The Burden of Proof (42 page)

"I didn't think so," she said. They were both quiet. ''I'm going to tell you everything," Clara Mittler said presently.

He waited a moment in the dark before he said, "All right."

"MEL? Sandy Stern," he said into the telephone.

"San-dy!" cried Mel in return, the usual trumpet blast: hail fellow well met. Face for, ward, TooIcy had a single expression, a beaming countenance of unlimited goodwill. Turn your back, however, and the knives came out, the mischief started. An insidious fellow. TooIcy claimed to be Irish--it was in this city, like many others, a political advantage, particularly at the bar--but he had the swarthy look of a more Southerly heritage. Mel wore a wig--profuse, dark, and curly as the coat of a poodlea trait which Stern, in spite of his efforts at tolerance, found shabby and insincere. The man was always sweating and, in consequence, bathed in cologne. And he was overweight--not that Stern was the kind to criticize this fault; but Mel, cut to the dimensions of certain cattle, still favored double-breasted suits and flashy pocket hankies, and refused to accept biology as fate. He squeezed himself into tapered shirts and sat with his dark hairy gut bulging between the buttons, his oily smile suggesting an unambiguous belief that he was suave.

Stern had dealt with Mel for years when Tooley was a prosecutor, a prickly relation marked by many bitter struggles. Mel, in a word, was underhanded, an exception in an office in which most of the lawyers were overly aggressive but generally respectful of rules and rights.

Stern's most serious ran-in with Mel had occurred five years ago, when Stern represented a contractor whom Tooley desperately wanted to testify against two gentlemen whose names ended in vowels. The contractor had been granted immunity, but he persisted in a version of events which even Stern, privately, regarded as improbable. When he and his client showed up for his grand jury appearance, the contractor, a hard-boiled, tight-lipped kind, suddenly paled; the sweat on his scalp looked like rain. He was a Knights of Columbus man, the father of nine, and Tooley had the contractor's former mistress seated primly on the sofa outside the grand jury room. For the sake of his client, Stern, always reluctant to publicly criticize any attorney, had to file a disciplinary complaint with the District Court Executive Committee. The judges had clucked their tongues and chastised Mel, but in the end the contractor testified, and just as Mel liked. Tooley had the last laugh. Face to face, he claimed to bear no grudges and was quick to praise Stern's ability. But in a world where ego mattered so, one knew better than to believe that. Stern wondered again how it was John had wandered into Tooley's hands.

Tooley, now, said he had been about to call, a remark which Stern took as being within striking distance of the truth.

Tooley naturally was interested in making arrangements for MD to pay his fee. He wanted a $15,000 retainer--on the high side for a fellow of Tooley's age, but what Stern might have expected. They chatted as best they could about the case. Stern said nothing to Tooley about the house error account; he had to assume that every word would go back to the prosecutors, to be used however Too-ley saw fit, for John's advantage or simply as some way to curry favor for the future. Stern described the customer orders that the government was tracing, said the prosecutors seemed to think that Dixon had made some sort of improper profit;

"I take it that they believe the orders were placed witl John," said Stern.

"Were they?" inquired Tooley, as if he did not have a client to ask. "I mean, I don't have any documents to look at. I wouldn't mind seeing whatever you've turned over."" Stern made a note and said that he would send them, "Well, of course," said Stern, "he may have received' these orders but might be unable to recall them, given the crash of daily business. I have no idea whether or not that is a possibility, but a reasonable person might understand that." Tooley was very quick--he would not miss the hint-but he did not answer, which Stern regarded as unpromising.

Stern went on: "What exactly is it that Klonsky tells you she wants with him?"

"Actually," said Tooley, "I haven't dealt with Sonny I've talked just a little bit to Stan." Sennett again. Stern: shook his head. "He's got his hand on the throttle on this one. Did you know that?" asked Tooley.

He would have' been delighted to one-up Stern with the news.

"I have gotten that drift. I imagine he has his own agendad "He always does," said Tooley, joining in brotherly fashion in the familiar complaints defense lawyers had with the present United States Attorney. From Tooley, this was mostly show. He had worked for Sennett for more than a year before entering private practice, and in that time Stan had promoted Tooley to chief of the office's Special In-. vestigations Division. Stan had made Mel a big macher.

There was a reason Tooley had chosen him as his point of contact. "So, how you like dealing with Funny Sonny?" Mel asked, obviously skirting.

"She's a piece of work, isn't she?"

"Ms. Klonsky?" asked Stern. "I hadn't heard that name,"

"That's what I call her," said Mel. "Everybody calls her something.

She's my fault, you know. I hired her, right before I left the office.

I mean, Stan did. But I interviewed her. I thought she had some balls.

You know?"

"Yes," said Stern simply. He understood the point. "But I don't think she's a real star there yet. What's the word?

Ambivalent. They can't get her to decide anything. She's always wringing her hands. You know. Tries a good case, though. Nice-looking woman has got a hell of an advantage in front of a jury, don't you think?"

Stern uttered a sound. Perhaps. Mel went on. Clearly, he had little interest in speaking about John.

"Y'know, I should blame you for hiring her. I say she's my fault, but she's really yours."

"Mine?" asked Stern. "Klonsky?"

"I just remembered this. I asked her why she wanted to be a trial lawyer and she told me this story about when she was in her first year of law school, how she saw every day of the Sabich trial. She loved watching you work. I forgot how she described you. 'Sleight of hand,'

I think. I thought it was a cute way to put it."

Indeed, thought Stern. Tooley must have held his sides.

"So you see, you're her idol, Sandy. I bet she gets hot flashes whenever you call."

"There is hardly any sign of that."

"Who knows with her? Very emotional person. She been telling you yet about her goofy husband?"

