by Paul Heald
And what to make of the end of the play? Was the Judge suggesting that, like Medea, Jefferson should not be executed? If so, he had failed to give Arthur any legal grounds for writing an order granting a new sentencing hearing. He slumped in his chair and watched the clouds outside his window without coming to any earth-shattering conclusions about the play or Jefferson. He sighed and rang up Professor Kennedy and asked if he might enjoy discussing classical drama over a pitcher of beer after rehearsal that evening.
The rehearsal went badly as Arthur’s mind kept wandering back to Jefferson’s case and to Medea and to the worried look in Suzanne’s eyes the night before. To make matters worse, the year’s first round of pollen settled in his throat on the walk to the college, and the quick sip of water he snatched outside the rehearsal room went down the wrong way. Physically and spiritually distracted, he missed a cutoff in the first part of the King David.
“That was a beautiful note, nameless tenor,” Ms. Henderson remarked to the delight of the chorus. “So nice of you to sing it when we could all hear it.” His other transgressions were thankfully harder to pinpoint from the podium.
“Somebody’s breathing after measure 84.” She peered around the room. “There’s no breath marked there; you only breathe when I tell you to.”
When rehearsal was over, Arthur and Kennedy slipped out into the cool night air and made their way to the bar. The darkness provided a blessed escape from the hawk-like gaze of their director.
“So, why the sudden interest in Euripides?” Kennedy asked as they crossed the street in front of the Wild Boar. “Switching careers to ancient drama critic?”
“God, no. Medea is sort of related to a case I’m working on.”
The middle-aged professor gave him an intrigued look.
“But I’m not quite sure how. That’s why I want to talk to you.”
“Well, I haven’t read it since I was an undergrad, but I saw a production the drama department did about three years ago.” They walked to the back of the bar. The place was crowded, so they were stuck in the corner booth next to a pair of chain smokers.
“What did you think of the performance?”
“Well, it was kind of a weird feminist production. Jason was the villain and Medea the victim.” He sipped the beer and tilted the mug at Arthur. “I don’t think they changed the dialogue, but the way the lines were delivered and the costumes and casting, even the advertising, all had a very modern feel. Making it relevant to our times, that sort of thing.”
“But did you like it?”
“Not really. I’m an historian.” He straightened his shoulders and explained. “I want to imagine myself sitting like a good Greek citizen two thousand years ago, experiencing the cathartic purge of the tragedy.”
“Like a fresh bran muffin.”
Kennedy was a rather doughy fellow, with a quick smile that lit up his entire face and a nervous habit of brushing his sandy-colored hair out of his eyes with a flick of his left hand. He spoke with a faded northeastern burr but spiced his conversation with the vocabulary of the South. “Do y’all have a case with a woman who murdered her kids?”
“No, no women on the docket, thank goodness.” Arthur paused for a second, trying to figure out a way to get the professor’s opinion without specifically mentioning the Jefferson case. “Look, does Medea deserve the death penalty?”
“I don’t believe in the death penalty at all … so no.”
“God, you sound like Phil.” He sighed and tried another tack. “Just tell me … in a state which has the death penalty, like this one, is she the sort of killer who qualifies for it?”
He took a second to consider his answer and then peered over his glass. “Well, she’s a multiple child killer. If you’re going to have objective categories of really nasty murderers, that would be a logical place to start.”
“Yeah, but if you had made it to your second year in law school”—Arthur smiled—“you would have learned that in Woodson v. North Carolina the Supreme Court declared that fixed categories, where every murderer of a particular type gets the death penalty, are unconstitutional.” He paused and took a long draught of his beer. “You’ve got to consider the mitigating circumstances in each individual case.”
“Well, if you want me to play devil’s advocate.” The professor warmed to the task. “I’d say she’s a poor candidate for the death penalty.”
“How come?”
