Death Penalty

by William J. Coughlin

  All three judges nodded sympathetically.

  “And, believe me, if my client were responsible for those injuries, this case would not be here. We would have gladly paid for any wrong we might have done.”

  He paused. “But this is the crux of the matter—we haven’t done any wrong. We—”

  “Just a minute, Mr. Gordon,” Judge Chene interrupted. “Are you saying you have no quarrel with the amount the jury awarded, if, let’s say, we determine your client was the cause of the injuries?”

  I suddenly felt a warm spot for Judge Chene.

  Gordon paused, then nodded. “I will show that my client is blameless. However, the amount awarded by the jury is not being contested.”

  Judge Chene made a note.

  Gordon then continued. He had a good voice and an easy manner. “This case turns on a small mechanical device. The plaintiff alleges that it was improperly made and designed, and that it resulted in the sudden acceleration that allegedly caused the accident that is the subject of this lawsuit. This, I submit, was never proven at trial, and—”

  “The jury seemed to think that it was, Mr. Gordon,” Judge Chene said softly.

  He paused, almost like a clergyman about to deliver a telling piece of scripture. “All of us here, you distinguished judges, my learned colleague, and myself are lawyers who have known hundreds of jury cases. Juries are comprised of human beings, not machines. Sometimes, and I submit this is one of those times, they let their human sympathy get in the way of pure reason. What they saw in court was a fellow human, bound to a wheelchair for life. Against that specter they saw a small, well-designed piece of metal. They let their hearts rule their heads, I’m afraid. But we are men of the law, gentlemen, and as such, we must follow what is right, no matter what the circumstances.”

  “McHugh, by his own admission was drinking, isn’t that so?” Judge Noonan queried, his voice a harsh rasp.

  “That is the testimony,” Gordon agreed, almost reluctantly, as though McHugh were his best buddy and he hated to admit human error.

  This guy was good, very good.

  Gordon continued his argument, which was interrupted by numerous questions from the judges, a standard and expected circumstance. Chene probed with quiet questions about the device we alleged had caused the acceleration. Noonan acted as if he were cocounsel with Gordon, asking questions in the form of one-liners demonstrating that he believed McHugh was drunk and the sole cause of his own troubles.

  Judge Palmer asked very few questions. When he did, they revealed no hint as to which way he might be leaning.

  Finally, Gordon ended on a clean point of law, citing several good cases on product liability. He ended with a quote that would have made Winston Churchill envious. He had done a good job, a competent job.

  From my point of view, too damn good.

  Craig Gordon thanked them for their attention, and then it was my turn.

  I remember being in fistfights, some as a boy, others, later, in bars, but always the memories were disjointed recollections of fists thrown and received, snippets of combat, a collage of pain and effort, more dreamlike than documentary in the memory.

  My argument before the court was a little like that. It seemed sudden, at times bordering on violent and over almost before it began, with memories of voices raised sometimes, sharp exchanges, but no actual blows, only verbal jousts.

  Judge Chene, I remember, had seemed to have been on my side. He and Judge Noonan got into quite a brawl. Of course, not between themselves. I was the tennis ball in their match. Each man took on the other through questions to me. The action was fast, the emotions muted but furious.

  I remembered being as eloquent as I could be in describing Will McHugh’s plight—his diapering, the loss of the last vestige of dignity. Noonan had scoffed, but Chene had been my protector.

  Oddly, I could not recall one question asked by my old mentor, Judge Palmer. I was conscious of his eyes, but I could read nothing in the expression.

  And then I was done.

  Gordon used his five minutes in a smooth statement of the law, in sharp contrast to my emotional pleas. It was very effective, I thought.

  I had reserved time also, just in case.

  “Mr. Sloan, any rebuttal?” Judge Palmer asked.

  I got up and once again walked to the lectern.

  I really didn’t know what I might say. I took a moment to look at each judge. Noonan looked away.

  “This morning, in the first case before this panel, a young man represented a defendant in appeal. It was, he told me, his first case. He was nervous, as you may recall.

