Best Intentions

by Joseph T. Klempner

  That, and the fact that he was likely to spend the next fifteen years of his life in prison. They always managed to get that in, too. Just in case there was somebody out there who thought what he’d done wasn’t such a big deal.

  Well, it was a big deal. He knew that now. He’d been finding out the hard way.

  “Some development, huh?” It was Reynolds.

  “Yeah,” said Stephen, “some development.” He wasn’t afraid to speak this time; there was no lump in his throat, no tears welled up behind his eyes.

  What there was, was anger.

  As for Theresa Mulholland, she was way beyond anger. The job? They could have the damn job. She’d given up on that the day she’d written the letter to the Advertiser. Even before that, when she thought about it. Back when Neil Witt had taken her off the story because of what he called a conflict of interest. Or when he’d sent her up to Albany to eat breakfast and listen to Hillary Clinton. Or when he’d told her no, she couldn’t do an editorial piece, he needed her for a story on the humane society. Whatever the final straw had been, her parting company from the Herald had been a long time coming. And she had only one thing to say about that.

  Good riddance.

  It had only begun to dawn on her that the unique circumstances of her firing might mean she’d never work for another newspaper. But she didn’t have any time to worry about that. Not right now, anyway. There were some other things she had to do first.

  Stephen was back in court that Friday. Again, however, it was a non-event. One of Jim Hall’s assistants showed up in Hall’s place and submitted a written response to the defense’s motions. Justice Wainwright looked it over and said, “I’m going to need a couple of weeks to decide this. How’s April third, gentlemen?”

  April 3 was apparently fine with both sides. To Stephen, it no longer made a difference: Dates had lost all meaning to him. He could no longer remember the order of the months. Every once in a while, it would occur to him that he hadn’t made his mortgage payment, or paid this bill or that. He would experience a moment of intense panic, but it would soon pass. He was in jail, after all; he couldn’t do those things; someone else would have to take care of them. The rational part of him knew that no one else would, but it was his way of overcoming the panic: He simply blotted the problem out, pretended it wasn’t his to worry about.

  The latest adjournment of two and a half weeks was the longest yet. As Stephen and his lawyer left the courtroom - Adams by the front door, Stephen by the side one - Adams had tried to tell Stephen it was an encouraging sign, and could mean that Justice Wainwright needed the extra time because he intended to write an opinion dismissing the charges. “I don’t want to get your hopes up too high,” he said, “but this could be our best chance ever. Because if this case ever goes before a jury, there’s no telling what they’ll do.”

  Stephen had always thought a jury was his best chance. Now he was being told it was nothing but a crapshoot, and that his best hope lay with the judge, the same judge who’d put him in jail.

  The deputy named Reynolds, the closest thing to a friend Stephen had made in jail, was transferred to another location. The deputy who replaced him, a large, mustached man who seemed to spend most of his shift discussing his personal business on the telephone, hinted that Reynolds’s undoing had been his habit of befriending the inmates. He made it clear that he intended to avoid that temptation, and he kept his word. As a result, Stephen’s access to the outside world, as limited as it had been before, now became nonexistent. No letters arrived for him; no newspapers found their way between the bars of his cell; no small talk was offered. He was reduced to spending virtually all his time lying on his cot, waiting. Waiting for the next meal, the next change of shift, the next shower day, the next court appearance.

  Physically, he knew he was deteriorating. Even without a mirror to look into or belt notches to measure his waist, he could tell that he was losing weight. Yet he found himself increasingly repulsed by the food, which he now picked at and rearranged on the cardboard tray, and left uneaten. He was aware that his body had lost much of its muscle tone and knew he should be doing exercises of some sort. But he didn’t; he simply couldn’t muster the resolve to force himself. Once he’d been able to do fifty push-ups in a single set; now he collapsed before reaching ten. The rest of his body was doing no better: His teeth ached, and his gums would bleed if he so much as ran his tongue over them. He had a foul taste in his mouth that wouldn’t go away. His hair needed cutting, and his face needed shaving. He was a mess.

