Nat, June 25, 2009
Just as Marta had foreseen, the prosecutors arrive in court this morning with a new theory about why my dad is guilty. Jim Brand stands up and tells Judge Yee that the prosecutors have decided overnight the Christmas card is a fraud.
"Your Honor!" protests Sandy from his chair. He paws like a cartoon character in his labored efforts to rise. Marta finally helps haul him to his feet. "The prosecution's own expert acknowledged yesterday that this so-called object was genuine."
"That was before we examined the image," Brand answers. He calls on pompous little Professor Gorvetich to explain his new conclusions. Before Gorvetich has stopped speaking, Marta gropes in her purse for her cell phone and is charging out of the courtroom to call Hans and Franz.
Judge Yee is clearly losing patience. The pencil started going about halfway through Gorvetich's lecture.
"People," he says finally, "what we doing here? Young Mr. Sabich supposed to be on witness stand. Jurors are by their phones. We trying this lawsuit or what?"
"Your Honor," says Stern, "I had hoped the prosecutors would terminate this proceeding today. I can hardly believe this. May I ask if they actually intend to offer evidence to support their new theory about the card?"
"You bet your life," answers Brand. "This was a fraud on the Court."
Stern shakes his head sadly. "The defense obviously cannot proceed, Your Honor, until we have conducted our own examination."
We all head back to Stern's to await word from Hans and Franz, who have their own copy of the imaged hard drive in storage at their office. I call Anna in the interval to tell her what has transpired. She has believed all along that when push came to shove, Tommy Molto would cheat to win, and she's certain he's trying to do it again.
"The leopard doesn't change his spots," Anna says now. Last night, she made the same prediction as Marta that Molto would figure out some excuse to avoid dismissing.
Hans and Franz are in the office in an hour, dressed pretty much as they were yesterday, in their designer jeans and gelled hair. It seems the boys are in the clubs every night until closing, and they look like Marta got them out of bed.
"Even a broken clock is right twice a day," says Hans, the taller of the two. "Gorvetich is correct."
"The card isn't on the image?" Marta asks. She had taken off her heels, perching her squat feet in her hose on one of her father's coffee tables, and nearly falls over. I groan out loud. I am sick of not knowing what to believe. The last to react is my father, who emits a shrill laugh.
"It's Barbara," he says. He puts his fingers on the bridge of his nose and pivots his head back and forth in utter amazement. It seems like a bizarre idea, but even so, I feel instantly he may be right. "She figured out a way to do this so it wouldn't show up on the image."
"Could that be?" Marta asks the two experts. "Could she have used something like invisible ink and created this object so it wouldn't copy?"
Hans shakes his head but looks at Franz for confirmation. He also shakes his head emphatically.
"No way," says Ryzard. "This software, the Evidence Tool Kit, that's like the bomb, man. Industry standard. Makes exact copy. Been used thousands of times in thousands of cases, with no variation reported."
"You didn't know Barbara," my father says.
"Judge," says Franz, "I got an ex-wife. Sometimes I think she got superpowers, too, especially when I get some extra money. She's like in court for more alimony before the check clears."
"You didn't know Barbara," my father says again.
"Judge, listen to me," says Franz. "She would have to have known exactly what software was going to be used-"
"You just said it's the industry standard."
"Sixty percent of the market. But not one hundred. Then she would have had to penetrate the algorithms. And create a whole program to run counter to the software, which would launch on start-up. And which wouldn't show anywhere on the image. Or on the drive when we looked at it yesterday. I mean, dude, you can take every geek in the Silicon Valley and put them together, they couldn't do that. You're talkin every kind of impossible."
My father studies Franz with that stupefied, still-eyed look I see on my dad so often these days.
"So when could the card have been added?" Marta asks.
Franz looks to Hans, who shrugs.
"Had to be when it was over in the other judge's office."
"Judge Mason? Why? Why not after that?"
"Dude, the whole computer was sealed and shrink-wrapped and initialed until yesterday. You saw it. Gorvetich even made us look at the seals before they took them off in court so I would agree they were the originals. And Matteus and Gorvetich and I peeled off the last of the evidence tape and connected the monitor and CPU in the courtroom together."
"Couldn't they have taken off the wrappings and the seals and put them back on?"
Hans and Franz are trying to explain why that is not possible-the evidence tape says "Violated" in blue once it's peeled away-when Sandy interrupts.
