The Burden of Proof (68 page)

"I believe, Sonny, that I shall not be able to comply."

"Look," she said. "I understand."

"I don't think you do. Stan has very strong feelings."

"Of course."

"Oh, man," she said. She pondered. "I don't Yke where this is going, Sandy. I really don't. Is your client aware that we can prove he controlled that account? You know, Wunderkind?"

"I cannot tell you what I discussed with my client, Sonny, but I have not breached your trust. I hope you would not assume otherwise."

"I know that. I meant--" she said. "Listen, I have to think this through-- If I can see my way clear to let you tell him, do you think that would make a difference?"

"You are very kind, Sonny. But it would make no dif ference at all."

She hesitated, deliberating. From her silence, he was sure she was lost.

"Sandy, this is nuts. If you think that someone in this building is going to be afraid to put Sandy Stern in jail."

"I harbor no such illusions. I assure you."

"And there's nothing else anybody can do?"

He waited with the thought, unwilling to prevail upon her again. He had done that in Dulin, and in the end there had been considerable emotional cost to them both.. "What?" she asked. "No matter."

"What?"

He sighed. "The informant." ....

She made so'me sound with her tongue. "What about it?"

"I take it you still do not know the identity."

"I couldn't tell you if I did."

"Of course not."

"So?"

"I believe the United States Attorney has taken particular delight in duping me. I su'pect you will find that your source is someone with whom the government knows I have a relationship, one that naturally tends to place that person above my suspicion." He weighed saying "a client," or even giving her Margy's name, but the more specific he was, the more difficult this would become. As she said, she could never confirm an identity. "If my suspicions are misplaced, I would very much like to know that."

"And that's important to you? In connection with this? The subpoena?"

"Critical," he said.

"I'm not making any promises," she said. "If I' find out, I find out. I don't know what I'd do."

They waited on the line. It amazed him again--she was such a strong, fine person.

"How is your life?" he asked. He dared not be more precise. Your marriage. your husband. "Better," she said.

"Good," he told her.

"Yeah," said Sonny, and waited. "But the law sucks," she told him before she put down the phone.

"S TATE your name, please, and spell your last name for the record,"

"My name is Alejandro M. Stern. The first name is A, 1, e, j, a, n, d, r, o. The last name is S, t, e, r, n.""

"M?" asked Klonsky. She would perhaps never wholly resolve her curiosity about him.

"Mordecai.""

"Ah." She absorbed that stoically and'went back to her notes.

Sonny ran through the usual preamble, one Stern had read in dozens of transcripts. She told him that he was before the Special March 1989

Grand Jury--March being-when they had been impaneled--and provided a one-line description of investigation 89-86, which, she said? concerned "alleged violations of Title 18, United States Code, Section, 1962." She also mentioned that Stern was not a target and that his lawyer was outside, available to consult with him.

"And her name is Marta Stern, same spelling2' "Yes," said Stern. He spoke to the court reporter seated before him, Shirley Floss, who formerly had worked in Judge Horka's courtroom: "M, a, r, t, a." Shirley smiled as she typed.

Proper spellings were the moon and stars of a court reporter's life.

Stern sat in the witness chair, inside the grand jury at last--thirty years of curiosity finally satisfied. Beside him, behind the facade of the raised walnut bench, were the grand jury foreperson and the secretary, two middle-aged .women selected from among the grand jurors f6r this largely ministerial function. A small desk, shared by the court reporter and Klonsky, was immediately before him, and arrayed beyond in the small, tiered room sat the remaining grand jurors: the Leagu him again--she was such a strong, fine person.

"How is your life?" he asked. He dared not be more precise. Your marriage. your husband. "Better," she said.

"Good," he told her.

"Yeah," said Sonny, and waited. "But the law sucks," she told him before she put down the phone.

"S TATE your name, please, and spell your last name for the record,"

"My name is Alejandro M. Stern. The first name is A, 1, e, j, a, n, d, r, o. The last name is S, t, e, r, n.""

"M?" asked Klonsky. She would perhaps never wholly resolve her curiosity about him.

"Mordecai.""

"Ah." She absorbed that stoically and'went back to her notes.

Sonny ran through the usual preamble, one Stern had read in dozens of transcripts. She told him that he was before the Special March 1989

Grand Jury--March being-when they had been impaneled--and provided a one-line description of investigation 89-86, which, she said? concerned "alleged violations of Title 18, United States Code, Section, 1962." She also mentioned that Stern was not a target and that his lawyer was outside, available to consult with him.

"And her name is Marta Stern, same spelling2' "Yes," said Stern. He spoke to the court reporter seated before him, Shirley Floss, who formerly had worked in Judge Horka's courtroom: "M, a, r, t, a." Shirley smiled as she typed.

Proper spellings were the moon and stars of a court reporter's life.

Stern sat in the witness chair, inside the grand jury at last--thirty years of curiosity finally satisfied. Beside him, behind the facade of the raised walnut bench, were the grand jury foreperson and the secretary, two middle-aged .women selected from among the grand jurors f6r this largely ministerial function. A small desk, shared by the court reporter and Klonsky, was immediately before him, and arrayed beyond in the small, tiered room sat the remaining grand jurors: the League of Nations, all races, all ages.

Two older men slept; a young thuggish man, with heavy sideburns and long, greasy hair, read the. paper. Some listened abjectly. A slender, attractive, middle-aged woman sat with a pad, taking notes for her own benefit. There was no window, no natural light.

"Where do you reside, Mr. Stern?"

He gave his home address, and in response to the next question answered that he was an attorney. Sonny moved to the table.

"Mr. Stern, I show you what the court reporter has marked as G. J. 89-86

Exhibit 192. Do you recognize it?"

