to win. There’s no reason to panic. It does not matter how big the DA’s team is, it doesn’t matter how strong the DA’s case looks, or how confident Logiudice seems. We are not outgunned. We do need to stay cool. And if we do, we have everything we need to win. Now, do you believe that?”
“I don’t know. Not really, I guess.”
“Well, I’m telling you it’s true.”
Jacob’s eyes dropped to his lap.
A microexpression, a disappointed pucker, fluttered across Jonathan’s face.
So much for the pep talk.
Giving up, he slipped on his half-moon glasses and paged through the papers in front of him, mostly photocopies of police reports and the “statement of the case” filed by Logiudice, which laid out the essentials of the government’s evidence. Without his jacket, wearing the same black turtleneck he’d worn in court, Jonathan’s shoulders looked slight and bony.
“The theory,” he said, “seems to be that Ben Rifkin was bullying you, therefore you got a knife and, when the opportunity presented itself or perhaps when the victim bullied you one time too many, you took your revenge. There don’t seem to be any direct witnesses. A woman who was walking in Cold Spring Park places you in the area that morning. Another walker in the park heard the victim cry out, ‘Stop, you’re hurting me,’ but she didn’t actually see anything. And a fellow student-that’s Logiudice’s phrase, a fellow student — alleges you had a knife. That fellow student is not named in the reports I have here. Jacob, any idea who that is?”
“It’s Derek. Derek Yoo.”
“Why do you say that?”
“He said the same thing on Facebook. He’s been saying it for a while.”
Jonathan nodded but did not ask the obvious question: Is it true?
“Well,” he said, “it’s a very circumstantial case. There’s the thumbprint, which I want to talk about. But fingerprints are a very limited kind of evidence. There is no way to tell exactly when or how a fingerprint got there. There’s often an innocent explanation.”
He dropped this remark in an offhand way, without looking up.
I squirmed.
Laurie said, “There is something else.” A beat, a curious feeling in the room.
Laurie glanced around the table apprehensively. Her voice was momentarily husky, congested. “What if they say Jacob inherited something, like a disease?”
“I don’t understand. Inherited what?”
“Violence.”
Jacob: “What!?”
“I don’t know if my husband has told you: there is a history of violence in our family. Apparently.”
I noticed that she said our family, plural. I clung to that to prevent myself from falling off a cliff.
Jonathan sat back and slipped off his glasses, let them dangle from the lanyard. He looked at her with a puzzled expression.
“Not Andy and me,” Laurie said. “Jacob’s grandfather, his great-grandfather, great-great-grandfather. Et cetera.”
Jacob: “Mom, what are you talking about?”
“I’m just wondering, could they say Jacob has a… a tendency? A… genetic tendency?”
“What sort of tendency?”
“To violence.”
“A genetic tendency to violence? No. Of course not.” Jonathan shook his head, then his curiosity got the better of him. “Whose father and grandfather are we talking about?”
“Mine.”
I felt myself redden, the warmth rising in my cheeks, my ears. I was ashamed, then ashamed at feeling ashamed, at my lack of self-command. Then ashamed, again, that Jonathan was watching my son learn of this in real time, exposing me as a liar, a bad father. Only last was I ashamed in my son’s eyes.
Jonathan looked away from me, pointedly, allowing me to recover myself. “No, Laurie, that sort of evidence would definitely not be admissible. Anyway, as far as I know, there is no such thing as a genetic tendency to violence. If Andy really does have violence in his family background, then his own good nature and his life prove that the tendency doesn’t exist.” He glanced at me to be sure I heard the confidence in his voice.
“It’s not Andy that I doubt. It’s the DA, Logiudice. What if he finds out? I Googled it this morning. There have been cases where this sort of DNA evidence has been used. They say it makes the defendant aggressive. They called it ‘the murder gene.’ ”
“That’s ridiculous. ‘The murder gene’! You certainly did not find any cases like that in Massachusetts.”
“No.”
I volunteered, “Jonathan, she’s upset. We just talked about this last night. It’s my fault. I shouldn’t have put all this on her right now.”
Laurie held herself erect to demonstrate how wrong I was. She was in control, not reacting wildly out of emotion.
In a comforting tone, Jonathan said, “Laurie, all I can tell you is that if they do try to raise that as an issue, we’ll fight it tooth and nail. It’s insane.” Jonathan snorted and shook his head, which for a soft-spoken guy like him was a rather violent outburst.
And even now, looking back on that moment when the idea of a “murder gene” was first raised, by Laurie of all people, I feel my back stiffen, I feel the anger ooze up my spine. The murder gene was not just a contemptible idea and a slander-though it absolutely was both of those things. It also offended me as a lawyer. I saw right away the backwardness of it, the way it warped the real science of DNA and the genetic component of behavior, and overlaid it with the junk science of sleazy lawyers, the cynical science-lite language whose actual purpose was to manipulate juries, to fool them with the sheen of scientific certainty. The murder gene was a lie. A lawyer’s con game.
It was also a deeply subversive idea. It undercut the whole premise of the criminal law. In court, the thing we punish is the criminal intention-the mens rea, the guilty mind. There is an ancient rule: actus non facit reum nisi mens sit rea — “the act does not create guilt unless the mind is also guilty.” That is why we do not convict children, drunks, and schizophrenics: they are incapable of deciding to commit their crimes with a true understanding of the significance of their actions. Free will is as important to the law as it is to religion or any other code of morality. We do not punish the leopard for its wildness. Would Logiudice have the balls to make the argument anyway? “Born bad”? I was sure he would try. Whether or not it was good science or good law, he would whisper it in the jury’s ear like a gossip passing a secret. He would find a way.
In the end Laurie was right, of course: the murder gene would haunt us, if not quite the way she anticipated. But in that first meeting, Jonathan-and I-trained in the humanist tradition of the law, instinctively rejected it. We laughed it off. The idea had got ahold of Laurie’s imagination, though, and Jacob’s too.
My son’s jaw literally hung open. “Is somebody going to tell me what you guys are talking about?”
“Jake,” I began. But the words did not come.
“What? Somebody tell me!”
“My father is in prison. He has been for a long time.”
“But you never knew your father.”
“That’s not entirely true.”
“But you said. You’ve always said.”
“I did, I said. I’m sorry for that. I never really knew him, that was true. But I knew who he was.”
“You lied to me?”
“I didn’t tell you the whole truth.”
“You lied.”
I shook my head. All the reasons, all the things I had felt as a kid, seemed ridiculous and inadequate now. “I don’t know.”
“Jeez. What did he do?”
Deep breath. “He killed a girl.”
“How? Why? What happened?”
