by D. W. Buffa
Darnell’s grey eyebrows arched high above his eyes, a gesture of admiration for what the boy had done to become a man. He stood straight up.‘Your mother passed away some years ago, didn’t she?’
‘Yes, she’s been gone almost ten years now.’
‘Which left your sister; but of course she’s all grown up now with a family of her own. No, I’m sorry—how thoughtless of me. Her husband died a year or so after they were married, didn’t he?’
With a baffled look on his face, Roberts rose slowly from his chair.‘Your Honour, I’m not at all clear what relevance any of this has and—’
‘Which made it almost as difficult for her as it had been for your mother, didn’t it?’ asked Darnell in a voice that made Roberts turn.‘Your mother was left with a daughter to raise while you went off to sea; your sister was left with a son to raise and, once again, you did everything you could to help. Isn’t that right, Mr Marlowe? To all intents and purposes, you became a second father to the boy, didn’t you?’
All the life had gone from Marlowe’s eyes. He was staring into the abyss, greeted by his own reflection.
‘You did everything you could for the boy, even promising that one day you would take him on one of those voyages he used to love to hear you talk about. And you kept that promise, didn’t you, Mr Marlowe? You kept your promise because you loved him more than life itself, didn’t you? And that is the great tragedy of the Evangeline, isn’t it? The boy you killed to save from suffering, the boy who—had you only known there was still a chance of rescue—would be at home today, safe with his mother, was your mother’s only grandson, your sister’s only child!’
Chapter Twenty-Nine
HOMER MAITLAND DID NOT TRY TO HIDE HIS ignorance.With a casual shrug, he informed the two attorneys that he had looked everywhere and there was simply no law—at least none that was, as the lawyers like to say, directly on point.
‘It isn’t all that surprising, when you think about it. Why would you expect to find any law to cover a situation that no one has ever faced? Yes, I know,’ he added before Darnell could interrupt. ‘There were a few cases, but those were in the nineteenth century, and no matter how far back you go, you won’t find a single case in this jurisdiction where the defence of necessity has been raised against a charge of murder. This is the first, and that means it’s up to me to fashion an instruction on that defence for the jury.’
Maitland glanced at a yellow legal pad on which he had written out a draft. ‘After I give the standard instruction on murder, I will instruct them that, “It is a defence to the crime of murder if a reasonable person would have believed that both the death of the person killed and the death of others would have taken place if that person had not been killed, and if the method by which that person was chosen did not unfairly single him out.”’
‘That leaves out the important question of time,’ objected Roberts.‘It is one thing if you have to act within hours or minutes to save the lives of others—the situation of the mountain climber hanging on the rope, which will bring down all the others if it is not cut right away—it is something else again to decide that you should kill someone because you might face that situation at some indeterminate point in the future.’
‘I thought of that. I agree with the importance of the distinction. The difficulty is to know exactly where to draw the line. It seemed to me better to leave it to the jury to decide on the particular facts how long it would be reasonable to wait. It is, after all, part of what defining necessity is all about.
‘After the jury retires, you can both put whatever objections you have, to this or any of the other instructions, on the record.’
‘I wonder what instruction would make it clear to Marlowe what he did,’ said Darnell, his eyes opened wide and not a speck of hope within them.
‘His own nephew, his sister’s only child,’ said Roberts, repeating the phrase that kept echoing in his mind. He looked at Darnell, sitting next to him, and acknowledged the truth of what Darnell had told him at the beginning. ‘This trial has ruined a lot of lives, hasn’t it?’
Roberts paused. He was aware of the irony in the fact that he had prosecuted Marlowe for murder because, sworn to uphold the law, he thought he did not have a choice.‘Or were their lives ruined already, and the trial has given at least a few of them a kind of release which, if not redemption, is something still worth having?’
