"Of course. I'd granted the motion."
"Exactly the point I was going to make," says Molto. Small, tight, with his bunchy form and timeworn face, Tommy smiles a little as he faces the jury. "You knew he would be in prison the rest of his life once his conviction was affirmed?"
"Naturally."
"But it didn't dawn on you he might run?"
"He hadn't run yet, Mr. Molto."
"But with your court's decision he was really out of chances, wasn't he? In any realistic sense? You believed the state supreme court wouldn't take the case, didn't you? You told Harnason he was at the end of the line, right?"
"That's right."
"And so you're telling us that after being a prosecutor for what-fifteen years?"
"Fifteen years."
"A prosecutor for fifteen years, and a judge for twenty more, it didn't occur to you that this man wanted to know the decision in advance so he could run away?"
"He appeared very upset, Mr. Molto. He told me, as he admitted when he testified, that he was overwhelmed by anxiety."
"He conned you?"
"I think Mr. Harnason said he decided to flee after learning about the outcome. I don't deny I shouldn't have told him, Mr. Molto. And I don't deny that one of many reasons that was wrong was because it ran the risk he would jump bail. But, no, at the time, it didn't occur to me that he would run."
"Because you were thinking of something else?"
"Probably."
"And what you were thinking about, Judge, was poisoning your wife, wasn't it?"
This is the artifice of the courtroom. Molto knows that my dad was probably worried about being nabbed with the girl he was screwing. And can't say that. He must be satisfied with answering, simply, "No."
"Would you say, Judge, you were doing Mr. Harnason a favor?"
"I don't know what I'd call it."
"Well, he was asking for something improper and you obliged him. Right?"
"Right."
"And in return, Judge-in return you asked him what it was like to poison someone, didn't you?"
The time-honored strategy on cross-examination is never to ask a question to which you don't know the answer. As my father has explained to me many times, that is not a rule of unlimited application. More properly put, the rule is never to ask a question to which you do not know the answer-if you care about the response. In this case Molto must feel he cannot really lose. If my father denies saying asking what it was like to poison someone, Molto will verify Harnason by going over the many other parts of the conversation my dad has already acknowledged.
"There was no 'in return,' Mr. Molto."
"Really? You're telling us that you violated all these rules in order to give Mr. Harnason a piece of information he desperately wanted-and you did that without thinking Mr. Harnason was going to do anything for you?"
"I did it because I felt sorry for Mr. Harnason and guilty about the fact that when you and I were both young prosecutors, I had sent him to the penitentiary for a crime that I now see didn't merit that punishment."
Caught, Tommy stares at my dad. He knows-and so does everybody in the courtroom-that my dad is trying to remind the jury not only about his past relationship with Tommy, but that prosecutors sometimes go too far.
"Now, you heard Mr. Harnason's testimony?"
"We've already agreed to that."
The response, slightly snippy, is the first time my dad has seemed in less than complete control. Stern sits back and looks straight at him, a cue to mind himself.
"And are you telling us he lied when he said that after revealing the decision in his case, you asked him what it was like to poison someone?"
"I do not remember the conversation exactly as Mr. Harnason did, but I do remember that question being asked."
"Being asked by you?"
"Yes, I asked him that. I wanted-"
"Excuse me, Judge. I didn't ask what you wanted. How many trials have you taken part in or observed as a prosecutor or a trial judge or an appellate court judge?"
On the stand, my dad smiles ruefully about the long march of time.
"God knows. Thousands."
"And after thousands of trials, Judge, you understand that you're supposed to answer the questions I ask you, not the questions you wish I asked?"
"Objection," says Stern.
"Overruled," says Yee. Tommy might be hectoring a regular witness, but this is fair game with a judge on the stand.
"I understand that, Mr. Molto."
"I asked just this: Did you ask Mr. Harnason what it was like to poison someone?"
My father does not pause. He says, "I did," in a labored tone that suggests there is much more to it, but the answer nonetheless sets off one of those little courtroom murmurs I always thought were corny on shows like Law amp; Order, which I watched habitually as a kid, the next best thing to videotapes of my dad at work. Tommy Molto has scored.
In the interval, Brand motions Tommy to the prosecution table. The chief deputy whispers something, and Tommy nods.
"Yes, Mr. Brand just reminded me. To be clear, Judge, Mr. Harnason had not been recaptured when your wife died, had he?"
"I think that's right."
"He'd been gone more than a year?"
"Yes."
"So when your wife died, Judge, you had no reason for serious concern that Mr. Harnason would be telling the police that you'd asked him what it was like to poison somebody?"
"Frankly, Mr. Molto, I never thought about that part of our conversation. I was much more concerned that I'd unwittingly given Harnason reason to flee." After a second, he adds, "My conversation with Mr. Harnason was more than fifteen months before my wife died, Mr. Molto."
"Before you poisoned her."
"I did not poison her, Mr. Molto."
"Well, let's consider that, Judge. Now, did you read the transcript of Mr. Harnason's trial in deciding his appeal?"
"Of course."
"Would it be fair to say you read the transcript carefully?"
"I hope that I read every trial transcript carefully in deciding an appeal."
"And what Mr. Harnason had done, Judge, was poison his lover with arsenic. Is that right?"
"That was what the State contended."
"And what Mr. Harnason told you he had done?"
"True enough, Mr. Molto. I thought we were talking about what was in the transcript."
Molto nods. "Correction accepted, Judge."
"That was why I asked Mr. Harnason what it was like to poison someone-because he'd admitted he'd done it."
Molto looks up, and Stern too places his pen down. The rest of the conversation between Harnason and my father, which concerned his first trial, is out of bounds under Judge Yee's order. My dad has recovered a little of the ground he lost to Molto before, but I can see that Sandy is worrying that my father will stray too close to the line and open the door to a far more dangerous subject. Molto seems to be considering that, but he chooses to go where he was headed.
"Well, one thing that was certainly in the transcript, Judge, was a very detailed description of which drugs American Medical, the reference laboratory under contract to the Kindle County coroner-the transcript recites which drugs American tests for in the course of a routine toxicology screen on blood samples from an autopsy. Do you recall reading that?"
"I take it for granted I read it, Mr. Molto."
"And it turns out, Judge, that arsenic is a drug that is not included in a routine tox screen. Is that right?"
"I remember that."
"And because of that, Mr. Harnason had nearly gotten away with murder, hadn't he?"
"As I recall, the coroner originally ruled Mr. Millan's death to be by natural causes."
"Which was how the coroner originally classified Mrs. Sabich's death as well. True?"
"Yes."
"Now, Judge, are you familiar with a class of drugs called 'MAO inhibitors'?"
"That was not a term I knew well formerly, but I'm certainly familiar with it now, Mr. Molto."
"And how about a drug called phenelzine. Are you familiar with that?"
"I certainly am."
"And how did you first hear about phenelzine?"