"Prosecutors don't generally tamper with evidence in order to add proof that supports a defendant's innocence. If the card is a fraud, we will not get very far with the judge or the jury by arguing that this is the prosecutors' handiwork. Either we pursue Rusty's theory about Barbara, or we find another way to explain why the imaged hard drive did not capture what was actually there."
"Didn't happen," Hans answers definitively.
"Then we had better see if we can counter what the PAs are bound to say."
In the last couple of days, Stern has begun using a cane. With it, he gets around a good deal more nimbly than in the courtroom. Now he poles his way behind his desk and dials the telephone.
"Who are you calling, Dad?" Marta asks.
"George," Sandy answers.
Judge Mason, still the acting chief, is not available but calls back in twenty minutes. When he comes on, Stern and he have an exchange, obviously about Sandy's health, because Stern keeps answering, "All according to plan," and, "Better than expected." Finally, Stern asks if he can put the judge on the speakerphone so the rest of the trial team can hear. I probably should not be here, but I have no thought of leaving. I was one of the people, along with Anna and my dad, who used that computer while it was in Judge Mason's chambers.
"I've already had a conversation this morning with Tommy Molto," says the judge. "As you remember, Sandy, when we received the computer, we all agreed that no one would have access to it alone, and that I would keep a log of every document that was examined. Tom asked me for a copy of the log, and I e-mailed it to him. I'd be happy to do the same for you."
"Please," answers Stern.
Judge Mason and he agree that it makes more sense to talk after we've seen the log. While we are waiting for the document to cross the Net, Stern and Marta question Hans and Franz about what would have been required to pull this off. The two have already been engaged in rapid speculation, notions whizzing and pinging like bullets in a shooting gallery, and have pretty much agreed with Gorvetich that this was done with a piece of shareware called Office Spy, which would then have to be shredded.
"And how long would it take to do all that?" Sandy asks. "Install the software, add the object, delete the software, and clean up the registry?"
"An hour?" answers Hans, looking to Franz.
"Maybe me, I could do it in forty-five minutes, if I'd practiced some," says Franz. "Let's imagine I've already got Spy and the object on a flash drive, so I can save a little download time. And I've done the same operation with another PC, so I know exactly where to look to clean up the deletion of Evidence Eraser. But you know, somebody who doesn't have an extensive background? Has to be twice as long. At least."
"At least," says Hans. "More like several hours."
When the log shows up, it records four separate visits. My father went to the private chambers where George had my dad's PC set up on November 12, a week after the election. It was a dismal experience that caused my dad to vow no more. George witnessed this himself. My dad was there for twenty-eight minutes. He copied four documents to a flash drive, three draft opinions and one research memo from one of his clerks, and opened up his calendar and wrote down his remaining appointments for the balance of the year.
I came a week later to copy three more draft opinions and returned the next day for one more about which I'd misunderstood my dad's instructions. Riley, one of Judge Mason's law clerks, was with me on both occasions. And I was there for twenty-two minutes the first time and six minutes the day after.
Finally, right before Thanksgiving, Anna went over, standing in for me at the last minute. My dad was desperate to get a look at an earlier draft of an opinion he was working on at home that was already late. He was also starting, in optimistic moments, to book appointments in 2009 and wanted to review his calendar. I had gotten called to sub that morning and didn't want to say no, but the assignment was going to last at least two weeks. Anna had volunteered earlier to do the copying for my father, since she was normally in Center City, and Judge Mason had approved her enthusiastically. The log says she was there for about an hour, but that was because she had gotten a call from the office and was on her cell most of the time.
"Was Riley with her throughout that visit?" Sandy asks Judge Mason.
Judge Mason summons Riley Moran. She has known Anna for two years, since Riley's clerkship began before Anna's ended. Riley remembers things pretty much the same way I heard them from Anna at the time. Peter Berglan, one of the most demanding assholes Anna has to work for, had reached out for her on her cell and basically told her she had to participate in a conference call. Riley says that Anna got up from the computer and went to a chair across the room. Riley stepped out, because it was clearly a client matter she shouldn't overhear, but she peeked back in at least three times in the next forty minutes to see if Anna was done. Anna was in the chair and nowhere near the computer on each occasion. Eventually, Anna came next door to tell Riley she was ready, and Riley watched when Anna returned to the computer to finish downloading and making notes about my dad's upcoming appointments. The log reflects that the calendar was open to the same date it had been when Anna got up.
