“Calm down, Mr. Danning,” the judge said. “The objection is sustained. The jury will disregard the question. And we’ll have no more of that, Mr. Calloway.”
“Sorry, Your Honor,” although I wasn’t and she knew it. “Now, Dr. Vist, you testified that you believe Mr. Vernon was deliberately giving misleading answers when you tested him, right?”
“Yes.”
“And from that you concluded that he was not temporarily insane and was aware of the difference between right and wrong at the time of his arrest?”
“That’s right.”
“How can you be so certain of that?”
“Well, as I testified, the test results clearly showed it.”
“And there is no possibility of error?”
“I don’t think so, no.”
“Dr. Vist, have you ever been wrong about anything?”
“Well, yes, of course. Everyone makes mistakes.”
“Even in the course of your professional practice as a psychiatrist, have you ever been wrong? Made a wrong diagnosis? Misinterpreted test results?”
“Objection, Your Honor!” Danning exclaimed. “No foundation. Mr. Calloway is badgering the witness.”
“Your Honor, the whole gist of Mr. Danning’s examination was to establish Dr. Vist’s credibility. It is certainly my right to question it.”
“Yes it is, Mr. Calloway,” Judge Winship said. “Objection overruled.”
I asked the court reporter to read back the question. Vist was obviously reluctant to answer, but finally he said, “I have made a few mistakes.”
“Is this one of those times?”
“No! Absolutely not!”
“Dr. Vist, your colleague, Dr. Schwert, was candid enough to admit that psychiatry is not an exact science. Would you agree?”
“Yes.”
“And Dr. Schwert also was candid enough to admit that although he was sure of his interpretation of his interview and testing of Mr. Vernon, he could not be absolutely certain because no one could be that certain. Would you agree with that?”
Again Vist was reluctant to answer. Finally, he said “I suppose.”
“No further questions, Your Honor.”
Danning took the floor for redirect examination and tried to undo the damage. “Dr. Vist, you are not admitting an error in your diagnosis of the defendant, are you?” he asked.
“Certainly not.”
“Your professional opinion, based on all your years of experience, remains that the defendant was deliberately giving misleading answers to your tests and that he was completely sane and clearly knew the difference between right and wrong at the time of his arrest, is that correct?”
“Yes, it is. Most emphatically.’
“No more questions. And no further witnesses, Your Honor.”
I told her I had no further witnesses either.
“Very well,” Judge Winship said. “We’ll adjourn overnight and hear closing arguments in the morning.”
When the jurors had taken their seats in the morning, Judge Winship wished them all a cheery good morning. “You’ll recall, ladies and gentlemen, that during the opening statements of this trial the prosecution got to go first. This time the order will be reversed and the defense will go first. But as before, what you will hear from both sides is merely argument, not testimony or evidence. You may consider the arguments for whatever you feel they are worth, but you must decide the case based only on the testimony and the evidence. I repeat, only the testimony and evidence.”
Then she turned to me. “Mr. Calloway, please begin.”
For most of my low-life clients, I was in the habit of making only perfunctory closing arguments, designed at most to drive a small wedge of doubt into the jurors’ minds, and meet the necessity of making a record showing the defendant had not been represented by incompetent counsel. I could not do that this time. As the trial had progressed, I had felt a slow, increasing anger over my client’s plight. He was a small, decent, likeable man with all the mighty legal resources of the state arrayed against him, weighing down on him, determined to convict him of violating an unfair law and make him an example to terrorize others who might be tempted to do the same thing. I felt compelled to do whatever I could to stop this otherwise defenseless soul from being swept away by the enormous power of the state.
But I began my argument in the normal way. “Ladies and gentlemen, I thank you—and Garrett Vernon also thanks you—for your willingness to hear the testimony in this case, your patience, and your careful attention to what you have heard and seen in this courtroom. However, the most important part of your task is only now beginning. Now you must consider what you have seen and heard and arrive at a conclusion as to whether Garrett Vernon is guilty or innocent by reason of temporary insanity.
