Cox watched Sandy Kelley’s reaction to his words. She continued to smile, but she also seemed to be shaking her head in agreement. Cox turned to Faith Gramaldi and continued, “If you were to acquit this guilty killer, you would also be encouraging one of the worst abuses of the legal system—putting the dead victim on trial. Marcelus Prandus cannot defend himself. I certainly will not defend what he may have done fifty years ago. Nor will I dispute the defendant’s recollection, after hearing it corroborated by his late sister’s letter. Whatever he did does not justify this defendant in becoming his judge, jury, and executioner.”
As Paul Prandus listened to the prosecutor refusing to defend his father, he wondered why his murdered father was as much on trial as the defendant. Why didn’t he have anyone speaking up for him? His father had told him that unless you were there, you could never understand. How could these jurors even begin to understand?
Cox continued, “No society can tolerate the kind of personal revenge outside of the law that this defendant took.”
Cox then went down his checklist of admissions, in staccato style, which came from Max’s answers to his cross-examination questions. Then he implored the jury to apply the law, as the judge would instruct them to do, without emotion or favor. He sat down after only fifteen minutes, again declaring that this was “an open-and-shut case under the law. And nothing Mr. Ringel will say can change that.”
Chapter 51
CLOSING ARGUMENT: THE DEFENSE
Now it was Abe’s turn. Abe had no checklist. He had few facts, and he had precious little law. He thought about the old legal saw, “When you have the facts on your side, hammer the facts. When you have the law on your side, hammer the law. When you have neither, hammer the table.” Abe was not a table banger. He was part surgeon, part psychologist, and part rabbi. His job was to make the jurors put themselves in Max’s situation. He needed a proper balance of both emotion and logic in order to persuade the jurors that what Max did should be found justifiable in law. At the very least, he needed one or two jurors to feel in their guts that they could not cast the first stone against Max’s desperate actions—to feel “There but for the grace of God go I.” Abe began slowly—almost academically.
“Members of the jury, why do we have law? We have law because individuals have made a social contract. Under that contract, each individual gives up his or her inherent right to protect themselves and their families and to secure personal justice in exchange for a promise of governmental protection and governmental justice.” As he said the word contract, Abe looked at Emma and smiled in appreciation as he continued his argument.
“A great French philosopher named Rousseau coined the term social contract, and a great American jurist named Oliver Wendell Holmes explained it in commonsense terms: ‘People would gratify the passion for revenge outside the law, if the law did not help them.’ We all know how powerful is the need to see justice done. The law recognizes that need in a variety of ways. That is why we have a number of defenses that recognize the possibility that the law will not always be able to keep its side of the bargain—its side of the social contract.”
Abe saw that his abstract, philosophical arguments were beginning to lose some of the jurors. Joe Parola suppressed a yawn. Sandy Kelley fidgeted in her seat. It was time to get more specific.
“Self-defense,” Abe said in a tone of familiarity. “You’ve all heard of self-defense, right?” Parola and Kelley nodded. He had gotten them back—at least for the moment.
“Once Max Menuchen learned that the murderer of his family was living not far from him, it became a matter of life or death: if Max Menuchen did not bring Marcelus Prandus to justice, he would have killed himself. Either the mass murderer had to die or his victim had to die. Given that tragic choice, don’t you agree that it would have been a far greater injustice if Max Menuchen had killed himself than that Marcelus Prandus killed himself? Remember the sixteen-year-old girl who threw herself out of the window rather than submit to rape? Mr. Cox told you about her in his opening argument.”
A number of jurors nodded. “I bet Mr. Cox wishes he had never mentioned that case in light of what happened to Max Menuchen’s sixteen-year-old sister. Wouldn’t it have been better if that sixteen-year-old had killed the man rather than killing herself? And isn’t it better that Marcelus Prandus died a few months early, than that his only surviving victim take his own life?”
