I drove to the Iron Bay Club and had a leisurely lunch. After lunch I played Billy Webb at cribbage and won over thirteen dollars. I was going hot and skunked him twice. By two I was back at the jail and was pleased to find that Sheriff Battisfore was still away. Perhaps I still wouldn't have to go up in the cell blocks to see my man.
“Do you mind if we use the Sheriff's office again, Sulo?” I inquired sweetly. I was afraid I had offended him by failing to stay for lunch.
“Sure, sure, sure, Polly,” Sulo replied, ever good-natured. “Sheriff he still be out on patrol.”
I waited for Sulo to fetch Lieutenant Manion down from his cell. I reflected that while sheriffs rolled up more patrol mileage (and consequent mileage fees) than almost all other species of flatfoots and cops put together, that during their wanderings they were, as a class, not unlike the three wise monkeys: they heard no evil, spoke no evil, and resolutely saw no evil. I tried to recall the occasions when any sheriff I had ever known or heard about (but one) had ever regularly made any arrests on his very own. The effort was not fruitful. Though sheriffs and their men relentlessly scoured the highways and byways, day and night, lo! no drunk drivers seemed ever to cross their paths, speeders were totally nonexistent, and nobody, but nobody, ever ran a stop sign or a red light. All the public had to do to abolish crime, apparently, was to ignore itâat least crime seemed to flee underground whenever the sheriff was around. It was little short of miraculous. It was also part of the dreary system; a sheriff couldn't possibly change it if he wouldâthat is, and still stay in office.
Old Pamell McCarthy had hit the nail on the head. “How,” he once asked me, “how in the name of the blessed saints can you expect a man to turn around and arrest the very people who elect him and keep him in office? It's contrary to human nature and our rare âgood' sheriffs are political freaks whose lot is swift and total political oblivion. We don't
want
good sheriffs. How could we when the only qualification we ask for in a sheriff is that he be twenty-one?” Parnell had paused and rolled his eyes. “And, merciful Heaven, we get what we ask for, that we richly doâthey're invariably twenty-one ⦠.”
Â
“Hello, there,” my man said. “Did you have a good lunch?”
“Look, Manion,” I said, suddenly blowing a small gasket, “my
name isn't Thereâit happens to be Biegler.” If I was going to represent this aloof bastard I was certainly not going to have him calling me “There.”
Coolly: “Excuse me, Mr. Biegler. Did you have a good lunch this noon?”
“Excellent,” I said. “And you, Lieutenant Manion?”
“I was just beginning to forget it.” He closed his eyes and wrinkled his nose. “Maybe I shouldn't have mentioned it.”
“âCourage, Camille! This pain, too, must pass away,'” I quoted abstractedly. “Sit down,” I went on. “I've been thinking about your case during the noon hour.”
“That's good,” the Lieutenant said. “What's the verdict?”
“Sit down,” I repeated, “and listen carefully. Better break out your Ming holder. This is it.”
“Yes, sir,” said Lieutenant Manion, obediently sitting down and producing the Ming holder. His lawyer was making ready to deliver the Lecture.
And what is the Lecture?
The Lecture is an ancient device that lawyers use to coach their clients so that the client won't quite know he has been coached and his lawyer can still preserve the face-saving illusion that he hasn't done any coaching. For coaching clients, like robbing them, is not only frowned upon, it is downright unethical and bad, very bad. Hence the Lecture, an artful device as old as the law itself, and one used constantly by some of the nicest and most ethical lawyers in the land. “Who, me? I didn't tell him what to say,” the lawyer can later comfort himself. “I merely explained the law, see.” It is a good practice to scowl and shrug here and add virtuously: “That's my duty, isn't it?”
Verily, the question, like expert lecturing, is unchallengeable.
I was ready to do my duty by my client and he sat regarding me quietly, watchfully, as I lit a new cigar.
“As I told you,” I began, “I've been thinking about your case during the noon hour.”
“Yes,” he replied. “You mentioned that.”
“So I did, so I did,” I said. “Now I realize there are many questions still to be asked, facts to be discussed,” I went on. “And I am not prejudging your case.” I paused to discharge the opening salvo of the Lecture. “But as things presently stand I must advise you that in my opinion you have not yet disclosed to me a
legal
defense to this charge of murder.”
I again paused to let this sink in. It is a necessary condition to the successful lecture. My man blinked a little and touched both sides of his mustache lightly with the tip of his tongue. “Could it be you are advising me to plead guilty?” he said, smiling ever so slightly.
“I may eventually,” I said, “but I didn't quite say that. I merely want at this time for you to have the trained reaction of a man whoâ” I paused “âwho is not without experience in cases of this kind.” I was getting a little overwhelmed by the sheer beauty of my own modesty and I fought the impulse to flutter my eyelashes.
“Yes, but how about that bastard Quill raping my wife?” my man said quietly. “How about the âunwritten law'?”
I had been waiting for that one. “There is no such thing as the âunwritten law' in Anglo-American jurisprudence,” I said, a little pontifically. “It is merely another one of those dearly hugged folk-myths that people regularly die for, like the notion that raw rhubarb is good for the clap or that all chorus girls lay or that night air is bad. In fact many a man who has depended on the myth of the âunwritten law' has instead depended from a rope.” I paused, rather relishing the phrase, and resolved to remember it.
“But there is no capital punishment in Michigan, is there?” the Lieutenant said. My man had evidently been doing some thinking on his own during the noon recess.
“The rope was a figure of speech,” I said. “We lawyers are great fellows for figures of speech. But to answer your question: except for treasonâand of that there's been no recorded caseâyou are correct: there is no capital punishment in Michigan.” I paused and went on. “But I would offhand guess, Lieutenant, that if you were convicted of this charge you might prefer that there were.”
