He covered his face with the pillow and tried not to think about how, in eight and one half hours, he would be standing at the lectern on the
top floor of the Courthouse of the Future addressing the United States Court of Appeals for the Eighth Circuit. Three federal appellate judges with approximately 130 years of combined legal and jurisprudential experience behind them would be asking him questions about the law of the Whitlow case and Judge Stang’s orders and rulings below. If he answered wrong, Whitlow could die, and Judge Stang could be forced to endure what for him was a fate worse than death: reversal and remand for trial.
Tomorrow he would be an appellate lawyer. Not the trial lawyers he’d seen in movies. Trial lawyers make their living as players in a semi-scripted production called a trial, which often appears to the audience as some weird blend of theater, combat, and tedium. A good trial lawyer already knows the answer to almost every question before the witness answers. Success is often a matter of keeping unfavorable evidence away from the jury, getting permission to introduce favorable evidence, and then arranging predetermined segments of testimony into scenes, acts, and the final drama of closing arguments. The jury is the audience; the lawyers, the playwrights; the courtroom, a black box or stage, where only certain players and speeches are permitted with competing visions of the truth, irreconcilable versions of “what really happened.” The show can go on for days, weeks, months. After it’s over, the audience votes.
Appellate lawyers get twenty minutes apiece to make their case to gowned and graying appellate judges. Twenty minutes, whether it’s a breach of contract suit between two corporate titans for $1.2 billion, or a wrongful discharge claim of a single union employee. No witnesses. No juries. No new evidence or objections (if they weren’t introduced or preserved in the trial court or in the pretrial motions and memos, they are lost forever). Appellate judges are free simply to listen or to interrupt the lawyers with obscure questions on two dozen different points of law. The appellate lawyer must be prepared for those questions, or confess ignorance—something lawyers seem congenitally unable to do. So, Watson had to be prepared to give anything from a twenty-minute, uninterrupted speech to a one-minute summary of essential points squeezed in after nineteen minutes of close questioning from the bench.
At one-thirty
A
.
M
. he broke his promise to himself not to engage in more overpreparation. He switched on the bedside lamp and fetched out the paper profiles he’d done on each of the judges assigned to the panel. The new search engines made it possible to find every published
opinion rendered by any judge and sort it according to issue, West key number, criminal or civil, the court where the case had originated. His best bet was Judge Roger Horn, a sixty-six-year-old country lawyer from Poplar Bluff, Missouri. Horn was a former defense attorney and state legislator who had reversed Judge Stang only twice in twenty years in the Eighth Circuit. Horn was also a First Amendment absolutist and had written opinions reversing convictions for draft-card and flag burning. Nationwide, the odds of winning a reversal of a criminal conviction in the federal court system runs at a puny 4 percent. Judge Horn had, by way of majority and dissenting opinions, shown a willingness to reverse criminal convictions almost 8 percent of the time.
His worst bet was Judge Jordana Mallory. She had been a big-firm partner at Fishbeck & Klein, the number two firm behind Stern, Pale, then she had become in-house counsel at a local chemical company. She had been a controversial district court judge because her background was almost entirely corporate, and it showed in her con-law and criminal-law opinions: fuzzy logic and short, conclusory opinions. She had dissented in two school prayer cases and closed one of those opinions with the statement: “Surely there is room for both the First Amendment and Our Creator in the classroom.” She was an avenger when it came to pornography and had been an early and vocal supporter of the penalties for “indecency” set forth in the Communications Decency Act. Watson had pretty much given up on trying to convince her that the hate crime statute violated the First Amendment. He planned instead to keep her focused on the evidentiary issues, where he could appeal to her memories of being a controversial district court judge who was constantly being second-guessed on appeal.
The wild card was Judge Geoffrey Willard, an Arkansas district court judge sitting by designation—which meant he had been recruited to help appellate judges handle the burgeoning caseload of matters federal. He was a relatively unknown quantity because district court opinions, especially criminal dispositions, often go unpublished. He had presided over school deseg cases and some class action Title VII cases where his rulings had been conservative and well reasoned. But as near as Watson could tell, the judge’s conservative bent also included the usual tough-on-crime strain. He had been prepared to write off Judge Willard, too, until a spider and an off-label browser had brought back an obscure hit from a Little Rock Web site. It was a local bar journal article
called “Hate Crime Hysteria,” by Judge Geoffrey Willard, written back in the late nineties, just after they passed the federal law providing augmented penalties for church burnings. It was a glimpse into the mind of a judge who was skeptical, one, that church burnings were racially motivated, and, two, that a federal statute outlawing hatred would discourage anyone from burning a church, when the penalties for plain arson already dealt in decades of hard time.
