THE COURT: Anything further?
MR. McSLAPPAHAN: Your Honor, the only thing I would like to add further is that based upon that reasoning and logic it would require each defendant to have intricate knowledge of the law of what a building defines and that is not required to make out the burglary count that the defendant has been indicted for.
THE COURT: This is a motion at the close of the People’s case that relies upon some interesting factual misstatements. As I heard the testimony in this case the witness, Mr. Bolo, indicated that the truck had lettering identifying the van on the side. So that rather than being just a plain white van, there was undeniably, or at least it was clearly identified as being the van of the business company. And of course he also said there were ladders that were kept on the top of the van a well. But all of that is somewhat irrelevant, as the People are under no obligation to prove that the defendant knew that under the law the van was a building.
DEFENSE COUNSEL: Again, the defense is not that the defendant was ignorant of the law rather that he was ignorant of a necessary circumstance and that said ignorance negated his mental culpability. Also Bolo did not say the van had company lettering he said it had lettering, which every automobile has.
THE COURT: Motion denied. Return at 2:15 to sum up.
DEFENSE COUNSEL: Are we going to have a charge conference?
THE COURT: I suppose if you have it that would be fine.
DEFENSE COUNSEL: I’m asking that you instruct the jury that the People have to prove that at the time he entered the van the defendant knew that it was used to conduct business therein. I’m handing up to the Court, with a copy for the DA, the specific instruction that I’m requesting.
THE COURT: I will charge the jury with respect to the language of the statute. Is there anything else?
DEFENSE COUNSEL: Are you going to charge them that the term knowingly applies to the status of the van as well?
THE COURT: I will charge them with respect to the language of the statute as precisely as is—as suggested by the CJI instructions. Is there anything further?
DEFENSE COUNSEL: The CJI doesn’t—
THE COURT: Yes, I know it doesn’t.
DEFENSE COUNSEL: Then I need to make a record as to why I believe that’s a necessary charge here.
THE COURT: I think you’ve been doing that for the past ten minutes. Is there something additional you have to add?
DEFENSE COUNSEL: That was a motion to dismiss.
THE COURT: I understand that.
DEFENSE COUNSEL: With a different applicable standard and other considerations. Then I was asking you to dismiss the case, which is admittedly a severe remedy. Now I’m simply asking you to properly instruct the jury as to the state of the law so they may decide if the People have met their burden.
THE COURT: Is there anything new that you think you—
DEFENSE COUNSEL: Yes.
THE COURT: Counsel is, do you have additional material that you didn’t mention before that you have to say now?
DEFENSE COUNSEL: Yes. Under New York law, specifically Penal Law 15.20 subsection 1(a), a factual mistake that negates a culpable mental state is a defense. That is the nature of the defense in this case. If Mr. Hurtado broke into a commercial van with the mistaken belief that it was an ordinary automobile then he did not have the requisite mental culpability to be guilty of Burg Three and is instead guilty of Auto Stripping or Petit Larceny. Because those charges are not on the indictment the jury’s only option is to acquit if they do not believe the People have proved that the defendant knew the special nature of the van.
For the reasons I stated earlier, I believe there is a reasonable view of the evidence that the defendant did not know the van was used for commercial purposes. For that reason, and the clear state of the law, I believe that the instruction I’ve requested is necessary if my client is to receive a fair trial.
You indicated earlier that you don’t believe my interpretation of the law is correct. I mentioned Article 15 of the Penal Law earlier and a further argument stemming from that section occurs to me now. Specifically, in McKinney’s, the practice commentaries to Penal Law 15.15, section 1 refers to Trespassing in the Third Degree, Penal Law 140.15. There, the commentator states that for someone to be guilty of that crime they must not only knowingly enter or remain in a dwelling but they must also know that it is a dwelling. This seems perfectly analogous to our case where the statute for Burg Three is worded identically in its relevant parts.
