I wound up by stating that it would be a plain act of Christian charity to take their man off the spot and that if I didn't get an answer in twenty-four hours my client and I would reluctantly assume that the Army, for which he had fought in two wars, had now
deserted him, that the answer was finally no. Then I sat back and waited for a couple of nine-foot M.P.'s to come and take me away.
In the meantime Parnell and I had been looking law and writing legal memorandums and preparing our hypothetical question for a mythical psychiatrist and drafting requests for instructionsâall this practically day and night. Then we had gone over the jury list with a fine-combâphoning, driving, searching, checking, nosing, inquiringâand had prepared little graded dossiers on each prospective juror. Parnell had not taken a drink since the night we had stopped off at the Halfway House, all of which added to the growing sense of fantasy. Only Maida and I had valiantly kept our office from resembling an Upper Peninsula branch of the W.C.T.U.
Parnell had done yeoman service on the law books, coming up with dozens of obscure but pointed old cases I had never heard of. In his green eye-shade he looked like a cashier for a syndicate of bookies and even at times like the master engraver of a ring of counterfeiters. He was in a seventh heaven of delight, planning, digging, writing, dictating. “Take this, dear Maida, if you please ⦠.”
“But what's the use?” I wailed. “What's the use of looking all this law if we can't lasso a goddam psychiatrist? And here I've gone and wasted all this fishin' ⦠.”
Late that Tuesday night the Army had phoned. Parnell and I had jumped a foot, and I knew it was the Army before I answered. Colonel Somebody-or-other was on the line. My wire had been received and the General had just issued an order. Wait, he would get the order ⦠. I strained to catch the sound of marching fifes and rumbling caissons. Ah, yes, here was the order ⦠. If the lieutenant would present himself Thursday morning at eight o'clock at the Bellevue Army Hospital in lower Michigan an Army psychiatrist would be assigned to examine him; this order would be confirmed later in writing. In the meantime the Colonel would please kindly like to read me the General's order. The order, in occupationally limpid military prose, read as follows:
“There will be no objection should the civil authorities deliver the accused to an appropriate military facility for the purpose of having a psychiatric examination conducted, with a view to utilizing the determination at a civil trial. Bellevue Army Hospital in Michigan is designated as the appropriate medical facility.”
“You mean,” I said incredulously, “we have to deliver our man to an Army hospital near Detroit before we can have our examination?”
“That is correct, sir.”
“But damn it, Colonel,” I said, “Lieutenant Manion is in the county jail way up here in the brambles on a charge of first degree murder. Murder is an unbailable offenseâhe can't get out for love or money. Not even, believe it or not, for the United States Army. Tell meâhow do we get to spirit the Lieutenant out of jail and down to lower Michigan for an examination or anything else?”
The Colonel was adamant. “That, sir, is your problem, The General's orders are as I have just read them to you; that is our final word; these orders will be confirmed in writing.” Then I had sworn, the Army had swornâand this time I had hung up and rantingly told Parnell about it.
“I've a damn good notion to go out and get drunk,” I said, staring morosely at the telephone. Parnell grabbed up his hat.
“Where you going, old man?” I said. “Keeping me company? Good. We'll pitch us a dandy.”
“We're
going to the county jail and prevail on the Sheriff to have himself or a deputy drive our man to lower Michigan,” Parnell said. “We'll pay the freight and that way he'll technically still be in civil custody. Everybody saves face. It's the only way, Polly. I think it was Napoleon who said, âIf you can't beat an army head on then go 'round it.' C'mon, boyâit's gettin' late.”
“Me too,” Maida said, grabbing her pad and pencils. “Better take the files, too. Can't ever tell what'll happen next in this haunted case.”
We luckily caught Sheriff Battisfore home from highway patrol; in fact I held my audience with him in his bedroom. It was surprising and a little disillusioning to note how prosaically Midwestern he looked out of his cowboy gear and in a rumpled cotton nightshirt. Well at least he was bow-legged ⦠. I swiftly explained my adventures with the Army, and then the dilemma posed by the General's order. I remembered that the sheriff was an old Navy hand and I morosely regretted that the Lieutenant had not been in the NavyâI'd bet the
Navy'd
have cut out all this toe dancing and delaying red tape;
they'd
never have let one of their men down ⦠.
“What to do? What to do?” I murmured, trying to look half as disconsolate as I felt.
