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8
Introduction
9
On the surface, the law is an authoritative set of rules put in place to
govern social living. Its sources are diverse and its reach is expansive. It
comes in different guises, labeled “criminal,” “civil,” or another such
variant. Although in actuality it is quite impossible, we are presumed to
know what these rules of ordered living are, at our peril. Ignorance of the
law is not an excuse. Yet even if we somehow mastered the rules, that
knowledge, standing alone, would still leave us ignorant about the law in
essential ways. Written rules have a past. They have a purpose—a raison
d'etre. With few exceptions, they are grounded in pre-existing
fundamental principles which, in part, reveal winners and losers in
struggles for power. Written rules acquire meaning in application, where
they can bear but faint resemblance to their formal terms. The law springs
from and operates within the complex dynamics of life itself, and hence is
infinitely richer than its manifestation in the form of rules.
There is no better way to expose and explore these dimensions of the
law than by entering the world in which the law functions and sampling
some of the exquisitely challenging human and social issues—an array of
the lawlemmas—which arise in life and beg principled resolution. The
following pages thus offer a series of essays—purely fictional, although
rooted in fact—involving characters whose perspectives and predicaments
help shed light on the competing values and down-to-earth practical
considerations that vie for dominance as their narratives unfold. Two
characters are especially frequent visitors.
Professor Ethan Andrew Jurus teaches at a large state university. His
classes are law-related, including his undergraduate Issues in Justice
seminar. He is a licensed attorney who occasionally handles cases in
addition to his classroom responsibilities. His knowledge of legal doctrine
is vast, owing to the considerable time he has spent ensconced in libraries
while absorbed in tomes of law. He would be the first to admit that his
insights about life are less fully developed, although he remains eager to
take advantage of experiences that will enhance them, including soliciting
and seriously considering the perspectives offered by his students.
Prudence Emma Durham—known to her friends as “Pru”—is a college
student enrolled in Professor Jurus's Issues in Justice class. The language
and methods of law are new to her, as they are to most students at her
level. She nevertheless is a quick study and her healthy measure of
common sense more than compensates for her modest store of legal
knowledge. Inquisitive by nature, and not at all timid about pressing for
answers, she is inclined to roam in thought and action where others do not
venture. While conceding the importance of book learning, she is eager to
10
take advantage of the extracurricular lessons that help define a college
education.
Regularly lurking near the intersection of Professor Jurus and Pru's
perspectives about law, education, life, and other things that matter is the
elusive quest for justice.
The questions they encounter find home in the lively arena of human
activity. Perhaps because they cannot be put to rest elsewhere, these
questions frequently come in search of answers within the much narrower
and tidier confines of courts of law. The problems they embrace are not
abstractions. They originate, sometimes inauspiciously and sometimes
quite dramatically, in the day-to-day experiences of real people. How they
are answered can deeply and directly affect those individuals' wellbeing.
But that is not all.
When questions find their way into a court of law, their answers—in the
form of a jury's verdict, a trial judge's ruling, or an appellate court's
decision—are announced as acts of judgment. Superimposed upon the
individuals who are conscripted as actors in these very public morality
plays are larger and sometimes transcendent issues. Their resolution gives
voice to fundamental value choices, choices that reaffirm, clarify, or for
the first time articulate shared standards of morality and elemental notions
of right and wrong. The resultant decisions and decisional principles then
assume a life of their own, largely decoupled from the individuals and
cases that spawned them. It thus becomes all the more important to be
able to explain—to justify—why and how the questions were answered as
they were.
Not surprisingly, the answers given to questions of law are often
controversial and disputed. The same can be said about the accompanying
foundational premises, principles, and supporting rationale. Law is not a
science. It is not value-free. It is not a brooding presence that hovers
somewhere above and independent of society, awaiting discovery and
application. It is a conspicuously human institution. Like the individuals
who crafted and continue to mold it, and like the social relationships it is
designed to manage, the law can be complex, highly nuanced, fraught
with ambiguities, and extraordinarily frustrating to try to harness. Like
life, it can be quite messy.
The snippets of life portrayed in the ensuing pages come cloaked in
familiar legal garb: for the most part, they evoke questions of criminal law
and constitutional law. Within those cavernous headings they invite
exploration of a host of difficult value choices and case-specific
subsidiary issues. A more detailed precis is not needed. It would prove
11
unsatisfactory to rely on the language of the law to introduce the life
stories and misadventures that lie ahead. It will be far better to accompany
Professor Jurus, Pru, and their supporting cast of characters as they forge
their own way through the ethical thickets and questions of justice which
they encounter.
Endnotes
1. Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 55
(1964).
12
13
Chapter 1
E THAN ANDREW JURUS was alone on the jogging path, or at least the
stretch within his view. He clipped along the riverside in the chill of the
emerging dawn. Two men were fishing from a rowboat. The sweet smell
of ripened apples spilled and receded in invisible air pockets as he ran. A
stocking cap was pulled snugly over his closely cropped salt and pepper
hair and a tube-shaped turtleneck—one of the best purchases he had made
—cradled his chin, leaving only a brief swath of grayish eyes, a sharp,
longish nose, and thin lips exposed to the air. He cherished this time, and
he needed it. It was a time when he did some of his best thinking, or rather
when his best thoughts came to him, unbidden and uncontrolled. It was a
time when, as much as he could, he left behind the skein of being
Professor Jurus, escaped the cloister of his office, and lost himself in the
rhythm of morning. It was the time when he felt most alive.
Later he would teach his first class of the day, an introductory level
undergraduate course in its inaugural offering, called Issues in Justice.