“First, I don’t think she killed her kids out of some sick pleasure of killing. She’s not a psychopath. All the evidence prior to the crime indicates that she loved them. She doesn’t kill for personal gain, monetary or otherwise. In fact, she’s pretty ripped up by the whole experience. She gets nothing out of it; it’s a very self-destructive act.”
“You mean she’s committing some kind of symbolic suicide? Killing her kids in despair? Why not kill herself too?”
“No, I don’t think that’s it. The murders are a last-ditch effort to communicate with Jason. None of her other attempts to get through to him worked. The murders are a sick way of expressing her pain.”
“Interesting theory, counselor.”
“Thank you”—he laughed and stood up—“but it’s actually my wife’s. We had a fight on the way home from the play, and that was her explanation why I shouldn’t hate it.”
He left for the bathroom, and Arthur cracked peanuts and contemplated the patterns in the veneer overlaying the table. Did Kennedy’s theory include mercy for Medea?
“Okay,” Arthur started before his friend could sit down, “I assume your wife doesn’t endorse child killing as a reasonable means of self-expression. Most murderers, at some level, have reasons why they kill, or at least we can guess at their motives. How do we tell which reasons deserve a life sentence and which ones don’t? Should we automatically give the death penalty to people who don’t seem to have any reason at all?”
“Pam was just trying to defend the ending of the play—why the gods help Medea escape to Athens rather than punish her.” He shrugged. “I’ll invite you over to dinner and you can ask whether she has an overarching theory about capital punishment.”
Kennedy changed the subject and described the candidate his colleagues wanted to hire to teach their law courses. He tried to explain departmental politics while Arthur’s mind stumbled over the blood-slippery terrain left by Medea and Averill Jefferson. Had Jefferson, like Medea, been reduced to communicating his pain through an outrageous act of violence?
According to the comments in his file, Jefferson had poor verbal skills. Because of his respect for his evangelical parents and their disapproval of his choice for a wife, he could not confide in them. Although he had hunting and fishing buddies, he had no close friends. His wife disdained his complaints and suspicions, treating him like a dumb beast, incapable of feeling. Violence might have become the only means to let the world know of his suffering. But the law must assume, he argued with himself, that violence is always a choice among other constructive options. It cannot let people off the hook just because they have a comprehensible reason for expressing their pain in a totally unacceptable manner.
Suzanne was not waiting for him when he arrived home, so he crept quietly upstairs, undressed in the bright moonlight, and crawled into bed. When he pulled back the covers, he was greeted by the sight of a voluptuous figure bundled warmly in black tights and a sweatshirt. He crawled into bed and positioned himself to receive the maximum force of the heat generated by her back. Suzanne grunted and muttered something unintelligible as he snuggled closely to her. Sneaking his left hand over the curve of her hip, he brushed the bottom of her sweater aside and ran the tips of his fingers over the lower part of her rib cage and in between her breasts.
“Unh, unh … sleepy,” she murmured, but his hands kept wandering until she grunted again, rolled on her back, raised her hips, and slipped off her tights.
Thirty minutes later, they were both wide awake. While he brushed his teeth, she slipped her night clothe
s back on and sorted out the tangle of sheets and blankets.
Thick dark hair streamed over the mound of pillows propping up her head. “Have you finished with your case yet?”
He spat into the bathroom sink.
“Having exhausted my legal sources, I spent the day examining the Euripides angle.”
“What?”
He explained the Judge’s strange request and summarized his conversation with Kennedy. She had seen the same performance and shared his wife’s sympathy for Medea.
“Fine, but how can you reconcile your total loathing of Jefferson with your sympathy for Medea?” He lay back down next to her. “They both commit horrible crimes in response to infidelity, and I’ll bet you a million dollars that if Jefferson and his wife had kids, he would have killed them instead of the little girl.”
“Now, that’s a novel approach”—she scowled—“defending a man by arguing that he would have preferred to kill his own kids.”
“You’re avoiding the question! Do we agree that Medea and Jefferson both killed to communicate the pain of being rejected by their lovers?” He propped himself up on one elbow to look more easily into her face. “Putting your revulsion aside, do you think Jefferson should die?”
