by Brad Meltzer
“Listen to yourself,” Lisa said, getting up from her seat to stand face-to-face with Ben. “You can’t redo every trial just because you would’ve done it differently. The jury heard the defendant’s testimony. They heard him say there was an alibi witness who he couldn’t get in touch with. They still convicted him of three murders. Just because a cop saw this mystery witness, that doesn’t mean the witness was really an alibi. Whether the policeman’s testimony was admitted or not, the alibi couldn’t be found. Seeing a person who could potentially be an alibi doesn’t add one iota of proof that an alibi existed.”
“But it does change the story the jury heard,” Ben said. “I’m not saying the policeman’s testimony would’ve proven the alibi, but it would’ve added some strength to the defendant’s story that a mystery man existed. Before you go to your death, I think you should at least get every opportunity to prove your story.”
“You just feel bad for this guy because you don’t like the death penalty as a solution,” Lisa said.
“That’s exactly right,” Ben said, cracking his knuckles. “I want to recommend Hollis take the case. If you don’t agree, I understand, but it’s worth it to me. If Hollis disagrees, the worst that happens is I look bad. Considering this guy’s life is at stake, I’ll risk it. If it makes you happy, I’ll put only my name on the memo.”
Lisa shook her head and put her hands on her hips. “Do you really feel that strongly about this asshole?”
Ben nodded.
“Fine, let’s write the recommendation,” Lisa said. “If Hollis disagrees, though, I kick your ass.”
Returning to the computer, Ben smiled. “Deal.”
“Hurry!” Lisa yelled at five-fifty A.M. Racing out the door with the newly printed, thirty-two-page recommendation, Ben headed straight for the fax machine in Hollis’s private office. Twenty minutes later, he returned. “Can we be more tired?” he asked, smoothing back his now greasy hair from his forehead.
“I assume the fax went through okay?” Lisa asked. The bags under her eyes highlighted her own exhaustion.
Ben nodded and sat down next to her on the sofa.
Squinting up at her co-clerk, she said, “You really have a wussy beard.”
“I do not,” he said, running his hand across his light stubble.
“You do too. It’s not a character flaw. It just means you’re not a real man.”
“You wish you knew how much of a man I am,” Ben said, smiling.
An awkward silence filled the room. “You just flirted with me,” Lisa said.
“What are you talking about?” Ben laughed.
“You did. You just flirted.”
“I did not.”
“Then what was that ‘You wish you knew how much of a man I am’? You might as well have said, ‘Check out my meat.’”
“That was it. You got me,” Ben said sarcastically. “Hey, Lisa, let’s end these games. Check out my meat.”
“You wish I would,” Lisa said with a smirk.
Ben pointed at Lisa. “Don’t pull that with me, woman! That was you flirting with me. You just did it back!”
“You’re crazy,” Lisa said, laughing. “Listen, let’s just forget this. We’re not hooking up. We’re both tired, and I’m in no mood to let mental exhaustion make me do something I’ll regret.”
“Exactly.” Ben tilted his head back. “Though I promise you no one has ever regretted it.”
“Lisa, wake up!” Ben said, shaking her awake.
“Wha?” she said as she sat up on the red sofa. “What time is it?”
“It’s seven-thirty. I can’t sleep. I keep thinking about this defendant. What if Hollis denies the stay because we did a crappy job? That means we killed him.”
“We didn’t kill anyone. We did the best we could and we made a sound recommendation.”
“You think so?”
“Definitely. We did what we thought—”
The phone rang.
Ben jumped for it. “Hello? Hi, Justice Hollis. Did you get the fax okay?” Ben fell silent and Lisa slapped his arm, trying to elicit a reaction. “No, we understand,” Ben said. “Yes, we know the process. Okay. I guess we’ll see you in a month or so. Have a good day.” Hanging up, Ben paused, looking at Lisa with a blank stare. “That’s five votes! We got stayed!” he screamed.
They embraced and jumped around the office, chanting, “We got stayed! We got stayed!”
“I can’t believe it!” Lisa said. “What else did he say?”
