Brain Storm (54 page)

Watson shrank and felt himself become a homunculus once again, a ghost in the machine. He was seven years old, renewing his baptismal vows in St. Dymphna’s Cathedral.
“Father, forgive me, for I have sinned.”

A severe, bull-voiced Roman senator in vestments, his white hair parted and looking as if the Holy Spirit had perched on his head and spread its wings.
“Do you renounce Satan and all his works?”

Watson’s scalp grew tight with Dante’s fear. Satan was there somewhere, but he always moved one millimeter outside the peripheries of human vision (except on special occasions, when he came out for a good laugh at, say, a lawyer trying to pray).

“Do you renounce Satan and all his works?”

A cold wind had blown through his seven-year-old skin, bringing with it the age of reason, thrilling his bones, horripilating its way up his spine. Somewhere in his monkey brain he had neural networks that still tingled with reverence and awe at the epiphenomenon called conscience.

Church. Just a nice building? God’s mausoleum? An access node where one could log on to SoulNet using dial-up networking, go to www.divinity.com looking for WebMaster God?

He had trouble remembering the procedural rules. Probably he should first be contritely sorry for the near occasion of adultery, which he would probably be able to avoid, now that Palmquist had lost interest in him and his client. But was this theologically correct? What if, instead of preparing for an inquisition on First Amendment law in the Eighth Circuit Court of Appeals, he had smashed the car into a bridge piling on the way downtown and was trembling in the vestibules of the
afterlife, waiting to be asked ultimate questions from his Catholic youth?
Why did God make me? To know, love, and serve Him.

“Mr. Watson, tell us please, what is
perfect contrition
and how does it differ from
imperfect contrition
?”

“Yes, Your Honor. Perfect contrition is sorrow for and detestation of sin with a true purpose of amendment, arising from a love of God for His own perfections. Imperfect contrition is sorrow for sin motivated by some inferior impulse, as fear of divine punishment—theophobia (fear of God), stygiophobia (fear of Hell), kenophobia (fear of voids).”

“And do you now have perfect contrition?”

“Who, me, Your Honor? Perfect contrition for what?”

“How about adultery?”

“Adul—? You mean, that hand job? Since when is heavy petting adultery? Recall, please, that I was bound, restrained, helpless at the time. If that’s adultery, then the controlling statute is fatally overbroad, and it’s a harsh universe you’re running here, don’t you think? At the very worst, I would call it quasi-adultery, for which I am now formulating quasi-contrition. I am doing the very best I can, here.”

“But you saw the woman again after that. And you wanted to commit adultery with her, didn’t you? You set out with the intent to do just that, didn’t you?”

“But I didn’t, did I? Because my brain wouldn’t let me. My well-fortified conscience disabled my manhood. Doesn’t that count for something?”

Psychomachia—the warfare of the soul. Who said: “I fear we cannot get rid of God because we still believe in grammar”? Does God play at billiards? Dice? The thunderclap of ivory planets splitting the air. The big bang followed by the whisper of white molecules colliding. Crisis theology. Pascal’s wager: If there is a God, you win; if not, you won’t know the difference. There, now he could cite specific instances when he had felt remorse, attempted prayer, and failed. If he could go to his knees, or lower, then he could ask for help in oral arguments.

He looked up at the tabernacle, a forbidden zone he’d seen during a tour of St. Dymphna’s, just before his first communion. It had small, heavy gold doors, which swung out to reveal a lustrous panne satin interior, looking a lot like the inside of a coffin, but smaller.

“During mass,” Sister Mary Vendetta had explained, “the Eucharist is offered up for us on the altar, but whenever mass is not being said, the Body of Christ is kept in the tabernacle.”

Perhaps, giddied by the gravity of the situation, young Watson had mistaken the mighty, white high altar itself for the tabernacle—the overall concept being that of a capacious mausoleum, complete with ornamental sarcophagi, and a gold coal chute (the tabernacle), where bread and wine, manna and ambrosia were passed in to sustain and nourish the Living Body of Christ, who was reclining on a divan inside the altar, being fanned by eunuchs with palms and punkahs, and nibbling on grapes dropped into His mouth by fawning slave girls. Thus his nimble seven-year-old imagination had resolved the paradox that Christ had died for his sins, His Body was in the tabernacle, but He was also alive, and would live forever and ever.

