The light inside the podium was already yellow. Gracie glanced at it now and watched it turn red. Jim Riggs took the podium and she sat down to take notes, looking for ways to attack his arguments when the government’s case was through.
She’d caught April’s questioning look as she turned to sit, but there was no time to explain the futility of Cole’s presence in the appeals court. She had to concentrate on the opposing argument, which began with force and precision.
Gracie heard a noise beside her and turned to find April kneeling at her side with another note.
When are you going to tell them he’s here and what he’s got?
She leaned down to whisper in April’s ear. “I can’t. This is an appeal on the law. If they reverse the lower court, then we can add his testimony.”
“But he’s willing to testify!” April whispered back.
“April, I’ve got to keep track of this. Go back and sit down.”
Gracie could see one of the judges diverting his attention from the government’s arguments to the whispered conversation at the petitioner’s table, and she sat up instantly, feeling like a schoolgirl caught passing notes in class. She resumed her writing, aware of April’s frustrated sigh as she withdrew. The thought began eating its way into her consciousness, however, that maybe somehow April was right.
Is there anything I’m missing? Gracie thought, as the government lawyer turned his attention to a list of cases that allegedly proved Gracie was wrong.
Fact presentation is to be done in the trial court. But doesn’t this court have the right of original equity jurisdiction as well?
She tried to keep half her mind on the argument while the other half re-blazed its way through law school and the lessons on how the equity courts and the law courts of old England had been separate, one dealing with normal common law, the other issuing court orders and injunctions and restraining orders in equity. There was something one of her professors had taught in the third year when she’d done a directed research paper, but what was it? The lesson was hanging there, just out of reach in her mind. She thought back to that warm spring day in the professor’s comfortable office, and the memory returned. “Never forget,” he’d told her, “that even a federal court of appeals has full equity powers, even though they seldom use them beyond lifting injunctions or imposing stays of execution.”
“And therefore, Your Honor,” Riggs was saying, “not only did the trial court have the right to rule the petitioner’s factual claims insufficient on their face with or without evidence, the burden of proof was theirs, and they failed to uphold it. Finding alleged facts sufficient or insufficient is a process best left to the trial court, especially in a show-cause hearing, especially since no hearing of additional evidence can be had in an appeal such as this.”
Gracie was only marginally aware of standing. On one level, she had never felt more in control, but on another, she was merely a spectator to an unfolding interruption that could easily earn her an embarrassing rebuke from the bench.
“Your Honor, forgive the interruption, but Mr. Riggs is absolutely wrong, and we have just received pivotal new evidence that we need leave to introduce.”
Riggs turned to her with a shocked expression, the prospect of being interrupted in an appellate argument apparently never having crossed his mind.
“What are you doing?” he asked almost conspiratorially before looking back at the judges, two of whom were exchanging puzzled glances as the third, Judge McNaughton, leaned forward.
“Counselor, if you’re not aware of the protocol, you should know that we don’t allow our lawyers to interrupt each other here. You’ll get a two-minute rebuttal, provided you sit down. And I’d recommend a thorough review of our procedures before arguing here again.”
“Your Honor,” Gracie answered, moving closer to the podium and Jim Riggs’s side. “This actually is an appropriate interruption. May I tell the court why?”
“No!” Riggs thundered as he recovered from the shock. “Sit down.”
“That will do, Mr. Riggs. We’re capable of giving the same orders from up here,” Judge McNaughton said. “Miss O’Brien, if you persist in this affrontive behavior, we could consider a contempt citation to bring you under some modicum of control. I prefer hog-tying misbehaving lawyers, but case law, and our esteemed chief judge, seldom allow it.”
“Your Honor, this court has original equity jurisdiction and can hear new evidence in the form of a new witness, and here we have a doozy.”
An immediate commotion broke out at Jim Riggs’s table and the bench simultaneously as one of the judges began banging his gavel while the other two exchanged some hurried words. Judge Williamson finally quieted his two colleagues with hand gestures and took the floor.
“Miss O’Brien, we’re intrigued by your risk-taking here in insisting on educating us as to the scope of our jurisdiction, but if you haven’t noticed, there is no witness stand in this court.”
“No, Your Honor, but this court’s jurisdiction is not defined by furniture.”
There were renewed protests punctuated by Jim Riggs’s giving voice to the urgent buzz of advice from the other lawyers at the government’s table.
“Your Honor, we must protest the interference with our time for argument—”
“Wait a minute, Mr. Riggs,” Judge Williamson said. “We do have the authority to add to your allotted time, you know. You’ll get your additional minutes.” Judge Williamson turned back to Gracie, who could feel icy cold adrenaline in her bloodstream with the recognition of possible real danger.
“Now, Miss O’Brien. Please continue.”
“When our courts were created by the constitution and formed by congressional action, federal appellate courts were limited to hearing disputed matters of law only on appeals from normal legal matters. But equity jurisdiction has always been an uneasy mix, an additional duty for the courts, as it were, and there was never any prohibition in the enabling legislation nor in the rules of this court that suspended the duty of an appeals judge to consider equity pleas. In fact, any one of you may hear a matter in equity and even compel testimony, if you so choose, and the fact that it is not often done does not mean that you do not possess the authority. A breakthrough witness has just walked into the courtroom with vital evidence that wholly contradicts the government on several key points, and what he will say under oath will prove the justice and applicability of the restraining orders that were issued, then vacated by the lower court.”
“You… are alleging that we have the discretion to hear original testimonial evidence, Miss O’Brien, even though our procedures and rules do not permit it?”
“Yes, Your Honor. You may issue injunctions and restraining orders just as a federal district judge may, and your powers are not limited to that in equity.”
Jim Riggs was on his feet again, but Williamson warned him to stay quiet with a quick tilt of his head. Gracie held her breath, thoroughly alarmed at what she’d just done, and only marginally aware of more noises and commotion from the back of the courtroom.