The Laws of our Fathers (9 page)

    'Judge, as an officer to the court: I didn't speak to any reporters and I have no knowledge of anyone on our side speaking to reporters, I promise you that.'

    'Mr Molto, I'm pleased to have your representation. And I accept it, of course. But you and I are both grown-ups, and we know that someone intent on leaking is not going to send up a flare or call you for permission first.'

    The reporters find this very amusing. There are a dozen ways this could have happened. Some cop on the case wanted to poison the well, or perhaps it was one of Tommy's superiors. Either way, the police reports appeared in Stew's mailbox in a plain envelope. We'll never know from whom. Behind the reporter's shield law, Dubinsky's source will remain fathomless.

    'Judge, the defense had this information,' says Tommy. 'They had the statements of the witnesses. Our theory is obvious.'

    The book on Tommy is that he cannot stand down when he should not bother firing, and I lose my patience with him now.

    'Look, Mr Molto, are you suggesting that the defendant would find it helpful to try to pick a jury on the same day the state's theory of the case is detailed on the front page of the
Tribune!'
Molto is mocked by another rollicking burst of spectator laughter, ringing loudest from the press section.
'Res ipsa loquitur,
Mr Molto. Remember that phrase from law school? The thing speaks for itself. Doesn't it? Again, I'm sure it wasn't you. But you should remind everyone on your side what their obligations are and let them know that if there's a repetition, there will be a hearing.' Sallow, still, Molto frowns unconsciously at my rebuke. 'For today, I suggest we deal with the situation that confronts us. Do you agree with Mr Turtle that I should dismiss the indictment?'

    Rudy Singh has come back to stand by Tommy. He whispers urgently, telling him, no doubt, to give up. Fight a different fight.

    'No,' Tommy says lamely.

    'Then what's my alternative, Mr Molto?'

    'Judge, I don't know. We came here this morning prepared to try this case. I think you should do what we always do. Bring the prospective jurors up.
Voir dire
them. Ask them if they've read the paper, and the ones who have, ask if they can put it out of their minds.'

    Hobie, of course, will have none of this. The problem, he points out, is that it forces the defendant to accept all the risks of juror prejudice created by the state's misconduct in leaking. Instead, Hobie insists again that the indictment must be dismissed. As a young man, he was grandiose and that part of his character clearly has not changed. No defendant subjected to pre-trial publicity -not O. J. Simpson or John Hinckley, who shot the President of the United States on national TV - has ever gotten such relief.

    'What if we continue the case?' I finally ask. This is what I have been waiting for Molto to suggest. 'In a couple of weeks this story will be forgotten and whatever benefit the state has gotten by virtue of the leak will be dissipated.'

    'Your Honor,' says Turtle, 'leaving aside the personal inconvenience - I've come from DC, gotten myself settled here - but leaving that aside, Judge, my client has a right to a speedy trial. He wants that speedy trial, and it shouldn't be delayed because of the prosecutors' misconduct.'

    Smooth, clever, Hobie knows he has the advantage and presses it. Molto, true to courthouse legend, seems determined not to give me - or himself - any help. He again urges questioning the jury pool right now. Singh, with his sleek black hair, stands behind Tommy, with one hand on Molto's jacket sleeve, not completely certain about whether he wants to stand ground with Molto or retreat.

    'Gentlemen,' I say eventually, 'something's got to give. I'm not going to continue the case over the objections of both parties. I'm not going to dismiss the indictment. And I'm not going to allow the prosecution to make an uncombated opening statement in the newspapers and force the defendant to pick a jury out of a pool exposed to that.' I stare them down, all three men - Tommy, Hobie, Singh with his large doe eyes - all looking up to me with evident bemusement. Silence, the spectacular silence of two hundred persons rendered mute, veils the courtroom.

    Finally, Hobie asks for a moment and strolls off with his client. As Nile listens, the dark dot left by the earring he has removed for the sake of a good impression appears distinctly when he nervously sweeps back his hair. Returning to the podium, Hobie uses his bulk to move Tommy aside.