“It's easy, Polly,” the Sheriff quietly said. “I'll have my under-sheriff Carl Vosper drive him there tomorrow. Carl's a steady head and a good fast driver. You'll have to pay the shot, of course-gas, mileage and Carl's per diemâso nobody gets criticized ⦠. Now
better you get home and catch some sleep, Pollyâyou look like you've been pulled through a knothole.”
“Sheriff, you're a genius;” I said, and we had solemnly clasped hands. From now on for my part Max Battisfore could patrol day and night, dressed even as an Indian chiefâhe was my man. But instead of
going
home to bed, Maida and Parnell and I had taken over the Sheriff's office, down in the jail, finishing up our tricky hypothetical question and whipping up a background letter to a psychiatrist we'd never heard of and whose name we still didn't even know.
“Please give this to Sulo to give to Lieutenant Manion in the morning,” I told the night turnkey, handing him the fat envelope.
“The Sheriff's typewriter,” Maida said, after it was all over, rubbing her numbed fingers, “âit should lie in state in the Smithsonian Institute. It's surely the same machine they used to draft the terms of Cornwallis' surrender.”
The birds were twittering and scolding as we drove home. I noted morosely that the leaves were beginning definitely to turn, a bleak reminder that fishing was mostly over and done ⦠. Back at the office Parnell almost joined Maida and me in a drinkâalmost, but not quite.
“Here's to Napoleon, Max Battisfore and Parnell J. McCarthy,” I toasted. “My three favorite foxes.”
“And here's to Maida,” Maida said, toasting herself. “She remembered to fetch the files along. Good old unsung unpaid Maida ⦔
“You too, my dear,” I said, dipping my glass.
Maida grinned amiably. “I am reminded of that defiant alcoholic lay by an anonymous household poet,” she said, going into a contralto chant. “âAll animals are strictly dry, they sinless live and swiftly die, but sinful, ginful, rum-soaked men, survive for threescore years and ten.'”
“Amen,” I incanted, rolling up my eyes. “Praise the Lord and pass the bourbon, brethren.”
“Rumpots,” Parnell sniffed. “Nothing but a pair of addled boozing rumpots.”
Â
Â
Early the next morning, Wednesday, the Lieutenant and Under-sheriff Carl Vosper had taken off for lower Michigan and the Army hospital, armed with our letter. Nothing more had been heard from them until they arrived home just before midnight on Sunday, the
night before court opened. The lieutenant had phoned me at once as I had instructed him. I was alone, staring into the glowing Franklin stove.
“Well, Lieutenant, were you crazy?”
“Nuttier than the proverbial fruit cake,” the Lieutenant said.
“What'd he call it?”
“Oh, Lord, I can't begin to tell you. But he's even got me convinced now.”
“Weren't you convinced before, Lieutenant?” I said softly.
“Oh, yesâyes, of courseâbut he sort of laid it out for me. It's hard to explain. You'll see.”
“But I told you, man, to ask him to give you the thing in a nutshell.”
“These guys never speak in nutshells, Counselor. I don't think they know how. Let's see ⦠he said that when I shot Barney I was suffering from dissociative reaction, whatever that isâsomething sometimes known asâhmâas irresistible impulse.”
I shut my eyes. “Oh, Lord ⦠no, noâ
he didn't say that!
”
“That's what the man said. Isn't that good?”
“What's his name?” I continued, wearily evasive. “I'll need it for court in the morning.”
“Dr. Matthew Smith. He's also a captain.”
“Smith?” I echoed. “Just plain Smith? Are you sure, Lieutenant, you didn't at least say Schmidt? I always thought all psychiatrists simply had to have long foreign names of no less than four syllables in order to get their diplomasâand that all of their first names were Wolfgang.”
“Matthew Smith ⦠,” the Lieutenant repeated stoically. “Say, have you been drinking, Counselor? Are you sure you're all right?”
“Never felt better since Antietam, Lieutenant. I'll see you in court tomorrow. Now you go to bed and sleepâthis is it, my friend.”
So irresistible impulse was the verdict. Here Parnell and I had been knocking ourselves out for weeks boning up on the law of traditional “right and wrong” insanity (that is, if a man knew the difference, he was deemed legally sane), the only kind of insanity accepted as a criminal defense in all American courts. And now fate and a reluctant general had dealt us a psychiatrist called Smith, of all things, who said it was irresistible impulseâthat is, regardless of whether the Lieutenant could tell the difference between right or wrong when he had shot Barney, he could not help it ⦠.