"Not really," said Stern. He felt, more acutely now, some alliance with Klonsky. Mel was improving his opinion of her the longer he went on.

"She will," said Mel. "She tells everybody. You know about this guy?

He's a mailman I'm not kidding. He writes poetry and delivers mail. The guy thinks he's Omar Khayyam or something. Apparently he's nuttier than she is. Every second day while I was there she was in the head bawling her eyes out, saying she was going to divorce this guy. And now she's p.g. because her biological clock is going dingdong. Oh, well," said Mel, finally tired of the subject.

"Be kind to her, Sandy.""

"More the reverse," said Stern, trying in the mildest way to say something in Klonsky's behalf, "I'm sure Sennett's watching her like a hawk."

"So it seems," said Stern. "Might I ask what he ells you?"

"Not clear," said Mel. "Not clear. I believe they're looking for immunity. I'm not certain for what."

Stern hung there, feeling for all the-world like a small insect humming its wings in a formidable breeze. There was little more that he could ask. Given pride, and fear of what might go back to the government, he was reluctant to discuss the blank spots in his knowledge of the investigation. And there were few other avenues of inquiry, What John had told Mel, if anything, was out of bounds in this kind of situation.

Many defense lawyers blurted out their client's confidences like bits of witless news posted on some local bulletin board, but Stern had never shared that inclination.. In a situation of potential adversity, he neither asked for nor shared his client's private words, his rigidity on this: point of ethics accepted as one more part of Sandy Stern and his formal foreign manner, like the hedgerow and iron fence about certain older homes.

"I'm just getting into this thing," Tooley said. "Maybe I can give you a call next week when I get my bearings."

"Yes, of course," said Stern. He would never hear from Tooley, not until a day or two before the indictment was returned, when Mel would describe vaguely the factors that required John to ax Dixon. Stern had faced similar dilemmas himself when he represented witnesses. But he tried to give his colleagues what little help he could along the way.

Stern prepared to conclude the call, going over the list of things that Tooley wanted from him. Mel, slyly, had put the shoe on the other foot and was the one receiving all the information.

"He's a nice kid," Tooley said in conclusion. "Maybe not a rocket scientist, but he should come out okay."

"One hopes," said Stern, nettled nonetheless by the feel ing that Tooley had gone out of his way to provide this dim. assessment of his son-in-law.

"It's crazy how he came to me. You gave him a couple names, I take it."

"A few," said Stern. Neither he nor Tooley harbored' illusions about whether Mel would have been included.

"He called those guys, but nobody was in. Apparently you put the fear of God in him. Felt he just had to get a lawyer lickity-split. So he called everybody he knew and ended up getting my name from your son."

"From Peter?"

"My brother Alan and Peter were like this in high school.

Remember Alan? I have to give Pete a call and thank him."

Alan was a handsome, wholesome, genial kid. It seemed impossible that the same home could have produced something as viperous as Mel TooIcy.

Stern held his head while he absorbed the latest news. Peter again! It was as inevitable as the seasons, however, that he would have mixed in if asked. Ignorant or not, his son considered any family problem part of his domain. Meanwhile, Stern imagined Mel across town, in his flashy office, smirking. He had Stern's client paying his fee while John considered laying Dixon low, and Stern's own son was the source of his employment Quite a tickle Chalk up one more for the government, thought Stern, as he put down the phone. There were lawyers friendly to the target or his counsel, or naturally disinclined to help the prosecution, who would go over the situation with John two or three times and remind him of how large the gaps were in his memory, how unrewarding testimony for the government might be. But that clearly was not Mel's plan. He would offer John up freely to the prosecutors, encour-. aging him to be forthcoming with the vaguest hunch or suspicion. And John--if Stern could correctly read Tooley's silence and the signs in his own conversations with his son-in-law-apparently had much to tell.

Idly, he contemplated how it must have gone between John and Dixon. It was not likely that Dixon had announced what he was up to; he was too secretive for that. He issued commands, which John was afraid to countermand. But a certain furtiveness must have accompanied this scheme. Just between me and you. Don't tell. As Clara always said, John was not dumb. Sooner or later, he must have known that these trades were being handled differently from others. So they went on in the usual murky world of collaboration and deceit, each with some unspoken ground of disrespect for the other: You are weak. You are dishonest. His son-in-law was the classic stuff of the government witness, an unquestioning lower-down with the convictions of a noodle.

As soon as TooIcy explained the facts of life to him--that his commodities registration and his right to do business on the financial markets in the future hung in the balance--he would reduce his level of actual suspicions to none at all.

By the time he got to the witness stand, he would be one more wanton soul testifying that he had merely followed orders, without a minute for reflection. With his look of childish innocence, and his relative inexperience, John would carry this act off better than most.

Thinking of all this and the way the situation was gradually spinning out of control, Stern felt queasy. For just an instant, he fell beneath a quirky vision of his entire family down at the federal courthouse, testifying, pointing fingers, hopelessly involved. In that scene, he somehow was the victim, not the man accused but the one left out in the cold. Everybody knew more than he did. He shook the notion off, but looked down to the phone, full again of that sense of coming injury which could not be prevented.

MARGY seemed to have done something with her hair. Near her shoulder it sprayed up in a froth of curls, and its blondish tint seemed brighter when she came into the light.

She looked bigger than Stern recalled--a hale, large person full of life. He refused at once to allow recollection or imagination to take him any further.

"Fine," she answered when he inquired atain furtiveness must have accompanied this scheme. Just between me and you. Don't tell. As Clara always said, John was not dumb. Sooner or later, he must have known that these trades were being handled differently from others. So they went on in the usual murky world of collaboration and deceit, each with some unspoken ground of disrespect for the other: You are weak. You are dishonest. His son-in-law was the classic stuff of the government witness, an unquestioning lower-down with the convictions of a noodle.