Failed State

by Christopher Brown

  In the Tributary, there were no judges, just more forceful personalities among the chorus of jurors. It was a sharp contrast with the last time Donny had appeared in that courtroom, when the only people there other than the lawyers were three federal appellate judges, two of whom were pretty sympathetic to Donny’s case, despite the black robes and funereal demeanors. It was Donny’s fourth effort to challenge the constitutionality of the suspension of habeas corpus. Others had already litigated the big issues, including the basic questions around the circumstances in which the power could be invoked, and who had the power to invoke it. Donny was then making the argument that five years was too long a period to qualify as an emergency.

  He knew it was a loser when the chief judge interrupted him three minutes into his argument, quoting Justice Davidoff’s holding in United States v. Moro that the president has the exclusive power to determine when conditions of domestic insurrection exist, and who qualifies as an insurgent. You could see they wanted Donny to help them find a loophole, and he tried, but in the end they didn’t have the nerve. Members of the federal bench back then served the state, the way priests serve the church, at its mercy almost as much as Donny’s detainee clients, if more pampered, subject only to existential tortures that don’t really earn that name.

  The other big difference in those days was the courtroom had a functioning roof. This one was dripping puddles in a half dozen spots, from the storm that had blown in the night before as Donny worked into the wee hours trying to put together the pieces. The dilapidated appearance seemed like it would undermine the credibility of the court. But then he watched as Percy stood there in a shaft of morning light and unspun a millennial saga of arboreal holocaust in a thirty-minute address, and cursed the advantage she had from knowing the quirks of this room down to the way if you stood in the right spot at the right time it would even let a lawyer serve as the sundial of redemption.

  She had more than stories. She had facts. The facts they had filled a skyscraper with like you’d fill a silo with grain, woven together in a way that supported her story, visualized in slides she screened on the wall.

  She talked about numbers on papers. Big numbers. Money.

  She grounded the numbers in the earth. In the price per tree, triangulated with the long lives cut short, the promising futures extinguished. Her short history of the deforestation of the hemisphere made you feel the fire and hear the chainsaws. She nailed the connections between wars that were fought before they were born and the massive crop failures they had witnessed just as they were coming into adulthood. She explained how the wars against the guerrilla armies of the hemispheric south were just extensions of the much longer war against nature. And she built a model that showed how much of the damage to the environment could be attributed to Promethean Resources and its predecessors. It was tiny as a percentage of the total—mere basis points. But the number that translated into in dollars, when she flashed it on her screen for all to read, was bigger than the numbers they were talking about in Washington as reparations for slavery.

  The amounts known to be in Heather’s diversified trust were a fraction of that, and only a smaller fraction could be traced back to the bulldozers and Titan Jelly. It almost seemed small, until Percy showed what that would translate to in real profit per tree, and what it would be if you divided it up among every member of the community to invest in their restoration efforts.

  This didn’t even count the value of her ownership stake in Tripto Labs, which may have been conceived by Helen as a different way to compensate for the damage her family business had caused, but also profited from that damage.

  It was hard to read a crowd that big, even as you knew the biases they had coming in. Donny had plenty of experience arguing to the mob—during the emergency, making your case to the cameras outside the courtroom was usually a more effective way to get justice for a political dissident than the rigged game they played inside. But he didn’t even know the rules that applied in this courtroom, and what rules they had they seemed to be making up as they went along, with an unstructured informality that was like a classroom without the teacher. He was pretty sure they didn’t really understand the stakes. The message from Carol he picked up the night before included a warning, relayed from a reliable source Donny trusted. Lecker was already preparing his backup plan: a rescue op that could reignite the fratricidal war that had ruined this city and taken down most of the nation with it. Donny’s debts and Carol’s imminent eviction were the least of their problems now. So Donny watched how Percy did it, and tried to focus on the faces in the crowd that he actually knew.

  There were four of them there when he arrived: Bettina Borges, the bespectacled librarian with blond hair turning blue who was the real brains behind the archive; Col. Ellen Franco, a fortyish ex-soldier in carbon-colored coveralls who had led the liberation and now managed the battalions of young fighters camped at the edge of town; Carl Denis, the gray-haired builder who had been a successful architect before he joined the underground and became one of their principal designers of DIY weaponry; and Gertie Almeida, the youngest and most strident member of the Council. Two other Council members had walked in after Percy had already started: Claude and Joyce. Half of them were ex-clients of Donny’s. But that wasn’t an advantage. And just how rigged the setup was against him became more apparent when Bettina took the stand to help Percy establish the documentary basis for all her numbers, and then went right back into the jury.

  Heather was seated nearby, on the top of the old judges’ bench, her worn ropers dangling over the edge.

  Donny had a plan. He would attack them on the facts, challenging Bettina and her climate-scientist teammates on the oversimplified causal connections they distilled from an ecological system too complex for anyone to really even understand. He would attack them on the law, showing their jurisdictional and temporal overreach in making people outside their territory liable for actions that had been legal during the time when they were taken. And he would attack them for their hubris in presuming they were the ones who could speak for the trees.

