The Burden of Proof (58 page)

Accordingly, they asked the court to continue the subpoena briefly to allow Stern to consult with his client when he returned to town. Marta wrote each sentence on a yellow pad, reciting it aloud, and she and Stern edited, trading words. Stern, who by long habit did all such work alone, was delighted by the ease of this collaboration. When the motion was complete, Marta signed it as Stern's lawyer.

"What happens if she orders you to testify tomorrow?"

Marta asked. She was referring to Judge Winchell.

"I have to refuse, no?"

"And the government will move to hold you in contempt. She won't put you in jail, will she?"

"Not tomorrow," said Stern. "I would expect the judge to give me time to reconsider, or at least grant a stay, so we could go to the court of appeals. Eventually, of course, if I persist after being ordered to produce--" His hand drifted off. This happened, on occasion, lawyers jailed for resisting court orders detrimental to their clients. Among the defense .bar, such imprisonments--usually brief--were regarded as a badge of honor, but Stern had no interest in martyting himself, particularly in Dixon's behalf. "I am in your hands," Stern told his daughter.

"No problem," Marta said, and hugged him. "But be sure you bring your toothbrush."

On Thursday morning at ten o'clock, at the precise moment he had been scheduled to appear before the grand jury, Stern and Marta entered the reception area of the chambers of Moira Winchell, chief judge of the federal district court. The allocation of space reflected the proportions Of another century; while the judge's chambers were grand and cavernous, the outer rooms constructed for secretaries, clerks, and criers were stinting, the desks and office equipment wedged together a little like a packed trunk. The narrow waiting area was bounded by a hinged balustrade of broad spindles. When they arrived, Sonny Klonsky sat on the sole available seat, flushed and pretty in spite of her grim demeanor. Stern's heart spurted at the sight of her, then settled when she fixed him with a baleful look. He reintroduced Marta.

"We're waiting for Stan," said Klonsky, and with that, the United States Attorney pushed through the door, narrow and flawlessly kempt, humorless as a hatchet blade. Even to Stern, who regarded himself as fastidious about his personal appearance--treating himself to custom-made suits and shirts and even, once a year, a pair of shoes from a bootmaker in New York--Stan was impressive. He was the sort of fellow who did not cross his legs for fear of.wrinkling his trousers. He greeted Stern properly, shaking his hand, and managed a smile when he was introduced to Marta.

With that, they were ushered into the chambers. of the chief judge.

Because of the secrecy of grand jury matters, the hearing--much to Stern's good fortune--would be conducted here in private. Although the judge's court reporter arrived through a Side door, carrying his stenotype machine, the transcript would be held under seal, unavailable to reporters, the public, even other lawyers.

In the privacy of her chambers, Moira Winchell was personable. She wore a dark dress--no robe--and came out from behind her enormous mahogany desk, larger than certain small automobiles, to venture a cordial word to each of them. She had met Marta more than a decade ago--Stern had no recollection of this--and greeted her warmly. "Are you practicing with your father now? How wonderful for him."

The arrangement, Marta indicated, was temporary. As the greetings went on, Sonny ended up at Stern's shoulder. She was almost exactly his height--he had made no note of that before--and he turned, without a thought of resistance, to stare at her, her strong face and handsome features. Like any good trial lawyer,s, her attention was entirely on the judge; she took no notice of Stern at first, and when she finally felt his gaze, she provided him with a quick distracted grin and turned away, following the judge's suggestion that they all be seated at the conference table.

The furnishings here were in the ponderous Federal mode, massive pieces of handsome dark woods, ornamented only with deep, many-planed with no European gewgaws. Huge arched windows rose on two sides of the chambers, but the light remained somehow indirect, as if, in the dark style of the late nineteenth century, the architects had turned the building obliquely to the path of the sun. The judge as usual spoke her mind without inviting comment.

"Now look, Stan, I've read this motion. How can you refuse Sandy time to talk to his client?"

Marta, without expression, caught her father's eye. Sonny, rather than Sennett, answered for the government: The United States Attorney was present merely for emphasis, to let the judge know that the government viewed this as a signal matter. There was a history here, Klonsky said.

The government had been seeking the documents it believed were in the safe for many weeks.

"Are you telling the court," asked Marta, "that the grand jury has heard evidence about the contents of the safe?"

This was an adroit question, turning the tables on the government in the hope that they might reveal something about their informant in order to support their position.

But Klon-sky veered at once from that course, saying that she was not commenting at all on what the government or grand jury knew.

"Then on what basis do you even issue the subpoena?" The two young women went on contending. Stern, who had accepted his daughter's caution to say nothing, sat back with peculiar detachment. With no speaking part, he did not feel fully himself. Sennett, at the far end of the table, kept his hands crossed primly as he listened; he was customarily a person of few words. The court reporter was taking down nothing, awaiting the judge's instruction to go on the record. Stern after a moment realized he had lost track of the argument. Without looking back, he could not tell which of the young women was speaking; each had the same heated tone and confident timbre. The thought, for reasons he could not fathom, made him dizzy and sick at heart.

"Look. Look," said the judge at last, "let's cut through this. With documents missing, the government clearly has a broad right to inquire.

So I'm not going to entertain any motion to quash, if that's what you have in mind next, Marta. But I must say that the privilege questions here are not simple ones--they seldom are when an attorney is subpoenaedMand I cannot conceive of how Sandy could be forced to answer without being given the opportunity to consult with the client. So that will be my ruling."

She pointed to the court reporter, who began to type now.

The parties identified themsolves for the record, and the judge permitted Marta and Klonsky to briefly gtate their positions. Then she allowed the motion.

"Off the record again," the judge said to the court reporter. "What date do we fix?" She asked Sonny, "When does the grand jury meet'gain?"

