The soloist

by Salzman, Mark

  "But it does! It's not a normal religion you're talking about. Maybe it's normal for people over in Japan, but not here."

  Dwight's analogy^ of the drunk driver came up again; it was a good point. But something about it didn't seem right. I struggled to figure out why it didn't convince me, then offered another analogv' to counter it. "What if a man is at

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  home . . . he's drinking at home and he has no intention of going out. Then he gets a phone call from a hospital. His wife has been in an accident and she's badly hurt. The man jumps in his car to go to the hospital; if he were sober, or if it weren't an emergency, he might think clearly enough to call a cab. But he panics; he runs out to his car, drives it and causes a bad accident. OK> Now he's on trial for manslaughter. . . . Granted, he caused an accident; he was driving drunk and it was his fault. But is he as guilty as the guy who goes to a bar and gets drunk for fun, then drives.^"

  "No, but—"

  "What are you saying, Reinhart.>" It was Maria-Teresa asking me. Her voice sounded tired.

  "I'm saying," I said, feeling hopelessly bullied, "that this isn't . . . It's not a matter of black or white, absolutely guilty or absolutely innocent. It's more like a gray area, and I think the insanity defense fits here. It seems to fit this boy and what he did. It wouldn't be just setting him free, it would be more like ... I mean, he obviously needs to be locked up, but this way he'd get treated, and since he never got to see a doctor when he was growing up, I think he deserves the benefit ... I think he deserves the chance to get treated. Doesn't that seem fair to you.>"

  "No it doesn't," Roy grumbled. "Look at what you're saying! You're saying that all the rest of us—all eleven of us—are totally wrong about this guy, but you're the only one who sees it clearly. Doesn't this strike you as being . . . Doesn't it make you think that maybe you're being unreasonable, that maybe you^re the wrong one.>"

  "Of course it makes me think that!" I said, slapping my hand on the long table in frustration. "Do you think I enjoy this? I'd love to vote guilty and go home! You're staring and

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  yelling at mc as if rm doing this on puqx)se just to inconvenience you. I'm not. Vm examining as hard as I can everything Vm saving, and if I see I'm wrong I'll be happy to admit it! I'm doing what I think I have to do. Am I wrong about this? Aren't we supposed to take this seriously, and vote honestly? This is a murder trial we're talking about, and I can't vote guilt' just yet. I can't live with the idea that I'd be convicting a man of murder just because eleven people were annoyed at me. Can you possibly try to understand diat?"

  One thing that none of the jun^-room dramas I'd seen or read prepared me for was the silence, the tense periods between exchanges that could last for minutes at a time. I kept thinking of the movie Twelve An£fry Men, where Henry Fonda found himself arguing against eleven men, but at least there they kept talking the whole time. Having someone to argue vith was far better than those interminable pauses, where no one said anything and I felt it was my obligation, as the sole holdout, to keep the debate moving. My mind would grasp wildly for new ideas, while at the same time I was asking myself, Is this really necessary? Would it really be wrong for me to change my vote?

  The other thing that surprised me was discovering what sort of points contributed to the jury's impression of the case, and to their decisions to vote for conviction. The lawyers' clothing, mannerisms and accents counted heaily. Ms. Dop-pelt struck most of them as being '"cold" and '*pushy," whereas Mr. Graham seemed "nice," ""'a regular guy, not trying to put anything over on anybody," ''reasonable." The fact that the defendant looked obliious and smiled vacantly worked against him. The first psychiatrist was too young; he

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  was a smarty-pants, an intellectual, too smart for his own good. The state's psychiatrist was no-nonsense, another regular guy. The Japanese man's eloquent, almost poetic testimony had grated on many people's nerves, it turned out. They thought he was snobbish, and acted superior. I got the impression it was because they didn't like seeing a foreigner, particularly an Asian man, using bigger words than they did.

