“Your honor, this man has falsely accused one of America’s great heroes of being a child molester. Decency itself has been wounded. And cries for redress in the amount of 1.3 million” says the counsel for Excelsior.
When the judge looks to the defense table, he is surprised to see Edwin Windsor was writing a check.
“Does the defense have anything to say?” the Judge asks Topper.
“As much as it pains me to say it your honor, we have no argument,” says Topper.
Edwin rises and carries the check to the prosecution. He says, “You win.”
The attorney looks at it and says, “It’s too much. You made it out for 1.4 million? Why would you do that?”
“Call it a tip,” says Edwin as he leaves the courtroom.
“Well, I don’t know what just happened, but this very strange case is closed,” says the Judge as he bangs his gavel.
“Why would you do that?” the government attorney asks Topper.
“‘Cause now, my walleyed friend, we have precedent. If Excelsior doesn’t need to reveal his true identity to sue us, then we don’t need to know his true identity to sue him.”
The attorney blinks twice, then realizes that Topper is right. “Oh my God. What have we done?”
“Bingo Walleye, ya screwed up.” Topper looks towards Edwin. “He’s not a trial lawyer. But he’s very, very smart.”
“Call the judge back,” the attorney yells, “We’ve got to reopen the case.”
“Here’s a copy of the papers I already served your client. I’ll see you in court. You’ll see me in your nightmares.”
Chapter Forty-Seven. Backrooms
There are those who think that the business of the law is conducted in the open air of the courtroom. That every discussion and decision is held in the hallowed halls of justice amid august assembly with wise fathers in togas chiseling words in stone so that Justice might be preserved through the ages. But it is not so. That’s the nickel tour. That’s civics class. That’s the “Babies-come-from-Storks” explanation. And just like the miracle of birth, the reality of the manufacture of justice is much, much messier.
The trial is just the tip of the iceberg. Here’s a peek below the waterline.
R. Lee McEllroy, representing Excelsior, comes from a long line of silver-tongued devils. He is well respected as a defense attorney, and highly regarded as a fixer. Topper knows him well, and has, at various times, carried a marker on him for debts he has acquired from him in a regular card game run by the Clerk of Court. McEllroy is an ideal choice as local counsel for the government’s defense of Excelsior.
At first, R. Lee is a little in awe of Excelsior. After all, this is the man who had stopped the Sprawl invasion almost single-handedly. But as soon as the great man opens his mouth, McEllroy realizes that he is a client just like any other. Maybe more so.
“It’s bullshit that I even have to be here,” Excelsior says, “What good are you if you can’t even get me out of this bullshit court case?”
“Mr. Uh, Excelsior, uh, we’ve passed the point in the process where the case can be dismissed by the judge. Since you’re not willing to settle –"
“It’s not me, it’s him. Them, the government.” With a jerk of a gauntleted hand, he indicates Gus sitting the corner. Gus hooks a lung rocket in the corner of his ragged mouth.
“Uh, there’s no smoking in my office,” says McEllroy.
“Of course, we could settle,” Gus says as he lights up anyway. He takes a long draw, then rolls the cigarette around between his thumb and forefinger. “But then we’ll just have to keep paying. And paying. And paying. No, if we are going to fight this fight, we’re going to fight it and win it so it stays won. So nobody else ever thinks to come looking for money.”
“I’m not going to do it,” says Excelsior.
“What do you mean you’re not going to do it?” asks Gus. “You don’t have to do anything. You just show up in a nice— I mean, your suit and sit there. It’s got to be the easiest thing I’ve ever asked you to do.”
“It’s a sham. What are you going to do if I don’t? Are you going to lock up me? With what? Where? I’m tired of this bullshit. That Cromoglodon thing destroys buildings and kills people and you leave him alone. Why? Because he’s powerful. He gets to do whatever he wants because he’s powerful. And I don’t get to do anything I want? It’s not fair. It’s just not fair.”
