Seven Types of Ambiguity

  “I’m sorry for the delay in getting back to you.”

  “No, that’s quite all right. I’m sure you must be . . . very busy.”

  “My associate said you were a law student.”

  “No, no, I’m majoring in psychology.”

  “Not doing any law subjects at all?”

  “No, psych and English mainly, some politics.”

  “So you weren’t looking for career advice in the law?”

  “No . . . no, hardly.”

  “Well, that’s a relief . . . I suppose.” She seemed about as uncomfortable as I was.

  “Why a relief . . . Judge?”

  “Please, Rachael, call me Gina. I knew your father when you were a little girl.”

  “Thank you.” I smiled, still nervous.

  “It’s a relief because the truth is, I don’t know what advice to give a young aspiring lawyer. Try to be in the right place at the right time, perhaps. I don’t know.”

  “Do you mean try to get good cases?”

  “Yes, that’s a start. It’s always good advice to be lucky, isn’t it? Always was.”

  “Was Simon Heywood’s case a case worth getting?”

  “In many ways. It was high profile, but it was also high stress.”

  “Higher stress than usual?”

  “Yes, in many respects.”

  “Why?”

  “Oh boy!” she exhaled. “Where do I start? Simon himself made it harder.”

  “Really? Why? Was he difficult?”

  “No, not really, hardly ever difficult. It’s just that . . . there was a tendency to . . . this might sound strange . . . there was a tendency, at least for your father and me, a tendency to identify with him. Not with what he had done but—”

  “Not with what he was accused of, you mean?”

  “Yes, quite. Not with what he was accused of, but with Simon himself. So, as unpleasant as it is to see any of your clients, or nearly any, in prison, it was that much more unpleasant in Simon’s case. First, his circumstances were worse than usual, and then, I suppose . . . it was easier to see yourself in him.”

  “Why?”

  “Why were his circumstances worse than average or why was it easy to see oneself in him?”

  “Well . . . both, I suppose.”

  “His circumstances were worse than most because he had been in solitary confinement in the maximum-security section of one of the largest prisons in the state for over a year, and he hadn’t been tried yet.”

  “And why was it easier to identify with him?”

  “I’m not sure what you know about Simon Heywood, but—”

  “My father kept a journal.”

  “You’ve read the journal?”

  “More than once. That’s how I came to be here.”

  “So then you know pretty much . . . everything.”

  “I know a version of some of the things my father chose to put down. It can seem random, sometimes cryptic.”

  “I don’t doubt it. What can I tell you?”

  “Why was it easier to identify with Simon Heywood than with other clients of yours? Because he’s middle-class?”

  “No, there, Rachael, you’re making assumptions about me and my clientele.”

  “I’m sorry, I didn’t mean to—”

  “That’s all right. First, I have to make it clear that I didn’t identify with Simon anywhere nearly as much as Alex, your father, did. One of the problems I had with your dad was the extent to which he took Simon on, not as a case, but as a cause. To me Simon was always a case and only a case. But he was a difficult case. In addition to his worse-than-usual circumstances and the tabloid publicity that comes with any child-related crime, he was so eminently likeable. It made it harder to be unemotional, harder to concentrate on forensic matters.”

  “I’m sorry, but I still don’t get it, not fully. What’s wrong with liking him?”

  “Well, to start with, all advocates, every one of them and I don’t care how experienced they are, have a tiny little voice inside them that must be silenced at all costs. It’s a voice that nestles somewhere deep inside them and surfaces only when they are up on their feet in court and about to speak. Then it screams, ‘You’re ill prepared. A few hours ago you were home asleep in bed in a fetal position. You are good at that. Do that!’ And it’s at precisely this time that you have to open your case.

  “Now, if on top of this you feel too much for your client, he’s at real risk. The same applies to surgeons. Surgeons shouldn’t operate on people they care too much about. It wasn’t easy not liking Simon too much. Your dad couldn’t do it. There was a friendship there. He liked him too much.”

  “And you didn’t?”

  “I had a job to do. I wasn’t there to be his friend. I wasn’t there to make him feel good about himself. I was there to get him acquitted.”

  “Well, you certainly did that.”

  “No. It wasn’t me.”

  “What do you mean?”

  “Two other women did that.”

  “What other women?”

  “Simon had a . . . a friend called Angela. You might have read about her in your dad’s journal. She did a lot for Simon. She told a couple of different stories to the investigating detectives, another one at the committal hearing, and was conveniently unavailable at the trial.”

  “Unavailable?”

  “She was in an accident and wasn’t able to—”

  “Oh yes, the accident. And the other woman?”

  “I thought you read the journal? It’s all in there.”

  “One version of it.”

  “Are you cross-examining me or your father retrospectively?”

  “I’m sorry, Judge, I was—”

  “Gina.”

  “Sorry, Gina. I don’t mean to sound as though—”

  “No, Rachael, I’m sorry. You ask anything you like. I shouldn’t be defending him, not to you, not after all these years.”

  “I don’t know. Maybe you should. But this other woman you mentioned—you mean Anna?”

