Stare Decisis (2015 Short-Fiction Contest Runner-Up)

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Greg Walklin’s short-story, “Stare Decisis” is the runner-up in the second annual Lawyerist Short-Fiction Contest.

The judge had already decided on leniency. The defendant’s attorney, perhaps auditioning for the bench herself, sought the briefest possible sentence, concluding with a history of her client, a stick-thin defendant of fourteen, Miguel Ochoa. Lyman Walters, District Court Judge for Lancaster County, had already read the file, so most of the attorney’s speech was redundant.

At trial, Ochoa had fought, and lost, criminal arson and vandalism charges. He had broken storefront windows and damaged cars and scorched an East Lincoln coffee kiosk. His attorney argued that it was retribution for his difficult up- bringing, his shuttling from family member to family member, and his absent father, and thus his sentence should contain a measure of understanding.

Judge Walters used to love these hearings, especially whenever the better criminal defense attorneys—like this one—argued, though now he found them banal, as he generally entered with a fixed idea of the sentence.

“Is there anything else you would like to say for yourself, Mr. Ochoa?”

His attorney gave the boy a gentle pinch on the elbow.

“No sir,” the boy finally said.

This, judging by the attorney’s face, was not according to script. She motioned for him to stand up, but he either didn’t care or didn’t pay attention.

“Do you understand the sentence I am about to give you?” Walters asked, plodding through any confusion. The boy nodded.

“You have to answer verbally for the court reporter,” Walters said, even be- fore Suzy, his dutiful scribe, could speak up.

“Yes.”

“‘Yes,’ you understand?”

“Yes, I understand.”

By now Walters had the standard recitations memorized, and all that needed to be appended was a discussion of the factors he considered in determining this sentence. He ordered Ochoa to complete a few hours of community service and pay a portion of restitution. The deputy county attorney stood in a shocked hush; having stuttered through his arguments in his creased suit, he must have been feeling that he had mucked something up—that perhaps it was indeed audacious to charge this kid as an adult.

Later that afternoon, on his way out, Judge Walters found the boy and a young woman standing outside the courthouse, off the front steps, waiting for him.

“Your honor,” the woman said. “We just wanted to say thank you.” It quickly became obvious that this woman, who was compact and authoritative, and likely too young to be Ochoa’s mother, had engineered this encounter—the boy was two steps behind her and still sheepish, head still hanging low. “Miguel,” she said. “I don’t have much more time. I need to start packing.”

Their handshake was clammy. Walters was accustomed to cloying encounters — a brown-nosing attorney, a relieved former victim, irrepressible trial witness, juror, or, as here, a grateful defendant who had been given what amounted to a second chance, so perhaps it should have ratified something in him that he had made the right decision, that this boy was now venturing on a different path. But instead, as he walked to the parking lot, Judge Walters feared his guts had led him astray.

***

Over the last few years, sentencing had begun to make him uncomfortable — uneasiness crept up over taking a man’s (it was usually a man’s) freedom away, dismissing all of his pleas of mercy, distinguishing whether his excuses were simple manipulations. Interpreting laws and statutes and rules of evidence were the enjoyable parts of his job. There were usually clear answers, or at least intellectual opportunities to find an answer. During sentencing, he needed to think of himself in the same way, as a cog, as a hand doing the work of a machine that was so large you couldn’t see it — that he had to keep fidelity to principles that went beyond the circumstances of an individual case. “The law is not there for any individual person,” the retiring judge whose place he had taken told him. “It’s for everybody.” He tried to tell himself he was just a lever, a pulley, a wedge, the end of a complicated series of functions. But did anyone just want to be a machine?

The governor had appointed him twenty years ago. He had been one of three candidates who passed the judicial nominating commission, composed of a coterie of his peers, who were supposed to select based on merit and qualifications, but ultimately made fairly base political decisions. Lyman Walters, Esq. appealed to conservative sentiments with frightening ease. His interview with the governor had been short and pointless. Near one of the mansion’s four fireplaces, the cross-eyed governor had served decaffeinated coffee in beautiful old buffalo-themed china and asked Walters his thoughts on abortion, the death penalty, and whether he believed adhering to the actual language of the law and the original meaning of the Constitution. Besides guessing that perhaps caffeine made the crossed-eyes worse, Walters surmised in that moment there was nowhere less the governor wanted to be. Walters apparently gave him all the right answers.

