Unsaid

by Neil Abramson

  “I’m not done with my ruling,” he says. “While I’m not going to require the government to produce the specimen, I’m not going to tell the defense how to try their case at this point, either. This is a criminal matter and the stakes are high—ultimately Dr. Cassidy’s freedom. If she wants to testify about her work with this chimpanzee, it seems to me that the defense is right, in the limited respect at least, that it is relevant to the question of her own motives in allegedly breaking into the facility—and that, in turn, may bear on the difference between breaking and entering and criminal trespass, to name just one example. It also goes to the issue of mitigating circumstances and I will allow the jury to hear some of it.

  “But I don’t intend to reach the broader question of whether this chimpanzee is more person than chair and I’m not inclined to allow the defense a great deal of leeway on that particular point from the defendant’s own mouth—PhD or not. The chimpanzee is a chair under the law and in this courtroom and I intend to so instruct the jury at the appropriate time.

  “You have my rulings on the record for any appeals either side may choose to pursue at the appropriate time.”

  David is quiet for a moment and then slowly rises. “About that appeal, Your Honor,” he says, “in light of your ruling, we request an order from the court requiring that NIS make no change to Cindy’s existing condition—including that she not be moved from her current facility—before the end of the trial without notice to the court.”

  “For what purpose?” Allerton asks.

  “So we can renew our application based on the evidence then before the court and pursue an emergency appeal at that time if necessary. As you know from our motion papers, once Cindy is transferred back to the general primate population, the application will most likely be moot.”

  Mace is back on his feet. “This is an outrageous request,” he says. “The primate is the property of the US government. We can transfer it today if we want to.”

  “The issue,” Allerton says, “is rendering moot any appeal by defendant on my exclusion ruling. If there ever comes a time when it is appropriate to bring the specimen into the court for whatever reason, that won’t be possible once she’s transferred. So the request of the defense is not unreasonable. But I don’t like enjoining the government if I don’t need to. Will NIS voluntarily agree to provide the court notice of any imminent change in the status of the subject?”

  “I really don’t see why we—” Mace starts.

  “Because the court is asking the government to do so,” Allerton says.

  Mace huffs and sighs. “Then, only as a courtesy to you, Judge, I will do as you have asked and only until the case is submitted to the jury.”

  “Thank you. Now that we’ve got the preliminaries out of the way, let me be absolutely clear. I do not intend to allow my courtroom to be used to satisfy someone else’s agenda—on either side. Here, there is one and only one agenda—and it is mine. And that agenda is for a fair trial. I will not tolerate any abuse of the court’s processes to satisfy some other end, regardless whether that end is just or just idiotic. Have I been clear, gentlemen?”

  David and Mace answer in unison, “Yes, Your Honor.”

  “Okay, let’s take fifteen minutes and then we will pick a jury.”

  Once David and his team are together again outside reporters’ earshot, Jaycee is the first to speak. “What the hell does all that mean?”

  “It means,” Max responds, “that you’re still alive—for now.”

  “But he denied our request to produce Cindy,” Jaycee says.

  “We knew that was going to happen,” David answers. “The request was just the way to get an order preserving Cindy’s status during the trial. We didn’t get that, but I think Mace’s representation, given his long-term aspirations, has to be good enough.”

  Chris nods. “Mace wouldn’t take the chance of screwing with Allerton on that one.”

  “So we got past step one,” Jaycee says.

  “Don’t start planning the victory party just yet,” David says. “Allerton’s slicing it pretty fine on the necessity defense. He’s going to cut off your testimony anytime you cross a very thin line between your subjective motives and whether, objectively, Cindy is a sentient being different from other government property.”

  Jaycee looks confused. “But the jury will still hear me explain what Cindy can do. Allerton said that.”

  “Yes,” David answers. “But in the end, the jury will be instructed that it’s not a defense to the crime. Without the ability to argue the legal point, your testimony about her may turn out to be just sound and fury.”

  “So what can we do?” Jaycee asks.

  “The only thing we can do,” David replies. “Tell the truth as clearly as we can and hope that it’s enough to keep you out of prison.”

  “In that case,” Max tells Jaycee, “I hope you packed your toothbrush.”

  David always told me that most cases are won or lost in the jury selection process, known as voir dire. This time, the process takes just over two hours of questioning by Allerton and the lawyers. At the end of it, the parties have a panel of three women, three men, and one woman alternate.

  During the brief recess, Max tells David, “Not a bad jury, but I sure would’ve liked to have been able to excuse that last guy.”

  The “last guy,” Juror Six, is a beefy head of production for one of the New York tabloid newspapers who worked his way up through the ranks. He played football in college, was married twice, had no kids, and no pets. Even I could tell that the guy hated being here.

  David shrugs. “The question with him is really going to be whom he blames most for making him serve—Jaycee or the government for prosecuting her.”

  “Besides, you only need one to hang the jury,” Chris adds. “We couldn’t have done better than Jurors One and Two.” Juror One was a single, thirty-seven-year-old female schoolteacher with two cats. Juror Two was a forty-three-year-old female nurse with two school-aged children and married to a pediatrician.

