Privilege Log

The bar has a word for what she was about to do, and the word is spoliation.

Linnea sat in the study with the door shut and the late-summer light coming slantwise through the beech, and said it to herself aloud, softly, to see how it sounded. Spoliation. The destruction, alteration or concealment of evidence in contemplation of a proceeding. It was a word she had used a hundred times in a hundred briefs, always about the other side.

On the desk in front of her lay a black purser's notebook.

On the floor beside her chair lay a photocopier she had borrowed from the housekeeper's office, and eleven reams of paper, and a stack of manila folders labeled in her small square hand. A bar of afternoon sun fell across the open book. It was the fourteenth of September, a Sunday, and she had until nine the next morning to put a package on the desk of an Assistant United States Attorney.

She had not slept.

She was very calm. That was the strange thing. All through August, through the long gold weeks of thunderstorms and grasshoppers, the repeated rehearsals in the library with Tolliver and Lindqvist, the endless drafting of declarations and affidavits and chain-of-custody forms, she had waited for the fear to come. It hadn't. What had come instead was something thin and clear and level, like the line of a horizon. A kind of terrible patience. She had decided what she was going to do in the cellar, on the first night, with the Tidebook in her lap. Everything since had been paperwork.

She turned to the first page.

…

The Manifest ran to one hundred and eighty-six leaves, front and back, in her father's upright hand.

She had read it so many times that the pages had begun to feel like a face. She knew where the ink changed color. She knew which entries he had written at night, in a sloped bleary scrawl, and which in daylight, in the clear steady capitals of a man making an inventory. She knew the water-stain on page ninety, and the coffee-ring on page one-twelve, and the three places where he'd begun a sentence and torn the corner away.

She had spent the whole of August sorting it.

She had done it the way she would sort any production: with tabs, and a log, and a rule. Three piles. Each entry she had read through, line by line, and assigned to one of them.

Pile One: Brannock. Everything that concerned Hollis Brannock, Tobias Wick, the camel coat, the Gate Three sabotage, the Hale entry, the four thousand dollars. The great bulk of the book. A hundred and fifty-seven leaves in all, with her father's own sins among them.

Pile Two: Her father. His own sins. The bribes he had taken, the cargo he'd passed, the shifts he'd skimmed. These were not hers to withhold. She had put them in the first pile too. He had asked her to. He had written it in the letter that came with the notebook, in his steady clerical hand: Give them all of me. I am not worth hiding.

Pile Three: Varga.

She turned the page.

It was not a large pile. It was twenty-nine leaves. Pages thirty-one through fifty-one, and a scatter of single sheets that appeared like driftwood through the later pages. The entries about the man who had come to Warren's kitchen nine years ago and said start being on time. Entries on pension payments, and favors, and a cargo manifest that listed, in careful coded shorthand, a number of things that had passed through Pier Nine in a certain autumn. Names of dockworkers. Dates of shifts. A schedule.

Gate Three.

Nov 17. Told by Mr. V. to shorten the turnaround at Gate 3. Said it would be forty minutes. Told him it couldn't be done. He said: make it so. L.O. and M.B. on the lash.

L.O. and M.B.

Luis Ortega. Marcus Bell.

She put her hand flat on the page.

It's all here, she thought. In my father's handwriting. Every piece of it. If I give Lindqvist these twenty-nine leaves, he won't need to subpoena the Tidebook. He won't need anything. He'll have a conspiracy count, and a pattern, and a motive, and a man who has already, voluntarily, written down his own guilt.

And I will have done my duty.

She took out her green pen.

…

"You understand," said Perry Lindqvist, "what you're asking me to accept."

He sat in the chair opposite her desk in the Brooklyn field office at nine o'clock on Monday morning, a stained paper cup in his hand and the package on his knee. It was a handsome package. She had been proud of it. A hundred and fifty-seven photocopied leaves, bound with a steel clip, tabbed and indexed, each page stamped with a Bates number and each Bates number logged on a document she had typed herself. A sworn declaration of chain of custody. A forensic affidavit from an ink-dating expert in Albany who owed Stahl a favor. A clear and rigorous cover letter on firm stationery, which she had signed, in green, at four that morning.

The pages did not run in sequence.

He had seen it at once. His finger was on the log. It had gone down the Bates column, and paused at BR-0031, and gone on to BR-0052.

