Brain Storm

by Richard Dooling

  It was all he could do to keep from asking, “Your teeth—tetracycline, right?” But he was fighting a new war now. A murder case, where instead of being a biomedical lottery ticket, stained teeth would be just another flaw in an unlikable defendant, which would make it easier for a jury of sturdy, death-penalty-minded citizens to do their duty.

  Perhaps Watson could achieve justice with a blended martini of civil and criminal litigation by having one of his law school buddies sue PharmChem on behalf of Whitlow, thus obtaining an expedited settlement and enough money to hire a criminal defense lawyer?

  The prisoner lifted his arms and stuck an unlit cigarette in his lips. Watson was so distracted by the litigable gray teeth that he missed the tattoo again, except for the word JESUS in purple ink and … snakes? They both looked at the matchbox.

  “So you got to represent me, even though I can’t pay, is that it?” asked Whitlow.

  Watson noticed one huge vein, bulging like a seam in his client’s left bicep, blue as a bruise under the smudged white skin. Does shooting drugs make your veins bigger or smaller? Smaller, he thought—had to be, because in movies and novels they are always looking for veins. Right? It seemed improbable that an Ignatius High grad would be mainlining, but, then, it seemed just as improbable that one would land in prison. Maybe Whitlow had surrendered to the authorities because he knew what the Jesuits would do to him if they got hold of him first.

  “The judge appointed me to be your lawyer,” said Watson, “but you may want to think about whether there is any way you can get yourself a criminal lawyer, a specialist.”

  “How do I get me a criminal lawyer?”

  “Those you hire,” Watson said, trying to think of a way to convey the looming peril of having a first-year associate and Westlaw geek for a trial lawyer. “You’d need money for that. A retainer of some kind, as I understand it.”

  Watson didn’t know the first thing about signing up a client, because he’d never done it before. He worked for WorldAgri and BioKinetix; a retainer was something you put in your kid’s mouth.

  “I got no money,” said Whitlow. “What if I ask the judge to appoint me a criminal lawyer?”

  “You may ask the court to appoint you a different lawyer,” explained Watson. “But you don’t get to pick your specialty. If the request is granted, you’ll probably get another new lawyer with no trial experience. That’s how it works in this district.”

  And, he thought, you’ll probably get one that graduated in the bottom tenth of his class, instead of the top tenth, one that works at the worst firm in town, instead of the best, and you will have pissed off Ivan the Terrible, the meanest judge in the Eastern District.

  “Is there anybody you could borrow money from? Any relatives who might lend you a retainer fee?”

  “There’s money on my wife’s side,” he said.

  “Yeah,” said Watson, “well—”

  “Maybe some … other people might help,” said Whitlow guardedly.

  “Other people?” asked Watson.

  “Friends,” said Whitlow. “I have some friends who might do it. But they wouldn’t want anyone to know they were doing it. And I wouldn’t want anyone to know either. It wouldn’t be good for me if people knew I got money from them.”

  “Really?” asked Watson.

  “It’s like a club. We all promised each other a long time ago that if anything happened to one of us, the others would … help him out.”

  “I see,” said Watson. “Well, if you can get the money from your friends at the club, I would hire a real criminal lawyer.”

  “Well,” said Whitlow, “one of my friends in particular—his name is Buck—and Buck could maybe get me lots of money, except I got a problem with my car.”

  “It has a lien on it?” asked Watson, groaning inside, wondering how to politely tell his client that borrowing against some decomposing Ford Escort with cloth seats and gunny sacks for floor mats would roust up about a tenth of a criminal lawyer’s retainer. Whitlow had what Sandra’s dad would call a Real Money problem requiring a working fool of a criminal lawyer.

  “Yeah,” said Whitlow averting his eyes, “sort of like that. It got towed the same day of the … killing. And so Buck can’t get to it. It’s got a Hide-A-Key under the back bumper. But he don’t wanna go out to the impound lot till he knows why the cops or the MPs towed it. What if they towed it because they was thinking it had something to do with the killing?” Whitlow fixed him with a single, cautious glance. “This shit is all privileged, lawyer talk, ain’t it? Right? I know that. But still, Buck wouldn’t like it if I told you he was gonna try to get at my car.”

  Watson couldn’t tell if Whitlow was rambling and confused, or just desperate for any chance to get a real lawyer. “Who’s Buck again?”

  “Just a friend,” said Whitlow quickly. “But if he could just get to my car, he could maybe get me money. See, last year my old car got towed from the same spot, because of Lucy Martinez, who don’t like people parking in her spot. And maybe she called it into base security again, just coincident, and that’s why they towed it. But Buck is worried because it got towed the same day the nigger got shot, and he’s afraid if he goes after the car—” Whitlow swallowed and looked away again “—then the cops might start asking him about the nigger getting shot. And Buck don’t want that. Shit, I don’t either. Buck is a buddy, and he don’t like cops any more than I do.”

  Whitlow needed another stern lecture on the relationship between the n-word and the death penalty, but if the car somehow led to money, Watson could leave that chore for a lawyer who would be paid by the hour.