Paul listened intently to Abe’s argument, growing angrier by the minute. “He’s playing God,” Paul whispered to Freddy. “How does he know whose life was more valuable—a father and grandfather who was loved and needed by his family, or a bitter, childless old man with no family and few friends?”
Abe continued, “Lest you think that I am merely speculating about the possibility that Max Menuchen would have killed himself, remember how many Holocaust survivors did just that: some famous, such as Primo Levi, Jerzy Kosinski, Bruno Bettelheim, Tadeusz Borowsky, and Paul Celan; others obscure, like Max’s best friend, Dori Bloom.”
Abe paused to let the reference to Dori Bloom sink in. Then he moved on to another part of his argument.
“The law says that the defense of justification must ‘be considered by the jury standing in the shoes of the defendant.’ I ask you now to try on those painful shoes.” As he said these words, Abe subtly slipped off one loafer and worked his foot back into it. “Imagine yourself as the young Max Menuchen, watching his family gunned down, being shot himself, and miraculously surviving. Then imagine yourself as the old Max Menuchen, learning that the killer of your family was living as a free and honored citizen, surrounded by loving family, never having been brought to justice for his horrible crimes against your family. Finally,” Abe said, lowering his voice, “imagine yourself learning that your sixteen-year-old sister was raped before being sent to a death camp, which—unbeknownst to you—she miraculously survived, only to be murdered four years later, after giving birth to her rapist’s child. Would you believe that the government had lived up to its part of the social contract?”
Abe paused a full thirty seconds to let the jurors answer that question themselves. Aha, he thought as he watched several jurors shake their heads in apparent agreement. Then he continued, turning toward Patricia McGinnity, the older woman.
“You have all heard of cases in which a woman is repeatedly battered by her husband or boyfriend. She calls 911. The police do nothing. He continues to batter her. She continues to seek help from within the system. The system fails her. Finally, realizing that she can get no justice, she kills her batterer when he is sleeping.” Abe noticed Emma frowning as he made the analogy. He hoped none of the jurors noticed. Then he moved to the “aha” part of the argument. “Self-defense? No. Not according to what Mr. Cox told you, because she could have kept trying to call the police. She knew the police would not help her. So she helped herself. She saved her own life, because no one else would help her. Is she wrong? Is she a criminal? Juries all over the country have refused to convict such women, and when they have, governors have pardoned them or commuted their sentences. Why? Because they understand that in the absence of legal justice, personal justice becomes inevitable.”
“Objection, Your Honor,” Cox said loudly. “I hate to interrupt my brother during closing argument, but he is asking the jury to disobey the law—to engage in jury nullification. That’s wrong.”
“He has a point, Mr. Ringel. Stick to the law.”
“Okay. Let’s talk about the law of kidnapping. The object of the defendant’s actions was not to kidnap Marcelus Prandus. There was no ransom. The object was to make Marcelus Prandus experience what he had made Max Menuchen’s family experience. No more, no less. No innocent people were harmed. No unnecessary violence was committed.”
Abe thought he observed a slight nod from Sandy Kelley.
Had Abe been watching Paul Prandus, he might have noted a tightening of his chin and an angry look in his eyes, as Paul remembered how he—an innocent Prandus—had been m
ade to suffer by watching the video and believing, even only for a few minutes, that his son was dead.
“If you place yourselves in the shoes of Max Menuchen, you will not be able to convict him of murder. Marcelus Prandus took his own life. His actions were his own. No one forced him to kill himself. He did it because he knew he was responsible for what he believed had happened to his family.” Abe paced in front of the jury for several seconds as he constructed an argument in his mind.
“Marcelus Prandus deserved to be punished. He did not deserve to live out his life with no retribution for his evil deeds. Yes, it would have been better if society could have punished Marcelus Prandus, but that was not to be. When governments do not do justice, the social contract is broken and the citizen is returned to the state of nature, where natural law prevails.”
State of nature, Paul thought to himself. Isn’t that where I will be if this jury were to acquit my father’s killer? If he had the right to exact revenge if the law didn’t do its job, why don’t I have the same right?