Watson could walk up there now, perhaps. Turn the small, heavy gold key in the tumblers. The doors would swing open, a small coffin would slide out on casters, like a drawer in a morgue. The chthonic glow of candles flickering off the slick black casket. He could open the hinged top half, stand on tiptoe, peer into swirling satin, and see the embalmed body of James Whitlow. Rigor mortis rictus and risus sardonicus, hands crossed on his bosom, his tattoo plainly visible in the candlelight:
JESUS HATES NIGGERS
.

The courtroom had the same sacred, eschatological feel. Burnished wood and timeless marble; robed, somber dignitaries gravely contemplating Justice. But the sanctity of the court of appeals was technologically enhanced. Each of the appellate judges had a monitor, a pointing device, and a recessed keyboard at his disposal. The lectern had a small readout displaying the time remaining in the practitioner’s oral argument.

It was a courtroom, all right. But the jury—the collective representative of common humanity—was nowhere in sight. One look at the panel of stern judges and Watson instantly wished he could argue to a jury instead. In the stifling formality of this star chamber, a jury trial would be a mud-wrestling melee by comparison. Instead of talking to what Myrna referred to as twelve Kmart checkout clerks, Watson would be trying to persuade three gray eminences who’d heard it all before. He managed an out-of-body experience for a split second, during which time he saw the parade of advocates who had appeared before these judges for years. Every working day, for decades, these aging men and
women had sat and heard lawyers argue their cases. Heard Mr. Stammer clash with Ms. Hedge. Counselor Canny take issue with Solicitor Spleen. Heard the neophytes’ whine and saw the sleight of the old hands. Heard them circumlocute and stall, with their “I would argue that,” or “I would respond by saying that,” instead of just arguing or saying it.

The format was more oppressively restrictive than a Spenserian stanza, but tight shoes only made the lawyers learn new dances. Alone, facing three judges with no evidence or witnesses, the veterans become masters of paralipsis and insinuation, rodomontade and heartfelt hyperbole, vainglorious oratory and rigorous rhetoric. But alas, none of it seems to matter in the end, because—that’s right—the judges have heard it all before. If the statistics gathered by the judiciary committees are accurate, appellate judges usually decide cases after reading the briefs and before oral arguments. Knowing that, a guy should be able to sleep the night before oral arguments.

He took a seat on a bench that was very like a pew without kneelers. He watched lawyers filing in. Here and there, journalists with notepads. Not a crowd, but certainly more than the usual assembly of lawyers with cases to argue. Frank Donahue swept in with Harper and a clerk in tow.

“Well, young man,” Donahue said warmly, “here we are.” He smiled and shook Watson’s hand. “Mr. Harper and I are still willing to play dead and let your client off with natural life.”

“When my client recovers from brain surgery at the hands of government doctors, I’ll ask him if he’ll go for it,” said Watson.

“Yes,” said Donahue, “I heard they were going to try to fix the fellow’s brain. Take out the hate glands, maybe?” He winked at Harper.

“Too bad about Judge Willard,” said Harper.

“Too bad?” asked Watson.

Donahue nodded jovially. “Too bad for your client. He’s the toughest district court judge in Arkansas. Positively loathes criminals.”

“You mean he
hates
criminals?” asked Watson. “If he hates anybody he better watch himself around you guys, huh? Besides, he may hate criminals,” said Watson, “but he wrote an
Arkansas Bar Journal
article called “Hate Crime Hysteria” back in the nineties, just after they passed the federal law against church burnings. I’ll send you a copy if you’d like.”

Donahue glared in Harper’s direction. “I’m sure we found that one. It’s his sentencing background that would give me the chills if I were you.”

“I suppose it would if we were going to a sentencing hearing,” said Watson.

Donahue squinted at him and elbowed Harper. “Very tart, this one. A little too flip. We’ll see if Judge Willard takes some of the tang out of your sass, boy.” He extended his hand. “Good luck, young man.”

Watson shook Donahue’s hand and then Harper’s. And thought about going to the rest room with dry heaves.

He felt a light touch on his right elbow just as the clerk said, “All rise.” He strained to see who it was in the corner of his eye, but no one was there. Another touch, from below? A child? He looked down and saw Myrna Schweich standing behind him in full corporate dress. She tugged his sleeve until his ear was at her level.

