Indefensible (24 page)

There was no question about what he'd done: He'd convinced an anguished mother not to seek medical help for her desperately ill son. He proudly admitted it. I could even show a pattern of behavior. Other parents of chronically ill or disabled kids told similar stories. My case failed on the question of whether what he did was illegal. The judge, a cautious man whose own kids had been delivered by the doctor, said Dr. Wallis did nothing illegal. He said Doc gave medical advice as best he could. Whether or not it was good advice didn't concern the court. The charges were dismissed immediately, and then Dr. Wallis had the audacity to turn right around and sue
me for malicious prosecution. He wanted $5 million or alternatively, one dollar and a public apology. Naturally, the state wanted me to apologize, because they'd be on the hook for $5 million, as well as having to defend me. I refused.

Ultimately, the doctor and the state settled. I wouldn't have anything to do with it.

I tend to look back on it as
my
victory because, though Dr. Wallis had his loyalists in town, many of the younger and more educated families in the area quit the doctor and had their medical files sent over to the new clinic at the hospital forty miles to the south. When the state licensing board performed an investigation of its own, they decided in a split vote that he was fit to practice.

So when TMU asked me if I had any skeletons in the closet, I didn't even think of this.

“I guess it's not so bad,” TMU says when I finish explaining. “You didn't lose, you settled. And if it becomes an issue, it's got fabulous spin potential: senile old doctor; aggrieved father defending the rights of sick children, inept small-town court system. We can make you a regular folk hero . . . again.”

Harold has his joviality back. He is convinced that I didn't deceive him on purpose.

At the elevator, Tina takes my arm. We descend and drive toward our office. “What if you get this thing?” she says, meaning the seat on the circuit court.

“Don't be ridiculous,” I say. I'm not being honest, because professionally I've always had good luck, and I
expect
to get the appointment. It would be consistent. Jobs have fallen into my lap, things have come along at the right time. One thing that came at the right time was Dr. Wallis's stroke. It was a couple of weeks after they settled the lawsuit: a massive stroke, dead within days. It was good timing because it saved me from killing him, which I wanted to do. The criminal justice system had failed me—ironic, seeing as I
was
the system in my little corner of the woods—so I decided to resolve things. Because TMU's analysis is wrong: There was nothing senile about Dr. Wallis.

The question isn't so much whether Toby would have survived if Flora had rushed him to the hospital. I've looked into it, and I believe he would have. The bigger issue for me was that Dr. Wallis wanted a world without boys like Toby. He didn't believe in medical heroics and in nurturing the weak. He believed in removing them. No, he wasn't senile. He was cogent, he was sharp. He was a monster.

Shortly after Toby's death, an untraceable handgun found its way into my possession, and my toes wiggled over the cliff edge of criminality. Then the doctor died of natural causes, and though I had wanted to kill him, no crime was committed (except for how I got the gun, which, in the scale of things, was tiny).

Most guilty thoughts never give rise to action. For a prosecutor, guilty thoughts without a guilty act are irrelevant. The only way to survive this work is to lean in to it, eyes on the soil, and trudge. It's not my job to ask
how come
when crimes don't get committed, just as it's not my job to ask
how come
when they do; woe unto the prosecutor who keeps his own set of scales. I'm a lawyer, and my client is the government. It is a government of laws, and I'm an obeyer of laws. I've sworn an oath. And though I once had guilty thoughts of killing Dr. Wallis, it spawned no guilty act. No crime was committed.

Now eyes on the soil. Trudge.

•  •  •

Tina and I take my Volvo back to the office so she can get her car. “Where's Lizzy tonight?” she asks.

“Flora's,” I answer. Other than that, we ride in a silence made notable by throat clearings, yawns, and my mumbled responses to small traffic events. (“Oh shoot,” I whisper when the stoplight up ahead goes yellow.)

It is in the air.
It.
Two adults arriving at the same place in life at the same time.

