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Brainstorm by Richard Dooling

Random House

Web posted on: Thursday, May 07, 1998 10:09:53 AM EDT

(CNN) -- Attorney Joe Watson had never been to court except to be sworn in. He's a Webhead. But then he gets chosen to defend James Whitlow, a lowlife with a long rap sheet accused of a double hate crime. When Watson stubbornly decides not to plead out his client, he is soon evicted from his comfortable life: His boss fires him, his wife leaves him and takes the children, and the Whitlow case begins to consume all of his time.



"The beheadings are almost identical," said Joe Watson, placing his memo on the walnut expanse of Arthur Mahoney's worktable. Watson resisted the impulse to retrieve the memo on beheadings from the senior partner's elbow and check it again for typos. Arthur Mahoney -- silver-haired mentor and the partner in charge of young Watson's career at Stern, Pale & Covin -- had been less than enthusiastic about the last two memos Watson had done for him, and Watson feared that another unsatisfying piece of work might jeopardize the comfortable, protected niche he'd made for himself as research and writing factotum to the head of the litigation department.

"Almost identical?" asked Arthur. He set aside the stack of correspondence and enclosures he had been reviewing, swiveled in his recliner, and attended to his young associate and the press of the business at hand: decapitations.

"Yes," said Watson, panicking as he suddenly realized he had forgotten to use the spell checker himself (instead of just having his secretary do it), so he could activate the homophone feature of the firm's word processing software and double-check for words that were spelled correctly but were misused, like discrete instead of discreet, or principle instead of principal. He'd used stationery instead of stationary in the last memo, and Arthur had filled the margins with a handwritten screed on the importance of precision.

"Is this something more than look and feel?" asked Arthur. "We've seen so many of these damn beheadings. And you associates tend to make wild, very serious, highly theoretical allegations without thinking about the weeks of courtroom labor you'll need to prove them. How do you distinguish one beheading from another? I'll have to rely on young people to teach me about decapitations. We didn't have such grisly spectacles in my day."

"Both heads are severed at the third cervical vertebra -- right here," said Watson, running a finger across the back of his own neck by way of illustration. "So?" said Arthur. "Seems a likely enough site." "Similar-sounding crunches occur when the blades strike the vertebra. The arteries and veins sprout like seaweed and spurt blood everywhere. I'm having the splatter patterns analyzed to be sure, but the splotches look identical. The heads topple forward and then roll down stairs -- three stairs, to be exact, with three kerplunks. The animated victims turn their headless stumps toward the gamer and squirt blood through the windpipes onto the screen. The heads themselves are mounted on pikes, and in both cases the heads say, "Ouch, that smarts!" in a kind of cartoon voice, at the instant of impalement."

Arthur made a small steeple of his index fingers and tapped it against his pursed lips. "Joseph," he said with a benevolent smile, "I can imagine myself arguing to a federal district judge that one beheading is identical to another. I can imagine myself arguing that one beheading is wholly distinguishable from some other beheading which has been served up by way of comparison, but I'm straining somewhat to imagine myself arguing that two beheadings are almost identical. Instead of issuing general proclamations of their near identity, perhaps your analysis could commence with a succinct delineation of the difference or differences, however slight, between the two beheadings. I'll speak plainly: What is keeping our almost identical beheadings from becoming completely identical beheadings?" "A halberd and a scimitar, sir," said Watson. "A halberd," said Arthur.

"It's kind of a combination poleax and pike mounted on a six-foot handle," Watson explained. "You've probably seen knights and beefeaters and whatnot holding them. Or maybe if you've been to a museum you've seen them leaning against suits of armor. The Met in New York has quite a collection." "I know what a halberd is," said Arthur. "I knew you would," said Watson, deciding not to mention that he had exhaustively researched the subject of halberds to the tune of six or seven billable hours, had viewed the Met's collection of halberds on-line at , and had submitted his time under the heading "Research Look-and-Feel Issues Involving Ancillary Armaments, 6.75 Hours."

