Necessity

by D. W. Buffa

  Quentin Mitford was the epitome of the type. He spoke for all of them.

  “It is a basic principle of American law—a basic premise of both the first and sixth amendments to the United States Constitution—that a criminal trial is a public trial. The public’s right to know, especially in a trial of this magnitude, is absolute.”

  Had Quentin Mitford ever tried a case, had he ever stood in respectful silence while a trial court judge told him what an embarrassment to the profession he really was, had he been forced to listen, politely, to some black-robed fool who had not read a law book, or anything else, since the day he passed the bar, tell him that his brief—the one he had worked on for days—wasn’t worth his time to read, he might have learned that it is probably not the smartest thing to instruct a judge on the law with a smile as condescending as anything you might have seen on the mouth of an American billionaire when asked by a car salesman which model he thought he could afford. But he was lucky nothing, not even his smug arrogance, could disturb the equanimity of the remarkable Leonard Silverman.

  “I’m sorry,” said Silverman, leaning forward. “Could you speak louder; I didn’t hear you.”

  Mitford, certain he had enunciated quite clearly every word, seemed puzzled. The smile began to fade. He started again. He got to the third word.

  “Oh, that argument! Yes, I’m familiar with that. It isn’t any good. You should know that. The public’s right to know. That isn’t a constitutional principle; it is a bromide, a simple-minded one at that. There is no necessity for television coverage, no necessity for cameras, no necessity, if you get right down to it, for members of the press of any kind to meet the requirement of a public trial. The public, as many of them as can be seated in the courtroom, are free to attend. The court reporter takes down every word that is spoken. In other words, Mr. Mitford, there is a record, a public record, of the trial.

  “The issue is not whether television is necessary for a public trial; the issue is whether we can have a trial at all with the kind of coverage that by inflaming the emotions of the crowd has led to the death—the violent death—of a distinguished jurist who was presiding over this trial. The question, Mr. Mitford, is quite simple: can you guarantee this court that continuing to allow your network, and the others, to cover the trial of Kevin Fitzgerald for the murder of Walter Bridges won’t continue to create an environment in which something like what happened last night won’t happen again?”

  Mitford was appalled. Everyone knew what a question like that would mean for a free press.

  “You can’t mean to suggest that the only way news coverage would be allowed is when the possibility of violence doesn’t exist? We couldn’t cover—”

  “The press can cover whatever it likes. Reporters are free to cover this, and every other trial. Not all media are the same, they have a different effect. When you read something, you think about what you’re reading, your mind is engaged. When you see something on television, when you see someone saying something you don’t like, you react, and sometimes, Mr. Mitford,” he said, his mouth drawn taut, “that reaction can be violent.”

  Pausing, he nodded twice in quick succession. Discussion was over.

  “The court has two obligations: to make sure the defendant receives a fair trial, and to do whatever is in its power to protect the safety of everyone involved in the trial and everyone who works in this courthouse. There will be no further television coverage of these proceedings. There will be no cameras allowed inside the courthouse. I understand the great public interest in this trial and its outcome. For that reason, a third of the seating in the courtroom will be reserved for reporters accredited to legitimate news outlets. That is the order of the court. The trial will recommence tomorrow morning, ten o’clock.”

  And with that, Leonard Silverman left the courtroom, and the six dark-suited lawyers rolled their cases back to their offices where they would devote even more billable hours to discovering how they might now appeal the issue on which they had just lost. I caught a cab and called Tangerine.

  WITH A BLACK binder in his hand, Judge Leonard Silverman walked briskly to the bench, his slight shoulders straight, his eyes never moving. He placed the binder on the bench as he took his seat. Looking directly at the jury, seated on his left, he raised his right hand, palm down, and then lowered it to signal that everyone in the courtroom should resume their seats.

  “Ladies and gentlemen of the jury, my name is Leonard Silverman. I have the unfortunate duty to take the place of my colleague and friend, Judge Evelyn Patterson, who, as you know, was killed night before last in a senseless act of violence on the courthouse steps. Judge Patterson believed, with every fiber of her being, in the sanctity of the law. It is for that reason, the importance she attached—the importance we all attach—to the law, that this trial will not only continue, but continue as if there had never been an interruption. Let me now remind you of where we are.

  “At the beginning of this trial, after you were sworn in but before the first witness was called, you were instructed that you had several duties. The first, and the most important, is to listen to all the evidence before you begin to reach any conclusions about whether the defendant, Kevin Fitzgerald, is guilty or not guilty. You are to keep an open mind. More than that, when all the witnesses have testified, when you have heard all the evidence, then, when you begin your deliberations, you are not only to express your own honest opinion of what the evidence means, but you are to listen, and to give credit, to what any other juror, especially one with whose opinion you initially disagree, says and thinks. You are to engage with each other in what is called reasoned argument. If, and only if, you all eventually come to the same conclusion, you may then reach a verdict in the case.”

