Unsaid: A Novel (29 page)

Under this standard, Max gave a good account of himself and was good company in the process. I couldn’t have asked more of him than that.

Once Max and David’s team came aboard, events blurred before me. Part of this I’m sure is because of the speed with which things started to happen, but more important is the fact that, with Max, the group achieved a level of internal completeness that left little light for anyone outside the unit to absorb. Over the course of the ensuing days, it was as if I was watching one single living organism process raw materials into something completely new and unprecedented. The aggregation of the pieces clearly was greater than the individual parts. But that organism was both single-minded and stubborn.

Nothing got in the way of the preparation for Jaycee’s trial
during the week before it began—not other work, not the team’s family obligations, not the ever-mounting evidence of Skippy’s failing heart, and not grief.

The only real breaks were for eating and sleeping when necessary, talking to reporters when possible, and then reviewing the escalating news coverage of Cindy and the trial.

Of all the articles that had been written about the looming trial, only one made Jaycee gasp.

It was the one reporting that Dr. Scott Jannick had resigned his position as the director of NIS in order to “enable him to return to the research front lines.” That same article revealed that the position of NIS director would be filled immediately by “a noted primate scientist.”

I saw the words, but couldn’t believe them. Jannick’s replacement was Dr. Renee Vartag.

O
n the morning of the trial, Sally is up and about our house well before dawn because she hasn’t slept: She’s so anxious about Skippy—what is coming, and how Clifford will respond to another ending. She feeds the animals and ends up cooking breakfast at the stove while the two big dogs wait at her feet.

David bounces into the kitchen dressed for court—gray suit, red dot tie, black shoes. He’s radiant. “Okay, then. I’m off to get my ass kicked.”

Sally gives him a careful once-over. “Well, you definitely look like a lawyer.”

“Are you sure you don’t want to come and see the bloodshed?”

“Nah. I told you, I’d be too nervous.” Sally gives him a peck on the cheek and a squeeze on his shoulders. “For luck.”

“Thanks. Remember, I’ll be overnight in the city.” David gives Bernie and then Chip a quick rub on the head.

“Don’t worry. Cliff and I will be here.”

A shadow quickly passes over David’s face. “I just looked in on
Skippy and he seems so tired. I wonder if he needs to have his Lasix upped. Can you take him in to see Joshua?”

I can hear Sally struggle to keep the emotion from her voice. “It must’ve been all the excitement. Lots of traffic this past week. I’ll bring him over today.”

“Okay. I’ll call you when it’s over for the day,” David says as he grabs his overstuffed briefcase and coat. With a quick wave good-bye, he heads out.

Sally scoops scrambled eggs onto three plates. She places two on the floor for Bernie and Chip; she smiles as they instantly begin to devour the food.

Clifford must have heard the sound of voices because he stumbles into the kitchen in his pajamas, carrying Skippy in his arms. “Skippy is sick, Mama.”

“Yes, he is.” Sally carries the third plate over to Clifford and Skippy.

The boy gently lowers Skippy to the floor and sits down beside him. He tries to feed Skippy by hand, first blowing on a piece of egg to cool it off, but Skippy refuses to eat.

“Please, you’ve got to eat,” Clifford pleads with him. It’s one of the few times I’ve heard real emotion in the boy’s voice while his eyes remained open and he was present in the world before him. Sally hears it, too.

Sally lifts Skippy into her arms and rocks him while she softly hums a melody. “I used to sing this to you when you were sick,” she says to Clifford.

“What are the words?” Clifford asks.

Sally laughs softly. “I never learned them, but it still worked every time.”

Although I know that Max is a spinmaster of the highest order, I’m still shocked by the throng standing in front of the courthouse when the taxi drops David off. Television news vans, with their live-feed satellite dishes thrust high in the air, line the street leading up to the courthouse, and reporters compete for room on the sidewalk. This case has become big news.

