by Scott Turow
George reacts to this. “It has to be more than plain error, Nathan. We’re referees, not players. We can’t advance our own arguments, unless ignoring them leads to a miscarriage of justice. That’s the standard we have to apply.”
“And how is it not a miscarriage of justice to convict four men when the whole case against them is inadmissible?”
George is somewhat surprised that Koll is so wedded to his argument. Often, he musters these arid academic displays to impress or belittle, then leaves them in the courtroom.
Summerset continues shaking his head. He was a famous soul singer who went to law school between tours, one night quarter at a time, so that he could manage his own career. When his star sank to the point that he was appearing only at outdoor summer festivals and high school reunions, he decided to capitalize on his remaining name recognition by running for judge in the hope of achieving a reliable income. The bar associations wrung their hands over a judicial candidate who sang one of his two big hits, “Made a Man for a Woman” and “Hurtin’ Heart,” at every campaign stop, but Summer’s performance on the bench has been solid. His elevation to the appellate court was a way to get him out of the one job he didn’t belong in—he was a poor manager as Presiding Judge of the torts trial division in the Superior Court. Here he is neither George’s most distinguished colleague nor his least. He continues to work hard and shows uncommon common sense, rendering sound, pragmatic interpretations of the law.
And the view he expresses several times now is that convicting these young men is far from unjust. Race, the perpetual theme song of American life, might be a factor in his evaluation, but George, who has sat with Purfoyle dozens of times, doubts that. Summer, much like George himself, usually sides with the prosecutors, except in clear cases of police misbehavior. Nathan duels with Summerset for some time, trying to nudge the facts with little hypothetical alterations into a shape allowing him to prevail, but increasingly he casts his dark, squinty look toward George, who obviously holds the deciding vote.
The person on the street might think judges are emperors who wave their scepters and do what they like, but in George’s experience, all of them attempt to apply the law. Words are sometimes as elusive as fish, and reasonable minds often differ on the meaning of cases and statutes, but it is still the actual language that has to guide a judge. George concentrates on the question: Is convicting these boys on the basis of a videotape that should not have been admitted “a miscarriage of justice”?
Incongruously, it is the tape itself that stands out in his mind as he endeavors to answer. Sapperstein’s arguments required George to view the video, locked in his inner chambers. Hard to shock when it comes to crime, George could stomach only a portion of it before assigning Banion to go through it frame by frame and produce a sterile description.
But the ten minutes or so George took in still reverberate. Mindy DeBoyer was a deadweight throughout, her limbs like wet laundry. The teased ribbons of her dark hair were conveniently pushed across her face, while her naked hips and one leg straddled the arm of a Chesterfield chair, as if the fully dressed upper body slumped on the cushion below—the head, the heart—did not exist. It was crime at its purest, in which empathy, that most fundamental aspect of human morality, evaporated and another being became only a target for untamed fantasy. The sexual acts were committed in emphatic plunging motions of pure aggression, and the way the boys exposed themselves to one another before and after, amid much wild hooting, could only be labeled depraved—not in any puritanical sense but because George sensed that these young men were dominated by impulses they would ordinarily have rejected. But if the purpose of the criminal law is to state emphatically that some behavior is beyond toleration, then this case surely requires that declaration.
“I’m afraid that I’m going to have to side with Summerset on this one,” he says. Koll makes a face. “Nathan, the defendants are entitled to be judged on what they argued, not what they didn’t. I will say, though, that Sapperstein’s claim about the statute of limitations has quite a bit of traction with me. Ms. DeBoyer knew she might have been raped but said nothing. How can we say the crime was concealed?”
“Because that was the trial judge’s conclusion,” answers Summer at once. “He saw the young woman testify. He felt that, given her age and inexperience, those boys kept her from knowing enough to report the crime. We have to defer to him.”