Then Watson decided to reread Wisconsin v. Mitchell for the—what? Twentieth time? He flipped open the cover page and thought he heard the lock turn in the front door. Or had he imagined it? He froze and listened.
Alpha? Beta? An Order of the Eagler with an explosive device? Somebody looking for Jimmy Whitlow’s lawyer? Buck? Here he’d squandered all of his energies preparing for intellectual battle in the Eighth Court of Appeals. Federal appellate law—the legal equivalent of brain surgery. How ironic if, instead, the pivotal clash took place in the swine ring, a muscle game, where ruthless violence reigned supreme. He’d spent most of his life reading and writing, speaking, talking, deploying words—a cluster of linguistic skills that would be of precious little use in a contest with Alpha and Beta.
He heard the door open in the foyer. Somebody was trying to be quiet, because he heard only a single whoosh of the door brushing free of the weather stripping. He threw off the covers—to do what? Get a toothbrush and sharpen it up real quick? Brandish a fingernail clipper?
He heard soft footsteps on the stairwell. Fuck! How many times had he resolved to get himself a nice semiautomatic weapon and keep it in a lockbox next to the bed for just this occasion? But whoever it was must have had a key, unless they’d picked the lock?
“Joe?” asked a woman’s whispering voice.
“Sandra!”
He fell on the bed and gave himself cardiac massage.
She looked down at the stacks of paper scattered around the bed and her mouth twisted into a just-as-I-thought smile.
“What are you doing here?” he said. “I mean, I’m so glad you’re here. I’m glad to see you. I … have oral arguments tomorrow, in that prisoner case.”
“I know
that
,” she said. “That’s why I’m here. Who put rocks all over the front porch? Was the UPS guy here? It says ‘Delivery?’ ”
“It’s a prank from … from some weird people I met,” he said.
“I’ll bet you’re meeting weird people every day,” she said and sat on the edge of the bed.
She wore an overcoat. Her hair was in French braids—his favorite arrangement. He smelled perfume and other fresh scents. Conditioner? But she didn’t seem warm or particularly forgiving. Just matter-of-fact.
“You can’t sleep,” she said bluntly. “I knew you wouldn’t be able to sleep. Remember the bar exam?”
Dark night of the soul. A seedy hotel room in Jefferson City, Missouri, the state capital, where all aspiring Missouri lawyers converge for the festival of anxiety, angst, and terror known as the bar exam. For two days, they cram and contemplate suicide. No one sleeps. Instead they lie abed and wring their withers about how their entire future and the welfare of their families will depend upon which circles they darken the next morning with a Number 2 pencil. The night of the bar exam, Sandra had hired a sitter for Sheila back in St. Louis, then had driven two hours to Jeff City so she could show up in his room at 10:00
P
.
M
.
“Remember the night before the con law exam? Before First Amendment law? You can’t sleep,” she said again, in a level tone.
“And you won’t be able to sleep,” she said.
He looked at her eagerly, as if to say,
This is a peace offering, right? Are we making up? Am I forgiven?
“I don’t
want
to sleep with you,” she said. “I’m still furious. Hurt. My family … And I don’t understand what you are doing with yourself. This criminal case is a big mistake. Major career error. Everybody I’ve asked about it agrees with me.”
Her voice broke, and his backbone cracked on the wheel of conscience.
I should have pleaded him out! Avoided the brain scientist the instant I saw her. I knew what to do. I just didn’t do it! And then, after that, I knew what
not
to do, and I went ahead and did it anyway!
“You have placed this passing infatuation with criminal law above your family’s welfare. I can’t do anything about that. But, now that you’ve chosen this … course, I don’t know what to do. We’re married,” she said. “Are we getting divorced?”
“No way,” he said without hesitation. “Why? Is that what you’re thinking?”
“Never,” she said, her eyes watching his, waiting for him to blink first. “Never.”