"There's a gap."

"Yes."

"Twenty-one pages. And a handful of scattered leaves after that. You've marked them withheld."

"Yes."

"On the ground of—" He read it aloud, slowly. "Spousal privilege and attorney work product, pursuant to the Federal Rules of Evidence, Rule 501, and the common law marital communications privilege." He lowered the sheet. "Ms. Calder."

"Mr. Lindqvist."

"This is a notebook your father wrote twenty-four years ago. It is not a communication between spouses. You didn't author it. Your husband didn't author it. You found it in a courthouse." He took a breath. "Privilege doesn't attach to a pre-existing document because it happens to mention a person you married. You know that. You know that better than I do."

"I know the law."

"Then you know I could file a motion to compel tomorrow, and a judge would grant it by Friday."

"You could."

"You know I could hold you in contempt. Put you in the MDC. Thirty days at a minimum, until you complied."

"I know."

He stared at her.

She sat with her hands folded in her lap and her back straight against the chair. She had put on the navy suit, the mended one. There was a bruise on her left wrist that had not yet quite faded, a pale yellow band, and she did not hide it.

"I'm not asking you to accept it," she said. "I'm asking you to litigate it. I would be very glad to. I've drafted my opposition already." She took a second folder from her bag, thick, tabbed, and laid it on his knee. "It's forty-one pages. I've argued, in the alternative, that the withheld portions are protected as attorney work product, having been gathered and organized by me in anticipation of a criminal proceeding in which I am counsel of record for my father; that they fall within the common-law privilege for confidential communications between spouses insofar as the notebook was transmitted to me by the declarant as part of a request for legal advice; and, last, that they are not relevant to the grand jury's investigation of Hollis Brannock."

"They're wildly relevant."

"I know."

"You've buried a murder under a footnote."

"I've buried nothing. I've logged it." She met his eyes. "The log is on page two. Every withheld page, by number, with the date, the author, the general subject, and the basis for the claim. If you want to challenge it, you may. I'll argue it, in front of a judge, in open court, with my own name on the brief. I won't hide. I won't destroy a single leaf. I'll defend it to the bar and to the bench and to God." She drew a breath. "But I won't volunteer it. Not those pages. Not yet."

"Why?"

"Because I haven't decided whether they're mine to give."

The office was quiet.

On the wall behind him hung a framed map of New York Harbor, with a lamp on a brass arm. Somewhere down the hall, a printer rattled. Lindqvist sat and looked at her for what seemed a very long time, and then, slowly, he began to laugh.

It was a weary, helpless, rusty sound. He took off his glasses and rubbed his eyes.

"You're the most honest person I have ever met," he said. "And you're doing the least honest thing I've ever seen."

"I know."

"Do you know what I'd do, if I were you?"

"What?"

"I'd burn them." He said it flatly. "Not the whole notebook. I wouldn't be so crude. But I'd lose the twenty-nine leaves in the course of a very regrettable fire. A good lawyer would."

She said nothing.

"You haven't." He put his glasses back on. "You've photocopied them. You've sealed them. You've written a forty-one page brief to justify the possession of evidence you could have destroyed in four minutes. You've handed me, in writing, a map to the place where the bodies are buried and then asked me politely not to dig." He shook his head. "That isn't concealment, Ms. Calder. That's an offering."

"I don't follow."

"You want me to compel you."

She stopped.

"You want a judge to tell you to hand them over." He leaned forward. "So that it won't have been your choice. So that when the day comes, you can say: I fought it. I did everything a lawyer could. And the law took them from you anyway."

The words went into her like a nail.

"That isn't true," she said.

"Isn't it?"

"It's—" She stopped. She looked down at her hands. They were not shaking. They were perfectly still, and white, and cold. "I don't know," she said.

"No." His voice was gentle. "I think you don't."

…

He let her go at ten.

He walked her to the elevator himself, along the gray carpeted corridor past rows of closed doors, the package under his arm. He did not shake her hand. He stood beside her at the panel with his hands in his pockets, rumpled and tired and unexpectedly kind, and watched the numbers descend.

"I'm going to hold the motion," he said.

"Until?"

