On direct examination Mrs. Gentry proves to be a real trouper. If we could stop the trial right now (not likely, since she is the first witness and hasn’t even been crossexamined), I am convinced Judge Fogarty, the probate judge hearing her case, would let her leave the nursing home. For an eighty-four-year-old woman still weakened by the trauma of a serious infection and gall-bladder surgery, Mrs. Gentry seems to have made a decent impression on Judge Fogarty. It is control over her property that is going to be the problem.
She has become confused about what she owns and how much income is being generated, but, as I will argue at the end of the trial, why shouldn’t she? Her son has completely cut her off from her money for the last six months. Fogarty, one of the smarter judges in Blackwell County, also has lived up to his reputation of treating everyone with respect. When she began to grow upset because of the difficulty of her memory, he told Mrs. Gentry to take her time and allowed me to lead her when it became obvious she was having problems.
As I turn to leave the podium to allow Ferd (“Nerd” of course, behind his back) Machen, the opposing attorney, to crossexamine Mrs. Gentry, I hear a sound like the buzzing of a power line. I have seen her twice and have never heard her hum this loud, but she is going at “Shine On, Harvest Moon” as if she were making her debut at Carnegie Hall. I know it will stop as soon as Ferd begins to crossexamine her, but he is going to stay glued to his seat until Fogarty makes him get up. I had reminded her for the second time right before the trial began not to hum, but, to my horror, she is becoming a one-woman band right in front of our eyes.
“Your Honor,” I plead, “can we have a recess for a moment
Her asshole of a son is smirking as if his mother had been caught trying to pull down her pants in the courtroom. Judge Fogarty stands up.
“Why don’t we take five minutes?” he says, smiling benignly at Mrs. Gentry.
Typically, as soon as someone speaks, she becomes quiet so she can hear what is being said. It is the silence she has to fill. I invite her to step outside with me. As we walk by the counsel table, I begin to hum “Stars and Stripes For ever.” Screw them all.
The Nerd grins, then tugs at my sleeve and whispers, “You’ll never see a dime of it.”
I shrug as if this were a pro bono referral from Legal Aid.
Yet, I have discovered in the last week that Mrs. Gentry is loaded, or was, having assets of well over a million dollars, more than enough to live comfortably in any retirement community of her choosing and to pay her newest lawyer a generous fee. Out in the hall by the water fountain, I take Mrs.
Gentry’s right hand in mine to calm her down.
“Do you remember we talked about your humming when nobody is talking, Mrs. Gentry?”
Her face flushed with embarrassment, my client stares miserably at the floor. She seems shrunken, and for the first time she looks her age. Maybe she ought to be in a nursing home. Yet why should a person be locked up because of a little humming? She is wearing a bright emerald-green dress and matching pumps with little high heels. This morning when I saw her at the nursing home, I had a fleeting thought that we had a chance. Mrs. Gentry moans, “Some people bite their fingernails when they get nervous. I hum.”
True, but not so loud they can be heard a block away, I think, but then I get an idea. I pull from my right pants pocket an unopened pack of five-flavored Life Savers I bought in the courthouse coffee shop this morning and hand it to her.
“When nobody’s talking, take one of these out and suck on it like your life depends on it.”
She squints warily at the pack of mints in my hand as if I were trying to get her to take drugs and then bends over the fountain to drink. When she is done, she straightens up and takes the mints, sighing, “I’ll try.”
Back in the courtroom, the mints don’t rescue her completely, but they help. A couple of times during her crossexamination, she sounds like someone humming with a Life Saver in her mouth, but at least the volume is way down.
Unfortunately, Mrs. Gentry is becoming more confused than ever about what she owns, and there is nothing she can do about it, since Judge Fogarty won’t sustain a single one of my objections. It is apparent that she needs a guardian of her estate but not so obvious at this point that she requires a guardian of her person, as the law distinguishes the two.
Rustling through his papers, Ferd pretends to pause, hoping he can get her humming again, but I point to her mouth, and she pops in a Life Saver just as she begins “The Blue Danube.”
