by D. W. Buffa
“Part of it is under seal.”
“Oh,” he said with a show of indifference.
“I came here to see you, Elliott, because a second judge has been murdered. Did you know about it?”
His lifted his head and twisted it a quarter turn away. “Of course I know that. After all, I’m completely sane, aren’t I? I know everything. What judge?”
“The judge who sent you here: Quincy Griswald. Remember him?”
He was watching me, waiting to see where I was going with this. Or was he perhaps testing me, seeing how far I could get without his help?
“Jeffries is murdered in the courthouse parking lot, stabbed to death by a patient who escaped from here. The police get an anonymous call telling them where they can find the killer. The killer confesses and then, that same night, smashes his brains out on the concrete floor of his jail cell.” I was leaning forward, my weight on my arms, peering deep into Elliott’s eyes. “There’s no record he ever knew Jeffries. Maybe it’s just a random act and it’s only a coincidence he spent years in this place with you.”
There was no reaction, nothing to betray what Elliott was thinking, if he was thinking anything at all.
“Then Quincy Griswald is murdered, murdered in the same place and in almost exactly the same way. Everyone thinks it’s a copycat killer, but there’s another anonymous call, and another arrest is made in the same place as the first one. Only this time they arrest the wrong man, someone who has the murder weapon because the real killer gave it to him. And the real killer, like the killer of Calvin Jeffries, is an escaped mental patient. Two murders, two killers, both of them escaped from here, and the only thing that links both the victims and the killers together is you, Elliott, just you.
“Jeffries took everything away from you, and Griswald helped him do it—that is the only thing that links them together, the only thing that supplies a motive for a double homicide. Neither killer had any connection with his victim. You’re the one who would have wanted them dead, and you’re the only one who could have put those two up to it.”
His expression did not change. He sat there, the detached observer, perfectly content to listen, as if nothing I said had anything directly to do with him. I pushed back from the table and locked my hands around my upraised knee.
“I’m not sure how you managed it, but I must tell you,” I said admiringly, “in all the years I’ve practiced law, it’s the most ingenious thing I’ve ever seen. It isn’t just a perfect crime. It’s better than that. It’s the perfect defense: You can’t be held responsible for anything. You’re insane, aren’t you? The state says so. They can’t turn around and say you’re not: You’re locked up in the hospital for the criminally insane.”
Elliott listened intently, rubbing his index finger back and forth across his lower lip. “Why would I need that defense, or any other? What crimes would I have committed?”
I thought he must have forgotten one of the most basic principles of criminal responsibility. “Solicitation carries the same penalty as the crime solicited.”
He raised his thick eyebrows. “Solicitation requires a specific request for a specific act.” I looked at him, unsure of what he meant. “Besides,” he went on, “these two killers you speak of were both escaped mental patients, correct? Then tell me: How do you go about soliciting someone insane to do anything?”
I had not thought of it, and with a flash of intuition, he saw it. He sat up and leaned forward. “Have you ever thought about how easily people are led to believe things that have no rational foundation at all—religion, for example—and not just this religion, or that religion, but all religions? Have you thought about the way some people believe the same thing is evil that other people believe is good? Or about the way some people are willing to die for what they believe, while other people think it’s lu-dicrous, unless, of course, it is for what they believe in?”
The idea seemed to ignite something inside him. His eyes grew larger, more intense, and he sat straight up, once again rigid and erect, the veins throbbing in his neck. And then it happened, the same thing that had happened when I had been here before, that terrifying, inexplicable lapse into complete irrationality.
“Everyone has to believe … grieve … weave … heave …
achieve …” He stopped, his eyes wide open, while his long lashes beat down over them, measuring the rhythm of his now silent speech. Then, as quickly as it had started, it was over. “What makes you think whoever killed Griswald was a patient here?” he asked, without any apparent awareness of what he had just been doing.
I had something else on my mind, something I wanted to leave him with. “Don’t you think it would be difficult to accomplish something so ingenious and never have anyone know about it?
Do you really think it would be enough to know that you had gotten away with a remarkable act of revenge when everyone else thought you were still either insane or the pathetic victim of someone much smarter?”
His head jerked up and his eyes narrowed. “Do you know why people seek revenge? It isn’t to even the score, or to settle things once and for all; it isn’t even to punish. It’s to do the one thing everyone claims you can never do: change the past.” His eyes flared open. “Yes, to change the past. You think that’s impossible? You think you can never change the past?” He gritted his teeth, and in three spastic bursts pulled his lips back as far as they would go. “The past is the only thing you can change. Turn away from the perspective of the present, look ahead into the future, then look back and correct what the past will be. That’s what revenge accomplishes. You can think of yourself as a victim because of what was done to you; or you can think of yourself in quite a different light because of what you did to them.”
He cocked his head, like someone catching the sound of something far off in the distance. “If I were condemned to live my life over and over again, always the same thing, forever, what do you think I would want it to be? What Jeffries did to me, or—just for the sake of argument—what I did to him?”
“Just for the sake of argument?” I asked skeptically.
“For the sake of argument, because, again, what makes you think whoever killed Judge Griswald was a patient here?”
