Nat, June 22, 2009
As soon as I hear what Tommy Molto wants to raise with Judge Yee, I move to the defense table and, crouching there, whisper to Stern that I'm taking a time-out. Alert to the proceedings, Sandy nonetheless nods soberly. I hustle to the doors before Molto can get very far.
Within a few hours after Debby Diaz's visit on election day, my dad had found out he was going to be indicted. In the weeks following my mom's death, he'd largely suspended his campaign. Koll followed suit briefly, but put his attack ads on the air in mid-October. My dad responded with his own tough commercials, but the only actual event he participated in was a broadcast debate for the League of Women Voters.
Election night, however, required a party, not for his sake, but for the campaign workers who'd knocked on doors for weeks. I showed up a little before ten p.m., because Ray Horgan had asked me to come down and pose for pictures with my dad. Knowing Ray would be there, I didn't push it when Anna asked me to go alone.
Ray had booked a big corner suite at the Dulcimer, and when I arrived there were about twenty people watching TV as they hovered around the chafing dishes with the hors d'oeuvres. My dad was nowhere to be seen, and I was eventually directed to a room next door, where I found my father in sober conversation with Ray. They were the only people in the room, and as I would have figured, Ray beat it as soon as he saw me. My dad had his tie dragged down his shirtfront and looked even more vacant and worn out than he had in the weeks since my mom had died. My parents were never easy with each other, but her passing seemed to have depleted him to the core. He was sad in this total way I might not have foreseen.
I hugged him and congratulated him, but I was too nervous about Debby Diaz not to bring her up immediately.
'I did,' he said when I asked if he'd found out what all that had been about. He motioned for me to sit. I grabbed a piece of cheese from the tray that was on the coffee table between us. My father said, 'Tommy Molto plans to indict me for murdering your mother.' He held my eyes while the hard drive spun uselessly inside my brain for quite some time.
'That's crazy, right?'
'It's crazy,' he answered. 'I expect they're going to end up calling you as a witness. Sandy was over there late today. He got a little courtesy preview of their evidence.'
'Me? Why am I a witness?'
'You didn't do anything wrong, Nat, but I'll let Sandy explain. I shouldn't be discussing the evidence with you. But there are a few things I want you to hear from me.'
My dad got up to turn off the TV. Then he plunged back into the overstuffed easy chair he'd been in. He looked the way elderly people do when they're struggling to find the thread, with the uncertainty spreading through their face and adding a tremble near the jaw. I was not any better. I knew the tears would be coming any instant. Somehow, I've always been embarrassed about crying in front of my father, because I know it's something he would never do.
'I'm sure it will be on the news tonight and in the papers tomorrow,' he said. 'They searched the house around six, as soon as the polls closed. Sandy was still at the PA's office. Nice touch,' my father said, and shook his head.
'What are they searching for?'
'I don't know, exactly. I know they took my computer. Which is a problem because there's so much internal material from the court. Sandy has already had several conversations with George Mason.' My dad looked off at the heavy drapes, which were made of some kind of paisley brocade, ugly stuff that was somebody's idea of what looked rich. He tossed his head around a little, because he knew he had wandered off point. 'Nat, when you talk to Sandy about the case, you're going to hear things I know will disappoint you.'
'What kind of things?'
He folded his hands in his lap. I have always loved my father's hands, big and thick, rough in any season.
'Last year I was seeing someone else, Nat.'
The words would not go through at first.
'You mean a woman? You were seeing another woman?' "Seeing someone else" made it sound almost innocuous.
'That's right.' I could tell my dad was trying to be courageous, refusing to look away.
'Did Mom know?'
'I never told her.'
'God, Dad.'
'I'm sorry, Nat. I won't even try to explain.'
'No, don't,' I said. My heart was banging and I was flushed, even while I thought, Why in the fuck am I embarrassed? 'Jesus, Dad. Who was it?'
'That really doesn't matter, does it? She's quite a bit younger. I'm sure a shrink would say I was chasing my youth. It was over and done for a long time before your mother died.'
'Anyone I know?'
He rotated his head emphatically.
'Jesus,' I said again. I've never been a quick study. I arrive at my views, whatever they are, only after things have boiled inside me for a long time, and I realized I was going to have to thrash around with this one for quite a while. All I knew for sure was that this was not cool at all, and I wanted to leave. I stood up and said the first thing in my head. 'I mean, Jesus Christ, Dad. Why didn't you buy a fucking sports car?'
His eyes rose to me and then went down. I could tell he was sort of counting to ten. My father and I have always had trouble about his disapproval. He thinks he is stoic and unreadable, but I inevitably see his brow shrink, if only by micrometers, and the way his pupils darken. And the effect on me is always as harsh as a lash. Even now, when I knew I had every right to be angry, I was abashed by what I had just said.
Finally, he spoke quietly.
'Because I guess I didn't want a fucking sports car,' he said.
I had a paper napkin balled in my fist and threw it on the table.
'One more thing, Nat.'
I was too messed up by now to talk.
'I didn't kill your mother. You'll have to wait to understand everything that's going on, but this case is old wine in new bottles. It's just a lot of rancid crap from a compulsive guy who never figured out how to give up.' My father, usually the soul of moderation, looked taken aback by permitting this blunt evaluation of the prosecutor. 'But I'm telling you this. I've never killed anyone. And God knows, not your mother. I didn't kill her, Nat.' His blue eyes had come back up to mine.
I stood over the table wanting nothing more than to get away, so I simply blurted out, 'I know,' before I left.
