Cruel Justice

by William Bernhardt

  Ben didn’t share Hayes’s sentiment, flattering though it might be. In his experience, most public defenders did first-class work despite a backbreaking caseload. Nonetheless, there was the troubling matter of the signed employment agreement. “I don’t want to handle your son’s case unless I’m sure I can do the best job possible. And I don’t see how I can get up to speed by next week.”

  “You can. I know you can. You’ve done it before.”

  “I have?”

  “Yup. In Arkansas. I read about it in that magazine.”

  “Well, yes, but there were some extenuating circumstances.” Ben gazed deeply into the man’s eyes. “Look, that employment agreement we signed isn’t binding. I misunderstood the circumstances. The Rules of Professional Conduct don’t even permit contingency-fee agreements in criminal cases.”

  “Are you sayin’ you’re backin’ out on my Leeman?”

  “I’m not—I’m just—” How long can you go on representing the scum of the earth? “You have to understand—”

  Ernie Hayes continued to stare at Ben with his deep black eyes.

  “Seriously, it—” Ben stopped. “Look, I’ll go out and meet your son. I’ll talk to him. But that’s all I’m promising.”

  To his surprise, Hayes sprang forward and shook his hand vigorously. “Oh, thank you, Mr. Kincaid. Praise the Lord. I knew you’d understand.” Ernie shook his hand a few more times, then walked out of the courtroom.

  Ben couldn’t help but notice that his limp did not seem nearly as pronounced as it had before.

  6

  THE MAN STRODE DOWN the sidewalk, a Polaroid photo clenched in one hand. The fingers of his other hand brushed against the wrought-iron fence surrounding the playground. He felt like a fool, wearing a red fright wig and fake glasses. But it was necessary.

  He would need time with his new little sweetheart. He would need to become his trusted friend. And that would take a while. He had to make sure that, in the meantime, the boy wasn’t able to describe him accurately.

  He spotted the boy almost immediately, standing by himself between the swing set and the slides. Abie Rutherford. He wasn’t playing with anyone. He was just hanging out—a frown on his face, one hand on his hip—in an adorable pose of preadolescent aloofness.

  What a lovely child. His photograph did not do justice to his true beauty. But then, what reproduction could do justice to such an immaculate creature? How he ached to take that child into his arms, to press him against his breast. To take care of him. To smother him with affection.

  He continued strolling down the sidewalk, past the playground, then around the corner. It wouldn’t do for him to be spotted, even in disguise. Not so soon. Not before he had a chance to make contact.

  He glanced at his watch. Three more hours, and then the private school would let out for the day. The boy’s home was nearby; the kid probably walked. Cross Twenty-first, cut through Woodward Park, and he’d be home. Good.

  He crossed the street and looked for a place he could quietly pass the next three hours. As he reached the opposite side, however, he couldn’t resist turning back for one last look at his new golden child.

  His heart swooned. “You’re all mine, Abie Rutherford,” he whispered under his breath. “All mine.”

  7

  BEN STOPPED BY THE public defenders’ office and checked out the Leeman Hayes file, telling them he had been asked to represent the defendant and was in the process of deciding whether to do it. Assuming Leeman consented, they didn’t object to a substitution of counsel. Not that they didn’t think the case was important. But when a staff of four lawyers has to handle over a thousand criminal cases a year, they tend to take all the help they can get.

  Before he left for the treatment facility where Leeman was being held, Ben thumbed through the file. The mystery of the ten-year trial delay soon became clear. Leeman had been arrested almost immediately after the murder occurred. His lawyer, since deceased, ordered a battery of physical and mental tests. After being presented with the results, the trial judge ruled that Leeman was not capable of assisting in his own defense and therefore constitutionally could not be tried.

  Leeman was committed to a series of institutions and therapy centers. The reports received were of a kind; only the words changed. Leeman Hayes was born with a genetic condition that resulted in profound retardation. The neurological disorder affected his perceptions of and reactions to the world around him. It was like a thick sheet, a gauzy veil between Leeman and everyone else.

