I read an obituary in the Times-Union the other day. Patrick Schillace, the man who almost destroyed my legal career, had been a successful businessman and politician. In his fifties, he ran for governor of Connecticut and narrowly lost, ending his political career, but his local branch of Shamrock Furriers was patronized by Albany’s best and brightest, and when he bought and renovated the Aldridge House in Saratoga Springs, where he spent his summers, he became a local legend. The obituary noted that Patrick had been survived by a son, James, of Hartford. The last time I’d seen James was in 1918, in the U.S. courthouse with his father. I’d spotted Patrick once, many years later, as I drove past Shamrock and he walked out of the store. He didn’t notice me.
In the Criminal Law course I teach at Albany Law School, I invariably tell the Schillace story. The dean expects me to rely upon my thirty-plus years as a defense lawyer when I introduce new students to the complexities of crime and punishment. So I pose questions to the class and then answer them myself. How do the courts interpret criminal statutes? How does a prosecutor decide which cases to pursue? What are the economics of building a practice? How do you defend people you know are guilty of the crime charged? Teaching allows me to tell my favorite stories to groups of men – and an occasional woman – who’ve never heard them. My wife, Laura, and my son, Alexander, are no longer good audiences; they’ve heard them all too many times before.
The dean doesn’t really care what I teach, to be honest, as long as I keep the students entertained. In the twenty years I’ve taught on Monday evenings, the dean has never once asked to see my syllabus. It’s just as well, because I stopped using one after the first year. Everything is committed to memory, none more so than my dealings with Schillace father and son. I show the class a newspaper photograph of a man about Patrick’s age and tear it to pieces. That gets their attention.
When you do what I do for a living, you mix with the seedy, the crooked, and the mean. Nine times out of ten, even if they didn’t do what they’re accused of, they did something else execrable and worthy of punishment. You get your hands dirty. So I lay out at the start of each semester the maxims of criminal defense practice. Maxim #1: If anyone goes to prison, make sure it’s your client and not you. The students laugh. Then I pronounce Maxim #2: A lawyer who represents himself has a fool for a client. Another round of titters. Finally, I confess that I’ve in fact been such a fool. The pens go down, they look at me expectantly. Some wonder, I imagine, how they can be taught criminal law by a lawyer who himself had been accused of a crime.
We were at war, busy making the world safe for democracy, but I managed to avoid the draft. I had to register, though, along with all other American men between the ages of twenty-one and thirty. I could and did claim an exemption because my wife and one-year old son had no other means of support.
The traditional thing to say here would be that I regretted not donning the uniform. In fact, I was delighted to avoid the bloodshed. Sure, I cared about democracy and I could see how saving Britain and France would be in our country’s best interests, but I didn’t then and don’t now have an ounce of physical bravery. I avoided baseball for fear of being hit by the ball. I avoided football for fear of bruising contact. I could never have stormed out of the trenches. And, of course, I didn’t want to be apart from my family for years, if not forever. So I stayed in Albany, saw friends off to war at the train station, welcomed a smaller number back in 1919, and kept my practice going.
Patrick Schillace walked in on October 13, 1917. He was in his late thirties, tall, and well-dressed, easily recognized as a man of business. He looked beleaguered, which didn’t surprise me. After all, my practice was all about helping the oppressed. I figured he might have been caught with his hand in the till or charged with facilitating prostitution. I’d already made a little name for myself getting party girls out from under the prosecutor’s thumb.
We exchanged pleasantries and got on a first-name basis. I wasn’t in a rush, but as we talked about the war and the unusually cold autumn, I studied Patrick. Why was this seemingly wealthy guy in my office and not at one of the larger law firms? I waited for Patrick to decide when he was ready to get to the point. It took a good ten minutes.
“It’s about my son, James. I need you to get him out of the Army.”
He explained that James had enlisted. So had thousands of other young men, I reminded Patrick, and he glared at me. James’s case was special, Patrick informed me, because James had only been fifteen, well below the minimum age of seventeen. Even though now sixteen, James was still much too young to serve. The government had committed a crime by allowing itself to be deceived by his son.
