After a long pause, Ben said, “What if you really, really know that this guy is innocent? I mean, you feel it in your gut and your chest and your armpits. Everywhere.”
“It’s your decision,” Rick warned. “If you’re right, good for you. But if you’re wrong, Hollis’ll deny the stay and you wind up with egg on your face. It’s not that big a deal, but since it’s your first few weeks, I’d want to gain a bit more of his confidence before I crawled out on a limb.”
“So I should let this guy fry so I don’t look bad?”
“Listen, I don’t know the facts of the case,” Rick said. “I’m just saying pick your battles wisely. I have to run, but if you have any questions just give me a call.”
“Listen, thanks for the help,” Ben said. “We really appreciate it.” After writing down Rick’s number, Ben hung up the phone, turned on his computer, and reentered the Westlaw database.
At five-thirty P.M., Joel, one of Chief Justice Osterman’s clerks, entered the office. “We’re out. Osterman’s denying the stay.”
“So you’re leaving now?” Lisa looked up from her stack of papers.
“You got it,” Joel said with a smug smile. “Our day is done.”
As Joel walked out, Lisa shouted, “I wish you a life ridden with hardship and a lingering death.”
“See you tomorrow,” Joel sang. “Hope you’re not wearing the same clothes.”
Within the next three hours, Justice Gardner denied the stay, while Justices Veidt, Kovacs, Moloch, and Dreiberg all granted it.
“Three justices left, and all we need is one more yes vote,” Ben said. “What are the chances this decision falls on us?”
“I don’t want to talk about it,” Lisa said, her eyes glued to the document in her hand. “I just need to stay focused, and this will all be over soon. I am calm. I am focused. I am the center of my universe and I am one with the document.”
At eleven P.M., Lisa leaned back in her chair and screamed, “I can’t take it anymore! I haven’t moved for the past twelve hours!”
“What happened to being one with the universe?” Ben asked.
“Fuck the universe,” she said, getting up from her chair and pacing around the office. “I hate the universe. I whiz on the universe. I am now one with anger, resentment, and hatred. Let’s fry this bastard and go home.”
“Now that’s exactly the kind of jurisprudence we need to see more of on this Court.”
Suddenly, the office door opened and Angela announced, “Both Blake and Flam are out. Stay denied. It’s all on you.”
Ben looked at Lisa, whose shoulders slumped in defeat. “So if we fry this guy, we can go home?”
Not long after midnight, Ben was sitting in front of his computer, his eyes fixed on his screen. “I don’t see the proof here,” he said for the third time in fifteen minutes. “I don’t know this guy, I never met him, but I know the proof’s not here.”
“You don’t know shit,” Lisa said, stretched out on the sofa with her arms covering her eyes. “Now what do we want to say in this memo?”
“Let’s give Hollis a brief overview of the facts, and we’ll recommend he grant the stay based on factual innocence.”
“We don’t know this guy is innocent,” Lisa said.
“This defendant did not receive a fair trial, and that’s a fact.” Ben stopped typing. “The arresting officer swears in the police report that he saw someone run out the back door of the house when the defendant was arrested. But when the defense tries to admit the officer’s testimony, the trial judge denies the request saying it’s inconsequential. That’s ridiculous.”
Lisa sat up on the sofa. “It’s called judicial discretion. There’s no reason to assume the judge was wrong.”
“There is a reason,” Ben said, turning his chair toward his co-clerk. “The defendant contends that this mystery figure was an alibi witness on the night of one of the murders.”
“That still doesn’t explain the other two murders,” Lisa said. “Even if he didn’t kill one child, he killed two others.”
“You’re missing the point.” Ben’s voice rose with irritation. “I’m not saying he’s innocent of all the murders, but if he killed two people instead of three, he might not’ve gotten the death penalty. Maybe the jury would’ve sentenced him to life imprisonment instead.”
“Ben, this guy killed two innocent children in one night. Even you admit that. If he didn’t kill three, big fuckin’ deal. He still deserves what he’s getting.”
“That’s just your opinion,” Ben said, jumping from his seat. “If the jury voted on three murders, that’s different than two murders.”
“But you don’t even know if the officer’s testimony would’ve gotten him off,” Lisa interjected. “Maybe he still would’ve been found guilty.”
“But maybe he wouldn’t have,” Ben waved his hands, exaggerating his point. “It’s not up to us.”
“Listen to yourself,” Lisa said, getting up from her seat to stand face-to-face with Ben. “You can’t redo every trial just because you would’ve done it differently. The jury heard the defendant’s testimony. They heard him say there was an alibi witness who he couldn’t get in touch with. They still convicted him of three murders. Just because a cop saw this mystery witness, that doesn’t mean the witness was really an alibi. Whether the policeman’s testimony was admitted or not, the alibi couldn’t be found. Seeing a person who could potentially be an alibi doesn’t add one iota of proof that an alibi existed.”
“But it does change the story the jury heard,” Ben said. “I’m not saying the policeman’s testimony would’ve proven the alibi, but it would’ve added some strength to the defendant’s story that a mystery man existed. Before you go to your death, I think you should at least get every opportunity to prove your story.”
“You just feel bad for this guy because you don’t like the death penalty as a solution,” Lisa said.
“That’s exactly right,” Ben said, cracking his knuckles. “I want to recommend Hollis take the case. If you don’t agree, I understand, but it’s worth it to me. If Hollis disagrees, the worst that happens is I look bad. Considering this guy’s life is at stake, I’ll risk it. If it makes you happy, I’ll put only my name on the memo.”
Lisa shook her head and put her hands on her hips. “Do you really feel that strongly about this asshole?”
Ben nodded.
“Fine, let’s write the recommendation,” Lisa said. “If Hollis disagrees, though, I kick your ass.”
Returning to the computer, Ben smiled. “Deal.”
“Hurry!” Lisa yelled at five-fifty A.M. Racing out the door with the newly printed, thirty-two-page recommendation, Ben headed straight for the fax machine in Hollis’s private office. Twenty minutes later, he returned. “Can we be more tired?” he asked, smoothing back his now greasy hair from his forehead.
“I assume the fax went through okay?” Lisa asked. The bags under her eyes highlighted her own exhaustion.
Ben nodded and sat down next to her on the sofa.
Squinting up at her co-clerk, she said, “You really have a wussy beard.”
“I do not,” he said, running his hand across his light stubble.
“You do too. It’s not a character flaw. It just means you’re not a real man.”
“You wish you knew how much of a man I am,” Ben said, smiling.
An awkward silence filled the room. “You just flirted with me,” Lisa said.
“What are you talking about?” Ben laughed.
“You did. You just flirted.”
“I did not.”