Brain Storm (43 page)

“You may have a cigarette, Ms. Schweich.”

“I am deeply grateful to the court for its forbearance,” said Myrna, instantly opening her purse and shaking a Gitane out of its blue package. She lit it and took a gasp of smoke into her lungs, as if she had just broken the water’s surface after nearly drowning.

“Mr. Harper,” said the judge, “according to the government’s pretrial papers and in various motions pending before the court, you want to put in a lot of evidence about how this fellow told nigger jokes, said the word
nigger
, painted swastikas on water towers, got into a fight with a black football player ten years ago in high school, associates with groups who use the word
nigger
, uses his computer to talk with them, reads books about people who hate niggers, and has been examined by some psychologists who want to testify that they have tested this fellow and determined that he is a certifiable racist, is that right?”

“We do, Judge, because all such evidence goes to prove motive,” said Harper. “And such evidence will help us prove that Mr. Whitlow intentionally selected his victim because of the victim’s race.”

“Is it a federal crime to be a racist?” asked the judge.

“No, Judge,” said Harper.

“Not yet, anyway,” said Judge Stang.

“But there are other federal offenses—murder for instance, or conspiracy to commit murder—and the statute requires a penalty enhancement if the trier of fact determines those crimes were motivated by racism.”

“Motivated?” asked the judge. “Mr. Harper, state the difference between motive and intent.”

“Intent is … what you intend to do,” said Harper, “whether you committed
a crime on purpose, as opposed to making a mistake, or doing something while sleepwalking …

“And motive?”

“It’s what motivated you. Your reasons for doing what you intentionally did.”

“Not usually a separate crime, is it?” asked the judge. “It’s usually not even a separate element of a charged crime, is it? I mean, usually we want to know if the criminal act was intentionally done. We talk about motives to fill out narratives for the jury, or even to impose additional penalties at sentencing, but motive is not usually a separate crime, or an element of the crime itself, correct?”

“Correct,” said Harper, “but society may identify and punish particularly deleterious motives if the legislature determines …”

“And there are good reasons for not making motive an element or a separate offense, are there not?” continued the judge. “How do you prove what someone is thinking about while committing a crime, and then prove that their thoughts caused the crime?”

“I think—” began Harper.

“I suspect you have woken up of a morning at least once or twice and been puzzled as to the bizarre mélange of motives which caused you to behave so abominably the night before, but we won’t get into that. Do you ever wonder about your motives, Mr. Watson?”

“I confess, I do, Judge,” said Watson, staring at the back of Judge Stang’s head. “Sometimes I do things, and I don’t understand why. Often I have mixed motives, but I can’t sort them out, and then at other times I think I have certain motives, but I actually have other motives. And if I am confused and mistaken about my
own
motives, I shudder to think of a criminal trial, with a jury trying to puzzle them out for me, while I sit silently by enjoying my Fifth Amendment rights.”

Myrna winked at Watson, puffed her Gitane, then extended the small, freckled middle finger of her right hand, and waved it in Harper’s line of sight.

“Judge,” said Harper angrily, “this has gone on long enough. I must insist …”

“IDA!” yelled the judge, without turning from his view of the window. “Would you please call down to Mr. Frank Donahue’s offices and order him to appear before the court, in chambers. Now.”

“Judge, I have authority from the United States Attorney to ask for a
transcript of these proceedings. Furthermore, opposing counsel—one of them at least—is the most unprofessional lawyer I have ever met, and the court is also not advising us of its purpose in conducting this hearing …”

“This is not a hearing,” said Judge Stang. “The court was very clear about that at the outset. It’s a conversation, Mr. Harper. And the court has concluded that your end of the conversation is finished. You are advised to say nothing else until Mr. Donahue arrives.”

Myrna smiled and lit another cigarette. Watson stared at the back of Judge Stang’s head. Harper looked down at his folded hands and quietly fumed.

After several minutes of intense and uneasy silence, Watson heard a male voice in the outer office and recognized the squat, burly figure of Frank Donahue from news photos he had seen of him, with his shock of wiry red hair tinged with gray. He was short but carried himself with authority, green eyes darting, assessing the players in the drama he was about to enter.