The Nerd waits as long as he can and then asks, “Isn’t it a fact that three weeks ago you were caught in a closet…”
I shoot out of my seat, cutting Ferd off, “This is irrelevant, Your Honor!”
Judge Fogarty, who for some reason suffers fools more gladly than most judges, says mildly, “I can’t rule on your objection, Mr. Page, until I hear the question.”
There is no jury to keep from hearing the question, so there is no excuse to approach the Bench and argue the point quietly. I look at Mrs. Gentry and know she is beginning to die up there. She pops her last Life Saver in her mouth and stares at me with such a forlorn expression I feel a lump forming in my mouth.
Ferd, whose normal clientele is about as scruffy as mine, finishes his question, “.. . in a closet at the nursing home having sex with a Mr. Peterson?”
I am livid. I turn to Mrs. Gentry’s son as I speak. He is in his sixties, squashed down in his seat as if he knows his mother will never forgive him; nor should she.”
“Your Honor, this question is probative of absolutely nothing, is a total invasion of Mrs. Gentry’s privacy, and is simply to harass and upset her.”
Taking off his reading glasses and rubbing his eyes, Judge Fogarty, laconic as usual, says in a monotone, “What’s the relevancy, Mr. Machen?”
The Nerd, for no apparent reason, points theatrically at my poor client.
“Your Honor, Mrs. Gentry is old and sick;
she could have gotten hurt or even locked in the closet. She may well have been given a social disease. It is just another example that this old lady has no idea what she’s doing and needs to be protected.”
Judge Fogarty stands up, and crooks a finger at us.
“I’d like to see the lawyers back in my chambers right now.
Court’s in recess.” He walks into his chambers without even a backward glance at us.
Ferd and I shrug at each other, wondering what’s up. We haven’t exactly been Clarence Darrow and William Jennings Bryan, but we’ve each done worse, I suspect. I tell Mrs.
Gentry she can come sit at the counsel table, but she glares balefully at her son and shakes her head. He is finally beginning to seem embarrassed by what he is putting his mother through and glances sheepishly at her.
Clarence Fogarty’s chambers are impersonal as a public urinal, without a single plaque or diploma on the walls. His office looks as if he moved in this morning. In fact, he is new, having only recently been elected, but he has had six months to unpack. He is a bachelor (shades of Justice Souter). On his desk, at an angle, I can see a single picture of, presumably, his parents, since he looks just like his mother:
a woman whose most distinguishing features are almost thread-thin lips and a chin so triangular that it reminds me of a snake’s head. No beauty queen, but at least not bovine-looking, as my father used to say of half the girls he saw on the streets in Bear Creek in eastern Arkansas.
Behind closed doors Judge Fogarty’s manner changes.
Gone is his laborious, painstaking, and diffident manner. He grabs the volume of the Arkansas code containing the guardianship statutes from a shelf by his desk and flips through the pages in a rapid, irritated manner. His reputation is that he takes so long to make up his mind on difficult cases my client could be dead by the time he gets around to making a decision.
I glance at the Nerd, who looks smug and confident, as if he has only begun to humiliate my client. It crosses my mind that I am putting Mrs. Gentry through hell. Perhaps, I should tell the judge we will take a voluntary nonsuit and dismiss the case. From the way it has gone in the last ten minutes, it might end up taking six months off Mrs. Gentry’s life no matter who wins, and at her age she doesn’t have that much time to give.
Judge Fogarty looks up over reading glasses considerably more expensive-looking than mine, and says to Ferd in a low, intense voice, “Mr. Machen, do you know what the probate code says is the purpose of the guardianship statute?”
Ferd leans back in the imitation-leather chair provided to the judge’s visitors, and says in an offhand manner, “To protect the ward.”
“Do you know?” Judge Fogarty asks me.
I rack my brain, fearing I’m about to be embarrassed. In taking the case over from Clan, I haven’t exactly knocked myself out reading up on guardianship law. I glanced over the statutes, but I didn’t memorize them. There’s too much law to keep up with all of it, especially if you’re not getting paid. Usually, judges, like lawyers, exhibit a paternalistic attitude when dealing with incompetents. Surely I can’t go wrong with the Nerd’s answer. I guess, “I don’t think Ferd is too far off.” The judge draws back in his chair in obvious disgust with both of us.
