by Caleb Crain
“Yes.”
“They’ll take very good care of you, and they’ll be able to tell me after they’ve spent some time with you whether you’re able to understand what we’re doing here in this courtroom and whether you’re in a state of mind such that you’re able to help Mr. Gauden with your defense.”
“I thought I came here to say not guilty,” Leif said.
“No one pleads in my courtroom until I know that he’s competent to,” the judge replied, and rapped his gavel into its wooden dish.
* * *
—
“No,” Matthew said, suddenly on his feet. “No. Wait.”
“Matthew,” Mrs. Fisher said, her voice full of fear, her hand trailing toward her son’s back, her embarrassing, primitive love overspilling in public.
He scrambled down the row, not waiting for people to get out of his way. At the front of the room, three burly officers were handcuffing Leif.
“Matthew,” said Mr. Fisher, in the lower-pitched voice one uses with a dog or child who hasn’t listened to one’s earlier commands.
Matthew was intercepted at the defendant’s table by Gauden, just as the officers were taking Leif out through a small brass door.
“I don’t want to stay here,” Elspeth said to Diana. She foresaw that Somerville and the judge were going to be avuncular with Chris during his arraignment, which came next, and she didn’t think she could bear to watch. Chris had been innocent once, and part of him probably still was.
“Do you want to go home?”
“I can’t. There’s no one here for Raleigh.”
They walked downstairs. Outside, over the flat, bollarded plaza, the clouds in the sky were low and indistinct from one another. “Tomorrow a social worker will reach out to you, okay?” they heard one woman saying to another, who was on the verge of tears. The sorrow of one formed part of the occupational climate of the other. Beyond the plaza there was a park where one could walk along a brick-and-concrete path between squares of chained-off, snow-crusted lawn, and they made their way to it for privacy.
They walked for a while without saying anything. For the comfort of it Elspeth wished that Diana would take her hand, but although she knew that Diana would be willing to, if she were to ask, she was afraid that her hand would seem damp and heavy to Diana by the time she was ready for Diana to let it go and that she would expose to Diana her need. It wasn’t really need, exactly. She should be able to keep whatever it was to herself. They walked separately as well as in silence therefore.
Sparrows were bickering over a rift of black ground that exhalation from a sewer grate had opened in the snow. The birds’ cries were tinny and rhythmless, like the grinding sound when someone is grabbing at the change in his pocket. Elspeth knew that not even bird-watchers took note of sparrows; they existed without being worth noticing. Only a machine could have the patience to number and keep track of them.
“If I don’t go to jail . . .” She didn’t finish her thought. “That sounds so melodramatic.”
“It doesn’t look like you’re going to,” said Diana.
“If I don’t, would you consider having a relationship?”
“With you?” Diana asked.
Her surprise made Elspeth aware of having assumed that Diana was waiting for her. Elspeth’s eyes burned. Maybe this was what boys felt when one turned them down.
“Would you at least kiss me before you ask that?” Diana asked.
There was no one around. Elspeth was clumsy until she came close enough.
“Is this safe?” Elspeth interrupted to ask.
“It never is.”
Elspeth felt Diana slip her hands into the cuffs of the sleeves of Elspeth’s coat and hold on by the underside of Elspeth’s forearms. Elspeth leaned forward, burying her face against Diana’s coat, croodling into her. Then they kissed again.
“I think I love you,” Elspeth said.
“That always sounds so much like a command.”
“You’re so cold about it!”
“In this terrain I think it’s better to be a little cold.”
“I understand.”
“No you don’t,” Diana said.
While they kissed a third time, Elspeth made an effort to continue to be able to hear the impersonality in the chittering of the nameless, unspecial birds around them, but it was hard under the circumstances to keep her mind from assimilating the sound to an impression of happiness.
* * *
—
They stayed in the park so long that they missed Julia’s arraignment as well as Chris’s and walked in on the last arraignment, Raleigh’s, while it was still in progress.
“I understand Mr. Penny to say that you are waiving your right to a formal reading of the charges,” the judge was saying, “but I’m something of a stickler and I like to be sure that defendants know the gist of what they’re accused of, and so I’d like to walk you through the charges nonetheless, if I may.”
“Yes, sir,” Raleigh said. “Your Honor, I mean.” He had the posture of a boy standing at a blackboard to deliver an oral report.
