Rusty, March 19, 2007, Eighteen Months Earlier
From the elevated walnut bench a dozen feet above the lawyers’ podium, I bang the gavel and call the last case of the morning for oral argument.
“People versus John Harnason,” I say, “fifteen minutes each side.”
The stately appellate courtroom, with its oxblood pillars rising two stories to a ceiling decorated with rococo gildings, is largely empty of spectators, save for Molly Singh, the Tribune’s courthouse reporter, and several young deputy PAs, drawn by a difficult case and the fact that their boss, the acting prosecuting attorney, Tommy Molto, will be making a rare appearance up here to argue in behalf of the State. A ravaged-looking warhorse, Molto sits with two of his deputies at one of the lustrous walnut tables in front of the bench. On the other side, the defendant, John Harnason, convicted of the fatal poisoning of his roommate and lover, waits to hear his fate debated, while his lawyer, Mel Tooley, advances toward the podium. Along the far wall, several law clerks are seated, including Anna Vostic, my senior clerk, who will leave the job on Friday. At my nodding direction, Anna will ignite the tiny lights atop counsel’s podium, green, yellow, and red, to indicate the same things they do in traffic.
“May it please the Court,” says Mel, the time-ingrained salutation of lawyers to appellate judges. At least seventy pounds overweight these days, Mel still insists on wearing bold pin-striped suits as snug as sausage casings--enough to instill vertigo--and the same lousy rug, which looks as though he skinned a poodle. He begins with an oily grin, as if he and I, and the two judges who ank me on the three-judge panel that will decide the appeal, Marvina Hamlin and George Mason, are all the best of friends. I have never cared for Mel, a bigger snake than usual in the nest of serpents that is the criminal defense bar.
“First,” says Mel, “I can’t start without brie y wishing Chief Judge Sabich a happy birthday on this personal milestone.”
I am sixty years old today, an occasion I have approached with gloom. Mel undoubtedly gleaned this tidibit from the gossip column on page two of today’s Trib, a daily drumbeat of innuendo and leaks. It concludes routinely with birthday greetings to a variety of celebrities and local notables, which this morning included me: “Rusty Sabich, Chief Judge of the State Court of Appeals for the Third Appellate District and candidate for the state Supreme Court, 60.” Seeing it in boldface was like taking a bullet.
“I hoped no one had noticed, Mr. Tooley,” I say. Everyone in the courtroom laughs. As I discovered long ago, being a judge somehow makes your every joke, even the lamest, side splitting. I beckon Tooley to proceed.
The work of the appellate court in its simplest terms is to make sure that the person appealing got a fair trial. Our docket re ects justice in the American style, divided evenly between the rich, who are usually contesting expensive civil cases, and the poor, who make up most of the criminal appellants and face signi cant prison terms. Because the state supreme court reviews very few matters, nine times out of ten the court of appeals holds the final word on a case.
The issue today is well-defined: Did the State offer enough evidence to justify the jury’s murder verdict against Harnason? Appellate courts rarely reverse on this ground; the rule is that the jury’s decision stands unless it is literally irrational. But this was a very close case. Ricardo Millan, Harnason’s roommate and business partner in a travel-packaging enterprise, died at the age of thirty-nine of a mysterious progressive illness that the coroner took for an undiagnosed intestinal infection or parasite. There things might have ended were it not for the doggedness of Ricardo’s mother, who made several trips here from Puerto Rico. She used all her savings to hire a private detective and a toxicologist at the U who persuaded the police to exhume Ricardo’s body. Hair specimens showed lethal levels of arsenic.
Poisoning is murder for the underhanded. No knife, no gun. No Nietzschean moment when you confront the victim and feel the elemental thrill of exerting your will. It involves fraud far more than violence. And it’s hard not to believe that what sunk Harnason before the jury is simply that he looks the part. He appears vaguely familiar, but that must be from seeing his picture in the paper, because I would recall somebody so self-consciously odd. He is wearing a garish coppercolored suit. On the hand with which he is furiously scribbling notes, his nails are so long that they have begun to curl under like some Chinese emperor’s, and an abundance of unmanageable orangey knots covers his scalp. In fact, there is too much reddish hair all over his head. His overgrown eyebrows make him resemble a beaver, and a gingery mustache droops over his mouth. I have always been baffled by folks like this. Is he demanding attention or does he simply think the rest of us are boring?