“Let me read you both something,” he says brusquely.
“I’m quoting here.
“The purpose is … the development of maximum self-reliance and independence of the parson, and shall be ordered only to the extent necessitated.”
” He pops the bright red book shut and says to Ferd: “My suggestion to you, Mr. Machen, is that in the next fifteen minutes you get together with your client and consider settling this matter along the following lines: Mrs.
Gentry does not appear in need of a guardian of her person;
however, she would seem to require the services of a guard ian of her estate. Unless Mr. Page is going to present evidence of severe mismanagement or fraud, I see no reason why her son should not be appointed guardian of his mother’s estate so long as she is permitted to leave the nursing home and resume her former quality of life. If you want to try this case, it’s fine with me. But let me warn you that I’m not inclined to keep the elderly locked up in nursing homes be cause it’s convenient to do so. You embarrassed that poor old woman out there by that ridiculous question about sex.
If she wants to have sexual relations with another consenting adult, she should be able to do so in the privacy of her own apartment or house instead of being forced to have them in a closet. I’ll resume court in fifteen minutes to either continue the trial or dictate into the record a settlement.”
Ferd leans back in his chair as if he can’t believe his ears.
“Judge, she’s batty as she can be!” he protests, pointing at his head and rotating his right hand in the time-honored manner
“She sounds like a chain saw if you give her a chance!”
Fogarty leans forward on his desk and peers over his glasses unpleasantly at Ferd.
“Mr. Machen,” he says, “the world is full of eccentric people, but we don’t institutionalize them in this country simply because they’re odd. For your information, my mother is in her eighties and hums as loud as Mrs. Gentry, and she does the crossword puzzle in the paper every morning before breakfast!”
The Nerd, whose face has turned almost as red as the statute book on the judge’s desk, says, “Yes, sir,” and he and I leave, chastened as schoolchildren who have been sent to the principal’s office for disrupting class.
After a talk alone with our clients, within ten minutes we witness a reconciliation between mother and son. As Ferd and I watch, our clients embrace in the hall outside the courtroom, I marvel at the capacity of some humans (at least) to forgive and to trust once again people who have wronged them. I wouldn’t want her son near me, but as I watch the tears run down his mother’s cheeks, I realize she really loves him, regardless of how he treated her. However, at her age, she doesn’t have a lot of choice, leaving me to speculate what, if anything, was going on in that closet. Her boyfriend, a man at least a decade younger, refused to talk to me and wasn’t worth a deposition I couldn’t afford. Subpoenaed to testify by Ferd, he has been sequestered with the other witnesses but with this settlement, we will never know, and, for once, I am content to leave my prurient curiosity unsatisfied.
Judge Pogarty, again relaxed and in good spirits after learning Ferd’s client has swallowed the settlement the judge rammed down his throat, tells me to prepare a petition for an attorney’s fee for my representation to be paid from Mrs.
Gentry’s estate, but hints, as I feared, that the amount won’t be overly generous, since he was less than impressed with the quality of representation by both attorneys in the case.
He tells Ferd bluntly that he won’t be able to charge the estate at all for his time in court. My cheeks burn, but Mrs. Gentry is happy. She tells me to come visit her any time. When Eagle Savings and Loan forecloses on my mortgage, I will remember her invitation.
Cooking in the July heat, I walk back to my office wondering what lessons I have learned from this case. In the future, reading the law might help. I realize now that despite what I had told myself, I was only going through the motions, never expecting to win, never expecting to be paid a dime, so I didn’t prepare adequately, relying mainly on my instincts from the days when I represented mental patients at the state hospital as a public defender. If the state hospital wanted a patient badly enough to go through a commitment proceeding the judge wasn’t going to get in its way. The patients rarely had a chance, so I assumed Mrs. Gentry wouldn’t either. My clients won’t always be so fortunate as to have a judge rescue them.
Across the street, waiting for the light to change, Martha Birford waves at me and yells, “Gideon, wait a minute!”
