Most of the time, no matter what your political or philosophical stripes, whether you like the law or not, you find that your decision feels preordained. Even when you can imagine a route to another result, loyalty to the institution of the law, and more particularly to other judges, good women and men who’ve sat where you sit and who’ve done their level best to decide similar cases, requires you to follow the same paths they’ve trod. The discretion his professors talked about exists only on the margins, in no better than three or four cases a term.
But Warnovits is one of them, where neither the words of the legislature nor prior decisions will yield a sure answer. Ugly as the crime was, these boys were prosecuted later than the law normally allows. The trial judge—Farrell Kirk, no Cardozo but a reasonable guy—made a fair reading of the concealment provision and a balanced assessment of the testimony, and Sapperstein is equally right that, in doing so, Kirk basically erased the neat boundaries the legislators had drawn on how long a victim’s age could lawfully prolong the time to indictment. With the arguments essentially even, the truth is that the law in this case will be whatever George Mason says it is. And right now the best he can do is flip a coin. He actually removes a quarter from his pocket and sets it on the counter beside the drafts. Even to Patrice, he has never admitted that in the last nine and a half years he has decided two cases this way, albeit tiny civil matters in which the decisional law was a hopeless mess.
He is still staring at the coin when Patrice wanders in, drawing her hands down her face to drain off the sleep. By reflex, she moves forward to kiss him in greeting, then thinks better of that. She’ll be minimally radioactive until early Sunday.
“Wow,” she says, focusing on him. “What did the bartender say when the horse came into the tavern?”
He smiles wanly at the old joke: Why the long face?
“Nay,” he says, “nay, not that one.”
He gets a simpering grin before Patrice goes to the fridge for a bottle of water. Her back is still to him when he asks, “What would you say if I didn’t run for retention?”
“What?”
“I’ve actually been thinking about it. I could work less and make twice as much money. We could travel.”
She has finally completed her slow turn.
“George, you love this job. You’ve always loved this job. How can you even possibly consider that? What’s changed?”
He lifts his hands. She watches him without much charity. If he has one lasting lament in their marriage, it’s the way Patrice can go cold at the core. Her father, Hugo Levi, was a morose son of a bitch, a lawyer by training who went into the packaging business. He had his own sad history—a mother dead before he was five—but he punished his family by often growing stonily remote and in those moods voicing heartless judgments. Having come of age in the Old South, George has probably fought no biblical notion harder than the idea that the sins of the father are destined to be punished for generations. He despised the suggestion that a free human being should simply yield to fate and, worse, the idea that he could not be freed from the effects of what he despised. But he’s at an age when he’s come to recognize the scripture’s wisdom. Patrice yearned for the embrace of this hard man and in so doing took a slice of him into herself. She’s never had a gentle way of expressing her disappointments. And she’s clearly disappointed now.
“Look, mate.” She leans over the counter so she is beside him, closer than she’s been for days. “I want to say something to you. I’ve tried not to, but you have to hear this: Stop being scared. I can see it on you, George. You’re scared. And it bothers the hell out of me. I look at you, and I think, What have the doctors told him they haven’t told me? You’re making this a lot worse than it has to be. It’s hard enough to handle myself. I can’t handle you too. You can have your eleventh midlife crisis on your own time. But it’s my time now.”
“Patrice—”
His wife leaves the kitchen, looking back to speak just one word more: “No.”
12
GETTING THE MESSAGE
GEORGE HAS BEEN at his desk for only a few minutes on Monday morning when Dineesha enters from the reception area. She leaves the door ajar, addressing the judge in formal timbre.
“Your Honor, Judge Koll was hoping you might have a minute for him. He’s right outside.”
“Crap,” George mouths. Nine A.M. and Nathan has already come to demand the draft of the Warnovits opinion. He can’t bear to wait any longer to see the target he’ll be shooting at in his dissent.
“Nathan!” George cries, hail fellow well met, as he strides out.
On the green sofa beside Abel Birtz, Koll is drawn into himself like a molting bird, his dark face screwed up in a stormy look. He’s come down without his suit coat, and his white shirt looks as if it should have seen the laundry three wearings ago, wrinkled like a discarded lunch bag.
“I need to speak with you,” he says and charges past George into his inner chambers. “Look at this!” He reaches into his shirt pocket. “Look at this, for Chrissake.”
Nathan has withdrawn an envelope, from which he next removes a single sheet, the lower half stained brown.
“It was in the morning mail.”
After the first glance, George places the paper on his desk to avoid handling it further. It’s a printout of one of the bounced e-mails George received: “You’ll bleed.” That, George realizes, accounts for the irregular blot on the bottom half. Dried blood.
“Have you contacted Marina, Nathan?”
“Well, I thought I’d give you a chance to explain, George. I can’t imagine what you were doing sending that kind of message to anyone.”
George calls out to Dineesha to summon Court Security, then explains the situation to Koll.
“Oh my God,” he says several times. “You must be jumping out of your skin. I heard there was something unsettling going on. I had no idea it had reached this level.”
“‘Heard something,’ Nathan?”
