He’s afraid to look at the jury, doesn’t want to take in their awed expressions. It’s bad enough to behold the glum faces of the Sarnia Seven. Only Nancy Faulk, beside him, seems unperturbed.
Colleen Donahue takes a few moments to let Khan’s exhortation sink in before she returns to business. “We have half an hour before the noon break. Would either defence counsel care to begin?”
Nancy rises. “My pleasure, M’Lady. Half an hour is more than ample time to give last rites to the indictment against my clients. There’s barely a thimble of evidence against them, so I’ll leave it up to Mr. Beauchamp to answer the many misdirected shots Mr. Khan fired at the necessity defence. For the record, Arthur speaks for both of us on that issue.”
With a wave toward Amy Snider and Ivor Trebiloff, Nancy presents her clients to the jury as loving, long-time Torontonians who’ve operated a small antiques business on St. Clair West for twenty years. She touches on their campaigns for social causes, entertains with an account of their arrests in Mississippi for picketing the church of a racist preacher. Handcuffed together, they fell in love.
That’s always a winner. It gets smiles from the jury box.
Her summing-up of the evidence is incisive and succinct: None of the media accounts filed as exhibits point to Amy and Ivor as having played any part in planning the events of September 10. They were portrayed as “close to” or “comrades of” the others, but friendship is no crime. The Walrus reported that the store’s backroom was “freely available” to the Earth Survival Rebellion, but that spoke only to the couple’s generosity, not to an awareness of ill-doing. Anyway, awareness alone does not make one a conspirator.
The van, registered to Ivor Antiques Ltd., was used only for delivery of furniture. On September 10 it disappeared for an evening but was back by the morning. Driving time each way is three hours. Nancy’s point: Ivor and Amy likely would not have known it was gone because they regularly closed shop at five and opened at ten.
The couple are so concerned about their carbon footprint they bus to work from their home in York. This detail, along with a few others, isn’t in evidence, but Khan seems unbothered. It’s as if he expects the jury to cut them loose — presumably as a trade-off for convicting the other five.
Nancy signs off with a reasonable-doubt reminder. In all, it took her twenty minutes.
Her strategy — confidently short and sweet — ought to pay off handsomely, but with juries there’s no guarantee. Arthur has too often seen, at trial’s end, the stunned faces on counsel who thought they had it in the bag.
“It is twenty minutes after twelve,” says the judge. “I’m proposing we adjourn now and return at ten minutes to two.”
“I need a fucking drink,” Nancy mutters.
* * *
Arthur commandeers a small table in this gloomy tavern, and as Nancy visits the washroom he re-examines Azra Khan’s pitch to the jury. It was brilliant at many levels, folksy and wry with its capsule comments about each accused, then mocking Arthur’s shape-shifting strategies. Finally, a vibrant appeal to patriotism and law and order.
Arthur feels his age. He wonders if he has enough left in him to match his opponent.
When he badly needs pepping up he usually seeks a shot of confidence from his wife. Margaret is on Garibaldi this week, or somewhere in her riding at a series of town halls. He gets her recorded voice on the phone. No response on FaceTime. Now he’s even glummer.
Too impatient to wait for table service, Nancy brings a tall gin-and-tonic to the table, takes a swallow, and utters a little whoop of relief. Her job is done.
“Can you believe Azra?” she says. “Did he think he was in Stratford? Once more into the breach, dear friends! I mean, what a pile of bombastic shit. Extreme suck-holing to the media. It’s all about headlines.”
Arthur is shocked at that negative review but he’s not revising his own reaction. “Maybe it was a little overblown, but it was damn effective. He did a job on me, likening me to a ball bouncing around a roulette wheel, with no idea where I would land. I was the wily West Coast mouthpiece who thought he could sell hogwash to a Hogtown jury.”
Suddenly an omelette appears in front of him. He can’t remember ordering it, though obviously he did. His brain has become rusty and shopworn. He’s not ready to face the jury.