"Next Tuesday, Your Honor," she answered, "but that's a special session called to hear just one witness." She meant John. The government wanted Stern nowhere near when his son-in-law went before the grand jury to implicate Dixon.

Apparently, they contemplated lengthy testimony.

After consulting the grand jury's schedule, Judge Win-cheil set the subpoena over two weeks. Klonsky looked down the table to Sennett, who shrugged: nothing to do. Clearly, they had wanted to move more quickly.

The indictment, as Tooley had guessed, was not far away.

"On the record," said the judge to the court eporter. "Mr. Stern, you shall appear before the grand jury on J-uly 20.

If there are privileges to be asserted, we'll take them up on a question-by-question basis. I'll make a note of the date and I will be available if you need me. So ordered," concluded the judge. The court reporter folded the tripod on his machine.

"One more thing," said the judge, "for all of you." She waved away the court reporter, who had paused, thinking they were going on the record again. "I don't like to see lawyers in the grand jury. It's a dangerous practice for both sides. I encourage you to resolve this among yourselves. Sandy, you're ably represented. Very ably. The same is true of the government. With all these good lawyers, I find it hard to believe you can't arrive at a proper solution among yourselves. I expect reason to prevail." She flexed her brow and looked about the table at each of them. Hell to pay, in other words, for anyone who was unyielding.

In the hailway, the company parted. Sennerr, outside the judge's presence, abandoned the semblance of a pleasant demeanor and walked off with a stiff look and no comment.

Klonsky tarried only long' enough to tell Marta that she would wait to hear from her. Once more, she said nothing to Stern. As the elevator descended, Stern felt the weight of his troubles. Marta, on the other hand, was exuberant.

"What a gas!" she cried on the way from the courthouse. The judge was right; she had done very well. Stern complimented her at length. "Can I come back if we don't work this out?"

Her plans were to return to New York tonight.

"You are my lawyer," answered Stern. "I cannot proceed without you."

But he intended to allow no repetition of this scene, exciting as it may have been. He had phoned Dixon's office before they left for the courthouse, and Elise, his secretary, had promised that Stern would be his first call.

It was time to play Dixon the music, the short, sad song.

This party was over. Stern kissed Marta in the courthouse square and sent her toward home, where she and Kate were to go through the last of Clara's things. He returned to the office, his mind, with customary dolefulness, on his brother-in-law.

BY five o'clock'he Stern had still not heard from Dixon. He had talked to Elise twice in the interval, and on the last occasion, near 3 P.. she had said that Dixon had a critical problem in New York on the Consumer Price Index future and was flying out again tonight.

"Tell him if he leaves town without making time to see me I shall resign as his lawyer."

Elise, accustomed to trivial banter from Stern, paused, waiting for the punch line, then took the message without comment. Stern called Dixon's home next, but reached only Silvia. They spoke for almost half an hour about the islands, Helen, Marta's arrival. Eventually, Stern asled if Silvia knew where her husband might be. He was due home shortly to pack, she said, and Stern made her promise that Dixon would call.

Late in the day, Stern sat by the telephone, reviewing the FBI reports on Remo Cavarelli's case, which Moses Appleton had provided at last. As Stern expected, the agents' memoranda reflected little hard evidence against Remo. His three cohorts were, as they said, dead bang--caught in the truck with their hands on the beef sides--and each had pled guilty weeks ago. But they were all tough professionals, old school, and would keep their mouths shut. The only proof against Remo was his dim-witted arrival--the agents stated that he literally had walked up to the truck and looked in at the arrest taking place--and the remark by one of the thieves that "our guy made arrangements." The government would claim this referred to Remo, who supposedly was going to dispose of the loot, a rnle which would account for his late appearance on the scene. So far as Stern could tell, the government had no real basis for their suspicions. Assuming that the prosecutors found no proper excuse to bring out Remo's long criminal record in front of the jury, he stood a reasonable chanc of acquittal. The case should be tried. Stern, who had not been to trial in almost four months, since the weeks before Clara's death, welcomed the prospect. The only problem was convincing Remo. The phone rang.

"Stern here,"

"Daddy." It was Marta. She and Kate had finished for the day. They were leaving shortly for the airport and wondered if Stern wanted to meet them for dinner before her flight.

They hoped to reivial banter from Stern, paused, waiting for the punch line, then took the message without comment. Stern called Dixon's home next, but reached only Silvia. They spoke for almost half an hour about the islands, Helen, Marta's arrival. Eventually, Stern asled if Silvia knew where her husband might be. He was due home shortly to pack, she said, and Stern made her promise that Dixon would call.

Late in the day, Stern sat by the telephone, reviewing the FBI reports on Remo Cavarelli's case, which Moses Appleton had provided at last. As Stern expected, the agents' memoranda reflected little hard evidence against Remo. His three cohorts were, as they said, dead bang--caught in the truck with their hands on the beef sides--and each had pled guilty weeks ago. But they were all tough professionals, old school, and would keep their mouths shut. The only proof against Remo was his dim-witted arrival--the agents stated that he literally had walked up to the truck and looked in at the arrest taking place--and the remark by one of the thieves that "our guy made arrangements." The government would claim this referred to Remo, who supposedly was going to dispose of the loot, a rnle which would account for his late appearance on the scene. So far as Stern could tell, the government had no real basis for their suspicions. Assuming that the prosecutors found no proper excuse to bring out Remo's long criminal record in front of the jury, he stood a reasonable chanc of acquittal. The case should be tried. Stern, who had not been to trial in almost four months, since the weeks before Clara's death, welcomed the prospect. The only problem was convincing Remo. The phone rang.

"Stern here,"

"Daddy." It was Marta. She and Kate had finished for the day. They were leaving shortly for the airport and wondered if Stern wanted to meet them for dinner before her flight.