Defense, page 3
All around me—in the library, in the hallway, in the living room, wherever there was a space large enough—small groups of beaming men and women, glasses in their hands and laughter on their faces, formed and dissolved and then formed again, like the brightly colored chips of a child’s kaleidoscope. I forgot about time and measured duration by what I had been drinking. After my second scotch and two glasses of white wine, I discovered Lisa, leaning against a pillar on the landing above the living room, gazing intently into the eyes of a stranger.
“Oh, darling,” she said gaily, taking my arm. “Do you know Michael?”
“No, do you?”
She looked at me, not quite certain what I meant.
“I’m Michael Stafford,” he said, extending his hand. “Lisa is one of the most fascinating women I’ve ever met.”
Stafford was barely thirty and he wore the weary cynicism of the completely inexperienced. He had that look, the kind that tells you he lived through what he observed in others and he had observed so much that the mere anticipation of anything energetic was a source of exhaustion. He was a bloodless voluptuary for whom even speech seemed an endless ordeal.
“You sure she isn’t the only woman you’ve ever met?” I could feel Lisa’s eyes burning into me as I turned away and headed back toward the bar. I needed another scotch and soda. I had walked only a few steps when I stopped to listen to a conversation taking place at the other end of the living room.
Dressed impeccably in a dark blue suit, white shirt, striped tie, maroon and gold cufflinks, and supple black shoes, Leopold Rifkin was sitting in an easy chair, one emphatically creased leg crossed over the other. On each side of him, two long sofas separated by a square, beveled-glass coffee table stretched out at right angles. He was talking in a normal, conversational tone, and as he talked, a silence settled over the room.
“The phrase he used was, ‘It is better that the guilty go free than that the innocent be convicted.’”
His elbow resting on the arm of the chair, Rifkin placed his chin on his thumb and pressed his forefinger against his delicate, thoughtful mouth. He took it away and began to draw a long descending spiral in the air.
“Yes. You see, this young lawyer who was trying this case in my courtroom just last week had the general idea, so to speak, but he did not have it exactly, and, it was quite certain, he had never known the source. It is of course the famous statement by…”
He paused for a moment. “Perhaps someone here can help us,” he said presently, looking out beyond those who sat on the two sofas next to him.
No one ventured a guess. This was the sort of thing that only someone like Leopold Rifkin, someone who had spent a lifetime in the isolated solitude of study, could possibly know, or want to know.
Rifkin waved his hand. “The original thought was expressed as follows: ‘Under our system of justice, it is better that ten guilty men go free than that one innocent man be convicted.’ It appears in connection with William Blackstone’s discussion of the right to jury trial, and it can be found, if I am not mistaken, in that part of his Commentaries on the Laws of England, entitled ‘Public Wrongs.’ Rather neat formulation, is it not? Wrongful acts against the public as distinguished from wrongful acts against individuals that have no broader consequences. The difference, of course, between the criminal law and tort law.”
At the far end of the sofa on Rifkin’s left, Horace Woolner sank back into the cushions, his artificial legs spread in front of him like the limbs of an abandoned marionette.
“Did the jury agree?” he asked. “Did this young lawyer convince them they should err on the side of making sure they didn’t convict someone who was innocent, even if it meant they might let someone guilty go free?”
“Yes,” Rifkin replied evenly, staring straight ahead. “And no.”
Woolner clasped his hands behind his head, and gazed up at the ceiling, enjoying the precise ambiguity of the answer. “Yes and no?”
“Exactly. He made the remark during voir dire. He asked a juror if she believed it was better the guilty go free than that the innocent be convicted. She agreed completely. But,” Rifkin added quickly, “that was at the beginning of the case, when jurors always agree to the presumption of innocence and promise not to convict unless guilt is proven beyond a reasonable doubt. At the end of the case, that same juror agreed with the other eleven and returned a verdict of guilty. So, as I say, the young lawyer convinced the jury it was better the guilty go free than the innocent be convicted, but he could not persuade them that his client was one of the guilty who should be let go.”
Horace shifted his weight against the arm of the sofa, looked at Rifkin and asked: “Did the jury make the right decision?”
Rifkin studied him for a moment before he answered. I wondered if he was thinking about the seeming anomaly of a prosecutor asking if a criminal defendant should have been convicted. I should have known better. He was way ahead of me.
“Let us suppose, Mr. Woolner, that you were trying a case, a case in which you were certain you had enough evidence—more than enough evidence—to prove the defendant’s guilt beyond a reasonable doubt. The evidence was overwhelming, but during the course of the trial you yourself became convinced—not by the evidence, but by your own well-trained instincts—that the defendant was innocent. What would you do?”
“During the trial? Not before the trial began?”
“Yes. Because of course if you had had this thought before the trial, you could have withdrawn the indictment—if you already had an indictment—and have another investigation to find out if your instinct was correct. No, this is much more difficult. The trial has started. More importantly, the jury has been sworn. Jeopardy has attached. The defendant cannot be tried again.”
Like every rule, there was an exception, and the exception to this rule gave Horace a solution to a moral dilemma.
