The Last Man: A Novel

by D. W. Buffa

  Walter Bannister scratched his ear. He had been hearing the same thing for years, the false honesty of people whose only thought was what they were afraid other people might think. You were supposed to be impartial, ready and willing to suspend all judgment until all the evidence had been heard, and the good Mrs. Smart could not imagine, and would not have been able to admit it if she had, that she was in this respect any different than anyone else. They all lied, and they all thought they were telling the truth; they all thought they were reasonable, and you could not have found more people willing to repeat what others believed if you had searched an asylum.

  One question after the other, questions that, if you listened as closely as Bannister did, invited concealment of the very bias they were supposed to expose, were asked and answered, all of them leading to the inevitable and predictable conclusion that the juror had no greater interest than ensuring that the accused was given a fair trial. It was a fifth grade civics lesson given under the shrewd and seductive direction of Hector Alfonso’s approving smile.

  Then it was the turn of the defense, and Michael Harlowe began with a lie of his own. His hands clasped behind his neck, he leaned back in the hard wooden chair and looked up at the ceiling as if dazzled by his good fortune. Slowly, and as it were reluctantly, he shook his head, and then, a moment later, gave the first juror a long sideways glance, full of kindness and, at the same time, suspicion.

  “In other words, Mrs. Smart, you think Driscoll Rose is completely innocent: You don’t believe that he’s responsible for the death of Gloria Baker. Is that correct?”

  She was used to pleasing customers. Her first reaction was to agree; her second reaction was confusion. Her mouth hung half open, voiceless.

  A relaxed, if somewhat cynical, grin twisting the corner of his mouth, Harlowe got to his feet and walked slowly toward the jury box.

  “I’m not here to embarrass you; I’m really not. But the district attorney was very emphatic, the way he insisted on impartiality. And one of the questions he asked was whether you would withhold judgment until you heard all the evidence.”

  “Yes,” she quickly replied; “and I said I would.”

  Harlowe was standing just a few feet away from her. He took a step closer, close enough that she could see in his face the mirror of her own confusion.

  “You said you hadn’t formed an opinion in this case, that despite the fact that you’ve read about it in the papers, seen the coverage on television, know who the defendant is and know all about the victim, you have a completely open mind….”

  “Yes, that’s true,” she insisted, sensing, and beginning to resent, a doubt about her honesty.

  It was just what Harlowe had hoped for.

  “No one is accusing you of anything, Mrs. Smart. But that doesn’t feel good, does it? – To be accused of something you didn’t do, forced to defend yourself when you’re innocent.” He let that thought, the possibility that someone charged with something, someone like Driscoll Rose, might actually be innocent, hang there, pregnant with all the doubt he needed, for a long silent moment before he continued. “What I’m driving at it this, Mrs. Smart: If you don’t have an opinion about the case, if you can really be impartial, if you’re going to hear all the evidence before you decide on a verdict, then – because there has been no evidence – you have to believe that Driscoll Rose is an innocent man, don’t you?”

  She had only a vague idea what he was asking her. And while she thought he must be wrong, she suspected he must be right. Then she remembered.

  “The presumption of innocence - Is that what you mean?”

  “That’s exactly what I mean. It isn’t enough to say that you won’t make a decision until the end of the trial. You have to understand, you have to believe, that Driscoll Rose is innocent; innocent until and unless the state proves – proves beyond that famous reasonable doubt – that he isn’t.”

  Michael Harlowe was good, as good as any lawyer Walter Bannister had seen. With just a few short questions, he had exposed a bias the juror had not known she had, and, even more importantly, made her think that the presumption of innocence was something in which she had always believed. Bannister admired things that were done well, especially when they had to do with what most others ignored. Every lawyer, at least every lawyer who tried cases in court, understood that jury selection was important, but there were not that many who understood why. Most of them did not even know there was a question. They assumed, like most of the public, that the whole purpose of jury selection was to discover any bias a prospective juror might have and to dismiss anyone who could not be impartial. They thought a trial only started when the jury was sworn and the first witness was called to the stand; they did not understand that the trial, and in many ways the most serious part of the trial, started with the examination of the first juror called into the box.

  Anyone who watched Michael Harlowe work would have known that. It was how he had won so many cases, convincing a jury to return a verdict of not guilty for defendants no one, including the members of the jury, thought were really innocent. It was the way he talked to them on voir dire, the way he explained their obligation to hold the prosecution to the highest, most stringent standard of proof; the way he made them promise, without quite knowing that they had, never to vote to convict someone, even someone they were convinced must have done it, unless the prosecution had proven every element of its case. Harlow knew what he was doing, but he had another advantage no one can teach and no amount of money can buy. A juror might hate Harlowe’s client, the way every juror in the murder trial of Daniel Lee Atkinson had hated him, but no one who served on a jury ever hated Harlowe. He was too likeable, his face too friendly, too open, for that. Juries, forced by the sheer weight of the evidence to bring back guilty verdicts, often looked at him as if they thought they should apologize for the necessity under which they had acted.

