10 | Leopards
Jonathan’s office was a little warren of cluttered rooms in a century-old Victorian near Harvard Square. The practice was essentially a one-man operation. He did have an associate, a young woman named Ellen Curtice who was just out of Suffolk Law. But he used her only as a stand-in on days when he could not be in court himself (usually because he was held on trial elsewhere) and to handle basic legal research. It was understood, apparently, that Ellen would move on when she was ready to launch her own practice. For now, she was a vaguely disconcerting presence in the office, a mostly silent, dark-eyed observer of the clients who came and went, the murderers, rapists, thieves, child molesters, tax evaders, and all their cursed families. There was a bit of Northampton about her, a bit of the college kid’s orthodox radicalism. I imagined she judged Jacob harshly—the suburban rich kid who pissed away all the advantages he had lucked into, something like that—but her behavior gave nothing away. Ellen treated us with elaborate politeness. She insisted on calling me Mister Barber and offered to take my coat whenever I showed up, as if any hint of intimacy would undermine her neutral pose.
The only other member of Jonathan’s team was Mrs. Wurtz, who kept the books, answered the phone, and, when she could no longer stand the mess, reluctantly scrubbed the kitchen and bathroom while murmuring murder under her breath. She bore an uncanny resemblance to my mother.
The best room in the office was the library. It had a red-brick fireplace and bookcases lined with familiar old law books: the honey bindings of the Massachusetts and federal case reports, the army-green Mass. Appeals reports, the wine red of the old Mass. Practice series.
It was in this warm little den that we gathered just a few hours after Jacob’s arraignment, in early afternoon, to discuss the case. We three Barbers sat around an old circular oak table with Jonathan. Ellen was there too, scribbling notes on a yellow legal pad.
Jacob wore a burgundy hoodie that had the logo of a clothing company on the chest, a silhouette of a rhino. As the meeting began, he slumped in his chair with the cavernous hood over his head like a druid. I told him, “Jacob, take your hood off. Don’t be disrespectful.” He slipped it off with a sulky flip and sat there with an absent expression, as if the meeting was a matter for grown-ups that held little interest for him.
Laurie, in her sexy schoolmarm glasses and a lightweight fleece pullover, looked like a thousand other suburban soccer moms, except for the shock-hammered look in her eyes. She asked for a legal pad of her own and gamely made ready to take notes along with Ellen. Laurie seemed determined to keep her head—to think her way out of the maze, to remain clearheaded and industrious even in this surreal dream. She might have had an easier time of it, honestly, if she had not been so engaged. The stupid and belligerent have it easy in these situations; they can simply stop thinking and gird for battle, trust to the experts and to fate, insisting that everything will turn out right in the end. Laurie was neither stupid nor belligerent, and in the end she paid an awful price—but I am getting ahead of the story. For the moment, seeing her with her pad and pen inevitably reminded me of our college days, when Laurie was a bit of a grind, at least compared to me. We rarely took classes together. Our interests were not the same—I was drawn to history, Laurie to psych, English, and film—and anyway we did not want to become one of those nauseating inseparable couples that mooned around campus side by side like Siamese twins. In four years, the one class we shared was Edmund Morgan’s intro to early American history, which we took freshman year when we’d just started dating. I used to steal Laurie’s notebook before exams to catch up on the lectures I’d skipped. I remember gaping at her class notes, page after page of neat cursive. She captured long phrases from the lectures verbatim, broke the lectures down into branching concepts and subconcepts, added her own thoughts as she went. There were few of the cross-outs or scribbles or snaking arrows that filled my sloppy, frantic, clownish class notes. In fact, that notebook from Edmund Morgan’s lectures was part of the revelation of meeting Laurie. What struck me was not just that she was probably smarter than me. Coming from a small town—Watertown, New York—I was prepared for that. I fully expected Yale to be swarming with brainy, worldly kids like Laurie Gold. I had studied up on them by reading Salinger stories and watching Love Story and The Paper Chase. No, the epiphany I had looking at Laurie’s notebook was not that she was smart but that she was unknowable. She was every bit as complex as I was. As a kid, I had always believed there was a special drama about being Andy Barber, but the interior experience of being Laurie Gold must have been just as fraught with secrets and sorrows. She would always be a mystery, as all other people are. Try as I might to penetrate her, by talking, kissing, stabbing myself into her, the best I would ever do was to know her just a little. It is a childish realization, I admit—no one worth knowing can be quite known, no one worth possessing can be quite possessed—but after all, we were children.