  According to the file, Leeman was generally good-natured, but he had a temper that sometimes flared up with little provocation. During these aggravated seizures, especially given his limited ability to comprehend outside stimuli, his behavior was utterly unpredictable.

  Leeman had been shuffled from one center to another for years, until last spring, when a treating psychiatrist—a Dr. Herbert Fischer—suddenly declared that Leeman was mentally capable of assisting in his own defense and remanded the case to the district court for trial. The minute orders in the file suggested to Ben that the judge had little enthusiasm for this case, but he had no choice. He set the matter down for trial.

  To Ben’s dismay, the file did not suggest any exculpatory evidence to support Leeman’s not-guilty plea. Despite the recent determination of Dr. Fischer, file memos of client interviews indicated that Leeman was virtually no help whatsoever. The concept of the passage of time was beyond him. Trying to get him to focus on what happened ten years ago was almost impossible. Ben would be starting from square one.

  If he took the case.

  Don’t be such a sucker.

  Given the circumstances, only a crazy man would do it.

  Ben arrived at the clinic near Shadow Mountain just off Sixty-first in south Tulsa. After a brief conversation with the physician in charge, Dr. Montague, Ben was permitted to see Leeman Hayes. The doctor asked the woman who sat at a desk outside his office—a tall, black woman whose name tag identified her as VERA—to escort Ben to Leeman’s room.

  Ben wanted to ask Vera about Leeman, but he wasn’t sure whether Vera was a nurse, or secretary, or what, and he didn’t want to offend her by asking. He decided to try to work it out for himself.

  “So … you work with Dr. Montague?”

  “Oh yes. Every day.”

  “I see.” Ben followed her down a long antiseptic corridor. “He probably depends on you quite a bit. On a day-to-day basis.”

  “That’s true.”

  “You probably … check on the patients every so often. Make sure they’re okay.”

  “Actually, we usually let the nurses do that.”

  Aha. Not a nurse. “Do you … prepare Dr. Montague’s reports?”

  “Oh yes. I do all his reports now.”

  Bingo. “So you must be his personal secretary.”

  Vera peered down at him. “Close. I’m a doctor.”

  If there had been an available closet, Ben would’ve crawled into it. “I’m sorry. I just assumed …”

  “You assumed that since I’m a woman, I must be a nurse or a secretary.”

  “Not at all,” Ben said, although in truth, of all the possibilities he had considered, somehow doctor never came to mind. “I just—I assumed that since you did his paperwork, you must be his secretary. Goodness knows my secretary does all my paperwork.”

  “I do his paperwork because I have to. I’m a GP—a family physician. He’s the specialist—a clinical psychiatrist with specialized training in intellectual disorders. Since I’m a mere generalist, I do the paperwork, and the dictation, and all the other grunt work. Soon I’ll probably be washing his Jaguar.”

  Ben thought this might be an opportune moment to change the subject. “How well is Leeman Hayes able to communicate?”

  “Only in the most rudimentary way. His verbal skills are keenly lower than even most developmentally disabled persons.”

  “Developmentally disabled—”

  “That’s the current politic
ally correct euphemism for mental retardation. I know, it’s hard to stay on top of them all. If people spent half as much time developing remedies as they spent trying to tell other people what words to use, we’d probably have a cure for the common cold.”

  “And, because Leeman is … developmentally disabled … he can’t communicate?” Somehow, that didn’t seem right. Ben had met mentally retarded persons before, and he’d always been able to talk to them. “Why is that?”

  “How much do you know about mental retardation?”

  “Not much,” Ben admitted.

  ‘Then you’ll pardon me if I go into my lecture mode.

  Mental retardation affects about three percent of the American population. Supposedly it’s caused by genetics. Biological abnormalities.”

  “Supposedly?”

