Indefensible (42 page)

But is that not madness?

Because if you look at the facts from over here, the case resolves one way. You look at the laws from over there, it turns the other. Objectivity? There is no objectivity. Do you think I couldn't find a legal argument for affirming a zillion-dollar jury award against, let's say, a toy manufacturer whose carelessness has caused empty cribs and ruined families? Do you think I couldn't find grounds for overturning the conviction of—I'm just imagining here—a confused, dyslexic, gay pot pusher like Zander Phippin?

It all depends on where you stand. Or more to the point, where you're stuck. Except I don't feel stuck anymore. I used to cringe at the idea of judging. Now I crave it.

•  •  •

Last fall, after my brief negotiation with the assistant DA, I had to talk Kenny into accepting the plea bargain. He was brought to me in gray prison pajamas. His eyes were red-rimmed, though I doubt
it was from crying so much as sleeplessness. Already he walked with a timorous shuffle. I could see the first bits of eye-shifting, shoulder-bending decay of his natural self. Kenny is not a conqueror. He has gotten along in life by keeping his head down and mouth closed. It's how he survived in the violent home of his childhood, and it's how he slipped past the well-intentioned but overworked teachers all through school who, if he ever made himself more conspicuous, might have found a way to bring the grindstone up to Kenny's nose. Does invisibility work in prison? We'll see, but already, as we sat down in the private cubicle reserved for lawyers and clients, I had the sense that if Kenny sat between me and a bright light, I'd see the glow right through him.

“You'll plead guilty,” I told him.

“I never killed anyone.”

“I'm doing you a favor here, Kenny. It's a good deal for you.”

“But . . .” he said. Then a tsunami of grief poured from him.

We spent several hours, just Kenny and me, inside that small cement room. With animal panic in his eyes, Kenny sometimes looked like he was about to go for me or the reinforced window that looked out over guards and prisoners who wandered past like hollow extras in a nightmare.
Breathe, Kenny, breathe,
I'd say with my hands on his knees, and together we'd take deep, controlled breaths until I saw the panic drain away. Twenty years, maybe to be released on parole as soon as twelve.

I got him to agree. He'd take the plea bargain. Then we went to work on his story. It helps to have a story. Something to repeat to himself so that, in time, maybe he'd come to believe it:

What happened, Kenny?

I was buying drugs.

What drugs?

Pot. Just pot.

To sell?

No. Just for me.

And you were where?

Rainbow Bend picnic area.

Why? That seems a long way to go just to buy some pot.

That's where Mr. Illman said.

Had you met before?

Couple of times.

To buy pot?

Yes.

Any other business between you?

No.

What happened that night?

I don't know.

You goddamn better know, Kenny.

Okay. He gets out of his car and I get out of mine, and he asks, have I got the money, and I say I do, and I give it to him. And then I say, “Where's the stuff,” then he says, “Here's the stuff,” and he opens his jacket, and there's the gun in his belt. He calls me a fucking retard, and he's got the gun in his hand, and I swing at him with everything I've got, but I miss his face and catch him in the throat. He goes down and drops the gun, and I, like, I try to find it. He was going to kill me, I think. Finally, I find the gun and jump up and shoot him.

How many times?

I don't know.

Did you mean to kill him?

All I meant was for him not to kill me.

Seems like a lot of fuss over a few hundred bucks.

For sure.

What did you do then?

I just left him there.

Where?

Right at the edge of the river.

What was the weather?

Rainy.

What did you do with the gun?

I wiped it off.

Right then?

No. I mean I took it home and wiped it off. Then I hid it.

Why did you keep it?

I don't know.

Did you touch his car? Get in his car?

No.

Did you tell anybody?

No.

No?

I mean yes. I told some guys I know. I showed a couple of them the gun; they must be who called it in.

What are their names?

Silence.

Kenny, what are their names?

Silence.

Kenny, are you refusing to give their names?

Yes.

Why?

I'm scared of them.

Kenny pleaded guilty to this crime he didn't commit, explaining it with a story that never took place. He took the twenty years, eligible for parole at twelve.

•  •  •

Kenny's confession to this murder, in addition to having been caught with the gun, is all the proof anybody needs that Kenny is, in fact, guilty of killing Scud Illman. The remaining matter of Maxy's prints on the paper cup is easily explained: Maxy
is
back, and Scud was connected to him in some nefarious way. Maxy must have left a paper cup in Scud's car. But given the confession by Kenny, there's nothing linking Maxy to that killing.

As for the FBI Bureau chief, Neidemeyer, and the few others who know that Maxy has been dead for years, the appearance of his fingerprints probably looks like exactly what it is: a shady character who had an old paper cup for some reason, must have wanted to spread confusion. It is not in law enforcement's interest to challenge cases that have been resolved with a confession and a sentence.

F
lora and I met one afternoon at Kenny's apartment. We had put it off for weeks, but now we were out of time, and the new tenant was ready to move in. I had already done my crying over this wayward boy. I'd already been to the apartment and brushed fingers over the photos, which, taken so many years ago, had promised better things. I had considered his crimes; I'd prosecuted him, defended him, judged him, and sentenced him. For me, this trip was the sad errand of cleaning out the apartment. Though the events were poignant, even tragic, I had confronted the realities and moved from short-term shock into long-term acceptance. Not so Flora. It was newer to her. She cried, as I had the day I came here alone to wait for Kenny, the day we watched a video and ate Chinese takeout. Now Flora lay on Kenny's bed, and I sat beside her.

“But he didn't even smoke pot,” she said in reference to Kenny's explanation that his shooting Scud was the result of the botched purchase of some pot.

“Go figure,” I said. She was right. Kenny had no interest in drugs, pot or otherwise. He liked his beer, he was continually quitting smoking, but he claimed to have an allergic reaction to pot.