"The fourth of October." He met her eyes in the brass of the door. "I need you for the third. I need you in that room, at that door, with a wire. If I file, you're a hostile witness, and I lose you. If I wait, I lose the weeks. And I'm told by a woman I trust that the weeks are the point."

"Thank you."

"Don't." The doors opened. "I'll say one thing. You've told me you haven't decided whether those pages are yours. They're not. They belong to a dead man's widow, and a living man's widow, and a union hall in Red Hook. They belong to the people who were on that lash." He held the door. "I'd think about whose they are before you decide."

She stepped inside.

The doors began to close. She stood very straight, in the little brass box, with her hands at her sides and her chin up, and thought of Marisol Ortega at a folding table in a laundromat, her hands full of other people's shirts.

They belong to the people who were on the lash.

It was true. It was the thing she'd known in the cellar and refused to say.

She had a week and a half.

…

Aldrich Penhallow LLP occupied the nineteenth and twentieth floors of a glass tower on Foley Square, and it smelled, as it had always smelled, of carpet shampoo and money and ambition. She walked through the lobby at eleven with a cardboard box under her arm. She had not been inside since the previous October.

Nobody stopped her.

They looked, though. She saw it in the elevator, in the corridor, at the long marble reception desk: a ripple of lowered eyes and hushed voices. She had been, for eleven months, the most extraordinary rumor in the building. She married the client. She got kidnapped. She sent a Marshals' writ across three berths. She had been in the Dispatch, and the Post, and a small gray paragraph in the Times. Two paralegals she had never met stopped talking as she passed, and one of them, a very young woman with braids, said in a small shy rush: "Ms. Calder? I just wanted to say. The sentencing memo. It's why I went to law school."

Linnea stopped.

"Thank you," she said. Her voice was not quite steady. "What's your name?"

"Tamsin."

"Tamsin. Go to law school."

"I am. I mean—I'm going. In the fall."

"Good." She smiled. "Don't let them make you into a pencil."

The girl laughed. It was a delighted, startled, breathless sound.

She walked on.

…

Judith Aldrich's office was on the nineteenth floor at the corner, with windows on two sides. It was a plain, spare room, cold and gray and orderly, with a single orchid on the sill that had been kept alive for twenty years by sheer force of will. She stood at the window with her back to the door and her hands folded in front of her, a slim, silver-cropped figure in charcoal wool, looking down at the courthouse steps.

"You're late," she said.

"Eleven months."

"Eleven months and four days." She turned. "Sit."

Linnea sat. She put the box on the floor beside her chair. It contained a stapler, a framed photograph, a green desk lamp, a worn copy of Black's Law Dictionary, and the rest of what a person accumulates in two years in a windowless office on the nineteenth floor. She looked at it. It was surprisingly little.

"I'm resigning," she said.

"I assumed."

"I'd like to say—"

"You'll say nothing. You'll sit, and I'll talk." Judith crossed to the desk and sat down opposite, in the high-backed chair, and laid her hands flat upon the blotter. "I have been a managing partner of this firm for nineteen years. In that time I have hired three hundred and eleven associates. I have never once told one that she was good."

"I know."

"It is a policy. It prevents them from stopping." The pale eyes were very steady. "You were the best I ever hired."

Linnea sat absolutely still.

"I knew it the afternoon I interviewed you. You came in with a stain on your blouse and a thesis on the Eighth Amendment and you looked me in the eye and told me my firm's pro bono program was a fraud." A dry flicker crossed her face. "I hired you for the same reason I'd hire a good sword. I wanted to see what you would cut."

"Judith—"

"You've cut everything." The old woman's voice did not rise. "You've cut a man's sentence from a lifetime to three years. You've cut the wrong people out of a great many contracts. You've cut your own career in half, and you are about to do it again." She paused. "I read Miss Halloran's story."

Linnea's heart turned over.

"She sent it by courier. Five thousand words. It is on my desk, in a sealed envelope, in a drawer I have not locked." A faint smile. "She asked me to hold it in the firm safe. I have not opened the safe. I put it in a drawer, where I can see it. And I read it. Of course I read it."

"It's—"

"It is the finest piece of reporting I have encountered in thirty years of practice." Judith Aldrich lifted her chin. "It names three of our former clients. It names a judge I had lunch with in June. It names, with a precision I will not forget, a particular law partner of this firm, who in the year Dennis Hale died drafted an indemnity for a company called Brannock Marine Holdings."

