“Federal Rule of Evidence 404,” said Myrna. “Evidence of crimes or acts other than those charged should not be admissible merely to show that the defendant, having committed other bad acts, has a propensity toward crime or bad character.”
“Exceptions?” asked the judge.
“Such evidence may be admissible to prove some other fact at issue, such as motive, opportunity, intent, or other elements outlined by other rules. But on your facts, motive and intent are not elements of the charged crime, and so far I’ve heard no other fact at issue which the evidence would be admissible to prove. The other side wants you to testify that Mr. Fuckhead was routinely negligent and therefore was probably negligent on the day of the accident—exactly the kind of evidence Rule 404 was designed to keep out.”
“You may have a cigarette, Ms. Schweich.”
“I am deeply grateful to the court for its forbearance,” said Myrna, instantly opening her purse and shaking a Gitane out of its blue package. She lit it and took a gasp of smoke into her lungs, as if she had just broken the water’s surface after nearly drowning.
“Mr. Harper,” said the judge, “according to the government’s pretrial papers and in various motions pending before the court, you want to put in a lot of evidence about how this fellow told nigger jokes, said the word nigger, painted swastikas on water towers, got into a fight with a black football player ten years ago in high school, associates with groups who use the word nigger, uses his computer to talk with them, reads books about people who hate niggers, and has been examined by some psychologists who want to testify that they have tested this fellow and determined that he is a certifiable racist, is that right?”
“We do, Judge, because all such evidence goes to prove motive,” said Harper. “And such evidence will help us prove that Mr. Whitlow intentionally selected his victim because of the victim’s race.”
“Is it a federal crime to be a racist?” asked the judge.
“No, Judge,” said Harper.
“Not yet, anyway,” said Judge Stang.
“But there are other federal offenses—murder for instance, or conspiracy to commit murder—and the statute requires a penalty enhancement if the trier of fact determines those crimes were motivated by racism.”
“Motivated?” asked the judge. “Mr. Harper, state the difference between motive and intent.”
“Intent is … what you intend to do,” said Harper, “whether you committed a crime on purpose, as opposed to making a mistake, or doing something while sleepwalking …
“And motive?”
“It’s what motivated you. Your reasons for doing what you intentionally did.”
“Not usually a separate crime, is it?” asked the judge. “It’s usually not even a separate element of a charged crime, is it? I mean, usually we want to know if the criminal act was intentionally done. We talk about motives to fill out narratives for the jury, or even to impose additional penalties at sentencing, but motive is not usually a separate crime, or an element of the crime itself, correct?”
“Correct,” said Harper, “but society may identify and punish particularly deleterious motives if the legislature determines …”
“And there are good reasons for not making motive an element or a separate offense, are there not?” continued the judge. “How do you prove what someone is thinking about while committing a crime, and then prove that their thoughts caused the crime?”
“I think—” began Harper.
“I suspect you have woken up of a morning at least once or twice and been puzzled as to the bizarre mélange of motives which caused you to behave so abominably the night before, but we won’t get into that. Do you ever wonder about your motives, Mr. Watson?”
“I confess, I do, Judge,” said Watson, staring at the back of Judge Stang’s head. “Sometimes I do things, and I don’t understand why. Often I have mixed motives, but I can’t sort them out, and then at other times I think I have certain motives, but I actually have other motives. And if I am confused and mistaken about my own motives, I shudder to think of a criminal trial, with a jury trying to puzzle them out for me, while I sit silently by enjoying my Fifth Amendment rights.”
Myrna winked at Watson, puffed her Gitane, then extended the small, freckled middle finger of her right hand, and waved it in Harper’s line of sight.
“Judge,” said Harper angrily, “this has gone on long enough. I must insist …”
“IDA!” yelled the judge, without turning from his view of the window. “Would you please call down to Mr. Frank Donahue’s offices and order him to appear before the court, in chambers. Now.”