Marta Stern's head hangs outside the courtroom door. She has a kind of wind-sprung do of reddish curls and long arty earrings with colored glass, and the slightly dried-out look of a formerly fat person who got thin by exercising like mad. Throughout the trial, she's sort of been in charge of me, halfway between guardian angel and chaperone.
"They're ready." As I shuffle in beside her, she grips my arm and whispers, "Yee didn't change his ruling."
I shrug. As with so many other things, I'm not sure if I'm relieved I won't have to sit there pretending not to care while I listen in public to the details of my father's affair, or if instead I would have preferred to do the cross-examination myself. I say what I've felt so often since this whole stupid thing began.
"Let's just get it over with."
I take my seat in the front row at the same time the jurors are returning. Tommy Molto is already standing in front of my dad, a little like a boxer off his stool before the bell sounds. Beside my father, the projection screen the PAs have been using to show the jury computer slides of various documents admitted in evidence has been opened again.
"Proceed, Mr. Molto," Judge Yee says when the sixteen jurors-four alternates-are back in the fancy wooden armchairs in the jury box.
"Judge Sabich," says Molto.
"Mr. Molto." My dad gives this little nod as if he's known for a thousand years the two of them were going to find themselves here.
"Mr. Stern asked you on direct examination if you'd heard the testimony of the prosecution witnesses."
"I recall."
"And I want to ask you some more about the testimony you heard and the way you understood it."
"Certainly," says my dad. As a witness in this case, I can't be one of my dad's lawyers, but I help carry things back to the Sterns' office after court. Now that I've done my thing for the prosecution, I tend to hang around there until Anna is ready to meet me after work. The last three nights, my dad's legal team has practiced his cross-examination in a moot courtroom at Stern amp; Stern. Ray Horgan has been there to grill my dad, and Stern and Marta and Ray and the jury consultant they've employed, Mina Oberlander, have examined a videotape afterward, giving my dad pointers. For the most part, he's been directed to answer briefly and directly and to try to disagree, when he does, without appearing uncooperative. When it comes to cross-examination, especially of the defendant, apparently it's all about looking as though you have nothing to hide.
"You heard the testimony of John Harnason?"
"I did."
"And is it true, Judge, that in a conversation between just the two of you, you indicated to Mr. Harnason he was going to lose his appeal?"
"That is true," says my dad, with the kind of clipped, unhesitating response he has been practicing. I have known this fact since last November, but my father's confirmation is news in the courtroom and there is a stir, including in the jury box, where I'm sure many members took John Harnason as too weird to be believed. Across the way, Tommy Molto's thin lips are pursed in apparent surprise. With Mel Tooley as a witness in reserve, Molto must have expected to batter my dad when he denied telling Harnason.
"You heard Judge Mason's testimony in the prosecution case that doing that violated several rules of judicial behavior, didn't you?"
"I heard his testimony."
"Do you disagree with him?"
"I do not."
"It was improper, Judge, to engage in a private conversation with a defendant about his case while it was awaiting decision, wasn't it?"
"Surely."
"It violates a rule against what we call ex parte contact, right-without the other party?"
"Correct."
"Someone from my office was entitled to be there. True?"
"Absolutely."
"And as a judge of the court of appeals, were you free to reveal the court's decisions before they had been published?"
"There is not an explicit rule prohibiting that, Mr. Molto, but I would have been disappointed in any other member of the court who had done that, and I consider it a serious mistake in judgment on my part."
Responding to my father's characterization of this breach as 'a mistake in judgment,' Molto makes my dad agree that there are elaborate security procedures in the court of appeals to prevent word of decisions leaking out in advance, and that the law clerks and other employees are warned when they are hired never to reveal a decision beforehand.
"Now how many years, Judge, have you been on the bench?"
"Including the time I sat as a trial judge in the superior court?"
"Exactly."
"More than twenty years."
"And during the entire two decades you have been on the bench, Judge, how many times previously have you disclosed a decision that was not yet public to just one side?"
"I've never done that, Mr. Molto."
"So this was a serious violation not just of the rules, but also of the way you've always done business?"
"It was a terrible mistake in judgment."
"It was more than a mistake in judgment, Judge, wasn't it? It was improper."
"As I said, Mr. Molto, there is no specific rule, but I agree with Judge Mason that it was clearly wrong to tell Mr. Harnason about the outcome. It struck me as a formality at the moment because I knew the case was fully resolved. It didn't dawn on me that Mr. Harnason might flee as a result."
"You knew he was on bail?"
"Of course. I'd granted the motion."
"Exactly the point I was going to make," says Molto. Small, tight, with his bunchy form and timeworn face, Tommy smiles a little as he faces the jury. "You knew he would be in prison the rest of his life once his conviction was affirmed?"
"Naturally."
"But it didn't dawn on you he might run?"
"He hadn't run yet, Mr. Molto."
"But with your court's decision he was really out of chances, wasn't he? In any realistic sense? You believed the state supreme court wouldn't take the case, didn't you? You told Harnason he was at the end of the line, right?"
"That's right."
"And so you're telling us that after being a prosecutor for what-fifteen years?"
"Fifteen years."
"A prosecutor for fifteen years, and a judge for twenty more, it didn't occur to you that this man wanted to know the decision in advance so he could run away?"
"He appeared very upset, Mr. Molto. He told me, as he admitted when he testified, that he was overwhelmed by anxiety."
"He conned you?"
