The PAs put on Nenny Strack next. She was better than she'd been in Tommy's office, but even so, she took back almost everything on cross-examination. Still, they were stuck with her. If they'd called a different toxicologist, then Strack would be up there testifying for the defense, undercutting the other guy and saying she'd expressed all those doubts to the prosecutors. Instead, Brand cleaned up the mess with the coroner, who offered the opinion that Barbara had died of phenelzine poisoning. Dr. Russell had a lot to eat on cross, and Marta Stern had fed it to him piece by piece. She emphasized that Russell had believed initially that Barbara died by natural causes and, given postmortem redistribution, still could not definitively rule out that possibility.
From that valley, the prosecution had steadily climbed back into sunshine. Barbara's own pharmacologist got up there briefly to say he'd warned her repeatedly about the dangers of phenelzine and the foods she needed to avoid when taking it. Harnason was Harnason, sneaky-looking and strange, but he stayed on script. His sentence was going to drop from one hundred years to fifty in exchange for his testimony, but Harnason seemed to be the only person in the courtroom who didn't realize he was going to die in prison. He was the first witness Stern cross-examined rather than Marta, but it was an oddly understated performance. Sandy barely bothered flaying Harnason with the ugly facts he had already acknowledged during Brand's direct examination-that Harnason was a veteran liar and cheat, a fugitive who had already broken his oath to the court when he ran, and a murderer who had slept beside his lover night after night at the same time he knew he was poisoning him. Instead, Stern spent most of his time on Harnason's first prosecution thirty years ago, encouraging the man to rumble on about how unjustified his prison sentence was and how Rusty's decision had basically ruined his life. But Stern did not directly challenge Harnason's testimony that Rusty tipped him about the appellate court's decision or asked what it felt like to poison someone.
George Mason, the acting chief of the court of appeals, had followed Harnason with a lengthy dissection of the judicial canons, quite damaging to Sabich, even though on cross, Judge Mason, admittedly Rusty's longtime friend, reiterated his enduring high opinion of Sabich's integrity and credibility.
Slick but visibly nervous as a witness, Prima Dana Mann testified that his practice was limited to matrimonial matters and admitted consulting with Rusty twice, including once three weeks before Barbara died.
Then the case had ended with the best stuff the prosecution had: Rusty picking up the phenelzine, the fingerprint results from Barbara's medicine cabinet, Rusty's shopping trip the day Barbara died, and finally Milo Gorvetich, the computer expert, who laid out all the incriminating stuff they'd mined after seizing Rusty's home computer.
Once the prosecution rested, Marta had made an impassioned argument that the prosecution had failed to establish corpus delicti, meaning they had not offered evidence from which a jury could find beyond a reasonable doubt that there had been a murder. Judge Yee had reserved ruling. Usually that was a sign that the judge was considering flushing the case if the jury didn't, but Tommy tended to think it was just Basil Yee being himself, as aloof and cautious as certain house cats.
Now, as Tommy flipped through his yellow pad while he stood at the corner of the defense table, Jim Brand, still smelling of this morning's aftershave, scooted his chair over and leaned close.
"You going to ask about the girl?"
Tommy did not have much hope on this point, but he felt Yee was wrong to start. He stepped forward. Yee had been attending to other papers and finally looked down at Molto below the bench.
"Your Honor, may we be heard before I begin?"
The jury, into the third week of trial, knew what that meant and stirred in the box. Out of deference to Stern, who could not stand long at any of the whispered conferences beside the bench, the judge cleared the courtroom for sidebars. The jurors disliked the shuttling in and out, especially since it meant they were being treated like children who mustn't hear what the grown-ups were talking about.
Once they were gone, Molto took another step closer to the bench.
"Your Honor, since the defendant has chosen to testify, I'd like to be able to ask him about the affair he had the prior year."
Marta shot up at once to object. In a setback Tommy had not anticipated, Judge Yee had granted the defense motion to keep the prosecutors from showing that Rusty had been seeing another woman in the spring of 2007. Marta Stern had argued that even accepting the State's iffy evidence that Sabich had been unfaithful-the hotel sightings and the STD test-the behavior, particularly the chief judge's alleged pattern of pinching off cash from his paychecks to finance the affair, had ceased fifteen months before Barbara's death. In the absence of anything to show he had been seeing this woman when Mrs. Sabich died, the proof was irrelevant.
'Judge, it shows motive,' Tommy had protested.
'How?' asked Yee.
'Because he may have wanted to be with this woman, Your Honor.'
' "May"?' Judge Yee had moved his head from side to side. 'Proving Judge Sabich had affair sometime before-that not proof he a murderer, Mr. Molto. If that proof,' said the judge, 'lot of men are murderers.' The press, in the front row for the pretrial proceedings, had roared as if the quiet country judge were doing stand-up.
Now Marta, with her red ringlets like Shirley Temple and a brocaded jacket, came forward to oppose Tommy's efforts to ask the same questions the judge had disallowed prior to trial.
"Your Honor, that's obviously unacceptably prejudicial. It injects speculation that Judge Sabich had an affair, something which the Court has already recognized is irrelevant to these proceedings. And it's unfair to the defendant, who made his decision to testify based on the Court's prior rulings."
"Judge," said Tommy, "the whole point of your ruling was that there was no evidence whether the defendant was seeing this woman, whoever she is, at the time of the murder. Now that he's up there, aren't we at least entitled to ask about that very point?"
Judge Yee looked to the ceiling and touched his chin.
"Now," he said.
"I'm sorry," said Tommy. In his frugality with words, the judge was frequently Delphic.
"Ask now. Not with jury."
"Now?" said Tommy. Somehow he caught the eye of Rusty, who appeared as startled as Molto.
"You wanna ask," said the judge, "ask."
Tommy, who had expected to get nowhere, found himself briefly word-struck.
"Judge Sabich," he finally said, "did you have an affair in the spring of 2007?"
"No, no, no," said Yee. He shook his head in the schoolmarmish fashion he occasionally employed. The judge was a few pounds overweight, moon-faced, with heavy glasses and thin gray hair plastered over his scalp. Like Rusty, Tommy had been acquainted with Yee for decades. You couldn't say you knew the guy, because he was too accustomed to keeping to himself. He'd grown up in Ware as one of a kind, shunned by almost everybody, not only because he was by downstate standards so foreign in look and speech, but also because he was one of those schooltime brainiacs nobody could have understood, even if he could actually speak English. Why Yee had decided to become a trial lawyer, which was maybe the one job in the world anybody with common sense would have told him to stay away from, was a mystery. He'd had something in his head; people always do. But there was no way the prosecuting attorney's office down in Morgan County could refuse to hire him, a local guy whose law school performance-first in his class at State-outranked that of any applicant for at least twenty years. Against the odds, Yee had done well as a deputy PA, although he was at his best as an appellate lawyer. The PA eventually moved heaven and earth to get him on the bench, where Basil Yee had basically shined. He was known to let his hair down at judicial conferences. He drank a little too much and stayed up all night playing poker, one of those guys who didn't get away from his wife much and made the most of it when he did.