“Judge, I have authority from the United States Attorney to ask for a transcript of these proceedings. Furthermore, opposing counsel—one of them at least—is the most unprofessional lawyer I have ever met, and the court is also not advising us of its purpose in conducting this hearing …”
“This is not a hearing,” said Judge Stang. “The court was very clear about that at the outset. It’s a conversation, Mr. Harper. And the court has concluded that your end of the conversation is finished. You are advised to say nothing else until Mr. Donahue arrives.”
Myrna smiled and lit another cigarette. Watson stared at the back of Judge Stang’s head. Harper looked down at his folded hands and quietly fumed.
After several minutes of intense and uneasy silence, Watson heard a male voice in the outer office and recognized the squat, burly figure of Frank Donahue from news photos he had seen of him, with his shock of wiry red hair tinged with gray. He was short but carried himself with authority, green eyes darting, assessing the players in the drama he was about to enter.
“Ida, please show the United States Attorney into chambers,” said Judge Stang.
“Good afternoon, Judge,” said Donahue.
Judge Stang, still looking motionlessly out the window, spoke. “Mr. Harper, here, was unable to edify the court with a coherent opinion about the difference between motive and intent, and so I asked my secretary to ring your office, Mr. Donahue.”
Frank Donahue checked Harper for a read on how far the proceedings had degenerated. Harper drew a breath and looked sideways.
“Maybe a concrete example will help,” said Judge Stang. “You obviously intended to file this Whitlow case, because it’s been filed, it has your name on the pleadings, and I trust you were not drunk, or sleepwalking in the throes of murderous somnolence, or in a fugue state, or suffering from more than the usual governmental mental incapacity when you filed it. But kindly advise us, Mr. Donahue, of your motive for filing it.”
“Was I summoned here to participate in a metaphysical inquiry into culpable mental states?” asked Donahue incredulously.
“Pah”—a single plosive sent smoke aloft, where it hovered in the sunlight like a cirrus cloud around the gray crag of Judge Stang’s profile.
“The court would never inflict such confusion upon itself, Mr. Donahue. The metaphysical and legalistical spectacles we’ve seen from you in the past are so profound they bewilder, astonish, and confound everyone, including yourself.”
Donahue looked for a chair and then seemed irritably to recall where he was. “I am here as a representative of the United States government and in my capacity as an officer of this court,” said Donahue, his gorge rising with his voice, “I will not …”
“The baldest, most self-evident fact does not go unchallenged in any proceeding distinguished by your esteemed powers of mental self-mutilation,” continued Judge Stang. “The court can’t think of another practitioner who takes such perverse and voluminous pride in self-inflicted perplexity. In short, Mr. Donahue, if you’d like, the court will take judicial notice that you are one sharp lawyer.”
“If it please the court,” said Donahue, “I’d like to request that a transcript be made of these proceedings …”
“So you can take me upstairs on a writ? File a complaint with the Investigative Judicial Council? An ice chip’s chance in Hell. It does not please the
court.”
“All right,” said Donahue, “then I am forced to insist on a transcript of these proceedings. The court’s remarks are not proper …”
“PROPER!” shouted Judge Stang.
Watson felt sound waves from the judge’s vocal cords blow back his hair and marveled at how a small, old man managed such vocal magnificence.
“Proper foolery!” he yelled. “You ask me one more time for a record or a transcript for your golfing buddies upstairs in the Eighth Circuit secular chapel of appeals, and I will hold you in contempt, sir. I will hang the sword of Damocles from the rafters by a human hair. Then, I will order you to stand under it and sing ‘Chattanooga Choo-Choo’ while my court reporter makes a transcript of it for you. Do you understand me?”
Frank Donahue puffed up his chest, his blue suit filling like a sail with windy indignity. “If this is to be another one of the court’s sessions of hectoring and humiliation and, frankly, what is widely considered to be an abuse of this court’s powers, then I—”
“IDA!” yelled Judge Stang, scowling down the length of his smoldering Davidoff. “Ida! Send one of the girls in.”