All I knew about the doctrine of irresistible impulse as a defense
to crime I had learned years before in Freshman Crimes in law school. The disturbing residue that had clung was that it was coldly and flatly rejected as a defense by the vast majority of the courts in the land. And I knew that the chances were dismally excellent, almost inevitable, that the cautious and traditionally moderate Michigan supreme court would be among them.
I debated phoning Parnell and breaking the bad news. At least I'd have company in my misery. But no, it was too late; the die was cast; we'd gambled and lost. Poor Parnell might as well get a good night's sleep; the grand old boy needed it; no use in both of us ⦠. I dragged myself to my tumbled bed and fell on it and lay staring up at the ceiling most of the night, the same ceiling built by my beer-brewing grandfather a million years ago ⦠. Now take brewing; there was a simple and sensible tradeâyou made the beer and millions of people daily succumbed to an irresistible impulse and drank it; by and by they succumbed to another impulse and got rid of it; then they bought some salted peanuts or potato chips and drank still more beerâthere was never any monkey business with any supreme court, your own capacity was your only guide ⦠. By and by I fell into a sort of fitful doze. “Hear ye, hear ye, hear ye ⦠.” rang in my ears until the alarm buzzed.
“People versus Frederic Manion,” Judge Weaver said. “The charge: murder.”
I stood up and nodded at the Lieutenant and waited until he stood facing the judgeâprecisely erect and very military-looking in his freshly pressed uniformâwhere I joined him on his left. Mitch stood on the right, holding the information, looking over at me expectantly. Would I insist upon his wading through the reading of the long information?
“Appearances?” the Judge said.
“Paul Biegler for the defendant,” I said. “My formal appearance is already on file, Your Honor.”
“Very well,” he said, turning toward Mitch. “You may proceed with the reading of the information, Mr. Prosecutor.”
“Your Honor,” I spoke up, “the defendant waives the reading of the information and stands mute.”
“A plea of ânot guilty' will accordingly be entered by the court,” the Judge said briskly. “Are both sides ready for trial?”
“The defense is ready,” I said, and the Judge turned to Mitch, who stood frowning, with his lower lip jutted out. The Judge cleared his throat.
“We may have to move for a continuance, Your Honor,” Mitch said.
The Judge looked inquiringly at me. “The defense is ready,” I said. “We have received no formal notice of any motion for a continuance and will be obliged to resist one if made. My client is of course without bail.”
“It's back to you, Mr. Prosecutor,” the Judge said.
“The other side has filed a notice of the defense of insanity,” Mitch said, “but it still hasn't furnished us the name of the psychiatrist witness as required by law.”
The Judge looked over his glasses at me. “Mr. Biegler?”
“A copy of the notice of insanity was served on the prosecutor nearly three weeks agoâeighteen days ago to be exact. The original is on file with the clerk. It contained the names of the witnesses then known to us bearing on the issue of insanity. Mr. Lodwick's copy was accompanied by a letter explaming that I could not then give him the name of our psychiatrist for the simple reason that I did not know it, and that I would do so as soon as I did. With leave of the
court I am now prepared to do soâI first learned his name only late last night.”
The Judge lifted his eyebrows. “Leave is granted,” he said, whereupon I stepped forward and handed up to the Judge the original of a supplemental notice containing the name and address of Dr. Matthew Smith. I then gave Mitch a copy. The Judge looked at Mitch. “Do the People still press?” he said.
“I still think we're entitled to a continuance,” Mitch said. “Now on the additional ground of surprise.”
The Judge spoke quietly. “Do the People after nearly three weeks' notice of the defense of insanity now claim to be surprised that the defense retained
any
psychiatrist to support their claim?” He paused and smiled slightly. “Or rather do you urge, Mr. Lodwick, that this particular defense psychiatrist whose name you've just learned is so eminent in his field and so devastating in his authority that you must have further time to retain still other psychiatrists to possibly confound and refute him?”
The going was getting a little rough and Mitch flushed but stuck doggedly with his guns. “No, Your Honor,” he said, “we urge no such thing, nor do we concede it. We believe the psychiatrist we have already retained is fully able to refute the defense's. Itâit's simply that the defense hasn't followed the statute.”
