Shining City

by Tom Rosenstiel

  “I just received a phone call about the Johnson case from a reporter. Someone named Gary Gold. He is onto the same question you are, Mr. Rena. I did not share information with him.”

  Everywhere he turns Gold is there.

  They’d barely thwarted him on the Berkeley story. He must have pivoted to Martell. He’s got to be at least a day behind them, or they’d have picked up more sign of his trail.

  Gold would also call for comment if he were ready to write. And he hasn’t. Nor is the reporter among the 317 emails.

  But Gold’s presence represents another level of threat. If something did connect the murders of three people involved in the Johnson murder trial, Gold would connect it just as he and Smolo have. And he would look at the case in the most negative light.

  That is one concern, a practical one.

  The other is more obscure, but in some ways it bothers Rena more. Something about this case haunts Madison. Rena had sensed it a week ago in Madison’s reaction to Martell being killed. It’s why he had sent Smolo out here. He saw it again Friday night. It’s why Rena had come to California, too. Now three murders.

  He has to talk to Madison. Face-to-face.

  A weary older couple next to him paw wordlessly at airport hamburgers. Their exhaustion makes him feel his own.

  Should he call Carr? No, there is apparently enough anxiety in the White House about whatever happened in the hearings. He wonders what Carter White may have unearthed about rot inside Rena and Brooks’s office.

  He dials another number.

  Senator Llewellyn Burke answers on the second ring. Only a few people have the number to his cell.

  “I need a favor, Senator. I need to have tomorrow’s hearings postponed. It’s critical that the hearing not resume first thing tomorrow morning. At a minimum, not until the afternoon.”

  Burke is not on Judiciary, but he and Senator Morgan are friends. He could ask the chairman for this and get it. But it couldn’t come from the White House. Politically that would be too damaging.

  “Peter, today was a difficult day for Judge Madison. A postponement would not benefit his chances. Why do you want this?”

  Whatever he tells Burke, the senator would have to share with Senator Morgan. Which means it could leak.

  “It’s not a political matter, sir.”

  “You’re not going to tell me?”

  “No, sir.”

  Burke is silent on the other end for what seems like minutes.

  “Peter, you can’t postpone these hearings more than a couple of hours,” the senator says at last. “Not after today.”

  “Even a few hours would help.”

  “I will see what I can do.”

  Rena hangs up, closes his eyes, and takes a deep breath. The tired couple has left.

  He calls Smolonsky. He needs to tell his investigator that he’s returning to Washington. “Have you seen Johnson’s mother?”

  “Tomorrow morning.”

  Like old police, they slide into comparing notes on Calvin Smith’s murder. He’d been bludgeoned with a rock while fishing. Police had nothing. No DNA. The trail went cold right away. Smith had become something of a bitter drunk in retirement.

  “All three of these murders share one thing: no clues,” Rena says.

  “Which could be a coincidence.”

  “Or a sign of a skillful killer,” Rena says.

  “Who did these victims know in common who was a skillful killer?”

  “That’s one place to look,” Rena answers.

  “Pete, there’s another thing.”

  “What?”

  “If it is one killer, he’s changing. Getting more violent.”

  “He’s starting to like it,” Rena says.

  Rena wakes to the sound of the pilot announcing final approach. The red-eye from San Francisco arrives at Washington Dulles International Airport in Virginia at 6:15 a.m.

  The airport is a waking village, workers pulling up store grates, turning on grills for cooking breakfasts, filling bakery displays. Rena waits till 6:30 to call Madison.

  “Did I wake you?”

  “I was going for a run.”

  “Not this morning. Meet me at my house in an hour.”

  He calls Brooks from the cab. Morgan had postponed the start of the hearings until 11:00 a.m., she says, which is helpful. The White House had scheduled a strategy meeting in the Old EOB at 8:00. Can he be there?

  So Burke succeeded, and the delay wasn’t so long that it might signify panic.

  “I’ll probably be late,” he says. He needs to see Madison first, he explains. So the Judge will be late, too.

