Anatomy of a Murder

by Robert Traver

  “It wouldn’t be quite like this,” I said. “Worse, much worse. This is a mere way station to Hell.”

  “Yes,” he said. “Prison would be worse.”

  “Have we disposed of the ‘unwritten law’?” I said.

  “Perhaps,” he said. “But unwritten law or no, doesn’t a man have a legal right to kill a man who has raped his wife? Isn’t that the written law, then?”

  “No, only to prevent it, or if he has caught him at it, or, finally, to prevent his escape.” We were treading dangerous ground again and I spoke rapidly to prevent any interruption. “In fact, Lieutenant, for all the elaborate hemorrhage of words in the law books about the legal defenses to murder there are only about three basic defenses: one, that it didn’t happen but was instead a suicide or accident or what not; two, that whether it happened or not you didn’t do it, such as alibi, mistaken identity and so forth; and three, that even if it happened and you did it, your action was legally justified or ex. cusable.” I paused to see how my student was doing.

  The Lieutenant grew thoughtful. “Where do I fit in that rosy picture?” he responded nicely.

  “I can tell you better where you don’t fit,” I went on. “Since a whole barroom full of people saw you shoot down Barney Quill in apparent cold blood, you scarcely fit in the first two classes of defenses. I’m afraid we needn’t waste time on those.” I paused. “If you fit anywhere it’s got to be in the third. So we’d better bear down on that.”

  “You mean,” Lieutenant Manion said, “that my only possible defense in this case is to find some justification or excuse?”

  My lecture was proceeding nicely according to schedule. “You’re learning rapidly,” I said, nodding approvingly. “Merely add legal justification or excuse and I’ll mark you an A.”

  “And you say that a man is not justified in killing a man who has just raped and beat up his wife?”

  “Morally, perhaps, but not legally. Not after it’s all over, as it was here.” I paused, wondering why I didn’t go to Detroit and lecture in night school. That way, too, I would be close enough to go see all my old school’s home football games. “Hail to the victors valiant … .” “You see, Lieutenant,” I went on, “it’s not the act of killing a man that makes it murder; it is the circumstances, the time, and the state of mind or purpose which induced the act.” I paused, and could almost hear my old Crimes professor, J. B. “Jabby” White, droning this out in law school nearly twenty years before. It was amazing how the old stuff stuck.

  The Lieutenant’s eyes narrowed and flickered ever so little. “Maybe,” he began, and cleared his throat. “On second thought, maybe I did catch Quill in the act. I’ve never precisely told the police one way or the other.” His eyes regarded me quietly, steadily. This man, I saw, was not only an apt student of the Lecture; like most people (including lawyers) he indubitably possessed a heart full of larceny. He was also, perhaps instinctively, trying to turn the Lecture on his lawyer. “I’ve never really told them,” he concluded.

  A lawyer in the midst of his Lecture is apt to cling to the slenderest reed to bolster his wavering virtue. “But you’ve told me,” I said, pausing complacently, swollen with rectitude, grateful for the swift surge of virtue he’d afforded me. “And anyway,” I went on, “you would have had to dispatch him then, not, as you’ve already admitted, an hour or so later. The catching and killing must combine. And that’s true even if you’d actually caught him at it—which you didn’t. I’ve just now told you that time is one of the factors in determining whether a homicide is a murder or not. Here it’s a big one. Don’t you see?—in your case time is the rub; it’s the elapsed time between the rape and the killing that permits the People to bear down and argue that your shooting of Barney Quill was a deliberate, malicious and premeditated act. And that, my friend, is no more than they’ve charged you with.”

  Stoically: “Are you telling me to plead guilty?”

  “Look, we’ve been over that. When I’m ready to advise you to cop out you’ll know it. Right now I want you to realize what you’re up against, man.”

  The Lieutenant blinked his eyes thoughtfully. “I’m busy realizing,” he said.

  “Try to look at it this way, Lieutenant,” I went on, warmed to my lecture. “Just as murder itself is one of the most elemental and primitive of crimes, so also the law of murder is, for all the torrent of words written about it, still pretty elemental and primitive in its basic concepts. The human tribe learned early that indiscriminate killing was not only poor for tribal decorum and well-being but threatened its very survival and was therefore bad in itself. So murder became taboo. Are you still with me?”