Aside from his looks, the actual evidence that Harnason murdered Ricardoo is spotty. Neighbors reported a recent episode in which a drunken Harnason brandished a kitchen knife on the street, screaming at Ricardo about his visits with a younger man. The State also emphasized that Harnason went to court to prevent exhuming Ricardo’s body, where he maintained that Ricky’s mother was a kook who’d stick Harnason with the bill for another burial. Probably the only piece of substantial proof is that the detectives found microscopic traces of arsenic oxide ant poison in the shed behind the house that Harnason inherited from his mother. The product had not been manufactured for at least a decade, leading the defense to maintain that the infinitesimal granules were merely a degraded leftover from the mother’s time, whereas the real perpetrator could have purchased a more reliably lethal form of arsenic oxide from several vendors on the Internet. Despite the familiarity of arsenic as a classic poison, such deaths are a rarity these days, and thus arsenic is not covered in routine toxicological screenings performed in connection with autopsies, which is why the coroner initially missed the cause of death.
All in all, the evidence is so evenly balanced that as chief judge, I decided to order Harnason freed on bail pending his appeal. That does not happen often after a defendant is convicted, but it seemed unfair for Harnason to start doing time in this razor-thin case before we passed on the matter.
My order accounts, in turn, for the appearance today by Tommy Molto, the acting PA. Molto is a skillful appellate advocate, but as head of his office, he rarely has the time to argue appeals these days. He is handling this case because the prosecutors clearly read the bail ruling as an indication Harnason’s murder conviction might be reversed. Molto’s presence is meant to emphasize how strongly his of ce stands by its evidence. I give Tommy his wish, as it were, and question him closely once he takes his turn at the podium.
“Mr. Molto,” I say, “correct me, but as I read the record, there is no proof at all how Mr. Harnason would know that arsenic would not be detected by a routine toxicological screening, and thus that he could pass off Mr. Millan’s death as one by natural causes. That isn’t public information, is it, about what’s covered on an autopsy tox screen?”
“It’s not a state secret, Your Honor, but no, it’s not publicized, no.”
“And secret or not, there was no proof that Harnason would know, was there?”
“That is correct, Chief Judge,” says Molto.
One of Tommy’s strengths up here is that he is unfailingly polite and direct, but he cannot keep a familiar shadow of brooding discontent from darkening his face in response to my interrogation. The two of us have a complicated history. Molto was the junior prosecutor in the event twenty-one years ago that still divides my life as neatly as a stripe down the center of a road, when I was tried and then exonerated of the murder of another deputy prosecuting attorney.
“And in fact, Mr. Molto, there wasn’t even clear evidence how Mr. Harnason could have poisoned Mr. Millan, was there? Didn’t several of their friends testify that Mr. Millan cooked all the meals?”
“Yes, but Mr. Harnason usually poured the drinks.”
“But the defense chemist said arsenic oxide is too bitter to be concealed even in something like a martini or a glass of wine, didn’t he? The prosecution didn’t really refute that testimony, did you?”
“There was no rebuttal on that point, that is true, Your Honor. But these men shared most of their meals. That certainly gave Harnason plenty of opportunity to commit the crime the jury convicted him of.”
Around the courthouse these days, people speak regularly of how different Tommy seems, married for the rst time late in life and ensconced by luck in a job he plainly longed for. Tommy’s recent good fortune has done little to rescue him from his lifetime standing among the physically unblessed. His face looks timeworn, verging on elderly. The little bit of hair left on his head has gone entirely white, and there are pouches of flesh beneath his eyes like used teabags. Yet there is no denying a subtle improvement. Tommy has lost weight and bought suits that no longer look as if he’d slept in them, and he often sports an expression of peace and, even, cheerfulness. But not now. Not with me. When it comes to me, despite the years, Tommy still regards me as an enduring enemy, and judging by his look as he heads back to his seat, he takes my doubts today as further proof.
As soon as the argument is over, the other two judges and I adjourn without our clerks to a conference room adjoining the courtroom, where we will discuss the morning’s cases and decide their outcome, including which of the three of us will write each opinion for the court. This is an elegant chamber that looks like the dining room in a men’s club, right down to the crystal chandelier. A vast Chippendale table holds enough high-backed leather chairs to seat all eighteen judges of the court on the rare occasion that we sit togetheren banc, as it is known to decide a case.