It was the subpoena she'd served on him. One hundred ninety-two exhibits, Stern thought. John had been a busy fellow. No question, the investigation was nearly complete, indictment was near. Klonsky established Stern's receipt of the subpoena and had him read the text aloud.

"Now, Mr. Stern, do you have in your possession, custody, or control the safe referred to?"

"I decline to answer."

"On what grounds?"

"The attorney-client privilege."

Klonsky, who expected this, turned to the grand jury foreperson, a gray-haired woman with glasses.

"Ms. Foreperson, please direct the witness to answer."

Abashed by the thought of a speaking Part in the drama that occurred routinely before her, the foreperson barely glanced at Stern and said simply, "Answer."

"I decline," said Stern.

"On what grounds?" asked Klonsky.

"As stated."

Sonny, who up until now had been proficient and formidable, appeared to have second thoughts. Her pregnancy had progressed to the point that it had wholly erased her usual solid grace. She waited before him, with her own thoughts and a rankled look. "Mr. Stern, I advise you that I shall have to ask the chief judge to hold you in contempt."

"I intend contempt for no one," said Stern, Klonsky asked the grand jurors to recess so that Stern and she could proceed to Chief Judge Winchell's chambers. The grand jurors were more or less familiar with this trip, since they strolled down the block en masse and appeared before Judge Winchell each week to return indictments.

Stern, now and then, had seen them coming, a covey of happy executioners. It was a function to them, $30 a day, part of the customs of the law as arcane as the habits of the Chinese. For the defendant, it was often the end of a respectable life.

Sonny threw open the jury room door, and Marta, dressed in a dark suit and nylons--nylons!--peered inside.. "What's up?" she asked her father.

"We are on our way to see the chief judge."

On her face, Stern saw his own reflective Latin expression, accepting the inevitable.

The group--Sonny, Sandy, Marta, and Shirley, the court reporter, who was also required--waited silently in the corridor for the tardy elevators of the new federal building, "I called Stan," said Sonny. "He'll meet us there." The U. S. Attorney was going to smite his staff and call for justicel It was evident that to a degree Stern had never fully appreciated Sennett hated his guts. Shame, spite, humiliation; the bitter yearning for self-respect. Human beings, thought Stern, were such pitifully predictable creatures.

The small Party walked down the teeming avenue in the summery heat.

Shirley had packed her machine and notes in a small case, and toted it along on one of the little wheeled carrying racks that airline stewardesses use for their luggage. She talked to Stern about her children. The youngest, in college at the U., hoped for a career in radio and TV. Sonny and Marta, in spite of themselves, got along admirably. They had finished law school at virtually the same time and had mutual acquaintances. A.fellow named Jake, a law school friend of Marta's, had clerked with Sonny in the Court of appeals.

Sennett, in his flawless blue suit and perfect shirt, waited for them in the judge's anteroom. As they walked through the door, the U. S.

Attorney was, literally, studying his nails. He shook Marta's hand, and Stern's.

Feeling somewhat surly, Stern did not return his greeting.

. After a minute, Moira Winchell's door opened and the chief 3udge swept a hand to usher them in. She was in a straight skirt, and her hair, more and more visibly shot through with gray, was held back by a headband today, so that she looked a bit schoolgirlish.

"Well, I can't say I'm happy to see any of you." She called out the side door for her own court reporter.

The group was seated again at the judge's conference table, solid as a fortress. The light of the day fell through the heavy windows, long parallelograms of brilliance that gave the rest of the room a kind of prison gloom by contrast.

Pure metaphor, thought Stern of the association.

"On the record," Judge Winchell said to her court reporter.

"Mr. Sennett, I take it you have a motionT"

Stan raised a hand to Sonny, who drew out of a manila folder a short written motion which had been prepared in advance. It asked that Stern be ordered to reappear before the grand jury and to respond to the questions he had refused to answer. Reappearance was required because the grand jury had no power of its own to compel him to respond. It was only for violating the judge's order to answer that Stern could be found in contempt--and jailed.

Moira put the motion aside.

"All right, let's hear what happened. This is the court reporter?"

Shirley was sworn, and read from the narrow stenotype pad in a singsong voice, stumbling at moments as she interpreted the symbols. The judge's court rep6rter, Bob, sat beside Shirley, taking it all down on a machine of his owm "Answer by Mr. Stern," she read at the conclusion," '! intend contempt for no one,'"

Stern saw Sennett, at the foot of the table, frown. Stan was not buying anY.

"All right, Ms. Stern," said the judge, careful with her record, "What do you say to the motion?"

"We object, Your Honor." Marta said that whether Stern had received or retained the safe were both questions that implicated communications with his client. She asked for a week to present a brief in support of that position, and Sennett, speaking for the government today, objected in his usual tone of suppressed vehemence. Briefs were unnecessary on this issue, he said, and would unfairly delay the grand jury's final action. Marta fought back bravely, but the judge eventually sided with the government. She would never tolerate briefing each question Stern was asked.

"If you have cases, I'll read them right now," the judge said.

Marta did. From her briefcase, she removed photocopies of various judicial opinions speaking. to the breadth of the attorney-client priviIege, and passed copies to the judge and the prosecutors. The company, including the two court reporters, sat silently while the judge and the lawyers read.

Stan clearly remained intent on indicting quickly.

Yesterday morning, Stern had received a letter from the Department of Justice granting him an appointment with the Organized Crime and Racketeering Section at 9 A. M. next Tuesday in Washington, D. C. If it went as usual, the meeting would be brief, polite, and entirely perfunctory. By two weeks from today at most, prosecution would be approved and Dixon Hartnell would be a former powerhouse, become instead the carcass for a three- or four-day media feeding.