The Argument
 
“May it please the court,” booms Jordan Sapperstein from the podium. “This case must be reversed. Your Honors have no choice.”
 
Seated behind the elevated walnut bench a dozen feet away, Judge George Mason suppresses an impulsive wince at Sapperstein’s excesses. The judge is seldom reluctant to let lawyers know when their claims are unpersuasive, but making faces, as his father warned him when he was a boy in Virginia long ago, is simply rude.
 
The truth is that George Mason recoils even more from the case, People v. Jacob Warnovits et al., than from the celebrated attorney beginning his oral argument. Before he was elected to the bench, at age forty-seven, George was a criminal defense lawyer, perpetually engrossed in his warring feelings—loathing, amusement, intrigue, envy—about those who broke the rules. Yet from the instant the Court of Appeals’s docket department randomly placed him on Warnovits five weeks ago, he has been uneasy about the assignment. He has found it uncharacteristically difficult to read the briefs or view the record of the trial in the Kindle County Superior Court, where nineteen months ago, the four young defendants were convicted of criminal sexual assault and given the mandatory minimum sentence of six years. Now the judge thinks what he has every time the matter has come reluctantly to mind: hard cases make bad law.
 
As the senior member of the three-judge panel, Judge Mason, in his inky robe, occupies the center spot on the long bench between his two colleagues. Judge Summerset Purfoyle, with his time-engraved pecan face and a sponge of white hair, is perhaps more regally handsome now than in his days as a successful soul balladeer. The other judge, Nathan Koll, small and stout, his plump jowls like a croissant beneath his chin, eyes Sapperstein from his first words with a dark, merciless look.
 
Beyond the lawyers in the well of the court, the security officers have fit onto the walnut pews as many as possible of the spectators who lined up at the courtroom door, leaving the air close on a warm day at the start of June. In the front row, the reporters and sketch artists hastily record what they can. Behind them the onlookers—law students, court buffs, friends of the defendants, and supporters of the victim—are now intent, after having shifted through three civil cases argued before the same panel earlier in the morning. Even the stateliness of the appellate courtroom, with its oxblood pillars of marble rising two stories to the vaulted ceiling and the gilded rococo details on the furnishings, cannot fully dampen the high-wattage current of controversy that has long enlivened the Warnovits case, which has taken on complex meanings for thousands of people who know nothing about the legal principles at stake and not much more about the underlying facts.
 
The victim of the crime is Mindy DeBoyer, although her name, as an alleged rape victim, is never used in the frequent public accounts. More than seven years ago, in March 1999, Mindy was fifteen and a member of the rowdy throng at a house party for the Glen Brae High School boys’ ice hockey team. Earlier that day, Glen Brae had finished second in the state. The players were sore—from the pounding of six games in six days and from failing after coming so close to the state title—and the celebration in the home of the team co-captain, Jacob Warnovits, whose parents had flown off to a wedding in New York, was out of control from the start. Mindy DeBoyer, by her own testimony, ‘got hammered beyond belief’ on the combination of rum and a pill provided by Warnovits and somehow ended up passed out in his room.
 
Warnovits claimed he had discovered her there and took Mindy’s position, like Goldilocks in the bed of one of the three bears, as a proposition. The jury clearly rejected that explanation, probably because Warnovits also invited three other team members to join him in violating the young woman, who was unconscious and lifeless as a rag doll. Warnovits captured each assault on videotape, often employing the camera in a grotesque fashion that would startle even a pornographer. The soundtrack, a vile screed from Warnovits, ended after more than fifty minutes with his warnings to his friends to get Mindy out of there and ‘don’t say jack.’
 
When she awoke at about 5:00 a.m. amid the lingering reek from the empty cans and ashes in the Warnovitses’ living room, Mindy DeBoyer had no idea what had occurred. A sexual novice, although not uninitiated, she realized she’d had rough treatment, and she noticed that her skirt was on backward. Yet she had no memory of any of the night’s late events. After sneaking home, she phoned other kids she’d seen at the party, but no one could recall whom Mindy had gone off with. Speaking to her best friend, Vera Hartal, Mindy DeBoyer wondered if she might even have been raped. But she was fifteen and not eager to involve an adult, or admit where she had been. She healed in her own time and said nothing.
 
And so life marched on. The four boys graduated from high school and went to college, as did Mindy two and a half years later. Feeling safer with time, Jacob Warnovits could not resist occasionally entertaining his fraternity brothers with the tape. One freshman pledge, Michael Willets, turned out to be close to the DeBoyer family, and after a lengthy conversation with his sister, he tipped the police, who arrived at the fraternity house with a search warrant. Mindy DeBoyer reviewed the videotape in horror, and Warnovits and the three other young men were indicted in quick order on January 14, 2003.
 
As George Mason views the case, the principal legal question is the statute of limitations, which under state law would ordinarily bar bringing felony charges more than three years after the crime. But the grinding social issue is that Mindy DeBoyer is black. She is well-to-do, like the boys who assaulted her, but her parents, a lawyer and an MBA, could not keep from wondering publicly, in their initial agitation, whether a young white woman would have been treated the same way in Glen Brae, a suburban town to which integration came grudgingly.
 
The racial charges raised the volume in Glen Brae. Families close to the four boys proclaimed that their lives were being ruined long after the fact for a crime from which the victim had not really suffered. They implied that race alone was causing men to be punished for the misdeeds of children. The sharp disputes between neighbors boiled over into the press, where the DeBoyers’ views have clearly prevailed. Most accounts portray the defendants as spoiled rich boys who nearly escaped after a night of bestial fun in the slave cabin, even though not one of the many ugly terms the boys had applied to Mindy on the tape involved any mention of her race.
 
The substantial questions presented by the young men’s appeal have allowed them to remain free on bond, and all four, now in their midtwenties, are beside the journalists in the front spectators’ row. The fate of each is in the hands of Jordan Sapperstein, in a cream suit with heavy black pinstripes, who is gesticulating often and using his crinkled gray pageboy for emphasis. Judge Mason has never fully decoded whatever it is a human being is saying about himself when...