Defending Jacob(41)

“Mine.”

I felt myself redden, the warmth rising in my cheeks, my ears. I was ashamed, then ashamed at feeling ashamed, at my lack of self-command. Then ashamed, again, that Jonathan was watching my son learn of this in real time, exposing me as a liar, a bad father. Only last was I ashamed in my son’s eyes.

Jonathan looked away from me, pointedly, allowing me to recover myself. “No, Laurie, that sort of evidence would definitely not be admissible. Anyway, as far as I know, there is no such thing as a genetic tendency to violence. If Andy really does have violence in his family background, then his own good nature and his life prove that the tendency doesn’t exist.” He glanced at me to be sure I heard the confidence in his voice.

“It’s not Andy that I doubt. It’s the DA, Logiudice. What if he finds out? I Googled it this morning. There have been cases where this sort of DNA evidence has been used. They say it makes the defendant aggressive. They called it ‘the murder gene.’ ”

“That’s ridiculous. ‘The murder gene’! You certainly did not find any cases like that in Massachusetts.”

“No.”

I volunteered, “Jonathan, she’s upset. We just talked about this last night. It’s my fault. I shouldn’t have put all this on her right now.”

Laurie held herself erect to demonstrate how wrong I was. She was in control, not reacting wildly out of emotion.

In a comforting tone, Jonathan said, “Laurie, all I can tell you is that if they do try to raise that as an issue, we’ll fight it tooth and nail. It’s insane.” Jonathan snorted and shook his head, which for a soft-spoken guy like him was a rather violent outburst.

And even now, looking back on that moment when the idea of a “murder gene” was first raised, by Laurie of all people, I feel my back stiffen, I feel the anger ooze up my spine. The murder gene was not just a contemptible idea and a slander—though it absolutely was both of those things. It also offended me as a lawyer. I saw right away the backwardness of it, the way it warped the real science of DNA and the genetic component of behavior, and overlaid it with the junk science of sleazy lawyers, the cynical science-lite language whose actual purpose was to manipulate juries, to fool them with the sheen of scientific certainty. The murder gene was a lie. A lawyer’s con game.

It was also a deeply subversive idea. It undercut the whole premise of the criminal law. In court, the thing we punish is the criminal intention—the mens rea, the guilty mind. There is an ancient rule: actus non facit reum nisi mens sit rea—“the act does not create guilt unless the mind is also guilty.” That is why we do not convict children, drunks, and schizophrenics: they are incapable of deciding to commit their crimes with a true understanding of the significance of their actions. Free will is as important to the law as it is to religion or any other code of morality. We do not punish the leopard for its wildness. Would Logiudice have the balls to make the argument anyway? “Born bad”? I was sure he would try. Whether or not it was good science or good law, he would whisper it in the jury’s ear like a gossip passing a secret. He would find a way.

In the end Laurie was right, of course: the murder gene would haunt us, if not quite the way she anticipated. But in that first meeting, Jonathan—and I—trained in the humanist tradition of the law, instinctively rejected it. We laughed it off. The idea had got ahold of Laurie’s imagination, though, and Jacob’s too.

My son’s jaw literally hung open. “Is somebody going to tell me what you guys are talking about?”

“Jake,” I began. But the words did not come.

“What? Somebody tell me!”

“My father is in prison. He has been for a long time.”

“But you never knew your father.”

“That’s not entirely true.”

“But you said. You’ve always said.”

“I did, I said. I’m sorry for that. I never really knew him, that was true. But I knew who he was.”

“You lied to me?”

“I didn’t tell you the whole truth.”

“You lied.”

I shook my head. All the reasons, all the things I had felt as a kid, seemed ridiculous and inadequate now. “I don’t know.”

“Jeez. What did he do?”

Deep breath. “He killed a girl.”

“How? Why? What happened?”

“I don’t really want to talk about it.”

“You don’t want to talk about it? No shit you don’t want to talk about it!”

“He was a bad guy, Jacob, that’s all. Let’s just leave it at that.”

“How come you never told me?”

“Jacob,” Laurie cut in softly, “I never knew either. I only found out last night.” She laid her hand on Jacob’s and rustled it. “It’s okay. We’re still kind of figuring out how to process all this. Try to stay calm, okay?”

“It’s just—it can’t be true. How come you never told me? This is my—what?—my grandfather? How could you keep that from me? Who do you think you are?”

“Jacob. Watch how you talk to your father.”

“No, it’s okay, Laurie. He’s got a right to be upset.”

“I am upset!”

“Jacob, I never told you—I never told anyone—because I was afraid people would look at me differently. And now I’m afraid it’s how people are going to look at you too. I didn’t want that to happen. Someday, maybe someday very soon, you’ll understand.”