by D. W. Buffa
Harlowe did not want to finish the question, ask her if she had seen Daniel Lee Atkinson slaughter her two friends and their two children. He did not have to ask: she understood the question. A slight, downward movement of her head, like a long, sad goodbye, was the only answer she had to give.
“Thank you,” said Harlowe in the whispered silence of the crowded courtroom. He looked at Walter Bannister who was leaning forward, ready to tell the witness that she was excused. “That’s all I have, your Honor.”
It was now only a question of the formalities required in court. Waiting until the witness, watched with wordless sympathy by everyone except the two lawyers and the defendant, walked down the center aisle and went out the double doors in back, Bannister asked Hector Alfonso if he wished to call another witness.
Alfonso was on his feet, shoulders held square, his chin pushed forward, like a soldier on parade. It was the way he thought of himself at a moment like this, at the end of the case: a soldier who had done his duty and, so far as he understood what his duty was, done it well. His dark eyes full of confidence, he announced in a full-throated voice:
“No, your Honor. At this time, the prosecution rests.”
Walter Bannister betrayed no emotion of any kind. He seldom did during a trial. He concealed behind a mask of impartial benevolence his deep disappointment in Hector Alfonso’s performance. It seemed inconceivable that through weeks of testimony, dozens of witnesses, the prosecution had managed to overlook the most obvious, and the most damning, fact of all. He was tempted – he heard inside his head the question being asked – to ask Alfonso if he was sure there was not just one more witness he wanted to call, or perhaps one who had already testified he wanted to call back: the woman who had taken the 911 call, for example. He was tempted, but he did not do it. Instead he waited, hoping the district attorney would suddenly realize what he had missed. But he could have waited all week and Alfonso would still not understand what he was trying to tell him with this long, silent stare.
“Very well,” he said finally. “The prosecution rests.” The next words were so automatic they almost spoke themselves. Bannister reached for the thick case file to take with him on the lunch break. “Mr. Harlowe, is the defense ready to proceed?”
The defense had no witnesses it could call. Bannister had known that from the beginning. With all the confidence he could pretend, Harlowe would rise, face the bench and, though with a little less posturing, follow Hector Alfonso and announce that ‘the defense rests.’
“Mr. Harlowe,” he heard himself ask again. “Does the defense -”
“The defense calls the defendant, Daniel Lee Atkinson,” said Harlowe in what seemed to Bannister a hurried, almost impatient voice. He did not wonder that this was something Harlowe wanted to get through as fast as possible. He was the only one to notice. The rest of the courtroom was suddenly alive with whispered questions and puzzled glances. No one had expected this. No one had thought that Atkinson would dare testify. He was guilty and everyone knew it. What kind of story would a killer tell, what kind of lies would he invent? Only Hector Alfonso was enthusiastic.
It was all he could do not to smile. The case was airtight; he had all the evidence he needed. This was worse than desperation. He knew that Harlowe had been left with no choice; that he never would have called Atkinson to the stand if Atkinson had not insisted. There was nothing the defendant could say that Alfonso could not use against him: every fact he denied would be a new chance to throw in his face all the evidence that proved it, another opportunity to remind the jury what the prosecution’s witnesses – witnesses who did not come to court dressed like prisoners and swear to tell the truth with their wrists and ankles shackled in steel chains – had said. It was a prosecutor’s dream come true: a cross-examination that would destroy the defendant with his own lying words. Alfonso almost felt sorry for Michael Harlowe.
“It’s nearly twelve o’clock,” said Judge Bannister, making a hurried calculation. “We’ll be in recess until one-thirty. The defense can call its witness then.” He waited until the jury filed out of the jury box and the door to the jury room closed behind them. “If counsel would not mind, I’d like to see you both in chambers.”
Walter Bannister was hanging his black robe on a coat rack when Harlowe and Alfonso came in. He nodded toward the two empty chairs in front of his desk, and while they took their seats opened the blinds on the window and gazed out at the city covered in a brownish yellow haze.
