Deadlock

by James Scott Bell

  In other words, looking at everything Charlene had presented in the best possible light, Judge Lewis would have to rule that the jury could not possibly rule in her favor. It was a virtually impossible burden to meet.

  But then again, Larry Graebner was arguing. He wouldn’t have flown down here unless he had some reason to believe the motion would be granted.

  “As we all know,” Graebner continued, “motions for directed verdict have a very heavy burden to overcome. And that well should be, for if it were easy the right to a trial by jury would be undermined.”

  Pausing, Graebner slipped his thumbs into his vest pockets. It was the homey pose of the country lawyer, but Graebner, speaking without notes, did it naturally.

  “On the other hand, Your Honor, the proper separation of powers is likewise undermined when a jury is charged to decide that which is not authorized by law. In this case, a law duly enacted by the legislature of this state. Such an occurrence would be the death knell of the little experiment we call democracy.”

  He was the Yale law professor now, the classroom pundit. Judge Lewis appeared to be entranced by his classmate.

  Classmate. Charlene stood up. “Your Honor…”

  Every head, it seemed, whipped her way, every eye throwing darts.

  “Miss Moore,” Judge Lewis snapped, “you will have your chance.”

  “Your Honor, I have a small point to make before we take up more of the court’s time.”

  “I would like to finish,” Graebner said, his voiced tinged with professional impatience.

  “Your Honor,” Charlene said, “would it not be proper to recuse yourself from this?”

  Charlene thought she saw red blotches break out on Lewis’s face. “Recuse myself? What possible basis do you have for this objection?”

  “With all due respect,” Charlene said, “Professor Graebner and you were classmates at Yale. Might there be the appearance of bias in this?”

  “Your request is denied,” Lewis said. “I am able to weigh the merits of this argument in an objective fashion, and your attempt to influence the court is duly noted for the record.”

  “I have the right to – ”

  “Sit down, Miss Moore. You may address the court when Mr. Graebner is finished speaking.”

  What have you done this time, Charlene? Alienated the judge before he has ruled on the motion. Great move.

  Graebner made a grand motion of gratitude to the judge. “I thank the court. I’m sure Miss Moore meant no offense.”

  By which, of course, he meant she did.

  “As I was saying, our democratic form of government must never be undermined by the usurpation of power by any branch against another. What I fear happening here, Your Honor, is that very thing.

  “If we take all of the evidence in the light most favorable to the plaintiff, what have we got? A young girl enters a family planning facility seeking an abortion. The clinic, which has been in operation many years, follows to the letter the informed consent law that has been promulgated by the legislature.”

  “Isn’t that the issue here?” Lewis said. “Whether the clinic indeed followed the letter and the spirit of the law?”

  “No indeed, Your Honor. The spirit of the law is not for you or a jury to decide. The legislature alone must define the law, within the text. It has done so, in quite specific terms. It provided a document to the plaintiff, which the plaintiff signed.”

  “What about duress, or incompetence?” Lewis said.

  “There is nothing in the statute about any such matters,” Graebner said. “Indeed, if one looks at the legislative history, the chief concern of the legislators was to keep those sorts of matters from ever becoming an issue. It made the text of the statute clear. Nor does the history say anything about mental health concerns. In short, Your Honor, this case never should have reached this stage. For a cause of action such as this, the legislature may amend the statute. But a trial court may not.”

  Graebner waited for the court to ask him a question. Lewis seemed deep in thought. Then he said, “Thank you, Mr. Graebner. Miss Moore?”

  “I hardly know where to begin,” Charlene said. “I believe we have presented enough evidence for the jury to consider this case. Professor Graebner talks about the right to a trial by jury, but in the next breath seeks to take that away from my client.”

  “But your client,” said the judge, “must have a basis upon which to make this claim.”

  Then why had the judge allowed her to get to this point? This matter should have been considered before trial. Or had Winsor and Graebner been waiting to sandbag her?

  “The basis is the common sense application of the will of the legislature,” Charlene said. “It is clear they want all women who are about to make one of the most important decisions of their lives to have all the information they need. That would include, naturally, an inquiry into mental health history.”

  Lewis shook his head. “But as Professor Graebner says, that is not in the statute. Does this court have the power to give the jury something that the legislature has decided, to this point at least, it should not consider?”

  This was like tag-team wrestling, only it was Graebner and Lewis against Charlene. “I appeal to Your Honor, in view of all that we have been through, the time and expense to my client, to the court, to the jurors, that you not dismiss this case. Rule, Your Honor, on the basis of fundamental fairness. Justice is also in the hands of a trial court in its discretion. Mr. Winsor and Professor Graebner can take the matter up on appeal if they lose.”

  “You have the same prerogative,” Lewis said.

  Yes, but not the same pockets. Not the same unlimited funds.

  “I urge Your Honor to allow the case to continue to verdict,” Charlene said, unable to hide the desperation in her voice.

  Judge Lewis looked at the clock. “I will take the matter under advisement. The court will recess until one-thirty.”

  Sarah Mae was shaking as she took Charlene’s arm. “What’s that mean?”

  “We’ll know at one-thirty, Sarah Mae.” But Charlene had a sick feeling that she already knew.

