"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 Tommy 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.