Necessity

by D. W. Buffa

  “You’ve left something out: most of the people I’ve represented should have been found not guilty.”

  “Most, not all?”

  I let that question pass in silence. The difference between the guilty and the innocent was not always as clear as everyone would like to think.

  “And Kevin Fitzgerald, what is he so single-minded about? In what way is he obsessed?”

  “Haven’t you figured that out yet? He wanted to be mayor so everyone in the city would know who he was. He wanted to be a senator so everyone in the state and a lot of people in the country would know who he was. He wanted to be president so everyone everywhere would know who he was.”

  “Wanted to be president?”

  “Yes, wanted, because now I think he wants more than that. It’s the only thing I can think of that might explain what he is doing.”

  “You still don’t think he really did it?” I asked, wondering why she would not accept the obvious fact.

  She smiled, took another drink from her glass and fixed me with a glittering smile.

  “You live just down the street, on California, just before you get to Grace Cathedral. Am I right? That means it is only a five-minute walk away. And that means,” she added, her glance now subtle and profound, “in ten minutes we can be in bed.”

  THERE WAS A question I always asked, a question which from the first case I ever tried changed the way a jury viewed its responsibilities, a question that taught them it did not matter if at the end of the trial they thought the defendant must be guilty. I always led up to it the same way, starting with the first juror I questioned on voir dire, a simple inquiry that invariably elicited the same, surprised, reply.

  “Tell me, do you believe everyone should obey the law?”

  “Yes, of course,” was always the response, given with a rush of sincerity lest anyone suspect that they might ever do anything wrong.

  And then, quicker and in a more serious tone of voice, the unexpected challenge: “Even you?” Followed with the question that settled everything: “At the end of the trial, the judge is going to instruct you that you must find the defendant not guilty unless the prosecution has proven the defendant guilty beyond a reasonable doubt. My question, then, is this: If, at the end of the trial, after you have listened to all the witnesses, after you have heard all the evidence, after you have discussed the evidence with the other jurors, if you think to yourself that the defendant probably did it, but that the prosecution has not proven it beyond a reasonable doubt, will you obey the law and return a verdict of not guilty?”

  No one had ever said no, no one had even hesitated to say yes. Of all the trials I had won, most of them had been won because of that one question, won before the first witness had even been called, won because the jury now understood that they were not there to decide what really happened, but whether the prosecution had proven that their version of events was, beyond any serious doubt, the only true one. That one question was the best weapon a defense attorney had, and it was a question that in the trial of Kevin Fitzgerald I could not ask.

  Everyone knew what had happened, everyone who sat in the jury box, the twelve men and women who would decide the case, knew the defendant had committed murder. Fitzgerald had told them, he had told the world; there was not anyone anywhere who had not heard about his confession. Kevin Fitzgerald, the junior senator from California, had murdered Walter Bridges, the president of the United States, and there was not any doubt, reasonable or otherwise, about it. The only question was whether it was really a crime.

  I greeted the first juror, a middle-aged woman who worked as a nurse in a local hospital, like a long-lost friend

  “You work in the emergency room at UCSF—the University of California San Francisco,” I added for the court reporter, hunched over her stenographer’s machine, “up on Parnassus Street. You have to make life and death decisions in that job, don’t you?”

  She had kind, gentle eyes, but quick, alert, attentive.

  “We do whatever we have to do, and yes, sometimes it is life and death, but,” she added with a modest, self-effacing smile, “those decisions are usually made by the treating physician.”

  “Sometimes to save a patient, it’s necessary to remove a limb, isn’t that true?” And then, as she nodded her agreement, “Because you know that if you don’t, the patient will die, and because your responsibility is, if I can put it like this, to the whole patient, not just to a part?”

  “Yes.”

  “Tell me, Mrs. Huddleston, did you vote for Walter Bridges in the last election?”

  I had known for weeks that I was going to ask this question, and I had known exactly what the reaction would be. Raymond St. John, the prosecutor, was on his feet, thundering his objection. The courtroom, crowded to capacity, hundreds of people who had lined up hours before the trial started, was suddenly tense, electric, everyone looking to the bench. The judge fixed me with a lethal stare.

  “You are not to ask that question of this juror, or any other juror! How someone voted has no relevance to this case.”

  “It has every relevance, your Honor,” I replied, rising from my chair at the counsel table. I spoke in a calm, measured voice, showing, as best I could pretend, my respect for her judgment and the law.

  I had tried other cases in the courtroom of the Honorable Evelyn Patterson. She liked a little too much the prerogatives of her position. When she came into court, she always came a few minutes late, and while she talked to jurors as if they were all now best friends, she too often treated the lawyers in her courtroom like errant schoolboys not smart enough to learn the lessons she was so well-prepared to teach. She was also a perfect addict for publicity. If this was the trial of the century, she was going to make sure she played the main part. When St. John, who had ambitions of his own, agreed with the media that the trial should be televised, she told me in open court that my objection struck her as outdated and even quaint. When I replied that, “I hadn’t realized that time, and not the law, was the proper basis for a legal judgment,” and then had the temerity to ask whether she had decided to schedule the trial with commercial breaks, “thirty second spots during cross-examination,” she became, for some reason, quite livid. And now, the first day of trial, the very beginning of jury selection, I had set her off again. I could not have been happier.

