Presumed Innocent (31 page)

To pick a jury effectively you must know the case you want to try. Stern has not said anything to me, but it is becoming clearer that he has a strong notion not to offer evidence for the defense. He thinks he can whittle away at Nico's proof. Perhaps my actions in the past, when I have been beyond control in spite of his instructions, have convinced him I would be a poor witness in my own behalf. No doubt the decision to testify or not will be mine in the end. But I suspect that Stern is simply trying to move things to the point that I am convinced we can win without my testimony, before he forces my hand. In any event, he has spent little time talking to me about the defense case. Mac and a few of the judges have agreed to appear as character witnesses. Stern also has asked me about neighbors who would be willing to offer that kind of testimony. Clearly, though, he wants to try a reasonable-doubt case. At the end, if all goes as he hopes, no one will know what happened. The state will have failed to meet its burden of proof and I should be acquitted. With that goal, we need jurors bright enough to appreciate the legal standard and strong enough to forthrightly apply it — people who will not convict merely because they are suspicious. For that reason Sandy has told me that he thinks younger jurors will be better overall than old. In addition, they may be more in tune with some of the nuances of male and female relations that so strongly flavor the case. He wants, in other words, people who might believe that co-workers adjourn to a woman's apartment for reasons other than sexual intercourse. On the other hand, he has said, older people will have more immediate respect for my past attainments, my position, and my reputation.

Whatever the plans, you usually go in the end on gut impressions. Certain jurors just seem to be people you think you like, folks you can talk to. On the second morning, as we begin making our choices, Stern and Kemp and I have few disagreements. We huddle together at the counsel table, directing our decisions to prospective jurors taken up in groups of four. Barbara is invited by Sandy to come up from the nearest spectator bench to join in our consultation. She places her hand lightly on my shoulder, but offers no comment. Standing close to me as we confer, dressed in a dark blue silk suit and, again, a matching hat, she conveys an impression of somber dignity, of grieving well restrained. Overall, the effect is a little like the Kennedy widows. She is playing her small part well. Last night, after the
voir dire
started, Sandy explained to Barbara that he would be calling on her in this fashion. At home, she expressed appreciation for Sandy's courtesy and I explained to her that courtesy was not his prime intent. Stern again wants all the jurors to see at the outset that my wife is still on my side and that we, in this modern age, defer to the opinions of women.

The defense gets to excuse ten jurors without explanation — so-called peremptories. The prosecution gets six. Nico's plan seems to be pretty much the inverse of ours, although with fewer challenges he does not have the same opportunity to shape the panel. In general, he seems to be looking for his voters, older ethnic types, generally Roman Catholics. For that reason, without having planned to do it earlier, we strike all the Italians.

I am more comfortable with the group that we end up with than was often the case when I was a prosecutor. There is a preponderance of younger people, many of them single. A female drugstore manager in her late twenties. A young woman who is an accountant with a brokerage house. A twenty-six-year-old man is an assembly-line foreman, and another fellow about his age runs restaurant services at a local hotel and fiddles part-time with computers. There is a young black woman who does auditing at a local insurance company. Among the twelve, we have a divorced female schoolteacher, a secretary for a local rail line, a man who retired last year from running a high school music program, and an auto mechanic; also a Burger King management trainee, a retired nurse's aide, and a cosmetics saleswoman from Morton's. Nine whites, three blacks. Seven women, five men. Larren also seats four alternates, who will hear the evidence but not take part in deliberations unless one of the twelve regulars falls ill or is otherwise excused.

With the jury chosen, early in the second afternoon we are ready to start my trial.

At ten minutes to two we arrive again at the courthouse for opening statements. The atmosphere is now the same as yesterday morning. The lull of jury selection is past and the blood urge is on the air. The adrenalized excitement of beginning becomes a kind of painful irritant that I feel seeping into my bones. Kemp calls me into the hallway outside the courtroom, and we walk some distance to get away from the gaggle of unhappy onlookers for whom the bailiffs have not been able to find seats. Out here you can never be certain who is listening. The best journalists would not report something they overheard, but you can never tell who is talking to the prosecutors.

