“Do you know what Grandpa Kulyk did in World War II?”
Silence for a moment. Off in the distance—here or there, I wasn’t sure which—a siren was wailing. “What the hell, Jim.”
“Sorry?” A question, not an apology.
“What the hell,” she said again.
“Excuse me?”
“Jim, if this is some kind of joke…”
“I’m not joking.”
“You know full well what he did in the war, at that camp.”
“Well, I know now,” I said. “I found out today. I’m here giving expert testimony in that trial I told you about. The D.A. blindsided me with the news.”
“It’s not news, for Christ’s sake,” said Heather. “It came out ages ago.”
“Why didn’t you tell me?”
“Are you nuts? We all knew about it.”
My head was swimming. “I don’t remember that.”
“Seriously?”
“Seriously.”
“Jim, look, I’ve got a client meeting in—well, damn, I should be doing it now. I don’t know what to say, but get some help, okay?”
4
I’d have been happy to go home after the morning’s evisceration, but when the judge had called the recess, Miss Dickerson indicated she wasn’t through with me. After failing to find a vegan entrée in the courthouse cafeteria, I’d settled for a packaged salad and a cup of black coffee.
The fireworks began again as soon as court resumed. “Objection!” said Juan, rising in response to Dickerson asking me once more about my personal history. “This fishing expedition has no bearing on the sentencing of Devin Becker.”
Dickerson spread her arms as she turned toward the brooding judge. “Your Honor, this is the first time Mr. Marchuk’s technique has been introduced in a court of law. With the court’s permission, it seems only appropriate to delve into any biases or prejudices—even ones that he himself might not be aware of—that might have tainted his results.”
“Very well; objection overruled—but don’t wander too far afield.”
“Of course not, Your Honor.” She turned back to me. “Mr. Marchuk, sir, what’s your stance on capital punishment?” I saw Juan clenching his wide jaw.
“I’m against it.”
Dickerson nodded, as if this was only to be expected. “Earlier you told us you were Canadian, and our friends to the north don’t have capital punishment. Is your objection simply something that goes with your citizenship, like a fondness for hockey and maple syrup?”
“I object to capital punishment on a philosophical basis.”
“Ah, yes. When Mr. Sanchez was introducing you, he made mention of the fact that in addition to your three degrees in psychology you also have a master’s degree in philosophy, correct?”
“Yes.”
“Well, then, given this sentencing trial is precisely about whether Mr. Becker will receive the death penalty, perhaps you could briefly enlighten us as to your philosophical objections to it?”
I took a deep breath. I’d often debated the issue in classrooms, but the palpable disapproval of the jurors was throwing me off my game; the D.A. hadn’t allowed anyone who was morally opposed to capital punishment to be impanelled for this case. “They aren’t just my objections,” I said. “I’m a utilitarian philosopher. Utilitarians believe the greatest good is maximizing happiness for the greatest number. And one of utilitarianism’s founders, Jeremy Bentham, back in 1775, articulated several compelling arguments against the death penalty, arguments that still make sense.”
I let my butterflies settle for a moment, then: “First, he said—and I agree—that it’s unprofitable. That is, it costs more to society to execute people than it does to keep them alive. That was true in Bentham’s day, and is even more true today: the extended legal proceedings, including this very one that we’re all part of right now, plus the inevitable appeals, make it far more expensive to execute a criminal than it is to imprison him or her for life.
“And, just as important, Bentham said—and, again, I agree—the death penalty is irremissible. That is, there’s no way to undo an error. Of course, the unhappiness that results from a wrongful execution is huge for the death-row inmate. More than that, though, if a society executes an innocent man, and that fact is subsequently revealed when, for instance, the real killer is caught, then everyone in that society feels—or, at least, should feel—great remorse at the horrible thing done in the name of all of us. And then—”
“Thank you, sir. We get the idea. Now, then, what about abortion? If your argument is that punishing the innocent with the ultimate sanction is debilitating for society, then I’m sure the men and women seated here, in the wake of our Supreme Court having recently overturned Roe v. Wade, will be gratified to hear that you’re pro-life.”
“I’m not. I’m pro-choice.” I heard a hiss-like intake of breath from one of the jurors, and saw another one, the bearded white man, shake his head slowly back and forth.
Belinda Dickerson returned to her desk, and her assistant took a book out of a briefcase and handed it to her—and, like every author, I have the ability to recognize one of my own books at just about any distance, even when it’s partially obscured. “Your Honor, I’d like to introduce this copy of Utilitarian Ethics of Everyday Life, by our current witness, James K. Marchuk.”
Judge Kawasaki nodded. “Mark as People’s one-four-seven.”
“Thank you, Your Honor. Just to confirm, sir, you are the author of this book, correct?”
“Yes, that’s right.”
“As you can see, I’ve marked two pages with Post-it flags. Would you be so kind as to turn to the first one and read the highlighted passage?”
Post-it flags come in many colors; I use them all the time myself. She’d no doubt deliberately chosen red ones; she wanted the jury to be thinking about blood.
I flipped to the first indicated page, carefully took out my reading glasses, and said: “‘As in all utilitarian thinking, one cannot put one’s own desires or happiness ahead of another’s simply because they are one’s own, but in the case of a genetically defective fetus which, if brought to term, will live an unhappy, pain-filled life, terminating the fetus is clearly the path that will most increase the world’s net happiness, for, as we have observed, there are only two ways to add to the world’s total joy. The first, obviously, is to make the people who already exist happier. The second is to actually increase the number of people in the world through childbirth, provided they will likely live happy lives.’” Italics, as the saying goes, in the original.
I shifted uncomfortably in my seat then went on. “‘The corollary to this is that the world’s total happiness is decreased by either making existing people less happy—as raising a disabled child with its attendant emotional and financial costs would doubtless do for the parents—or by allowing more people to come into existence who will be unhappy, as a child born to a life of pain and suffering will be. In such a case, therefore, abortion is perhaps morally obligatory.’”
The argument was more complex than that, and I dealt with all the objections one might raise in the subsequent paragraphs, but I stopped when the blue highlighting came to an end, closed the book, and looked up.
You could hear a safety pin drop in that courtroom. The jurors were all staring at me, some with mouths agape, and the color had gone out of Juan’s face. Only Devin Becker looked unperturbed.
Dickerson let the silence grow for as long as she felt she could get away with, then: “Thank you. Now, the next passage, please.”