  “Either way, the cops will know it was your car, right?” asked Watson. “Never mind why it was towed.”

  “Well,” Whitlow said, “not really, because it don’t have plates at the moment. I bought it off a guy a few months back, but it still ain’t registered. Like I said, this happened to me once before with a different car. They ain’t gonna let nobody have that car unless they show up with a title and a photo ID. And if she finds the title, they gonna make her register it and buy plates before they gonna let her take it.”

  “Her?”

  “My wife,” said Whitlow.

  Watson kept waiting for a point to be made and, while waiting, worried about his client’s coherence, his ability to testify on his own behalf in the unlikely event he ever took the stand.

  “So, anyway, long story short. Buck could ask Lucy his own self if she called and got the car towed, but Lucy don’t talk to him because she’s afraid of him, and she wouldn’t fess up to it anyway. So, we sorta need somebody else to find out if it is OK for Buck to go and see can he get at the car, or will he get arrested if he goes after it?”

  Watson had shifted his attention to the notebook computer, which was making more sense than his client. He barely realized what was being asked of him. “Me?”

  “Well,” said Whitlow, holding his cuffed hands out, “you could call the tow lot maybe and pretend you are the owner. Or maybe you could go see Lucy Martinez and maybe say you are a lawyer and ask about the day of the killing and all. Then maybe slip in and ask like no big if she seen my car get towed, or better still was she the one who called it in and got it towed.”

  Watson looked askance at his new client.

  “I can see you ain’t never had your car towed,” Whitlow said angrily. “If they think the car had something to do with the killing, it is going to be locked up tighter than a fourteen-year-old virgin, and if anybody tries to get at it, they will get arrested. But if it’s just a dead car towaway, it’s gonna be out in the general impound lot, which is a ten-acre spread with nothing but chain-link around it, which means Buck could get at it, if he had to. Does that make sense?”

  Watson wanted to say no, but his client’s agitation was mounting. “I’ll see what I can do,” said Watson.

  “Hell,” Whitlow urged, “you probably gotta talk to Lucy anyways, right? What if she has evidence about the day of the murder? Ma
ybe she seen something, right? She’s only two units down. She maybe heard the nigger going after Mary? Or maybe she heard Mary yell, ‘Help, James! The nigger is comin’ after me!’ If there’s a God He heard her say it, too. But mainly, I can guarantee you that if it’s just a dead tow, Buck could maybe get me some money. Enough to maybe get me a real criminal lawyer, and you wouldn’t have to do all this appointed lawyer work. Maybe we could even get some money for you. Who pays you?”

  “No one,” said Watson. “Appointed lawyers don’t get paid. I have to do it because I’m a new lawyer. I’m supposed to be willing to devote my time to helping people who can’t afford lawyers.”

  “But you ain’t willing, right? You don’t want to do it? Or maybe you would do it, but only if you was getting paid?”

  “I didn’t say that,” said Watson quickly. “A federal district judge has ordered me to be willing. But a judge can’t order me to be able.” Played back in the courtroom of his imagination, as per Arthur’s instructions, this seemed a little too stark.

  “I’m not saying I’m not able,” added Watson unconvincingly. “A judge has concluded I am able and ordered me to be willing. I’m just advising you of my qualifications.”

  Whitlow shuddered and scanned the activity on the other side of the Plexiglas, as if he expected personnel in the next room to let loose a few man-size rats, turn the conference room into a big shock cage, and get on with some behavior modification. “I need a fucking lawyer, man,” he said in an angry rush. A single tear beaded at the rim of one eye and quirked its way down his cheek. He sucked in a few more breaths. Scared past shitless, he was on his way to respiratory arrest. “The government lawyer said you filed some bullshit telling the judge you can’t be my lawyer because we were buddies in high school. What is that? I don’t know you from shit, motherfucker.”

  Watson felt sweat burning in his pores—the clammy liar odor wafting off of him. The Apaches were right, you don’t need a polygraph to detect skin galvanic response, just line up the suspects and smell them.

  “Your name was so familiar to me,” said Watson, desperately prevaricating while he tried to think of a few lines that would stand up in court three years from now, when another lawyer would transform this wretched, all-but-sentenced criminal into a civil rights and legal malpractice plaintiff, suing Watson for attempted client desertion.

  A lawyer owes the client the duty of zealous representation, or however it goes in the Model Code of Professional Responsibility, another doomed attempt to codify morality with conditional precepts.

  “I’m your lawyer,” said Watson, peering into Whitlow’s jumpy eyes. “If you scrape enough money together, I will help you get a criminal lawyer. If you can’t get money, I will do my very best to defend you. I promise. If I don’t know the law, I will learn it. But I can’t learn trial experience in three weeks.”

  Whitlow took fast, shallow breaths, opened his manacled hands, flexed his fingers, and made white-knuckled fists again. “They want me dead,” he said, holding a deep breath. “I need a real lawyer.”