“You don’t get far by accusing the government.”
“My wife and I were outraged when we got James’s letter from Camp Upton explaining what he’d done. We’d been worried like the devil about him. I tried to call the commander there to tell him they’d made a bad mistake, but could never get through. So I spent a day getting to New York City and then out to Long Island, planning to talk to the commander and my son in person.”
“And you’re going to tell me they didn’t let you near either of them.”
“Damn right. The trouble I went to just to get to the camp! A two-mile walk through the mud from the station, and I can’t even get past the first guard. I knew that was unconstitutional, not being allowed to talk to your son, even if he is on a military base. The First Amendment gives me the right of free speech and the right to assemble to redress grievances, doesn’t it?”
“But the Army doesn’t see it that way.” Patrick’s expectations – that the government was required to jump to his command – intrigued me.
“James realized he’d made a bad mistake. He hadn’t been doing well at school and, well, I’d been rather harsh with him. He thought that the Army would be an escape, but he hadn’t considered how hard it would be. He’s not a strong boy. Somehow he survived basic training, but when he got a weekend pass, he didn’t return. He got in touch with me and I helped him get back home to Torrington. That’s where he’s hiding now.”
Fascinating. I’d never had a case defending a fugitive. I knew instinctively that I needed to be careful, but I decided to take the case if I could obtain a hefty fee. I first needed to have Patrick sign an agreement that I was not promising any results. I’d learned by this time that businessmen expected never to lose anything in court and could make their lawyers miserable if they failed to gain their objectives.
“So what exactly do you think I can do?”
“Fix it so that the enlistment is void, of course. That’s what lawyers do, isn’t it? Fix things?”
He sounded desperate, which I liked. It wasn’t that I enjoyed the suffering of my fellow human beings. I chose law instead of other possible professions because I wanted to alleviate suffering, and medicine was out because I lacked a scientific mind. And hated the sight of blood. I liked Patrick’s desperation for his son because that would motivate him to pay me well for my services. It was tough making a living on what hookers could offer. One big case would brighten my entire year financially. So I knew I could use to my benefit the fear that a father feels for his son, fear of the harsh punishment imposed on any deserting soldier, fear of punishment that could include the death penalty.
“Look, Patrick, I have to be honest with you. This sounds terrible. We’re at war, and your son, a soldier, runs away from his unit, while his buddies are shipped off to France. Some of those buddies are going to die, have died already. You think the government’s going to back off and apologize for its mistake? Not on your life.”
“Do I need to find another lawyer, someone with enough guts to take this case?”
I had to suppress a smile. Patrick was trying to out-bluff me, threatening to walk out the door. I had a pretty solid feeling that he wouldn’t have come to me without having first run through a gamut of better known, more expensive lawyers. The senior lawyers in town wouldn’t touch this kind of case, because defending a deserter would itself seem unpatriotic. They’d fear, not only the loss of business, but the perpetual tarnishing of their reputations as good citizens. A young lawyer like me, one with a family that had to be fed, had much less to lose.
“Well, you don’t have to hire me. You can decide as you will. But I didn’t say I wasn’t taking the case. I’m trying to let you know what you’re in for and what James is in for if we lose.”
“I know it’s bad.” The look of utter desperation returned to Patrick’s face. He could not sustain his bluff for even a minute.
“So, here’s what we can do. You retain me as James’s lawyer. You advance me seventy-five dollars against my fee of one-hundred fifty. The fee goes up to three hundred a week if we go to trial. You sign an understanding that I’m not guaranteeing anything. I talk to James privately and get the story straight from him. I might have to advise him to return to Camp Upton, even though we know he’s too young and no longer wants the Army. Believe me, it still might be his best option. Deserters can be sent away for life or shot.”
“He’s not a deserter.”
I’d made Patrick angry as I intended.
“Right. As you say. Not a deserter, although he’s just for some reason not with his unit that’s getting ready to ship out.”
