"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 & 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 & 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 s
everal 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."