  I really did think about changing my vote just to get it over with; I considered it all the time, over and over. If eleven people thought he was guilty and I couldn't change all their minds, why bother voting against them.> None of the others seemed to be hearing anything of what I'd been saying. It was as if I were speaking another language; when I spoke they all looked down at the table with barely concealed irritation. If I stuck to my vote it would mean that the trial would have to be done all over again. The lawyers would have to start all over, the witnesses would all have to come back, a new judge would have to be assigned, another courtroom would be needed, another jury would be selected, a whole new trial would occur, all because my conscience wouldn't let me send a man who killed another man to jail. It would probably be a futile and expensive gesture.

  I wondered if the hospital would really be so different from prison. I also wondered if treatment now could help this boy much after all. Both doctors had said that schizophrenia can't be cured, and he looked perfectly satisfied with the way he was. Maybe he wouldn't pay any attention to the treatment. Maybe it would make him even more self-satisfied. The worst part of it was that I really didn't care what happened to him. I didn't have much sympathy for him or feel that one day he would contribute to society. I assumed he would always be

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  a burden to us all. He had killed someone, after all. He took someone's life away forever, and he was irritating even to look at.

  Just before my first solo appearance with a full symphony von Kempen told me that an orchestral composition is like a piece of elaborately woven fabric. If you damage even one of the threads, the others around it start to unravel and the whole fabric can disintegrate. This is why individual members of the orchestra must be vigilant and maintain their concentration, even during passages when they don't play at all. Von Kempen believed that if a single musician became distraaed and thought of something other than the piece, he could feel it pulling the music down. I think that maybe society, not just music, is like that. When a man like Philip Weber punches a hole in the fabric, threads start to unravel. The damage spreads, far beyond the Zen church or the Japanese man's family. Considering the damage he had caused, I wondered, was it really humanitarian to focus so much concern on him.^ Would it be better, perhaps, to focus attention on repairing the damage? One way to do so would be to send him to jail. Societ^ likes to see people who have hurt other people be punished. It heals the fabric.

  But just because society likes to see such people punished doesn't mean that in the long run it's the right thing to do. You wouldn't repair a silk embroidery with fishing line. Just because the sort of people sitting on this jury with me, eleven people of average ignorance, more or less, wanted an eye for an eye wouldn't necessarily make it a good outcome.

  In the end, this was why I couldn't change my vote. Since I couldn't possibly know what was right, and since I couldn't

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  know what the consequences of either verdict would be, I had no choice but to vote as I believed. It was really the only viable basis for a decision.

  Which is what I told them over and over, grueling hour after grueling hour. I said it before lunch, I said it after lunch, I said it all day. And as I became more and more exhausted they became more and more exasperated. By the end of the second day it wasn't just Maria-Teresa who could hardly bring herself to look at me. At nearly six o'clock that afternoon we agreed to go home and come back for one more day, and if I still felt I couldn't change my mind, we would announce a hung jury.

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  After less than an hour the next day the others voted to declare themselves a hung jury. We filed back into the courtroom, where Dwight stood up and told the judge we were deadlocked, eleven to one, and that we hadn't gotten anywhere at all in two days of painfijl deliberations. The courtroom burst into confiision and noise; the dead man's mother
began crying and had to be led by her family out of the room.

  Once she left the room I thought the worst was over, but to everyone's surprise and dismay. Judge Davis reftised to accept our decision. After bringing the court to order he frowned at the jury so hard that his eyes nearly disappeared, and he rebuked us in booming tones for not trying hard enough. He reminded us that this was a murder trial, and that it had cost the courts, not to mention the witnesses and lawyers, a great deal of time and money to put on, and he wasn't going to let us give up and go home after only two days. He sent us back to the jury room and told us not to return until we had fulfilled our obligation to serve justice and had reached a verdict.

