Scott Turow - Presumed innocent

"You think we'll even get the chance to offer a defense?"

"You mean, do I think Judge Lyttle will direct a verdict for us tomorrow?"

"In your view, is that possible?"

"I would be surprised." He takes up his cigar from the ashtray. "Realistically, my answer is no."

"What's left that ties me to the crime?"

"Rusty, there is no need for me to lecture you. But you must remember that the inferences at this stage must be taken in the light most favorable to the prosecution. Even Kumagai's direct testimony, preposterous as it now seems, must be credited for purposes of the motion. And the answer to your question is that the evidence, in any light, ties you to the scene. Your fingerprints are there. Carpeting which could be yours is there. The phone records show you were in contact. And all of this was concealed.

"On a more practical level, no judge is eager to usurp the jury's role as decision maker in a case of this stature. He invites criticism, and perhaps more importantly, he leaves a sense abroad that the case was never fairly resolved. I regard the prosecution evidence, as it stands, as paper-thin. It is likely that the judge sees it the same way. But he would no doubt prefer to have the jury discharge you. If, unaccountably, they fail in that responsibility, he can grant a motion for acquittal post trial, notwithstanding the verdict. I would consider that far more likely in this case."

He makes sense, but I was hoping he would say something else.

"So that brings us to the question of a defense," Stern says. "Certainly if we proceed we must offer certain documents. We want to establish that Barbara was at the U., as you claimed. So we will present the computer log to demonstrate she signed on shortly after eight o'clock. We want to show that the rent-a-car and taxi companies have no records to support the notion that you traveled to the city on the night of April first. The gynecologist's records we spoke of today must, of course, be offered. Other odds and ends. I take all of that as given. Whether we bring on testimony is the question."

"Who would you consider calling?"

"Character witnesses. Certainly Barbara."

"I don't want her to testify," I say at once.

"She is an attractive woman, Rusty, and there are five men on the jury. She can support your alibi, quite effectively. No doubt she is willing."

"If I testify, and she's sitting in the first row smiling at me, the jury will know that she supports my alibi. There's no need for her to get chewed up."

Stern makes a sound. I have disrupted his plans.

"You don't want me to get up there, do you, Sandy?"

He does not answer at first. Instead, he brushes a trace of cigar ash from the pleats on his shirt.

"Are you reluctant because of my relationship with Carolyn?" I ask. "I won't deny it, you know."

"I know that, Rusty. And I do not find that encouraging. I think it would give a large boost to the state, which they desperately need. Frankly, we run some risk that the same facts might also emerge on Barbara's cross-examination. The confidential communications privilege would probably prohibit inquiry into your admissions to your wife about your affair, but one can never be certain. Overall, it is probably not worth the chance."

Stern seems casual in admitting that I was right after all-it really does not make much sense to talk about calling Barbara. "But disclosure of these, matters is not my principal concern about your testimony," Sandy says, getting to his feet. He feigns stretching, but I know by now that he wants to come sit beside me on the couch, the place where he delivers all the bad news. He adjusts a picture of Clara and the children on the white birch credenza behind his desk; then, most naturally, settles next to me.

"Rusty, I prefer to see the defendant take the stand. No matter how often and how insistently jurors are told that they must not hold a defendant's silence against him, it is an impossible instruction to follow. A jury wants to hear a denial, particularly when the defendant is a person accustomed to presenting himself in public. But in this case I am against it. We both know this, Rusty: Two groups of persons make good witnesses. Those who are essentially truthful. And skilled liars. You are an essentially truthful person and would ordinarily make a fine witness in your own behalf. Certainly, you have years of training in how to communicate with a jury. I have no doubt that if you were to testify to everything you knew you would do so convincingly and that you would be acquitted. Deservingly, I might add.

He looks at me briefly, a quick but penetrating expression. I am not positive whether that is a vote of confidence in my innocence or another comment on the poor quality of the state's case, but I sense the former and I find myself pleasantly surprised. With Stern, of course, it is possible that he had offered that now only to sweeten this pill.

"However," he says, "I am convinced after observing you for several months now that you will not testify to everything you know. Some matters remain your secret. Certainly at this juncture I do not wish to pry. I mean that sincerely. With some clients persuasion is called for. With others you would just as well not know. In a few cases, it is best to leave things undisturbed. That is my sense here. I am confident that the choice you have made is a deliberate one, and well considered. But be that as it may, when one comes to the witness stand determined to tell less than the truth, he is like a three-legged animal in the wild. You are not a skillful liar. And if Nico blunders into this area of sensitivity, whatever it is, things will go very badly for you."

A pause, a silence just a bit longer than need be, passes between us.

"We must assess the case as it is," Stern says. "We have not had a bad day yet for the defense. Well, perhaps one. But there is not a piece of evidence that stands untarnished. And this afternoon we have dealt a blow from which the state is not likely to recover. It is my best professional judgment that you should not testify. Whatever your chances-and I admit that I think after today they are quite good-whatever your chances, they are best this way."

"Having said all of that, let me remind you that it is your decision. I am your attorney. And I will present your testimony, if you choose to give it, with confidence and conviction-no matter what you choose to say. And certainly no choices need be made tonight. But I wanted to let you begin your period of final reflection with my own views in mind."

He is gone a few moments later, his tie knotted and his perfect jacket removed from its hanger behind the door. I remain in his office, made somber by his remarks. This is the closest Stern and I have come to a heart-to-heart. His candor, after so many months of suppression, is disturbing, no matter how kindly or elegantly phrased. I wander down the hallway with the thought in mind to have another glass of champagne. Kemp's light is still on. He is at work in his small office. Over one of the filing cabinets, merely pasted to the wall, is a poster. Dropped out against a vibrant red background is a young man in a spangled jacket. He is playing a guitar, and the photo has caught him in motion so that his hair stands on end like a dandelion gone to seed. The word GALACTICS crosses from corner to corner in white caps. I am sure that few people who walk in recognize the Jamie Kemp of a decade ago.

"I got you in some hot water with the boss," I say. "I apologize."

"Shit, that's my own fault." He points to a chair. "He's the most disciplined human being I know."

"And one hell of a lawyer."

"Isn't he? Have you ever seen anything like what went on today?"

"Never," I tell him. "Never in twelve years. How long have you guys had that stuff?"

"Sandy noticed the line in the autopsy Sunday night. We got the records from the gynecologist yesterday. You want to hear something? Stern thinks it was just a mistake. He feels Kumagai does everything half-ass. When he got the chemist's results, he went on from there and forgot about the autopsy. I don't buy that."