“It’s not fair,” Gus says, mocking Excelsior. “You sound just like a three-year old girl. Pull it together. Pretend like you’re a man.”
“Screw you and your tough-guy talk. It’s all talk. That’s all it is. What are you going to do tough guy? Who’s gonna stop me? You? Him?”
R. Lee McEllroy swallows uncomfortably. He wishes he were elsewhere.
“Don’t let him scare you. He’s an idiot,” says Gus. McEllroy is not reassured. “Go on. Get out of here. I need a word in private with your client.” McEllroy scurries from his own office.
Gus stubs out his cigarette on the sole of his boot. Then he looks at Excelsior for a long time. Excelsior breaks first.
“What? Why are you looking at me and not talking?”
“You know, soon I’ll be dead. And since you don’t seem to be getting any older, or wiser, I think you’re going to outlive me. Outlive me and a whole bunch of others. And if you live long enough you’re gonna be free of it. And then you can do what you want.” Gus struggles to rise from the plush leather chair. His entire frame quivers with anger, “But I know what you did. I was there! We gave you your pass. We gave you the chance to earn it. To prove you were worth it.”
Excelsior gets a faraway look in his eye and sinks into a couch. Gus advances on him.
“So you can play hero all you want. But I know. And unless you get your head on straight, unless you get back in this game, everybody else is gonna know too. You read me boy?”
After a moment Excelsior nods.
“You want that? You want all those people out there to know what kind of a person you really are?”
Excelsior shakes his head.
Gus walks to the office door and calls McEllroy back. “It’s all right son, I gentled him down a might. He’ll behave now.”
Chapter Forty-Eight. A Reasonable Disagreement
“All rise for the honorable Judge Perkins.”
As the packed courtroom gets to its feet. Topper looks over at Excelsior. Jesus, he looks good in that silly costume. Red, white and blue. That full head of hair, strong jutting chin. He looks like all that is best about America stacked up in one place. And the sonofabitch is tall too. Where does this guy get off looking so young? He has to be 70 at least?
In that moment, Topper regrets taking the case. He feels like he is going to throw up. The jury is already swooning over Excelsior. This is hopeless.
“Would the counsel for the plaintiff please rise?” says the Bailiff.
A flash of anger brings Topper back to himself. “Larry, if you got a real job, maybe you could buy a new joke,” Topper fires back.
The judge enters the courtroom. All business. Judge Perkins is not a man to tolerate nonsense. This kind of judge has cost Topper in the past. But this time Topper thinks it will work in his favor. If anyone is going to make nonsense speeches in this case it will be Captain Red White and Blue. Or better yet, his overblown legal counsel, McEllroy.
Topper looks over, and up, at Edwin. His tall friend looks positively Gothic in this setting. His grey suit is immaculate. He looks like the agent of all the ordinary, right and regular commerce of the world; the everyday events and assurances that keep it all on course.
Edwin’s exceptional mind sees the law as a complicated intellectual machinery. It was the right approach for contracts and corporate law, but, not for litigation. Topper thinks that Edwin has never really been able to get his mind around litigation. Edwin is all finesse. He doesn’t realize that sometimes facts make sense only when you when you beat them into shape. And that is what litigation is for.
Edwin certainly doesn’t understand what role appearance and opinion play in the courtroom. How easily and subtly a jury can be swayed/seduced from one point of view to another. No, it was all an equation to Edwin. A very complicated and useful equation. Like a machine. Input here, output there. But this view left no room for magic. And legal magic is what Topper does best.
As he looks back and forth between Edwin and Excelsior, his stomach settles down. He remembers why he took this case. And how he can win it. Next to Edwin, this guy looks like a cross between a clown and a boyscout. Both are great figures for children. But for adults, for the modern world, for the continued progress of civilization, boy scouts are obsolete.
He also wants to do well by his friend. Edwin and Topper are very different. But the world never really fit either of them. And misfits have to stick together, don’t they? Or else all the ordinary people will band together and stomp them flat.