"Is that it?" George asks when Riley is gone.
Sandy thanks Judge Mason, then we all sit in the office in silence.
"What will Molto say?" asks Sandy out loud. "It does not seem possible anyone could have tampered with the computer."
"An hour," says Marta. She's talking about Anna.
"An hour is not enough time," Sandy says. "Rusty, even Rusty's son, might have anticipated a defense and done this, but Anna is clearly the least likely. If worse comes to worse, we can get her cell phone records and talk to Peter Berglan."
I have come to the same conclusions. My dad lacked the technical expertise even to try this. So do I, frankly, and obviously I know I wasn't responsible. Anna, as Stern says, would have had no reason to risk her entire career. None of us really makes a credible culprit.
Stern tilts his hand toward my father. "Rusty, did you have keys to the courthouse?"
"To my chambers," answers my dad. "That's all."
"Do you still have them?"
"No one has asked for them back."
"Did you ever visit after hours?"
"Before or after I went on leave?"
"After."
"Never."
"And before?"
"Once or twice, when I'd forgotten something I needed over a long weekend. It was a pain, frankly. There was one security guard. You'd have to stand there pounding on the doors until you got the guy's attention. It took me twenty minutes to get in one time."
"And whose chambers was the computer in?"
"George's."
"As acting chief, had he moved into your chambers?"
"He still hasn't, so far as I know."
"And what about the security guard. Would the security guard have keys to all the chambers?"
My father thinks. "Well, he carried one hell of a key ring. You could hear him coming. And there were times when people locked themselves out of their chambers and security was called to let them back in. But whether night security had the keys-I just don't know."
"That's their theory," says Marta. "Right? Inside job. Maybe Rusty came in there with a computer whiz in the middle of the night."
"Talk to the security guard," my father suggests.
"You can bet Tommy is keeping company with him right now," Marta says. "And you know how this will go, Rusty. Either they'll accuse the security guard of being your best friend, or find he has a felony he didn't disclose when he applied for his job and they'll threaten him with prosecution until he remembers letting you in. Or they'll find a day the regular guard was off and Jim Brand will badger the substitute into saying, Well, she can't remember which judge, but there was a night one of those judges came in. They'll patch together something."
"Res ipsa loquitur," says Sandy. The thing speaks for itself. "No one but Rusty really had the motive to do this. No one else in November could have known what the evidence would show or what defense might work. We didn't even have complete discovery yet."
"It's weak," says Marta. "And we'll end up with a trial within a trial. All these witnesses? Judge Mason and Riley. And the security guard. And Nat and Anna. Rusty again. The PAs'll be lucky if the jury even remembers what the case is about by the time all that's over."
Sandy is pondering. His hand goes up to his face unconsciously to pat around the edges of the rash. From the looks, it must still hurt.
"All true," he says. "But overall, we should not fool ourselves. This is still not a fortunate development for the defense."
With that judgment spoken, we each end up looking at my father to see how he has reacted to the discussion. Slumped in a club chair, worn and pale and sleepless, he has lost track of all of us and is startled by the attention when he finally glances up. He smiles faintly at me, a bit sheepish, then looks back down to his hands folded in his lap.
At four p.m., we are summoned by Judge Yee, who wants an update so he can set a schedule. Several reporters have heard about this session, and Yee agrees to meet in open court. A number of the deputy PAs have also followed their bosses across the street to savor what all of them are sure is going to be a sweet moment. I sit in the front pew, only a few feet behind my dad. He is saying next to nothing to anybody, folded in upon himself like a piece of empty luggage.
Yee asks simply, "What is going on?" and Stern comes up to the podium. He has brought his cane to court for the first time.
"Your Honor, our experts have reviewed the image made late last November, and they agree that the object does not appear there. They will need at least twenty-four hours to determine why."
Brand again stands to answer for the prosecution. "'Why'?" he asks with his voice rising sarcastically. "With all due respect to Mr. Stern, Judge, there's an obvious answer. This was a fraud. Pure and simple. This object was clearly added to Judge Sabich's computer after it was seized last November and before it was returned to the prosecution's custody after Your Honor's appointment. There is no other explanation."