Whew!
She glanced down at her hands and shrugged. “Unless I found out you were sleeping with somebody else. But I
know
you would
never
do that.” She tossed her head, shaking off the notion of anything so preposterous. “Never mind adultery. Just the implications of willfully exposing your entire family to disease. Your unborn children.” She shuddered. “That would certainly do it. In that case, divorce would be mandatory,” she said. “But I wouldn’t marry a creature like that.”
“Nor would I,” said Watson.
Premeditated, willful disregard of my own family? Adultery? Second only to murder when prizes for original sins were being given out. Because of what? Biological programming? Neural Darwinism? Genetics, serotonin levels, ape-hierarchy politics, evolutionary psychology? I wish! God, I would give body and soul if it were true. Life would be so much easier! I am protoplasm, I could say each morning upon awakening, I will do whatever is necessary to further my own agenda and the welfare of my immediate biological family and a few close friends, like-minded alpha males and females.
“So,” she said. “My husband has decided he wants to be a criminal lawyer. Not something I planned on. Not something I understand.”
“San, I … I think it must be a law school thing. They brainwash you to think of your client first.”
“Whatever,” she said. She looked up at him suddenly. “And you can’t go back to Stern, Pale after it’s over?” Her tone was plaintive; she was pleading for one ray of hope. “Any way at all that could happen?”
Watson shook his head. “They put a bag over my head and marched me out at dawn to be shot,” he said. “I’ll join Jimmy Whitlow in prison before I go back there.”
“I understand,” she said with a sigh, undoing the buttons on her coat, and he caught a glimpse of rose-colored satin. Another teddy.
He felt nerves sprouting, blood rushing to his pelvis. Everything was going to be all right again. He was forgiven. He could start his whole life over! He searched her face for the same glad eyes that had sent him to the carpet so many times during the mad rush of infatuation that had swept over them like mental illness before they were married.
Instead, she was solemn. Glum.
“I guess I’m willing to try this criminal law business, if it means you will be home more.”
“I promise!” he said, bowing down before the queen. “You won’t be sorry. I’ll be my own boss.”
“That’s what worries me,” she said.
“No, really,” he said. “I’ll have so much more free time. You’ll see!”
“Will I?” she said, slipping out of her coat.
“As soon as this Whitlow case is over,” he said. “I promise.”
“Stop talking,” she said. “Do it, and go to sleep.”
J
udgment day. He left two hours early as a precaution against systems failures—car breakdown, traffic, metropolitan dysfunction, poor health, nuclear accident, earthquake, flood, fire, war, windstorm, act of God. He arrived downtown at 7:00
A
.
M
. Oral arguments were scheduled for 9:30.
At the Market Street exit, he saw the Old Cathedral, pink and forlorn in the morning light. Instead of just driving by it, the way he had done for over a year on his way to Stern, Pale, he pulled into the parking lot and looked up at the stone façade. He considered his motives for wanting to go inside. For what? Good luck? Maybe his brain was wistfully yearning for otherwordly consolation, some balm for his overloaded mental circuits, spiritual salve for his sore somatic markers. Maybe prayer was a vestigial ritual originally developed to ward off startle patterns and panic disorders, to enable the organism to perform under stress, thereby maximizing fitness? Prayer was probably just an instinct in extinction, like altruism, which had served its purpose in advancing the social organism called the human race, and was now being phased out to make way for—What? Neuroscience? Cyberspace? A new brand of fitness?
Inside the Old Cathedral, he crept down the nave midway to a pew,
a middling location appropriate for a lukewarm Christian, neither hot nor cold, the sort that, according to Revelation, makes the Divinity want to spew them from His mouth. (“How I wish you were one or the other—hot or cold!” He could use that line on Palmquist.) His footsteps echoed in whispers from the vaults and ambulatories, arches and loggias. He felt the carved eyes of saints and fathers of the Church watching him from their alcoves, as he knelt in a wooden pew and bowed his head. Streaks of painted light slanted in from the stained glass windows. Sacred odors rose up from his childhood: cedar and rosewood; incense from smoking thuribles, beeswax, smoldering wicks, and ashes; starched soutanes, chasubles, and albs; unleavened bread; the scent of lilies and perfumed graveclothes.