“He said he enjoyed our memo. He said the argument was persuasive, our analysis was sound. He said we used the word ‘moreover’ too much, but he thought we were right on point. He’s already called the governor’s office in Missouri. We just have to make all the preparations to hear the case.”
“I can’t believe it.”
“And y’know what the best part was? Hollis actually said, and I quote, ‘These trial courts are a fuckin’ pain in the keister.’”
“Hollis said ‘fuckin’?”
“Right to me,” Ben said with a wide smile. “This is a great fuckin’ day.”
Chapter 3
STANDING IN FRONT OF ARMAND’S PIZZERIA, BEN enjoyed the cool late October breeze. As summer officially ended, so did Washington’s unbearable humidity. Without his jacket, and with his shirt sleeves rolled up to his elbows, Ben relished the quiet that blanketed the area. Already forgetting the green of summer, he stared at the brown and orange hue that decorated the trees along Massachusetts Avenue. Relaxed, he waited for his lunch companion. After a few minutes, he felt a tap on the shoulder. “Ben?”
“Rick?” Ben asked, recognizing the voice of Justice Hollis’s former clerk. Rick wore an olive-green suit and a paisley tie. His most noticeable features were his eyes, puffy and slightly bloodshot. With thin, blond hair that was combed to perfection, Rick was tall and rangy and older-looking than Ben had anticipated. “It’s nice to finally have a face to put with your voice,” Ben said as they shook hands. “After all the advice you’ve given me in the last two months, I figured it was time to find out what you look like.”
“Same here,” Rick said as they walked into the restaurant. “So how has Hollis been treating you?”
“He’s fine,” Ben said as they sat down at a table in the corner. “It’s been about a month and a half since he got back from Norway, so I think I’m finally used to his idiosyncrasies.”
“He can be extremely odd, don’t you think? I never understood why he would write only with pencils. Do you think he’s allergic to pens?”
“I think that’s just part of his personality,” Ben said. “In his mind, nothing is written in stone; it’s all changeable. I just wish he wouldn’t eat the erasers from his pencils.”
“He still does that?” Rick laughed. “That used to make me sick.”
“It’s one thing to eat a clean eraser. I’m all for clean erasers. But he gnaws on the dirty ones. One time I saw him erase half a sheet of paper. There was rubber fallout all across the paper and the eraser itself was pitch-black. He put that sucker right in his mouth and started chewing. It came out with nothing but metal showing. His teeth were all black, it was nasty.”
“Ah, yes, I do miss those days,” Rick said, looking down at the menu.
“Don’t even bother with the menu,” Ben said. “There’s only one thing to get here.” Ben pointed to the unlimited pizza bar that was Armand’s specialty. “All the pizza you can eat for only four ninety-nine. It’s just about the greatest thing in the city as far as I’m concerned. I can’t believe you never heard about this place.”
“I clearly missed out,” Rick said, surveying the various pizzas.
After giving the waiter their order, Ben and Rick walked up to the pizza bar and grabbed three slices each. When they returned to the table, Ben said, “Meanwhile, thanks again for the advice on the Scott case. I didn’t realize Hollis was so adamant about ruling for defendants on those.”
“Our fair justice has never seen a Si
xth Amendment case he didn’t like,” Rick said. “By the way, how did that death penalty case turn out?”
“You know I’m not supposed to tell you that,” Ben said, forcing a slight laugh. “We signed an ethics code—everything’s confidential.”
“I signed the same agreement,” Rick said, folding up a slice of pizza covered with onion and garlic. “And I’m still bound by it. Believe me, I know what it’s like to sit in those chambers. The responsibility never ends.”
Ben looked over his shoulder, then leaned over to Rick. “We’re working on the dissent. The justices voted five to four to fry him. It was a heartbreaker.”
“Hey, don’t let it get you down,” Rick said. “You guys did a great job in setting up that case. You can’t—”
“I know, I can’t win them all,” Ben said. “I just wish we could’ve saved that guy. He got screwed by the trial court.”
“He’s not the first, and he’s certainly not the last,” Rick said. “So what else are you working on? What’s happening with the CMI merger? Doesn’t that come down next week?”
