Defending Jacob

by William Landay

  “Well,” Jonathan said, looking up from his papers, “this is just the initial package from Neal Logiudice. All I have here is the indictment and some of the police reports, so obviously we don’t have all the prosecution’s evidence yet. But we have a general picture of the case against Jacob. We can begin talking, at least, and try to get a general picture of what the trial will look like. We can start to figure out what we need to do between now and then.

  “Jacob, before we begin, I want to say a couple of things to you in particular.”

  “Okay.”

  “First, you’re the client here. That means that, as far as possible, you are the decision maker. Not your parents, not me, not anyone else. This is your case. You are always in control. Nothing is going to happen here that you don’t agree with. Okay?”

  “Okay.”

  “To the extent you want to leave the decision-making up to your mom and dad or to me, that’s perfectly understandable. But you should not feel like you don’t have a say in your own case. The law is treating you as an adult. For better or worse, by law in Massachusetts every kid your age charged with first-degree murder is charged as an adult. So I’m going to do my best to treat you as an adult too. Okay?”

  Jacob said, “ ’Kay.”

  Not a wasted syllable. If Jonathan was expecting an outpouring of gratitude, he had the wrong kid.

  “The other thing is, I don’t want you to feel overwhelmed. I want to warn you: in every case like this, there’s an ‘oh shit’ moment. That’s when you look up at the case against you, you see all the evidence, all the people on the DA’s team, you hear all the things the DA is saying in court, and you panic. You feel hopeless. Deep down, a little voice says, ‘Oh shit!’ I want you to understand, it happens every time. If it hasn’t hit you yet, it will. And what I want you to remember, when that ‘oh shit’ feeling hits, is that we have enough resources right here in this room to win. There’s no reason to panic. It does not matter how big the DA’s team is, it doesn’t matter how strong the DA’s case looks, or how confident Logiudice seems. We are not outgunned. We do need to stay cool. And if we do, we have everything we need to win. Now, do you believe that?”

  “I don’t know. Not really, I guess.”

  “Well, I’m telling you it’s true.”

  Jacob’s eyes dropped to his lap.

  A microexpression, a disappointed pucker, fluttered across Jonathan’s face.

  So much for the pep talk.

  Giving up, he slipped on his half-moon glasses and paged through the papers in front of him, mostly photocopies of police reports and the “statement of the case” filed by Logiudice, which laid out the essentials of the government’s evidence. Without his jacket, wearing the same black turtleneck he’d worn in court, Jonathan’s shoulders looked slight and bony.

  “The theory,” he said, “seems to be that Ben Rifkin was bullying you, therefore you got a knife and, when the opportunity presented itself or perhaps when the victim bullied you one time too many, you took your revenge. There don’t seem to be any direct witnesses. A woman who was walking in Cold Spring Park places you in the area that morning. Another walker in the park heard the victim cry out, ‘Stop, you’re hurting me,’ but she didn’t actually see anything. And a fellow student—that’s Logiudice’s phrase, a fellow student—alleges you had a knife. That fellow student is not named in the reports I have here. Jacob, any idea who that is?”

  “It’s Derek. Derek Yoo.”

  “Why do you say that?”

  “He said the same thing on Facebook. He’s been saying it for a while.”

  Jonathan nodded but did not ask the obvious question: Is it true?

  “Well,” he said, “it’s a very circumstantial case. There’s the thumbprint, which I want to talk about. But fingerprints are a very limited kind of evidence. There is no way to tell exactly when or how a fingerprint got there. There’s often an innocent explanation.”

  He dropped this remark in an offhand way, without looking up.

  I squirmed.

  Laurie said, “There is something else.” A beat, a curious feeling in the room.

  Laurie glanced around the table apprehensively. Her voice was momentarily husky, congested. “What if they say Jacob inherited something, like a disease?”

  “I don’t understand. Inherited what?”

  “Violence.”

  Jacob: “What!?”

  “I don’t know if my husband has told you: there is a history of violence in our family. Apparently.”

  I noticed that she said our family, plural. I clung to that to prevent myself from falling off a cliff.

  Jonathan sat back and slipped off his glasses, let them dangle from the lanyard. He looked at her with a puzzled expression.

  “Not Andy and me,” Laurie said. “Jacob’s grandfather, his great-grandfather, great-great-grandfather. Et cetera.”

  Jacob: “Mom, what are you talking about?”

  “I’m just wondering, could they say Jacob has a … a tendency? A … genetic tendency?”

  “What sort of tendency?”

  “To violence.”

  “A genetic tendency to violence? No. Of course not.” Jonathan shook his head, then his curiosity got the better of him. “Whose father and grandfather are we talking about?”

  “Mine.”

