Limitations

  3

  HOSPITAL CALL

  GEORGE RACES DOWN the judges’ private corridor toward the conference chambers adjacent to the appellate courtroom. He is actually a few minutes ahead of schedule for his meeting with Purfoyle and Koll, but he wants to phone Patrice, and he stops by a long window where cell reception is better. It is a goofy rectitude, he knows, uncomfortably reminiscent of his father, to avoid personal calls from the County line in his chambers, but as a judge he never shakes the expectation that he must lead by example in matters large and small. He wears a suit and tie each day and requires similar apparel of his staff, notwithstanding the more casual attire favored by his colleagues when they do not have to appear in the courtroom. He is determined that, if nothing else, he will always look the part: tall, trim, gray-haired, and handsome in a conventional middle-aged way. Standard-issue white guy.

  “Fine. Tired. Not a bad day at all,” Patrice says when he reaches her at the hospital. He has tried her several times this morning, but the line has been constantly engaged. At the moment, Patrice’s interaction with the human race is confined to the telephone. “They think my Geiger levels may be down enough tonight to let you in the room. Most women want a man’s heart, Georgie. I bet you were never counting on risking your thyroid.”

  “Gladly, mate,” he answers, a term of mutual endearment. “Any organ you like.” The Masons have always relished each other’s company and the way they generally ride along on a current of low-voltage humor. But at the moment, his druthers are to be more sincere. To many men George knows, marriage is a war against their longings. Yet he is among the happy few. For more than thirty years now, he has been able to say that he has wanted no one more than Patrice.

  These sentiments swamp him frequently these days. The nodule on Patrice’s thyroid was discovered on February 10, and when he stood in a store a day later reading the humid poetry on several valentines, he actually wept. But at the moment he feels obliged to keep this torrent of affection to himself. For Patrice right now the only acceptable behavior is what she deems ‘normal’—no dramatics and certainly no proclamations of a kind that Patrice, being Patrice, would deride as ‘soft and runny.’

  “How about if I bring dinner?” George asks. “We can eat together. Any cravings?”

  “No more limp green beans. Something with spice.”

  “Mexican?”

  “Perfect. After eight. That’ll be thirty-six hours. But they won’t let you stay long, mate.”

  Yesterday at 6:00 A.M., he’d brought Patrice to West Bank Lutheran–Sinai. There she’d swallowed a large white pill full of iodine-131. Now she may not have any physical contact with other human beings. The radiation broiling through her and eradicating every thyroid cell, especially the wayward ones that have wandered dangerously into other portions of her body, might also kill the healthy gland in someone else. The treatment has a long record of success, but it is disquieting to experience. At the moment, Patrice would be less isolated on a lepers’ island, where at least she would have company. At West Bank, she is housed alone in a small, white room of cinder block laid over a lining of lead. The decorating aims to avoid the sterile appearance of a hospital room, with the result that the space instead has the dismal look of a cheap motel, with scarred furniture and a thin chenille spread on the bed. Any item that will exit the area must be destroyed by special staff or quarantined—the books and magazines Patrice has been reading, her undergarments, and the leavings in the bedpan she must use. Her pulse and temperature are monitored electronically, and the orderlies serve her meals through a lead flap in the door.

  Yesterday, even George was not permitted in her room. Instead, his wife and he spoke through telephone handsets on either side of a large window cut into the wall adjoining her bed, on which Patrice can raise the shade. For George, the comparison with his professional life was unavoidable. How many clients in how many institutions had he conversed with this way? And how many of their fellow inmates had he surreptitiously eyed with the usual mix of empathy and judgment, as the prisoners pawed the glass or wept, with a child or lover on the other side, feeling only now the sharpest tooth of confinement, and thus of crime? With his own wife isolated this way, George could not shake a miserable, low conviction that he had failed. Their conversation was listless and unsettled. The glass between them might well have been her illness. After thirty-three years, it has turned out that their life together is a matter of grace rather than mutual will. Patrice is sick and he is not. ‘There is really no such thing,’ one social worker warned a support group for spouses, ‘as having cancer together.’

