De Jure
By M.L. Stone


That was it?
There was no argument, no commentary from her, nothing more than a bitterly pronounced congratulation. The Appellate Court had ruled to allow the sentencing hearing to go forward. They could ask the jury to consider the death penalty in People versus Sandig.
Executive Assistant District Attorney Jack McCoy stared at his office door for a moment. The blinds were rapping against the wood. His second chair, Claire Kincaid, hadn't slammed the door on him, but she had closed it with enough force to set the blinds to tapping noisily. As she closed the door to his office, he thought that he saw a look of disappointment cross her features.
The expression bothered him. It stung more than her words.
No, not the words, just the way that Claire had said them.
He had not known her to sound so...disdainful, so embittered toward him in the year or so since they started working together. That level of distaste was something she reserved for the most immoral defendants. At least it was until this case. Since Detective Robert Croft's murder they had argued almost incessantly about the death penalty. If there was any merit to it, if it truly was a deterrent, if it wasn't too barbaric a measure for a civilized society...the usual debates that arose. He thought that they were handling the dispute rather well; he felt as though they were conducting themselves in an educated, mature manner. The arguments were intellectual, he thought. After all, they were both professionals. They were both adults.
Yeah, well, if I'm such an adult, why am I letting a sarcastic tone of voice get to me?
Jack stopped staring at the door and slowly sat down. He picked up his glass of scotch and finished it off. "Sticks and stones and all that crap," he muttered. He dug up a pen from beneath some motion papers and started going over his outline of questions. He had to be ready for the sentencing hearing. He knew that Helen Brolin was going to play to the jury's sympathies by putting Mrs. Sandig on the stand. Jack stopped himself. The image of Mrs. Sandig's face appeared in his mind. He tried, but he couldn't shake it. He sighed loudly and threw down the pen. Why did she have to show up at the Appellate Court hearing? God, she rattled his nerves. He had tried not let it show. He hoped that it didn't. He had no inkling that she was waiting for him in the hall. He felt ambushed. If Jenny Sandig meant to make him feel guilty about asking for the state to execute her husband, damn it, she almost succeeded. Paul Sandig murdered a cop with premeditation and malice aforethought and a jury of his peers found him guilty of that. But there she was, still trying to defend him, saying that he panicked. She even mentioned that she and her husband had voted for Pataki. If they were in favor of the death penalty, how could being subject to it come to them as such a surprise?
Jack shook his head. He knew the answer. It was easy for one to desire a lawful society. It was another matter entirely to find oneself subject to it. Who would have thought that a mild-mannered CPA could brutally murder an undercover cop just to keep his life from falling apart?
He winced and ran both hands through his hair. Damn it, Mrs. Sandig wasn't even there and she was rattling him. He had to snap out of it. The hearing was at nine in the morning. He couldn't let the jury see him so irresolute. He didn't doubt himself at the onset. He couldn't afford to start doubting himself now, not when the stakes truly were life or death. The position of the Manhattan District Attorney's office was the correct one, he believed. The Supreme Courts had provided the people with a legal, lethal recourse for capital crimes. They were within their rights in asking for the death penalty. The office didn't really have any support from the Appellate Court's ruling, but it wasn't a condemnation either. It didn't help that a sister borough was taking the moral high road. Yeah, morality. It was nothing more than a political maneuver. What in the hell was the Bronx office thinking, stating that they would not seek the death penalty in any case? Ridiculous. He snorted derisively and opened a drawer. He pulled out the bottle of scotch and poured himself a finger of it. To exclude the death penalty was almost akin to shunning justice herself.
Then again...
There was a sharp rap on the door and it opened. Claire crossed the threshold, closing the door behind her.
Again, it was done forcefully but not too much so. She was trying to control her anger. He knew from her body language that it was directed toward him.
"No, it's not going to be that easy," she declared.
Jack gave her a quizzical look and tried to be nonchalant. "What's not going to be that easy?"
Claire heaved a loud sigh and sat in a chair opposite his desk. "I'm not letting you off the hook that easily...I'm not letting myself off the hook that easily. I...I know that I have a habit of shutting down whenever I'm upset, Jack. Especially when I'm mad at myself. I'm not going to let it happen this time."
"Ah." He carefully placed his pen down. "What makes this time special?"
"Oh, damn it, Jack, don't do that." Claire shifted in the chair and took a defensive posture. "I want to talk this out."
