Defense, page 16
Rifkin’s forefinger drew a circle in the air, suggesting that everything comes back to itself, that every beginning leads to an end and every ending leads back to the beginning.
“The first word reminds us of the descent to the cave.”
“But not if you have just started to read it. Not if you had not already read it, or at least not heard about the story of the cave,” Horace pointed out.
Rifkin nodded quickly. “Yes, exactly right. Only someone who had read it through to the end would know what it meant at the beginning. Exactly. But if you have done that, then you begin to ask some questions. The first time you read it you learn that Socrates went down to the Piraeus. Socrates questioned everyone and everything, and while he claims to know only that he knows nothing, he talks about the ideas or the essence of things as if they are the only real things. The Athenian democracy thinks he is strange and perhaps even mad.”
“And they put him on trial,” I added when Rifkin fell silent.
“Yes,” he agreed, staring into the distance, “they put him on trial.”
When he looked at us again, his eyes were burning with the luminous intensity of a medieval monk poring over the pages of an ancient handwritten manuscript. “I first began to understand something of the complexity of what on the surface seems so simple in Plato when I began to read Maimonides. In one of the early chapters of the Guide for the Perplexed, he cites a passage from Proverbs: ‘For a word fitly spoken is like applets of gold in filigree of silver.’ Maimonides interprets this to mean that when someone who understands things writes with great precision and great caution everyone will admire it, but if you are willing and able to look beneath the surface you will find something much more valuable—the ‘applets of gold.’”
He paused, and in the silence I could hear outside the endless rains of perpetual despair. This was the season when a clear day seemed nothing more than a brief, mocking interruption in the rains that had been coming since the first day of Creation. I turned away from the window and the blackened sky.
It was late in the afternoon and the courthouse was practically deserted, but Rifkin had to get back into court. A hearing had been scheduled for four. With any other judge that meant an hour; with Rifkin it meant however long it took. He stood next to the door to the courtroom, adjusting his black robe.
“Lincoln said that the principles on which the words of the Constitution had to be interpreted and understood could only be found in the Declaration of Independence. He said that the relation between the Constitution and the Declaration was like the passage in Proverbs where it is said, ‘For a word fitly spoken is like applets of gold in filigree of silver.’ Extraordinary, isn’t it?” he asked, shaking his small head. Then he opened the door and disappeared inside.
We left Rifkin’s chambers and, without talking about where we were going, drifted into the courthouse cafeteria. A half dozen deputy sheriffs with nothing left to do were sitting at a table in the corner, drinking coffee and laughing at their jokes. A young man wearing a white T-shirt with sleeves rolled up over muscled arms mopped the gray linoleum floor, moving chairs and tables out of his way sometimes with his elbow, sometimes with his hip. All we wanted was coffee, but out of habit we both took a tray and guided it over the aluminum tubing to the large urns next to the cash register.
We waited while a rotund gray-haired woman who was washing dishes dried her hands on her apron. Her face was red and her forehead glistened with sweat. She looked at what we had, took our money, and stared at the cash register.
“Keep the change,” Horace said.
We made our way through the maze of tables to a place where we would not be overheard.
“Sometimes I wonder why I love the guy so much,” Horace remarked as he put his cup of coffee on the table and lowered himself carefully onto the flimsy metal chair. “Whenever I sit there listening to him talk like that, it makes me feel he knows all these things and that when he explains them I can understand.” Horace laughed self-consciously. “You know what I mean.”
I nodded and smiled and then stared down while I stirred my coffee. I could think of nothing to add. “Tell me, what’s it like with him, now that you’re our newest distinguished jurist?”
He leaned back, folded his hands on his lap, and fixed me with a jaundiced smile. “With him, it’s great. He takes everything seriously. The rest of the guys. Let me put it to you this way. You know how when we were sitting in court, how we would make disparaging remarks about certain judges? Well, we were being kind. They think they know everything, and they don’t know a damn thing. You know what one of them—Reynolds—said the other day? It was at the weekly judicial conference. Judicial conference! There’s a joke! Reynolds is talking about some lawyer and is just disgusted. This lawyer had filed a brief in a criminal case in which he had cited a couple of very recent decisions by the U.S. Supreme Court. Reynolds—that smug little bastard!—says he told the lawyer that he didn’t have time to deal with Supreme Court decisions, that the police had a tough job to do, and that if the lawyer didn’t like it he could just take this case up to the Supreme Court! You imagine!?”
It was easy to imagine. Reynolds had done the same thing to me, years before, when I was a young lawyer no one had heard of.
“How did Rifkin react to that?”
“Nothing. He hears everything, but some things he pretends he doesn’t hear. It’s like the nice girl who hears someone tell a dirty joke. She doesn’t laugh, but she doesn’t walk out of the room, either.”
Suddenly, Horace lunged forward and slammed the palm of his hand down on the table. Instinctively, I pulled back.
