monument. “Rusty, I’ve disregarded your views for thirty years. It’s force of habit by now.”
They both smile.
“It’s a hard case, Rusty. I’m having a lot of trouble with it.”
“Going back and forth?”
He isn’t going anywhere. After the memories of yesterday, he is unwilling even to approach a decision until he is more settled with himself.
“How is Patrice?” the Chief Judge then asks. George decides that this is not a non sequitur. It’s how Rusty is explaining things to himself. Patrice is sick. George’s trolley is a little off the tracks. And he might be right. George gives a brief medical update. The doctor said this morning that he expects to discharge Patrice tonight.
“Great, great,” says Rusty, then the two men, now seated next to each other on the locker-room bench, subside to a silence in which Warnovits somehow remains the subject.
“Rusty,” George eventually asks, “is a judge disqualified if something in a case reminds him of himself?”
Only after speaking does George realize how loaded the question is. Rusty at moments must see his own reflection in the face of every soul accused.
“They’re supposed to remind us of ourselves, aren’t they, George? Isn’t that a quality of mercy?” The Chief stands then, offering his hand as a token of reassurance. “You kicked my butt,” he says.
“I sure did.”
“And whatever you do on that case will be the right thing.”
George shakes his head, unconvinced. “It’s just-” he says.
“What?”
“Don’t you wonder sometimes?”
“What?”
When George finishes, he can see from the abrupt darkening of Rusty’s eyes that he has said the most upsetting thing yet.
“Who are we?” George has asked his friend. “Who are we to judge?”
8
“Koll’s clerk told me we got the Warnovits opinion,” says Cassandra Oakey, sweeping into the judge’s large inner chambers moments after George arrives Thursday morning. “So what’s the deal?”
“The deal?”
“Well, what are we doing with the case? I checked with John. You haven’t assigned either one of us to start a draft. Term ends in two weeks.”
Cassie is the judge’s rotating law clerk. The other position, held by John Banion, is permanent, but Cassie’s job is filled annually by a graduating law student. Two weeks hence, a law reviewer from Northwestern will start, and after training him for ten days, Cassie will begin work for a foundation that represents indigent immigrants. She is destined for great things in the law, but the judge cannot say he’ll be sad to see her go. He has known Cassie, the daughter of Harrison Oakey, one of George’s former law partners and dearest friends, since she was kicking in her mother’s belly, and for her sake he set aside his standard reservations about hiring someone so close. Many of his colleagues do it, and Cassie was amply qualified. She was a standout law student who actually flattered George by accepting his clerkship over another she’d been offered in federal court. Her research and writing have proven to be flawless.
But Cassie is one of those roundly gifted people-brilliant, a former tennis star, a tall, striking ash blond-whom the world has rebuffed so infrequently that she has learned virtually nothing about boundaries. She speaks out of turn and without thinking-often with a regal air, as if it were she who’s on the bench. She charges into the judge’s private chambers without knocking, as she has just done, and despite frequent corrections, still calls him George in front of others, a liberty even Dineesha no longer permits herself. Now and then, George feels like a lion tamer who needs to grab a chair to keep Cassie at bay.
“I mean,” she says, stepping closer to the judge’s large desk, “we’re affirming, right?” To Cassie, a young woman of her times, the case is open and shut. When he hesitates, his clerk’s mouth droops open a bit. “Shut up! You’re not going with Koll, are you? About the tape being inadmissible? That’s totally whacked, right? We can’t consider new issues now.”
“I’m still turning some things over in my mind, Cassie.”
“Really? Like what?”
Lord God of mercy, he thinks. Less than four weeks.
“The statute of limitations bothers me. I’ve read it over thirty times. It says that if the defendants engage in acts of concealment, the statute’s time limit is suspended, quote, ‘during such period that those acts prevent the crime from being known.’ Unquote. But this young woman told her best friend she might have been raped.”
“I thought the trial judge said she was too young to know enough to go to the cops.”
“That’s what he said. But Sapperstein has a point. The legislature created another limitations exception to deal with crimes against minors, but it doesn’t last forever. Once you’re eighteen, and presumably old enough to understand the ways of the world, you have a year to go to the authorities. Mindy DeBoyer didn’t do that. Is it right to allow the trial judge to rely on her age to extend the statute longer than the exception for crimes against minors allows?”
“Oh,” Cassie says. Apparently she has no quick rejoinder. “Well, should I do two drafts? One affirming, one reversing on limitations grounds?”
“John wrote the bench memo, Cassie.” Ordinarily the clerk who prepares the case for oral argument drafts the judge’s opinion. For Warnovits, besides summarizing the tape, Banion had done the extra research George requested about the statute of limitations.
“John said he didn’t care. I’ve got a little more time right now.”
Cassie is not democratic-she always wants the most interesting work. Banion must be nettled, but he is uncomplaining by character. Nonetheless, the judge has struggled for months to make sure Cassie doesn’t run over John and says that he will discuss all this with Banion first.
Cassie nods but stands her ground, her full face still clouded beneath the bangs of her blunt Dutch boy hairdo.
“Can I say something?” she asks and predictably does not await an answer. “I really don’t understand how you can just let these guys go. They’ve had every break in life. They don’t deserve one more.”
“It’s not a matter of what they deserve. People get away with things all the time, Cassie. The law can’t dispense justice to every guilty person.”
“But the law’s not supposed to favor that, is it?”
“Then why do we require proof beyond a reasonable doubt? Why is there a statute of limitations?”
“If you ask me, I don’t think there should be. Not when there’s a videotape.”
“First of all, I’m not the legislature.”
She repeats the last four words with him. Apparently he has worn out the grooves on that one in the last year. He knows from Cassie’s prior comments that she finds it a bit cowardly to hide behind the state lawmakers. And she’s right that at times such claims sound like a judicial version of ‘I’m only following orders.’ But to George, nothing about judging is more important than refusing to be a law unto yourself.
“And second,” he continues, “the law for centuries has made a judgment that, after a certain amount of time, every bad guy, except for a murderer, is entitled to go on with his life and not dwell in the shadow of past mistakes. Imagine that the videotape had turned up forty years later instead of four,” he says. The example comes to him instantly, the reason so obvious that he’s surprised his voice emerged without a telltale quiver. “The way the trial judge read the concealment provision, the defendants could still be prosecuted decades from now. Would you like to see them in court then?”
“You mean when they’re all old men?”
“Let’s be delicate”-George smiles-“and say middle-aged. But if you don’t want the concealment provision to
