He makes eye contact with several women on the jury. “I’m not condoning an extramarital affair, ladies and gentlemen. We all know that adultery is wrong. But in extraordinary circumstances, the heart will seek its own comfort. And the flesh is weak, as the Good Book tells us.
“We can’t shy away from human truth in this court, however painful it might be. We have been called here specifically to uncover the truth. But Tom Cage is not on trial for adultery. And he has never denied that he had a relationship with Viola Turner. He didn’t advertise it, mind you, and I don’t blame him. In 1968, a revelation like that would have put his whole family in mortal danger. But neither did Dr. Cage try to deny that he might be Lincoln Turner’s father, once he’d been told of the child’s existence. Why didn’t he try to evade that responsibility? Because he’s not that kind of man. Tom Cage loved Viola, and she loved him in return. Theirs was a tragic affair. They were two good people caught in a bad situation. But whatever sins Tom Cage may have been guilty of in 1968, they have a lot more to do with the Seventh Commandment than the Sixth, which is not, by the way, ‘Thou shalt not kill,’ as most people quote it, but ‘Thou shalt not do murder.’”
While most people in the court try to remember what the Seventh Commandment was, Judge Elder says, “‘Thou shalt not commit adultery.’ That’s the Seventh Commandment.”
“Thank you, Judge,” Quentin says to the younger man, like a Sunday school teacher complimenting his favorite student.
Before Joe Elder can find a way to put Quentin back in his place, the click and whir of the wheelchair sounds, and Avery rolls out from behind the defense table. He steers toward the jury box, but stops a few feet short of it and speaks in a conspiratorial voice.
“Ladies and gentlemen, I’m going to let you in on a secret of the legal profession. There’s an interesting test that district attorneys apply when they decide whether or not to prosecute a murder case. They ask themselves two questions. One: Did the victim need killing? And two: Did the right person do the killing?” Quentin pauses to let these questions sink in. “If the answer to both those questions is yes, most DAs won’t touch the case with a barge pole.”
While the jury members ponder this, Quentin says, “That logic might seem cynical to laymen, but there’s a sound reason for it. And the reason is, sometimes judges don’t fully define reasonable doubt, and sometimes jurors follow their hearts instead of their heads to find it. We lawyers call that gut sense of right and wrong the Unwritten Law. Why? What is the Unwritten Law? Well, it’s exactly what it sounds—”
“Not another word, Mr. Avery!” erupts Judge Elder. “Against my instincts, I have been patient with you, but you just walked up to the precipice of a mistrial. And what’s worse, you know it.”
Quentin’s embarrassment looks genuine enough, like that of an elderly man who momentarily forgot he was in church and started discussing sexual intercourse. But I’m not buying it, and neither is Joe Elder. Quentin was purposefully leading his jury to the prosecutor’s worst nightmare: jury nullification. Jury nullification occurs when a jury disregards all instructions and votes with what some people call its “collective conscience,” but which could more accurately be described as its collective gut instinct. Less charitable critics would call it “frontier justice.”
In a bass voice that could have come from Zeus on Olympus, Judge Elder says, “Mr. Avery—you have been warned.”
“My sincere apologies, Your Honor.” Quentin looks back at the jury. “Let’s return to those two cynical questions I mentioned for a moment. First: Did the victim need killing? Let’s say our murder victim was a foulmouthed, hyena-headed, belly-dragging baboon who beat his wife, cuckolded his neighbors, and abused his children. Everybody who knew him agreed that the world was better off without him in it. So . . . did he need killing? Yes.”
A white man in the jury actually laughs, earning a baleful glare from Judge Elder. I’m sure Shad has been wanting to shout in protest throughout Quentin’s open, but since he liberally abused the rules himself, he hasn’t got much of a foundation for it.
“Question two,” Quentin pushes on. “Did the right person do the killing? Well, if the killer was the victim’s battered wife, his abused son, or his cuckolded neighbor, the answer is probably yes again. And under those circumstances, it’s doubtful that any jury would vote to convict the killer, no matter what instructions the judge gave them. And the DA knows that. So, what happens? He finds a way to avoid going to trial.
“But let’s look at a different set of circumstances. What if the victim was an elderly black woman with terminal cancer? A woman beyond all hope, suffering agonizing torment, and ready to leave this world of toil and tears? Question one: Did the victim need killing? Well, according to the State, the victim herself believed she did. The assisted-suicide pact proves that. What about question two? Did the right person do the killing? If the State is to be believed, the man who took the victim’s life was her personal physician and former lover, a man beloved by the community and trusted by thousands of patients. Now, if that man did the killing, I’d say that by the standards of the Unwritten Law, he was the right man for the job.”
The jury seems stunned by this assertion, but Shad Johnson looks positively apoplectic. The DA can already feel the foundation of his carefully constructed case shifting on sand, where he thought he’d built on bedrock, and Quentin hasn’t even called his first witness. Worse, because Quentin didn’t request discovery, Shad has no idea who Quentin’s witnesses might be.
“Given what I’ve told you,” Quentin says, “I find myself wondering why this case was brought before the bar at all. Don’t you? Why are we sitting here today, ladies and gentlemen? The answer has nothing to do with justice, I assure you. That shouldn’t surprise you. A Natchez judge whose picture hangs on that wall used to tell juries that the court system wasn’t about justice, but compromise. ‘Justice,’ he said, ‘is when everybody gets exactly what they deserve—and Lord knows none of us wants that.’”
As hesitant laughter echoes through the court, Quentin’s voice drops into the register of a man dealing with the gravest matters. “My friends, we are gathered here today because of the broken heart of a fatherless child.”
After looking at Lincoln with sympathy, Quentin shifts his gaze to Sheriff Byrd, who now sits against the wall with a couple of his deputies. “We are also gathered here because of the envy, hatred, and ambition of powerful men.” Then Quentin’s eyes fall on Shad Johnson. “Ultimately, we are here because of the base human desire for revenge at any cost.”