Nat, June 22, 2009
We return as we have done each night to the fancy-schmancy offices of Stern amp; Stern. Sandy is one of those up-from-nothing guys who likes to be surrounded by the evidence of his success, and Marta, whose casualness seems like a deliberate contrast to her father, jokes behind his back that it all reminds her of an upscale steakhouse-lots of dark wood and low light through the stained-glass lamps, pleated leather furniture and crystal decanters on the conference room tables. There is also a tony quiet here compared with the atmosphere in most other law offices I've visited, as if Sandy is above routine disturbances. Here the phones blink rather than ring, and the computer keyboards are muted.
But a different silence has prevailed since we packed up to leave court. Stern is rigorous about discussing nothing within earshot of anyone who might be an unsuspected ally of Molto's or a relative of a juror's, and as result I have learned that when we are in the courthouse, elevator talk is confined to current events, preferably uncontroversial ones, like sports. But tonight we rode down without a word being spoken, not even the usual harmless drivel. Although it's only a few blocks back to the LeSueur Building, Sandy must drive these days, and he asked me to join him and my dad in his Cadillac, because he wants to discuss my testimony for the defense, which is expected to start late in the day tomorrow. Sometimes on the way out of the courthouse, Sandy will make a remark to the immense press horde that awaits the lawyers on both sides each evening, but we struggled through tonight with Sandy limping along, muttering, 'No comment.'
Even in the privacy of the car, we said next to nothing. Everybody plainly wants some time to recharge and to assess how much damage Molto did. My dad looked out the window the whole time, and I could not keep from thinking of some dude on a prison bus, passing by the streets he will no longer stroll.
Upstairs, the usual apres-court procedure is reversed. My dad goes off with Marta, while Stern takes me into his large office and closes the door. He orders up a soft drink for each of us from one of his assistants and we sit side by side in a couple of tall maroon leather chairs. Sandy's office has the precious feel of a museum, the walls full of pastel sketches of Stern in court, with many of the exhibits from his most famous trials in little plastic boxes on the tables. I am afraid even to put down my glass until he points out a cork-bottomed coaster.
As it turns out, my meeting with Stern is largely diplomatic. My initial interviews on the case, where I learned about the evidence, were with Sandy, who did his best at the time to point out the bright side, namely that Tommy had made no mention of the death penalty and had also agreed to allow my father to have bail. But usually when I'm in the office, I'm doing what I can to help Marta. As a result, Marta and he have decided it would be better if she presented my testimony. Stern wants to be sure that I have no objections.
"I love Marta," I tell him.
"Yes, you seem simpatico. I'm sure you'll make a good impression on the jurors together." He sips a moment. "So, what was the assessment from the spectators' seats? What did you make of today's proceedings?" Among Stern's many strengths, which I have observed in the last month, is utter fearlessness about feedback. I'm sure he also wants to take a seismic reading on the emotional state in which I'll testify.
"I thought Molto did a very good job."
"As did I." The unproductive cough comes then, as it often does, as punctuation.
"Tommy has become a better lawyer with age, with the flame turned down on his jets. But that was as good as I have seen him."
I've wondered why Marta and he decided to put my father on first, and I ask. "Anna says defendants almost always testify last."
"True. But it seemed better here to alter the normal course."
"To screw up Tommy?" That was Anna's guess.
"Admittedly, I was hoping to catch Tommy unaware, but that was not the principal goal." Stern looks off in space for a second, trying to measure how much he can say, given the fact that I will be on the stand again tomorrow. In the light of the table lamp beside us, the rash on the right side of his face seems to have receded just a tad today. "Frankly, Nat, I wanted to make sure we had time to recover if your father's testimony ended up in catastrophe."
There is a lot in that one sentence.
"Does that mean you didn't want him up there?"
In the intervals when Stern used to get time to think with his cigar, he now draws a finger across his lips.
"Generally speaking, a defendant is better off if he testifies. About seventy percent of acquittals, Nat, come in cases in which the defendant takes the stand in his own defense. The jury wants to hear what he has to say about all of this, and that's especially true in a case like this one, where the defendant is a law-trained individual, familiar with the courts and accustomed to speaking in public."
"I hear a 'but' in there."
Sandy smiles. I have the sense both the Sterns really like me. I know they feel for me, which is true of a lot of people these days. Mom dead. Dad on trial. There has been no end to folks telling me I'll remember this period the rest of my life, which offers not the remotest clue how to get through it.
