Limitations

“May it please the court,” booms Jordan Sapperstein from the podium. “This case must be reversed. Your Honors have no choice.”

Seated behind the elevated walnut bench a dozen feet away, Judge George Mason suppresses an impulsive wince at Sapperstein’s excesses. The judge is seldom reluctant to let lawyers know when their claims are unpersuasive, but making faces, as his father warned him when he was a boy in Virginia long ago, is simply rude.

The truth is that George Mason recoils even more from the case, People v. Jacob Warnovits et al., than from the celebrated attorney beginning his oral argument. Before he was elected to the bench, at age forty-seven, George was a criminal defense lawyer, perpetually engrossed in his warring feelings- loathing, amusement, intrigue, envy-about those who broke the rules. Yet from the instant the Court of Appeals’ docket department randomly placed him on Warnovits five weeks ago, he has been uneasy about the assignment. He has found it uncharacteristically difficult to read the briefs or view the record of the trial in the Kindle County Superior Court, where nineteen months ago, the four young defendants were convicted of criminal sexual assault and given the mandatory minimum sentence of six years. Now the judge thinks what he has every time the matter has come reluctantly to mind: hard cases make bad law.

As the senior member of the three-judge panel, Judge Mason, in his inky robe, occupies the center spot on the long bench between his two colleagues. Judge Summerset Purfoyle, with his time-engraved pecan face and a sponge of white hair, is perhaps more regally handsome now than in his days as a successful soul balladeer. The other judge, Nathan Koll, small and stout, his plump jowls like a croissant beneath his chin, eyes Sapperstein from his first words with a dark, merciless look.

Beyond the lawyers in the well of the court, the security officers have fit onto the walnut pews as many as possible of the spectators who lined up at the courtroom door, leaving the air close on a warm day at the start of June. In the front row, the reporters and sketch artists hastily record what they can. Behind them the onlookers-law students, court buffs, friends of the defendants, and supporters of the victim-are now intent, after having shifted through three civil cases argued before the same panel earlier in the morning. Even the stateliness of the appellate courtroom, with its oxblood pillars of marble rising two stories to the vaulted ceiling and the gilded rococo details on the furnishings, cannot fully dampen the high-wattage current of controversy that has long enlivened the Warnovits case, which has taken on complex meanings for thousands of people who know nothing about the legal principles at stake and not much more about the underlying facts.

The victim of the crime is Mindy DeBoyer, although her name, as an alleged rape victim, is never used in the frequent public accounts. More than seven years ago, in March 1999, Mindy was fifteen and a member of the rowdy throng at a house party for the Glen Brae High School boys’ ice hockey team. Earlier that day, Glen Brae had finished second in the state. The players were sore- from the pounding of six games in six days and from failing after coming so close to the state title-and the celebration in the home of the team co-captain, Jacob Warnovits, whose parents had flown off to a wedding in New York, was out of control from the start. Mindy DeBoyer, by her own testimony, ‘got hammered beyond belief’ on the combination of rum and a pill provided by Warnovits and somehow ended up passed out in his room.

Warnovits claimed he had discovered her there and took Mindy’s position, like Goldilocks in the bed of one of the three bears, as a proposition. The jury clearly rejected that explanation, probably because Warnovits also invited three other team members to join him in violating the young woman, who was unconscious and lifeless as a rag doll. Warnovits captured each assault on videotape, often employing the camera in a grotesque fashion that would startle even a pornographer. The soundtrack, a vile screed from Warnovits, ended after more than fifty minutes with his warnings to his friends to get Mindy out of there and ‘don’t say jack.’

When she awoke at about 5:00 A.M. amid the lingering reek from the empty cans and ashes in the Warnovitses’ living room, Mindy DeBoyer had no idea what had occurred. A sexual novice, although not uninitiated, she realized she’d had rough treatment, and she noticed that her skirt was on backward. Yet she had no memory of any of the night’s late events. After sneaking home, she phoned other kids she’d seen at the party, but no one could recall who Mindy had gone off with. Speaking to her best friend, Vera Hartal, Mindy DeBoyer wondered if she might even have been raped. But she was fifteen and not eager to involve an adult, or admit where she had been. She healed in her own time and said nothing.

And so life marched on. The four boys graduated from high school and went to college, as did Mindy two and a half years later. Feeling safer with time, Jacob Warnovits could not resist occasionally entertaining his fraternity brothers with the tape. One freshman pledge, Michael Willets, turned out to be close to the DeBoyer family, and after a lengthy conversation with his sister, he tipped the police, who arrived at the fraternity house with a search warrant. Mindy DeBoyer reviewed the videotape in horror, and Warnovits and the three other young men were indicted in

quick order on January 14, 2003.

As George Mason views the case, the principal legal question is the statute of limitations, which under state law would ordinarily bar bringing felony charges more than three years after the crime. But the grinding social issue is that Mindy DeBoyer is black. She is well-to-do, like the boys who assaulted her, but her parents, a lawyer and an MBA, could not keep from wondering publicly, in their initial agitation, whether a young white woman would have been treated the same way in Glen Brae, a suburban town to which integration came grudgingly.

The racial charges raised the volume in Glen Brae. Families close to the four boys proclaimed that their lives were being ruined long after the fact for a crime from which the victim had not really suffered. They implied that race alone was causing men to be punished for the misdeeds of children. The sharp disputes between neighbors boiled over into the press, where the DeBoyers’ views have clearly prevailed. Most accounts portray the defendants as spoiled rich boys who nearly escaped after a night of bestial fun in the slave cabin, even though not one of the many ugly terms the boys had applied to Mindy on the tape involved any mention of her race.

