Looking at Judge Klinsmann with his hunched shoulders, bushy eyebrows, large nose, and bald head, Michael was reminded of the vultures that swirled in the sky above Goma, looking for chunks of carrion. Klinsmann raised his arms to his sides and shook them to free his hands from the long sleeves. Draped in the black silk, his arms looked like a large pair of wings flapping.
The trial kicked off with Judge Klinsmann addressing the jury. “This is a high-profile criminal trial with the potential for you to be exposed to prejudicial publicity. For that reason, as you know, you’ll all be sequestered for the duration of the proceedings until a verdict is reached. Fortunately, we’re anticipating a relatively expeditious trial.”
The jury had already checked in at the Best Western Plus Executive Inn, on the government’s tab. For some it was an adventure, for others, a pain in the ass. They were all on the same floor, and U.S. marshals were posted at the elevators and stairwells to make sure there were no visitors or unscheduled departures.
“You must not talk about the case with others who aren’t on the jury, even your spouses or families. You mustn’t read about the case in the newspapers, and you should avoid radio and television newscasts. You must not conduct any research whatsoever on the internet about this case; do not use Google; do not email, text, or blog about the case. You may not use Facebook, YouTube, Twitter, or any other social network while the trial is underway. Your verdict must be based on nothing but the evidence and law presented in this courtroom.
“It appears that we’re set to begin. Ms. Marconi?” He looked at the U.S. attorney with a warm smile, as though she were a close friend.
Lisa Marconi closed the binder on the table in front of her and stood, hands clasped behind her back. She had no need of a script, or even notes. This trial could make or break her career, and she was ready. She wore a crisply starched white shirt under a matte black suit, impeccably tailored to suppress but not eliminate the contours of her body. Professional. Attractive, but not quite sexy. Her long black hair, streaked with just enough gray to suggest years of courtroom experience, hung in a ponytail that fell halfway down her back.
“Thank you, your honor. Ladies and gentlemen of the jury, this is a very straightforward case. The facts are not in dispute. The defendant has admitted to committing the despicable crimes that he’s charged with: use of a chemical weapon and terrorism.
“Both of the crimes have various elements. It is our burden to prove each element for both of the charges. We will meet that burden. In fact, we’ll make your job easy by presenting ample evidence to convince you beyond any reasonable doubt that the defendant”—she paused, turned, and pointed a finger at Michael—“is responsible for these crimes.” Marconi spoke forcefully, directly, implying she had no need for lawyer’s tricks. The unvarnished facts were on her side and would suffice to compel a guilty verdict.
“Acting alone, like the Unabomber—”
“Objection!” The jurors all turned toward Quarrington, some of them looking startled. “Your honor, the reference to a convicted terrorist is highly prejudicial to Dr. MacDougall. This constitutes egregious prosecutorial misconduct.” Although he appeared physically frail in his wheelchair, Quarrington still had a booming bass voice that commanded authority. Counsel was supposed to stand up to address the court but Quarrington sat in his wheelchair and merely waggled a raised finger between Marconi and Klinsmann. Several jurors looked at him with newfound interest.
“The objection is sustained. Jurors, you will disregard the prosecution’s comment,” said Judge Klinsmann, frowning.
Quarrington smiled. He had interrupted the flow of Marconi’s opening and, in the judge’s first ruling in front of the jury, he had sided with the defense.
Marconi resumed, unruffled. “Acting alone, the defendant single-handedly plotted, planned, and then poisoned the drinking water of the people of Seattle with an extremely toxic chemical. A chemical called perchloroethylene, or PCE. A chemical that the defendant stole from the hospital where he worked. A chemical that causes cancer, birth defects, kidney damage, and liver damage. That impairs the functions of the brain and central nervous system. In the hospital, this chemical is used as a solvent and for cleaning sheets, towels, and other linens. In the defendant’s hands, PCE was transformed from a dry-cleaning fluid into a deadly chemical weapon. He illegally trespassed into the restricted zone of the Chester Morse Reservoir, which provides drinking water to millions of Americans. He poured gallons of this extremely toxic chemical into the reservoir and then fled the country, escaping through Canada and hiding in the Congo, deep in Africa, ten thousand miles from the scene of his crime. Millions of innocent people were exposed to a hazardous, potentially deadly substance. Mothers and fathers. Sons and daughters. Hundreds of millions more were terrified that this could happen in their city or town, no matter how big or how small. No one in America felt safe.”