  3

  Millie stood in an empty space in the hospital parking lot. She herself was empty. Only a dull reverberation inside her reminded her she was alive, but it was a distant sound – a fading echo, like the rolling of thunder after it has crossed the valley. She held her tears back; it was not easy. Her mother was gone. And Millie had not been there when she died.

  Jack Holden, who had been silent beside her, finally said, “I am so sorry.”

  Millie nodded, wishing he would go away and knowing he wouldn’t, wondering if she was grateful or not, finally deciding she didn’t care one way or the other.

  “There’s an old saying,” Holden added, “they don’t say it much anymore, but it seems so appropriate for your mother. She’s gone to her reward.”

  Millie shook her head.

  “That’s what she believed with all her heart,” Holden said.

  “I don’t care to hear it.”

  “I think she would want you to know.”

  She turned to him. He seemed, somehow, not real. A mannequin. “It’s so easy to say.” She hadn’t meant to be nasty, but it helped in one small way. It dulled the grief, if only for a second or two.

  “Not always,” he said.

  “I don’t want to be comforted right now, okay?” she said. “I know it’s your job, and you’re good at it, but just, for now…”

  “You’ll need help – ”

  “I know what I need! Yes, you can do the funeral. Of course. Take care of it. Make it happen. This week. I’ll hire a lawyer to take care of the estate. I’m not going to stay here. After the funeral, I’m going home. Thank you very much for everything.”

  Jack Holden did not leave her alone. “It helps to talk.”

  “I already did. Please.”

  He turned toward the hospital. She felt a little guilt, but only a little. She did not want to feel anyth
ing. She wanted to shout at Jack Holden, ask him why God did not answer prayer, and was this the killer argument he had to offer? Where was his music now?

  She hated herself, but did not care. Hate dulled grief, too. But only for a moment. The waves were too big. Grief was not a stream. It was an ocean.

  4

  The usual afternoon crowd was in License, the hot upscale bar in D.C. that had become a regular hangout for Anne. She knew most of the faces at the zinc-topped bar, and they certainly knew hers. She could smell the envy in the air. It was as thick as L.A. smog, and twice as toxic. She had come here to meet Cosmo.

  Jill “Cosmo” Hannigan was so named by Anne because she looked like the quintessential Cosmopolitan cover model. Impossibly skinny, but dressed to show off her assets without apology. She was an associate at a D.C. firm specializing in international contracts.

  Usually she was perfect company for Anne, a picker-upper for tired spirits. Cosmo had a biting sense of humor, almost a match for Anne’s. Getting tipsy with her was one of the pleasures of Anne’s life.

  Now, sitting over her Tanqueray martini – up, with a twist – Cosmo was uncharacteristically down.

  “What’s going on?” Anne asked. “You seem a little out of it.”

  Cosmo looked up from her drink. “I was in the kitchenette at the office on Friday. One of the partners came in, Mr. Baer. Does that name mean anything to you?”

  “No.”

  “It should. He’s about sixty, and he’s been a player in the firm for thirty years.”

  “Wait, wasn’t he one of the Clinton lawyers in the Paula Jones thing?”

  “He’s the guy. Well, anyway, we’re alone in the kitchenette. He comes in, and his tie is loose. But Baer’s tie is never loose. He’s always perfectly dressed. He had this faraway look on his face, too. I say hello to him, and he doesn’t look me in the eye. He doesn’t say hello. What he says is, ‘What am I doing?’ ”

  “And you said what?”

  “I asked him if he was looking for something. That’s when he looks at me and says, ‘What am I doing here, in this office? I should be with my family.’ And then he walks out.”

  Anne shrugged. “So, the guy spends too much time at the office. Big deal. He goes home, buys his wife dinner, all is well.”

  Cosmo said, “No. He hasn’t got a family. His wife divorced him years ago. His grown kids hardly talk to him. That was the freaky part.”

  “Why freaky?”

  “Just that he was thinking out loud, like he had regrets or something.”

  “Middle-aged angst.”

  “No, it was more than that. It was like he was calling everything he’d done into question. But as long as I’ve known him, he’s never had any doubts. Always hard driving, hard charging, great at what he does. It got to me. Because the way I’m going, that’s where I’ll be someday. And I don’t want to have the same regrets.”

  “You won’t.”

  Cosmo reached out and squeezed Anne’s arm, hard. “I’m not sure! That’s what gets me. What happens when it’s all over? Who cares about what we did? Why should we do anything?”

  “Look, I thought about that once. When my folks died I had a couple of days there. But I got over it. You just have to keep moving so they can’t hit you. And there are no answers. Life is pretty much absurd. The existentialists had it right. So what do you do? You just do your own deal, that’s all. It’s a game, and you try to win.”

  “What is winning, though? That’s what I’m asking.”

  “It’s just what it is. Getting what you want before the other guy gets it.”

  “And then what?”

  “Man, you’re cheery today. Did you watch Old Yeller or something?”

  “No,” Cosmo said. “I went to church.”

  Anne almost slipped off the bar seat. “You did what?”

  “I just wanted to go,” Cosmo said. “I hadn’t been since I was a girl.”

