“And you, Mr. Biegler?” the Judge said. “You haven't said very much. Surely a battered old ex-D.A. like you must be loaded for bear with all sorts of suave deviltry. I was one myself once, you know. Any suggestions to ease the pain of our approaching ordeal?”
“Yes, in front of the Franklin,” I thought, laughing and drawing a line with my finger across my forehead. “I'm loaded right up to here, Judge,” I said. “But wouldn't it be a pity, too, if all of us gave away our little surprises beforehand?”
The Judge swung his chair, his blue eyes looking thoughtfully out over Lake Superior. “A good point, Counselor,” he said slowly. “But only up to a point.” He looked sideways at me. “When a lawyer keeps his strategy and theory too long to himself,” he said, “he sometimes lures the court into error and thus often deceives only himself. And
I say to both of you men that anything you may feel you can legitimately confide to me, to expedite the
correct
resolution of this case, will be treated in confidence. Now I don't mean that either of you should come running to me the moment the other's back is turnedâI don't propose to try this case in the hallways or in chambers. Remember, I said âlegitimately confide.'” He paused. “Anything else, Mr. Biegler?”
I had wished for a shrewd and perceptive judge and it looked like I was getting him. And a frank one. I smiled. “Instructions,” I said. “If either side should have any requests for instructions, might the court allow counsel to submit them to him before the end of the trial?” The theory of our defense was wrapped up in the requests for instructions that Parnell and I had polished and toiled over for so long; I had not intended showing our hand on them until we had to, but here was a judge plainly asking us to give him a clue, telling us that he could be trusted. Why keep him in the dark, indeed?
“Not only will I entertain your requests for instructions, I want them,” the Judge said. “When lawyers sit on their law and strategy as long as they canâperhaps to confound and mystify their opponents âthey may compliment the judge's erudition and clairvoyance, perhaps, but they just as often risk mystifying him as well. I don't claim to be a mind reader. Nor do I claim to know all the law. Do you have any requests to submit now?”
“Not quite yet, Your Honor,” I lied whitely, glancing at Mitch. I did not want Mitch to know, if I could help it, that I planned to request
any
instructions. “But perhaps, who knows, we'll have one or two later on. If so would we have a chance to amend or supplement our requests in the light of developments at the trial? I suppose counsel should not be held to pre-trial clairvoyance, either.”
The Judge smiled and nodded; he had seen my quick glance at Mitch. “Certainly you can amend and supplement your instructions when the time comes. Or start over from scratch, though I wouldn't recommend it. I would treat any preliminary requests more in the nature of a confidential trial memorandum for the sole assistance of the court. So any time at all, Mr. Bieglerâand the sooner the better.”
“Speaking of trial memos,” I said, “they would also of course be treated as confidential?”
“Certainly, Mr. Biegler, unless counsel choose to exchange. And all this of course goes for you, Mr. Prosecutor. The court plays no favoritesâexcept occasionallyâand incognitoâat distant race tracks.”
“Yum,” Mitch murmured absently, glancing at his wrist watch, as
he had done several times during the Judge's and my exchange. I felt sorry for the poor guy, and could imagine the sweat he was in, faced with his first big murder trial, with thirty-odd subpoenas waiting to get dated and served, with his phone doubtless clanging and cops and lawyers running in and out of his officeâon this and all his other casesâand the
people
endlessly clamoring to get at him. “Please, Mr. Lodwick, this will only take a minute.” It always took only a minute, and from bitter experience I knew that just about everyone and his idiot brother felt some dark inexplicable compulsion to lie in wait for the D.A. on the very first day of court. No other time would seem to do ⦠.
“Very well, gentlemen,” the Judge said, rising. “I think our little meeting may have already proved mutually profitable. And I thought it well that we should get to know each other a little better if we must grin and bear with each other in the busy days that lie ahead.”
“Thanks, Judge,” Mitch said, edging toward the door. “Real nice meeting ⦠. Well, I think I better get going. Lots to doâ”
The Judge broke in and waved us out the door. “Good day, gentlemen, good dayâit so happens I've got a few little odds and ends to take care of myself.”
“Nice old guy,” Mitch said, as we left the chambers together. “And as full of riddles and old jokes as Joe Miller.”
“He'll do, Mitch,” I said. “He'll give both sides a fair shake.” “Yes,” I thought, “this judge will doâhe happens also to be a real lawyer.” I hurried out to the car to join Parnell. We two would now have to face the uncertain and fateful battle of “irresistible impulse.”
I
visited briefly with the Lieutenant to hear the story of his adventures with Doctor Smith. He had really been taken over the jumpsâexamined, questioned, measured, tested, cuffed, rolled, calibrated and jabbed by a corps of various technicians, followed by three long and intensive sessions with the good Doctor himself. And, there was no mistake, it had all added up to “irresistible impulse.”
“You told him,” I said, “about your blacking out and all after you saw Barney whirl and drop his left forearm on the bar, with his right arm hidden?”
“I told him everything I have told youâpossibly even more. He really drilled away at me.”
“You of course gave him my letter with our draft of the hypothetical question?”