  I thought the deliberations had gone badly before, but I

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  didn't know what bad was until I lived through what came next. We stayed in that room for four more days, forcing me to cancel Kyung-hee's lessons for the second Monday in a row. One by one the jurors abandoned all pretense of having any respect for me or my opinions, making each day more uncomfortable than the last. I felt violendy torn between the desire to change my vote and the fear that if I did it would haunt me for the rest of my life. I believed that Philip Weber was out of his mind and that the right thing to do was to send him to a medical institution, regardless of how viscerally unsatisfying that might have been. I felt that sending him to jail would be demoralizing in the long run. Our social conscience is nourished whenever we live up to the agreement we have made with one another not to punish people who don't deserve to be punished, including people who are incapable of being responsible for their actions. Was I sure that Weber couldn't have stopped himself> No, not absolutely sure, but reasonably so, and if it is true that in the United States someone is innocent until proven guilty, and that as a society we have agreed that it is better to let a hundred guilty men go free than to send one innocent man to jail, on what basis could I have voted guilt>> If I was an innocent man wrongly accused of a crime, I would certainly hope that at least one member of my jury adhered to those ideals. How could I have changed my vote, as the others were asking me to do, in order to save taxpayers the expense of another trial? That shouldn't be a consideration at all.

  During the worst moments, when 1 thought I might go insane myself from the tension, I remembered that von Kempen had lived through this and far worse. Every day of the last twenty-five years of his life he had to live with the knowledge that his name had come to be associated with one

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  of the most shameful periods in recorded history. Believing that it would do more harm than good to struggle against those accusations, and probably also out of guilt that he had not taken a more igorous stand against fascism as Casals had, he responded with dignified sacrifice. For a man like him to silence his instrument was surely as painfiil as for an ordinarv' person to cut out his or her own tongue, but instead of redeeming him, his sacrifice led to his being merely forgotten. In spite of all this, he never gave in to despair or breathed a word of complaint to anyone.

  In the jur)' room we asked for transcripts of the testimony and went over the evidence of the trial so many times that I learned most of it by heart. One quote in particular, originally ft-om an American Bar Association report, summed up the whole trial, as well as our dilemma as jurors: "There is no objective basis for distinguishing between offenders who were undeterrable and those who were undeterred, between the impulse that was irresistible and the impulse not resisted, or between substantial impairment of capacity^ and some lesser impairment . . . the question is unanswerable or, at best, can be answered only by moral guesses."

  Eleven people, one of them the only woman Vd ever tried to make love to, guessed that Philip Weber was deterrable, I guessed that he was not. For an entire week we argued over whose guess was better. Maria-Teresa rarely spoke to me during the arguments, but occasionally when I would say something, she would click her tongue and close her eyes, hold her breath for half a second and then sigh, as if she couldn't believe what I was turning out to be like. Her nonverbal commentar' hurt me far more than the others' blunter criticism. Once, when I said that I couldn't see

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  punishing a man for losing his mind, since no one loses his mind on purpose, I caught her sharing a look of disgust with Rose. It was the final blow; I couldn't actually hate her, but fi-om then on I felt numb toward her.

  To make matters worse, Betty, whose husband was supposed to work "in sales," confided to me bitterly that he was actually a drunk and had no steady income, and that they were living off her undeclared income as a domestic. She couldn't admit this during the voir dire because she was terrified of being caught and having to pay taxes on it. Every day of the trial was money she wasn't bringing home to her family, and she told me that her customers were starting to hint that they might have to look elsewhere for help.

  While all this was going on I was trying every night to practice, believing music was my only hope. Bach, I reminded myself, hadn't even published any music until afiier his fortieth year; I was still young, there was still hope, the deliberations would end soon, and this dreadfiil experience, along with my devastating encounter with Maria-Teresa, would soon fade into the past. But the sound of the cello, even the smell of rosin, was torture for me. I ofi:en wished I could scream or throw something or cry, but nothing came out. I've never known how to express my strongest feelings except through music, and now even that channel was blocked.

  On the last morning of the trial, however, I stepped into the shower before going to court and had my head under the hot water when the strange thought occurred to me that no one could possibly see me under all that water. A ridiculous thought, since no one could have seen me in the shower stall of my apartment anyway, but the water seemed to form a tangible, comforting screen, and I was able to cry for a few

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  minutes with my hands gripped around the shower head. It felt so good that I actually laughed at the same time.

