Stanley’s instinct was to wait and see which judge’s docket the trial would be set for. A reasonable and sympathetic judge would either throw the case out or, at the worst, administer a slap on the wrist to Deke.
But Stanley’s heart fell when he saw the court calendar for that May 17th. State of New York us. Allen 5/17 CC Pt. III. Criminal Court Part Three. That was Judge Elizabeth Berlin. Of them all she was the most hard-nosed, the least tolerant of youthful offenders, the judge most inclined to mete out the harshest possible sentence.
Of course he could shoot for a jury trial, he supposed, but there wasn’t much point in that; a jury could only determine the facts of a case, not the law that pertained to it, and the facts of the case were such that in terms of a jury Deke couldn’t help being held guilty as hell. And while a jury could recommend a lenient sentence it couldn’t require one. It would still rest in the hands of Elizabeth “Lucrezia Borgia” Berlin.
Three years’ minimum, Stanley thought dismally. Not to mention the permanent loss of citizenship rights: a felon, once convicted, could never again vote or hold public office or hold any number of jobs. Because he’d done his father and his uncle a harmless favor and been ignorant of the fine print of the state gun law, Deke Allen could have the rest of his life ruined.
It wasn’t good enough.
Stanley went back to his law books. There had to be an answer.
Court day. Stanley and Deke waited silently in the courtroom while Judge Berlin dispensed several cases ahead of them. She was formidable in her gray suit, a white-haired woman with a humorous but ungiving face. Stanley had practiced before her for many years; he knew her quite well. She was not a nasty person, merely a sternly tough one: she was honest and, in terms of her own standards, fair — in that she dealt equally harshly with all guilty parties and equally sympathetically with innocent ones. (That is to say, those whose guilt was not proved. Trials do not establish innocence. They only establish whether or not the prosecution has proved its case.) She had, much to her credit, a fine shrewd sense of humor and she was not reluctant to laugh at herself when the situation called for it. It was her saving grace; trials in Part III often were highly entertaining because of the witty repartee between Ms. Berlin on the bench and the lawyers on the arena floor.
Two hours dragged by. Then a possession-of-narcotics case was continued to some future date and the bailiff rose to intone: “State versus Allen.”
The arresting cop testified as to the circumstances of the arrest and the condition of the shotgun in the car at the time. Stanley cross-examined the cop with little hope of accomplishing anything useful. The cop stuck to his story: yes, the shotgun was handy, right there on the seat. Yes, it was assembled. Not only assembled but charged, loaded, and cocked. All you had to do was pull the trigger. The safety catch wasn’t even on.
When the prosecution rested its case, Ellenburgh was sweating; the fat man glared at Deke and Stanley before he went back to the D.A.’s table and sat down, wiping his face with a handkerchief. Then Stanley called his witnesses. He called Harv Allen to the stand. Harv testified how he’d given the shotgun to Deke and why; he also testified that Deke detested guns and never used them, not even for target practice. Then Deke’s Uncle Bill got on the stand and told the story of the rat hunt — how he, not Deke, had shot the rats and how he’d handed the gun back to Deke afterward, not thinking to put the safety catch on or empty the gun. “It’s my fault maybe more’n his,” Uncle Bill said earnestly. “I know a little about guns, at least. The boy doesn’t know a thing about them.”
Then Stanley called a few character witnesses — people who knew Deke, people he’d worked for. They testified how he’d done good honest work for them, never stolen, worked like a beaver out of that cluttered old Microbus of his, always been amiable and cheerful — a little hard-of-hearing, maybe, but certainly not a criminal type.
All through the trial — it lasted about five hours, not counting the break for lunch — Deke’s live-in girl friend Shirley sat right behind the rail and surreptitiously held hands with Deke. Judge Berlin saw that, of course, but she made no objection to it and Stanley was slightly encouraged by her evident sympathy for the boy. Just the same, he realized that the facts in the case were clear, that there’d been a violation of the felony law and that he was going to have to pull something very clever indeed if he was to save Deke from misery.
Ellenburgh made his closing argument — very brief, it didn’t need much elucidation. Then Stanley stood up and addressed the bench.
“Your honor, I don’t think anybody’s disputing the facts in this case. We seem to be caught up on a legal issue rather than a factual one. My client makes no secret of the fact that he had the gun on his truck seat as the officer testified. That its presence was not intended for felonious purpose is, in the eyes of the law, immaterial. We seem to be faced with a mandatory situation here, wherein the accused — even though our sympathies may go out to him wholeheartedly — appears to be uncompromisingly guilty in the eyes of the law. Even a suspended sentence in this case would brand my client a felon for the rest of his life and deprive him of vital constitutional rights, as you know.”
Judge Berlin watched him suspiciously: apparently Stanley was only confirming the prosecution’s case. She said, “Are you defending the young man or simply throwing him on the mercy of the court, Mr. Dern?”
“I’d like to defend him, your honor. I’d like to point out to the Court the provision of the state’s anti-gun-possession statute which specifically exempts from prosecution the honest citizen who, for purposes of self-protection or otherwise, elects to keep a gun — loaded or otherwise — on the premises of his own home or place of business.”
“Mr. Dern, I’m fully aware of that provision. I don’t see how it applies in this case.”
“Your honor,” Stanley said quietly, “my client maintains, with perfectly good reason, that his Microbus is in fact his place of business.”
There was a loud objection from prosecutor Ellenburgh but Judge Berlin had begun to laugh and Stanley knew by the tone of her laughter that he’d won.
Deke Allen told me, some time later, after he’d had time to reflect on the experience, “I guess Justice is blind. But the rest of us sure as hell have to keep our eyes open, don’t we?”
Hunting Accident
“Hunting Accident” is an exercise in wishful thinking: not the way things are but the way we sometimes would like them to be.
When I arrived in the office Tuesday morning Cord’s wife was waiting for me. She didn’t rise from the chair. I’d heard the news on the car radio and her grief didn’t surprise me but it was mitigated by anger: she was in a rage.
“I’m sorry, Mrs. Cord. I just heard.”
Her lips kept working and she blinked at me but she held her tongue; perhaps she was afraid of what might come out. Her natural appearance was drab but normally she managed attractive contrivances. This morning there was no makeup. She sat with her shoulders rolled forward and her arms folded as if she had a severe abdominal pain. Now she snarled — a visible exposing of teeth — and afterward she remembered herself, tried an apologetic smile, gathered herself with an obvious effort of will. Her wrath had rendered her inarticulate.