"I think Mr. Harnason said he decided to flee after learning about the outcome. I don't deny I shouldn't have told him, Mr. Molto. And I don't deny that one of many reasons that was wrong was because it ran the risk he would jump bail. But, no, at the time, it didn't occur to me that he would run."
"Because you were thinking of something else?"
"Probably."
"And what you were thinking about, Judge, was poisoning your wife, wasn't it?"
This is the artifice of the courtroom. Molto knows that my dad was probably worried about being nabbed with the girl he was screwing. And can't say that. He must be satisfied with answering, simply, "No."
"Would you say, Judge, you were doing Mr. Harnason a favor?"
"I don't know what I'd call it."
"Well, he was asking for something improper and you obliged him. Right?"
"Right."
"And in return, Judge-in return you asked him what it was like to poison someone, didn't you?"
The time-honored strategy on cross-examination is never to ask a question to which you don't know the answer. As my father has explained to me many times, that is not a rule of unlimited application. More properly put, the rule is never to ask a question to which you do not know the answer-if you care about the response. In this case Molto must feel he cannot really lose. If my father denies saying asking what it was like to poison someone, Molto will verify Harnason by going over the many other parts of the conversation my dad has already acknowledged.
"There was no 'in return,' Mr. Molto."
"Really? You're telling us that you violated all these rules in order to give Mr. Harnason a piece of information he desperately wanted-and you did that without thinking Mr. Harnason was going to do anything for you?"
"I did it because I felt sorry for Mr. Harnason and guilty about the fact that when you and I were both young prosecutors, I had sent him to the penitentiary for a crime that I now see didn't merit that punishment."
Caught, Tommy stares at my dad. He knows-and so does everybody in the courtroom-that my dad is trying to remind the jury not only about his past relationship with Tommy, but that prosecutors sometimes go too far.
"Now, you heard Mr. Harnason's testimony?"
"We've already agreed to that."
The response, slightly snippy, is the first time my dad has seemed in less than complete control. Stern sits back and looks straight at him, a cue to mind himself.
"And are you telling us he lied when he said that after revealing the decision in his case, you asked him what it was like to poison someone?"
"I do not remember the conversation exactly as Mr. Harnason did, but I do remember that question being asked."
"Being asked by you?"
"Yes, I asked him that. I wanted-"
"Excuse me, Judge. I didn't ask what you wanted. How many trials have you taken part in or observed as a prosecutor or a trial judge or an appellate court judge?"
On the stand, my dad smiles ruefully about the long march of time.
"God knows. Thousands."
"And after thousands of trials, Judge, you understand that you're supposed to answer the questions I ask you, not the questions you wish I asked?"
"Objection," says Stern.
"Overruled," says Yee. Tommy might be hectoring a regular witness, but this is fair game with a judge on the stand.
"I understand that, Mr. Molto."
"I asked just this: Did you ask Mr. Harnason what it was like to poison someone?"
My father does not pause. He says, "I did," in a labored tone that suggests there is much more to it, but the answer nonetheless sets off one of those little courtroom murmurs I always thought were corny on shows like Law amp; Order, which I watched habitually as a kid, the next best thing to videotapes of my dad at work. Tommy Molto has scored.
In the interval, Brand motions Tommy to the prosecution table. The chief deputy whispers something, and Tommy nods.
"Yes, Mr. Brand just reminded me. To be clear, Judge, Mr. Harnason had not been recaptured when your wife died, had he?"
"I think that's right."
"He'd been gone more than a year?"
"Yes."
"So when your wife died, Judge, you had no reason for serious concern that Mr. Harnason would be telling the police that you'd asked him what it was like to poison somebody?"
"Frankly, Mr. Molto, I never thought about that part of our conversation. I was much more concerned that I'd unwittingly given Harnason reason to flee." After a second, he adds, "My conversation with Mr. Harnason was more than fifteen months before my wife died, Mr. Molto."
"Before you poisoned her."
"I did not poison her, Mr. Molto."
"Well, let's consider that, Judge. Now, did you read the transcript of Mr. Harnason's trial in deciding his appeal?"
"Of course."
"Would it be fair to say you read the transcript carefully?"
"I hope that I read every trial transcript carefully in deciding an appeal."
"And what Mr. Harnason had done, Judge, was poison his lover with arsenic. Is that right?"
"That was what the State contended."
"And what Mr. Harnason told you he had done?"
"True enough, Mr. Molto. I thought we were talking about what was in the transcript."
Molto nods. "Correction accepted, Judge."
"That was why I asked Mr. Harnason what it was like to poison someone-because he'd admitted he'd done it."
Molto looks up, and Stern too places his pen down. The rest of the conversation between Harnason and my father, which concerned his first trial, is out of bounds under Judge Yee's order. My dad has recovered a little of the ground he lost to Molto before, but I can see that Sandy is worrying that my father will stray too close to the line and open the door to a far more dangerous subject. Molto seems to be considering that, but he chooses to go where he was headed.
"Well, one thing that was certainly in the transcript, Judge, was a very detailed description of which drugs American Medical, the reference laboratory under contract to the Kindle County coroner-the transcript recites which drugs American tests for in the course of a routine toxicology screen on blood samples from an autopsy. Do you recall reading that?"
"I take it for granted I read it, Mr. Molto."
"And it turns out, Judge, that arsenic is a drug that is not included in a routine tox screen. Is that right?"
"I remember that."
"And because of that, Mr. Harnason had nearly gotten away with murder, hadn't he?"
"As I recall, the coroner originally ruled Mr. Millan's death to be by natural causes."