  “It’s obvious, your Honor. We are not here to decide if the defendant, Kevin Fitzgerald, caused the death of Walter Bridges. We are here to decide if Kevin Fitzgerald had not only the right, but the duty, to do so. The answer to that question depends, in turn, on whether Walter Bridges was himself guilty of a criminal conspiracy. I am entitled to find out whether this potential jury member, and every other prospective juror, is, because of their political beliefs, prejudiced against the defendant.”

  “It may be obvious to you, Mr. Antonelli, but it isn’t obvious to me. Now ask your next question, if you can think of one that might be allowable.”

  Still standing, I turned back to the jury box.

  “Did you at any time believe the president was a clear and present danger to the country?”

  “Mr. Antonelli!” cried Patterson, halfway out of her chair. “You ask another question like that and you’ll be watching the trial on television from your cell in the country jail! Don’t doubt me, Mr. Antonelli. I won’t hesitate to hold you in contempt.”

  Slowly, I turned and faced her with a look that dared her to do it.

  “I’m here defending a man on a charge of murder. The defendant is accused of the assassination of the president of the United States. I can think of no more serious charge. If I seem to push the boundaries of what is considered normal practice, if I ask questions that are not often asked in a court of law, it is because there is no precedent—no accepted, established rules—for a case, a trial like this. But I will try, your Honor, to stay on point, and to not incur the court’s displeasure.”

  “Tread lightly, Mr. Antonelli. Ask your next question.”


  I sat back down, leaned back and began a quiet conversation with the juror.

  “You didn’t go to law school, did you, Mrs. Huddleston?”

  “No, I didn’t.”

  “If you had, you would have taken in your first year the course on criminal law. Almost the first thing they teach you is something called the law of necessity. One of the examples they always talk about involves mountain climbing. Imagine there are six climbers, all roped together, climbing high up on a mountain, a sheer drop of a few thousand feet below them. The climber last on the rope falls and is dangling in midair. You’re the climber just above him. You can’t hold him. There is too much weight. You have two choices, and only two choices: hang on as long as you can, knowing it is only a matter of time before not just you but everyone else will be sent flying to your deaths, or you can cut the rope and save yourself and the others by letting that one climber die. What would you do, Mrs. Huddleston, if you had to make that choice?”

  She shut her eyes and shook her head at the agony of the choice, the necessary choice, that would have to be made.

  “Cut the rope, sacrifice one to save the others.”

  “That happens in an emergency room, doesn’t it? If there has been a mass shooting, or a terrible accident involving more victims that can be taken care of at the same time, choices have to be made. If there is someone who seems certain to die no matter what you do, you take the next victim, the one you think you can save. No, never mind, Mrs. Huddleston, you don’t have to answer that.”

  Raymond St. John was as good at prosecuting cases as there was. There was nothing of the aggressive self-righteousness, the insistent display of their own rectitude, that too many other prosecutors wore like a badge of honor. He did not need to separate himself from the follies and vices of the criminals he brought to trial. Friendly, easy going, the first to shake your hand on those rare occasions when you won a case against him, he gave the impression that, but for the luck of birth and education, he might have made some unfortunate mistakes of his own. It may have been connected with the fact that, just below the surface, there was a sadness, a sign of something lost, I had seen in the faces of other men, men who had, for all sorts of reasons, become alcoholics and, for different reasons, then recovered. He still moved with an athlete’s efficient speed, the way he must have done on the football field in college when he was an all-American running back. Even standing still, he seemed to be in motion.

  He did not ask many questions in voir dire, and those he did ask were for the most part variations on the same theme. He did not care, it did not matter, how you had voted; it did not matter if you had admired or hated Walter Bridges. He only cared that you could put aside your political beliefs, whatever those beliefs might be, and act the part of good citizen, dedicated to the rule of law. The question, the only question, was whether you would base your verdict on the evidence and the evidence alone.

  It was standard, textbook procedure, conducted, however, with unusual skill. The questions reminded everyone what their duty was; the manner in which he asked the questions told them he was someone they could trust, as fair-minded as anyone they could find. There would not have been a problem in any other trial. There would not have been a problem in this one if I had not, by those first few questions by which I had incurred the angry rebuke of the judge, encouraged one of the last jurors to ask St. John when he was finished if he could ask him a question of his own.

  “You’re prosecuting the case for the government. Does that mean you voted for that criminal son of a bitch?”

  I bit my lip not to laugh. Patterson banged her gavel so hard it was a wonder splinters did not start to fly, banged it over and over again before she could quell the bedlam of the crowd. She turned a sharp, unforgiving eye on the juror, who sat smirking, triumphant and unrepentant in the back corner of the jury box.

  “You’re excused, Mr. Sherman. Your services will not be required.”

