Presumed Innocent (30 page)

So Mike Townsend from the Organized Crime Strike Force called me. He wanted to provide Marcy with incentives. We charged Marcy stateside, and when he was convicted he went to Rudyard instead of the federal overnight camp he had been counting on, a place with a salad bar and tennis courts, a place where he would teach bookkeeping to inmates working on college degrees and copulate with Mrs. Lupino every ninety days as part of the furlough program. Instead, we sent him off in manacles, chained to a man who had put out his infant daughter's eyes with his keys.

Six months later Townsend called and we took a trip north to see if Lupino had responded. We found him in a field with a hoe. He was scraping at the ground. We reintroduced ourselves, hardly a necessity. Marcy Lupino took his hoe, propped it under his arm, and leaned on it as he wept. He cried like I have never seen a man cry; he shook from head to toe, his face turned purple, and the water poured from his eyes, truly, as from a faucet. A little fat bald-headed forty-eight-year-old man, crying as hard as he could. But he would not talk. He said one thing to us: 'I got no teet'.' Nothing else.

As we were walking back, the guard explained.

Big buck nigger, Drover, wanted Lupino as his babe. He's the kind, man, nobody says no, not even the Italians in this joint. He gets himself into Lupino's cell one night, takes out his dingus, and tells Lupino to suck. Lupino won't, so Drover takes Lupino's face and bangs it on the bunk rail until there is not a whole tooth left in Lupino's head; some aching roots, some pieces, but not one tooth.

Warden's got a rule, the guard says. You get bandages for your wounds, we'll sew you up, but no special treatment unless you talk. Fuckin Lupino ain't getting his false teeth until he tells who did the tap dance on him. And fuckin Lupino, he ain't tellin, he knows what's good for him, nobody here is that dumb. No, the guard says, he ain't tellin. And ol' Drover, he is laughin, he says he done a real good job, and that his big Johnson goes in there now, smooth as silk; he says he been in many pussies that don't feel that good. The guard, a fine humanitarian, leaned on his shotgun and laughed. Crime, he reported to Townsend and me, sure don't pay.

Run, I think now as I sit in the dark contemplating Marcy Lupino. Run. The thought always comes that suddenly: run. As a prosecutor, I could never understand why they stayed around to let it fall, to face trial, sentencing, prison. But they remained for the most part, as I have. There is $1600 in my checking account and I have no other money in the world. If I looted Barbara's trust, I would have enough to go, but then I would probably lose the only real motive I have for freedom — the chance to see Nat. And even if I could spend summers with him in Rio or Uruguay or wherever it is that they do not extradite for murder, the powers of even a desperate fancy are too meager to imagine how I would survive without a language I know or a skill those cultures would recognize. I could simply disappear to the center of Cleveland or Detroit, become somebody different, and never see my son again. But the fact is that none of these are visions of what I recognize as life. Even in these lightless hours, I want the same things I wanted when I got off the bus at night in the village green in Nearing. We are so simple sometimes, and fortified so strangely. I sit here in the dark with my heels drawn against me, and as I shiver, I imagine the odor of the smoke of cigarettes.

"People versus Ro
at K. Sabich!" calls Ernestine, Judge Lyttle's docket clerk, into the crowded courtroom. She is a stern-looking black woman, six feet tall. "For trial!" she cries.

Not much is like the first day of a murder trial. Sunup on the morning of battle; Christians against lions back in Rome. Blood is on the air. Spectators have crammed themselves into every linear inch available along the public benches. There are four full rows of press, five sketch artists at the head. The judge's staff — his secretary and law clerks, who are not ordinarily present — are in folding chairs against the rear wall of the courtroom, next to his chambers door. Bailiffs, armed for this solemn occasion, are positioned at the forward corners of the bench beside the marble pillars. The atmosphere is busy and intense, full of a racing murmur. No one here is bored.

Judge Lyttle enters and the room comes to its feet. Ernestine makes her announcements. "Oyez, oyez. The Superior Court for the County of Kindle is now in session, the Honorable Larren L. Lyttle, Judge Presiding. Draw near and give your attention and you shall be heard. God save the United States and this Honorable Court." Ernestine bangs her gavel. When everyone is seated, she calls my case for trial.

The lawyers and I move to the podium. Stern and Kemp; Molto and Nico; Glendenning has appeared and will be the case investigator, sitting with the prosecutors. I stand behind the lawyers. Judge Lyttle looms above, his hair newly cut and smoothly groomed. It is August 18, a few days short of two months since I was indicted.

"Are we ready to call for a jury?" Larren asks.

"Judge," says Kemp, "we have a few matters that we can address while you are bringing up the prospective jurors." Kemp's role on this case will be Law Man. Stern has put him in charge of research and Jamie will address the judge with regard to points of law, outside the jury's presence. When they are in the box, he will not say a word.

From the courtroom phone, Ernestine calls the clerk's reception room and asks for a venire, citizens summoned for jury duty who will be questioned by the judge and lawyers to determine if they should serve in this case.

"Judge," Kemp says again, "we have received all the production you ordered from the prosecution. With one exception. We have still not been given an opportunity to see that glass."

Stern has instructed Jamie to raise this for reasons besides our curiosity about the glass. He wants Judge Lyttle to know that the prosecutors are conforming to the judge's dim expectations. It works. Larren is upset.

"What about this, Mr. Delay Guardia?" Nico clearly does not know. He looks for Molto.

"Judge," says Tommy, "we'll take care of it after court."

"All right," says Larren. "That will be done today."

"Also," Kemp says, "you have not ruled on our motion to disqualify Mr. Molto."

"That is correct. I have been waiting for the prosecutor's response. Mr. Delay Guardia?"