The title was imprecise, bordering on a misnomer, although he doubted he
would be called on it. His grounding was in law, a discipline only
tenuously connected to justice. The class itself sampled a hodgepodge of
issues which he personally found to be interesting, ethically challenging,
and meriting exploration as exercises in value clarification if nothing else.
Measured by the uncompromising tenor of class discussions, he
sometimes felt terribly alone in holding these opinions. He had never been
seriously pressed about how well the issues fit within the rubric of
“justice.”
He liked using case studies when he taught. His students could relate to
them and tended to be quite willing to grapple with the problems
confronting the people caught in their webs. Gradually, the students' focus
almost invariably shifted from trying to resolve the specific situation
before them to identifying the more general principles needed to govern
14
other cases that could be expected to present similar circumstances. When
it worked, Professor Jurus could take a back seat and allow the magic of
inductive reasoning to take hold upon his students. He thought it better to
sneak up on the meaning of justice in context than to invite hopelessly
abstract discussions outside of his students' frame of reference. They were
young, after all, and had limited life experience, which was not their fault.
He frequently was inclined to want to remind his students that the cases
they parsed were much more than abstractions purposed to serve as
vehicles for academic discussion, though he rarely yielded to that
temptation. Jurus's principal calling was college professor, but he also
took on select cases as a lawyer, something he considered important not
only because of the principles involved, but because of the people he
represented. His clients typically were individuals whose travails and
misadventures had immersed them, sometimes involuntarily and
sometimes wilfully, in circumstances where they had much—if not
everything—to lose in a court of law. Their lives gave painful birth to the
case decisions made in courtrooms, which then were sometimes reduced
to writing and assimilated into the greater corpus of the law. They were
not just bit players conjured up in a playwright's idle time.
Now well into his morning run, Jurus's thoughts settled on Yvette
Porter, her seven-year-old son Jeffy, and Jeffy's pet goldfish, Frank. Jurus
had a goldfish when he was Jeffy's age. He had brought it home from a
school fair, its carrying case a quart-size plastic bag filled with water and
secured at the top with a twist tie. From there, fish and water were
transferred to a small, rectangular aquarium carefully positioned on the
dresser next to his bed. The bottom of the aquarium was coated with a
layer of colored sand, and on the sand sat a sculpted castle with a jutting
flagpole. Ethan twice tapped a box of fish food and watched as the
granules dispersed in the water. His fish, the first fish he ever had, swam
in inquisitive circles, its mouth pursing and relaxing. He went to sleep.
When he awoke the next morning, his fish no longer swam. It floated
listlessly at the water's surface. His mother said this sort of thing always
happens and she would get him another fish, but she never did, probably
to spare him another such morning. They buried the fish together under a
bush in the back yard.
Jeffy Porter's goldfish Frank was a fixture in the bowl on the coffee
table in the living room of the apartment that Jeffy and his mother Yvette
called home. Frank had occupied this station for almost two years, a silent
sentry making his watery rounds. Jeffy's father did not live with them and
Jeffy rarely saw him. Yvette had not married him and she had dated
15
different men over the past several years. Her relationships with them
were not always happy. Some were frighteningly stormy. Yvette was
diminutive in stature but grandly spirited. When she argued, which she did
often, her words spewed forth in screams which, when decipherable, could
make a sailor blush. She was never physically violent. This was not
always true of the men in her life.
Yvette had been dating Carlos for the past three months. They had first
met while standing in line at a movie theater. Yvette was accompanied by
her sister and Carlos had gone with one of his friends. Having struck up a
conversation outside the theater, the four sat together and then went out
for drinks after the movie ended. Carlos called Yvette the next evening
and they began seeing one another regularly. Yvette had recently cooled
on the relationship. She was fiercely independent and Carlos had a
possessive streak that rubbed her the wrong way. Each of them had a
temper and, predictably, their clashing personalities had produced
explosive arguments. Yvette had had enough. She had told Carlos that she
no longer wished to see him. He nevertheless stopped by unannounced at
her apartment at 8:00 one Monday evening. Jeffy sat on the living room
floor, drawing in front of the television.
“Where were you last night?” Carlos demanded of Yvette. “Why didn't
you answer when I called?” He had stormed into the apartment without
knocking, bypassing any semblance of a greeting.
“What are you doing barging into my apartment? Who invited you over
here? Get out!” screamed Yvette.
“Answer me, woman,” said Carlos, “and don't tell me what to do.”
“Get the hell out of here, and get out now!” shrieked Yvette, ramping
up her volume. “I don't answer to the likes of you. Get out and stay out!
Leave me alone! It's over. Go! Get out! Now!”
“Don't you talk to me that way,” Carlos snarled. “I'm warning you.”
“Warning me? Warning me? What's that mean, ‘warning me’? What
the hell are you talking about?”
“I'll show you what it means!” shouted Carlos.
Carlos smelled of alcohol. He was not tall but he was powerfully built,
and stocky. Veins bulged at his temples. He strode deeper into the
apartment, advancing toward Yvette.
Jeffy sat frozen on the living room floor, staring up helplessly into the
escalating chaos. Afraid to keep looking, he wrapped his head in his arms
and curled into the carpet. He felt Carlos nearby and then heard the sound
of shattering glass as something crashed heavily into the living room wall.
16
“I'll stomp you like this fish,” Carlos yelled at Yvette. “Hey, Jeffy, look
here. Look see what your mama's gone and made me do. Look here at
your little fishy.”
Jeffy looked up. Water stained the wall and dripped onto the carpet.
Glass shards littered the room. He saw Frank straining on the floor,
arching, struggling against the hostile environment in his suddenly
transformed world. And then Carlos's boot descended, twisted, and Frank
disappeared. In his place was left a nondescript goo-like smear. What
might have been an eye gave hint of a baleful, reproachful stare.
