Presumed Innocent (45 page)

"Sure," he says. "But Ms. Polhemus got a child."

"So the evidence has shown," remarks Stern. "But let us not consider the particulars of Ms. Polhemus. Just bear my example in mind. If a woman knew she could not conceive, it would be unreasonable for her to use a spermicide, would it not?"

"Sure. Unreasonable." Painless agrees, but his answers are growing slower. His eyes seem thick. He has no idea where Stern is headed.

"Absurd?"

"I'd say."

"Can you, as a forensic expert, conceive of any reason that such a woman might use a diaphragm or a spermicide?"

"We not talkin about a lady in menopause?"

"We are speaking of a woman who knows without question that she cannot conceive."

"No reason. No medical reason. I think of nothin."

Sandy looks up at Larren. "Your Honor, may the court reporter mark the last five questions and answers so that she can read them back later, if need be?"

Kumagai conducts a slow survey of the courtroom. He looks at the judge, the reporter, finally the prosecutors' table. He is actually frowning now. The trap, whatever it is, has been set. Everyone knows it. The reporter attaches a clip to the narrow sheaf of stenographic notes.

"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 fimbriated 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 by 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 déjà 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 these 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.

"Is it 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?"

"It is 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. "Doc-tor 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.

"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 has offered that now only to sweeten this pill.