Scott Turow - Presumed innocent

"Judge, we're going to call a new witness."

"Who is that?"

"Dr. Miles Robinson, Mr. Sabich's psychiatrist. He was on our witness list. We omitted him from the order of proof, but I informed Mr. Stern about the change last night."

Beside Stern, I have tensed. He has his hand on my arm to prevent a more precipitous reaction.

"What the hell is this?" I whisper.

"I was going to discuss this with you this morning," says Stern quietly.

"I've spoken with the doctor. I will give you my estimate of what the prosecutors are up to in a moment."

"And what's the problem?" asks Larren. "Mr. Stern objects to calling the witness without notice?"

Stern stands. "No, Your Honor. I object to the witness's testimony, but not on that basis."

"State your objection, Mr. Stern."

"Your Honor. We object on two grounds. Whatever the enlightened view may be of psychotherapy, many persons continue to regard it as a stigma. This testimony therefore risks serious prejudice to Mr. Sabich. More important, I expect that Mr. Motto-who as I understand it will be questioning Dr. Robinson-will elicit material that would violate the physician-patient privilege."

"I see," Larren says again. "Are you moving to suppress?"

Stern looks down at me. Something is on his mind. He leans in my direction, then seems to think better of it.

"Your Honor-my remarks are likely to give offense, for which I apologize. But I believe they are appropriate and necessary to articulating my client's interest. Judge Lyttle, I question the prosecutors' motives in offering this proof. I perceive no factual basis for overcoming the testimonial privilege that prevents a physician, certainly a psychotherapist, from testifying about his treatment-oriented conversations with a patient. I believe that this testimony is offered knowing that the defense must move to suppress it, and that the court must allow that motion. When that occurs, the prosecutors will have someone else to blame when the case reaches the end for which we all now know it is destined."

Nico becomes fiery. He pounds on the podium, incensed by Stern's suggestion that he and Molto are out to trickbag the judge.

"I deny that," he says. "I deny that! I think that is an outrage!" He does another of his stomping routines, revolving away, and ends up at the prosecutors' table, staring fiercely at Stern as he drinks a cup of water. Larren is quiet for a long time. When he speaks he makes no comment on what Stern has suggested.

"Mr. Della Guardia, on what basis will you seek to overcome the privilege?" Nico and Molto confer. "Your Honor, we expect the evidence to show that Mr. Sabich saw Dr. Robinson on only a few occasions. As a result we believe that Mr. Sabich's statements were not for the purpose of seeking treatment and are outside the privilege."

I have heard all I can handle. Aloud, if under my breath, I remark, "What bullshit."

Perhaps the judge hears me. Certainly he looks in my direction.

"Listen here," says Larren, "this case hasn't gone very well for the state. Any jackass would know that, and nobody here is a jackass. But if you think, Mr. Delay Guardia, that I'm gonna let you elicit privileged testimony so that you can try to pull a rabbit out of a hat, you better have another think or two. I can't and I won't allow that. Now, sir, I'm not gonna suppress this testimony. I don't have any comments on Mr. Stern's observations. I don't know whether he's right. I will only say that it is appropriate to adjudicate a claim of privilege on a question-by-question basis. If you wanna put this witness on in the jury's presence, be my guest. But I'll tell you right now that you're on the edge as it is. The conduct of one of the prosecutors has been deplorable. And if he starts attempting to elicit privileged material in the jury's presence, then you're at your peril. Have you conferred with Dr. Robinson so that you know the permissible areas of inquiry.

"Dr. Robinson has refused to meet with us."

"Well, good for him," says Larren. "You do what you want, Mr. Delay Guardia. But you better have a lot you can get from this witness. Because I can only imagine what this jury is thinkin by now."

Nico asks for a moment to confer. He and Molto walk together to a corner of the courtroom. Tommy is vehement. He has a high color, and he swings his hands emphatically. I am not surprised when Nico announces that they intend to proceed.

So the jury is brought back to the box and Miles Robinson comes to the witness stand. He is in his mid-sixties, trim, with white hair cropped very close. He is soft-spoken and exceedingly dignified. In another era, he would have been called an octoroon. He is fairer than I am, but he is black. I met him briefly many years ago when he was called as a witness in an insanity case. The nation's leading expert on memory loss. He is a full professor at the medical school at the U., co-chair of the Psychiatry Department. When I had my troubles, he seemed pretty clearly to be the best shrink I could think of.

"Do you know Rusty Sabich?" Molto asks, as soon as Robinson has stated his name, his office address, and his profession.

Dr. Robinson turns to the judge.

"Do I have to answer that, Your Honor?"

Larren leans over. He speaks kindly.

"Dr. Robinson, Mr. Stern over there"-he points-"represents Mr. Sabich. Anything he does not think you ought to be obliged to answer, he will object to. Otherwise, you should answer the questions posed. Don't worry now. He's highly qualified."

"We've spoken," says Robinson.

"Very good, then," says the judge. "Reread the question, please," Larren tells the court reporter.

"Yes," says Robinson when that has been done.

"How do you know him?"

"He was my patient."

"How many times did you see him?"

"I checked my records last night. Five times."

"From when to when?"

"February to April of this year. April third was the last time."

"April third?" asks Molto. He faces the jury, who refuse to look at him. He means, however, to call attention to the fact that my last session was two days after the murder.

"Yes, sir."

"Did Mr. Sabich ever discuss Carolyn Polhemus with you?"

The doctor-patient privilege protects conversations, not acts. Up until now Molto has not asked Robinson to repeat anything I have said. With this question, however, Stern quietly comes to his feet.

"Objection," he says.

"Sustained," says the judge distinctly. He has folded his arms over his chest, and he glares down at Molto. It is clear that he shares Sandy's perception of the motives here. And he has conceived of his own politic compromise. He will let Robinson take the stand, and then sustain objections to any questions of consequence.

"Your Honor, may I have the basis of that ruling?" asks Molto. He looks up to the bench defiantly. Lord, how these men hate each other. By now it would require an archaeological dig to get through the sedimentary layers of resentments built up over the years. Some of it has to have been Carolyn. Molto is too primitive not to have been jealous. Did he know, back in their days in the North Branch, about the other dimension to Larren's relations with her? I puzzled on that most of the night. Who knew what about whom back then? And what does Larren think Molto knows now? Tangled webs. Whatever else, it is clear that the dispute between these men by now has nothing to do with me.

"Mr. Molto, you know the basis of the ruling. It was discussed before the jury entered. You have established a physician-patient relationship. Any communications are privileged. And if you question another of my rulings in the jury's presence, sir, your examination will end. Proceed."

"Dr. Robinson, isn't it true that Mr. Sabich stopped seeing you?"

"Yes, sir."

"Your treatment of him ceased?"