The Judgment

Twenty-three

Idrove directly from the state hospital to the downtown bridge where I had lived for a night and a day as one of the homeless, but I could not find him. The only witness I had to the identity, and even to the very existence, of the man who had given the knife to my innocent client had disappeared, moved on to some other temporary encampment, vanished into the vast migration that, right in front of our eyes, took place every night and every day. I had been so certain, so confident that I knew who had done it and why; and now, as I sat listening to the prosecution make its opening statement, I wondered if I knew anything at all.

Cassandra Loescher was clear, precise, every word so freighted with moral outrage that you might have thought the defendant had been charged with the murder of his mother rather than the killing of someone he never knew. I had heard the same thing a hundred times before and seen it in a dozen different dreams.

Somewhere there had to be a dog-eared manual that described paragraph by paragraph what every prosecutor should say at the beginning of every homicide brought to trial. Everything followed a formula; every fact the prosecution was required to prove was fitted into place.

Dressed in a simple black dress, dark stockings, and black shoes, Loescher stood a few steps away from the jury box and, changing her tone, recited in a quiet, dignified voice the list of witnesses she intended to call and the testimony she expected each one of them to give.

“And when you’ve heard all the evidence,” she said at the end, her brown eyes glowing with confidence, “I know you’ll agree that the state has met its burden and that the guilt of John Smith has been proven beyond any reasonable doubt.”

Sitting next to me, the defendant known to the world as John Smith played with his tie. He had never worn one before and every morning when the deputy sheriff brought him into the courtroom, I tied it around his neck. Clean-shaven, with a decent haircut, he looked like a perfectly normal young man, except for the way he sometimes let his mouth hang open or rolled his head from side to side. Shy, and even terrified around strangers, he was also, I think, curious about the proceedings that were going on around him. At first he would not look up from the table, but gradually, as he became used to his surroundings, and especially the twelve faces in the jury box, he began to lift his eyes. He watched Cassandra Loescher tell the jury why he should be convicted of murder and when she finished smiled at her as if she had just said something nice.

Loescher had held the courtroom for nearly an hour, and when she sat down there was a dim, dull shuffling sound as the spectators, crowded together on the hard wood benches, shifted position. Slouched in the chair, both index fingers pressed together on my mouth, I was still trying to decide exactly what I should say when I heard the voice of the judge call my name.

“Do you wish to make an opening statement?” Judge Bingham asked.

I looked over at the jury and searched their eyes. “Yes, your honor,” I said as I got to my feet.

It had taken four days to pick a jury, and I had spent most of that time trying to convince them that they were there not to decide what had really happened the night Quincy Griswald was murdered, but whether the state had proven the guilt of the defendant beyond a reasonable doubt. I had done the same thing thousands of times before, persuading jurors to ignore their com-monsense notions about what had probably happened and to insist on facts about which there could be no dispute before they considered convicting someone of a crime. But this time was different. It was going to take more than an insistence on reasonable doubt if I was going to have any chance to win.

Standing at the end of the jury box, I put one hand on the railing and pushed the other into my suit coat pocket. This jury was like all the others. Three of its members had graduated from college, and one or two had some training beyond the twelfth grade, but most of them had ended their formal education with high school. There were no doctors, no lawyers, no business ex-ecutives, and no one who held any important public position.

Four of the twelve were retired, and of the seven women, three were grandmothers. Though it was not the fair cross section of the community it was supposed to be, it was in another way the perfect mirror of who we are. These were people who wanted to do the right thing and were willing to follow the lead of whoever seemed to know what that might be. I began with a confession.

“During voir dire, when I had the chance to ask each of you questions, we spent a lot of time talking about reasonable doubt and what it meant. Ms. Loescher kept trying to suggest that it didn’t mean you couldn’t be left with at least some doubt, and I kept trying to convince you that you better not doubt it at all before you decide to convict someone of a crime. I’ve been doing this for much of my life now, and it never changes. We keep asking these same questions, keep trying to convince you what the words ‘reasonable doubt’ mean. Do you know why I do that?”

