by D. W. Buffa
Harlowe gazed out at the faces of the crowd, all of them straining forward, eager to hear what it was that the prosecution might have missed. He played with their surprised uncertainty, this sense he had now created that the outcome of the trial might not be quite as inevitable as everyone had thought. It had come to him in a flash of inspiration, an opening, if a very small one, in what had seemed a perfect chain of evidence, a missing link, something he might use.
“Everyone is going to testify, all these witnesses for the prosecution, testimony that will keep us here for weeks. They’re going to tell you what the district attorney said they would tell you. They’re going to tell you what they saw, what they heard, what they discovered, and what it meant; they’re going to tell you so much you may not be able to keep track of it all. They’re going to tell you everything, except the most important thing. Not one of them is going to tell you he was actually a witness to what the defendant is charged with doing. Not one of them – not one – is going to tell you that he saw Daniel Lee Atkinson murder anyone. They’re going to tell you a lot of things, but they’re not going to tell you that, because they can’t.”
Chapter Three
The blinds on the windows in Walter Bannister’s office were opened only in the evening, when he was alone and working late. Watching the sun sink below the flat edge of the Pacific and then melt into the copper colored sea, he remembered what it had been like, years before, when he was still a boy and every summer was the one that would never end and the only thing he had to think about was how long after dark he could stay on the beach before it was time to go home. He was often there, working alone in his office, sometimes close to midnight, though it seldom had anything to do with the trial over which he happened to be presiding.
Some trial court judges, perhaps most of them, carried what little law they knew in their heads, ruled their courtrooms with a gruff voice and an iron hand, and left to the appellate courts the job of correcting any mistake they might make. They seldom kept a jury or a lawyer past five in the afternoon, and thought they were overworked; they looked forward only to retirement and complained their pensions were too small. Walter Bannister loved every minute he spent in court and never thought about quitting. He studied all the time; read books about the way the law first came into being; read about the American Constitution, how it was formed, how it was ratified; read all the most important decisions of Chief Justice Marshall, the ones that formed the basis of the union. But more than anything, he read everything he could find about the criminal law.
He had become fascinated by the way criminals behaved, why they did what they did. He wondered whether it was some sudden, temporary abandonment of all restraint, a devastating moment of unbridled rage, that made the murderer kill, or whether there was something deeper than that, a motive which went well beyond the kind of anger that everyone felt at one time or another. It was often said that the criminal, the murderer, was abnormal; that he suffered from a personality defect, though not of the sort to make him, in the legal definition, insane. The murderer was responsible for what he did. But that made the murderer sound reasonable, fully capable of measuring in advance the consequence of his actions. If that were the case, murder would be as reasonable as anything else, a choice among several, each one as good as the others. No one wanted to say that, so the experts talked about anti-social, or asocial, types, terms which, vague in themselves, indicated only that something was not quite right. It gave everyone the comfort that, whatever these people were, they were none of them like us. After more murder trials than he could count, Walter Bannister had begun to doubt if any of this was true.
The blinds were still closed shut when Hector Alfonso and Michael Harlowe walked in. A porcelain lamp on the judge’s desk and two floor lamps next to the wall behind them softened the rectangular lines of the room and made the otherwise ordinary furnishings – the plain, unremarkable desk and the stiff wooden chairs – seem almost comfortable. Behind the chair where Bannister waited, were three tall stacks of books, the only volumes to be seen. The usual metal shelves lining the walls with the endless appellate reports, the dust covered case law that stood a monument to illiteracy in the chambers of most of Bannister’s brethren on the bench were noticeable by their absence. If he needed a report, an appellate opinion, the law library was just down the hall. Instead of books, the walls were full of pictures, most of them taken in the 1920s and 30s, black and white photographs of Los Angeles when the orange groves ran out to the ocean and the ranchers thought themselves fortunate to draw water from a well. It was how his family had started, large landowners when some of the land was worthless and all of it was cheap, before water was brought from the other side of the mountains and before anyone discovered oil, and when the movies were still as silent as the endless coast was at night.
“I wanted to see you both to tell you how grateful I am to have such two fine lawyers trying this case,” said Bannister as he motioned for them to sit down. “Your opening statements were, both of them, as good as any I have heard.”
They felt, in his presence, like schoolboys praised by a teacher they revered.
“I’ll tell you how good it was.” Leaning back at an angle in his chair, he moved his index finger three times in a circle as he recalled what he had thought at the time. “You could have changed places and you would have done the same thing the other one did.” He looked first at Harlowe. “If you were prosecuting, you would have done the same thing, exactly the same thing, as Hector did. And yes,” he said, turning to the district attorney, “you would have done exactly what Michael did, if you had been the attorney for the defense.”
The two lawyers looked at each other, not quite certain what he meant. Bannister explained their confusion.