"Which was how the coroner originally classified Mrs. Sabich's death as well. True?"
"Yes."
"Now, Judge, are you familiar with a class of drugs called 'MAO inhibitors'?"
"That was not a term I knew well formerly, but I'm certainly familiar with it now, Mr. Molto."
"And how about a drug called phenelzine. Are you familiar with that?"
"I certainly am."
"And how did you first hear about phenelzine?"
"Phenelzine is a kind of antidepressant that my wife took from time to time. It had been prescribed for her for several years."
"And phenelzine, Judge, is an MAO inhibitor, is it not?"
"I know that now, Mr. Molto."
"You knew it for some time, didn't you, Judge?"
"I really can't say that."
"Well, Judge, you heard the testimony during the prosecution case of Dr. Gorvetich, didn't you?"
"Yes."
"And you recall, I'm sure, that he described doing a forensic examination of your personal computer after it was removed from your house. Do you recall that?"
"I recall his testimony and I recall my home being searched at your order and my computer being seized." My dad does his best not to sound too bitter, but he has made the point purposefully about the intrusion.
"And you recall Dr. Gorvetich testifying that the cache on your Web browser shows that at some point in time, which he isolated as late September 2008, there were searches on your personal computer of two sites that describe phenelzine."
"I remember that testimony."
"And looking at the pages visited, Judge-" Tommy turns to a paralegal at the prosecution table and gives an exhibit number. The blank screen beside my dad fills up, and Tommy uses a laser pointer to highlight as he reads. "'Phenelzine is a monoamine oxidase (MAO) inhibitor.' Do you see that?"
"Of course."
"Do you recall reading that in late September 2008, Judge?"
"I do not, Mr. Molto, but I take your point."
"And page 463 of the Harnason transcript, which was previously introduced into evidence as People's Exhibit 47, which I believe you have just admitted you read-that page states, doesn't it, that MAO inhibitors are not tested for as part of a toxicology screen routinely performed on a postmortem examination of someone who has died unexpectedly?"
"Yes, it says that."
Molto then calls up to the screen Judge Hamlin's opinion for herself and Judge Mason in Harnason's case, which also says that arsenic and many other compounds, including MAO inhibitors, aren't tested for in connection with autopsies.
"And you read Judge Hamlin's opinion?"
"Yes, sir. Several drafts."
"So you know, Judge, that an overdose of phenelzine would not be detected by a routine tox screen, right? Just like the arsenic used to kill Mr. Harnason's lover?"
"Argumentative," says Stern by way of objection.
Judge Yee wags his head, as if it's no big deal, but says, "Sustained."
"Well, let me put it to you like this, Judge Sabich: Didn't you poison your wife with phenelzine, knowing it wasn't going to be detected by a routine toxicology screen and hoping to pass off her death as one by natural causes?"
"No, Mr. Molto, I did not."
Tommy pauses then and strolls a bit. The issue, as they like to say in very old court opinions, has been joined.
"Now, Judge, you heard the testimony of Officer Krilic about removing the contents of your wife's medicine cabinet from your house the day after she died?"
"I remember Officer Krilic asking me if he could do that rather than making a list of the drugs while he was at our house, and I recall giving him permission, Mr. Molto."
"It would have looked pretty suspicious if you'd refused, wouldn't it, Judge?"
"I told him to do whatever he needed to do, Mr. Molto. If I wanted to keep anyone from examining those pill bottles, I'm sure I could have thought of a reason to ask him to write down the names of the drugs while he was there."
At the prosecution table, Jim Brand feigns touching his chin while he rolls his fingers toward Molto. He's telling Molto to move on. My dad has just scored.
"Let's get to the point, Judge. Those are your fingerprints on the bottle of phenelzine from your wife's medicine cabinet, right?" Tommy calls out an exhibit number, and a paralegal from the PA's office puts up a series of slides, with several golden fingerprints displayed against an iridescent blue background. Etched in gold, the prints look like something from the Holy Ark.
"I heard Dr. Dickerman's testimony."
"We all heard him offer his opinion, Judge, that those are your prints, but now in front of the jury"-Tommy sweeps his hand toward the sixteen people behind him-"I'm asking if you admit those in fact are your fingerprints on your wife's phenelzine?"
"I regularly picked up Barbara's pills at the pharmacy and often put them on the shelves in her medicine cabinet. I have no reason to doubt those are my prints. I do recall, Mr. Molto, that in the week before her death, Barbara had been in the garden when I came home, and her hands were dirty and she asked me to show her a bottle I'd picked up and then to put it in her medicine cabinet, but I can't tell you for certain that was the phenelzine."
Molto stares a second with the barest smirk, enjoying the utter convenience of the explanation.
"So you're saying the prints came from showing your wife the bottle you'd picked up?"
"I'm telling you that's possible."
"Well, let's look more carefully, Judge." Tommy returns to the prosecution table and comes back with the actual vial, now sealed in a glassine envelope. "Referring to People's Exhibit 1, the phenelzine you picked up at the pharmacy four days before your wife's death-you're saying you showed it to her, something like this, right?" Gripping the small bottle through the plastic, he extends it toward my father.
"Again, yes, if it was the phenelzine I showed her."
"And I'm holding the bottle between my right thumb and the side of my index finger, correct?"
"Right."
"And my right thumb, Judge, is pointing down toward the label on the front of the vial, isn't it?"
"Yes."