My eyes moved along the front row, from one juror to the next, until they came to rest on a young woman, Mary Ellen Conklin, sitting with her hands folded in her lap.

“Because I learned a long time ago that the best way to win was to convince jurors that their obligation was to decide-not if the defendant was guilty-but if the state had been able to prove it… beyond that famous reasonable doubt.”

I looked away from the young mother of two and found a middle-aged Latino, Hector Picardo, in the back row.

“You’re not here to decide the truth; you’re here to decide whether what the state tells you is the truth, and not to take their word for it, either, but again, to prove it against the most stringent possible standard. I want juries that insist on that-the defendant has a right to have a jury that insists on that-and that’s why I keep asking those questions about whether you think it’s fair that the state has this incredibly difficult burden, fair that the prosecution has to prove its case and the defense doesn’t have to prove anything.”

I moved away from the railing, folded my arms across my chest, and stared down at the carpeted floor. Smiling to myself, I shook my head and then, a moment later, lifted my eyes and cast a sideways glance at the jury.

“The truth is: In most cases we couldn’t prove anything if we had to, because, you see, in most cases the defendant is guilty.”

Out of the corner of my eye I saw the judge suddenly look up.

“That’s the reason defense lawyers always insist so strenuously that the whole burden of proof is on the prosecution; that’s the reason why in more cases than I can remember I made certain the defendant never took the stand to testify in his own behalf.”

Cassandra Loescher was sitting on the edge of her chair, ready to make an objection as soon as she figured out what there was to which she could object.

“We have this very famous jury instruction-Judge Bingham referred to it when you were first sworn in, I spent most of my time on voir dire talking about it-you can’t convict anyone unless their guilt has been proven beyond a reasonable doubt. There is another jury instruction, one we did not talk about, but one that has to be given if the defense requests it.”

I went back to the counsel table, opened the file folder that lay next to my yellow legal pad, and pulled out a single sheet of paper.

“Here,” I said, waving it in my hand. “This is the jury instruction entitled ‘Defendant Not Testifying.’ It tells you that you may not comment on the failure of the defendant to testify, and that you may not in any way consider that fact in your deliber-ations. The judge is required to instruct you that it doesn’t mean a thing. But the truth is, it means everything. It means that the defendant has something he doesn’t want you to know. It doesn’t necessarily mean he’s guilty, it may only mean that he has done some bad things before: serious crimes, crimes reflecting dishon-esty or a penchant for violence, things that would make a jury believe that because he had done it before, it was likely he had done it again.

“There are cases like this, where the defendant doesn’t testify because, though he is innocent of this crime, he has the kind of criminal record that will make it almost impossible for anyone to believe he’s telling the truth. But more often than not, when the defendant doesn’t testify, it’s because the defendant is guilty. The defendant did it, and because a lawyer cannot put someone on the stand he knows will commit perjury, and because the only truthful testimony the defendant can give is to confess to the crime, he doesn’t testify at all. And then the jury is given this instruction,” I said, lifting the single sheet of paper shoulder high before I let my hand fall down to my side. “No one can make the guilty testify against themselves,” I went on, darting a glance at Cassandra Loescher. “And no one can stop the innocent from testifying about what they know.”

She was out of the chair, raising her hand to attract the judge’s attention. “Objection, your honor,” she said without raising her voice beyond what was necessary to make herself heard. She was smart. It was too early in the game to show anger.

His hands clasped together under his chin, Bingham smiled politely. “Yes?”

“Instead of providing a preview of what he expects the evidence to show, Mr. Antonelli is attempting to characterize the credibility of the defendant.”

He turned to me, the same civil smile on his face.

“I believe, your honor, that the jury is entitled to know the circumstances under which a witness is going to testify. For example, when an expert witness testifies, the qualifications of that expert-”

“Are elicited during the examination of the witness,” Loescher interjected. “But he isn’t talking about the qualifications of an expert in any event, your honor. He’s attempting to bolster the credibility of a witness by invoking a jury instruction which, it seems obvious, has no application to this case.”

