“All right,” says George. “Let’s earn the big bucks. Warnovits.”
As the presiding judge, George has the right to speak first, but he remains mysteriously confused and heavyhearted about the matter. Instead, he turns to Koll.
“Nathan, I need to hear more about this business you brought up at the end of the oral argument concerning the state eavesdropping statute.”
In truth, George knows all he needs to, because the motives were plain. Koll, ever-victorious, had figured out a way to demonstrate to the packed courtroom, including the full row of press, that the celebrated Jordan Sapperstein had overlooked a winning argument.
An added victim of this display was the time-ravaged warhorse who had followed Sapperstein to the podium to argue for the state, Tommy Molto. The judges of the Kindle County Superior Court recently appointed Tommy the County’s acting Prosecuting Attorney, making him the second successor to the unexpired term of the elected P.A. Muriel Wynn, who had barely warmed the chair before mounting a successful campaign for state Attorney General. The first interim P.A., Horace Donnelly, had resigned after about four months, when the Tribune discovered that he had left markers on the state’s riverboat casinos that totaled twice his annual salary. Molto was the safe choice, a relentless and unforgiving career prosecutor who by now seems destined to die of elevated blood pressure in the midst of some courtroom harangue about the miserable shortcomings of a defendant.
Today, Tommy was making a point by his presence, showing that the P.A.’s office gave Warnovits premium significance. In truth, George views Molto as a better appellate advocate than many of his deputies. He gets to the point, answers questions directly, and does his best with his argument’s weaknesses without pretending that doubts are unreasonable. Representing the state in Warnovits, Molto meandered safely through his response, first explaining how the case comfortably fit within the legislative exceptions to the state statute of limitations. Then he echoed the points Koll had made in disputing Sapperstein’s claim that the videotape of the rape should have been severely edited before being shown to the jury.
Not uncharacteristically, Koll suddenly seemed to abandon his own point of view.
‘Mr. Molto,’ he said, ‘after this Court’s decision in Brewer, can you and I agree that the videotaping of Mindy DeBoyer without her consent violated the state’s eavesdropping law?’
Brewer, decided a few months ago, concerned a junior high school janitor who had used the camera on his cell phone to collect images in the boys’ locker room. Molto nodded cautiously. The weight of every crime and every bad guy who had slipped away seemed to have led to an overall descent in his ruined face, and what little of the gray hair that remained atop his head stood straight up in an unfortunate breeze from the courthouse ventilation system. His suit, as usual, looked as if it had been stuffed into his desk drawer for storage overnight.
‘I agree, but that crime was not charged, Your Honor.’
‘Indeed, Mr. Molto. That crime was not charged. And Section (c)( 6) of the eavesdropping law says clearly, and I quote, “Evidence obtained in violation of this chapter is inadmissible in any civil or criminal case, except a prosecution for violation of this chapter.” That to me means that your videotape clearly should not have been received in evidence.’
Molto looked as if he’d been stabbed. Behind him at the defendants’ table, Sapperstein rocketed back against his chair so hard that he might have done with an air bag.
“You’re not suggesting, Nate, are you,” says Summerset Purfoyle now, “that we should reverse these convictions on that basis?”
“Why not? No tape, no case.”
“But Sapperstein didn’t argue the point here, and neither did the defense lawyers at trial. We can’t take it up now.” It is the essential nature of an appeal that it is decided in a kind of twilight zone- only what was recorded in the trial court can be considered. The whole truth-the contents of the police reports, the statements of witnesses not called, the byplay between the lawyers and the judge at sidebars or in chambers-may not be taken into account. It is like writing a history from the fragments left after a fire. In the same vein, it is a cardinal rule that legal objections that the trial judge had no chance to correct cannot be raised on appeal.
“Foolish on his part,” answers Koll. “Damn near malpractice.” The truth, George realizes; is that until Brewer, a few months ago, even the best lawyer might not have thought that a law passed in the 1970s to safeguard the conversations of citizens- and legislators-from unwanted snooping was worded broadly enough to reach video recording as well.
“Nathan, that provision was meant to keep people who eavesdrop from taking advantage of their crime in court,” Summer says. “A fellow can’t bug his wife, then use the tapes in their divorce case. But I just don’t see the sense, in circumstances like these, of saying that the defendants can’t be prosecuted for anything but illegal surveillance, no matter how god-awful the conduct that’s recorded there. Why would the legislature want to short-change the victim like that?”
“The words of the statute couldn’t be clearer. It’s plain error,” Koll adds, invoking the doctrine that allows the appellate court to recognize overlooked trial mistakes when they would clearly alter the outcome.
George reacts to this. “It has to be more than plain error, Nathan. We’re referees, not players. We can’t advance our own arguments, unless ignoring them leads to a miscarriage of justice. That’s the standard we have to apply.”
“And how is it not a miscarriage of justice to convict four men when the whole case against them is inadmissible?”
George is somewhat surprised that Koll is so wedded to his argument. Often, he musters these arid academic displays to impress or belittle, then leaves them in the courtroom.
Summerset continues shaking his head. He was a famous soul singer who went to law school between tours, one night quarter at a time, so that he could manage his own career. When his star sank to the point that he was appearing only at outdoor summer festivals and high school reunions, he decided to capitalize on his remaining name recognition by running for judge in the hope of achieving a reliable income. The bar associations wrung their hands over a judicial candidate who sang one of his two big hits, ‘Made a Man for a Woman’ and ‘Hurtin’ Heart,’ at every campaign stop, but Summer’s performance on the bench has been solid. His elevation to the appellate court was a way to get him out of the one job he didn’t belong in-he was a poor manager as Presiding Judge of the torts trial division in the Superior Court. Here he is neither George’s most distinguished colleague nor his least. He continues to work hard and shows uncommon common sense, rendering sound, pragmatic interpretations of the law.
And the view he expresses several times now is that convicting these young men is far from unjust. Race, the perpetual theme song of American life, might be a factor in his evaluation, but George, who has sat with Purfoyle dozens of times, doubts that. Summer, much like George himself, usually sides with the prosecutors, except in clear cases of police misbehavior. Nathan duels with Summerset for some time, trying to nudge the facts with little hypothetical alterations into a shape allowing him to prevail, but increasingly he casts his dark, squinty look toward George, who obviously holds the deciding vote.