Illegal Alien

*13*

During pretrial discovery, the prosecution and the defense each had to share the evidence it intended to present at trial so that adequate study of it and response could be made. After the final discovery meeting, an exhausted Dale Rice returned to his office and sat down in his big leather chair. He rubbed the broken bridge of his nose between his thumb and forefinger, trying to fight off a headache. After a moment he picked up his desk phone, selected a line, and punched out the number of Frank’s cellular.

The moment Frank Nobilio entered Dale Rice’s private office, he felt his eyebrows drawing together. Frank had never seen the old attorney look so upset before. Dale’s face was normally quite smooth—surprisingly so for a man his age—but deep worry lines creased his forehead. “What is it?” asked Frank, taking his usual seat.

“I don’t think there’s much question anymore,” said Dale. “I think our boy did it. I think Hask killed Calhoun.”

“I don’t believe it.”

“Politely, it doesn’t matter what you believe. It doesn’t even matter what I believe, for that matter. Only thing that matters what a jury’ll believe.”

“So, if the jury is likely to find Hask guilty, what do we do?” asked Frank.

He felt nauseous.

“Well, the DA is going to seek a murder-one conviction. That’s murder in the first degree—premeditated murder. We could get our alien gentleman to confess to murder-two instead.”

“Which is?”

“Second degree. Yes, he killed Dr. Calhoun, and, yes, he meant to. But it wasn’t planned in advance. An argument that got out of hand, something like that. But even a second-degree conviction carries a mandatory sentence of fifteen years.”

“No,” said Frank, shaking his head. “No, that’s not acceptable.”

“Or we try to get the DA to come down to involuntary manslaughter. That means it was a criminal death, but Hask never intended to do it. Calhoun died because his leg was cleanly severed from his body. Say Hask did that without knowing it would be fatal—the fact that Calhoun died makes it a crime, but it isn’t murder.”

“But he’d still go to jail.”

“Possibly.”

“Any other options?”

“There are only two possible approaches that let Hask walk. First, there’s self-defense. But you can only legally use deadly force in self-defense if deadly force is being used against you. Calhoun had to have been threatening Hask in such a way that Hask felt he was in immediate danger of being killed.”

“I can’t believe Cletus Calhoun was threatening an alien.”

“Don’t dismiss this so fast, Frank. There are possibilities here. Say Calhoun wanted to—I don’t know—say he wanted to thump Hask on the back, all friendly-like, but being hit there, say that’s fatal to a Tosok. Hask might have thought he was in imminent danger of being killed, and so responded with deadly force.”

“It seems unlikely. Why wouldn’t he have told us if that were the case?”

“I don’t know.”

“You said there’s another possible defense.”

Dale nodded. “Insanity.”

“Insanity,” repeated Frank, as though he’d never heard the word before.

“That’s right. We prove that, by human standards, Hask is non compos mentis.”

“Can you do that?”

“I don’t know. It may be that all Tosoks are bonkers by human standards. But if he did it, and it wasn’t self-defense, pleading insanity is the only thing that will get him off.”

“It’s an interesting approach.”

“That it is, but the insanity defense is used in less than one percent of all criminal cases. And of those, only fifteen percent are murder cases. In all cases, the insanity defense works—that is, results in an acquittal—only about twenty-five percent of the time.”

“So it’s not an easy out?” asked Frank.

“No—despite what the media claims. Eighty-nine percent of those who are acquitted under an insanity defense are done so because they’ve been diagnosed as being either mentally retarded, or having a severe mental illness, such as schizophrenia. Eighty-two percent of acquittees have already been hospitalized at least once for mental problems.”

“Wait a minute—did you say mentally retarded?”

Dale moved his massive head in a slow nod.

“Is there a legal definition for that?”

“Doubtlessly. I can get my clerk to check.”

“ ’Cause if it’s a matter of IQ, you know, they often charge that IQ tests are culturally biased. If Hask gets a really low score on a standard IQ test, he could qualify as retarded.”

Dale shook his head. “We’ve got to sell this to a jury, remember? A jury isn’t going to buy that he’s retarded. Everybody on Earth saw him piloting that lander, and has seen how he picked up English. No, that’s out. It’s got to be insanity. But the problem is that normally a person acquitted under the insanity defense doesn’t just go free. Rather, almost automatically, if they’re found insane, they’re committed to a mental institution. Remember the Jeffrey Dahmer trial? He tried the insanity defense. So did John Wayne Gacy and the Hillside Strangler. All of them failed on that defense, but if they had succeeded, I can guarantee they would have been committed for life. See, once you’re found legally insane, the burden shifts dramatically. You’re no longer innocent until the State can prove you guilty. Rather, once you’re committed, you’re insane until you can prove that you’re not.”