That was exactly what I was trying to do, and we both knew it was too late to stop it. What she was trying to do instead was to let the jury know that I was not playing by the rules, and to let the judge know that even during an opening statement she was going to insist that the rules be enforced. She was no one’s fool, and she would have been astonished had she known how grateful I was that she was not.

Bingham had heard enough. “Perhaps discussion of jury instructions should be left to closing argument,” he said in that civil way of his that made every decision sound like a helpful suggestion.

I had not moved from the place where I had been standing when Loescher made her objection. Now I stepped forward, moving closer to the jury, and picked up where I had left off.

“The defendant in this case is going to testify, and he’s going to tell you what he knows; though about all he knows is that he did not kill Quincy Griswald and that he has never harmed anyone in his life. He was living under the bridge-a bridge some of you may drive over every day to work-one of the homeless who wander around the city, picking up trash, things that other people throw away, things they can wear, things they can use, things they can trade for a little money or a little food. He was living under the bridge, homeless and alone, and someone gave him a knife-the knife that killed Quincy Griswald-and he took the knife and he kept it, and when the police came he told them it was his and he told them how he got it.” I shrugged my shoulders. “They didn’t believe him. Why should they? He was right where an anonymous caller had told them they would find the killer; he had the knife; and-let’s be perfectly straight about this-they thought he was crazy.”

I paused and, with both hands on the railing, leaned forward and searched the eyes of the jurors.

“When you hear him testify, you’re going to think the same thing. He talks funny. His speech isn’t always clear. Some of the words seem to take forever. He rolls his eyes and his mouth sometimes sags at the corner. I have even seen him drool a little.”

I spun away and looked across at where he sat, watching me, his head tilted back, his mouth hanging half open, an eager, trusting expression in his pale eyes.

“But kill somebody?” I asked, turning back to the jury. “No, that’s the last thing you’re going to think him capable of. Not after you hear the things he was put through; not after you hear the scandalous, heart-wrenching tale of physical torture and sexual abuse to which he was subjected from the time he was an infant, an unwanted child no one, not even his mother, cared anything about or did anything to protect. No one ever did anything for him: They did not send him to school; they did not even give him an identity. There is no record of his birth; there is no record of him at all. He does not exist. He does not have a name.”

I glanced at him over my shoulder and then looked back. “John Smith? That’s the name he was given by the police when they arrested him and charged him with murder and discovered there was no record of his fingerprints. His real name is Danny. If he ever had a last name, Danny doesn’t remember it, and because there was never any record made of it, he’ll never know it. For all intents and purposes, Danny was born an orphan. It might have been better if he had never been born at all. No,” I said, changing my mind, “it would have been better if the people who did these things to him had never been born.”

Clinically and without emotion, I described a few of the things that had been done: the way he had been chained to his bed, the way his body had been covered with welts and burned with cigarettes.

“The prosecution will insist that these terrible things turned him into an animal without a conscience, someone who could kill without a reason. You can judge for yourself when you listen to him testify whether he is the vicious killer they claim, or one of the most harmless human beings you have ever seen.”

Shoving my hands into my pants pockets, I began to pace back and forth in front of the jury box. Then, frowning, I stopped and looked up.

“They charged him with one murder. It doesn’t make sense.

They should have charged him with two.”

The silence was complete; there was not a sound in the courtroom. It was as if everyone was holding his breath, waiting to hear what came next.

“The defendant is charged with the murder of Quincy Griswald, but whoever killed Quincy Griswald killed once before. There were two murders, not one; two circuit court judges have been killed, not one. In nearly a hundred fifty years, no one has ever murdered a sitting judge, and now, in the space of just a few months, we have had two judges killed, and killed in exactly the same way. Calvin Jeffries, the presiding circuit court judge, was stabbed to death in the structure behind the courthouse where he parked his car. Quincy Griswald, who became the presiding circuit court judge when Jeffries died, was stabbed to death in the very same place. The defendant has been charged with the one, but not the other. Why? Because they know he did not have anything to do with the murder of Calvin Jeffries. But let me repeat again: Whoever is responsible for the death of Calvin Jeffries is responsible for the death of Quincy Griswald. John Smith-

Danny-did not kill Calvin Jeffries, and he did not kill Quincy Griswald.”

