Brain Storm

by Richard Dooling

  Arthur abruptly turned aside and coughed.

  “Something stuck in your craw, Mr. Mahoney?”

  “No, Judge,” gasped Arthur, “Excuse me, I just—”

  “So,” said the judge, “if you were maybe thinking about filing a motion under seal to have this man sent to a government facility without telling the prosecutor what you’re up to, that chance is gone. Whatever they do up there will be common knowledge. I told the prosecutor as much yesterday.”

  The judge picked up his empty teacup and stared into it with a sour look.

  “Do you have any objection to having medical and psychiatric examinations of your client done?”

  Watson glanced sideways at Arthur. “In fact, Judge, I am finishing a Rule 12.2 motion notifying the court that we may assert a mental defect as a defense at trial,” he said. “At a minimum, I would be seeking the court’s permission for a medical examination to determine if the defendant’s history of neurological disease could have contributed in whole or in part to his alleged impulsive behavior.”

  “Consider him shipped,” said Judge Stang. “In fact, I issued the order yesterday, and my guess is he’s gone by now. Let’s get all this mental crap over with, and then I’ll tell the lawyers what kind of medical evidence I’m going to let the jury hear.”

  “Just one other thing,” said Watson. “You said the prosecutor gets to see everything that comes back from Mayo’s. What if, in addition to the Mayo’s testing, we consult our own expert—our own neuroscientist or neuropsychologist?”

  “That typically costs money,” said the judge. “Under the Criminal Justice Act, I can give you a free trip to Mayo’s. I can’t pay federal marshals to escort your boy around town until he finds a shrink who understands him and then write more checks to cover his medical expenses.”

  “The fees are not yet an issue,” said Watson. “But I do have one other concern—what happens if we consult the expert of our choice, and that expert renders an opinion we don’t like? Is the government entitled to discover that expert’s opinion, even if we don’t call him … or her?” he added, checking Arthur with a sideways glance.

  The judge swiveled back around and looked at Arthur Mahoney for what seemed to be the first time during their meeting. “See what happens when a lawyer is an advocate, instead of a shirker?” he asked with a grin.

  “My concern also lies with the client,” Arthur protested. “I don’t like Mr. Watson’s chances in a murder trial, especially since he’s never even seen a jury trial, much less conducted one.”

  The judge turned back to Watson. “Hot topic, Mr. Watson. You’ll find a lot of commentary in the law journals about what happens when the psychiatrist you consult formulates an opinion you don’t want anyone to know about.”

  “I already found them,” said Watson. “They came out after the Supreme Court’s opinion in Ake versus Oklahoma, which guarantees criminal defendants the right to expert psychiatric assistance. But the circuits are split on the question of what happens when the expert you’ve consulted—an expert the prosecution knows about—renders an opinion that is helpful to the government rather than to the defense. And the Eighth Circuit hasn’t addressed the issue yet.”

  “Don’t worry about them,” said the judge with a grimace. “The Eighth Circuit can fuck themselves with a sixpenny nail.” He swiveled back toward his clerk. “Sweetheart?” he said, and handed his clerk the prosecutor’s motion. “Stamp my signature on that and any other papers we need to get our hate killer shipped off to the medical center for federal prisoners up there in Mayo’s.”

  “Yes, Judge,” said the clerk.

  “Oh, yes,” said the judge. “Now, as we all know, it would be inappropriate for me to give Mr. Watson, here, my opinion about any prospective motion he or the government might file in this case, so would you dig up that unpublished opinion of ours in that case we had last year where the government came in and tried to get their hands on the written report of a nontestifying psychiatrist consulted by the defense. If memory serves it was that soft-spoken young fella who showed up in the Federal Express office asking for a box to mail an Uzi to his brother in Philadelphia.”

  “I remember, Judge,” said the clerk. “I wrote … er, ah, I helped write the court’s order and opinion.”

  “If I’m remembering,” said the judge, “the defense consulted three psychiatrists—the first one said the defendant was sane, the second one said he was insane, and the third one said I was insane. The defense announced they intended to call psychiatrist number two at trial, and the government filed a motion seeking to compel disclosure of the reports from numbers one and three. And what did we say?”