Tommy and Nico exchange glances and nod to one another. They will proceed according to their prior agreement, whatever that is.

"Your Honor, the state will not call Mr. Molto. So we suggest that the motion is moot."

Stern steps forward and asks to be heard.

"Do I understand then, Your Honor, that Mr. Molto will not be called under any circumstances — that his testimony is forsworn throughout the case and at all stages?"

"That's right," Larren agrees. "I'd like us all to be clear at the start, Mr. Delay Guardia. I don't want to be hearin later about you didn't expect this or you didn't expect that. Mr. Molto is not testifying at this trial. Correct?"

"Correct," Nico says.

"Very well. I will deny the defendant's motion on the representation of the prosecutors that Mr. Molto will not be called as a witness at this trial."

Ernestine whispers to him. The prospective jurors are in the corridor.

So in they come, seventy-five people, twelve of whom will soon be in charge of deciding what happens to my life. Nothing special, just folks. You could skip the summonses and the questionnaires and grab the first seventy-five people who walked by on the street. Ernestine calls sixteen to sit in the jury box, and directs the remainder to the first four rows on the prosecution side, from which the bailiffs have dismissed the spectators amid great grumbling, sending them to form a waiting line out in the hall.

Larren starts by telling the venire what the case is about. He has probably seen a thousand juries chosen during his career. His rapport is instantaneous: this big, good-looking black man, kind of funny, kind of smart. The white people take to him too, thinking, probably, they all should be like this. Nowhere in a trial is Larren's advantage to the defense likely to be greater than at this juncture. He is skilled in addressing juries, canny in divining hidden motivations, and committed to the foundation of his soul to the fundamental notions. The defendant is presumed innocent. Innocent. As you sit here you have gotta be thinking Mr. Sabich didn't do it.

"I'm sorry, sir. In the first row, what is your name?"

"Mahalovich."

"Mr. Mahalovich. Did Mr. Sabich commit the crime that he is charged with?"

Mahalovich, a stout middle-aged man who has his paper folded in his lap, shrugs.

"I wouldn't know, Judge."

"Mr. Mahalovich, you are excused. Ladies and gentlemen, let me tell you again what you are to presume. Mr. Sabich is innocent. I am the judge. I am tellin you that. Presume he is innocent. When you sit there, I want you to look over and say to yourself, There sits an innocent man."

He goes through similar exercises, expounding upon the state's burden to prove guilt beyond a reasonable doubt and the defendant's right to remain silent. Talking to a thin, gray-haired lady in a shirtwaist dress, who is seated in the chair beside the one Mahalovich once occupied:

"Now don't you think, ma'am, that an innocent person oughta get up there and tell you it's not so?"

The lady is torn. She saw what happened to Mahalovich. But you don't lie to a judge. She touches her dress at the collar before she speaks.

"I would think so," she says.

"Of course you would. And you have to presume that Mr. Sabich thinks the same thing, since we're presumin that he's innocent. But he doesn't have to do that. Because the Constitution of the United States says he doesn't have to. And what that means is that if you sit as jurors on this case, you have promised to put that thought out of your mind. Because Mr. Sabich and his lawyer, Mr. Stern, may decide to rely on that constitutional right. The folks who wrote the Constitution said, God bless you, sir, God bless you, Mr. Sabich, you don't have to explain. The state's got to prove you guilty. You don't have to say a thing if you don't want. And Mr. Sabich can't really receive that blessing if any of you have it in your mind that he should explain anyway."

As a prosecutor, I used to find this part of Larren's routine unbearable, and Nico and Molto both look pale and upset. No matter how many times you tell yourself that the judge is right, you can't believe that anybody ever thought it was going to be explained so emphatically. Nico looks particularly drawn. He listens with an alert, humorless expression. He has lost weight and there is a new darkening in the sallow skin beneath his eyes. To get a case of this stature prepared in three weeks is a terrible burden, and he has an office to run as well. Moreover, it must have occurred to him often how much he has put on the line. He has taken klieg lights and run them across the sky telling the near world to watch Nico Della Guardia. If he loses, he will never have the same credibility in office. His silent campaign to be earmarked as Bolcarro's successor will be finished not long after its start. His career, much more than mine, hangs in the balance. I have lately come to realize that my career, after this indictment and the hoopla of this trial, is probably over in any event.

Next, Larren takes up the subject of publicity. He questions jurors about what they have read. For those who are being coy he points out the article announcing the start of the trial on the front page of today's
Trib
. Jurors always lie about this. People who want to get out of jury service usually find a way. The ones who come to the courthouse are, for the most part, eager to serve and less willing to confess to obvious disqualifications. But Larren slowly wins the truth from them. Nearly everybody here has heard something about this case, and over about twenty minutes Judge Lyttle tells them that is worthless information. "Nobody knows anything about this case," he says, "because there has not been a word of evidence heard." He excuses six people who admit that they will not be able to put the publicity out of their minds. It is unsettling to consider what the others, subjected to Nico's media splash, must think about the case. It's hard to believe that anyone can really fully put aside those preconceptions.

Late in the morning, questioning about the jurors' backgrounds begins — this process is called
voir dire
, truth-telling, and it continues throughout the afternoon and into the second morning. Larren asks everything he can think of and the lawyers add more. Judge Lyttle will not allow questioning directed to the issues of the case, but the attorneys are permitted to roam freely into personal details, limited largely only by their own reluctance to give offense. What TV shows do you watch, what newspapers do you read? Do you belong to any organizations? Do your children work outside the home? In your house, are you or your spouse in charge of the monthly bookkeeping? This is the subtle psychological game of figuring out who is predisposed to favor your side. Consultants now earn hundreds of thousands of dollars making such predictions for lawyers, but an attorney like Stern knows most of this by instinct and experience.