by Lee Goodman
Now Kendall wants to hear me confess to the anguish of prosecuting (or persecuting) all those defendants who really meant no harm. But I have nothing to confess, because the truth is, innocent defendants are rarer than, well, yellow rails. And what other source of moral anguish could there be?
“What about laws you don’t agree with?” a student asks. She is sitting forward in her seat, dark hair in a long ponytail, wearing an earth-toned T-shirt with a logo I can’t read but which I bet is for some environmental cause. I hadn’t really noticed the students until now, but as I make eye contact with this assertive young lefty, the undifferentiated mass becomes differentiated. I do a quick scan. Men and women—some young, some less so. I find myself equating all the women to versions of Lizzy or Flora or Cassandra. For the men, there are Zander and Kenny and the imaginary grown-up Toby, my son.
“Laws are laws,” I say, “there is nothing to agree or disagree with.”
“But can’t you imagine some law you’d have trouble—”
“If you wish to make law,” I say, “go into politics.”
“Blind obedience,” someone calls out, and I reply, “Overstated. Most prosecutions are clear-cut: murder, robbery, extortion, exploitation, fraud, trade in endangered species. You want to take issue with any of those? And if, once in a blue moon, I have to suspend some moral position, and I’m not saying I do, then it’s just the price of my privilege to represent all the laws I believe in.”
“Sieg heil! ” This time it is a male voice. I ignore him, but the guy goes on. “Because if you willy-nilly prosecute everyone—”
“I don’t willy-nilly prosecute anyone.”
“Do you believe in mandatory minimum sentencing?”
“My personal beliefs aren’t at issue.”
“Moral abdication,” the guy says.
“Well,” I say, “I guess you can call it what you like.”
“What do you call it?” a different voice asks, and I’m about to answer testily that I call it my job, but I catch myself. The students are having fun. I used to like this stuff, but now the questioners just seem naive, and the whole discussion amounts to nothing more than farting in a mitten while there is real-life shit going on in the world. I’m fed up with the snail’s pace of this prosecution, and with the timidity of do-nothings like Judge Two Rivers. I scan the students. They are all Zanders and Cassandras, eager to live their lives. They want sunny beaches and red wine and good sex and children and dogs and soft cheese and sleepy Saturday mornings. They want to write letters to the editor and to see them in print, they want to ski at Steamboat, cruise to the Galápagos, make their parents proud, get old. Maybe they want to see a yellow rail. And what do I want? At this moment I want to kill Scud Illman. I think of a death sentence recounted by Dickens—drawing and quartering a prisoner, then eviscerating him and dropping his entrails in the fire.
But there is a question in the air, and I’m expected to address it: What do you call it? someone asked. It. That endless stream of statutory language, the criminal code of the United States, pattering into our lives as ignorable and continuous as rain on a metal roof. I see Kendall Vance watching me, amused at my silence, because he’s a courtroom lawyer and a teacher and an ex–Navy SEAL. And here’s me, hapless administrator, proxy for the big bad feds who did Kendall’s daddy wrong. I want to say to him, Let’s have it out. You and me. Right here in class. Proxy to proxy, because if I’m the United States, then Kendall is Scud Illman. The oddsmakers would favor Kendall a thousand to one, because he’s probably killed men with his bare hands. He’s trained for it: where to jab, squeeze, twist. But at this moment, with a roomful of Zanders and Cassandras, I believe I could come at him like a beast unhinged, a blur, all murderous parts cut loose from reason. And I just might win.
Cut loose from reason.
“The law,” I say to the class, and I have to stop and take a deep breath to steady a catch in my voice. “The law is reason. Reason! It is the reins of reason on the horse of emotion. Think about it.”
Discussion proceeds. My wave of emotion subsides, and I am again the dispassionate prosecutor. Law is the reins of reason. Without it, we would all be vigilantes or victims.