“Actually, it probably won’t come down for another few weeks. Blake and Osterman asked for more time to write their opinions. You know how it is—merger cases always wind up confusing everyone. It takes forever to sort through all the regulatory nonsense.”
“So who wins?”
“It was actually pretty amazing,” Ben said, once again checking over his shoulder. “When the justices were voting in Conference, it was five to four against CMI. At the last minute, Osterman took Dreiberg out of Conference and into his chambers. According to Osterman’s clerks, Osterman then convinced her that the regulations ran in favor of CMI, making the merger with Lexcoll completely legal under the Sherman Antitrust Act. Charles Maxwell is going to skip to work when this decision comes down. Rumor says he’s spent well over five million just on legal expenses to get the case up to the Court.”
“Any idea what made Dreiberg switch?”
“None. You know how Osterman is. He probably leaned on Dreiberg intellectually and Dreiberg gave in. It’s hard for the newest justice to stand up to the chief justice.”
“Especially when she’s a woman,” Rick said.
Surprised by Rick’s comment, Ben said, “I wouldn’t say that. Even if Dreiberg were a man, she’d have a hard time facing Osterman head-on.”
“I guess,” Rick said.
“What time is she coming over?” Nathan asked, polishing his shoes on the living-room coffee table.
“She should be here any minute.” As Ben was working on his own shoes, he noted Nathan’s meticulous rubbing and buffing. “How about I just pay you to do mine?”
“This is a passing of tradition, boy,” Nathan said. “From father to son. From son to friend. Polishing shoes is a part of life.”
“I can’t believe I’m doing this,” Ben said, rubbing the black polish into the loafer. “I feel like my grandfather. I mean, only old people shine their own shoes. I’m probably aging as we speak.”
“Age has nothing to do with it,” Nathan said. “I’ve been self-polishing since I was twelve.”
“Yeah, but you also iron your socks.”
“Just my dress socks,” Nathan corrected. “As if you’re one to speak.”
“Don’t give me that,” Ben said. “I may be organized, but you’re King Anal.”
Nathan brushed the side of his shoe and added a little spit. “In your dreams.”
“Is that why your credit cards are alphabetized in your wallet? Or why none of the clothes in your closet can ever touch each other?”
“I just want everything to have its own personal space,” Nathan explained.
“Sure you do—and it’s not because you’re a freak.” Staring at the loafer on his right hand, Ben added, “If Lisa saw me doing this, she’d have a field day.”
“I can’t believe you still haven’t brought her by.”
“I think you’ll really like her,” Ben said. “She’s got spunk.”
“Then why don’t you date her?”
“I can’t,” Ben said. “We’re too close. It’d be like dating my sister.” He slipped his feet into his gleaming loafers.
When the doorbell rang, Ben went to answer it. “Nice place,” Lisa said as she stepped inside. “Better than I thought it’d be.” Against the far wall in the living room sat a large, deep-blue couch. A smaller striped love seat served as a way station for jackets, briefcases, wallets, and keys. Both had been bought with the proceeds from the roommates’ first paychecks in Washington. Over the larger couch hung an enormous, empty gold frame, surrounding a splattering of red, blue, yellow, and green paint, which Eric had painted directly onto the wall when they first moved in. In Eric’s words, it was “primary colors in action”; in Ben’s words, “a nice first attempt—if you’re into the whole Jackson Pollock thing.” In Ober’s words, “it didn’t suck.” Nathan proclaimed it “a disaster.”
Ben walked into the living room with Lisa and introduced Nathan, who was still polishing his shoes.
“Nice to finally meet you,” Lisa said. Sniffing the air and noting the shoeshine kit, she added, “If you guys want, we can go catch a movie. They have a senior citizens’ discount.”
“Make fun if you like,” Ben said.
“Oh, I definitely like,” she said, glancing around the room. “By the way, what’s with the coffee table?” The coffee table in the center of the room was actually a poster of Elbridge Gerry—according to Ben, the country’s worst vice president—mounted on a piece of Formica, resting on concrete blocks.