  But when the sun had moved on and it was finally Donny’s turn, he got a different idea. Not just because he knew their minds were made up. And not because he realized, listening to Percy’s case, that if they didn’t stand up for the trees, no one would—the case needed to be made, and there needed to be an accounting, even if it was too late to repair the damage done. His victory condition was different from theirs—he just needed to figure out the most certain way to get Heather freed from their custody and on a plane back to Dallas with him. So instead of making the case they expected from him, he stood up, straightened his tie, and tried something different.

  “I would like to call Heather as a witness,” said Donny.

  “What for?” said Bettina.

  “To help all of you understand what’s at stake more clearly,” said Donny. “And do it in a way that does not try to undermine the compelling arguments Percy made.”

  “That sounds a little nonstandard,” said the Colonel.

  “This whole process is way beyond nonstandard,” said Donny. “I may have helped come up with the idea that morphed into this, but I can see that you got your ideas of due process from the emergency courts I used to defend some of you from.”

  The jurors who were not judges looked at one another. Especially the ones he was addressing, the ones who had been hauled in front of those courts.

  “This is a waste of time,” said Gertie.

  “The least you can do is let my client tell her side of the story. Even if the case isn’t really about her, but about the things her dead relatives did. Especially because of that, you need to let her speak.”

  “It’s fine,” argued Carl Denis. “I actually want to hear this. We all should. Even if I don’t trust this traitor. I can’t believe we let him back in after what he pulled.”

  Donny decided not to remind Carl of the time he got him out of detention after they busted him downloadin
g 3-D printable mortar plans. He had his eyes on Heather, who looked simultaneously scornful and squirmy.

  “Let her talk!” said some voices in the crowd.

  “Set up a chair,” said Ellen.

  And they did. A group of the jurors put one of the chairs there in the middle of the room, and another group led Heather to it.

  “What if I don’t want to talk?” said Heather.

  “Why wouldn’t you want to let us hear your side?” said Ellen.

  “I don’t trust this guy either,” said Heather, pointing at Donny.

  “Come on,” said Donny. “I just want to ask a few questions. All you have to do is tell the truth. How hard can that be?”

  “Your truth and ours may no longer be the same thing, Donny,” said Bettina.

  “I think you’ll find we can all agree on the facts I want to get on the record,” he said.

  “She needs to answer the questions,” said Joyce, speaking up for the first time. “She’s still our prisoner, even if we call her a guest, and our rules are premised on total transparency.”

  “Fine,” said Heather. “I have nothing to hide. You already heard for the second time the sins encoded in my name.”

  “We heard a lot about your grandfather and great-grandfather this morning,” said Donny. “Now can we talk about your mother?” he asked.

  She visibly tensed at the subject.

  “I know it must be difficult,” said Donny. “And I think everyone here knows you helped cause what happened to her and the rest of your family.”

  “Come on, Donny,” said Carl. “This is just cruel.”

  “Well, then why don’t I ask you, Carl? Did she help your team that took those hostages?”

  “That wasn’t ‘our team,’” said Ellen. “Those were independent actors.”

  “Was Slider one of them?”

  “You would know better than we,” said Ellen. “You were the one who defended him, I hear.”

  “The case I have for him involves the death of his parents,” said Donny. “He’s just the plaintiff. And now it’s too late to ask him. So I’m asking Heather.”

  “What does this have to do with the case before us?” said Carl.

  “Give me a minute and you’ll see,” said Donny. “Heather, please just tell us. Did you help the cell that kidnapped your family?”

  Heather looked at Donny with a different kind of scorn. “Yes,” she said.

  “You told them the information they needed about how to get into the club, where and when they would find their targets, things like that.”

  She nodded.

  “You had been aligned with the underground for a long time,” said Donny.

  “Have you been to that place? The ‘refuge’?” You could hear the scare quotes in her voice.

  “I never got invited,” said Donny. “But I know people who have. They say it’s like the Garden of Eden.”

  “An Eden where they slaughter the animals. That place needed to be liberated.”

  “Did you know they were going to take hostages?”

  “No,” said Heather. “They told me they just wanted to arrest my uncle, for crimes against the people. He worked for the administration.”

  “That’s your dad’s brother.”

  “Yes.” You could see she was keeping the feelings bottled, trying to maintain her strength.

  “That’s what your friends in the cell told you.”

  “Friend,” said Heather. “Singular.”

  “Was it Slider?”

  She nodded.

  “Did he betray you?”

  “No,” said Heather. “It just got out of control. Other people on the team that he hadn’t worked with before. He wasn’t even there—he was running the boat, out there in the water. They were supposed to just take Uncle Bob, bring him back here. But the weather turned on them. A storm was coming in. So they improvised. And then the feds caught up with them.”

  “Did you see it all?”

  “Just some of it,” said Heather.

  “I’m sorry about your mom,” said Donny.