“Mr. Biegler?” the Judge said.
“Please excuse me a moment, Your Honor,” I said, and the Judge nodding, I went to the brief case by my vacant chair and hauled out a volume of the Michigan annotated statues. Parnell sat with his hand over his eyes. I quickly returned to the bench. “Permit me to refer to section 28.1043 of our annotated statutes,” I said. The Judge nodded and I continued. “The statute requires that when it is filed and served the notice of insanity shall contain the names of the defendant's witnesses, and I quote, âknown to him at that time.' That the law contemplates the frequent existence of the very situation of which Mr. Lodwick now complains is, we submit, shown clearly by that quotation and by the very next sentence, which reads: âNames of other witnesses may be filed and served before or during the trial by leave of court ⦠.' Your Honor, we have just obtained such leave and the name of the âother' witness has now been served. We would have had to get Mr. Lodwick out of bed to serve him any sooner. I submit we have fully complied with both the letter and intent of the law.”
“I am quite familiar with your statute, Mr. Biegler,” the Judge said. He stared out into the courtroom. “It is frequently surprising the things we lawyers sometimes discover in our statutes when we trouble to read them. It's also surprising the amount of time that could also thus be saved.” He sighed and turned back to Mitch, who was now as red as the unproverbial brick schoolhouse. “Do the People still press?”
“I have stated my position, Your Honor,” Mitch replied doggedly, refusing to back down.
“From what you have said, Mr. Lodwick,” the Judge went on, “I gather that the People have also retained a rebuttal psychiatrist?”
“We have, Your Honor.”
“And have you yet told Mr. Biegler who he is?”
“No, Your Honor. His name is endorsed on the information along with the other witnesses. Opposing counsel will get his copy directly.”
The Judge put the tips of his fingers together and rocked in his chair. He seemed to be studying the clock on the far wall. “Hm ⦠.” he said. “The defense doesn't know the name of the People's doctor and the People have just learned the name of the defense's doctor. That makes things pretty even, doesn't it, Mr. Lodwick? Perhaps, at this moment, even slightly in your favor?”
“Yes, Your Honor,” Mitch conceded.
The Judge smiled not unkindly. “Then I think perhaps we'll just leave it that way. To the extent that the People have made a motion for a continuance it is denied. How much time will the trial take? I'll also entertain the suggestions of counsel as to when we might get underway.”
“I estimate the trial will take two to three days,” Mitch said. “I'd like to start Wednesday, the first jury day.”
The Judge turned to me.
“Counsel has just handed me a copy of the information,” I said. “I have already counted over thirty People's witnesses. I would guess that four days to a week might be closer. Starting Wednesday morning is agreeable with us, however.”
“In quite a few years of experience on the bench,” the Judge said, “I have found it a pretty safe practice to at least double the estimates of counsel.” He smiled. “Lawyers are far too modest; they do not seem adequately to realize their enormous talents for consuming if not wasting time ⦠. In any event we will mark this case number one on the trial docket and hope it will end by Christmas.
I like to visit my grandchildren at that season. The trial will commence at nine A.M. this Wednesday.” He dropped his voice. “Counsel will please confer with me in chambers after the call of the calendar.” The Judge consulted his calendar and then looked up. “People versus Peter Findlay and Lois Greenâlewd and lascivious cohabitation.”
As Peter and Lois shuffled forward to stand before the Judge the quaint words of Crabbe came back to me: âNext at our altar stood a luckless pair, brought by strong passions and a warrant there â¦'
I gave the Lieutenant a little push and he marched back to his seat in the jury box. He hadn't opened his mouth; there had been no occasion. I hurried to my seat, stashing my trusty law book away.
“Round number one,” Parnell whispered as I sat down. “Good boy.”
“We got a judge, Parn,” I whispered back. “My God, I think maybe we got a real judge.”
Â
The call of the calendar was at last over and done and Judge Weaver and Mitch and I were sitting in the Judge's chambers. “Have a smoke, gentlemen, and relax,” he said, smiling. “I've already devoured my attorney for the day. Of late years I'm allowed only oneâdoctor's strict orders.” He sat at his desk carefully filling a large beat-up hod of a briar pipe with a tobacco called Peerless, a pungent working-man's delight which I suspected was salvaged from the ticking of old mattressesâin turn salvaged from orphanages. Mitch and I lit up, both of us silently appraising this unknown downstate judge with whom we had to learn to live for upwards of a week.