  As Bannister listened to Harlowe’s questions and then watched the response; as he followed with growing admiration the way, step by step, he established a new degree of trust with first one juror then the next; he found himself wondering whether the jury would feel that same reluctance at the end of this trial, when they brought back a verdict of guilty against Driscoll Rose, as he had no doubt they would.

  Jury selection lasted the better part of a week. Finally, a jury of five men and seven women was sworn and Judge Bannister gave the first set of instructions on what they were there to do. If Michael Harlowe was good at making a jury think he was something they could trust, Walter Bannister was as good, or better, than anyone on the bench in making a jury, and not just a jury - everyone in the courtroom – believe that what was about to happen, the trial that was now about to commence, was the most important public responsibility they would ever be given. And just as Harlowe owed much of his success to how likeable he was, Bannister owed much of his to nothing more complicated than his manner. Everything about him, from the way he held himself to the look in his gray green eyes, set him apart as that rarity in the modern age: a serious man who treated others as if they were serious as well. When he walked into court, jurors without realizing it sat up and worried they might not have dressed with sufficient formality. Even Hector Alfonso, who did it often enough anyway, straightened his tie. And then there was his voice, a gentle baritone that spoke intelligence and kindness, a voice that held you in its gentle grasp and made you certain that every word he spoke was true.

  “Ladies and gentlemen of the jury, you’ve now taken the oath, sworn to listen to all the evidence; sworn to be impartial, sworn to reach a just verdict based solely on the evidence offered at trial. A man’s life is at stake here. The defendant, Driscoll Rose, has been charged with the murder of Gloria Baker. The defendant has entered a plea of not guilty. That means that he denies committing the crime with which he has been charged. He has, in other words, asserted his innocence. Let me make this as plain as I know how. The defendant says he is innocent, and you must believe him. You must cont
inue to believe in his innocence throughout the trial. That is what the presumption of innocence means.

  “The prosecution will present evidence which in its judgment will prove the defendant’s guilt. You should doubt every piece of evidence the prosecution offers. You should wonder whether what the prosecution insists proves a fact proves that fact at all. You should ask yourselves what other explanation there might be. You should, in other words, constantly ask whether there might be a reason to doubt anything the prosecution says.

  “I am now going to say something that will surprise you even more than what I have said already. You are not here to decide what happened the night Gloria Baker was killed. You are here to decide whether the state can prove beyond a reasonable doubt that the defendant committed murder. Despite what you may have read in books or seen in movies, you are here not to sit in judgment on the defendant, but on the prosecution. You are not here to decide whether you believe the defendant is guilty; you are here to decide whether the state has proven it. This distinction, ladies and gentlemen, is the most important one there is. It is the entire foundation of the criminal law.”

  Michael Harlowe tried hard not to smile.

  Later that day the two lawyers made their opening statements, a preview from their different perspectives of the evidence that would be presented during the course of the trial. The flamboyant and gregarious Hector Alfonso was certain that the jury after hearing all of it would have no choice but to convict; the relentless and seemingly modest Michael Harlowe was convinced they would have no alternative but to acquit. That evening, in the privacy of his journal, Walter Bannister wrote down things that would have astonished and troubled them both.

  “The trial has finally started. After waiting for months, it’s finally come. Has anyone ever been in my position: presiding over the trial of a man accused of murdering a woman for whose death you are responsible? It is a strange feeling, a kind of power, knowing things about what happened that no one else knows; watching the lawyers go about their business, trying a case that should never have happened. It’s like watching a movie based on the life of someone you know, knowing that you are the only one watching who knows they got it all wrong.

  “It was not difficult to make certain that the case would be tried in my courtroom and not in front of some other judge. Everything that has happened is my responsibility and I am not going to allow anyone else to finish what I started. I have to be sure of the outcome. It was almost funny, the look of relief on their faces, when I told my good friends, my honorable brethren on the bench who think only of their golf game and their retirement, that unless any of them had a strong desire to handle the case themselves, I would take the murder trial of Driscoll Rose. They were afraid of it, afraid of being caught in the middle between the district attorney, who sees this trial as just one more step on the road to becoming governor, and that part of the Hollywood crowd more concerned with what a murder conviction will do to the town’s reputation than whether one of their own is guilty.

  “The trial is mine, and now I get to sit there and watch the lawyers work, the way a child watches a puppet show. I wrote the script, I decided on the story, and now, the puppets all in place, I pull the strings. It is a false analogy. There are no puppets, there are no strings. It is instead a short story by someone like Borges: each character, driven by the necessity of his situation, acting out his part, unaware that what he thinks is ‘necessity’ is in reality the invention of someone else, someone they would never believe could possibly be involved. Whether it is the God of revelation, or the Unmoved Mover of Aristotle’s physics, something starts the world in motion. I started this - caused one woman’s death - and now I get to watch the zealous ignorance with which everyone else grapples with the problem of how it all happened. Is that why God created the world: to marvel at the stunning stupidity of human beings?

