Defending the Truth, page 30
A Streetcar Named Desire is playing at the Paramount Theater downtown. Joshua and Barbara saw it a few weeks ago, and Joshua says that it’s the best movie he’s ever seen. Well, The Maltese Falcon and The Treasure of the Sierra Madre were terrific, too. But they were ten years ago. Streetcar is the best he’s seen lately. Barbara doesn’t agree. She thinks that An American in Paris is better. I don’t go to the movies to feel miserable, she says. I go for entertainment.
A writer named Herman Wouk has just published his latest novel, The Caine Mutiny. Joshua thinks it portrays moral ambiguity about as clearly and brilliantly as anyone ever has.
It is October 17, 1951, and the trial of United States versus Mischa Livinsky is called by the Honorable Robert Buchanan, United States district judge for the District of Arizona.
“Announce your appearances for the record,” he says.
“Michael Brink for the government, Your Honor.”
“Joshua Rabb for the defendant, Your Honor.”
“Thank you, gentlemen. I have assembled a panel of thirty-six prospective jurors. Is there anything to go over before I bring them in and we start the voir dire?”
“No, Your Honor,” Joshua says.
Brink shakes his head.
“Bailiff will bring them in.”
The courtroom is hushed. The three front rows of the spectators’ section have been kept empty to seat the prospective veniremen. The rest of the courtroom is full of curious spectators. Most of them have never seen a Commie before. And this guy is the real thing, a Moscow card-carrying Jew Commie. McCarthy and Maitland have said in twenty speeches, week after week, that Livinsky fits the classic mold of the parlor pinks and parlor punks who are insidiously destroying America. Everyone with eyes has read the speeches, everyone with ears has heard them on the radio. Now they’re here to see for themselves.
“Well, he don’t look so bad,” one of the spectators whispers to the man next to him. “Just kinda average-like.”
“That’s what makes ‘em so all-fired dangerous,” says the other man. “They just blend right in, cain’t tell ‘em from decent Americans till they open up their mouths.”
The first man nods.
“You hear about that lawyer Rabb?”
“You mean about his daughter, and all?”
The first man nods.
“Yeah, real strange, ain’t it. Suddenly it all gets dropped. First that Mex judge over at the county lets her off on a murder charge, then this here judge, too.”
“Yeah, it’s a thinker, awright. Gotta watch these fuckin’ judges ever’ minute.”
Thirty-six men and women shuffle along the wooden benches and take their seats. The judge rambles on for fifteen minutes about the meaning of justice and the sacred role of the jury in American democracy. Then he questions the men and women as a group for another twenty minutes, receiving grunted yesses and noes in response.
“This is about the most borin’ shit I ever seen,” whispers a spectator.
“Yeah,” says the elderly woman next to him, “but this is how they always do it. I seen it on TV.”
“Mr. Brink, you may voir dire,” Judge Buchanan says.
Then the prosecutor asks a bunch of questions, and now and then he and the other lawyer huddle at the bench with the judge hunched forward to hear them, and slowly the panel of jurors is winnowed down to twenty-seven. And then the judge lets the other lawyer ask a whole lot of the same questions, and there are more huddles and more folks get excused from the panel and thanked by the judge for taking the time out of their busy schedules to come to court, as if they had a choice.
And then the judge calls a recess for ten minutes and tells the lawyers to choose a jury. And the spectators file out into the hallway and wonder when the goddamn trial is really going to start, because they already wasted two hours on this shit, and they’re ready to tear their hair out from boredom.
“The government calls Charles Holmes,” Michael Brink said, standing at the prosecution table.
“Come forward and be sworn,” Judge Buchanan said.
The handsome, strapping, blond crew-cutted Holmes walked down the aisle into the well of the courtroom and stood tall and straight before the court clerk, his hand on a Bible.
“Do you swear to tell the truth, the whole truth, and nothing but the truth, so help you God?” said the clerk.
“I do,” Holmes said. He sat down in the witness chair.