“Lovely fall day,” Mitch tentatively ventured, glancing at his watch.
“Hm ⦠.” the Judge said, finishing his chore and ignoring our alertly proffered lighters, fishing in his pocket for a large wooden match. “Ah,” he said, finally blowing out a rolling cloud of smoke. Mitch wrinkled his nose and winked at me.
Judge Harlan Weaver was a big, slow, ponderous-looking man in his mid-fifties, I judged; slow-spoken, slow-acting, and I guessed, far from slow-thinking. He had big hands and large broad fingers. A droopy sandy-gray cowlick, which he kept patiently brushing out of his eyes, lent him a curiously boyish look. I could almost picture him as a barefoot boy at the old swimming-hole in the rich farming community of lower Michigan where he now regularly sat as judge.
He was one of those men who had not changed much in physical appearance, I guessed, since his teens. He regarded us thoughtfully with his calm blue eyes.
“I am, as you gentlemen may have noticed, something of a bear in the courtroom.” His voice had a sort of low resonant rumble. “I find that it lends both dignity and dispatch to the work at hand.” He puffed thoughtfully. “I also find that lawyers and the public are both apt to construe too much indulgence in a judge as a sign of weakness.” He paused. “Now, is there anything on your chests? Anything that might help us facilitate the job that lies ahead?”
“Well,” Mitch said, “I'd like to put on our pathologist first, if I may. It's somewhat out of order, I know, but he's a busy man and the Lord knows how long he or we may have to wait if we stick to the strict order of proof.” The Judge looked at me.
“Agreed,” I said. “A sensible suggestion, Mitch. Let's get Barney killed right off.”
“Anything else, gentlemen?” the Judge said.
“I'd also like some seats set aside for the People's witnesses,” Mitch said. “There's quite a flock of them, as Paul here observed, and if they don't have reserved seats the crowd may freeze 'em out andâ”
“How many do you need?”
“I estimate three benches will do it,” Mitch said. “At least for the first day or two.”
“It will be ordered”âthe Judge glanced at meâ“unless the defense contemplates making a motion to segregate.” I shook my head no. “Anything else? How about my ordering a fourteen-man jury? It would be a pity to try this case and then have some poor juror come down with the glanders or beri-beri just at the end and we have to try the case all over. How about it, gentlemen? I can order one, anyway, and probably would, but I like to work with counsel when they indicate any disposition to work with me.”
“I had planned to make the motion myself if you hadn't raised it,” I said.
“Excellent idea,” Mitch agreed. “It would be too bad to have to wade through this little daisy twice.” He smiled and glanced at me. “And Polly and I have some unfinished political business we want to get to before the snow flies.”
“So I've heard,” the Judge said. “Very well, I shall enter a journal order for a fourteen-man jury. Anything else?”
“Charts,” Mitch said. “We've made a chart of the tavern and also
of the defendant's trailer and trailer park and environs with relation to the tavern. Maybe we could save time if ⦠.”
The Judge looked at me. “Who measured and made them, Mitch?” I asked.
“Julian Durgo and his state police boys took the measurements and all,” Mitch answered. “Anderson and Ives the architects drew the actual charts from their data.”
Handsome Detective-Sergeant Julian Durgo of the state police had been one of my old cops when I was D.A. and was one of the best in the business. If Julian said a door was fifteen feet three inches from a certain bar stool or pinball machine, by God,
that
was itâit wasn't fourteen or sixteen. “We won't have any trouble over the charts, Mitch,” I said. “In fact, I was hoping you'd furnish some. We can probably stipulate.”
“Anything else, gentlemen?” the Judge rumbled on. “I am a firm believer in the proposition that moderately civilized men can agree on much more than they generally do if they would only first trouble to pause and appraise their own vital interests.” He smiled. “I say âmoderately civilized' because I've never quite yet met a totally civilized man. I keep looking and hoping, however, incorrigible optimist that I am. Anything else?”
Mitch laughed uncertainly. “That's about all I can think of now, Your Honor,” he said. I glanced quickly at the Judge, thinking that if it weren't for this damned murder case we could sit with some tall clinking glasses before my Franklin stove and maybe find out more what made each other tick. Did I detect a strong and possibly kindred vein of wry cynicism in his make-up?