“Yes. He said they were helpful to him in making his diagnosis and asked me to thank you.”
We gathered up some loose ends and, like an anxious father seeing his daughter off to the city, I again warned him not to talk or traffic with any strange strolling doctors or psychiatrists. I also reminded him to remind Laura to be sure and wear her glasses and her new girdle during the trial. And above all no sweaters. “I must go now, Lieutenant,” I said. “There's still a little law I must look up.”
“This âirresistible impulse' thing is bothering you, isn't it?” he said.
“Perish the thought,” I said, smiling bravely, feeling like a sort of rural Pagliacci. “Keep your chin up, Lieutenant. If I can't see you tomorrow I'll phone you. Wednesday's the big day.”
Â
Parnell and I took a long back-road route home to Chippewa through the rolling Finnish farming country. We drove silently for miles drinking in the wild beauty of the scene. I observed with a pang that the stricken summer had indeed waned into colorful northern autumn, like a beautiful woman flushed and waxen with the fevers of approaching death. “O lost and by the wind grieved ⦠.”
I told Parnell of my session in chambers with the Judge and Mitch; of my growing conviction that we might possibly have won in the uncertain lottery of strange judges assigned from downstateâI had occasionally worked before some little daisies, curious exhibitionists and bench-thumpers I would not personally have trusted to
notarize a quit-claim deed; and that at least we might not have looked all our law in vain; that I was coming to rather like the man.
Parnell was inclined to agree. “I liked the patient way he explained to each criminal defendant his constitutional and other rights before accepting his plea of guilty. It not only shows care and thoroughness but an abiding respect for our traditional constitutional processesâthe present-day zeal for which can scarcely be said to be reaching epidemic proportions ⦠.” Parnell shook his head and continued. “Yes, Polly, I liked the way he tried to steer that young Mitch fellow away from his ill-informed continuance business, and then the nice way he let the young man down easy when he still wouldn't be steered. That shows kindness and a lack of intellectual arrogance âmany judges would have flashed their erudition like a pawnbroker's diamond.” Parnell chuckled. “Although I loved the oblique way he properly gave the young fellow a jab or twoâthough I'm not sure he even felt it.”
“It looks like I'm not going to have a chance to raise your pet constitutional question that we recently arguedâI mean discussed. As you saw, Mitch still didn't say a word about wanting any sanity examination. It looks like he clean missed the boat. Even up to today I thought he might have something up his sleeveâbut his hand came out empty. I almost felt sorry for him.”
“âPride goeth before a fall,'” Parnell intoned. “Anyway, he may have unwittingly scored on this irresistible impulse business. C'mon, boy, drive faster. The spectacle of these autumn leaves is breaking my sentimental old heart, but I can't wait to get at the law books. They hold our answer.”
As we sped on our way Parnell went over the list of the People's witnesses endorsed on our copy of the information. “There are thirty-seven,” he said. “Alas, Mary Pilant's name is not among them.” He sighed. “I won't get to see her, I guess.”
I narrowly missed a truck loaded with pulp logs. “The little lady seems to have put herself nicely in the clear,” I said. “What's the psychiatrist's name? I clean forgot to look. Please, Lord, make it Wolfgangâdon't destroy all my boyish illusions.”
“Hm, we'll see,” Parn said, again poring over the long list of names. We passed an iron mine on the outskirts of town, and the distant moving dump cars on top of the mountainous stock piles of liver-red ore looked like toys on top of children's sand piles. “There are three doctors listed,” Parnell said. “Dr. Raschidâthat would be
the pathologist at St. Francis' who did the post on the late Mr. Quill âand a Dr. Dompierreâ”
“That's the county jail physician who took the smear from our lady,” I said, “âor rather, tried to.”
“âand a Doctor GregoryâW. Harcourt Gregory, no less.”
“That must be their psychiatrist, Parn,” I said. “I never heard of him. Maybe they flew him clean in from Menninger's. And maybe âleave us prayâmaybe the W stands for Wolfgang.”
“
Heil! Deutschland über alles
,” Parnell solemnly intoned.
Â
The world of science is said to be full of remarkable examples of independent researchers, unknown to each other and sometimes separated by whole continents, coming up with identical answers to the same puzzling questions at the very same time. At least this was once trueâtrue before our Soviet cousins rewrote history cozily reminding us that they had invariably got there first. In any case that night shortly before midnight Parnell and Iâseparated not by continents but only by Grandma Biegler's old dining-room tableâhad, more modestly perhaps, experienced much the same exhilarating thrill.
We had been chasing the elusive will-o'-the-wisp of irresistible impulse through the law books most of the afternoon and evening. I had been concentrating on the Michigan authorities and Parnell, wearing his green eye-shade and in his shirtsleeves, had been ranging lovingly through the textbooks and general authorities. I had so far been unable to find even the mention of the term in the Michigan sources. Parnell had dug up plenty of fine general statements and interesting discussions of the doctrine but none that gave us a cross-reference or clue to our big burning question: the state of the law on the subject in Michigan. What the law might be in Pennsylvania or Podunk might prove absorbing to its accused felons and their lawyers and to detached legal scholars; what it was in Michigan could prove fatal to a guy called Frederic Manion. Our search possessed much of the uncertainty and palpitant quality of stalking an elusive rising trout.
