by Dan Cluchey
Her first true break arrived the summer before my third and final year of law school. Mercy General was one of the few television shows that still shot in New York; like me, it had been running for twenty-five years, and was a moderately successful soap opera featuring a number of suspicious doctors. Millions of laundromat employees, inpatients, cat-sitters, and children home sick tuned in each week to watch the uniformly attractive denizens of Titular Hospital make bad writing worse. Fiona won the part of nurse Jeanette, spunky-yet-sensitive medical neophyte and reluctant love interest to the Adonic Dr. Adam Strickland, who was portrayed by the actor Mark Renard: an Olympic-level brooder with no other discernable modes or abilities. Before doctor and nurse were killed off in a boating accident to end the season (but really the harbormaster did it), Fiona would appear in nineteen episodes—enough to quit waitressing, pay off her student loans, and gain a certain amount of traction within the industry.
And when success arrived, she handled the change the way I knew she would, like a guarded but grateful weirdo. Most young actors never come anywhere near even the farthest outcrops of Fame Mountain, but suddenly we were—she was—being stopped on the street. It happened at least a dozen times that year, and in each instance she was embarrassed to the point of near-panic. Once, in a truly seminal display of awkwardness, she even went so far as to ask a befuddled autograph-seeker to reciprocate—there was a great deal of confusion, and no paper, and we landed on having the starstruck old lady sign the back of my hand in blue pen (“EILEEN R. STURDIVANT LOVE THE SHOW THANK YOU!”).
It seemed very much like the start of something, even if the show itself was no great shakes. She was acting, I was learning, we were cooking and reading and walking and running together, and brunches and wine-bottle candlesticks and the record player playing and then so suddenly it’s summer again, and I’m a sudden lawyer now, and if it weren’t for that goddamn harbormaster—
* * *
There are things about Fiona you don’t get to know. Infrared secrets, pitched beyond the dog whistle, things stored so far to your east you might just as well head west. There are tigers in those parts—the old kind: tygers with a “y”—too far removed from you in place and time, and fogged in by obscurities to find, nacarat and sable in their primal postures. Everyone who has ever lived has harbored their own unseen ciphers; you can call their home a hiding place, or a furnace room enkindling the ways that each of us will be. The point is this: you will never get to know these things about Fiona, but I had seen them all, had charted every inch of her vast topography, had categorized her fauna and danced a thousand times to her classified music, those arcane and dissonant chords, and it was a hard night, the night I let her go.
TWO
“I’D LIKE TO HAVE A CONVERSATION WITH someone. Let … me … see … I’d like to have a conversation with—Mr. Rosenbaum, would you like to have a conversation with me?”
“I’d love to.”
“I think you’re only saying that because you don’t really have much of a choice in the matter, Mr. Rosenbaum.”
“I suppose we’ll never know.”
“Fair point. This conversation I’d like to have, it’s of a highly sensitive nature. That alright with you, Mr. Rosenbaum?”
“That’s no problem.”
“Good. Are you opposed to the death penalty, Mr. Rosenbaum?”
“I’m sorry?”
“The death penalty. I’m asking you about capital punishment, Mr. Rosenbaum.”
“Oh. Yes. I mean, yes, I am. Opposed.”
“Let me put the question a bit more directly: if you were selected as a juror in a capital case, and the question were put to you by the prosecutor, would you answer that you have a conscientious scruple against ever, under any circumstances, applying the death penalty, such that you would not, from a moral standpoint—and I remind you that you are under oath, Mr. Rosenbaum—such that you would not, that you could not, again, morally, be able to impose death on a criminal defendant?”
“Would I … I mean, yes, I would say, I guess, to the prosecutor, I could say that I have a … scruple … against—”
“You would say that you had a moral scruple against the application of the death penalty. Okay. So what does that mean to you?”
“A scruple?”
“To have a moral scruple against the death penalty, yes, Mr. Rosenbaum, yes.”