"But calling your attention again to People's Exhibit 1A, the slide of the fingerprints Dr. Dickerman developed, three of the four prints, your right thumb, your right index finger, your right middle finger-they're all pointing up toward the label, Judge. Aren't they?"
My dad takes a second to look at the slide. He nods before being reminded by Judge Yee to speak for the record.
"I had to reach in the bag to get the bottle out, Mr. Molto."
"But the prints are on the bottom of the vial, aren't they, Judge?"
"It might have been upside down in the bag, Mr. Molto."
"In fact, Judge, Dr. Dickerman testified that the length and width of all of those impressions would suggest you gripped the bottle tightly so the childproof cap could be opened. Did you hear that testimony?"
"Yes. But I also could have been gripping it tightly to pull it out of the bag."
Molto stares with the inklings of another smile. My dad has handled all of that fairly well, ignoring the fact that my mom's prints appear nowhere on the bottle.
"Well, let's talk about the pharmacy, Judge Sabich. Ten phenelzine tablets were purchased at your pharmacy on September 25, 2008, four days before your wife's death."
"That was the evidence."
"And the signature on the credit card slip, Judge, People's Exhibit 42-that's yours, is it not?" The slide of the slip, which was passed among the jurors in another transparent envelope when it was admitted, pops up next on the screen beside the witness stand. My father does not bother to turn.
"Yes."
"You purchased the phenelzine, didn't you, Judge?"
"I do not remember doing that, Mr. Molto. I can only agree that it is plainly my signature and tell you that I often picked up the prescription when I was coming home, if Barbara asked me to do it. The pharmacy is across the street from the bus I rode to work
every day."
Molto checks his exhibit list and whispers instructions for the next slide.
"And referring to People's 1B, a photograph, you heard Officer Krilic testify that the bottle of phenelzine portrayed there is in the same condition as when he removed it."
"Yes."
"And calling your attention to People's 1B, I think you can see that there are only six pills in the container, is that right?"
In the photo, taken looking down into the plastic vial, the six tablets, dead ringers for the burnt-orange ibuprofen I take for occasional headaches, rest on the bottom. It's hard to believe that pills so common-looking could kill anybody.
"Right."
"And do you know where the four missing pills went?"
"If you're asking, Mr. Molto, whether I had anything to do with removing those pills, the answer is no."
"But you heard Dr. Strack's testimony that four pills of phenelzine taken at once would constitute a lethal dose?"
"I heard that."
"Do you have any reason to disagree with that?"
"I understand that if taken at once, four tablets of phenelzine could constitute a lethal dose. But you pointed out that I picked up the prescription on September 25. And a single pill is the recommended daily dose. The twenty-fifth, the twenty-sixth, the twenty-seventh, the twenty-eighth." My father counts it out on the four fingers of his left hand.
"So are you contending, Judge, that your wife took the phenelzine daily prior to her death?"
"I'm not here to contend anything, Mr. Molto. I know that Dr. Strack, your expert, conceded that it's possible that a combination of a single dose of phenelzine taken in combination with certain food or drink could induce a fatal reaction."
"So your wife's death was an accident?"
"Mr. Molto, she was alive when I went to sleep and dead when I awoke. As you know, none of the experts can even tell for sure whether it was phenelzine that killed Barbara. Not one of them can say she didn't die of a hypertensive reaction like her father."
"Well, let's consider the possibility it was an accident, Judge, can we?"
"Whatever you like, Mr. Molto. I'm here to answer your questions." Again there is a little too much acid in my dad's response. Tommy and I-and now the jury-all know the same thing about my father. After twenty years on the bench and a dozen as chief judge, he is not accustomed to answering questions from anybody. The faint whiff of arrogance helps Molto because it implies that beneath it all, my dad may be a law unto himself.
"You mention there is a severe poisoning reaction when phenelzine is consumed with certain foods, right?"
"So I have learned."
"Speaking of what you've learned, did it surprise you, Judge, when Dr. Gorvetich testified, that information about the danger of phenelzine when it's taken along with any one of a number of foods containing tyramine-red wine and aged cheese and herring and dry sausage-did it surprise you to see that that information is freely available on the Internet?"
"I knew, Mr. Molto, that one of the drugs Barbara took from time to time could interact with certain foods. I knew that."
"Exactly my point. And we do know, Judge, don't we, because of Dr. Gorvetich's testimony, that the two websites you visited in late September specify those interactions, don't they?"
Molto nods, and the two pages from the Net, with yellow highlights drawn in on the slides, appear next to my father.
"I can see what's on the pages, Mr. Molto."
"Are you denying you visited those sites in late September last year?"
"I don't know exactly what happened, Mr. Molto. My wife took about twenty different drugs, and some were more dangerous than others. It was not completely unusual for me to check on the Internet after picking up Barbara's medications to remind myself of the properties of one or the other, so I could help her keep track of them. But if your question is whether I visited those websites on my home computer in the days before Barbara died-"
"That's exactly what I'm asking, Judge."
"My best recollection is that I didn't."
"You didn't?" Tommy is surprised. I am, too. My dad has already given a plausible explanation for going to those sites. It seems unnecessary to deny it. Stern has not stopped writing, but I can see from the way his lips have folded, he is not pleased.
"All right," says Tommy. He strolls a little bit, running his hand across the prosecution table, before he faces my dad again. "But we have no dispute, Judge, do we, that the night before your wife died, you in fact went out and purchased red wine, aged cheddar cheese, pickled herring, yogurt, and Genoa salami. Correct?"
"I remember doing that."