Marconi paused, letting the jury absorb her words. Michael squirmed in his seat, humiliated and shamed. He struggled to meet the eyes of the jury, the judge, the media, and the public as they scrutinized him. Quarrington had emphasized the importance of being himself, being alert, interacting with the defense team, and maintaining eye contact, especially with the jury. Jurors aren’t supposed to make snap judgments based on appearances alone, but many ignored this unwritten rule. It all seemed surreal. He’d gone from being a heroic doctor volunteering for a globally renowned humanitarian aid organization to a defendant in a criminal proceeding that could result in the death penalty. Yet he’d done this to himself.
Marconi sketched the broad outlines of the prosecution’s case. “Although we often take it for granted, drinking water is vital to life. More than half of your body weight is water. Human beings can’t survive for more than a few days without it. Despite the best efforts of utility companies, public health authorities, police, and emergency workers, hundreds of thousands of Seattle residents consumed water contaminated by the defendant. Thousands of men, women, and children experienced gastrointestinal illness. You will hear testimony from medical experts that many people were hospitalized and several people died. In addition to the physical harm, the psychological damage inflicted not only on the people of Seattle but all Americans, in being afraid to drink water from their taps, in fearing more terrorist attacks, is incalculable.”
“Objection,” the booming bass of Quarrington’s voice again resonated around the courtroom. “Psychological damage is irrelevant to these proceedings.”
“Overruled,” said Klinsmann. “I’m going to grant Ms. Marconi some leeway.”
It was Marconi’s turn to flash a quick smile at the jury. “Terrorism, as defined by the laws of America, has two components. First, it must involve one or more of a range of heinous activities, prohibited by federal criminal law, including the use of chemical weapons. Chemical weapons are defined as toxic substances that, through their effects on life processes, can cause death, temporary incapacitation, or permanent harm to humans or animals. The second aspect is that terrorism must include actions calculated to influence the conduct of government, either by intimidation or coercion. We will provide evidence proving that this is exactly what the defendant attempted to do.
“Why did the defendant poison Seattle’s water? What was his motive? He was trying to blackmail the USA into spending $100 billion on foreign aid. One hundred billion dollars, during these economically challenging times, on top of the tens of billions America already dedicates to helping the world’s poor. The defendant warned that he would poison the drinking water of another major American city with an even more toxic substance unless his demand was met within forty-eight hours. Only the truly extraordinary diligence of our intelligence and law enforcement communities in tracking down and arresting the defendant prevented even greater suffering.”
Several of the women in the jury nodded every time Marconi made a point.
“The defendant’s attorney wil
l talk about the problems facing Africa, in a misguided and disingenuous effort to deflect your attention from his client’s crimes. To be sure, the continent of Africa faces monumental challenges. Africans deserve our sympathy and support. However, this case is not about Africa. This case is about the laws of America, crimes that the defendant committed in America, and suffering inflicted by the defendant upon the American people. Justice demands nothing less than his conviction on both counts of the indictment.”
Marconi’s pace slowed as she hammered home her final points. “Quite frankly, to allow this defendant to go free, after the criminal acts that he committed, would deal a terrible blow to our justice system. An acquittal would encourage anarchy, chaos, and vigilantism. If every person with an ax to grind or a grudge against the government could take justice into his own hands without fear of punishment, then the rule of law would collapse, and the law of the jungle would return.” Marconi hesitated, her eyes resting briefly on each of the jurors. “Your solemn responsibility, your sworn duty, is to listen to the evidence, apply the law to the facts, find the defendant guilty, and protect the American way of life from terror attacks. Thank you.”
