At daybreak, he went home to an empty house, showered, made a triple espresso, put on his Stern, Pale Southwick suit, his last laundered shirt, and a dark, sober tie. He tucked his leather folio in his briefcase, his graduation fountain pen in his shirt pocket, his billfold in his breast
pocket—arranging power fetishes before embarking on hazardous duty.
He did the middle button of his Southwick and struck a lawyerly pose in front of that shrine of the vain: the vanity mirror. He looked into his own eyes and tried to remember how she had drunkenly described the evolution of sight after a half bottle of wine—“two brain lobes that grew out of the skull in search of light”—and here were those lobes of exposed brain, touching themselves visually. He tried to imagine himself in her terms: a selfish gene, a brain bent on maximizing its Darwinian fitness, a “big mouse,” as she had described Whitlow. No soul. No ghost in the machine. Just an acquisitive piece of meat seeking sustenance, reproduction, self-replication, and perpetuation. But where were the evolutionary or neuroscientific explanations for his own behaviors? Why was he risking the gene-transmitting arrangements he’d already worked so hard to establish?
What about the airplane rule? Most moral prerogatives had their origins in collective wisdom and common sense. For instance, a human being should have but one mate if only because complexity increases the possibility of failure. A twin-engine airplane (or a twin-engine marriage) has twice as many problems as a single-engine airplane. In love, in software, in electronics, in information theory, in prayer, in recreations, and in life itself, simplicity increases robustness. First, build a really good basket, then put all your eggs in it. Why flirt with danger and complexity? It was too early in life to be craving a distraction from thoughts of his own mortality. That came later, with Porsches and hair transplants. What was driving him to the distraction of moral complexity?
And why the devotion to the plight of James Whitlow? Correction for the sake of the narrative he was compiling for himself: Whitlow was barely worth a second thought—his devotion, if any, was to Whitlow’s tantalizing legal conundrums.
Maybe his brain had decided—on its own, as it were—that it was interested in the First Amendment and hate crimes. Thus, the article he had written in law school: “Are Hate Crimes Thought Crimes?” May the state give extra punishment for crimes that externally are exactly the same—a brutal rape, a murder, arson—but that the jury decides were motivated by an impure hatred of certain protected groups? Yes, the state may, said the Supreme Court, just before his article was published.
Next question: Just what sort of evidence may the jury consider in
conducting an inquiry into the psyche of the accused hate killer? Was the motive racial bias? Class bias? Personality differences? Jealous rage? Most subtle of all, and the problem that was his client’s problem: how to tell the difference between a bigot who happened to kill a black person, and a bigot who killed
because of
his victim’s race? Call in St. Peter, Sigmund Freud, the Grand Inquisitor, and Oprah. But remember, these inquiries into the defendant’s mental processes take place in a proceeding called a
trial
, where the accused has the perfect right not to utter one word.
Big puzzles, like law school exam questions—those riddles with narratives so spare they acquire the elegance of symbolic logic: D (for defendant) is a person of bigoted beliefs and associations. V (victim) is a protected minority. D tells V, “People like you make me so angry, I could just kill you.” D kills V. May D be charged with a hate crime and receive a double penalty for murder? If yes, what result if D and V are both black, handicapped, Baptist, and of the same sexual orientation?
Just the kind of formalistic argument you could never make to a jury. To a jury, the difference between (1) a bigoted killer and (2) a bigoted killer momentarily not motivated by bigotry is the difference between (1) venomous hatred and (2) poisonous hostility, i.e., essentially no difference at all.
But the freedoms of speech, of thought, of association, are such powerful constitutional talismans that a skillful appellate lawyer could present Whitlow’s problem in all its formal, theoretical, constitutional beauty in the court of appeals, where there are no jurors, only learned judges. A short row of figures in black gowns peering over reading glasses and across an oak tribunal, asking questions of distressed lawyers. A bunch of Pantaloons much given to slippery sophistry, abstruse abstractions, casuistic colloquies, rabbinic ratiocinations, mandarin mandamusing, and speechifying speciousness.
