Brain Storm

by Richard Dooling

  Symbols, remarks, gang signs, associations, and—uh-oh!—tattoos made up the bulk of the evidence in these cases, which was why the First Amendment was usually the first line of defense. Did Whitlow have a First Amendment right to use the n-word while shooting an African-American? No. But it was possibly unconstitutional for the government to introduce evidence of his associations, beliefs, reading material, even his tattoo. Because these, unlike the speech that occurred at the scene, were arguably protected by the First Amendment and the freedoms of association.

  As minority groups were painfully aware, the same laws, ostensibly passed to protect them, had also been used against them. A study by Klanwatch had shown nearly half of the racially motivated murders over a three-year period were committed by blacks, who made up 12 percent of the population—a statistic one was not likely to see in an article about Whitlow in the Post-Dispatch. Blacks probably don’t commit more hate crimes than whites, but blacks get charged more often with hate crimes by police and prosecutors who decide what is or isn’t a hate crime.

  The early hate crime laws directly addressed the problem of hatred by trying to make it illegal to use hateful speech or commit hateful, symbolic acts—cross burning, say, or swastika painting or wearing white sheets with holes in them. The Supreme Court struck those laws down as unconstitutional, because they tried to punish speech or thought. If you painted a peace symbol on the side of a synagogue, you got a suspended sentence under the vandalism statutes; if you painted a swastika you got ten years under the hate crime statute. In the argot of First Amendment law, the early hate crime statutes were not content or viewpoint neutral. Easy call. That happened in 1993.

  So instead of directly banning hateful speech and hateful acts, the state legislatures enhanced the penalties for crimes—trespass, defacing property, assault, murder—that seemed to be motivated by hate or that seemed to have occurred because of the victim’s protected status or the perpetrator’s hatefulness. Under the new statutes, hate alone was not a crime, but hate could earn you a double or triple sentence.

  Many commentators argued that this was a distinction without a difference. Like punishing draft-card burners for arson. To them, the new penalty-enhancement hate laws were artful dodges around the First Amendment, and were just another way for legislatures to punish unpopular thoughts and silence hurtful speech. As one authority, Susan Gellman, succinctly put it in the title to her law review article: “Sticks and Stones Can Put You in Jail, But Can Words Increase Your Sentence?” Others saw no constitutional problem in giving a racist killer a double sentence, in the same way society’s punishment for a premeditated murder is significantly harsher than that for a murder committed by a drunk in a barroom brawl. But, some argued, proving intent is easily accomplished by examining external acts and circumstances (did the defendant “lie in wait,” did he plan, did he tell others what he was going to do?); proving motive requires a journey into the mind of the defendant (was he starving and in need of the victim’s money, was he unconsciously attacking an authoritarian father-figure because he was abused as a child, does violence give him pleasure, did he hate the victim because the victim was ugly?—OK hate, qualifying for an unenhanced penalty—or did he hate the victim because he was white?—bad hate, qualifying for an enhanced penalty).

  Usually the evidence consisted of remarks made at the scene or of symbols—burning crosses, swastikas, or in at least one case, a pig’s head. Watson had read about a case involving a Long Island chimney sweep who quarreled with his Jewish girlfriend, got drunk, and threw a pig’s head through the plate-glass window of her Orthodox family’s home on the first night of the Jewish New Year. The Nassau County Bias Crimes Unit investigated the case for over a year, until the drunk pig’s-head-tossing chimney sweep turned himself in. A detective classified the prank as a hate crime because “he knew they were kosher.”

  He clicked on the SpiderMaster and programmed it to adjust Boolean connectors until the spiders named Hate and Rachel came back with forty quality hits apiece.

  Arthur appeared at the door. Ulp.

  “I was on my way over,” said Watson.

  “We’re going to see Judge Stang in half an hour,” he said grimly, his tone a dismal harmony of anger and … apprehension? “In chambers,” he added importantly.

