While driving home from the country, Blackstone dialed Vinnie on the phone but only got her voice mail. He called her cell phone and got the same. After her bubbly voice message he left his own message.
“Sorry we’re missing each other. Let’s get together. Right now I’m getting ready for oral argument tomorrow. I’ll let you know how it goes.”
He usually made a point of inviting clients to attend the oral arguments. In this case, though, he figured that Vinnie wouldn’t want to come. Besides, the argument would be highly technical and procedural.
Blackstone pulled into his parking spot and trudged up to his condo.
He kicked off his boots, turned the ringer off on his phone, and then spread out the file at his work table—with photocopies of cases, his argument outline, and the rest in front of him.
Blackstone would spend the rest of that day and through the night, preparing. He would take a few breaks to grab microwave food from the freezer or to make some reps on his Nautilus equipment to work up a sweat and refocus his mind.
He wouldn’t sleep, or even try to, that night. He would save that for after his arguments before the Court of Appeals. He knew all the traditional physiological rules, and how maximizing physical rest and lowering stress increases human performance. But he rationalized his brutal approach to preparation this way: Those rules, he would say to himself, don’t apply to a guy with a sleep disorder.
But just as quickly as he would tell himself that, he would then follow it up with another question: Sleep disorder—is that really what my problem is?
By the time the early light started streaming through the shutters of his study the next morning, he felt he had maxed out his preparation on the case. His multidisk CD player was halfway through the Suite in F-sharp by Ernst von Dohnanyi, the Hungarian composer, when he walked over to it and turned it off.
“Why couldn’t Mom have named me after a decent Hungarian composer?” he asked out loud with a smirk. “Like Liszt? Or Bartok?”
Then he took a shower, donned his dark suit and tie, gathered up his file and argument notebook, and headed out. He drove to the federal courthouse off Constitution Avenue, in the Federal Triangle area of downtown Washington. He parked his car and walked at a fast clip over to the courthouse. His case was scheduled to be the first one to be argued that morning.
At the corner of 3rd and Constitution he stopped, just momentarily, before a bronze statue, now green with tarnished age, of the English jurist Sir William Blackstone. He stared at the image of the man in the long, flowing judge’s wig and cape, clasping a law book.
J.D. Blackstone gave the statue a modified salute and then hurried over to the front doors of the courthouse, where he went through the metal detectors, went up to the clerk’s office to sign in, and then headed to the courtroom.
Henry Hartz, flanked by one of his Assistant U.S. Attorneys and another man in a suit, was already in the courtroom, standing at the government’s table.
The courtroom was already filled with news reporters, some court personnel who were curious, and members of the public.
Blackstone went over to shake Hartz’s hand. Hartz shook hands coldly, and then introduced the Junior Assistant U.S. Attorney with him.
Then Blackstone glanced over at the other man in the suit next to Henry Hartz who had not been introduced. He was a handsome man, in his late thirties, and Blackstone thought he carried himself like a police officer, but wasn’t sure.
“This is Detective Victor Cheski,” Hartz announced casually, introducing the man to Blackstone. “As you know, he is our lead investigator on this case.”
Blackstone reached over and shook hands with him, and Cheski gave him a firm handshake and a confident smile. Then the lawyer strode over to the defense table, where he laid down his argument notebook, a copy of the appendix of materials from the court docket in his case, and a blank notepad.
Suddenly he was aware of someone standing next to him.
He looked up, and to his surprise it was Vinnie Archmont, smiling. She was leaning over the defense table with her hand on his file.
“Just wanted to wish you luck—but I really don’t think you’ll need it,” she purred quietly. “Thanks for being my hero on this.”
He smiled back and reminded her that in appeals cases the clients had to sit in the audience section.
She nodded and then made her way back to her seat in the crowded courtroom. Blackstone thought it was a little strange that Vinnie had chosen to attend the oral arguments, particularly because her modus operandi thus far had been to distance herself as much as possible from the criminal case against her. But he didn’t have time to focus on that.
The bailiff called out for the courtroom to rise. In a loud shuffle of feet every one stood up quickly.
Three black-robed federal appellate judges entered from behind the bench and took their seats. On the right was an elderly male judge, nearly bald, with glasses, and on the left a younger judge, also a man. In the center, acting as chief judge, was Judge Susan Lowry, in her fifties, peering over her reading glasses.
“Appearances, please,” the clerk called out.
“Henry Hartz, AUSA, for the United States Government,” Hartz said.
“J.D. Blackstone, for the defense,” Blackstone said.
“Very well,” Judge Lowry said, “are counsel ready to proceed?”