Frank Donahue huffed with impatience, while Judge Stang watched the river flowing in the morning sun.
“Good morning, Judge.” It was the brunette. She’d been a year ahead of Watson at Ignatius. Renee something. An untouchable beauty with a class rank in the single digits. She politely nodded at the lawyers, walked by them, and took her place attentively at Judge Stang’s elbow.
The judge did not look up from his view of the river. “Is it a felony, a high crime, or a misdemeanor if I issue a contempt citation, suspend the sword of Damocles by a human hair, and order the United States Attorney for the Eastern District of Missouri to stand under it and sing ‘Chattanooga Choo-Choo’ while my court reporter makes a transcript of the proceedings?”
The U.S. Attorney sighed audibly.
Renee tucked an arc of dark, lustrous hair behind her right ear and smiled. “To be honest, Judge, we haven’t looked at that precise issue, but the court will recall that we have on occasion looked at similar matters, some of which were not high crimes, misdemeanors, or felonies, and some of which could be so considered. For instance, it was not a high crime or misdemeanor for the court to order a bankruptcy attorney to masticate his own fee application. Our only caveat was that the lawyer should not be ordered to swallow after chewing, because an untoward airway obstruction might result in injury or death from suffocation, which in at least some jurisdictions might be considered misdemeanor assault.”
“Go on,” said the judge.
“It was not a high crime or misdemeanor for the court to order counsel at both tables to wear dunce caps for the duration of an evidentiary hearing in that class-action health-insurance case we heard last year. Perhaps the court recalls the attorney from California who appeared at informal matters with no tie and an open collar?”
“That surf bum?” growled the judge.
“None other,” she said archly. “The court was not charged with any impeachable offense when it ordered the lawyer to put on two four-in-hand ties in Windsor knots before the court would entertain his motion to appear pro hac vice. But if I may …”
“You may,” said the judge.
“Has the court considered the possibility that the strand of hair might break, allowing the sword to fall on Mr. Donahue’s head, resulting in a head injury, which—”
“You mean, they would blame me for that?” asked the judge.
“They might, Judge,” Renee gently advised.
“You mean, they might say the sword fell because of my alleged hatred of Mr. Donahue? Would they be saying I had mixed motives in exercising my inherent powers pursuant to Article III? My expansive, discretionary powers, delegated to the court by Congress and by the United States Supreme Court and by the Federal Rules of Procedure? You mean, all those powers of mine could be impermissibly tainted by some dark, unspoken motive? I could be impeached because of that?”
The woman pursed her lips and nodded. “Perhaps, Judge, but without more facts I—”
“But what if I ordered Mr. Donahue to stand under the sword because of the way he was acting? And because of his bullshit case which is defiling my docket? And because of certain mental afflictions of mine which make it difficult for me to control my intense hatred of lawyers? And because of …”
The judge stopped, picked up his teacup and touched it to his lips, then held it out and peered at it through his reading glasses. “Ida! Tea!” He selected another cedar match and struck it on the underside of his chair. “I confess I’ve forgotten your question, Mr. Donahue,” he said. “Would it be easier for us to simply move on?”
“Move on?” asked Donahue.
“Yes, with the court’s business. With our conversation.”
“Judge, without in any way suggesting that I want a transcript or a record of these proceedings, the government requests that the court state the nature of these proceedings. Is this a hearing on dispositive motions?”
“Mr. Donahue,” Judge Stang drawled, “your name is Polonius, and you have concealed yourself behind a tapestry in Queen Gertrude’s bedchamber. I am Hamlet. I come on the scene. I hear something or someone behind the tapestry, and I say, ‘How now? A rat?’ and I stab my sword through the tapestry and mortally wound you. Queen Gertrude says, ‘O me, what hast thou done?’ I say, ‘Nay, I know not. Is it the king?’ ”
Donahue took a single deep breath and hung his head in resignation.
“Did I intentionally kill you?” asked Judge Stang. “Did I think it was a rat, or a person back there?”