Intelligent individuals are natural lawyers and Suzanne, no exception to the rule, responded with her own question. “Did you feel bad when you recommended that Gottlieb be executed?”
“Not at the time.” He thought about it a moment. “It’s irrelevant now.”
“Would you feel bad if you wrote the memo that got Jefferson executed?”
“I don’t know,” he admitted. “Should I?”
“What’s the difference Gottlieb and Jefferson? Just the number of people they killed?” He pushed himself upright and sat cross-legged across from her.
“No, it’s not just the number. The big difference is those creepy interviews with Gottlieb. He had this hungry part of him that enjoyed controlling someone’s life. Maybe all of us—or maybe just men—have this horrible little remnant deep inside. Instead of locking it away, he fed it.”
“What about Jefferson?”
Arthur shrugged. “He fell in love.”
She rolled over and looked at him.
“He indulged in a perfectly understandable passion for a sexy young woman. Passion leads to violence all the time, but we still think of love as a good thing. Everyone tells us we’re supposed to fall in love.” He watched her smooth out the blanket with the palm of her left hand. “Shouldn’t you be nodding your head at all my brilliant insights?”
She smiled weakly. “I’m thinking about an article I read in the paper last week. It was about a guy in San Francisco who received his final divorce papers on a day he had custody of his daughter. After he signed them, he put her in the stroller, walked out onto the Golden Gate Bridge, threw her off, and jumped in after her.”
“Medea raises her head again?”
“Maybe so.” He flipped the lights off and they lay back down in each other’s arms. She burrowed her head deep into his shoulder and eventually fell still as he lay awake, wrestling with the problem of finding a legal box in which to put Medea.
XXIV.
CALL ME
When Arthur got to work on Friday, Ms. Stillwater told him that Jefferson’s petition had already worked its way through the state courts. It was in the hands of a federal district judge and was expected to arrive officially in chambers later in the afternoon. The execution was scheduled for Monday morning at 6:00 a.m., so the Judge would be casting his vote as a member of a three-judge appellate panel over the weekend. Arthur spent the morning searching for exceptions to the rule that prevented Jefferson from introducing his evidence, but nothing excused the patent attorney’s failure to argue that the jury should have seen it before sentencing him. He found several cases holding that newly discovered evidence of a petitioner’s innocence could constitute grounds for granting a stay of execution, but he found little hope for someone who had admitted his guilt.
Just before lunch, he ran across a cryptic paragraph in a Supreme Court opinion that hinted a narrow exception might be available in some circumstances when guilt was admitted. Unfortunately, the language was nearly incomprehensible. The Court mysteriously suggested that it might excuse procedural failures like Jefferson’s if new evidence demonstrated that he was “actually innocent of his death sentence,” as opposed to being innocent of his crime, whatever that meant.
The case was three years old, and he checked to see how later cases had interpreted the language. After a couple of minutes of searching on the computer, he leaned back and stared at the screen. The relevant language had been quoted in a dozen opinions, but not a single judge had taken the Court up on its invitation to find someone “actually innocent” of a death sentence. In fact, a number of judges had metaphorically thrown their hands up in consternation over what the phrase could possibly mean. One thing was clear: If the Judge ordered a new sentencing hearing for Jefferson, he would run the risk of being reversed. The legal history of 1960s proved that he was not afraid of controversy, but it was impossible to say whether he was still willing to make new law in the 1980s. Innovation was a job for judges, not for law clerks, he reminded himself as he went back to his office to write his memo.
The report reminded the Judge of how the incompetency of Jefferson’s first habeas attorney prevented the court from considering his evidence. Arthur summarized the contents of the affidavits and medical reports and discussed the theoretical possibility of arguing that Jefferson was actually innocent of his death sentence. In conclusion, he noted the great reluctance that other courts had shown in implementing the exception, but unlike previous communications with the Judge, the memo did not make a recommendation. Jefferson would be saved only if the Judge were willing to blaze a trail for him. All Arthur could do was inform him of the route he might take and warn him that it passed through uncharted territory.