  “Go on.”

  “At the same time it was seen that there were occasions when a killing might nevertheless still be justified. Stated most baldly it all pretty much boiled down to this: Thou shalt not kill—except to save yourself, your property, or your loved ones. That simple statement still embraces by far most of the modern defenses to murder. If a man tries to take my life or my wife or my cow I may kill him to prevent it. But if I chase him off or, more like your situation, if he should steal my wife or my cow while I am away fishing (or sleeping in my trailer) I must pursue other tribal remedies when I discover it. I must do so because I did not catch him at it, the damage is done, the danger is past, the culprit may be dealt with later and at leisure.

  “You will observe that this catching-him-at-it business involves the important factor of time, of time sequence, that I just mentioned. Even the ‘unwritten law’ defense you brought up usually involves the notion of a cuckolded husband discovering his wife in the nuptial bed with the iceman. Or perhaps these days it’s the deep-freeze man. In any case nearly all of these defense-of-property-and-person murder defenses—‘self-help’ defenses they may be called—involve the idea of the person who is killed being caught in the act, red-handed, before there is time for the killer to call for help or complain to the tribal elders—the police in our times. Is it seeping through?”

  The Lieutenant nodded glumly.

  “The notion that one might later, after the fact, go kill the cow or wife stealer was rejected by most early tribal men as it is still widely rejected today. It was and is rejected because the ‘defending’ killer has had time to cool off, the thing is over and done, the emergency no longer exists, the offender can be punished at leisure and in an orderly way, and, finally, probably because such a defense is less susceptible of unbiased confirmation and thus opens the door to being invented. Anyway, one may lawfully kill another to save his wife or his cow or his own life but not to punish the doer after it is all over. Now my anthropology may possibly be a little haywire but not my law. The law says that the business of punishment must be left solely to it, which is the People.

  “Applying all this to your own situation, Lieutenant, whatever happened to your wife was over and done when you found it out. You could not save her; she’d had it, her danger was past; and if Barney Quill raped her he could have been dealt with by due proc ess of law. It so happens that rape and murder both carry life sentences in this state, but not death. By your action you usurped the law and imposed the death penalty on Barney Quill. Society, the tribe, now seeks to punish you for breaking one of its most ancient and basic taboos.”

  We sat silently, the Lieutenant again sipping his mustache. He looked a little morose. “But can’t the jury let me go, whatever the damned law is?” he asked.

  “Of course it can,” I said. “And juries often do. But that’s not because of a legal defense but rather despite the lack of one. Juries, in common with women drivers, are apt to do the damnedest things. Gambling on what a jury will do is like playing the horses. The notorious undependability of juries, the chance involved, is one of the absorbing features of the law. That’s what makes the practice of law, like prostitution, one of the last of the unpredictable professions —both employ the seductive arts, both try to display their wares to the best advantage, and both must pretend enthusia
stically to woo total strangers. And that’s why most successful trial lawyers are helpless showmen; that’s why they are about nine-tenths ham actor and one-tenth lawyer. But as things now stand in your case, all the law would be against you. The judge would be virtually forced to instruct the jury to convict you. Don’t you see? A jury would find it tough to let you go; they’d have to really work at it. Legally your situation presents a classic one of premeditated murder.”

  Quietly: “You don’t want to take my case, then?”

  “Not quite so fast. I’m not ready to make that decision. Look, in a murder case the jury has only a few narrow choices. Among them, it might let you go. It might also up and convict you. A judge trying you without a jury would surely have to, as I have said. Now do you want to go into court with the dice loaded? With all the law and instructions stacked against you?” I paused to deliver my clincher. “Well, whether you’re willing to do so, I’m not. I will either find a sound and plausible legal defense in your case or else advise you to cop out.” I paused thoughtfully. “Then there’s one other possible ‘or else.’”

  “Or else what?”

