by Lee Goodman
As for the murder of Scud Illman, my friend and foster son Kenny has confessed. To be precise, I shouldn’t call it a murder, because what Kenny pleaded to (twenty years in prison, eligible for parole in twelve) is involuntary manslaughter.
Kenny was arrested in the law library downstairs. It was very formal; Tina and I stood on either side of him as the young trooper with cuffs dangling from one hand nervously read Kenny his rights, as Kenny sat staring in bewilderment.
“You should probably stand up, Kenny,” I said.
The trooper cuffed him behind his back.
“I never killed anybody,” Kenny said.
I walked with them into the hallway. “Remember,” I told him before the elevator door closed, “the only words you speak are ‘I want my lawyer.’ ”
He stared at me in terror and confusion. I stared back, but who knows what he saw in my one unbandaged eye in those last seconds before the elevator door closed.
Kendall refused to have anything to do with the case, so five weeks after Kenny’s arrest, I convinced him to fire his public defender and I breached propriety by representing him myself at one informal plea negotiation. I caught up with the assistant DA in a hallway of the state court building. He is a sullen young guy I recognized from bar functions. He takes himself way too seriously.
“You don’t want to try this case, David,” I said, “it’s full of holes. What are you offering?”
“I don’t see any holes,” he said. “Best I can do is second-degree murder with a recommendation of thirty years.”
I knew he’d be this kind: the kind who starts off with the absolute most he can possibly charge, and he offers it up like it’s a great deal. I know this lawyer. I’ve seen him a thousand times in a thousand cases over the thousand years of my career. He is a workman but one without passion or creativity. He is unmoved by my relationship with Kenny, as he is always unmoved by any defendant. In court, he might harp on and on about the horror visited upon a victim, but he’s probably inured to that as well. I’ve read a thousand résumés he’s written and turned him down for jobs a thousand times. Have I been him?
I think I have.
“David,” I said, “I can see you’re a shrewd bargainer. But we both know you haven’t got a chance in hell of convicting on first degree, so second degree is no offer at all, it’s your baseline, and I’m insulted by it because I’m not some snot-nosed public defender coming in here with hat in hand begging for a bit of slack. You want to go, we’ll go. But consider that, right from the start, we’ve got a strong argument for insufficient probable cause on the warrant, and a pretty strong case for acquittal because nothing in the world besides that gun ties our guy to this murder.”
“Untrue,” David said in a voice of singsongy petulance. “We can show that Kenny Teague and Avery Illman knew each other. They had dealings.” The word comes out the way a twelve-year-old says “sex.”
“Knowing someone and killing him aren’t synonymous, counselor,” I said. “The only thing you have is a weapon. Consider how easily someone could have planted that gun in Kenny’s apartment, then called in the tip.”
“Juries don’t buy that Machiavellian shit,” David said with an angry curl of his top lip. He’s the kind of prosecutor who hates defense lawyers, and the fact that I’ve prosecuted for twenty-five years earns me no cred.
“And the victim was killed with his own gun,” I said. “Doesn’t that kind of scream self-defense, especially seeing as your vic was a very bad motherfucker and my defendant was an employee of the U.S. attorney’s office with no adult record at all?”
“No, counselor, it doesn’t scream self-defense.”
“David,” I said, “you take this to trial and you’ll be flogging a losing case against me, with the city’s best defense lawyer, Kendall Vance, advising me. Win or lose, we’ll tie this up for months and miss no chance at making you look like an asshole. Or else you can get realistic. Save us all some grief. I have a proposal.”
He looked at me warily. No doubt he knew of me and wanted to make a good impression, but at the same time, the idea of going up against me and winning was delicious for him to contemplate. It was a career game of chicken. I didn’t wait for him to answer. “Here it is,” I said. “I can get Kenny to plead to involuntary manslaughter. Twenty years, eligible for parole at twelve.”
David tried to conceal his surprise. He wasn’t expecting anything even close to twenty. It was a good offer; it would give him bragging rights that he had squeezed so harsh a plea out of the former assistant U.S. attorney on a loser of a case.