“Unless the judge declares a mistrial,” Horace observed, pulling himself up until he was sitting straight, one elbow resting against the side cushion of the sofa. “The prosecution is sworn to do justice. In the situation you describe, the law would lead to an unjust result. If I made a motion to dismiss, and it turned out I was wrong and the defendant really was guilty, then, because the jury was sworn, the double-jeopardy clause would prevent another trial. The defendant would have gotten away with a crime. So, the only way to prevent a miscarriage of justice—either way—is to get a mistrial. If I’m right, the defendant won’t be tried again; if I’m wrong, we’ll have another trial and the jury can decide.”
Horace reached for the glass he had set on the glass coffee table in front of him. He had nothing to add.
“And what ground, what reason, would you give for your motion for a mistrial?”
Horace had just started to drink. “Well,” he said, trying to swallow quickly, “I’d tell the truth. I’d make the motion outside the presence of the jury. Tell the judge that I had serious doubts about the guilt of the defendant. That I wanted to investigate further. That in the interests of justice, a mistrial was the only way to take care of this.”
Rifkin’s eyes sparkled with benevolent malice. “Motion denied.”
Everyone laughed, no one louder than Horace Woolner. “Motion denied!?”
“Yes. You have doubts about the defendant’s guilt. But, as the great Dr. Johnson once told Boswell, it doesn’t matter what you think at this stage. We have a trial. It is for the jury to decide, not you, not me, not anyone else.”
Rifkin never took his eyes off him. “But that avoids the question, doesn’t it, Mr. Woolner? You know the defendant is innocent! You feel it! So, now, what do you do?”
Woolner did not look away. “I get my mistrial.”
“How?”
“I call the police officer who arrested the defendant. I ask him if the defendant invoked his right to silence at any time that he talked to him. And even before the officer can begin to answer, the defense lawyer is out of his chair, screaming that he wants a mistrial, and the judge has to give it to him.”
A small smile of approval darted across Rifkin’s lips. “Motion granted.”
“Now, what about the defense? What would you do, Mr. Antonelli,” he asked, picking me out of the crowd, “if halfway through a trial you decided that, even though the prosecution had very little chance of proving guilt beyond a reasonable doubt, your client, the defendant, was, unfortunately, completely guilty of a particularly heinous crime. Would you follow Mr. Woolner’s noble example and attempt to do justice?”
“I only defend the innocent, your honor.”
He did not miss a beat. “Yes, I know. This is a purely hypothetical question.”
“The prosecution is sworn to do justice. The defense is sworn to protect the interests of the defendant. It doesn’t matter if I think—or even if I know—someone is guilty. The only issue is whether the prosecution can prove it beyond a reasonable doubt.”
Rifkin looked from one side of the room to the other. “You see why Mr. Antonelli is so good with juries.” He turned his gaze back on me and continued. “Now, indulge me just a little longer. The prosecution is required to do justice and the defense is not. The prosecution, as we all know, has to turn over any exculpatory evidence it finds; the defense does not have to turn over any incriminating evidence it happens to discover. Well and good. Now, set aside what the law requires. You said you had an obligation to represent your client?”
“Yes.”
“And that means to represent the best interests of your client?”
“Yes.”
“Now, if you were a physician would you prescribe a course of treatment that was painful but effective, or a course of treatment that made the patient feel good for the moment but did nothing to cure his sickness?”
“Those are the only alternatives?”
“Yes. And again you are supposed to act in the best interest of your patient.”
“Then the treatment that will cure his illness.”
“Though it is painful, and though the patient doesn’t want to do it?”
“Yes,” I replied reluctantly.
“Now, is it better if people obey the law or break the law?”
“Obey the law.”
“If someone does what is not in their own best interest, is it better if they are allowed to keep doing it, or if they are shown how to correct their mistakes?”
“Correct their mistakes.”
“If a criminal avoids conviction for his crimes, then is he more likely or less likely to learn how to correct his mistakes?”
“Less likely,” I answered, beginning to smile.
“Then it is in his best interest to be convicted, is this not so? Even though, like the patient, he would rather do what is pleasant than what is painful though necessary?”
There was nothing I could say.
“So if you wish to serve the best interest of your client, and if you know he is guilty, you should then do everything you can to make sure he is convicted so he can receive the appropriate correction?”
Rifkin was sitting on the edge of his chair, his small head tilted slightly to one side, his eager eyes open wide, waiting for my answer.
“But as you said yourself just a few minutes ago, the ‘great Dr. Johnson’ pointed out that the question of guilt or innocence was a question only for the jury. You don’t seriously mean to suggest that prosecutors should start deciding who is innocent and defense lawyers should start deciding who is guilty!”
The voice was the voice of a woman, and it slithered through the air with a strange, almost sensual intensity. She was directly behind me, and I knew who it was before I turned to see her. Gwendolyn Gilliland-O’Rourke stood there, trying to control the excitement building in her eyes as she drew upon herself all the attention that had been lavished on Leopold Rifkin.
“You don’t really believe this! You can’t possibly believe it! You don’t really want lawyers to become judge and jury!”