“It’s, I guess, a principle, or a value, that—it’s a … hard-dying principle, that I would have—do have, in fact—so much so that, in spite of the established law, I wouldn’t put myself in a position to—”
“Okay, you’re saying you wouldn’t do it. But that opposition, is it based on purely moral principles, or on some sort of vague empirical sense that the death penalty simply doesn’t work?”
“Both?”
“But is it—”
“Chiefly moral.”
“Chiefly moral. So let’s say that I’ve got some fresh new data here, Mr. Rosenbaum; I’ve got this data just back from the academy, from the lab, the boffins, whatever, and I can prove to you—to your satisfaction, that is, empirically, Mr. Rosenbaum—I can prove to you that the death penalty does, in fact, work. I’ve got here some hypothetical data here showing that, for each guilty person executed, you are in fact saving the lives of ten completely innocent potential murder victims. What now? Still opposed?”
“I would still have moral reservations that would be … incredibly strong. It would take—”
“Everybody should have moral reservations, Mr. Rosenbaum. We’re talking about death here. Yay or nay?”
“I would say … I would still be opposed.”
“How?! How could you prefer the life of one guilty murderer to the life of ten innocent victims? That’s utterly preposterous! Explain yourself, Mr. Rosenbaum!”
“I’m opposed to the notion that it’s the job of the state—”
“To what?! To save the lives of innocent victims?”
“No! To kill. I don’t believe that it’s, uh, within the purview of—”
“The state doesn’t have a choice in the matter! They could kill ten people by way of inaction, or one person by way of action! Someone has to die, Mr. Rosenbaum, and you’ve opted for the ten innocent nuns?!”
“They’re nuns?”
“They were nuns, Mr. Rosenbaum. They’ve just been murdered by the low-life criminal you could not bring yourself to exterminate.”
“That’s … that’s really terrible.”
“I think so too. It’s quite the dilemma, right? It reminds me of the old railroad hypothetical—you know the one? The train is speeding along down the track, and all of a sudden the brakes fail. If you do nothing, that train is going to go straight ahead and kill ten people, but if you make the decision to switch tracks, you know, at the track-switching … you know, when they flip the lines over to make the trains switch? If you do that, the train will only kill one person. What do you do with that one, morally speaking, Mr. Rosenbaum?”
“Well, I understand the argument that you want to do the least amount of harm to the least number of people—”
“It’s a pretty good argument, wouldn’t you say?”
“It’s a great argument, but there’s a civic argument that I would make that it’s still not the place of the—you know, with criminals, at least, there are a lot of things that the government can do to—”
“They’ve tried them all! Every single one of them. They’ve tried investing in rehabilitation, they’ve tried life imprisonment, they’ve tried making the prisons better. In the end, it still turns out—don’t worry about the details, Mr. Rosenbaum—it still turns out that the criminal is no different from the runaway train: unless you kill this horrible, plainly guilty mass murderer, ten additional innocent people would be dead, who would otherwise not be dead. Are you still—”
“Even if you’ve given that person a life sentence?”
“Absolutely. Let’s assume now that you’re persuaded, okay? I don’t
want to argue with you about the facts, Mr. Rosenbaum; I simply want to have a moral discussion with you. You’re persuaded: by executing this guilty criminal, ten innocent people will be saved. Are you still opposed to the state executing him? ’Cause if you’re not opposed to it, then your opposition isn’t moral at all, Mr. Rosenbaum—it is, in fact, empirical. It’s just based on facts, and the facts could be right, or the facts could be wrong, and while they may, perhaps, be right in real life, I’ve made them wrong in my hypothetical. What say you?”
“I’m sticking with the moral defense.”
“So with the train problem, you just go down the track? Kill ten people, just because you couldn’t bring yourself to take action?”
“No.”
“So you switch the track, and kill the one to save the ten?”
“Yes.”
“Okay, so you’re prepared to kill one innocent person to save ten innocent people. That’s great, by the way; I applaud you for that. So let me ask, again, then, let me ask of you with all your good and decent scruples, Mr. Rosenbaum, why you’re not then prepared to kill one guilty criminal, who’s been convicted beyond a reasonable doubt of a horrible murder, to save ten innocent lives? Doesn’t that seem inconsistent?”