Patrick clenched his jaw. I could see the veins in his neck bulge. He balled up his hands into fists.
“Or, if I see a way to try to void his enlistment, and that’s how James wants to handle it after I talk to him, that’s what I’ll try to do. It has to be James who decides.”
Patrick wasn’t happy. He wanted me to mastermind a brilliant, ironclad way out for his son, for one thing, and he didn’t like paying my fee without a guarantee of success, for another. But he’d run out of options. After a bit of haggling, where I dropped my fee to one-hundred forty-five dollars, we reached an agreement, I typed it up, and he signed. It’s faded, but I still have it framed and hanging in my office to remind me of my stupidity.
We agreed to meet at my folks’ farmhouse two miles outside of Albany. We could confer in person only in New York State, I told Patrick, because that’s where I was licensed. The truth was, though, that I didn’t want to waste two days getting to Torrington and back. I chose the farm because I didn’t want to attract attention in downtown Albany.
When I first laid eyes on James, I couldn’t believe he’d convinced the recruiting officer he was seventeen. He was at best five feet six, skinny, pale, and had a vacant look about him, as if he’d just woken up and wasn’t sure where he was. I could well imagine him hiding in his parents’ basement, getting no exercise, sunlight, or fresh air. I asked my folks to put on coffee and wait in the kitchen while I took Patrick and James into the dining room. We sat at the large oak table at which I’d eaten every meal growing up. I could see the scars and stains from years past.
“So, James, I’m Hank Brown, the lawyer your dad got for you.” I offered my hand, but James kept his eyes straight in front of him, his hands on his lap. I glanced at Patrick, but his head was down, too; he was studying his bootlaces. I looked back at James. “How old are you?”
Finally, he turned toward me, barely managing a whisper. “Sixteen.”
“Well, I can’t represent you …” I rephrased in mid-sentence. “I can’t be your lawyer unless you want me to be. I have to know whether you want me to be your lawyer.”
He looked at his father, who nodded his head slightly. James turned again toward me. “Yes Sir. I’d like you to be my lawyer.” I’d been holding my breath and exhaled audibly. Okay, step one accomplished.
“All right. I’m your lawyer now. What we say is secret. Patrick, will you excuse us, please? You can sit with my folks in the kitchen.”
“But I’m paying your bill, Hank,” he whined. “And he’s my son.” Patrick was obviously not used to being put out of meetings. As far as he was concerned, I was one of his hires, to be pushed around at will.
“Both of those are true, but the attorney-client relationship is only between me and James. We have to follow the rules to the T or we don’t do this.”
Patrick pushed his chair back from the table, stood, and placed his hand on James’s shoulder. “All right. Son, answer Hank’s questions. Be honest.”
He left none too soon, because he’d been getting on my nerves. I could hear my father offering him coffee. I waited until they were chatting softly before I continued. “James, what we say now stays between you and me. Do you understand?”
“Yes Sir.” With Patrick out of the room, James was more relaxed.
“I need to know how you ended up in the situ … in the Army.”
His manner was halting, but the story gradually emerged. James had got it into his head to run away. He’d decided that joining in the Army would be fun and, since the Army needed to bulk up rapidly, thought it might accept him. He forged a “to whom it may concern” letter from Patrick granting him permission to enlist and traveled to Albany, thinking it would be too easy for the Army to check his age in Connecticut. He gave a false birthdate and a false address in Rochester and got in without trouble, but he hated the Army from the first day, knew he made a terrible mistake. When he received his first pass, he left without intending to return. For two months, he’d hidden in the basement of his parents’ home.
“All right, James. One possible way to fix this is for you to go back in, still pretend you’re seventeen. I could negotiate with the Army to make sure they don’t prosecute you for desertion and perhaps you’d spend a few days in jail for having been absent. After serving that penalty, you’d be back where you were, probably rejoin your unit in Europe.”
“Just ‘no’? Do you want to explain?”
“No. I’m not going back.”