"In CarnageMaster, the Crusader's head is cut off by a Maltese knight with a halberd, but in Greek SlaughterHouse, Medusa is beheaded by Perseus, who uses a blazing scimitar." "And a polished shield for a mirror?" Arthur asked eagerly. "No," said Watson, "I don't think our clients are up on their Greek mythology. Perseus just kind of looks right at Medusa and whops off her head with a scimitar he must have stolen from a vanquished Turk after doing a little time traveling. Now, you're probably thinking, That's different -- Perseus and his scimitar are different from a Maltese knight with a halberd. But when the weapons are displayed later, the blood drips in precisely the same patterns from the blades to the same reticulated stone floor of an identical castle -- the Castle of Skulls -- which was designed by our client's multimedia programmers."

"Sounds like more than a coincidence," said Arthur, "but is this copyright infringement? Something more than look and feel? Has CarnageMaster stolen the story of Greek SlaughterHouse? The characters?" "CarnageMaster has stolen the soul of Greek SlaughterHouse," Watson said.

"Hmmm," said Arthur. "So we have these 'almost identical' beheadings, and we have the 'very similar' dungeon torture sessions, followed by the 'almost identical' disembowelments." "That's right," said Watson. "Don't forget the nearly identical large-breasted blondes wearing see-through chain mail shackled to ringbolts and stones inside pink, secret chambers. In both games, male assailants brandish flesh-colored broadswords at them." "We need more," said Arthur. "Subliminal Solutions and the SlaughterHouse team want to be absolutely certain of their position before amending their complaint and adding a request for punitive damages. We need to be sure this is all -- what are the magic words? -- 'well grounded in fact and warranted by existing law,' or we risk Rule Eleven sanctions. More research is indicated."

"Yes, sir," said Watson.

Arthur took a call. Watson gathered his papers and headed out, back to his office, a windowless cubicle one fourth the size of Arthur's spread. Arthur had the big office, the ancient measure of partner power, but he didn't have a 600 megahertz Pentium VI 3-D system with a subwoofer and a twenty-eight-inch flat-panel display, which the firm had installed in Watson's office to assist him in analyzing copyright litigation claims for the firm's software clientele. Arthur didn't 'do' computers, had no use for them. He was an example of that dying breed of lawyer who still pined for the days when former fraternity brothers and family friends paid dearly for sage advice and legal guidance. The old guy had barely an inkling that modern corporate clients were no longer interested in sage advice (they could get that from the in-house lawyers they had on staff). They had all the family friends and wise men they needed; they came to Stern, Pale looking for armies of ruthless litigators and information dominance, so they could massacre their opponents in court.

In the twilight of his august career, Arthur was still dispensing advice and memos to clients, but these days those memos and that advice consisted of information that had been winnowed, gathered, and compressed by associates using powerful computers and search technologies. For young lawyers, like Joe, legal prowess increasingly depended on computer expertise, which meant that one had to curry favor and cultivate relationships not only with senior partners, who played real golf, but also with the management information systems (MIS) people, who played 3-D Microsoft Golf and who controlled access to the machines and the software a young associate needed for optimum research capabilities.

For instance, Arthur barely knew the head of MIS -- a shapeless, rumpled dweeb, affectionately known as Inspector Digit -- who was Watson's buddy and primarily responsible for getting Watson into his high-end equipment. Digit was, in the language of the trade, a guy with lots of MIPS but no I/O. Plenty of brainpower, but subject to trap errors, freeze-ups, and system hangs when it came to interacting with humans. When Digit opened his mouth, argot and acronyms, techno-linguistics and programming instruction sets came out. Most lawyers said only "Uh-huh" and "Fix it" to Digit, which was why Digit valued Watson's friendship. Watson, in turn, looked to Digit for the very latest in beta browsers and processing power.

Officially, the lawyers were allowed to use only firm-issued desktop PCs (referred to by the information elite as 'beige toasters') that were hooked to the network and ran five-year-old firm-approved software (hopelessly dated stuff, referred to as 'stone knives and bearskins'); third-party programs of any kind were strictly forbidden, for obvious security reasons. But unofficially, Inspector Digit and the MIS people gave Watson and a few other silicon turbonerds high-end machines and let them deploy and test the latest Web browsers, agents, robots, and legal systems software. It was the best way to test the stuff before implementing it throughout the network. Watson and the other tech-headed lawyers were always clustergeeking around the new machines, running beta software, crashing supposedly crashproof software, or cycle crunching the networks on purpose, so that the MIS people would order them stand-alone workstations. Also known as propeller heads, spods, and terminal junkies, these associates knew the antiviral and security drills, so there was no point in limiting their use of third-party programs. Besides, restricting the serious user's choice of software is the equivalent of thought control.