  Worse yet, he didn’t care.

  Lying on his back, his forearm across his eyes in what had become his standard position, he came to realize that as happy as he’d been over the past couple of years, his entire existence had been totally focused on just two things, to which he’d been completely devoted - his daughter and his writing. And now that they’d taken both of those away from him, he was left with nothing to live for. He began to think of his life as a failure, and of himself as a pathetic creature, in some way fully deserving of everything that had happened to him.

  In spite of the fact that his case was all he had to think about - he steadfastly refused to think about his daughter, for fear he’d go truly insane if he allowed himself to - he now found himself thinking less and less about it. For a time, he’d pinned his hopes on the outcome of the criminal trial. If only he could win that, he’d reasoned, everything else would fall into place. Seeing that he’d done nothing wrong to his daughter, the judge in the civil case would have no choice but to restore Penny’s custody to him. Everything would return to the way it had been before.

  But the more he thought about it, the more he realized that wasn’t so. That other judge, the woman - he could no longer remember her name - hated him, had it in for him for some reason he didn’t understand. So even if he somehow managed to win the criminal case, she was going to do everything in her power to see to it that Penny stayed with Ada. And she was the judge. She could do whatever she wanted to.

  So in the end, it made no difference what happened. It simply didn’t matter.

  Nothing mattered anymore.

  A week went by. March 22 came and went, making it a month since they’d first put Stephen in jail. He wouldn’t have known it, though, had it not been for the fact that a doctor came by to check him, explaining that state law required a monthly examination. He was an older man who wore a rumpled suit and spoke with an Eastern European accent Stephen couldn’t quite place. Hungarian, maybe, or Czech. He took Stephen’s pulse and blood pressure and pointed a flashlight down his throat and into his ears.

  “Fine,” he said. “You’re doing just fine.”

  Flynt Adams came to see him, to remind him they’d be going to court Monday to get Justice Wainwright’s decision on the dismissal motion. He seemed hopeful.

  “What’s today?” Stephen asked.

  “Saturday.”

  “No, I mean the date.”

  Adams looked at his watch. “The first,” he said. “April first.”

  Something came back to Stephen, as though from far away. April first. April first. April Fools’ Day, that was it. He and Penny loved to play April Fools’ jokes on each other. He’d had to tell her it was April Fools’ Day, of course; she was still too young to keep track of such things herself. But as soon as he’d told her, she got into it. One year, she’d hidden the keys to the Jeep. He’d retaliated by telling her she had dirt all over her forehead, and made her go into the bathroom to see. Another time, she’d pretended she had a terrible stomachache. He’d believed her, and they’d been in the Jeep, all ready to race to the emergency room (he was terrified it was her appendix, about to burst and kill her), when she’d burst into laughter and-

  “Where are you?”

  “Huh?”

  It was Flynt Adams’s face in front of him, and they were Sitting at a table in the counsel room. “Are you okay?” Adams was asking him.

  “Me? I’m fine,” said Stephen. “It�
��s April Fools’ Day.”

  “And?”

  And nothing. The old lump was suddenly back in Stephen’s throat, and he knew better than to try to explain.

  “You might want to think about shaving,” said Adams, running his hand over his own chin, as if to remind Stephen what shaving was. “And combing your hair. You know, before we go to court?”

  Stephen nodded. But he was having trouble concentrating, and following what Adams was saying. His thoughts kept wandering all over the place. Right now, he was trying to come up with a good trick to play on Penny this year, something that would really fool her and make her laugh.

  Even as Flynt Adams clung to his hopes for a dismissal and Stephen Barrow had abandoned all hope, T. Everett Wainwright (he seldom used the T., and never what it stood for, figuring his name already sounded pompous enough without the addition of Tillinghast to it) sat by a fire that Saturday night, wrestling with the case.