  “So am I,” said Heather. She was crying, but lucid. “I loved her. But I also had come to see how corrupted she was, by her fortune.”

  “Your fortune,” corrected Donny.

  “I disclaim it,” said Heather. “I don’t want it. And I proved that by disclaiming my whole family.”

  She had the crowd’s attention.

  “That’s very brave,” said Donny.

  “Is that what you think?” she said, reddening. “Fuck you. What do you know about courage? Fucking lawyer, presuming to stand there and talk to me like some professor or priest or patriarch who thinks he knows what’s good for us. Don’t you get it? The world is dying, Donny.” She said it like a derisive nickname. “To save it, to save the future, we need to take radical action.”

  “More radical than even the elders of this rather radical community are willing to take,” said Donny.

  “That’s right. And we’re just getting started. The only real problem this planet has is people. And that’s an easy problem to fix.”

  “Is that what you and Slider were working on?”

  “I don’t want to talk to you anymore,” she said.

  “But they took Slider away from you, didn’t they?”

  Now she looked really mad.

  “Have you ever heard the story of Erysichthon?”

  “Who?”

  “I’m probably not saying it right. I’d never heard of it until last night, when I came across it in an old book.”

  “Where are you going with this, Donny?” said Carl.

  “Let him talk,” said Joyce.

  “Thank you. Erysichthon was a king in ancient Greece. A rich guy, basically—owned a lot of land. He thought that meant he could do whatever he wanted with that land. Including cutting down the trees to build himself a sweet new house. But he cut down the most precious trees. The oldest ones, even as his guys tried to get him to stop. What he thought was some great lumber was the sacred grove of Demeter. The goddess of the harvest, who got so pissed she cursed him with famine. Hunger so bad he ended up eating his own leg.”

  “Sounds like justice to me,” said Heather.

  “Sounds like your family to me,” said Donny. “Or maybe our whole big American family. And I haven’t even got to the part about his daughter. His beautiful daughter. He was so hungry he sold her. First to the sea god, but then over and over to others. Do you know how?”

  “She was a shapeshifter!” yelled Joyce.

  Donny looked. Joyce had already rendered her verdict on Heather.

  “Are you a shapeshifter?” asked Donny.

  “I’m exactly what you see,” said Heather.

  “A rich and powerful young woman who thinks she knows what’s good for others.”

  “I’m a worker in the fields. Carrying on the good part of the work my mom started, but in a spirit of service instead of profit.”

  “Do your coworkers know you’re a spy?”

  “What?”

  “Explain it to the others here, how you’ve been pretending to assimilate while you work as a clandestine source for those who would have the people leading this work locked up.”

  He had their attention.

  “You know all about lying to your friends and allies,” said Heather.

  “Maybe. I also know that someone here has been serving as a confidential informant for both Interpol and private interests. Providing intelligence about the clandestine operations of the Council and its teams, in support of its judgments, including the sentences it delivers in secret. Information that will be used to develop prosecutions of some of the people sitting here in this room right now. And to bankrupt this project.”

  “What evidence do you have of that?” said Ellen.

  “It’s circumstantial,” said Donny. “But Heather can tell us.”

  He looked at Joyce. She looked authentically surprised at the revelation, but also surprisingly pleased. />
  Heather looked like a rich girl suddenly ready to defend her privilege.

  “I understand, Heather,” said Donny. “Slider was the only person left that you were close to. Other than maybe your dad.”

  “You can’t prove that was me,” said Heather. “Because it wasn’t.”

  “I can’t prove it, until you admit it here before your comrades. But I can tell it was you. You certainly had the motive. They killed your lover. What better motive than that?”

  Bettina and Ellen were looking at Joyce now.

  “They will understand, Heather. And they will let me take you home.”

  “This is my home,” said Heather.

  “This is not your home,” said Ellen. “You are our guest. And I can see that you have betrayed our trust.”

  “I am not going to argue with the case Percy made,” said Donny. “To the contrary, I agree. Let me take Heather back to Dallas with me, to her family. And I will do everything in my power to work out a deal.”

  The judges who weren’t judges looked at one another. A look of tentative agreement.

  The crowd had a different idea.

  “No deals!” yelled one voice. And you could tell, as soon as the words got out there bouncing around the room, that they had captured the spirit that animated the room.

  The echo was not just from the cavernous chamber, but from the people repeating the declaration of uncompromising judgment.

  “Banish her!”

  You could see how Heather felt about that.

  “Banish him!” said Heather, pointing at Donny.

  “We already did,” said Ellen. “And we’re about to kick him out again.”

  Donny was relieved. “We can leave right now,” he said.

  “No, Donny,” said Ellen. “You can leave. But Heather’s banishment must be handled according to our law.”

  “You can’t do that,” said Donny. “Do you understand what her family will do? Not only will you never get the settlement you want. This could mean war. They’re preparing as we speak.”

  “That may be,” said Ellen. “But that is the law. And we are ready.”