  I was watching their faces, the way all twelve jurors carefully followed each word. They had respected Patterson; they would never think to question anything Silverman told them to do.

  “This trial, like any trial, as Judge Patterson explained to you, is divided into two parts. Because in any criminal trial the burden is always on the state, by which I mean the prosecution, to prove the guilt of a defendant beyond that famous reasonable doubt, the prosecution always goes first. It calls the witnesses, introduces the evidence it believes necessary and sufficient to prove all the elements of the crime of which the defendant stands accused. In a case in which the defendant is charged with homicide, the state has to prove first that someone—the victim—is dead, then the cause of death—that he or she did not die of natural causes—and, finally, that the defendant is the one responsible, that he or she killed that other person and did it with what is called malice aforethought. This means that they intended to kill the victim and that they did it with an evil intent. Killing someone who is about to kill you, or about to kill someone else, killing someone in self-defense, is not homicide.

  “This is the first part of the trial. In the case now before you, the prosecutor, Mr. St. John, has called witnesses and introduced evidence, including, very importantly, the defendant’s own confession, sufficient to make out what is called a prima facie case. That means, in plain English, that the evidence introduced so far, if not contradicted by evidence introduced by the defense, would be sufficient to let you, the jury, decide whether the defendant is guilty or not of the crime of homicide.

  “Two days ago, the last day of trial, Mr. St. John called his last witness, and, on the conclusion of that testimony, announced that the prosecution rested. That means that while the prosecution may call other witnesses later, if something said by a defense witness requires and allows it, you will hear no more from the prosecution until Mr. St. John gives his closing argument at the end of the trial. We have now reached the second part of the trial. It is the turn of the defense to call any witnesses it chooses and to introduce any evidence it thinks relevant to the case.”

  Silverman looked out at the courtroom. He wanted everyone to understand what he was going to say next to the jury.

  “Ordina
rily, it would not be necessary to tell a jury what I have just told you. I do it now for two reasons. This, as you all know, is a trial like no other we have had. There is not anyone anywhere who does not have some interest in what happens here. Not only,” he said, turning again to the jury, “what you decide, but how well we all conduct ourselves. We need to remember what a trial is supposed to be. We are not here to settle accounts; we are not here to demonstrate why our politics are better than the other person’s. We are here to do our duty in the way I just described: the two-part trial in which the evidence, and only the evidence, decides the only question with which are entitled and obligated to concern ourselves—whether the defendant, Kevin Fitzgerald, is or is not guilty of the crime of which he stands accused.

  “That is one reason, there is another. In addition to the obvious reason, this trial is different from most others in that the defendant, having admitted what he did, has raised a defense that, when you get to the heart of it, is a variation on self-defense. When a defendant asserts a defense such as this, the burden of proof shifts to him. It is now his obligation to prove not that he did not do what he is accused of doing, but that there was a compelling, lawful reason why he did it.”

  Silverman waited to make sure they understood, and understood clearly, what he meant. Then he thanked them for their attention and for the first time turned to me.

  “Mr. Antonelli, is the defense ready to begin?”

  “We are, your Honor,” I replied, standing as straight as I knew how.

  “You may call your first witness.”

  “The defense calls the defendant, Kevin Fitzgerald,” I announced with perhaps more confidence than I should have felt.

  I knew what he was going to say, at least most of it, but I could only guess, and at that not a very educated guess, at how it would be received. Nor did I know any better, beyond his own sworn testimony, how much of it could be proved. Fitzgerald, for his part, had been waiting for so long for this moment that he was on his feet, heading for the witness stand, before I had finished calling his name.

  The moment Fitzgerald took the stand, every member of the jury, all twelve of them, leaned forward, interested, alert, afraid of missing even one word. I started at the end.

  “You confessed to killing Walter Bridges, the president of the United States. Why did you do that?”

  For an instant, he froze. Or seemed to, because a moment later he was answering the question as if he had not delayed at all. But there had been that brief hesitation, and I was not sure why. Something about the way I had put the question, the form of the words, had made him, for just that quick half second, think.

  “I did what I did because I thought—no, I knew—it was the only way to save the country from what Bridges, and those around him, were planning.”

  “Was your confession in any way the result of coercion? Were you forced to make it?”

  “It would not be true to say that force wasn’t used, but I told them—the Secret Service—what happened before any force was used.”

  “The waterboarding that the director of the Secret Service, Carson Youngblood, insisted had not been used?”

  “Yes, that’s correct,” he replied, turning to the jury. “I was waterboarded. It isn’t a very pleasant experience. But I understood why they were doing it. I knew what had happened; I knew I was not part of a conspiracy; I knew that no one else was at risk. I knew that the death of Walter Bridges was not a signal for some kind of attack on other members of the government. But they didn’t know, and given what they did know, or thought they knew, I understood they could not just take my word for it. They had to be certain.”