"That you do remember," says Tommy, one of those nice courtroom jabs meant to show the inconsistencies in my father's memory.
"I do. My wife had another prescription to pick up and she asked me to buy those items while I was at the store."
"You don't have the shopping list she handed you, Judge, do you?"
"Objection," says Stern, but my dad makes the point for him.
"I didn't say there was a shopping list, Mr. Molto. My wife asked me to buy a bottle of red wine that she liked, aged cheddar, Genoa salami, and multigrain crackers because our son who was coming to dinner enjoys those things, and to get some herring-which she liked-and yogurt to make a dip for the vegetables she already had."
It's true I love cheese and salami and have since I was four or five. The family legend is that I wouldn't eat much else when I was that age, and I will say that when I'm called again to testify later this week. From the time Debby Diaz first visited, I have had a clear memory of my mom removing the items from the white cellophane bags my dad carried in that night, and of her inspecting each. Although I wonder at times about the desperate suggestibility of my memory, and how much my hope that my dad is innocent is influencing things, I'm nearly as sure I recall my father asking her, 'Is that what you wanted?' I will say that, too, when I get back up on the stand. But what I don't know is whether my mom requested those items or simply told him to get some wine and appetizers, or even whether he'd proposed getting hors d'oeuvres in the first place. Each alternative would be possible, although the truth is that my mom, being my mom, would have been most likely to name exactly what she liked and even told my dad the brands and what aisles they were in.
"Now, Judge. Who managed your wife's drug regimen for her manic-depression? Who selected the drugs on a day-to-day basis?"
"My wife. If she had questions, she called Dr. Vollman."
"Was she a bright woman?"
"Brilliant, in my opinion."
"And did you hear Dr. Vollman's testimony that he warned her repeatedly that when she was taking phenelzine, she had to be very careful about what she ate?"
"Yes, I heard him."
"In fact, Dr. Vollman testified that it would have been his regular practice to warn you as well. Do you remember him warning you about phenelzine?"
My dad looks at the coffered courtroom ceiling with its crisscrossing decorated walnut beams.
"It's vague, Mr. Molto, but yes, I think I do remember that." This is another fact my dad has no need to admit. I wonder if the jurors will give him credit for his candor, or just take it as a sly device from someone who has spent most of his adult life around courtrooms.
"And so, Judge, you want us to believe that she asked you to get wine and cheese and salami and herring, knowing she was taking phenelzine? And more than that, that she drank the wine and ate the cheese and salami?"
"Excuse me, Mr. Molto, but I don't believe anyone has testified that my wife drank wine or ate cheese. I certainly didn't, because I have no memory of that happening."
"Your son, Judge, testified that your wife drank the wine, sir."
"My son testified that I poured a glass of wine for my wife. I didn't see Barbara drink it. Nat and I went outside then to grill the steaks, so I don't know who ate what."
Tommy stops. This is the first time my dad has really zinged him. My dad is right, too, about all of this. But searching my memory of that night, I seem to recall my mom with a wineglass in her hand, certainly at dinner.
"But let's be clear, Judge. Assume your wife was taking the phenelzine once a day as you've suggested. Does your own testimony make sense to you, sir, that she would send you to the store with a shopping list full of items that could kill her? That she would ask for herring, for instance, or yogurt, which you tell us she intended to eat?"
"You're asking me to guess, Mr. Molto, but I would bet that Barbara knew just how much she could 'cheat' without an adverse reaction. She'd probably started with a sip of wine, or half a piece of herring, and over the years figured out how much she could tolerate. She'd taken this medication from time to time for quite a while."
"Thank you, Judge." Molto's tone is suddenly triumphant as he stands there peering at my dad. "But if your wife didn't drink the wine and she didn't eat the salami and she didn't eat the cheese or the herring or the yogurt, Judge, then there's no chance, is there, that she died accidentally?"
There is just a second dropped before my dad answers. He-and I-realize something significant just occurred.
"Mr. Molto, you're asking me to speculate about things that happened when I was out of the room. It would have been odd for Barbara to eat or drink those things in any quantity. And I don't remember her doing it. But she was very excited about seeing my son and his girlfriend. She thought it was a great match. So I can't say she couldn't have forgotten herself. That's why they call it an accident."
"No, Judge, I'm not asking you to guess. I'm trying to confront you with the logic of your own testimony."
"Objection," says Stern. "Argumentative."
"Overruled," says the judge, who's pretty clearly saying my dad got himself into this mess.
"You told us your wife might have been taking a regular dose of phenelzine and died accidentally, didn't you?"
"I said that was a possibility raised by the testimony."
"You told us that it was your wife's decision to have you get all that stuff to eat that was dangerous to her, despite the fact that she was taking phenelzine. Right?"
"Yes."
"And then you told us that maybe she did that because she was not going to have any of it, or minuscule amounts that she knew wouldn't hurt her. Right?"
"I was speculating, Mr. Molto. It's only one possibility."
"And you told us you didn't see her eat or drink any of it. Right?"
"Not that I remember."
"And, Judge, if your wife didn't eat or drink anything containing tyramine, then she couldn't have died accidentally from a phenelzine reaction. Correct?"
"Objection," says Stern from his seat. "He's asking for an expert opinion from the witness."
Judge Yee looks up to think and sustains the objection. It doesn't matter, though. My dad cornered himself and has taken a pounding as a result. Molto is doing a great job of harping on the little pieces of evidence that have nagged at me all along. The PA lets what he's accomplished sink in as he shuffles through his notes.