At least thirty animal rights activists on one side of the court entrance carry placards that say,
STOP THE SLAUGHTER; THE QUESTION IS NOT WHETHER THEY REASON, BUT WHETHER THEY FEEL PAIN;
and
WE ARE JUST ANOTHER APE
. They chant slogans that sound no less stupid to me than when I first heard them a decade ago: “What do we want? Rights for animals! When do we want it? Now!”; “No, no, we won’t go!”; and “Compassion is the fashion.”

On the other side of the court entrance, separated by five police officers and a barricade, a group of equally loud counter-protestors wave placards saying,
GOD MADE HUMANS IN HIS OWN IMAGE; PEOPLE FIRST
; and
WHAT’S NEXT?

If David is intimidated by the crowd, he doesn’t show it. He carries his briefcase and litigation bag up the courthouse steps where Max is talking to a group of reporters. Max offers “off-the-record statements” that he knows will nevertheless appear in print, but attributed only to “a source familiar with the court proceedings.”

David ignores the reporters and gestures for Max to follow. Max excuses himself, telling the reporters, “No further comment until after the proceedings are over for the day.”

Once inside, David says, “Nice job on the coverage.”

“You’ve always got to have some clash,” Max says. “Makes things interesting.”

“Where’s Jaycee and the rest of our crew?”

“Waiting inside the courtroom.”

“How does Jaycee seem to you?”

“Nervous. Desperate, maybe.”

“You think she’ll do okay?”

“I think she’d throw you under the train and then step over your bloodied and comatose body to open the door if she thought that chimp was behind it.”

“Good thing we’re on the same side then,” David says.

“So it seems.”

They take the elevator to the seventh floor, where more people and reporters wait outside Epstein’s courtroom. The reporters race toward David and Max.

“What do you put your chances at, Mr. Colden?” shouts one reporter. “Will Cindy testify on her own behalf?”

“We need to get into the courtroom now,” Max says. “We’ll be happy to answer any questions when we adjourn. Can’t keep the judge waiting.”

Max takes David by the elbow to prove the point, and they pass through the set of double doors and into Epstein’s courtroom.

Spectators pack the benches; the courtroom hums. Up toward the front, past the mythical bar that separates the lawyers from the rest of the world, Chris, Dan, and Jaycee huddle together to discuss last-minute preparations and to calm their nerves. The table for the prosecution is still empty.

David takes the seat at the head of the defense table next to Chris, and Max sits behind them. David removes my notebook from his briefcase and places it directly in front of him. He rests his hand on the cover for a moment. There is absolutely nothing within its pages that can help David now.

“So, where are our adversaries?” David asks.

Before anyone can answer, the rear double doors of the
courtroom burst open with urgency and hostility. A short, bald, torpedo of a man in an ill-fitting suit—an “anti-Max” of sorts—storms into the courtroom followed by a much younger male and female attorney struggling to keep pace. Max greets the new attorneys with an exaggerated wiggling of his fingers. The senior lawyer scowls back at him. The two young lawyers, taking their cue from their boss, likewise attempt a scowl, except the look is comical on their young faces.

“Isn’t that Alexander Mace?” David asks.

“None other than,” Max says, clearly amused by the situation.

“Wow. Aren’t you a little surprised they brought out the head of the criminal division for this?” David asks.

“What’s the deal with him?” Jaycee asks.

“He’s prosecuted international terrorists, organized crime families, and South American drug kingpins,” David says.

“And now you,” Max adds.

“They must be nervous,” Chris says.

“Or, more likely,” Max says, “they think the defense is so without merit they want to make an example of you by public humiliation. You know, dissuade other loonies from coming out of the woodwork to try to ‘free Willy.’ Mace has big political plans, and I’m guessing you’re his first law-and-order soapbox.”

Before David can respond, the court clerk enters from a door behind the judge’s bench and calls out, “All rise!”

Two young female law clerks, who look like they just graduated law school, pass through the same door, followed by the court stenographer with her steno machine. Then the judge enters.

David and Max turn toward each other with the same
What the hell
look on their faces. The judge is not Epstein. The judge is not even a woman.

The judge is Allerton, and he looks particularly displeased. Actually, the only person in the courtroom who seems happy with this development is Mace; he grins at David and Max, and I imagine strands of saliva dripping from his canines.

