1. The Tunnel of Law
The 12 of you are assembled here to make a legal decision. So pardon me if I open my closing argument with a legal question that seems, at first, somewhat beyond your mandate. Would you, given the authority, make love a crime? Well … maybe you would in light of certain experiences; but I get the impression that, generally speaking, you’d say “No.”
And yet that is what this case amounts to. The prosecution does not say it in those terms. Theirs is a very technical vocabulary with such confounding verbiage as “criminally negligent homicide” and “assault with a deadly weapon.” Law is a language game at heart. The state’s vocabulary is like a golf club: precise but blunt. I see it as my task to show just what is being bludgeoned.
I don’t blame some of you for being skeptical. The state has been nothing if not thorough in its drive to paint my client in the darkest of hues. You could probably make a fun but hazardous drinking game out of the many utterances by the opposing counsel of “black widow.” Frankly I’m starting to feel bad for the namesake arachnid. But such is what is planted in the collective mind of a rather prurient public when three men come into close contact with the defendant only to have their lives cut short not long after and seemingly by her hand … or her person, as it were. This, says the prosecution, is evidence of a pattern. Each of these men entered the Tunnel of Love to their impending doom, as voluptuously personified by my client.
I’ll give the prosecution this: there was a pattern. But it was not so sinister as they’d have you believe.
There is no pattern that I can see in the manner of the deaths of my client’s lovers. Victim A was suffocated. Victim B was strangled. And Victim C’s heart just sort of stopped. Sure, there’s video evidence that puts Victim A’s breathing troubles in a rather baroque context. Expert testimony regarded the simple suggestion of Victim B’s self-administered strangulation as “Buńuelian.” And Victim C’s toxicology report showing a distinct presence of fentanyl in his system is something worth considering. And to the state there is nothing left to consider but for you to render the defendant guilty for her role in their fates. This woman, so totally unlike yourselves, so beneath you in morals and emotional maturity. Certainly you cannot see yourselves capable of suffocating, strangling, or poisoning anyone. Right?
But the pattern! What is the pattern? If you don’t know the pattern by now I seriously question your humanity. Love, people of the jury. Love is the pattern. All three men were in search of love. All three men were pining for a special connection. My client was no less hungering for intimacy in a world that seemed to her, as surely it was to them, unfeeling and withholding. What joy it is that people in need can find one another and be true with each other! Here I can understand the prosecution taking the clinical route in their case, for in so doing they work around a necessary yet not altogether possible aspect of it.
Only when you comprehend the contents of the hearts of each person involved will you evaluate this case fairly. “Look only at the facts of the case,” the prosecution insists. “Judge the defendant accordingly.” No doubt that would be revealing. Less about my defendant than about love seen through the eyes of a District Attorney. A cold love that is. Procedural, transactional, brutally confident in its judgment. It is a love guided by the light of reason and yet so limited in its expressive capacity and innocent of the nuances of private affection. This is the love of a stage parent; the love of a wolf.
You’ve seen played over and over the final moments of Victim A. It is one thing for the prosecution to tell you “This is a crime” but quite another thing to say “This is bad judgment.” Who is judging badly? They refuse to say; it is loaded refusal. It extends logically from the defendant onto the man who is under her. It does not matter that we cannot exactly catch his sentiments. Having your ribs broken between someone’s legs imposes certain restrictions on your ability to communicate. But moments of agony and moments of ecstasy are not always easy to discern. In such ambiguities of feeling, alleged victim and alleged assailant are condemned equally.
I’d considered illustrating my point with firm intellectual grounding, but I thought the better of it. Martha Nussbaum and Katie Roiphe didn’t return my emails, for one. But more importantly I realized I didn’t need it. Intellectualizing the vicissitudes of love renders love unintelligible. It would bring me a little too close to the cold storage unit that is the prosecution’s case. If we can’t reason through my defendant’s innocence and if we can’t know exactly the desires within her forever silenced lovers, that leaves only one last source.
You 12, with minds that think and hearts that beat, must understand the desires within yourselves. This has its dangers. For once you do so you may see a marked change in scenery. You are no longer in the jury box, but in the chair where my client now sits. Quite a strange place to be, isn’t it? Your passions scrutinized aloofly; your very body seen as a lethal weapon. Once in that unenviable position, you consider more deeply what exactly the defendant is guilty of. Of having desires? Of being present for vulnerable partners? Of intuiting their needs poorly? Or of providing for needs in excess of conventional limits precisely as requested? I’m not asking you to face your own desires and to set them aside those involved with the case. It does not matter if they don’t go nearly as far or if they go farther still. That is between you and someone who cares; it is not for the eyes or the conscience of the justice system.
Nevertheless, you will adjourn and you will have to decide if the defendant is guilty of the act of love. And you will need that deep knowledge to aid in your deliberation. For if guilt is your judgment, the stopping of three individual hearts will seem quaint compared to the breaking of society’s.