“We think too much in categories. You’re a prosecutor; you’re a defense lawyer. You build the case for conviction; you try to tear it down. That’s what you have trained yourselves to do. They don’t do it that way in England. Some days you prosecute; some days you defend. In one trial you make the case for the prosecution; in the next trial you argue against conviction. That’s why, on the average, they’re better lawyers. I spent a year there, just after law school.”
Bannister’s eyes, which turned different shades of green, a bright emerald color at one extreme, and nearly gray at the other, lit up at the memory. He wanted to get it exactly right, what he had seen, and what he had felt about it at the time. It was difficult to know precisely how to begin, or more importantly, how far he should go. There were limits to what he could say, how far he could trust anyone with the truth, especially two lawyers who practiced in his court. The lines in his forehead deepened as, slowly and methodically, he dragged two fingers across his smooth shaven chin. A smile started, and died, at the corner of his mouth.
“I had a trial last week - doesn’t matter who the lawyers were. The prosecutor was someone from your office,” he said, nodding across at Hector Alfonso. “She’s been at it for years; good, competent, knows exactly what she’s doing.” He paused, troubled and even slightly astonished at what he was about to say. “If she had been the defense attorney, the defendant would have been acquitted. He should have been acquitted. If it had been a bench trial, if it had been tried without a jury, I would have found him not guilty without any hesitation. He was innocent. There isn’t any question. But the defense attorney was in over his head, a young man barely out of law school, working in the public defender’s office; probably the only job he could get. He might be a good lawyer one day, but he certainly isn’t that now. Fortunately, it wasn’t a serious crime, simple theft….” Bannister’s eyebrows shot up, sudden emphasis for what he thought an undeniable fact. “Nothing was stolen. The woman who claimed to be the victim was lying. She wanted to get back at her boyfriend, the defendant, the one she accused, for leaving her for another woman. The jury found him guilty. They didn’t really have much choice. The defense attorney was tripping all over himself, asking questions that had no meani
ng and forgetting to ask the questions that did. I was able to do something, not to make it right - it was too late for that – but at least I could put him on probation and not have to send him to prison for the next ten years.”
Bannister got up from his chair and, turning around, opened the blinds a little, just enough to look outside at the sky, covered in a stagnant dusty haze. He shrugged his shoulders at the utter futility of what he had done.
“You should have seen the brazen way she told that story, told it as if she believed every lying word – and maybe she really did believe it, with all the rage and resentment that had gone into it – had lied herself into thinking that it had really happened, because she knew of course that he had stolen something from her, something far more valuable than what she reported missing, stolen all her hope and trust,” he added in a soft, lilting voice, realizing now, for the first time, what must have been her motivation.
“I was almost to the point of saying,” he remarked in a self-deprecating tone as he turned back around, “that you sometimes see things in court that make you think murder might in some cases be justified.” He banished the thought with a hurried motion of his hand. “The point I wanted to make, what I started thinking about while I watched the two of you, is how important it is, how essential for the fairness of a trial, to have the lawyers on each side fairly matched in their abilities. We ought to do what the British do – we should, but of course we won’t; we’re too much in the habit of what we do – and assign cases at random among counsel, have lawyers take whatever side the court orders them to take. You wouldn’t have what we have now, two different systems of justice, one for the rich who can afford to hire whom they choose, and one for the poor who have to take what they’re given, when what they’re given isn’t very much.
“The poor aren’t doing too badly here,” offered Hector Alfonso, turning to Harlowe with a quick, eager grin.
“No, whatever happens, the defendant won’t be able to complain that his lawyer wasn’t up to the job,” replied Bannister in full agreement. He dropped into his chair and tapped his fingers briskly on the hard black surface of the desk. “But this is the exceptional case, a brutal murder and the public in the mood for a lynching. I can ask a Michael Harlowe to step in and help preserve the integrity of a jury trial in a criminal case. I can’t do that in the thousands of other cases that come through every year. I can’t even do it in the dozens of murder trials over which I have to preside. Though perhaps I should - a murder case like this one is easy enough to try.”
There was mischief in the judge’s eyes, a look that dared them to guess his meaning. Not that the meaning was that difficult to know, but that it was so seldom mentioned, even among those who spent their lives in court.
“It’s true, isn’t it, Mr. Harlowe – a case like this is the easiest kind to try.”
Harlowe did not even want to guess. “I’m not sure I….”
“No, don’t be embarrassed. It’s my fault; I shouldn’t…, but still. Let’s leave this case out of it. I’m certainly not prejudging anything. Just as a general proposition. Someone I know, someone I’ve known since law school, told me that the easiest cases he had as a defense lawyer are the ones where his client is guilty and the evidence against him is overwhelming. ‘Nothing to lose,’ is the way he describes it. You go to trial, you do your best, and if the jury comes back with a guilty verdict you don’t have to think twice about it. The hardest cases are the one in which you know with as much certainty as you’ve ever known anything that your client is innocent and that if you don’t win, if you make some mistake, if you forget to ask the right question, or if you ask the wrong one, if the jury doesn’t like you, if – well, if a thousand different things – the jury finds him guilty you have to live with that for the rest of your life, the knowledge that someone you should have saved, an innocent man, is going to spend the rest of his life in prison, or die at the hands of the executioner, for something he did not do.”