Why would it be any different here? Why would there be a less rigorous requirement of proof for a felony than for a misdemeanor like Trespass Three? To remove this requirement from Burg Three is to transform it into a strict liability crime, something strongly disfavored by the Penal Law.
THE COURT: Counsel, I have heard your argument and repeating it doesn’t make it any better or stronger.
DEFENSE COUNSEL: I agree in that it couldn’t possibly be any stronger as it relies solely on the plain language of the applicable statutes.
THE COURT: I will instruct them as per the CJI only. Is there anything else anyone wants me to charge?
MR. McSLAPPAHAN: No. If I may briefly address, not to belabor the point. I object to the instruction that’s requested by counsel as far as the knowingly elements, and I believe that his instructions really requires the jurors or—require the defendant to have intricate knowledge of the law. It is the law, the definition as Your Honor instructs it to the jury. Not whether or not the defendant was ignorant of the law. And I think that’s what defense counsel is asking you to instruct them on. And I would object to the instruction that would say the defendant must knowingly be aware that a van is defined as a building.
DEFENSE COUNSEL: The DA repeatedly betrays no understanding whatsoever of my arguments.
THE COURT: Is there anything else?
MR. McSLAPPAHAN: Nothing further.
DEFENSE COUNSEL: You mentioned the CJI, I assume you will omit the discretionary part of the instruction that refers to remaining in the building.
THE COURT: I will instruct them fully.
DEFENSE COUNSEL: That wasn’t the People’s theory based on their opening. Moreover, under People versus Gaines—
THE COURT: Do you think I didn’t listen?
DEFENSE COUNSEL: That’s one possible explanation.
THE COURT: Why do you keep repeating?
DEFENSE COUNSEL: I’m hoping you’ll understand why—
THE COURT: I understand you have a great many beliefs. You’re making an argument. I have heard your argument and have ruled against you. The record is preserved. You don’t repeat it four times to preserve it. Once will do it. Is there anything further?
MR. McSLAPPAHAN: Nothing further your Honor.
THE COURT: Good then both counsel return at 2:15 to sum up.
(DIANE S. SALON)
“Thoughts?” I said as we made our way to Grinn’s office.
“I think she’s wrong,” Toom said. “If this truly is a case of first impression, as it appears to be, then it’s just pretty straightforward statutory construction. That said, I remain amazed that we haven’t been able to find a case or anything else on this issue. If you could cite her appropriate authority that would make a tremendous difference.”
“You think Toomie?” I said. “Insight like that I could get from my mother for Chrissakes.”
“I know I’m stating the obvious but what are you going to do?”
“What am I going to do? Good question. What is the individual to do in the face of pervasive negligent toxicity? So screwed, I’m so screwed. I just had the only possible defense to this case ripped away from me and I have to sum up in twenty minutes. I need to change her mind and if I can’t I need to argue it anyway without the instruction.”
“I don’t think she’ll like that at all after she told you what she thinks the state of the law is.”
“She’s a true idiot.”
“I’m quite certain she’ll shut you down if you try jury
nullification.”
“Yup.”
“The other thing is, even if she gave you the instruction you’ve sought, with the testimony that the van had ladders on top of it and company lettering on the side aren’t you nonetheless in a very difficult position. In other words—”
“Those words are fine Toom, I know what you’re saying. Fucking court reporter. Bolo never said our lettering he said lettering. That’s it. I was listening like a bat. I swear the gods are fucking me from every angle Toom. Now where’s that hideous book.” We were in Grinn’s office and he was not. There was no green book. There was nothing in there. I had to check the nameplate outside the door to make sure it was still an occupied office. We were rifling through the office’s meager contents when Grinn appeared in the doorway.
“Can I help you gentlemen?”
“Conley says he lent you this book that has commentaries by a judge on criminal matters. Ring a bell? It’s green.”
“I don’t have any book by a Judge Green.”