“And he's a coward,” she said with a tragic laugh. “I can't see him wrestling that man's gun away.”

“People surprise you.”

“Twelve years.”

“Twelve years.”

“Seems you could have done more,” she said.

“More how?”

“To keep him out of jail. Or not as long.”

The front door opened. Flora sat up, startled, and rubbed her puffy eyes.

“It's just me,” yelled a man. He was one of the carpenters. “Bathroom break.” He unhooked his tool belt, peeking in at us unapologetically. It was the younger of two brothers I had hired to build the wheelchair ramp. Mrs. Kapucinski, the landlord, vetoed the ramp at first, but when I offered to pay for it myself—and then mentioned a housing discrimination action if she refused—she relented. Kenny has moved out. Fuseli, the tat man of Ellisville Max, has been released from prison and will move in as soon as the ramp is completed.

Flora is right, I could have done much more to lessen Kenny's sentence, but I wasn't about to tell her so. I shrugged and said, “I don't know, babe. They wanted to charge him with first degree. I think we did okay getting him twenty and twelve on manslaughter.”

“Well, we've lost another one,” she said, her eyes red and swollen, her cheeks wet. “We don't do so well with boys.”

L
ast fall, when it looked like I'd be the new judge on the circuit court, Tina and I drove to Ellisville Maximum Security Prison for a meeting with the warden. I had an idea that arose after the night we spent in forehead-scrunching analysis of all the evidence in all the murders.

Fuseli, the tat man of Ellisville Max, was doing sixty to eighty. His appeals had been used up decades ago, and the only way to reopen a case all these years later, was if new evidence is uncovered. Even then, it's far from a sure thing. No, there isn't a defense lawyer on earth who could have gotten Fuseli out of prison now.

But what about a prosecutor? What came to mind when Tina told me about Fuseli's wheelchair was a little-known provision of federal law called “compassionate release.” It allows the Bureau of Prisons, in extraordinary circumstances, to ask the court for permission to release a prisoner before his term is up. The circumstances usually involve a terminal or chronically debilitating illness.

The warden at Ellisville is a reasonable and uneffusive man who courteously congratulated me on my nomination to the circuit court. He and Tina and I spoke for perhaps an hour. A week later, Judge Two Rivers received and approved a request from the Bureau of Prisons for the compassionate release of one Leroy Burton, aka Fuseli, after thirty-two years served of a sixty-to-ninety sentence. We moved him into Kenny's newly vacated apartment. I'm not sure why I went to this trouble for Fuseli. I like him, but it's more than that. Maybe I'm investing in the hope that sometime down the road, Kenny, too, will catch a lucky break.

•  •  •

Now it is springtime, the Saturday morning of Memorial Day weekend. I'm in my Adirondack chair, coffee cup between my palms. Mist rises off the black and golden surface of the lake. The birds are raucous. I'll never be a serious birder, but I'm learning to identify a few of them, and to start thinking of them in groupings: sparrows, warblers, flycatchers, and thrushes. I hear one now, my favorite bird:
tinga tinga tinga tinga ting.
The hermit thrush.

Last summer I made a promise to the memories of Cassandra Randall and Zander Phippin that I'd catch their killers. Have I succeeded? Yes and no. Scud and Seth are dead, but they were mere accessories. The real killer, Percy Mashburn, has disappeared. And the snitch within law enforcement who handed Cassandra (and probably Zander) over to her assassins has never been identified.

Lizzy and her friend Homa come out of the cabin in running shoes and shorts, and with barely a glance in my direction, they're off around the lake. They slept in my cabin last night instead of bunking next door with Chip and Flora. Tonight Tina will be here with me, and Chip is heading back to town, so the girls will probably move over to Flora's cabin.

Chip and Flora are “together.” I'd never have predicted it in a million years. They're both oddballs who were flung from their established orbits by the woes of life. What were the chances, as they hurdled randomly into the future, that their courses would line up so well? But I'm not complaining. It's the happiest I've ever seen either of them.

•  •  •

Knowing comes in stages. I think the first stage for me was the day last fall when I went to Scud's widow and asked for her shoes. I was committing a crime, but instead of being remorseful, I felt unleashed. Giddy. I was unsure what to do with the shoes. If I threw them out, the crime would be solidified, whereas if I kept them, the crime could almost be undone later on. So I had the preposterous idea of taking them to Kendall, my lawyer. Because isn't it his job to protect me, to hear my confession and keep me safe? Except lawyers
aren't in the business of concealing physical evidence. He could lose his license to practice, go to jail. Ultimately, I took them to Flora's and hid them there.

It was about two weeks later, the day before the police, responding to an anonymous tip, raided Kenny's apartment, just over a week after I got out of the hospital, with my head still bandaged and the revelations that Maxy had been dead for the past six years newly entered into the equation, when I violated doctor's orders by driving myself over to Kendall's office. Out in the street, a couple of city workers were feeding brush into a wood chipper, and the screaming of it felt like it would split my skull. I made it to Kendall's door with my hands pressed against my ears.

“Jesus, you look awful, Nick,” he said.

“I just needed to get away from my office, talk things through.”

“Of course,” he said. “Make yourself comfortable. What can I get you?”

“Coffee, please. For here.”

“For here?”

“Yeah,” I said, “like when you get it at a coffee shop. As in: ‘For here or to go?' Then they bring it in either a ceramic cup or a paper cup. I'll take ceramic. I like the warmth. It feels good against my cheek.”

Kendall looked at me, bemused, then he got the coffee. When we were sitting as before, with our feet on the hassock and my cup warming me through the bandages over my right eye, I said, “You know, Kendall, your client Scud was a real sociopath.”