“I’m following.”
“Which means the prosecutors will charge all four of these men for eavesdropping. Correct? Then the P.A. s will wait to see which defendant bangs down their door first to make a deal to testify about the rape. The worst of those boys will be charged with both crimes. And everybody ends up with convictions. Justice delayed,” Rusty says, “but not denied.
“But go where you’re headed? Three separate opinions? We should just dial 911 right now. The case gets reversed without any guidance to the trial court on whether it can go forward. Either we rehear it en banc or, better bet, the Supreme Court steps in. And then you’re running for retention after deciding in a marquee case that you’ll free four rich white rapists on a technicality, in an opinion which no other judge would join and which, odds on, gets overturned. I mean, Jesus, George. Talk about looking for trouble.” Rusty touches the sodden shoulder of George’s T-shirt. “Ask yourself if Nathan didn’t play all that out in his head before he got on the bench yesterday. He’s going to leave you hanging from the yardarm and run for your seat when it goes south on you.”
Lecture complete, Rusty exits, leaving George within the high, white space, greatly unsettled. He is unconvinced about Koll. The complex calculations Rusty described are well within Nathan’s capabilities. But the compromises are not. Koll’s story to himself is that the law is a matter of rigorous reason untouched by personal motives. Once falsely accused of murder, Rusty is understandably prone to see devious and complex schemes to undermine him and his friends.
Yet about the practical consequences if George votes to reverse on limitations grounds, the Chief is clearly correct. Feminists and minorities, liberals and conservatives-a judge who manages to antagonize all those groups at once is looking for trouble on Election Day. George is as practical as the next person, but he’d as soon not run as trim his conscience to fit the ballot box.
That, he realizes, is what’s bothering him most. The conversation went well past the point of propriety. George sees this with Rusty now and then. He is so accustomed to his role as the very figure of integrity that he assumes his every word and act, no matter what their character, is clothed in rectitude.
To his credit, Rusty himself has had second thoughts by the time George reaches the locker room. Sabich is sitting on the narrow wooden bench between the banks of lockers, a towel indenting his softening middle, his chin drooped onto the gray hairs of his chest.
“George, at some point there I should have put a sock in my mouth. Let’s strike all that from the record. I’m really sorry.”
“No problem.”
“I’m concerned for your sake. You know that.”
“I do.” George believes that, although Rusty’s deepest concerns will always be for the court, which is his monument. “Rusty, I’ve disregarded your views for thirty years. It’s force of habit by now.”
They both smile.
“It’s a hard case, Rusty. I’m having a lot of trouble with it.”
“Going back and forth?”
He isn’t going anywhere. After the memories of yesterday, he is unwilling even to approach a decision until he is more settled with himself.
“How is Patrice?” the Chief Judge then asks. George decides that this is not a non sequitur. It’s how Rusty is explaining things to himself. Patrice is sick. George’s trolley is a little off the tracks. And he might be right. George gives a brief medical update. The doctor said this morning that he expects to discharge Patrice tonight.
“Great, great,” says Rusty, then the two men, now seated next to each other on the locker-room bench, subside to a silence in which Warnovits somehow remains the subject.
“Rusty,” George eventually asks, “is a judge disqualified if something in a case reminds him of himself?”
Only after speaking does George realize how loaded the question is. Rusty at moments must see his own reflection in the face of every soul accused.
“They’re supposed to remind us of ourselves, aren’t they, George? Isn’t that a quality of mercy?” The Chief stands then, offering his hand as a token of reassurance. “You kicked my butt,” he says.
“I sure did.”
“And whatever you do on that case will be the right thing.”
George shakes his head, unconvinced. “It’s just-” he says.
“What?”
“Don’t you wonder sometimes?”
“What?”
When George finishes, he can see from the abrupt darkening of Rusty’s eyes that he has said the most upsetting thing yet.
“Who are we?” George has asked his friend. “Who are we to judge?”
8
“Koll’s clerk told me we got the Warnovits opinion,” says Cassandra Oakey, sweeping into the judge’s large inner chambers moments after George arrives Thursday morning. “So what’s the deal?”
“The deal?”
“Well, what are we doing with the case? I checked with John. You haven’t assigned either one of us to start a draft. Term ends in two weeks.”
Cassie is the judge’s rotating law clerk. The other position, held by John Banion, is permanent, but Cassie’s job is filled annually by a graduating law student. Two weeks hence, a law reviewer from Northwestern will start, and after training him for ten days, Cassie will begin work for a foundation that represents indigent immigrants. She is destined for great things in the law, but the judge cannot say he’ll be sad to see her go. He has known Cassie, the daughter of Harrison Oakey, one of George’s former law partners and dearest friends, since she was kicking in her mother’s belly, and for her sake he set aside his standard reservations about hiring someone so close. Many of his colleagues do it, and Cassie was amply qualified. She was a standout law student who actually flattered George by accepting his clerkship over another she’d been offered in federal court. Her research and writing have proven to be flawless.
But Cassie is one of those roundly gifted people-brilliant, a former tennis star, a tall, striking ash blond-whom the world has rebuffed so infrequently that she has learned virtually nothing about boundaries. She speaks out of turn and without thinking-often with a regal air, as if it were she who’s on the bench. She charges into the judge’s private chambers without knocking, as she has just done, and despite frequent corrections, still calls him George in front of others, a liberty even Dineesha no longer permits herself. Now and then, George feels like a lion tamer who needs to grab a chair to keep Cassie at bay.
“I mean,” she says, stepping closer to the judge’s large desk, “we’re affirming, right?” To Cassie, a young woman of her times, the case is open and shut. When he hesitates, his clerk’s mouth droops open a bit. “Shut up! You’re not going with Koll, are you? About the tape being inadmissible? That’s totally whacked, right? We can’t consider new issues now.”
“I’m still turning some things over in my mind, Cassie.”
“Really? Like what?”
Lord God of mercy, he thinks. Less than four weeks.
“The statute of limitations bothers me. I’ve read it over thirty times. It says that if the defendants engage in acts of concealment, the statute’s time limit is suspended, quote, ‘during such period that those acts prevent the crime from being known.’ Unquote. But this young woman told her best friend she might have been raped.”
“I thought the trial judge said she was too young to know enough to go to the cops.”
“That’s what he said. But Sapperstein has a point. The legislature created another limitations exception to deal with crimes against minors, but it doesn’t last forever. Once you’re eighteen, and presumably old enough to understand the ways of the world, you have a year to go to the authorities. Mindy DeBoyer didn’t do that. Is it right to allow the trial judge to rely on her age to extend the statute longer than the exception for crimes against minors allows?”