“What about temporary insanity?”

“That’s a possibility, too,” said Dale. “Some aspect of Earth’s environment—whether it’s pollution, pollen, or Twinkies—made him temporarily crazy. The problem with that, though, is that first Hask has to confess—and he still refuses to do that.”

“Well,” said Frank, “we certainly can’t let them lock Hask up as a mental patient.”

“No, of course not. And that means, if we can’t prove temporary insanity, then we have to show that not only is Hask bonkers, but we also have to prove that human psychiatry is incompetent to treat him—that he’s so bonkers that there’s nothing we can do for him, and yet, at the same time, that he’s not a menace to society and doesn’t have to be locked up.”

“And can we do that?”

“That’s what we have to find out. The standard test for insanity is whether the person can distinguish right from wrong. The standard problem is that if the person has taken steps to avoid punishment—such as hiding the body—then he must know what he did was wrong, and therefore he’s sane.”

Dale considered. “Of course, in this case, the body was as conspicuous as possible, so maybe we are onto something here…”

Dale and Frank went down to Hask’s room in Valcour Hall, accompanied by Dr. Lloyd Penney, a psychiatrist Dale sometimes used as a consultant.

Hask was sitting on the corner of his bed, propping his back up with his back hand. In his front hand, he was holding a piece of the disk that broke the night he’d been arrested.

“Hello, Hask,” said Frank. “This is Dr. Penney. He’d like to ask you a few questions.”

Penney was in his late thirties, with curly light-brown hair. He was wearing a Hawaiian shirt. “Hello, Hask,” he said.

“Dr. Penney.”

Dale sat down on the edge of the bed as well. The bed had been modified: a trough ran down its center to accommodate Yask’s back arm when he was resting. Frank leaned against the wall, and Penney sat down on the one human chair in the room.

Hask was still holding the broken piece of disk. “What’s that?” asked Penny.

Hask did not look up. “A lostartd—a form of art.”

“Did you make it?” asked Penney.

Hask’s tuft waved backward in negation. “No. No, it was made by Seltar—the Tosok who died during our flight to Earth. I kept it to remember her by; she had been my friend.”

Penney held out a hand toward Hask. “May I see?” Hask handed it to him.

Penney looked at it. The painting on the disk is stylized, but apparently depicted an alien landscape. The other piece was sitting on Hask’s desk.

Penney motioned for Frank to hand it to him; Frank did so. Penney joined the two parts together. The picture showed a world with a large yellow sun and a small orange one in its sky. “A clean break,” said Penney. “Surely it could be fixed.”

Frank smiled to himself. Doubtless keeping a broken artifact around was pregnant with psychological meaning.

“Of course it can be fixed,” said Hask. “But I would need to return to the mothership to get the adhesive I need, and the terms of my bail do not allow that.”

“We have powerful adhesives, too,” said Frank. “A couple of drops of Crazy Glue should do the trick.”

“Krazy Glue?” repeated Hask. His untranslated voice seemed slow, sad.

“Cyanoacrylate,” said Frank. “It’ll bond almost anything. I’ll go out and buy you a tube today.”

“Thank you,” said Hask.

Dr. Penney placed the two pieces of the lostartd disk on Hask’s desk. “Dale and Frank have brought me here to ask you some questions, Hask.”

“If you must,” said the alien.

“Hask,” said the psychiatrist, “do you know the difference between right and wrong?”

“They are opposites,” said Hask.

“What is right?” asked Penney.

“That which is correct.”

“So, for instance, two plus two equals four is right?” said Penney.

“In all counting systems except base three and base four, yes.”

“And, in base ten now, two plus two equals five is wrong, correct?”

“Yes.”

“Do the words right and wrong have any other meaning?”

“Right also refers to the direction that is to the south when one is facing east.”

“Yes, yes. Right on its own has other meanings, but the concept of ‘right’ and ‘wrong,’ do they apply to anything other than factual matters?

“Not in my experience.”

Penney looked briefly at Dale, then turned back to Hask. “What about the terms ‘good’ and ‘bad’?”

“A food item that has an agreeable taste is said to be good; one that has putrefied is said to be bad.”