Abe stood directly in front of Patricia McGinnity as he explained natural law. “Natural law demands that the murderers of one’s family be brought to justice. As a well-known American judge recently put it: ‘When law is inoperative, private revenge becomes an inescapable duty.’ ”
Paul once again took note, as Abe continued. “I ask you, was law operative for Max Menuchen? No! And so it became his inescapable duty to exact private justice. Would you have done anything less?”
Can I do anything less? Paul thought.
Again Abe paused for silent answers. Then he continued.
“The eminent Harvard philosopher Robert Nozick draws an important distinction between retribution and revenge. Retribution is directed against a criminal act and satisfies society’s needs. Revenge is entirely personal and can be directed at slights or insults. Retribution is done without personal pleasure. Revenge brings about pleasure at one’s enemy’s pain.
“I ask you, did Max Menuchen get any pleasure from what he did to Marcelus Prandus? No, he did not. He told you that. And Mr. Cox asked you to believe him. He tasted vengeance, and its after-flavor was bitter. Indeed, that’s how you tell a good person from a bad one: a bad one enjoys revenge; a good one engages in retribution, though it brings him no pleasure.
“I implore you to end the chain of violence and to do justice—finally—to Max Menuchen and his family by finding the defendant not guilty.”
As Abe walked toward his chair, his eyes never left the jury box. He was looking for some reaction to his final words. All he got was the ever-present smile on Sandy Kelley’s face.
Chapter 52
CLOSING ARGUMENT: REBUTTAL
Now it was time for Erskine Cox to get the final word—the rebuttal summation, thought by many lawyers to be the most important single argument in the case, because it cannot be answered by the other side. For this short argument, Cox exchanged his wheelchair for a pair of crutches and stood, grimacing, in front of the jury box, so that the jurors could see that he offered no excuses and would ask for no special consideration because of what had befallen him. Abe had no choice but to quietly admire Cox’s unspoken advocacy as he began his final argument.
“There is only one way to end the chain of violence—only one way to do justice—apply the rule of law to all alike,” Cox began. “Not the way Marcelus Prandus did, and not the way Max Menuchen did.” Cox pointed at the defendant. “Private revenge may be understandable, but it is simply not acceptable under the rule of law. Indeed, it is the function of the law—as Mr. Ringel correctly argued—to replace private revenge. If the law fails, improve it, but do not replace it with private vengeance, else you give every citizen the power to decide when to kill.”
Cox walked haltingly away from the jury box in the direction of the defense table. It took him a full minute to maneuver himself in front of the defendant as he continued. “Not everyone who suffered as Max Menuchen did felt it necessary to take revenge by killing those who killed their family members. Elie Wiesel wrote books—great books. Simon Wiesenthal brought Nazis to justice—legal justice. They did not kill, and they did not commit suicide. In life, we have choices. Some choose to obsess about the past, while others take the hand they’ve been dealt and do their best.”
As he said these words, Cox took a labored step. Then he turned to the defendant and continued: “And not everyone is a Max Menuchen. Some violence-prone individuals will see an acquittal in this case as an invitation to respond to every perceived slight with an escalated response. Just think of what is happening on our highways. One car cuts off another; the other driver responds by making an obscene gesture; guns are drawn; shots are fired; someone lies dead. In the name of what? Revenge? The philosopher Robert Nozick may understand the subtle difference between revenge and retaliation,” Cox said in a mocking tone. “Will the drunken driver with his loaded revolver? No.”
Cox noticed nods of recognition from several jurors.
“No wonder Francis Bacon called revenge ‘a kind of wild justice.’ And what he said about it should govern your decision: ‘The more man’s nature runs to revenge, the more ought law to weed it out.’ That is your job, ladies and gentlemen of the jury: to weed out revenge by convicting this vigilante killer and kidnapper. It is your duty to apply the law. Do not shrink from it.”