    'There is one alternative which we can offer that would let us get started,' Hobie announces. 'My client and I are willing to proceed with trial to the court alone.'

    A current of something - shock, dismay - lights me up. This time, finally, I catch myself and maintain a collected expression.

    'Mr Molto?' I manage. 'What's your position on a bench trial?'

    'Your Honor,' Hobie interjects, 'they don't have a right to a position. If you won't do it, the defendant can't make you, we realize that, but this is none of the state's affair.'

    'You're certainly correct, Mr Turtle. But given the disclosures the court has made, I really would not exercise my discretion to accept a bench trial if the state for any reason felt that was not a wise course. Mr Molto?'

    'Judge, all I know is I got up this morning ready to try this case. I agree with Mr Tuttle. We don't have the right to a position. And if I had a position, and if Your Honor was willing to get on with openings and the witnesses, I'd be very happy.' Listening to Tommy insist again on moving ahead, I finally catch the drift. The prosecutors have a problem with their case. They've gummed things back together for right now, but it's going to go from bad to worse with time. Probably one of their witnesses has had a change of heart. Hardcore, perhaps? Someone important.

    But does that mean I have to say yes to a bench trial? The older judges always tell you not to rush. They have a dozen sayings:

    'There's no stopwatch on the court reporter's transcript.' 'The court of appeals won't reverse for delay of game.' I find myself staring down into the open pages of my bench book. It's an oversized volume, with a red clothbound spine, heavy stock pages lined in green, feathered edges, and a cover clad in rough black Moroccan leather. On the spine, my name has been impressed in gold. In the quaintest of courthouse customs, the book was presented to me when I took the bench, a judge's diary, the place for private notes about each trial. The pages before me are blank, as undetermined as I am.

    Decide, I tell myself, as I so often do. In this job, deliberation is respected. Indecision is not. My work, in the end, is simply that, deciding, saying yes or no. But it's hard labor for the natively ambivalent. There's no other job I know of that more reliably reveals the shortcomings of a personality than being a judge. The pettish grow even more short-tempered; the silently injured can become power-mad or abusive. For someone who can spend a tortured moment before the closet, picking a dress, this work can be maddening. I'm supposed to let the conclusions roll forth as if they were natural and predetermined, as if it were as easy as naming my favorite color (blue). But I wait now, as I often do, silently hoping that some alternative, some forceful thought or feeling, will expose itself. The years roll on and life seems like this more and more, that choices don't really exist in the way I thought they would when I was a child and expected the regal power of adulthood to provide clarity and insight. Instead, choice and need seem indistinguishable. In the end, I find myself clutched by the resentment, which I still think of as peculiarly female, of being so often the victim of circumstance and time.

    'Mr Eddgar,' I say and call him forward. I explain to Nile what it means to have a bench trial, that I alone will decide whether or not he is guilty, and ask if he's willing to give up his right to a jury-

    'That's what we want,' he replies. Perhaps because it's the first sound of Nile's voice since the start of these proceedings, the remark takes me aback. What does that mean? 'What we want'? He's going to get it, notwithstanding.

    'Trial shall be to the court. What are your thoughts on scheduling, gentlemen?' After discussion, Hobie and Molto decide they're better off spending the balance of the morning on stipulations, hoping to agree about certain facts now that there's no need to educate - or fool - a jury. 'If you care to make opening statements, I will hear them immediately after my bond call at 2 p.m.' I point to Marietta, seated below me on the first tier of the bench, and tell her to call a recess.

    The courtroom springs to life with an urgent buzz. A bench trial! The court buffs and cops and reporters mingle, exchanging speculations as they head into the corridor. I converse with Marietta about discharging the seventy-five citizens who've been summoned as prospective jurors. Then I gather the bench book and the court file. A day at a time, I tell myself. Weary already, I sink down the stairs.

    'Judge? Can I talk to you?'