Somehow I wasn’t surprised, but I wasn’t getting the whole story and needed to know everything. “Well, James, you don’t like the Army, but I bet none of the others in your unit like it either. They stayed, you left.”
“I’m not going back, Mr. Brown. The drill sergeant kicked me every time I did something wrong.” I could sense that James was about to cry. “The others – they weren’t my buddies – they’d pick on me, punch me when they felt like amusing themselves. So, no.” He wiped away a tear with the back of his hand.
“Second option. You stay where you are, the house in Torrington, and I try to get the enlistment voided – ripped up – on grounds it was illegal from the start. I might have to tell the government where you’re hiding, and you might be arrested. If they want to go after you, you might have to stay in jail until the legal case is done. If you lose, the penalty could be bad. Is that something you’re willing to risk?”
“Yes, because I’m done with the Army.”
“Even if we win – let’s say we show that you can’t legally be a deserter since you were never old enough to enlist – they might draft you anyway when you’re old enough to be drafted.”
“What if the war’s over?”
“I guess if no war then no draft.”
“Well, I’m not going back in the Army.”
So we resolved to fight. I told James to lie low while I pressed negotiations with the enemy – our government – as fast as I could. I invited Patrick back from the kitchen, and he came in holding a glass of milk for his son. After a few minutes of idle chatting, we said goodbye.
I drafted a complaint seeking an order to void the enlistment and sent a copy to the Judge Advocate General Corps in New York City, where I figured the complaint would go anyway once it was filed. Two days later, I received a telephone call from a Colonel Hawkins, saying that he understood the situation, thought the Army recruiters had messed up, and – if I could let them know the whereabouts of the young Mr. Schillace – they would consider voiding the enlistment. Without a firm written agreement, however, I wasn’t going to tell them any more about my client than they needed to know.
We jawed back and forth over a week. I told Hawkins in passing that James didn’t look a day over fourteen, that he’d been abused by the drill sergeant as well as the other recruits, that the Army would look ridiculous trying to put him in jail, and that the Army had plenty of soldiers because of the draft. I could sense Hawkins becoming more annoyed with each conversation. He questioned my patriotism and asked why I hadn’t been drafted, neither of which I dignified with a response. He ranted about how, as an officer of the bar, I should know better than to get involved with a low-life deserter. He laughed when I made the speech about how everyone was entitled to a lawyer. He demanded to know which pigsty I was born in. Near the end of the week, however, something changed. Suddenly, Hawkins’s tone softened and he was amenable to a deal. I had delivered to him James’s birth certificate and a recent photograph of the boy, chosen to make him look sick as well as young. Hawkins signed a document voiding the enlistment and noting – at my insistence – that James would thereafter be deemed unsuitable for military service. Only when I held this in hand did I provide Hawkins with the family’s address in Torrington.
James was delighted with the result, as was Patrick, who wanted to know if I could reduce my fee since I hadn’t needed to do very much work. I took off $5.00, providing the balance could be paid the next day.
When the money arrived via Western Union, I paid my overdue rent and took Laura out to dinner at the Mansion Hill Inn while her folks watched Alexander. She was proud of me, she said, and my success proved that her parents had been wrong in opposing our marriage. At dinner, we shared a bottle of wine, happy that the eighteenth amendment was not yet in place. Afterward, we picked up our son, and when we got home we quickly put him in his crib and dived into bed.
That should have been the end of the story, right?
Two weeks later, I was arrested.
The deputy federal marshal, Aaron Lancaster, walked into my office, showed me the warrant, and told me to follow him over to the U.S. courthouse. He said he wouldn’t handcuff me because he didn’t expect any trouble. We could just walk together, like we were on our way to breakfast. I assumed this was a bad joke until I looked more closely at the other document he showed me, on the stiff, high-quality bond paper used for federal indictments. The grand jury had accused me of “harboring and concealing” a fugitive from the armed services of the United States and “aiding and abetting” his avoidance of military responsibility. The supposed beneficiary of my crime was James Schillace, my client.