  A chastening hint, a light play on the client’s fear that the lawyer of his choice might walk out on him is also sound strategy during the Lecture. It tends to keep the subject both alert and appropriately humble. “Or else, Lieutenant, you can find yourself another lawyer,” I said, waiting for him to squirm.

  “Like who?” the Lieutenant inquired coolly and without squirming. “Who do you recommend?”

  Things weren’t proceeding according to plan. But I couldn’t back down or display weakness now. If this cool bastard wanted someone like roaring old Crocker he could damn well have him. “Why, we have a splendid old ham-acting lawyer in this county,” I replied. “He’s all ham—real boneless country-cured ham. He’s also the Peninsula’s expert on unwritten law.” I could have added, but charitably didn’t, that this last was largely so because I’d never known him to crack a law book. “I might even intercede for you with him,” I said.

  “You mean Amos Crocker?” he said calmly.

  I lifted my eyebrows in surprise. “Maybe,” I parried. “How come you know about Crocker?”

  “We tried to get him,” Mister Cool replied. “Couldn’t because he’d broken his leg.”

  “Leg?” I said. “Old Crocker broke his leg? I didn’t know.” I felt a sudden wave of pity for the windy fulminating old fraud. Beside Parnell McCarthy he was about the last of the old-time colorful gallus-snapping practitioners left in the county. The rest of us were getting to be a fine, colorless, soft-shoe breed, something like a cross between a claims adjuster and an ulcerated public accountant. “When did all this happen?”

  “The very night I shot Quill,” the Lieutenant said. “Fell climbing out of his tub, his housekeeper told my wife over the phone. Is in the hospital with his leg in traction. Won’t be up and around for several months.” The Lieutenant looked around the room and sniffed slightly. “That’s a trifle too long to wait around in this place. If I’ve got to go to prison I want to get on with it.”

  “Hm,” I said thoughtfully. I felt curiously chastened and deflated. Here was a client, I saw, who possessed a pretty good lecture style of his own. I found myself fretfully hoping that I was at least the second choice. The thought gnawed at me. “I hope I was the second choice?” I said.

  “You were,” the Lieutenant replied quietly. “By the way, what’s this ‘cop out’ mean?”

  The Lieutenant had not only delivered a swift little lecture of his own; he’d also adroitly got me back on my own.

  “Lieutenant, I’m charmed,” I said, carrying on. “Just as bugout means retreat, so cop out means pretty much the same thing: to plead guilty, toss in the sponge, grab at a straw, confess to the cops, or—as the old English judges so quaintly put it—throw oneself upon the country.”

  It was rather a big mouthful and the Lieutenant thoughtfully chewed on it. “Hm … . You mean you simply don’t want to take a chance on the ‘unwritten law’?”

  I stared up at the ceiling, pursing my lips. “You can put it that way if you want. Yes, that’s fair enough. I’m a lawyer, not a juggler or a hypnotist nor even a magician or boy orator. When I undertake to defend a man before a jury I want to have a fighting legal chance to acquit him. That includes having a decent chance to move for a new trial or successfully appeal. Maybe you were morally entitled to plug Barney Quill. I’ll even concede it. But in court I prefer to leave the moral judgments to the angels. I doubtless possess my fair share of ham, like most lawyers, but I do not want to go into court and depend simply upon the charity or stupidity or state of the liver of twelve jurors.” I paused. With old Crocker now safely out of the picture I could perhaps afford to bear down even harder. “What’s more, I don’t intend to,” I said. “Have I made myself clear?”

  “I’m afraid you have, Counselor.”

  “And, since you still seem to hug the ‘unwritten law,’ there’s one more thing. There’s the important matter of saving face. We complacent palefaces of the West like to think that this business of saving face is a sin, a sort of half-juvenile and half-inscrutable mystique confined solely to the Orient” I paused. “That’s a lot of —a lot of unmitigated—”

  “Horseshit,” Lieutenant Manion said, as solemn as an owl.