“You know the clerks gossip. One of them mentioned that you’d been getting annoying e-mails. I thought that meant spam. Not death threats. Good Lord! No wonder you’re hesitant to run again.”
In other circumstances, George might take the last remark as tactical, designed to smoke out his intentions, but Koll looks completely unstrung. He’s slumped in one of the wooden chairs in front of George’s desk, and there’s a rill of sweat next to his overgrown sideburn. What could be harder on a paranoid than real enemies? Because it’s Koll, George cannot shutter a ray of competitive joy. Even in his worst instants, he hasn’t been this frightened. Not yet.
“Frankly, Nathan, I think it’s all hot air.”
“And why’s that?”
George’s reasoning that a real assault would not come with so many warnings does nothing to comfort Koll.
“You’re trying to mind-read a lunatic.” He twists about in the chair, too agitated to find a comfortable position. “But why am I part of this now? That’s what I’m trying to figure out.” Being himself, Nathan shows no reluctance about wishing upon George solitary misfortune. “Is it our rape case? All the publicity about it?”
That makes no sense to either judge when they discuss it. Their decision in Warnovits is unknown, even to them, let alone to the passionate partisans on both sides of the case. And George was getting these e-mails long before the oral argument, which was the first occasion their roles in the case became public. The identities of the judges on the panels are among the court’s more closely guarded secrets in order to prevent lawyers from basing their oral arguments on the prior opinions of the sitting judges instead of relying on the larger body of court precedents.
“I thought Warnovits was why you were here, Nathan. To get my draft. I’m going to need a few more days. Frankly, I’m trying to figure out how to come up with a real majority. We can’t send this thing out into the world with three judges saying three different things. I’ve been giving some thought to joining you and letting your
draft on the inadmissibility of the tape become the opinion for the court.”
In practical terms, this resolution has many virtues, springing from the scenario Rusty played out last week. Some of the young defendants—perhaps all but Warnovits—would plea-bargain to eavesdropping in exchange for their testimony about the rape. They would end up with lighter sentences than the minimum-mandatory six years imposed for the sexual assault, which is a suitable outcome in George’s mind, given the otherwise admirable lives the young men have led. The truth is that the limitations issue made this an ideal case for a compromise, which should have been struck long ago. But somehow reason had faltered, due perhaps to the prosecutors’ inflexibility, or the ego of defense counsel, or the unwillingness of the young men or their parents to accept the inevitability of prison. From the Olympian height of the appellate court, there is never any telling why a deal was not reached, because the negotiations are rarely a matter of record. Yet the result of the failure to resolve the case is clear: the courts were left with only stark choices.
But no matter how tempting it is to play Solomon after the fact, George remains roadblocked by the law. He still cannot call the verdict or sentences a wholesale miscarriage of justice, even if the punishment for some of the young men is more severe than what he’d impose. After thirty-plus years in the legal system, George has accepted that “justice” is no better than approximate, a range of tolerable results.
Instead, he has tossed out the idea of using Koll’s opinion largely to test Rusty’s suspicions of Nathan. George is curious to see if Koll exhibits any reluctance to replace him as the principal target of the public wrath that will surely await the author of an opinion reversing these convictions. And the Chief, it develops, may have been right.
“Yes, I’ve been thinking about the same problem,” Koll says. “Three opinions. Something has to give. Perhaps I’ll concur on the statute of limitations, so you can speak for the majority. Then I’ll write separately about the videotape. Let me see your draft when you’re done. And I’ll e-mail mine. It’s finished.”
Naturally. George cannot quite contain a smile. What vain illusion made him think Nathan would wait until he’d seen what George had to say before disagreeing with it? Hearing Dineesha greeting Murph, Marina’s deputy chief, out in the reception area, George stands.
“By the way, Nathan. Don’t read too much into the fact that I haven’t filed my retention petition.”
“Oh?”
“I’ve been waiting for the last little concerns about Patrice’s condition to be cleared up. But she couldn’t possibly be doing better.”
“Oh.” Koll cannot keep his jaw from going limp. About to rise from his chair, he loses his momentum. Even with his angst about the threat from #1, this may be the worst news to come to his way today.
* * *
Over the weekend, George gave himself the break he had needed. He woke up Saturday morning knowing Patrice and he had to cross the breach and insisted that they drive up to their cabin in Skageon. The hell with what the doctors would advise; he’d read enough on his own to know that after five days the risks to him were picayune.
It was the right idea. The weather was glorious. They walked, made dinner together, drank a bottle of Corton-Charlemagne, and were finally together in the same bed. It was just as it was thirty years before, when the extraordinary sensations of sleeping beside someone after a lifetime alone made the night one long embrace. This reunion, and the longings it satisfied, was a tribute to their mutual well-being.
But vacations end, and Koll’s visit has brought with it the dismal knot of feelings that has long accompanied People v. Warnovits. The judge spends a meditative instant seeing if he is ready to decide the case, with the same stillborn results. He continues to sit first in judgment of himself, and that process remains incomplete. The idle notion of trying to find Lolly Viccino, which he briefly raised with Banion last week, continues to attract him, although he cannot say why. What comfort does he think she could give him forty years after the fact? He can hardly expect her to say it had all been okay. The best to hope for is that she, much as he did, was able to put away the incident by dismissing it as part of the temporary psychosis called youth. But still he lets his imagination roll out for a second. What might have become of Lolly?