Jack stared at his desk. "What's to talk about? We've been over it. I believe in the death penalty and you don't."
"Okay, fine, I can see that you're not in the mood to discuss this. I thought maybe that you would be." He was starting with her again. His tone had gained that contumelious quality, one she loved when it was directed at their opposition. She detested it when he used it on her.
"You're right, I'm not in the mood. Mrs. Sandig is going to be called to the stand by Helen Brolin. We both know that the defense council isn't stupid. Brolin knows to play to the jury's sympathies. Outside of the appeals process it's the only hope for her client. It's not just a matter of presenting extenuating or mitigating evidence. It's a shrewd move to get the jury to feel compassion for Sandig. I have to be ready for her."
Kincaid nodded, becoming even more irritated. "I'm not a first-year law student, Jack." Her lips twisted into a moue of distaste. "So, you're going to handle Mrs. Sandig in just the right way so you don't look like the big bad monster tormenting her."
"Yes, Claire."
She nodded again and leaned toward him, an affected smile on her face. "Aren't you, though?"
McCoy frowned at her, thrown off by the question. "What does that mean?"
"Does being a Manhattan EADA make you so far removed from Paul Sandig? Croft was killed in the line, but Sandig was a husband and a father who got scared. He has two young boys. Will the taking of Sandig's life balance those hallowed scales? If Sandig is a monster because he took another man's life, what does that make you?
Jack managed to stop himself before he snapped at her. He fought to keep his composure and answered her very slowly. "That makes me the Manhattan EADA, Claire. I chose to align myself on the right side of the law; Paul Sandig made a conscious decision to place himself on the wrong side of it. What would you have me do, beg Judge Boucher to overturn the verdict and send him home without supper?"
"No, but there has to be something better than killing him to make things right."
"It's not that simple, Claire, and you know it."
"Do I? You know, at first our disagreement seemed...I don't know, normal, for lack of a better word. Now it feels like you think I'm on the other side of the courtroom. I don't believe in the death penalty, Jack. It's not a betrayal."
Jack snickered and looked up at her. "Okay. It's not."
It was clear to her that he thought it was. "You're being unfair. If you really believe for an instant that I've betrayed you in some way by taking an opposing view -- which I didn't do just to piss you off, by the way -- let me just tell you that I'm not the only one who believes this."
"Then maybe you and your friends should move to the Bronx," he muttered darkly.
Claire laughed without humor and shook her head. "You are really tempting me, Jack. You're not shaking me, though. I'm starting to get the feeling that there are some chinks in your more-righteous-than-thou attitude."
"Oh, is that what it is?" he demanded incredulously.
Claire nodded. "Yes, it is. You so badly want to prove the Bronx DA wrong, don't you?"
"The Bronx DA is wrong. Our asking for the death penalty in the murder of a police officer makes us right."
"Really? Does taking Sandig's life for Croft's make our office any better than the Bronx office?"
"We're well within the scope of the law, Claire. We're only asking for what has been determined as just punishment. We're right."
"Well, we all don't feel that way. Based on the actions of a few, you're making a blanket assumption about the beliefs of many. Just because the District Attorney's office is made up of a collection of people who want to prosecute the accused, like you, it doesn't mean that we all think like you, Jack. We all don't want Paul Sandig dead."
"Okay. Point noted. Allow me to rephrase. Does my and Adam's want for the death penalty for Sandig --"
"Misdirection, crafted and practiced, just like a master magician." She smiled at him. "Don't draw Adam into this, counselor. It was his call, ultimately, but not his preferred alternative."
Jack was growing more aggravated. "All right. Does my bloodlust..." Jack's voice faltered and his face grew pale. It was the first time that he had thought of it in that way.
Claire looked at him sympathetically. "That hurt, didn't it?"
McCoy slumped forward and rested his head in his hands. "Good God, I do want him dead. I pushed Adam to seek the death penalty." He chuckled sadly. "I even used politics to get him to do it."
Kincaid took in a deep breath and clasped her hands before her. "Like you said, you were doing what you thought was right," she murmured.
"And what does that make me, Claire?" he whispered, a look of uneasiness on his face. She started to answer but thought better of it. Jack turned his gaze to his desk. He swirled the scotch around in his glass and watched the amber-hued liquid spin. "Maybe it's not Jenny Sandig that's making me upset. Maybe it's not you that's making me upset, Claire," he murmured. "Maybe it's my wanting to exact a blood revenge that's bothering me." He ceased swirling the liquor and it sloshed in the glass. He took a swig and downed it all in one swallow. "Maybe it's everything." He set the glass down and left his desk. He collapsed onto the leather couch and sprawled out, kicking his shoes off in the process.