“Your dick is so big it is a fucking war club,” she whispered. “Donahue is a lazy blowhard. He’s a short guy with little hands. You know what that means. You? Look at you. Six two. Big hands. Manly man. You know ten times more than he does about the law of this case. The man does not read. Pull out that big cock of yours and beat him to death with it,” she hissed.

Her exhortations had the intended effect. Maybe she was right. Where would a guy like Donahue find the time to read a brief, let alone cases cited
in
a brief?

“United States Court of Appeals for the Eighth Circuit is in session. The first case on this morning’s docket is United States versus Whitlow. The appellant has reserved five minutes for rebuttal.”

They would be arguing legal theory in a vacuum, hermetically sealed against any factual considerations. When Judge Horner asked him about the First Amendment and the federal penalty enhancement statute, Watson could not say, “Guess what, Judge? Did you know that Mary Whitlow is in this militia business up to her eyeballs?” He couldn’t mention the missing briefcase, the VTD and its incriminating statements, the venereal disease, Alpha and Beta. Those were all trial court matters, messy factual discrepancies to be worked out below. Up here, in the chambers of pure legal reason, the only questions were legal ones: Did Judge Stang correctly rule that the federal hate crimes statute violates the First Amendment? Did Judge Stang correctly rule that evidence of tattoos, racial jokes, racist reading materials, arguably racist behaviors
such as Whitlow’s display of a Confederate flag, were inadmissible to prove racial animus because the prosecution had failed to link those activities to the murder?

“United States versus Whitlow,” called the clerk. And Judge Willard looked up from his notes.

“Good morning, Mr. Donahue,” said Judge Horner, who sat in the middle, flanked by Judge Mallory on his right and Judge Willard on his left.

“Good morning, Judge,” said Donahue, swaggering to his place at the podium.

“And is it Mr. Watson?” said Horner, smiling indulgently at Watson. “For the appellee, James Whitlow, is that right?”

“Yes, Your Honor,” said Watson.
Would it were otherwise! I’ll go first if the court wishes!
As always, the complaining party went first, which meant that Watson would have to sit and watch a professional orator with twenty-five years of lawyering under his belt perform before taking his own turn at the podium.

“May it please the court,” Donahue began, “I represent the people of the United States of America. We are seeking to enforce a penalty enhancement statute which Congress passed some time ago to provide additional penalties for crimes motivated by particular types of hatred. Despite the somewhat hysterical contentions set forth in the defendant’s brief, this statute does not punish thought, or ideas, or beliefs. It punishes criminal conduct. The defendant, James Whitlow, is free to think any thoughts he pleases. He is free to be a bigot and think bigoted thoughts. But when he expresses his thoughts with conduct, namely, the murder of a disabled citizen of color, his conduct and his motivation for that conduct may be punished.”

“Mr. Donahue,” said Judge Horner, “I’m looking at the title of this statute as it is set forth in the United States Code, where it says, ‘Hate Crime and Vulnerable Victims.’ Are you telling this court that Congress was not targeting bigots and their proclivity for hatred when it passed this statute?”

“The statute is aimed at discriminatory
conduct
,” said Donahue. “If there is no underlying criminal conduct, then no penalty applies. The statute punishes perpetrators who intentionally select victims because of certain protected characteristics. It does not target bigotry or racism or any other mind-set or idea.”

“Because if it did it would run afoul of the First Amendment, wouldn’t it?” asked Judge Willard.

“An argument could be made to that effect,” said Donahue.

“And you’re not taking off after bigots, are you, Mr. Donahue?” chuckled Judge Willard.

“Bigoted criminal conduct,” said Donahue, “as set forth in this statute, which was very carefully crafted to accommodate the First Amendment.”

“I see,” said Judge Willard. “That must have been your evil twin in the
Post-Dispatch
railing against bigotry last week.”

Soft laughter from the lawyers awaiting their turns, which Donahue quelled with a loud voice. “I hope I am entitled to publicly express my own antipathies for bigotry and still discuss the constitutionality of a statute aimed exclusively at discriminatory conduct. I find bigotry personally abhorrent,” said Donahue, “but I am also aware that it is protected by the First Amendment. Our Supreme Court has told us time and again that the First Amendment does not protect violence or criminal conduct, even when the defendant claims to be expressing himself by using same. This statute does not target bigotry in the air, as it were, it targets bigoted conduct.”