“You goddamn son of a bitch!” Yvette had never been so angry in her
life. She wanted to kill Carlos. Instead, she took Jeffy in her arms. She
screamed at the top of her lungs until Carlos at last withdrew from the
apartment, slamming the door behind him. Yvette called 911. She sobbed
as she cradled her son. Jeffy trembled, whimpering miserably for Frank.
Jurus learned about these events directly from Yvette and Jeffy. He had
a soft spot for animals generally, and a particular fondness for the
Leighton Animal Protection Society, LAPS, and its no-kill animal shelter.
This is where he had found his pet dog Baffin, part Labrador and other
parts unknown, a mix that had produced a relentlessly angelic disposition
and a relationship of reciprocal, unconditional devotion. Jurus now
represented LAPS on a pro bono basis and had helped the Society
navigate through the red tape needed to acquire and preserve its status as a
non-profit organization. When Cheryl Colbert, LAPS's Director, asked
Jurus if he would consider signing on as a special prosecutor to assist the
District Attorney's office in pursuing criminal charges against Carlos, “to
get justice for Frank and Jeffy,” Jurus initially was uncertain. As a general
rule, he was much more comfortable defending people than prosecuting
them. After speaking with Yvette and Jeffy, his misgivings had vanished.
Jurus swung up the narrow trail from the jogging path to the road and
headed for home, less than a mile ahead. He would shower, let Baffin out
to renew her acquaintance with the morning in their modest back yard,
have coffee and breakfast while scanning the Leighton Gazette for items
of interest—the New York Times would come later, at his office computer
—and then be off to campus. Today was a teaching day.
Twenty-five students were enrolled in his Issues of Justice class. On
any given day he could expect 18 to 20 to attend. The class met twice
weekly from 9:00 to 10:20, which represented the break of day for many
undergraduates, whose circadian rhythms were in perpetual rebellion
against the Registrar's provincial scheduling practices. Jurus often began
his class sessions “off syllabus,” departing from the day's assigned topics
17
to comment on other matters, even if they had nothing to do with the
planned lesson. The only prerequisite was that he found the items to be
thought-provoking, making a boundless set of issues fair game. Still
preoccupied with his musings while jogging, he decided to sample
reactions to what had transpired, altering names and a few minor details to
avoid compromising Yvette and Jeffy's privacy.
“Make him pay for a new fishbowl,” said Donovan. “He's got no right
to go in there and break their fishbowl. I'd make him clean up the mess,
too. And he should get the kid a new fish.”
Jurus concealed a sigh. Donovan always could be counted on to get
discussion going. Maybe this was as good a place as any to start.
Prudence Durham rolled her eyes. “Pru,” as she preferred to be called,
was one of the most intellectually energetic students Jurus had
encountered in years. She was just a sophomore and had yet to declare a
major. Like many of her peers, she was dressed in pajama pants, or maybe
sweats (Jurus found it difficult to discriminate), and her blondish hair
tumbled from a loosely formed pile on the top of her head. Not always
finding the time to complete assigned readings, she nevertheless had an
uncanny knack for zeroing in on the heart of even the most complicated
issues and then divining a creative and often exquisitely sensible
resolution. Her views sometimes shifted with testing, but others far more
commonly eventually came around to her way of thinking. She was
frequently impatient, and not always tactful, in responding to her
classmates' arguments.
“For crying out loud,” Pru said in exasperation, “he didn't just knock it
off the table with his elbow and then trip on the fish. He did it on purpose.
The guy's sadistic. He's violent. He killed the little boy's fish and he'd
probably do it again. He needs to be punished.”
“You don't lock somebody up for breaking a fishbowl,” replied
Donovan. “He didn't kill anybody. He squished a fish. No different from
filleting it and eating it. What do you want to call that, ‘fishy-cide’? You
want to convict him for murdering a fish? Get the boy a new fish and tell
Hubert [the pseudonym Jurus had used for Carlos] to leave his mom and
him alone.”
In this exchange Jurus heard echoes of the law's historical and more
recent conception and treatment of animals—or rather, animals of the
nonhuman variety. Not that long ago, within this country's legal tradition,
domesticated animals were considered the property of the humans who
owned them. They had no identity, rights, or interests independent of that
18
status. They could (and often still can) be bought and sold, slaughtered for
market, used for scientific experimentation, and otherwise dealt with in
ways indistinguishable from other commodities. As such, their value was
measured, like other property, exclusively in economic terms. The losses
suffered in a fire that claimed a farmer's pigs and a fire that claimed his
barn were calculated and compensated in the same way. Property is
property.
Gradually, begrudgingly, the law began to change. Animal cruelty laws
defined as a crime, usually a low grade misdemeanor, the mistreatment of
at least some kinds of animals (those used in agriculture often were
exempt) by intentionally causing them unnecessary pain, or by denying
them the food or shelter they needed for survival. Federal and state
regulations limited the funding made available for some types of research
that relied on select animal species. In many states, cruelty to animals
under particular circumstances, such as when directed against household
pets, now qualified as a felony. Several areas of law nevertheless clung
stubbornly to the notion of animals as property, as fungible goods of the
same order as other commercial possessions. Under this conception, the
goldfish bowl that formerly had adorned Yvette's coffee table was worth
considerably more than Frank himself. Jeffy—much like Jurus when he
had his brief encounter with a goldfish as a boy—had acquired Frank for
free at a local charity event. The goldfish bowl cost $10.95 at Walmart.
“Do you have any pets, Donovan?” Pru was taking aim at her prey.
“Yeah, we have a family dog. Sparky. Got him at the shelter.”