  “Yes, Anna. When it came time for me to cross-examine her, she changed her story.”

  “What did she finally tell them?”

  “Well, I don’t know what is in the journal you’ve been reading but the way I remember it, and you can check my memory against the newspaper records—”

  “No, that won’t be necessary.”

  “Rachael, dear, you don’t have to defend your father either, not to me . . . All along, that is, to the police, at the committal hearing, and as far down the track as her evidence-in-chief at the trial, Anna’s story had been that she hadn’t seen Simon since they’d been university sweethearts. Then, all of a sudden in cross-examination, she showed a reluctance to repeat it. She tried not to answer the question, the all-important one about a romantic relationship with Simon way after university. So I put it to her, as I was obliged to, that she had been having an illicit relationship with her old boyfriend, Simon Heywood, and that, in fact, Simon hadn’t taken Sam, her son, illegally because he’d had her permission to take him.

  “She stalled as long as she could and then, when told by the judge that she couldn’t refuse to answer, she said yes. She said it was true. In re-examination the prosecutor put the question to her again and again. She tried not to answer and again the judge ordered her to.”

  “Did she repeat that Simon had her permission?”

  “No, she didn’t. The prosecutor reminded her that she was under oath. He asked her if she understood the gravity of a charge of perjury. She said she did and then she changed her story back again. She told the jury that Simon hadn’t had her permission to take Sam. When asked why she had answered differently under cross-examination, she said that she’d felt sorry for him, seeing him there in the dock. She said that he was fundamentally a good person and that it would be criminal for him to spend years of his life in a prison. She effectively started a plea on his behalf.”

  “She wasn’t charged with anything, w
as she?”

  “You mean perjury?”

  “Yes.”

  “No. No. She told one lie and then quickly took it back. But that was all she had to do to free him.”

  “What do you mean?”

  “By showing such reluctance to answer the question, then vacillating the way she did, first denying Simon had permission to take Sam, then lying, then coming back to her original story, she’d effectively torpedoed the prosecution case. Her own credibility was shot. Her performance was entirely consistent with our case that she was ashamed of the affair with Simon and was lying in order to save face and her marriage. There was enough reasonable doubt to drive a truck through. She really managed it all with one lie which she then took back in time to protect herself.”

  “Don’t you mean she only needed to tell the truth once?”

  “Listen, Rachael, you’ve read the journal. You don’t have to be coy about this. I know the real truth now.”

  “I’m sorry. I’m not following you.”

  “What a lawyer suspects and what she knows are not necessarily the same thing and when they’re not the same thing, the difference between the two can be crucial.”

  “So my father only gave you the version Simon wanted the court to believe. He never actually told you the real truth?”

  “God no! He knew better than that.”

  “Was that why . . . Was that why the relationship, yours with him, ended?”

  “Oh boy!” Gina exhaled again. “This isn’t what you expect after a long day in court. Look, Rachael, would you like to have dinner with me, maybe sometime next week?”

  I wasn’t going to turn that down and so began an irregular series of dinners, coffees, and drinks with my new friend, Judge Serkin. I say my friend. I’d like to think that we were friends but who ever knows what people are to each other, right? Isn’t that one of the things Dad was always going on about to you, the ambiguity of relationships? Was I just using Gina to find out more about my father? Was she using me, perhaps, to expiate some kind of guilt she felt about what she had or hadn’t done to my father? Maybe she just wants to pair me off with her son? She’s mentioned him quite a few times. I’ve told her I’m sort of taken. I don’t know anymore. Why am I asking you? I’m not. Forget it.

  6. I met her for dinner that first time. After we’d ordered a drink but before we’d ordered the food, she explained one of the practice rules of the Victorian Bar. It requires that where a barrister learns during a hearing from the client (or a witness called on the client’s behalf) that the client (or one of his witnesses) has lied to or misled the court, the barrister must then refuse to take any further part in the case unless the client authorizes him to inform the court of the lie.

  Our drinks had arrived. A waiter was hovering, waiting to take our food order, but Gina either didn’t see him or else ignored him.

  “That is the rule now and it was the rule then, at the time of Simon Heywood’s trial. I wanted the case. I was grateful to your father for recommending me to Simon, and I didn’t want to lose the brief or the case. I didn’t want to have to return the brief and let someone else take it. I’m not embarrassed to admit that a case like that was exactly what my career needed at the time.”

  Then she noticed the waiter and what sounded like the beginnings of a self-defense or self-apologia, a spirited off-the-cuff plea in mitigation of something she hadn’t yet decided to confess, not to me anyway, was put on hold.

  “Your father was an unconventional man. That’s part of what I liked about him.”

  “And part of what you didn’t?”

  “He crossed the line within his own profession. That was his prerogative.”

  “But you disapproved?”

  “I don’t know that it was my place to approve or disapprove.”

  “Maybe it wasn’t your place to disapprove of it professionally, but—”

  “Professionally, he was just a client’s psychiatrist. He wasn’t even a witness. He was never going to be.”

  “But personally?”

  “Personally? . . . Personally, your father was one of the finest men I’ve ever met.”