The spectators were finally getting their show. They leaned forward expectantly, hanging on every word. This was the kind of wholesome American who risked his life every day for the safety of all other wholesome Americans, just like themselves.
“State your name and occupation,” Brink said.
“Yes sir. Federal Bureau of Investigation Special Agent Charles Holmes. I’m a member of a special unit of the FBI attached to the attorney general’s Subversive Activities Control Board. It’s our duty to find the Communists who fail to register and arrest them.”
“And in furtherance of your sworn duty, did you come in contact with the defendant, Mischa Livinsky?”
“I did.”
“Tell the jury how that came about?”
“After Investigator Anne Marie Hauser had recommended that the Academics Against War be listed as a Communist front organization, the attorney general placed it on the subversives list. No one registered within the sixty days allotted for registration.”
“So what did you do?”
“Me and my partner, Herman Schlesinger, were sent out here to meet with the assistant United States attorney for Tucson and get an indictment and an arrest warrant for Livinsky.”
“Was Livinsky the only individual you intended to arrest?”
“No, we also came out for Julio Moraga. But he murdered Anne Marie Hauser and overdosed on—”
Joshua was on his feet roaring with anger. “Your Honor, I object to this outrageous testimony. I ask that it be stricken and that the court admonish the jury.”
“Yes,” Judge Buchanan said. He looked toward the jury. “The jury will disregard the last comment.” He looked cautioningly at Michael Brink. “Don’t do it again, Mr. Brink. Keep your witness under control.”
“See what I tol’ ya,” whispered one spectator to another. “Ya gotta watch them fuckin’ judges like a hawk. He won’t even let that FBI man testify about what he knows.”
The other man nodded and shook his head, disgusted. “Damn judge. It ain’t right.”
“Did you know Anne Marie Hauser?” Brink asked.
Joshua rose once again quickly to his feet. “Objection, Your Honor. Irrelevant.”
“Enlighten the court as to the relevancy, Mr. Brink,” Judge Buchanan said.
“May it please the court, this is all res gestae, the background necessary to establish the basis upon which the FBI special agents came to Tucson and encountered Livinsky. Mrs. Hauser’s investigation is relevant, and since she is dead, I believe that it’s proper for Special Agent Holmes to introduce the significant elements.”
Judge Buchanan pursed his lips, thought about it for a moment, and nodded. “All right, Mr. Brink. Proceed, but keep it tightly confined.”
“Thank you, Your Honor.” Turning back to the witness, “Agent Holmes, did you know Anne Marie Hauser?”
“Yes. For a year, since I was assigned to the Subversives Control Board.”
“And what do you know about her?”
“She was the widow of a Marine Corps captain, killed in the Solomons in the Second World War. She worked for the House Committee on Un-American Affairs and then became a civilian investigator with the Subversives Board. She was a very good friend of Senator Joe McCarthy.”
“I object, Your Honor. This is absolutely improper,” Joshua said, standing up quickly.
“Mr. Brink,” said the judge, fixing him with an angry glare, “I will not warn you again. One more time, and I will hold you in contempt.”
The spectator nudged the other one with his elbow. “Can ya believe that Commie bastard’s a judge?” he whispered.
“Damn shame,” whispered the man.
The trial goes forward, a second day. Joshua goes to the hospital in the evening to visit Barbara. The doctor says I’m fine, she says to him. But she looks just a bit sallow, and there are lines of pain around her eyes. When he gets into his car to go home, he clutches the steering wheel and tears spring to his eyes. He is afraid for her.
It is eight o’clock in the morning, the third day of the trial. Barbara and her father are already sitting in the front row of the spectators’ pews when Joshua arrives. She smiles at him, and Hal even tries an encouraging smile. Joshua kneels down in front of the wooden railing, and she leans close to him.
“Why aren’t you at the hospital?” he whispers.
“I don’t need to be. I need to be with you.”
“But, honey, I, I—”
“I’m perfectly okay,” she says. “Don’t worry. Just be Joshua Rabb.”