“It’s supposed to hit a hundred today,” he remarked. “That won’t help with the fire up in the hills: hundred degree heat and the Santa Ana winds. Firefighters have to be the toughest people around – don’t you think?” he asked, turning sideways to the window. “They all seem to love it: the fight, the danger.”
His hands were clasped behind his back, one foot a half step in front of the other. He was nodding his head, keeping time, as it seemed, to the thought that was moving slowly through his mind. The thought, whatever it was, began to amuse him. A smile full of irony slipped across the fine straight line of his mouth.
“He’s going to deny it?” he asked suddenly, darting a glance at Harlowe.
They both knew the rules. Whatever Daniel Lee Atkinson may have told him, Harlowe would have to take it to his grave. But they both knew something else as well: that it did not matter, they did not need to talk about it. The situation was plain as day: the defendant was going to take the stand and lie through his teeth. Harlowe gave the only answer he could.
“It’s his right to testify, whatever advice I may have given him.”
With his hands still held behind his back, Bannister turned until his back was to the window. That same subtle smile flickered at the corners of his mouth as he stared down at the floor.
“I don’t imagine Hector will mind too much,” he observed as he raised his eyes. “How long do you think this will take? Never mind. You’re not calling anyone else, are you? Then whenever we finish – assuming we finish today – we’ll quit then and have closing arguments tomorrow. Any questions?”
They were almost at the door when Bannister called them back.
“I’m going to instruct the jury to remember what I said at the beginning of the trial: that the fact that he’s shackled and dressed like an inmate has nothing to do with the question of whether he is guilty of the crimes with which has been charged and that it is not in any way to affect their deliberations. I don’t see what else I can do. I don’t think I can take the chance and have the chains taken off. It’s really quite unfair, though, isn’t it? I tell them they can’t read anything into it, but we keep him tied up because we’re afraid of what might happen if we don’t.”
He looked at Harlowe who had not said a word. He had filed a motion before the trial started asking that the defendant be dressed in civilian clothing, but it was pro forma, something any defense attorney had to do. The motion had been denied, and the truth was that Harlowe would have been alarmed had it been granted. He did not like sitting next to Atkinson as it was, but unshackled, with the strength he had in those bulging shoulders and vice-like hands? He would not have done that except under duress, a judge’s order, and then he might have refused to take the case. Murderers by definition were dangerous; Daniel Lee Atkinson was lethal.
“You’ve spent time with him. Do you think it would be safe now, at the end of the trial, to let him take the stand without restraints?”
Harlowe stayed silent, did not say anything; which would have been answer enough, but Hector Alfonso, sensing his discomfort, answered for him.
“The defense already asked for that, the motion filed before trial started. Your Honor denied the motion. And if there was reason to do so then, there is even more reason now. The trial is almost over. He’s heard the case against him. It’s a death penalty case. He knows what’s going to happen. He wouldn’t have anything to lose. There’s nothing to stop him if he tried to grab someone, take a hostage, try to grab something sharp and stab someo
ne. We couldn’t guarantee security, we-”
“No, you’re right, of course,” said Bannister, holding up his hand. “There’s nothing for it but to keep going the way we have. Tell me, though, Hector – what would you do? I mean, if Atkinson is as guilty as you say he is – if you were in that position, looking the death penalty in the face – wouldn’t you try to escape?”
Alfonso flushed with embarrassment. It was not a question he wanted even to try to answer. Bannister understood, and did not insist. He sat down and turned just far enough toward the window to let the light catch the side of his face.
