“I don’t think so.”
“It has a long and colorful history, though it is rarely used. It is also called the lesser evil defense, in that the otherwise unlawful actions of the accused caused less harm than the consequences prevented. Consider a police officer who shoots a hostage-taker, or a Good Samaritan who commandeers a car and violates the speed limit in transporting an accident victim to the hospital. These are people whose actions we consider right, not wrong. For such actions people are often praised, rather than convicted, because they are motivated by noble objectives.”
“Sounds promising. But what about the death penalty?”
“I was wondering when you would ask about that particular albatross. I suggest you try not to lose any sleep over it.”
“Easy for you to say.”
“I do not say it lightly. Despite what the public may think, the death penalty remains a very rare sentence in America—particularly for white men. Only sixty executions occur in an average year, eighty percent of whom are African-American, Hispanic-American, or Native American. Thus it seems highly improbable that you will be sentenced to death.”
“It’s hard to feel good about benefiting from institutional racism.”
“I understand. However, our goal is to avoid your conviction entirely, rendering all discussions of sentencing, including the death penalty, moot.”
Quarrington quickly outlined the stages of the trial, familiar to Michael from television and movies. “I will be back soon,” he said, stuffing his notebooks into the battered leather briefcase that had been his father’s in London, half a century ago.
“Thank you, Peter. I’m deeply grateful to have an attorney of your stature on my side.” Michael felt slightly less alone as the guard pushed him back down one of the prison’s long gray hallways. For the next few weeks, Quarrington and Shirin Yavari would be his only visitors.
* * *
One day, Shirin appeared at the prison without Peter. A second-generation Iranian American, she was short and stocky, with a round, attractive face highlighted by bright eyes. She’d been a Rhodes scholar at Oxford in her undergraduate years, and a competitive badminton player.
“Let’s get down to business,” she said. “Your first court appearance is tomorrow. We need to get you cleaned up. A shower, a shave, and, ideally, a haircut.”
Michael ran his handcuffed hands over his shaggy head. “I’ll do the best I can, but my options are limited. Can you walk me through the process?”
“Of course. The clerk of the court posts a schedule in the morning. Then we’ll know what time your case will be called. Once we get in front of the magistrate, we’ll learn exactly what charges the prosecution is proceeding with, and the judge will listen to arguments from both sides about setting bail.”
“Is there any chance that they’ll set me free?”
Yavari shook her head, almost reluctantly, as she prepared to deliver bad news. “It would take a miracle for our bail application to succeed, and there are no signs that any god is looking out for you. You’ll likely be residing here at SeaTac until the trial is completed. We’ll be able to sketch out our defense strategy once we know the charges. No more sitting around waiting, wondering, worrying. We can roll up our sleeves and get to work.”
Michael sighed audibly. “It sounds like taking medicine—better to get it over with.”
Chapter 34
The district court in the Western District of Washington was housed in a postmodern skyscraper, twenty-three stories tall. Security was strict but not over the top. U.S. marshals from the Judicial Security Division were posted at all entrances to the building, as well as at the doors to Courtroom B on the twelfth floor where the trial would take place. Michael was taken by bus, with other prisoners from SeaTac, to a holding cell in the basement of the courthouse.
The prosecution was confident, even cocky. They had motive, physical evidence, and a confession. The grand jury, a group of citizens convened to evaluate whether there was sufficient evidence to proceed to trial—without a judge, the defendant, or a defense attorney present—had returned a unanimous indictment in record time.
The arraignment took place before Federal Magistrate Judge Patricia Allan. With her granny glasses and hair pulled back in a tight gray bun, Judge Allan looked like a stereotypical librarian. She had a reputation as a fair but no-nonsense judge.
District Attorney Lisa Marconi commenced the proceedings by reading from the grand jury’s indictment. “In the case of the United States v. MacDougall, the first count in the indictment is a violation of federal law prohibiting the use of chemical weapons. Pursuant to section 229 of Chapter 11B of the U.S. Code, it is unlawful for any person to knowingly acquire, use, or threaten to use any chemical weapon. A chemical weapon is defined so as to include all toxic chemicals that can cause death, temporary incapacitation, or permanent harm to humans or animals.”