I moved to the end of the jury box, next to the witness stand, and looked out over the packed courtroom, every eye on me, every face a study in concentration. In the very back, in the last row, Jennifer was watching, serious, intent, following every word.

“You remember the murder of Calvin Jeffries,” I said, looking back at the jury. “It was all we read about, all we talked about.

Everybody from the governor on down seemed to get involved in that case. Whatever the police did, it was never enough. We demanded results; we demanded an arrest; we demanded that the killer be brought to justice.”

I stood still and stared across the counsel table to where Cassandra Loescher was taking notes. When I stopped talking, she raised her head, catching my gaze in her own.

“They never caught the person responsible for the murder of Calvin Jeffries; the police don’t know who the killer is; the district attorney’s office doesn’t know who he is.”

It took a moment before she realized what I was doing, and even then she could not quite believe it.

“Your honor,” she said, as she sprang to her feet. “May counsel approach?”

I pretended outrage. “Your honor, this is the second time the prosecution has interrupted my opening statement. I didn’t do that to Ms. Loescher-no matter what I thought of what she was saying!”

Bingham did not say a word. Instead, he gestured with his hand that he wanted a private conversation. He got up from his chair and stepped down on the side of the bench farthest from the jury.

“What is your objection, Ms. Loescher?” he asked. As always his tone was civil, but he could not completely disguise his irritation. He liked things to move smoothly, and already he could sense signs of trouble to come.

“He’s making a patently false statement,” Loescher insisted. “He knows as well as I do that what he said isn’t true. The police made an arrest in the Jeffries case. The killer confessed. And it’s more than that, your honor,” she whispered forcefully. “He’s trying to bring in the Jeffries case just to confuse the jury. That case doesn’t have anything to do with this one.”

Staring down at the floor as he listened, Bingham pinched the middle of his upper lip between his forefinger and thumb. When she was finished, he looked at me.

“I’m allowed to offer my own theory of the case, your honor-

any theory that explains the facts of the case. Ms. Loescher should listen more carefully: I didn’t say the police did not make an arrest, I said they never caught the person responsible.” We were standing inches apart. I shifted my gaze and looked directly at her. “If you think they did-”

She was livid. She stared at the judge, who was again looking down at his shoes. “He knows I don’t have a chance to offer rebuttal to his opening.”

“Of course you do,” I interjected. “It’s called closing argument.”

Bingham raised his head. “The defense has a right to offer an alternative theory. The prosecution has a right to offer any relevant evidence which contradicts that theory.” He looked at me, then looked at her. “You’re both fine attorneys. You’ve both done very well to this point.” With a brief nod and an even briefer smile, he added, “Let’s not let that change.” It was as stern a warning as he knew how to give.

Loescher went back to her chair, and Bingham went back to the bench. “Mr. Antonelli,” he said as he settled into place,

“would you please continue.”

I nodded at the judge and turned to the jury. “First Calvin Jeffries was murdered, then Quincy Griswald. Both of them were killed in the same way and both of them were killed in the same place. But why were they killed at all? And who would have had a reason to kill them both, not just Calvin Jeffries, but Quincy Griswald as well?”

With one hand on my hip, I rubbed the back of my neck.

“That’s the great difficulty in this case: trying to understand why anyone would want to kill Quincy Griswald. Everyone who ever knew him could understand why someone would want Calvin Jeffries dead: He was one of the worst people who ever lived.”

It was instinct, pure and simple. If there had been time to think about it, she might have let it go. Whether it was her own sense of decency, or her belief about what the rules did and did not allow, Cassandra Loescher, acting on impulse, jumped to her feet.

“Objection, your honor.”

This time he agreed with her. “Mr. Antonelli…”

Wheeling around, I glared defiance. “The character of Calvin Jeffries supplies the motive not only for his murder, but for the murder of the victim in this case. Everything I say about the late Judge Jeffries will be proven by the testimony of witnesses, your honor, witnesses the defense fully intends to call.”

