Judge Stang took another puff and swiveled in his chair, turning away from the lawyers and toward his view of downtown St. Louis and the Mississippi River. “You’re right, it is unbecoming.”
“I thought you’d agree,” said Arthur modestly. “If nothing else, it creates the appearance of impropriety.”
“It’s inconsistent with impartiality,” repeated the judge, waving smoke away from his face, “and it’s the appearance of impropriety, or however you put it.”
“That’s right, Judge,” said Arthur. “It’s unduly harsh.”
“The court is persuaded by the arguments of counsel. Upon reconsideration, I hereby order
you
to chew the lumber into sawdust. You’re probably the one who put the lad up to that spurious motion to withdraw.”
Arthur set his briefcase down in lieu of sitting or pacing. “Notwithstanding
the question of the court’s power to order such a thing,” said Arthur, “I must—”
“I’ve got power, and you’ve got money,” said the judge, still turned away from the lawyers, as if he were entertaining call-in questions on talk radio. “I admit I don’t know the answer to your not withstood question, but I can settle it for you in two shakes.”
He tapped the cigar on a stone ashtray the size of a dinner plate. “Ida? Send one of the girls in.”
“Judge,” stammered Arthur, “th-this is really a peripheral matter. W-We didn’t come here to—”
Watson winced, watching his superior, one of the most powerful partners in his firm, chastened into fawning obeisance by the absolute power of a federal district court judge.
Arthur had stuttered
, Watson realized in that amazed state in which one perceives another, heretofore unimagined dimension to human affairs. After watching his boss smoothly and seamlessly manage global conference telephone calls and client meetings, preside over internecine, intrafirm feuds among partners of differing ranks, quell the malpractice insurance crisis, manage in-house counsel from the firm’s number one client, play opposing counsel like Gameboys— Could it be that after all those dazzling, clutch performances, Arthur Mahoney was afraid of a mere judge?
At the firm, the partners spoke dismissively of Judge Stang—a carbon-dated crackpot whom fate, or more likely good political fortune, had appointed to a lifelong career. Watson suddenly realized the obvious: No matter how many research memos, motions, discovery requests, posturings, settlement demands, and correspondence were created to obstruct and delay other parties in their quest for justice, litigators were ultimately at the total mercy of judges. The trace of apprehension Watson had detected in Arthur back at the office had now swelled into outright fear.
“Good morning, Judge,” said one of Judge Stang’s clerks—the blonde—whom Watson recognized from the first day at informal matters when he had made his fateful motion seeking to withdraw from the case. She was friendly, fresh, bright, in a short suit and an ecru silk blouse, a burgundy scarf knotted and spread like a bow on a basket of fruit.
The judge continued staring out his window, so the clerk made her way around the desk and stood alongside.
“I think I asked you and the other girl to do some research on this
lumber question that came up about a week ago in our little murder case, and whether it was something I was able to do or not.”
“Yes, Judge,” she said cheerfully, “we carefully looked at the issue, exactly as you formulated it, and our answer is no.”
“You see, Judge,” said Arthur politely. “It’s just not in keeping with the decorum of the …”
“No?” interrupted the judge, beaming at his clerk. “That’s excellent. Fine work, indeed. No. That’s what I thought.”
“No?” said Arthur, looking from the back of the judge’s head to the clerk with a puzzled expression.
“That’s correct,” said the clerk. She opened a leather folio and peeled back three or four pages. “The precise issue as formulated by the judge was: Is it a felony criminal offense for a federal district court judge, pursuant to the court’s discretionary and local-rule-making authority, to discipline one of its officers by instructing him or her to chew a not unreasonable length of unsoiled, untreated, nontoxic lumber into sawdust? Our answer is: No, we could find no case law or statutory language that would suggest such an action could be considered a felony criminal offense under current law. The judge specifically instructed us not to look at the question of whether such an order was an abuse of the court’s discretion, beyond the disciplinary powers of the court, or subject to reversal on appeal.”
Arthur hung his head and sighed.
“So, I am correct in assuming that it is not a felony criminal offense if I order Mr. Mahoney here to chew a length of two-by-four into sawdust? Is it a high crime or misdemeanor?”