Pru was eyeing Donovan's iPod and his laptop computer. “O.K., so say
you got him for 10 dollars from the shelter and then paid to get him shots
and have him neutered. Now let's say you're sitting at home with Sparky
and you have your music going on your $200 iPod and you're working
away on your $1200 laptop. All of a sudden a fire breaks out in your
room. You have to get out in a hurry and you can only take one thing with
you. What's it gonna be: Sparky, the iPod, or the computer?”
Donovan saw where this was going. “Look, we're not talking about
somebody's dog. We're talking about a goldfish. Goldfish swim around in
circles all day. That's all they do. Before you know it, they're belly-up and
you have to get yourself another one. Happens all the time.”
Tasha, another student in the class, entered the discussion. “It's one
thing for a fish to go belly-up. That didn't happen here. He killed the fish.
And he did it in front of the little boy.”
Taylor rallied in support of Donovan. “I'll bet that same little boy's done
19
the exact same thing, but he just calls it ‘fishing.’ That's what you do
when you go fishing. You kill a fish. I've gone fishing since I was seven,
like this boy. The fish is just as dead. That's no crime.”
“I'm not talking about it from the fish's point of view,” said Tasha. “I go
fishing. I eat fish. Fish are fish. But I'm looking at Hubert here. That man's
evil. He did it on purpose to hurt the lady and her little boy. And how do
you think that boy feels, his pet fish stomped on like that? No, that man's
got to be punished for doing that.”
Pru pressed on. “What if this isn't the little boy's goldfish swimming in
circles in a bowl all his life, but some dolphin swimming free in the ocean
getting caught up in a tuna boat's net and they just let it die? Or what if it's
some elephant killed by poachers who want its tusks for ivory? Or what if
it's your pet dog Sparky, Donovan? Don't you care about the dolphin, or
the elephant, or Sparky? Don't you care that they swim and roam the
jungles and chase tennis balls and squirrels and have a life? Is it only
about Hubert and about how the little boy feels?”
Jurus's thoughts strayed to one 4th of July when a group of pre-
adolescent boys had amused themselves by lobbing firecrackers over
Jurus's backyard fence, into Baffin's domain. Jurus had not been home at
the time. When he returned he discovered the M-80 and cherry bomb
casings. He did not know precisely what Baffin had endured. He knew it
could not have been pleasant. Pru's salvo reminded him of the 19th
century passage, oft-quoted by animal rights activists, written by British
philosopher Jeremy Bentham.
The day may come when the rest of the animal creation may acquire
those rights which never could have been withholden from them but
by the hand of tyranny. The French have already discovered that the
blackness of the skin is no reason why a human being should be
abandoned without redress to the caprice of a tormentor. It may one
day come to be recognized that the number of the legs, the villosity of
the skin, or the termination of the os sacrum are reasons equally
insufficient for abandoning a sensitive being to the same fate. What
else is it that should trace the insuperable line? Is it the faculty of
reason, or perhaps the faculty of discourse? But a full-grown horse or
dog is beyond comparison a more rational, as well as a more
conversable animal, than an infant of a day or a week or even a
month, old. But suppose they were otherwise, what would it avail?
The question is not, Can they reason? nor Can they talk? but, Can
they suffer?1
20
“Aw, geez, Pru, now you're going too far,” said Donovan. “Next you're
going to want to ban hunting, outlaw leather shoes, and we're all eating
tofu sandwiches instead of hamburgers.”
Jurus knew it was coming. It was a point worth exploring, indeed, one
that he hoped would nag for a reply—agitate either for endorsement or
active resistance—when some remnant of the conversation penetrated life
beyond the classroom. But now he felt it was time to redirect the class
discussion, to ground it more concretely in what had transpired between
Carlos, Yvette, Jeffy, and Frank, and in the law.
“I think we would all agree that there's a difference,” Jurus offered,
“between a personal code of conduct—a way of behaving that you find
agreeable to your own way of thinking—and a rule that ought to be
binding on everyone, whether they like it or not. Pru might opt for tofu
and Donovan might prefer McDonald's. Maybe they can agree to disagree:
vive la difference. At some point we're going to impose on their personal
choices. Pru won't be able to snack on peyote, at least not lawfully,” he
continued, drawing from her a look of protest, “and cannibalism will be
off limits to Donovan” (this, to a grumble from Donvovan and general
titters) “even if he takes a liking to Hannibal Lecter's menu.” Silence of
the Lambs was one of the few movies Jurus had seen. He often was
hopelessly adrift when trying to make sense of contemporary cultural
referents. His students just as frequently were baffled by his own
examples. “Let's get back to Hubert and Carol and Andy [the latter two
names substituted for Yvette and Jeffy] and their fish. What kinds of
‘binding-on-everyone’ rules did Hubert break, and what should be the
consequences?”
Naomi raised her hand. “Well, he shouldn't have come into their
apartment without permission. That's breaking and entering, or
trespassing, or something. And he smashed the fishbowl. You can't just
destroy somebody's property. He'll have to pay for that. That ought to be a
crime, too.”
“O.K.,” said Jurus, “no disagreement there. We have laws against
barging into somebody else's home uninvited. And if he broke the
fishbowl on purpose, which he did, it seems fair that he should have to
pay for a new one to replace it. Carol could sue him, civilly, if it's worth it
to her. That would compensate her for damages—‘make her whole’ again.
We might also want to think about punishing Hubert for breaking the
fishbowl. We're all familiar with vandalism, intentionally damaging or
destroying someone else's property. That's a crime, so now we're coming
at Hubert with double barrels, a civil lawsuit so Carol can recover her
21
losses, and a criminal prosecution—brought in the name of the State, or
the People, or society as a whole, rather than on behalf of Carol, Andy,
and the goldfish. Now, there's a different purpose: to punish Hubert. Why
might we want to punish him, and not just make him pay back Carol and
replace the fishbowl?”