With that the morning session was over, and Judge Tree recessed the trial until after lunch. As Abe left the courtroom, he approached Freddy Burns and struck up a conversation. “Paul’s a mystery to me. I can’t get a reading on him. You hang around with him a lot, right? So at least I know he’s a poor judge of character,” Abe teased.
“Who should he be hanging around with? You? He hates your guts. I told him you weren’t so bad—for a lawyer. But you know how it is. He thinks you set up that whole confrontation with your daughter to make him lose his cool. He believes you manipulated the shtick with your surprise witness—the younger Max Menuchen. He’s really upset that he learned about his half-brother from the witness stand. I don’t think he can handle it.”
“Yeah, I can imagine. Want to grab a bite?”
“Sorry. I can’t be seen eating with the enemy. Some other time, when the case is over.”
“Okay. See you back in court.”
As Abe walked away he noticed Paul Prandus walking toward Freddy. Paul said something to Freddy, and the latter responded by grabbing Paul and saying, “You just can’t do that.” An animated conversation followed—with lots of gestures. Abe couldn’t hear the words. Suddenly Paul stormed away. Something was up, Abe thought, staring after the retreating figure.
Chapter 53
THE JUDGE INSTRUCTS
Now it was Judge Tree’s turn. He would be instructing the jury on the law. Unlike most of his colleagues, who read the standard, often incomprehensible definitions of the charged crimes and applicable rules, Judge Tree prided himself on talking to the jurors in language they could understand.
“Let me tell you a story,” the judge began, sitting on the railing of the jury box like an old friend shooting the breeze.
“There was once an old king who ruled his country as a tyrant. His subjects demanded laws, so that they could know what they were allowed to do and what they were not allowed to do. The king wanted to keep the laws secret, so that he could enforce them according to his whim. So he hired a bunch of lawyers to write the laws so that nobody but other lawyers could understand them. That, ladies and gentlemen, was the beginning of ‘legalese’—the most incomprehensible of languages.” A few of the jurors and spectators chuckled.
“I will not speak to you in that language. I will try English—ordinary street talk—because I want you to understand the law. And if I say anything you don’t understand, stop me and I’ll try to explain. Okay?”
A chorus of okays came back.
“Let’s start with murder. There are two kinds of murder involved in this case. The first is premeditated murder: a Mafia hit man kills a rival.
“The second is more complicated. It’s called felony murder, and as its name suggests, it is a killing that takes place during a felony—in this case a kidnapping. If you decide beyond a reasonable doubt—and I’ll explain what that means in a minute—that the defendant held Marcelus Prandus against his will for a considerable period of time, that is kidnapping. It doesn’t need to be for ransom. Holding him against his will is enough. Now, if Prandus died as a result of a kidnapping, then the kidnapper is guilty of felony murder, even if the kidnapper didn’t want him to die. If he did want him to die, it’s even easier. Now, here is the question in this case. What if Prandus killed himself? It’s for you to decide whether the kidnapping caused him to kill himself. That’s your judgment call. Just remember, you can’t say yes unless you’re convinced beyond a reasonable doubt. Any questions so far?”
No hands went up.
“Okay, now to reasonable doubt. That’s a hard one. No one really knows what it means, and the Supreme Court won’t tell us. I’ll try to give you some guidance. Normally, in life, you make decisions on the basis of what is more likely. You have two ways of getting home from the courthouse. One is slightly shorter, safer, and more scenic. So you pick that way. This is different. Here, if you conclude that it is more likely than not that the defendant is guilty, you’re supposed to find him not guilty. That’s because not guilty doesn’t mean innocent.
“A finding of not guilty means only that the prosecution didn’t prove its case beyond a reasonable doubt. It left you with an uneasy feeling that the defendant might not be guilty. If, on the other hand, you do conclude beyond any reasonable doubt that the defendant is guilty under the law, you should convict him and not let your emotions get in the way.
Just Revenge Page 23