The focus shifts to Kendall. There is one question that defense lawyers always get asked. It comes in a thousand forms and all levels of sophistication. Grade-schoolers ask it and Supreme Court justices ask it: How can you defend those people? The discussion bounces around for several minutes, becoming more and more focused, until one student hones it to its essence. He asks Kendall, “Are you ever tempted to do less than your best? To throw the case?”
The question is repulsive to Kendall, and I fear for the student who asked it. He has asked the commando whether treason is a viable option. But commando Kendall maintains his cool. What Kendall says, his voice tense with emotion, is this: “I don’t defend criminals, I defend principles. To defy those principles, to turn traitor on a defendant, would violate everything I believe in. I’d rather die.”
The conversation moves off this point, and though we transition into a discussion about grand juries and indictments, I’m still thinking through the positions Kendall and I have staked out. To me, a prosecutor, the greatest sin is a failure of objectivity; to Kendall, a defense attorney, the biggest sin is a failure of loyalty.
CHAPTER 23
Wednesday. It’s a teachers’ in-service day, so the schools are closed. Lizzy is camped out in my office again, surrounded by the paraphernalia of her teenhood. “Go visit Kenny,” I say. “I need to make some calls.”
I call Hollis Phippin. “We’ve made an arrest. Scud Illman, the suspect I told you about. We took him yesterday.”
“How does it look?” Hollis asks. His diction is razor-sharp. This is the third time we’ve spoken, and I’m still surprised by how firm his voice is. I expect to hear grief on the surface just as, when I met him at Zander’s memorial, I expected a graying wreck of a man leaning heavily on a cane. He was none of that. He remained stoically at the side of his devastated wife, receiving sympathies, giving quiet instructions to the caterers.
“It looks very good,” I tell Hollis. I brief him on the evidence, keeping the doubt to myself, but he spots it.
“Sounds thin,” he says.
“It is. But it’s early. We’ll convict him, Hollis, you’ll see.”
Hollis is right, though. The case isn’t clear-cut, and unless we come up with more physical evidence, it relies too heavily on the Bureau’s ability to put together a show of Mob involvement. Unfortunately, our best case against Scud isn’t for Zander’s murder, it’s for Seth Coen’s murder. But as of yesterday, when I saw that tattoo of a dagger on Scud’s arm, I’ve begun to think our best evidence, the bloody rag, is no evidence at all.
When I hang up, I decide to go and resolve what’s bothering me. Lizzy and I drive to the FBI building, and Chip meets us at security and takes us into his office. The place is just like the U.S. attorney’s offices. Special agents are in the windowed offices, support staff in cubicles. We leave Lizzy in the office, and Chip walks me down to the evidence room in the basement. I sign the required registers, then a couple of minutes later, I’m holding a plastic bag marked with identifying notations. Inside is a dirty, crumpled rag spattered with Seth Coen’s blood.
Our assumption has been that, for all his painstaking care in cleaning the bathroom where Seth Coen was dismembered, Scud forgot to dispose of the rag he used for wiping blood spatter from his own face. Somehow, instead of being tossed into a landfill with all the other bloodied clothes, this rag was crumpled into a pocket and later ended up in the laundry area of Scud Illman’s home.
I’m wearing surgical gloves. I open the evidence bag and take out the rag. It is speckled with rusty droplets of blood, which, according to our DNA analysis, belonged to Seth Coen. But more prevalent than the blood are large green-black splotches of ink. It is just what I expected to find and hoped I wouldn’t. I can hear my heart pounding in my ears, and for an
insane instant, I think of what I could do to redeem this worthless soiled rag. Smuggle in an otherwise clean hankie spattered with blood of my own. Do the switch. DNA analysis has already been run, it’s unlikely they’ll do it again. We just need a rag with blood spatter and no ink; how simple it would be. Yet through the raging disappointment and criminal temptation, I envision the scene. It is incongruously tender: Scud Illman and Seth Coen, sitting at the kitchen table in Scud’s house. Maybe Scud’s wife sits with them; maybe Scud’s stepson, Colin, watches TV in the living room. They put a towel on the table, and Seth lays his hand on it. It’s been a few years, Scud says as he prepares the needle and ink. Seth is only a few days out of the oppressive prison culture, and here’s Scud offering this act of generosity. First, for no particular reason, Scud traces the design with his forefinger, and maybe that gentle, even affectionate contact makes their nerves tinge with unaccustomed emotion. It quiets them. Now Scud, needle in hand, closes the sides of that wretched brand, and as he works, he rests his free hand on Seth’s arm.