Nonplussed by this effusiveness after our last meeting at the Hardhat Cafe, I stand above a steaming gutter, wondering if another snotty remark is on the way.
“I got a job!” she says gleefully, pounding across the pavement toward me.
Good for you, I think, meaning it. Dressed in a red suit I’ve seen half a dozen times, Martha looks as happy as a woman who’s been told she doesn’t have ovarian cancer.
Instantly, I forgive her for her remark at the Hardhat about me landing on my feet. We may talk about sex as if we can’t live without it, but it is our work that defines both men and women these days.
“Great!” I say, touching her arm as if for luck.
“Who’s the lucky firm?” “Verser and Jeffcoat,” she says, naming a partnership that has come together in only the last year.
“Actually, I’m only kind of a glorified paralegal, but it’s a start.”
A paralegal! I maintain my grin, hoping it has not become a grimace, but inwardly I feel embarrassment for her. True, at Mays amp; Burton we got the shit cases, but at least we got to see the inside of a courtroom. Poor Martha. Those idiots at Verser and Jeffcoat will probably never discover how much money she could be making for them. A few more bromides about our mutual good luck, and I head off in the opposite direction, once again glad I’m not a woman or black. As sloppy as my performance was today, I realize I’m one of the primary beneficiaries of discrimination. I may be a capitalist now, but damn if I like competition.
On my floor in the Layman Building, Julia, seeing my scowling face, greets me cheerfully, “Lose another one, Giddy baby?”
I check my box for messages.
“Not quite,” I say, noting her outfit. This is sex week, I decide. Everything so far has been skintight or see-through. Today, underneath a sheer white blouse she has on a purple bra, which matches her eyeshadow. The effect is that she appears to have two badly rotted grapefruits under her blouse. I have a message to call David Spath, administrator at the Human Development Center who keeps playing telephone tag with me.
“Actually,” I say, my eyes drawn like a bomber pilot’s to her chest, “the judge ruled mostly in my client’s favor.” I am careful not to say that I did anything to win the case. Gossip from the courthouse spreads like poison gas, and if Julia gets wind of the hearing, she will throw back in my face anything I say.
She nods sourly.
“Don’t you lawyers have a saying that even a blind hog can find a few nuts?”
In more ways than one, I think, looking at Julia, but I do not say anything. I have found it is crucial to let her have the last word. Once some people think they have the better of you, they treat you better, and Julia, who turns out to be the niece of the owner of the building, will be here long after I am gone. I go to my office and surprise myself by getting David Spath on the phone. In a British-sounding voice, he tells me that an appointment has canceled for the afternoon, and he will see me if I have the time. Since I had scheduled Mrs. Gentry’s trial for all day, I am free and I agree to meet at two in his office.
It is close to twelve, and I take the elevator down to the cafeteria to put my own spin on Mrs. Gentry’s abbreviated trial. I find Tunkie Southerland and Frank D’Angelo seated at a table against a window overlooking the Arkansas River.
Tunkie, who avoids even nonjury trials whenever he can, preferring the written word to the spoken, chews on the lemon in his glass of tea.
“She got what she paid for,” he comments defending my laziness. I have not spared myself in my telling of the morning’s events, though I have made Ferd Machen sound even more cruel and venal than he probably is.
“Every lawyer screws up,” Frank says, folding his napkin on his plate, “it’s just a question of who catches you and what they try to do about it.”
Truly, misery loves company, but so does incompetency, I realize. Yet, in their own areas, they are not incompetent.
Along with Clan, these men are becoming my friends. There is not a soul at Mays amp; Burton I miss. Why? These guys aren’t so rapacious, but maybe they just don’t have the drive to make it. I wonder if I do either.
Tunkie belches into the back of his hand.
“At any rate, Clan will be delighted, .. he begins.
“… That you took him off the hook.” Frank finishes, grinning at me.
On the drive out to the Blackwell County Human Development Center, my mind returns again and again to Mrs.