  “So what did you find out, Joan?”

  “Joan?”

  “Of Arc.”

  “Very funny.”

  “I’m in a funny mood. What church was it?”

  “Methodist. Down the street from me.”

  “So? Did you get saved or what?”

  “I just listened. I listened to the singing. I listened to the words of the songs.”

  “Hymns. They’re called hymns.”

  “I know that. And I listened to the sermon. I don’t know, I just felt like doing that.”

  “Please,” Anne said, “don’t go crazy on me. You’re my best friend.”

  “Then why can’t I talk about this?”

  “Finish your drink,” Anne said. “This calls for a rich dinner and gooey dessert. Wanna?”

  Cosmo thought about it, then smiled. “You drive.”

  At least they laughed out on the street, where Anne had parked her red Audi. It was martini laughter, light and funny, and it got them off of all that heavy stuff they’d been talking about. Anne was almost teary eyed with Cosmo’s imitation of Rosie O’Donnell when her laughter stopped cold.

  Standing right next to her car was the homeless guy. The one who had looked at her on her balcony.

  His dirty beard and face were unmistakable. And he was looking at her again, like he’d been expecting her.

  “What?” Cosmo said. Then she turned and saw the guy, too.

  “You got some spray?” Cosmo whispered.

  Anne reached into her purse and put her fingers around the little canister of mace. Cosmo said, “Let’s go back inside, then come out again.”

  The homeless man said, “You work for him, don’t you? You work for Senator Levering.”

  His voice was remarkably clear. Not the guttural sound one associated with denizens of the street.

  Anne stood as if cemented.

  “You do, don’t you?” the man repeated. He took a step forward.

  “Stay there,” Anne ordered. She brought the mace out. Maybe he’d see it. She felt no hesitation about spraying him in the face.

  “You still have time,” the man said.

  “What’s he talking about?” Cosmo said.

  “How do I know?” Anne said.

  “How does he know you?”

  Good question. He took another step. Anne sized him up. He could be taken down. Easy. But how did he know her?

  “Listen to me,” the man said. “It’s not too late.” He took two steps now.

  “Back off,” Anne said.

  The man did not stop. He walked slowly but steadily toward her. His face, dirty as it was, was pleading with her.

  “Do you hear me?” the man said. “It’s not too late!”

  “I said back off.” Anne held the mace ready, and with her other arm reached out for Cosmo.

  “Let’s go,” Cosmo said.

  But Anne was mesmerized, like a bird in front of a snake. She felt her hands trembling.

  “Not too late!” the man said, and charged.

  The next few seconds were like a slow-motion dance with death. Later, Anne would think that the face of the man was more horrifying to her than anything she had ever seen in any nightmare or horror movie. But it wasn’t because the face was grotesque – in fact, it was a reasonably pleasant face. No, it was what she saw in his eyes that terrified her. They burned with such intense focus, looking into her, as if he knew her better than she knew herself.

  In those few seconds, though, she had no time to reflect, only to react. She pressed on the nozzle.

  Nothing happened.

  The man was now so close she could smell him. She heard Cosmo scream.

  She depressed the nozzle once more, and this time an acrid hiss of mace spray shot out. The jolt hit the man full in the face.

  He screamed. His hands shot to his eyes. He gouged at them wildly. He dropped to his knees and screamed again.

  Anne grabbed Cosmo’s arm and pulled her around the man crying on the sidewalk. By the time they drove away in Anne’s car, a small crowd had gathered
around the homeless man. She glanced quickly at the scene and saw someone in the crowd pointing at her car.

  5

  Charlene took Sarah Mae’s trembling hand in her own. They stood as the judge entered, then sat at counsel table when he called the proceedings to order. He had not asked for the jury.

  “Back on the record in Sherman v. National Parental Planning Group,” Judge Lewis said. “I have given due consideration to the arguments of counsel in this matter. I find both to have made excellent points.”

  Excellent? Charlene thought. Even her? There was hope. She had a very small burden to carry in order to defeat the motion.

  “I have spent the last two hours poring over the legislative history of the informed consent statute,” Lewis said. “And while there is plenty of ambiguity about the intentions of the drafters, there was a very clear consensus about what this statute was supposed to accomplish. While it was meant to give a certain amount of added information to a class of people, namely women seeking abortion, it was also clearly intended to provide a barrier in the area of litigation.”

  Lewis paused and looked at Charlene. His look made her stomach drop.

  He was preparing her.

  “And while this court believes strongly in the jury as finders of fact, I am mindful of my role as the interpreter of the law. In that capacity, I find I am in agreement with the argument of counsel for the defense.”

  Charlene’s heart joined her stomach in free fall.

  “Therefore, the defense motion for a directed verdict is granted. The case is dismissed.”

  For a moment silence prevailed. Then Winsor was standing, hugging Graebner and a representative of the NPPG. They slapped each other on the back.

  Then she heard Aggie Sherman’s anguished, angry wail. Sarah Mae’s mother slammed her hands down on the railing and shouted, “No!”

  Charlene took a step toward her to comfort her, but Aggie pointed directly at her and screamed, “You stay away from us!”