He did not mention Medea. He would talk with the Judge about the play when he handed him the memo. Discussing the Medea archetype with Kennedy and Suzanne had changed his mind about one aspect of Jefferson’s case. For him, the crime was no longer “especially heinous,” the only aggravating factor that provided the legal justification for his sentence. If the jury had felt the same way, Jefferson might not have been condemned. Did that mean he was innocent of his death sentence? This was a question to raise with the Judge as they discussed the play. He held the memo tightly in his hand as he walked down the hall to the Judge’s chambers.
“Can I talk to the big guy?”
“He’s on the phone, Arthur,” Ms. Stillwater replied.
He slid the papers on her desk. “I’ll come back in a couple of minutes, then.”
He walked into the library to wait and found Phil massaging his temples, head bowed over a stack of Supreme Court Reports. He brushed his friend’s shoulder with his hands as he walked by.
“I’m coming up empty, Art.” Phil looked up, his eyes almost feverish. “What if there just isn’t any ground to grant a stay of execution?”
“Then tell the Judge that.” Arthur sat down. “Just lay out everything you’ve found. That’s what I’m doing.”
“And then Watkins dies.”
“Maybe … but that’s not your fault,” Arthur insisted. “It’s the trial judge, the prosecutor, Congress, and Georgia voters who are responsible. Let them feel bad.”
“Do you think they will?” Phil spat out his frustration. “I don’t think any of them give a shit.”
“Just leave it for the Judge.”
“Since when do we do that anyway?” Phil argued, fists clenched on the table. “How many times has he overruled our memos since we got here?” Arthur was silent. “How many?” he repeated.
“None.”
“That’s right.” He shook his head and dared his friend to disagree. “On the one case that really matters, I’m not going to just punt and leave it for the Judge.”
“I get it.” A
rthur nodded. “You do what you have to do. Just remember, you’re not God.”
“Yeah, I know.” Phil sighed. “If I was, I could give Sergeant Watkins his old life back.”
“Maybe”—Arthur smiled—“but I don’t see your image on the ceiling of the Sistine Chapel.”
“Huh? Oh … God giving life to Adam.” Phil returned his friend’s smile and extended his arm, finger crooked downward across the table in imitation of the white-bearded creator in Michelangelo’s fresco. Arthur leaned his head sideways, trying to capture the doleful look on Adam’s face as he reached his own bent finger across the table to receive the spark of life.
“What are you boys doing?” Ms. Stillwater stared in wonder.
“Uh,” Phil replied sheepishly, “I was just giving life to Adam.”
“Is the Judge off the phone yet?” Arthur asked before the confused secretary could comment further. “I really need to talk to him.”
“He just left, but I did give him your memo.”
“Is he coming in tomorrow morning?” Calling the Judge at home to discuss Medea was not an appealing prospect.
“I’m sure he will,” Ms. Stillwater assured him. “I’m certainly going to be here, and you know as well as I do that he’s got work to finish this weekend.” She sniffed. “And we all know that he never comes in on Sunday.”
“Well then, Ms. Stillwater, here’s something I hoped never to say on a Friday afternoon: see you tomorrow morning.”
The house was empty when Arthur got home and the weather mild, so he opened the windows in the television room and sat down to look at the mail. Among the catalogs and invitations to apply for new credit cards lay a small cardboard box that contained a recording of King David that he had ordered several weeks before. A fragrant breeze filled the room as he read the liner notes. Although the performance was only a few weeks away, a few passages continued to elude him, so he fetched the score and put on the music. He listened through the choruses, forcing himself to sip a beer whenever he felt the urge to sing. In practice, he seldom had the luxury to relax and listen to how all the vocal parts were woven together. Professor Henderson constantly admonished them to “listen to each other,” but he usually took this as a challenge to stay in tune, rather than to appreciate the structure of the piece. He turned up the volume so that the passersby could hear.