"Now, Judge, one reason we are having this discussion about what your wife might have eaten and might have drunk is because the autopsy of the contents of her stomach didn't answer that question. Right?"
"I agree, Mr. Molto. The gastric contents were unrevealing."
"Didn't show if she ate cheese or steak. Right?"
"True."
"But normally, Judge, if an autopsy was performed within the first twenty-four hours after her death, we would have a better idea of what she'd eaten the night before, wouldn't we?"
"I heard the coroner's testimony, Mr. Molto, and without giving anything away, you know that our expert, Dr. Weicker from Los Angeles, disagrees with him, especially about how fast the salami or the herring would have broken down in the gastric fluids."
"But you and I, Judge, and the experts can agree on this much, can't we? The twenty-four hours you sat with your wife's body without notifying anybody of her death-that delay could only go to make it harder to identify what she ate."
My father waits. From the way his eyes move, you know he is trying to figure a way out.
"It made it harder, yes." This point, too, registers in the jury box. Molto is doing well.
"Now let me go back to what you told us only a moment ago, Judge. You said your wife was excited that night about seeing your son and his girlfriend."
"I did."
"She seemed happy?"
"'Happy' is a relative term, Mr. Molto, when we're talking about Barbara. She seemed very pleased."
"But you told the police, didn't you, Judge, that your wife did not seem clinically depressed at dinner, or in the days before? Is that what you said?"
"I did tell them that."
"And was that true?"
"That was my impression at the time."
"And the phenelzine, Judge-you heard the testimony of Dr. Vollman that she referred to that drug as the A-bomb, to be used for her darkest moods."
"I heard that."
"And after thirty-five-plus years with your wife, Judge, did you think you were good at gauging her moods?"
"Very often her serious depressions were obvious. But I can recall occasions when I had totally misread her state of mind."
"But again, Judge, accepting the fact that the phenelzine was reserved for her darkest days, you saw no sign that night as you four were having dinner that she was in that condition, did you?"
"I didn't."
"Or in the days before?"
"True."
I've already testified to the same thing. Thinking back to that night, I would have called my mom 'up,' frankly. She seemed to be looking forward to things.
"And so, Judge, based on what you observed and reported to the police-based on that, Judge, there was no reason for your wife to be taking a daily dose of phenelzine."
"Again, Mr. Molto, I never thought my estimates of her emotional state were perfect."
"But when you had picked up the phenelzine three days before, did you ask her if she was feeling depressed?"
"I don't remember such a conversation."
"Even though you'd picked up the A-bomb for her?"
"I don't recall taking particular note of what I'd picked up."
"Even though your fingerprints are on the bottle?"
"It was mechanical, Mr. Molto. I brought home the scrips. I put them on the shelf."
"And even though you visited websites and searched for information about the drug in late September, you're saying you didn't notice what you picked up?"
"Objection," says Stern. "Asked and answered. The judge already testified about what he remembers about those searches."
The pause, if nothing else, disturbs Molto's rhythm, which is why Stern has struggled to his feet. But everybody here knows that Tommy Molto is beating the crap out of my father. It doesn't make sense. That's the long and short. My father can have the rest of it his way. Maybe he missed her moods. There were times, especially when my mom was angry, that you didn't know it until the rage broke surface. And since I made those runs to the pharmacy myself when I was living at home, I can side with him about not noticing which of the dozens of medications she took he was picking up. But the Web searches-those are devastating. About the best thing to say, which I'm sure Stern will put out there in closing argument, is that it would be an odd thing for a judge and former prosecutor elaborately planning murder to use his own computer that way. To which Molto will respond in rebuttal with the obvious: He was not planning on getting caught, he was planning on passing this off as a death by natural causes.
But all of this depends on the screwy epistemology of the courtroom, where the million daily details of a life suddenly get elevated to evidence of murder. The truth is that my dad, and just about everybody else, could have noticed the phenelzine, taken a spin through those websites three days before just to remind himself this was in fact the A-bomb, and then just let it go, especially in the kind of marriage my parents had. There were oceans of stuff that went unspoken in my parents' house-the air there always seemed full of things struggling not to be said. And my mom never liked to be questioned about her medications. I heard her say a million times she could take care of herself.
Judge Yee overrules the objection, and my father repeats placidly that he has searched his memory and does not recall visiting those sites. The response rankles Tommy.
"Who else lived in your house, Judge, in late September 2008?"
"It was my wife and I."
"You're saying that your wife researched phenelzine on your computer?"
"It's a possibility if she had some question."
"Did she have her own computer?"
"She did."
"Did she routinely use your computer?"
"Not routinely. And not at length. But my computer was right outside our bedroom, so occasionally, she'd tell me and use it for a second."
I never heard about that happening, but it was possible with my mom. Overall, she probably would have preferred to have a computer strapped to her hip. Molto has proved those courtroom sayings about not gilding the lily. The last series of questions feels like it's helped my dad, and Molto, who is not especially poker-faced, seems to know it, frowning at himself as he strolls around. It's not hard to see why Tommy has been successful as a trial lawyer. He's sincere. Maybe misguided. But he comes across like somebody with nothing up his sleeve.
"To be clear, Judge, do you agree that your wife did not die accidentally?"