"I want to say something," Jamie tells me. He has chopped a good two inches off the curled edges of his pageboy, and he is turned out in a distinguished blue pinstriped suit purchased from J. Press in New Haven. He is handsome enough to have chosen Hollywood instead of law. From comments, I have come to realize that he made enough money playing his guitar to be quite comfortable without working. Instead, he is in the office, reading cases, writing memos, conferring with Stern and me until eleven and twelve o'clock at night.

"I like you," Jamie says.

"I like you, too," I answer.

"And I really hope you beat this thing. I've never told a client this before. But I think you will."

There are no more than a year or two's worth of clients in Jamie's life and so the comment is not worth that much as a prediction, but I am touched by his good feeling. I put a hand on his shoulder and I thank him. He did not tell me, of course, that I am innocent. He knows better than to be convinced of that; the evidence is against me. Probably if you shook him awake in the middle of the night and put the question, he would tell you he does not know.

Stern appears now. He is almost jaunty. His flesh is invigorated by the high excitement; the broadcloth of his shirt is so white and free of creases that it appears almost holy as it meets his full cheeks. He is about to give the opening statement in the most noted case of his career. Suddenly I am full of envy. I have not thought in all the months about how much fun it would be to try this case, an understandable omission. But those old inclinations suddenly surge forth amid this supercharged air. The big Night Saints case, a twenty-three-defendant conspiracy which I tried with Raymond, had a fraction of this attention, but it was still like taking hold of a live wire, a drumming excitement that did not stop, even in sleep, for seven weeks. Like motorcycling or mountain climbing: you know that you have been here. I am sad suddenly, briefly despairing over my lost trade.

"So?" Sandy asks me.

"I told him I thought that he would win," says Kemp.

Stern speaks Spanish; his eyebrows shoot up toward the hairless crest of his scalp.

"Never out loud," he says. "Never." Then he takes my hand and faces me with his deepest look. "Rusty, we will do our best."

"I know," I say.

Coming back into the courtroom, Barbara, who has gone back and forth from the U. over lunch, emerges from the crowd to hug me. It is half an embrace, one arm firmly around my waist. She kisses my cheek, then wipes away the lipstick with her hand. She talked to Nat.

"He wants you to know he loves you," she says. "I do too." She says this in a cute way, so that the tone, in spite of her good intentions, is still somewhat equivocal. Nonetheless, she has done her best. It is the right time and the right place for maximum performance.

The jury files in from the waiting room, where they will eventually deliberate. It is located right behind the jury box. The divorced schoolteacher actually smiles at me as she takes her seat.

Larren explains the function of opening statements: a prediction of the evidence. A forecast. "It is not an argument," he says. "The lawyers will not set forth the inferences which they think arise from the proof. They will simply tell you in an unvarnished fashion what the actual evidence will be." Larren says this no doubt as a warning to Delay. In a circumstantial case, a prosecutor needs some way at the outset to make a jury see how it all fits together. But Nico will have to do this carefully. However Della Guardia feels about Larren, the jury is in love with the judge already. His charm is like a floral scent he emits into the air. Nico will gain nothing from being upbraided.

Larren says, "Mr. Delay Guardia," and Nico stands. Trim, erect, bristling with anticipation. A person at the very top.

"May it please the court," he says, the traditional beginning.

Right from the start, he is surprisingly bad. I know immediately what has happened. The time constraints and the burden of running the office have impinged severely on his preparation. He has never gone over this before. Some of it is being improvised, perhaps in response to Larren's warning right before he began. Nico cannot shake his drawn, nervous look, and he cannot find a rhythm. He keeps hesitating in spots.

Even with Nico's inadequate preparation, much of this is difficult for me to hear. Nico may lack his usual style and organization, but he is still hitting the high spots. The counterpoint of the physical evidence against what I said and did not say to Horgan and Lipranzer is, as I always feared, particularly effective. On the other hand, Delay misses points of emphasis. He tells the jury too little about things he should be the one to disclose. A smart prosecutor usually seeks to defuse defense evidence by mentioning it first, demonstrating from his own mouth that his case can stand the defense's strongest blows. But Nico does not adequately detail my background — he fails to say that I was second-in-command of the office — and, in describing my relationship with Carolyn, he omits any mention of the
McGaffen
trial. When Stern gets up, in his own quiet way he will make these abbreviations appear to be concealment.