Bannister looked away, started to think of something else, and then, suddenly, turned back and with a strange intensity searched Harlowe’s puzzled eyes.
“Is that why you do it, what you like most about it? – The risk, the danger, the feeling of always being that close to having someone you’re supposed to help suffer if you make a mistake. Is it what a surgeon feels, knowing that if his hand slips just a little, if a cut he makes with his knife is not quite precise, the patient dies instead of lives? I never practiced criminal law, I didn’t try any cases in court, and so I don’t have that experience. I just sit here every day and observe,” he said, as if he felt a need to apologize, “which isn’t the same thing at all. There is no risk, no danger, no feeling what things like that are like.”
He smiled to himself, a little embarrassed at what he had done, and yet grateful that he had had someone to listen.
“I’ve sometimes even thought it would be good for judges to know what it was like to be a criminal. Before you sentence someone to twenty years in prison, it might be good if you spent just a week or so in the county jail.”
Hector Alfonso said it without thinking, the immediate response, the logical next step, as it were, to what had just struck his ear.
“Or maybe commit a crime, get taken into custody and interrogated by the police.”
“That might make sense as an abstraction, a kind of academic exercise where everyone knows nothing is going to happen,” replied Bannister in a way that suggested this was not new to him. “It is a little like going without food for a few days because you want to know what it feels like to go to bed hungry at night, what it feels like to starve. But it’s ludicrous. You don’t eat for a few days, live on bread and water, and then, all pleased with yourself that you now know what it’s like to starve, you go out and have a steak dinner. What’s missing is the knowledge – the awful certainty – that you’re always going to be hungry, that there isn’t any meal to look forward to after a few days of minor inconvenience. You’re never going to have enough to eat, you’re going to die hungry: you’re going to starve to death. No, to do what you suggest, to make it real, it couldn’t be some minor offense without any harm to anyone, the sort of thing that could be excused as an interesting part of a judge’s education, a teaching exercise carried out with an entirely beneficent intent. If you really wanted to feel what it was like to be a criminal, someone who, remember, has abandoned all hope of protection from the law, you would have to commit some terrible act of violence, murder someone, so that the only alternative is escape or the most extreme penalty the law allows: life in prison or execution. You would have learned it then, what it was like to be a criminal, and you would wish you never had.”
“The second tree in the Garden,” mused Harlowe, as he crossed one leg over the other and sat back in his chair. Alfonso gave him a puzzled glance. “The tree of life and the tree of knowledge,” explained Harlowe. “There were two trees in the Garden of Eden. When they ate from the tree of knowledge they were banished from the Garden and the tree of life. The knowledge they gained gave them death.”
Deeply interested, Walter Bannister tapped his fingers together and stared into the middle distance.
“Yes, and if they had stayed in the Garden, if they had not eaten of the tree of knowledge, they – and we – would have remained as blissfully ignorant as all the other animals in God’s creation. We wouldn’t have known death only because we had no knowledge of our own existence. Don’t you think so, Mr. Alfonso?” he added with a playful glance at the district attorney. “Which brings me back to the matter at hand: this little trial of ours, whether there is anything we need to discuss before we start calling witnesses. Because like it or not gentlemen, we’re not in the Garden anymore, and, if this trial goes the way the prosecution says it should, we will end with one more death.”
“Yes, but the first one of the five people involved who deserves it,” said Hector Alfonso with more heat than he intended. He immediately apologized. “Sorry, your Honor; I
didn’t mean to….”
Bannister held up his hand.
“If the evidence proves to be what you said it is, no one is going to disagree. The evidence is the question. I’ve seen the photographs, I’ve warned the jury about them. We’ve taken up the question of admissibility in pre-trial motions. Mr. Harlowe will object to their introduction and, as I’ve done already, I will rule against him. And I trust you, Mr. Alfonso, will let those photographs speak for themselves and not add the kind of incendiary remarks other, less competent prosecutors, might try to make. All this is clear. What I need to make clear now is that, within limits, I am going to allow the defense considerable latitude. Where there is the slightest doubt on an issue, the benefit of that doubt goes to the defense. That’s the reason I allowed Mr. Harlowe to ask questions on voir dire I normally would not allow at all. Daniel Lee Atkinson seems almost certain to be found guilty, which is all the more reason to make sure he has a fair trial.”
Bannister looked around the shadowed room like someone searching for support, an understanding of the deeper reason for things that on the surface might appear to make no sense at all.
“You both know this is no favor to the defense. The only appeal from a guilty verdict is the rulings made on the side of the prosecution. The best trial is a fair trial in which the verdict stands.”