“Twenty-five and fifteen,” he said.
“This isn’t a negotiation, David. Twenty and twelve. Take it or leave it.”
He didn’t want to seem too eager. It was a gift to him, but he was wary. He checked his watch as if it might have an answer for him. He cleared his throat. David is a young guy with a few extra pounds that he’s probably had all his life; he wears a wedding band and a frown. I had the strange inclination to ask Upton to hire him; to play Henry Higgins, molding him into a less obtuse, less adversarial version of himself. “Twenty and twelve,” I repeated.
He accepted.
Kendall would have gotten it lower, shaving years off the plea. Or maybe he would have taken it to trial and kicked some ass, getting it thrown out for insufficient probable cause on the warrant, or winning acquittal on the weakness of the case. Kendall would have done better, but he wanted nothing to do with the whole mess. Besides, Kenny deserves every day of those twelve years.
David and I shook on the agreement. He turned and hurried toward his next case in a courtroom down the hall. I watched him go. His suit jacket was short in the cuffs, but otherwise, he could disappear flawlessly into any crowd of young lawyers. A few seconds before he reached his doorway, in a baffling surge of something—call it desperation to mark the momentousness of our brief exchange, or call it hope, or call it sorrow—I yelled for him to stop, and I ran after him. People turned to see what was going on.
“Listen,” I said, “why don’t you come over to the U.S. attorney’s office for a visit sometime. Bring your résumé.”
CHAPTER 53
My nomination to the U.S. Circuit Court is stalled. Midterm elections are coming up in the fall. The Senate and the White House are controlled by different parties; partisanship is out of control. The chairman of the Senate Judiciary Committee has made it clear that he has no intention of moving on judicial nominations until November at the soonest. Depending on the outcome of the elections, the standoff could easily go another two years.
I hope I do get confirmed someday. As a judge of the circuit court, it would be my job to determine, with perfect objectivity, how laws and legal precedents apply to every twist of every sorry set of facts.
But is that not madness?
Because if you look at the facts from over here, the case resolves one way. You look at the laws from over there, it turns the other. Objectivity? There is no objectivity. Do you think I couldn’t find a legal argument for affirming a zillion-dollar jury award against, let’s say, a toy manufacturer whose carelessness has caused empty cribs and ruined families? Do you think I couldn’t find grounds for overturning the conviction of—I’m just imagining here—a confused, dyslexic, gay pot pusher like Zander Phippin?
It all depends on where you stand. Or more to the point, where you’re stuck. Except I don’t feel stuck anymore. I used to cringe at the idea of judging. Now I crave it.
• • •
Last fall, after my brief negotiation with the assistant DA, I had to talk Kenny into accepting the plea bargain. He was brought to me in gray prison pajamas. His eyes were red-rimmed, though I doubt it was from crying so much as sleeplessness. Already he walked with a timorous shuffle. I could see the first bits of eye-shifting, shoulder-bending decay of his natural self. Kenny is not a conqueror. He has gotten along in life by keeping his head down and mouth closed. It’s how he survived in the violent home of his childhood,
and it’s how he slipped past the well-intentioned but overworked teachers all through school who, if he ever made himself more conspicuous, might have found a way to bring the grindstone up to Kenny’s nose. Does invisibility work in prison? We’ll see, but already, as we sat down in the private cubicle reserved for lawyers and clients, I had the sense that if Kenny sat between me and a bright light, I’d see the glow right through him.
“You’ll plead guilty,” I told him.
“I never killed anyone.”
“I’m doing you a favor here, Kenny. It’s a good deal for you.”
“But . . .” he said. Then a tsunami of grief poured from him.
We spent several hours, just Kenny and me, inside that small cement room. With animal panic in his eyes, Kenny sometimes looked like he was about to go for me or the reinforced window that looked out over guards and prisoners who wandered past like hollow extras in a nightmare. Breathe, Kenny, breathe, I’d say with my hands on his knees, and together we’d take deep, controlled breaths until I saw the panic drain away. Twenty years, maybe to be released on parole as soon as twelve.