Michael flinched when Marconi mentioned chemical weapons. He looked over his shoulder at the gallery where media, government officials, and the public sat, mixed together. No sign of Maria, which was both painful and a relief.
“Mr. MacDougall, how do you plead?” Magistrate Allan asked.
“Not guilty, your honor,” Michael said, standing beside Quarrington. Judge Allan raised her eyebrows ever so slightly.
There was a discernible buzz in the courtroom. Marconi continued. “The second count in the indictment is the federal crime of terrorism, which in this case includes two elements: the use of a chemical weapon in a crime that transcends national boundaries, and the intention of influencing or affecting the conduct of government by intimidation or coercion.”
“Mr. MacDougall, how do you plead?”
“Not guilty, your honor.”
Judge Allan did a better job of disguising her surprise. “On to the next order of business, the defendant’s application for bail.”
Quarrington made the best of a poor hand. “Dr. Michael MacDougall has no previous criminal record. He is a lifelong resident of Seattle, with a long record of community service. He has a family and a home here. He will voluntarily surrender his passport to the court, and is willing to post a substantial bond. Although Dr. MacDougall is entitled to the presumption that he is innocent until proven guilty, in the extraordinary circumstances of this case he would even consent to house arrest and twenty-four-hour electronic monitoring.”
Marconi rose to address the court. “Your honor, as my friend acknowledged, this is an extraordinary case. The defendant committed one of the most serious crimes in Washington State history, deliberately poisoning millions of Americans. The damage to public health was immense, causing illness, death, and suffering. The defendant threatened to carry out a similar chemical attack on another American city, suggesting that there is a high likelihood of re-offending.
“This is a defendant who, within hours of poisoning Seattle’s water, crossed the border into Canada, boarded a flight to London, England, and then transferred several more times en route to a remote location in Central Africa. In less than twenty-four hours, the defendant traveled halfway around the world. To set him free pending trial, even under strict conditions, would pose an unacceptable threat to the health and security of the American people. We ask you to refuse the application for bail.”
“Application denied,” Judge Allan ruled curtly. “Bail is clearly inappropriate in the circumstances of the case.”
* * *
Michael’s next visit from his legal team was several days after the arraignment. He was in a deep funk, reeling from the way Marconi had portrayed him as a cold and calculating criminal. A killer. A terrorist. The spin that Marconi put on the facts disturbed him because it contradicted his self-image and his good intentions. Her depiction forced him to see how the rest of the world would view his actions. Michael was particularly upset by the repeated allegations that the perc had killed or harmed anyone. He and Shirin
had discussed that point in detail, and it would be of critical importance at the trial.
Quarrington appeared unfazed by the DA’s confidence. “The pretrial process is moving quickly,” Quarrington said. “Your case has been assigned to a trial judge, Justice Maximilian Klinsmann, which is a good news/bad news situation.”
“Give me the bad news first.”
“The bad news is that Justice Klinsmann is nicknamed Mad Max.”
“Mad Max? As in the old Mel Gibson movie?”
“I am not familiar with the oeuvre of Mr. Gibson, but the sobriquet arose after the judge took part in one of these notorious judicial education conferences in Las Vegas about four years ago. His wife, whom he left behind in Seattle, was brutally beaten in a home invasion. Two of the young men subsequently apprehended by the police had appeared before Justice Klinsmann a year earlier on robbery charges. He’d given them suspended sentences because of their age and previously clean records. The experience transformed Klinsmann from a moderate liberal into a headhunting, defendant-loathing judge.”
“So he’s nicknamed Mad Max because he’s angry?”
“Partly because of his newfound anger, partly to reflect the fact that he may be certifiably insane, and partly because the only sentence he has given out at criminal trials since his wife was assaulted is the maximum. Hence Mad Max.”
