Scott Turow - Limitations

“That one’s all on me. I was trying to pee on peril, just to show myself I wasn’t scared. In a better frame of mind, I’d have recognized that those kids were marking me.”

“Will you promise that, from now on, you’ll cool out in the corner of a bar like an average human being?”

“No way. I’m sticking with the garage. I’m hoping for a big workmen’s comp claim.” George lifts the sling.

“You may run into some trouble on appeal,” the Chief says.

“Anyway, when Marina came in to impound the computer, she must have given John a hint that it was about the very first message, and he knew that would be the end.”

“Because?”

“Because Marina would focus on my staff. Sooner or later, with that group under suspicion, she’d reinvestigate the way they looked for the cell phone. And besides, it wouldn’t take a nightstick and a bright light for John to wilt under questioning.”

“Speaking of Marina, have you told her all this yet?”

“She’s called four times. But I want John to get a lawyer first.”

“Oh, thank you,” the Chief says, “thank you for that. Five will get you ten that I’ll have a letter by the end of the week threatening all of us with a suit for a hostile workplace. Simon Legree was employer of the year compared to you, making poor John watch that terrible videotape over and over again.”

“You think that’ll give him a little leverage?”

Rusty bobs his head this way and that. “A little. We’ve both seen screwier defenses. So what do you want him to get, Mr. Justice Bleeding-Heart?”

“I don’t see the point of prosecution. The guy’s forty-two years old, no record, great service to the court. I hope the P.A. agrees to a diversion program with psychiatric treatment.”

“And what are those boys who held you up going to catch?”

“Those boys have had their second chance. And their twelfth. And Banion didn’t break my arm. Or pull a gun.”

“And what about his license?”

“Suspended. Until his shrink says otherwise. Any chance you can support all of that, Rusty? I’m sure Marina will want the death penalty.”

“I’m sure. But only after your clerk spends several months at Abu Ghraib.” Rusty mulls, eyeing the distance. “Diversion is still confidential, isn’t it?”

“Right.”

“And the suspension. That’s a one-liner in the court record. Nobody knows why.”

“Right. What are you thinking, Chief?”

“I’m thinking John Banion’s a fortunate guy.”

“Because?”

“Because I want this to go away quietly. Very quietly. I’m going to put Marina on an investigative moratorium. For the good of the court. When John’s lawyer calls, you can tell her or him to try to work this out on a double-deep, supersecret, confidential basis with the P.A. and Bar Admissions. Along the lines you mentioned. With my consent. I’ll repeat that to whoever needs to hear it.”

“Thank you, Rusty.”

“I’d let you kiss my ring, but the truth, chum, is that I’m doing this for all of us. I don’t want Koll to hear this story, not before the ink is completely dry on his resignation. And the County Board’s going to vote on Marina’s funding request within the next week. Better they don’t start thinking that everything with #1 was just a little soap opera in your chambers and get second thoughts about giving us the money.”

“The wisdom of power.” George stands.

“May I ask?”

“What’s that?”

“About Warnovits,” says Rusty. “Is it decided?”

“I have a draft.”

“Was justice done?” After his performance last week, Rusty is reluctant to ask directly whether the case is being affirmed or reversed until the opinion is public. And just now, as a matter of friendly torment, George chooses not to answer. Instead, Judge Mason places his good hand on the head of his friend in brief, mutual benediction.

“We try,” George says. “We can only try.”

1. Our Brother Koll dissents, claiming that the videotape in fact was inadmissible under our state’s eavesdropping law. [citation] This point was not raised in this Court or at trial, and thus we cannot consider it on our own, since we do not believe that admission of the tape, even assuming it might have been barred, allowed for a miscarriage of justice. We are driven to this conclusion by the real-world results of a decision to reverse on those grounds. Under our limitations provisions, the prosecution would have a year from the date of reversal to reindict the defendants for the eavesdropping offense, inasmuch as it was part of the same criminal transaction for which they were originally convicted. Since the tape could be admitted in that new case, conviction would be a virtual certainty. It does not strike us as a miscarriage of justice that the defendants were convicted of one felony rather than another, particularly because the underlying sexual assault could clearly be considered by the trial judge in aggravation of the sentence, making a significant prison term inevitable. Furthermore, it’s quite likely that after a grant of immunity or plea bargains involving some of the defendants, one or more would be prosecuted for both eavesdropping and the rape, and could end up with an even longer sentence than the one imposed in this case. Any defendant who suffered that result would undoubtedly return to this court to complain about the miscarriage of justice caused by our meddling.

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