Two misfits, Seth and Scud. Scud keeps a rag on hand, blotting the droplets of blood that surface on Seth’s skin as the swastika is closed up, dot by dot, until, to the casual observer, it’s just a window. When they’re done, Scud crumples up the blotter rag and tosses it into his laundry pile.
• • •
TMU pushes an index finger against his lips. “It’s dicey,” he says, rocking in his desk chair. Though he is my mentor in career matters, I’m usually his adviser on prosecutorial details. Today I’m here asking him what to do. There was barely enough evidence as it was, but without the bloodied rag, we have nothing linking Scud to Seth’s murder and barely anything linking him to Zander’s.
“What do you think we should do?” TMU asks.
“Release him.”
TMU nods. “We have to protect your position.”
“My position?”
“The circuit bench. Cut your losses now. You don’t want to lose this one in trial.” He nods in agreement with himself.
I shift on my feet in a way that asks whether he is done and I can leave. He ignores it. “Could the guy be innocent?” he asks. He stares at me with lips pressed tight. I stare back, and we hold for a few seconds, then he explodes in delighted self-amusement. “Got you,” he says, and finally, I relax enough to sit down in one of his wing chairs.
Good joke, the idea of Scud’s innocence. What TMU means, in his avuncular way, is that our error—if it was an error at all to arrest Scud when we did—was merely a strategic one. The question isn’t whether he’s guilty. Of course he’s guilty. The question is how best to convict him.
“Is it really so clear-cut?” TMU asks, meaning the rag. It’s tempting to keep quiet and let a jury decide whether Scud Illman used it to wipe the blood droplets from Seth’s tattoo or the splatter from a dismembered corpse. “I mean, we don’t need to do the defense’s job for them. Right?”
I shake my head. “Too risky.”
“Okay,” he says approvingly, “take care of it.”
And with that, we’re back to our usual roles: me advising, TMU deciding.
• • •
Scud is transported back to the FBI building. Kendall meets us there. Lizzy waits in Chip’s office. Sparky gets set up. We ask Scud the questions obliquely, and he delivers a narrative of doctoring Seth Coen’s tattoo to disguise the swastika, just as I imagined. “Did he pay you?” I ask Scud, for no other reason than that I want to know.
Scud looks up at me. The smirk is nearly absent from his unfortunate features. “ ’Course not,” he says. “There’s some things you don’t charge a guy for. ’Specially a friend.”
Chip, Dorsey, Kendall, and I go into a conference room. It’s agreed. We’ll release him. Kendall is gracious.
• • •
On our drive over to the Rain Tree for a late lunch, my phone rings and I see it’s Kendall. I answer.
“You did the right thing,” he says.
“No right or wrong,” I say. “We do what the evidence requires.”
“Anyway. Listen, I need to talk to you. Can I swing by your office? It won’t take long.”
“Talk now.”
“Better in person.”
“Yeah, well, my daughter and I are going out to lunch.”
“Teachers’ professional day? Me, too. How old’s yours?”
“Fourteen.”
“Mine’s sixteen. Where are you going?”
“The Rain Tree,” I say before it occurs to me to obfuscate.
“Meet you there,” he says, and he hangs up. I’m not sure what just happened, whether I invited them to join us or not. I don’t want him there, and Lizzy certainly won’t. She’s about twelve years beyond the point where I could shove her in front of any little boy or girl her age and expect enthusiasm. I should warn her, but I don’t feel like suffering her annoyance, so we ride along quietly, Lizzy in her own world and me in mine.