“Mmm,” she says, her head resting back against the seat, eyes closed for a few seconds. What she means by “Mmm” is that the car is warm, the tummy is full of shrimp and beer, the hour is late, the night is long, and the soul—aching to believe in something that,
time and again, has been proved impossible—is willing to take a chance.

We idle at the intersection. This thing with Doc Wallis: I'd like to tell Tina about it, but anything I say would leave too much unsaid. I don't have the clarity to find words right now. I wish the light would just stay red.

“It's green, Nick,” she says.

“So it is.” I pull into the empty parking garage, spin up to our floor, and pull in jauntily beside her car. “That was fun,” I say. “I wish I didn't have so much work to do before tomorrow.”

Off we go in separate directions, she to her home, me to my office.

•  •  •

They say grief can quickly corrode all the supports that keep a marriage upright. It's common for couples to split following the death of a child. Is it also common, I wonder, for the divorce to fail as monumentally as the marriage did? Because Flora and I have failed at our divorce: We're twenty-plus years out, and both of us are single. Flora lives in a second childhood of discombobulation and fiercely guarded naiveté. And me; well, didn't I just send Tina packing for no good reason? Go figure.

Alas, Flora and I are much too entangled to get far apart. I need her near me because I keep hoping she'll forgive me for trying to throw her ass in jail. It's the same for her: She sticks around hoping I'll absolve her for not trying to save our son. The confounding truth is that we're both barking up the wrong tree. The forgiveness each of us craves, which we probably will never get, would come not from the other but from ourselves. I'm afraid that the result of all this is that as the years go by, we're more and more like an old married couple, except for the fact that we're not so old, not married, and not a couple.

I
t's late. I make a complete survey of the criminal division offices to ensure that I'm alone. I am. In my office, I check my voice mail. The only message of note is from Chip: “Nick, you promised me the other day that you'd call. I really, really need to speak with you, preferably here at my office. Call.”

I delete the message. Chip was acting strange the day of the meeting over in the FBI's conference room. I'd rather not talk to him until I've done a little poking around.

I walk out of my office and close the door. I'll miss this office if TMU does maneuver me onto the circuit court bench. I wonder who will replace me. Either they'll hire from outside the office, or Upton will get the job because none of the other assistants has the gravitas to land the seat. Tina, for example: smart, ambitious, good at what she does, but what she does is try cases. Same with the others. Only Upton, in his invisible way, has made himself seem “greater than.” And TMU likes Upton. It's a natural fit.

My master key opens all office doors. It opens Upton's. At his desk, I flip on the lamp, sit in the chair, and rock. I've read stories about the FBI profilers. They like to immerse themselves in the what and where of the crime. So that's what I'm doing here, I'm immersing.

“What's going on, Upton?” I ask the empty room. I get up and look at his stuff. On a plastic stand on the bookshelf, he has a football signed by all his teammates. It's from some game he won with a field goal of  I-forget-how-many yards, but it was a lot. There are the pictures of his girls, and of his wife, Cindy.

His bookshelves have the usual assortment of law books and trial technique manuals and law reviews. There's a small section of general
reading: novels and political history and travelogues. We all have this. I call it the “I'm a whole person” shelf, but I bet if I slipped a twenty between any two of these books, I could come back a year from now and retrieve it. So just for kicks, I do. I slip it between
Moby Dick
(classic leather-bound reprint with gilt lettering) and
The Wealth of Nations
(probably from his college days) and continue my tour, working my way past more law books, then the wall of diplomas and awards, and around to the desk. Nothing.

Next, file cabinets. I slide one open, and it's packed end to end with case files. It would take a team of trained agents to hunt for something nefarious here. I close it, look in the next drawer—ditto—and the next.

Now the computer. Like most of the rest of us, Upton leaves it on at night with his main programs running. I check the recent documents. Nothing. Braving the same tingle I felt at snooping on Kendall's cell phone, I open Upton's e-mail file and quickly get in the rhythm of scanning through. They're all work-related: messages from defense attorneys, court clerks, judges' clerks, investigators, expert witnesses, press inquiries. And personal e-mails that, as far back as I look, are of no consequence. I don't read any of these, just scan.