In the area of my relations with Carolyn, Nico makes the only deviation from what we had predicted. Nico's problem is deeper than I, or even Stern, had understood. Delay does not simply lack proof of my relationship with Carolyn. He has not even correctly guessed what occurred.

"The evidence," he tells the jury, "will show that Mr. Sabich and Ms. Polhemus had a personal relationship that had gone on for many months, at least seven or eight months before the murder. Mr. Sabich was in Ms. Polhemus's apartment. She called him on the phone. He called her. It was, as I say, a personal relationship." He pauses. "An intimate relationship.

"But all was not well in this relationship. Mr. Sabich was, apparently, very unhappy. Mr. Sabich was, it seems, intensely jealous."

Larren on the bench has swung about and now is glaring. Nico is doing what the judge warned him about, arguing rather than simply describing his witnesses and exhibits. In his agitation, the judge glances now and then in Sandy's direction, a signal for Sandy to object, but Stern is quiet. Interruptions are discourteous, and Sandy is himself in court. More important, Nico is at the point in his oration where he is saying things that Stern knows he may not prove.

"Mr. Sabich was jealous. He was jealous because Ms. Polhemus was seeing not only him. Ms. Polhemus had formed a new relationship, a relationship that apparently infuriated Mr. Sabich." Another weighty caesura. "A relationship with the prosecuting attorney, Raymond Horgan."

This detail has never before found public life. Nico undoubtedly cabined it to protect his new alliance with Raymond; but he cannot help himself, he is still Nico, and he actually turns to the press rows as he lets this news into the world. There is an audible stirring in the courtroom, and Larren, with the mention of his former partner, finally loses his cool.

"Mr. Delay Guardia!" he thunders, "you were warned, sir. Your remarks are not to be in the nature of a closing argument. You will confine yourself to a
sterile
recitation of the facts or your opening will be over. Do I make myself clear?"

Nico faces the bench. He actually looks surprised. His prominent Adam's apple bobs as he swallows.

"Certainly," he says.

Jealousy, I write on my notepad, and pass it to Kemp. Given the choice between no motive and a motive he cannot quite prove, Nico has chosen the latter. It may even be the smarter gamble. But at the end, he will be working hard to stretch the facts.

Stern moves to the podium as soon as Nico is through. The judge offers a recess, but Sandy smiles gently and says he is prepared to go on right now, if the court please. Sandy is unwilling to let Nico's remarks accumulate force on reflection.

He steps around the podium and rests one elbow on it. He wears a brown suit, tailor-made, that conforms subtly to his full shape. His heavy face is still with portent.

"How are we to answer this," he asks, "Rusty Sabich and I? What can we say when Mr. Della Guardia tells you about two fingerprints but not another? What can we say when the evidence will show you gaps and suppositions, gossip and cruel innuendo? What can we say when a distinguished public servant is put on trial on the basis of circumstantial evidence which, as you will be able to determine, does not approach that precious standard of reasonable doubt?

"Reasonable doubt." He turns, he steps, he comes two feet closer to the jury. "The prosecution must prove guilt beyond a reasonable doubt." He harks back to everything they heard over the last two days from Judge Lyttle. At the outset, Stern has locked arms before the jurors with that mighty and learned jurist, a particularly effective device in light of Larren's first putdown of Delay. Sandy uses the term 'circumstantial evidence' repeatedly. He mentions the words 'rumors' and 'gossip.' Then he talks about me.

"And who is Rusty Sabich? Not simply, as Mr. Della Guardia told you, a top deputy in the prosecuting attorney's office.
The
top deputy. Among a handful of the finest trial lawyers in this county, this state. The evidence will show you that. A top graduate of the University Law School. A member of the
Law Review.
Clerk to the Chief Justice of the State Supreme Court. He gave his career, his life to public service. To stopping and preventing and punishing criminal behavior, not" — Stern glances contemptuously toward the prosecutors—"to committing it. Listen, ladies and gentlemen, to the names of some of the persons whom the evidence will show you Rusty Sabich brought to justice. Listen, because these are persons whose wrongdoing was so well known that even you who are not regularly in this courthouse will recognize these names, and, I am sure, will once again be grateful for Rusty Sabich's work." He spends five minutes talking about the Night Saints and other cases, longer than he should, but Della Guardia is hard put to object after Sandy endured his opening without complaint.