  “He did not have the experience of the distinguished Mr. Gordon, or even myself. He was just a young lawyer trying very hard to say what he believed in. I thought he said it so perfectly, I’m going to borrow his rebuttal and make it my own.”

  Even Noonan was looking now. “Will McHugh asks for nothing more than any other American.” I paused. “He asks for justice.”

  There was no applause, nor was there any other reaction. Except, once again, the three judges got up and exited the courtroom to conduct their short meeting.

  The court officer rapped the gavel and it was all over, at least for Will McHugh.

  I gathered up my papers and stuffed them into my briefcase.

  Craig Gordon came over and offered his hand. “Nice job,” he grinned. “Too bad it wasn’t a jury.”

  “For juries I throw in tears and an occasional faint.”

  “I must come and see you in action. It sounds exciting.”

  He left in the company of the two young tigers. I gave them a few minutes to get clear of the building and then followed.

  I wondered what I could possibly tell Mickey Monk.

  IT ALL SEEMED SO AHTICUMACTIC this one brief hour to decide the fate of so many: McHugh, his wife, their children, and poor Mickey Monk. I was all alone in the elevator, and in my imagination it took forever to get down to the lobby level.

  I decided I’d call Mickey Monk from a lobby phone.

  “Charley!” The deep voice rumbled like a crack of thunder.

  I turned to find myself confronted by Jeffrey Mallow, the former judge, towering over me, making me feel like I was being confronted by a bear.

  “What brings you down here, Charley? Lonesome for the city?”

  I shook my head. “I just argued a case upstairs.”

  “Which one? Not that product liability case you were telling me about?”

  I nodded.

  “C’mon, Charley, you must tell me all about it.”

  Once again he grabbed me with an enormous arm and half picked me up as he moved swiftly toward the building’s rear entrance. “I’ll buy you a coney island. That’s something you can’t get up in that little shit-kicker town of yours.”

  “I’d like to, but I have to make some calls.”

  “Nothing’s more important than a coney island, Charley. Nothing. They have medicinal properties. The Greeks were the first physicians. This is what they used for medicine.”

  The only way I could get away was to call for a cop. But, he was right, there was only one place to get real coney islands, and it was just across the street in two fast-paced Greek restaurants that specialized in practically nothing else. Locally, they were famous and had been for fifty years.

  And, surprisingly, I was hungry.

  “Okay,” I said, “but we’ll have to make this fast.”

  He dragged me across Michigan Avenue and shoved open the door to one of the restaurants. The main lunch crowd had not yet arrived, so we had the place almost to ourselves.

  “Let’s grab a table,” Mallow said. “I hate sitting at that damn counter.”

  We sat down and a young Greek waiter came for our order. He looked as if he had just stepped off the old “Saturday Night Live” Greek restaurant set. Only this place had been here long before that, and even before television.

  Mallow ordered two coney islands and a beer.

  I asked
for one and a mug of coffee.

  Our waiter shouted in Greek to the cook—stationed at the front of the place with his grill in full display—who shouted back in Greek.

  “So how did it go, this product liability case of yours?” Mallow asked as the waiter slapped down the coffee and beer in front of us.

  “Hard to say. Judge Chene seemed favorable.”

  Mallow snorted. “Don’t let that fool you. Chene just likes to be everybody’s friend. He could smile and shoot you in the ass at the very same time. I never really liked him much.”

  “Noonan seemed hostile to my side.”

  Mallow laughed. “He was born hostile. Mean Noonan, the name fits him like a glove. Besides, he almost always sides against injury plaintiffs. He can’t help it. I think it’s a habit with him.”

  He took a long pull at the beer directly from the bottle, eschewing the glass. “What about Frank Palmer? He was on that panel, right? How did you read him?”

  “I couldn’t. As far as I can tell, no one can.”

  Mallow chuckled. “On the bench we used to call him the Sphinx.”

  The waiter returned and again slapped down the dishes, as if to do otherwise would have been impolite. A kind of Greek cultural flourish.