“The law says if someone tries to escape that it is a separate crime.” He emitted a low, scornful laugh. “And Charles Dickens wrote somewhere that ‘the law is an ass.’ It should not be a crime at all, under any reasonable…,” Bannister started to say, but then suddenly stopped and shook his head. “You’ll have to forgive me. There aren’t many people I can talk with about things like this. You can imagine what most people would think about a judge who insists that a criminal who tries to escape from jail or prison shouldn’t be charged with a crime. But it’s true, you know. He’s an outlaw: literally outside the law. That’s why he’s in prison: he’s done something that made him an enemy to society and because of it he’s been made a prisoner, and, in the worst case, he’s going to be killed. At that point, doesn’t he have the right to resist, attempt to get away – the right to save his own life? I admit,” he added with a shrug, “that those who have him in their custody have the right to shoot him to prevent the escape – just like a prisoner of war – but commit a crime? I don’t think so. He’s outside the law – in a state of nature, so to speak – free to do whatever he has to do to stay alive. And if he kills someone – say a guard – trying to get away, why wouldn’t that be self-defense?”
It was impossible to know with any certainty just how much of what Walter Bannister said in the privacy of chambers he really meant, and how much was his way of getting them, two lawyers who spent their lives dealing with the law as it existed, to think about whether the law always made sense. He was an integral part of what they did – more involved in the cases tried in his courtroom than any judge they knew – but at the same time always measuring everything that happened, even the most minor points of law, by a standard that seemed to take him outside it to some world of his own where nothing was taken for granted and everything ended up a question.
“Why don’t you try that sometime,” suggested Alfonso as he and Harlowe left the judge’s office. “If you ever have a client who killed a guard trying to escape, argue self defense, and do it in front of Bannister and see what happens.”
“I know what would happen,” replied Harlowe with a quick, rueful grin. “He’d tell me the argument was fascinating, a work of great imagination, and without any basis in the law. Then he’d ask me if I had any other motions I wanted to make. He meant it when he said he couldn’t talk to many people. A judge is supposed to apply the law, not think about whether it makes any sense.”
Harlowe stopped walking so suddenly that Alfonso was two steps ahead before he stopped as well.
“You know, he’s probably the only really sane man I know. The rest of us just take whatever we’re given, follow the rules and never question what they mean.”
Hector Alfonso raised a doubting eyebrow. “If everyone started questioning the rules, then you would be right: we’d all be insane; there wouldn’t be any rules, everyone would be trying to make their own.” He touched the lapels on Harlowe’s brown jacket with a smile that was half a warning. “Walter Bannister is unusual – the exception, if you will – always thinking, always trying to get to the bottom of things. How many people, how many lawyers or judges, do you know like that? But for all his questioning, he never does it in public. What you said a minute ago – if you tried the argument about self-defense in an escape case, the argument he just made. There wouldn’t be a moment’s hesitation. Whatever he might think about it, however he might act in theory, he’d never give so much as a hint that the argument had any validity.”
He tapped Harlowe on the chest twice in succession and laughed with the knowledge of a secret he that had just occurred to him.
“What he just told us in chambers, told us in private. He didn’t have to ask us to keep it between ourselves; he knows us well enough to know we will. That must be what it is like for him, presiding over a trial. He sits up there, following everything with more attention than most of the lawyers trying the cases in front of him, ruling on every motion, every objection, a perfect model of judicial restraint, and the whole time what is going on in his head is what we just heard: a razor sharp critique, in which everything he sees, everything he hears, everything he himself has to do, is found wanting, defective in all its parts and worse than useless as a whole. He may be the only sane man we know, but it must sometimes drive him crazy.”
There was no sign of that, or anything like it, when Walter Bannister, punctual as always, entered the courtroom at precisely one-thirty and took his place on the bench. In the middle of one of the most gruesome multiple murder cases taken to trial in years, he appeared completely untroubled. His gaze was clear and steady, his voice calm and even reassuring. There was not a mark of displeasure on the balanced features of his face when he glanced first at Daniel Lee Atkinson, sitting bound and shackled in his chair, and then at the bailiff, standing off to the side, and ordered him to bring in the jury. While the jurors filed into the jury box, taking, each of them, the same chair they had occupied for weeks, Bannister opened the case file. He found the brief handwritten notation he had made just before lunch, reminding himself what was going to happen next in the trial, and then closed the file and looked at Harlowe.
