The Touch of Treason

by Sol Stein

  “George,” his father had gone at him again in the year before he died, “you lawyer for who? Crooks, cheats, bad kids? You a toilet for everybody?”

  In that last year Thomassy had learned to respond to Haig Thomassian’s railings without anger. “Pop,” Thomassy had said, “in the old country, the lawyer for the guy who’s accused is more interested in what the government wants to happen than in getting his guy off.”

  “The people you work for, they stink!”

  Not always. I would defend you, Pop.

  “All rise!” the sergeant-at-arms suddenly shouted, and Thomassy had the sense of the whole crowded courtroom struggling to its feet. The sketch artists in the front row of the press section were the last to get up, putting down their lap boards and crayons for the ritual rise of respect to the man in the black robe who would be one of their models. Drawing judges was easier than drawing witnesses; they sat still more of the time, witnesses twitched and turned. Harry Layne, who sketched for CBS-TV, was there; his drawing of a judge wearing a cellophane robe through which all was visible was probably the most famous unused sketch of this new craft that bypassed most judges’ exclusion of television cameras.

  Thomassy caught a glimpse of the expression on the face of Judge Drewson’s daughter as she stood for the arrival on the bench of her father. Thomassy wouldn’t have recognized her if Marion O’Connor, the court clerk, hadn’t pointed her out. The young women were getting younger. He was glad Francine had not come. Was it possible that at some point he would stop thinking about the whole female half of the human race as eligible for more than his admiration?

  Standing next to him, the defendant, Edward Porter Sturbridge, looked like a boy scout. Perhaps he had been. It wasn’t the worth of the defendant’s soul, much less his innocence or guilt, that would determine the outcome. It was how well Roberts played. How well Thomassy counterplayed. And how the twelve-part audience reacted. The jury was standing too as Judge Drewson accidentally bumped the stand holding the American flag. As it teetered, the members of the jury seemed transfixed as if much depended on whether the flagstand would topple.

  The flagstand, heavily weighted at the bottom, did not fall. The judge motioned everyone to sit. Thomassy noted how the jury sat first, as if the connection between them and the judge was that of soldiers and officer. Then the spectators, like a massive disorganized flutter of unconnected beings, found their seats where they had left them, underneath and behind. The press, which was reluctant to stand for anyone, was the last to sit as if that tardiness also declared its independence from the ritual.

  Thomassy’s eye caught the face of one of the jurors, the one he had had second thoughts about. The man’s jacket seemed to weigh him down like a blanket. Beneath it, he was poised to bitch. Thomassy was usually wary of jurors who might try to dominate the others by whining. More people gave in to that than to reason. He hadn’t thrown a peremptory challenge at the man because Roberts had let him get by and it was late and he was only an alternate. He should have knocked the guy out. It was sloppy to have an alternate who would make you hope none of the regulars got sick.

  He liked the foreman, a woman who taught anthropology at Hunter College. He’d latched on to her because when he asked her about her attitude toward young people—a question he’d put to everyone—she’d said, “I teach because I like young people. They remind me of my own time at school, when life seemed endless.” That woman had a brain one didn’t often want in jurors. But with the defendant a twenty-four-year-old perpetual student with tousled hair, she wouldn’t see Ed as someone who ought to be put away. She was a natural leader; and the others, at some prolonged long-ago period of their lives, had been students when teachers were still respected and listened to.

  Thomassy leaned over toward Ed and whispered in his ear, “I hope you peed before this began.”

  Ed nodded.

  The judge’s eyes met Thomassy’s. He shouldn’t have spoken to Ed amidst all that silence. But the judge was merely acknowledging Thomassy’s presence. Then he turned to Roberts and intoned the usual. The play could begin.

  *

  Roberts touched the watch chain across his vest, the Phi Beta key to be noted. If you have enough brains for the job, Thomassy thought, you don’t need to advertise.