  “Tell me about this other killing,” Brooks says.

  He fills her in with more details about the murder of Calvin Smith.

  “Jesus, you think someone is killing people involved in this case?”

  “It’s a possibility.”

  “Have you told Carr?”

  “I want to talk to Madison first.”

  “I’ll take care of talking to Spencer,” she says. “He’s already so angry with me I think it’s better if I absorb the fury for both of us.”

  “I’m sorry I wasn’t here yesterday.”

  “We’ve got more important things to worry about at the moment than my feelings,” she says. “But thanks.”

  At home Rena intends to shower but lies down for a moment. Ten minutes later the doorbell wakes him. He is asleep in the clothes he put on yesterday morning. At the door, Madison holds a large coffee in each hand.

  “A peace offering,” the judge says with a wan smile.

  They sit at the small breakfast table in Rena’s kitchen, a nook bathed in light overlooking a small patio. Madison makes uncharacteristic small talk about the weather back home in California, whether Rena saw the hearings.

  “No, but I talked with Randi.”

  “She’s worried,” Madison says, more a question than a statement.

  “That’s why she’s so good, Judge.”

  “Yes, she is the methodical one,” Madison jokes.

  Rena’s stomach isn’t ready for the coffee.

  “Aren’t you curious why I called?”

  “I was waiting for you to tell me.”

  There is no preparation for this. No long interrogation path.

  “Alan Martell and Rochelle Navatsky are not the only ones you know who have been murdered. So was the chief police investigator in one of the cases they had before you, the murder trial of Robert Johnson. The police officer was named Calvin Smith. All three murders are unsolved.”

  Madison lifts his head back and closes his eyes.

  “My God.”

  “Judge,” Rena says after a moment, “I think you’d better tell me about the trial of Robert Johnson.”

  Forty-nine

  Tuesday, June 23, 7:48 A.M.

  Washington, D.C.

  Madison’s recall is almost photographic.

  Rena feels as if he is seeing for the first time how the famous scholar’s mind really works.

  “I had been a judge six months, and it was already my third murder trial. I was discovering, after decades of being a law professor and a law school dean, just how different criminal law was in theory than in practice. And how ugly that difference was.”

  Madison’s eyes are fixed past Rena on something in the patio outside.

  “Whenever I think of the trial, I think of the third day. There was a moment, when Rochelle Navatsky was thumbing through papers looking for some lost document. Two large dark stains of perspiration began to spread out on her silk blouse. She mumbled something about begging the ‘court’s indulgence.’ I knew at that moment Johnson had no chance.”

  “What had happened?”

  “Nothing in particular. She’d simply lost her place for a moment. She reminded me of a first-year law student, someone who is talented but too nervous to stay out of her own way. She’d probably be a fine lawyer someday. But right then she was panicking. It annoyed and confused the jur
y.”

  Madison’s eyes find Rena’s.

  “She was also very self-conscious of her looks, and she compensated by dressing like a prison matron. The jury hated her.”

  “And Martell?”

  “He was winning and he knew it. He was a mediocre lawyer, but he had a kind of everyman charm that connected with the jury. That seemed to make Navatsky even more panicky.”

  “Was Johnson guilty?”

  “Robbie Johnson?”

  Madison leans his head back.

  “He was not sympathetic. He was a sullen eighteen-year-old, physically awkward. He had a kind of twisted mouth, some mild disfigurement. Mostly he was in shock. He looked at his own lawyer as if they were strangers.”

  Madison’s expression melts into sadness. “He wore the same polyester suit to court every day. It was the wrong size. He looked like a sinner dressed for church.”

  “And was he guilty?” Rena asks again.

  Madison shakes his head as if the question were irrelevant.

  “The prosecution had two things going for it. A theory that fit the facts: Morrison was a cheerleader, vivacious, good student, social, popular, pretty. Johnson was a loner, quiet, on the edge of trouble. The evidence was clear he had become obsessed with her, wrote about her in diaries, had a collection on his computer of pictures of her. All of which might well have been innocent, but could have been stalking. And Johnson had no alibi.