A few years after he took the bench, he had attended a bar association event on juvenile justice to obtain the required continuing education credits, but mistook the starting time and arrived too early, just when the cocktails were being served. There he found a few old friends, counsel he used to litigate against, who were evidently already into a second round of cocktails. “Watch out everyone,” Bert Landon had said, the laughter coming before the punch line.“The judge here will give you the chair if you say the wrong thing.” Without intending, Walters had grown a reputation among the bar as a martinet. Soon after, the newspaper published an article about his hardline approach signaling a shift in a second “tough on crime” wave, and the governor called him to compliment his service and indicate that he was the model for future bench appointments.

Nobody told Walters, upon putting on the judicial robes, how all of his friends would change their conversations around him, how they would treat him differently. Even the longtime confidants — the ones he’d had since college, who remembered him passing out at a party, or caught him falling flat on his face going after a girl, or gave him advice when he was dissolutely smoking cigarettes all day and planning his motorcycle trip across the Badlands — all distanced themselves once they knew he had sentenced someone to death. The couples that he and his wife had socialized with would not get drunk around him. The secret meaning to “sober as a judge” was that you were a buzzkill at all parties.

Only his nephew Curtis, who had his own issues, had always consistently been the same, and only Curtis found other things — politics, movies, overdue library books — to talk about over backyard beers. When Curtis got the urge to get in shape and attempt, he said, “to turn his ship around,” he would run the four miles to Walters’ house, stop and say hello, with the intent to run back. But usually Curtis would hanker after a beer or two, and Walters would give in and drive him home. After Walters’ wife died, Curtis stopped by more often; they both knew she had never liked his visits.

Curtis often wanted money, too, though never much, because it hurt his pride to ask for large amounts. Even with the judicial pay cut, Walters still lived comfortably, so he could always give Curtis some consideration. His salary was half of what he had been making as a partner at Bellton Jones, but he no longer had to kowtow to any corporate whims. And anyway, with his current circumstances, he no longer needed much.

When he wasn’t working, he had his gardening. The butterfly garden was coming along; a few had already appeared, about on schedule, a monarch, two queens, and even a mourning cloak. His wife, Willow, had originally built the garden, but after her death he could not shake the responsibility. Anyway, planting and fertilizing and weeding and watering and spreading mulch with his boots were when most of his opinions were actually written.

That’s where he was, in the butterfly garden, watering and ruminating on a plaintiff’s novel interpretation of the Administrative Procedures Act, when he noticed a small figure. At first, hearing the noise and sensing a person, he assumed it was probably Curtis, sweating and ready for a Miller Lite. But, looking up, there could be no mistaking Miguel Ochoa.

Ochoa didn’t see Walters striding toward him until it was too late — until he had thrown the rock, with an apparent message attached, through the side living room window. It seemed ridiculous to give chase, but after the judge yelled at Ochoa to stop, and he didn’t, Walters instinctively started running. When he nearly had the boy at arms length, sprinting up the sidewalk past his neighbors (Who would be home? Who would see him?), it occurred to the judge that he very well couldn’t tackle the boy; he couldn’t trip him; he couldn’t attack him. How would he explain it if he had to be in court?

It was so absurd he suddenly stopped. For a few seconds the boy kept up at full speed, and then, just as suddenly, halted himself. They exchanged a moment of silence before he took off again.

Back at his house, Walters took time washing his hands. The rock and the broken glass were in the trash and the folded-up paper on his kitchen table. It was a habit of his during judicial decision-making: hold off for as long as it takes to clear your mind, and once your mind is clear, you can start.

Go back and change my sentence and make me go to prison because if you don’t do it there will be something worse than this rock, and yes that is a threat so write me up.