“No the book itself is green. The judge’s name no one remembers. Seen it?”
“There’s no such book in here.”
“Are you sure?” said Toomberg. “Because it’s actually quite urgent that we find this book in the next eight minutes.”
“Are you calling me a liar? I assure you there is not a single law book in this office.”
“That I can believe. Let’s go, Toom,” and we split without book and without hope, although Toomberg’s genuine concern had temporarily revived my belief in the redeemability of man. He looked glum. “Don’t fret Toom,” I said. “I’m telling you, when I set out to accomplish something I do it. No excuses, no maybes. I have seven minutes. Mark my words, I will find that book and partake of its glorious jurisprudential fruit.”
But I didn’t. I went back into that courtroom unarmed and just summed up like a good boy. Hurtado was the picture of confidence the whole time as, despite repeated objections, I used every ounce of talent and ability I had to try and convince The Twelve to vote not guilty because there was insufficient proof the defendant knew the van was used for business purposes. Very unbecoming my desperation. I could feel it all slipping away. I wanted to go back in time, wanted to arraign the case anew. I should’ve sent investigators out to photograph that van before it was stolen for good so I would know the answers to questions I was later afraid to ask. I should’ve been looking for that book for six months not thirty-six hours. I should’ve drafted an entire memo on the issue rather than trust an idiot like Arronaugh to understand an oral application without pictures. Most of all, I should’ve gotten Hurtado to plead, even if I had to produce him for two weeks straight. Swathmore could’ve talked to him in furtherance, he was great at that. We had no business being on trial on this dog. Now it was hopeless.
Then the DA got up. He sounded like he had learned English an hour earlier. He argued there was ample evidence the defendant was in the van as if that in any way addressed the defense. He was horrible. God they always gave you hope. But even he wasn’t stupid enough to forget to repeatedly tell the jurors that the van had company lettering on it. Fucking court reporter.
But thus are miracles sometimes born and I went back to my office feeling better than I had in a while about my chances. I sat at my desk and waited. And waited. Nothing. I went to Conley’s office where Television was showing the Tula funeral, paid my respects, and came back. Nothing. Dane came in and we talked forever. Still nothing. Eventually it got to the point that I just wanted to hear something—anything. People were congratulating me on keeping them out so long but I didn’t care. I wanted it over with.
I just wanted sleep. Let the Dozen say what they wished, just say it already so I could go home and sleep. I loved sleep then. I was so ready. Although I was a little worried about what I would dream. “ . . . there she is. She’s a beauty huh? A replacement for Tula I suppose. See that? That’s Grade A cow placenta we’re using. Only the best. That’s what they paid for, the best. They? The parents who else? You know who the parents are going to be? They’re waiting patiently outside the door. An eighty-year-old woman and her genetically engineered grandmother. Do you want to know what was inside that hole on Canal? Want to know why Dom took a header off that overpass?”
“That was pretty self-explanatory as I recall.”
“Do you want to see the flight though? Won’t take long. What else do you want to see? Just give me the word and it shall be yours to view. Do you want to know what’s going to happen. I can show you. We can skip ahead. You trust me?”
“Leave me alone.”
“Mary’s sure been quiet lately, huh?”
“Shut up.”
“How’s your ear?”
“Fine, never better.”
“Why lie? Oh I almost forgot. This conversation between us is being taped for quality control purposes. If you’d like we can have the videotape transferred to DVD. Would you prefer that? If so, you must exercise that option within the next 23.2 seconds or have it irretrievably lost. Because here’s the future whether you want to hear it or not. Everybody leaves. Everyone. Just be patient as every day the wait becomes shorter. Think it was a good idea to watch that funeral?”
