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.

George reacts to this. “It has to be more than plain error, Nathan. We’re referees, not players. We can’t advance our own arguments, unless ignoring them leads to a miscarriage of justice. That’s the standard we have to apply.”

“And how is it not a miscarriage of justice to convict four men when the whole case against them is inadmissible?”

George is somewhat surprised that Koll is so wedded to his argument. Often, he musters these arid academic displays to impress or belittle, then leaves them in the courtroom.

Summerset continues shaking his head. He was a famous soul singer who went to law school between tours, one night quarter at a time, so that he could manage his own career. When his star sank to the point that he was appearing only at outdoor summer festivals and high school reunions, he decided to capitalize on his remaining name recognition by running for judge in the hope of achieving a reliable income. The bar associations wrung their hands over a judicial candidate who sang one of his two big hits, “Made a Man for a Woman” and “Hurtin’ Heart,” at every campaign stop, but Summer’s performance on the bench has been solid. His elevation to the appellate court was a way to get him out of the one job he didn’t belong in—he was a poor manager as Presiding Judge of the torts trial division in the Superior Court. Here he is neither George’s most distinguished colleague nor his least. He continues to work hard and shows uncommon common sense, rendering sound, pragmatic interpretations of the law.

And the view he expresses several times now is that convicting these young men is far from unjust. Race, the perpetual theme song of American life, might be a factor in his evaluation, but George, who has sat with Purfoyle dozens of times, doubts that. Summer, much like George himself, usually sides with the prosecutors, except in clear cases of police misbehavior. Nathan duels with Summerset for some time, trying to nudge the facts with little hypothetical alterations into a shape allowing him to prevail, but increasingly he casts his dark, squinty look toward George, who obviously holds the deciding vote.

The person on the street might think judges are emperors who wave their scepters and do what they like, but in George’s experience, all of them attempt to apply the law. Words are sometimes as elusive as fish, and reasonable minds often differ on the meaning of cases and statutes, but it is still the actual language that has to guide a judge. George concentrates on the question: Is convicting these boys on the basis of a videotape that should not have been admitted “a miscarriage of justice”?

Incongruously, it is the tape itself that stands out in his mind as he endeavors to answer. Sapperstein’s arguments required George to view the video, locked in his inner chambers. Hard to shock when it comes to crime, George could stomach only a portion of it before assigning Banion to go through it frame by frame and produce a sterile description.

But the ten minutes or so George took in still reverberate. Mindy DeBoyer was a deadweight throughout, her limbs like wet laundry. The teased ribbons of her dark hair were conveniently pushed across her face, while her naked hips and one leg straddled the arm of a Chesterfield chair, as if the fully dressed upper body slumped on the cushion below—the head, the heart—did not exist. It was crime at its purest, in which empathy, that most fundamental aspect of human morality, evaporated and another being became only a target for untamed fantasy. The sexual acts were committed in emphatic plunging motions of pure aggression, and the way the boys exposed themselves to one another before and after, amid much wild hooting, could only be labeled depraved—not in any puritanical sense but because George sensed that these young men were dominated by impulses they would ordinarily have rejected. But if the purpose of the criminal law is to state emphatically that some behavior is beyond toleration, then this case surely requires that declaration.

“I’m afraid that I’m going to have to side with Summerset on this one,” he says. Koll makes a face. “Nathan, the defendants are entitled to be judged on what they argued, not what they didn’t. I will say, though, that Sapperstein’s claim about the statute of limitations has quite a bit of traction with me. Ms. DeBoyer knew she might have been raped but said nothing. How can we say the crime was concealed?”

“Because that was the trial judge’s conclusion,” answers Summer at once. “He saw the young woman testify. He felt that, given her age and inexperience, those boys kept her from knowing enough to report the crime. We have to defer to him.”

In George’s mind Sapperstein has made his most telling argument on this point, contending that the trial judge’s reliance on Mindy’s age means he was essentially applying an exception to the statute of limitations for crimes committed against minors. In such a case, the victim has a year from her eighteenth birthday to report the offense. But Mindy was three months past nineteen when the tape came to light.

Much as Koll turned to him a moment before, George now looks at Nathan.

“I’m afraid that I’m going to have to side with Summerset on this one,” Koll answers, echoing George’s precise words. Tit for tat. So much for the majesty of the law.

George ponders where they are. Three judges and three different opinions in a case that is already highly controversial. As the senior, George is supposed to fashion a compromise that will not lead the court into ridicule. A reversal, with no agreement why, will only fan the flames in Glen Brae. More important, their job is to declare the law, not hold up their palms and say to the world ‘Who knows?’ Accordingly, he decides to write the opinion himself. Years ago, before Rusty Sabich became Chief Judge, when the appellate court was a retirement camp for able party loyalists, opinions were assigned in advance by rotation, and dissents were all but forbidden. In practice, appeals were argued to a court of one, with the lawyers standing at the podium engaged in a legal shell game, attempting to guess which of the three judges was actually deciding the case.

“I’ll take this one,” he says, and with that stands, calling the conference to a close.

Nettled as always when he does not get his way, Koll directs a heavy look at George.

“And are we affirming or reversing?”

“Well, Nathan, you’ll have to read my draft. I’ll circulate it within the week.” Koll will write his own opinion anyway, a concurrence or a dissent, depending on which way George goes. “This case is—” says Judge Mason and stops cold. He still has no idea how he is going to vote, which argument he’ll champion and which he’ll reject. Decisiveness is a job requirement and one at which he normally excels. His continuing discomfort with People v. Warnovits remains troubling but suddenly not as much as what he was on the verge of blurting out. He has no clue even what the words could mean, but he was ready to tell his two colleagues, ‘This case is me.’