Walters considered reporting the vandalism to the police. But he knew well the Gordian Knot of papers, phone calls, meetings, and actions this would initiate, the long road of process and protection, of which he was one feature. Because of who he was, the police would investigate, and the county attorney would surely prosecute.

What kind of judge had he become that he knew he wouldn’t report it? He was now too wrapped up in the consequences, too wrapped up in the practicalities, to do anything other than explore the matter — to cut the knot — himself.

***

Academics and journalists always got mostly everything wrong about judging.

There were clear and wrong answers to the overwhelming majority of decisions he made. Lucid procedural rules, baseless arguments made by inmates, uncontested divorces. The academics and the journalists cared about the sliver that involved something else—and of that, the small portions that led to published appellate opinions. The law, like literature, was Hemingway’s iceberg: the smallest rule was just the hint of a giant machination, a Rube Goldberg machine that spat out rights and evidentiary rules and administrative regulations. Depending on whom you spoke with, the answers to how judges decided things were through genetics, politics, egos, philosophical stances. Oliver Wendall Holmes, that great Solomon from more than a hundred years ago, had decided it was the person’s guts that decided. Dworkin, by and large, agreed with him, at least as far as the Constitutional decisions went, and Posner was the guts theory’s latest lion. Everything followed from the guts: the theories, the justifications, the factual spins, the principles.

And, after reading the note, Judge Walters’ guts told him to look up Miguel Ochoa’s address.

Although it wasn’t far, the neighborhood was entirely different; the houses, more compressed together, lost bedrooms and garages and hedges and yard space. The right address was a house even more dilapidated than its neighbors.

Peering in from the concrete porch, he could see a woman apparently asleep on the couch inside. Even during several rings of the doorbell and a loud knock, she didn’t stir. Walters was heading back down the weedy walk to his car when, from across the street, he saw Ochoa standing on the corner. They stared at each other for a few moments.

“So if prison was what you wanted, why did you fight the charge so hard?” Walter finally asked.

“That was my sister’s idea,” Ochoa replied. “Half-sister, really. She found the lawyer, too, got her to take the case for free. Guess it worked.”

They stood in silence as a minivan passed, on the street, between them. His sister must have been the woman with him outside of court.

“I came to find out if you wanted to see what it was like,” Walters said.

“For what?” asked Ochoa.

“To go to prison.”

“For real?”

The judge nodded. “A sort of tour to see if you really want to spend any time there.”

Ochoa obviously became less impressed the more he thought about it. “I get it,” he said. “You’re lucky I’m bored as shit right now. Otherwise I’d do just about anything else.”

***

Life is a text, a book to be read after you die, which is how Judge Walters always thought of it and there must be a point, he figured, you can no longer redeem yourself and become a saint. Though he had sentenced, over the course of his career, two men to death — only one had yet been executed — it wasn’t them he thought of often. He thought of the more minor offenders, agonizing over the young ones especially, whose lives were spiraling, the ones who perhaps had things left in them to do, the ones who wouldn’t likely ever murder, but had been unable to extricate themselves from these spirals, from their deranged fathers or their addled mothers, from the lack of any parents, from sexual abuse, from the vagaries of the foster care system, from the sorts of daily hurdles that Walters would never have dreamed about — the boys (and occasional girls) who were at that corner, who could turn, the ones whose direction wasn’t already set. There he wrestled with lenience. Like the boozy attorneys in town knew, he was a stubborn old martinet. If he were interviewed for the judicial appointment now, Walters was convinced, he would answer those questions differently — and he would never get the position.

What would Willow have thought about him, sitting with this juvenile offender in his car?

On the way, Ochoa was fidgeting. “I know where the state pen is,” he said.

“We’re not going to prison,” the judge replied. “At least not at first, and at least not the one you’re familiar with. We’re going to a house.”

“You gonna rape me now or something?”

Walters just shook his head, and held up two fingers. “Scout’s honor.”