The law clerks leave papers on the bench for Allerton and then find their seats in the jury box. The court clerk sits at a table just below the bench. The stenographer, a young woman with incredibly long fingers, quickly sets up her machine off to the side of the bench, between the judge and the court clerk.

After confirming that his various clerks and the court stenographer are seated and ready, Allerton sits in the throne in the center of the bench. “Be seated,” he commands. The attorneys silently follow his order.

“Okay then. Counsel, as I’m sure you’ve noticed, I’m not Judge Epstein. Unfortunately, she was in a car accident last night and fractured her hip. She will be off the bench for several months. As chief judge, it has fallen to me to try to manage her case docket, so I’ll be taking over the trial in this matter. I assure you that no one is unhappier than me about this turn of events. Nevertheless, here we are.”

Allerton directs the attorneys to put their appearances on the official record, and David and Mace obey.

“And will we have the pleasure of hearing your dulcet tones in this case, Mr. Dryer?” Allerton asks.

Max rises and without a hint of irony in his voice says, “I am, of course, quite pleased to be in your courtroom, Judge.”

Allerton makes a great show of reaching into his pant pocket and pulling out his wallet. “Thank goodness. It’s still there.” Mace laughs several decibels louder than necessary.

Max continues as if nothing has happened. “But I will have no speaking role in this case.”

“And here I thought Christmas was over,” Allerton says to Mace’s obvious pleasure.

“Was that off the record?” the court reporter asks without looking up from her machine.

“Nope,” Allerton says, looking directly at Max. “Let it all stay on the record.” Allerton picks up a sheet of paper from the pile in front of him. “I have pending before me defendant’s motion to produce. Talk to me, Mr. Colden.”

David rises. “We want an order requiring that the government produce Cindy, the chimpanzee, in the courtroom during the trial. Dr. Cassidy has been accused of trying to steal government property. We believe that the evidence will show she was trying to save a life—a life that in all material respects is worthy of protection by application of the well-established defense of necessity. As part of that, we want the jury to see with their own eyes what this primate can do. It will corroborate Dr. Cassidy’s own judgment about—”

“Last time I checked,” Allerton says, “the defense of necessity was based on the necessity to save
human
life.”

Mace pops up. “You are absolutely correct, Your Honor. The defense has only been applied to save a person—another human being. If you’re not a human being, then you’re a ‘thing.’ This lab specimen, according to the law, is no different than a house, a piece of land, a coin, or a chair. Necessity to save a ‘thing’ is no defense. It only goes to mitigating circumstances, not to whether she’s guilty.”

“I assure you, Your Honor,” David says, “the law has never seen any property like Cindy. Once you learn about this chimpanzee, you will understand full well why Dr. Cassidy did what she did and why her conduct should be excused. It is our legal position that being human is not the same thing as being a person. Cindy is a person under the law even though she isn’t human—she’s in fact a
non-human person. Personhood should be sufficient for the defense of necessity, whether or not the person is a human being. At least the jury should be permitted to consider it.”

“I notice,” Allerton says, “that your brief is pretty light on legal authority for that point. In fact, you don’t have any authority for what you want at all.”

“If you mean another case where a chimpanzee was held to be a non-human person, then you are correct,” David answers. “Admittedly, we are in uncharted waters there. But we do have a whole slew of instances where non-humans have the rights of persons. Corporations are considered persons under the law, with the right to sue and be sued and other rights. Entire cities are considered persons under the civil rights laws. Then why not this one chimpanzee?”

“But, Your Honor,” Mace begins, “if—”

Allerton motions for Mace to stop. David and Mace return to their seats. “I’ve heard enough. This is my ruling,” Allerton says. “I’m denying, at least at this time, the defense’s request that the prosecution produce the test subject at trial. I see no purpose in requiring the government to undertake the burden of producing the property in question to put on some sort of display for the jury.”

Allerton’s ruling is met with some booing from the benches. He quickly bangs his gavel. “Not another word!” Allerton yells at the crowd. “If you can’t show this court some respect, I’ll have you removed.” The benches are instantly silent.