  I stood at the counsel table, next to Fitzgerald’s empty chair, close enough to the jury box to touch the railing with my hand, directly in front of the witness stand, a dozen feet away. The eyes of the jury moved back and forth between us.

  “You were waterboarded—tortured—repeatedly, and yet you don’t seem to harbor any ill will,” I remarked with an air of astonishment that was not entirely fictitious.

  “They did what they thought they had to do to save the country. I did what I did for the same reason,” he replied with a steady, unflinching gaze.

  The next question came out of my mouth before I had had time to think about it. Fitzgerald’s reply seemed to invite it. There was no second guessing when you had a witness on the stand. Somewhere down below the conscious mind, the questions started to come with such speed that the witness could hear them before you were quite certain what you have just asked.

  “You were tortured, and you approve of that? Torture, in this instance, was, in your judgment, justified?”

  I was the only person in the courtroom who was not absolutely certain that I knew what I was doing. Fitzgerald, to all appearances, thought it the most reasonable question I could have asked, one directly related to the reason why he was there, on trial for his life.

  “Torture, as a general rule, should never be allowed. There are, it seems to me, exceptions. That’s where we go wrong,” he remarked, talking now to the jury as if they were participants in a private but important conversation. “We think we should always do one thing or the other. We argue that torture, the use of coercion to extract information, is never right, but then someone starts talking of the extreme situation: there is a nuclear device ready to explode, you have in custody the one person who can tell you where it is. Do you hesitate to use whatever means available to force that person to talk? Who in their right mind would suggest that, in those circumstances, you should worry about whether it is right or wrong to violate someone’s civil rights? But the fact that there are exceptions, that there are extreme situations, should only go to prove that the rule itself is solid, not that because torture might be necessary in the extreme case, it should therefore, in the interest of some false idea of consistency, be used whenever someone thinks it convenient.”

  Fitzgerald, as good at talking to a jury as any witness I had seen, looked at each of them in turn, almost as if were reviewing soldiers on parade. And then he added the remark, stunning in its implications, “No one should ever be allowed to kill the president of the United States. But there are exceptions, even to this rule.”

  I had started at the end. Now I took him back to the beginning. The jury, and everyone else, knew about the crime. It was important they knew something about him.

  “You started out, in politics, here, in this city, when you became mayor. Why did you decide to do that, run for mayor?”

  “I loved San Francisco. There is no place like it, no place in the world,” he remarked, a wistful look in his eyes. “No one really knows how to describe it, no one really knows it. That sounds strange, but that is the secret, the attraction of the place. Maybe it’s the bay, maybe it’s the fog, maybe it’s the Golden Gate, but you’re always drawn to her.”

  It had been a long time since Fitzgerald had been with other people, limited as he had been in his confinement to one visitor at a time. The sudden proximity of an audience made him eager to share his thoughts. He could not wait to tell them everything he could.

  “Maybe the best description I ever read about San Francisco is something F. Scott Fitzgerald wrote about New York, just after the Empire State Building was finished. He said it destroyed the sense that the city was the only world that counted because now, when you looked out from the top, you could see where the city ended. When you’re here, in San Francisco, or when you drive in from the airport and see it for the very first time, you still get that sense, the feeling that this place is the only world there is, the only place you want to be.”

  The jury, all San Franciscans, loved it, and for the few moments while he talked, loved him as well. I had to, unfortunately, bring him back to the present.

  “You were mayor, but then you ran for the Senate, and six years later you were elected to a second six-year term?”

  “Yes, four years ago. I’ve been in the Senate ten years.”

  “And you’re a
member—the ranking member—of the Senate Intelligence Committee?”

  “I’ve been on the committee since my first year in the Senate. And, yes, I’m the ranking member.”

  “That means you’re not the chairman, but you would be if your party was to become the majority, do I understand that correctly?”

  “That’s exactly right.”

  “Other than the fact that you could one day become chairman of the committee, are there any other differences between your position as the ranking member and other members of the committee?”

  “The ranking member, along with the chairman, is given unfettered access to intelligence. Whenever the CIA, or the FBI, or any of the other intelligence agencies acquire sensitive information, they are required to keep the Congress informed. Anything like this is given first to the chairman and myself.”

  “So, you, along with the chairman— believe it is Senator Ryder from Virginia—know more about what is going on than anyone else?”

  Fitzgerald bit his lip, and with a quick, darting glance, denied it.

  “We’re supposed to be told whatever the intelligence agencies have learned. We weren’t always told everything they knew.”

  “Can you be more specific?”

  “The Russian investigations. There were occasional attempts at suppression.”

  He let this hang in the air, a suggestion the implications of which could be expanded, or compressed, according to whatever conclusion you had already reached about what Walter Bridges had or had not done. Then he removed any possible ambiguity.