Pursing his lips, he tapped his fingers together. “Very well,” he said presently. “But try to keep this within reasonable bounds.”

It struck me as gratuitous, and I turned back to the jury, an incongruous smile on my face, amused at how angry it had made me. I respected Bingham as much as anyone on the bench, but he was as much a prisoner of convention as anyone else. We were not supposed to speak ill of the dead.

“I spoke ill of Judge Jeffries when he was alive,” I explained to the jury. “I spoke ill of him to his face. He threw me in jail once because I told him during a trial exactly what I thought of him. I should probably not have done that. I may even have deserved what he did to me because of it. But whether I did or not, what Calvin Jeffries did to me was nothing compared to what he later did to someone I knew, someone I liked, someone I thought would eventually become one of the finest lawyers in the city.

His name was Elliott Winston, and what Calvin Jeffries did to him was worse than murder.

“The law is the collective wisdom of the community, the attempt to live in accordance with the rules of reason, the effort to control our impulses and conduct ourselves as civilized human beings. No one carries a higher burden of responsibility than those men and women who put on black robes and apply the law without fear or favor to the people who come before them for judgment. It would be impossible to think of anyone who came to the bench with greater ability, or with a more brilliant mind, than Calvin Jeffries; and it would be impossible to think of anyone who less deserved to be called honorable. Calvin Jeffries was a disgrace. He cared nothing about the law; he cared nothing about justice. He cared only about power and how he could use it to get what he wanted. And what he wanted, ladies and gentlemen, wanted more than anything else, was the wife-and not just the wife-of Elliott Winston.

“Elliott was young, and bright, and hardworking and ambitious, with a wife he loved and two children he adored. He met Calvin Jeffries and was flattered at the attention he received. He became one of the judge’s few friends, someone to whom Jeffries talked about the law, someone Jeffries wanted-or claimed he wanted-

to help. Elliott trusted him completely, and he had no reason to doubt him when Jeffries told him things-things that were not true-about his wife. Elliott began to suspect his wife of infidelity, but it never occurred to him that she was being unfaithful with the man he revered, this man without children who treated him like a son.

“They worked on him, the two of them, his trusted friend and his trusted wife. They fed his suspicions, twisted his mind with false rumors and terrible lies until they drove him over the edge.

Elliott was charged with attempted murder and was sent away, and while he was away, his wife divorced him and married the judge; and then the two of them together had him declared an unfit parent so the good Judge Jeffries could adopt Elliott’s children and call them his own.”

I put my hand on the railing and leaned closer to the jury.

“And what does this have to do with John Smith, now on trial for murder? The judge who, acting on instructions from Calvin Jeffries, made certain Elliott Winston would be put in a place where he could not interfere with anything his former friend and former wife wanted to do, was Quincy Griswald.”

I looked from one end of the jury box to the other. “Who do you think wanted both Calvin Jeffries and Quincy Griswald dead?

Who do you think had a motive to kill them both? There is only one answer to that question, and it isn’t John Smith,” I said, shaking my head as I turned away and walked to the counsel table.

It was nearly four o’clock in the afternoon when I finished, and Judge Bingham decided to wait until morning before the first witness was called for the prosecution. The jury filed out of the courtroom and as the spectators behind us crowded into the aisle and shuffled a step at a time out the double-doors at the back, Cassandra Loescher waited patiently until it was quiet enough for the judge to hear.

“Yes,” he said, a pleasant, if formal, smile on his face.

“Could we meet in chambers, your honor?” she asked, including me in her glance. “I have a matter for the court.”

Judge Bingham’s chambers consisted of a single narrow room.

Two large windows took up most of the space on the wall behind his blond wood desk. There were no curtains and the venetian blinds were pulled all the way up. Light-colored bookshelves held the full collection of all the state court cases that had been the subject of an appellate opinion. On the opposite wall, next to the door that led to the clerk’s office, a small, three-shelf credenza held a picture of his wife and pictures of the young families of his grown children. On the bottom shelf, out of view in the corner, was a tarnished bronze statue of a tennis player, racket raised overhead, a trophy from some long-forgotten country club tournament. In the corner behind his desk, where he could reach it without getting up, was a pewter-colored putter. Old and often used, the tape around the handle had begun to unravel.