“Well,” Jonathan said, looking up from his papers, “this is just the initial package from Neal Logiudice. All I have here is the indictment and some of the police reports, so obviously we don’t have all the prosecution’s evidence yet. But we have a general picture of the case against Jacob. We can begin talking, at least, and try to get a general picture of what the trial will look like. We can start to figure out what we need to do between now and then.
“Jacob, before we begin, I want to say a couple of things to you in particular.”
“Okay.”
“First, you’re the client here. That means that, as far as possible, you are the decision maker. Not your parents, not me, not anyone else. This is your case. You are always in control. Nothing is going to happen here that you don’t agree with. Okay?”
“Okay.”
“To the extent you want to leave the decision-making up to your mom and dad or to me, that’s perfectly understandable. But you should not feel like you don’t have a say in your own case. The law is treating you as an adult. For better or worse, by law in Massachusetts every kid your age charged with first-degree murder is charged as an adult. So I’m going to do my best to treat you as an adult too. Okay?”
Jacob said, “ ’Kay.”
Not a wasted syllable. If Jonathan was expecting an outpouring of gratitude, he had the wrong kid.
“The other thing is, I don’t want you to feel overwhelmed. I want to warn you: in every case like this, there’s an ‘oh shit’ moment. That’s when you look up at the case against you, you see all the evidence, all the people on the DA’s team, you hear all the things the DA is saying in court, and you panic. You feel hopeless. Deep down, a little voice says, ‘Oh shit!’ I want you to understand, it happens every time. If it hasn’t hit you yet, it will. And what I want you to remember, when that ‘oh shit’ feeling hits, is that we have enough resources right here in this room 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?”
“I don’t really want to talk about it.”
“You don’t want to talk about it? No shit you don’t want to talk about it!”
“He was a bad guy, Jacob, that’s all. Let’s just leave it at that.”
“How come you never told me?”
“Jacob,” Laurie cut in softly, “I never knew either. I only found out last night.” She laid her hand on Jacob’s and rustled it. “It’s okay. We’re still kind of figuring out how to process all this. Try to stay calm, okay?”
“It’s just—it can’t be true. How come you never told me? This is my—what?—my grandfather? How could you keep that from me? Who do you think you are?”
“Jacob. Watch how you talk to your father.”
“No, it’s okay, Laurie. He’s got a right to be upset.”
“I am upset!”
“Jacob, I never told you—I never told anyone—because I was afraid people would look at me differently. And now I’m afraid it’s how people are going to look at you too. I didn’t want that to happen. Someday, maybe someday very soon, you’ll understand.”
He gawped at me, unsatisfied.
“I didn’t mean for it to come to all this. I wanted—I wanted to move past it.”
“But Dad, it’s who I am.”
“That’s not how I looked at it.”
“I had a right to know.”
“That’s not how I looked at it, Jake.”
“I didn’t have a right to know? About my own family?”
“You had a right to not know. You had a right to start with a blank slate, to be whatever you wanted to be, same as every other kid.”
“But I wasn’t the same as every other kid.”
“Of course you were.”
Laurie looked away.
Jacob tossed himself backward in his chair. He seemed more shocked than aggrieved. The questions, the complaints, were just a way to channel his emotion. He sat there awhile, deep in thought. “I don’t believe it,” he said, bewildered. “I just don’t believe it. I don’t believe you did that.”
“Look, Jacob, if you want to be mad at me for lying, okay. But my intentions were good. I did this for you. Even before you were born, I did it for you.”
“Oh, come on. You did it for yourself.”
“I did it for myself, yes, and for my son, for the son I hoped I was going to have someday, to make things a little easier for him. For you.”
“It didn’t work out so great, did it?”
“I think it did. I think your life has been easier than it would have been. I certainly hope so. It’s been easier than mine was, that’s for sure.”
“Dad, look where we are.”
“So?”
He said nothing.