“These are fictional characters, Judge, I don’t see—”
“Immortal fictional characters,” said Judge Stang. “And even though we are safely within the parameters of standard criminal law, you have a thorny time of it unraveling my intent. Because a second later, I see that it is a rash, intruding fool—you, I mean, of course, Polonius—behind the tapestry, and I say, ‘I took thee for thy better,’ meaning I took you for the king, of course. But now we don’t know if he thought it was the king before or after the stabbing occurred. Which was it?”
“I confess, I have no idea,” said Donahue, “nor do I care.”
“Now let’s pretend there is an unconstitutional sentence-enhancing statute for any improper motive I may have had in stabbing you. Now we are off to the races, aren’t we, Mr. Donahue? Let me proffer a few motives. You’ll recall I was pretending to be mad in my play, and this deed was another in a series of ruses designed to make people think I was crazy. I was motivated by an intense hatred of rats and ratlike people. I was seeking revenge on my father’s death. I was unconsciously lashing out at any and all authority figures because of my rebellious and melancholy nature. I killed you because I knew you would never consent to a marriage between me and your daughter, Ophelia. And so on.”
“Well, Judge,” said Frank Donahue, “if nothing else, we have the case of United States versus Hamlet well in hand.”
“ ‘How now? A rat?’ ” chuckled Judge Stang, and turned around just far enough to trim the ash on his cigar in the stone ashtray on his desk, then swiveled back to his view. “I take one look at this statute, gentlemen, and I see trials. Lots of trials, each one lasting forever, while we try to find out just what kind of hatred our defendant specialized in. It’s hard enough trying to find out what the accused did. Now you want to add to that another four days of trial to find out what he was thinking about when he did it?”
“Judge,” said Donahue impatiently, “we move to—”
“After careful consideration,” interrupted Judge Stang, “this court has determined that a hearing on these matters is not necessary. The court has before it written motions and supporting memoranda from both the government and the defendant, James Whitlow.”
The judge swiveled and faced the attorneys.
“The court rules that all of the motions in limine filed by the defendant are hereb
y granted. The court further rules that all of the motions in limine filed by the government seeking to suppress evidence of the defendant’s mental disease or defect are hereby denied.”
“The government will seek an immediate, expedited interlocutory appeal of this proceeding and the court’s orders,” said Donahue firmly.
“I’m not finished, Mr. Donahue,” said the judge. “In addition, for the reasons set forth in the defendant’s proposed order and memorandum in support, drafted by Mr. Watson, here, the court hereby grants the defendant’s motion to dismiss the government’s charges under the hate crime motivation sentencing provisions.”
“The court will be reversed on appeal,” said Donahue confidently.
“Pah,” said the judge, more smoke billowing aloft. “Why, I hadn’t thought of that, Mr. Donahue. Now you’ve got me thinking. If that happens and this case comes back to my courtroom, I might have to sit on it until after the election.”
Donahue turned to Harper and said, “C’mon.”
The judge drawled on. “Of course, the election has nothing to do with this case, because you heard me ask the United States Attorney about his motives in filing it, and he said nothing about any election.”
Harper and Donahue left. Myrna and Watson stood in front of Judge Stang’s desk, breathing faster, flush with the spoils of victory.
“Fine work on the motions,” said Judge Stang. “In your coming colloquy with the Platonic Guardians upstairs in the Eighth Circuit, you will probably win on most of your motions in limine because the government is overreaching in its efforts to put speech, beliefs, and associations before the jury. Besides, most evidentiary rulings are within the sound discretion of the trial court,” he said, exhaling smoke in a sigh. “That’s me.”
“Yes, Judge,” said Watson.
“But the court may have overreached itself in dismissing the hate crime business. That’s going to be your real battle. You will be closely questioned on Wisconsin versus Mitchell.”
“I know, Judge.”
“The statute in Wisconsin versus Mitchell is different from this federal statute for the reasons set forth in your papers. Make sure you are ready to tell them why.”
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