The Judgment

Nineteen

It was simply a matter of chance. Any one of a dozen different deputy district attorneys might have been assigned to the case of State v. John Smith. Despite all the publicity, despite the editorials insisting that the district attorney himself should handle the first murder trial in which the victim was a sitting circuit court judge, it was treated like any other homicide. Whether the victim was one of the homeless found butchered behind the garbage cans in an alleyway, or a member of the state judiciary found stabbed to death next to his car, the bureaucratic machinery of the criminal justice system treated everyone with the same rigid equality of death. Cases within the same category were assigned in a strict rotation among the deputies within that division. Without a second thought, an anonymous clerk entered the name Cassandra Loescher and with that simple act made her famous.

When the district attorney announced that Cassandra Loescher would prosecute the killer of Judge Quincy Griswald he lavished such praise on her qualifications that it would have been hard not to believe that she had been his personal choice. With the wide-eyed sincerity that had helped get him elected, he insisted she was one of the most experienced, best-trained prosecutors in his office. Leaning toward the cameras, a confident smile on his suntanned face, he called her “a tough, smart lawyer who knows her way around a courtroom,” as if it might have entered anyone’s mind that she did not. A quick, furtive glance at a three-by-five card was followed by the observation that “there are not more than three or four prosecutors in the whole state who could match her 96 percent conviction rate.” Turning to the somewhat bewildered woman next to him, he shook her hand and, with one last smile and one last wave to the circle of reporters crowding the corridor, vanished into his office.

Blinking into the TV lights, Cassandra Loescher was left alone to listen to herself repeat the same vapid generalities she was too intelligent not to have once ridiculed in the mouth of someone else. It was always interesting, the way the words we mock in others no longer seem insincere when we use them ourselves. She meant it when she said she was determined to bring this killer to justice; she meant it when she said she had the greatest faith in the world that a jury would do the right thing. She was now so convinced of the importance of a guilty verdict in the case against John Smith that she had probably forgotten the day when, while I watched, she had tried to trade insults with Quincy Griswald and then stalked out of his courtroom, wishing him dead.

The look she had given him then was the look she was giving me now. She was annoyed she had in effect to repeat the arraignment with a new attorney, and even more irritated that it had not started on time. It was scheduled for ten o’clock; it was now seven minutes after. She sat at one of the two tables reserved for counsel, tapping her fingers and clicking her teeth, listening to the murmurs of the handful of reporters and spectators scattered over the hard wooden benches that ran across the low-ceilinged room behind us.

The clerk took two steps inside, stopped and stamped her foot.

“All rise,” she announced.

His black robe trailing behind him, Judge Morris Bingham walked briskly into the room where in the course of a long tenure on the bench he had heard nearly every complaint and every excuse suffering could create or duplicity could invent. In his mid-fifties, with blue eyes that were lively and alert, Bingham had only a tinge of gray in his close-cut brown hair. Though he was not in any serious sense a legal scholar, he had a clear mind and the kind of sound judgment that builds on its own experience.

No one-not even the criminal defendants he had sometimes to sentence to long terms of imprisonment-had ever complained that he had treated them unfairly. He was civil, sometimes to a fault, but his impeccable manners, an honest reflection of his ba-sically decent character, also provided him a barrier against any closer contact. Lawyers who practiced before him loved him without knowing him; judges who worked with him did not like him because he had no interest in knowing them.

There was no wasted motion in what he did, and no sense that he worried about time. He sat down, folded his hands together on the bench in front of him, leaned forward, and turned to the deputy district attorney. With nothing more than an expectant look, he let her know what he wanted.

“We’re here in the matter of State v. John Smith, your honor.”

He glanced at the deputy sheriff standing next to the door at the side. The deputy understood. His eyes still on the judge, he opened the door and called the name of the prisoner. When John Smith appeared in the doorway, the deputy put his hand on his arm and led him across the front of the courtroom.

Shackled with chains, the young man-the boy-known only as John Smith shuffled across the floor, his wrists held together in front of his waist, his head bobbing slowly up and down. As he drew closer, he stared at me with a puzzled expression. I had spent an hour with him late Friday afternoon, just three days before, but I was not sure he remembered who I was.

The deputy guided him to a spot next to me and then stepped back to a place in front of the wooden railing a few feet behind.

Bingham looked at me and raised his eyebrows.

