Death Penalty (15 page)

It was a bad sign. For whatever reason, Mean Noonan was on the muscle. I hoped he might vent it all on the poor kid, but I suspected he would save some for the rest of us.

Of course, young Mr. Swartz didn't have a chance. All lawyers have been in that uncomfortable position, of having
to argue something, anything, for a client who is so obviously guilty or negligent that even the appearance of a chorus of angels singing on behalf of the client wouldn't do a bit of good.

Eventually all the judges started shooting tough questions. Toward the end, Swartz began to give back as good as he got, with respect, but with a growing fire in his belly. I smiled. Steel needed time in the fire to become something really special. I thought that one day Mr. Swartz would turn out to be very good indeed.

They all took him on, even kindly Judge Palmer, firing questions as if he was the person accused.

Judging by the tone of those questions, Mr. McDougal—who was relying on an illegal search as a defense—could look forward to serving out his very long sentence. But by his own fault, not his lawyer's. Young Mr. Swartz had done everything but organize a jailbreak.

I felt almost more sorry for the young woman prosecutor. By the time Swartz had finished, the judges were no longer interested. Their minds were made up. She had prepared for this important career moment for weeks, maybe months. There probably wasn't a search and seizure case decided in the last hundred years that she didn't know by heart. Her dress looked new. It was her moment in the sun. But they weren't interested, and not one of them asked even a single question.

Judge Palmer advised her that her time was almost up. She was shaken and her voice had lost some of its original vivacity. She stopped right there. “Thank you for your kind attention,” she said quickly, and sat down.

“Mr. Swartz, you have your five minutes for rebuttal. If you choose to use them,” Judge Palmer said.

Swartz stood up and walked to the lectern. “Mr. McDougal, my client, asks for nothing more than any other American,” he said with surprising forcefulness. “Justice.”

Swartz stood there, his thin back ramrod stiff.

And that was, as they say, that.

Judge Palmer merely nodded.

“All rise,” the court officer called.

We stood and the three judges trooped off. They would be back in a few minutes, after the brief conference, then it would be my turn.

Swartz walked by me on the way out.

“First time?” I asked.

He looked at me, his face slightly flushed.

“I suppose it showed.”

“It did. But you did a good job.”

For a minute I thought he might lick my hand, then he nodded and walked on.

His opponent, the stout black young woman, also walked by me.

“Nice job,” I said.

“My ass.” She smiled. “I don't care though. I won the case, and that's what goes into the record books.”

She looked down at me. “You're Charley Sloan, right?”

That's right.”

“They still talk about you back at Recorder's Court.”

“Good or bad?”

She grinned. “Mixed. You up next?”

I nodded.

“Give 'em hell, Charley. We warmed them up for you.”

While the judges were out, my opposing counsel and myself took over our spots at the tables by the lectern.

Craig Gordon, my opponent, was so smooth it looked as if you might be able to skate on him. He smiled as I approached. It was the kind of smile Muhammad Ali used to give lesser opponents just before the bell rang.

“This shouldn't take too long,” he said. “The issue is rather simple, I think.”

“The verdict was for five million, more now with interest. How would you like to save a couple million?”

He raised an eyebrow. “Split the difference?”“

Something like that.”

“Look, if it were up to me, I'd probably try to work something out. Perhaps not that fat, but something.
However, Charley—may I call you Charley—it's not up to me. Those two young tigers behind me have the ear of our corporate client. It's all or nothing as far as they're concerned.” He shrugged again. “So, I guess any compromise between reasonable men is out of the question.”

“I understand. Then, how about just agreeing to take it easy on me?”

He chuckled. “I like you, Charley. If this were a boxing match, you're the kind of fighter who'd tell me my shoelaces were undone and then hit me when I looked. I promise I will take it as easy on you as I know you will on me. Fair?”

I laughed. I couldn't help but like him. “Fair.”

