“One might consider it a peril,” I said.
“Even so, however guilty one or the other party in a divorce action may be, neither is facing a prison term or death in the electric chair, which is the maximum penalty for first-degree murder in this state, which crime our friend George N. Harper has been charged with. What does the N stand for, do you know?”
“No,” I said.
“Now, Matthew,” Benny said, stubbing out his cigarette, and raking his right hand through his hair as though trying to remove the nicotine stains from his fingers, “I’m sure you’ll recall the Canons of Professional Ethics, which grant to a lawyer the right to undertake a defense regardless of his personal opinion as to the guilt or innocence of the accused... where did you go to law school?”
“Northwestern,” I said.
“Then I’m sure you’re familiar with the Canons.”
“I’m familiar with them.”
“And the professional right to undertake a defense even if you feel the accused is guilty.”
“Yes.”
“Otherwise, of course, an innocent person might be denied a proper defense, and then our entire judicial system would go to hell in a handbasket, and there’d be no more lawyers and no more law in this equitable land of ours. Where law ends, there tyranny begins, quote, unquote. Oliver Wendell Holmes, I believe.”
“What are you trying to tell me, Benny?”
He took another cigarette from the package on his desk, struck a match, held the flaming end to the tip, and exhaled an enormous cloud of smoke. As an afterthought, he blew out the match. “Now, Matthew,” he said, “if you do take on a client in a criminal case, whether or not you believe he’s guilty, then you are bound — and this is also in the Canons, Matthew — you are bound to present, by all fair and honorable means, every defense the law of the land permits, so that no person will be deprived of life or liberty except by due process. I believe that’s an exact quote, but I have the Canons here if you’d like to check them.”
“I’ll take your word for it.”
“Thank you.”
“What are you saying, Benny?”
“Matthew, I appreciate your getting me out of bed last night, I truly do. I always enjoy going down to the police station at two in the morning—”
“It was only eleven.”
“It felt like two. But no matter, who needs sleep? I also enjoy listening to those assholes from the State’s Attorney’s Office, they really do give me great pleasure, Matthew. But, Matthew, whereas the Canons grant me the right to defend somebody I believe is guilty, they do not impose upon me the obligation to undertake such a defense. I believe George N. Harper is guilty. I have made it a policy over the years never to defend a person I believe is guilty. That’s why I’m such a good criminal lawyer. If I defend only the innocent, how can I help getting so many acquittals?”
“Benny—”
“I’ve also made it a policy never to defend a person I don’t like, even if I believe he’s innocent. I don’t particularly like George N. Harper, don’t ask me why. Therefore, ever grateful for the opportunity to get out of bed in the middle of the night and to go downtown without a shave, I must nonetheless decline your offer to represent Mr. Harper in this case.”
“Benny, he needs a good lawyer,” I said.
“You’re a good lawyer, Matthew.”
“I know very little about criminal law.”
“Then let the public defender handle it.”
“I think he’s innocent.”
“The Public Defender’s Office,” Benny said drily, “has also been known to believe in the innocence of an accused party.”
“That’s not the point. I know they’ve got some very good people up there, and I personally like Dick Jorgenson, but — damn it, Benny, they’ve got so many cases to handle, I’m afraid he’ll get lost in the shuffle.”
“Then defend him yourself,” Benny said simply.
“I wouldn’t know where to begin.”
“Begin where the state’s attorney will begin,” Benny said, and stubbed out his cigarette. “He’s going to be building a case to prove beyond reasonable doubt that Harper did, in fact, murder his wife. He’s going to assemble whatever he can to show Harper had the means, the motive, and the opportunity. I don’t know when this thing will come to trial, the docket’s jammed right now, it might not be till early next year. So you’ll have plenty of time to assemble facts that will show he did not have the means, the motive, or the opportunity. If you believe he’s innocent, that’s what you’ll have to show, Matthew. And you’ll have to show it convincingly enough to keep your man out of the electric chair.”
“I don’t know if I can do that.”
“Then maybe you don’t believe in his innocence strongly enough.”
“I think I do, Benny.”
“Then take the case. Convince the jury.”
“You won’t help me?”
“I think he’s guilty,” Benny said simply, and put another cigarette in his mouth.
There were several very good reasons why I should not have undertaken the defense of George N. Harper.
To begin with, I was not a criminal lawyer, and I felt I might be doing him more harm than good. Section 782.04 of the F.S. reads: “The unlawful killing of a human being, when perpetrated from a premeditated design to effect the death of the person killed... shall be murder in the first degree and shall constitute a capital felony, punishable as provided in s. 775.02.” The section defining the penalty referred to yet another section titled “Findings in Support of Sentence of Death,” and listing “aggravating circumstances” as one such supportive finding. Under a subheading that read “Aggravating circumstances shall be limited to the following,” there was a list that included “The capital felony was especially heinous, atrocious, or cruel,” and lastly, “The capital felony was a homicide and was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification.”
If the state’s attorney could prove that Harper had, in fact, bound his wife’s hands and feet with wire hangers before dousing her with gasoline and setting fire to her, there could be no question that the crime had been “cold, calculated, and premeditated,” and that it had also been “especially heinous, atrocious, or cruel.” Harper was facing death in the electric chair, and whereas he had specifically asked me to represent him, I wondered now if the better part of valor would not be to make a request to the court for an attorney more experienced in such matters.
Secondly, like Benny Weiss, I did not particularly like Harper. I tried to understand this unreasoning antipathy to the man. Was it caused by a lingering prejudice, the aftermath of a Chicago childhood that separated blacks and whites as effectively as a barbed-wire fence? I did not think so. I learned my first lesson in tolerance when I was seventeen and avidly chasing girls of any persuasion, color, or stripe. There was a gloriously beautiful black girl in my high-school English class, and I took her to the movies one night, and for ice-cream sodas later, and then led her into my father’s multipurpose Oldsmobile, and drove to a deserted stretch of road near the football field, and plied her with kisses and my ever-reliable “I love you” (her name was Ophelia Blair, “I love you, Ophelia,” my hand fumbling under her skirt), and then pleaded that she let me “do” it because I’d never in my life “done” it with a black girl.