In George’s mind Sapperstein has made his most telling argument on this point, contending that the trial judge’s reliance on Mindy’s age means he was essentially applying an exception to the statute of limitations for crimes committed against minors. In such a case, the victim has a year from her eighteenth birthday to report the offense. But Mindy was three months past nineteen when the tape came to light.
Much as Koll turned to him a moment before, George now looks at Nathan.
“I’m afraid that I’m going to have to side with Summerset on this one,” Koll answers, echoing George’s precise words. Tit for tat. So much for the majesty of the law.
George ponders where they are. Three judges and three different opinions in a case that is already highly controversial. As the senior, George is supposed to fashion a compromise that will not lead the court into ridicule. A reversal, with no agreement why, will only fan the flames in Glen Brae. More important, their job is to declare the law, not hold up their palms and say to the world ‘Who knows?’ Accordingly, he decides to write the opinion himself. Years ago, before Rusty Sabich became Chief Judge, when the appellate court was a retirement camp for able party loyalists, opinions were assigned in advance by rotation, and dissents were all but forbidden. In practice, appeals were argued to a court of one, with the lawyers standing at the podium engaged in a legal shell game, attempting to guess which of the three judges was actually deciding the case.
“I’ll take this one,” he says, and with that stands, calling the conference to a close.
Nettled as always when he does not get his way, Koll directs a heavy look at George.
“And are we affirming or reversing?”
“Well, Nathan, you’ll have to read my draft. I’ll circulate it within the week.” Koll will write his own opinion anyway, a concurrence or a dissent, depending on which way George goes. “This case is—” says Judge Mason and stops cold. He still has no idea how he is going to vote, which argument he’ll champion and which he’ll reject. Decisiveness is a job requirement and one at which he normally excels. His continuing discomfort with People v. Warnovits remains troubling but suddenly not as much as what he was on the verge of blurting out. He has no clue even what the words could mean, but he was ready to tell his two colleagues, ‘This case is me.’
5
THE GARAGE
IN THE LATE 1980S, the Third District Appellate Court was relocated by the County Board. Litigation had become a growth business in Kindle County, much like everywhere else in America, and the need for more civil courtrooms in the Superior Court building, known as the Temple, had forced the appellate judges to take up residence a mile away in the Central Branch Courthouse, where criminal cases were tried. Bolstered by Reagan-era law enforcement money, the County constructed a large criminal court annex. The appellate judges were allotted most of the grand spaces in the old building, which had been erected with the rich architectural detail characteristic of public projects during the Depression, when skilled tradesmen worked cheap. Nonetheless, many of the jurists were unhappy to move out of Center City. Beyond U.S. 843, the area is blighted, sometimes dangerous, and offers few decent spots for lunch. But George Mason, who began his professional career in this courthouse as a Deputy State Defender, relishes every day the fact that he has come full circle.
Now, in the adjacent concrete parking structure, Judge Mason throws his briefcase down on the front seat of his car. He triggers the ignition so he can put on the air—it is another close evening in early June—but he has no intention of driving anywhere yet. The 1994 Lexus LS 400 is a remaining
prize of his flush times in private practice, and he maintains the car devotedly, in part because it is the only space in the world he thinks of as exclusively his. Here at the end of the day, he often reflects on cases and personal issues, when he is finally free from the robe, whose weight he feels everywhere in the courthouse, whether he is wearing it or not.
The gloomy parking garage would not strike many as a welcoming spot for reflection, especially since the Central Branch Courthouse is where many of the County’s most dangerous citizens must report monthly while they are out on bail. Although the garage is heavily patrolled by Marina’s forces during business hours, perpetual budget cuts have left only a small crew on duty after 6:00 P.M., when George customarily returns. Through the years, the garage has been the scene of stickups, beatings, and more than one shooting, involving Kindle County’s eternally warring gangs, the Black Saints Disciples, the Gangster Outlaws, and the Almighty Latin Nation, and their constituent ‘sets.’ ‘Get in and get out’ is the standard advice.