“Yikes. What’s the good news?”
“The good news is that the Ninth Circuit—”
“What’s the Ninth Circuit?”
“The U.S. Court of Appeal for the Pacific region, based in San Francisco. The Ninth Circuit is aware of Mad Max’s newfound zeal for punishment and has overturned several of his more excessive rulings.”
“But it can take years for cases to work their way through the appeals process, can’t it?”
“Unfortunately, yes.”
Michael looked down at the handcuffs around his wrists and wondered if he’d ever experience the highs of successfully completing a complex surgical procedure again.
Chapter 35
Michael kept his head down at the prison and said nothing unless spoken to. He’d heard that you needed to belong to a group to survive in prison. But there was no American Medical Association chapter or Sierra Club here. The options included the KKK, the Hells Angels, the Aryan Brotherhood, the Nation of Islam, and Hispanic gangs like the Norteños, Sureños, and Mara Salvatrucha. The air reeked of testosterone. Many of the inmates were enormous, jacked up on steroids, using every recreational moment to lift weights and pack on muscle.
Michael felt in constant danger whenever he left his cell. He’d seen the injuries inflicted on prisoners brought to Seattle hospitals for emergency surgery, injuries too severe to be handled properly at the prison’s medical clinic. Like any group of humans, prisoners adapted to their environment. Dark ingenuity was used to craft deadly weapons. Razor blades were smuggled in and then welded to scraps of cans poached from the kitchen or recycling box. Spoons were pilfered and painstakingly sharpened into knives. Even plastic toothbrushes could be whittled to a deadly point.
So far, he’d defused several confrontations by leveraging his medical expertise. Inmates who learned he was a doctor trusted him far more than the prison’s medical staff. And just about everyone had questions or concerns about their health.
One lunchtime, Michael was waiting in line for the daily special, which appeared to be fried baloney, white bread, a pale and gummy-looking macaroni salad, and some shredded iceberg lettuce. He tried, unsuccessfully, not to eavesdrop on the conversation of the Mutt and Jeff pair in front of him. A small, hyperactive man whose eyes flickered around the cafeteria was talking to a giant who kept popping knuckles embossed with tattoos that said Fuck on one hand and You! on the other. The big man’s body was so enormous that the girth of his thighs forced him to walk with an unnaturally wide gait. His shaved head was disproportionately small, like the cherry on an ice cream sundae.
The little guy was complaining about his legal aid lawyer, as though it was the attorney’s fault that he was in jail for the third time for breaking and entering.
“He looked like he was fourteen years old! Doogie Howser JD. Totally fuckin’ clueless.”
Knuckles grunted sympathetically.
“Never asked no questions on cross-examination. Not one! Read his closing argument from a piece of crumpled paper like he wrote it on the subway. And get this, he kept callin’ me Gerald instead of Gerry. I ain’t been called Gerald for twenty-five years.”
“You should appeal!”
“Aw, what’s the use? System’s rigged. Guilty once, guilty forever. Anyways, I’ll bounce on parole in a few months.”
Michael had heard this story, or variations of it, dozens of times. If you believed inmates’ stories, ninety percent of them were victims of miscarriages of justice. As the line inched forward, Michael caught a whiff of smoky, rancid grease from the old and overused frying oil. The hair on the back of his neck tingled as a fistfight broke out on the far side of the cafeteria. He watched out of the corner of his eye as several guards converged on the melee and started pulling combatants apart.
Then he sensed movement behind him. He turned. An enormous man was striding purposefully toward him, hands tucked close to his sides. He recognized Charley “Big Red” Barker, a biker facing multiple life sentences for gang-related hits. Barker sported scarlet pork-chop sideburns and looked like he’d been chiseled from stone.
“Fucking terrorist scumbag!” Big Red shouted as he closed in. Barker had been promised special treatment for the hit on Michael, told that it was revenge for the father of a child poisoned by the PCE in Seattle’s water.