  I felt myself redden, the warmth rising in my cheeks, my ears. I was ashamed, then ashamed at feeling ashamed, at my lack of self-command. Then ashamed, again, that Jonathan was watching my son learn of this in real time, exposing me as a liar, a bad father. Only last was I ashamed in my son’s eyes.

  Jonathan looked away from me, pointedly, allowing me to recover myself. “No, Laurie, that sort of evidence would definitely not be admissible. Anyway, as far as I know, there is no such thing as a genetic tendency to violence. If Andy really does have violence in his family background, then his own good nature and his life prove that the tendency doesn’t exist.” He glanced at me to be sure I heard the confidence in his voice.

  “It’s not Andy that I doubt. It’s the DA, Logiudice. What if he finds out? I Googled it this morning. There have been cases where this sort of DNA evidence has been used. They say it makes the defendant aggressive. They called it ‘the murder gene.’ ”

  “That’s ridiculous. ‘The murder gene’! You certainly did not find any cases like that in Massachusetts.”

  “No.”

  I volunteered, “Jonathan, she’s upset. We just talked about this last night. It’s my fault. I shouldn’t have put all this on her right now.”

  Laurie held herself erect to demonstrate how wrong I was. She was in control, not reacting wildly out of emotion.

  In a comforting tone, Jonathan said, “Laurie, all I can tell you is that if they do try to raise that as an issue, we’ll fight it tooth and nail. It’s insane.” Jonathan snorted and shook his head, which for a soft-spoken guy like him was a rather violent outburst.

  And even now, looking back on that moment when the idea of a “murder gene” was first raised, by Laurie of all people, I feel my back stiffen, I feel the anger ooze up my spine. The murder gene was not just a contemptible idea and a slander—though it absolutely was both of those things. It also offended me as a lawyer. I saw right away the backwardness of it, the way it warped the real science of DNA and the genetic component of behavior, and overlaid it with the junk science of sleazy lawyers, the cynical science-lite language whose actual purpose was to manipulate juries, to fool them with the sheen of scientific certainty. The murder gene was a lie. A lawyer’s con game.

  It was also a deeply subversive idea. It undercut the whole premise of the criminal law. In court, the thing we punish is the criminal intention—the mens rea, the guilty mind. There is an ancient rule: actus non facit reum nisi mens sit rea—“the act does not create guilt unless the mind is also guilty.” That is why we do not convict children, drunks, and schizophrenics: they are incapable of deciding to commit their crimes with a true understanding of th
e significance of their actions. Free will is as important to the law as it is to religion or any other code of morality. We do not punish the leopard for its wildness. Would Logiudice have the balls to make the argument anyway? “Born bad”? I was sure he would try. Whether or not it was good science or good law, he would whisper it in the jury’s ear like a gossip passing a secret. He would find a way.

  In the end Laurie was right, of course: the murder gene would haunt us, if not quite the way she anticipated. But in that first meeting, Jonathan—and I—trained in the humanist tradition of the law, instinctively rejected it. We laughed it off. The idea had got ahold of Laurie’s imagination, though, and Jacob’s too.

  My son’s jaw literally hung open. “Is somebody going to tell me what you guys are talking about?”

  “Jake,” I began. But the words did not come.

  “What? Somebody tell me!”

  “My father is in prison. He has been for a long time.”

  “But you never knew your father.”

  “That’s not entirely true.”

  “But you said. You’ve always said.”

  “I did, I said. I’m sorry for that. I never really knew him, that was true. But I knew who he was.”

  “You lied to me?”

  “I didn’t tell you the whole truth.”

  “You lied.”

  I shook my head. All the reasons, all the things I had felt as a kid, seemed ridiculous and inadequate now. “I don’t know.”

  “Jeez. What did he do?”

  Deep breath. “He killed a girl.”

  “How? Why? What happened?”

  “I don’t really want to talk about it.”

  “You don’t want to talk about it? No shit you don’t want to talk about it!”

  “He was a bad guy, Jacob, that’s all. Let’s just leave it at that.”

  “How come you never told me?”

  “Jacob,” Laurie cut in softly, “I never knew either. I only found out last night.” She laid her hand on Jacob’s and rustled it. “It’s okay. We’re still kind of figuring out how to process all this. Try to stay calm, okay?”

  “It’s just—it can’t be true. How come you never told me? This is my—what?—my grandfather? How could you keep that from me? Who do you think you are?”

  “Jacob. Watch how you talk to your father.”

  “No, it’s okay, Laurie. He’s got a right to be upset.”

  “I am upset!”

  “Jacob, I never told you—I never told anyone—because I was afraid people would look at me differently. And now I’m afraid it’s how people are going to look at you too. I didn’t want that to happen. Someday, maybe someday very soon, you’ll understand.”

  He gawped at me, unsatisfied.

  “I didn’t mean for it to come to all this. I wanted—I wanted to move past it.”