  “No, in answer to your question,” said St. John as Sherman left the jury box, “I did not vote for Walter Bridges when he ran for president.”

  I started to object, to raise all the hell I could, but I knew it would have no effect.

  “So you agree,” I shouted to no one in particular, “that Walter Bridges was never qualified to hold the office, that he was a danger to everything we—”

  “That’s enough, Mr. Antonelli!” yelled the judge over the noise of her own gavel beating back the noise that hit with hammer-like force from the audience behind me.

  Another prospective juror was called by the clerk to take the place of the one just dismissed. St. John acted as if nothing had happened, and that Marcia Vernon, a black woman in her early twenties, was a close, personal friend. He smiled at her, she smiled back. He was sitting at the counsel table farthest from the jury box on my right. He bent forward, as if to get closer.

  “You were in the courtroom when we started voir dire, and you heard Mr. Antonelli, the very capable attorney for the defense, describe that dreadful scene—and he’s right, we all heard about it our first year of law school—with the mountain climbers, that to save everyone else the rope has to be cut, sending one of them to a certain death. But, and this is my question, would your answer be the same if it was clear that the others were strong enough, and that there was time enough to pull that climber to safety? That, as I think you will see, as the evidence will show, is precisely the situation here. Murdering the president, even if you believe the president should be removed from office, was not the only available choice. The law of necessity does not apply.”

  Finally, we were done, we had finished voir dire, a jury had been empaneled, seven women and five men, the oldest sixty-eight, the youngest, the last juror chosen, only twenty-three. Most of them, I was willing to guess, had not voted for Walter Bridges, and all of them, I was all but certain, willing to follow the law to whatever verdict the law required. It was, I thought, a good jury, as fair-minded and impartial as anyone could have hoped; a jury, in other words, with which Kevin Fitzgerald had very little chance to win.

  He did not care about his chances. He knew more about the shifting allegiances of the public mind than any courtroom lawyer ever could.

  “You heard what that juror said, what he asked St. John.”

  “The juror who isn’t a juror anymore, the juror who, if he had kept his mouth shut, might still be on the jury, a potential vote for you and acquittal?”

  “The point is that he said what everyone else is thinking.”

  “The point is that you don’t know, any more than I do, what anyone else is thinking.”

  “What’s wrong with you? Can’t you see what’s right in front of your eyes? You saw the way they were looking at me. I’m sitting where you had me sit, in the chair closest to the jury box. Did you see anyone pull away, act like they didn’t want to be too close to someone accused of murder?”

  We were alone in the courtroom. Everyone gone except the two guards waiting to take Fitzgerald back to jail had left. The late-day sun shone through the windows high on the wall above the empty jury box. I loosened my tie and, sitting back in the chair, crossed my arms, stretched out my legs and stared down at my shoes. He was not wrong in what he said. There had been no sign, not the slightest, of any kind of aversion, the only reaction to their close proximity an almost casual curiosity about what he was like. They had looked at him the way they might have studied some celebrity, wondering whether he was just like what they thought he was when they had seen him in a movie or on television. I felt like saying that just because they liked you didn’t mean they wouldn’t hang you. I told him instead that they were always going to be looking at him, even if sometimes out of the corners of their eyes, measuring his reaction to everything that went on, especially when a witness for the prosecution said something especially damaging.

  “Listen to me. This isn’t like some committee hearing in Congress; it isn’t like some political rally. You don’t get to ask questions, you don’t get to giv
e speeches. You listen, you observe, and no matter what you hear, no matter how wrong or stupid it is, you follow every word, and you never look surprised. No matter what. Because you know things no one else knows. That is what you have to make them feel: that whatever they hear, whatever a witness says against you, they’re only saying it because, if they aren’t lying, they don’t know the whole story, that the testimony of the prosecution witnesses are only fragments, parts of a puzzle only you can solve. Our case, your defense, rests entirely on the proposition that you knew things few if any others did, and it was that reason—what you knew—that caused you to do what you did. Do you understand me? Do you understand what I am trying to tell you?” I asked, raising my eyes to meet his waiting, anxious, utterly impatient gaze.

  “We’ve been through this a dozen times. Damn near every day.”

  “And we’ll keep going through it—every day the trial lasts, if I have to—until it’s second nature, the only way you know how to think!”

  “I’m not—”

  “I know, an empty-headed fool. It might be easier if you were. You might not spend so much time questioning my judgment.”

  “I’ve never questioned—”

  “Only every day.”

  “I’ve just asked questions about what you plan to do. That’s all.”

  “And you never seem to believe me when I tell you that I never know what I’m going to do, that something always happens at a trial that no one expected and no one could have guessed, something that usually changes everything. And if you don’t see it when it happens, if you are so locked in to what you think is going to happen next, you’ll miss the chance that may never come again, the chance, sometimes the only chance, to get the verdict you want.”

  “So we just sit there and wait to see what happens?”

  “No, you just sit there. I’ll have other things to do.”

  “What about what I asked you about before? I want to hold a press conference, go on some of the morning shows. Everyone wants to hear my story.”