They both indicated they were.
Blackstone strode up to the podium first. The little light on the podium was green. He had alerted the clerk that morning that he would be reserving a substantial amount of time for rebuttal, so his opening would be short and concise.
He began to recite to the three-judge panel the procedural status of the case and then went into the core elements of the written indictment against his client. That is when the older judge interrupted him.
“Counsel,” the judge said, “what is the relevance of the Horace Langley note to the criminal elements of this case as outlined in the indictment?”
“As I indicated to the trial judge during motions,” Blackstone said, “the note goes to motive for the crime.”
“And the trial judge rejected that argument, correct?”
“Yes,” Blackstone said with a smile, “an error that I am hoping Your Honors, in your collective wisdom, will soon correct.”
The other two judges chuckled, but the older judge did not.
“But why is this note necessarily relevant to motive?” the older judge said, pressing in. “All three of us have looked at the note that was submitted with the record in this case under seal. Frankly, while I will not disclose what is actually in that note, of course—and all the parties have agreed that it bears the handwriting of Horace Langley, the late Secretary of the Smithsonian Institution—nevertheless I will say that it seems to reveal nothing, at least on the surface, that would describe who may have killed Secretary Langley, or why.”
“With all due respect,” Blackstone shot back, “while I agree with you, Your Honor, that the note, superficially, does not answer the who question, it may well answer the why question. And as you know, Your Honor, from your experience yourself as a former prosecutor, once you answer the why question, then the ‘who’ in the ‘who-done-it’ often follows very quickly.”
“But counsel,” the younger male judge asked, “that could be said of anything in any file of any federal prosecutor. Is that all it takes? For a defense lawyer to speculate wildly about how this document or that might possibly reveal motive behind a crime and thereby supposedly exonerate the defendant? That would mean that the government would then have to open all of its files, willy-nilly, for every defense lawyer in every federal criminal case—based merely on the speculative fancies of creative defense lawyers. Is that your understanding of what the law is?”
Blackstone had expected that noose to be slipped around his neck during argument. He knew it would come. But somehow, it always surprised him how uncomfortable it felt when a noose started tightening.
“No, Your Honor,” Blackstone admitted. “That is certainly not the legal standard. The criminal law of procedure is fairly well established—discovery permitted to defense counsel is carefully restricted and very limited. I concede that. But this case is different.”
“Why?” the older judge shot back. “The trial judge has permitted you to see the note—correct? You are lead counsel for the defendant, right? You’ve had the benefit of looking at it. Surely, if you saw something in this very strange, and to my mind, indecipherable note that bore any relevance to the crime that was committed, I am assuming you would have brought it to the district judge’s attention—or brought it to our attention here in the Court of Appeals, right? But you didn’t.”
“That is correct, Your Honor,” Blackstone said, struggling to keep the door open for his point. “But when I said this case is different, you have just made my case for me on that. This case against Vinnie Archmont is different precisely because the trial judge let me see the note—and as you yourself indicated, Your Honor, this is one ‘strange note.’ Frankly, I am unable on my own to fully understand it. That is why I need to be able to have experts evaluate its contents, its meaning, and its relevance to those who obviously not only wanted Horace Langley dead, but also wanted possession of the John Wilkes Booth diary pages. And the note that Mr. Langley wrote that appears to be a transcription of at least one part of that diary.”
“So,” the younger judge said, “are you saying that if the trial judge had not, in the first place, permitted you to have this expert document examiner of yours, Dr. Coglin, examine the notepad and reconstruct this note that Langley wrote from the indentations on the notepad—if the judge had ruled otherwise, then you wouldn’t have known what the note said, and you wouldn’t be here arguing for a wider distribution of this note, is that correct?”
“Yes, that’s correct,” Blackstone said, “and then again, if all the inkwells of all the Founding Fathers had run dry in 1776, then maybe they wouldn’t have signed the Declaration of Independence either. Speculation on ‘what might have been’ litters the books on the shelves of a thousand libraries, Your Honor. But one thing here is not speculation—my client is charged with murder, and the government will be seeking the death penalty if Vinnie Archmont is convicted. Those two things are certain. But if I cannot have my experts analyze the wording in that note, then there is a chance that the wrong person may be marched down to the death chamber.”
When Blackstone studied the faces of the judges, he saw that he had made no points with the older judge and the younger judge was blank-faced. In the middle, Judge Lowry had a look on her face, but it was one J.D. Blackstone simply could not interpret.
And that did not give him any optimism as the light on the podium turned red and he abdicated it to Henry Hartz, who strode up to it, leaning on his cane, with a self-assured smile on his face.