The judge pulled up in front of a blue Cape Cod in an old neighborhood lined with mature pin oaks.

“It’s a shitty house,” the boy said.

“It was always a shitty house,” Walters said. “There was a boy who grew up in this house. He got into trouble often. By ‘trouble,’ I mean: fist fighting his teachers, vandalism, drugs and alcohol, getting an ex-girlfriend pregnant. He was suspended from school. He was eventually expelled, in fact. One night, he cut his own sister’s hair in her sleep, snipping her scalp and waking her up. His parents tried everything to discipline him. They tried specialized counseling, medications, anything they could think of.”

“Hold on,” Ochoa said. “I get it. Let me guess, that was you and this was your home when you were a kid. Now you’re a judge and wow, look at you…”

Walters smiled. “Try again.”

Ochoa rubbed his hand over his face. “This must’ve been your dad? Brother?”

“No and no.”

Ochoa just looked out the window.

“In response to the punishment from his sister’s haircut,” Walters continued, “the boy killed the family dog, a beautiful old German Shepard, and left it splayed in the front yard. The parents called the police, and they pressed charges against him. At court he attempted numerous times to represent himself, but eventually he acceded to a public defender. He was convicted, of course, animal cruelty.”

“I’m nice to dogs,” Ochoa said.

“No, no. This is something else—”

“I finally get it,” Ochoa interrupted. “This was your son. This used to be your house.”
Walters shook his head, smiling even more broadly. “Try again.”

“Nah, you’re just making this shit up.”

“The boy spent several years in a juvenile detention facility. Perhaps he had some valid complaints about his mother and father. His dad was a high school teacher, at his son’s own high school — or at least the one he went to for a spell — and coached every manner of sport. He was never home, but he was always at his son’s school. His mother had a significant temper ever since she was a girl, and she was always unhappy. His sister was the only one who always forgave him.”

With that last detail especially, Walters knew he had Ochoa interested. In his litigating days, his jury work, he was able to understand the precise grip he had on an audience, when he was losing them, gaining them, entrancing them. Ochoa was peeved, but he wouldn’t have gotten into the car — or would have already left — if he was totally bored (a luxury most jurors did not possess).

They arrived next at a vine-ridden redbrick building, originally a soldier’s home, which had first been repurposed into a juvenile detention center and then into a substance abuse treatment facility. The old building was the core of the new facility, and was redone years ago in a way that preserved the motifs of the original Georgian architecture. Instead, Walters thought, it looked like the original home had been morphed into something spread out hideous with new wings — a pretty caterpillar turned into an ugly butterfly.

“He’s still here,” Walters said as they pulled into the parking lot. “This is no longer a juvenile center. He was here, he grew up, started drinking vodka and Sunkist every morning, he had to come back here.”

“I bet he was a hard ass,” Ochoa said.

“I wouldn’t say that. He cried a lot. He could be released into family custody on the weekends, sometimes. He was a wreck. It wasn’t stable.”

“Just tell me who the fuck this guy is,” Ochoa said.

“Maybe you want to meet him?” Walters asked.

“No.”

“Well, I don’t expect he would want to meet you, either.”

By coincidence, a family was exiting the facility, a strung-out-looking mother and her two small blond copies. She had tattoos over her arms; the children had fake ones on their cheeks.

“He is my nephew,” Walters finally said. “My sister had him when she was a very young woman. She married his father, eventually, a few years after Curtis was born. They’ve since divorced, did so not long after Curt was arrested. When he killed the dog, my sister didn’t want him charged but Brett — my brother-in-law — did it without asking her.”

“None of this shit is going to change my mind.”

“It’s only to tell you that you’re like Curt in a way,” Walters said. “He only had a mean soul for a time, but he’s spent the rest of his life paying for it.”

Ochoa didn’t respond.

“So your sister,” Walters said, thinking back on the day she and Ochoa approached him outside of court. “She was packing, I believe. She left town?”

“Texas.”

“College?”

“Law school.”

