WMDs, Anyone?
Gonzales v. Raich

Dark Justice -- Chapter 25

Pulling Strings

"Judge Nash, it is Justice Fitzgerald on line four."

Benjamin Nash was intrigued. Why would a justice of the Supreme Court be calling him?

"Benjamin Nash," he said, sitting ramrod straight in his swivel chair, feet planted firmly on the floor.

"Ben, this is Harmon Fitzgerald, how are you?"

"I am well, thanks, Mr. Justice."

"Please, call me Harmon. Let’s not be so formal when no one is watching."

"What can I do for you, er, Harmon?" It wasn’t easy for Nash to be familiar with a member of the Supreme Court. Nash had the sense that this conversation was taking too long to come to the point, as though he were awaiting a violent summer storm. There was electricity in the air, and a deceptive stillness. When would the first thunder clap sound?

There was a silence on the line before Fitzgerald spoke again.

"Well, when do you expect to call the Antoine case to trial?" The pace of Fitzgerald’s speech suddenly accelerated. "I am not trying to influence the proceedings, mind you."

"Of course. Of course, I understand."

"But I cannot tell from the papers when the case is going to go. As you can imagine, my wife is pressing me to find out."

Now it was Nash’s turn for silence. Were there any ethical rules that prohibited this conversation? He could think of none. Then why the sense of unease?

"Well, um, Harmon. It could go at any point."

"Isn’t the probable cause hearing going to resume?" Fitzgerald asked.

"No. No. Mr. Antoine’s new lawyer waived the hearing. Guess he’s hoping a witness or two disappears before trial and he doesn’t want to get stuck with a transcript. You know the game."

"Who is his lawyer now?"

"Shamir. Mark Shamir from the public defender’s office."

Fitzgerald remembered him now. Late thirties but already a veteran of dozens of murder trials. From time to time he was also permitted to argue appeals arising from his cases, a rarity among public defenders where labor was typically divided between trial and appellate lawyers. He was smart. His decision to waive a probable cause hearing signaled a certain confidence. He sacrificed a chance to get a look at several of the state’s witnesses, but he also avoided the danger that should a witness disappear before trial that person’s testimony might merely be read to a jury.

"Well, Ben. I would appreciate anything you could do to bring this case to trial soon."

"I understand," Nash was noncommittal now, defending his turf.

Another pause.

"Any idea who will try the case, Ben?"

"I haven’t given it a thought yet. I’ll see who is available at the time of trial." Just a touch of defiance now.

"Hmmm. Well, I know Jon Reardon’s a fine man. New to the bench, but I’ve seen him in action as a lawyer. I think he could manage this sort of case well." Fitzgerald sat with eyes slammed shut, rubbing his temples with thumb and forefinger of his right hand. This did not feel right.

"Well, we’ll have to see who is available at the time of trial, Justice, er, Harmon."

"Indeed, Ben. By the way, we are about to vote on the budget for courthouse improvements. You still pressing for that new parking garage?"

Nash was stunned. Was this a quid pro quo? Reardon in exchange for a parking garage?

"Yes, sir."

"Well, Ben. We’ll have to see what is available won’t we?"

Nash was silent. Fitzgerald wondered whether the hook was set.

"I’ve got to go, Ben. Thanks for taking the time to chat."

"Anytime, Mr. Justice. Call me any time." Nash hung up. A frown etched across his forehead. He pulled a file from his drawer. It was labeled "Trial Ready Cases." He had forty-four cases ready to go. Antoine’s was thirty-fifth on the list. At the rate business moved, the case would normally not be reached for at least another year. But what would be the harm of bumping it up? A few heads would turn, but what of it? The case was high-profile. It would be good public relations for the court system to be perceived as something other than a slow-moving glacier.

Nash placed calls to Shamir and to Clarence Sterling, the prosecutor, leaving messages for both to return his call and report when they would be available to try the Antoine case.


The prosecutor glowed red, stamped her foot and stomped her way over to the witness. She ripped the document from the witness’s hand.

"May I have a brief recess, judge?" The statement was in the form of a question, but it sounded like an insult.

"The court will stand in recess for ten minutes," Reardon said. He arose immediately and walked out of the courtroom. He needed to get out of the room before he spoke the truth.

Dumb, dumb, dumb as dirt, he was thinking as he headed down the back hall to his chambers. The prosecutor behaved as though the rules of evidence were merely optional. She had apparently spent little or no time thinking about how to prove her case. When challenged, she acted as though it were defense counsel’s, or perhaps Reardon’s, fault that her case was not flowing smoothly. At the bottom of what barrel did the Office of the State’s Attorney find this one?

Reardon was presiding over something called a court trial. The defendant was accused of violating his probation and the state wanted him whisked back to jail. His offense? Failing to keep his probation officer informed of his correct address. It appeared as though the man had moved four times in three months. He was a sex offender. That meant he could not live near children. As a felon he was having a hard time finding a job. He was also prohibited from living at home with his wife. He didn’t have many options, and, from the testimony thus far he had spent a few days living in a car, a week or so on the floor of a friend’s business, and a couple of nights in a flop house. Just what did the state expect of him, Reardon wondered.

There was no jury in the room. That meant that the judge "found" the facts. The law’s language amused Reardon. "Oh, sweetheart, look!" he imagined saying to Millie. "I’ve found a fact." As though facts could be tripped over, fondled and passed from hand to hand. The grand and eloquent intellects at the bar and preaching from comfortable law-school perches loved to talk about legal theories, the bold and beautiful principles and presumptions that connected life’s random dots. They disdained mere matters of proof, as though any idiot could stub their toe upon facts; only legal geniuses, such as themselves, could arrange them in the proper way.

Reardon’s reveries were interrupted by a ringing phone.

"Jon, this is Benjamin Nash." It was never just plain Ben.

"Hello, Ben. What can I do for you?"

"I am calling the Antoine case to trial next week. I’d like to assign it to you."

Something like panic welled in Reardon.

"Are you up for it?"

In a flash, Reardon thought of a thousand reasons why he was not. He was new to the bench, for starters, and had presided over only a couple of jury trials in the eight or so months he’d been a judge. This case would attract attention nationally.

"Well, I’ve not got that much experience, Ben"

"Hmm. Well, I have considered that, Jon. But my sense is the issues are straightforward, and you have dealt with the lawyers involved. I think you’ll do fine."

Reardon said nothing.

"Are they any other reasons why you might want to pass on this one?"

Reardon’s eyes looked toward his desk drawer. The Shark’s envelope. A missing tongue signifying what, that nothing had happened? He was uneasy, but about what? What rule had he violated? What confidence had he betrayed? He’d kept his confidences. There was not even an appearance of improper conduct to consider.

"No, Ben. I was just thinking, I was," he paused. "I was thinking that I would be honored to be given this assignment."

"Good man. The lawyers will be in to see you Monday at 9:00 a.m. Clarence Sterling for the State; Mark Shamir for Mr. Antoine."

"Okay," Reardon said it almost as if it were a question.

"Good luck, Jon. Let me know if you need anything."

Reardon suddenly felt more lonely than he had felt in years.