Scott Turow - Presumed innocent

The judge leaves the bench, asking the lawyers to remain for a few moments so he can have their thoughts on the instruction he wants to draft. Sandy is philosophical. It is clear now that he believed we were going to win. I explain what has occurred to Barbara, who appears particularly upset by Larren's ruling. "It isn't fair," she tells me. "You haven't even had a chance to look at it."

"I understand," I say. "It's one of those calls a judge gets to make." I'm not trying to be heroic. All along I have tested Larren against my own internal barometer. On this one, I would have ruled the same way. I go to the john. When I come out, Nico again is at the sink, washing his hands as he feints left and right to see the position of his hairs under the light.

"Well, Rusty," he says. "Are we going to be hearing from you next week?"

Under the state discovery laws, the defense is under no obligation to inform the prosecution of its witnesses. Whether or not the defendant will testify is often the most closely guarded secret of the defense camp. The prosecution should rest tomorrow. Assuming the judge takes a day for arguments on the directed-verdict motion, our case will begin next Monday. If the prosecutors receive no indication of our intentions, they will not know whether to spend the weekend preparing for cross-examination or closing arguments. Most of the time, you end up strung out in both directions.

"I'm sure Stern will tell you, Delay, whenever we make up our minds."

"I have a sawbuck that says you're coming."

Nico is playing games, testing my nerve. He is a lot harder than he was during our encounter here last week. This is the crafty Delay of old.

"Maybe you'll win," I tell him. "You got the cross?"

"Had to," he says. "I couldn't cross Barbara. She's too nice a lady."

Again Nico is probing. He wants to know if Barbara will testify to support my alibi. Perhaps he's trying to see if I flinch at the thought of Molto working over my wife.

"You're just a softie, Delay." I look at myself in the mirror. I've had enough of this conversation. Nico, upbeat with the pleasant current of events the last two days, will not let it go.

"Don't let me down, Rusty. I really want to hear it. You know, sometimes I wonder. I think, How could the guy I knew do a thing like that? I admit it. I wonder sometimes."

"Nico, if I told you what really happened" you wouldn't want to believe it."

"Now, what does that mean?"

I turn away and he takes my elbow.

"Really, what does that mean?" he asks. "This isn't that crap about Tommy framing you, is it? I mean, that's for the papers, Rusty. This is Delay." He touches his shirt. "You can't believe that. That's a bunch of crap. I mean, off the record, all that shit. Me and you. Right here. Old buddies. Nobody repeats anything. You're telling me you believe that crap?"

"Where's the glass?"

"Oh, screw that. The cops lose everything. We both know that."

"He seemed to have primed the pump with Eugenia."

"What? You really think he told her to say 'my angel' Come on. He heated her up too much. I admit that. And that was stupid. I told him that. I told him that. He's compulsive. You know. He was very fond of Carolyn. Very close to her. He considered her one of his closest friends. Big sister kind of thing almost. Looked up to her. He's very committed to this case."

"Did you ever look at that file, Nico?"

"The one from Raymond's drawer?"

"Do some homework. On your own. You may get some surprises. About big sister and little brother."

Nico smiles and shakes his head to show he isn't buying it. But I can tell that I've gotten under his skin now. I enjoy the advantage. I've had Nico's number for years. I dry my hands on one of the paper towels, with my mouth pursed to show that I will say no more.

"So that's it, huh? That's the big secret. Tommy done it. That's what I'm waiting to hear?"

"Go ahead, Delay," I say quietly, while my back is to him. "I'll. give you a preview. One question. Right here. Me and you, as you say. Off the record. Just the old buds. Nobody repeats anything to anyone else." I revolve and look at him directly.

"Did you do it?" he asks.

I knew he would. Sooner or later somebody had to put it right to me. I finish drying my hands, and I summon up everything in me that belongs to the truth, every badge of sincerity I own in my manner.

"No, Nico," I say very quietly, and look him dead in the eye, "I did not kill Carolyn."

I can see that I reach him: some kind of enlargement in the pupils; his eyes become darker instantly. Some tone seems to change in his face.

"Very good," he says at last. "You'll be very good." Then he finally smiles. "So this has been kind of a bitch, hah? Falsely accused and all of that?"

"Go fuck yourself, Delay."

"I knew I'd hear that, too."

Both of us come out of the john laughing. When I look up, I see that I have attracted the attention of Stern and Kemp, who are standing a short distance down the corridor conferring with Berman, the private investigator. He is very tall, with a large belly and a loud tie. Stern's look is nettled. Perhaps he is upset to see me with Nico, but it seems that he has been interrupted. He waves his hand, dismissing the other two, and returns to the courtroom. Kemp walks off with Berman a few steps, then comes back to me. We watch Delay follow Sandy inside.

"I won't be here this afternoon," Jamie says. "Something came up."

"Something good?"

"Very good, if it pans out."

"Is this a secret?"

Jamie looks back at the courtroom door.

"Sandy said not to discuss it right now. Don't raise false hopes. He wants to be cautious. You understand."

"Not really," I say.

Berman, some distance away, tells Jamie they have to go. Kemp touches my sleeve.

"If it works out, you'll be delighted. Trust me."

My look, I'm sure, is abject, confused and thwarted by my own attorneys. But I know I cannot object. I myself have taught Jamie Kemp to be frugal with his confidence. I educated him in professional skepticism, in believing that the best judgment waits.

"Something came up with one of the subpoenas," he says. Berman calls again: They told the guy they'd be there at one. Jamie backs away. "Trust me," he says once more before he jogs off down the hall.

"Ladies and gentlemen," Larren reads to the jury. "You are about to hear the testimony of a fingerprint expert, Maurice Dickerman, concerning evidence he claims to have identified on a certain glass. In considering this evidence you must-I say must-bear in mind that the defense has had no chance to examine the glass. The testimony is proper, but it is up to you to determine what weight to give it. The defense hasn't had any opportunity to see what scientific explanation there may be for the prosecution's evidence. They have had no opportunity to see whether there was some form of chicanery-I'm not sayin there was, but I'm tellin you that the defense hasn't had the chance to get a scientist of their own to say yea or nay about that. They haven't had a chance to see if there's some mistake. An innocent mistake, but still a mistake. They haven't even had the chance to see if some other scientist would look at the glass and say those were another person's fingerprints.

"And I am instructing you as a matter of law, ladies and gentlemen, that when this case is over and you are deliberating on it, that you are entitled to consider not just this testimony but the failure of the prosecution to make the glass available to the defense. And it is permissible-I'm not tellin you what to do-but it is permissible for that one fact alone to raise a reasonable doubt in your mind which would require Mr. Sabich's acquittal.

"All right. Proceed."

Molto, at the podium, takes a moment to stare up at the judge. By now both men have abandoned pretense. There is an outright hatred between them, and it is visible and intense. In the meantime, the force of Larren's limited instruction settles over the courtroom. The defense, in this instant, has staged a nine-run rally. The fingerprint evidence has been impeached from the mouth of the judge. Acquittal, he says, is a permissible conclusion. The suggestion that an error has been made, that there has been a mistake, is like a cut to the bone in a criminal trial.