Decision (52 page)

Chapter 5

“I don’t think you know what you really
do
think,” Moss had told him near the midnight of his own decision; and now as he sat in his chambers looking across his desk at Debbie and Regard, for the second time met in battle before a Justice of the Supreme Court, he wished he had more certain guidelines in his own mind to follow.

With little variation, they had repeated the arguments they had presented to Moss. This time Debbie expanded her emphasis on the “cruel and unusual” nature of the death penalty and the “cruel, unusual and monstrous character” of the proposed public execution and proposed television broadcast. Regard placed his stress upon the frightening increase in general crime, the need for public example as a deterrent, “the public’s right to know under the First Amendment,” and—a new argument—“the proven fact that television is a basic part of American life, that many polls and surveys have shown that the majority of Americans look to television to form their opinions and attitudes on matters of grave import to the nation, and that therefore the proposed televising of this event transcends the mere punishment of a convicted criminal and raises it to the status of a major public educative act, vital to the reaching of a national consensus on the necessity for controlling crime with promptness and finality.”

When they had finished he stood up and they perforce did the same.

“It is now almost noon,” he said. “If you wish to tell the media, who I suppose are waiting outside and will want to know, you can say that I will either have my opinion in this matter by six o’clock this evening, or, if I don’t make it by then, I will certainly have it by ten tomorrow morning. Thank you both.”

He held out his hand to Debbie, who gave it a quick, hard, almost embarrassed little handshake, and then to Regard, who lingered a bit more fulsomely but presently relinquished it and followed her out. He could hear a sudden stir in the hall as the media descended upon them but it quickly died away. Apparently he had been taken at his word and the reporters would not return until six.

He called the kitchen, ordered a sandwich and a glass of iced tea; consumed them rapidly; told his secretary to have the switchboard turn away all calls and gave her and his clerks the afternoon off; heard them leave; went out and locked the door to his chambers; came back and sat down at his desk.

And faced himself.

Nothing he had heard had changed his basic blind rage against the individual who had destroyed his daughter. On the other hand nothing had changed his basic concept of himself as a decent, compassionate, liberal servant of the law who must, if he possibly could, rise above such feelings. Moss had not been able to: human vengeance had overridden his duty to the law. Or so Tay thought, and so, to judge from the bitter reaction in editorials, news stories and commentaries, thought many of the media’s most prominent figures. He had argued with Moss that night, but although he expressed strong regret at what Moss intended to do, his old friend could sense his uncertainty. “You’re arguing with me just because you think you
ought
to be arguing with me,” was another thing Moss had said to him then. In the hours after midnight, when his mind was still churning their conversation, he had known that Moss was correct.

Now the burden had passed to him; and he knew that this was only the first stage of the testing he would have to go through before the Court reached its final decision. He was well aware, as Debbie had told Earle, that what he said in his opinion would have a major influence on his sister and brethren when they came to pass judgment. It would have a major influence on national opinion as well. He had suffered almost as much as Moss and was apparently destined to go on suffering with the same intensity, unrelieved by time’s passage.

If he disqualified himself, the Court would very probably vote 4‒4, South Carolina would be upheld and the death penalty-TV verdict would stand.

For this reason alone, if he was to remain true to his lifelong beliefs, he could not disqualify himself.

He was the only hope for balance.

But by the same token, if he remained on the case he could not abandon himself to vengeance or a heavy weight would be put upon the Court and there would be a drastic effect upon public opinion. If he refused to let himself be swayed by his emotions, the Court’s tasks would be somewhat easier and the effect upon public opinion more calming.

A verdict from him denying stay would only encourage Justice NOW! and inflame all the angry emotions it had coalesced in the hearts and minds of so many millions of his countrymen. If he granted stay, the organization would receive at least a substantial setback and there might be some reversal of the blind drive toward discriminate vengeance that was now sweeping the country…

It was easy to state, infinitely more difficult to adjudicate when you were the only one concerned and the burden rested, at least temporarily, on you and you alone. He too had his doubts about the circumstances of Earle Holgren’s arrest; he too had some questions about the conduct of the trial, even though he was convinced that Perlie Williams had leaned over backward to be fair to everyone. He still had his profound and instinctive misgivings about the death penalty, made more agonizing rather than reduced by his daughter’s tragedy. And the idea of public execution compounded by television was as repugnant to him as it was, he hoped, to most who considered themselves civilized.

So there were many grounds for granting the stay. Against it, in the last analysis, lay only his own human reactions, the anguish of a parent, the thought of Janie sleeping away her life, permanently and beyond recall, bereft of all the laughter, the gaiety, the sweet personality, the good heart, all the bright promise of a life that now would never be lived. It raised doubts so fundamental about the death penalty, and about “the law” as a concept that was supposed to rise above the honest reactions of decent people, that it shook his whole life and being to their foundations. Justice had always been an abstract before to him and, he suspected, to his colleagues as well. Never before had tragedy struck directly at the Court. Never before had the challenge passed through the bronze doors beneath EQUAL JUSTICE UNDER LAW and come squarely
to them.
Always before it had been at least at one remove, more often several.

In a sense they had always been spoiled. They had always had it easy. No issue ever really came home to them in the immediate human way this one did. No one ever said them nay, nothing ever really, deeply, fundamentally and beyond escaping, challenged them. Thanks to Earle Holgren, now it would. Between them and the hour of what would be a truly wrenching decision for them all stood only Tay Barbour, who had every reason in the world to give in to his vengeful emotions—except his concept of himself and the concept that those whose opinions he valued had of him.