  Vera pressed her glasses higher on her nose. “Well, statistics have shown that a vastly disproportionate number of retarded persons come from underprivileged families.” She paused. “That’s yuppie talk for po’ folk. Now, if it’s all genetics, why is retardation visited so often on the poor? Doesn’t make any sense.”

  “What do you think causes it?” Ben asked.

  “I think, at least in many cases, that it’s caused by poverty in combination with negative social and cultural conditions and a lack of stimulation during the child’s early developmental years. Early training is critical—sensory, verbal, and emotional stimulation, along with training in certain fundamental skills. Problem is, many po’ folk don’t have the time or the opportunity to provide it. Or they may not be well enough educated themselves to know what to do.”

  “How retarded is Leeman?”

  “Eighty-seven percent of all retarded persons are what we call mildly retarded. They can be educated to about a sixth-grade level and can usually support themselves. Ten percent are moderately retarded. They can be educated to about the second-grade level and develop only minimal speech and communication skills. Three percent are severely or profoundly retarded. The severely retarded will require care throughout their lives but may be able to do some things for themselves. The profoundly retarded will never be able to do anything for themselves.”

  “I read in the file that Leeman is moderately retarded.”

  “True, although he’s at the low end of the moderate scale, and he has virtually no communication skills. In fact, when he was first institutionalized, he had none at all. Since then, he’s learned a few words. Not many. Mind you, he does understand some of what goes on in the world around him. He’s able to learn simple tasks and repeat them. He’s able to work with his hands and has good motor skills. He just has no way to communicate.”

  “I saw a reference in the file to PKU.”

  “Right. Leeman has been diagnosed as suffering from phenylketonuria, a metabolic abnormality believed to be caused by genetic errors. Not unlike Down’s syndrome. PKU is characterized by eczema, attention deficiencies, and a musty body odor.”

  “And there’s no cure?”

  “Actually, there is. In at least some cases, PKU can be prevented in infants who have the metabolic defect if their diet is changed before permanent brain damage occurs. Unfortunately, Leeman’s parents couldn’t afford fancy doctors and high-class hospitals. They didn’t even have health insurance. So the condition wasn’t detected. And Leeman spends the rest of his life as a retard.”

  A long time passed before either of them spoke again.

  “From what you’ve told me,” Ben said finally, “I’m surprised Leeman was able to caddy.”

  “Oh, he was a splendid caddy,” Vera replied. “Mind you, he wouldn’t be advising people on what club to use, but he was perfectly able to schlep a bag of clubs around the course. He was strong, uncomplaining, and he knew the course like it was his backyard. In most instances, no communication was required.”

  Ben nodded. “Is Leeman being guarded?”

  “Only in the most superficial way,” Vera answered. “After all, he’s been in institutions of one sort or another for the last ten years. He’s not going to escape. I don’t think he’d know where to go if he did.”

  “Is Dr. Montague the psychiatrist who’s been treating Leeman?”

  “He’s not the one who certified him competent to stand trial, if that’s what you’re asking. That learned scholar lives in Ponca City. Met with Leeman for two hours, then rendered his expert opinion. An opinion we all find mystifying.”

  “Then … you disagree that Leeman is competent to stand trial?”

  “I disagree that anything has changed. Leeman is mentally retarded. His condition can’t be treated. We can try to improve his communication skills, or to train him for an occupation. But that’s it. Able to assist in a murder trial? Absurd. If he was unable to assist in his own defense ten years ago, then he still is.”

  They stopped in the corridor outside a closed door. “Then how do you explain this new ruling?”

  “Politics.”

  “What?”

  “You heard me. Politics. And the inexactitude of the psychiatric sciences.”

  “I don’t follow. …”

  “Despite what some doctors may tell you, psychiatry is still an inexact science. And our knowledge about mental retardation is woefully incomplete. Two different doctors, both competent, can still give wildly varying evaluations. And if one of those doctors is an arch-conservative who believes that murderers should be punished for their crimes—”

  “Then you’re much more likely to get an evaluation that the accused is competent to stand trial. Is that what happened to Leeman Hayes?”