“The defense is going to now call its first witness, the defendant – Is that correct, Mr. Harlowe?”
There was an audible groan, a kind of unconscious protest, a collective expression of disapproval. Harlowe had just risen from his chair, but he turned his head at the noise from the crowd. Bannister stopped it cold.
“No more!” he commanded in a voice that carried so much authority that he did not need to shout. “This trial has received much attention and too much speculation. I’m not going to repeat again that the defendant, like everyone in this country charged with a crime, has a right to the presumption of innocence. If there is anyone who doesn’t think we should give him that, stand up and say so. Anyone? No? All right then. We’re agreed. There will be no more outbursts. None. Am I understood?”
Hector Alfonso, who had an eye for such things, could almost feel the crowd shrink into itself, grow smaller, change from a mob with a mind of its own into a gathering of separate individuals. Walter Bannister was irresistible.
“Mr. Harlowe.”
“Yes, your Honor. The defense calls the defendant, Daniel Lee Atkinson.”
The crowd watched in grim silence as Atkinson shuffled forward, the chains round his ankles producing an eerie, hollow noise, a strange reminder of imprisonment and what that meant. Clumsily, one hand trailing the other at the end of a chain, he took the oath and settled himself on the witness stand. The jury had been able to see him clear enough during the trial, but those who had come to watch the proceeding or to report on them had seldom seen anything more than his back as he sat, day after day, at the counsel table next to his attorney. Seeing him, as it were, for the first time, he looked more the killer than they had thought. With his heavy forehead and sunken leaden eyes, with his crooked mouth and smashed up nose, he seemed the epitome of brutal passions and a sick, twisted mind. The jurors, especially those in the front row, instead of leaning forward to get a closer look, the way they had done with a number of the state’s witnesses, drew back and sat pressed against their chairs.
“Would you please state your name for the record,” Harlowe began. But Bannister did not let the witness answer.
“Just a moment. I think I need to remind the jury what I’ve told you before. Let’s be clea
r about this. The defendant is dressed and shackled like a prisoner because he is one. He is being held in custody pending the outcome of his trial. It does not mean that he is guilty of anything.” Bannister bent forward, as close to the witness as he could. “Someone is charged with a serious offense – murder. He has been arrested, taken into custody, locked in a cell. That’s because of what the police have done. That’s what the police do: arrest people they believe have committed a crime. That’s what they do; it isn’t what we do. We decide – a court of law, a jury – we decide if the police are right. We decide – you decide – whether someone the police have put in jail deserves to be there. In some countries the defendant is not allowed to sit in open court. He’s put into a glass box, or some other confined space. We confine the defendant in a different way. None of this has anything to do with the reason we’re here. You need to remember that. Now, Mr. Harlowe, if you’ll begin again.”
Harlowe heard in his memory the voice of Hector Alfonso describing the double life Walter Bannister had to live, what he was compelled to say in public and what he privately thought. The judge was not the only one. He now had to do the same thing himself: pretend to believe the answers to the questions he had to ask. He began with the obvious, the question everyone had to their own satisfaction already answered.
“Did you murder Jonathan and Monica Lewis, and their two children, Justine and Joshua?”
“No, I did not,” replied Atkinson in a coarse, dull voice that fit perfectly the crowd’s preconceptions. Then he added, “I tried to stop it.”
For the first time, Bannister used his gavel. The angry, murmured protest turned to stunned silence.
“You tried to stop it?” asked Harlowe.
He had taken a position at the front corner of the counsel table. It was an unconscious reaction, nothing he had thought of before, this decision not to go one step closer, not to get any closer to the witness than he absolutely had to. He tried to mask his own disbelief, his incredulity. It took all his self-control to look at the witness and ask him to explain.