Let Arthur have a big office, thought Watson -- I'll take the workstation with two gigabytes of RAM and the beta software. His screen came back to life when he moved the trackball, and Watson returned to the Castle of Skulls, ready for another thirty or forty billable hours of dismembering 3-D medieval warlords. A blinking light on his Personal Information Manager (PIM) indicated that he had external voice mail waiting. He pressed the button. "This is Judge Stang's clerk, Federal District Court, Eastern District of Missouri, calling Joseph T. Watson, attorney number 76892. Pursuant to the court's local rules, Judge Stang has appointed you to represent an indigent defendant in Case Number 2002-CR-30084-WJS. For more information about the case and for a copy of the information and the bill of particulars, please call the court at . . ."

His appointed case! In the Eastern District of Missouri (St. Louis) and in many other federal districts, the district courts have a long-standing tradition of assigning every new lawyer admitted to practice in the district a pro bono case, usually an indigent criminal or civil rights plaintiff who, for whatever reason, cannot be represented by the federal public defender. It's a rite of passage for new lawyers who don't know which end is up in a drug conspiracy trial, and it's the bane of big law firms, whose partners lose hundreds of billable hours' worth of new associate time to the defense of guilty criminals or the filing of often frivolous prisoners'-rights or discrimination suits.

Watson knew he was due for his appointed case, because three of his classmates who were sworn in with him had already received theirs. He'd had secret hopes for a criminal case, because back in law school -- before becoming husband to his wife, Sandra, and father and provider for their children, Sheila and Benjy -- he had aspired to being William Kunstler, Gerry Spence, or Clarence Darrow. A legal warrior and protector of downtrodden outcasts. Instead, he became an overpaid silk-stockinged Westlaw geek for the partners of Stern, Pale. A criminal case might satisfy some of his former cravings for glory. But big criminal cases usually went to the federal public defender. Besides, a federal criminal appointment would tear some ragged, deep valleys in Watson's 180-day moving average of fifty billable hours a week, because all of the appointed work would be nonbillable. In his day, Clarence Darrow probably didn't turn in time sheets to the management committee, or answer to the wife and kids when he passed on the family vacation and took a case for no pay. Or if Clarence answered to a wife, she probably didn't have Sandra's withering contempt for professional frolics and detours -- like defending guilty criminals -- that would do nothing to advance the welfare of their traditional family.

He called Judge Stang's clerk and exchanged pleasantries with a pleasant young woman. He patiently waited for her to tell him he had been assigned a nice Title VII employment discrimination case, an inmate wanting his sentence corrected from 580 years to probation, or a Social Security matter -- maybe helping a destitute widow make a claim for benefits.

"It's a murder case," the woman said pleasantly. ''Murder?'' Watson choked. It was criminal, all right -- beyond his wildest dreams, verging on his wildest nightmares. "Since when do they have murder trials in federal court?" "Let's see here," she said. "Looks like the murder occurred on an army base, in the on-base housing where the defendant was staying with his wife, who is in the reserves. That's military reservation, meaning it's federal jurisdiction, which puts it in U.S. district court. And the U.S. attorney is seeking the death penalty under the Hate Crime Motivation or Vulnerable Victim provisions of the new federal sentencing guidelines. It's the federal version of all those state penalty-enhancement statutes."

"It's a hate crime?" asked Watson. "Why don't you read the Complaint and Affidavit? It probably came through on your fax machine a few minutes ago. It's murder, and the government is saying" -- Watson heard pages riffling -- " here we are, paragraph seven: 'The defendant intentionally selected his victim as the object of the offense because of the actual or perceived disability of the victimdeafness.' " "Deafness? And they're saying what?" Watson asked, amazed that there was such a law and doubly amazed that prosecutors actually used it. "You mean they're saying he shot a deaf guy because he hates deaf people?"

"I guess so," said the clerk. "Hold it. It also says " -- more riffling -- " paragraph eight: 'The defendant intentionally selected his victim as the object of the offense because of the actual or perceived race of the victim -- African-American.' The victim must have been a deaf black guy."

Murder! Joseph T. Watson, Esq., recent graduate of Ignatius University Law School and winner of the Computerized Legal Research & Writing Award, was the attorney of record for a hate criminal accused of murder! He panicked and did the noble thing, which was to argue his own incompetence, taking the defensible position that he was not a real lawyer.