I still thought it was a joke. Had to be. The U.S. Attorney, Paul Thomas, couldn’t be serious about prosecuting a lawyer who had done nothing more than any other lawyer would have done representing a client in trouble.
Aaron frowned. “It’s no joke, Hank, sorry to say. Paul had the grand jury in last week, and, although I ain’t supposed to tell you, this guy from Connecticut come up to testify and was the star witness. Everybody in the courthouse knows about it.”
“The guy from Connecticut?”
“Schillace’s father, Patrick. But you never heard that from me.”
“Hang on a second.” I opened my office safe and pulled out twenty dollars, which I figured would be enough to cover bail. With the money in my pocket, I walked next to Aaron up the five long blocks to the courthouse, saying hello to a few people I knew, trying to look calm, pretending that taking a stroll with the deputy federal marshal was an everyday occurrence. He walked me straight into Paul’s office, then stayed at the door. The situation was ludicrous. I walked up to Paul’s desk, and he stood to face me
“Hank, I’m sorry to have to do this to you, but I’m following a directive of the Attorney General. He’s rabidly against anyone interfering with the …”
“This is a cock-and-bull stunt, Paul, and you know it. All I did was work out a deal for the kid, who the Army should never have allowed to enlist. If anyone should go to jail, it’s the damn recruiting officer.”
“Yeah, well.” He yawned, as if he had much more important business. “That’s not how it works.”
“How am I supposed to have harbored a fugitive?” I tossed the papers onto his desk, and we stared at them for a couple of seconds.
“Hank, you’ve got to watch your temper. You know we can’t go into our evidence. I asked Aaron to bring you here so I could tell you that this is nothing personal. I like you. You’re scrappy, good in court. But I warn you, Hank. I have to do my job. If you’re convicted, I’m going to ask that you serve time in Allenwood. Get yourself a good lawyer.”
By this time, my face was burning red. I wanted to kick him in the groin. He was going to try to put me in a federal prison and had the gall to say it wasn’t personal. My brain shut off, and I told him I would represent myself.
“Big mistake, Hank. Big mistake.”
“It’s nothing personal, Paul, but by the end of this case you’re going to be eating crow.” I got up and told Aaron to handcuff me. I wanted to be handcuffed at my arraignment, right up until I was released. I wanted to remember the feel of the hard and cold metal against my skin.
I won’t go into detail of how I screwed up. Any lawyer with a lick of sense will tell you the multiple ways I was a fool. In my zeal to defend myself, I forgot basic rules of trial practice: Know your judge. Don’t waste his time. Arrange for witnesses, believable if possible, any in a pinch. I was so consumed with indignation that my typically creative way of managing a defense vanished, as if my brain had gone dead. I lost sleep ruminating about the unfairness of the world, and, when I got to my office, it took hours before I could do anything but drink coffee and stare out the window.
Suffice it to say that I filed a lot of useless legal paper, which the assigned judge, Carter L. Kiefe, ignored. I had never appeared before Kiefe and didn’t know much about him because he hailed from Saratoga Springs, took the train down every week, and did not socialize around town. Had I retained a competent lawyer, the first thing he would have done – if he didn’t already know Kiefe – was learn everything that could be learned. Only then would he have planned his strategy. Instead, my effort to exonerate myself through fancy pleadings in ignorance of Kiefe’s background was the dumbest thing I’ve done in the practice of law. I discovered that I was in even bigger trouble than I’d thought. Kiefe’s son was in the Army, fighting in Europe. When I found out, I rashly filed a motion demanding that Kiefe recuse himself. Who in his right mind would think that a judge could be impartial when the subject of the case hit so close to home? Kiefe denied the motion as untimely, as well as without basis, two hours after I filed it.
I was unable to sleep the night before the trial, a bad case of nerves making my stomach crawl in on itself. Our house was a block of ice. As I loaded coal into our furnace, I thought about the day ahead. I’d never been anxious in a courtroom before, although my clients might well have been. They were the ones who might be locked away, and some of them certainly had been despite my efforts. Some were even in Allenwood, where I might end up. It was too late to do anything about my foolish decision to defend myself.
