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To thine own conscience be true

THIS was an unusual case. Ten years earlier, the defendant had been indicted, tried, and convicted of second-degree murder. The state Supreme Court affirmed the conviction, leaving the defendant to serve the mandatory life sentence. About five years later, the United States Supreme Court, in a different case, decided that a judge cannot constitutionally instruct jurors that a person's use of a dangerous weapon permits the ``presumption'' of malice aforethought. He should say only that the jurors may ``infer'' malice.

As it happened, during the first trial the presiding judge had used the forbidden word, despite objections by both defense counsel and prosecutor.

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An astute fellow prisoner, a self-styled ``jailhouse lawyer,'' brought the Supreme Court's decision to the defendant's attention and drafted an application for a new trial.

In due season, the state Supreme Court, acknowledging itself bound by the intervening opinion from Washington, granted a new trial.

The original judge had long since retired, and his successor (who had not even been on the bench at the time of the first trial) presided over the retrial.

Both the deceased and the defendant had been 18 years old. On the fatal evening, they had attended a high school graduation party that evolved into a street fracas and ultimately a stabbing.

The essential evidence in both trials was substantially identical, although at some point during the intervening decade, the knife had vanished. The judge, in an abundance of caution, did not charge the jurors that they could infer malice from defendant's use of the weapon.

More important, at the first trial the defense had argued misidentification; the second time, new counsel suggested the killing had been accidental.

After considerable deliberation, the jury returned a verdict of involuntary manslaughter.

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Ordinarily, sentencing would present no special problem. The maximum allowable sentence was 20 years in state prison. Given the defendant's lack of a prior criminal record, the state's sentencing guidelines indicated a pre-parole incarceration range of about two to seven years, which was less than the defendant had already served.

The judge, however, saw potential problems in suddenly freeing a man who had been confined for 10 of his 28 years and who had hardly been a model prisoner. His institutional record included many disciplinary reports and a stay in maximum security.

Wrestling with the decision, the judge remembered a convict in New York whose writing ability had induced several literary giants to work successfully for his parole. Shortly thereafter, he had knifed a man in an impatient pique after a trifling argument.

It seemed to the judge that caution, wisdom, and fairness to everyone (not least the defendant himself) mandated allowing the correction authorities to effect a gradual reentry.

At sentencing, in front of camera and microphone, the dead boy's mother, exercising her statutory right, read a bitter statement castigating the trial judges and the appellate court. Their combined shortcomings, she complained, would forever prevent justice.

After hearing the prosecutor, defense counsel, and the defendant himself, the judge explained his concerns at length, then imposed a sentence allowing about a year for reacclimation, with a period of probation thereafter.

Defense counsel immediately rose.

The judge, he shouted, had inflicted a harshly vindictive sentence, responding not to the needs of the case but to political pressures engendered by the media attention the case had received.

Emotion swelled in the judge's throat. It did not, however, detonate his voice box. Feeling not outrage but disappointment, he responded simply that he had already stated the only basis for the sentence.

Later, the judge looked for an explanation. He had tried to conduct a fair trial, and to articulate a fair, reasoned sentence based on cool judgment.

Universal approval was too much to expect. So was passive acceptance.

Maybe one should just apply the adage that a result is probably fair if it satisfies neither party.

No, he realized, a judge must simply listen to his conscience and try to hear its still, small voice over the angry clamor.

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