At the moment, the judge has his eye on two kids, one long, one short, both in sweatshirts, who have popped up in his rear- and side-view mirrors several times. From their looks, he takes it that the two are probably here for late-afternoon drug court. At one point, he feared they were actually circling him, but they disappeared soon afterward. Either way, he is not about to move. The vague tingle of lurking danger has always been one of the attractions of the garage for George, whose entire professional life has been founded on the conviction that he knows himself best under these shadows.
The driver’s seat in this car is as large and soft as a piece of den furniture, and he motors it back from the wheel, reclining slightly, so he can ask himself the question that has waited for hours. What is it that lingers with him about People v. Warnovits? ‘This case is me,’ he almost declared to his colleagues several hours before. Me? He had meant to say ‘my,’ on his way to offering, as a good-natured jest, ‘This case is my problem.’ Even that remark seems oddly proprietary in retrospect, since his role in the ideal is to speak for all three judges.
And so the inner tuning fork has been struck. He continues, eyes closed meditatively, trolling his memory until what he has long sought is suddenly snagged. His grin with the first recollection fades as the problem becomes apparent.
The event took place more than forty years ago, in a different world. In Charlottesville in those days, no one would have found it humorous to hear him say as a first-year—never ‘freshman’—that he was there to become a gentleman and a scholar. He attended class in a sport coat and tie. Like all the men in his family, he was color-blind. His mother had given him an index card explaining how to match his clothes, but he misplaced it and stepped out of the old dorm each morning expecting to be greeted with smirks.
He had not been happy then. The chafing and boiling that would ultimately drive him here, a thousand miles from home, had started. He could not have named everything that bothered him—his mother’s relentless social pretensions, his father’s rigid adherence to faith and honor as the credo of a Southern gentleman—but coming of age amid the unyielding proprieties of southern Virginia, where there were few open questions, whether about God or Yankees or Negroes, felt like growing up in a lightless closet. By high school, he was determined to escape and read Kerouac, Burroughs, Ginsberg, bards of the liberation that he believed in as a matter of spirit but that he had no idea how to practice.
Which was why it mattered so much to him that he was a virgin. He was supposed to be, of course, if you had asked his minister or his teachers or his parents. It was 1964. But both body and soul yearned for freedom.
Six weeks into his initial term, the college had its first party weekend. Having forsaken his high school girlfriend, a pretty but narrow young woman, he watched with envy as other hometown girls arrived on campus. George was miserable and alone. The reliable bond of male affection that had been forged in those first weeks was broken now by the preeminent claim exerted by the other half of the species.
As recompense for abandoning their double, George’s roommate had bought him a cheap bottle of Scotch. Alcohol was one of the grave sins condemned in his home that he had been quickest to take up, and George was soon drunk on hard liquor for the first time in his life. By now it was nearly 10:00 P.M. The couples had finished their restaurant dinners, danced in the sweaty mash of fraternity parties, and were retreating to the dorm for the moments that mattered most to many of these young men, before parietal hours ended and the women had to return to the local rooming houses or the dorms at a nearby female college where they had been put up. With the Scotch under his arm, George careered through the halls. The doors to most of the rooms were cracked open an inch or two in accord with university rules, allowing tracks from Meet the Beatles! to scream out from the hi-fis within. Knowing that men and women were in each other’s arms, necking, groping, running the bases, George was battered with longing.
In that condition, he ran into his best friend, Mario Alfieri. Mario had come here from Queens on a wrestling scholarship and seemed as out of place in genteel Charlottesville as a platypus. Boisterous, profane, wisecracking, he was the renegade George wanted to be, and they had developed a quick appreciation for each other. Coming downstairs, carrying a bucket of ice, Mario grabbed George’s elbow.
‘You won’t believe this,’ he said, repeating it several times as he bent with laughter. ‘Brierly’s got a girl up in the second-floor hallway pulling a train.’
George knew the term, but still he looked at Mario without comprehension.