I started to heat water, and Laura emerged from our bedroom, pulling a robe around herself and shivering. We sat across from each other, drinking coffee, neither of us able to start a conversation. Finally, I had to leave. She kissed me goodbye and told me that she still loved me, whatever the outcome, but insisted that I pass along to her the extra keys to my office and the combination to my safe, just in case. So much for spousal confidence.
That’s how it was on an Arctic morning in January 1918, in the middle of the coldest spell of weather anyone in Albany could remember, when I went on trial. It took me twenty full minutes to walk, on a treacherous glaze of ice and against a fierce wind, the five blocks from my office to the courthouse. I fell more than once. As I entered the building where I had practiced law for six years, a colleague who’d been my friend looked away.
In Kiefe’s courtroom, potential jurors had already been assembled, sitting on the pew-like benches behind the bar. Paul smiled at them from where he sat at the prosecution’s table. I took my place at the opposite table and nodded to the few jurors I knew. After keeping us waiting for ten minutes, Kiefe finally came out in his black robe, banged his gavel, and we were under way. He’d gotten rid of his clerk months earlier, telling everyone that he didn’t need one. He ordered the first twelve jurors into the box, denied their appeals to be excused, and denied Paul’s and my challenges. Then he called us to the bench and informed us that he would not allow opening statements. He would himself tell the jury what the case was about in less time than it would take us to tie our shoes, he said. He made it clear that the trial would be over as soon as possible, because it was a Friday and the last train to Saratoga Springs left at three. He would be on it, one way or another.
I didn’t like the jurors. Some were men I knew who, like the judge, had boys fighting in Europe. But one of them – with daughters only – had been my science teacher in high school, Ellis Caruthers. For a second I thought I was lucky to have him on the jury, until I recalled that I’d once tossed a lit firecracker in his classroom’s garbage can when his back was turned. As I said, science was never my subject. I offered a silent prayer that he’d forgotten.
Paul called Patrick Schillace as his first witness. Patrick made it sound as if I had sought him out, hoping to find an Army deserter to represent. His version of our initial meeting made it seem as if all he wanted was to get James back into the Army without punishment. He lied, accusing me of raising the possibility that James need not go back at all and that could I best achieve this as long as James stayed hidden. He swore that I’d instructed James at our farmhouse meeting to “lie low,” a phrase I didn’t recall using, but even if I had I didn’t see it as a big deal. When Paul sat down with “no further questions,” most of the jurors looked at me with grim faces, no doubt wondering why I had tried to subvert the war effort.
I took a deep breath and stood to cross-examine. I realized there was only one reason Patrick might have turned on me. In the few seconds that elapsed before I asked my first question, I had to decide exactly how to show the jury that the witness could not be believed.
“Patrick, you’re saying I harbored and concealed young James?” I tried to keep my voice calm and unconcerned. I tried not to sweat, a successful effort in that the courtroom was freezing; the building’s furnace was hardly sufficient for the unprecedented cold outside.
“I didn’t use those words, Hank. I just told the truth.” He turned toward the jury and nodded. Caruthers nodded back at him.
“We’ll get to that in a minute. But let’s go back to my question. James hid in your basement in Connecticut, right?”
“You told him to go back there.”
“When he ran away from the Army and contacted you, that was long before I ever met him, wasn’t it?”
“Speak up, Patrick. I don’t think the court reporter got that. By the time James had left the Army and came back to your house, that was long before you and I ever met, let alone before I met James?”
“I suppose. Yes.”
“You suppose? Can we just have a straight yes?”
“You told him to hide in your basement?”
“Where else could he hide?”
“Exactly. That’s where he was hiding before you ever walked into my office, right?”
At this point, Patrick clammed up. He turned to Kiefe as if expecting the judge to protect him, but Kiefe sat stone-faced.
“Patrick, just answer the question so we can get these busy jurors back to their regular lives. They all need to make a living.” I looked at the jurors, trying to convey that I was just a hard-working lawyer concerned about their time and how their businesses would suffer the longer they spent in the box.
