Limitations

7

When George Mason drives into the Judges’ Section of the parking structure on Wednesday morning, Abel Birtz is waiting by the third-floor stairway to greet him. Abel appeared in the judge’s chambers late yesterday afternoon, about an hour after Marina left, heaping himself onto the green Naugahyde sofa in the reception area. ‘I’m your detail, Judge,’ he explained. George did his best to appear pleased.

‘Sorry you have to waste your time with this, Abel.’

‘Hell no, Judge. We take this serious.’

From the start, George recognized the flaw in Marina’s plan to assign him a bodyguard. Court Security’s resources are too strapped to waste anyone worthwhile on this kind of thumb twiddling. Abel, a former Kindle copper, is garrulous and inoffensive, but he has gone to pasture. His khaki sport coat, emblazoned at the pocket with the court’s seal, would need another yard of fabric to close across his massive belly. Greeting the judge yesterday, he required several attempts to hike himself forward on the sofa cushion before arriving on his feet, his large, square face considerably reddened. And he clearly has an arthritic hip. He walks with a swinging gait as they cross the covered gangway between the parking garage and the courthouse. God help them both, George thinks, if #1 strikes and they need to run for their lives.

And there is another problem with Abel’s presence, which does not strike George until he takes in the vexed look with which Dineesha greets him as they push through the door to chambers. Though it is no fault of either, Dineesha and Abel have an uncomfortable history.

George and Patrice first met Dineesha more than two decades ago at PTA meetings, which Dineesha attended as the mother of Jeb, a scholarship student at the Morris School. Jeb, who now practices rehabilitative medicine in Denver, was in the same fourth-grade class as Peter, the Masons’ elder son. But it was Dineesha’s oldest boy, Zeke, who served to fortify her relationship with George. Knowing what he did for a living, Dineesha sought George out when Zeke was arrested. It was not Zeke’s first bust, but these charges, for having supposedly joined other gangbangers in burning down the apartment of a young man attempting to quit, carried a mandatory prison term. It was a bad beef on a bad kid, mud the cops were willing to throw at the wall because it was time something stuck. Maybe Zeke had been there, but if so, George became convinced he was merely a spectator.

George took the case without fee and won, but Dineesha insisted on doing overflow typing in his office as a form of payment. She was soon a permanent addition to George’s practice-and so was Zeke. As a first-year in Charlottesville, George had fought fiercely with classmates about the Civil Rights Act, which he was sure would leave the path to progress for Negroes unimpeded. Work hard. Play by the rules. Get an education. He had no understanding of the perils for young black men, even those like Zeke, who could not have been raised by more loving or ambitious parents. Who knew where Zeke’s problems started? Probably by being less academically gifted than his two younger sibs. It is an inevitable rule of family life, as George sees it, that children occupy the space provided, and in Dineesha’s house the available space turned out to be a cell in Rudyard penitentiary, where Zeke has been twice. Back on the street at the moment, he still shows up at his parents’ home often for a meal and money. George has given up his lectures to his assistant on tough love. But the sight of Abel ten feet from Dineesha’s desk can only refresh her heartbreak. It was Abel Birtz, then a property crimes detective, who pinched Zeke on the burglary bit that first led him to do time.

George is sure that all of this is wrapped up in the baleful look they received coming through the door, but Dineesha has another reason to be bothered by the leisurely way her boss is chatting with Abel. She taps her watch.

“The Chief Judge?” she reminds him. “The High Court?”

“Yikes!” George turns and runs.

To mute the protests of the appellate judges about moving to the bleak wilderness beyond U.S. 843, the County Board constructed a small athletic facility, including a racquetball court, which was added only because it was a perfect use of a large air shaft at the center of the double floor. It has been dubbed ‘the High Court’ by wags. Handball can also be played here, and the Chief Judge, Rusty Sabich, still prefers the older game, smashing a small rubber ball around with gloved palms. He and George have matches twice a week.

“Georgie boy!” The Chief is slipping into his athletic shorts in the tiny locker room when Judge Mason dashes in, spouting apologies. The two have enjoyed a solid friendship throughout their professional lives. Sabich was the Deputy Prosecuting Attorney in the courtroom to which George was initially assigned as a State Defender, and for the first three months, Rusty often whispered helpful suggestions as they stood before Judge White. ‘Move for a speedy trial.’ ‘Remind him the parents will put their house up to secure bail.’ In time, they also had their share of battles, but going toe to toe in court often seals a friendship once the sting of losing has passed. Rusty, who wields considerable political swack, was the prime mover when George was offered the chance to run for this job more than ten years ago.

“I need to talk to you,” the Chief says.

“We’re on top of term deadline,” George answers. One of Rusty’s many reforms in the court is a rule requiring all argued cases to be decided by the conclusion of the court’s annual term, two weeks from now. It ended the former practice under which decisions that might disappoint political heavyweights remained in limbo for years. The requirement also forces the judges to keep up with their opinions through the year to avoid an impossible backlog now. But that is not what’s on Rusty’s mind.

“Couple other items,” he answers.

They have moved into the lavatory, where George is soaking his hands in warm water to diminish the chance of bruising. The Chief stands by, heavy goggles already in place, squeezing the handball to soften it.

“Number One,” he says and stops on the words. A smile flashes by like a fish through the water. “Not to joke, Georgie. It’s a serious matter.”

“Rusty,” George says-he addresses the Chief by first name only in private-“how the hell did you hear about that?”

“Marina told me last night. Chilling,” the Chief adds, “especially if she’s right about Corazon. The only way he could engineer something like this, in my opinion, is if the Almighty Latin Nation turned a guard. And Corrections did everything but a genealogy chart for every staff member in the supermax. These gangs can probably reach as far as the mob in the old days.”