  “Hopefully,” Max says, “they’re opinionated enough that they won’t be swayed by Six.”

  “Let’s see who they pick as the foreperson,” Chris says. “If it’s Six, that’s a pretty good indication that he’s taking control.”

  When the jury returns, they get their answer.

  “Crap,” David mutters under his breath. Juror Six is sitting in the first seat in the jury box, meaning that he’s been elected foreperson by the others and will lead the deliberations.

  “Nothing you can do about that now,” Max whispers.

  “Just stay on message,” Chris encourages him.

  Everyone takes their seats and Allerton enters the courtroom a few moments later. Once the courtroom settles following the “all rise,” Allerton addresses the jury. “We will now hear opening statements, first from the government and then from the defendant. I remind you that opening statements are not evidence, but only brief summaries of what each side intends to prove with its evidence yet to come.”

  Mace walks the short distance between counsel table and the jury box and then stands directly before the jury.

  When Mace begins to speak, his voice booms. “Ladies and gentlemen of the jury, my name is Alexander Mace and I represent the people of the United States.” Mace says this as if he actually imagines the American flag is waving behind him when he speaks. He is pompous, self-righteous, and impossible to ignore.

  “In short, I represent you—and every other law-abiding citizen. I represent the laws that the legislators you elected have passed to protect you and your families and your homes and everything in them. My job is to make sure that the laws are upheld and enforced. And that is what I am going to ask of you in this proceeding—uphold and enforce the law as it has been written and as the judge will explain it to you.

  “Sometimes the laws that I am supposed to enforce are very complicated and require the testimony of experts to explain the who, why, and where of things. T
oday, however, my job is pretty simple. I’m charged with enforcing a rule of law that every child learns for the first time in nursery school—you can’t take what isn’t yours.

  “The defendant in this case, Jane Cassidy, Dr. Jane Cassidy, broke into a government building with the intent to steal property of the United States government. You will hear witnesses who will testify that Dr. Cassidy, under cover of darkness, broke into the facility operated by her former employer and grabbed the item that she wanted. Then, with that item in her hands, she ran out of the facility. She was caught by two security guards a few feet away from a perimeter fence as she was trying to get back to her car. When she was caught, she still had the stolen property with her and even then she refused to give it back.”

  Now Mace looks directly at the foreman of the jury. “She took property that wasn’t hers and that she knew wasn’t hers.”

  Mace takes a step back and pauses for effect. “Property,” he says. “We all have it in some form or another. Our houses, or cars, television sets, or computers. And we all work in places where we come into contact with property that isn’t ours. Maybe it belongs to a co-worker or maybe to our employer.

  “Our right to our own property is what allows us all to come together without fear that someone will take your possessions from you because they are stronger, or smarter, or just plain old sneakier, or that someone won’t simply break into your house and take your possessions while you are here—at least not without thinking twice about the jail time he or she must serve if found out and convicted.

  “Dr. Cassidy took property that belonged to someone else and that she knew full well belonged to someone else. Yes, ladies and gentlemen of the jury, this case is that simple. That is the beginning, middle, and end of this sad story. That is why you must find her guilty.

  “Allow me to give you one warning. You will hear argument from the defendant that this property is different from a television or a computer. That’s true. This property is a research subject—a chimpanzee that Dr. Cassidy had experimented on for four years. During that time, Dr. Cassidy was paid a handsome salary by the government institution she worked at and happily accepted all the compensation she was offered for her research expenses. Eventually, the decision was made that Dr. Cassidy had been given enough time on the government’s dime and it was time to give someone else a chance. It’s another rule we all learned in nursery school—share.

  “Dr. Cassidy didn’t like that decision, and who can blame her? Who wants to have to leave the warmth of the government bosom and be forced to get a job in the competitive world of the private sector, where there is no nine to five, no research associates to respond to your every beck and call? She disagreed with the decision so much that her last act was to steal from her employer.

  “Now, the defendant may try to sway you with moving anecdotes about this chimpanzee in the hope that you will find her conduct excusable or justified. Don’t allow yourself to be manipulated. Don’t be used.

  “Chimpanzees are amazing creatures. They can do amazing things. You may hear some of what this chimpanzee can do, and you would be right to be amazed. But there is at least one thing that it cannot do: It cannot choose to become something else under the law. This chimpanzee is property under the law. It is and has to be property because the only other thing it can be under the law is a human being just like you and just like me, and it certainly isn’t that, no matter what games or tasks it can perform. That is the bright line the law has recognized ever since there was law. And you cannot break into someone else’s home—or business—and steal their property, no matter how much you covet it or how much you self-righteously believe you can improve its existence.

  “Some of you have dogs or cats at home that you love very much. I do as well. I ask you right now to take a moment and think about how it would feel if someone broke into your home and stole your dog or your cat and they did so with the justification that they knew what was better for it than you did. How will you feel when you get home today, expecting to be greeted by your beloved animal companion, only to find that he or she isn’t there because it’s been taken by someone else?”

