“And that,” said the Judge, “makes eleven.”
“But there’s no one left,” said Johnny. “Or have I forgotten somebody?”
“No, that’s all there are.”
“Oh, I see. You’re going to put an eleven-man jury over on them.”
“I doubt if I could get away with it.”
“But... then what are you going to do, Judge?”
“Well,” said the Judge, doodling on his pad, “there’s you.”
“Me!” Johnny was flabbergasted. “You mean you’re counting on me as the twelfth juror?”
“Well, I suppose you wouldn’t want to bother.”
“But—”
“It would be kind of convenient, though,” said Judge Shinn vaguely.
“In what way, in God’s name?”
“You sitting among these people, Johnny? Why, I’d have someone I could trust sitting in on the trial, hearing and seeing everything that goes on.”
“Might be a kick at that,” said Johnny.
“Then you’ll do it?” The Judge dropped the pencil. “That’s fine, Johnny! Even if a slipup occurs and by some miracle Sarah Isbel gets on the jury to make a twelfth — or Hosey Lemmon changes his mind or Earl Scott insists on being wheeled over — I’d still have you as the alternate; you heard me lay the groundwork for a thirteenth juror.”
“But how can I serve on a jury here?” asked Johnny. “I’m not a voter. I’m not even a resident of this state. They’d never accept a stranger.”
“Well, not exactly a stranger, Johnny. You do carry the Shinn name. Anyway,” said the Judge, “they’re going to have to accept you. Did I ever tell you I know a dozen ways to skin a balky calf? Here’s one of them.” He opened the top drawer of his desk and took out two sheets of legal-size paper clipped together. It was a printed form, its blank spaces filled in by typewriter.
“You finagler,” said Johnny. “You have that all made out. What is it?”
“Where defending constitutional democracy and due process is concerned,” said Judge Shinn, “I’m an unmitigated scoundrel. Why, Johnny, this is a warranty deed relating to a piece of property I own at the western boundary of my holdings, a house and ten acres. The house is usually rented under a lease, but the last lessee moved two years ago and it’s stood untenanted ever since. This,” and the Judge took another paper from the drawer, “is a bill of sale. Under its terms I, Lewis Shinn, am selling you, John Jacob Shinn, the house and ten acres covered by the deed for the sum of — what do you offer?”
“At the moment,” said Johnny with a grin, “my checking account shows a balance of four hundred and five dollars and thirty-eight cents.”
“For the sum of ten thousand dollars in imaginary currency, and you will kindly sign a paper — this is my Yankee heritage speaking — promising to ‘sell’ the property back to me at the same terms when this is over. I don’t know how many laws I’m breaking,” said the Judge, “and I find myself singularly unable to worry about it just now. The point is, when Andy Webster gets here he can witness my signature and yours, and first thing tomorrow morning we’ll take the deed over to the Town Hall and have Burney Hackett in his capacity as town clerk record same, for which you will pay him out of hand the sum of four dollars, thereby becoming a Shinn Corners property owner entitled to all the responsibilities thereof, which under the ruling I’m going to make when the jury is empaneled will include your responsibility to serve on a Shinn Corners jury. There’s nothing impresses a Yankee more than the recording of a deed to a piece of land. Little side issues like length of residence, non-voting, and so forth, we shall conveniently ignore.”
Johnny was staring at the Judge in a puzzled way.
“What’s the matter?” said the Judge.
“I’m trying to squeeze a feeling of reality out of this,” said Johnny. “I don’t get it. I really don’t. All these shenanigans... Aren’t you whipping up an awfully big tempest for such a little teapot, Judge?”
“You think it’s little?”
“It’s subatomic. One man, who’s probably guilty to begin with! And you stand a whole town on its head, befuddle a bunch of perfectly capable cops and county officials, drag the governor of your state into it...”
Judge Shinn got out of his chair and began to pace up and down before his law books, his brows coming together as if meeting a challenge.
“One man,” he said slowly. “Yes, put that way it sounds ridiculous. But that’s only because you’re thinking of Josef Kowalczyk as if he existed in a vacuum. What’s one man? Well, Johnny, one man is not merely Josef Kowalczyk. He’s you, he’s me, he’s Hube Hemus — he’s everybody. It always starts with one man. A man named John Peter Zenger, a German immigrant, was tried for seditious libel in 1735 in New York for having published some polemical articles in his weekly. One man. Another man, named Andrew Hamilton, defended Zenger’s right to print the truth. Hamilton’s success in securing Zenger’s acquittal established freedom of the press in America.
“Someone has to keep on the alert, Johnny. We’ve been lucky. Luckier, maybe, than we deserve. We’ve always had someone to watch over us.
“You take the debates during the founding of the Constitution,” said Judge Shinn. “The debaters who demanded guarantees of procedural due process weren’t arguing from mere theory. The adoption of the Bill of Rights, in particular the Fifth and Sixth Amendments, had behind it real fears, fears that had grown out of actual happenings in colonial history. For instance, the witchcraft trials in Massachusetts in 1692.
“In those trials,” said the Judge, “the judges were laymen, the Attorney General was a merchant. Not a single person trained in the law was involved with the court or the trial proceedings in any way whatsoever. The witch court, under the highsounding name of Special Court of Oyer and Terminer, allowed its prosecutor to present what they called ‘spectral evidence’ and to put on the stand a parade of confessed or reformed ‘witches’ to testify against the accused. Anybody from the crowd who clamored to be heard, irrespective of the relevance or legal propriety of his testimony, was allowed to do so. Result: twenty persons smeared by hearsay, superstition and hysteria, found guilty, most of them hanged — one, an octogenarian, was actually pressed to death. The same kind of thing is going on today before the so-called Supreme People’s Courts in Communist China. And for that matter in Washington, where men’s reputations are destroyed and their capacity to earn a living is paralyzed without a single safeguard of due process.
“And let’s not shunt the blame onto the Congressional committees,” said the Judge. “The blame is ours, not theirs. The demagogue in Congress couldn’t operate for one day in an atmosphere of common horse sense. It’s public hysteria that keeps him going strong.
“Proving, Johnny,” said Judge Shinn, “that people can’t always be trusted. Human beings, even in a democracy, are too prone to degenerate into mobs. That’s why the Shinn Corners versus Josef Kowalczyk teapot, Johnny, contains a tempest big enough to destroy all of America. Who’s going to protect the people from their worst enemy — themselves — except the individual here and there seizing on an individual case and refusing to let go?”
“Hear, hear,” said Johnny.
Judge Shinn stopped pacing. He bent over his desk to finger the yellow pad, throwing a sidelong look at Johnny.
“Sorry,” said Johnny. “But I’m so damned fed up with words.”
The Judge nodded. “Don’t blame you,” he said briskly. “Let’s get down to cases. Suppose I tell you, Johnny, my real reason for wanting you on that jury.”