Death Penalty

by William J. Coughlin

  COURTROOMS, THE KIND the public attends, are designed with an air of the theatrical. Especially the ornate old courtrooms with their dark woods and polished carvings. Even the modern ones, stark as they may be, still are artfully crafted to be places where public dramas will be enacted on a daily basis.

  I always thought the underlying intention was to give the audience their tax money’s worth. If judges looked like shoe clerks and courtrooms somebody’s basement, it would be difficult to persuade the citizens that what goes on was worth the salaries and the cost. So, the more important the court, usually, the more important the trappings.

  But not appellate courts, not the kind where the only people in attendance will be lawyers, usually. Everybody knows the score, so there’s no need to make the place look like the Gaiety Theater.

  The hearing room where we would argue was like that. Very nice, very comfortable, but very plain.

  The judges’ three chairs are arranged behind a dais that puts them only slightly above eye level with the lawyers. In some trial courts a lawyer can get a serious whiplash by having to strain his neck to see the judge sitting so high above him. But not here.

  Set just in front of the judges’ bench is a simple wooden lectern, the kind politicians speak at, complete with a gooseneck microphone. On each side of the lectern, tables are placed where the lawyers called up to argue their case can sit, arrange their papers, or take notes while they listen to their opponent spread lies to the three-man court.

  The spectator section seems more like an airport waiting area, although the chairs, an upgrade on the standard theater seats, are wide and comfortable, but not so much as to lull anyone to sleep. Snoring is against court rules.

  The Ford attorneys were already there when I arrived. I had met with two of them before, eager young men, with that lean and hungry look Shakespeare warned about. The third I knew by reputation. Craig Gordon was their firm’s leading appellate specialist, a man who probably knew the judges better than the law, but was no slouch on the law either. I didn’t have to be told he would be the one presenting the appeal to the court. This was his specialty. He was as relaxed as an ambassador in a friendly country.

  I introduced myself to Gordon. We exchanged the usual lawyerlike pleasantries, like casual friends meeting outside a theater, not talking about the case but chatting about the weather, the sports teams, anything that might be commerce for light conversation.

  Both of us, of course, were taking measure of the other’s probable abilities. We shook hands. He joined the two lean and hungry associates on one side of the room and I selected a chair on the opposite side.

  I looked around to see if there were any familiar faces. The only other people there were two especially young lawyers: a long-haired white man, very thin; and a black woman, about twice his girth. Both were grim faced and clearly nervous. The first case on the docket was a criminal appeal, and I guessed they were going to argue the thing. I wondered which one was the prosecutor.

  The only other people in the court were two somber elderly men who sat together and chatted softly with no evident expression, like two men waiting for a bus. I recognized them both, although I had never tried any cases against either of them. Both were senior partners in large Detroit firms. I presumed each represented a side in the last case of the morning, an appeal in which one large bank was suing another.

  That was it. None of the cases merited enough interest for any of the media to be present. So it would be strictly business, the nuts and bolts of the law, quietly conducted by fewer than twelve lawyers, counting the judges.

  Having once clerked for the court for a year, I had the advantage of knowing what was going on backstage, so to speak. By now the judges were robed and going over the case memorandum for the first docketed case.

  That short memo was all-important, the keystone really of each and every appeal. I used to prepare them, giving a brief statement of fact, the issues raised by the briefs, some of the legal cases involved, and a tentative suggestion as to how the case might be decided.

  It would be the controlling document through the hearing, sometimes the decision itself, and often the basis for the language found in the ultimate printed report of that decision.

  Some judges relied upon that memo, with minimal input from their clerks, as the final word, and considered little else. Others used it as a launching pad for their own intensive study. These were judges who were scholars at everything they did. No hair was too fine to split. Mostly, the others were a mix, some a trifle lazy, some too diligent, but all of them trying to do justice and move the docket as best they could.

  But it was that little memo, very secret, that got everything moving.

  With some exceptions, the judges discussed the memo briefly before hearing each case. Immediately after the hearing, they sat down again and felt one another out on how they might go. If no immediate decision could be reached, they agreed to more discussion in the future. Usually, even with no agreement, one of the three judges was selected to write the decision if it looked as if his viewpoint might prevail, or if he or she seemed particularly interested.

  The others, the easy cases, were decided right then, right after the hearing, with one of the judges elected to write the decision. Which, when translated, meant that the judge’s main clerk had been designated to write it, and the judicial process moved quickly on.

  I guessed they had just finished looking at the memo.

  A bored court officer appeared, looked out at the handful of lawyers as if we might suddenly turn into an unruly mob, then he banged the gavel and announced the entrance of the appellate judges.

  We all stood up.

  THEY CAME OUT IN SINGLE FILE, each judge taking his designated place before a chair. They remained standing. As always, the judge who had been selected as the chief judge for the panel took the place in the middle. It was his job to run the court.

  Franklin Palmer was the chief judge. He looked around the room, his eyes meeting mine for a moment but without even a hint of recognition.

  The gavel sounded and we all sat down.