Claire watched him silently. She wanted so much to reassure him. A small voice in her head told her to stay her ground. She wondered if part of that feeling wasn't due to the fact that she abhorred the death penalty. Should she use this moment of weakness to try to save Paul Sandig's life, futile as it might be? What would that make her?
It took her a moment before she realized that Jack was speaking again.
"Lord, I'm so tired," he said. "It's been a long time since I've felt so drained."
Jack settled into the cushioning and loosened his tie. He folded his arms behind his head, stared at the acoustic ceiling tile and released another sigh. Though he couldn't see her he could feel Claire's presence in the room. The sensation usually calmed him or excited him. Tonight he was disturbed by it. He wanted so much for her to make him feel better. He closed his eyes. He did want to talk to her, to argue it out with her. However, he didn't want her to try to talk him out of it, for heavens' sake. For whatever reason -- maybe it was Claire's influence, maybe it wasn't -- his belief in the death penalty was just a little shaky. He generally welcomed a good discussion to shore up his resolve. "Why am I being so damn wishy-washy all of a sudden?"
"Probably because the wife of the man you want to execute asked you to spare his life and you said no."
McCoy opened his eyes, startled. He hadn't realized that he had asked his question aloud. He certainly didn't expect that response from Claire.
She was hurting and was taking it out on him. Some of -- no, most of it was his fault. "There has to be more to it than that," he told her softly. "I've been prosecuting for over twenty years. Countless defendants have asked, threatened, cajoled, bargained, even pleaded for mercy. I've had defendants sent to prison without hope of ever setting foot outside the walls."
For some reason Claire felt a bit relentless. The tables had turned. She could feel the power shift to her and she liked it. "This time you're going to be killing someone," she countered.
"No, I'm not the one putting the needle in his arm, the state is."
"Semantics, Jack."
"It's justice."
She chuckled scornfully. "Perhaps you're no better, then. 'Facinus quos inquinat aequat'."
"'Villainy and guilt make all those whom it contaminates equal in character', yes, I remember that from law school." Although he was shocked and concerned by Claire's bitter turn of mood he was too worn to put up much of a fight against her. "What does it have to do with anything?" he asked.
Kincaid stood up and walked over to Jack's desk. She sat herself down in his chair. "You honestly can't tell me that you don't see the correlation? A life for a life? You were so sure of yourself before, Jack...I think your guilt has caught up to you. After all, you sought the death penalty. Now, you all but have it. Paul Sandig is that much closer to being executed."
"He deserves it. He executed Robert Croft. He murdered a cop in cold blood."
"Back to his killing a cop. It's more than the statute, counselor. Are you taking this personally?"
"What do you mean?"
"Your father was a cop." Claire was entering uncharted territory, potentially explosive territory, but she didn't care. She felt possessed by a determination to make Jack see her side of it. "Are you overly empathizing with Croft? Did you think that Sandig could have killed your father instead?"
"My father being a police officer has nothing to do with it."
Kincaid leaned back in his chair and closed her eyes. A growing part of her wanted to push him further. "Are you sure, John James?" She deliberately called him that. No one called him that, ever. He loathed his father's name.
"You're not my mother," he finally snapped back. "Stop trying to sound like her, okay?"
"What about your father?" she persisted. "He certainly seems to have bearing on this."
"No, he doesn't. Drop it."
"But, John James, how can --"
"What, how can I be sure? Because my father was a bastard. He was barely a father, let alone a man. Things might've been better for us if he had been killed in the line. There, I said it. You got me to say it. Does that satisfy you?"
Claire was not appeased in the least. "No. It's not an entirely convincing argument, counselor. If anything I think that you have proven my case for me. And you're still as much an executioner as Paul Sandig was. Maybe worse."
Jack shut his eyes even tighter and covered his face with his arms. "Why wouldn't you stop it? Why are you being this way?"
She rubbed her forehead and looked to the ceiling. Why was she being this way? Why was she fighting him so hard? "I'm -- I don't know, Jack. I just...this case...what if Paul Sandig is truly remorseful? He said he had no intention of harming, let alone killing, Croft. What if he was scared and it was all an accident? What then?"