“Because he's a creep,” volunteered Isaiah.
“Is it a crime to be a creep?” asked Jurus.
Isaiah was forced to elaborate. “Because he's a creep who smashed the
fishbowl.”
“I think those hunters who club seals in the head so they can sell their
pelts are creeps,” said Pru, “and that ought to be a crime. Why is it wrong
to smash a fishbowl but all right to bash a defenseless seal in the head?”
“There you go again,” protested Donovan. “You're bound and
determined to make it a crime to eat hamburgers. How do you think they
kill those cows? They bash 'em in the head with this big old power
hammer. Wham.”
Jurus intervened. “Let's stick with the goldfish. Did Hubert commit a
crime when he killed the goldfish? Does he deserve to be punished for it,
maybe locked up in jail? Is it different from just going fishing? Somebody
propose a rule—should there be a rule of law that makes it a crime for
Hubert to kill the goldfish swimming around in Carol and Andy's
apartment, but not kill the same goldfish when it's swimming around in a
pond? Should both be a crime? Neither?”
It probably was too big of a question, framed too early in the
discussion, to expect a correspondingly grand response. Silence
descended.
“You're a creep if you act like Hubert. You're not a creep to go fishing.
That's what it boils down to,” said Isaiah.
“Does how he kills the fish make a difference?” prodded Jurus. “What
if after Hubert pulled the fish out of the pond on his fishing line, he let it
flop around on the ground, and then stepped on it with his boot? Should
that matter?”
“Nah,” Isaiah responded, “now he's just putting it out of its misery. It's
quicker than dangling on the end of a hook and flopping around
suffocating. That's no crime.”
“Does why he kills the fish matter? What if it has nothing to do with
putting the fish out of its misery? Suppose he sees Carol and Andy
walking nearby. He and Carol have been arguing. He wants to get back at
her through Andy. He knows Andy has a pet goldfish. So he calls them
22
over, tosses the fish he caught on the ground, tells Andy to watch, and
then he stomps on it with his boot? Now, do we have a crime?”
“Yeah,” said Isaiah, “now he's a creep. He's being mean to that boy.
He's doing it on purpose. Lock him up.”
“What if Andy's not watching? What if Hubert's just a bully, or mean,
and he likes to make animals suffer? That's why he grinds his boot into the
fish, so he can get this perverse sort of pleasure through the fish's pain. He
enjoys it. Now where are we?”
“It's not about the fish,” insisted Isaiah. “A squished fish is a squished
fish. It doesn't care why it got squished. I still say he can pull it out of the
water and let it drown—or whatever happens when you're a fish and
you're out of the water and can't breathe—or he can stomp on it, either
one, and for whatever reason he wants, so long as he's not doing it to be
mean and hurt the little boy.”
Pru's hand shot up and her head was shaking. “Oh, that's just great. Let
him squish the fish for whatever reason he wants, as long as we're not
looking. We don't care about the little fishy. What if it's not a little fish?
What if it's Donovan's dog, Sparky? Stomp on Sparky, and Sparky's going
to whine and bark and yelp and scream, and he's going to do that whether
or not we can see and hear him. And what if it's not Sparky he's stomping
on, but little Andy? Nobody's around to see or hear. Does that make it all
right? It's wrong either way. It's not about how the fish is killed, and it's
not about why it's killed, or who's watching when it's killed. What matters
is that it's killed. Any way you map it out, the fish is dead, dead, dead.
And Hubert is guilty, guilty, guilty,” said Pru. “Period. Case closed.”
“First, the fish, then those hamburgers,” warned Donovan. “Sounds to
me like you're mixing up what the professor called your personal code of
conduct with rules that everybody's supposed to follow, Pru. The man's no
criminal just because he likes to go fishing. And if a fish can't breathe
once it's pulled out of the water, what's wrong with stepping on it, make it
die quicker? Same difference. And like Isaiah said, the fish doesn't care
why it got stomped on. It's no crime to be a creep.”
Professor Jurus interrupted. “I don't think we're going to solve this one
right now. Maybe we can come back to it later. Let's get on to our topic
for today....” Even as he made this transition, his thoughts spun ahead to
the criminal charges filed against Carlos and his role as special prosecutor.
There should be little difficulty securing Carlos's conviction for
destroying the fishbowl. The jury wouldn't like his behavior and his
conduct fell squarely under the definition of malicious destruction of
23
personal property. However, the fishbowl was inexpensive and the offense
would simply be a misdemeanor. Jurus was unsure whether the jury would
find that Carlos had entered Yvette's apartment unlawfully. He probably
would claim that he had knocked and Yvette had let him in. Even if they
believed that he had come through the door uninvited, Carlos would only
be guilty of misdemeanor criminal trespass.
The aspect of Carlos's behavior that Jurus thought was most offensive,
and why he had agreed to serve as special prosecutor, was the way he had
killed Frank, including its impact on Jeffy and his mother. But was it a
crime to kill a goldfish? Under state law the answer appeared to be . . .
maybe . . . or, it depends. The discussion among his Issues in Justice
students had danced around the law's definitional lines.
Goldfish were not a protected species under state law. It was perfectly
lawful to kill them for sport, as in fishing, or, if one had the appetite, to
make a meal of one—filleting them, as Donovan had put it. Pru's moral
compass, which did not tolerate that a goldfish's life should be expendable
to satisfy such human whims, clearly differed from the criminal code.