“Because it’s the only way it could have happened.”
“Ah, the only way if I was the one who somehow persuaded two different mental patients to commit two different murders.
And tell me, my old friend, just who is this second murderer, this second patient you think I sent out into your world to extract this little measure of revenge?”
Friedman had denied that anyone after Whittaker had escaped, but I did not believe him.
“The history teacher, the one who does tricks with numbers, the one who slashed someone’s throat in Portland because he thought he was in Vietnam—the one who asks permission to go to the bathroom.”
He looked over my head, scanning the room. “You mean him?”
he asked as I turned around to see where he was looking. On the other side of the room, the patient I was certain had escaped, the one I knew had killed Quincy Griswald and given Danny the knife, the one I was sure had drowned in the river, was standing next to the orderly, waiting to be taken to the bathroom.
Twenty-three
_______
Idrove directly from the state hospital to the downtown bridge where I had lived for a night and a day as one of the homeless, but I could not find him. The only witness I had to the identity, and even to the very existence, of the man who had given the knife to my innocent client had disappeared, moved on to some other temporary encampment, vanished into the vast migration that, right in front of our eyes, took place every night and every day. I had been so certain, so confident that I knew who had done it and why; and now, as I sat listening to the prosecution make its opening statement, I wondered if I knew anything at all.
Cassandra Loescher was clear, precise, every word so freighted with moral outrage that you might have thought the defendant
had been charged with the murder of his mother rather than the killing of someone he never knew. I had heard the same thing a hundred times before and seen it in a dozen different dreams.
Somewhere there had to be a dog-eared manual that described paragraph by paragraph what every prosecutor should say at the beginning of every homicide brought to trial. Everything followed a formula; every fact the prosecution was required to prove was fitted into place.
Dressed in a simple black dress, dark stockings, and black shoes, Loescher stood a few steps away from the jury box and, changing her tone, recited in a quiet, dignified voice the list of witnesses she intended to call and the testimony she expected each one of them to give.
“And when you’ve heard all the evidence,” she said at the end, her brown eyes glowing with confidence, “I know you’ll agree that the state has met its burden and that the guilt of John Smith has been proven beyond any reasonable doubt.”
Sitting next to me, the defendant known to the world as John Smith played with his tie. He had never worn one before and every morning when the deputy sheriff brought him into the courtroom, I tied it around his neck. Clean-shaven, with a decent haircut, he looked like a perfectly normal young man, except for the way he sometimes let his mouth hang open or rolled his head from side to side. Shy, and even terrified around strangers, he was also, I think, curious about the proceedings that were going on around him. At first he would not look up from the table, but gradually, as he became used to his surroundings, and especially the twelve faces in the jury box, he began to lift his eyes. He watched Cassandra Loescher tell the jury why he should be convicted of murder and when she finished smiled at her as if she had just said something nice.
Loescher had held the courtroom for nearly an hour, and when she sat down there was a dim, dull shuffling sound as the spectators, crowded together on the hard wood benches, shifted position. Slouched in the chair, both index fingers pressed together on my mouth, I was still trying to decide exactly what I should say when I heard the voice of the judge call my name.
“Do you wish to make an opening statement?” Judge Bingham asked.
I looked over at the jury and searched their eyes. “Yes, your honor,” I said as I got to my feet.
It had taken four days to pick a jury, and I had spent most of that time trying to convince them that they were there not to decide what had really happened the night Quincy Griswald was murdered, but whether the state had proven the guilt of the defendant beyond a reasonable doubt. I had done the same thing thousands of times before, persuading jurors to ignore their com-monsense notions about what had probably happened and to insist on facts about which there could be no dispute before they considered convicting someone of a crime. But this time was different. It was going to take more than an insistence on reasonable doubt if I was going to have any chance to win.
Standing at the end of the jury box, I put one hand on the railing and pushed the other into my suit coat pocket. This jury was like all the others. Three of its members had graduated from college, and one or two had some training beyond the twelfth grade, but most of them had ended their formal education with high school. There were no doctors, no lawyers, no business ex-ecutives, and no one who held any important public position.
Four of the twelve were retired, and of the seven women, three were grandmothers. Though it was not the fair cross section of the community it was supposed to be, it was in another way the perfect mirror of who we are. These were people who wanted to do the right thing and were willing to follow the lead of whoever seemed to know what that might be. I began with a confession.
“During voir dire, when I had the chance to ask each of you questions, we spent a lot of time talking about reasonable doubt and what it meant. Ms. Loescher kept trying to suggest that it didn’t mean you couldn’t be left with at least some doubt, and I kept trying to convince you that you better not doubt it at all before you decide to convict someone of a crime. I’ve been doing this for much of my life now, and it never changes. We keep asking these same questions, keep trying to convince you what the words ‘reasonable doubt’ mean. Do you know why I do that?”
My eyes moved along the front row, from one juror to the next, until they came to rest on a young woman, Mary Ellen Conklin, sitting with her hands folded in her lap.
“Because I learned a long time ago that the best way to win was to convince jurors that their obligation was to decide—not if the defendant was guilty—but if the state had been able to prove it … beyond that famous reasonable doubt.”