Questions of fact are settled in the trial court, where lawyers like Harper and Myrna cross-examine witnesses about what
really
happened. Questions of law are settled in the appellate courts, where they don’t care what really happened at the crime scene or whether D (defendant) was actually driving the car when he hit P (plaintiff) and broke P’s leg. Appellate judges are concerned only if the trial judge made an error of
law
before, during, or after trial. If the trial judge ruled that an unconstitutional state law was constitutional, then appellate judges are all ears. Argue bald facts and tell them that your defendant was wrongfully
convicted of negligence because the plaintiff’s leg was not really broken or because D was not really driving the car, and they will dismiss your appeal.
Winning Whitlow’s case in the court of appeals could be just another stage in a glacial epoch of ongoing litigation. An appellate victory might simply settle the pretrial legal issues, after which Watson would be forced to descend the ladder of legal evolution and go back down to what appellate lawyers disdainfully refer to as the “trial level” or the “trial court,” the land of slippery facts, where the silver-tongued, soap-opera actors and actresses known as trial lawyers sell soap and broken legs to the sheep in the cheap seats. And Watson knew what could happen to his elegant constitutional principles, even if the Eighth Circuit blessed them before trial. In the words of La Rochefoucauld, “There is nothing more horrible than the murder of a beautiful theory by a gang of brutal facts.”
Let’s split hairs. He was defending a bigot who was accused of a murder and a hate crime, under a statute that was probably constitutional, with evidence that was probably challengeable, such that there was a 20 or 30 percent chance that Watson could make some serious trouble for the prosecution with a few well-aimed, energetic motions, and maybe a 5 to 10 percent chance that Watson could get rid of the hate charge by keeping out enough evidence of bigotry—meaning Whitlow would do five or ten years instead of life or death—and about a .1 percent chance that he could actually get Mr. Whitlow off.
But was this mission his brain had programmed itself to accomplish worth losing his job and his marriage over? Sure, he could always hoist the buckler of duty and defend himself. He was only obeying Judge Stang and the Rules of Professional Responsibility. And Sandra? Wife, mother to their children? Sheila? Benjy? Gene packets dependent on him (and the Memsahib) for sustenance, parental instruction, and perpetuation of humankind?
He drifted into Benjy’s empty room and looked at the walls festooned with Disney characters. H (husband) commits quasi-adultery against W (wife). W takes kids, K
1
& K
2
, to in-laws, leaving H to stand alone in his house and wonder what made his brain malfunction and lose sight of its mission. Maybe Whitlow and Palmquist were both what psychiatrists refer to as autochthonous ideas, abnormally dominating ideas that the patient feels were thrust upon him instead of developing out of his own content of consciousness.
After a few more conflicted neuronal maneuvers, he flossed and brushed without really thinking about it and drove downtown, also without really thinking about it, because he was thinking about seeing the good Dr. Palmquist—again!—and going over the results of Whitlow’s tests, which were coming in from Rochester via secure FTP tomorrow tonight.
He fed a meter outside the courthouse, found the clerk’s office inside, and filed the first document printed from his new computer: “Entry of Appearance As Retained Counsel in the matter of U.S. v. Whitlow.” He walked along the terraced esplanades outside the Courthouse of the Future and down flights of marble steps so splendid they would have made Nebuchadnezzar blush for his ziggurats. He turned and looked back, up at the steel, glass, and stone edifice of federal justice towering over him. Inside were twenty-six federal courtrooms abuzz with litigation, manned and womaned by stately, well-paid intellects. Words, words, words deciding important questions of federal law, like whether boys were “harassing” girls on school buses, or whether “indecent” language was being posted somewhere on the Internet, or whether some dark and deviant miscreant was slinking around in the ink of night with Macbeth’s dagger, slashing the tags off federally regulated pillows and mattresses. “Stars, hide your fires / Let not light see my black and deep desires.” O piteous woe! If the wounds of these gashed pillows could but speak—poor dumb mouths!—what wailing and downy gnashing and feathery cries for justice would we hear! Inside, blacks, women, old people, handicapped people, criminals, people of ethnicity, were all scrimmaging for their fair share of federal rights. O piteous woe! Place your hands in these psychic wounds and feel their pain! And Watson was now a free agent, he could be for or against those litigants and their rights, depending upon whose ox was being gored and whether his fee was being paid by the cattlemen or the slaughterhouse, the pillow manufacturers or slashers.
