Scott Turow - Presumed innocent

"Is it not your expert opinion, Dr. Kumagai," asks my lawyer, Alejandro Stern, "that Carolyn Polhemus was a woman who knew she could not conceive?"

Kumagai looks out at Stern. He bends over the microphone before the witness chair.

"No," Painless says.

"Please do not rush yourself, Doctor. You did eighteen autopsies in those weeks. Would you not rather consider your original notes?"

"I know the lady use birth control. You stipulate," he says again.

"And I, sir, say once more that we stipulated to the chemist's identification of the specimen that you sent."

Stern returns to our table. Kemp is already holding aloft the document Sandy wants. Stern drops a copy with the prosecution and delivers the original to Kumagai.

"Do you recognize the notes of your autopsy of Ms. Polhemus, Dr. Kumagai?"

Painless flips a few pages.

"My signature," he says.

"Would you please read aloud the short passage marked by the paper clip?" Sandy turns to Nico. "Page 2, Counsel." Kumagai has to change glasses.

"The fallopian tubes are ligated and separated. The fibrillated ends appear normal." Kumagai looks down at the sheet he has read from. He pages again to the end. He is frowning, deeply now. Finally he shakes his head.

"Not right," he says.

"Your own autopsy notes? You dictate them as you are conducting the procedure, do you not? Surely, Doctor, you are not suggesting you made a contemporaneous error?"

"Not right," he says again.

Stern comes back to the defense table for another piece of paper. I have gotten it now. I look up to him as he takes the next document from Kemp. I whisper: "Are you telling me that Carolyn Polhemus had her tubes tied?"

It is Kemp who nods.

The next few seconds are blank. Weirdly, unaccountably, I feel alone, locked in my own teetering sensations. An essential connection has been interrupted. For a moment it is like deja vu. I cannot make out reasons. What takes place in the courtroom seems remote. I am aware, in a dislocated way, that Painless Kumagai is being devastated. He denies two or three more times that it is possible that Ms. Polhemus had had her fallopian tubes surgically separated to prevent conception. Stern asks if other facts might affect his opinion and pushes into Kumagai's hands the records of the West End gynecologist who performed the tubal ligation six and a half years ago, after Carolyn aborted a pregnancy. It was this doctor, no doubt, whom Kemp went to meet yesterday afternoon.

"I ask you again, sir, would those records alter your expert opinion?"

Kumagai does not answer.

"Sir, is it now your expert opinion that Carolyn Polhemus knew she could not conceive?"

"Apparently." Kumagai looks up from the papers.

In my confusion, I find that I actually feel sorry for him. He is slow now, hollow. It is to Molto and Nico he speaks, not Stern or the jury. "I forgot," he tells them.

"Sir, is it not absurd to believe that Carolyn Polhemus used a spermicide on the night of April first?"

Kumagai does not answer.

"It is not unreasonable to believe that?"

Kumagai does not respond.

"There is no reason known to you that would explain why she might do that, is there, sir?"

Kumagai looks up. There is no way to tell if he is thinking or simply being ravaged by shame. He has taken hold of the beveled rail of the witness stand. He still does not answer.

"Shall I have the court reporter read back your answers to the questions I asked a few moments ago?"

Kumagai shakes his head.

"Is it not clear, Dr. Kumagai, that Carolyn Polhemus did not use a spermicide on April first? Would that not be your expert opinion? Does it not seem to you, sir, as an expert and a scientist, the most obvious reason that no trace of a spermicide could be found in her apartment?"

Kumagai seems to sigh. "I cannot answer your questions, sir," he says with some dignity.

"Well, answer this question, Dr. Kumagai: Is it not clear, given these facts, that the specimen you sent to the chemist was not taken from the body of Carolyn Polhemus?"

Kumagai now sits back. He pushes his glasses back up on his nose.

"I have a regular procedure."

"Are you telling this jury, sir, that you have a clear recollection of taking that specimen, marking it, sending it on?"

"No."

"I repeat: Is it not likely that the specimen containing the spermicide, the specimen identified as containing fluids of Mr. Sabich's blood type, was not taken from the body of Carolyn Polhemus?"

Painless shakes his head again. But this is not denial. He does not know what occurred.

"Sir, is it not likely?"

"Is it possible," he finally says.

From the jury box, clear across the courtroom, I can hear one of the men say, "For Chrissake."

"And that specimen, Dr. Kumagai, was sent, was it not, while you were having these regular conversations with Mr. Molto, am I right?"

With this, Kumagai finally rediscovers his spark. He draws himself up in the chair.

"Do you accuse me, Mr. Stern?"

It is some time before Stern speaks.

"We have had enough unsupported accusations for one case," he says. Then, before resuming his chair, Stern nods in the direction of the witness, as if to dismiss him. "Doctor Kumagai," he adds.

After court, Jamie Kemp and I sit in Stern's conference room describing Kumagai's cross-examination for a small audience composed of Sandy's secretary, the private investigator Berman, and two law students who work in the office as clerks. Kemp has brought out a bottle of champagne, and one of the young people has turned on a radio. A fine actor, Kemp does a burlesque in which he plays the parts of both Stern and Kumagai. He repeats Stern's most damaging questions in an insistent tone, and then falls in a chair, where he beats his feet and makes the sounds of a person being choked. We are roaring when Stern comes through the door. He has on a tuxedo, or, more properly, part of it: only the striped trousers and the boiled shirt; a red bow tie, not yet knotted, is through his collar. Inspecting the scene he is livid; a fierce anger grips all his features. You can tell that he is struggling to keep himself in check.

"This is inappropriate," he says. He is speaking to Kemp. "Entirely inappropriate. We are on trial. This is not the time to congratulate ourselves. We may not bring a trace of smugness to that courtroom. Juries sense such things intuitively. And they resent it. Now, if you would please clean this up, I wish to speak with my client. Rusty," he says, "when you have a moment."

He wheels and I follow Stern to his office with its soft, almost feminine interior. I suspect that Clara had a hand in the decoration.

Everything is done in the same creamy tone. Full-length drapes cover the windows, and furnishings upholstered in Haitian cotton crowd the office, so that it feels as if you are being pushed into a seat. Stern has a heavy crystal ashtray at each corner of his desk.

"It's my fault more than Jamie's," I say when I enter.

"Thank you, but you are not charged with making judgments at this time. He is. That was entirely inappropriate."

"It was a great triumph. He's worked hard. We were enjoying it. He was trying to put your client at ease."

"You need not defend Kemp to me. He is a first-rate attorney and I value his work. Perhaps I am to blame. As a case is headed toward conclusion I always become tense."

"You should savor today, Sandy. No lawyer gets many crosses like that, especially of the state's expert."

"That is so," says Stern, and he indulges in a brief whimsical smile. "What a colossal blunder." He makes a sound, a groan of sorts, and shakes his head. "But that is past now. You have been very insistent and so I wanted to take one moment with you to discuss the case for the defense. I wish there were more time, but I have committed myself months ago to this dinner for Judge Magnuson. Della Guardia will be there, so we will all be evenly disadvantaged." He smiles in appreciation of his own understated humor. "At any rate, your defense: Decisions on these matters are always the client's. If you wish, I will give you my advice. If not, feel free to dictate. I am at your disposal." As I anticipated all along, Sandy has waited until we are clearly ahead on points before allowing me to make my decisions. I know what he would suggest.