“I think the limitations issue is tough, Rusty.”
“Really?” Sabich’s eyes are open wide as he calculates. Among Rusty’s concerns as Chief is maintaining public respect for the court’s decisions. But there is a line here. The judges often ask one another about abstract legal issues, but it is out of bounds for a judge not sitting on a case to suggest an outcome.
With no more said, Rusty waves George back onto the court. Halfway through the second game, with the score 10–10, George realizes that he does not have the juice to go on to a tiebreaker. His only hope for the match is to take this game. Before each point he stops to fill his lungs, exhorting himself to press all-out. Ahead 20 to 19, with the serve, George ends a long rally with a desperate lunge for a great passing shot Rusty has hit. The ball flips off George’s fingertips, arching up like a diver and plunging in slow motion to strike the very base of the front wall. George has won.
“Oh, for God’s sake,” Rusty says. George has not beaten him two games to naught all year.
George collects the ball and finds Rusty with his hand on the door.
“So let me understand this. Koll votes to reverse because the videotape was inadmissible, you vote to reverse because of limitations, and Summer dissents on both grounds. Is that how this is breaking down?” George sags a little, realizing that his triumph was due in part to the Chief’s distraction with Warnovits.
“That’s one scenario. I took the opinion, and I have no clue yet what I’m going to do, Russ.”
“Well, that’s a relief. Look, George, don’t let Nathan mousetrap you on this thing.”
“‘Mousetrap’?”
“Play it out. Reverse on limitations grounds and what happens to the case?”
“Finito.”
“Right. But Nathan’s grounds?”
George shrugs. He’s never gotten that far in his own mind.
“Think about it,” the Chief says. “If you guys hold only that the tape was inadmissible, the prosecutors will be able to go back to square one. You’ll already have decided that there’s no limitations bar, and so under the statute, the P.A.’s office gets one year from the reversal to reindict the case with any violations that spring from the same criminal transaction. Right so far?”
“I’m following.”
“Which means the prosecutors will charge all four of these men for eavesdropping. Correct? Then the P.A.s will wait to see which defendant bangs down their door first to make a deal to testify about the rape. The worst of those boys will be charged with both crimes. And everybody ends up with convictions. Justice delayed,” Rusty says, “but not denied.
“But go where you’re headed? Three separate opinions? We should just dial 911 right now. The case gets reversed without any guidance to the trial court on whether it can go forward. Either we rehear it en banc or, better bet, the Supreme Court steps in. And then you’re running for retention after deciding in a marquee case that you’ll free four rich white rapists on a technicality, in an opinion which no other judge would join and which, odds on, gets overturned. I mean, Jesus, George. Talk about looking for trouble.” Rusty touches the sodden shoulder of George’s T-shirt. “Ask yourself if Nathan didn’t play all that out in his head before he got on the bench yesterday. He’s going to leave you hanging from the yardarm and run for your seat when it goes south on you.”
Lecture complete, Rusty exits, leaving George within the high, white space, greatly unsettled. He is unconvinced about Koll. The complex calculations Rusty described are well within Nathan’s capabilities. But the compromises are not. Koll’s story to himself is that the law is a matter of rigorous reason untouched by personal motives. Once falsely accused of murder, Rusty is understandably prone to see devious and complex schemes to undermine him and his friends.
Yet about the practical consequences if George votes to reverse on limitations grounds, the Chief is clearly correct. Feminists and minorities, liberals and conservatives—a judge who manages to antagonize all those groups at once is looking for trouble on Election Day. George is as practical as the next person, but he’d as soon not run as trim his conscience to fit the ballot box.
That, he realizes, is what’s bothering him most. The conversation went well past the point of propriety. George sees this with Rusty now and then. He is so accustomed to his role as the very figure of integrity that he assumes his every word and act, no matter what their character, is clothed in rectitude.
To his credit, Rusty himself has had second thoughts by the time George reaches the locker room. Sabich is sitting on the narrow wooden bench between the banks of lockers, a towel indenting his softening middle, his chin drooped onto the gray hairs of his chest.
“George, at some point there I should have put a sock in my mouth. Let’s strike all that from the record. I’m really sorry.”
“No problem.”
“I’m concerned for your sake. You know that.”
“I do.” George believes that, although Rusty’s deepest concerns will always be for the court, which is his monument. “Rusty, I’ve disregarded your views for thirty years. It’s force of habit by now.”
They both smile.
“It’s a hard case, Rusty. I’m having a lot of trouble with it.”
“Going back and forth?”
He isn’t going anywhere. After the memories of yesterday, he is unwilling even to approach a decision until he is more settled with himself.
“How is Patrice?” the Chief Judge then asks. George decides that this is not a non sequitur. It’s how Rusty is explaining things to himself. Patrice is sick. George’s trolley is a little off the tracks. And he might be right. George gives a brief medical update. The doctor said this morning that he expects to discharge Patrice tonight.
“Great, great,” says Rusty, then the two men, now seated next to each other on the locker-room bench, subside to a silence in which Warnovits somehow remains the subject.
“Rusty,” George eventually asks, “is a judge disqualified if something in a case reminds him of himself?”
