Indefensible (15 page)

“What do you want from me?” I say while he smiles at me bitterly.

“Dismiss it. Go after Mashburn and his buddies with both barrels. Mashburn is the new up-and-comer. He's expanding his turf, diversifying his product line. Convict some criminals for a change, and stop picking on the victims.”

I'm stunned by his audacity. “Counselor Vance, if you object to the current state of the law, then go get your self-righteous ass elected to something and change it, but don't come in here blaming me for the way it is. Because the way it is, is the way it is.” I glare at him a moment, then shout, “Now get the hell out.”

“Sure, Nick, but tell me, are you going to have Tamika's three little girls over to your house on Thanksgiving for the next ten years?”

My office door is open, and people are looking in. Tina appears, which works in Kendall's favor if he can get her rattled. He says, “Tina, come on in. We're just discussing Tamika Curtis and her boss, or should I say her slave master, Percy Mashburn. Tell me, which of them do you think is more evil?”

“You want security?” Tina asks me, ignoring Kendall.

“Just leave, Kendall.”

“Or why not spend time looking for the kids who've disappeared from Rivertown?” he says. “Prosecute some perps for a change, and leave the victims alone.”

“Oh, for Christ's sake, Kendall—”

Kendall's cell phone rings. He looks at it and steps out of the office.

Janice buzzes me. “Agent d'Villafranca for you, Nick.”

I pick up.

“We've got Scud,” Chip says. “Picked him up at home, everything smooth.”

“At home? Was he alone?”

“The boy was there, but lucky the mother showed up so we didn't have to call Family Services.”

“Yeah, lucky.”

If I'd known they were taking him at home, I'd have nixed it. The kid seemed fragile: something about the lip scar and the two-tone iris.

“Do you want to come over?” Chip asks.

I do want to go over. Not that there's any official reason for me to be there; I just want to stick my face in front of Scud's homicidal, soon-to-be-convicted—hopefully condemned—smirk and gloat. “I'm on my way, Chip. Do you think he might spill?”

“I think he might.”

At the elevators, I find Kendall on his phone, facing into the corner with a hand over his other ear. He's talking quietly, but now he raises his voice. “NO!” he shouts. “Don't say a goddamn thing before I get there.”

•  •  •

On my way over to the FBI building, there's a bobble in the satisfaction I feel at finally having Scud Illman behind bars. It is Kendall's rant about Percy Mashburn. We don't have much info on him yet, but Mashburn's name has come up a lot, and I wonder if Kendall knows a few things about him. Mashburn might be the one to watch. As for Tamika Curtis, of course she's more victim than perpetrator, but she was involved in the meth lab, Mashburn offered her up to us, the FBI cut the deal, and the whole thing landed in a nicely wrapped package on my desk. Congress writes the law, not me and certainly not Kendall. I just enforce.

At the FBI, I find Chip watching as Scud Illman is booked. Scud doesn't seem so cocky anymore. Standing for his photograph and holding up the booking number, he is ashen and his hands tremble. What Scud knows, and what we know, is that he will never again draw breath as a free man. He's wearing a pullover with the sleeves pushed up above the elbows, and on his left forearm, I see the greenish-black tattoo of a dagger with curlicues around the hilt and drops of blood coming off the blade. It's the kind of thing tough guys get when they want a tat but don't have anything to say about themselves or about the world. There are lots of daggers, and mostly, you see them on the left forearm, meaning the guy did it himself out of boredom and in some sad attempt to ink over the niggling realization of his own smallness.

B
eyond the last row of seats, the back wall of the lecture hall bends around us like a peach-colored sunset. “I'll teach a course someday,” I blurt.

“Absolutely,” Kendall says. “The opportunity to give back and to sharpen your mind . . .”

I am pleasantly annoyed by Kendall. He has such an exaggerated sense of altitude on his moral hillock. He talks, and I tune out whatever the hell he's talking about. The class is a law school requirement established in the wake of  Watergate, when every lawyer from Nixon on down turned out to be a crumb-bum.

The students come in and Kendall introduces me. I begin my talk with a description of the U.S. attorney's office and its workings. I mention a few interesting cases; I talk about a prosecutor's obligation to society. Kendall gives me a few minutes, then he interrupts: “This being a class on professional ethics,” he says, “maybe you could talk about the ethical dilemmas you face.”