  “Precisely,” I said. “Spoken like a true soldier and a gentleman, Lieutenant. And thanks. But getting back to face … . All of us, everywhere, all of the time, spend our waking hours saving face. This case itself is riddled with face. After all, one of the mute unspoken reasons you are being prosecuted is to save face, community face. The biggest reason I hesitate to take your case, as things now stand, is my fear of losing it. That is merely a negative form of advance face-saving. Face, face, face. Everybody has to save face, and, whether they have to or not, everyone tries to; it’s one of the basic compulsions of men.” I paused. “Are you following me?”

  “Yes. It’s most interesting,” he answered gravely. I glanced at him keenly. It was rather hard at times, I saw, to tell when this character was being sarcastic.

  “Thanks,” I said. “That brings me to my sixty-four-dollar point. Even jurors have to save face. Get this now. The jury in your case might simply be dying to let you go on your own story, or because they have fallen for your wife, or have learned to hate Barney Quill’s guts, or all of these things and more. But if the judge—who’s got nice big legal face to save, too—must under the law virtually tell the jurors to convict you, as I think he must now surely do, then the only way they can possibly let you go is by flying in the face of the judge’s instructions—that is, by losing, not saving face. Don’t you see? You and I would be in there asking twelve citizens, twelve total strangers, to publicly lose their precious face to save yours. It’s asking a lot and I hope you don’t have to risk it.”

  Lieutenant Manion produced the Ming holder and studied it carefully, as though for the first time. “What do you recommend then?” he said.

  It was a good question. “I don’t know yet. So far I’ve been trying to impress you with the importance, the naked necessity, of our finding a valid legal defense, if one exists, in addition to the ‘unwritten law’ you so dearly want to cling to. Put it this way: what Barney Quill might have done to your wife before you killed him may present a favorable condition, an equitable climate, to a possible jury acquittal. But alone it simply isn’t enough.” I paused. “Not enough for Paul Biegler, anyway.”

  “You mean you want to find a way to give the jurors some decently plausible legal peg to hang their verdict on so that they might let me go—and still save face?”

  My man was responding beautifully to the lecture. “Precisely,” I said, adding hastily: “Whether you have such a defense of course remains to be seen. But I hope, Lieutenant, I have shown you how vital it is to find one if it exists.”

  “I think you have, Counselor,” he said slowly. “I rather think now you really have.” He paused. “Tel
l me, tell me more about this justification or excuse business. Excuse me,” he added, smiling faintly, “I mean legal justification or excuse.”

  “First I got to go phone my office,” I said, arising. “That’ll also give me a chance for some solitary skull practice. It’s been quite a while since I’ve had to brush up on my murder.”

  chapter 6

  I was back with my man and ready to go. The signs were good: for the first time he was smoking without the Ming holder. “We will now explore the absorbing subject of legal justification or excuse,” I said.

  “You may fire when ready, Gridley,” the Lieutenant said.

  I looked hopefully at the man. Was it barely possible that he possessed a rudimentary sense of humor? “Well, take self-defense,” I began. “That’s the classic example of justifiable homicide. On the basis of what I’ve so far heard and read about your case I do not think we need pause too long over that. Do you?”

  “Perhaps not,” Lieutenant Manion conceded. “We’ll pass it for now.”

  “Let’s,” I said dryly. “Then there’s the defense of habitation, defense of property, and the defense of relatives or friends. Now there are more ramifications to these defenses than a dog has fleas, but we won’t explore them now. I’ve already told you at length why I don’t think you can invoke the possible defense of your wife. When you shot Quill her need for defense had passed. It’s as simple as that.”

  “Go on,” Lieutenant Manion said, frowning.

  “Then there’s the defense of a homicide committed to prevent a felony—say you’re being robbed—; to prevent the escape of the felon—suppose he’s getting away with your wallet—; or to arrest a felon—you’ve caught up with him and he’s either trying to get away or has actually escaped.”

  At this point I paused and blinked thoughtfully. An idea no bigger than a pea rattled faintly at the back door of my mind. Let’s see … . Wouldn’t it be true that if Barney Quill actually raped Laura Manion he would be a felon at large at the time he was shot? The pea kept faintly rattling. But so what, so what? “Hm … .” I said. It would bear pondering.