Only after speaking does George realize how loaded the question is. Rusty at moments must see his own reflection in the face of every soul accused.
“They’re supposed to remind us of ourselves, aren’t they, George? Isn’t that a quality of mercy?” The Chief stands then, offering his hand as a token of reassurance. “You kicked my butt,” he says.
“I sure did.”
“And whatever you do on that case will be the right thing.”
George shakes his head, unconvinced. “It’s just—” he says.
“What?”
“Don’t you wonder sometimes?”
“What?”
When George finishes, he can see from the abrupt darkening of Rusty’s eyes that he has said the most upsetting thing yet.
“Who are we?” George has asked his friend. “Who are we to judge?”
8
A DRAFT
“KOLL’S CLERK told me we got the Warnovits opinion,” says Cassandra Oakey, sweeping into the judge’s large inner chambers moments after George arrives Thursday morning. “So what’s the deal?”
“The deal?”
“Well, what are we doing with the case? I checked with John. You haven’t assigned either one of us to start a draft. Term ends in two weeks.”
Cassie is the judge’s rotating law clerk. The other position, held by John Banion, is permanent, but Cassie’s job is filled annually by a graduating law student. Two weeks hence, a law reviewer from Northwestern will start, and after training him for ten days, Cassie will begin work for a foundation that represents indigent immigrants. She is destined for great things in the law, but the judge cannot say he’ll be sad to see her go. He has known Cassie, the daughter of Harrison Oakey, one of George’s former law partners and dearest friends, since she was kicking in her mother’s belly, and for her sake he set aside his standard reservations about hiring someone so close. Many of his colleagues do it, and Cassie was amply qualified. Sh
e was a standout law student who actually flattered George by accepting his clerkship over another she’d been offered in federal court. Her research and writing have proven to be flawless.
But Cassie is one of those roundly gifted people—brilliant, a former tennis star, a tall, striking ash blonde—whom the world has rebuffed so infrequently that she has learned virtually nothing about boundaries. She speaks out of turn and without thinking—often with a regal air, as if it were she who’s on the bench. She charges into the judge’s private chambers without knocking, as she has just done, and despite frequent corrections, still calls him George in front of others, a liberty even Dineesha no longer permits herself. Now and then, George feels like a lion tamer who needs to grab a chair to keep Cassie at bay.
“I mean,” she says, stepping closer to the judge’s large desk, “we’re affirming, right?” To Cassie, a young woman of her times, the case is open and shut. When he hesitates, his clerk’s mouth droops open a bit. “Shut up! You’re not going with Koll, are you? About the tape being inadmissible? That’s totally whacked, right? We can’t consider new issues now.”
“I’m still turning some things over in my mind, Cassie.”
“Really? Like what?”
Lord God of mercy, he thinks. Less than four weeks.
“The statute of limitations bothers me. I’ve read it over thirty times. It says that if the defendants engage in acts of concealment, the statute’s time limit is suspended, quote, ‘during such period that those acts prevent the crime from being known.’ Unquote. But this young woman told her best friend she might have been raped.”
“I thought the trial judge said she was too young to know enough to go to the cops.”
“That’s what he said. But Sapperstein has a point. The legislature created another limitations exception to deal with crimes against minors, but it doesn’t last forever. Once you’re eighteen, and presumably old enough to understand the ways of the world, you have a year to go to the authorities. Mindy DeBoyer didn’t do that. Is it right to allow the trial judge to rely on her age to extend the statute longer than the exception for crimes against minors allows?”
“Oh,” Cassie says. Apparently she has no quick rejoinder. “Well, should I do two drafts? One affirming, one reversing on limitations grounds?”
“John wrote the bench memo, Cassie.” Ordinarily the clerk who prepares the case for oral argument drafts the judge’s opinion. For Warnovits, besides summarizing the tape, Banion had done the extra research George requested about the statute of limitations.
“John said he didn’t care. I’ve got a little more time right now.”
Cassie is not democratic—she always wants the most interesting work. Banion must be nettled, but he is uncomplaining by character. Nonetheless, the judge has struggled for months to make sure Cassie doesn’t run over John and says that he will discuss all this with Banion first.
Cassie nods but stands her ground, her full face still clouded beneath the bangs of her blunt Dutch boy hairdo.
“Can I say something?” she asks and predictably does not await an answer. “I really don’t understand how you can just let these guys go. They’ve had every break in life. They don’t deserve one more.”
“It’s not a matter of what they deserve. People get away with things all the time, Cassie. The law can’t dispense justice to every guilty person.”
“But the law’s not supposed to favor that, is it?”
“Then why do we require proof beyond a reasonable doubt? Why is there a statute of limitations?”
“If you ask me, I don’t think there should be. Not when there’s a videotape.”
“First of all, I’m not the legislature.”
She repeats the last four words with him. Apparently he has worn out the grooves on that one in the last year. He knows from Cassie’s prior comments that she finds it a bit cowardly to hide behind the state lawmakers. And she’s right that at times such claims sound like a judicial version of “I’m only following orders.” But to George, nothing about judging is more important than refusing to be a law unto yourself.