“As you begin this task, I would ask each of you to try to place yourself in Mr. Vernon’s situation. Imagine yourself, God forbid, sitting alone at the defendant’s table, with no home except the county jail or the back of a pickup truck, and no assets other than the $9.68 Mr. Vernon had in his pocket at the time of his arrest. Imagine yourself as the target of the state’s mighty law-enforcement and judicial systems, dedicated to sending you to prison just for seeking solace through the simple act of going fishing, something you’d been doing all your life. Imagine yourself facing years in prison even though you did none of the things the Water Resources Protection Act was designed to prevent—nothing to pollute the water of Youngstown Lake and nothing to take any water from it, as the testimony conclusively showed. Even the single trout you caught was released unharmed.
“Consider also the mental anguish of Mr. Vernon on the night of his arrest. He had lost his wife. He had lost his livelihood. He had lost even the temporary home he had in the back of Ike’s tackle shop. He had lost all the things he loved, all the things that were important to him. He had also lost what he perhaps loved most of all, what was most important to him of all—his right to go fishing, to engage in what Izaak Walton famously called ‘a calm, quiet, innocent recreation,’ the only thing that ever brought peace and solace to this man’s troubled soul. Consider how you would have felt if it had been you in the back of that pickup truck, parked at the end of that lonely road, tortured and tormented by the collapse of everything you held dear, knowing that relief was only a short hike away through the dark woods to the shore of Youngstown Lake. If you can picture yourself in that position and try to feel what Mr. Vernon was feeling then, perhaps you can accept and understand what drove him to make that hike and try to find a few moments of solace through the simple act of going fishing.
“Remember also the testimony you heard that at the time this happened, Mr. Vernon was ill. He was suffering from temporary insanity. He was in the grip of irresistible obsession and compulsion. He could not have resisted if he had wanted. He could not tell whether what he was doing was right or wrong. Indeed, as Dr. Schwert testified, in his mental extremis, the question would not even have occurred to him.
“Then I would ask you to imagine yourself looking across the courtroom at this jury, as Mr. Vernon is doing now, hoping desperately, wondering about what these twelve fellow citizens might do. Would you not hope for understanding? For mercy? For compassion? Not because you’re just a person down on your luck, but because you‘re a decent person who meant no harm, who under irresistible mental pressure made a mistake and technically violated an unfair and unnecessary law but actually did nothing to harm the public welfare. Nothing at all.
“If you will do all this—if you will place yourselves in Garrett Vernon’s shoes and think about his plight, then I would also ask you to think not just in terms of guilt or innocence, but also in terms of fairness. And if you will do that, then I urge you—I implore you—to rely upon your conscience and do what it tells you is the right thing: To be understanding. To be merciful. To be compassionate. To find Garrett Vernon innocent by reason of temporary insanity.
“One more thing. The State Water Resources Protection
Act at the center of this trial is an unpopular, unfair, and unnecessary law. But it is not cast in stone. It can be amended or repealed. Either one is a long road, but it can begin here. In asking you to find Garrett Vernon innocent, I am also asking you to send a message to the world that special interests will never triumph over the public interest of the people of the United States of America.
“With all my heart I call upon you to release Garrett Vernon, just as he released the trout he caught in Youngstown Lake. Thank you.”
Exhaling to relieve the tension that had built up inside me, I returned to the defense table and sat down.
“That was wonderful,” Vernon whispered.
“Thanks,” I said. “I just hope it wasn’t a little too melodramatic.”
I looked at the three weathervane jurors but saw nothing revealing in their faces—except that Mrs. Halloran still looked sour.
“Your turn,” Judge Winship said to Danning.
He drew himself up to his full scrawny height, walked over, and stood in front of the jury box. He made meaningful eye contact with each of the jurors, bobbed his head, and began.