The substantial questions presented by the young men’s appeal have allowed them to remain free on bond, and all four, now in their midtwenties, are beside the journalists in the front spectators’ row. The fate of each is in the hands of Jordan Sapperstein, in a cream suit with heavy black pinstripes, who is gesticulating often and using his crinkled gray pageboy for emphasis. Judge Mason has never fully decoded whatever it is a human being is saying about himself when he sports a hairdo borrowed from Gorgeous George, but Sapperstein is what Patrice, the judge’s wife, is apt in her moods to refer to as an LFT-lawyer from television.

A Californian, Sapperstein made his name twenty years ago, while a law professor at Stanford, with two stunning victories in the U.S. Supreme Court. He has remained a legal celebrity ever since, because of his willingness to puff himself into a state of agitation for thirty seconds whenever the red light glows above a TV camera. He is always turning up on CNN, Meet the Press, Court TV, so ubiquitous you half-expect him in the background when you video-record your niece’s soccer game. The desperate families of the Glen Brae Four are rumored to have paid him several hundred thousand dollars to take on this appeal.

With some panels, George supposes that Sapperstein’s notoriety might be a plus, providing cover for a judge inclined to reverse. But not here. Sapperstein’s prominence has been a call to combat for George’s colleague Nathan Koll. Koll, who left his position as an esteemed faculty member at Easton Law School to take a five-year interim appointment on the appellate court, prefers to treat attorneys as if they were his students, exuberantly pummeling them with sly hypothetical questions aimed at undermining their positions. Wags have long called this style of Socratic classroom interrogation ‘the game only one can play,’ and here too there is no winning with Nathan. The truth is that, for him, each case, no matter what the actual subject matter, presents the same issue: proving he is the smartest lawyer in the room. Or perhaps the universe. George is uncertain where the boundary falls on Nathan’s sense of grandeur.

If nothing else, with his beerhouse voice and squinty inquisitorial style, Koll makes good theater, and he tears into Sapperstein not long after the lawyer begins his oral argument with a quotation from an exalted legal commentator, spiced, in turn, with the words of the U.S. Supreme Court.

“Statutes of limitations on felony prosecutions, which ‘are found and approved in all systems of enlightened jurisprudence,’ implicitly reflect a legislative judgment that the moral gravity of an offense can be measured by the urgency with which punishment is pursued. ‘The general experience of mankind’ is that true crimes ‘are not usually allowed to remain neglected,’ ” Sapperstein declaims.

“Hardly, hardly,” Koll answers immediately. Even seated, he reminds George of a linebacker ready to tackle, hunched forward, his stocky hands spread wide as if to hinder any effort to evade him. “Limitations periods, Mr. Sapperstein, arise fundamentally from worries that memories weaken and evidence is dispersed over time. Which should not concern us when there is a videotape of the offense.”

Sapperstein will not back down, and the academic jousting between the judge and the lawyer continues for several minutes, two legal peacocks spreading their feathers. In George’s mind, the impressions of noted legal scholars about why Anglo-American jurisprudence favors statutes of limitations count for very little. The only operative fact is that the legislature in this state voted for one. As a judge, George takes it as his principal task simply to resolve any doubts about the meaning of the words the lawmakers used.

Ordinarily, he might interrupt with that observation, but on balance, he prefers to keep his distance from this case. Besides, it’s seldom an easy matter to get a remark in edgewise when you sit with Nathan Koll. Judge Purfoyle, on George’s right, has several questions written on his yellow pad, but Koll has yet to yield the floor, despite several gentlemanly efforts by Summer.

In any event, George’s attention is soon drawn to the thumping entrance into the courtroom of one of his two law clerks, Cassandra Oakey. Cassie cannot go anywhere without causing a distraction: she is too forceful, tall and attractive, and entirely unschooled in self-restraint. But as she charges forward to the clerks’ table at the far side of the courtroom, George realizes that she is not, as he might have expected, simply late. Cassie casts her large, dark eyes urgently toward him, and he sees she is holding a note. And with that a little wrinkle of terror creases the judge’s heart. Patrice, he thinks. This happens to George Mason several times each day. Lost in the professional issues that have always overwhelmed him like a siren call, he feels shocked and selfish when the recollection smashes home: Patrice has cancer. She had been hospitalized for two days now for post-operative radioactive treatments, and his immediate fear is that something has gone wrong.

Cassie creeps close enough to get the folded paper to Marcus, George’s white-whiskered bailiff, who passes it up. But the subject, George finds, is his own well-being, not his wife’s. Dineesha, his assistant, has written: We have heard again from #1. Marina would like to brief you on what she found out from the FBI but has to leave the building for the day at 1:00 P.M. Any chance you could put off the judges’ conference for half an hour to see her?

George lifts a temporizing finger in Cassie’s direction. Koll has now taken to battering Sapperstein about his other principal argument, which is that the videotape of the assault was too graphic and inflammatory to have been played for the jury without substantial editing, especially of the boys’ priapic displays to one another and Warnovits’s gynecological inspections of Mindy with the camera.

“You are not contending,” Koll says, “that the videotape, at least in some form, was inadmissible?”

“The videotape, Your Honor, as the jury saw it, should not have come into evidence.”