Gentry’s hearing. I decide I have a real talent for overlooking the obvious. This case must have stuck out like a sore thumb, because most judges wouldn’t have gotten past the fact that Mrs. Gentry is eighty-four years old and had undergone an operation that required her to enter a nursing home. But Judge Fogarty took the “purposes” clause of the guardianship statute seriously, as almost no one ever does. Is the prosecutor’s case against Andy this crystal clear and I can’t see it? Maybe the real lesson is that the law be damned, what judges (and juries) do is justice. If the judge’s mother has a right to hum in her own house, then Mrs. Gentry should have that right or the judge’s mother will give him hell when he goes for his Sunday visit. Is Andy’s case really about what people can identify with? Isn’t it similar to a situation in which a mother authorizes a doctor to use experimental cancer drugs to save her child’s life? The problem is that Pain’s life wasn’t in danger as long as she was in restraints. Yet what Olivia feared was that sooner or later Pam was going to end up like those men I saw-tied to their beds. No mother should ever have to accept that. Maybe that is the argument I should make to the jury: the choice Pam faced was being kept under virtual lock and key until she died. Because shock is currently (an unwitting pun I’ll have to avoid) out of fashion, her doctor felt he had no choice but to keep quiet about it until he could present proof it worked. In fact, ladies and gentlemen, you should think of Dr. Chapman }s a kind of a brave pioneer . maybe that’s a little thick.
Unexpectedly, David Spath is a bit of a dandy. With a mustache so trim it looks as if it has been stitched into place and an English accent straight out of World War II movies about the RAP (he surely possesses the stifiest upper lip in the state), Spath seems a foreign visitor instead of a man who has spent a career climbing a bureaucratic ladder. No wonder he hired Andy-he likes the way he dresses. Spath is wearing a striped blue chambray long-sleeved shirt that looks so smooth and neat it seems made of silk. Against the blue of his shirt, he has on a gold tie dotted with small, black, castle-like designs. His pants are Yorkshire cords that I recognize out of a Lands’ End catalogue my boss used to keep in her office at the Public Defender’s. Though it seems entirely useless information, I immediately assume this man is gay. There is an overrefined quality to his sensibility (I can’t put my finger on it-suffice it to say he is like my best friend. Skip, who just last month pitched a promising commercial art business and moved to Miami with his lover) that connotes a sexual orientation different from my own.
Given his lip, I expect a bone-crusher handshake, but his hand is as soft as that of an English gentleman visiting his country estate on the weekend. Instead of tea, he gives me a cup of coffee, and I sit across from him, wondering how this man got to be here. Even his office is decorated with English themes. Instead of pastoral scenes with hunting dogs and men in red coats on horseback, the pictures are of Dickens’ England-harsh industrial cityscapes done in gray, brown, and black. Gently, I try to bring up the subject of Andy by asking how long Spath has known him. Spath sips at his cup of coffee, obviously studying me, “I first met Andy,” he finally says, “when he was working for the state hospital.
He’s a good man. A good clinical psychologist. So why would he go off on his own and try electric skin shock without going through the process of getting the Human Rights Commit tee’s permission? I haven’t got the slightest idea.”
So much for easing into the subject. I try to keep in mind that Spath’s job has been jeopardized by Andy’s actions. If Andy is going to be helped by this man on the witness stand, it will have to be in bits and pieces. A good man here, a good clinical psychologist there. I try to back up.
“Why do you think a mother would let someone try shock on her child?”
Spath’s mustache, probably intended to give his face a more masculine look, almost succeeds, but not quite. His face is not so much soft as it is delicate. His nose is as thin as a communion wafer, and his tiny ears (partially hidden by a mass of thick brown hair) remind me of a bat’s. “To try to help her, of course,” he says archly.
“But the problem is we don’t know how to help children like Pam, and Andrew knew that.”
I fold my arms against my chest to keep them still, re minding myself not to argue with this man. My hope is that he will bring himself to admit (assuming it is true) that he knew Andy was going to try shock and will have the courage to admit it. I say innocently, “I thought the literature shows that shock works.”
For a moment I think I see real conflict in Spath’s face, which seems to collapse downward, but despite a brief nod, he says curtly, “The literature doesn’t prove anything from a statistical point of view because there hasn’t been enough research.”