On the other hand, the law appeared to take an interest in how, and
sometimes why at least some kinds of animals are killed. State law
generally forbid acts of “cruelty to animals,” wild or tame, and whether
belonging to the person him- or herself or to another. But did Carlos's
conduct amount to “cruelty”? The statute offered a definition. “‘Cruelty’
to an animal includes every act, omission, or neglect, whereby
unjustifiable physical pain, suffering or death is caused or permitted.”2
Jurus couldn't be sure whether Carlos's behavior qualified. Who could tell
what physical pain or suffering Frank had endured? Still, Carlos arguably
had caused Frank's “unjustifiable . . . death.” Either way, Jurus thought
this charge could be presented to a jury with a reasonable chance of their
finding Carlos guilty. Yet “cruelty to animals” was still a misdemeanor; in
the law's eyes it deserved no greater punishment than smashing a lifeless
glass fishbowl.
Unless, that is, Carlos's conduct amounted to “aggravated” cruelty to an
animal, an offense that was defined as a felony.
A person is guilty of aggravated cruelty to animals when, with no
justifiable purpose, he or she intentionally kills or intentionally
causes serious physical injury to a companion animal with
aggravated cruelty.
“Aggravated cruelty” shall mean conduct which (i) is intended to
cause extreme physical pain, or (ii) is done or carried out in an
24
especially depraved or sadistic manner.
“Companion animal” means any dog or cat, and shall also mean
any other domesticated animal normally maintained in or near the
household of the owner or person who cares for such other
domesticated animal. “Companion animal” shall not include a “farm
animal”....3
If it would be difficult to prove that Carlos had caused Frank to suffer
“unjustifiable physical pain,” under the misdemeanor “cruelty to animals”
statute, Jurus thought it would be at least as difficult to prove that Carlos
“intended to cause” Frank to suffer “extreme physical pain,” as
contemplated by the first part of the felony “aggravated cruelty to
animals” law. But perhaps a stronger case could be made under the second
part—that by directing Jeffy to watch him stomp on Frank, Carlos had
killed Frank “in an especially depraved or sadistic manner.” This
provision seemed to capture at least part of Tasha's concern: “He did it to
hurt the little boy.” And, at the heart of it, it sounded like another way of
saying that cruelty to animals is a felony if you're both cruel and a creep.
Isaiah would be on board.
But there was yet another stumbling block. None of this mattered unless
Frank, a goldfish, could be dignified under the statute as a “companion
animal.” Jurus inferred that this restriction on the felony charge had been
hammered out as a compromise necessary to gain the law's passage. The
explicit exclusion of “farm animals” from the scope of the aggravated
cruelty to animals statute solidified his belief that lobbyists had their
hands on the lawmaking process. Was Frank or was he not a companion
animal? The law was far from clear. Cats and dogs, which, like farm
animals, presumably were of interest to some constituents and their
lobbyists, were expressly protected. Then it became more of a free for all.
“‘Companion animal’. . . shall also mean any other domesticated animal
normally maintained in or near the household of the owner or person who
cares for such other domesticated animal.”
Jeffy would certainly have considered Frank to be a companion. Cats
and dogs were not allowed in the apartment complex where he lived, so he
had been overjoyed when his mother agreed that he could have a fish.
Jeffy devotedly cared for Frank, feeding him, greeting him in the morning,
tapping on his bowl to say hello, just as he would have looked after
another kind of pet. But then again, he might have done the same with a
frog, or a grasshopper, or the ants in an ant farm. Would this be another
question for the jury? The statute required that a “companion animal”
25
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Qui sait si elle ne me soupçonnait pas d’être amoureux de sa fille ?
si elle n’avait pas interprété dans un mauvais sens mon trouble et
ma timidité ? si elle n’avait pas lâché ce mot mariage pour me forcer
à me trahir ? Ma fierté se révéla contre un soupçon si injuste, et je lui
répondis d’une voix ferme, sans toutefois la regarder en face :
« Madame, si j’étais assez heureux pour vous tirer d’ici, je vous
jure que cela ne serait pas pour épouser mademoiselle votre fille.
— Et pourquoi donc ? dit-elle d’un ton piqué. Est-ce que ma fille
ne vaut pas qu’on l’épouse ? Je vous trouve plaisant, en vérité !
N’est-elle pas assez jolie ? ou assez riche ? ou d’une assez bonne
famille ? L’ai-je mal élevée ? Et savez-vous quelque chose à dire
contre elle ! Épouser Mlle Simons, mon petit monsieur, c’est un beau
rêve ; et le plus difficile s’en contenterait.
— Hélas ! madame, répondis-je, vous m’avez mal compris.
J’avoue que mademoiselle est parfaite, et, sans sa présence, qui me
rend timide, je vous dirais quelle admiration passionnée elle m’a
inspirée dès le premier jour. C’est justement pour cela que je n’ai
pas l’impertinence de penser qu’aucun hasard puisse m’élever
jusqu’à elle. »
J’espérais que mon humilité fléchirait cette mère foudroyante.
Mais sa colère ne baissa pas d’un demi-ton !
« Pourquoi ? reprit-elle. Pourquoi ne méritez-vous pas ma fille ?
Répondez-moi donc !
— Mais, madame, je n’ai ni fortune, ni position.
— La belle affaire ! Pas de position ! Vous en auriez une,
monsieur, si vous épousiez ma fille. Être mon gendre, n’est-ce donc
pas une position ? Vous n’avez pas de fortune ! Est-ce que nous
vous avons jamais demandé de l’argent ? N’en avons-nous pas
assez pour nous, pour vous et pour bien d’autres ? D’ailleurs
l’homme qui nous tirera d’ici ne nous fera-t-il pas un cadeau de cent
mille francs ? C’est peu de chose, j’en conviens, mais c’est quelque
chose. Direz-vous que cent mille francs soient une somme
méprisable ? Alors, pourquoi ne méritez-vous pas d’épouser ma
fille ?