  “The other thing Martell had going for him was confidence. He didn’t care about the weaknesses in his case. He didn’t think they mattered to the jury. So he laid it on thick, like slopping paint over a crack to make it look as if it’s disappeared.”

  “Why didn’t Navatsky plead out?”

  “I wondered. There could be lots of reasons. A skilled defense lawyer could have shredded Martell. She was trying. She didn’t know how.”

  “And why didn’t you do something?” Rena asks.

  Madison pauses.

  “You know what I learned during this trial? I discovered how common a problem it is for judges to oversee two bad lawyers. Bench judges talk about it constantly.”

  Madison’s gaze is fixed on something outside again.

  “I even raised it during a monthly lunch we had of the judges. What did they do when both lawyers were bad?”

  “What did they say?”

  “Bromides mostly. That ‘it’s the worst.’ That ‘you can’t try the case for both sides.’ ‘Take two Advil.’”

  “Not very helpful,” Rena says. This story is leading somewhere. Rena needs to let Madison get there.

  “Some of the advice was more thoughtful. They told me that there’s a lot judges can’t know. Lawyers have strategies in mind that a judge may not recognize. What might look like a mistake may be a lawyer trying to avoid exposing some other, more damaging hole in their case. A judge intervening can actually make things worse.

  “Someone even told the old joke about a lawyer asking to see a judge in chambers and saying, ‘I don’t mind if you try my case, Judge, just don’t lose it for me.’”

  “So bad lawyers are a joke?”

  “No,” Madison says, almost in a whisper. “They’re a bruise, a flaw in the system, a source of contention. At the lunch, it turned into argument. Someone said that judges presiding over bad lawyering should lean more toward protecting the rights of defendants, because the power of the state was always stacked against them. He was shot down by someone more senior who said judges are there to protect the law, not the defendant or the prosecution. Which, of course, is the textbook answer.”

  “Is that what you did with Robbie Johnson? Protect the law?”

  Madison doesn’t answer. He isn’t finished with the story.

  “My closest friend among the judges was a woman named Elizabeth Labow. She was a bright star on that bench. She didn’t offer an opinion, but she asked the senior judge, a man named Sam Weiss, what he thought.”

  “And what did he say?”

  “He said he wasn’t sure you could protect the law. But he thought you could protect the trial process. Like a boxing referee, you can try to make sure it’s a fair fight, even with bad lawyers, but you can’t guarantee it will be a good one.”

  “You don’t think this was a fair fight, though, do you? Or a good one?”

  Madison looks at Rena.

  “A judge’s hands are supposed to be tied. You can set aside a guilty verdict and let the boy go free, available for retrial if the police find new evidence. But almost no judge would. It would be extraordinary. The only way a judge could overturn a guilty verdict in a case like this is if he knew with certainty the boy was innocent.”

  “Rollie, what did you do wrong?”

  Fifty

  No one gets to Senate confirmation without every minute detail of his or her life scrutinized. Everything public is found—every trial, every press clipping, every public statement. And nothing untoward had surfaced in the Johnson trial transcript. If there were anything there, Brooks’s team or the White House—or conservative groups opposing the nomination—would have found it.

  They had not found anything.

  Yet someone might be engaging in revenge killings over Robert Johnson’s conviction. That means eventually somebody else, probably Gary Gold, is going to take another look at that trial.

  And something about this case nags at the judge. Whatever Madison is hiding, Rena has to find it now before the hearings go any further.

  “Do you think Johnson was innocent?” Rena says again.

  “What I thought didn’t matter. It was a jury trial. The judge doesn’t determine guilt.”

  Rena stands up.

  “Well, that’s great. You may have presided over an innocent man going to jail because it wasn’t your job to worry about it. You were only the judge.”

  “That’s the way the system works, Peter.”

  “Most Americans don’t know that.”

  Rena stops pacing.