“That’s the most politically obscure coffee table in town,” Ben explained proudly. “Where else can you rest your feet on the face of someone who refused to sign the U.S. Constitution?”
“You’re really freaky sometimes, y’know that?” Lisa said. Walking past the glass dining-room table that was set up between the kitchen and the living room, Lisa entered the kitchen and approached a calendar attached to the refrigerator. “Is this a Miss Teen USA calendar?” she asked, noticing the logo under the picture of a young girl in an evening gown. Flipping through the months, she said, “This is pathetic.”
“I knew you were a flipper,” Ben said, watching her from the living room. “There are two types of people in this world: those who never look ahead on a wall calendar so they can be surprised every month, and those who flip ahead, racing to see all the months at once.”
Lisa headed back to the living room. “I thought you said there were only two types of people: spaghetti-twirlers and spaghetti-slurpers.”
Ben paused, then eventually said, “Okay, there are four types.”
Suddenly, Ober walked in the door. “I’m home! Is the lesbo here yet?”
“Actually, there are five types,” Ben said.
As Ober approached Lisa, Ben shut his eyes and prepared for disaster. “You must be Ober.” Lisa extended a hand. “That’s funny. Ben said your palms would be much hairier.”
As Nathan laughed, Ober said, “Really? He said you’d be more butch.”
“He said you couldn’t walk upright,” Lisa countered.
“He said you could pee standing up.”
“Cute,” Lisa said. “He said you didn’t have opposable thumbs.”
“I don’t get it,” Ober said, stumped. “What’s an opposable thumb?”
“If you didn’t have them, you’d be hanging out with monkeys. Or reptiles. Maybe bacteria. Lower life forms—”
“Ooookay, I think we get the idea,” Ben interrupted, stepping between his two friends. “I can see you two will get along great. Now what are we doing for dinner?”
“I thought Lisa was cooking for us,” Ober said, taking a seat next to Nathan on the large couch. “No—that’s right—she was going to fix my car.”
“Don’t start,” Ben warned. “How about we order in some Chinese?” With a nod, the three agreed and Ben called in the order. As he hung up the phone, Lisa reached into her bag. “Ben, I meant to s
how you this.” Pulling out a ten-page document, she explained, “I just pulled this off of Westlaw. It’s our first published opinion.”
Ben smiled as he read through the official document. “I can’t believe it! These are our words! This is the law!”
“I still don’t understand this,” Nathan said. “You decide the cases for the justices? Is that legal?”
“We don’t decide the cases. We just write the opinions,” Ben explained, waving the document in the air. “Every Wednesday and Friday the justices have Conference, where they vote on the cases. Based on our memos and research, they determine what their decisions will be. Say there’s a civil rights case before the Court. The justices vote and five think the defendant is liable, while four think he’s not. He’s therefore liable. But the decision doesn’t just get announced. The actual opinion has to be assigned and written. That takes from one to six months. So if Hollis is assigned the opinion, he comes back from Conference and says to me and Lisa, ‘We’re writing the majority opinion; the defendant is liable. I’d like to see you approach it from a Fourteenth Amendment perspective.’ We take a shot at it and hand it in to Hollis. Usually, he makes significant changes before it emerges in final form, but it’s still primarily our work.”
“And here it is,” Lisa said, pulling the document from Ben’s hands and giving it to Nathan. “Hollis decided this months ago, but it just came down this week.”
“Very impressive,” Nathan remarked.
“See this paragraph over here?” Lisa pointed to the page. “We worked on that for two days straight. Hollis didn’t want to overrule one of his earlier decisions.”
The doorbell rang. “Food. Food. Food,” Ober said, running to the door.
“It’s not the food,” Ben called out. “We just ordered.”
Ober opened the door, but was disappointed to discover Eric.
“Sorry, I forgot my keys at the office,” Eric said, running his hands through his uncombed hair.
“Perfect,” Ober said, excited. “C’mon, there’s someone I want you to meet.” Dragging Eric into the living room, Ober said, “Lisa, this is Eric. He’s a virgin.”