This statement doesn’t qualify as a denial, and I press on.
“If you had a child that was retarded and self-abusive, wouldn’t you be tempted to try everything possible to help her?”
“Mr. Page,” Spam says, a note of exasperation creeping into his tone, “from a purely personal point of view, I sympathize with Andrew. I like him; I hired him because I thought he was qualified, and because I think this state needs to educate and hire more black professionals. I don’t even try to imagine what care for retarded black children was like before integration. But if a treatment plan involves aversive stimuli, we follow a certain protocol, and Andrew ignored it.”
I look over his shoulder at a picture of a grimy child working presumably in a cotton mill. Something, I don’t know what, tells me this man knew in advance what Andy was doing. He doesn’t seem like the conventional cover-your-ass manager I used to see when I worked for the state as a social worker investigating dependency neglect cases.
“If he had gone through the human rights committee,” I ask, “is there a chance it would have approved shock?”
Spath doesn’t hesitate.
“I seriously doubt it. Highly aver sive techniques are no longer in vogue today.”
I note that he didn’t say they don’t have their place in treatment of the retarded, but I can’t figure out how to use it to my advantage. Spath turns his back on me to pour himself a cup of coffee. He is fussy as an old maid, painstakingly measuring out a teaspoon of sugar as if that were all he had been put on earth to accomplish. I say, “This, I’m sure, won’t come as any surprise to you, but Andy told me that he thought he could talk you into purchasing remote-control shock equipment once he demonstrated that Pam was responding to shock.”
Spath silently stirs his coffee. If he at least concedes that he might have considered the idea, I can argue to the jury that what Andy did wasn’t so rash after all. It was just a matter of no one’s having the courage to try a controversial treatment. Had there not been an accident, Andy would have been regarded as a hero even if nobody had the guts to say so publicly. Spath finally removes the spoon and lays it up side down on a clean napkin.
“I’m afraid it doesn’t work that way,” he says, giving me a strange, false smile as if he knows perfectly well that ends invariably justify means, since history is written by the winners.
“Why not?” I press him, still hoping fora miracle.
“Isn’t the point to help people?”
“This is not a field in which people are encouraged to free-lance,” he says.
“What happened to Pam, I think, proves that.”
I watch Spath sip at his coffee. I don’t hear any conviction in his voice. He sounds like one of those C.I.A. flacks who routinely refuse to acknowledge we are engaged in subversion of other governments. Iwanttosay: I think you’re lying.
You let Andy try shock on the condition that he not implicate you if something went wrong. Instead, I keep silent, afraid to alienate this man, who, if he were willing, could deflect much of the blame from my client, although at the risk of further damaging his own career. He hired Andy; he’ll be damned if he’ll try to save him. They must have talked about aversive measures like shock many times. Andy is the only Ph.D. on staff at the moment; the facility is too small (only 150 residents) for them not to have been in frequent contact.
There is bound to be a conspiracy of silence among Olivia, Andy, and Spath that I haven’t yet breached.
Spath is willing to discuss other things-his background (a master’s in the administrative side of social work), Olivia (a desperate parent consumed by unjustified guilt), deinstitutionalization (a misguided movement that will lead to unimaginable horror stories of homeless, abused, and ill retarded people), his institution (woefully underfunded, which is the reason for the lack of meaningful training programs for people like Pam). It is as if I were talking to Andy.
The only difference is the accent. As I get up to leave, I ask, “Do you miss England?”
Spath gives me a weary smile.
“Never been there.” Before I can ask what must be a tiresome question, he says, “My father was from London. He gave me my accent and for some reason I’ve never lost it.”
I leave, realizing for the hundredth time since I started practicing law that my assumptions are my worst enemy. I resist the temptation to go by and see Andy. I am coming back out here in a couple of days, but I want to see if Olivia is willing to talk to me first. Of the people
in this suspected alliance, she has nothing to lose by the truth, since she has already lost everything she possibly can. I drive home, thinking I’d be a decent lawyer if I could read my clients’ minds.
Right now, I’d settle for some facts.