‘I think that may be true; though, curiously, not for the men involved, only for the women,’ said Darnell.‘I’m too old to believe that women were ever equal to men; they’re better, far better, than men could ever be. They have a strength, an endurance, men can seldom match. Samantha Wilcox and Cynthia Grimes: those are two people anyone would be proud to know. But Trevelyn? DeSantos? A couple of snivelling cowards!’
‘You say the trial might be good, but “only for the women”,’ said Homer Maitland, sitting back, his ankle on his knee. ‘Leave aside Marlowe—I can understand that he’s a special case—but what about Hugo Offenbach? Did he get nothing out of this? You wouldn’t put him in the same category as those other two?’
‘He and Marlowe are both outside the common run. They care nothing, or next to nothing, about the judgments of the world. They both, I think, thought this trial was part of the punishment each of them deserved, the price they had to pay because they lived. Offenbach at least had the satisfaction of letting everyone know the truth of what happened and what Marlowe did; all that Marlowe got was the chance to add another measure of punishment to what must already be unendurable.’
No one said a word. The silence deepened. Finally, and as quietly as he could, Maitland reached for the court file and the instructions he had prepared for the jury.‘If this had been tried to the court without a jury, if I had to decide what to do—if things were what they were years ago, when the sentence was entirely within my own discretion—shall I tell you what I think I would do, the way I would try to cut this Gordian knot?’
Maitland searched their eyes, telling them with a piercing glance that despite his placid, affable demeanour, the trial had taken a toll on his emotions as well as theirs. ‘Just between the three of us, and just within these walls, I would find him guilty of murder and then, as a sentence, set him free—on the ground that living with what he had done, what in his own honest good judgment he had been forced to do, was all the punishment anyone should have to suffer.’
Darnell pushed himself up from the chair. ‘And how would you decide it now, when, if you found him guilty, you would have no choice but to send him away for life?’
Maitland held his hand over his mouth, pondering the harsh stupidities of the law, the absence of all intelligence and understanding, the drive for retribution and revenge that had removed all proportion between the sentence and the crime. ‘All I can do is give the coward’s answer and tell you I’m glad the case is going to a jury.’ He looked at his watch.‘We’d better get started if we’re going to be finished by this afternoon.’
When the jury was brought back into the courtroom, Homer Maitland greeted them with a solemn instruction on the limits of what they were about to hear. ‘At the beginning of the trial each of the attorneys—Mr Roberts for the prosecution and Mr Darnell for the defence—made an opening statement in which they gave you a preview of what they expected the evidence to show. Now, after you have heard all the evidence that is going to be offered in this case, after you have listened to the witnesses called by each side, the attorneys are going to give their closing arguments. These summations, as they are sometimes called, give the prosecution and the defence an opportunity to argue what the evidence means. I cannot emphasise too strongly that, while you should listen and consider carefully what the two attorneys say, the judgment as to whether the evidence you have heard is sufficient to support a conviction is yours and yours alone. Mr Roberts, if you’re ready.’
Roberts was on his feet, moving directly to the jury box. He wasted no time.‘Everyone who has listened to the evidence in
this case must have asked themselves what they would have done had they had the misfortune to find themselves in Vincent Marlowe’s position—alive, but barely, out there in the middle of the ocean with a dozen other people in a lifeboat that was not made for anything like that number, with no more food or water. Everyone must have wondered at the courage, the bravery, with which the people who were Marlowe’s victims—the people he killed— faced their deaths without resistance. Some of us—and let me admit that I include myself in this—must have marvelled at the almost unnatural determination with which Marlowe forced himself to plunge that knife of his into each victim, and the way he then set about the grim business of first sharing out their blood and then turning the bodies of the people he murdered into food for those still left alive. But the question, the only question, you are here to decide is whether he had to do this—not did he kill six people, for you have his own sworn testimony that he did, but did he have to? Was that the only choice he had? Was there really no other way?’
For nearly an hour, Roberts reviewed the testimony of the witnesses for both the prosecution and the defence. He seemed to go out of his way to balance what one said against the other. There was a point to this, but it was not fairness.