The funeral was held in Conley’s office where the pink now seemed more like laundered blood red. Television had broken into its regularly scheduled programming to show the procession of the tiniest casket I had ever seen. There were hundreds in the church including the cameraman. Not cameramen because one network had secured exclusive rights to the St. Patrick’s Cathedral service. Atop Television lay a transparent jar with the money for the pool. The cork stopper on top couldn’t fasten against the weight of the bills. I could make out a hundred. Everyone was crying. The camera would cut to someone for a close-up then a yellow caption would appear below the weeping face identifying it in relation to the casket’s occupant. The whole thing really was a procession. It kept building and growing to a promised crescendo. I turned away from the images but didn’t leave the room. I didn’t want to look back.
I didn’t want to look back that night on the bridge either. I knew Uncle Sam and the chimp were following me and I knew the distance between us was shrinking steadily. I also knew that if I turned around and faced them directly, it would all become aerated and apparent and I was sure I didn’t want that so I just kept walking.
But after the chimp did what he did my attitude changed. So when I later came across the old man in fur I didn’t take my eyes off him for a second. At least not until he executed a perfect 360° spin that dropped him into a sudden split from which he quickly sprang up and started shuffling towards me in an exaggerated gait. I turned and ran away until I almost ran into Angus.
The way I almost ran into Dane after I left the funeral in Conley’s office and returned to my office to keep waiting. He was leaving my office, his back to me.
“Don’t split,” I said. “Here I am.”
“What happened?” he said.
“They’re still out,” I said.
“How long they been out?”
“Couple hours.”
“Very impressive.”
“Forget that. What did you mean the other day when you said you were dying?” I said as I closed the door.
“How come your officemates are never here?”
“Julia’s around. Greene splits early, right from court if he can swing it. I’ve got to say, you look good for a dying man.”
“Looks deceive, often. You on the other hand look quite horrible.”
“Lack of sleep. Will you take over Hurtado’s case for me now so I can go get some?”
“Only if you’re going to win. I despise losing.”
“It’s inevitable. Now, are you dying?”
“You really want to know?”
“Only if the news is pleasant. I want to enjoy these last few moments.”
“It’s not pleasant. I’m dying. Every day and every minute of those days I get closer to my end. The worst part is n
ot knowing what I have. I don’t know if I have brain cancer, a gunshot, or an Acme safe to the head, the only thing I know for sure is it’s coming.”
“I see, you’re not dying at all. I think I’m disappointed.”
“I can feel it happening too. I feel myself drifting into senescence. Don’t you? Every day I wake up against my will, shave my hairy face, put on one of these monkey suits and come in here to exchange language with strangers. What kind of life is that? That’s not living. That’s dying, slowly I admit, which is even worse. This is a prison.”
“No it isn’t. You’re free. You can effect change. Do something that won’t make you feel that way. Go into Swathmore’s office right now and quit. Then on Monday you won’t have to wear that monkey suit or clip those hairs. You can prepare to climb Mount Everest or whatever your heart desires.”
“Do I look like a fucking dilettante to you?”
“Fine, you’re a free agent, accomplish what you wish.”
“Ahhh, thank you, now you’re getting it. You see I can recall a time when I didn’t feel this way at all, maybe the only time in my life I didn’t. It was when I was in the midst of providing that guy perfect representation. The pursuit of perfection Casi. I’m going to pursue it again in the form of a perfect crime and I’m going to convince you to join me in this heist. When I walk into that building to seize that thirty million I guarantee you I won’t feel like I’m dying. And when we execute our perfect plan perfectly and walk out of there with said money I further guarantee that you will feel more alive than you ever have. In fact the very notion of alive will mean something different to you than it did before you entered that house. You will, for the first time, experience the fact that life is nothing shy of a miracle. Do you feel that way now? Of course not. You’re living in a Platonic cave with blinders on to boot. Come with me to the light, Casi. Don’t stay in the dark with the sightless others. You genuinely feel you belong with them? I dare say you don’t and that you know this viscerally. You’re as capable of perfection as I am. Join me in this and learn what it means to truly exhaust a potentiality.”
A Naked Singularity: A Novel Page 38