2. The Tomb of Law
It’s typical for us to think of social change as being made at the discretion and desire of people better than us. In most contexts it’s even preferable to leave all the most difficult questions to the wisdom of a senator, of a president, of a judge, or even just the committee of lawyers they secret away in a broom closet. It’s a nice arrangement, democracy. The important people get to do all the heavy lifting while you get to vote as a treat.
But there is a curious loophole in our democratic system. One that brings a hard issue in uncomfortably close proximity to the people most likely to be affected by it: the jury trial. I’ve often believed that the reticence to serve on a jury comes not from any selfish motive, but from humility. Why be burdened with the awesome responsibility of having to move your community forward? Maybe it doesn’t seem that way for a disputed traffic violation or even a murder; but there are times, infrequent though momentous as they are, where society behaves in such a way as to force our hand on matters, as if it was calling for help. And who are we to not answer its call?
That, I think, is a fine way to look at this case: as a call for help. The prosecution agrees with me in that respect. Though they’d like you to focus on the particular. That is, on my clients, who need a lot of it. And the only way for them to get it is for a guilty verdict and a steep imprisonment.
You see, society as we now live in it looks askance at people who go into cemeteries, break into a mausoleum, remove its contents, and parade them around the streets in a muumuu and a clown wig to the blast of various jock jams. Presently it’s hard to imagine it being otherwise: that I would not be called, that you would not be summoned, that these three men would go unmolested by the icy fingers of justice. Wouldn’t it be great if none of this were necessary? But fortune often acts in way contrary to our wants. We are here to serve a concise and significant purpose: to decide the fate of your fellow citizens, and I don’t just mean those three sitting next to me.
You may not like my clients. You may disapprove of their hobbies. You may find them distasteful, morbid, and any other unseemly English adjective under the sun. I’m inclined to agree with you. Their lifestyle is frankly beyond me. Their attitudes disturb me. Their lack of sentiment towards the community, towards all humankind, has an air of defiance. These rebels against whatever you have to offer them. But—and is there ever a but—but are they criminals?
There are definitely points at which my clients have erred in their judgment. What was so special about going blind into a graveyard and to the first available burial site? They could have taken their time; shopped around, if you will. There’s no shortage of cadavers, interred under any number of circumstances. If they preferred a body with remaining kin rather than one on its own, they could have petitioned that kin for its use, and if the kin had reservations they could have reassessed their options. It’s not very fun, but every prudent arrangement has its good and bad tradeoffs. The dampened thrill is traded for strengthened ties to the community. Disparate elements are brought closer together. Instead, these men behaved rashly and made assumptions. They prejudged their peers who in turn prejudged them, creating this very predicament.
Cases like this have a way of exposing the worst in everyone. Revealing how little we know of each other and how little we want to know. Subtract some of the relevant details of it and you have at its core a very common problem: an inability and an unwillingness to communicate. A grand gesture can communicate several messages. Chief among them, though, is the desire to show your true self. My clients dwelled long in the shadows of their community. For some the shadows bring comfort; for these men, loneliness. Such was their loneliness that it seemed nothing—truly nothing—was off the table as a means of escape. But when these men resolved to come out into the light, the community resolved to entomb them in the law. It is left to you, fairly or not, to determine who acted the wiser.
I don’t claim that my clients heeded much—really any—wisdom in their choices. But if I can redirect the scrutiny the other way, I’ve done my job. One of the most important stamps of our society is tolerance. Your commonality with the defendants is rooted in your difference from them in your shared social context. Most of you go about your lives happy in the knowledge that, whether in spite or because of your eccentricities, you’re respected, and the respect you give back completes the equation that answers in freedom.
In a sense, what I’m asking of you isn’t really social change. It’s closer to a grammatical correction; or going into society’s programming code and patching a vulnerability. That it is more modest does not lighten the gravity of the task; in fact it may be heavier. Any social glitch left unfixed could have farther-reaching impacts than any top-down policy reform. And any grammatical error left standing will become the new standard of our idiom. To censure dramatic misbehavior and not expect that censure to drift like snow from a mountain over more self-conscious misbehavior is an habitual fallacy, and one you are here empowered to not repeat.
You may at your leisure consider the various motives put forth by opposing counsel. Motives regarding ongoing feuds and unevenly verifiable accusations, histories of “instability,” dashboard and body cam footage that tell their own stories. You may look at all these and say without a second thought “Society works just fine. Guilty! Can I get my per diem in Dave & Buster’s tickets?” That’s your choice; but that’s what you’ll have to live with if you make it. What I humbly posit is—what if you didn’t make that? What if you looked past the criminal minutiae, the reports, the citations, and the litany of complaints and out into the wide open air of our nation, the nation we all have to go back into with the knowledge of what has happened in this room? What if you saw the error for what it was and replaced it with the truth? Just putting that out there.