  Judge Palmer began a recitation of the basic rules. Each side had one half hour for oral argument. At the beginning of the presentation, each lawyer could reserve part of that time for rebuttal, if he wished. He warned the lawyers that a two-minute warning would be given as their deadline approached, and even if in midsentence, that final deadline would be strictly observed, with no exceptions.

  I noticed a few of the clerks had quietly come in and taken chairs near the front of the courtroom. They knew they’d probably have to do the work, so they were getting in at the beginning.

  As Judge Palmer went over the ground rules I studied each of the other two judges.

  I knew Judge Robert Chene. He had been a circuit court judge before winning election to the higher court. I had tried a number of circuit cases before him. He was about sixty, I thought, very thin, and although he looked like Hollywood’s idea of a hangman, he had the reputation of being a soft touch. He had been a plaintiff’s lawyer before becoming a judge. I hoped he still looked at the world from those same eyes, eyes that would have seen a lot of Will McHughs.

  The other judge I had seen around but had never worked with before. Short, compact but with a jowly face, he was only forty, but his advanced baldness made him look older. I knew he had come from an insurance defense firm, before being appointed by the governor, and the word was out that he still carried with him the negative attitude insurance lawyers seem to develop or are born with. He didn’t come down often on the side of the plaintiffs in injury appeals. His name was Phillip Noonan. There was a Phillip Noonan, a cousin, on the circuit bench. Lawyers, who love to bestow nicknames, called the one on the circuit bench Sweet Noonan. This judge had been tagged as Mean Noonan.

  Franklin Palmer, on the other hand, looked as if central casting had chosen him to play a judge. A handsome man with even features, his light blue eyes suggested there was very little they mis
sed seeing. He was deeply tanned, tall and square shouldered, little changed from the time, years ago, when he had been my criminal law professor. His hair had turned a handsome white about his ears, but other than that, he seemed ageless.

  I could see in him a suggestion of Caitlin, his daughter.

  The first case, the criminal appeal, was called.

  The side that brings the appeal argues first. A man by the name of McDougal had been caught with stolen property in his car, property that had been taken from a house a mile and a few minutes away from where the police stopped McDougal. He had later been convicted.

  The young man with the long hair was McDougal’s attorney. I guessed he was a public defender, and judging from his state of near collapse, I also guessed that this was his first appellate case.

  He placed his briefcase and notes on one table while his opponent, the young black woman, went to the table on the other side and did the same. She pretended as if she did this every day of the week, but I noticed her hands were shaking. She was young for an assistant prosecutor and this, too, was probably her first case on appeal.

  The fear of the unknown is always the worst fear, they say. And they are right.

  The young man adjusted the microphone and spoke into it, his lips as close as if he were underwater and the microphone was his air hose. His shaky words boomed through the room like trembling thunder. He jumped back as if by electric shock.

  “It’s a delicate instrument,” Judge Palmer said, smiling slightly. “You don’t need to get right on top of it. It will pick up quite nicely. Now, sir, you may proceed.”

  The young man took a deep breath and began. “If the court please I represent Melvin McDougal who was convicted of possession of stolen property. It is our contention that—”

  “It is customary to introduce yourself, counsel,” Judge Palmer said, again in a quiet and friendly voice.

  “Oh, yes, of course. I’m sorry. My name is Melvin Swartz. I represent Mr. McDougal, as I said, and it is our—”

  “Do you wish to reserve any of your time, Mr. Swartz, for rebuttal? You don’t have to, of course, but it must be done now or not at all.” Judge Palmer smiled.

  “Rebuttal?” The spoken word rose almost to a high C.

  Judge Palmer’s expression was still kindly. I noticed Judge Chene was amused while Judge Noonan grimaced in irritation.

  “In case your worthy opponent says something that you feel should be answered, it is usually best to reserve a few minutes; even if eventually you decide not to use them,” Judge Palmer said softly. I heard one of the young Ford lawyers snicker.

  A glance from Palmer silenced the offender immediately.

  “Ah, if the court please, I’m new to this,” the young man half whispered. “What’s a usual time?”

  Judge Noonan threw his arms down in exasperation.

  Judge Palmer smiled. “Five minutes, two minutes. It depends.”

  “I’ll take the five minutes,” the young man said, sounding like a contestant on a game show.

  Judge Chene laughed.

  “Let the record show that Mr. Swartz has informed the court that he wishes to reserve five minutes of his allotted time for rebuttal,” Judge Palmer said. He smiled at the nervous young lawyer. “You may proceed, sir.”

  Every lawyer there was remembering first times and the pain of embarrassment. Suddenly there was absolute quiet.

  Once again the young man visibly steeled himself and then began to speak. “My client, Mr. McDougal, was driving a friend’s car east on Adair Street when for no reason—”

  “He was there at three in the morning, right?” Judge Noonan demanded.

  “That’s his right, your honor. It’s a public street. Anyway, he was driving—”

  “The policemen say he was speeding,” Noonan persisted.

  The young man shook his head. “That’s what they testified, but Mr. McDougal has denied it, from arrest right through to . . .” He hesitated.

  “To conviction by a jury of his peers, right?” Noonan smiled, but it wasn’t warm.

  It was a bad sign. For whatever reason, Mean Noonan was on the muscle. I hoped he might vent it all on the poor kid, but I suspected he would save some for the rest of us.