Nancy picks at a plate of calamari. “Look at it this way — despite all the loaded rhetoric Azra was just wasting words. Donahue is hell-bent on instructing the jury that the necessity defence is bullshit.” She mimics, wiggling her nose: “You may not allow this elusive concept to enter into your deliberations.”
Arthur has secretly held on to the hope that somehow, like Howie, she might be dazzled by sudden illumination and be persuaded to leave necessity to the jury. He must finally acknowledge that was a wilfully blind hope: she’d proclaimed her intentions well before the trial began.
“Will I also just be wasting words?”
Nancy drains her glass, gestures for the same again, looks hard at him. “You’re a great barrister, Arthur, with uncanny powers of persuasion, but you’re not going to budge Madam Justice Ayn Rand. Make your pitch. Nothing ventured. Maybe we can still hang the jury. It would help if you offer them a backup defence instead of throwing everything into the necessity basket. Plan C.”
Wise counsel. Arthur must dig up one of his red herrings, or maybe create a fresh one, and somehow pump it up with reasonable doubt and hope it will float.
* * *
He’s in the robing room, buttoning his vest with fumbling fingers, still trying to get himself up for his jury address, as his phone rumbles in his pocket. The big furry face occupying the screen confuses him for a moment, and then his heartbeat quickens.
“Bark hello to Arthur.” Margaret’s voice.
Ulysses stares at small, flat, non-smelling version of old man who deserted dog friend. He backs up a few steps and barks. Arthur barks back, and promises him a huge thigh bone if he can just wait a couple more days. Several barristers are staring at him, so he throws on his robe and finds a private area in the lounge.
Margaret asks, “Have you heard the latest poll results?”
“Poll results? Well, I’ve been rather out of touch, dear.”
“Okay, the election is only two weeks away and already in the bag. Assuming the Bleat’s polling procedures can be trusted, approval ratings for Zoller and Shewfelt are running at about ten percent. Our team is hovering in the high seventies.”
Our team. Zoë Noggins and the unmentionable Taba Jones. “Well, then, something to celebrate.”
There’s more good news. Blunder Bay is bursting with spring growth. The chickens are laying and the goats are kidding. No catastrophes, aside from Stoney sneaking off with the Fargo again. The moat around Jeremiah’s well is receding and the Garibaldi Historical Society “is panting at the prospect of some kind of unveiling ceremony.”
Margaret doesn’t ask how the trial is going — Arthur expects she knows the answer. But he confesses it has taken too much out of him. “I swear to all the gods of every known faith throughout the universe that this is my last trial.”
“Did I hear you say you’ll be here in a couple more days?”
“Maybe even sooner, depending on how fast I can pack.”
Chapter 25: Rivie
1
Monday, June 3
Judge Donahue, who believes everyone has their place — dock, box, stand, or counsel table — keeps a wary eye on my lawyer, who has wandered from his proper station. Right now, Arthur’s too close to the jury for her comfort, and I can tell she’s dying to order the bad boy to behave.
He’s note-less, and gestures with free hands. His voice is so rich and resonant he doesn’t need the sound system. Even in the back of the gallery no one cranes to hear.
He pitches pretty hard, now that he’s finished his warm-ups. He began with a little paean
to Toronto, how well he was received, then explained how our jury system is a bulwark against oppression by the state and powerful private interests, a form of citizens’ democracy in which “the people, not the government, not the judges, not the politicians, have the final say.”
Then he gave the jury a few congratulatory/sardonic words about Khan’s “vigorous” address and a tongue-in-cheek promise to the jury that anarchy won’t reign and the skies won’t fall if the Sarnia Seven are acquitted.
Azra Khan smiled at that, but his underlings looked sour.
Arthur has a relaxed rhythm going, and is easy to follow, but I wish my eyes would stop drifting to the empty jury chair. It’s so forlorn. And symbolic of a situation that is beyond Kafkaesque: ethics demanded that I tattle on an earnest, lovelorn student, thereby ensuring that I get sent up rather than set free. And drag down everyone else.