— Madame, je ne suis pas…
— Voyons, qu’est-ce encore que vous n’êtes pas ? Vous n’êtes
pas Anglais !
— Oh ! nullement.
— Eh bien, vous nous croyez donc assez ridicules pour vous
faire un crime de votre naissance ? Eh ! monsieur, je sais bien qu’il
n’est pas donné à tout le monde d’être Anglais. La terre entière ne
peut pas être Anglaise… au moins avant quelques années. Mais on
peut être honnête homme et homme d’esprit sans être né
positivement en Angleterre.
— Pour ce qui est de la probité, madame, c’est un bien que nous
nous transmettons de père en fils. De l’esprit, j’en ai juste ce qu’il
faut pour être docteur. Mais malheureusement je ne me fais pas
d’illusion sur les défauts de ma personne physique, et…
— Vous voulez dire que vous êtes laid, n’est-ce pas ? Non,
monsieur, vous n’êtes pas laid. Vous avez une figure intelligente.
Mary-Ann, monsieur a-t-il une figure intelligente ?
— Oui, maman, » dit Mary-Ann. Si elle rougit en répondant, sa
mère le vit mieux que moi, car mes yeux étaient obstinément cloués
à terre.
« D’ailleurs, ajouta Mme Simons, fussiez-vous dix fois plus laid,
vous ne le seriez pas encore autant que feu mon mari. Et pourtant je
vous prie de croire que j’étais aussi jolie que ma fille, le jour où je lui
donnai ma main. Que répondrez-vous à cela ?
— Rien, madame, sinon que vous me comblez, et qu’il ne tiendra
pas à moi que vous ne soyez demain sur la route d’Athènes.
— Que comptez-vous faire ? Cette fois tâchez de trouver un
expédient moins ridicule que l’autre jour !
— J’espère que vous serez satisfaite de moi si vous voulez bien
m’entendre jusqu’au bout.
— Oui, monsieur.
— Sans m’interrompre.
— Je ne vous interromprai pas. Vous a-t-on jamais interrompu ?
— Oui.
— Non.
— Si.
— Quand ?
— Jamais. Madame, Hadgi-Stavros a tous ses fonds placés chez
MM. Barley et Cie.
— Chez nous !
— Cavendish-Square, 31, à Londres. Mercredi dernier, il a dicté
devant nous une lettre d’affaires à l’adresse de M. Barley.
— Et vous ne m’avez pas dit cela plus tôt !
— Vous ne m’en avez jamais laissé le temps.
— Mais c’est monstrueux ! Votre conduite est inexplicable ! Nous
serions en liberté depuis six jours. Je serais allée droit à lui ; je lui
aurais dit nos relations…
— Et il vous aurait demandé deux ou trois cent mille francs !
Croyez-moi, madame, le mieux est de ne rien lui dire du tout. Payez
votre rançon ; faites-vous donner un reçu, et dans quinze jours
envoyez-lui un compte courant avec la mention suivante :
« Item, 100.000 francs remis personnellement par Mme Simons,
notre associée, contre reçu. »
De cette façon, vous rentrez dans votre argent, sans le secours
de la gendarmerie. Est-ce clair ? »
Je levai les yeux et je vis le joli sourire de Mary-Ann, tout radieux
de reconnaissance. Mme Simons haussait furieusement les épaules
et ne semblait émue que de dépit.
« En vérité, me dit-elle, vous êtes un homme surprenant ! Vous
êtes venu nous proposer une évasion acrobatique lorsque nous
avions un moyen si simple de nous échapper ! Et vous savez cela
depuis mercredi matin ! Je ne vous pardonnerai jamais de ne pas
nous l’avoir dit le premier jour.
— Mais, madame, veuillez vous rappeler que je vous priais
d’écrire à monsieur votre frère pour lui demander cent quinze mille
francs.
— Pourquoi cent quinze ?
— Je veux dire cent mille.
— Non ; cent quinze. C’est trop juste. Êtes-vous bien sûr que ce
Stavros ne nous retiendra pas ici lorsqu’il aura reçu l’argent ?
— Je vous en réponds. Les brigands sont les seuls Grecs qui ne
manquent jamais à leur parole. Vous comprenez que s’il leur arrivait
une fois de garder les prisonniers après avoir touché la rançon,
personne ne se rachèterait plus.
— Il est vrai. Mais quel singulier Allemand vous faites, de n’avoir
pas parlé plus tôt !
— Vous m’avez toujours coupé la parole.
— Il fallait parler quand même !
— Mais, madame…
— Taisez-vous ? et conduisez-nous à ce maudit Stavros. »
Le Roi déjeunait d’un rôti de tourterelles, sous son arbre de
justice, avec les officiers valides qui lui restaient encore. Sa toilette
était faite : il avait lavé le sang de ses mains et changé d’habit. Il
cherchait avec ses convives le moyen le plus expéditif de combler
les vides que la mort avait faits dans ses rangs. Vasile, qui était de
Janina, offrait d’aller lever trente hommes en Épire, où la
surveillance des autorités turques a mis plus de mille brigands en
retrait d’emploi. Un Laconien voulait qu’on acquît à beaux deniers
comptants la petite bande du Spartiate Pavlos, qui exploitait la
province du Magne, dans le voisinage de Calamata. Le Roi, toujours
imbu des idées anglaises, pensait à organiser un recrutement par
force et à enlever tous les bergers de l’Attique. Ce système semblait
d’autant plus avantageux qu’il n’entraînait aucun débours, et qu’on
gagnait les troupeaux par-dessus le marché.