“First of all, the government is claiming, Mr. Evans, that you defrauded Bresser Operational Security, Incorporated, of property, in this case data, by use of a wire transmission. This is a charge of wire fraud; it’s the only such charge against you. The other charges all involve a law known as the Computer Fraud and Abuse Act. The gravest of these is that the data you obtained, without authorization or in excess of your authorization, has been determined by the executive branch of the government to require protection from disclosure for reasons of national security. Another charge against you under the CFAA is that you obtained that data, without authorization or in excess of your authorization, from a computer that is used in interstate commerce, and still another is that the computer you fraudulently accessed was one used at least partly for US government purposes. The government also says that what you obtained through fraud and without authorization had a value in excess of five thousand dollars, and they further claim that through your access to the protected computer in question, again without authorization or in excess of your authorization, you caused damage and loss to Bresser Operational Security. The law calculates such loss by summing up any reasonable expense that Bresser Opsec may incur in the course of responding to your illicit access and resecuring its servers, and the government will also be arguing that in this case that loss is also greater than five thousand dollars. How much greater will likely be a matter of debate. The amount is distinct from the value of the data you took. You are also accused, as a sort of corollary to each of the five CFAA charges I have just described, of conspiring to commit the charges in question, which as a legal matter is a separate thing from the charges themselves. Have you had a chance to talk with Mr. Penny about these charges, and does my description of them conform to what you and he discussed?”
“We did. It sounds like what he explained to me.”
“It’s difficult to say what sentence you might face if you were to be convicted of all these charges, and nothing I say now is to be construed as representing an intention on my part as to your sentence, if the case should be decided against you. But I do want you to know that the gravest charge alone could incur for you a term in prison as long as ten years. If the government is able to show that you used what the law calls ‘sophisticated means,’ the penalty will be increased. As it also will if you are shown to have deployed what the law calls ‘special skills.’”
“I’m the only one in the group who can’t read minds,” Raleigh blurted out.
The judge paused. He looked up from the rap sheet in his hands. “No, Mr. Evans, I should say that you can’t. But the law has in mind skills that are a little more, shall we say, sublunary.”
“I’m not a hacker, either.”
“We’re not trying the case now, Mr. Evans. How do you p
lead to the charges? Shall I enumerate them again?”
“Not guilty.”
“Be it recorded that the defendant so pleads.” The judge laid the rap sheet facedown. “Will you be making a motion for detention?” he asked Somerville.
“No, Your Honor.”
“I’ve been given to understand that both the government and the counsel for the defense are willing to abide by the automatic rules for discovery. Is that correct?”
Somerville and Penny assented.
“Other than requiring an unsecured bond to guarantee his return, I’m not going to impose any conditions on Mr. Evans’s release. What that means, Mr. Evans, is that as far as this court is concerned, you’re going to be free to use your computer and cell phone. There’s a certain amount of jurisprudence now that maintains that access to the internet is an expressive right, and I don’t want to be fussed with it. But this court has no power to lift any restrictions on you imposed by the state court, and I advise you that to the best of my knowledge the state court’s restrictions on you remain in effect.”
“Thank you, Your Honor.”
“Never mind that. Do you understand? If the state court says you can’t go online, you still can’t go online, no matter what I say.”
“I understand.”
“Well, they’ll walk you through it all again in Pretrial Services,” the judge concluded.
Raleigh was then made to disappear through the brass door, as Leif had.
* * *
—
“Do you think Leif will still want to see me?” Elspeth asked, when she and Diana were alone in the elevator, on their way to the third floor, where Pretrial Services was located.
“I don’t see why not,” Diana replied.
In a yellow waiting room they found Julia, her parents, and her lawyer, Kenneth Montague. The parents were wearing their coats; the father was holding a Russian troika-driver’s hat.
“It’s so good of you to come,” Julia said to Elspeth.
Elspeth saw Julia’s parents freeze. “I know we shouldn’t talk,” Elspeth said.
“Who knew that being a criminal would require so much form?” Julia said.
“Remember what we talked about, Julia,” Montague interposed.
“My whole mission is to remember everything,” Julia said. “Are you going to see Somerville while you’re both in the building?” she asked Elspeth, as if she were beyond taking sides even in her own case.
“I’m not talking to him,” Elspeth said. “I let my lawyer go because she had me talk to him.”
Julia nodded abstractedly. Perhaps she seemed not quite present because she was making an effort to commit Elspeth’s words to memory.
When Jeremy and Philip arrived, Elspeth excused herself to use the women’s room.
The restrooms for the public were at the end of the building, and as Elspeth progressed alone down the long corridor, she was able to perceive that her body was still resonating from Diana’s touch. It was as if the two of them had taken an amusement park ride together and she wasn’t yet completely sure of her land legs again.
As she passed the men’s room, the door dipped open and Chris stepped out. He was flicking water off his hands. They had put him in a blue suit so out of keeping with his usual style that it seemed to cut his frame out of the larger picture, as if he didn’t belong to the scene but had been pasted onto it.
He wasn’t pretending not to see her, but he didn’t say anything.
“Leif is in the hospital,” she told him.
“Is he all right?”
“It wasn’t his pneumonia,” she said. “He was depressed.”
“I heard,” he replied.
He might have heard even more than she had. His devotion to Leif had always been so fierce.