"In a circumstantial case like this one, Nat, where the evidence is so diffuse, you take the risk of allowing the prosecutor to make his closing argument in cross-examination. It's hard for a jury to see how all the pieces fit together, and you'd rather not allow the PAs to demonstrate that twice. It was a very close question, but all in all, I thought your father was better off not testifying. It was certainly not as risky. But your father chose otherwise."
"So are you disappointed now?"
"Hardly. No, no. Tommy was better organized than I might have hoped, and for the most part he didn't allow himself to become distracted, even when your father goaded him a bit. The chemistry between the two of them is a bit mystical, don't you think? They have been antagonists for decades, but they seem to hold attitudes toward one another that are too complex to be called raw hatred. But all in all, everything that occurred today was within the zone of expectations. Your father was an A minus and Tommy was an A plus, but that's tolerable. If I had known in advance it would have turned out with that kind of marginal loss, I would have been in favor of your father's testimony. The jury heard him say he is innocent. And he looked composed at all times."
"So what were you worried about?"
A phone call comes in then, and Stern struggles to his feet. He speaks only a minute but takes the opportunity once he is done to hang his coat behind the door along the way. It is a jarring sight to see him so slender, half the man I remember. He is using suspenders to support his trousers, and the pants gap on him so much that he looks almost like a circus clown. His knee is virtually paralyzed by the arthritis, and he collapses backward when he resumes the chair. But despite his discomforts, he still has my question in mind.
"There is no end of things that can go wrong when a defendant testifies. One of the possibilities that most concerned me was that Molto would make the very motion to Judge Yee he did at the start of cross-examination." Sandy is referring to Molto's attempt to question my dad in front of the jury about his affair. "I was fairly confident Judge Yee would not change his mind now, but the issue was hardly free from doubt. Many judges would have yielded to the prosecutors' arguments that these events were part of the whole story."
I actually grunt considering the prospect. Stern has told me that it's paramount for the jury to see I'm supporting my dad, but it would have been horrible for me to sit through that. When I say that to Stern, he frowns a bit.
"I don't think your father would have allowed that to occur, Nat. I never pressed the point, but I believe he was determined not to answer any questions about that young woman, whoever she is, even if Judge Yee held him in contempt before the jury or struck his testimony. Either of those events, needless to mention, would have been disastrous."
I struggle with this news, as Stern watches.
"You are unsettled," he says.
"I'm pissed that he'd fuck up his chances to go free to protect that girl. He doesn't owe her that."
"Just so," he responds. "Which is why I suspect it was you more than this young woman he was seeking to spare."
This is the advocate as artist. A trial is sometimes like a great play, where the air of the entire theater fills up with the currents of emotion and each line resounds in the present tense from a hundred different angles. And Stern is like one of those amazing actors who seem to be holding the hand of everybody in the place. His unspoken sympathies are magical, but I'm not really buying it now.
"I still don't understand what he was doing up there if he was ready to throw it all away. Did he think he didn't stand a chance without testifying?"
"Your father never shared his reasoning with me. He heard my advice and made his decision. But it did not seem tactical."
"What was it, then?"
Stern assumes one of his complicated expressions, as if to suggest that language cannot fully capture what he feels.
"Lonely, if I had to choose one word."
Naturally, I'm puzzled.
"I have known your father well for thirty years, and I would call our relationship intimate. But only in a professional sense. He says very little about himself. Always."
"Welcome to the club."
"I mean only to acknowledge that I am relying on my own estimates, rather than anything he has told me. But we have interesting evenings, your father and I. I would say his chances of survival are better than mine." Stern's smile is rueful, and his hand creeps along a few inches for the missing cigar. One of the thoughts my dad and I have shared is that there really is no need to ask about Sandy's prospects of recovery. We'll know there's no hope the first time he lights up. "But I feel myself far more involved in this world than he is."
I nod. "He sometimes seems like he thinks he's out of body and just watching all of this happen to somebody else."
"Just so," answers Stern. "And very much the point. He had very little concern whether his testimony would help or hurt his case. He wanted to tell what actually happened. The piece of it he knew."
My reaction to Stern surprises even me. "He'll never tell anybody everything."