In desperation I had begun doggedly rereading all the old landmark cases on insanity in Michigan. Surely, I thought, if Michigan
didn't
accept the doctrine of irresistible impulse as a defense to crime then there must at least be some old case, somewhere, where the proposition had been urged and turned down. I sighed and went over and plucked another musty old report out of the stacks and
returned to our littered table. My ears were ringing and my eyes were beginning to blur. I blew the dust off and flipped the pages and was wading through a fine tangle of nineteenth-century judicial prose when suddenly, from out of the parched and yellowed old page of fine print, there had leapt out at me a phrase in block letters two feet high: “If the defendant was not capable of knowing he was doing wrong in the particular act,
or if he had not the power to resist th
e
impulse to do the act
⦠that would be an unsound mind.” I swallowed and shut my eyes and shook my head and looked again âlo, the flag was still there. I was mutely sliding the book across the table toward Parnell when he arose and let out a stifled yelp and tossed his green eye-shade into the air.
“Mother Machree!” he shouted, pacing the floor. “Quick, Polly âd-dig out
People versus Durfee
, 62 Michigan 487. I think we're in, I think we're in ⦠.”
“It's right in front of you, Counselor,” I said. “Read it and weep.” Thus had Parnell and I joined the long company of the scientific immortalsâwe'd found the same answer at the very same time.
Parnell had at last dug up a beautiful annotation on irresistible impulse out of 70 American Law Reports at page 659. It laid it out cold. “Listen to this, Polly,” he said, and retrieving his fallen eye-shade he began walking sedately back and forth, like a plump abbot who had just found exquisite confirmation of his long-cherished view of Paradise.
“First, Polly, it traces the history of the leading old English M'Naghten case which, as we know, established the classic test of insanity still prevailing in most states, that is, whether the defendant at the time of doing the act knew the difference between right and wrong. Now listen to this.”
“I'm listenin', damn it. Read, man, don't pontificate. I got my LL.B.”
“Then it says: âSince then the”right and wrong” test enunciated by that case, though condemned as being unscientific and based on fallacious principles by the overwhelming weight of medical authority, has nevertheless been tenaciously adhered to by a great many courts.'” Parnell paused and looked owlishly over his glasses at me. “About then, young man, I was ready to quietly turn on the gas. I knew then that the great weight of authority was against us.”
“Ah, but did the good old Dodgers come through?” I murmured devoutly.
“Then the annotation reviewed all the old moss-back citations
and decisions of our benighted sister statesâby this time I'm reading with one eye, lad, waiting for the blow to fall.”
“Did our hero win the gal in the end, Parn? Quickâyou're killin' me.”
Parnell ignored my irreverent comments. “Then I finally come to the part headed âdoctrine recognized.' By then my hands are shakin', boy, as I read that in a
mere handful of states
the rule is thatâand listen, nowâ' ⦠the fact that one accused of committing a crime may have been able to comprehend the nature and consequences of his act, and to know that it was wrong, nevertheless if he was forced to its execution by an impulse which he was powerless to control ⦠he will be excused.'”
“You should have played Shakespeare, Parn,” I said. “In Connecticut barns. You're raisin' goose pimples on me big as trout spawn.”
“Then follows the brief list of states,” Parnell continued, his eyes glowing. “I go down the list with my finger, squinting down sideways now like a man opening a bottle of two-dollar champagneâAlabama âArkansasâgood old GeorgiaâKaintucky, suhâLouisianaâa veritable roll call of dear old Southlandâand thenâand then good old Copperhead rebel Yankee Michigan! People versus Durfee, bless his soul, way back in 1886, when even old Parnell was but a gleam in Terence McCarthy's eye. In his rather accurate eye I may addâthere was eleven of us ⦠! Well, Polly, by then I knew that by the grace of God and our supreme court we had hoisted our Lieutenant over another hurdle. Hail to the addled Durfees!”
“I'm having me a drink,” I said, rising. “I'll fetch you a cold orange pop.” The old boy had developed quite a tolerance for the stuff.
Parnell was poring lovingly over the old Durfee case when I returned from my forage. “Now how did we ever miss it so long?” he was murmuring. “We both surely must have read this case during the past two weeksâit seems I can even see my own cryptic pencil marks in the margin.”
“It's like love or beauty, I guess, Parn,” I said. “If a man's not looking for it he'll probably never find it. Well, we weren't looking for irresistible impulse so we didn't find it. And apparently they don't call it that in Michigan anyway. I guess they don't call it nothin'âlike Topsy, it just irresistibly growed. Here's mud in your right eye.”
But oblivious Parnell was back at his books. “
âOr if he had not the power to resist the impulse to do the act â¦'
” he whispered
ecstatically. He shook his head. “What an indescribably lovely line. Ah, what a beautiful instruction it will make.”
The cracked clock in the city hall tower boomed twelve. I silently gestured with my glass and drank to the loveliest lawyer I ever knew.