But Warnovits is one of them, where neither the words of the legislature nor prior decisions will yield a sure answer. Ugly as the crime was, these boys were prosecuted later than the law normally allows. The trial judge- Farrell Kirk, no Cardozo but a reasonable guy-made a fair reading of the concealment provision and a balanced assessment of the testimony, and Sapperstein is equally right that, in doing so, Kirk basically erased the neat boundaries the legislators had drawn on how long a victim’s age could lawfully prolong the time to indictment. With the arguments essentially even, the truth is that the law in this case will be whatever George Mason says it is. And right now the best he can do is flip a coin. He actually removes a quarter from his pocket and sets it on the counter beside the drafts. Even to Patrice, he has never admitted that in the last nine and a half years he has decided two cases this way, albeit tiny civil matters in which the decisional law was a hopeless mess.
He is still staring at the coin when Patrice wanders in, drawing her hands down her face to drain off the sleep. By reflex, she moves forward to kiss him in greeting, then thinks better of that. She’ll be minimally radioactive until early Sunday.
“Wow,” she says, focusing on him. “What did the bartender say when the horse came into the tavern?”
He smiles wanly at the old joke: Why the long face?
“Nay,” he says, “nay, not that one.”
He gets a simpering grin before Patrice goes to the fridge for a bottle of water. Her back is still to him when he asks, “What would you say if I didn’t run for retention?”
“What?”
“I’ve actually been thinking about it. I could work less and make twice as much money. We could travel.”
She has finally completed her slow turn.
“George, you love this job. You’ve always loved this job. How can you even possibly consider that? What’s changed?”
He lifts his hands. She watches him without much charity. If he has one lasting lament in their marriage, it’s the way Patrice can go cold at the core. Her father, Hugo Levi, was a morose son of a bitch, a lawyer by training who went into the packaging business. He had his own sad history-a mother dead before he was five-but he punished his family by often growing stonily remote and in those moods voicing heartless judgments. Having come of age in the Old South, George has probably fought no biblical notion harder than the idea that the sins of the father are destined to be punished for generations. He despised the suggestion that a free human being should simply yield to fate and, worse, the idea that he could not be freed from the effects of what he despised. But he’s at an age when he’s come to recognize the scripture’s wisdom. Patrice yearned for the embrace of this hard man and in so doing took a slice of him into herself. She’s never had a gentle way of expressing her disappointments. And she’s clearly disappointed now.
“Look, mate.” She leans over the counter so she is beside him, closer than she’s been for days. “I want to say something to you. I’ve tried not to, but you have to hear this: Stop being scared. I can see it on you, George. You’re scared. And it bothers the hell out of me. I look at you, and I think, What have the doctors told him they haven’t told me? You’re making this a lot worse than it has to be. It’s hard enough to handle myself. I can’t handle you too. You can have your eleventh midlife crisis on your own time. But it’s my time now.”
“Patrice-”
His wife leaves the kitchen, looking back to speak just one word more: “No.”
12
George has been at his desk for only a few minutes on Monday morning when Dineesha enters from the reception area. She leaves the door ajar, addressing the judge in formal timbre.
“Your Honor, Judge Koll was hoping you might have a minute for him. He’s right outside.”
“Crap,” George mouths. Nine A.M. and Nathan has already come to demand the draft of the Warnovits opinion. He can’t bear to wait any longer to see the target he’ll be shooting at in his dissent.
“Nathan!” George cries, hail fellow well met, as he strides out.
On the green sofa beside Abel Birtz, Koll is drawn into himself like a molting bird, his dark face screwed up in a stormy look. He’s come down without his suit coat, and his white shirt looks as if it should have seen the laundry three wearings ago, wrinkled like a discarded lunch bag.
“I need to speak with you,” he says and charges past George into his inner chambers. “Look at this!” He reaches into his shirt pocket. “Look at this, for Chrissake.”
Nathan has withdrawn an envelope, from which he next removes a single sheet, the lower half stained brown.
“It was in the morning mail.”
After the first glance, George places the paper on his desk to avoid handling it further. It’s a printout of one of the bounced e-mails George received: “You’ll bleed.” That, George realizes, accounts for the irregular blot on the bottom half. Dried blood.
“Have you contacted Marina, Nathan?”
“Well, I thought I’d give you a chance to explain, George. I can’t imagine what you were doing sending that kind of message to anyone.”
George calls out to Dineesha to summon Court Security, then explains the situation to Koll.
“Oh my God,” he says several times. “You must be jumping out of your skin. I heard there was something unsettling going on. I had no idea it had reached this level.”
“ ‘Heard something,’ Nathan?”
“You know the clerks gossip. One of them mentioned that you’d been getting annoying e-mails. I thought that meant spam. Not death threats. Good Lord! No wonder you’re hesitant to run again.”
In other circumstances, George might take the last remark as tactical, designed to smoke out his intentions, but Koll looks completely unstrung. He’s slumped in one of the wooden chairs in front of George’s desk, and there’s a rill of sweat next to his overgrown sideburn. What could be harder on a paranoid than real enemies? Because it’s Koll, George cannot shutter a ray of competitive joy. Even in his worst instants, he hasn’t been this frightened. Not yet.
“Frankly, Nathan, I think it’s all hot air.”
“And why’s that?”
George’s reasoning that a real assault would not come with so many warnings does nothing to comfort Koll.
“You’re trying to mind-read a lunatic.” He twists about in the chair, too agitated to find a comfortable position. “But why am I part of this now? That’s what I’m trying to figure out.” Being himself, Nathan shows no reluctance about wishing upon George solitary misfortune. “Is it our rape case? All the publicity about it?”
That makes no sense to either judge when they discuss it. Their decision in Warnovits is unknown, even to them, let alone to the passionate partisans on both sides of the case. And George was getting these e-mails long before the oral argument, which was the first occasion their roles in the case became public. The identities of the judges on the panels are among the court’s more closely guarded secrets in order to prevent lawyers from basing their oral arguments on the prior opinions of the sitting judges instead of relying on the larger body of court precedents.
“I thought Warnovits was why you were here, Nathan. To get my draft. I’m going to need a few more days. Frankly, I’m trying to figure out how to come up with a real majority. We can’t send this thing out into the world with three judges saying three different things. I’ve been giving some thought to joining you and letting your draft on the inadmissibility of the tape become the opinion for the court.”
In practical terms, this resolution has many virtues, springing from the scenario Rusty played out last week. Some of the young defendants-perhaps all but Warnovits-would plea-bargain to eavesdropping in exchange for their testimony about the rape. They would end up with lighter sentences than the minimum-mandatory six years imposed for the sexual assault, which is a suitable outcome in George’s mind, given the otherwise admirable lives