“Ladies and gentlemen,” he said, “you’ve heard an emotional plea from Mr. Calloway to find his client innocent. He asks you to think about all the hard luck the defendant has suffered and excuse him for his actions. It’s an easy argument for him to make, because Mr. Vernon—yes, I do know his name—Mr. Vernon is a likeable fellow. But it is my duty to remind you that emotions are the very last—the very last—things you must consider in weighing Mr. Vernon’s guilt or innocence. As the court will shortly instruct you, you must rely only on the law and the testimony and evidence you have heard in this trial, and your decision must be based only on those things. Only on those things.
“Let me summarize what those things tell you. First, the law. Mr. Calloway says it’s unfair, unpopular, and unnecessary. Maybe so. But it is the law. It was first considered by your representatives in Congress, who approved it. It was further considered by your representatives in the Legislature, who also approved it. They did so for what they thought were good and necessary reasons, and it is now the law of the land. And even if you disagree, you must follow it.
“The law says that public waters are off limits to all forms of recreation, including fishing. The testimony and evidence given in this trial prove unequivocally that the defendant broke the law. He was observed illegally fishing at Youngstown Lake on May 19. You’ve seen the videotape that proves it. He does not deny it. He cannot deny it. He may not have done anything to pollute, endanger, dilute, or diminish Youngstown Lake, but he did clearly and willfully violate the law. And make no mistake, he knew what he was doing—and knew that it was wrong.
“The defense would have you believe that he was insane at the time, and not responsible for his actions. Yet the testimony of two psychiatrists places that assertion in grave doubt. One psychiatrist says Mr. Vernon suffered from acute obsessive-compulsive disorder, making it impossible to resist the impulse to go fishing. Think about it. Is that really likely? Just how difficult do you think it could be to resist the impulse to go fishing? If you’re a drug addict, you might not be able to resist the impulse to shoot up; if you did, your body would soon make you pay a severe penalty. But who ever heard of a fly-fishing addict? What possible harm could result from resisting the impulse to go fishing, especially when you knew—when you knew—it was against the law? I don’t buy it, and neither should you.
“You also have Dr. Vist’s testimony that the defendant was deliberately faking his answers in the tests he was given. Why? Because his defense was temporary insanity, and he wanted to make the psychiatrists think he was insane. Fortunately, one of the psychiatrists, Dr. Vist, saw through it and called him on it. I believe Mr. Vernon is as sane as you or I. I regret all the unfortunate things that have happened to him, but that does not excuse him from following the law.
“Nor does it excuse you. Don’t be misled by Mr. Calloway’s efforts to play on your emotions and encourage your pity for Mr. Vernon. The law, the evidence and the testimony in this case all point to one thing and one thing only: Garrett Vernon is guilty of violating the State Water Resources Protection Act. There is absolutely no doubt of that. In all my years as a prosecutor, I have never seen a case as clear-cut as this one. Facts outweigh emotions, and it is your duty to apply the facts. It is also your duty to uphold the law, and return a verdict of guilty in this case.
“Thank you.”
Danning sat down, rubbing his neck, which had gone through a real workout as he bobbed his head all the way through his oration.
Judge Winship ordered a brief recess. When court reconvened, she began reading instructions to the jury. Danning and I had agreed to them previously during a conference in the judge’s chambers, and since I already knew them almost by heart, I didn’t pay much attention. The reading of instructions has always seemed to me the most boring part of a trial anyway. Even a conscientious judge like Winship has trouble avoiding a monotone while reading them, and it’s a wonder to me that jurors can stay awake while they’re being read.
So I sat and tried to concentrate on staying awake myself.
When she was finished reading the instructions, Judge Winship sent the jurors to lunch, telling them they could begin deliberations when they returned.
Garrett Vernon was returned to his cell in the county jail and I returned to my own cell-like little office in the basement of the courthouse and tried to concentrate on other work while the jury was deliberating. Before leaving the courtroom, Vernon had asked what I thought the jury would do. “Your guess is as good as mine,” I said. I didn’t want to get his hopes up, because I still thought his chances for acquittal were almost nil.