  I went to court that day knowing that my conscience could not possibly allow me to change my vote. As soon as I entered the jur' room I suggested going before Judge Davis again, and said that if necessary I would be willing to identify myself as the lone dissenter and answer any questions the judge might want to put to me. We sent word to Judge Davis, the clerk summoned us into the courtroom, and Dwight explained for the second time that we were a hung jur^ Once again the judge ordered us back to the jury room, only this time without any comments or instructions. We waited for several long minutes, unsure of what to do next, but then the clerk came into the room and explained that the judge wanted to see us in the courtroom one at a time.

  Dwight went first. He came back after a few minutes, then Rose was called. Gary went after her, and then Mathilda. I was the tenth to be called. The clerk led me into the courtroom and I sat down by myself in the jury box. The entire courtroom was looking at me while Judge Dais asked firmly, "Mr. Sundheimer, what's going on in there.^"

  I nearly panicked, wondering if he knew that I was the holdout and wanted me to explain myself. Struggling to keep calm, I answered, *'We seem to be deadlocked."

  'Tes, I know that. What I want to know is, have the deliberations stopped in there .> Are the twelve of you still trying.^"

  "We've been deliberating the whole time. Your Honor."

  "Is there any chance of your reaching a verdia if you were to keep trying.^"

  "I believe not."

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  "What do you mean, you believe not? Mr. Sundheimer, I am not going to declare a mistrial if there is any chance that further deliberations will result in a verdict. Is there any chance that a verdict can be reached.^"

  When I said that I felt there was no chance of this happening. Judge Davis dismissed me, and the clerk led me back into the room.

  After all twelve of us had been through this process, the judge summoned us back as a group and, starting with Dwight, asked us the same questions.

  "Mr. Anderson, are you still
willing to deliberate?"

  "Yes, sir."

  "Is there any chance that further deliberations will result in a verdict?"

  "I beUeve not."

  When it came his turn, Roy answered the questions in the same way, but then requested permission to ask a question himself. Judge Davis allowed him one question.

  "Your Honor, what I want to know is, if one juror isn't willing to deliberate, could he be replaced with an alternate?"

  The judge suddenly turned purple with rage. "It is against the law to refuse to deliberate on a jury!" he boomed. "If one of your members refuses to deliberate, he or she must be dismissed at once. In that case, one of the alternates would be chosen, and the deliberations would have to begin from scratch. I just asked each one of you individually if you were still willing to deliberate, and you each answered in the affirmative. I want to know right now—^what's going on in there? Is anyone not willing to deliberate?"

  Roy leaned forward in his seat, turned toward me and

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  glared. One by one, the other jurors either glanced or turned to stare at me. My anonymity was stripped away in an instant; the whole courtroom now knew that I was the one.

  "Mr. Sundheimer, are you no longer willing to deliberate?" Judge Davis asked.

  Everyone was looking at me: the judge, the jury, the sheriffs deputies, the good-natured prosecutor, the clerks, reporters and courtroom visitors, including a group of high school students with their social studies teacher. Although intellectually prepared for the consequences of my decision, I was emotionally devastated. Being the focus of such strong disapproval, particularly in the somber atmosphere of the courtroom, was astonishingly painful—more painful, I believe, than if I had been physically beaten. I felt myself start to tremble, and thought that I might collapse under the strain. Then I looked at the defendant's table. The defendant himself wasn't looking at me; his eyes were closed and he appeared to be whispering to himself. His attorney was looking at me, however, and a gesture of hers caught my eye. Ms. Doppelt was wearing a pair of simple pearl earrings, and she was fingering one of them nervously. That slight movement drew my attention to her face. I could see in her expression a combination of respect and gratitude so sincere that the worst of my panic subsided, and I was able to gather myself enough to answer the judge.