He thought for a very long time; drew up several tentative opinions on his yellow legal pad; read them … re-read them … polished them here and there … tore them up.

Nothing seemed right, nothing seemed adequate to the case or to the mental and emotional turmoil he was going through. Finally, around 4 p.m., he reached a decision. Some, he supposed, would call it cowardly, even though it followed recent Court custom that by now was virtually automatic. He was not happy with it himself. It moved things forward but it gave no guidance. It only put off the day of reckoning and did nothing to help solve the law’s dilemma and that of the nine who were its ultimate guardians. It would be called—and he supposed it would be—a cop-out.

But he could not force himself, try as he might, to do other.

He wrote swiftly, called the printer and told him to rush it out immediately. At 6 p.m. it reached the media.

SUPREME COURT OF THE UNITED STATES

Justice Barbour for the Court.

This application for stay of execution and review by the full Court comes here for the second time, having been rejected by Justice Pomeroy.

Arguments were presented by counsel for applicant and counsel for the State of South Carolina. The arguments were largely repetitions of arguments heretofore summarized in Justice Pomeroy’s opinion. Little can be gained by reviewing them. The matter obviously is of sufficient importance not only to applicant but to the country as a whole to warrant further hearing.

Accordingly the case is referred to the Court for review and stay of execution for thirty days is

Granted.

He was on his way out of the office when the phone rang. He hesitated, then picked it up.

“Justice,” the switchboard operator said, “I’m sorry to disobey your request that calls be held, but I have the Chief Justice on the line. And your wife is waiting.”

“Yes,” he said, sitting slowly down at his desk. “I’ll take them both. The Chief first.”

“Good boy!” Duncan Elphinstone said. “You did the right thing. You gave us time, which is what we need most, at the moment.”

“I suppose I should have stated my reasons and given some argument—”

“Not at all,” The Elph said reassuringly. “Why should you?”

“Moss did.”

“Moss gave in to his emotions and I can’t blame him. But I think he made a mistake in letting them show. He should have done what you did: there it is, and that’s that. Fortunately our rules permit another appeal and you could reverse him.”

“You think it’s best for us to consider it, then,” he inquired, sounding dubious. The Chief responded with a vigorous,

“Yes! Of course I do. I wish you could have given us more than thirty days, but that’s about all the country will stand for, I think.”

“Maybe it won’t even stand for that.”

“No,” the Chief agreed grimly. “Maybe it won’t. We’ll just have to see about that. I think every bit of delay helps to calm things down a bit.”

“I hope you’re right.”

“I hope so too,” Duncan Elphinstone said, sounding not at all sure.

Mary’s call was equally brief. It was not as pleasant.

“I just heard what you did.”

“Yes?” he said, bracing himself.

“I think it was a cowardly betrayal of your daughter, your responsibility as a Justice, and yourself. Why didn’t you say what you really feel about that monster?
Why didn’t you defend Janie?”

“In my way, Mary,” he said with a sigh, “I am. In my way.”

“Well,” she said, “it isn’t
my
way, and it isn’t the way of the millions and millions in this country who won’t be able to understand why you gave him a stay at all, let alone why you didn’t take the opportunity to describe him as what he is, that
monster.
He’s
destroyed your daughter,
and you won’t even call him murderer. At least Moss was honest. He said the crimes were heinous. I never admired him before but I do now.”

“I’m sorry you don’t admire me, but Moss has his concept of the law and of himself and I have mine. He’s doing what he thinks best and so am I.”

“You’ll probably even vote to reverse the death sentence,” she said bitterly. “That would fit your ‘concept of yourself,’ all right.”

“I don’t know what I’ll do,” he said for what seemed to be the hundredth time.

“You don’t know what you’ll do about anything,” she cried, “except be soft on the criminal who destroyed your daughter!”

“How is she today?” he inquired, trying to change the subject for a moment before terminating the conversation.

“You don’t deserve to know,” she said, and hung up.

He sat for several minutes in his silent office, chin on hand, staring unseeing into some distance he could not really discern or understand. At last he lifted the receiver and dialed a number.

“Hello,” she said.

“Can I come over?”

She hesitated.

“The kids are here.” Then she uttered a little laugh. “But they might as well get to know you. They’ll go to bed later.”

“Whatever,” he said. “Whatever. I just—I just want a little comfort. That’s all.”

“Yes, my dear,” she said quietly. “I know. Hurry.”

Another call from Columbia came north, put through after the warden checked with Regard and Regard said, “Sure, but bug it.” “You’re bugged,” the warden told the prisoner and the prisoner told him what he could do with it. But he was so enraged that he went ahead with the call anyway.

“So that’s your great liberal Justice!” he shouted when Debbie came on the line. “That’s your fucking compassionate humanitarian precious Taylor Barbour! Of all the lily-livered, turn-tail, half-assed excuses for a two-bit, cowardly, sidestepping—”

“Listen!” she yelled in return, shouting him momentarily into silence. “Listen, you crazy man! He gave you your stay, didn’t he? He’s given you your chance, hasn’t he? Why the hell can’t you ever settle for what you get and be thankful? He could have denied it. He could have let his emotions run away with him like Moss Pomeroy and sent you packing. But he didn’t, you ungrateful bastard! He was a decent enough man to
give you a chance.
Now
God damn you,
be thankful!”

(“My, my,” the warden said to his deputy as the tape spun on. “Gracious, such language.” “They deserve one another,” the deputy said. “Too bad they can’t both fry in hell.” “You’re a little rough on her,” the warden demurred mildly, “but
he’s
a bad,
bad
boy.”)