He was the one she would have ended up being with, she realized, if she had stayed in the tunnel that she had been traveling in. In none of her possible timelines would she have remained with Raleigh.
“You shouldn’t really be talking to me,” he said.
“I know.” It came into her mind that she could have saved him, but she didn’t know whether this was her own thought or her reading of one of his. They had spent all those hours practicing, and she was still attuned. Perhaps he was, as well.
Suddenly the fact of his disloyalty came to her like a thick smell blossoming right under her nose. “How could you?” she asked.
“Your conscience is clean?” he answered.
As he walked away, his new shoes struck neat, clipped strikes against the stone floor.
* * *
—
When she returned to Pretrial Services, Raleigh had been released and was at the center of a crowd in the waiting room. Beside him, Felix Penny’s arms were extended as if to suggest a path through the press of people, which Raleigh wasn’t taking. Penny seemed to be trying to disguise a look of distaste with a feigned expression of amusement.
“I’m going to update with the basics as soon as I get to my phone,” Jeremy was telling Raleigh. “Then a longer post when we get home.”
“Raleigh, these are my parents,” Julia said.
“Your parents?” There was something almost disrespectful about the note of incredulity in his voice. Julia’s parents were older and were significant people, and they were being jostled and unbalanced along with everyone else in the room.
Elspeth stood next to Diana but not in a way that would suggest to an outside observer that either of them had a claim on the other.
“I wanted to ask about the motion to dismiss that you said you will be making,” Jeremy said to Penny.
“I might be able to talk about it with you later, Jeremy.”
“Are you Elspeth’s new lawyer?” Julia asked.
“I’m Diana. We’ve met.”
“Oh, that’s right. From the Kitchen. I do remember.”
It was evident that Julia was curious.
“Is the idea,” Jeremy asked, “that if the government won’t release the file that was downloaded, there’s no proof of theft or even access?”
“Elspeth!” Raleigh called out, only just now noticing her.
“Now is not a good time to talk to Elspeth, Raleigh,” Penny said.
“I’m not in prison yet, am I?” Raleigh replied.
“But won’t your motion,” Jeremy asked, “be at odds with the motion that Montague said he’s going to make to compel discovery of the stolen file?”
“No, it’s all the same,” Raleigh answered, instead of Penny. “They make a motion to compel discovery of a piece of evidence in the hope of finding out something about the evidence that will support a motion to suppress it. Discovery is all about suppression; it’s so Orwell. The thing is, it might not even matter because of Chris.”
“Chris?”
“The government doesn’t really need any other evidence if Chris testifies as an eyewitness.”
“Raleigh, can I speak to you alone for a moment?” Penny asked.
“I’m going to talk to Elspeth first.”
Raleigh steered her by the elbow, and in his excitement his grip pinched her. When they got into the corridor, she said, “Please don’t,” and shook her arm free.
“Sorry.” He continued to walk her forward, away from the others.
“Julia was trying to introduce her parents to you.”
“Was she?”
“And you should be more careful not to talk about your case.”
“I don’t know. Penny says the judge’s talk about a ten-year sentence is just talk. He says it would be obscene to give someone a sentence that long in a case like this. Did you hear Montague give notice of that motion to compel that Jeremy’s talking about? The room they put me in, I couldn’t hear the other defendants’ appearances.”
“I think we were still in t
he park.”
“What park? Who?”
“Diana and I went for a walk. I was upset about Leif.”
“Did something happen?”
“They committed him to a state hospital. It’s only for an examination, but he didn’t seem to be prepared for it.”
“Can we go a little farther?” Raleigh asked.
“I’d rather not.”
“I want to ask you something.”
“Please don’t.”
“I want to ask if we can get back together.”
“No, Raleigh,” she said.
They were still close enough to the others for Raleigh’s disappointment to be legible to them, even though their voices couldn’t be overheard, and she knew that this deepened his chagrin.
“I know I don’t have any right to ask. I know I might be about to go away.”
“It isn’t that.” She couldn’t tell him that he had become lackluster to her, so she said what she could: “There’s someone else.”
He swiped at his always unruly hair.
“There is?”
“I’m sorry,” she said.
“No, it’s okay. If you found someone else . . .”
“Yes,” Elspeth confirmed. It was better, as Diana said, to be a little cold in such terrain.
“I think I know who,” he said, and then he, like Chris, walked away from her without saying good-bye.
* * *
—
It wasn’t until they got to Elspeth’s that they realized that they had forgotten their cell phones at the courthouse. Maybe they had meant to make themselves unreachable. Being without them overnight felt like an improvised shelter—like a tent that children put up in the living room with sheets and chairs.
As Elspeth filled her teakettle, she wondered how her checkerboard linoleum floor and pressed-tin ceiling looked to Diana’s eyes. “I’m nervous,” she said. She lit the first match she struck, however.