  The clerk smiled. “Is the court asking me for the wording of the court’s written opinion, or the wording of the court’s oral opinion?”

  “Brevity,” said the judge. “Make it oral.”

  The clerk nodded and pleasantly announced, “The court’s oral opinion denying the prosecutor’s motion to discover and subpoena the nontestifying psychiatrists consulted by the defense was”—she straightened her back and lowered her voice slightly—“ ‘Tell that government lawyer to go fuck himself with a tenpenny nail.’ ”

  The clerk smiled, the judge nodded approvingly, and Arthur passed Watson a baleful glance through the haze of cigar smoke.

  “Thank you, Kendra, dear,” said the judge. “That will be all for now. Give Mr. Watson, here, a copy of the court’s written opinion explaining how the reports of the nontestifying psychiatrists consulted by the defense in a criminal trial are protected by the work product doctrine and therefore the government can’t have them.”

  “Your Honor,” interrupted Arthur. “If I may, the court has appointed a recent law school graduate with no trial experience to defend a high-profile, controversial murder case in which the government is seeking the death penalty. I fail to see …”

  The judge ignored Arthur and swiveled away to look again on his generous view of downtown St. Louis and the Mississippi River, the barges plowing through dappled waves, the bridges gleaming in the sun. He fetched a ring of keys from his desk drawer, selected one, and used it to gouge wax out of his ear. He examined the sample, wiped the key on his sock, and mused aloud. “I don’t care if Frank Donahue runs for the Senate, but if he tries to do it in my courtroom I’ll fix him like a bitch in heat.”

  Arthur cleared his throat. “I appreciate the court’s concern with the political vicissitudes of the community, but I confess that I’m not understanding the court’s reasoning here,” he said in a tone that imperceptibly suggested the court was incapable of reason.

  “Why would you?” the judge smiled, still staring out the window. “The court’s reasoning is beyond your abbreviated mental faculties.”

  “This case—” began Arthur.

  “Is excrement,” said the judge. “It’s the kind of crap you used to go in for back when we were in Tom McGrath’s office. I’ve read the statute, I’ve read the charges, I’ve read the newspapers, and I keep running across two words that give me a lot of trouble. Two words I come across a lot in tort law, in the stock market, in metaphysics, in politics, when I go to see my doctor about my failing health, and when I try to figure out my wife’s heartburn. She’ll eat nachos with hot pepper salsa and avocados, taco salad with Tabasco, jalapeno dip, chili rellenos, then she’ll drink a pot of coffee while nibbling on Godiva chocolates, and later that night she’ll wake me up and tell me it’s my excessive drinking that gives her heartburn.”

  Arthur gave Watson a look that said, You see? Rabid psychosis.

  “Two words,” said Judge Stang. “I don’t suppose either of you two learned, overcompensated legal paragons might know what those two words are?”

  “Because of,” said Watson quietly.

  Arthur’s head did not move, but Watson could see his hackles bristle and the muscles stiffen at the back of his neck, as if he were just learning how to wiggle his ears.

  “There,” whispered Judge Stang w
ith a hiss of satisfaction. He swiveled around in his chair and lifted a crooked finger, pointing it at Watson—a teacher beaming with pride at a well-schooled protégé. “That’s my boy. Because of.” His eyes flashed back to Arthur. “So far, I’ve got one lawyer thinking about the client.”

  A muscle twitched at the corner of Arthur’s lip. Watson realized that their master-servant relationship had just become a triangle, with a lunatic federal judge grinning at both of them from the other apex, a Third Column, threatening either or both.

  “This new-fangled hate guideline says I got to increase this dumb fuck’s sentence by six levels if he intentionally selected his victim because of race or disability.”

  “Judge, we did not come here to discuss causation,” Arthur began.

  Judge Stang turned back to his picture-window view of the river, tipped back in his recliner, and kicked his legs up onto the marble desktop, placing his feet directly in front of a dead computer monitor. He set the cigar in his teeth and clasped his hands behind his head.