“Yeah, he was hiding there before I ever met you.” Patrick’s voice had turned sullen, almost nasty. I was pleased that I had managed to keep my voice matter-of-fact.
“Now, Mr. Thomas over there, the federal prosecutor, made a deal with you, right?” Patrick glanced at Thomas, who too late realized that he’d made a bad mistake. He’d forgotten to bring out his little arrangement with the witness. Now it looked like both Patrick and the prosecutor had hid something.
“A deal?” Patrick’s voice turned from sullen to squeaky. He started to sweat, despite the frigid air.
Paul jumped up. “We’ll stipulate the United States government gave Mr. Schillace immunity from prosecution, Your Honor.” He emphasized “United States government.” If there had been a deal, he was telling the jury, it had been sanctioned at the highest levels.
“That’s okay, judge, I’ll ask another question.” I figured if it looked like I had conceded the point, the judge would let me continue.
“So, Patrick, Mr. Thomas told you that if you testified against me – the lawyer you went to on behalf of your son – then he would not prosecute you for hiding James, didn’t he?”
There was a long pause. Patrick looked uncertain. He’d heard Paul stipulate to immunity from prosecution but wasn’t sure whether that meant he should answer me or resist. The pauses in a witness’s answer can be much more important than anything that comes out of his mouth. I tried to fight the hope that had begun to swell inside, damn well not wanting to seem overconfident.
“You heard the question?” Before giving Patrick a chance to respond, I continued. “The deal was that if you got up on the stand and tried to put me in jail, you wouldn’t have to go jail yourself, right?”
“No.” Patrick had gotten more strength into the voice, but the jurors knew he was lying.
“You don’t want to go to jail, do you, Patrick?”
At that point, Patrick just stared at me. I decided to leave well enough alone and sat down.
Paul called James Schillace as his next witness, and everyone turned to the door of the courtroom. I assumed Paul intended to have James talk about our meeting and confirm that I’d told him to lie low. When James entered, his appearance proved Maxim #3: everything that happens in a courtroom is evidence. He looked like a waif lost in a grown-up world. He seemed to have lost weight since I’d last laid eyes on him months earlier. He approached the witness chair uncertainly, glanced at his father who now sat in the gallery, and tripped on his own feet, preventing himself from falling by grabbing my table.
Kiefe leaned forward to get a good look at James, and I thought he was about to administer the oath, but he surprised me. “Members of the jury, you are excused for a short break.” They filed out through the juror door. “James,” he said to the confused boy, “go back and sit with your father for a while. I need to talk to the lawyers.” As James retreated, Kiefe instructed his court reporter to take a break. Our meeting would not be on the record.
Inside his chambers, Kiefe took his time before getting down to business. He showed us his family photographs, including a photograph of his son just before he boarded the ship for Europe. Kiefe had been there for the send-off off, proud of his son. Then he showed us a photograph of himself with Thomas Gregory, Woodrow Wilson’s Attorney General, and told a convoluted story of how they met at the Democratic National Convention in St. Louis. I assumed Kiefe had a purpose, although I couldn’t make out what it was. Having been in such a rush to get the trial going just an hour earlier, it now seemed as if he had all the time in the world and didn’t mind keeping the jurors and the witnesses waiting.
Finally, Kiefe motioned for us to sit on a leather sofa and took a seat on a facing chair. It was as cold inside his chambers as in the courtroom, and he kept on his black robes. He turned to Paul. “That boy is quite a specimen, isn’t he?”
“I don’t know what you mean, Judge.”
Kiefe reached out and put his hand on Paul’s knee. “Sure you don’t.” Paul seemed uncomfortable, even after Kiefe removed his hand. “Well, it doesn’t matter if you know what I mean, but now that I see this boy, I know you’re a dolt for pursuing this. I had the impression that Hank here had taken a real soldier, moved him around from hiding spot to hiding spot, and helped him avoid capture by the Army folks looking for him.”