Walters turned off the car stereo. The blond children had been loaded up into a van, driven by a woman whose grey hair was pulled up in a bun, and the mother was walking back into the facility with her arms crossed over her chest.

Before he had ventured to Ochoa’s house, Walters had read, again, the social workers’ case summaries and the doctors’ evaluations. None of them had said anything about Ochoa’s sister, but they had said plenty about his family. His parents were gone but not dead. Of the two, his mother had stuck around a bit longer, being with the boy until he was about 18 months old, before handing him off to her brother. That brother handed him off to another brother and then to his grandmother, who was often ill, and who eventually decided she couldn’t handle the boy and so desperately pawned him off to her missing son-in-law’s semi-functional sister. His aunt was likely addicted to some kind of prescription pills, which made her sleep on-and-off throughout most of the day; she was awake enough that Children and Family Services had never been able to pry custody away from her, despite their best efforts.

“So was this some sort of big show to get me to change my mind?” Ochoa asked.

The judge remembered the last time he visited Curtis here, the last spell Curtis had spent in the facility. It was the visit when he told Curtis that his aunt had died, and though Walters’ wife had never liked the boy and the boy never took to Willow, Curt spontaneously cried and cried about it.

“I forgot to finish telling you about Curt’s sister,” Walters replied. Maybe this was what he had wanted to seize upon. “She ended up moving away, having her own family. Four children. Works as an advertising executive, and lives in Scottsdale, Arizona. She couldn’t take custody of him. She was always going to have to live her own life.”

The blond children had been loaded up into a van, driven by a woman whose grey hair was pulled up in a bun, and the mother was walking back into the facility with her arms crossed over her chest.

In silence, they drove to the state penitentiary, and found a parking spot from which they could see the yard. Men in khaki suits were milling about in the afternoon sun, some sitting on benches. Two caught sight of Walters and Ochoa and stared at them for a while before walking off.

“What makes you think this guy was anything like me? What makes you really understand anything about me?” Ochoa asked.

They were great questions, Walters thought.

***

She went by Willow because she hated both of her names, bestowed to her in honor of her female ancestors, who were all, Willow had said, “Wet rags.” Women who stayed home and made pies every afternoon and were disinterested in voting, women who headed Edith Roosevelt’s advice that “a woman’s name should appear in print but twice—when she is married and when she is buried.” Pie-making, or staying home were not anathema to Willow, at least as long as the path was actually chosen. But she knew enough about her great-grandmother Vera (first name) and her grandmother Louise (middle name) that she couldn’t shake the conviction that neither had wanted to become masters of the kitchen. Vera was a painter; her great-grandfather converted their attic into her atelier, and in their house, and now in Walters’ chambers, were many of her paintings, almost always seascapes. The woman could capture the swell of an ocean, a lake on a windy day, with striking precision. But she lacked the time and drive, Willow had always thought, to be professional; she only completed two or three paintings a year. Louise was a writer, and even closer to Willow’s heart. Louise had typed novels in her dresser, in her nightstand, in her desk.

The novels were nice stories, and the paintings beautiful. Willow loved all of them. What Willow couldn’t forgive was the fact that neither Vera nor Louise had ever even tried to sell one. Maybe it was their fault or maybe it was the world. Either way, Willow was going to be different.

A voracious tree-climber as a girl, Vera Louise hardly ever came down. She went by “Bough” for a few months after her older brother found it amusing, but it was “Willow”—she was fond of a particular weeping willow tree, the only one she wouldn’t climb—that stuck. Her long story on their first date, the way she apologized for her own name but explained her reasons, was what made Walters fall in love with her.

When she eventually told him she didn’t want children, Walters readily agreed. A young associate at Bellton Jones at the time when they were engaged, he hadn’t anticipated his life opening enough for a wife, let alone a child. Married, he still made partner, mostly thanks to winning a giant employment case that took him up to the 8th Circuit and back. Her evenings alone, Willow had worked on her own pursuits—criticism and freelance journalism, profiles for some of the bigger general interest magazines and book reviews and essays on middle 20th century women writers, everyone whom Cather inspired.