I got him to agree. He’d take the plea bargain. Then we went to work on his story. It helps to have a story. Something to repeat to himself so that, in time, maybe he’d come to believe it:
What happened, Kenny?
I was buying drugs.
What drugs?
Pot. Just pot.
To sell?
No. Just for me.
And you were where?
Rainbow Bend picnic area.
Why? That seems a long way to go just to buy some pot.
That’s where Mr. Illman said.
Had you met before?
Couple of times.
To buy pot?
Yes.
Any other business between you?
No.
What happened that night?
I don’t know.
You goddamn better know, Kenny.
Okay. He gets out of his car and I get out of mine, and he asks, have I got the money, and I say I do, and I give it to him. And then I say, “Where’s the stuff,” then he says, “Here’s the stuff,” and he opens his jacket, and there’s the gun in his belt. He calls me a fucking retard, and he’s got the gun in his hand, and I swing at him with everything I’ve got, but I miss his face and catch him in the throat. He goes down and drops the gun, and I, like, I try to find it. He was going to kill me, I think. Finally, I find the gun and jump up and shoot him.
How many times?
I don’t know.
Did you mean to kill him?
All I meant was for him not to kill me.
Seems like a lot of fuss over a few hundred bucks.
For sure.
What did you do then?
I just left him there.
Where?
Right at the edge of the river.
What was the weather?
Rainy.
What did you do with the gun?
I wiped it off.
Right then?
No. I mean I took it home and wiped it off. Then I hid it.
Why did you keep it?
I don’t know.
Did you touch his car? Get in his car?
No.
Did you tell anybody?
No.
No?
I mean yes. I told some guys I know. I showed a couple of them the gun; they must be who called it in.
What are their names?
Silence.
Kenny, what are their names?
Silence.
Kenny, are you refusing to give their names?
Yes.
Why?
I’m scared of them.
Kenny pleaded guilty to this crime he didn’t commit, explaining it with a story that never took place. He took the twenty years, eligible for parole at twelve.
• • •
Kenny’s confession to this murder, in addition to having been caught with the gun, is all the proof anybody needs that Kenny is, in fact, guilty of killing Scud Illman. The remaining matter of Maxy’s prints on the paper cup is easily explained: Maxy is back, and Scud was connected to him in some nefarious way. Maxy must have left a paper cup in Scud’s car. But given the confession by Kenny, there’s nothing linking Maxy to that killing.
As for the FBI Bureau chief, Neidemeyer, and the few others who know that Maxy has been dead for years, the appearance of his fingerprints probably looks like exactly what it is: a shady character who had an old paper cup for some reason, must have wanted to spread confusion. It is not in law enforcement’s interest to challenge cases that have been resolved with a confession and a sentence.
CHAPTER 54
Flora and I met one afternoon at Kenny’s apartment. We had put it off for weeks, but now we were out of time, and the new tenant was ready to move in. I had already done my crying over this wayward boy. I’d already been to the apartment and brushed fingers over the photos, which, taken so many years ago, had promised better things. I had considered his crimes; I’d prosecuted him, defended him, judged him, and sentenced him. For me, this trip was the sad errand of cleaning out the apartment. Though the events were poignant, even tragic, I had confronted the realities and moved from short-term shock into long-term acceptance. Not so Flora. It was newer to her. She cried, as I had the day I came here alone to wait for Kenny, the day we watched a video and ate Chinese takeout. Now Flora lay on Kenny’s bed, and I sat beside her.
“But he didn’t even smoke pot,” she said in reference to Kenny’s explanation that his shooting Scud was the result of the botched purchase of some pot.
“Go figure,” I said. She was right. Kenny had no interest in drugs, pot or otherwise. He liked his beer, he was continually quitting smoking, but he claimed to have an allergic reaction to pot.
“And he’s a coward,” she said with a tragic laugh. “I can’t see him wrestling that man’s gun away.”