“And what about the concepts of moral and immoral?”

“These apparently have to do with human religion.”

“They have no bearing on Tosok religion?”

“Tosoks believe in predetermination—we do the will of God.”

“You believe in a single God?”

“We believe in a single being that was foremother to our race.”

“And this God—she is good?”

“Well, she has not begun to putrefy.”

“You perform no actions that are not the will of your God?”

“The God.”

“Pardon?” said Penney.

“It is not acceptable to speak of God possessively.”

“Sorry. You perform no actions that are not the will of the God?”

“By definition, such a thing would be impossible.”

“Is there a devil in your religion?”

Hask’s translator beeped. “A—devil? The word is unfamiliar.”

“In many Earth religions,” said Frank, once again leaning against the wall, “there is a supremely good being, called God, and an adversary, who attempts to thwart God’s will. This adversary is called the devil.”

“God is omnipotent,” said Hask, looking briefly at Frank, then turning back to Penney. “Nothing can thwart her.”

“Then there is no continuum of behavior?” asked the psychiatrist.

“I have encountered this concept repeatedly in human thought,” said Hask. “The idea that everything moves from one extreme on the left to another on the right, or that there are two equal ‘sides’ to every issue—using the word ‘sides’ in a way a Tosok never would.” His topknot moved. “This is an alien way of thinking to me; I rather suspect it has something to do with the left-right symmetry of your bodies. You have a left hand and a right, and although each individual among you seems to favor one— Frank, I have noticed you favor your right, but Dale, you favor your left—in general, you seem to view the hands as equal. But we Tosoks have a front hand that is much stronger than our back hand; we have no concept—to use one of your words that does not translate fully—of what you call ‘evenhandedness.’ One perspective is always superior to the other; the front always takes precedence over the back. The aspect with the preponderance of power or weight is the side of God, and it always wins.”

Frank smiled. Clete would have loved that kind of biology-based answer.

“Let me ask you some hypothetical questions,” said Penney. “Is it all right to steal?”

“If I do it, God certainly must have observed it, and since she did not stop me, it must be acceptable.”

“Is it all right to kill?”

“Obviously, God could prevent one from doing so if she wished; that she does not clearly means the killer must have been acting as her instrument.”

Penney’s eyebrows went up. “Are there any unacceptable actions?”

“Define unacceptable.”

“Unacceptable: acts that cannot be countenanced. Acts that are not reasonable.”

“No.”

“If you killed someone because he was trying to kill you, would that be acceptable?”

“If it happened, it is acceptable.”

“If you killed someone because he was trying to steal from you, would that be acceptable?”

“If it happened, it is acceptable.”

“If you killed someone because the joke they told was one you had already heard, would that be acceptable?”

“If it happened, it is acceptable.”

“In our culture,” said Penney, “we define insanity as the inability to distinguish moral acts from immoral acts.”

“There is no such thing as an immoral act.”

“So, by the definition of the human race, are you insane?”

Hask considered this for a moment. “Unquestionably,” he said at last.

Frank, Dale, and Dr. Penney walked out of the residence hall and ambled across the USC campus, passing by the statue of Tommy Trojan and then cutting diagonally across Alumni Park. It was an overcast January day.

“We’re not going to sell that insanity defense, are we?” said Frank.

A couple of students passed them going the other way. Penney waited until they were out of earshot. “I’m afraid not,” he said. “Hask’s thinking is radically different, but he doesn’t seem out-and-out deranged. Most juries like to see illogic as part of insanity, but what Hask believes appears to be internally consistent.” Penney lifted his shoulders. “I’m sorry, Dale.”

“What about the self-defense approach?” asked Frank.

“Hask would have to admit to the crime before we could even begin to structure a defense based on that, and so far he’s refused to do so,” said Dale.

“So what are we going to do?” asked Frank.

Dale paused again, as more students, plus one old fellow who must have been a prof, passed them. “If he continues to plead innocent, then we’ve got to at the very least establish a reasonable doubt about his guilt. And that means attacking every aspect of the prosecution case.”

“The Simpson criminal strategy?” asked Frank.

Dale shrugged. “Basically.”

“But what if we get a Hiroshi Fujisaki instead of a Lance Ito?” asked Frank. “What if we don’t get the latitude to do that?”

Dale looked first at Penney, then at Frank. “Then we’re in deep trouble,” he said. “The prosecution has an excellent case.”