The air left the room.

"Who?" said Linnea.

"Me."

She sat there with her mouth open.

"I did not know." The voice was perfectly even. "I will say that in my own defense, and it will not be enough. I drafted it as I drafted a hundred such documents, in the course of a busy week. I did not read the recitals. I did not ask what the indemnity was for. I signed it, and billed it, and forgot it." Her hands lay flat on the blotter, very white. "I am sixty-one years old, Linnea. I have spent forty years being exactly careful. And I discover that the one thing I failed to read was the one that put a man in a creek."

"Judith."

"So you will forgive me if I tell you that I am not going to ask you to stay. I am going to ask you to go." She rose. She came around the desk. She stood in front of Linnea with her hands at her sides, small and slight and utterly upright. "Do what you are going to do. I will back you. If you are disbarred, I'll write the letter. If you are indicted, I'll post the bond. If you are right, I shall be very glad. And if you are wrong—"

"Yes?"

"Then be wrong beautifully."

She did something Linnea had not seen her do in two years. She held out her hand, palm up, not to shake but to be held, and Linnea took it, and the old fingers closed over her own, cool and dry and astonishingly strong.

"Go," said Judith Aldrich. "Before I make a speech."

…

The Subaru was waiting at the curb on Worth Street.

She came out through the revolving doors into the white September glare with the box under her arm and her eyes stinging, and for a moment she couldn't see. The street was loud, full of horns and wind and the clatter of a distant jackhammer. She stood on the pavement with her chin lifted and breathed.

The passenger window slid down.

"Counselor," said Anselm.

He sat behind the wheel in the oatmeal shirt with his sleeves rolled to the elbow, one hand resting on the dashboard, looking at her with a strange, shy, amused expression. He had not shaved. He looked tired and well and a good deal younger than thirty-eight. He had been there, she realized, for some time. There was a paper cup on the dash, and the radio, turned low, was playing something with a clarinet in it.

"You didn't have to come," she said.

"I wasn't aware I'd been told not to."

"I'm resigning."

"I know."

"I'm unemployed. I'm about to be held in contempt. I may be disbarred." She heard her voice crack and stopped. "I just gave a prosecutor a package with a hole in it the exact shape of you."

"I know that, too."

"You know?"

"Stahl told me." A pause. "I'd have known anyway. You've been wearing a hole in the carpet for a month."

She laughed. It broke in the middle. She dropped the box on the seat and got in, and shut the door, and sat there with her hands over her face and her shoulders shaking, and he did not touch her. He waited. He let the radio play, and the traffic go by, and the long September light slide down the glass. After a while she felt him lay something in her lap, and looked.

It was a handkerchief. Clean, white, ironed.

"Where did you get this?"

"Stahl." The corner of his mouth moved. "He says a gentleman should always carry one. He says I'm to hand it to you at the moment of maximum distress and not before."

"You're a terrible person."

"I'm aware."

She wiped her eyes. She blew her nose. When she looked up, he was watching her with a look so naked and quiet and absolute that she could hardly bear it.

"Anselm," she said.

"Yes."

"The pages."

"They're yours."

"I haven't decided."

"I know." He started the engine. "I didn't ask."

The Subaru pulled out into traffic. She sat beside him, in the shuddering, ordinary, living noise of Lower Manhattan, with her hand lying open on her knee, and after a moment she felt his hand come down over it. It was warm. It was steady. It did not grip or press; it only rested there, lightly, as a bird might rest on a branch.

They drove to the bridge. They went up on the span, into the wind and the glittering light, with the river dazzling below and the harbor opening out beyond it, ships at anchor, cranes against the sky, the whole great gray-green tide of the city rolling to the sea.

"Where's Dunne?" she said suddenly. "He's supposed to be on the car."

"He's following in the Ford."

"And Ruddick?"

A silence.

"Three days' leave," said Anselm, very evenly. "Family. He called this morning."

She turned her head.

"The letter came in July," he said. "He's worked every day since, and said nothing. This morning he asked for leave. He hasn't been seen since breakfast."

The bridge hummed beneath them. The wind sang in the cables. And somewhere in the vast blue distance a ship's horn sounded, low and long, and the sound went out across the water and did not come back.