Interrompu au milieu de la délibération, Hadgi-Stavros fit à ses
prisonnières un accueil glacial. Il n’offrit pas même un verre d’eau à
Mme Simons, et comme elle n’avait point déjeuné, elle fut sensible à
cet oubli des convenances. Je pris la parole au nom des Anglaises,
et, en l’absence du Corfiote, le Roi fut bien forcé de m’accepter pour
intermédiaire. Je lui dis qu’après le désastre de la veille il serait
content d’apprendre la détermination de Mme Simons ; qu’elle avait
résolu de payer, dans le plus bref délai, sa rançon et la mienne ; que
les fonds seraient versés le lendemain, soit à la Banque d’Athènes,
soit en tout autre lieu qu’il lui plairait de désigner, contre son reçu.
« Je suis bien aise, dit-il, que ces femmes aient renoncé à
convoquer l’armée grecque à leur secours. Dites-leur qu’on leur
remettra, pour la seconde fois, tout ce qu’il faut pour écrire, mais
qu’elles n’abusent plus de ma confiance ! qu’elles ne m’attirent pas
les soldats ici ! Au premier pompon qui paraît dans la montagne, je
leur fais couper la tête. Je le jure par la Vierge du Mégaspiléon, qui
fut sculptée de la propre main de saint Luc !
— N’ayez aucun doute. J’engage la parole de ces dames et la
mienne. Où voulez-vous que les fonds soient déposés ?
— A la Banque nationale de Grèce. C’est la seule qui n’ait pas
encore fait banqueroute.
— Avez-vous un homme sûr pour porter la lettre ?
— J’ai le bon vieillard. On va le faire appeler. Quelle heure est-il ?
Neuf heures du matin. Le révérend n’a pas encore assez bu pour
être gris.
— Va pour le moine ! Lorsque le frère de Mme Simons aura versé
la somme et pris votre reçu, le moine viendra vous en porter la
nouvelle.
— Quel reçu ? Pourquoi un reçu ? Je n’en ai jamais donné.
Quand vous serez tous en liberté, on verra bien que vous m’avez
payé ce qui m’était dû.
— Je croyais qu’un homme comme vous devait traiter les affaires
à la mode d’Europe. En bonne administration…
— Je traite les affaires à ma guise, et je suis trop vieux pour
changer la méthode.
— Comme il vous plaira. Je vous demandais cela dans l’intérêt
de Mme Simons. Elle est tutrice de sa fille mineure, et elle lui devra
compte de la totalité de sa fortune.
— Qu’elle s’arrange ! Je me soucie de ses intérêts comme elle
des miens. Quand elle payerait pour sa fille, le grand malheur ! Je
n’ai jamais regretté ce que je débourse pour Photini. Voici du papier,
de l’encre et des roseaux. Soyez assez bon pour surveiller la
rédaction de la lettre. Il y va de votre tête aussi. »
Je me levai tout penaud et je suivis ces dames qui devinaient ma
confusion sans en pénétrer la cause. Mais une inspiration soudaine
me fit revenir sur mes pas. Je dis au Roi : « Décidément, vous avez
bien fait de refuser le reçu, et j’ai eu tort de le demander. Vous êtes
plus sage que moi ; la jeunesse est imprudente.
— Qu’est-ce à dire ?
— Vous avez raison, vous dis-je. Il faut s’attendre à tout. Qui sait
si vous n’essuierez pas une seconde défaite plus terrible que la
première ? Comme vous n’aurez pas toujours vos jambes de vingt
ans, vous pourriez tomber vivant aux mains des soldats.
— Moi !
— On vous ferait votre procès comme à un simple malfaiteur ; les
magistrats ne vous craindraient plus. En pareille circonstance, un
reçu de cent quinze mille francs serait une preuve accablante. Ne
donnez pas d’armes à la justice contre vous. Peut-être Mme Simons
ou ses héritiers se porteraient-ils parties civiles pour revendiquer ce
qui leur a été pris. Ne signez jamais de reçus ! »
Il répondit d’une voix tonnante : « J’en signerai ! Et plutôt deux
qu’un ! J’en signerai tant qu’on en voudra ! J’en signerai toujours, et
à tout le monde. Ah ! les soldats s’imaginent qu’ils auront bon
marché de moi, parce qu’une fois le hasard et le nombre leur ont
donné l’avantage ! Je tomberais vivant entre leurs mains, moi dont le
bras est à l’épreuve de la fatigue et la tête à l’épreuve des balles !
J’irais m’asseoir sur un banc, devant un juge, comme un paysan qui
a volé des choux ! Jeune homme, vous ne connaissez pas encore
Hadgi-Stavros. Il serait plus facile de déraciner le Parnès et de le
planter sur la cime du Taygète, que de m’arracher de mes
montagnes pour me jeter sur le banc d’un tribunal ! Écrivez-moi en
grec le nom de Mme Simons ! Bien. Le vôtre aussi !
— Il n’est pas nécessaire, et…
— Écrivez toujours. Vous savez mon nom, et je suis sûr que vous
ne l’oublierez pas. Je veux avoir le vôtre, pour m’en souvenir. »
Je griffonnai mon nom comme je pus, dans la langue
harmonieuse de Platon. Les lieutenants du Roi applaudirent à sa
fermeté sans prévoir qu’elle lui coûtait cent quinze mille francs. Je
courus, content de moi et le cœur léger, à la tente de Mme Simons.
Je lui racontai que son argent l’avait échappé belle, et elle daigna
sourire en apprenant comment je m’y étais pris pour voler nos
voleurs. Une demi-heure après, elle soumit à mon approbation la
lettre suivante :
« Du Parnèse,
au milieu des démons de ce Stavros.
« Rebecca Simons.
« Lundi, 5 mai 1856. »
« Chère sœur,
« Tout à vous,
« Edward Sharper. »
L’ÉVASION