A Statue for Jacob

by Peter Murphy

  Instead, I found a forty-five page brief, exclusive of the table of contents and table of authorities, accompanied by a polite handwritten note from Kiah apologising for its lateness and offering me an unopposed adjournment for a week to allow the government time to respond. Once I recovered my composure I called in Harry and Ellen, and we scanned the brief quickly together with the aid of some very strong coffee. As we read, my pleasurable anticipation gave way to something approaching shock. Instead of a sensible concession that the case was untenable in the face of clear black-letter law, I was reading an indictment of the government (myself, presumably, included) for knavishly trying to nullify an article of the United States Constitution; and, equally knavishly, trying to deprive Samantha van Eyck and all those similarly situated of their constitutionally guaranteed right to recover a debt – a debt that represented the price of liberty – without even allowing them their day in court. What I had assumed to be an unanswerable motion to dismiss was being painted as a flagrant disregard for the Constitution and a blatant abuse of executive power, which no court should countenance. I wasn’t the only one going hot and cold. I could see Harry’s blood pressure rising. Only Ellen kept her cool. In fact, she giggled several times as she was reading, and she actually applauded one paragraph.

  ‘This is brilliant,’ she said as we reached the end. ‘Absolutely brilliant.’

  ‘I’m glad you find it amusing,’ Harry muttered sourly.

  ‘Credit where credit’s due, Harry,’ Ellen persisted. ‘This is amazing stuff. It raises questions of pure constitutional law.’

  ‘I think Harry’s main concern is with the more immediate problem of what we do about it,’ I suggested.

  ‘Questions of pure constitutional law, my ass,’ Harry protested. He glanced anxiously at his watch. ‘It’s bullshit. Not only that, it’s outrageous. It’s a calculated ambush. Now she leaves this for us to find? Now? This morning, at nine fifteen, when we’re due in court at eleven? We should get our asses down to the courthouse and tell Tomorrow that he can’t allow her to file this; tell him it’s a contempt of court and he should decide the motion on our papers, in addition to imposing appropriate sanctions for her abusive conduct in dropping this shit on us without any notice. And in addition to that –’

  ‘Harry, just calm down for a moment,’ I said.

  I turned to Ellen. Together, we lowered Harry back into his chair.

  ‘Get him some more coffee.’

  ‘I’m not sure coffee’s the right thing,’ she whispered.

  ‘Get him some more coffee.’

  ‘I don’t need more coffee.’

  ‘Yes, you do. Drink it.’

  ‘We can’t get rid of it that easily, Harry,’ I said as he accepted the coffee with a show of reluctance. ‘I served our motion last Monday, and I fixed the hearing for today, so I only gave her a week for any response. Obviously, I only did that because I didn’t think there would be a response. I thought she would throw her hand in. But Tomorrow would have given her at least two weeks to respond if she’d asked him. I would have given her at least two weeks if she’d asked me. He’s not going to stop her filing her brief, and he shouldn’t.’

  ‘In addition to which,’ Ellen said, ‘she’s raised some serious issues. This isn’t going to be as simple as we assumed. We need to take some time and think about how to respond.’

  ‘You both told me we were home and dry,’ Harry objected petulantly. Ellen might have been right – the coffee might have been a mistake. It had given him another shot of caffeine, and he was getting worked up, which wasn’t good for him. Nonetheless, he had a justified complaint. We had pretty much told him that it was in the bag.

  ‘Relying on what the two of you told me, I assured Maggie Watts that everything was under control, that it would all be over today. She passed that message up the line to –’

  ‘Yes, I know, Harry,’ I replied. ‘But it’s only a short delay. It’s not the end of the world.’

  ‘Oh, you think? What do I tell Maggie now? What do I tell her when she asks me what she tells the Attorney General, and what he tells –?’

  ‘You tell her that the plaintiffs have filed a late brief, at the eleventh hour, without giving us any warning. We don’t think it has any merit –’

  ‘Don’t we?’ Ellen asked quietly.

  ‘No, we don’t. But it would be irresponsible of us not to ask for time to consider it fully and file a reply.’

  ‘And even if we didn’t ask for time,’ Ellen added, ‘there’s no way Judge Morrow would rule on the motion today, not with a brief like that coming across his desk at the last moment. No judge is going to rule on issues like this without being fully briefed in writing by both sides.’

  Harry looked suspiciously at Ellen and me in turn.

  ‘I want a report on my desk by four o’clock this afternoon,’ he said, pointing a finger as he left my office.

  ‘Harry, take one of your pills,’ Ellen called after him.

  ‘Don’t nag me,’ he shouted from the corridor outside. ‘Just get rid of this.’

  ‘You heard the man,’ I said.

  She smiled. ‘I guess I’ll get started on it, then.’

  ‘Ellen, do we actually think this has some merit?’ I asked, just as she was leaving.

  She turned back to face me.

  ‘It has some merit, definitely,’ she replied. ‘It’s a great piece of lawyering, any way you look at it. Well, we didn’t see it coming, did we?’

  ‘No, we didn’t.’