Just as with the telephone, George normally does nothing but official business on the computer in his chambers: he will not read personal e-mail or order theater tickets there. But it’s clear now, he’ll never decide Warnovits until he’s more resolved about what happened in Virginia long ago.
“Lolly Viccino” brings no results from any of the search engines. As a best guess about her given name, George decides to try again with “Linda.”
An hour and a half later, he has isolated three possibilities. In Scotland, a Linda Viccino works as a safety inspection teacher. The information on the Web site of the regional electric authority is cryptic, but it appears that Linda Viccino instructs other government officials on how to examine power plants for dangerous conditions. Contemplating this life for a second, he deems it a relatively happy ending for Lolly. She has gotten an education, a responsible job. She has left her unhappy home far behind. What took her overseas? Love, George hopes. That was the story with most of his friends from college or law school who ended up as expats—they met someone and chose romance over America. It would be nice if that was what happened to Lolly too.
The second Linda Viccino turns up as a hundred-dollar donor to the Children’s Trust Fund for the Prevention of Child Abuse in Mississippi. It’s pleasing to think of Lolly as a generous adult, but the mission of the charity is vaguely troubling. Perhaps she’s a mom, who naturally recoils at the thought of kids being treated that way. Or does she regard herself as a formerly abused child—and George, and all those other young men whom she met in that cardboard hothouse, as having continued the pattern?
The third Linda Viccino represents the most disquieting prospect. Her name appears in cemetery records in Massachusetts, not far from Boston. “Linda Viccino 1945–70.” This woman might have been born a year or two too soon to have been Lolly, but he considers the possibility. What kills a person at twenty-five? Leukemia. An accident. But George knows the better odds are that someone who passes at that age dies of unhappiness. Drug overdose. Suicide. Reckless behavior. In this version of Lolly, there was no escape for the young woman who had declared, ‘My life stinks, you can’t believe how much my life stinks.’
He has finally given up his research and gone on to other work when Koll’s draft dissent in Warnovits pops up in George’s e-mail. It’s Koll’s usual bravura performance, trampling like a marching army over opposing ideas. George finds himself amused by the contrast between the bold legal conquistador and the man who sat here unraveled by #1. It’s not news, however, that Nathan’s paranoia compels an element of physical cowardice. The second or third time George sat with him, Koll retreated into silence, plainly intimidated by the reputation of the defendant.
Trying to draw back the particulars of the case, George ultimately goes still when his memory solidifies. He remembers now. People v. Jaime Colon.
The appellant who terrified Nathan was Corazón.
13
CORAZÓN’S HAND
COURT SECURITY is relegated to a cramped office off the main lobby, a warren of filing cabinets and fabric workstation dividers. The lower floors of the Central Branch building never received any of the deluxe refurbishing that went on upstairs to make way for the appellate court. The half-height oak tongue-in-groove paneling on the plaster walls has the yellowish cast of its decades-old varnish, and the tall double-hung windows are rattling antiques. When he asks for Marina, one of her clerical workers, all ‘suggested’ for her payroll by members of the County Board, points over his head to her office without glancing up from a computer screen.
Marina is on the phone, and the look that stiffens her rectangular face when she takes notice of the judge tells the whole story. By
gones are not gone yet.
“Later,” she says into the handset. Pictures of Marina’s sisters and their families, of her parents, and of a woman, a deputy U.S. marshal, whom Marina took to the court’s holiday party last year, are arrayed in matching gold frames on her desk. “Judge,” she says neutrally as she puts down the phone.
“So,” George says, taking the seat she has offered, “I just wanted you to know that when I left here on Friday I went home and had a fight with my wife too. But,” he adds, “I did not kick the dog.”
She nods.
“Then again, we don’t own a dog.”
He gets the smile he wanted. “It’s a lot of stress, Judge. I wouldn’t trade places with you.”
“Just to be said, Marina: I’m grateful for everything you’ve done. I know you’re trying to save my scaly hide.”
She beams like a little kid, but it’s brief. She’s reluctant to be charmed.
“Your Honor, I have to be frank. The biggest problem I’ve got in this whole situation is getting you to take it seriously. Even if it’s one in ten that I’m right, you can’t act as if the chances are zero. Can you maybe ask yourself if you’re in denial?”
“Point taken,” he answers. “And actually, that’s why I’m here. I just realized that Nathan Koll sat on the panel with me when we heard Corazón’s appeal.”
“Oh, yeah,” she answers. “Koll went nuclear when Murph mentioned the name. The judge would just as soon we go down to the supermax and poison Corazón’s food.” Marina draws her cheeks in to contain her expression, but she has to feel like a kindergarten teacher at times, having to indulge the judges and their mercurial demands. “Tell me something,” she says. “Judge Koll—he’s a smart guy, isn’t he?”