Scott Turow - Presumed innocent

"All facts important, Mr. Stern."

"But that fact is particularly important, because you, sir, want us to believe that this tragic incident merely had the appearance of a rape, do you not?"

"Don't want you to believe nothin. I give you my opinion."

"But it is your opinion-to get down to brass tacks, as they say-that Mr. Sabich tried to make this look like a rape, correct?"

"If you say so."

"Well, is that not what you are trying to suggest? You and Mr. Molto, and Mr. Della Guardia? Let us be plain with these people." Sandy points to the jury. "Your opinion is that this was a staged rape. And that the way it was done suggests some knowledge of investigative techniques and of Ms. Polhemus's regular duties in the P.A.'s office, correct?"

"That's what I say on direct."

"And all of that points at Mr. Sabich, does it not?"

"If you say so," Painless says eventually, with a smile. You can see his reluctance to believe that Stern is inept enough to implicate his own client. But Sandy keeps forcing the issue, saying more than Kumagai would risk on his own, and Painless takes his characteristic pleasure in someone else's misfortune.

"And all of those deductions depend in the end on the presence of spermicidal jelly in the specimen you sent to the forensic chemist, do they not?"

"More or less."

"Much more than less, is it not?"

"I would say."

"So this specimen, and the presence of the spermicide, is critical to your expert opinion?" says Stern, arriving at the point where he was a moment ago. This time Painless concedes. He shrugs his shoulders and says all right.

"Now, does your expert opinion, Dr. Kumagai, take any account of the fact that no spermicidal jelly was found in Mr. Polhemus's apartment? Are you familiar with that testimony that was given here by Detective Greer?"

"My opinion on scientific evidence. I don't read the transcript-"

"But are you familiar with that testimony?"

"I heard about it."

"And are you not concerned, as an expert, that your opinion depends on the presence of a substance not found in the victim's belongings?"

"Am I concerned?"

"That is my question."

"Not concerned. I got an opinion on scientific evidence."

Stern gives Painless the long look.

"Spermicide came from somewhere, Mr. Stern. I don't know where lady hides this stuff. It's in the specimen. Test says what it says."

"Just so," says Sandy Stern.

"You stipulated," says Kumagai.

"That the spermicide was in the specimen you sent. Yes, sir, we did agree to that." Sandy walks around the courtroom. I still cannot guess what it is that Kumagai missed. Until Painless mentioned the stipulation I was ready to bet that the spermicide was misidentified.

"Now, sir," says Stern, "your initial impressions at the time of the autopsy took no account of the presence of a spermicide, did they?"

"Can't remember now."

"Well, think back, please. Was it not your original theory that the person who had last had intercourse with Ms. Polhemus was sterile?"

"Don't recall."

"Really? You told Detective Lipranzer that Ms. Polhemus's attacker seemed to have a condition in which he produced dead spermatozoa, did you not? Detective Lipranzer has already testified once before the jury. I am sure it would be no problem for him to return. Please reflect, Dr. Kumagai, is that not what you said?"

"Maybe. Very preliminary."

"All right, it was your very preliminary opinion. But it was your opinion then?"

"I guess."

"Now, do you recall the physical findings that led you to that opinion?"

"No, sir."

"As a matter of fact, Doctor, I am sure it is difficult for you to recall, unaided, any autopsy within days of when it took place, is that right?"

"Sometime."

"How many autopsies do you do in a week, Dr. Kumagai?"

"One, two. Sometime ten. Depends."

"Do you remember how many you performed in the thirty days surrounding Carolyn Polhemus's death?"

"No, sir."

"Would you be surprised to know that it was eighteen?"

"Sound right.

"And with that number, it is obvious, is it not, that the specifics of any one examination may slip your mind?"

"True."

"But when you spoke to Lipranzer the details were fresher. Were they not?"

"Probably."

"And you told him then that you believed the attacker was sterile?"

"I say, I somewhat remember that."

"Well, let us review for a moment those findings you presently recall that might have led to that preliminary opinion."

Sandy runs through it quickly. The rigor mortis, blood coagulation, and digestive enzymes established the time of death. The primary deposit of male fluids in the rear of the vagina, away from the vulva, indicated that Carolyn had spent little time on her feet after sex, meaning that intercourse had occurred near the time of her attack. And there was an absence in the fallopian tubes of any live spermatozoa, which one would expect to find ten to twelve hours after intercourse, assuming no contraception had been used.

"And to explain those phenomena, particularly the dead spermatozoa, you theorized that the attacker was sterile. It did not occur to you at first, Doctor, that a spermicide had been used, did it?"

"Apparently not."

"As you look back, you must think you were a fool to have missed something so obvious as the use of a contraceptive spermicide?"

"Make mistakes," allows Painless with a flip of his hand.

"You do?" asks Stern. He eyes the state's expert. "How often?"

Kumagai does not answer that. He recognizes his miscue.

"Mr. Stern, I find no birth-control device. No diaphragm. Apparently, I assume no birth control used."

"But certainly, Dr. Kumagai, an expert of your stature could not have been so easily misled?"

Kumagai smiles. He knows he is being taunted.

"Any single fact important," he says. "Kind of thing that murderer knows."

"But you yourself were not trying to mislead Detective Lipranzer when you gave him your initial impression, were you?"

"Oh no." Painless shakes his head vigorously. He has been prepared for that suggestion.

"You must have been convinced, Doctor, at that time, that birth control had not been used-so convinced that you considered the use of a spermicide to be out of the question?"

"Look, Mr. Stern. I got an opinion. Chemist has results. Opinion changes. Lipranzer know opinion's preliminary."

"Let us consider some alternatives. For example, Dr. Kumagai, you would be convinced that birth control would not be used by a woman who knew she could not bear children, correct?"

"Sure," he says. "But Ms. Polhemus got a child."

"So the evidence has shown," remarks Stern. "But let us not consider the particulars of Ms. Polhemus. Just bear my example in mind. If a woman knew she could not conceive, it would be unreasonable for her to use a spermicide, would it not?"

"Sure. Unreasonable." Painless agrees, but his answers are growing slower. His eyes seem thick. He has no idea where Stern is headed.

"Absurd?"

"I'd say."

"Can you, as a forensic expert, conceive of any reason that such a woman might use a diaphragm or a spermicide?"

"We not talkin about a lady in menopause?"

"We are speaking of a woman who knows without question that she cannot conceive."

"No reason. No medical reason. I think of nothin."

Sandy looks up at Larren. "Your Honor, may the court reporter mark the last five questions and answers so that she can read them back later, if need be?"

Kumagai conducts a slow survey of the courtroom. He looks at the judge, the reporter, finally the prosecutors' table. He is actually frowning now. The trap, whatever it is, has been set. Everyone knows it. The reporter attaches a clip to the narrow sheaf of stenographic notes.