  “Didn’t you have arguments this morning?” Patrice asks. “How were they?”

  “Lackluster in most cases. But we just heard Warnovits. The high school rape case?”

  “The one on the news? Were the attorneys good?”

  “Not especially, but I was sitting with Nathan Koll, who planted a roadside bomb for the lawyers. Now I’ve got to go to conference and watch him wrap his arms around himself so he can pat his own back. I’m due now.”

  “Then go ahead, George. I’ll call if I fail the Geiger counter.”

  Clicking off, he peers from the window into the canyon of U.S. 843 that separates the Central Branch Courthouse from the Center City, and beyond that to the downtown towers, stolid monuments to capital. Summer is coming, a season of ripeness and promise, but the feeling in his own soul remains autumnal. George is off his stride and knows it. Revered as calm and poised, he is lately more likely to become unsettled, as he has been by Warnovits. He has occasionally turned snappish with his staff and has grown uncharacteristically absentminded. About ten days ago, he lost his cell phone—who knows where? He noticed it was gone on his way back from a Bar Association luncheon he’d attended with several of his colleagues. He had Dineesha ransack his chambers while his clerks called all over the Center City. For the moment, he is using Patrice’s spare.

  Some might think that it is #1 getting on his nerves. That probably hasn’t helped, but this moodiness predates the first e-mail George received from his anonymous tormentor. Instead his unease correlates more clearly with the time of Patrice’s diagnosis. He is convinced in every fiber that his wife is not going to die. The doctors have done everything short of issue guarantees. Her chances approach nineteen in twenty, and even those odds take no account of the robust good health in which she otherwise remains—lean, athletic, tanned, still beautiful.

  Yet as George’s friend Harrison Oakey has put it, serious illness at this age is like the lights flashing in the theater lobby. If life is a three-act play, then the curtain has gone up on the finale. After John Banion had read #1’s message saying ‘You’ll die,’ the judge had tried to settle his clerk with humor while they awaited Marina. ‘This guy has no future in journalism,’ George told him, ‘because that’s not breaking news.’

  Still, irony gets you only so far. The facts settle hard. And with them comes an inevitable calculation of pluses and minuses. George tends to be unsparing, even harsh, in his self-assessments. Husband. Father. Lawyer. Judge. These days, he seems to be keeping a cool eye on the scoreboard.

  4

  THE CONFERENCE

  NATHAN KOLL is a formidable, if ponderous, intellect with the academic equivalent of a five-star general’s chestful of medals: first in every class with Latinate honors, Order of the Coif, law review, blah blah blah. Real fucking smart. George always wonders how Koll sees himself. Probably as lawyers are in the ideal, a tower of icy reason. But Nathan is in fact as eccentric as a street person. For one thing, he does not bathe. Inhaling the body odor is like dragging a tree saw through your nose. Sharing the tiny robing room with him, where the judges don their long black gowns before arguments, is a much-lamented ordeal. His fingernails are grimy, and his wavy black hair is pasted to his forehead.

  George has long viewed Nathan’s unwillingness to surrender even to soap and water as a function of his noticeable paranoid streak, in which the man’s
fierce commitment to winning every argument may be a way to prove to himself that he is safe from everyone. Not that Nathan would ever admit to a personal stake. He never says, ‘I want,’ ‘I believe,’ ‘I need,’ nor will he acknowledge that anybody else might have any pride or attachment to his position. Everything is presented merely as a matter of ruthless logic, often with the traces of a snigger betraying itself at the corners of his lips.

  Off the bench, Koll keeps himself remote as a survivalist and refuses to give anyone, even his own staff, either his home address or phone. He can be reached only by BlackBerry. He has a wife, a beaten-down-looking Asian woman. George has met her twice but has yet to hear her speak.