“Your honor, for the record my name is Joseph Antonelli. I have agreed to undertake the representation of the defendant known as John Smith. Mr. Smith, as the court is aware, has previously been arraigned on an indictment charging him with the crime of murder in the first degree. At the time of that arraignment, Mr. Smith was represented by the public defender’s office.

A not guilty plea was entered, defense counsel filed a motion for a psychiatric examination to determine if Mr. Smith was in fact competent to stand trial, and the case was assigned to this court for all further proceedings.”

This was one of those routine appearances which, though most lawyers hated them as a waste of their time, were among my favorite things to do. I was like an actor who has only five lines, but knows that they are as important as any lines in the play. I stood with my shoulders straight and my hands held behind my back, bent slightly forward at the waist, my feet spread wide apart.

I spoke each sentence rapidly, snapped off the last word, paused long enough for the word to echo back, and then did it again.

“I have filed with the court a substitution order, signed by both previous counsel and myself. With the approval of the court, I wish to begin my representation of Mr. Smith by asking that the motion for a psychiatric examination be withdrawn. The defendant has no desire to avoid trial of this case on the merits. The defendant, your honor, wishes to establish once and for all that he is innocent and that whoever killed the honorable Judge Quincy Griswald is still at large and-”

Morris Bingham raised his chin, and with that single gesture cut me off. I had begun to play to the reporters and he was not going to allow it. His gaze lingered a moment longer, and I thought I detected something close to a smile. Then he looked over at Cassandra Loescher, who already knew the question and had no doubt about her answer.

“The state has no objection,” she replied as soon as he lifted his eyebrow.

With a quick, abbreviated smile and an even quicker nod, Bingham sat up, glanced inside the case file, closed it, and nodded once more. “Mr. Smith,” he said, leaning forward.

There was no response, none that I could hear. I looked to the side and was surprised to find John Smith looking up at the bench, waiting for what the judge was going to say next.

“Do you understand what we’re doing here today?”

Smith said nothing, but he seemed completely attentive. More than that, he seemed drawn to the judge in a way I had not seen before. Perhaps it was the sound of Bingham’s voice: soft, quiet, the sound of someone you could trust, the sound of someone who would never hurt you.

“Mr. Antonelli has indicated that he wants to be your lawyer.

Do you want him to be your lawyer, Mr. Smith?”

I moved a quarter turn away to watch more clearly, hoping he would do something, make some sign so that we could satisfy at least the minimal requirement that the defendant know that he has been charged with a crime and that he has a right to an attorney. To my astonishment, he answered out loud, a single three-letter word that seemed to stretch out forever between the beginning and the end, a long, quivering cry that until it was over you were not sure he would have the strength to finish. It was like the first full word spoken by a child, who then wants to see if he got it right.

Biting on his lip, Bingham stared at him, and then stared hard at me, as if there was something he would have liked to know.

“Very well,” he said presently. “The order previously entered for a psychiatric examination of the defendant is withdrawn. Is there anything else, Mr. Antonelli?”

“Yes, your honor. I would ask that the defendant be released on his own recognizance.”

Startled out of a reverie, Cassandra Loescher shot up from her chair. “Your honor,” she sputtered, barely able to contain herself.

“The defendant is charged with capital murder. Even if he wasn’t, he has no job, no family, no ties to the community. For that matter, your honor,” she said, putting her hand on her hip, “he doesn’t even have a name. The police called him John Smith because they had to call him something. They ran his prints: Nothing came back. There are no records of any kind. We don’t know who he is, and if he were let out there would be no way to find him.” Glancing across to where I stood, she added caustically,

“Perhaps Mr. Antonelli can tell the court who his client is. Someone hired him to represent him.”

I waited until Bingham’s eyes left her and came to me. “The terms under which I have agreed to represent Mr. Smith are a private matter between myself and my client.”

Bingham did not need to be told what he already knew. Without expression, he waited for more.

“The court will notice that Ms. Loescher did not say that Mr.

Smith has a criminal record. She did not say that Mr. Smith has a history of violence. We may not know who he is, but if he had a criminal record-if he had ever been arrested-Ms. Loescher would have known that, because his fingerprints would have told her that. We have, your honor, a man without a name; a man, as nearly as I can tell, without much in the way of a memory; someone who has almost certainly never hurt another human being, now charged with a crime to which he has pled not guilty, held in confinement for something he did not do.”

Bingham threw out his hands and spread open his fingers, tilted his head and looked at me, waiting. I answered his unspoken question with the same sort of gesture. “I know,” I agreed. “I just wanted to point out the unfairness of it all.”