  “There’s a two-hundred-thousand-dollar house standing in a dry forest, Mr. Mahoney,” said Judge Stang, gazing out the window again and musing through wisps of cigar smoke. “Lightning strikes a hundred yards due west of the house and starts a fire. A hundred yards due east of the same house, in the same forest, a man negligently discards a cigarette and starts another fire. The two fires converge into one fire and then consume the house. The fire chiefs agree that either fire alone would have destroyed the house. The owner of the house brings a cause of action seeking two hundred thousand dollars in damages against the cigarette smoker for negligence. What result?”

  Arthur heaved another sigh of exasperation. “I confess I don’t remember, Judge.”

  “Tricky business, causation,” said the judge. “Very tricky. Take the fire. A trial about something as big as the great outdoors, as plain as two forest fires, and as simple as a civil action for negligence. But simple it ain’t. Now, what do you suppose would happen if I tried to conduct a trial about two fires that tore through some delinquent psycho punk’s brain and made him shoot somebody? Are we going to impanel a jury to inquire after just what kind of hate this degenerate had running around inside his head? And after we identify all the warped, deviant varietals of hatred, some drug-induced, maybe some abuse-induced, maybe some booze-induced, maybe some induced by—don’t say it! Prejudice! Maybe some induced by being a hot-blooded John Trot who wipes before he shits himself— After we hear about all of that, then we’ll ask the jury which kind of hate made him pull the trigger? Not in my courtroom. Not if I can help it.”

  “Surely the court is aware of the epidemic of hate crimes sweeping the nation,” Mahoney said. “Society is entitled to impose penalties for crimes motivated by hatred of protected groups over and above crimes inspired by other less socially deleterious motives.”

  “Pish,” said Judge Stang, picking a shred of tobacco from between his teeth. “You want to make hatred illegal? I’ve sat up here for fifty years and seen nothing but hatred. Everybody they drag in here is full of it, them that’s doing the prosecuting is full of it, I’m full of it, you’re full of it, and now what? You want to make certain varieties illegal? What are we going to do? Get some samples of hate and send them off to the forensic lab? See what kind we’re dealing with?”

  The judge struck another match. “That’s well and good, until they make it illegal to hate hate criminals. Then what?”

  “Eh-uh, Judge,” stammered Arthur, “I still don’t quite understand what all this has to do with appointing my associate, Mr. Watson, here, when he has no experience in criminal law, no trial experience, barely any legal experience.”

  “The court doesn’t have to worry about two fires burning in your brain, Mr. Mahoney,” said the judge. “There’s nothing there but a consuming passion to avoid lost revenue and unbillable associate hours.”

  Arthur’s back arched. “The court is exceeding the bounds of—”

  “Mr. Watson, here, wrote an excellent article on this national mania for punishing hatred and the obvious constitutional infirmities associated with these overreaching, well-intentioned statutes,” Judge Stang casually interjected. “I read it. I liked it.” Watson’s lungs swelled with pride. “Come on, Mahoney. You get your pick of the racehorses over there. The boy’s savvy, and that’s why you hired him. I’ll bet he had five or ten other offers to pick from. Being young and foolish, he took yours, because you pay the most. Now, between him and my clerks, we’ll find plenty of case law to support my conclusion that this piece of crap Frank Donahue is calling a hate crime is nothing more than a Senate bid. The U.S. Attorney will appeal my dismissal of his hate crime charges, and if he does, I may get reversed by those disembodied legal gods who frolic around up there in the Eighth Circuit’s version of Mount Olympus. And if the deities reverse me, the case will be sent back for trial. At trial, young Mr. Watson here will get his head handed to him on a platter and the jury may even send his client to the injection room. Whereupon, the defendant will find another lawyer and file a motion claiming ineffective assistance of counsel because a psychotic old federal district judge appointed a know-nothing greenhorn to a death-penalty case. The long and short of it? I get a shot at Frank Donahue coming, and another one at him going.”

  Arthur smiled bitterly.