‘No lie,’ Mario said. ‘She’s out in a refrigerator box, entertaining the troops. So, Georgie boy, listen to me. You’re saved. Saved.’ Mario knew George’s barren sexual history. ‘Get yourself up there.’
‘Did you go?’
‘I have a date, knucklehead.’ George had met the young woman briefly. She was the sister of another wrestler whom Mario had been persuaded to invite blind on the promise that she was as irreverent as he was. In person, Joan had proved even prettier than her snapshot, but she was also one of those rare women who seemed defiant even standing still. ‘Five to one, I get nothing off her,’ Mario had whispered to George.
‘What about the syph?’ George asked now, contemplating what supposedly was occurring upstairs.
‘What about getting laid?’ Mario reached back to his wallet and slapped the emergency prophylactic always there into George’s hand. ‘Greater love,’ Mario said. He pushed his friend to the staircase with both hands.
Coming off the landing, George found a scene that seemed entirely improbable, notwithstanding Mario’s description. A huge carton, about eight feet long and four feet high, had been wedged across the threshold of Hugh Brierly’s room at the far end of the hall. Projecting between the open flaps on one side, George saw a white shirttail and four naked legs, two with pairs of men’s trousers and boxer shorts bunched at the ankles. The boy was on his toes while the box lurched minutely with his efforts.
At least two dozen men were lined up on either side of the hallway to witness this, all with their ties loosened and drinks in hand. They jolted in laughter and slapped one another’s shoulders, shouting out lewd one-liners. But none of them, no matter what, took his eyes off the box. It was as if it contained the secret of fire. Every now and then, one or two would break away to peer into the open end of the carton and shout obscene encouragement to the fellow inside.
George crept closer until he realized that he’d chosen the side of the hall where the line had formed. The nearer he came to the front, the more he felt the frantic charge that seemed to grip all of the spectators. A dull knocking sounded from the box, and at one point as George waited, a boy inside suddenly screamed ‘Score!’ The men in the corridor erupted in laughter that seemed wild enough to loosen the bricks of the building.
In front of him in line was Tom McMillan, another first-year. ‘I’m going again,’ he told George. The girl, McMillan explained, had appeared at the fo
otball game alone, apparently ditched by her date. She had started talking to Brierly and Goren, two boys from the dorm, both dateless too, and returned here with them. The three drank for hours, until they were all witless from the favored libation of the weekend, a cocktail of grain alcohol and fruit punch consumed directly from a Hi-C can. At some point, the girl had said that she’d be everybody’s date, and that had become a motif for their increasingly lewd conversation, until the boys began to press the idea that she could not disappoint them. Brierly had found this refrigerator box, and the girl had supposedly climbed in with him, laughing.
As George neared the head of the line, a first-year named Rogers Peterson came charging down the hall toward Brierly.
‘Jesus,’ he said. ‘Jesus. Some of us have our dates up here. We can’t have this going on. What’s wrong with all of you? What should we tell our girls?’
‘Tell them not to look,’ Brierly said, and the mob howled, jeering Peterson as he retreated.
The throng of onlookers was growing fast. Word was spreading. Fellows in ties and blazers had actually stepped out on their dates for a few minutes and come running. George could feel his anxieties wearing through the effects of the Scotch, and he noticed that there were far more men watching than awaiting a turn. But the line was growing behind him fast enough that he knew there was no time for indecision.
When McMillan reached the head, Brierly waved him away.
‘No seconds, not yet.’
McMillan was still protesting when a short, obese fellow George did not know backed out of the box, refastening his trousers.
‘What a swamp!’ he said, and the hallway again rocked with laughter.
Brierly pointed at George. ‘Next,’ he said, ‘in the tunnel of love.’ Only then did George see that Hugh was collecting money, ‘Rent,’ Brierly said. ‘It’s my box.’
George dumbly picked ten dollars, a week’s spending money, out of his wallet.