Sometimes Topper feels very stupid around Edwin. But this, this trial, is something that he can do. And do better than the tall man. This is Topper’s chance to come through. To do his part. To pay back all of the favors Edwin has done him over the years. The guy has thrown him an entire practice worth of business. Topper owes. And this is his chance to make good.
“Gentleman,” begins Judge Perkins, “I’m going to give both of you the same advice — I don’t care who you are, or the circumstances of how you got here. This is a court of law. You will respect it as such. As prejudicial to my character as it will be to hold such a great servant of this country as Excelsior to account at my bench or in contempt of this court, I will do it. Here we hold men equal before the law.”
Excelsior nods gravely.
“And the plaintiff, Mr. Windsor. This is an unusual, one might say outrageous, suit you bring. But you have grievances and they will be heard. But I instruct you and your counsel to remember that we are not putting a hero on trial. We are settling a civil matter. It is a question of responsibility and, perhaps, compensation.”
Edwin nods.
“All right then.” Judge Perkins sits. “Commence.” Perkins pounds the gavel a few times. “Court’s in session.”
“Ladies and Gentleman of the jury,” Topper begins with a flourish of the hands. “My client is an ordinary, hard-working businessman. Perhaps his talents are unusual. He does have clients that are far from ordinary. But he is a businessman, a man of trade, if you will. He has never been convicted of any crime. In fact, the only time he has ever been charged is for an illegal right on red. And the case was thrown out, because while the turn was, in fact, illegal, the sign that indicated this to the general public had fallen into disrepair.”
“Objection! The counsel for the defense can’t see how this can possibly be relevant to the matter at the bar.”
“Your honor,” Topper answers with infinite courtesy, “We all know what an upstanding member of the community Excelsior is. I am trying to emphasize that, in the eyes of the law, these two men are exactly the same. My client is tax-paying, law-abiding, as honest as the day is—”
“Enough,” says Judge Perkins. “You’ve made your point. Objection overruled. Move along.”
But Topper has no desire to move along. Because when he said, “As honest as the day,” Excelsior had snickered. Topper’s not about to let that go. “Excuse me, I didn’t quite catch that,” he says to Excelsior
“My client didn’t say anything,” says McEllroy.
“Well of course you’d defend him. You’re his defense attorney aren’t you Lee? Can you read that back from the record?” Topper asks the court reporter.
“I have it as a snigger,” says the court reporter.
“A snicker?” asks Topper.
“No, no a snigger. Two g’s”
“A snigger? Really?”
“Your honor please,” protests the defense.
“I thought you would never ask.” The Judge Perkins drops his gavel. “Objection granted.”
“He didn’t object,” objects Topper.
“Well then I’m objecting. Strike this nonsense from the record.”
“Your honor, he laughed at my client.”
“Sniggered,” says the court reporter.
Judge Perkins’ head swims a little. Not five minutes into the trial and it was already falling apart. “Sniggered, snickered or guffawed, I want it struck from the record! As far as I’m concerned and the jury is concerned, it never happened. You got it?”
Topper says nothing.
“Now would you like to continue with your opening statement or can we strike the rest of that from the record?” says Judge Perkins.
“I’d like to continue, if it please the court,” says Topper. The judge, beyond speech, waves his hand — get on with it already. “My client, is not a villain. He is not a criminal of any kind. Yet, for some reason, Excelsior has seen fit to treat him as one. We will show you how he has hounded my client. Destroyed his property. Assaulted his clients. Terrorized him and ruined his livelihood.
“That’s right,” Topper says with a close-to-the-ground-swagger, “He’s made it impossible for my client to make a living.”
“Objection! Your honor!,” says McEllroy. “Mr. Windsor works with known criminals, villains of the worst sort.”
Topper smiles. “Your honor, we will so stipulate. It is an agreed fact of this case that my client works with persons who are know to have a criminal record. But many people do. The law sees fit to deprive felons of the right to vote. Would the counsel for the defense also see fit to deny them professional services? Medical Care? Employment? Legal Counsel?