“Affirm,” says Marvina Hamlin, as if there is no point for discussion, once we get to Harnason. Marvina is your average tough black lady with plenty of reason to be that way. She was ghetto raised, had a son at sixteen, and still worked her way through school, starting as a legal secretary and ending up as a lawyer--and a good one, too. She tried two cases in front of me when I was a trial judge years ago. On the other hand, after sitting with Marvina for a decade, I know she will not change her mind. She has not heard another human being say anything worth considering since her mother told her at a very early age that she had to watch out for herself. “Who else could have done it?” demands Marvina.
“Does your assistant bring you coffee, Marvina?” I ask.
“I fetch for myself, thank you,” she answers.
“You know what I mean. What proof was there that it wasn’t someone at work?”
“The prosecutors don’t have to chase rabbits down every hole,” she answers. “And neither do we.”
She’s right about that, but forti ed by this exchange, I tell my colleagues I’m going to vote to reverse. Thus we each turn to George Mason, who will functionally decide the case. A mannerly Virginian, George still retains soft traces of his native accent and is blessed with the white coif central casting would order for a judge. George is my best friend on the court and will succeed me as chief judge if, as widely anticipated, I win both the primary and the general election next year and move up to the state supreme court.
“I think it’s just inside the boundary,” he says.
“George!” I protest. George Mason and I have been at each other’s throats as lawyers since he showed up thirty years ago as the newly minted state defender assigned to the courtroom where I was the lead prosecutor. Early experience is formative in the law like everything else, and George sides with defendants more often than I do. But not today.
“I admit it would have been an NG if it was tried as a bench in front of me,” he says, “but we’re on appeal and I don’t get to substitute my judgment for the jury’s.”
This little tweak is aimed at me. I would never say it aloud, but I sense that Molto’s appearance, and the importance the PA places on the case, has moved the needle just enough with both of my colleagues. Yet the point is I’ve lost. That too is part of the job, accepting the law’s ambiguities. I ask Marvina to draft the opinion for the court. Still a little hot, she exits, leaving George and me to ourselves.
“Tough case,” he says. It’s an axiom of this life that, like a husband and wife who do not go to bed angry, judges of a court of review leave their disagreements in the impressions conference. I shrug in response, but he can tell I remain unsettled. “Why don’t you draft a dissent?” he suggests, meaning my own opinion, explaining why I think the other two got it wrong. “I promise I’ll look at the matter fresh when it’s on paper.”
I rarely dissent, since it’s one of my primary responsibilities as chief judge to promote harmony on the court, but I decide to take him up on his offer, and I head down to my chambers to begin the process with my law clerks. As chief, I occupy a suite the size of a small house. Off a large anteroom occupied by my assistant and my courtroom staff are two compact of ces for my law clerks and, on the other side, my own vast work space, thirty-by-thirty and a story and a half high, with wainscoting of ancient varnished oak that lends my inside chambers the dark air of a castle.
When I push open the door to the large room, I find a crowd of forty or so people who immediately shrill out, “Surprise!” I am surprised all right, but principally by how morbid I nd the recollection of my birthday. Nonetheless, I pretend to be delighted as I circle the room, greeting persons whose long-standing presence in my life makes them, in my current mood, as bleakly poignant as the messages on tombstones.
Both my son, Nat, now twenty-eight, too lean but hauntingly handsome amid his torrents of jet hair, and Barbara, my wife of thirty-six years, are here, and so are all but two of the other seventeen judges on the court. George Mason has arrived now and manages a hug, a gesture of the times with which neither of us is fully comfortable, as he hands me a box on behalf of all my colleagues.
Also present are a few key administrators on the court staff and several friends who remain practicing lawyers. My former attorney, Sandy Stern, round and robust but bothered by a summer cough, is here with his daughter and law partner, Marta, and so is the man who more than twenty- five years ago made me his chief deputy, former prosecuting attorney Raymond Horgan. Ray evolved from friend to enemy and back again in the space of a single year, when he testified against me at my trial and then, after my acquittal, put in motion the process that made me acting PA. Raymond again is playing a large role in my life as the chair of my supreme court campaign. He strategizes and shakes the money tree at the big firrms, leaving the operational details to two she-wolves, thirty-one and thirty-three, whose commitment to my election seems about as deep as a hit man’s.