“In light of the seriousness of the charge… without a stable home… someone to take responsibility… the defendant will remain in custody,” he said reluctantly. “Trial will be set for…”

He looked down at the clerk and waited until she found the next available date on his calendar.

“I’ll see you later today,” I said to my client, carefully pronouncing the words as the deputy put his hand on John Smith’s shoulder and led him away.

Howard Flynn was waiting for me in the corridor, a solemn expression on his rough-edged mouth. I started to ask him why he had not come inside. Then I remembered.

“It still bothers you, doesn’t it?” I asked as we walked toward the elevator.

“Not sure why it should,” he replied, shaking his head. “I come here often enough.”

There were other people in the elevator and we rode down in silence. Outside, the late morning sun, filtered through the thick-leafed trees, scattered a yellowish haze over the sidewalk in the courthouse park. We sat down on a bench across from a bronze statue turned dark green with age, honoring the dead of the First World War.

“What have you been able to find out?” I asked.

With his feet spread wide apart, Flynn rested his elbows on his thighs. “Nothing,” he said glumly. “Not a damn thing. It’s like the kid never existed. I’ve pretty well used up every inside contact I’ve got. The cops don’t know who he is. Social Services doesn’t have anything.” He sat up, pushed his elbows over the top of the bench behind him, and, tilting back his head, searched the heavens for an answer. “The adoption agencies don’t have anything. There’s only one thing left I can think of. You ever hear of a psychologist named Clifford Fox? He testified for the prosecution in a case you had a couple of years ago.”

“That son of a bitch?” I cried, as I pulled my knee onto the bench and turned to face Flynn directly. “Specializes in so-called repressed memories; testified that my client’s niece had remembered fifteen years later that her uncle had abused her as a child.

The jury didn’t believe it,” I reminded him.

Flynn’s chest heaved up as he snorted. “Yeah, you’d be the last guy to convince a jury to acquit someone guilty.” His eyes half shut, he slowly shook his head. “Doesn’t matter. Listen to me.

Whatever he said at that trial, he was telling the truth, at least what he thought was the truth. He doesn’t lie.” He paused long enough to form the gruff smile that usually introduced one of his brief commentaries on human weakness. “At least when he’s sober-and he hasn’t had a drink in years.”

I should have known. Flynn had friends everywhere, and every one of them was an alcoholic.

“What are you suggesting? What can he do that will help us find out something about John Smith? I don’t think we’re dealing with a repressed memory, do you?”

Flynn’s mouth twisted to the side. “All I know is that the only person who knows anything about John Smith is John Smith.

You’re wrong about Fox. He doesn’t specialize in repressed memory; he specializes in handicapped children. If anyone can reach inside that kid’s mind, he can.”

I checked my watch. “I have to get back to the office,” I said as I got to my feet. “I have to see John Smith this afternoon.

You need to meet him anyway. Come along. Then we’ll decide about your friend, the psychologist.”

Before I turned to go, I looked at Flynn and laughed. “First Stewart, now Fox? If we’re not careful we’re going to have a defense team made up of every drunk in the city.”

He stared at me from behind hooded eyes. A wry, rueful grin creased his mouth. “Could do a lot worse,” he said with a shrug.

When I walked into the office, Helen handed me a large, heavy manila envelope. “It just came,” she explained. “It’s the list of Judge Griswald’s cases.”

I told her to hold my calls and began to examine, caption by caption, all the criminal matters that had ever come before the honorable Quincy Griswald. There were thousands of them-trials, hearings, every conceivable kind of case-stretching back through the long years of his service on the bench. I must have gone through hundreds of pages, each of them listing line by line the name of a defendant and the crime with which he had been charged. There was nothing there, nothing that could either supply a motive as to why he had been killed or offer so much as a hint as to who might have killed him. I stayed at it for hours, and there were still hundreds more pages to go. I began to read faster, skimming the words as I traced my finger down each page.

I was in such a hurry to finish that I flew right past it, and only realized what I had seen when I was halfway down the next page.

Turning back, I stared at it for a long time, wondering why I had not put it all together before.

I had worked straight through lunch and far into the afternoon and had lost all track of time.

“Call Court Records and ask them to order up from the archives the court file from State v. Elliott Winston,” I said to Helen on my way out the door. “It’s an old case-about twelve years ago-

Quincy Griswald was the judge. I don’t have a case number. Then call the state hospital and tell Dr. Friedman I’d like to see him as soon as possible.”