“The defense betrays a bitter prejudice of the worst kind. A prejudice that preys upon the disadvantaged and downtrodden of our society. Perhaps this prejudice is at the heart of Excelsior’s criminal actions against my client.”
Both the Judge and the defense team bristles. Topper moves on. “But that is not our case. That is not our concern.”
Topper walks back across the courtroom. “No, we’re going to show you that on May 15 at 2:45, Excelsior did willfully destroy the office of my client. And not just the office, the entire building, a valuable structure worth many millions of dollars.
“Excelsior claims to have been in pursuit of a dangerous felon. A man known as Lifto the Magnificent. Yes, the man had just committed a bank robbery. But he was on his way out of the building at the time Excelsior was attempting to apprehend him. And as such, there was no reason to pick my client’s place of employ as the site of this violently destructive takedown. He could have simply waited until Mr. Lifto was out on the sidewalk. There was simply no reason to destroy a perfectly good building. There was no reason that innocent people had to die in the process. No reason other than the purest malice.”
“Objection your honor. Counsel is exaggerating.”
“Your honor, if you will examine exhibit 34 you will find a statement from Mr. Windsor’s insurance company, complete with structural engineering assessment and a denial of claim on the basis that the damage was an “Act of Superpersons” and therefore, not covered. Exhibits 35 ‘a’ through ‘m’ are death certificates, including that of Mr. Windsor’s beloved secretary Agnes Plantagenet. This has wrought grave physic harm to my client and has created a very real climate of terror in his mind.”
“Objection overruled,” said the Judge.
“We do not seek to damage this… great man’s reputation. Far from it. First, we seek immediate injunctive relief. It is our hope that this court will see fit to place a restraining order on Mr. Excelsior that will prevent him from harassing my client any further. In addition, we seek compensation for property damage, emotional distress, and the defamation of character that comes from being the object of so mighty a hero’s aggression.”
Topper scans the jury. Some are with him, but a few aren’t buying it. Time for a little extra heat.
“My client has great respect for Excelsior. So do I. I looked up to him as a child and, due to unfortunate geneti
cs, I still do. But for one reason or another, this great man has lost his way. Ladies and Gentlemen of the jury, we must help him find it again. And the instrument of our assistance will be the law. An instrument directed by your good and fair judgement.
“And one more thing, ladies and gentleman of the jury. There is one more thing you should know. My client is willing — and has been willing — to settle out of court at anytime. And is also willing to agree to total secrecy about the whole matter, to protect the dignity of our great hero. The only thing preventing this timely resolution — the only reason this court has been convened and your private lives are being disrupted — is their stubborn refusal to be reasonable.”
R. Lee McEllroy gets up from his chair. He admits to himself that the midget is better than he expected. Perhaps even inspired. Now he will proceed with caution. He pinches the bridge of his nose, takes a deep breath, and begins.
“Reasonable. An interesting word, Ladies and Gentleman of the jury. A seductive word. Reasonable. After all, who doesn’t want to be reasonable? Likable. Nice. So as you decide this matter, I’ll ask you to use the standards of a reasonable person. In fact, that is exactly what the law directs you to do in this matter. Use the standards of a reasonable person, to determine, on the Preponderance of Evidence, how responsibility falls in these matters.”
He glares at Topper and Edwin and makes sure the jury sees it happening. “We’re going to show that there is nothing reasonable about the Plaintiff. In fact, the preponderance of evidence will show, that he has a long history, as they have just admitted, of consorting with the worst sort of criminal. Villains, supervillains whatever you want to call them. If you believe as one the earliest members of the supreme court did that, ‘society is a fabric, woven together from the threads of our common action’ then this man, Edwin Windsor, is the man, that most irresponsible of souls who finds the loose threads and yanks on them for his personal profit.”
How To Succeed in Evil Page 23