“My moral argument about the death penalty has more to do with the function of the state—”
“Okay. So now let’s say the president of the United States is driving the train. Okay? It’s a state action now; what would you have them do?”
“Well—”
“How about this: let’s say, Mr. Rosenbaum, that you’re the chief advisor to Winston Churchill, the year is 1935, and the Germans have violated the Versailles Treaty. Okay? They’re arming themselves, and they have this new leader—his name is Hitler. He says that when he comes to power he’s going to declare war on the whole of Europe! He’s going to conquer Poland, France, England—and you believe him! And Mr. Churchill says, ‘Let’s kill him! Come on, lads, let’s do it! Let’s nip this guy in the bud!’ And Mr. Chamberlain says, ‘Not so fast, you know, peace in our time; let’s just see how everything plays out,’ and that’s ultimately what you decide to do—you go with Chamberlain—and all of a sudden fifteen million people are dead, and you’ve got yourselves the Second World War, a war that could’ve been prevented, perhaps, by killing a few thousand people in a preemptive strike on what was then a fledgling German military. Fifteen million people, and they’re gone. That’s state action too. Are you on—whose side are you on, Mr. Rosenbaum? Churchill’s, or, you know, are you on—”
“I’m firmly anti-Hitler.”
“How nice for you.”
“Look, Professor Barnes, of course I would want to kill Hitler in that scenario. What I’m saying is that regardless of what my anger or my hatred compels me to do in the heat of the moment, I don’t want the state to be driven by that kind of emotional—”
“Isn’t that precisely why we have capital punishment, though—to channel your revenge? Isn’t that the whole idea? We, the state, make a deal with you: a civilized deal. We say, Mr. Rosenbaum, we understand you have a need to see vengeance done. Somebody has just killed someone very close to you; we understand what you’re feeling, emotionally, but we’re making you a deal here—you don’t get to kill. We do. We get to kill because we have things like due process, we have things like appellate courts, we have something called a right to effective counsel. So given a choice between acting on your own—which you seem to prefer—and this state function that the whole polity has signed off on, you’d rather leave it up to the individual rogue actor?”
“I’d rather have the state not act on emotional interests that I may have. I also don’t want the right to go around like a vigilante.”
“But self-defense you’re okay with?”
“Sure. Of course. I don’t equate self-defense with capital punishment.”
“Right, of course not! With self-defense, you’re killing somebody in order to save one life—yours, selfishly—and with capital punishment, you’re refusing to kill somebody to save the ten nuns. Why are you better than the nuns, Mr. Rosenbaum, because they’re nuns, and as far as I can tell you’re—”
“I’m not—I’m not better than the nuns—but in a self-defense case I don’t have the option of … the state has custody of a criminal; they’re not acting in self-defense. Capital punishment is offensive.”
“Offensive?”
“Offensive … and offensive. Both, to me.”
“Very well. Thank you, Mr. Rosenbaum.”
I glanced across the room at Boots as he drew breath for the first time in six minutes; he was shell-shocked, and looked as though he was hoping that the hypothetical train would somehow veer off course and strike him, lest he have to field any more questions. Professor Barnes cycled through two more students, both of whom demurely demurred—they had no quarrel with the death penalty (no moral quarrel, at least). And then—
“Mr. Brice?”
Oh shit.
“Yes, Professor,” I spurted.
“Mr. Brice, might you perhaps share Mr. Rosenbaum’s moral reservations about the death penalty?”
Shit shit shit shit shit—
“I absolutely do.”
“And yours are, indeed, moral reservations as well? As opposed to the loose empirical hang-ups we dispensed with a moment ago?”