"Judge Yee," answers Stern, "that is hardly as clear as Mr. Brand wishes it were. Neither Judge Sabich nor any of his agents had access to that machine for longer than fifty-eight minutes. We have been advised by experts that the kind of alterations they are talking about could never have been accomplished in that time frame, probably not even by professionals, which none of those persons were."
"I don't know about that, Judge. We would need to test that," says Brand. The hedged way he responds makes me think that Gorvetich gave him a longer time estimate than we received from Hans and Franz. They will need another theory, but they have one, just as Stern supposed. "And besides, Your Honor," says Brand, "did Judge Sabich ever surrender his keys to the courthouse?"
"Judge Sabich had no keys to the chambers of Judge Mason, where the computer was housed," says Sandy.
"Are we saying that Judge Sabich never in his life entered the courthouse after hours? Are we saying he doesn't know the security staff members who had the keys to all the chambers?"
Judge Yee watches the back-and-forth with his hand across his mouth, but the pencil starts wagging in his hand. It's like a dog's tail in reverse, a measure of when he is displeased.
"Your Honor," says Stern, "the prosecution is very quick to accuse Judge Sabich. But without any compelling evidence."
"Who else benefited from this fraud?" Brand answers.
"Judge, I confess that what keeps going through my mind is that twenty years ago Mr. Molto admitted and was sanctioned by the prosecuting attorney's office for deliberately mishandling evidence."
This produces another of those courthouse moments when I am entirely lost. Sandy said nothing about this in his office, and the effect on Brand is volcanic. He has a temper anyway, and he stands at the podium screaming, with his face crimson and the veins throbbing at his temple. At the prosecution table, Tommy Molto also has come to his feet.
"Judge," he shouts, but he can barely be heard over Brand.
"Outrage" and "outrageous" are the words Brand keeps yelling. He turns his back to the judge for a second to say a wrathful word to Stern, then resumes his screaming.
Judge Yee has finally had enough.
"Wait, wait, wait," he says. "Wait. Enough. All lawyers. Sit, please. Sit." He allows a second for the baying hounds to retreat. "Nothing in this trial about twenty years ago. Twenty years ago is twenty years ago. That one thing. And second, this trial, this trial about who murdered Mrs. Sabich, not about whether someone fooled with judge's computer. Let me tell you, ladies and gentlemen, what I think. I think none of this ought to be in evidence. Keys and spy programs and how many hours to do this and that? The jury will be told to disregard the message they saw. And we finish trying this lawsuit. Young Mr. Sabich, he goes back on the stand tomorrow morning. That what I am thinking is the best."
Brand stands up at the prosecution table. "Judge," he says. "Judge. May we be heard? Please." Yee allows Brand to reapproach the podium, which he does only after a talking-to from Molto, who has grabbed his sleeve on the way. I am sure he told Brand to settle down. Brand is far more measured.
"Judge, I understand that the Court wishes we didn't have to get sidetracked this way, but if the Court would consider this, Your Honor. Think how unfair your suggestion is to the prosecution. The jury has already seen that message. The defense will be able to argue that Mrs. Sabich killed herself. They will be able to argue that she went into her husband's computer. And they will even be able to insinuate she may have intended to frame him. They will say all of that, and when they do, the jurors have to think about that message, while the evidence that goes to show that whole theory is a fraud doesn't come in? Judge, you can't deny us that opportunity."
Yee has his hand over his mouth again. Even I can understand Brand's point.
"Judge, this can be proved quickly," says Brand. "A few witnesses at most."
Stern, always quick to seize an advantage, answers from his chair.
"A few witnesses from the prosecution, perhaps, Your Honor. But the defense will have no choice about refuting this allegation fully. We are basically going to have a trial on unindicted charges of obstruction of justice."
"What about that?" asks Judge Yee of Brand. "Indict Judge Sabich for obstruction of justice. Have that trial later." Judge Yee is clearly ready to go home and would like to hand this problem to someone else.
"Judge," says Brand, "you are asking us to finish this trial with both hands tied behind our backs."
"Okay," says the judge. "I going to think overnight. Tomorrow morning, young Mr. Sabich testifies. After that, we argue about what other evidence. But tomorrow, we try this lawsuit. No decision yet who can prove what. But we gonna have testimony. Everybody understand?"
The lawyers all nod. The judge bangs his gavel. Court is over for the day.