  “But Dad, it’s who I am.”

  “That’s not how I looked at it.”

  “I had a right to know.”

  “That’s not how I looked at it, Jake.”

  “I didn’t have a right to know? About my own family?”

  “You had a right to not know. You had a right to start with a blank slate, to be whatever you wanted to be, same as every other kid.”

  “But I wasn’t the same as every other kid.”

  “Of course you were.”

  Laurie looked away.

  Jacob tossed himself backward in his chair. He seemed more shocked than aggrieved. The questions, the complaints, were just a way to channel his emotion. He sat there awhile, deep in thought. “I don’t believe it,” he said, bewildered. “I just don’t believe it. I don’t believe you did that.”

  “Look, Jacob, if you want to be mad at me for lying, okay. But my intentions were good. I did this for you. Even before you were born, I did it for you.”

  “Oh, come on. You did it for yourself.”

  “I did it for myself, yes, and for my son, for the son I hoped I was going to have someday, to make things a little easier for him. For you.”

  “It didn’t work out so great, did it?”

  “I think it did. I think your life has been easier than it would have been. I certainly hope so. It’s been easier than mine was, that’s for sure.”

  “Dad, look where we are.”

  “So?”

  He said nothing.

  Laurie offered, in a honeyed voice, “Jacob, we need to be careful how we talk to each other, okay? Try to understand your father’s position even if you disagree with it. Put yourself in his shoes.”

  “Mom, you’re the one who said it: I have the murder gene.”

  “I did not say that, Jacob.”

  “You implied it. Of course you did!”

  “Jacob, you know I didn’t say that. I don’t even think there is such a thing. I was talking about other trials I read about.”

  “Mom, it’s okay. It’s just a fact. If you weren’t concerned about it, you wouldn’t have Googled it.”

  “A fact? How do you know it’s a fact, all of a sudden?”

  “Mom, let me ask you something: why do people only want to talk about inheriting good things? When an athlete has a kid who’s good at sports, nobody has any problem saying the kid inherited his talent. When a musician has a musical kid, when a professor has a smart kid, whatever. What’s the difference?”

  “I don’t know, Jacob. It’s just different.”

  Jonathan—who had not spoken in so long I had almost forgotten he was present—said calmly, “The difference is it’s not a crime to be athletic or musical or smart. We need to be very careful about locking people up for what they are rather than what they do. There is a very long ugly history of that sort of thing.”

  “So what do I do if this is what I am?”

  Me: “Jacob, what are you saying, exactly?”

  “What if I have this thing inside me and I can’t help it?”

  “There’s nothing inside you.”

  He shook his head.

  There was a very long silence, ten seconds or so that seemed to last much longer.

  “Jacob,” I said, “the ‘murder gene’ is just a phrase. It’s a metaphor. You understand that, right?”

  Shrug. “I don’t know.”

  “Jake, you’ve just got it wrong, okay? Even if a murderer had a child who was also a murderer, you wouldn’t need genetics to explain that.”

  “How do you know?”

  “Oh, I’ve thought about it, Jacob, believe me, I’ve thought about it. But it just can’t be. I think of it this way: if Yo-Yo Ma had a son, the kid wouldn’t be born knowing how to play the cello. He’d have to learn to play the cello just like everyone else. The most you can inherit is talent, potential. What you do with it, what you become, all that is up to you.”

  “Did you inherit your father’s talent?”

  “No.”

  “How do you know?”

  “Look at me. Look at my life, like Jonathan said. You know me. You’ve lived with me fourteen years now. Have I ever been violent, ever?”

  He shrugged again, unimpressed. “Maybe you just never learned to play your cello. Doesn’t mean you don’t have the talent.”

  “Jacob, what do you want me to say? It’s impossible to prove a thing like that.”

  “I know. That’s my problem too. How do I know what’s in me?”

  “Nothing is in you.”

  “I’ll tell you what, Dad: I think you know exactly how I’m feeling right now. I know exactly why you didn’t tell anyone about this for so long. It wasn’t because of what they might think you were.”

  Jacob leaned back and folded his hands on his belly, closing off the subject. He had clasped onto the idea of a murder gene and after that I don’t think he ever let it go. I let the subject drop too. No sense preaching to him about the boundlessness of human potential. He had his generation’s instinctive preference for scientific explanations over the old verities. He knew what happens when science comes up against magical thinking.

/>   11 | Running

  I am not a natural runner. Too heavy-legged, too big and bulky. I am built like a butcher. And honestly I derive little pleasure from running. I do it because I have to. If I don’t, I get fat, an unhappy tendency I inherited from my mother’s side, all stout-bodied peasant stock from eastern Europe, Scotland, and points unknown. So most mornings around six or six-thirty I galumphed through the streets and the jogging paths in Cold Spring Park until I had pounded out my daily three miles.