Arthur’s focus is straightforward: heap the shit on Chemican-International, this trial’s true evildoer. We are the good guys, we exposed those scumbags. The thrust is that the jury should acquit us on principle, even if they’re satisfied we’re guilty. Send a message. Help save the world.
He lays it all out, like a good prosecutor, all the evidence against Chemican. The Cook Islands holiday for the EPA boss, the culture of bribery, the falsified tests, the red-winged blackbirds and the hummingbirds, the toxins that stay in the ground and creep into all growing things, into gardens and cultivated fields, into our water, our food, our stomachs, our brains. He warns of the environmental holocaust to come unless something is done.
“Yet Chemican denies harm, rejects honest science, continues on this path of destruction. And I don’t trust them, my friends, I don’t trust them to tell the truth, and I urge you to find that their witnesses, who are still here, Mr. Wakeling and Dr. Jinks, were untruthful, and because of that, without even considering necessity, there must be reasonable doubt.”
This must be the Plan C that Nancy tipsily mentioned to us after she and Arthur returned from lunch.
“Now we know the plant was starting to bleed money and was about to be shuttered. We know a top official wrote confidentially to Mr. Wakeling, ‘We’d be better off if it burned down. Big insurance payout.’ That’s right. A bonanza, a hundred-million-dollar claim, a massive windfall for a creaky old factory with a cash flow problem. And with all that wood framework, it would burn like the Hindenburg. I see you nodding, Mr. Foreman, and you should know better than anyone.”
Nine out of ten. The mini-mall architect grins sheepishly, pleased that his expertise is recognized. Judge Donahue’s face clouds: she doesn’t like this overfamiliarity with a juror. Khan seems not to care, as he doodles on his pad, lost in thought.
“Mr. Khan scorned the option I posed, that Chemican’s corrupt bosses conspired to use the accused as unwitting pawns to make a big insurance grab. But let me frame that differently: What if these corporate schemers simply gave the accused carte blanche to enter the Sarnia plant, and cause so much damage it would have to be shut down? Whether by arson or explosive device or smashing up sensitive equipment.
“Now we can’t say for certain that was the case, but think about it. Ask yourselves if you’re satisfied beyond a reasonable doubt that Chemican wasn’t complicit in allowing the plant to be targeted by these accused. What we can say for certain is that Chemican’s trusted agent, Howell Griffin, did consent to an intrusion by my clients.”
He reads from a transcript, echoing Howie’s earnest tone: “‘Anything was possible that night. I didn’t care. I was up to here with my job. I was drunk. I was in love. I would have done anything for her.’ And he sure did. Howell Griffin gave Rivie Levitsky a blank cheque, gave her the keys to his inner office, gave her his computer’s password, gave her the security codes to the Sarnia plant.”
That’s not quite the way it went down, but no one’s objecting.
“Chemican’s head of security not only gave consent to an incursion upon that pesticide factory, he practically encouraged it!”
A pause to let that sink in.
I think I’m in love with her more than ever. Lucy still thinks that’s a crock of shit. My flush of astonishment and vanity has in fact subsided — punctured by her cutting derision. I’m surprised he didn’t propose marriage while he was on the stand.
“Griffin boldly admitted he gave Rivie Levitsky full access to his main computer and filing cabinet. Take what you want, he told her. He meant it. So if Mr. Griffin, acting as agent to his employer, encouraged the defendants’ direct action, I feel confident in telling you no crime has been committed. If I invite you to walk into my home, Ms. Glockins, and walk off with the silverware — and I’m not assuming you would do that —” (chortles from jurors) “— no one has committed a crime. Well, maybe me, if I was trying to defraud my insurers.”
More chortles. Ms. Glockins, Juror Three, social worker, smiles blushingly. Full marks. Arthur has achieved a familiarity with many of these jurors — casual greetings, good-health wishes, exchanges about the weather or the Stanley Cup playoffs, as they chance upon each other in hallways, escalator, elevators.
“Now, you may not be able to find clear, incontrovertible proof that higher-ups at Chemican helped engineer this incursion into their plant. You may find it unlikely they knew Mr. Griffin gave away all the codes and said, ‘Have at it, it’s all yours, burn it down, tear it down.’ But you do know that something stinks. And that aroma alone ought to raise a reasonable doubt about whether Chemican consented to a raid on their plant.”