  He’d read Adams’s motion to dismiss a dozen times, and Jim Hall’s response almost as many. He’d been to the library, and he’d done the research. In his gut, he agreed with the defense’s position. The photograph that exhibited the child’s genitals (and you could forget the other photos, the one or two nude ones; they were nothing) wasn’t “lewd” per se, in and of itself. Adams was right. There had to be some additional showing - for example, that the father had deliberately posed her like that, or had intended to make some sexual or commercial use of the photo, either for his own gratification or someone else’s.

  Wainwright had to keep reminding himself that the case wasn’t at the trial stage. He wasn’t being asked to find Barrow guilty or not guilty, or even to rule on whether a jury’s convicting him could stand up on appeal. If he were, the appropriate standard would be whether the prosecution had succeeded in proving that the photo was lewd, and doing so beyond a reasonable doubt. And they hadn’t.

  But they didn’t have to - not yet, anyway. All they had to do at this stage of the proceedings was to show that there was a triable issue of fact, a question that a reasonable jury might decide either way. If you looked at it that way, the prosecution was entitled to an opportunity to bring in witnesses who could shed light on the defendant’s state of mind. Did Barrow have a drawer full of similar photos, for example? Did he post them on the Internet, share them with others, send them off to magazines? Had he forced his daughter to pose like that, threatened her if she refused, or rewarded her if she complied?

  Jim Hall hadn’t proved anything of the sort at the grand jury; a reading of the transcript made that clear. Hall had simply relied on Barrow’s possession of the photo and his admission to the investigator that he’d been the one who’d taken it. Then he’d passed the photo around. Was that enough?

  “Dear, it’s after midnight.” The judge’s wife worried about him when he worked too hard. He’d already had two heart attacks over the past ten years, and his doctor had warned him to take it easy.

  “I’ll be up soon,” he said.

  “You can’t still be thinking of dismissing that case, can you?” His wife was a lawyer, though she no longer practiced. She knew the question her husband was wrestling with, and shared his view (he having been persuaded by Flynt Adams’s motion papers) that the case turned on the issue of whether the prosecution had established that the display of the child’s genitals was lewd. Personally, she thought that was for the jury to decide. Carla Wainwright was active in politics, a Democrat on the local school board, which gave her and her husband something in common: They were both endangered species. Only she’d been a quicker study when it came to adapting.

  “Yes,” he said. “I’m still thinking about it.”

  “They’ll crucify you.”

  “They?”

  “The party.”

  “The party,” he repeated, giving the ashes in the fireplace a poke. “You make it sound like we’re living in the old Soviet Union,” he said.

  “Well, we are, in a way. You dismiss that indictment, you’ll see how long they let you keep wearing that robe.”

  “There’s more to life than that robe, you know.”

  “Yes,” she said. “There’re bills and taxes and medical coverage, and things like that. You’re sixty-eight years old. What are you going to do, start looking for a job at your age?”

  “Yes,” he said. “I might just do that. You go on to bed. I’ll be up in a little while.”

  She shook her head and gave him a kiss on the forehead before walking out of the room. As soon as she was gone, he put another log on the fire.

  The way Jim Hall saw it, it was a no-brainer. If Wainwright dismissed the indictment, the voters would eat him alive. In rural upstate New York, soft on crime was about as bad a label as you could hang on a candidate, right up there with opposes the NRA, favors higher taxes, and supports partial-birth abortions.

  No, when it came down to it, T. Everett had no choice. He might hem and haw a bit, but eventually he’d do the right thing and let the case go to trial. And a trial was all Jim Hall needed. Convincing a Columbia County jury that they knew a lewd photo when they saw one? Shit, he could do that with one hand tied behind his back an’ the other playin’ pocket pool.