Most of the guests are or were trial lawyers, an amiable group by nature, and there is great bonhomie and laughter. Nat will graduate from law school in June and, after the bar, begin a clerkship on the state supreme court, where I, too, was once a law clerk. Nat remains himself, uncomfortable in conversation, and Barbara and I, by long habit, drift near from time to time to protect him. My own two law clerks, who do a similar job to the one Nat will be taking, assisting me in researching and writing my opinions for this court, have assumed less distinguished duty today as waiters. Because Barbara is perpetually ill at ease in the world beyond our house, especially in larger social gatherings, Anna
Vostic, my senior clerk, serves more or less as hostess, pouring a dribble of champagne into the bottom of the plastic glasses that are soon raised for a lusty singing of “Happy Birthday.” Everyone cheers when it turns out I still am full of enough hot air to extinguish the forest fire of candles on the four-tier carrot cake Anna baked.
The invitation said no presents, but there are a couple of gags--George found a card that reads, “Congratulations, man, you’re 60 and you know what that means.” Inside: “No more khakis!” Below, George has inscribed by hand, “P.S. Now you know why judges wear robes.” In the box he handed over, there is a new death-black gown with braided golden drum major epaulets xed at the shoulder. The mock finery for the chief inspires broad guffaws when I display it to the assembled guests.
After another ten minutes of mingling, the group begins to disperse.
“News,” Ray Horgan says in a voice delicate enough for a pixie as he edges past on his way out. A grin creases his wide pink face, but partisan talk about my candidacy is forbidden on public property, and as chief judge, I am ever mindful of the burden of being an example. Instead, I agree to come by his office in half an hour.
After everyone else is gone, Nat and Barbara and I and the members of my staff gather up the paper plates and glasses. I thank them all.
“Anna was wonderful,” says Barbara, then adds, in one of those bursts of candor my odd duck of a wife will never understand is not required, “This whole party was her idea.” Barbara is especially fond of my senior law clerk and often expresses dismay that Anna is just a little too old for Nat, who has recently parted with his long-term girlfriend. I join the compliments for Anna’s baking, which is locally famous in the court of appeals. Emboldened by the presence of my family, which can only mark her gesture as innocuous, Anna advances to embrace me while I pat her back in comradely fashion.
“Happy birthday, Judge,” she declares. “You rock!” With that, she’s gone, while I do my best to banish the startling sensation of Anna full against me from my mind, or at least my expression.
I firrm up dinner plans with my wife and son. Barbara predictably prefers to eat at home rather than at a restaurant. They depart while the odors of cake and champagne linger sadly in the newly silent room. Sixty years along, I am, as ever, alone to deal with myself.
I have never been what anybody would call a cheerful sort. I’m well aware that I’ve had more than my fair share of good fortune. I love my son. I relish my work. I climbed back to the heights of respectability after tumbling into a valley of shame and scandal. I have a middle-aged marriage that survived a crisis beyond easy imagining and is often peaceful, if never fully connected. But I was raised in a troubled home by a timid and distracted mother and a father who felt no shame about being a son of a bitch. I was not happy as a child, and thus it seemed very much the nature of things that I would never come of age contented.
But even by the standards of somebody whose emotional temperature usually ranges from blah to blue, I’ve been in a bad way awaiting today. The march to mortality occurs every second, but we all suffer certain signposts. Forty hit me like a ton of bricks: the onset of middle age. And with sixty, I know full well that the curtain is rising on the final act. There is no avoiding the signs: Statins to lower my cholesterol. Flomax to downsize my prostate. And four Advil with dinner every night, because a day of sitting, an occupational hazard, does a number on my lower back.
The prospect of decline adds a special dread of the future and, particularly, my campaign for the supreme court, because when I take the oath twenty months from now, I will have gone as far as ambition can propel me. And I know there will still be a nagging whisper from my heart. It’s not enough, the voice will say. Not yet. All this done, all this accomplished. And yet, at the heart of my heart, I will still not have the unnameable piece of happiness that has eluded me for sixty years.
Excerpted from INNOCENT © Copyright 2011 by Scott Turow. Reprinted with permission by Grand Central Publishing. All rights reserved.