Michael heard someone else running hard toward him from the opposite direction. He was knocked to the floor, tray flying, as something metallic flashed past his face, connecting with Big Red’s throat. The behemoth crumpled to the ground in a heap, gurgling. A sharp piece of metal tied to a spoon with dental floss, its handle wrapped in duct tape, clattered to the floor. The weapon’s owner melted back into the gathering crowd as quickly as he had appeared. Winded by the impact, Michael didn’t get a good look at him, just a glimpse of brown skin, tattoos, and khaki clothing.
As he regained his breath, Michael’s instinct, hard-wired by almost twenty years of medical training and practice, was to crawl over and feel Big Red’s wrist for a pulse. It was there but it was faint. Blood was leaking from Big Red’s neck but not gushing, meaning the jugular and the two carotid arteries were probably intact. Michael looked around for something he could use to stop the bleeding. In Barker’s hand he saw a deadly-looking piece of wire, a weapon for garroting him. Seeing nothing else useful, Michael picked up the shank that saved his life and slashed a strip of fabric from his own sleeve. He wrapped the makeshift tourniquet tightly around the man’s neck, applied pressure, and elevated his head.
“Get some help!” Michael shouted.
A swarm of prisoners looked on, confused.
A pair of guards violently pushed and elbowed their way through the crowd, pistols drawn, screaming at Michael to lie down on the ground.
“I can’t! This man’s bleeding to death!”
“No shit,” said somebody in the crowd. Others cheered and clapped.
“Let him go!” said one of the guards.
“No,” said Michael. “I can’t, bec—”
The gun didn’t waver. “You’re choking him. Let go now!”
“He’s got a hole in his neck. If I—”
“For the last time, put him down and back up slowly! Or I’ll put a hole in your neck too.”
Michael reluctantly lowered Big Red back down to a prone position, releasing the tourniquet.
One guard approached, crouching down over the fallen man while his partner kept a gun trained on Michael. The blood oozing out of Big Red’s neck had soaked through the tourniquet.
�
�Apply pressure to the wound or he’ll die,” Michael said.
“Do I look like a nurse to you?” the guard snarled. “Shut the fuck up.”
Gun still aimed at Michael, the other guard used his shoulder mic to call for more backup. “Get a medic to the cafeteria. Double time.”
Michael was handcuffed and put in the Special Housing Unit, otherwise known as protective custody, solitary confinement, or just “the hole.” A tiny cell without windows. A toilet, a narrow cot, and a sink. He could cover the length of the cell in three strides. What the hell had just happened? Big Red had tried to kill him. That was clear. But why? Another man had stepped in and saved Michael’s life. Again, why? Had he unknowingly violated some kind of jailhouse ethic? Was it simply a case of being in the wrong place at the wrong time? Did it have something to do with the terrorism charges? Michael was descending through Dante’s inferno, each level of purgatory worse than the last.
Chapter 36
Judge Klinsmann called a meeting of counsel to lay down ground rules for the trial. Klinsmann had a great, hooked nose that would not have been out of place on a bald eagle. His face was tanned, thanks to weekends in Nevada, and he reluctantly wore bifocals that made him look and feel old. Klinsmann shook hands with both of the attorneys and then launched into a tirade.
“I don’t want a circus here. While I appreciate that the general public may be inflamed by the notion that there are terrorists in our midst, I will not tolerate chaos in my courtroom. The prosecution will follow both the letter and the spirit of the rules, and will avoid trying this case through the media.”
“Of course, Judge.”
“Not just the letter of the law, Ms. Marconi. The spirit as well.”
“Yes, sir.”
“Nor will there be any emotional blackmail in the form of an endless parade of victims and their families. Witnesses are there to provide evidence of the crime and that is all. As for the defense, I would like you to explain the contradiction between your client’s not guilty plea and the confession obtained by the prosecution. Are you planning to challenge the admissibility of the confession?”
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