"My turn for a bit of Latin. 'Facta sunt potentiori verbis'." He spoke fiercely, biting off each word. She couldn't blame him for his acerbity.
Claire nodded. "'The facts, deeds or accomplishments are more powerful than words'." She sighed and ran a hand through her hair. "One man alive and one man dead. Doesn't matter what the living say. Is that all it comes down to?"
"Yes. He murdered a man in cold blood. He should pay for his crimes."
"By your killing him?"
Jack snapped back, "You seem to have a mental block with this, Claire. I'm not the one killing Paul Sandig. The state is."
"Because the state says it's wrong to kill another man. If Sandig has to pay for his crime -- well, damn it, Jack, if you're going to be so simplistic, when do you pay for your crime of murdering Paul Sandig?"
Jack grimaced. "Claire...why are you doing this to me?
His voice was so supplicant...she felt her indignation recede slightly and found herself resentful of his power over her. Claire used the resentment and regained her fervor. "You know better than that. You should be asking yourself why you're letting me do this to you. Ordinarily you wouldn't take this from me. Ordinarily I wouldn't ride you so hard about an issue."
"No, you wouldn't. You're being incredibly cruel, Ms. Kincaid."
"I've gotten the same from you, Mr. McCoy."
Jack bit his lip before voicing his response. "So it's revenge?"
"Just like killing Paul Sandig is, I guess." Claire sounded tired, weary from being so merciless.
"What are we fighting about?" he asked her in whisper.
Despite the way his voice tugged at her heart again, almost begging for forgiveness, Claire felt she could not give up. Not when she felt so close to getting him to face it. "You're wrong and you won't admit it," she stated.
"Oh, shut up!" he snarled. The vehemence of his words startled her. "It's not going to work. I'm not going to be played by you or by Brolin."
Claire laughed at the comment. Though she had him confused, he still saw through what she was doing. He was going to fight her to the end. She wouldn't let him turn the tables on her. "How is Helen Brolin playing you, Jack?"
"She set me up. It had to be her. She must have asked Jenny Sandig to wait for me in the hallway. She gambled that a wife and mother's plea would shake me. It nearly worked."
"What do you mean, nearly? We're in your office at each others' throats because of it."
McCoy winced. God, that stung. "This is crazy."
"No more crazy than killing a man to square things. An eye for an eye, right? That's very Biblical of you, Jack."
"That's not how it is, Claire. You're wrong. It's justice. 'Justice must be tempered with mercy but never lose its sense of retribution or else it's not justice'."
"You're quoting Ben Stone? I never expected that of you, Jack. Are you hoping Stone will save you now your charms are all overthrown?" If he was going to throw quotes from Ben Stone at her, she had to favor him with a quote or two.
"What the hell is that supposed to mean? Oh, God, just leave me alone."
Claire kept pushing him. "Not that easy. Now you're seeking relief in prayer? 'Which pierces so that it assaults'?" she continued smugly.
"Where do I know that? Despite your pronouncements, don't you have any mercy?"
"When you don't? 'Mercy frees all faults', Jack."
"I know what you're quoting. It's Shakespeare, from The Tempest. Sorry, nothing personal, but you make a shitty Prospero. What you're trying to do isn't going to work, Claire. I'm not going to listen to you any more."
"Listen to me? I'm only giving voice to your guilt. Sandig, your father...what you've admitted tonight shows that you have a murderous heart, John James McCoy Jr." That comment cut him deeply, she knew it, but Claire was in full crusade mode. She was oddly detached from the pain that she knew she was causing Jack. Being on the other side of the righteousness was new. It felt good in a way. It gave her a thrill. Convincing him that maybe, just maybe, there was something wrong with his justification of the death penalty...it was intoxicating. She never had so much control in a situation before. She didn't know how to stop. "Just admit it and you can receive pardon for your crimes."
In spite of Claire's war on his resolve, Jack was still defiant. "I haven't broken any laws. I'm not guilty."
"Oh, but your conscience is."
He held his breath for a moment. There. He exhaled loudly. She had gotten him right there. The statement cut more grievously than any other did because it was true. He had been having a crisis of conscience and he had ignored it until...
"Maybe you're right, Claire. Maybe you are."
"Jack?" She was startled. In all of her badgering she had not expected any sort of capitulation.
He smiled faintly and shook his head. "'Let your indulgence set me free...'"