• • •
Kendall comes in the door of the Rain Tree, and immediately, I see there’ll be no problem with Lizzy resenting the intrusion. The grinning teenager who follows Kendall has Down syndrome, and at this moment something I know about my own daughter breaks through from my subconscious into full recognition. Namely, Lizzy is all about compassion. It’s what motivates her.
Kendall introduces his daughter as Kaylee.
“Where do you go to school, Kaylee?” Lizzy asks.
“No school today!” Kaylee answers, beaming at Lizzy through thick glasses.
“Are you at work with your dad?”
“He’s working. I’m just with him.”
“Me, too. I’m staying with my dad today, too.”
“Because there’s no school!”
“Right. I’ve got an okay dad. Do you have an okay dad?”
Kaylee turns and studies Kendall. “Sometimes,” she says, and we all laugh.
The waitress comes. Kendall says he and Kaylee aren’t staying, he just wants to chat for a couple of minutes. Lizzy asks for children’s place mats and crayons, and when the waitress brings them, she and Kaylee get busy coloring. The mats have a drawing of the Rokeby Mills building with the river and flowers and the Rain Tree Grill with people standing in front. There is one figure in a wheelchair.
“I love to color,” Lizzy says.
“Me, too,” Kaylee says.
“What’s this about?” I ask Kendall, resisting the impulse to act like he and I are best buddies because our daughters are coloring together.
“Scud Illman knows people,” Kendall says. “I don’t know how much is trash talk. He likes to act important, like nothing goes on in this city that he doesn’t know about.”
Kendall and I are leaning in toward each other so the girls can’t hear. It’s cozier than I want to be with an opposing counsel—or at least cozier than I like being with Kendall Vance. I don’t mind whispered conversation, but when my vision goes blue with the smell of the guy’s Aqua Velva, it’s too much.
I straighten up. “Yeah, well. This isn’t a matter of trash talk. It’s premeditated you-know-what.” I glance at the girls.
“No, no,” Kendall says. “What do you think, that I’m here to convince you my guy didn’t do it? Fu— Screw that. That’s not why I’m here. Listen to me. Forget Scud Illman—”
“Forget him? What the hell?”
“Arguendo, counselor. For what I’m here to talk about, forget him. Okay? He’s a mouthpiece, that’s all. I thought you might want to hear what he’s saying.”
“What’s he saying?”
“That there’re things going on.”
“Things?”
“Like maybe the locals think they’re in Colombia or Sicily.”
“That’s vague, Kendall, let me get it straight: Your client says that—”
“No. He doesn’t say, he intimates.”
“Your client intimates there are plans—”
“No plans. Just chatter. Noise. A surge of.”
&
nbsp; “Intimidation or retaliation, or just obstruction?”
He shrugs. “I don’t know what to call it. Scud says things like this: ‘So I hear from an associate of mine whose name will remain nameless that some guy whose name I don’t know but who my associate calls Bulldog, he hears from him that some guys are feeling cramped and want to clear a little space around themselves.’ ” Kendall uses a whispery, sinister voice for imitating Scud. “Another time he might say, ‘Schnair is bad news for people trying to do business in this town, but the times, they are a-changing.’ See what I mean? Nothing to really get your teeth into. Just background. Like when you were searching his home, he said to me, ‘So that’s the famous Uptown Cruthers,’ and I asked him what’s so famous about Upton, and Scud says, ‘Nothing yet. But I’ve heard talk about guys wanting to make him famous, if you know what I mean.’ ”
I glance over at the girls. They’re oblivious to us. Kaylee has her mouth half open and her tongue spread flat across the bottom lip, eyelids squinted down in fierce concentration as she outlines the wheelchair in silver. Lizzy leans toward Kaylee and whispers some bit of praise for Kaylee’s work.