“Prosecution is luxurious,” I answer. “Unlike defense, where every defendant gets a lawyer, I only prosecute those I believe are guilty beyond a reasonable doubt. And Mr. Vance's claims notwithstanding, we don't prosecute the innocent.”

“So there are no ethical dilemmas?” Kendall asks.

“No dilemmas like representing guilty and dangerous defendants.”

“You dodge. Are there ethical dilemmas in prosecution?”

“No,” I say, “no ethical dilemmas. We go where evidence directs, prosecute those we believe are guilty.”

I know what Kendall wants; he wants me to pull a chair around backward, sit astride it, and confess my guts out. He wants to hear that I feel anguish over putting people in prison.

Kendall Vance, being a well-known defense lawyer, gets profiled in the paper sometimes. I've learned things about him. I've learned that he hates prosecutors; that he has a vendetta, because twenty-plus years ago, my employer, the DOJ, indicted Kendall's father on charges of fraud, racketeering, and tax evasion. “My father didn't have a dishonest bone in his body,” Kendall was quoted as saying. But to fight it would have cost Kendall's father a fortune, and if he lost, he risked many years in prison. So Vance Sr. took the government's offer: He paid hefty fines, returned some government grants, and paid back-taxes. No prison. But the damage was done, and Vance Sr. suffered the demise of his health, his good name, and his liquidity. At age fifty-nine, with no other risk factors, he died of a stroke. And Kendall, who otherwise might have become a holier-than-thou, moralizing, humorless, ramrod-in-the-butt prosecutor, broke from his social stereotype and became a moralizing, humorless, ramrod-in-the-butt defense attorney. A true believer, the kind who, like I say, will take tens of thousands in legal fees for keeping some scum-sucking sociopath out of prison, then strain a shoulder patting himself on the back for upholding the Constitution.

Now Kendall wants to hear me confess to the anguish of prosecuting (or persecuting) all those defendants who really meant no harm. But I have nothing to confess, because the truth is, innocent defendants are rarer than, well, yellow rails. And what other source of moral anguish could there be?

“What about laws you don't agree with?” a student asks. She is sitting forward in her seat, dark hair in a long ponytail, wearing an earth-toned T-shirt with a logo I can't read but which I bet is for some environmental cause. I hadn't really noticed the students until now, but as I make eye contact with this assertive young lefty, the undifferentiated mass becomes differentiated. I do a quick scan. Men and women—some young, some less so. I find myself equating all the women to versions of Lizzy or Flora or Cassandra. For the men, there are Zander and Kenny and the imaginary grown-up Toby, my son.

“Laws are laws,” I say, “there is nothing to agree or disagree with.”

“But can't you imagine some law you'd have trouble—”

“If you wish to make law,” I say, “go into politics.”

“Blind obedience,” someone calls out, and I reply, “Overstated. Most prosecutions are clear-cut: murder, robbery, extortion, exploitation, fraud, trade in endangered species. You want to take issue with any of those? And if, once in a blue moon, I have to suspend some moral position, and I'm not saying I do, then it's just the price of my privilege to represent all the laws I believe in.”

“
Sieg heil!  
” This time it is a male voice. I ignore him, but the guy goes on. “Because if you willy-nilly prosecute everyone—”

“I don't willy-nilly prosecute anyone.”

“Do you believe in mandatory minimum sentencing?”

“My personal beliefs aren't at issue.”

“Moral abdication,” the guy says.

“Well,” I say, “I guess you can call it what you like.”

“What do you call it?” a different voice asks, and I'm about to answer testily that I call it my job, but I catch myself. The students are having fun. I used to like this stuff, but now the questioners just seem naive, and the whole discussion amounts to nothing more than farting in a mitten while there is real-life shit going on in the world. I'm fed up with the snail's pace of this prosecution, and with the timidity of do-nothings like Judge Two Rivers. I scan the students. They are all Zanders and Cassandras, eager to live their lives. They want sunny beaches and red wine and good sex and children and dogs and soft cheese and sleepy Saturday mornings. They want to write letters to the editor and to see them in print, they want to ski at Steamboat, cruise to the Galápagos, make their parents proud, get old. Maybe they want to see a yellow rail. And what do I want? At this moment I want to kill Scud Illman. I think of a death sentence recounted by Dickens—drawing and quartering a prisoner, then eviscerating him and dropping his entrails in the fire.