Rifkin threw up his hands. “You cannot blame me for anything Dr. Johnson said. He has been dead for hundreds of years. I never knew him,” he said with a guarded smile. He watched her the way someone watches a stranger in the street, ready to react to whatever they do. “But when he made that remark about the jury, he was talking about a jury rather different than the one we talk about. In the beginning, remember, the jury was made up of people all of whom knew the defendant and knew the witnesses. They could tell who was telling the truth and who was not. Now the jury is made up of people who know nothing about the defendant or the witnesses. If they know any of them, they can’t serve. So, how are they supposed to know, except in the most obvious cases, who is lying and who is not?”
She was ready with a reply. “It doesn’t matter. The truth is much more likely to come out through the adversarial system than through some arrangement in which everyone decides for themselves what is justice and what is not! Especially,” she could not help adding, “when justice is defined as having the defendant’s lawyer do whatever he can to get him convicted!”
“So you believe that it is better to help someone remain a criminal?”
She stared at him, incredulous. “That’s nonsense, and you know it.”
“I know,” Rifkin interjected, raising his hands in helpless supplication, “that I have this terrible habit of interrupting everyone’s pleasure. Please, everyone,” he said, rising to his feet, “get back to something more important than my poor reflections on the criminal justice system—enjoy yourselves!”
Gwendolyn tried to say something, but her words were drowned out by the sudden din of dozens of conversations being resumed as if they had never stopped.
iii
It was nearly one in the morning when we left. Lisa was driving. I lowered the window on my side and breathed in the cool night air.
“You were very rude,” she said without warning as we drove through the iron gate that stood open at the bottom of the long circular drive.
“I was what? Rude? When? To whom? I don’t remember.” The truth was I really did not care.
“You were rude to Michael. You were rude to me.”
I slid down in the seat, and wished I was somewhere else, anywhere else. She was upset, and I knew it had nothing to do with that stupid little remark I had made to that insipid jerk she had been talking to four hours earlier.
“And just how was I rude to you?”
“How were you rude to me!? God, you’re really something! There wasn’t a woman there you didn’t spend more time with than you spent with me!”
I slid lower down in the seat and shut my eyes. “That’s not true. I spent hardly any time at all with your friend Michael.”
Even with my eyes closed I could sense her whole body tense.
“Why did you even bother to ask me to come along? To humiliate me?”
Slowly, as if it were the greatest imaginable imposition, I pulled myself up and looked across at her. “I’m sorry if you feel that way. I thought you were having a good time.”
Her grip tightened on the wheel. Her mouth began to tremble. “With a bunch of lawyers!?”
There was no answer to this. The surface had given way; we were falling down a long dark hole. Nothing could stop it now. I muttered an obscenity and stared straight ahead.
“You really don’t like me very much, do you?” she demanded, her eyes fixed fiercely on the road.
For one of the few times in my life I forgot all about the crucial importance of dishonesty. The instinctive precautions of everyday duplicity abandoned me in a single act of betrayal. “To tell you the truth,” I said, my face flush against the breeze that flew in through the open window, “at this precise moment I don’t like you at all.”
When we got home, she marched through the house and slammed the door of the guest room shut behind her. The next morning, when I staggered into the kitchen, my head aching, desperate for a cup of coffee, she was waiting for me. I stood next to the refrigerator, and for a moment wondered if I had slept straight through to Monday. Dressed in a dark blue skirt and jacket, she was sitting at the table, sipping her coffee, glancing at the morning paper as if she were just about to leave for work.
I clutched my pajama bottoms to keep them from falling down, poured myself a cup of coffee with my free hand, and sat down. “Morning,” I mumbled, looking at her out of the corner of my eye. She ignored me.
I had not come down to chat. All I wanted was a cup of coffee to take back to bed. I was wearing pajama bottoms and I was getting cold. I lifted my heels off the floor until only the tips of my toes were touching. With one arm wrapped around my bare chest, I gulped down a mouthful of coffee.
“Look, I’m sorry about last night,” I said, wondering why I was always the one who had to apologize first. “I should never have said what I said.”
Her eyes stayed fixed on the paper, as if whatever she was reading was much more important than anything I could possibly say. Presently, she folded it, got up, and carried her coffee cup over to the sink.
“You know, I really doubt that you’re even capable of having a meaningful, lasting relationship with anyone.”
I had to turn around to see her. It was ludicrous. She was standing there, her hair arranged just right, her makeup just so, in a power suit and high-heel shoes, staring at me with one of those imperious looks of hers, and I was curled up on a wooden chair, half naked and freezing to death.
“I don’t suppose you could wait until I got some clothes on before we have this little scene, do you?”
“There isn’t going to be any ‘little scene.’ I’m leaving. I’m moving out. I’ll send someone later for my things.”
She turned around and began to rinse out the cup. “But I really do feel sorry for you, Joseph Antonelli,” she said, as she turned off the faucet. “You treat women like they’re one of your cases. You know,” she said, her eyes flashing, “you start thinking about the next one before you’ve finished with the last one.”