  Nathan sits by interim appointment of the state Supreme Court, filling the remaining term in a seat being cut for budgetary reasons after 2008. He accepted the job sure it would propel him to the U.S. Court of Appeals in Chicago after John Kerry’s election. Given present realities, Nathan would like to retain this position indefinitely, but there’s little chance of that. No vacancies are anticipated for years on the court. More to the point, Koll would find a complete absence of support among the judges, whom he has irritated to a person, George included. Judge Mason no longer cares that Koll and he often end up on the same side of issues or that Koll is a uniquely able ally, artful in using cost-benefit analysis to the detriment of conservatives, who tend to respond as if he has broken into their toolshed. Nathan regards himself as the uninhibited protector of the oppressed, but this is so small a portion of the bizarre parade that is his everyday performance on the bench that it is a virtual lie by omission.

  Now George braces himself as he enters the conference chambers beside the appellate courtroom. Like everything else in the old courthouse, the room has a classical finish and looks a bit like a private dining room in a men’s club, right down to the baubled chandelier. To protect the privacy of these deliberations, there are no windows, and even the law clerks who will do the first drafts of the opinions are excluded so the judges may speak freely, without the need to save face in the presence of juniors.

  The other member of the morning panel, Summerset Purfoyle, is seated with Nathan at the Chippendale conference table, long enough to allow all twenty members of the appellate court to confer in the rare case when they sit together en banc. With Koll here, Summer has taken a chair a good ten feet away, and George follows suit on the opposite side.

  As the senior judge on the panel, George presides and calls the cases for discussion in the order they were heard this morning. Usually the work of the court is divided evenly between civil and criminal matters and, more pointedly, justice at the American extremes, for the very rich and for the very poor. As a rule, civil appeals make sense only when the financial or personal stakes are high, because the appellant has to post a bond guaranteeing that the trial court winner will be paid, then foot the bill for an attorney to comb the record looking for mistakes.

  On the criminal side, the matters reflect the realities of the courtrooms downstairs, where the defendants are overwhelmingly poor young males, represented by state-paid counsel. In nine cases out of ten, the decision of the appellate court will be the last real chance for men sentenced to significant prison terms. The state Supreme Court rarely grants further review in criminal matters. George’s job is not to rejudge these cases for the jury. But he takes with a solemnity approaching religious commitment his obligation to be able to say, all things considered, that the defendant was convicted fairly.

  The three judges move through the civil cases argued in advance of Warnovits without much debate. The first two, a child custody dispute and a fight over air rights between two corporations, are affirmances; the third, a $9 million personal-injury verdict against a furnace manufacturer, must be set aside because the trial judge, a lunkhead named Myron Spiro, whom the appellate court often reverses, disallowed a lawful defense. As presiding judge, George has the right to decide who will author the court’s opinions in these cases, but his practice is to await volunteers, and Nathan, predictably, says he’s willing to do all three. Koll writes like the wind, seldom needing much help from his clerks, and it is sometimes an irresistible temptation to let him do most of the work. But Summer wants the custody case, and Nathan defers on that, taking the other two. Privately, George is delighted that Koll will handle the reversal of the furnace verdict, because Nathan will not resist subjecting Spiro to the ridicule he deserves.

  “All right,” says George. “Let’s earn the big bucks. Warnovits.”

  As the presiding judge, George has the right to speak first, but he remains mysteriously confused and heavyhearted about the matter. Instead, he turns to Koll.

  “Nathan, I need to hear more about this business you brought up at the end of the oral argument concerning the state eavesdropping statute.”

  In truth, George knows all he needs to, because the motives were plain. Koll, ever-victorious, had figured out a way to demonstrate to the packed courtroom, including the full row of press, that the celebrated Jordan Sapperstein had overlooked a winning argument.