  Watson resisted the impulse to console the poor guy with his qualifications. Things could be worse. Although he was a new lawyer, he had graduated ninth in his class, won the Computerized Legal Research & Writing Award, been on the law journal, and now worked at the best firm in town. Stern, Pale didn’t hire just any old law grad. He was capable of researching any area of the law better than most of the other lawyers he knew, and so would at least be able to write a bang-up brief appealing the disaster that would surely occur at trial. He’d hold off talking about the odds of reversals in criminal appeals until his client could stomach fat chances and percentages in the lower single digits.

  Watson fingered the little TrackPoint device of his computer and noted how quickly he was able to scroll through the outline of his witness interview. He inwardly congratulated himself on ordering the extra 256 megabytes of RAM and the tertiary cache.

  The two men stared at each other across the scarred table.

  “You understand the charges the government is bringing against you?”

  “Sure,” said Whitlow. “Government bullshit. Murder ain’t enough. It’s murder and what? Discrimination, I guess? I shoulda waited till my wife was being raped by a white guy.”

  “This is a federal crime. Federal prosecutors who work for the U.S. Attorney’s office are going to be trying to convince a jury that you should get the death penalty.”

  “Shit,” said Whitlow, swatting away another tear.

  “If the jury decides you killed this man in the heat of the moment, because he was … let’s say, sleeping with your wife,” said Watson, “that’s voluntary manslaughter. That’s anywhere up to ten years in prison. If they find that you planned it, or that you stopped first and had time to think about it, and then deliberately, or willfully, or maliciously killed him anyway, that’s first-degree murder, thirty to fifty years.”

  Whitlow shook his head bitterly and looked at his manacled hands, splaying white fingers on the black tabletop.

  “This bullshit was not supposed to happen,” said Whitlow.

  “If the jury finds that part of the reason you killed him was because he was black or deaf … that’s a hate crime.”

  “DEAF?” shouted Whitlow. “What’s deaf got to do with it?”

  “The statute …” began Watson.

  “What statute?” said Whitlow, “the same that says you get extra for killing niggers?”

  The n-word temporarily locked up Watson’s central processing units and triggered a series of automatic professional behaviors. He reached into his briefcase and extracted a photocopy of the relevant federal statute.

  “It’s a sentencing guideline,” explained Watson. “So it assumes that the jury has found the perpetrator guilty or he has pleaded guilty or nolo contendere to a crime against person or property.” He fished a yellow highlighter out of his suit coat and deftly marked the relevant passage as he read it aloud: “ ‘If the finder of fact at trial’—that’s the jury—‘determines beyond a reasonable doubt that the defendant intentionally selected a victim … as the object of the offense because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, sexual orientation, or viewpoint on the issue of reproductive rights of any person, increase by six levels.’ ”

  “I never heard of nothing like that,” Whitlow complained. “Where did they get that from?”

  Watson took the question literally and avoided admitting that, until his appointment, he had never heard of the statute either.

  “It’s from the United States Code Annotated, Title Eighteen. From the looks of it, it’s modeled on the California Hate Crimes Act. But all fifty states have some version of bias-crime legislation. You’re being charged under the federal version. See where it says ‘disability’? That’s where the deafness comes in. The government is charging that you allegedly killed this man, in whole or in part, because he was black. And if that doesn’t work, they’ll try to prove you killed him in whole or in part because he was deaf. And if they succeed at either, or both, then the maximum penalty for, let’s say, voluntary manslaughter is enhanced under the terms of the statute six levels, or even twelve levels, since the enhancements are cumulative, then the maximum penalty gets boosted up to the maximum penalty for first-degree murder, which, as you know, is death.”

  “Jesus Christ,” said Whitlow, “musta been a nigger thunk up that law.”

  Rachel Palmquist’s warning about how bad facts gum up the case had revived a dim memory from a law school exam in Ethics and Professional Responsibility, an alarm bell, something about not allowing the client in a criminal case to commit to a version of the facts until you decide whether you are going to call him as a witness.

  “What the fuck would you do?” he asked, sudden red splotches burning in his white cheeks. “The nigger was goin’ after my wife! She’s screamin’ for help. She said so when she called 911! I was standing there! I heard her!”r />
  “That’s what the police report says,” Watson interrupted. “But then, it seems, she changed her story and said you found her—” he paused “—in your home with her sign language instructor.”

  Whitlow’s eyes flushed red. The muscles in his neck arched under his waxy skin. “He’s a fucking sign language instructor?” said Whitlow. “Then I’m Martin Luther King.”

  “Then who was he?”

  “Never mind,” said Whitlow. “You’re my lawyer, right? If it ever looks to you like I’m going down for death or in for natural life, I want you to tell me, understand? Before trial, got it? Because I ain’t going alone. Swear to God I’ll take her with me! Understand me?”

  Good forceful eye contact, Watson thought, probably had a firm handshake as well, when uncuffed.

  Whitlow sniffled and whipped his head to one side, wiping his nose on the short sleeves of his jumpsuit. “As for deaf,” he said, “are we gonna get to cross-examine her?”

  “Her?” asked Watson.

  “My wife,” he said bitterly. “I seen in the paper where she’s supposedly the queen of sign language now. Fuck me five times every Friday if that’s the truth.”