"Jack." Claire sat on the edge of the couch and took him by the shoulders. She touched him hesitantly, as if she were afraid to after all of the terrible things that she had said to him. "Jack. I'm sorry, I'm so sorry for pushing you. I glad that you finally admitted it, but -- I didn't mean to hurt you. I didn't. Please believe me. Jack?" He wouldn't respond to her. His eyes were closed and his face was expressionless. "Jack. You're worrying me."
His eyes opened. Claire's face creased with worry. "Oh, Jesus, Claire." She had never seen him so confused before. His eyes were red-rimmed and his skin was ashen. "I don't think I know anymore."
No, she didn't, she didn't push him that hard, that far. He couldn't flounder now. Claire felt a weight in her stomach. She hadn't meant to break Jack's determination, just bend it a little. He was so adept at sidestepping her attempts at getting him to open up. "My God, Jack, I'm sorry. I didn't mean to..." She' tilted her head and studied his features. "I didn't mean to do it. I couldn't stop. Something inside me drove me to provoke you. You're so obstinate, so virtuous at times. I just had to make you see things my way. It was stupid and childish, I know, but I just wanted you to see..." Her voice trailed off. "Are you okay?" she asked gently. "I'm guessing that you're not."
Jack shook his head. "No, I'm all right. I just need to get some sleep. I'm tired." He pushed himself up to a sitting position and avoided her concerned gaze.
Claire nodded and moved so he could sit properly. "I...wouldn't have come back except that...the look on your face..."
"You had to make it worse, is that it?" Claire bit her lower lip. He shook his head in a negative. "That's a cheap shot, I know." McCoy took in a deep breath and slowly exhaled. "I'm sorry."
Claire nodded again. She pursed her lips once, then again, and then finally asked, "Does this make things different? Between us?"
"I don't know any more. That's what I was trying to figure out."
"I --" Kincaid paused and tried to gauge the expression on Jack's face. She couldn't read it, so she went on. "So you're still firm about going through with it. Getting the death penalty for Sandig."
He rubbed his eyes and got up. Jack padded over to his desk in his sock-feet and dropped down into his chair. He regarded Claire with a tired, wary gaze.
"Yes."
Despite her anger toward him, Claire was frightened at how battered he appeared. Maybe seeking the death penalty weighed more on his conscience than she thought. Maybe he wasn't as unfeeling and as single-minded as her animosity would have wanted him to be.
"I should go now. You should go home and get some rest," she said with regret, rising to her feet.
He gave silent consent and rubbed his forehead. "Yeah, you're right." He waved a hand at his desk. "I'm going to wrap things up here and then I'll head out."
Claire leveled a mournful look at him. They locked eyes for a moment, searching for relief. Then the moment passed. Jack looked to his desk and Claire to the floor.
"See you tomorrow, Jack." She began to exit his office but stopped when he called out to her.
"Claire?"
"Yeah?"
"Thank you," he said quietly. "I know that...it did help me, I think. I guess I know what I sound like now. Sometimes...I'm not a nice person to be around."
"Just sometimes, Jack. Just sometimes." She swallowed hard and continued. "You're welcome, I suppose. I didn't intend to go that far. I don't think I'll be doing that again."
"I sincerely hope not," he said with a hint of a smile. "Good night, Claire."
"'Night, Jack." She exited the office and gently drew the door to a close behind her.
Through the windows Jack watched Claire go to her cubicle. He watched her gather her belongings, turn off the desk light and then walk down the hallway to the elevators. She cast a wayward glance at his office window as she passed by. He thought that he saw her flash a little smile at him.
An indulgence.
Maybe that would be enough?
He was tempted to pour himself some more scotch but then thought the better of it. He put the bottle back into its drawer and picked up his pen. He was close to being finished. The hearing was early and he had to be ready for it. He hoped that he would be able to talk to Claire afterward. He needed to apologize properly. He had treated her unfairly over the course of the trial. She had given him the same treatment in return and he didn't like it in the least. Jack hoped that Claire would be in a forgiving mood, even though he would do his best to persuade the jury to choose the death penalty. Maybe his conscience was heavy with guilt over that choice, over many choices he had made in his life. Still, he had a duty to fulfill. It wasn't nice, it wasn't good, but it was right. It was just. Jack laid his pen down and rubbed his eyes. He would be in sore need of another indulgence after the hearing. Maybe Claire would give him one. Maybe...it would be enough to ease his conscience. Just enough to get him to the next death penalty case?
Jack McCoy picked up his pen and started going over the reasons why Paul Sandig should die.

end


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