I went back to my chair at the table. I tried to keep the picture of Will McHugh out of my mind, but I couldn't. I tried to think only of the legal issues, but I kept hearing the terror in the echo of Mickey Monk's voice.

Now it would be all up to me.

“All rise,” the court officer called as the three judges came trooping back in.

“Good morning, Mr. Gordon,” Judge Palmer said as Gordon took his position at the lectern. “It's always a pleasure to see you here.”

In my imagination I suddenly saw a vision of Mickey Monk ambling down a dark alley looking for bottles, a ruined homeless man. Will McHugh's fete was too horrible even to contemplate. Gordon smiled at the three judges and they smiled warmly back.

“With the court's kind permission I should like to reserve five minutes of my allotted time for rebuttal.” He smiled again. They smiled again.

He did a lot of appeals and obviously did them well. He had earned their respect, and I think they actually looked forward to what he was going to say.

It wasn't an old-boy network in the usual sense, but
Craig Gordon obviously had an edge over someone like me.

“As the court knows, this is basically a product liability case. Let me begin by saying that no one, not my client, not myself, are any more distressed by the terrible injuries suffered by the plaintiff. We don't dispute the extent of those injuries and our hearts go out to the plaintiff and his family.”

All three judges nodded sympathetically.

“And, believe me, if my client were responsible for those injuries, this case would not be here. We would have gladly paid for any wrong we might have done.”

He paused. “But this is the crux of the matter—we haven't done any wrong. We—”

“Just a minute, Mr. Gordon,” Judge Chene interrupted. “Are you saying you have no quarrel with the amount the jury awarded, if, let's say, we determine your client was the cause of the injuries?”

I suddenly felt a warm spot for Judge Chene.

Gordon paused, then nodded. “I will show that my client is blameless. However, the amount awarded by the jury is not being contested.”

Judge Chene made a note.

Gordon then continued. He had a good voice and an easy manner. “This case turns on a small mechanical device. The plaintiff alleges that it was improperly made and designed, and that it resulted in the sudden acceleration that allegedly caused the accident that is the subject of this lawsuit. This, I submit, was never proven at trial, and—”

“The jury seemed to think that it was, Mr. Gordon,” Judge Chene said softly.

He paused, almost like a clergyman about to deliver a telling piece of scripture. “All of us here, you distinguished judges, my learned colleague, and myself are lawyers who have known hundreds of jury cases. Juries
are comprised of human beings, not machines. Sometimes, and I submit this is one of those times, they let their human sympathy get in the way of pure reason. What they saw in court was a fellow human, bound to a wheelchair for life. Against that specter they saw a small, well-designed piece of metal. They let their hearts rule their heads, I'm afraid. But we are men of the law, gentlemen, and as such, we must follow what is right, no matter what the circumstances.”

“McHugh, by his own admission was drinking, isn't that so?” Judge Noonan queried, his voice a harsh rasp.

“That is the testimony,” Gordon agreed, almost reluctantly, as though McHugh were his best buddy and he hated to admit human error.

This guy was good, very good.

Gordon continued his argument, which was interrupted by numerous questions from the judges, a standard and expected circumstance. Chene probed with quiet questions about the device we alleged had caused the acceleration. Noonan acted as if he were cocounsel with Gordon, asking questions in the form of one-liners demonstrating that he believed McHugh was drunk and the sole cause of his own troubles.

Judge Palmer asked very few questions. When he did, they revealed no hint as to which way he might be leaning.

Finally, Gordon ended on a clean point of law, citing several good cases on product liability. He ended with a quote that would have made Winston Churchill envious. He had done a good job, a competent job.

From my point of view, too damn good.

Craig Gordon thanked them for their attention, and then it was my turn.

I remember being in fistfights, some as a boy, others, later, in bars, but always the memories were disjointed
recollections of fists thrown and received, snippets of combat, a collage of pain and effort, more dreamlike than documentary in the memory.