I didn’t get much work done that afternoon. Waiting for a jury to come in with its verdict usually doesn’t bother me because I know the verdict is going to be guilty, and that’s fine with me because I know my client almost certainly is guilty. But I couldn’t stop thinking about Vernon and the unfairness of his prosecution. This time I hoped for a different verdict, because even if he was technically guilty, he didn’t deserve to be punished. I kept replaying my argument in my mind, wondering what I could or should have said differently. It was a useless exercise and I knew it, but whenever I tried to do some meaningful work, the same insistent compulsion to revisit my closing argument would assert itself.
At 3:40 p.m. the phone rang. The fat deputy was on the other end. “The jury is coming in,” he said.
I made my way back to the courtroom. Vernon was already there, waiting nervously. Danning was there too. Then Judge Winship emerged from her bat cave and sat behind the bench. “Bring in the jury,” she instructed the bailiff.
The jurors filed in and took their seats. Several of them looked at me and Vernon, which I thought was a good sign. When they were settled, the judge looked over and asked if they had reached a verdict.
My heart leaped with hope when Juror No. 11—the fly fisherman—stood, indicating he had been chosen foreman. “Yes, Your Honor,” he said.
“Please hand the verdict to the clerk.”
The pudgy woman walked to the jury box, took the verdict form from the juror, returned to her post in front of the bench and inspected it. She frowned at something, then turned to the judge and whispered something, pointing to the form, and handed it to the judge.
Judge Winship looked and also frowned. She turned to the jury box. “Mr. Foreman, did you cross out the word ‘temporary’ on the verdict form?” she asked.
I felt a sudden chill in my gut.
“Yes, Your Honor,” the foreman said. “That’s our verdict. We all agreed the word ‘temporary’ should be deleted. We think the defendant is permanently insane. We think he’s crazy for trout!” And he laughed.
The crowded gallery exploded in a hubbub and Danning and I were both instantly on our feet, calling for the judge’s attention. She slammed down her gavel several times until the courtroom fell silent. Then s
he turned to the jury. “Mr. Foreman, this is no laughing matter!” she said. “Bailiff, please escort the jury back to the jury room.”
Dutifully the bailiff led the jurors out of the jury box like a fat mother duck, took them into the jury room, came back outside, and shut the door behind him.
Danning and I were still clamoring for the judge’s attention. “Sit down, counselors,” she said. “I know what you’re going to say. Mr. Danning, you want to move for a mistrial. Mr. Calloway, you’re going to ask me to order the jury to go back and correct the verdict form. Am I right?”
We both nodded.
“Well, both motions are denied. Here’s what we’re going to do. As you know, when we have a case of jury misconduct, which is obviously what we have here, the law gives the court authority to decide the case on its own. Even if there is no jury misconduct, the court retains authority to set aside the jury’s verdict in the interests of justice and decide the case on its own. So that’s what I’m going to do. Any objections?”
Danning shook his head while I thought desperately about what I should do. I didn’t want Judge Winship to decide the case. The jury already had done that in Vernon’s favor, and Judge Winship might come to a different conclusion. But if I objected, I was certain I’d be overruled, and my objection might be enough to influence her against Vernon. Whatever I did, it was a no-win situation.
“Mr. Calloway?” she said impatiently.
“No objection, Your Honor,” I said finally, and reluctantly.
“All right,” Judge Winship said. “But first we’re going to get the jury back in here and send them home.”
The deputy, who was beginning to sweat from all the exercise, brought the jurors back in. They were all looking at the floor as if they knew they were about to be scolded. Judge Winship quickly confirmed their fears. “I do thank you for your service, but I sincerely regret you did not follow instructions,” she said. “Your irresponsible action has made it necessary for me to decide the outcome of this case myself. You are discharged as jurors and you may leave for home immediately. But I admonish you, if you are ever chosen to serve on another jury, be sure you follow instructions to the letter.”
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