Stern smiles again, wistful, wise. One thing is clear: Sandy Stern is enjoying this conversation. He has obviously spent nearly as many nights as I have up late and preoccupied by my father's many riddles.
"But he wanted to tell you, Nat, as much as he could."
"Me?"
"Oh, I have no doubt he testified almost exclusively so he could enhance your confidence in him."
"I don't lack confidence." This is, at some level, a lie. The logic of my father's case is actually against him, even with me. But it is so contrary to my being to think of my father as a murderer that I can never cross that river of belief. If I had not already spent so many frigging years talking to shrinks, I'd probably be talking to one now, but nobody can really help you answer the kinds of questions I'm dealing with. Even if my father were guilty, it wouldn't mean he gave me an instant's less love and attention. But most of the other lessons in life I've taken from him would come to nothing. It would mean I'd been raised by someone in disguise, that I had loved a costume, not him.
"He thinks you do."
I shrug. "There's some bad stuff."
"Of course," answers Stern. We are quiet together.
"Do you think he's guilty, Mr. Stern?" He has told me repeatedly to call him Sandy, but after a year at the supreme court, where every lawyer was Mr. or Ms. and the bosses all had the same first name-Justice-I can't bring myself to do it. Instead, I watch Stern labor with my question. I know it's neither fair nor proper to put this to a lawyer trying to captain a defense. I expect Sandy to sidestep. But we have gotten far outside the legal chalk lines by now. Sandy is a father talking to a good friend's child.
"In this line of endeavor, one learns never to assume too much. But I was thoroughly convinced that your father was innocent in the first case. The recent DNA results were a terrible shock to me, I admit that, but just so, there are still several compelling hypotheses of his innocence then."
"Such as?"
"Frankly, Nat, the specimen was subject to enormous question in your father's first trial, and there are no better answers today."
Anna has said the same thing to me, that the whole thing was totally sketchy.
"But even if the specimen was genuine," says Stern, "it would prove merely that your father was the lover of the woman who was killed. You will forgive me for being forthright about that, but the evidence at trial was quite clear that your father was not the only man who fell in that category at the time of the murder. A very credible surmise is that someone else saw your father with her that night and killed her in a jealous rage after he left."
Anna had admitted to a fascination like a Trekkie's with my dad's first case, which she's been interested in since she was a kid. She recently went back and read Stern's copy of the transcript, mostly because I couldn't stand to do it myself. After that, she offered exactly the same theory as Stern. The notion has seemed utterly plausible all along, but it's even more persuasive coming from Sandy.
"So now, Nat, while I should be in doubt, my heart remains on your father's side. Certainly, I have never been impressed with the evidence in this case. The State, so far as I am concerned, cannot even prove beyond a reasonable doubt that your mother died of poisoning. If Judge Yee was unpolluted by the DNA results, I think there is a fair chance he would have granted our motion for acquittal at the end of the prosecution case. Nor do many of the other details add up to what Molto and Brand think."
"Tommy did a good job of weaving it all together."
"But that weaving metaphor is employed frequently in circumstantial cases, and it can fit for both sides. Pull one thread and the whole cloth falls apart. And we shall be tugging at it quite a bit."
"Can I ask how?"
He smiles again, a man who's always enjoyed his secrets.
"More," he says, "after you have testified."
"Will you be able to answer that stuff about his computer? It was pretty damaging."
"It's well you've raised that." He lifts a finger. "Marta will discuss this further with you, but we have been hoping you might help a bit on that score."
"Me?"
"We were thinking about asking you a little about computers. Are you knowledgeable?"
"I'm okay. I'm not like Anna or a lot of other people I know."
"And your father? Is he sophisticated?"
"If you call turning the computer on sophisticated. He's somewhere between a useless dweeb and a total ignoramus."
Stern laughs out loud. "So you don't imagine that he downloaded shredding software and removed e-mail messages?"
I giggle at the notion. Admittedly, I want to believe my dad is innocent. But I know with the kind of preternatural faith I have in things like gravity, he could not have done something like that on his own.
"We have been thinking that we should do some demonstrations with your father's computer, just to show the jurors how unlikely the prosecution's theory is. You might be the right witness for various reasons."
"Whatever," I answer.
Stern looks at his watch, a golden Cartier that seems to reflect all of Stern's elegant precision. Marta is waiting.
At the door, I say, "Thanks for talking, Mr. Stern."
"Sandy," he answers.