Katherine Barnes was an intellectual giant whom the New Yorker had once called the “undisputed alpha lioness of the legal academy.” In the dilated eyes of her students and admirers, she was fearsome, winsome, and awesome in equal measure, a swashbuckling genius blessed with a semi-automatic wit and a deep well of charm. In another age, she could have been a second Cleopatra; in this one, she taught criminal procedure, and stood as a monument to that certain irresistible strain of austerity that elevates great generals and gods. I have never met anyone smarter in my entire life, and never will.
“My reservations,” I sputtered, “are … moral … but I’m not sure I’ll be as adept as Boots—sorry, as Mr. Rosenbaum—I’m not sure I’ll be able to defend my particular logic quite so well.”
I looked back across at Boots, who had four fingers on each temple and his big mouth unlatched, still recovering from the onslaught.
“And why is that, Mr. Brice? Trying to avoid the inevitable interrogation?”
“No. I mean, yes, if that’s a possibility, but really it’s because I don’t have a well-thought-out reason for my moral opposition. It just feels wrong, to me.”
Professor Barnes laughed once, sharply—purposefully, it seemed: a stage guffaw, the sort that cues an especially trenchant rebuttal.
“There’s a word we don’t hear often in law school, class,” she retorted, “that word, of course, being ‘feels.’ Are you quite certain you want to be a lawyer, Mr. Brice?”
“No ma’am,” I reflexed, so sincerely I startled myself. “Like I said, it’s probably an unreasonable position if you want to spin it out, but for me … I just can’t get behind it. I just … I don’t like thinking about the needle.”
“You don’t like thinking about the needle?”
“That’s it. That’s my position. I can’t—morally—I can’t sign off on being a part of that. Strapping someone in, and just…”
“The needle.”
“I can’t.”
“It’s not an unreasonable position, Mr. Brice. It might be the most reasonable thing a person can do, right? Be governed by their emotional impulses? Now, of course, we don’t do that here. Right? Ms. Kim, should lawyers be driven by their emotions?”
“I … don’t … think … we should?” chanted Michelle.
“Mr. Parmalee?”
“Definitely not. No,” mustered Scott.
“Ms. Torres?”
“It’s important for lawyers to be guided by their principles, and maybe those principles can be rooted in an emotional response, um, to experience, maybe … but you can’t be driven just by your emotions. Not in law,” reasoned Katy.
“Okay, how about this: is there anybody here, apart from Mr. Brice, whose opinion about the death penalty was borne of some sort of visceral reaction to the act itself? Is anybody else thinking about the needle?”
One-hundred-and-sixty eyeballs scurried from the questioner like floodlit raccoons; eight hundred fingers dithered. In the back of the room, Amy Valera coughed twice.
“Does anyone know what happens when they put you to death?” continued Professor Barnes. “Anybody?”
We stayed crickets, and she pressed on, steadily, but more quietly than I remember her ever having spoken before.
“Okay, let me tell you what happens. Right here in America, when they decide that they want you to die, what they do is they strap you onto a gurney. They bind your ankles, and they bind your wrists, and a doctor attaches heart monitors to your chest. The first needle goes into your medial epicondyle—that’s the inside of your elbow, where the good veins are—but it’s only saline solution. The warden gives the all-clear, and they raise up the curtain that separates you from the folks who showed up to watch you die. They’re in the next room, and they’ll watch through plate glass as the next needle anesthetizes you, paralyzes your muscular system, and finally stops your heart. They fill your blood with a cocktail of pentobarbital, pancuronium bromide, and potassium chloride. They fill your blood.”
Here she paused, and nobody coughed.
“We can talk about capital punishment, and we can break it down with hypotheticals, and logic, and statistical findings, and well-reasoned arguments on every side. That is what law school is for, and you’ll get plenty of that—you’ll get plenty of that from me as much as anyone. This is not a point about procedure, alright? You’re all going to be lawyers, and that means you can have a big impact out there in the world, but it is exceedingly, desperately critical that you remember to also be human beings. Don’t let your instincts get crushed by anybody’s intellectual wizardry, alright? Not even mine. Be a person. Think about the needle. Okay? Okay. I’ll see you tomorrow.”