  “Why are we going to see Judge Stang?” Watson asked, remaining calm, though this seemed an ill omen indeed. Even Watson knew that Judge Stang saw almost no one—certainly no lawyers—in chambers. He confined his audiences with lawyers to trials or informal matters in open court, where he could humiliate them in front of clients and opposing counsel.

  “Why are we going to see Judge Stang?” Arthur repeated acidly, a reptilian glitter deep in his retinas, as if he had a couple of gleaming serpents coiled up back there behind his eyes, nestled in brain tissue, flicking their tongues, poised to strike. “Probably because Judge Stang is a medicated psychotic,” he said. “I tried to make an appointment to see him. Instead, I received a message from his clerk advising me that the right honorable judge would not discuss matters pertaining to the case of U.S. versus Whitlow without the attorney of record for the defendant present.” Arthur looked at him with an even more serpentine glare. “That’s you.”

  The spider named Rachel returned, beeped at them from the monitor, opened her segmented belly, and displayed the hits his search request had retrieved. The one named Hate was still out on the prowl.

  “What is that?” asked Arthur, making a face at the screen. “A game?”

  Watson temporized. “It’s a spider,” he said, at a loss for anything more descriptive. “A search engine.” How to describe the future to this geriatric Luddite, a technological neonate. Arthur’s fountain pens, his cotton bond papers, and his Dictaphone were like war clubs in a campaign against air-launched Cruise missiles. “What’s that!?” Watson wanted to say. “That’s a loaded Sun Microsystems workstation cabled to a dedicated, wide-band, fiber-optic data line, running the most recent beta version of Red HotJava (downloaded less than a week ago) and a beta version of an agent called ArachnoManiac, which I have painstakingly tweaked to performance perfection during a series of all-nighters, so that it can venture out onto the Internet and retrieve more and better information in four minutes than you could find with a squadron of your two-hundred-dollar-an-hour associates in a week.”

  “It’s software,” said Watson respectfully. “Spiders, robots, browsers, gophers … They find information on the Net or Web and bring it back to you.”

  He neglected to add that it was illegal software under the technical terms of the firm’s strict network security policies. But Arthur barely understood the difference between hardware and software, and Inspector Digit, the firm’s head MIS man, was a buddy of Watson’s. He was safe, he hoped. What was an ambitious, young, techno-savvy associate to do? Use the five-year-old brontosaurus browsers the firm supplied?

  “Fascinating,” Arthur said, strains of scorn and facetiousness in his voice. “Do you suppose one of these robot spiders could tell me why a talented, highly compensated young lawyer on track for partnership would ignore explicit instructions from a senior partner who controls seventy percent of his workload?”

  “Arthur, I got the call yesterday. I stopped by your office and you … you were on the phone. And today? Ask Marcia. You were busy!”

  “Why this lawyer would squander his professional talents and firm resources defending a murderer in forma pauperis? Why he would reject a perfectly reasonable plea offer without consulting his boss or his client?”

  “I didn’t reject the plea,” Watson protested. “I tried to tell him about it this morning, but I—” A split-second internal debate. He was afraid to tell Arthur that he couldn’t find his client, much less counsel him about a plea. “I was not able to see him. I will tell him about the offer …” He faded, unable to manage a convincing finish. “And what I think of it.”

  They looked at each other across Watson’s desk.

  “I
’ve done research into this hate business,” Watson said.

  “I can see that,” said Arthur, with a hateful look at his deskful of hate research. “Maybe this is all for the best,” he said with an ophidian hiss, trying to pace, as was his custom when annoyed, forgetting he was in an associate’s office, where the best he could do was turn around a few times. “If you want to represent destitute felons, it’s best discovered early in your career … so you can find a position commensurate with your calling.” He stopped marching in place and arched an eyebrow. “The public defender’s office will take anyone with a pulse and a law degree. You’ll make a fourth of what you draw down here.” He shrugged and coughed. “But representing the kind of people you want to represent is more important than money, isn’t it? I’m sure Sandra would support your decision.”