  A Detroit coney island, I’m told, is unique to the Motor City. It is a long hot dog in a bun, covered by a watery chili and enough chopped onions to ski on. All of this mixed with a river of strong mustard. There’s no easy or dainty way to eat the things. One coney island requires at least a dozen napkins, and even then clothes and skin are stained almost forever.

  In my opinion, it’s all worth the sacrifice.

  We attacked them in silence. There was no other way. Conversation was not possible. Trying to eat the sliding, sloppy concoctions required absolute concentration.

  Finally, we were both done. A mountain of stained napkins lay between us. I sipped the coffee. It was almost as good as the hot dogs.

  Mallow signaled for another beer. “Well, Charley, what’s your gut hunch? Did you win?”

  “Frankly, I don’t know. I hope so, but you know how those things go. I won’t know until the decision comes down.”

  Mallow gulped down half the new botde of beer. “Tell you what. I’ve got to be up there later today. They want me to sit as a visiting judge in a month or two. Let me nose around and see what I can find out.”

  “I appreciate the thought, but that’s not necessary.”

  He smiled broadly. “Hey, we St. Benedict boys have got to stick together.” He stood up and looked down at me. “I used to run the joint, remember. I’ll look into it.”

  “There’s no need, really.”

  He shook his head, as if shaking away my protest.

  “It’s a favor, Charley. I do them all the time. I’ll let you know what I find out.”

  Before I could protest further, he was gone.

  Also, I noticed, I got stuck with the check.

  I sipped the last of the good coffee. Jeffrey Mallow was probably just putting on a show for my benefit, a performance to remind me that once he was an important man.

  If that’s what it was, I felt sorry for him.

  I paid the cashier and then went looking for a public phone.

  MICKEY MONK SNAPPED UP the phone as soon as his secretary told him I was on the line.

  “Jesus, what took so long?” he almost screamed at me.

  I decided to lie a little, out of kindness. If I told him I had stopped for lunch, he would have thought I was a monster. “The first case took longer than expected, and the judges were out for a while after that. Anyway, it’s finally over.”

  “Well, what happened?”

  “It went according to plan, Mickey. There were no big surprises on either side, no miracles.”

  “You must have some idea of how it looks for us?” It was a question, but it sounded more like begging.

  He had bet his whole life on the outcome. I knew I’d have to pick my words carefully so he wouldn’t be crushed or falsely elated.

  “I can’t say for certain, but I think Chene bought our argument. Every question seemed to indicate he was on our side.”

  “God bless the little son of a bitch.”

  “On the other hand, Noonan sounded like the opposition attorney. He got rather nasty at times.”

  “He’s a prick. Everybody knows that. What about Palmer?”

  “He hardly asked a question, either way. I saw nothing that would even let me guess which way he might be leaning.”

  Monk chuckled softly, the way people do when they know a secret. “Hey, Charley, he’s your buddy, hell, he’s your mentor. He’ll go along with us. I know it.”

  I almost wished he was right, but I knew he wasn’t. “You don’t know him, Mickey. He follows the law as he sees it. Even if it was his mother arguing the case, it wouldn’t make any difference. We’ll get no special advantage. He goes strictly according to the law. I told you that from the beginning.”

  “I know, I know. But, people, even judges, are human. You watch and see. We got just as much law on our side as they do. He’ll go for us. I know he will.”

  I sighed. Mickey desperately wanted a world far more kindly than the one he presently occupied.

  “Will you call the McHugh family, or should I?” I asked.

  “I’ll call them. They know me better.”

  “What are you going to tell them?”

  “What do you mean?”

  “Mickey, this thing is still a crap shoot.”

  He snorted. “Maybe. But what the hell, why not make them feel a little good about things for a while. What can it hurt?”

  “It could hurt a lot if we end up losing.”

  There was a pause, and then he spoke quietly, without emotion. “Yeah, it could, and it will, if that happens. In the meantime, what can a little hope hurt, huh? Let them fantasize about spending the money, at least for a while.”