So okay, that’s Plan C, I guess, the consent defence. I can read the judge — she thinks Arthur’s full of shit — but I can’t read the jury. Do they find his concept totally flat-earth far-fetched? Or could it raise a nugget of doubt? Just enough for them to worry over whether Beauchamp was right: What if those kooky idealists were used for an insurance scam?
Arthur turns silent, maybe offering a silent prayer, a Hail Mary. Then he’s distracted by a tapping sound behind him, and he turns — as do we all — to see Selwyn Loo approaching with his cane. A law student gives her seat to him.
Arthur spends a couple of minutes of special pleading for Rockin’ Ray, who was “obviously” too intoxicated by his hallucinogenic drug to know what he was doing while playing his avenger role.
Then he takes a deep breath and gets close to the jury again. “As I leave the consent issue with you, let me turn to the defence of necessity, and try to correct as many of Mr. Khan’s misstatements as I can — exhausting all of them would take up too much time.”
Okay, we’re back to Plan A. Here goes. Can he pull it off? Fingers crossed.
“The necessity defence is historic, recognized from Aristotle’s time. Its role in our common law goes back to 1551, thirteen years before Shakespeare’s birth, when the scribes of an English court recorded this trenchant comment: some acts ‘may break the words of the law, and yet not break the law itself.’ And necessity was offered as an example.”
Judge Donahue looks restless, maybe annoyed that Arthur is trespassing in her yard: the law.
“And here we are, nearly five centuries later, and that precept still stands, though it’s phrased more elaborately: non-compliance with the law — with the words of the law — is excused by an emergency or justified by the pursuit of some greater good. Though that principle is not carved on a stone tablet, it has held up.”
Donahue’s nose begins to twitch. Arthur isn’t paying attention to her, has left the counsel table again, is cozying up to the jurors. “The highest court in this land has said: ‘the peril must be so pressing that normal human instincts cry out for action —’”
“Stop right there!” As Her Ladyship bawls that, Miss Pucket almost rockets from her chair with fright. “No, sir, you cannot misconstrue Supreme Court citations.”
“If it please Your Ladyship, I am in the middle of my final speech to the jury.” Arthur looks astonish
ed that she would muscle into his exclusive time with them. “I misconstrued nothing, I quoted verbatim from the Supreme Court.”
“Well, you just can’t cherry-pick the passages you like. Members of the jury, you will disregard counsel’s commentary on the law of necessity. That is entirely the prerogative of the court.”
Arthur is unbowed. I think he wanted this small confrontation. “I look forward to Your Ladyship’s instructions on how necessity applies to the facts in evidence.”
“Or whether it does.”
At which point, Khan concludes a doodle which, from what I can make out, is a happy face.
Donahue has an OCD attack: “Mr. Beauchamp, when you address me, would you kindly reposition yourself at your table.”
He bows and does so. “My apology, I didn’t realize it made you uncomfortable, M’Lady.”
Maybe he wants the jury to feel she’s one-sided and unreasonable, that’s why he digs at her. He boldly continues to talk about necessity, giving a few instances from reported cases. Donahue watches him with eyes hooded.
“A more typical example is this: a mother decides to shoplift from a grocery to feed her starving baby. Would you convict her for that, Ms. Nagler?” Juror Nine, retired botany professor. “No, I should hope, because the offence she committed — that she planned to commit — was of infinitesimal effect compared with the harm she sought to avoid.”
Donahue’s warning voice: “Mr. Beauchamp . . .”
Arthur, piqued, interrupts, before she can get going: “The point I was leading to, M’Lady, is that a planned raid on a factory producing deadly chemicals is insignificant compared to the planetary catastrophe to which these chemicals contribute. Proportionality is a significant factor—”
“That’s just one factor. Imminent peril. No way out. How do you meet that? Never mind, just carry on.” She shuts up, sensing her heckling has made the jury impatient.
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