  “If I knew nothing about what happened, I wonder what I would think. It’s a trial like any other if you change the names; a young woman murdered, a rejected former lover charged with the crime. But change the names back, put in two movie stars, and suddenly no one can get enough of it. Roger tells me that the demand for the old movies of Gloria Baker is overwhelming, and that a couple of the television networks are planning to produce films about the murder. You can sell anything with murder and celebrity. Roger claims to be appalled at that, and perhaps he is, but only because he seems to have had a genuine affection for Gloria Baker and the loss of Driscoll Rose is costing him money.”

  Bannister put down the black fountain pen and slowly read what he had written. He did not like it. There were too many false starts and too much indirection. He began to scratch out the offending lines, hoping in that way to become more direct and more concise. Then, suddenly, calling himself a fool, he began to laugh. No one was going to read this. Why make corrections? What dismal discipline to worry whether what would never see the light of day was well-written! It was both the strength and the failure of his character, this strange and unrelenting demand for doing nothing unless he could do it well. No one was going to read this? No one was going to pass judgment on what he had written? What difference did that make? The standards by which he judged himself had always been higher than anyone else would have thought to impose.

  It was at this precise moment that he realized that there was always the possibility that someone might read it after all. If something happened to him – if he died – someone would find it wherever in the house he had hidden it. Turning in his chair he stared out the window at the moonlit back lawn and the dancing shadow of the palm trees on the smooth, unruffled surface of the pool. Would it matter, after he was dead, if the world discovered that in the most serious sense his life had been a fraud, that he had come to doubt – no, not to believe at all – all the things that as a judge he was supposed to represent; that he had spent half his time on the bench wishing he had known more than the bare abstractions of existence; wondering, in fact, what it would be like to feel in his own hands the lethal difference between life and death, to know finally, in the act of murder, what it was really like to be alive? Everyone would say that this most respected judge had in reality been a monster; but in the secrecy of their own private thoughts, what would they really think? He had not meant for this to become a public journal, a published chronicle of depravity and the long slow descent into what the world would no doubt think madness; but perhaps, in some strange way, it would do some good: a warning of how artificial and thin is the barrier we try to erect against the onrush of evil.

  If he died, they might find it; but if he was still alive a year from now, or perhaps a year or two after that, when the trial was over and he had finally left the bench and no longer felt the compulsion to write the truth about what he witnessed and what he did, he would burn it, and all his secrets would then lie undiscovered among the ashes.

  However unusual it might seem, there was a certain logic to this. He wrote - or tried to write, because he never felt he ever got it quite right – the truth about himself. It had started as a way to purge himself of the fugitive, and really shocking, thoughts that with growing frequency had begun coming to him, strange thoughts that took him inside the minds of the very criminals – the murderers, rapists, and thieves – on whom he had to pass sentence. At first he had wanted to understand why they had done it, what had driven them to do things that no decent civilized person would ever dream of doing; and then, quite without realizing it, he had begun to wonder whether there might be something in the act itself so compelling that punishment lost all significance. Was it possible that there was in an act of brutal violence a kind of intoxication, a feeling, an urge, so powerful that it could be as little resisted as drink by an alcoholic or drugs by an addict? He became, again without quite realizing it, the prisoner of a new compulsion; one that so far as he knew had not been explained by anyone before, the desire to know not just the law of murder, but of the murderer, what it was like to take another’s life. He tried to write th
e truth of that, his own confession, and through that, his own catharsis.

  He picked up the pen and tried to write the truth about the trial and what had happened at the beginning.

  “Hector Alfonso did nothing to help me when I tried to have Driscoll Rose charged with assault. He did worse than that. He let me know that Rose had too many powerful and influential friends. He even told me that when it came to what went on in Hollywood, Roger Stanton made the law. He would not prosecute because he was afraid of the repercussions. A Hollywood star beats senseless some poor hardworking Hispanic, where is the profit in doing anything about that? But when it comes to murder, and the murder victim is a movie star, when he has no choice but to prosecute, when the trial will get the kind of coverage he could only dream about as a candidate, then suddenly Hector is the shining knight of justice and revenge. Shining is not too strong a word for it, with that glittering, incandescent smile of his; wearing, as always, another one of his endless supply of new suits. I wonder what he does with the old ones. Does he give them away, or keep them hung in his closet, a reminder of what he had done? Does he keep them, for example, organized by each type of event, different sections filled with what he wore at a particular trial? His vanity and ambition are boundless. His opening statement, which he must have written out and memorized, had all of his usual flamboyance. He almost wept, describing the way Gloria Baker was murdered; every gesture, every word, no doubt rehearsed countless times in front of a mirror at home. At what he thought the appropriate moment, he wheeled around, his face full of exaggerated rage, pointing at Rose, the ‘vicious killer of the woman the whole country loved!’ Everyone thinks themselves an actor. Where did he get it, those cheap courtroom theatrics? - Where everyone learns what to do and how to act. The movies don’t imitate reality; we imitate what we see in the movies.