    When I look back it's Seth Weissman, hunched somewhat timorously beside the front corner of the bench. A little squeeze of something tightens my heart, but I'm struck principally by the way he's addressed me. It must have been less peculiar to be a judge back in the Age of Manners, or even thirty years ago, when the lines of authority were more absolute. These days the attendant reverence can seem downright inane. People who were grown-ups when I was a child stand a few feet below me and, at their most casual, address me as 'Judge.' To hear it from the first man outside my family who ever said 'I love you' raises the implausibility of these customs to dizzying heights.

    'Seth,' I say. 'How are you?'

    Something - a sense of the momentousness of time - swims through his expression.

    'Bald,' he answers, summoning in one word the boy I knew: funny, vulnerable, always willing to accept a helping hand.

    I try a straight face that doesn't last. 'Is my line "I hadn't noticed"?'

    'I'd settle for "It's nice to see you." ' 'It is, Seth.'

    'Good,' he says, then hangs midair. ‘I just wanted to apologize,' he says. 'You know, the acoustics were kind of startling.'

    I dispense a forgiving backhand wave. He asks how I am.

    'Busy. Crazy with my life like everybody else. But okay. And you, Seth? I can only imagine how proud you are of your success.'

    He worms around, an aw-shucks routine meant to suggest it's all beyond him. More than ten years ago I first saw a column by Michael Frain. I was sure the name was a coincidence. The Michael I knew could never have become a master of the quick shot or the snappy
bon mot.
Then a year later I saw a picture, which was unmistakably Seth's. What in the world? I thought. How did this happen? Questions whose answers I still want to know.

    At times since, I've looked at the somewhat whimsical photo (conveniently cropped just above the brow) and the accompanying columns, wondering about this man with whom I parted company with the usual tangled feelings, but no deepening regrets. I liked Seth. I lost him. There were half a dozen others about whom the same might be said, even, if I'm feeling mellow, Charlie. Sometimes - especially when something he writes has struck me funny - I have recalled distinctly the droll delivery of Seth's somewhat monotonous Midwestern voice, in which the glottal
Fs
rasp in a minor speech impediment. At other moments, he can disappoint me. Always the sucker for easy laughs, he is sometimes too quick to flay targets already tattered by public scorn, and he occasionally displays certain ungenerous retrograde political opinions, a former leftist too eager to show he's wised up. At his best, though, he can be quick and penetrating, putting down a line or two that seems to sum up all the world's sadness. Even so, these commonplaces often perplex me. What could have brought that on? I'll wonder. Or even worse, I'll imagine all of it was there in the sweet, funny boy who whirled through my life, and that I overlooked it because I was so busy seeking within myself. Was it? How did I miss it? Where was it hidden? Those questions also linger.

    'You were always funny,' I tell him. 'I didn't realize you were wise.'

    'You can create a lot of illusions in eight hundred words.' 'Oh, you're very good, Seth. Everybody likes what you write. My minute clerk acts as if I used to hang out with Mick Jagger.' 'Wait till she hears me sing.'

    I actually laugh. 'Still a smart guy,' I say and he seems pleased to find his character so well remembered.

    'I've always told Lucy, that's what I want on my gravestone: "Now what, smartass?"'

    With that, the rear door bangs open and Marietta bulls a few steps into the courtroom. She's headed for the bench with a sheaf of draft orders when she catches sight of us and goes completely still. She turns heel abruptly, leaving the courtroom as it was, empty and hushed.

    'So I take it I can look forward to a column about all of this?' I ask. My index finger circles toward the courtroom.

    '' 'The Big Chill Meets Perry Mason"?' He laughs at the notion. 'Maybe. It's an amazing curiosity, isn't it? Coincidence. Whatever you'd call it. Everybody together? I had to see it.'

    ‘I take it from the way you were giving Hobie the business, you're still close with him?'

    He laughs about that, too. That's how Seth heard about the case, I suspect, from Hobie, but now that I'm asking questions about the defense lawyer I realize I've probably already let this conversation go further than I should. I offer my hand and tell Seth I'm on my way.

    'Is it crazy for me to say let's have a cup of coffee?' he asks.

    'Not crazy. But probably inappropriate.'

    'We don't have to talk about the case.'

    'We
can't
talk about the case. That's why I'm going to bid you farewell. The case will end. We'll talk then.'