Bingham removed his robe, hung it carefully on a hook behind the door, and put on his suit coat. He was not five foot nine, but he was of slight build, trim and fit, with a spring to his step, and looked taller. His hair was short and brushed close to his scalp. His face and hands had a clean, scrubbed look, and his teeth were straight and white. He was one of those people who could have slept in his suit and still looked neat and pressed the next morning.

He sat down and pulled first one and then the other shirt cuff into its proper position below his suit coat sleeve. He looked at Loescher and raised his eyebrows, waiting for what she had to say. Then, suddenly, he glanced across at me.

“Congratulations,” he said with a slight inclination of his smooth forehead. “I only just heard about it.” He turned to Loescher. “Mr. Antonelli is engaged to be married,” he explained.

“When is the wedding?” the judge asked pleasantly.

“In a few weeks,” I replied. “As soon as the trial is over.”

We barely knew each other, but Cassandra Loescher put her hand on my arm and with a huge grin immediately added her congratulations. Then, almost in the same breath, she went back to the business of trying to destroy me.

“Your honor,” she said, the outlines of a smile still traceable on her mouth, “Mr. Antonelli has raised some issues during his opening statement that, quite frankly, the state did not anticipate. For that reason, we find it necessary to ask leave to amend our witness list. Specifically, I want permission to call someone from the police department to testify regarding the results of their investigation into the murder of Judge Jeffries.” She paused, and sat back in her chair. “We didn’t intend to do this, your honor.

It will certainly lengthen the time required to try this case. But after what happened in there today, I don’t see that we have any choice.”

Bingham nodded, and then turned to me. “I’m prepared to agree with that-unless you want to try and convince me otherwise.”

“Who are you going to call?” I asked her.

She shrugged her shoulders. “One of the lead investigators. I don’t know which one yet.”

“It’s fine with me, your honor,” I said, trying to sound as indifferent as I could.

He looked at Loescher, then he looked at me. “Well,” he said, standing up, “it seems like we’re going to have an interesting few weeks.”

The courtroom was empty. Danny had been taken back to his cell. I gathered up the notepads and the documents scattered over the table and slipped them into my briefcase. Gingerly, I lifted it up, hoping the restitched leather handle would hold. In the hallway outside, Howard Flynn was leaning against the wall, reading a section of the paper. When he saw me, he folded it up, shoved it into his coat pocket, and walked beside me toward the elevator.

“That was quite a performance. You think you can prove Elliott committed both murders?”

“Prove it? Of course not! All I want to do is get them to think he might have done it. Prove it? I wouldn’t know where to start.”

We rode the elevator to the first floor. As we went around the area where everyone who entered passed through metal detectors, a scuffle broke out. A gaunt, broad-shouldered man, with long dirty hair and a scraggly beard, dressed in the filthy clothes of the homeless, flailed away with his arm as two uniformed officers wrestled him to the ground.

“Let me in, let me in,” he shouted hysterically, as they locked his arms together behind his back and managed to handcuff his wrists.

Outside, at the bottom of the courthouse steps, a grocery cart loaded with plastic bags and metal junk was lying on its side, the wheels still spinning. Someone said he had tried to get in, had been thrown out, and had then come crashing back through the door. No one seemed to know why. Flynn and I exchanged a look.

“Nothing,” he said, twisting his mouth around. “Just a crazy.”

I nodded halfheartedly. “Are you going to a meeting tonight?”

I asked as we walked away.

“Yeah,” he replied. A sly grin spread over his face. “Unless you’d rather go out and get drunk.”

“Will Stewart be there?”

“He always is.”

“You going to be at the bar afterward?”

“We always are.” He looked at me out of the corner of his eye.

“You going to be there?”

“You never know. I might.”