  “And he disappointed you by deceiving you about Simon, telling you that Simon had always had Anna’s permission to take Sam?”

  “No. First, as I think I’ve told you, he never said that.”

  “Maybe he didn’t actually say it, but he let you believe—”

  “Rachael, it wasn’t that; that wasn’t the problem. Hell, I knew, I mean I strongly suspected, that Simon had taken the little boy without permission.”

  “And you were insulted that my father could let you believe—”

  “No, no. He knew that I knew . . . or suspected.”

  “Suspected that you knew?”

  “Knew that I suspected. I couldn’t actually positively know or I’d have to give the case back. He knew that.”

  “So . . . I don’t get it. What was the problem?”

  “Anna,” she said, taking a sip of her drink.

  “What?”

  “Anna was the problem.”

  “Oh God! You’re not going to say what I think you’re going to say?”

  “I don’t know. What do you think I’m going to say?”

  “What do you mean, Anna was the problem?”

  “Alex, your father, and I had a tacit understanding.”

  “Gina, is this going to make me feel sick?”

  “Rachael, do you think I’m going to say something about your father’s sex life?”

  “Are you?”

  “No, of course not. Your father and I did not have that kind of tacit understanding. What I mean is that we both knew that I had a fair idea that Simon wasn’t telling me the truth and that whatever I might suspect, he, Alex, wasn’t ever to confirm it or I’d have to drop the case.”

  “Yes, okay, but what does this have to do with Anna, with my father and Anna?”

  “Alex had crossed the line with respect to Simon long before I was involved.”

  “Involved with my father?”

  “Involved in the case. You see, at first, it seemed just . . . I don’t know . . . diligence, no, more than that . . . a quite extraordinary dedication to his patient, a remarkable knowledge of him and a dangerous understanding of him.”

  “Dangerous?”

  “Rachael, maybe I’m being wise after the event or perhaps I’m not being wise and it’s just that he’s . . . your father isn’t here now to point it out.”

  “I’m not following you.”

  “You’re majoring in psychology, aren’t you?”

  “Trying to.”

  “What is it called when a patient shifts certain emotional reactions onto the therapist and—”

  “Transference.”

  “Yes, transference.”

  “Are you saying Simon experienced transference with respect to my father?”

  “I don’t know whether he did, but that’s not what I’m saying. I’m saying your . . . I’m saying Alex experienced a certain reverse transference with respect to Simon. Look, I’m a lawyer, not a psychiatrist or a psychologist, but your father’s capacity for empathy . . . Maybe it’s possible for a therapist, or anyone . . . to empathize too much.”

  “Let me make sure I’m understanding you. You’re saying Dad empathized with Simon to the point of identifying with him and, in some way, absorbed his obsession with Anna Geraghty?”

  “No, I’m not saying that. I’m not saying he empathized to the point of identifying with him, and I’m certainly not saying he shared or in any way took on Simon’s obsession with Anna.”

  “So, what are you saying about him . . . and Anna?”

  “When he socialized with Simon, when he went out for drinks with him, or walked with him, with him and Simon’s friend Angela—that was his business. It was unprofessional, contrary to his discipline, and he knew it, but that was his business. But when, after Simon’s arrest, he persisted in calling Anna, in trying to get her to tell the polic
e that Simon had her permission to take her son, that was my business.”

  “Why?”

  “He could have been charged with all sorts of things, attempting to pervert the course of justice, hell, anything. She could’ve sought a restraining order against him.”

  “But he wasn’t your client. Simon was.”

  “Rachael, I . . . I loved him.”

  “Did you?”

  “Oh yes. Of course I did. Didn’t you know that?”

  “I’d hoped you did.”

  “Wasn’t it clear from the journal, I mean? Didn’t he know? He would have—”

  “You had a conflict of interest.”

  “What? What do you mean? Why do you say that? Did he write that in the—?”

  “Simon’s interests and my dad’s interests; they weren’t the same.”

  “Well, yes, but . . . I don’t see what you’re getting at.”

  “It was in Simon’s interest to have my dad convince Anna to say whatever was necessary to get him, Simon, acquitted. It was in my father’s interest to have nothing to do with her or, at least, as little as possible. In advising them both you can’t—”

  “No, you’re wrong. First, it was in Simon’s interest not to have your father harassing—”

  “Harassing?”

  “Leaving himself open to allegations of harassment, intimidation of a witness. If the prosecution had any idea how many times Alex spoke to her or even how many times he tried to speak to her . . . leaving aside what it would have done to Alex in terms of criminal liability, in terms of his professional standing, it would have been disastrous for Simon’s case.”

  “Why?”

  “Because it would have looked to a jury like your father was doing exactly what he was doing—trying to get this woman to lie for a friend, a friend who’d once been a patient.”

  “But you’re saying she did lie.”

  “Well, not exactly.”

  “Gina, I don’t give a shit about the legal niceties. You knew what you knew, and I don’t care. I’m talking about my father.”

  “I’m talking about him too . . . and I never do anymore. I don’t know anyone who knew him.”

  “Anyone else.”

  “Else?”

  “I knew him. You know me.”