Mr. Della Guardia personally of bad faith. But we believe this is a circumstance, indicating how and why he might be misled." Without saying it, Stern is focusing again on Molto. He has been careful to pick on him, and not Nico, from the start. Della Guardia is a popular person in this town right now, and known to the jurors. Molto is a cipher. Perhaps Sandy also means to take advantage somehow of the unequivocal promise made at the start that Molto would not testify.

"Why Mr. Della Guardia might be misled, Mr. Stern, is irrelevant. What the prosecutor thinks of his case is no matter to this jury. Lord knows, you don't want to start gettin into that."

"Your Honor," says Stern solemnly, "it is the theory of the defense that Mr. Sabich has been framed in this case."

From this huddled group, I take a step backward myself. I am stunned. Stern had so thoroughly rejected this tactic weeks ago that I had given it no further thought. And things seemed to be going so well without it. Was Horgan's direct that devastating? I no longer understand my own lawyer's theory of defense. Just a moment ago, I thought he was working up one of his delicate unspoken messages to the jury: Molto wanted Sabich's job. He pressed too hard to make a case in order to obtain it, and Della Guardia failed to recognize this because he, even unconsciously, was nursing a grudge of his own. That was vintage Sandy Stern, an artful assessment of human frailty, quietly communicated, designed to diminish the prosecutors' credibility and to demonstrate how this grotesque error-accusing me-came to be made. That is the kind of believable undercurrent juries eagerly receive. But this is a blunderbuss technique, one which, I had come to agree with Stern, was not worth the risk. Certainly I was not prepared for this change of direction without consultation. And on the record. These corridor conferences are available to the public. The reporters at the break will crowd around the court reporter and beg her to read her notes. I can we the headline: SABICH FRAMED, LAWYER SAYS. Lord knows what the jurors will think, if any of them fail to miss the unavoidable. Improvising, Sandy has raised the stakes.

In the meantime, Nico walks up and down the corridor snorting. "I don't believe it," he says two or three times.

Larren looks to Molto for a response.

"Ridiculous," Molto says.

"Your denial is noted for the record. I mean your response on the point of evidence. If Mr. Stern is truly going to endeavor to prove that the case against Mr. Sabich has been manufactured, then I suppose this history of antagonism is relevant for those purposes."

That of course is one reason why Stern may have gone down the road now, to get normally inadmissible proof before the jury.

"I must say," the judge says, "Mr. Stern, that you are playing with fire. I don't know where this is gonna lead us. But I tell you two things. You had better be prepared for the prosecution's response. Because the prosecutor will be entitled to quite a bit of latitude in answering. And secondly, proof of this charge better be forthcoming or I'll strike all the cross-examination on this theme and I'll do that in the jury's presence."

Larren from his considerable height looks down at Stern directly. At this juncture, most defense lawyers, caught running out of bounds, back off and withdraw the question.

Stern says simply, "I understand. Your Honor, I think, will see exactly how this will develop. We will offer evidence addressed to the issue."

"Very well."

We return to the courtroom.

"What the hell is he doing?" I ask Kemp as we sit down again at the defense table. Jamie shakes his head. Sandy has not conferred with him either about this.

Stern quickly leaves the subject of Nico's firing and moves on to smaller matters. He makes a few more minor points at random and then comes back to the counsel table to confer.

"Almost done," he whispers to Kemp and me. "I have one further area. Anything more?"

I ask what he was doing out in the hallway and he places his hand on my shoulder. He says he will discuss it later. Kemp tells Sandy he has nothing else and Stern once more addresses the witness.

"Just a few more questions, Mr. Horgan. You have been most patient. We spoke earlier about a file you assigned Ms. Polhemus, a very sensitive case. Do you recall that part of the examination?"

"I believe I'll remember it for quite some time," says Raymond. He smiles, though.

"Did you know, Mr. Horgan, that Mr. Molto was involved in the case described there?"

Nico is on his feet first, bellowing in outrage. Larren for the first time before the jury shows anger with Stern.

"Sir, I have warned you about this area of inquiry."

"Your Honor, it is relevant to the defense position I set forth earlier at sidebar." He means the frame-up theory. Stern is being elliptical in order to keep the content of the hallway conference from the jury, who were not supposed to hear that conversation. "I must tell the court that we have every intention of continuing to investigate this file with the jury, and to offer evidence about it when it is our turn. Indeed, this is the proof I alluded to. Stern is saying that we are going to put in proof about the B file to support the charge that the case is manufactured. Again, I am astounded by his position. The judge sits back; he rests his hands atop his head and puffs out his cheeks to blow off steam.

"For the time being, we have heard enough," he says.

"Two questions more," says Sandy with magisterial authority, and turns back to Horgan without waiting for the judge to tell him he may not.

"Did Mr. Molto ever ask you about that file?"

"As I recall, yes. After I resigned as P.A. he went over everything Rusty-Mr. Sabich-had done on the Polhemus case."

"And Mr. Molto had that file then?"

"He did."

"And do you know what investigation, if any, he conducted of the allegations contained there?"