My argument before the court was a little like that. It seemed sudden, at times bordering on violent and over almost before it began, with memories of voices raised sometimes, sharp exchanges, but no actual blows, only verbal jousts.

Judge Chene, I remember, had seemed to have been on my side. He and Judge Noonan got into quite a brawl. Of course, not between themselves. I was the tennis ball in their match. Each man took on the other through questions to me. The action was fast, the emotions muted but furious.

I remembered being as eloquent as I could be in describing Will McHugh's plight—his diapering, the loss of the last vestige of dignity. Noonan had scoffed, but Chene had been my protector.

Oddly, I could not recall one question asked by my old mentor, Judge Palmer. I was conscious of his eyes, but I could read nothing in the expression.

And then I was done.

Gordon used his five minutes in a smooth statement of the law, in sharp contrast to my emotional pleas. It was very effective, I thought.

I had reserved time also, just in case.

“Mr. Sloan, any rebuttal?” Judge Palmer asked.

I got up and once again walked to the lectern.

I really didn't know what I might say. I took a moment to look at each judge. Noonan looked away.

“This morning, in the first case before this panel, a young man represented a defendant in appeal. It was, he told me, his first case. He was nervous, as you may recall.

“He did not have the experience of the distinguished Mr. Gordon, or even myself. He was just a young lawyer
trying very hard to say what he believed in. I thought he said it so perfectly, I'm going to borrow his rebuttal and make it my own.”

Even Noonan was looking now. “Will McHugh asks for nothing more than any other American.” I paused. “He asks for justice.”

There was no applause, nor was there any other reaction. Except, once again, the three judges got up and exited the courtroom to conduct their short meeting.

The court officer rapped the gavel and it was all over, at least for Will McHugh.

I gathered up my papers and stuffed them into my briefcase.

Craig Gordon came over and offered his hand. “Nice job,” he grinned. “Too bad it wasn't a jury.”

“For juries I throw in tears and an occasional faint.”

“I must come and see you in action. It sounds exciting.”

He left in the company of the two young tigers. I gave them a few minutes to get clear of the building and then followed.

I wondered what I could possibly tell Mickey Monk.

IT ALL SEEMED SO AHTICUMACTIC
this one brief hour to decide the fate of so many: McHugh, his wife, their children, and poor Mickey Monk. I was all alone in the elevator, and in my imagination it took forever to get down to the lobby level.

I decided I'd call Mickey Monk from a lobby phone.

“Charley!” The deep voice rumbled like a crack of thunder.

I turned to find myself confronted by Jeffrey Mallow, the former judge, towering over me, making me feel like I was being confronted by a bear.

“What brings you down here, Charley? Lonesome for the city?”

I shook my head. “I just argued a case upstairs.”

“Which one? Not that product liability case you were telling me about?”

I nodded.

“C'mon, Charley, you must tell me all about it.”

Once again he grabbed me with an enormous arm and half picked me up as he moved swiftly toward the building's rear entrance. “I'll buy you a coney island. That's something you can't get up in that little shit-kicker town of yours.”

“I'd like to, but I have to make some calls.”

“Nothing's more important than a coney island, Charley. Nothing. They have medicinal properties. The Greeks were the first physicians. This is what they used for medicine.”

The only way I could get away was to call for a cop. But, he was right, there was only one place to get real coney islands, and it was just across the street in two fast-paced Greek restaurants that specialized in practically nothing else. Locally, they were famous and had been for fifty years.

And, surprisingly, I was hungry.

“Okay,” I said, “but we'll have to make this fast.”

He dragged me across Michigan Avenue and shoved open the door to one of the restaurants. The main lunch crowd had not yet arrived, so we had the place almost to ourselves.

“Let's grab a table,” Mallow said. “I hate sitting at that damn counter.”

We sat down and a young Greek waiter came for our order. He looked as if he had just stepped off the old “Saturday Night Live” Greek restaurant set. Only this place had been here long before that, and even before television.