  “Ladies and gentlemen,” Roberts said, his eyes on the jurors from a distance of at least twenty feet so that it wouldn’t seem unnatural for his voice to be raised—he wanted to be sure the press caught every word—“there are two kinds of crimes. Those that may attract our momentary sympathy—like crimes of passion—and those that produce a profound sense of revulsion, as in this case when a great man with a unique capability is killed by one of his own closest students, who pretended to love and admire him.”

  Thomassy had to give Roberts credit. In one breath of openers, he had used the word revulsion, designed to create a crime not on the statute books, a crime worse than murder, a crime that didn’t come down from the Grand Jury but had just been invented. And in the same first breath, Roberts had pulled a rug from under Porter’s case, pretended to love and admire him, Roberts had said. Maybe he’d been too complacent about Roberts. It wasn’t Thomassy Roberts had to convince, it was—as always—the jury of nonpeers who now had revulsion and pretended implanted in their heads. At least the anthropology professor wouldn’t go for that. Or would she, too? Hey Roberts, he wanted to yell, tell us what you’re going to prove.

  Roberts made the mistake of glancing in Thomassy’s direction, and as if he could imagine Thomassy’s thoughts, converted to a businesslike tone. “The people will prove Professor Martin Fuller died not of natural causes or an accident, but as the result of the willful intent of another person, that person being the defendant, Edward Sturbridge, also known under the alias Edward Porter.”

  Alias was a tar-brush word. Thomassy saw Ed squirm.

  “The people will prove,” Roberts continued, “that the defendant had the means to cause the death of the deceased, that in the early-morning hours of April fifth Professor Fuller died a horrendous death as a direct result of certain actions taken by the defendant. The people will present proof in the form of evidence and then ask you to decide if the defendant is guilty as charged…” Roberts’s voice became nearly inaudible as he added, “…or innocent.”

  Thomassy got to his feet. “Your Honor, I request a conference at the bench.”

  Judge Drewson nodded.

  Thomassy could see the reporters’ restlessness. A conference always shut the door in their faces. Thomassy wondered if any of the papers were smart enough to hire a lip reader.

  “Your Honor,” Thomassy said sotto voce, with Roberts next to him, “the people, in their presentation, did not specify that they would provide evidence showing conclusively that nobody else could have committed the alleged crime. I’m prepared to move for dismissal on the grounds that the people did not make a prima facie case for the guilt of this particular defendant.”

  Roberts’s face flushed red. Who, besides Thomassy, would fuck around like this? The man was trying to get him angry.

  Judge Drewson admired Thomassy’s ability to keep a straight face.

  He leaned toward both men. “Mr. Roberts,” he said, “your opening certainly elided the issue of other possible suspects. However, Mr. Thomassy, if you move for a dismissal, I will rule against. The court has it in its discretion to permit Mr. Roberts to continue his opening to correct his omission, or we can get on with this case. What do you say, gentlemen?”

  Roberts looked relieved.

  When Thomassy returned to the defense table, Ed asked him, “What was that about?”

  “About forty seconds.”

  “I have a right to know.”

  “You’re supposed to sit still, smile, and look confident, not ask questions.”

  “Mr. Thomassy,” Ed said, “you are working for me, and I expect an answer.”

  The kid was right. “I was about to move for dismissal on a technical ground, bu
t the judge turned us down.”

  “Us?” Ed asked.

  “You.”

  The judge, his face a fixture of fairness, said, “I can understand the defendant wanting to consult with counsel, but I would appreciate if such consultations could be kept to a necessary minimum. Mr. Thomassy, your opening statement, please.”

  *

  Judge Drewson had never presided over a trial worked by Thomassy. He watched with curiosity as Thomassy stood in front of the jury box. He is letting them get a good long first look at him so that when he starts to talk, they will listen instead of dividing their attention between taking him in and hearing what he says.

  To the jurors, George Thomassy, long armed and lanky, appeared taller than his six feet. They, nervous in public, noted how remarkably loose Thomassy seemed, his gray eyes looking in turn at each of them as if he were about to begin a very private conversation.