  “Rollie, there is a reporter a half step behind me on this. If he connects these murders and starts to wonder why someone is taking revenge for Johnson, the nuances about jurist prudence and the role of judges won’t much matter. The story will be how an embattled Supreme Court nominee presided over the conviction of an innocent man.”

  The two men match stares.

  “It’s the most frustrating thing a judge faces,” Madison says, looking away. “A terrible crime and a weak case. Both lawyers were bad, for different reasons.”

  “Whatever happened to ‘better to let a thousand guilty men go free rather than send an innocent one to jail’?”

  Madison smiles wearily. “Blackstone’s Ratio.”

  “What?”

  “That’s Blackstone’s Ratio. And the line is better that ‘ten guilty persons escape than that one innocent suffer.’”

  “God damn it, Rollie! Did you send an innocent man to jail?”

  Madison stands up. “Do you know how many innocent people are convicted each year in the United States, Peter? Even if it’s just one percent—and that is the academic estimate—that’s more than ten thousand a year. Each year. A hundred thousand every decade.”

  Rena moves to the table and tries a swallow of coffee, but he’s still not ready for it.

  “Ten thousand people, Peter, wrongly convicted annually. And, of course, most of them are poor and most of them are people of color. I didn’t mention that in the hearings yesterday, by the way.”

  Madison is pacing now.

  “Oh, and, of course, let’s not mention that the problem is getting worse, because we lock up about triple the number we did thirty years ago.”

  Rena feels the weight of his exhaustion begin to make him dizzy. He rubs his face, trying to massage the tingling sensation away.

  “What happened during that trial, Rollie?”

  “What happens in most trials? The forensics is vague. The police work is imperfect. The eyewitness testimony is weak. The people who can’t afford good lawyers suf
fer most. If you think rich people get better medical care, multiply it by ten for the legal system.”

  Rena is certain none of this made it into the idealized depiction of the American legal system Madison offered the Judiciary Committee yesterday, either.

  “Probably every bench judge in America has overseen sending an innocent person to jail, and most don’t even know it.”

  Suddenly Rena knows what Madison is hiding.

  It isn’t that Johnson was innocent or that Madison suspects some connection between the Martell and Navatsky murders.

  It is something Madison had done.

  “You think you mishandled the trial. Something haunts you.”

  Madison opens the patio door and walks outside. Rena follows him.

  “I’ve never said this to anyone before, not even Vic,” Madison says, turning to face Rena.

  “Said what, Rollie?”

  “I did everything a judge is supposed to do and a man who clearly had not been proven guilty by law went to prison anyway. And then died there.”

  “I don’t understand.”

  “What bothered me is that this was entirely acceptable. No, not acceptable, expected. Demanded. The jury decides. The judge presides. Almost every bench judge would have done exactly as I did. Except I knew Robbie Johnson was not guilty as a matter of law.”

  “What does that mean?”

  “It means that I couldn’t see a way to act as a judge is expected to and worry about justice at the same time. And, you’re right, that haunts me. It means that what we tell our judges to do struck me then and strikes me now as inadequate. And this wasn’t theoretical. I saw those people in front of me. A car wreck of a trial. And I have never figured out entirely how to reconcile that.”

  Madison sits down on a patio chair. He looks utterly weary.

  Rena sits down next to him.

  “I’ve pondered it many times, just to myself. But if I were a bench judge now, that trial would have been different. I would push the limits. Not simply ensure the fight is fair. I would do everything I could to see that the treatment of the victim and the defendant both were just.”

  “You would have directed the verdict?”

  “No. The system won’t allow that. But I would have made the lawyers better. Made the trial better. I would find a way to tell that prosecutor that his case was weak, to scare him into not being lazy. I would bring the defense counsel in with her co-counsel and tell them that they couldn’t train Navatsky at Johnson’s expense. It means I would find some cracker-jack defense attorney in town and force that lawyer to help out on the case. It means I would do whatever the system allowed me to do, not just what it expected me to do. Seven years ago I was learning how judges and police and prosecutors and defense attorneys behaved. I hadn’t learned how they could behave.”