“And second,” he continues, “the law for centuries has made a judgment that, after a certain amount of time, every bad guy, except for a murderer, is entitled to go on with his life and not dwell in the shadow of past mistakes. Imagine that the videotape had turned up forty years later instead of four,” he says. The example comes to him instantly, the reason so obvious that he’s surprised his voice emerged without a telltale quiver. “The way the trial judge read the concealment provision, the defendants could still be prosecuted decades from now. Would you like to see them in court then?”
“You mean when they’re all old men?”
“Let’s be delicate”—George smiles—“and say middle-aged. But if you don’t want the concealment provision to allow prosecution forty years later, why permit it today? How do the words that the legislature wrote change meaning simply through the passage of time?”
She waves her blond head back and forth, unwilling to say one way or the other.
“Come on, Judge,” he says. “Decide.”
Cassie presumes on their lifetime acquaintance and sticks out her tongue by way of reply, briskly departing to the adjoining office. The judge turns to the window. The trees in the parkway below have passed from the winsome colors of spring to the more declarative shades of summer.
He knows Cassie is correct about one thing. They need a decision. In the end, this job really has only one essential requirement: Make up your mind. And don’t look back. Decisiveness in many ways is more important than being right. A couple of times each year, George is reversed by the state Supreme Court, whose downstate contingent often delights in putting the big-city judges in their places. It stings, but all you can say is, ‘That’s what they think.’ Power alone makes the Supremes correct. The law at those moments feels as arbitrary as a dream. But there’s no process at all without a decision.
Yet when he tries to force himself back to the Warnovits case, he cannot escape his own stake in it. His reflections return him instantly to Virginia, and the dormitory library where he encountered Lolly Viccino the morning after. Responding to her request for cigarettes, George had come back from the canteen with a package of Winstons, as well as a fried-egg sandwich and a nickel Coke. She ate wolfishly, then dabbed a napkin daintily at the corners of her mouth before using it to dry her running nose.
‘At least there’s one gentleman around here,’ she said. ‘The girls said all the boys down here were real gentlemen, and I decided I’d go see for myself.’ She worried her head at that thought. That was as close as they were ever to come to speaking about the night before. He did not know then, or now, what portion of the events she remembered or how clearly. Lolly lit a cigarette and quickly veiled herself in smoke.
‘I was wondering,’ he said.
‘Yeah?’
‘If I could give you a hand getting home?’
Her face flashed to him. Clearly he had offended her, making it sound as if she were unwelcome. He expected a rebuke, but in a second her small brown eyes, initially hard as glass, were swimming. She crushed her hand to her nose and with a single gasp began to cry. That explained her appearance, George realized, the rheumy eyes, the drooling nose. Her look was that of someone who’d been crying for days.
She pulled the sleeve of her blouse over the heel of her palm and wiped her face with it.
‘Just go away,’ she told him. She swore, repeating the direction.
When he checked back in an hour, she had not moved. She was leaning against the oak paneling, smoking. Nearly half the pack was gone. She gave George a lethal look, then, recognizing him, grimaced as if to withdraw it. Apparently other young men had awoken and gawked from the library’s threshold.
He sat on the floor beside her.
‘My life stinks,’ she said. ‘You can’t believe how much my life stinks.’
‘Because?’
‘I flunked out of Columa
this week,’ she said, referring to the women’s college down the road. ‘I mean, I was “asked to leave.” You know how they put things.’
‘Sure.’
‘It’s not as if I studied. I knew it was going to happen. But—’ She began to cry again. The way she went from hard to soft in a bare instant baffled him. But this time she managed to eke out the story. It was fairly simple: she had nowhere to go. Her father deserted the family a decade before. Last year, her mother met a man, and as soon as Lolly left for college, they married. Now the mother did not want her daughter to return for more than a day or two. She wasn’t going to bear the brunt of Lolly’s failures by putting her new marriage under any unneeded strain. Lolly would have to make do on her own.
At the time, George sensed there was much here he was too young to fully comprehend. It was unimaginable that his parents would ever spurn him this way. He knew the kinds of adjectives his mother would reflexively apply to families like Lolly’s. But what he could not fully absorb then was what she had told him about herself. He was yet to see hundreds, even thousands, of young people turn rejection into self-loathing, a force of indiscriminate destructiveness. Nothing that had happened to Lolly Viccino the day and night before was a mystery to George Mason now.
Then he understood only that she was unhappier than he was. He was always frightened by friends and classmates sunk in misery. It was an omen. A few wrong turns in his own mental fun house, and he could be similarly overwhelmed. His disagreements with his strict father, his mother’s disappointments—if he surrendered to them fully, he could be like this girl, a village in flames. And so he sat beside Lolly Viccino in silence for several minutes, lecturing himself with various Christian sayings his father would have employed but still inexpressibly relieved not to be her.
9
SOMEBODY’S CHILD
AT THE END OF TERM, the work flow is heavy. Drafts of opinions arrive from almost every other chamber in the court, and George has to make prudential decisions about which are worth a special word from him by way of concurrence or dissent, bearing in mind the limits on what either he or the clerks can get done in the time remaining.