  “What are you going to tell them?”

  There was another pause. “I’m going to tell Will McHugh you think you’ve won the case.”

  “But—”

  “Fuck it, Charley. Even if it goes bad eventually, let’s allow the poor fuck a few dreams before the world caves in on him.”

  “When will you call them?”

  “In a half hour or so. I have to prepare. This is going to be a three-martini call. I feel real good, real optimistic after three quick ones. I should sound natural enough. At least I hope I will.”

  He paused. “Tell me the truth, did you do your best, Charley?”

  “Of course I did.”

  “That’s all anyone could ever ask.”

  9

  Saturday came and I picked up Sue Gillis at her apartment. As far as floor plans went, her apartment was almost a duplicate of my own—two small bedrooms, a combination living-dining area and a compact kitchen. Her apartment complex bordered a local golf course; sliding doors that opened to a small balcony off her living room provided an unobstructed view of towering trees, manicured lawns, and hedges. It was like having a private park just beneath the front window.

  My place looked out on a parking lot.

  There were some other basic differences between our two apartments. Hers was an honest-to-god home, tastefully decorated, lots of plants and paintings, an inviting nest that suggested comfort and sanctuary.

  Mine looked like a transient hotel, just a place to sleep and not much more.

  I liked her place better.

  Sue, dressed in tight jeans and a T-shirt with a printed photo of Elvis above a slogan saying he was alive and in Kalamazoo, looked even younger than usual. She wore no makeup, at least none that was apparent to me, and her ponytail swung with a life all its own. In short, although she was closing on forty, she not only looked like a healthy and vibrant teenaged cheerleader, she looked much more like my daughter than my date.

  When she had inspected me at the door, I wasn’t sure she liked what she saw.

  “You look uncomfortab
le without a suit and tie, Charley. Are you?”

  I nodded. “I even wear them to bed. It saves money on pajamas.”

  Actually, I thought I looked pretty snazzy. My summer slacks, a nice deep tan, were pressed. My shirt, a pullover, also tan but lighter, fit reasonably well, and I wore my docksiders with tan socks. But, not even in the wildest imagination, might I be mistaken for a cheerleader.

  Sue had prepared a tray of exotic cheeses and even more exotic crackers. I drank a highly spiced iced tea; I wasn’t sure what she had in her glass, and it seemed impolite to ask.

  The sliding doors were open and a gentle breeze was as relaxing as a cloud of Valium. I hated to think about having to leave.

  “I could only get lawn seats,” Sue said. “But I go to a lot of concerts out at Pine Knob and I kind of like that better than being jammed into the pavilion seats. I prefer lying out on the grass, watching the night sky, and listening to the music.”

  “If it doesn’t rain.”

  She laughed. “Should I bring an umbrella, Charley? Are you one of those?”

  “Those?”

  “Rigid people. Everything has to be planned, every contingency envisioned. Schedules kept, clothes hung on numbered hangers. Are you one of those?”

  “Jeez, I hadn’t thought about numbered hangers. What a great idea.”

  “I packed a picnic lunch,” she said. “We can dine under the stars, if that suits you?”

  I grinned. “Fancy French things?”

  “Baloney sandwiches.”

  “Let me warn you. I’m sort of the Craig Claiborne of baloney sandwiches. As a critic, I’m merciless. They had better be good. Shall we go?”

  PINE KNOB, NORTH OF DETROIT, is like a lot of other outdoor summer pavilions on the fringes of big cities throughout the country, booking big name entertainers, and, mostly, selling all available space to thousands who pay a healthy price to see and hear the star attractions.

  Ushers guided all of us motorists, whose vehicles were kicking up clouds of dust in the unpaved fields used as parking lots. It went smoothly enough. Then we joined the others, and like an army of ants, we all trudged toward the entrance, moving through checkpoints, showing tickets and allowing search of all hampers so that no guns, hard liquor, or antitank missiles might be brought in that could possibly later cause temptation among the less disciplined.