  Mace stops and lets each juror ponder that question for a moment. Some of the jurors shift in their chairs, uncomfortable with the images they’ve been asked to envision.

  “Now remember that feeling when you hear the defendant testify. Thank you.”

  Mace returns to his seat and David is up before the jury has a chance to think about what they’ve just heard. David wears that boyish smile I love when he walks over to the jury box.

  “Ladies and gentlemen of the jury, my name is David Colden. I represent that heinous criminal you just heard Mr. Mace describe to you. That’s her,” David says, pointing to Jaycee, who sits quietly with her hands folded in her lap, “over there. Now don’t worry, ladies and gentlemen,” David says, chuckling, “if she makes a move, those marshals are licensed to shoot.” Jurors One and Two smile at David.

  “I think Mr. Mace went to the wrong courtroom today. Whatever case he told you he was going to try today isn’t this one. No way. Let me tell you now a little about this case. There was a crime committed here—but it wasn’t by Dr. Cassidy. The crime is by those who would torture a thinking, feeling, caring, intelligent creature and expect others to sit idle amid the torrent of blood and screams.

  “Dr. Cassidy is a world-renowned—that’s right, an internationally respected—scientist. Her particular expertise is how different species have evolved—how species are similar, how they are different, why some learn language and some do not, and how that all came about throughout the history of time. She’s written more scholarly articles and book chapters than could easily fit in a large bookcase. She’s lectured at Princeton, Harvard, UCLA, and Northwestern. She’s been honored with private and public grants for her research. And when you finally meet her directly, you will also see that she is one of the most compassionate human beings you will ever encounter.

  “About four years ago, Dr. Cassidy met Cindy. When they first met, Cindy was just a baby, taken from her mother before she was weaned and left in a cold, dark place. Dr. Cassidy raised Cindy from an infant, she changed her diapers, rocked her and sang to her when she couldn’t sleep, held her hand when they walked together. And Dr. Cassidy listened to Cindy when Cindy spoke to her, went to her when Cindy called her name, fed her when Cindy said she was hungry, and reached out for her at the end when Cindy screamed for help.

  “And scream she did, when the only person who ever showed her any kindness and, dare I say it, love, was forcibly removed by armed security guards under the control of the United States government.

  “That’s correct, ladies and gentlemen, Cindy is not a human being; she is a chimpanzee. But she can communicate in our language as well as a typical four-year-old human child. You will hear and see conclusive scientific proof of that fact and, with it, the inescapable knowledge that Cindy is a vibrant, curious, funny, intelligent, and sentient being.

  “It is a remarkable thing to see a chimpanzee use our language. Whatever else happens in this case, I hope at least that you will agree with that much.

  “Surely, intelligent humans”—here David pauses to look at Mace—“knew the time would eventually come when we would understand enough about the natural world that we would be able to decipher the barriers that separate us, and in that process gain a better understanding of who we all are. Dr. Cassidy has been at the forefront of that understanding. She is no criminal—unless insight and caring have become crimes.”

  David paces the length of the jury box, giving the seven humans sitting therein an opportunity to consider what he has said thus far.

  “So how do we find ourselves here? How is it that you’ve been taken from your jobs and your regular schedule to listen to the government try to prove that Dr. Cassidy is a criminal? That is a sad story indeed.

  “The government decided to terminate Dr. Cassidy after four years, which is their right. They wanted to t
ake her years of research, which it is true they paid for. Even that would not have brought us here today.

  “But the government also decided that Cindy, this creature with the language skills of a four-year-old girl, would be ripped from the life she knows and returned to the government’s general primate population, which is used for all types of invasive experiments. She could be infected with AIDS, or hepatitis, or forced to undergo experimental surgical techniques without post-surgery pain medications—experimental surgeries the likes of which, I assure you, will give you nightmares for weeks to come.

  “Dr. Cassidy couldn’t let that happen, not to this creature whom she had raised as an infant. Not to this creature who calls her by name and probably still awaits her return and rescue.

  “It’s not like she didn’t try other means. Dr. Cassidy offered to purchase Cindy, but the government said no. She offered to do literally anything to save this young chimpanzee girl’s life. The government said no. Then she tried to rescue Cindy from her fate, and here we are.

  “One of the elements that the government must prove to you is that Dr. Cassidy was motivated by the intent to steal the government’s property. The evidence will show that her only motivation was to save this chimpanzee—this conscious and communicative being called Cindy—from almost certain death. That is why you should find her not guilty.

  “So now let me thank you for your attention and patience and finish this story where Mr. Mace finished his. A dog or a cat in your house.”

  David looks each juror in the eye as he continues. “Imagine that you’ve fostered this animal for four years of your life; that your home is taken from you and you’re told you must leave the animal behind, alone in the house you’ve been evicted from; that you learn the animal will be subjected to excruciatingly painful experiments before it is killed. Now, finally, imagine that this creature isn’t really a dog or cat at all, but something that acts, thinks, feels, and communicates with you like a little girl.

  “There’s only you. What will you let happen to her? What would you do?” David says so quietly that some of the jurors lean forward to hear him.