  ‘But that doesn’t mean she’s right, and it certainly doesn’t mean we don’t have a response to it.’

  I nodded. ‘I need a progress report not later than two o’clock.’

  I called the court and got Judge Morrow’s clerk, Maisie, to adjourn our motion for a week. She offered no resistance at all. Judge Morrow was reading Kiah’s brief as we spoke, and they had both been expecting our call. I called Kiah to tell her.

  ‘I got your brief,’ I said, ‘and Judge Morrow has agreed to the adjournment.’

  ‘I appreciate the call, Dave. Thank you.’

  She paused.

  ‘What did you think of it?’

  ‘Very impressive,’ I replied. ‘We may throw our hand in. Is the offer to take Rhode Island still on the table?’

  She laughed.

  ‘I’ll talk to Sam. But we still want the statue as well.’

  ‘OK. I’ll see you next Monday morning.’ I had to ask. ‘Kiah, that brief is more like the kind of thing you see in the Supreme Court. How the hell did you do that in a week?’

  ‘I told you,’ she replied. ‘I had a call in to my fairy godmother.’

  32

  The United States Claims Court sits in the Howard T Markey National Courts Building in Madison Place, NW, a pleasant and short enough walk from our offices. When Ellen and I arrived in Madison Place at ten o’clock, an hour before the scheduled hearing time, we expected to have it to ourselves. The Claims Court doesn’t usually generate much publicity, and it’s certainly not a venue for the kinds of sensational cases the press and the TV networks love to report – the stories of bloodshed, corruption, and betrayal. You expect that kind of thing at the various criminal courts in and around the District. You expect it down the road at the Supreme Court, where there’s always some kind of national drama unfolding. But those of us who toil in this little-noticed corner of the legal vineyard don’t have the kind of cases that attract the attention of prime time news programs, and we’re not used to being besieged by hordes of journalists clamouring for sound bites. We are used to having our courthouse to ourselves, used to being free to enter and leave the building without being caught up in the glare of the media spotlight. We are used to conducting our unremarkable legal business in a suitably quiet and unremarkable legal backwater. But not today: today, the word was out. Madison Place was the
place to be.

  As television cameras from every part of the United States and beyond tracked our every move, we had to fight our way into the building through a veritable throng of reporters thrusting microphones into our faces, some demanding to know why the government was refusing justice to a true American patriot, others demanding to know whether we were going to save the United States from imminent bankruptcy. I saw copies of Kiah’s brief, no doubt downloaded from the court’s website, in some of their hands. There were members of the public too, with placards denouncing the government’s meanness and lack of concern for justice on behalf of veterans generally and the heroes of the War of Independence particularly. If it hadn’t been for Donald and Shirley, two calm, experienced court security guards I’d known, for years, who intervened on our behalf, I’m not sure we would have made it inside without some kind of incident. Donald is a quiet but large black man in his late forties, a former high school linebacker. Shirley is a fading blonde in her fifties who chews gum and she is only half Donald’s size, if that, but if you had a choice between messing with her and messing with Donald, you would probably mess with Donald.

  Only when we were inside the courtroom did I remember Harry’s stricture about not talking to the press. Had I? Had I remained totally silent during the scrimmage? I didn’t think I’d said anything stupid to anyone. I had a memory of telling some reporter who kept shouting at me and wouldn’t leave me alone, that today wasn’t such a big deal, that it was just a preliminary hearing on a point of law – which was true as far as it went, but didn’t quite do justice to the day’s proceedings. But I didn’t think I’d given them anything worth quoting me on.

  ‘What in the hell kind of case do you have today?’ Donald asked breathlessly, once we were safely inside the building. ‘Is America about to fall apart?’

  ‘That depends on who you ask,’ I replied.

  ‘They don’t pay us enough for this,’ Shirley protested.

  ‘They don’t pay me enough for this,’ I chimed in.

  Donald smiled.

  ‘Welcome to the NFL, Bubba,’ he replied.

  The memory of Harry’s instructions about not talking to the press also made me wonder how he would have coped with it all. Not well, I suspected, and he would be sucking down his pills like candy by now. Fortunately, we had persuaded him to stay at the office. He had wanted to come with us, but I had told him that I didn’t want to present Judge Morrow with the image of three of us ganging up on Kiah. If we outnumbered her too much, it might suggest that the government was using its superior resources to bully her. I needed Ellen, because she’d written our reply and was on top of the law, and that was already two against one. Besides, I added, it was important for Harry to be available at the office to coordinate things and distribute information once we knew which way Judge Morrow was going to go. I wasn’t really sure what that meant, but he seemed to like it. Thank goodness. I had enough to deal with today without having to worry about keeping Harry calm.