“We searched the on-line services,” said the blonde pertly, “and there are no reported cases of a judge being charged with a felony or a misdemeanor for ordering a lawyer to chew a piece of wood into sawdust.”
“There you have it,” said the judge, still looking out the window. “Follow instructions, and no one will have to know about your contempt of court or the ensuing penalty. If you want to challenge me on it, you’ll have to do so in open court—which is your right.” He tapped a ring of ash off the cigar. “It won’t be the first time I’ve watched a lawyer drown in the gulf of his own folly.”
Arthur froze like a pointing hound and stared helplessly while the judge said, “Thank you, dear,” to his clerk and then surveyed his desktop in search of new business.
“Oh, it’s my pleasure,” the clerk replied. “Judge, I might also mention
that the Assistant United States Attorney in this case has filed the motion he spoke to you about yesterday. We thought perhaps you and the lawyers might care to discuss it before they leave. I believe the prosecution was seeking a physical and mental examination of the defendant pursuant to Rule Twelve.”
She leaned over the two dead minitower computers and handed the judge a document, then turned and held a copy out midway between Watson and Arthur. Watson took a step forward and extended his hand; Arthur cut him off and seized the document.
“Just what the Hell is the Psychon Project anyway?” asked the judge. “They’ve run four or five of these stiffs up to Minnesota, and then they come back in here claiming the defendants are congenital racist, psychopathic hate killers who should be put away for life. It’s a new one on me. It used to be that a mental defect meant you were
not
guilty. Now, they’ve turned it upside down. Now if you’re brain-damaged or crazy, it just means you were probably crazy enough to kill somebody, and what’s more, crazy enough to do it again.”
Watson froze and then looked over Arthur’s shoulder.
“And as long as we are on the subject,” growled the judge, “I might as well tell you boys that I had a little ex parte with the U.S. Attorney on this case the other day. Whenever I do that, I make sure and keep things fair by having another little ex parte with the other side, and that way, when you put the two ex partes together, they make up what I call an ‘in wholé,’ and nobody can complain. Can they, Mr. Mahoney?”
“Judge, we would have no complaint about anything that leads to a speedy resolution of this matter, so we can extricate my associate, Mr. Watson, from a case he is clearly not qualified to defend.”
“I’ll worry about who’s qualified,” said the judge. “Mr. Watson, were you by any chance planning to assert a mental defect or disease, any medical or psychiatric condition as a defense in this action? Because if you are, we can transport this fellow to the federal hospital up there at Mayo’s and satisfy you and the prosecutor in one stroke. It’s the best way I know of to get free medical testing for an indigent client. Of course, the prosecutor has moved first and made sure that he’ll get to see everything too, and most of the doctors at these federal medical centers are government whores as you probably know. So you run the risk that the results may not be favorable to your client. There’s every chance that they’ll come back saying he knew exactly what he was doing and that he’s as sane as you and me.”
Arthur abruptly turned aside and coughed.
“Something stuck in your craw, Mr. Mahoney?”
“No, Judge,” gasped Arthur, “Excuse me, I just—”
“So,” said the judge, “if you were maybe thinking about filing a motion under seal to have this man sent to a government facility without telling the prosecutor what you’re up to, that chance is gone. Whatever they do up there will be common knowledge. I told the prosecutor as much yesterday.”
The judge picked up his empty teacup and stared into it with a sour look.
“Do you have any objection to having medical and psychiatric examinations of your client done?”
Watson glanced sideways at Arthur. “In fact, Judge, I am finishing a Rule 12.2 motion notifying the court that we may assert a mental defect as a defense at trial,” he said. “At a minimum, I would be seeking the court’s permission for a medical examination to determine if the defendant’s history of neurological disease could have contributed in whole or in part to his alleged impulsive behavior.”
“Consider him shipped,” said Judge Stang. “In fact, I issued the order yesterday, and my guess is he’s gone by now. Let’s get all this mental crap over with, and then I’ll tell the lawyers what kind of medical evidence I’m going to let the jury hear.”
“Just one other thing,” said Watson. “You said the prosecutor gets to see everything that comes back from Mayo’s. What if, in addition to the Mayo’s testing, we consult our own expert—our own neuroscientist or neuropsychologist?”