"This must be a mistake," he said. "I'm not a real lawyer. I do computerized legal research. I'm a Webhead and Westlaw expert. I'm not an officer of the court. I've never even been to court, except to get sworn in. I spend roughly eleven hours a day foraging in computerized legal databases retrieving precedent -- cases that support the legal theories of senior partners who pay me handsomely for my skills." Even as he was attempting to beg off out of fear, he was tempted -- exhilarated even -- by the prospect of doing something -- anything -- besides fifty hours of legal research per week, every week. All he had had to say was "Yes, ma'am," and he could play at being a real lawyer, a trial lawyer, a criminal defense lawyer. But a first-year associate taking on a murder case for the sake of trial experience was like a med student dabbling in a little brain surgery.

"It says here you do discrimination work, Title VII cases, and so on," said the clerk. "Employment discrimination," said Watson. "I've done computerized legal research and written legal memoranda for partners who defend large employers who have been unjustly sued by disgruntled employees, but -- " "Judge Stang said these bias crimes are a lot like discrimination cases," said the clerk. "Think about it. Killing somebody is the ultimate form of discrimination. You shouldn't have any trouble." "But I've never uttered word one in a courtroom!" "Which puts you in the same boat with all the other young lawyers who get appointed every day," said the clerk. "Besides, you work at Stern, Pale. It's the best firm in town. I'm sure you'll do a better job than most of the appointed lawyers we see down here."

Again, the prospect of a real case -- his very own case! -- beckoned, but he also vividly imagined his normal workload, his billable hours, and his performance profile all ravaged by a murder trial in which he would be representing a nonpaying client. What would Clarence Darrow do? Selflessly think about the poor client, probably.

"I am not a trial lawyer," he continued, wondering how much trouble he could cause the government by filing a dozen vigorous, well-aimed pretrial motions. "Stern, Pale hired me because I have a certain facility for answering essay questions on law school exams."

"I'm looking at the judge's notes," said the clerk. "He says you wrote a law review article called 'Are Hate Crimes Thought Crimes?' in the Ignatius University law journal." Watson was flattered that Judge Stang had noticed his student comment but alarmed that anyone would think it qualified him to handle a murder case.

"That's me," he said. "But that's just footnotes, research, and so on. That's not murder!" The clerk sighed. "The case has been assigned to you. I don't know if there's such a thing as a Rule Forty-nine Motion to Withdraw Because of Your Own Incompetence, and I don't think your client can claim ineffective assistance of counsel until you lose the case, but if you want to file something, see Judge Stang at informal matters after the arraignment. I'd wear a helmet if I were you."

The clerk added that Watson could watch Channel 5 Live at ten if he wanted to know more about the case, that newspaper people were calling, that Lawyers for Deaf Americans, lawyers for the National Organization for Women, NAACP lawyers, civil rights attorneys, and hate crime experts were all calling for information about the case, so maybe he would be able to fob it off on an attorney for a special interest group or on some other eager young defense lawyer willing to work for nothing while building his or her reputation.

"This is an academic discussion, however," said the clerk. "You've been appointed. I cant unappoint you. Only the judge can do that. Do you know Judge Stang?" Legends and war stories came immediately to Watson's mind. The time Judge Stang -- a cantankerous graduate of the Roy Bean school of jurisprudence -- ordered an attorney to put a bag over his client's head, because the judge was sick of the man's supercilious grin. The time he ordered a federal marshal to handcuff two squabbling attorneys together and lock them in a holding cell. The time he flew into a blind rage (later diagnosed as furor juridicus, a species of judicial seizure activity) and attacked thirty lawyers with the courtroom's iron flagpole because they were unable to settle EPA Superfund litigation after three years of discovery.

He had more nicknames than any other judge. Some called him Ivan the Terrible, others, Blackjack Stang; still others referred to him as the Grand Inquisitor, Darth Vader, Beelzebub, the Gowned Avenger, or the Prince of Darkness.

"I'll tell you this," she said, "if you try to withdraw from an appointed case, and your only excuse is that you lack trial experience, Judge Stang will fine you for contempt, and then he'll cut your ears off with a butter knife."

Copyrightę 1998 by Richard Dooling. All rights reserved
ISBN: 0-679-45239-7

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