  Vera smiled thinly. “Don’t ask me. I’m just a family doctor. What do I know?”

  8

  LEEMAN HAYES SAT ON the floor on the far side of the room assembling small white plastic model parts. Ben knew virtually nothing about automobiles, but he could tell it was a slick sports car. As he looked around the room Ben saw a vast array of assembled and painted models. Leeman’s specialty appeared to be transportation; Ben spotted models of everything from the Titanic to the starship Enterprise.

  Leeman was big, even for a man in his late twenties. He had a broad, moon-shaped face. His skin was flaky and he reeked of some unidentifiable odor. Rolls of fat spilled over his belt. Somehow calling them love handles seemed woefully inappropriate. Despite the flab, Ben sensed real power residing in that bulky frame.

  Leeman’s eyes were fixed and his tongue curled up toward his nose; Ben could almost feel the strain to focus attention as Leeman carefully glued a tail fin into place.

  Ben spoke quietly so as not to startle him. “Excuse me.”

  Leeman was not startled; in fact, he didn’t react at all. Ben sensed that he knew Ben had entered the room; he just wasn’t particularly interested.

  “My name is Ben Kincaid. I’m a lawyer.”

  Leeman looked up, not because of anything Ben had said but because he had completed adhering the tail fin and he needed another piece of the model. His cheeks and chin were covered with pimples. The extra fat made his face seem doughlike and his expression perpetually uncertain. He peered at Ben as if he were not simply meeting a new person but contemplating a previously unknown life-form.

  Ben peered back. It was not so much Leeman’s appearance as it was his manner that signaled that something was not quite right. He held his head at an odd, unnatural angle, and it moved not fluidly but in brief, spasmodic bursts. His eyes seemed to move independently of his face.

  “Al … read-y.” He overpronounced and protracted each syllable, as if every sound required special effort.

  “I know you already have a lawyer. But your lawyer is very busy, and your father thought it might help if I took over your case.”

  Leeman’s face brightened the instant he heard the word father. “Papa.” His eyes raced around the room. “Papa?”

  “I’m afraid he isn’t here right now. He came to my office and asked me to represent you. I haven’t decided yet. I wanted to talk with you first. Since he’s be
en appointed to serve as your guardian, technically, his okay is all I need. But I wanted to make sure it was all right with you. After all, you’re the one who’s going to be on trial.”

  Leeman made no response. He shoved his hands into his pockets, a particularly difficult task because his corduroy pants (in August?) were small and ill-fitting. The front of his untucked shirt showed the spillage of many meals past.

  The truth struck Ben like a baseball bat to the head. When Leeman’s first trial was canceled, and he was committed to his first institution, some poor liberal soul probably thought it was the humane thing to do.

  That person had been horribly wrong. Instead of giving Leeman a fair trial, they gave him a life sentence.

  “Do you have any objection to my becoming your attorney?” Ben had no inkling how much, if any, of what he had said to Leeman was understood.

  Leeman twisted his head one way, then the other. “Papa?”

  “Your father wants me here. As I said, it was his idea.”

  “Okay.” Leeman flashed a quick smile, then turned back to his model.

  “That’s a great car you’re making,” Ben said. He had to remind himself not to talk baby talk. This was a mentally retarded adult, not his nephew. “Did you make all these?”

  Leeman’s eyes brightened. “All.”

  “I tried to make a model once, when I was a kid. An Aurora model of Superman crashing through a brick wall. I totally screwed it up. Came out looking like the Bride of Frankenstein.”

  Leeman hunkered down on the carpet and picked up a saucer-shaped piece. A hubcap or something.

  “I read that you like music, Leeman. Is that right?”

  Leeman’s head tilted on the word music. Without comment, he walked to a cabinet against the wall and opened it.

  Inside, Ben saw a stereo system—receiver, turntable, and two speakers. Not the best system in the world, but not garbage, either. And beneath the stereo were two shelves filled with albums. Hundreds of them. Most of them in covers well-worn and tattered.