I looked away from the young mother of two and found a middle-aged Latino, Hector Picardo, in the back row.
“You’re not here to decide the truth; you’re here to decide whether what the state tells you is the truth, and not to take their word for it, either, but again, to prove it against the most stringent possible standard. I want juries that insist on that—the defendant has a right to have a jury that insists on that—and that’s why I keep asking those questions about whether you think it’s fair that the state has this incredibly difficult burden, fair that the prosecution has to prove its case and the defense doesn’t have to prove anything.”
I moved away from the railing, folded my arms across my chest, and stared down at the carpeted floor. Smiling to myself, I shook my head and then, a moment later, lifted my eyes and cast a sideways glance at the jury.
“The truth is: In most cases we couldn’t prove anything if we had to, because, you see, in most cases the defendant is guilty.”
Out of the corner of my eye I saw the judge suddenly look up.
“That’s the reason defense lawyers always insist so strenuously that the whole burden of proof is on the prosecution; that’s the reason why in more cases than I can remember I made certain the defendant never took the stand to testify in his own behalf.”
Cassandra Loescher was sitting on the edge of her chair, ready to make an objection as soon as she figured out what there was to which she could object.
“We have this very famous jury instruction—Judge Bingham referred to it when you were first sworn in, I spent most of my time on voir dire talking about it—you can’t convict anyone unless their guilt has been proven beyond a reasonable doubt. There is another jury instruction, one we did not talk about, but one that has to be given if the defense requests it.”
I went back to the counsel table, opened the file folder that lay next to my yellow legal pad, and pulled out a single sheet of paper.
“Here,” I said, waving it in my hand. “This is the jury instruction entitled ‘Defendant Not Testifying.’ It tells you that you may not comment on the failure of the defendant to testify, and that you may not in any way consider that fact in your deliber-ations. The judge is required to instruct you that it doesn’t mean a thing. But the truth is, it means everything. It means that the defendant has something he doesn’t want you to know. It doesn’t necessarily mean he’s guilty, it may only mean that he has done some bad things before: serious crimes, crimes reflecting dishon-esty or a penchant for violence, things that would make a jury believe that because he had done it before, it was likely he had done it again.
“There are cases like this, where the defendant doesn’t testify because, though he is innocent of this crime, he has the kind of criminal record that will make it almost impossible for anyone to believe he’s telling the truth. But more often than not, when the defendant doesn’t testify, it’s because the defendant is guilty. The defendant did it, and because a lawyer cannot put someone on the stand he knows will commit perjury, and because the only truthful testimony the defendant can give is to confess to the crime, he doesn’t testify at all. And then the jury is given this instruction,” I said, lifting the single sheet of paper shoulder high before I let my hand fall down to my side. “No one can make the guilty testify against themselves,” I went on, darting a glance at Cassandra Loescher. “And no one can stop the innocent from testifying about what they know.”
She was out of the
chair, raising her hand to attract the judge’s attention. “Objection, your honor,” she said without raising her voice beyond what was necessary to make herself heard. She was smart. It was too early in the game to show anger.
His hands clasped together under his chin, Bingham smiled politely. “Yes?”
“Instead of providing a preview of what he expects the evidence to show, Mr. Antonelli is attempting to characterize the credibility of the defendant.”
He turned to me, the same civil smile on his face.
“I believe, your honor, that the jury is entitled to know the circumstances under which a witness is going to testify. For example, when an expert witness testifies, the qualifications of that expert—”
“Are elicited during the examination of the witness,” Loescher interjected. “But he isn’t talking about the qualifications of an expert in any event, your honor. He’s attempting to bolster the credibility of a witness by invoking a jury instruction which, it seems obvious, has no application to this case.”
That was exactly what I was trying to do, and we both knew it was too late to stop it. What she was trying to do instead was to let the jury know that I was not playing by the rules, and to let the judge know that even during an opening statement she was going to insist that the rules be enforced. She was no one’s fool, and she would have been astonished had she known how grateful I was that she was not.
Bingham had heard enough. “Perhaps discussion of jury instructions should be left to closing argument,” he said in that civil way of his that made every decision sound like a helpful suggestion.
I had not moved from the place where I had been standing when Loescher made her objection. Now I stepped forward, moving closer to the jury, and picked up where I had left off.
“The defendant in this case is going to testify, and he’s going to tell you what he knows; though about all he knows is that he did not kill Quincy Griswald and that he has never harmed anyone in his life. He was living under the bridge—a bridge some of you may drive over every day to work—one of the homeless who wander around the city, picking up trash, things that other people throw away, things they can wear, things they can use, things they can trade for a little money or a little food. He was living under the bridge, homeless and alone, and someone gave him a knife—the knife that killed Quincy Griswald—and he took the knife and he kept it, and when the police came he told them it was his and he told them how he got it.” I shrugged my shoulders. “They didn’t believe him. Why should they? He was right where an anonymous caller had told them they would find the killer; he had the knife; and—let’s be perfectly straight about this—they thought he was crazy.”