“Ida, please show the United States Attorney into chambers,” said Judge Stang.

“Good afternoon, Judge,” said Donahue.

Judge Stang, still looking motionlessly out the window, spoke. “Mr. Harper, here, was unable to edify the court with a coherent opinion about the difference between motive and intent, and so I asked my secretary to ring your office, Mr. Donahue.”

Frank Donahue checked Harper for a read on how far the proceedings had degenerated. Harper drew a breath and looked sideways.

“Maybe a concrete example will help,” said Judge Stang. “You obviously
intended
to file this Whitlow case, because it’s been filed, it has your name on the pleadings, and I trust you were not drunk, or sleepwalking in the throes of murderous somnolence, or in a fugue state, or suffering from more than the usual governmental mental incapacity when you filed it. But kindly advise us, Mr. Donahue, of your motive for filing it.”

“Was I summoned here to participate in a metaphysical inquiry into culpable mental states?” asked Donahue incredulously.

“Pah”—a single plosive sent smoke aloft, where it hovered in the sunlight like a cirrus cloud around the gray crag of Judge Stang’s profile.

“The court would never inflict such confusion upon itself, Mr. Donahue.
The metaphysical and legalistical spectacles we’ve seen from you in the past are so profound they bewilder, astonish, and confound everyone, including yourself.”

Donahue looked for a chair and then seemed irritably to recall where he was. “I am here as a representative of the United States government and in my capacity as an officer of this court,” said Donahue, his gorge rising with his voice, “I will not …”

“The baldest, most self-evident fact does not go unchallenged in any proceeding distinguished by your esteemed powers of mental self-mutilation,” continued Judge Stang. “The court can’t think of another practitioner who takes such perverse and voluminous pride in self-inflicted perplexity. In short, Mr. Donahue, if you’d like, the court will take judicial notice that you are one sharp lawyer.”

“If it please the court,” said Donahue, “I’d like to request that a transcript be made of these proceedings …”

“So you can take me upstairs on a writ? File a complaint with the Investigative Judicial Council? An ice chip’s chance in Hell. It does not please the court.”

“All right,” said Donahue, “then I am forced to
insist
on a transcript of these proceedings. The court’s remarks are not proper …”

“PROPER!” shouted Judge Stang.

Watson felt sound waves from the judge’s vocal cords blow back his hair and marveled at how a small, old man managed such vocal magnificence.

“Proper foolery!” he yelled. “You ask me one more time for a record or a transcript for your golfing buddies upstairs in the Eighth Circuit secular chapel of appeals, and I will hold you in contempt, sir. I will hang the sword of Damocles from the rafters by a human hair. Then, I will order you to stand under it and sing ‘Chattanooga Choo-Choo’ while my court reporter makes a transcript of it for you. Do you understand me?”

Frank Donahue puffed up his chest, his blue suit filling like a sail with windy indignity. “If this is to be another one of the court’s sessions of hectoring and humiliation and, frankly, what is widely considered to be an abuse of this court’s powers, then I—”

“IDA!” yelled Judge Stang, scowling down the length of his smoldering Davidoff. “Ida! Send one of the girls in.”

Frank Donahue huffed with impatience, while Judge Stang watched the river flowing in the morning sun.

“Good morning, Judge.” It was the brunette. She’d been a year ahead of Watson at Ignatius. Renee something. An untouchable beauty with a class rank in the single digits. She politely nodded at the lawyers, walked by them, and took her place attentively at Judge Stang’s elbow.

The judge did not look up from his view of the river. “Is it a felony, a high crime, or a misdemeanor if I issue a contempt citation, suspend the sword of Damocles by a human hair, and order the United States Attorney for the Eastern District of Missouri to stand under it and sing ‘Chattanooga Choo-Choo’ while my court reporter makes a transcript of the proceedings?”

The U.S. Attorney sighed audibly.