He looks into her eyes, and he suddenly wonders how he could be so lucky. He smiles at her, and she presses forward and kisses his forehead. He stands and returns to the defense table.
Mischa Livinsky takes the stand as the final witness. He is everything that everyone has waited impatiently for. He speaks English stiffly, formally, with a thick Russian accent. He actually belonged to the Communist party in Moscow. He taught political economy at a Russian university. He never denounced his party affiliation, even though he signed loyalty oaths at two American universities. He co-authored an antiwar article that was published in a national political science journal. He belonged to a group of University of Arizona professors who opposed the war. The official policy of the Soviet Union was opposition to the war. He kept notes in Yiddish about the group’s meetings. He didn’t register as a subversive because he is not a subversive and felt it was an unjust determination, and he was deeply insulted by it. “And,” he admits, stumbling over the words, “I was defiant.”
“Mr. Brink,” the judge says, “you may begin your closing argument.”
“Thank you, Your Honor,” says the assistant United States attorney from Phoenix, standing up at the prosecution table. He is handsome, youthful, and buoyant with the Tightness of his cause. It is America’s cause, to take traitors like this out of the universities where they can do irreparable damage to our youth.
“I’ve got two kids myself,” Mike Brink says. “They’re just six and nine, but by the time they get to the University of Arizona, I want to make certain that there are no Commies and fellow travelers around to poison their souls.”
Joshua should object to this type of argument. Brink should be arguing the evidence to the jury, not waving the flag and fatherhood. But Joshua does not object. He is hardly listening. He is having a nightmare, that is actually a daymare. It has possessed him fully now and will not free him.
Joshua believes that the jury will find that Mischa Livinsky is guilty of failure to register. They will find that Mischa Livinsky is a traitor. Judge Robert Buchanan will dismiss the jury, and with a grim and sorrowful demeanor—because he knows how unjust the verdict is—he will order the convicted man to be held without bail at the Mount Lemmon Detention Center pending sentencing in one month. There is no ambiguity about sentencing under the treason statute. Livinsky will be put to death.
But there are other things that will be done by Joshua Rabb in the interim to attempt to insure that Mischa Livinsky will not be executed, will ultimately be exonerated, at least of treason. Joshua will bring a motion for new trial, and perhaps Judge Buchanan will grant it. All of the pretrial publicity, all of the hate-filled stories and speeches that have invaded this little Southwest town and poisoned the minds of the jurors, of everyone, have created an atmosphere of hate in which the defendant was denied justice. And Joshua will bring a motion of acquittal non obstante veredicto, hoping that Judge Buchanan on his own will set aside the jury’s verdict and spare Mischa Livinsky from the hangman’s noose at Leavenworth. And failing all of that, Joshua will appeal to the Ninth Circuit Court of Appeals, and then, if need be, to the United States Supreme Court.
Somewhere in this great system of justice, justice will be done. Somewhere along the line, a grievous injustice will be avoided.
If only I believed that, Joshua thinks. If only I believed that true justice is the end of this terrible tragedy. Once I believed. Once I knew that there was God, that there was Right and Wrong, and that I knew the difference. Once I believed. Where did that faith go? Where is the certainty that once guided my life?
There is no food in the concentration camp for the former inmates. My own men are subsisting on a small supply of K-rations. An old man comes to my office. He is short and shriveled and thin like a prune on pegs. He was a history professor in Munich, he tells me. He has a fringe of white hair around a bald skull, and the skin of his face is weirdly translucent and covered with spidery capillaries. He has seen many thousands taken to the cinder-block building to join the smoke in the sky, he says in a quavering voice, but God has saved him from the ovens.
I look at him oddly and can’t help wondering why God hadn’t seen fit to save him from the concentration camp altogether, and why He had overlooked the hundreds of tortured and starved human beings who were being buried by my men under mounds of dirt in long mass graves at the edge of the forest.
We must have food, he says to me. My people are still dying from starvation.