‘Trevelyn seems to have been the first to talk about it, the need to kill someone, and Trevelyn did not hesitate to insist that it should be someone else. Trevelyn wanted to live. Whatever else you might think about him, he was brutally honest—no matter how much he might lie about it now. Someone has to die so that I can live, that is what Trevelyn wanted, and I have no doubt that he would have killed someone if Marlowe had not stopped him. Yes, I mean that. Marlowe stopped him; he would not allow Trevelyn to choose his own victim. But what did Marlowe do instead? Did he stop any murder from being committed? Did he insist that, if they were going to try to stay alive a little longer— and remember he said that he did not think there was any chance of rescue; remember that he killed his own nephew so that the boy would not have to suffer!—did he insist that, if they were going to live like cannibals, devouring human flesh, they really leave it in the hands of chance or God and wait until the first among them died of natural causes? They could not do that, he tells us, because when the body is dead the blood becomes unusable! They could not do that because, if they had, those deaths would not have been so heroic!
‘Whatever merit there might have been in a defence of necessity, it falls apart on this one irrefutable fact: Marlowe, by his own admission, as well as by the testimony of Hugo Offenbach, did not believe that there was any chance of rescue. He did not believe that anyone would survive. Then why was it necessary that anyone be killed? So that others could live? For what? So that, as Samantha Wilcox put it, they could keep killing each other until there was no one left? No, it was necessary, according to Vincent Marlowe, so that their deaths would have some meaning, so that they could each die with the illusion—an illusion Marlowe did not share—that they were sacrificing themselves so that others could live!’
Roberts looked back across the courtroom to where Marlowe sat, staring straight ahead, giving no sign that he had heard a word, or that it would have mattered if he had.
‘It is impossible not to feel a profound sympathy for Vincent Marlowe—I know that—and not to feel that, at times, the law may be too harsh. But what Marlowe did was murder, and unless we are prepared to say that everyone is free to decide for themselves when someone else should die, there is only one verdict you can bring back, and that verdict is guilty.’
Roberts had spoken for an hour and a half; Darnell spoke for nearly three. He took the jury from the beginning of Marlowe’s life to the day the Evangeline set sail on its ill-fated voyage around Africa. He quoted from memory and at great length the testimony of Benjamin Whitfield, reminding the jury of the lies he had told and how, on every crucial point, his testimony had been contradicted by the man who had designed and built the Evangeline and by the woman he had betrayed and abandoned, the woman who only because Marlowe had saved her life could now have Whitfield’s child.
‘I’ve gone back through all of this, started at the very beginning, because it is important to see that it is only a long series of random chances that we look back on and call fate. Things take on a meaning at the end that they did not have at the beginning.What do we know of the future? How much can we really know about anything? What did Marlowe know in the middle of the south Atlantic, except that they were thousands of miles from shore with no food or water, and that if he did not do something Trevelyn, and others like him, would start to take matters into their own hands. Wait until someone died of natural causes? That is what the prosecution, in the comfort of a courtroom, tells us should have been done.What the prosecution forgets is that it was already too late for that! What the prosecution forgets is that Trevelyn, and not just Trevelyn, was demanding that someone had to be killed, and that they should choose the boy. They said it was because the boy was the closest one to death; it seems more likely that it was because he was a boy and less able to resist.What the prosecution does not want you to think too hard about was that Marlowe brought a kind of civilisation to what would otherwise have become the law of the jungle, a battle for survival in which, eventually, no one would have been left.
‘The prosecution says that there was no necessity for what Marlowe did, because Marlowe did not believe that there was any chance of rescue; that the most he could hope to achieve was to keep the ones he did not kill alive a few days or perhaps a few weeks longer. But even if that were true, it is not clear how that would make what Marlowe did any less necessary. Does the prosecution really wish to insist that the value of a life is measured by how long someone expects it to last? Is it not just as much a murder to kill someone lying in a hospital bed with only a few days or a few weeks left to live?