Because my dad has instructed Sandy to be frank with me about the evidence, I've known in advance about almost everything I've heard in court. My dad hasn't wanted me taken by surprise. And I've rolled it over, talked to Anna about it when she would listen, even made some notes now and then. But to think about your father killing your mother is even worse than thinking about your parents having sex. A part of your brain is just like, "No way, dude." So I've never seen as clearly how these things cascade backward in time. If my mom didn't die accidentally, then she also probably wasn't taking the phenelzine daily. And if she wasn't taking the phenelzine daily, she had no reason to renew the scrip. It means-or seems to mean-it was my dad who wanted the pills. And there's only one conceivable reason for that.
"Mr. Molto, again, I am not a pathologist or a toxicologist. I have my theories, you have your theories. All I know for sure is that your theory is wrong. I didn't kill her."
"So you still say it could have been an accident?"
"The experts say it could have been."
"So if your wife was possibly taking one pill every day, that would mean, wouldn't it, that she handled that pill bottle on four different occasions, right?"
"That's what it would mean."
"And yet, Judge, your wife left no fingerprints on that bottle, is that correct?"
"That's what Dr. Dickerman said."
"Now, Judge, there was a total of twenty-one pill bottles taken from your wife's medicine cabinet and inventoried by Officer Krilic."
"So he testified."
"And according to Dr. Dickerman, your wife's fingerprints appear on seventeen of those bottles. And on two others, there are smudged prints that cannot be positively identified, although he found points of comparisons on each that match your wife's. All true?"
"I remember the testimony the same way."
"Judge, how many times have you been involved as a prosecutor, a trial judge, and an appellate court judge in cases in which fingerprints were offered in evidence?"
"Certainly hundreds. Probably more."
"And so is it fair to say, sir, that over the course of the years, you have learned a great deal about fingerprints?"
"We can quibble about how much, but yes, I've learned a lot."
"For thirty-five years now you've been called upon in one capacity or another to make judgments about the quality or failings of fingerprint evidence. Right?"
"True enough."
"Could we call you an expert?"
"I'm not an expert like Dr. Dickerman."
"No one is," says Molto.
"Just ask him," says my father. This could come across as a cheap shot but the jurors saw Dickerman up there and several of them laugh out loud. In fact, the laughter grows in the courtroom. Even Judge Yee manages a quick chuckle. Molto too has enjoyed the remark. He shakes a finger at my dad in admiration.
"But you know, Judge, that some persons characteristically leave fingerprints on a receptive surface like these pill bottles, don't you?"
"I know, Mr. Molto, that it basically comes down to how much your hands sweat. Some people sweat more than others. But the amount that somebody sweats varies."
"Well, can you agree that somebody who printed on nineteen-or even seventeen other bottles-can you agree that it would be unusual for that person to handle this bottle of phenelzine four times"-and now Molto again holds up the actual bottle, in the plastic envelope sealed with evidence tape-"and leave no fingerprints?"
"I can't say that for sure, Mr. Molto. And frankly I don't recall hearing Dr. Dickerman say it, either."
On the stand, Dickerman had clearly given Jim Brand, who questioned him, less than Brand hoped for on this point. Back at the office, Stern and my dad had said that happened with Dickerman regularly. He took it as proof of his eminence that he was
unpredictable.
"By the way, is Dr. Dickerman a friend of yours?" Molto asks.
"I would say yes. Just as he's a friend of yours. We've both known him for a long time."
Trying to insinuate that Dickerman might have been tilting his testimony toward my dad, Molto has come up on the short end of the exchange.
"Well, let's be clear, Judge. There are only two bottles in your wife's medicine cabinet on which we can say without doubt that her fingerprints don't appear. True?"
"Apparently."
"And one is the bottle of sleepers you picked up the day before she died, isn't it?"
"Yes."
"And that bottle is full, right?"
"Right."
"So leaving the unopened sleeping pills aside, the only bottle in your dead wife's medicine cabinet on which the experts can say definitively that her fingerprints are not present, Judge-the only container is the bottle of phenelzine, correct?"
"There are no identifiable prints of Barbara's on the bottle of phenelzine, and as you point out, on three others."
"Move to strike," says Molto, which means he thinks my dad didn't answer the question.
Judge Yee asks to have the question and answer read back.
"Answer may stand," says Yee, "but, Judge, only one opened bottle where expert can say for sure, no sign of your wife fingerprints. Yes?"
"That's fair enough, Your Honor."
"Okay." Yee nods for Molto to go on.
"But on the bottle of phenelzine-on that bottle the only prints which appear, Judge, are yours? Right?"
"My prints are on that bottle and on seven others, including the sleeping pills that were unopened."
"Move to strike," Molto says again.
"Sustained," Yee says somewhat darkly. He gave my dad a chance not to screw around and he didn't take it.
"So far as we can tell from the fingerprints, you are the only person who handled the phenelzine."
Already chastened by the judge, my dad answers more carefully.
"Considering only the fingerprints, that is true, Mr. Molto."
"Very well," says Tommy. He seems to realize only after he has spoken that he sounded as though he were imitating Stern. One of the jurors, a middle-aged black guy, picks up on that and smiles. He seems to love what Tommy is doing. Molto is back at the prosecution table, paging through his yellow legal pad, a sign that he is again changing subjects.
"Good time for a break?" the judge asks.
Molto nods. The judge knocks his gavel and calls a five-minute time-out. The spectators rise and buzz at once. My dad has been a big deal in Kindle County for decades now, especially in the kind of crowd that wants to come and watch a trial. Call it what you like, bloodlust or lurid curiosity, but many of them are here to see the mighty fall, to reconfirm that power corrupts and that overall, you're better off without it. I'm not sure there is anybody but me left out here in these seats who is still hoping my dad is innocent.