  “The Eighth Circuit can reverse me to Hell and gone,” said the judge, smoke stinging his eyes into a squint, “they can mandamus my ass from backbone to breakfast, but no white-trash punk is leaving my courtroom for the graveyard just because Frank Donahue wants to be senator.”

  “Yes, Judge,” said Arthur, “I understand.”

  “You don’t understand,” said the judge, “and I don’t care.”

  Watson held his breath and waited, prepared for another twenty minutes of verbal blunderbussing on the issue of whether Arthur understood, and was relieved to see his boss pick up his briefcase in apparent capitulation.

  “I’m a judge,” said Judge Stang, looking first at Watson and then at Arthur over his reading glasses. “I take each lawyer, each litigant, each defendant, the way I find them, and then I do my job. I try to be fair.”

  “Yes, Judge,” sighed Arthur.

  “That’s why I don’t want to see you in here again unless you have exactly twenty-four and one half ounces of chewed sawdust in an appropriate receptacle. Chewed, you hear me? I’ll send it over to forensics for saliva analysis if I have to. Don’t make me do that!”

  “Will that be all, Judge?” Arthur asked tersely.

  “And you,” said Judge Stang, shifting to Watson. “Motions. Good ones! Lots of evidentiary theory. Because when I grant them, the prosecutors are going to take you straight upstairs on an expedited, interlocutory appeal to the divinities in the Eighth Circuit. Once you get there, you can’t argue anything that you didn’t raise in your pretrial motions, so make sure it’s all there and well done, understand?”

  “Yes, Judge,” said Watson.

  “The primal eldest curse in my courtroom is to show up unprepared,” Judge Stang said. “When lawyers show up unprepared, I don’t quit abusing them until I am certain that they will leave my courtroom and promptly take their own lives. The next time they even think about coming to my courtroom without being thoroughly prepared, they fall on their knees and retch at the memory of what I did to them the last time.”

  The judge removed his reading glasses and rubbed the bridge of his nose with his gnarled fingers. “You seem like a steady fellow, and you do good work. But I want to be absolutely sure we skip that first step with you. Don’t show up in my courtroom or file any papers in this case unless they are the very best you can do. Understand me? Short, accurate, unassailable memoranda applying controlling law to the facts of your case. Got it? I’ve read your writing. You have talent. That puts you about a tenth of the way there. The rest is work. Go do it.”

  CHAPTER 13

  The talking time-and-temperature elevators took them to the lobby
, where Arthur wordlessly led the way to the parking garage. Watson glanced sideways as far as he dared, scanning his boss’s face for any sign of anger or danger—a clenched jaw, a baleful eye, another snakish hiss. Instead, as they approached the snack bar and newsstand on the first floor, Arthur motioned toward the glass door and smiled.

  “Some refreshments, Joe?” he said cordially. “Judge Stang’s dry sense of humor can parch a fellow’s throat, don’t you think?”

  “No kidding.” Watson’s obliging chuckle did nothing to dispel his uneasiness. He was in for it. It was only a matter of time.

  Inside, Arthur selected a caffeine-free Diet Coke, and Watson went for a regular. The cashier was settled on a stool behind the counter, his fingertips skimming a page of Braille. A long white cane leaned against the wall behind him.

  When Arthur placed the sodas on the counter, the man said, “Good afternoon, gentlemen.”

  “Good afternoon,” said Arthur. “Two sodas, please. I’ll get them both.”

  The man punched buttons on the register keypad, took a five-dollar bill from Arthur and slid it into a tray device. A tone sounded and Arthur’s change arrived in a metal dish attached to the cash register. The cashier handed him the bills.

  “Thanks,” said Watson, following Arthur out to the bank of elevators.

  “Bit of history for you,” said Arthur pleasantly as they waited to ride down to the parking garage. “The commissary here in the federal building has hired the blind for years. It’s a tradition going back long before the Americans with Disabilities Act. Most of them are still trained to detect counterfeit money by touch alone. Of course now the infrared scanners tell them whether the bill is genuine and its amount.”