  A new low for the old poltroon. Dragging the wife into it. Like many fair-minded suburban homeowners, Sandra felt that society would be better off if accused murderers were quietly executed the day after being arraigned. Trials were superfluous spectacles offering guilty people the opportunity to discover technicalities and procedural infirmities, which then only served to delay the inevitable.

  “Be in my office with your coat on in fifteen minutes,” said Arthur and left.

  Poop happens! He took a sharp breath through gritted teeth. Judge Stang, in chambers!

  To laypeople, including casual litigants and Court TV spectators in LazyBoy recliners, judges appear as Platonic Guardians wearing black robes, throned atop burnished oak tribunals from whence they issue fiats and decrees, pardons and sentences, declaratory judgments and evidentiary rulings, in the public arena of the courtroom. Only lawyers, as a rule, go behind the scenes to enter the private offices of judges—a conference described as seeing the judge “in chambers.”

  Watson had no trial experience, but he’d seen enough litigation—the before and after of trial work—to know that, in chambers, judges perform the less public function of managing the giant social enterprise of criminal and civil litigation. Here, they meet with lawyers—the officers and subordinates of that enterprise. Here, remarks are generally off the record, because there is no court reporter to make a record. Oral agreements and statements of fact are, however, no less binding than the pronouncements made in open court—perhaps even more binding, because the lawyer’s word and reputation are at stake, and a lawyer who lies or goes back on a deal struck in chambers commits professional suicide.

  Despite the informality and the lack of a record, experienced lawyers meeting with a judge in chambers are in a state of vigilance second only to the mental red alert of opening or closing arguments to a jury. Even with less than a year’s experience as squire and footman for the likes of Arthur, Watson had seen firsthand how the most casual session in chambers can produce permanent dispositive consequences for the case at bar. At any moment, the judge may frown and give you to understand that a motion to dismiss might be well received in the $5 million insurance fraud claim you are defending. He or she may banter about a prior case, with facts suspiciously similar to your own, in which the judge was outraged at the tactics employed by counsel, the same tactics you were thinking about using the first day of trial. A case that would otherwise require six months of interminable wrangling in open court—where the rules must be obeyed and the lawyers’ voluminous objections recorded—can be settled in chambers in the span of a coffee break.

  A scrupulous judge will not discuss the merits of a case ex parte, meaning without opposing counsel present. An unscrupulous one will force settlement by yanking a lawyer aside and delivering a blunt appraisal of a bullshit case or the invaluable information that such an appraisal was delivered to opposing counsel. Then there was Judge Stang, about as predictable as a hebephrenic in a funhouse.

  He opened the spider named Rachel and read the previews of the first five hits and the accompanying term-search blurbs of disconnected text. L.A. Times, December 12, 1999, “Neuroscientists to Testify at Sentencing Hearing of Freeway Killer”: “Dr. Palmquist and Dr. Ling, neuroscientists from the renowned Gage Institute, are expected to offer PET scans of the defendant in an attempt to prove that the defendant is incorrigibly sociopathologic, incapable of human empathy.” Hartford Courant, May 10, 2000, “Mitigation Hearing Set for Mall Molester”: “Palmquist testimony about those scans are expected to show that important connections between the defendant’s frontal lobes and the limbic regions of the brain have rendered the defendant a sociopathic automaton incapable of considering the well-being of other human beings.”

  More mitigation and sentencing hits featuring Dr. Palmquist expounding on the incorrigibility of the criminal psychopath to be sentenced. Watson broke into a mild sweat seeing her name associated only with prosecutors and government agencies all across the country, using evidence of a mental defect not as a defense to the charged crime but as proof that any attempt at rehabilitation was pointless. He altered the weight of the term Psychon using a virtual sliding bar, and the sample yielded more news clips and newswire summaries. APNewswire, “Crime Commission Promises Government Action on Rising Tide of Violence”: “Prominent geneticists, biologists, neuroscientists, and neuropsychologists have convened a controversial seminar on the biological and genetic aspects of violence and violent criminal behavior.… Dr. Rachel Palmquist, a member of what is referred to in the neuroscience community as the Gage Group, testified that violence was a biological or genetic defect, a medical problem, a symptom of a mental disorder, which could be remedied or managed with chemical therapy, or in extreme cases, invasive modification of the dysfunctional neural networks.”