Renee tucked an arc of dark, lustrous hair behind her right ear and smiled. “To be honest, Judge, we haven’t looked at that precise issue, but the court will recall that we have on occasion looked at similar matters, some of which were not high crimes, misdemeanors, or felonies, and some of which could be so considered. For instance, it was not a high crime or misdemeanor for the court to order a bankruptcy attorney to masticate his own fee application. Our only caveat was that the lawyer should not be ordered to swallow after chewing, because an untoward airway obstruction might result in injury or death from suffocation, which in at least some jurisdictions might be considered misdemeanor assault.”

“Go on,” said the judge.

“It was not a high crime or misdemeanor for the court to order counsel at both tables to wear dunce caps for the duration of an evidentiary hearing in that class-action health-insurance case we heard last year. Perhaps the court recalls the attorney from California who appeared at informal matters with no tie and an open collar?”

“That surf bum?” growled the judge.

“None other,” she said archly. “The court was not charged with any impeachable offense when it ordered the lawyer to put on
two
four-in-hand ties in Windsor knots before the court would entertain his motion to appear pro hac vice. But if I may …”

“You may,” said the judge.

“Has the court considered the possibility that the strand of hair might break, allowing the sword to fall on Mr. Donahue’s head, resulting in a head injury, which—”

“You mean, they would blame me for that?” asked the judge.

“They might, Judge,” Renee gently advised.

“You mean, they might say the sword fell
because of
my alleged hatred of Mr. Donahue? Would they be saying I had mixed motives in exercising my inherent powers pursuant to Article III? My expansive, discretionary powers, delegated to the court by Congress and by the United States Supreme Court and by the Federal Rules of Procedure? You mean, all those powers of mine could be impermissibly tainted by some dark, unspoken motive? I could be impeached
because of
that?”

The woman pursed her lips and nodded. “Perhaps, Judge, but without more facts I—”

“But what if I ordered Mr. Donahue to stand under the sword
because of
the way he was acting? And
because of
his bullshit case which is defiling my docket? And
because of
certain mental afflictions of mine which make it difficult for me to control my intense hatred of lawyers? And
because of
 …”

The judge stopped, picked up his teacup and touched it to his lips, then held it out and peered at it through his reading glasses. “Ida! Tea!” He selected another cedar match and struck it on the underside of his chair. “I confess I’ve forgotten your question, Mr. Donahue,” he said. “Would it be easier for us to simply move on?”

“Move on?” asked Donahue.

“Yes, with the court’s business. With our conversation.”

“Judge, without in any way suggesting that I want a transcript or a record of these proceedings, the government requests that the court state the nature of these proceedings. Is this a hearing on dispositive motions?”

“Mr. Donahue,” Judge Stang drawled, “your name is Polonius, and you have concealed yourself behind a tapestry in Queen Gertrude’s bedchamber. I am Hamlet. I come on the scene. I hear something or someone behind the tapestry, and I say, ‘How now? A rat?’ and I stab my sword through the tapestry and mortally wound you. Queen Gertrude says, ‘O me, what hast thou done?’ I say, ‘Nay, I know not. Is it the king?’ ”

Donahue took a single deep breath and hung his head in resignation.

“Did I intentionally kill you?” asked Judge Stang. “Did I think it was a rat, or a person back there?”

“These are fictional characters, Judge, I don’t see—”

“Immortal fictional characters,” said Judge Stang. “And even though we are safely within the parameters of standard criminal law, you have a thorny time of it unraveling my intent. Because a second later, I see
that it is a rash, intruding fool—you, I mean, of course, Polonius—behind the tapestry, and I say, ‘I took thee for thy better,’ meaning I took you for the king, of course. But now we don’t know if he thought it was the king before or after the stabbing occurred. Which was it?”

“I confess, I have no idea,” said Donahue, “nor do I care.”

“Now let’s pretend there is an unconstitutional sentence-enhancing statute for any improper motive I may have had in stabbing you. Now we are off to the races, aren’t we, Mr. Donahue? Let me proffer a few motives. You’ll recall I was pretending to be mad in my play, and this deed was another in a series of ruses designed to make people think I was crazy. I was motivated by an intense hatred of rats and ratlike people. I was seeking revenge on my father’s death. I was unconsciously lashing out at any and all authority figures because of my rebellious and melancholy nature. I killed you because I knew you would never consent to a marriage between me and your daughter, Ophelia. And so on.”