But there is a question in the air, and I'm expected to address it:
What do you call it?
someone asked.
It.
That endless stream of statutory language, the criminal code of the United States, pattering into our lives as ignorable and continuous as rain on a metal roof. I see Kendall Vance watching me, amused at my silence, because he's a courtroom lawyer and a teacher and an ex–Navy SEAL. And here's me, hapless administrator, proxy for the big bad feds who did Kendall's daddy wrong. I want to say to him,
Let's have it out. You and me. Right here in class.
Proxy to proxy, because if I'm the United States, then Kendall is Scud Illman. The oddsmakers would favor Kendall a thousand to one, because he's probably killed men with his bare hands. He's trained for it: where to jab, squeeze, twist. But at this moment, with a roomful of Zanders and Cassandras, I believe I could come at him like a beast unhinged, a blur, all murderous parts cut loose from reason. And I just might win.

Cut loose from reason.

“The law,” I say to the class, and I have to stop and take a deep breath to steady a catch in my voice. “The law is reason. Reason! It is the reins of reason on the horse of emotion. Think about it.”

Discussion proceeds. My wave of emotion subsides, and I am again the dispassionate prosecutor. Law
is
the reins of reason. Without it, we would all be vigilantes or victims.

The focus shifts to Kendall. There is one question that defense lawyers always get asked. It comes in a thousand forms and all levels of sophistication. Grade-schoolers ask it and Supreme Court justices ask it:
How can you defend those people?
The discussion bounces around for several minutes, becoming more and more focused, until one student hones it to its essence. He asks Kendall, “Are you ever tempted to do less than your best? To throw the case?”

The question is repulsive to Kendall, and I fear for the student who asked it. He has asked the commando whether treason is a viable option. But commando Kendall maintains his cool. What Kendall says, his voice tense with emotion, is this: “I don't defend criminals, I defend principles. To defy those principles, to turn
traitor on a defendant, would violate everything I believe in. I'd rather die.”

The conversation moves off this point, and though we transition into a discussion about grand juries and indictments, I'm still thinking through the positions Kendall and I have staked out. To me, a prosecutor, the greatest sin is a failure of objectivity; to Kendall, a defense attorney, the biggest sin is a failure of loyalty.

W
ednesday. It's a teachers' in-service day, so the schools are closed. Lizzy is camped out in my office again, surrounded by the paraphernalia of her teenhood. “Go visit Kenny,” I say. “I need to make some calls.”

I call Hollis Phippin. “We've made an arrest. Scud Illman, the suspect I told you about. We took him yesterday.”

“How does it look?” Hollis asks. His diction is razor-sharp. This is the third time we've spoken, and I'm still surprised by how firm his voice is. I expect to hear grief on the surface just as, when I met him at Zander's memorial, I expected a graying wreck of a man leaning heavily on a cane. He was none of that. He remained stoically at the side of his devastated wife, receiving sympathies, giving quiet instructions to the caterers.

“It looks very good,” I tell Hollis. I brief him on the evidence, keeping the doubt to myself, but he spots it.

“Sounds thin,” he says.

“It is. But it's early. We'll convict him, Hollis, you'll see.”

Hollis is right, though. The case isn't clear-cut, and unless we come up with more physical evidence, it relies too heavily on the Bureau's ability to put together a show of Mob involvement. Unfortunately, our best case against Scud isn't for Zander's murder, it's for Seth Coen's murder. But as of yesterday, when I saw that tattoo of a dagger on Scud's arm, I've begun to think our best evidence, the bloody rag, is no evidence at all.

When I hang up, I decide to go and resolve what's bothering me. Lizzy and I drive to the FBI building, and Chip meets us at security and takes us into his office. The place is just like the U.S. attorney's offices. Special agents are in the windowed offices, support staff in
cubicles. We leave Lizzy in the office, and Chip walks me down to the evidence room in the basement. I sign the required registers, then a couple of minutes later, I'm holding a plastic bag marked with identifying notations. Inside is a dirty, crumpled rag spattered with Seth Coen's blood.