  An added victim of this display was the time-ravaged warhorse who had followed Sapperstein to the podium to argue for the state, Tommy Molto. The judges of the Kindle County Superior Court recently appointed Tommy the County’s acting Prosecuting Attorney, making him the second successor to the unexpired term of the elected P.A. Muriel Wynn, who had barely warmed the chair before mounting a successful campaign for state Attorney General. The first interim P.A., Horace Donnelly, had resigned after about four months, when the Tribune discovered that he had left markers on the state’s riverboat casinos that totaled twice his annual salary. Molto was the safe choice, a relentless and unforgiving career prosecutor who by now seems destined to die of elevated blood pressure in the midst of some courtroom harangue about the miserable shortcomings of a defendant.

  Today, Tommy was making a point by his presence, showing that the P.A.’s office gave Warnovits premium significance. In truth, George views Molto as a better appellate advocate than many of his deputies. He gets to the point, answers questions directly, and does his best with his argument’s weaknesses without pretending that doubts are unreasonable. Representing the state in Warnovits, Molto meandered safely through his response, first explaining how the case comfortably fit within the legislative exceptions to the state statute of limitations. Then he echoed the points Koll had made in disputing Sapperstein’s claim that the videotape of the rape should have been severely edited before being shown to the jury.

  Not uncharacteristically, Koll suddenly seemed to abandon his own point of view.

  ‘Mr. Molto,’ he said, ‘after this Court’s decision in Brewer, can you and I agree that the videotaping of Mindy DeBoyer without her consent violated the state’s eavesdropping law?’

  Brewer, decided a few months ago, concerned a junior high school janitor who had used the camera on his cell phone to collect images in the boys’ locker room. Molto nodded cautiously. The weight of every crime and every bad guy who had slipped away seemed to have led to an overall descent in his ruined face, and what little of the gray hair that remained atop his head stood straight up in an unfortunate breeze from the courthouse ventilation system. His suit, as usual, looked as if it had been stuffed into his desk drawer for storage overnight.

  ‘I agree, but that crime was not charged, Your Honor.’

  ‘Indeed, Mr. Molto. That crime was not charged. And Section (c)(6) of the eavesdropping law says clearly, and I quote, “Evidence obtained in violation of this chapter is inadmissible in any civil or criminal case, except a prosecution for violation of this chapter.” That to me means that your videotape clearly should not have been received in evidence.’

  Molto looked as if he’d been stabbed. Behind him at the defendants’ table, Sapperstein rocketed back against his chair so hard that he might have done with an air bag.

  “You’re not suggesting, Nate, are you,” says Summerset Purfoyle now, “that we should reverse these
convictions on that basis?”

  “Why not? No tape, no case.”

  “But Sapperstein didn’t argue the point here, and neither did the defense lawyers at trial. We can’t take it up now.” It is the essential nature of an appeal that it is decided in a kind of twilight zone—only what was recorded in the trial court can be considered. The whole truth—the contents of the police reports, the statements of witnesses not called, the byplay between the lawyers and the judge at sidebars or in chambers—may not be taken into account. It is like writing a history from the fragments left after a fire. In the same vein, it is a cardinal rule that legal objections that the trial judge had no chance to correct cannot be raised on appeal.

  “Foolish on his part,” answers Koll. “Damn near malpractice.” The truth, George realizes; is that until Brewer, a few months ago, even the best lawyer might not have thought that a law passed in the 1970s to safeguard the conversations of citizens—and legislators—from unwanted snooping was worded broadly enough to reach video recording as well.

  “Nathan, that provision was meant to keep people who eavesdrop from taking advantage of their crime in court,” Summer says. “A fellow can’t bug his wife, then use the tapes in their divorce case. But I just don’t see the sense, in circumstances like these, of saying that the defendants can’t be prosecuted for anything but illegal surveillance, no matter how god-awful the conduct that’s recorded there. Why would the legislature want to short-change the victim like that?”

  “The words of the statute couldn’t be clearer. It’s plain error,” Koll adds, invoking the doctrine that allows the appellate court to recognize overlooked trial mistakes when they would clearly alter the outcome.