“Rusty, I specifically asked Marina not to talk about this with anybody but me, and especially not about Corazon. I don’t need my staff any jumpier, and frankly, I don’t give the idea much credence.” Even less since last night’s e-mail. No matter what the influence of ALN or Corazon’s set, Latinos Reyes, how would any of them know about Patrice’s illness? Nonetheless, the reality that Marina is beyond his control puts to rest any thought of telling her about the message. There would be investigators crawling all over the house and twenty-four-hour bodyguards, not a scene he would even consider bringing his ailing wife home to.

“Easy, Georgie. I’m her boss. And besides, she thinks we may find a little silver lining here.”

“Which is?”

“Well, it gives her a case in point to press the County Board for an emergency-funding authorization for increased courthouse security.”

“And I’m the poster child?” George does not try to hide his irritation. He’s been keeping this a secret in his household, and now Marina, who clearly has her own agenda, wants to make him the lead item in the Metro Section.

“Hardly,” Rusty says. “Hardly. We’ll explain to the Board without names. But after the murder in Cincinnati, this gives us a wedge to get some dollars back. Let them hire a few less flunkies to patrol the Public Forest.”

Marina likes to joke that last year the Board made her reduce her two-man security patrols in the garage to one officer and a German shepherd, and this year they want to replace the shepherd with a Chihuahua. And with #1’s threats as evidence, Rusty may be able to convince the County Board to restore funds, since they often defer to his reputation.

It’s sometimes hard to explain to younger people how Rusty Sabich came to be the public embodiment of probity, inasmuch as nearly twenty years ago, while he was the Chief Deputy Prosecutor, Rusty was indicted and tried for the murder of a female colleague. From the start, George had stood by him, and was not surprised when the case presented against Rusty turned out to be an outright embarrassment, a mishmash of bad lab work, missing evidence, and unreliable witnesses. The only lingering debate today is whether the then newly elected P.A., who saw Rusty as a potential rival, framed him or, as George believes, was simply far too eager to reach the wrong conclusions.

Either way, as the acknowledged victim of a horrible injustice, Sabich had singular qualifications to be a judge. He was elected to this court in 1988, then propelled to Chief by the same courthouse scandal that first swept George onto the bench. Rusty is regarded as a sure thing for the state Supreme Court, whenever Ned Halsey surrenders what is colloquially referred to as “the white man’s seat,” in distinction to the two other spots on the Court reserved for Kindle County, which are filled in accordance with recent political understandings by a racial minority and a woman.

But there remains an air of aloofness to Rusty, which at times borders on pretension. Once accused of murder, he is forever straightening his spine. His life is as neatly divided by the experience as if someone had painted a stripe through it. George understands but occasionally dislikes who Rusty has become in the aftermath, often depressed and sometimes officious, as he was just now about Marina, and almost always on guard. That said, he has been an extraordinary Chief Judge. He became an able manager running the P.A.’s office, and he has used his public stature to wrest control of this court from the party chieftains, transforming it into a respected judicial body.

Together now they hunch to enter the half-height door to the High Court. They are well matched physically, both tallish, fit, and gray. Rusty has bulked up a little more with age, and George may be a bit faster now, but that does not make up for what Rusty learned by playing this game since he was a boy, an ingrained intuition about how every ball will carom. He wins consistently and by long agreement spots George points, two in the games to twenty-one, one if the match goes to the eleven-point tiebreaker. Still agitated about Marina, George plays with fury and wins the first game straight up, 21 to 17.

“You’re not going to have anything left for game two,” Rusty says when they take a breather at the watercooler.

“Trash-talk somebody else, you old fart. I think you’ve finally lost a step.”

“Another one,” Sabich says.

George rests his hands on his knees. Rusty is right that he pushed himself hard.

“So here’s my next item, George. What’s the deal with your retention petition?”

“I have two weeks.”

“Formally,” Rusty answers. “But look, George. There are a hundred and fifty judges in the Superior Court who’d like to move up. You’ve been there. Everybody gets sick of the grind. Trials. Motions. Lawyers with all their cockamamie. I’ve gotten six calls this week. Not to mention Nathan.”

“Koll?” Nathan’s seat is being eliminated for budgetary reasons, which is what led Jerry Ryan, the judge elected to the position, to resign in pique. Nathan will not be eligible simply to seek retention.

“Just because his appointment lasts two more years doesn’t mean he can’t run for a full-term seat if a vacancy develops now. I bet he sends his clerks downstairs twice a day to see if you’ve filed. George, you can’t do that to us. We’re your friends.” Rusty is smiling. It was he who encouraged the Supreme Court to give the interim appointment to Nathan, thinking that the addition of a famous legal scholar would be another enhancement to the stature of the court. These days, he says he’d like to donate Nathan’s body to science-while he’s still living. “Seriously, George. We need you around here. Don’t let this hairball’s threats give you second thoughts about staying on.”

There is an unspoken issue. Rusty has controlled membership on the court for more than a decade and does not want anybody making an end run around him. If George were uninterested in retention, he owed the Chief word of that long ago.

“It’s not that, Rusty. I’ve just been waiting for all the dust to settle with Patrice.”

“Sure. But raising false hopes, you’ll end up making enemies you don’t need. Get the papers filed. And speaking of Nathan, what’s he up to on Warnovits? I read a bizarre item in the Tribune about your oral argument yesterday.”

Like everybody else, Rusty finds the story of Koll’s sneak attack on Sapperstein hilarious.

“So he’s going to dissent on those grounds?” Rusty asks.

“Or concur separately.”

The idea that George might vote to reverse catches the Chief short.

“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?”