Marconi was a formidable orator, at the top of her game. The skillful way she told the story, although she twisted the facts, made even Michael almost want to agree with her. It was like seeing himself distorted in a funhouse mirror, grossly fat or absurdly thin, yet still recognizable. He glanced at the pair of attorneys in whom he was entrusting his liberty and his life. Compared to Marconi, Quarrington was over the hill and Yavari was an unproven rookie.
“Mr. Quarrington, would you like a recess before making your opening statement?”
“No thank you, your honor. On behalf of Dr. MacDougall, I would prefer to commence forthwith.” Quarrington didn’t want the jurors going out of the courtroom for a coffee break thinking about Marconi’s version of how the trial would unfold. He rested his hand lightly on Michael’s shoulder, a calculated gesture, before he slowly guided his wheelchair out from behind the counsel table and into position directly across from the jury.
“My fellow Americans, Dr. Michael MacDougall is an excellent surgeon, a humanitarian, and a man of unusual compassion. His constitutional rights have been repeatedly and inexcusably violated by the Government of the United States. He was arrested without charges. Denied access to counsel. Preventing from making a single phone call. His wife, who played absolutely no part in these events, was arrested and kept in the dark about his whereabouts. Indeed, she was unable to determine whether her husband was even alive.
“Dr. MacDougall was kidnapped by American law enforcement personnel, with the complicity of the highest levels of our government. He was tortured savagely in a foreign country by our very own intelligence agency, while senior government officials turned a blind eye.” There was a cacophony in the previously quiet courtroom.
“Objection!” Marconi shouted over the din. “Your honor, counsel for the defense raised these groundless allegations in pretrial motions and pledged not to raise them at trial. This is totally inappropriate.”
“I agree,” said the judge with a frown. “The jury will disregard the last two sentences of the defense’s opening statement. Mr. Quarrington, you are on notice. Proceed with caution.”
Quarrington shrugged and continued. “Worse yet, an assassination attempt was perpetrated against him while he was in prison awaiting this trial.”
“Objection. Same grounds, your honor.” Like a jack-in-the-box, Marconi popped up from her seat. Reporters took notes as fast as their fingers and thumbs could fly.
“Same ruling. Mr. Quarrington, any more of this nonsense and you will be bunking with your client tonight.”
Quarrington bulldozed ahead. “Despite these egregious injustices, my client sits before you today with complete confidence in your ability to fairly adjudicate these proceedings. He trusts that you will not be swayed by the prosecution’s siren songs of terror and vengeance. Dr. MacDougall anticipates that by the end of this trial you will understand why he felt compelled, as a human being, to undertake the seemingly inexplicable actions with which he is charged. He bore witness to human suffering and deprivation to extremes that few of us, mercifully, will ever see. The pain, the agony, and the anguish that Dr. MacDougall witnessed in the Congo is beyond our imagination, more horrific than our worst nightmares.
“I have practiced law for forty-seven years, including twenty-eight years teaching at Harvard, Yale, Berkeley, and the University of Washington. I retired eight years ago because of health problems but could not resist coming out of retirement to defend Dr. MacDougall. It is one of the most unusual cases that I have seen, and my client is the least likely defendant I have ever encountered.
“Most criminal lawyers will challenge all of the evidence brought forward against their clients, even if they know that the evidence is accurate, in hopes of being exonerated on a technicality. Dr. MacDougall has instructed me not to conduct his defense in such a manner. For example, we will not be challenging the admissibility of the confession referred to by my friend Ms. Marconi, despite the fact that it was extracted by torture and is therefore tainted. Most defense lawyers will seize upon any minor hole or flaw in the prosecution’s case in an effort to sow doubt in the minds of the jurors. Dr. MacDougall has instructed me to refrain from using those legal tactics. We are not making a motion for transfer of the case to a different venue despite the prejudicial publicity this case has attracted. We waived the defendant’s right to a preliminary hearing. We brought no pretrial motions to suppress evidence. I have complied with Dr. MacDougall’s requests, and the result will be a highly unusual legal proceeding.”