  The signature trill of an outside call sounded from somewhere in the metropolis of stacked documents on his desk. Watson extracted the receiver from the paper canyons. “Joseph Watson,” he said, eyeballing the system clock on his screen.

  The Marshals Service. He got into it with a clerical type on the other end. She sounded like the sister of the woman at the Des Peres County Correctional Center. “We may not provide information for twenty-four hours once the prisoner has been turned to the Marshals Service,” she said. Was he hearing pointing and clicking? Were Anna and Terri and the whole Microsoft Hearts gang at her place as well?

  The other two buttons on his phone lit up. Outside calls. His information manager appeared on the screen with a double beep, identified the caller as Rachel Palmquist, MD, PhD, and presented her card file.

  “I have another call,” said Watson. “Could you hold for just a moment.” He punched another button.

  “Rachel?” he said in breathy anticipation.

  “Not quite,” said Arthur. “Where are you?”

  “I’ll be right there,” said Watson, “Really, I’m coming. I think Doctor Palmquist is waiting on my other line.” He felt his armpits turn into two small saunas as he pressed another blinking button.

  “Rachel?” said Watson.

  “Can’t talk long,” she said. “I thought we’d schedule a session comparing your response patterns with Cham’s. Also, in order to reduce signal-to-noise ratios, I need to be able to average a statistically significant number of … events, like the event we captured under the MEG. I’ll be blunt, I need more data. Let’s rig up another chair for you right next to his and fit you out with a headful of electrodes like his and a console with buttons and so on. And maybe a mate of your choice in the other chair. How about tomorrow afternoon? Saturday. Busy?”

  Watson looked up and saw Arthur in his trench coat, frowning at him from his open door.

  “Three o’clock,” said Watson. “We need to talk about Whitlow.”

  “I know,” she said. “Now the prosecution wants him. We’ll talk tomorrow. Bye.”

  “What?” he said, and heard her click sound in his ear.

  The blinking light on the line to the Marshals Service went out.

  “Let’s go,” said Arthur.

  CHAPTER 12

  Entering chambers for the first time, a young lawyer may find the ch
atty relaxed atmosphere of a den or family room, complete with a set of stuffed chairs, an ottoman, a coffee table, and sometimes even coffee. More often, the lawyer finds an interior design favored by dictators, as exemplified by Mussolini, whose office was arranged so that a visitor walked across a cavernous, formal room and shrank like Alice in Wonderland, while approaching a huge desk on a riser with a stout, powerful person behind it and two hard-back chairs in front for squirming supplicants.

  In chambers, judges become more like people—formal or informal, autocratic or friendly, morose or cheerful, Type A or Type B—with one important difference: No matter what their personality, they retain the same almost superhuman power over careers and clients. In chambers, the lawyers may feel they are having an after-dinner conversation with the judge about their case, or they may sustain the intense scrutiny one receives when applying for a salaried position or a large, unsecured loan. Most lawyers endure these tolerably stressful sessions, never wondering about the resonance of the expression “judge’s chambers.”

  Visitors to Federal District Judge Whittaker J. Stang’s chambers, however, formulated their own adrenaline-induced, overwrought notions about the origin of the terminology, because they were unceremoniously introduced to a lawyer’s chamber of horrors run by a quixotic despot who seemed to take infinite pleasure in administering random, exquisitely painful shocks of professional anxiety to the legal creatures who had been summoned into his domain. For lawyers, Judge Stang’s chambers were of the gas and torture variety.

  Arthur and Watson cooled their heels in the outer office, listening to Judge Stang shout orders to his secretary concerning the optimum strength and temperature of the tea she was brewing in a kitchenette to the rear. The two lawyers had just settled in on a cracked leather sofa with a flaking finish and torn seams when the voice of justice boomed from within, bringing them to their feet, where they stood at attention, even though the judge couldn’t see them.