My failure to find any dirt is good. I don't want to find dirt on Upton. I don't even want to be doing this. I don't want to be in his office. I don't want to be a sneak and a snoop. I don't want to find out Upton is on the take, and I really don't want to find out he sold Cassandra to her assassins. I don't want to have snooped in Kendall's cell phone. I don't want to doubt Chip. I don't want to be sucked into the gaping void of Hollis Phippin's grief.

But here I am. My suspicion of Upton started not with suspicion but with concern. He seems different; his head hasn't been in the game. And then when he was so willing to consider flipping Scud, making him an informant, essentially turning our backs on the murders of Zander and Cassandra, it got me wondering if something was seriously wrong because Upton isn't one to offer a sweet deal for somebody he thinks is guilty. He is a prosecutor's prosecutor. He speaks jokingly about his contempt for the “disruptors” of our
“urban utopia,” but it isn't joking. Upton is a true believer in the ideal of a shining city on the hill and is unapologetic about bringing the full weight and fury of the legal system down on the heads of any who would corrupt that vision. So I'm baffled by his sudden interest in immunizing Scud for two capital murders. Something stinks.

Scud Illman claimed he has dealings with Upton; the phone record bears that out; Upton denies the conversation. Even if nothing else turns up, that phone call alone is staggeringly inappropriate. Enforcement should never speak privately to a defendant or suspect who is represented by counsel; an assistant U.S. attorney should never wantonly conceal information from a superior; a lawyer should never go sticking his nose into someone else's case without reporting it. These aren't just little niceties Upton has violated; these are bedrock rules of criminal prosecution.

I abandon my computer search and go back to being Upton: I sit, absorb. The computer screen clicks back to black. No screen saver.

Ethically, my searching this office isn't as bad as searching Kendall's phone. In fact, if I find real dirt on Upton, it would even be admissible in court. But I feel scummy, and in an instant, all my certainty fades. Upton is my friend and trusted colleague. And even if he's into something, I'll never find it. “The hell with this,” I say aloud.

I stand up to leave. Not just to leave but to be done with it all, because it pisses me off that I've come in here and snooped. I'll just call Upton. I'll cop to having peeked at Kendall's phone log (Upton won't care) and demand to know why he and Scud were having a tête-à-tête. I step around Upton's desk and catch sight of a photo of his teenage girls, a few years older than Lizzy, and I feel what guys our age feel at the encroachments of age. Upton is still strong, sharp, and powerful, but we've both found ourselves beyond the crest—which, it turns out, doesn't tower high above the landscape. It doesn't shimmer magically in the rare air of enlightenment. It's just a little hill. Another time I might reflect wistfully on all of this, but what occurs to me now is that Upton and I grew up in the era of hard copies. And Upton, I know, is even less comfortable in the
electronic world than I am. Forget about hidden or encrypted files, I ought to rifle the desk drawers.

And there it is. Center drawer, laid on top, unfolded and unsigned, addressed to TMU: “. . . with great regret that I resign . . . embarrassment I've caused you or this office . . . inappropriate actions . . . indiscretions of youth . . .”

Standard stuff for resignation in disgrace but with no clue what the disgrace is. It isn't as simple as Upton being our snitch, because that's a criminal matter, and it would mean long prison time. He would leave here in bracelets, not with some polite letter of regret.

The letter is dated last Friday, Scud Illman's farewell day on earth.

I leave the letter where it is, close the drawer, turn off the desk lamp, and walk away. On my way out, though, in the now dim light, I eye Upton's “I'm a whole person” shelf. What are the chances we'll both be here in a year? Or a month? Or a week? I can't guess, but I'm not betting on the status quo. I go and retrieve my twenty dollars from between Melville and Smith.

I
hadn't planned to be a prosecutor. Criminal defense or environmental law would have been more my thing, but fresh out of law school and with a pile of debt, I took the first good job I found: assistant DA, up north.