Quarrington paused. Contrary to conventional legal wisdom, Quarrington did not speak to the jury as though addressing a group of grade-school students. He used long words, extended sentences, and formal grammar. Although juries might be put off initially, by the end of a trial they would appreciate that Quarrington was, in effect, recognizing their intelligence. “Please bear in mind that we have not thrown in the towel by waiving and relinquishing these opportunities. Instead, we have expedited the judicial process in an attempt to focus on the fundamental purpose of this trial, indeed any criminal trial, and that is to seek justice.
“Dr. MacDougall is the kind of fellow who made his parents proud. He grew up in Seattle . . .” Quarrington sketched Michael’s life history and his résumé in complimentary terms.
“Contrary to the assertions of Ms. Marconi, Dr. MacDougall was neither reckless nor cavalier in his actions. He did extensive research and relied on his medical expertise to select a chemical that would cause no serious harm to human health when a limited quantity was added to a massive reservoir. His intention was not to hurt people but to draw attention to the fact that millions of children are dying deaths that are out of sight and out of mind for Americans. He immediately notified the authorities about what he had done, and he asked merely that America fulfill its moral obligation to the children of the world.
“Despite the allegations made by Ms. Marconi, Dr. MacDougall is not a terrorist or even a criminal. Under our legal system, a person is innocent until proven guilty, and every person has the right to put forward a defense. Dr. MacDougall has a complete defense to the charges, and it is called necessity. In essence, the necessity defense means this: a person is justified in performing otherwise illegal activities in order to prevent a greater evil.
“This defense dates back to 1884. A British merchant ship was sunk in the Atlantic Ocean, and a number of sailors on board escaped in a life raft, only to spend weeks adrift, lost, without water, shelter, or food. Their efforts to catch fish proved futile and they were reduced to drinking their own urine. Finally, in their darkest hour, they made a pact to kill and eat the weakest among them, a cabin boy named Richard Parker.” The majority of the jurors, engrossed in Quarrington’s storytelling, looked horrified. He continued, undeterred. �
��The sailors carried out their dark agreement. Four days later their life raft was rescued, and their harrowing misdeeds came to light. The men were charged with murder, but pled not guilty, arguing that their actions, while admittedly illegal, were necessary for them to survive. The court acknowledged that the necessity defense existed in theory but held that the accused men had acted rashly by killing and eating the boy when they still had a chance of being rescued.
“In more recent times, the defense of necessity has been accepted by judges and juries in a wide range of cases involving political controversies. Protestors at nuclear power plants in Oregon in 1977, Illinois in 1978, and California in 1979 were arrested and charged with criminal trespass. All were acquitted based on the necessity defense. Students protesting the CIA’s plans to recruit employees on the campus of Brown University were arrested and charged with trespass, mischief, and obstruction of justice. They argued the necessity defense, and brought in experts from across the nation, including former attorney general Ramsey Clark, to establish that the CIA was involved in actions that undermined American security. The students were acquitted. Most recently, a group of Greenpeace protestors were found not guilty of trespassing on the grounds of a coal-fired power plant based on their argument that their actions were necessary to address the global threat posed by the climate crisis. In addition to these cases, the Model Penal Code confirms that the necessity defense is an important element of American criminal law.
“The case before us today is perhaps more compelling than any of the examples that I have described. Dr. MacDougall didn’t kill anyone. Not a single person. Dr. MacDougall didn’t inflict any long-term injury or illness on anyone. But the evil that he sought to prevent is truly cataclysmic—the needless deaths of millions of children annually from preventable and treatable causes. His goal was to save their lives.
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