Such a country! And most glorious of all, the federal laws bequeathing said rights were all accompanied by opaque, voluminous regulations detailing record-keeping, timeliness, administrative procedures, filing requirements, and other stuporific snoozers so unspeakably dense, tedious, and prolix that no one in their right mind would invest the time and effort required to read and understand them, unless they were getting paid at least $150 an hour for their trouble, present company included. Enter Joseph T. Watson, a lawyer skilled in deciphering
the stuporific. The Code of Federal Regulations, the Federal Register, the United States Code—it was a safe bet no mortal person had ever read them all. Even lawyers could bear only the portions retrieved by search logic.
But overshadowing this rosy lawyer’s view of his future—where citizens had federally guaranteed rights to a free refill of coffee brewed at federally regulated temperatures, federally mandated extra maternity days in the hospital, steaks cooked according to FDA specifications defining what constitutes medium rare and a lawyer on retainer in case of a dispute over the bill—was the ever-present threat of nuclear war. Yes! It could wipe out everything and take society back to a time where, instead of hiring a good lawyer, disputes were settled by yelling at each other around the village fire. Then what?
He slipped into a recurring nightmarish daydream. One day in the postapocalyptic future, the few hundred or so survivors of a nuclear holocaust would gather around a bonfire in the nuclear winter and begin planning a new society. Everyone would stand and announce their names and the skills they could contribute to making a brave new world. Engineers, mechanics, carpenters, teachers. “I build houses,” one would say, and another, “I fix cars.” “I’m a doctor,” someone else would announce. The torchlight red on his sweaty face, Watson would step forward and proclaim, “I can search ALLFEDS on Westlaw and find controlling authority for just about any legal position this side of proving the validity of a transaction secured by lunar cheese futures and acres of blue sky.”
But for now, he stood outside the Courthouse of the Future, savoring the knowledge that he was an officer of the court, a real lawyer with a real client.
When he got back to Myrna’s place, he had two packages waiting: one from Michael Harper, Assistant U.S. Attorney, and another lumpy ripstop envelope from the same courier service Buck’s lawyer had used on the first go-around. The familiar bundles slid through his fingers and inspired a certain affection for Buck and his lawyer.
In what he was now proudly calling “my office,” he felt like a real entrepreneur. Myrna said he could do traffic and a few drunk drivers for her. He knew some friends who wrote briefs for hire and needed help. Maybe he could scrounge up a few more appointed cases? Before long, he would be weaned of the gold-plated teats of the mighty Stern, Pale and making a living as a solo practitioner.
He tore open the envelope from Harper and found another affidavit field report, TDD printouts, and sheaves from some other variety of computer printouts. Transcripts of some kind?
A trilling sound interrupted his persual. His first phone call on his new line.
“Joe? Mike Harper,” said the gravelly voice. “You’re moving around on me. I must have called three different places. Now you’re shacking up with Myrna Schweich?”
“I’m renting from her,” said Watson. “I did research for her in law school.”
“You went to her?” asked Harper.
“Went?” asked Watson.
Harper laughed and in an insinuating tone of voice asked, “I mean, you called her about this case? She didn’t call you?”
Watson paused, wondering again why this would be of any importance, then said, “Yeah, I called her. I left Stern, Pale and I needed office space.”
“Are you familiar with her client list?” said Harper. “And she gets to know them a little too well, which can be illegal in her line of work.”
“Do you want to talk to her about it?” asked Watson.
Harper rasped out a few laughs. “Listen, Arthur Mahoney tells me you’ve gone off the deep end. You’re Clarence Darrow or some damn thing and this bigot killer is Thomas Scopes. He says you’ve got First Amendment on the brain and you’re getting ready to paper me with memos on constitutional law. Since when is the First Amendment a defense in a murder case?”
“I don’t know,” said Watson. “Since when do prosecutors try to execute a guy for wearing tattoos and telling racist jokes?”