‘You saw Vincent Marlowe, you heard what he had to say. He put his own nephew to death to save him from seeing what he knew he had to do. He did not think there was any chance that any of them would leave the sea alive.You saw the look in his eyes, that awful anguish, when he cried out that he never would have killed the boy if he had thought there was any chance that any of them might come through this alive.You must have believed him when he said it; and you can’t possibly have any doubt about it now that we know what we did not know before—that the boy was his sister’s child, the closest thing to a son Vincent Marlowe will ever have. That was what he believed—that there would be no rescue. But he believed something else as well. He believed that human beings endure, that we go on for as long as we can; and that, more than our own survival, we have within us an impulse to do something higher and nobler, to sacrifice ourselves so that others can live. Because as long as any of us are still alive there is always, against all odds, the hope that someone will be left to remember what we did.
‘You listened to the prosecution’s summation, and you have listened to mine. Sometime during your deliberations you might remember that there was another summation, one more eloquent than anything either Mr Roberts or I could say. It was the simple admission of Vincent Marlowe when he looked you straight in the eye and told you that he does not believe that what he did was right, but that, even now, looking back on it, he would have to do it again. Vincent Marlowe saved six lives, and there isn’t anyone in this courtroom who believes that he would not give anything not to have been one of them.’
Chapter Thirty
HOMER MAITLAND GAVE HIS INSTRUCTIONS ON the law, leaving until the very end the instruction on the law of necessity. A few minutes after four in the afternoon the jury began their deliberations. A few minutes after six, the bailiff knocked on the jury-room door to ask if they wanted to break for dinner. They asked if, instead of going out, they could have something sent in. At midnight they told the bailiff that they would start again at eight o’clock the next morning.
Darnell knew nothing of this until the jury had already begun its second day of deliberations. He had had an early dinner with Summer Blaine and, moun
ting only a mild protest, followed her orders and gone straight to bed. He would not admit how tired he was and how much that three-hour summation had taken out of him, but Summer knew. She had been there watching, proud of every word, more certain than she had ever been that nothing could have stopped him, and glad she had not tried. But now it was over, and he was going to do exactly what she told him until, like any normal patient, he was on his way to a full recovery.
‘They worked until late last night, and they are already back at it this morning,’ said Darnell, as he hung up the bedside phone.
‘Is that good?’ asked Summer, sitting down next to him.‘Eat,’ she said, pointing to a piece of unbuttered toast that had not been touched.
‘I used to think that the longer a jury stayed out, the more uncertain they were; and the more uncertain, the greater the doubt—which should be good for the defence. But I’ve seen juries stay out for days and come back with a verdict that found the defendant guilty on all counts. Who knows what this jury is going to do? I don’t know what I would decide. Marlowe isn’t guilty, and neither is he innocent. If he had killed one person, then maybe—but six? But then if he had not killed them all; if he had stopped at two, or three, or four—no one would be alive. It’s what I said at the beginning: there are some situations for which the rules were never made.’
Darnell bent his head, a baffled expression in his eyes. He tried to make sense of it all, or at least explain that part of it he thought he understood.
‘What happened out there was, in a way, almost biblical. It was the way things must have happened in the beginning, before there was any law, when everyone did whatever they had to do to stay alive—until someone had the wisdom to establish a rule and the strength to make everyone follow it. Someone had to use violence to stop the violence. How do you then go back and charge them with a crime? That was the real necessity out there—that Marlowe, or someone like him, impose the law on all the others— but he could not have done that if he had not also given them a reason to believe in it. If it had not been for him, those people would have become half-mad barbarians, killing each other to stay alive. He made them—do I dare say this?—more civilised than they had been before, willing to let chance decide their fate, willing to die so that the others could live. It was remarkable what he did, but how many of us are willing to admit it? And perhaps it is better if we do not; better to preserve our own decent illusion that murder and cannibalism can never be right.’