I had sunk the harpoon pretty far. Lieutenant Manion stared down at his strong delicate hands a moment and then at me. “You've made a pretty shrewd guess,” he answered slowly. He looked about the bleak, gray-painted room and, stout man, took a deep breath. “I'd sooner die than spend my days in a place like this,” he said.
“It wouldn't be quite like this,” I said. “Worse, much worse. This is a mere way station to Hell.”
“Yes,” he said. “Prison would be worse.”
“Have we disposed of the âunwritten law'?” I said.
“Perhaps,” he said. “But unwritten law or no, doesn't a man have a legal right to kill a man who has raped his wife? Isn't that the
written
law, then?”
“No, only to prevent it, or if he has caught him at it, or, finally, to prevent his escape.” We were treading dangerous ground again and I spoke rapidly to prevent any interruption. “In fact, Lieutenant, for all the elaborate hemorrhage of words in the law books about the legal defenses to murder there are only about three basic defenses: one, that it didn't happen but was instead a suicide or accident or what not; two, that whether it happened or not you didn't do it, such as alibi, mistaken identity and so forth; and three, that even if it happened and you did it, your action was legally justified or ex. cusable.” I paused to see how my student was doing.
The Lieutenant grew thoughtful. “Where do I fit in that rosy picture?” he responded nicely.
“I can tell you better where you don't fit,” I went on. “Since a whole barroom full of people saw you shoot down Barney Quill in apparent cold blood, you scarcely fit in the first two classes of defenses. I'm afraid we needn't waste time on those.” I paused. “If you fit anywhere it's got to be in the third. So we'd better bear down on that.”
“You mean,” Lieutenant Manion said, “that my only possible defense in this case is to find some justification or excuse?”
My lecture was proceeding nicely according to schedule. “You're learning rapidly,” I said, nodding approvingly. “Merely add
legal
justification or excuse and I'll mark you an A.”
“And you say that a man is not justified in killing a man who has just raped and beat up his wife?”
“Morally, perhaps, but not legally. Not after it's all over, as it was here.” I paused, wondering why I didn't go to Detroit and lecture in night school. That way, too, I would be close enough to go see all my old school's home football games. “Hail to the victors valiant ⦠.” “You see, Lieutenant,” I went on, “it's not the
act
of killing a man that makes it murder; it is the circumstances, the time, and the state of mind or purpose which induced the act.” I paused, and could almost hear my old Crimes professor, J. B. “Jabby” White, droning this out in law school nearly twenty years before. It was amazing how the old stuff stuck.
The Lieutenant's eyes narrowed and flickered ever so little. “Maybe,” he began, and cleared his throat. “On second thought, maybe I
did
catch Quill in the act. I've never precisely told the police one way or the other.” His eyes regarded me quietly, steadily. This man, I saw, was not only an apt student of the Lecture; like most people (including lawyers) he indubitably possessed a heart
full of larceny. He was also, perhaps instinctively, trying to turn the Lecture on his lawyer. “I've never really told them,” he concluded.
A lawyer in the midst of his Lecture is apt to cling to the slenderest reed to bolster his wavering virtue. “But you've told
me
,” I said, pausing complacently, swollen with rectitude, grateful for the swift surge of virtue he'd afforded me. “And anyway,” I went on, “you would have had to dispatch him then, not, as you've already admitted, an hour or so later. The catching and killing must combine. And that's true even if you'd actually caught him at itâwhich you didn't. I've just now told you that
time
is one of the factors in determining whether a homicide is a murder or not. Here it's a big one. Don't you see?âin your case
time
is the rub; it's the elapsed
time
between the rape and the killing that permits the People to bear down and argue that your shooting of Barney Quill was a deliberate, malicious and premeditated act. And that, my friend, is no more than they've charged you with.”
Stoically: “Are you telling me to plead guilty?”
“Look, we've been over that. When I'm ready to advise you to cop out you'll know it. Right now I want you to realize what you're up against, man.”
The Lieutenant blinked his eyes thoughtfully. “I'm busy realizing,” he said.
“Try to look at it this way, Lieutenant,” I went on, warmed to my lecture. “Just as murder itself is one of the most elemental and primitive of crimes, so also the law of murder is, for all the torrent of words written about it, still pretty elemental and primitive in its basic concepts. The human tribe learned early that indiscriminate killing was not only poor for tribal decorum and well-being but threatened its very survival and was therefore bad in itself. So murder became taboo. Are you still with me?”
“Go on.”
“At the same time it was seen that there were occasions when a killing might nevertheless still be justified. Stated most baldly it all pretty much boiled down to this: Thou shalt not killâexcept to save yourself, your property, or your loved ones. That simple statement still embraces by far most of the modern defenses to murder. If a man tries to take my life or my wife or my cow I may kill him to prevent it. But if I chase him off or, more like your situation, if he should steal my wife or my cow while I am away fishing (or sleeping in my trailer) I must pursue other tribal remedies when I discover it. I must do so because I did not catch him at it, the damage is
done, the danger is past, the culprit may be dealt with later and at leisure.
“You will observe that this catching-him-at-it business involves the important factor of time, of time sequence, that I just mentioned. Even the âunwritten law' defense you brought up usually involves the notion of a cuckolded husband discovering his wife in the nuptial bed with the iceman. Or perhaps these days it's the deep-freeze man. In any case nearly all of these defense-of-property-and-person murder defensesââself-help' defenses they may be calledâinvolve the idea of the person who is killed being caught in the act, red-handed, before there is
time
for the killer to call for help or complain to the tribal eldersâthe police in our times. Is it seeping through?”