  Of course, young Mr. Swartz didn’t have a chance. All lawyers have been in that uncomfortable position, of having to argue something, anything, for a client who is so obviously guilty or negligent that even the appearance of a chorus of angels singing on behalf of the client wouldn’t do a bit of good.

  Eventually all the judges started shooting tough questions. Toward the end, Swartz began to give back as good as he got, with respect, but with a growing fire in his belly. I smiled. Steel needed time in the fire to become something really special. I thought that one day Mr. Swartz would turn out to be very good indeed.

  They all took him on, even kindly Judge Palmer, firing questions as if he was the person accused.

  Judging by the tone of those questions, Mr. McDougal—who was relying on an illegal search as a defense—could look forward to serving out his very long sentence. But by his own fault, not his lawyer’s. Young Mr. Swartz had done everything but organize a jailbreak.

  I felt almost more sorry for the young woman prosecutor. By the time Swartz had finished, the judges were no longer interested. Their minds were made up. She had prepared for this important career moment for weeks, maybe months. There probably wasn’t a search and seizure case decided in the last hundred years that she didn’t know by heart. Her dress looked new. It was her moment in the sun. But they weren’t interested, and not one of them asked even a single question.

  Judge Palmer advised her that her time was almost up. She was shaken and her voice had lost some of its original vivacity. She stopped right there. “Thank you for your kind attention,” she said quickly, and sat down.

  “Mr. Swartz, you have your five minutes for rebuttal. If you choose to use them,” Judge Palmer said.

  Swartz stood up and walked to the lectern. “Mr. McDougal, my client, asks for nothing more than any other American,” he said with surprising forcefulness. “Justice.”

  Swartz stood there, his thin back ramrod stiff.

  And that was, as they say, that.

  Judge Palmer merely nodded.

  “All rise,” the court officer called.

  We stood and the three judges trooped off. They would be back in a few minutes, after the brief conference, then it would be my turn.

  Swartz walked by me on the way out.

  “First time?” I asked.

  He looked at me, his face slightly flushed.

  “I suppose it showed.”

  “It did. But you did a good job.”

  For a minute I thought he might lick my hand, then he nodded and walked on.

  His opponent, the stout black young woman, also walked by me.

  “Nice job,” I said.

  “My ass.” She smiled. “I don’t care though. I won the case, and that’s what goes into the record books.”

  She looked down at me. “You’re Charley Sloan, right?”

  That’s right.”

  “They still talk about you back at Recorder’s Court.”

  “Good or bad?”

  She grinned. “Mixed. You up next?”

  I nodded.

  “Give ’em hell, Charley. We warmed them up for you.”

  8

  While the judges were out, my opposing counsel and myself took over our spots at the tables by the lectern.

  Craig Gordon, my opponent, was so smooth it looked as if you might be able to skate on him. He smiled as I approached. It was the kind of smile Muhammad Ali used to give lesser opponents just before the bell rang.

  “This shouldn’t take too long,” he said. “The issue is rather simple, I think.”

  “The verdict was for five million, more now with interest. How would you like to save a couple million?”

  He raised an eyebrow. “Split the difference?”“

  Som
ething like that.”

  “Look, if it were up to me, I’d probably try to work something out. Perhaps not that fat, but something. However, Charley—may I call you Charley—it’s not up to me. Those two young tigers behind me have the ear of our corporate client. It’s all or nothing as far as they’re concerned.” He shrugged again. “So, I guess any compromise between reasonable men is out of the question.”

  “I understand. Then, how about just agreeing to take it easy on me?”

  He chuckled. “I like you, Charley. If this were a boxing match, you’re the kind of fighter who’d tell me my shoelaces were undone and then hit me when I looked. I promise I will take it as easy on you as I know you will on me. Fair?”

  I laughed. I couldn’t help but like him. “Fair.”

  I went back to my chair at the table. I tried to keep the picture of Will McHugh out of my mind, but I couldn’t. I tried to think only of the legal issues, but I kept hearing the terror in the echo of Mickey Monk’s voice.

  Now it would be all up to me.

  “All rise,” the court officer called as the three judges came trooping back in.

  “Good morning, Mr. Gordon,” Judge Palmer said as Gordon took his position at the lectern. “It’s always a pleasure to see you here.”

  In my imagination I suddenly saw a vision of Mickey Monk ambling down a dark alley looking for bottles, a ruined homeless man. Will McHugh’s fete was too horrible even to contemplate. Gordon smiled at the three judges and they smiled warmly back.

  “With the court’s kind permission I should like to reserve five minutes of my allotted time for rebuttal.” He smiled again. They smiled again.

  He did a lot of appeals and obviously did them well. He had earned their respect, and I think they actually looked forward to what he was going to say.

  It wasn’t an old-boy network in the usual sense, but Craig Gordon obviously had an edge over someone like me.

  “As the court knows, this is basically a product liability case. Let me begin by saying that no one, not my client, not myself, are any more distressed by the terrible injuries suffered by the plaintiff. We don’t dispute the extent of those injuries and our hearts go out to the plaintiff and his family.”