“That typically costs money,” said the judge. “Under the Criminal Justice Act, I can give you a free trip to Mayo’s. I can’t pay federal marshals to escort your boy around town until he finds a shrink who understands him and then write more checks to cover his medical expenses.”
“The fees are not yet an issue,” said Watson. “But I do have one other concern—what happens if we consult the expert of our choice, and that expert renders an opinion we don’t like? Is the government entitled to discover that expert’s opinion, even if we don’t call him … or her?” he added, checking Arthur with a sideways glance.
The judge swiveled back around and looked at Arthur Mahoney for what seemed to be the first time during their meeting. “See what happens
when a lawyer is an advocate, instead of a shirker?” he asked with a grin.
“My concern also lies with the client,” Arthur protested. “I don’t like Mr. Watson’s chances in a murder trial, especially since he’s never even seen a jury trial, much less conducted one.”
The judge turned back to Watson. “Hot topic, Mr. Watson. You’ll find a lot of commentary in the law journals about what happens when the psychiatrist you consult formulates an opinion you don’t want anyone to know about.”
“I already found them,” said Watson. “They came out after the Supreme Court’s opinion in Ake versus Oklahoma, which guarantees criminal defendants the right to expert psychiatric assistance. But the circuits are split on the question of what happens when the expert you’ve consulted—an expert the prosecution knows about—renders an opinion that is helpful to the government rather than to the defense. And the Eighth Circuit hasn’t addressed the issue yet.”
“Don’t worry about them,” said the judge with a grimace. “The Eighth Circuit can fuck themselves with a sixpenny nail.” He swiveled back toward his clerk. “Sweetheart?” he said, and handed his clerk the prosecutor’s motion. “Stamp my signature on that and any other papers we need to get our hate killer shipped off to the medical center for federal prisoners up there in Mayo’s.”
“Yes, Judge,” said the clerk.
“Oh, yes,” said the judge. “Now, as we all know, it would be inappropriate for me to give Mr. Watson, here, my opinion about any prospective motion he or the government might file in this case, so would you dig up that unpublished opinion of ours in that case we had last year where the government came in and tried to get their hands on the written report of a nontestifying psychiatrist consulted by the defense. If memory serves it was that soft-spoken young fella who showed up in the Federal Express office asking for a box to mail an Uzi to his brother in Philadelphia.”
“I remember, Judge,” said the clerk. “I wrote … er, ah, I helped write the court’s order and opinion.”
“If I’m remembering,” said the judge, “the defense consulted three psychiatrists—the first one said the defendant was sane, the second one said he was insane, and the third one said I was insane. The defense announced they intended to call psychiatrist number two at trial, and the
government filed a motion seeking to compel disclosure of the reports from numbers one and three. And what did we say?”
The clerk smiled. “Is the court asking me for the wording of the court’s written opinion, or the wording of the court’s oral opinion?”
“Brevity,” said the judge. “Make it oral.”
The clerk nodded and pleasantly announced, “The court’s oral opinion denying the prosecutor’s motion to discover and subpoena the nontestifying psychiatrists consulted by the defense was”—she straightened her back and lowered her voice slightly—“ ‘Tell that government lawyer to go fuck himself with a tenpenny nail.’ ”
The clerk smiled, the judge nodded approvingly, and Arthur passed Watson a baleful glance through the haze of cigar smoke.
“Thank you, Kendra, dear,” said the judge. “That will be all for now. Give Mr. Watson, here, a copy of the court’s written opinion explaining how the reports of the nontestifying psychiatrists consulted by the defense in a criminal trial are protected by the work product doctrine and therefore the government can’t have them.”
“Your Honor,” interrupted Arthur. “If I may, the court has appointed a recent law school graduate with no trial experience to defend a high-profile, controversial murder case in which the government is seeking the death penalty. I fail to see …”
The judge ignored Arthur and swiveled away to look again on his generous view of downtown St. Louis and the Mississippi River, the barges plowing through dappled waves, the bridges gleaming in the sun. He fetched a ring of keys from his desk drawer, selected one, and used it to gouge wax out of his ear. He examined the sample, wiped the key on his sock, and mused aloud. “I don’t care if Frank Donahue runs for the Senate, but if he tries to do it in my courtroom I’ll fix him like a bitch in heat.”