Where can we get it? I ask him. My unit has only a two-day supply of K-rations for ourselves.
There are full warehouses of grain and smokehouses of beef and lamb in the village of Medzibiez, he says. He knows this because the Jewish inmates have been performing slave labor in the fields and the slaughterhouse of the village for the last two years, supplying the SS and the townspeople with all of their food. He has often been on these work details and knows where the stores are.
I ask my adjutant to assemble C squad and get two deuce and a half trucks out of the motor pool. I take the old man to the motor pool, load the trucks with the eleven men, and we drive to Medzibiez. We go to a large wooden shed on the outskirts of town. I take a crowbar and pry the locked latch off the front doors. Inside are sacks of grain and potatoes. My men load one of the trucks all the way to the canvas top. I leave two of my men to guard the potatoes and grain stores.
We drive into the small town to a smaller shed with stone walls and a thatched roof. I pry the lock off the shed, and my men load smoked haunches of beef and lamb until they are three feet high in the second truck. A young man runs toward us from a butcher shop across the dirt street. He is screaming something in Czech that none of us understands. One of my squad bars his way with his M-l and the man backs hesitantly across the street to his shop. I leave two of my men to guard the smokehouse.
The next morning I am sitting in my office when a delegation of four men from the town come to see me. They introduce themselves importantly: the mayor, the wealthiest landowner, the principal commercial entrepreneur, the doctor.
I don’t speak Czech, I tell them.
A little German, maybe? the mayor asks.
Yes, I say.
We are happy to meet the new kommandant, he says in fluent German. We have all prayed to the icon of the Virgin for years to rid us of the pestilence of the Nazis. He mock-spits on the wooden floor of my office for emphasis. Finally our prayers have been answered, he says.
I stare at him.
He shuffles his feet a bit, and continues. We would like to offer you in good faith the same deal that the SS bastards stole from us without asking: we will supply your soldiers with all the food they need, but we need your inmates to plant the fields and tend the herds. Most of our young men are in the army or killed, and we have no workers.
Which army? I ask.
He swallows and his eyes twitch and he wrings the brim of his black felt fedora in his hands. Why, the Red Army, of course. Your allies.
Kwatch! I mutter. This is the Sudetenland. All of your boys are in the Wehrmacht.
What could we do? whines the landowner, an old man with twisted hands and a bald head like a peeled onion. The Germans came, they forced them into the army.
None of the inmates are capable of working, I tell them. But they do not have to. I have seized all of the contents of the two sheds we entered yesterday so that I can feed them and my troops.
You cannot do that, sputters the mayor. Steal all of our food? And for what, for Christ killers? The Jews will cast spells on the wheat and the potatoes and you will vomit until you collapse, the meat will turn to wriggling vermin in your mouths.
I ring up my adjutant, Captain Reilly, on my field telephone. He and a squad are behind the barracks burying nineteen more of the inmates who died yesterday. Get up here with a couple of your guys, I tell him.
I sit back in my chair and stare blandly at the mayor, who looks quizzically around at the other three.
Cormac Reilly comes in with two sergeants. Yes, sir, he says.
Take these gentlemen out behind the barracks and have them dig the graves for the dead. Your men are relieved.
Reilly looks at the men and then at me. Zat legal, Major? These ain’t combatants, they’re Czech civilians. They ain’t done nothin’ wrong. I gotta clear this with division. It just ain ‘t legal.
Fuck legal, I bark at him. If they try to run, shoot them.
Mac wrinkles his brow at me and his eyes get big. But, Major—
You got a gun, Mac. That makes it legal.
Reilly stares at me and shakes his head. You ain’t the man I thought you was, Major, he says to me.
You got a fuckin’ hearing disorder, Mac? I say.
No, sir. Let’s go, boys, he says to the four men, and gestures for them to precede him out of the office. The two sergeants take their Colt .45 automatics out of their holsters and hold them down to their sides. Fear distorts the faces of the dignitaries, and they leave my office.