“Remember the time!? Oh, hell, it must have been a couple of years ago. He told us he thought the best lawyers were the ones who, when they talk to the jury, always assume there is someone there who knows more than they do. I thought he was saying you shouldn’t take yourself so seriously. Later, I realized he was saying that you should assume someone knows more than you do, so that, instead of talking down, you talk up to them. That’s what he does. When someone like Reynolds says something stupid, he just ignores it and treats him as if he had never said anything like that. Reynolds says stupid things, but he says them far less when Leopold is around.”
Horace narrowed his eyes and dropped his head down until he was looking at me over the top of his half-rim glasses. “He makes them realize they’re not as smart as they think they are. They don’t like him, and if they ever had the chance to get rid of him…”
We had barely touched our coffee. It was time to go. Outside, the merciless rains were still falling in their monotonous rhythm. We stood just inside the door, reluctant to leave.
“I wonder why he talks to us.”
“Who else does he have to talk to?” Horace replied. “He has no family. He doesn’t have a whole lot in common with the other judges. We may be his only friends. He gives that party once a year, and for the rest of it, he stays to himself. He must get lonely.”
Horace shivered, whether at the prospect of what waited for us outside or at the thought of living alone, I could not tell.
I took hold of his arm. “There’s a line somewhere. It must have been written about someone like Leopold. ‘He was never less alone than when he was alone.’”
Horace raised his eyebrows and looked at me with thoughtful eyes. “I hope you’re right.”
xiv
When I was a boy dreaming about the things I would do when I was older, I would try to imagine what it was going to be like, all grown up, remembering what it had been like to dream about what I had become. Much of what has happened since, like footsteps in the sand, is either lost in the empty stretches of time or blown together in an impenetrable blur of inconsequence. There are some things I still remember. With a clarity that nothing has been able to dim, the conversations with Leopold Rifkin have stayed with me, the closest thing to a permanent possession I have.
They became a regular ritual of my life. Almost every Friday afternoon, unless I was in trial or out of town, I would show up, uninvited but always welcome, sometimes with Horace and sometimes alone. Rifkin would put aside whatever he was working on and we would talk. It always began with a case that was being tried or an issue that had been raised; it always ended with Rifkin finding a connection with some first principle, some fundamental question. He knew things that neither Horace nor I had ever even thought about. And I can remember things he said as if I were back in chambers, hearing them for the first time.
Everything else about those years is vague and uncertain. I can barely remember the faces, and have long since forgotten the names, of the women I once saw in my dreams and whose names I knew in my sleep. None of them lasted; I would begin to look for someone new almost before the one I was with had become someone old. And then Alexandra came, and I never wanted anyone else again. Only Alexandra. She was the beginning of my life.
The first time we met, I barely noticed she was alive. I was too irritated to notice much of anything except how much I despised Joshua Thorndyke III. The firm had continued to expand, gradually at first, then with almost explosive speed. There were now more than eighty lawyers divided into separate, specialized departments spread out over three floors of what was no longer the newest office building in town. Joshua Thorndyke was head of the civil litigation division.
Joshua Thorndyke III wore that Roman numeral like the brass plate next to the door of a private mausoleum. His grandfather, the first Joshua Thorndyke, had been on the Connecticut Supreme Court and a member of the governing board of Yale University. All three Joshua Thorndykes, the grandfather, the father, and the son graduated from the Yale Law School. Joshua Thorndyke the second had also become a judge, but not in the state courts; he became a judge on the federal court of appeals.
From the moment of his birth, everyone, at least everyone in his family, was convinced that Joshua Thorndyke III would continue the Thorndyke climb up the judicial ladder. He was going to become the first, but no doubt not the last, Thorndyke to take a seat on the United States Supreme Court. He turned down dozens of offers to join large firms in Boston and New York, and decided to come West, because, though he never quite came out and said it, he thought there would be fewer people like himself. Success would be immediate. When my partners hired him as an associate, he congratulated them.
Thorndyke was very bright, but like a lot of bright people he was not terribly smart. He knew everything about the law. He could cite cases few had heard of, and he knew every rule of civil and court procedure backwards and forwards. His mind worked like a flawless, finely calibrated machine. He was the kid in grammar school who knew all the answers but never understood that some questions were more important than others.
* * *
We were sitting across from each other. Thorndyke and three associates were on one side of the massive mahogany table that occupied most of the conference room. I was on the other side, directly opposite, alone except for the unfortunate Dr. Bernard Rothstein, who had been acquitted on criminal charges and was now about to enter the endless labyrinth of civil litigation. He might have been better off had he just pled guilty and gone to prison.
Thorndyke introduced the attorneys ranged on each side of him and, without bothering even to glance in her direction, his paralegal, Miss Macaulay. The lawyers, all buttoned up in their double-breasted suits, nodded condescendingly at the mention of their names. Miss Macaulay smiled and in a warm, friendly voice, said hello. For the first time since we entered the room, Bernie Rothstein started to relax.
“As I’m sure Mr. Antonelli has told you, I head the civil litigation division.”
“No,” I interrupted, “I forgot to mention that. I just told him we were meeting with some of the lawyers who will be handling his defense in the civil trial.”