Not long after her 50th birthday, doctors found a tumor swelling on her spine.

The tumor was impossible to remove; no surgeon would let them contemplate a miracle procedure, and anyway Willow would have died over and over rather than end up paralyzed. She was a climber, after all.

They spent many of the final evenings drinking bottles of good Shiraz, talking around the fire pit, paper lanterns swaying in the breeze, when it was warm enough to get by with a pullover or just a blanket. Enough Shiraz caused enough forgetfulness. But soon came her apologies, strange behavior for Willow. Some- times they were general apologies for not liking a book Walters enjoyed, a cute neighborhood dog or cat, or a place they had vacationed, but eventually Willow began apologizing for everything she thought she had ever done wrong. There was more wine, and more apologies each night, then apologies for bigger things, more serious faults, even if they were old and already apologized for: the boy she briefly saw while Walters and her were dating. And he was busy studying for the bar; the times she lied about a girls’ night out because she simply wanted nights alone, in a coffee shop or a bar; how she never particularly liked Walters’ father and thought he had an illicit interest in her. Eventually Marla, the home health care nurse, would sit on the porch with them too, helping Willow get out of the deep porch chairs when it was time to come inside. But one night, towards the very end, Willow asked Marla to go inside before them, “not for my sake but for Lyman’s.”

“There was one thing I only recently realized I need to apologize for,” she had begun. “Curtis.” Walters hadn’t understood. “I know what you really think. You don’t have to say it. I shouldn’t have let that dictate our choice not to have children.”

She hasn’t touched her wine, he remembered thinking.

Every time Willow was reconsidering having children, every time she was actively saying she wanted a child, Curtis would do something particularly egregious. Eventually came a lull and a quiet celebratory dinner with Walters’ sister and her husband when Curtis’ medications seemed to have him under control. During that dinner was the only other time in her life Willow refused a glass of Shiraz. But the celebration proved premature. Curtis’ medications weren’t as effective as they thought and his behavior suddenly escalated, culminating in killing the family dog, which a pregnant Willow found when she stopped over to drop off leftovers. The death of the dog, whom Willow had always been fond of, had imprinted itself inextricably on her. It wasn’t due to the dog, of course, at least not entirely, but she miscarried a few weeks later. The night they had returned from the hospital, as Willow and Walters lay in bed, mostly silent with the lights turned off, she said, “It was probably for the best, anyway.”

***

A few weeks after Walters showed Ochoa the substance abuse treatment facility, he received a late night phone call from the police. Curtis had fallen, or perhaps jumped, from a downtown overpass.

His fellow judges helped as they could, taking cases they could move through quickly. Curtis survived the fall although he suffered significant brain damage, the extent of which it wasn’t yet clear; the doctors had put him in a coma in the hopes of mitigating future harm. Walters volunteered for the job of cleaning out Curtis’ room at the center. He also attempted to get in touch with his niece in Arizona—she and her mother never spoke anymore—but she didn’t answer his calls or emails.

Until he came across a particularly dismaying case, his return was smooth. But when he was assigned one case in particular by lottery, he thought about recusing himself, and he continued to think about it until the prosecutor informed him that the defendant was planning to plead no contest to the charges. The county attorney had, based on the defendant’s record, refused a plea deal. Walters kept intending to recuse himself, and he should have, but something kept him from it. Sitting in his chambers the day before the sentencing, he thought of a study of butterflies, which he’d come across in a magazine a few days before, during an afternoon working in the garden: even after the chrysalis and even after having melted down into goo during their transformation from caterpillars, butterflies showed evidence of remembering their life on the ground. Despite all the transformation, a core memory—in some form—still remained. Would it be the same with Curt, if he ever came out of the coma?

Whatever it was inside him telling him how he should treat this new case, he was bound by it, by what had come before.

On the day of sentencing, Ochoa’s sister wasn’t in the courtroom this time; a public defender was representing him. It was the only time in his career, Walters believed, that a defendant smiled at being sentenced the maximum.

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