“He did almost that, Judge. Told him to ‘lie low.’ Isn’t that just as bad? He should have grabbed him by the collar and dragged him down to the federal marshal and had the boy arrested.”
Kiefe chuckled and turned to me. “Well, Hank, what you got to say about that?”
What did I have to say about it? Kiefe had ignored my brief, but something had shifted during the hour we’d spent in trial, and he was giving me another a chance to show him that the case was a travesty. “I didn’t tell James where or how to hide. That was something he was doing on his own, with his father’s help. I was just his lawyer. Case should be closed.” There was a lot more I wanted to say. I wanted to talk about the right of every American to a lawyer and how Paul had trampled on that right, but I also needed to respect the judge’s time, particularly when he could be leaning in my direction. Particularly when he’d made it clear that he needed to get on a train that afternoon. I stood as if to return to the courtroom.
Kiefe told me to sit and turned back to Paul. “Hank’s right, Paul. We’re going back in there, and you’re going to say on the record that the government dismisses the indictment.”
“But why, Judge?” Paul’s question made him sound like an eleven-year-old who’d been told to milk the cows when it was ten degrees below zero in the barn.
“I have to give you reasons? Okay. Anyone who’d end up in a platoon with that runt of a boy would be fighting with a serious handicap. He should have been sent home with his tail between his legs, not welcomed into the Army. Where’s your brain?”
“That’s not a reason for dropping the charges, Judge. The Army’s not on trial. Hank’s on trial. I still have a case against Hank, and it’s one that the Attorney General absolutely wants to press.” Paul gestured at the photograph of Kiefe and Gregory. “We’re putting people in jail for draft evasion left and right. We can’t just sit by while a lawyer helps a deserter hide from his duty. The jury should decide.”
Kiefe leaned closer to Paul until their faces were mere inches apart. “Here’s your last reason, Paul, and listen closely. If you don’t do what I just told you to do, I’m going to dismiss every indictment you bring until President Wilson removes you as the U.S. Attorney or one of us dies. And when Gregory calls me to find out what’s up, I’ll tell him that you, Paul Thomas, are a horse’s ass and that he should talk to the President about whether you’re really competent to do the job here. Will that work as a reason?”
Paul looked glum, while I could not help but smile. We rose, and I put a hand on Paul’s shoulder to console him. He pushed it away and said, “All right, Hank, you win this round. You’re lucky.” Kiefe and I looked at each other and shrugged while Paul stormed back into the courtroom.
To say I was lucky was an understatement. There was no way anyone could have predicted Kiefe’s visceral reaction to the sight of James Schillace. There was no way anyone could have anticipated what Kiefe would do when he realized that the Army had wanted to send a timid boy onto a battlefield where his fellow soldiers’ lives might depend upon him, where one of those fellow soldiers might be none other than Kiefe’s son.
After Paul dismissed the case and Kiefe sent the jurors home, Paul and Patrick got into a loud argument. Paul accused Patrick of having been a dunce in answering my questions; Patrick called Paul a wimp. Paul sneered that he should have stuck with his first instinct and tried to put Patrick in jail; Patrick rebutted that he wouldn’t hire Paul to be a janitor in one of his stores. Aaron, the deputy marshal, had to hold Paul back from taking a swing at Patrick. As I walked out, I could hear them still going at it, Paul yelling that Patrick should take his baby boy back to his nursery, Patrick calling Paul a harsh name that I cannot repeat.
Almost twenty-four years later, Alexander – who enlisted in the Navy in 1940 – was at Pearl Harbor when the Japanese attacked. He survived, fought his way through the South Pacific, got home in 1945, and sped through law school in two years. He just joined my practice. Alexander was the person who’d brought Patrick’s obituary to my attention.
Bruce J. Berger received his MFA in Creative Writing from American University followinga forty-year career as a lawyer in Washington, DC. He now teaches writing at American University. His debut novel, The Flight of the Veil, appeared in October 2020 and won an Illumination Bronze Award for General Fiction.