Thorndyke nodded at me the same way his associates had nodded at Bernie. “As the head of the civil litigation division it is my job to decide the legal strategy we will pursue in our representation in this matter. I have of course reviewed the complaint filed by the plaintiff.”
He reached out with his left hand, and one of the associates handed him the file.
“A Mrs. Nancy Asher. Mrs. Asher of course was the victim in the criminal case in which Mr. Antonelli of our firm represented you.”
“Mr. Antonelli of our firm.” That was priceless. But that bit of presumption could be forgiven.
“Mrs. Asher was not the victim in the criminal case in which Bernie here—Dr. Rothstein—was the defendant.”
He stared at me, expressionless, without the first clue what I was talking about.
“What?”
“She wasn’t the victim,” I repeated. I put my elbows on the table, leaned as far forward as I could, and smiled. “She wasn’t the victim. There was no victim. There was no crime. There was no rape. There was no sexual assault of any kind. The accusation was simply that: an accusation. The jury found Dr. Rothstein not guilty, and they reached that verdict in twenty minutes.”
Thorndyke nodded. “Yes, of course. I understand.”
He shifted his gaze to Rothstein. “As I’m sure Mr. Antonelli has told you, the burden of proof is considerably different in a civil case than it is in a criminal case. The prosecution had to prove guilt beyond a reasonable doubt. Obviously, they weren’t able to do that. But your nurse Mrs. Asher has now brought suit against you for sexual assault. She doesn’t have to prove it beyond a reasonable doubt. She just has to convince a jury by a preponderance of the evidence. If the jury believes that she has evidence that is slightly better than yours, she wins.”
While Thorndyke droned on about the differences between criminal and civil trials, I shoved my hands down into my pockets, sank back in my chair, and stared down at my shoes.
“After a careful review of the trial transcript, I must tell you, Dr. Rothstein, you will have a very difficult time prevailing. I have already been in touch with the attorneys on the other side. I’m happy to report that they seem genuinely interested in negotiating a settlement.”
I shut my eyes and began to rub my forehead.
“But I never touched her,” Rothstein protested.
“You admitted you had sex with her—on numerous occasions.”
“Yes. I admitted that. I had been having an affair with her. We had sex often. I shouldn’t have, but there you have it. Then, the last time we were together, she demanded I leave my wife and marry her. I refused. She threatened to tell my wife. Instead, she told her husband that I raped her! Just like that, raped her!”
Bernie Rothstein had spent a year of his life dealing first with an accusation and then a trial. It had almost destroyed his life and he still could not quite believe it.
I sank down lower in the chair. My eyes were still closed. My head moved back and forth, keeping time with the monotonous regularity of Thorndyke’s brusquely cadenced speech.
“Yes, I understand. But, of course, as Mr. Antonelli has no doubt explained to you, when it is a question, as it is in this case, of her word against yours—and when she no longer has to convince a jury beyond a reasonable doubt—then it becomes, as I said before, a very difficult case to defend. You should really look upon this as a strictly economic question. The whole thing is really reducible to a formula, a mathematical formula, if you will. Assume that your chances at trial are 50-50. And that may be optimistic. Even if you win at trial, you will still have had to pay the cost of defending the suit. In addition, if you win, you have to assume that she will appeal. That can take years, and can more than double your cost. If you lose, then, of course, in addition to the legal bills you will have to pay the judgment. And that could be, in a case like this, more than a million. In short, you are much better off to settle for an amount roughly equivalent to what your legal bills could be if you defend through a trial and then through an appeal.”
I opened my eyes and turned just far enough to catch Rothstein’s reaction. He was livid.
“And what about my reputation? What about my life? I’ve already lost my family. My wife left me and has custody of my children. That’s because of the affair. That’s my fault. But everything else—that’s not my fault. How am I going to rebuild my practice? I’m a doctor, for god’s sake! Who is going to trust me as a doctor if I pay off a woman who says I raped her!?”
I watched while Thorndyke nodded, and I waited to hear what new refinement of the formula would cover this contingency.
“You were cleared of the criminal charge. Settlement of the civil suit is the only certain way to put this whole unpleasant business behind you. If you insist on going to trial, you will, as I said before, quite possibly spend more money than you have to, and, I must warn you once again, quite possibly lose.”
“Unless of course,” I interjected before Rothstein could say anything, “he finds himself a lawyer who doesn’t look at a case from a cost-benefit analysis, or, better yet, just a lawyer who actually likes going to trial.”
Thorndyke’s eyes turned hard and the blood started to rise to his face. He did not nod.
“I believe I’ve had rather more experience with civil matters.”
“Tell me, Miss…? I’m sorry.”
“Macaulay,” she reminded me. She seemed almost amused.
“Tell me, Miss Macaulay,” I said as I pulled myself upright, “as you look at Dr. Rothstein here, can you believe for one minute that he is capable of rape?”
It was the same question I had asked the jury during closing argument two months earlier. Bernard Rothstein, five foot eight on his tiptoes and 140 pounds fully dressed, with a shy smile and a manner almost painfully timid, looked unlike any rapist one could imagine.
Miss Macaulay smiled. “No, I cannot.”