  The courtroom itself was almost as bad as the main entrance to the building. Some of the reporters had followed us in, and others were already in place in the press seats. The public gallery was also full. It turned out that every law clerk, intern, and law student in the building had abandoned whatever court they were assigned to in the interests of witnessing what might turn into a historic occasion. Well, of course. They couldn’t keep this quiet at the courthouse any more than we could at the office. This was the most interesting case to come to the Claims Court in a long time – perhaps ever – and no one wanted to miss the show. What was even more intimidating was that the law clerks, interns and students had all come prepared with laptops and yellow pads. Notes would be taken for later discussion. The disquieting thought came to me that Kiah and I were about to conduct a very public class in constitutional law and civil procedure, and there was every chance that whatever we said would be dissected and judged at leisure, not only by Judge Morrow, but by an unforgiving body of legal academics and commentators – in addition to the news reporters who just thought it was a great story. So, no pressure then.

  I glanced at Ellen, who was systematically unpacking her briefcase, and depositing copies of the briefs and legal authorities on our table. Her hair was slightly out of place, but she seemed composed enough after our ordeal, and even managed a smile when she saw that I was looking at her. I joined her at the table and began setting up my own notes. I poured both of us a large glass of water.

  ‘Did you say –?’

  ‘No,’ she said, ‘not a word. At least I don’t think I did. You?’

  I shook my head. ‘Nothing worth reporting,’ I replied.

  ‘Nothing worth… what do you mean?’

  ‘I mean, nothing… worth reporting.’

  I was saved from further interrogation by the arrival of Kiah, flanked by a young woman I recognised from her press photographs as Samantha van Eyck, and an older woman with big hair and bright red lipstick, who I took to be Arlene. I’d never met Arlene but I’d spoken to her, and had been regaled with her choice pieces of Texas wisdom often enough when I’d had occasion to call Kiah’s office. Kiah was smiling as she approached our table.

  ‘Well, this is quite a turn-out, Dave,’ she said, indicating the assembled ranks of law clerks, interns and law students. ‘Are they all your associates? I had no idea you had so many of them hidden away at Justice. No wonder you guys can come up with those killer briefs.’

  We shook hands.

  ‘I thought they were the Kiah Harmon fan club,’ I replied. ‘This is Ellen Matthews, who actually does write our killer briefs.’

  Kiah took her hand with a smile. ‘I knew someone had to,’ she said.

  ‘I am in awe of you, Miss Harmon,’ Ellen said, with complete sincerity. ‘Truly. Your brief is wonderful.’

  ‘You wrote a good reply too,’ Kiah rejoined. ‘This is my client, Sam van Eyck, and Arlene, who runs our office.’

  Sam shook hands with both of us briefly and with the hint of a smile. She was professionally dressed in a two-piece grey suit, her hair and make-up perfect. Between her and Kiah, you couldn’t have said which one of then was the lawyer unless you knew; you might actually have gone with Samantha. Arlene didn’t offer to shake hands. She raised one arm in the air – some form of Texas greeting, I supposed – and then walked over to their table to begin arranging their papers.

  ‘Any indication from Tomorrow about how he’s going to conduct the hearing?’ Kiah asked.

  ‘Not that I know of,’ I replied. ‘But I haven’t had a chance to look for Maisie. We just got here. We had to run the gauntlet outside, as I’m sure you did.’

  She grinned. ‘Did you have any comment for the Six O’Clock News?’

  ‘Absolutely not. That would be way above my pay grade.’

  ‘He means, he said nothing worth reporting,’ Ellen replied with a smile.

  ‘Did you say anything?’ I asked.

  ‘Not much. Just a few words, the usual kind of thing.’

  ‘The usual kind of thing?’

  She was turning to join Sam and Arlene at the plaintiff’s table.

  ‘Yes: the importance of rewarding patriotism; the decadence of a government that won’t honour its most sacred obligations and has no regard for the price paid for its own liberty; the evils of putting the letter of the law above doing justice – you know, the usual kind of thing. You’ll be able to hear it all when you get back to the office.’

  She suddenly turned back and stood looking slightly down at us, the palms of both her hands on the edge of our table.

  ‘Last chance, Dave. Rhode Island and the statue. What do you say? Do we have a deal?’

  She pushed herself back up and walked away before I could reply.

  ‘I love her,’ Ellen said.

  33

  ‘The United States Claims Court is now in session, the Honoura
ble Thomas Oliver Morrow presiding.’

  It was a well-rehearsed drill, perfected over fourteen years of sitting in the same courtroom. Judge Morrow timed his walk from the door to his seat to perfection, exactly coinciding with the duration of the bailiff’s announcement. He’s a good-looking man, tall and well-built, the hair grey now, but the military firmness still etched in his rugged face. Tomorrow has one of the best courtroom demeanors I’ve ever seen, firm when he needs to be firm, but unfailingly even-handed and courteous to everyone who comes into his courtroom. He has a laid-back manner on the bench, which can sometimes mask a quick, keen legal mind. Kiah and I both knew him too well by then to fall into that trap, but attorneys who weren’t familiar with him sometimes underestimated him, to their cost.

  ‘Please be seated,’ he said.

  Everyone did, except for Kiah, myself, and Maisie. The hubbub of conversation that had filled the courtroom before the judge’s entry had subsided almost instantly on his arrival. The reporters were on the edge of their seats, ready now for the serious business of the day, and the army of law clerks, interns and students also had their laptops and pencils poised for action.