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 con
fess 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.
CHAPTER 39
Tommy, June 25, 2009
Tommy's problem, if you wanted to call it that, always was being too sensitive. The older he got, the more he knew that pretty much everybody had their tender spots. And over time, he had gotten better at absorbing the customary hard knocks--nasty editorials, or sniping defense lawyers, or neighborhood groups blaming him for every bad cop. But still. He had his stuff. And once a spear got through the armor, it went in pretty deep.
When Stern stood before Judge Yee and reminded the world that Tommy had admitted to mishandling evidence in Rusty's first trial, his heart went flat. Tommy's admission was never a secret. People who knew stuff knew that, too. But everybody understood it was just something Tommy had to say to get his job back, and it had never hit the press back then. And because reporters, generally speaking, only reprinted what they'd printed before, there had been no mention that Tommy had acknowledged any wrongdoing in the frequent stories that had run recently about Rusty's first trial. Tommy had worked his whole career to protect the public and what was right, and he didn't care to be known as someone who had once sailed too close to the wind. The first word in his head when he began to calm down was 'Dominga.' He had never explained all this to his wife.
As soon as Yee banged his gavel, the reporters gathered around Tommy, five or six of them.
"This is ancient history," Tommy said, "which Judge Yee just ruled has nothing to do with this case. I'll have no further comment until this matter is concluded." He had to repeat that six or seven times, and when the pack finally turned away to file their stories, he asked the paralegal and Rory to get the evidence cart back across the street. Then he motioned Brand over to the corner of the empty jury box, where they could sit and talk. He didn't want to go downstairs now, because the cameras would be there and the reporters would pull their standard stunt, sticking a microphone in Tommy's face so they could get some footage of him refusing to deny he broke the rules the first time Rusty was tried. Sandy Stern, packing up to leave, looked over for a second, then gimped their way with his cane. Tommy shook his head at him when Stern was still twenty feet away.
"Don't," he said.
"Tom, I was caught in the moment."
"Fuck you, Sandy. You knew what you were doing, and so do I." In his thirty-some years as a PA, Tommy had spoken those words to another lawyer only a handful of times. Stern had his hands raised, but Tommy kept shaking his head.
When Stern at last turned away, Brand yelled after him, "You're just a drug court scumbag in a better suit."
Tommy grabbed Brand's sleeve.
"There are whale turds in the bottom of the ocean that aren't that low," Brand whispered to Molto.
But you could never take one thing away from Stern--he always came up with something to rescue his client. He didn't want the jury reading about the fact that the Christmas card was a fraud on the front page of tomorrow's Tribune. So he fed them a better headline: MOLTO ADMITTED MISCONDUCT. For all Tommy knew, the way it would play in the jurors' heads, half of them would figure out some theory about why the Christmas card was the PA's fault.
"We should leak the DNA," Brand murmured.
Tommy actually considered that for an instant, then shook his head no. They would end up with a mistrial. Basil Yee was ready to head home. Any reason to quit the case and he'd take it, pack and go. And Tommy wasn't about to lie under oath or let anybody else do it, either, in the investigation of the leak that would result. It was a fit revenge on Stern and Sabich. But the news would be out in a couple of weeks anyway, and letting it go now would only screw all this up worse.
"If Yee actually keeps all the fraud evidence out, we have to appeal," said Brand.
A midtrial appeal was rare but permissible for the prosecution in a criminal trial, because the PAs could not appeal after an acquittal. Brand was right--they would have to do that, because they stood little chance with the jury otherwise. And maybe once they raised that prospect, Yee would relent. Avoiding the court of appeals was the best way to assure he would maintain his treasured record on reversals. And the judge would detest the idea of keeping the jury--and himself--on ice for the two to three weeks the appellate proceedings would require.
"How did this get so screwed up in just a couple of days?" Tommy asked.
"We get that evidence in, we'll be fine. Rory's got a couple of dicks talking to the night staff at the courthouse now. Somebody saw something, heard something, about Rusty sneaking in. When we come up with a hard witness, we can turn Yee around."
Maybe Jim was right. But shame was settling on Tom
my hard. He could never cut himself a break. He hadn't tampered with anything, just leaked some information. But it was wrong. He'd done wrong. And Sandy Stern wanted to remind everybody of that.
"I need to pee," he told Brand.
In the men's room, Rusty Sabich was already at one of the urinals. There was no privacy panel between the ice white fixtures, and Tommy fixed his eyes on the tiles in front of him. He could hear the trouble Rusty had, the slow stream and the piddling beginning. In that department, Tommy was still a youngster. The advantage somehow emboldened him.
"That was low, Rusty." He repeated Brand's line about whales.
Rusty made no answer. Molto felt Sabich's shoulders shift as he hitched himself back into his trousers before his zipper scraped on ascent. The water ran in the sink a second later. When Tommy turned, Rusty was still there, drying his hands on a brown paper towel, his slackening face set inscrutably and his fair eyes unmoving.
"It was low, Tommy. And it was unlike Sandy, frankly. But the guy is sick. I'm sorry. I had no idea he was going down that road. If he had spoken to me first, I would have said no. I swear."
The apology, the acknowledgment that Stern was out of line, actually made Tommy feel worse. What bothered him the most was what he was going to see in the faces of his deputies and the judges. He would need to issue a statement as soon as the trial was over, probably make the file public. And say, I broke the rules, it was a small infraction, but I paid the price, and I've never forgotten the lesson. Sabich watched him wrestle through all of that. Trials are like this, Tommy thought. You open arteries on both sides. Physicians said it was better to be the doctor than the patient, and it was better to be the prosecutor than the defendant. But that didn't mean nobody else got hurt. He should have learned his lesson the first time he tangled with this guy. Going after Rusty meant trying to crawl through barbed wire.