“People surprise you.”
“Twelve years.”
“Twelve years.”
“Seems you could have done more,” she said.
“More how?”
“To keep him out of jail. Or not as long.”
The front door opened. Flora sat up, startled, and rubbed her puffy eyes.
“It’s just me,” yelled a man. He was one of the carpenters. “Bathroom break.” He unhooked his tool belt, peeking in at us unapologetically. It was the younger of two brothers I had hired to build the wheelchair ramp. Mrs. Kapucinski, the landlord, vetoed the ramp at first, but when I offered to pay for it myself—and then mentioned a housing discrimination action if she refused—she relented. Kenny has moved out. Fuseli, the tat man of Ellisville Max, has been released from prison and will move in as soon as the ramp is completed.
Flora is right, I could have done much more to lessen Kenny’s sentence, but I wasn’t about to tell her so. I shrugged and said, “I don’t know, babe. They wanted to charge him with first degree. I think we did okay getting him twenty and twelve on manslaughter.”
“Well, we’ve lost another one,” she said, her eyes red and swollen, her cheeks wet. “We don’t do so well with boys.”
CHAPTER 55
Last fall, when it looked like I’d be the new judge on the circuit court, Tina and I drove to Ellisville Maximum Security Prison for a meeting with the warden. I had an idea that arose after the night we spent in forehead-scrunching analysis of all the evidence in all the murders.
Fuseli, the tat man of Ellisville Max, was doing sixty to eighty. His appeals had been used up decades ago, and the only way to reopen a case all these years later, was if new evidence is uncovered. Even then, it’s far from a sure thing. No, there isn’t a defense lawyer on earth who could have gotten Fuseli out of prison now.
But what about a prosecutor? What came to mind when Tina told me about Fuseli’s wheelchair was a little-known provision of federal law called “compassionate release.” It allows the Bureau of Prisons, in extraordinary circumsta
nces, to ask the court for permission to release a prisoner before his term is up. The circumstances usually involve a terminal or chronically debilitating illness.
The warden at Ellisville is a reasonable and uneffusive man who courteously congratulated me on my nomination to the circuit court. He and Tina and I spoke for perhaps an hour. A week later, Judge Two Rivers received and approved a request from the Bureau of Prisons for the compassionate release of one Leroy Burton, aka Fuseli, after thirty-two years served of a sixty-to-ninety sentence. We moved him into Kenny’s newly vacated apartment. I’m not sure why I went to this trouble for Fuseli. I like him, but it’s more than that. Maybe I’m investing in the hope that sometime down the road, Kenny, too, will catch a lucky break.
• • •
Now it is springtime, the Saturday morning of Memorial Day weekend. I’m in my Adirondack chair, coffee cup between my palms. Mist rises off the black and golden surface of the lake. The birds are raucous. I’ll never be a serious birder, but I’m learning to identify a few of them, and to start thinking of them in groupings: sparrows, warblers, flycatchers, and thrushes. I hear one now, my favorite bird: tinga tinga tinga tinga ting. The hermit thrush.
Last summer I made a promise to the memories of Cassandra Randall and Zander Phippin that I’d catch their killers. Have I succeeded? Yes and no. Scud and Seth are dead, but they were mere accessories. The real killer, Percy Mashburn, has disappeared. And the snitch within law enforcement who handed Cassandra (and probably Zander) over to her assassins has never been identified.
Lizzy and her friend Homa come out of the cabin in running shoes and shorts, and with barely a glance in my direction, they’re off around the lake. They slept in my cabin last night instead of bunking next door with Chip and Flora. Tonight Tina will be here with me, and Chip is heading back to town, so the girls will probably move over to Flora’s cabin.
Chip and Flora are “together.” I’d never have predicted it in a million years. They’re both oddballs who were flung from their established orbits by the woes of life. What were the chances, as they hurdled randomly into the future, that their courses would line up so well? But I’m not complaining. It’s the happiest I’ve ever seen either of them.