  “Ladies,” Thomassy was saying as he looked at each of the three women in turn, “and gentlemen of the jury,” he continued, taking in the rest, “the deceased, Martin Fuller, was acknowledged to be this country’s senior expert in the ways of the Soviet Union. If he were standing in my place he might say that over there, if you see a man being arrested, you assume him to be innocent. Over here, if you see a man being arrested you assume him to be guilty.”

  Some of the reporters in the front rows laughed.

  “It is an unfortunate trait of the human animal,” Thomas said, “to think in categories. It is convenient. But it is quite possible that a policeman arresting someone on the street in Moscow is taking him in not for alleged crimes against the state but for consuming too much 100-proof vodka in an area where he might be seen by foreign tourists. And it is quite possible that in this country, a police officer might pull a car over because it had been driven erratically, or a taillight was out, or because the driver was an attractive blonde.”

  Suddenly Thomassy’s affability vanished. “In this courtroom,” he said, “we cannot think in categories. We are concerned only with the allegation against a particular individual. In this case, the individual…” Thomassy turned his back on the jury and did not speak till he was standing alongside Ed, “…is a twenty-four-year-old student who graduated from Columbia College summa cum laude and then received an M.A. from Columbia in just eight months, and went on to study for his doctorate at Columbia’s Russian Institute. He has taught at Amherst, one of this country’s finer private colleges. Recently, this young man has been continuing his education in his field by working with the deceased, who’d become his mentor, his teacher, his friend. He spent many hours a week with Professor Fuller and his wife, he was their guest at mealtime dozens and dozens of times, he was their overnight guest on many occasions when he and Professor Fuller and others would converse long into the night on their subject, which should matter as much to us as to them, because our future may to some degree depend on what they know and learn.”

  Thomassy strode to the jury box again. “Does it make sense for a hungry man to cut off his supply of food? Does it make sense for a man hungry for knowledge about a particular subject to cut off his principal source of that knowledge? I say this because the government must prove—I said prove—that the accused had the intent to commit a crime, and unless it provides facts to prove to your satisfaction that he had such intent, then they have no case. Before you deliberate, His Honor, Judge Drewson, will, of course, instruct you in the law, but before the government starts, I want you to keep in your minds as if branded in there: Without proof of intent to kill there can be no guilt.”

  Thomassy was standing directly in front of the foreman. Quietly, Thomassy repeated, “There can be no guilt.”

  Thomassy turned from the jurors toward Roberts, letting his last words hang in the air. Then, his voice back to normal, he said, “The government—sometimes mistakenly called ‘the people’—”

  He got the laugh of support, and walked toward Roberts, knowing the man would have liked to strangle him for that one. He stopped a few feet in front of Roberts. “The government,” Thomassy said, “is represented here by the district attorney, Mr. Roberts. Every juror should know that Mr. Roberts, by the standards of the American Bar Association, is here not merely as an advocate for the government. It is the duty of the prosecutor to seek justice, and it is your role as responsible jurors…”

  Thomassy had already turned from Roberts and was striding back to the jury box. “…to judge whether he is fulfilling his duties, whether he is seeking justice. Mr. Roberts was recently in a different forum, in the Grand Jury room, where the government had itself a field day because the attorney for the accused was not present. There was no one to counter what Mr. Roberts alleged or to test his so-called evidence. People who work in the law know that prosecutors tend to have their way in the Grand Jury room because they are unopposed in that one-sided forum. Well, things are different in this courtroom because if Mr. Roberts and his legion of assistants haven’t done their homework properly, I’ll know it, and you’ll know it.