  As he lathered his face to shave for the morning’s court appearance, Flynt Adams could already feel the butterflies beginning to stir. Not that there was anything he’d actually have to do in court, in terms of performing. While his presence - like that of the defendant and the DA - was required, his role would be pretty much limited to that of an observer, albeit a keenly interested one. Today was Justice Wainwright’s day: He’d either have the balls to throw the case out, or cave in to all the political pressure he must be feeling, and say he couldn’t.

  And if he couldn’t, it would mean a trial. Not today or tomorrow, but within the next few weeks or months. And it would be a trial Flynt Adams might well be able to win, a trial that would mean significantly more money for him, with maybe even a little media exposure thrown in. But at the same time, a trial he was afraid of. Because Flynt Adams knew this about trials: They could go either way. When it came right down to it, they were the criminal justice system’s equivalent of saying a prayer, closing your eyes, and rolling the dice.

  He felt the nick, and waited for the blood to appear. If he’d been going to the office to spend the day doing paperwork, he could have shaved with his left hand. But on court days, no matter how careful he was, he always managed to cut himself.

  Always.

  Of all the players, only Stephen Barrow wasn’t nervous. It wasn’t that he was feeling more confident than the others; by this time he’d lost every shred of confidence he’d ever had. No, Stephen’s lack of nerves was simply a reflection of the fact that he’d reached a point that was beyond worrying, beyond understanding, and dangerously close to beyond caring.

  Sitting in the holding pen behind the courtroom, Stephen looked like a beaten man. In the six weeks he’d now been in jail, he’d lost nearly twenty pounds. His clothes - and for court they’d brought him his street clothes to put on, the ones he happened to be wearing the day they put him in - had become several sizes too large for him. When he stood, he had to use one hand to hold the waist of his pants closed: Without a belt, they’d fall off otherwise. His laceless shoes felt too big, and in order to keep them from slipping off when he walked, he had to slide his feet along in a shuffle, instead of lifting one after the other.

  Dark circles surrounded his eyes, and although he’d shaved that morning, his face looked gray. His skin seemed to have lost all its elasticity: It hung from his face slackly, as though somebody had ordered it in a size too large for his features. His whole body sagged, even his mouth hung slightly open, and a tiny spittle of drool would drip from it when he forgot - or simply didn’t bother - to swallow.

  “Barrow!” called a deputy. “Let’s go!”

  They unlocked the gate to the holding pen, and Stephen stepped out. They handcuffed him behind his back, the immediate result being that hi
s pants slipped down to his hipbones and threatened to fall to his ankles. Noticing, one of the deputies rolled up the waist, yanking the crotch up painfully as he did it. Stephen followed them out into the courtroom, doing his little shuffle, and took his place next to Flynt Adams, facing the judge.

  “Good morning,” said the judge. It was the same one.

  “Good morning,” said the lawyers.

  “With respect to the defense’s motion to dismiss,” said the judge, “I confess I’m quite troubled by the apparent lack of evidence offered by the People at the grand jury on the issue of whether the photograph, in and of itself, rises to the level of constituting a ‘sexual performance.’ Were this a trial without a jury, and Mr. Hall could make no stronger a showing on this point, I would be compelled to find the defendant not guilty. That said, it is not a trial, and the law applicable to this stage of the proceedings requires me to give Mr. Hall an opportunity to go forward and see what additional evidence, if any, he can come up with. The defense’s motion to dismiss is therefore denied. This being a jail case, I’m giving it a preference. Both sides are given two weeks to get ready for trial. We’ll set this down for April seventeenth, for jury selection. If the defense wants a jury, that is. Next case.”

  Flynt Adams followed Stephen and the deputies back to the holding pen. “We may have lost the motion,” he said, “but did you hear what Wainwright said at the end there?”

  Stephen confessed that he’d heard little and understood less.

  “He’s telling us to waive a jury,” said Adams, his eyes bright with excitement. “He’s saying, if the DA can’t come up with some more evidence, he’ll acquit you. And there is no more evidence. So what do you say? Should we put it in Wainwright’s hands, and sign a jury waiver?”