  “The government has got a lot of work cut out for itself. First, it must prove that Martin Fuller’s death was not caused by accident. Well, I’m going to save a lot of your time and taxpayers’ money, ladies and gentlemen, by agreeing that Martin Fuller’s bathrobe caught fire from the heater in his bathroom and that despite efforts by his wife and the accused and others to save him, he died. You won’t have to listen to the coroner’s morbid details. Prosecutors like to put coroners on the stand because they want to permeate the atmosphere with death, but the horrible death of Martin Fuller is something we will stipulate to not only to spare you the gruesome details but because the issue in this courtroom is determining whether the accused and no other person or persons were responsible for causing Martin Fuller’s death. I remember,” he said, suddenly relaxing, “the time I went with a friend to see a movie, and we left before it was over. As we went out into the parking lot, my friend, who is not a lawyer, said, ‘Boy, that was murder.’ Well, it wasn’t murder, it was a bad movie. And what we may be dealing with here is a bad accident, and if it wasn’t, the government has to prove to your satisfaction that it wasn’t, that Martin Fuller died because someone or ones had the will and the means to do it. We will prove with witnesses that when Martin Fuller started to scream because his bathrobe was on fire, the first person to reach him was his wife and the second was the accused, seconds later and stark naked, because that’s the way he sleeps, without pajamas, and he dashed down from upstairs without thinking to put anything on because his mentor was screaming for help. Does that sound like someone who had the will to kill? Or was it to help?

  “The government has not said it will present irrefutable, objectively verifiable evidence because its so-called case is based on circumstantial evidence that will be refuted by other circumstantial evidence. The government’s case does not exclude other hypotheses based on the same so-called circumstantial evidence, and I am here to tell you in advance that our system does not operate on hypotheses. If a policeman walked into this courtroom this minute and came over to this jury box and put his hand on the shoulder of one of you and said, ‘You’re under arrest,’ that doesn’t mean you’re guilty, and this young man—” he strode over to Ed—“is, according to our system, according to our law, and according to the main tool every juror has—common sense—innocent.”

  *

  As soon as the judge adjourned the trial for the day, Ed asked to talk to Thomassy somewhere privately. But the clerk came over to say the judge wanted to see Thomassy and Roberts in the robing room.

  “I’ll be back,” Thomassy said to Ed. “Stay put.” He looked at the deputy sheriff standing behind Ed as if stay put were an instruction from a higher authority than had granted Ed bail.

  In the robing room, Judge Drewson said, “Those were interesting presentations, gentlemen. Since rhetoric comes easy to both of you, now that we’re past the opening remarks I’d like to see the jury confabulated less so that they hav
e an opportunity to examine the facts, which is what they’re here for.”

  “Alleged facts,” Thomassy said, his smile fleeting.

  Judge Drewson laughed. His laugh gone, he said, “I suppose you both know there are federal officers in the courtroom?”

  They nodded.

  “Is it your belief,” the judge asked, “that they are here in preparation to arrest the defendant on federal charges?”

  “I’m confident that’s not the case, Your Honor,” Thomassy said.

  “Then what the hell are they doing in my courtroom?”

  “I suspect they are observers. Their job was to protect the deceased at least until his work was finished. They failed in their job.”

  “Do you believe they are here to pick up anyone other than the defendant?”

  “That might be a precautionary purpose of theirs, Your Honor,” Thomassy said. “I don’t know. I think they want to see justice done.”

  “We all do, don’t we?”

  “Yes,” Roberts said.

  Thomassy thought Not necessarily.

  “By the way, I’m sure you also know there’s a contingent of TV cameramen out front. I’d be careful what I said to them. I’ll be watching the news tonight.”

  “Suppose I go out by the back door,” Thomassy said cheerfully.

  “Then tomorrow they’ll have crews at the back door as well as the front door. Good luck.”

  *

  Thomassy and Ed went through a long corridor to reach the room where Thomassy and his client could confer in private. Ed spoke the moment the door shut on them.

  “I don’t get your strategy. Why’d you bring in all that analogy?”

  “What analogy?”

  “Someone arrested in Russia presumed by others to be innocent. And then all the Russian Institute stuff about me? What are you trying to do?”

  “Defuse,” Thomassy said, “in advance. I can guarantee you that Roberts is going to make something ominous out of your special field, and the best way to deal with that kind of crap is to bring it up first in your context instead of their context.”