Decision (53 page)

Chapter 6

Well,” Wally Flyte said as Clem Wallenberg, the last to appear, came from the Robing Room to join them in the Conference Room where they always formed their little procession to the chamber, “lead the lambs to slaughter, Dunc!”

But it was a feeble joke and he knew it, and after a moment when all any of them could muster was a rather feeble smile in response, he gave it up and spoke more somberly. “I never thought I’d see the day when the Court bowed openly to public pressure.”

“Nor I,” Hughie Demsted said. “But here it is.”

“I think,” Mary-Hannah said, “that I could take everything else but the paint on the building. It makes me feel—violated.”

“Yes,” Ray Ullstein agreed, “that’s the word. I think that bothers me most, too.”

“And me,” the Chief said; and suddenly an emotional note he obviously hadn’t expected overtook him. “I
like
this place.” He cleared his throat vigorously as Rupert Hemmelsford nodded.

“I’m glad to see we have extra police protection.”

“We’ve got them all,” The Elph said. “Our own, the District, and the President called a little while ago and said he’d assign a couple of Army units if we needed them. I told him I didn’t think we needed to be quite that dramatic yet. Although”—he sighed—“it could happen.”

“It wouldn’t have happened,” Clement Wallenberg growled, “if our two junior brethren had seen fit to do their duty and dispose of this case before the Court became a public spectacle.”

“I did my duty!” Moss snapped. “I denied that—individual’s stay. What more could
I
do?”

“Well,” Justice Wallenberg conceded grudgingly, “Tay didn’t. He just passed the buck to all of us. It only delayed what we’re going to do.”

“And that’s what, Clem?” Hughie Demsted inquired dryly.

“Remand it to South Carolina for further trial,” Justice Wallenberg said defiantly.

“I don’t know about that,” Justice Hemmelsford said, and Justice Wallenberg snorted.

“You wouldn’t! If there’s any reactionary, conservative way to approach things—”

“Oh, crap!” Rupert Hemmelsford exclaimed, voice rising angrily. “Stop giving me that old standard bullshit, Clem, if you don’t mind. I’ve had it up to here with your pious posturings.”

“‘Pious posturings’?” Clem Wallenberg cried, while behind his back Mary-Hannah could not resist a wink at Hughie Demsted, who winked back. “‘
Pious posturings’?
Why, you two-bit reactionary bastard, I’ll—”

“You won’t do anything,” the Chief Justice interrupted in a voice that commanded silence, “except shake hands with everybody like we always do, and get on into that courtroom and do the job you’re here for. You’re not such a bad Justice, Clem, if you’ll just stop play-acting and get on with it.”

At this unexpected attack from his flank, Justice Wallenberg was temporarily speechless. His face turned red, he looked as though he might pop. If the issue before them had not been so serious, if they could not hear the uneasy murmur of ten thousand pressing voices outside affirming the fact, Justice Flyte or someone might have made a joke and started a laugh to break the tension. As it was, no one seemed to have the heart. And presently Clem “decompressed,” as Mary-Hannah put it to Tay later, without making any rejoinder, other than a fearful scowl.

For several moments no one else said anything either. Then Ray Ullstein spoke in his usual reasoned way.

“I was wondering if perhaps we shouldn’t extend the usual half hour for hearing arguments to a longer period for this case? It’s of such interest that I think it might be wise.”

“That’s my inclination if the rest of you agree,” The Elph said. “I think it might be well to grant an hour at least, maybe even two or three. It’s not a simple case, God knows. We want to give both sides plenty of time. Plus the fact that we have a couple of
amicus curiae
briefs just filed this morning.”

They all looked surprised.

“Really?” Ray Ullstein asked. “From whom?”

“The American Civil Liberties Union, for one—”

“Naturally,” Justice Hemmelsford remarked.

“—and a group known as
CBS et al.”

“Really,”
May McIntosh said. “How interesting.”

“Very,” the Chief agreed.

“Probably just as well we’re meeting right away,” Rupert Hemmelsford observed. “Better get it over with, I think.”

“Yes,” the Chief said. “I’m glad you all talked me into it last night. I had some idea that extra time would calm things down out there”—he gestured toward the window, through which came the restless sounds of the crowd—“but very likely it wouldn’t. Our friend Stinnet really has them stirred up.”

Solemnly then, mutual annoyance momentarily forgotten, they turned to one another and shook hands around the circle, a custom started by Chief Justice Melville Fuller in the late nineteenth century, faithfully observed ever since at the start of all sessions. It was generally interpreted to mean, “We may have our differences, but we are all servants of the law.”

Then the bell rang promptly at ten and they moved forward through the red velvet curtains in their stately little parade: the Chief in the center, flanked by Wally Flyte on his right, Clem Wallenberg on his left, the others following two by two, taking their seats according to seniority on each side of the central group. The Marshal cried out his customary “Oyez! Oyez!” and admonished all persons having business before the Honorable, the Supreme Court of the United States to draw near and give their attention.

“God save the United States and this Honorable Court!” he concluded, his plea noticeably more fervent than usual. Faces impassive, the Justices took their seats. Looking deeply impressive and immensely powerful, outwardly at one in the majesty of the law, they stared down upon a nervous Debbie, a jaunty but secretly nervous Regard, the two lawyers who represented the American Civil Liberties Union and
CBS et al.
From outside came the distant murmur of the restless crowd.

Debbie, as lawyer for petitioner, spoke first. She was brought to the heart of her argument when Rupert Hemmelsford pointed out that in spite of her abstention from jury selection Regard had scrupulously chosen six jurors opposed to the death penalty “who still voted unanimously when all the evidence was in to sentence your client to death. Shouldn’t that tell us something?”

She looked taken aback for a moment but rallied.

“That goes exactly to the heart of petitioner’s challenge to South Carolina, your honor. What it tells us is that the jury was so overwhelmed by the prejudicial emotion generated statewide and nationwide by the organization of opposing counsel, the organization known as Justice NOW! that
it did not matter
what the former perceptions and beliefs of jurors were. They were overwhelmed into voting as they did by the sheer tide of emotion generated by opposing counsel and his organization—emotion which at this moment”—she paused and gestured dramatically toward the windows, beyond which the restless murmur of the crowd could be distantly heard—“still tries to warp, influence and determine the judgment on this case—which at this moment challenges even you on this highest Court, your honors.

“Thus do the judgments rendered in South Carolina, and the actions of this organization both there and here at this very moment, fall directly athwart the position of this Court as set forth in
Gardner
v.
Florida,
430 U.S. 349, 357‒358, as stated by Justice Stevens for the plurality:

“‘It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.’

“Caprice or emotion, I submit to your honors, are what have informed this case from beginning to end. Caprice or emotion are what dominated the state of South Carolina. They are what presently dominate this nation. They are what stand outside your own walls, your honors. Listen to them and ask yourselves whether they should once again control the fate of this defendant!”

She paused, color heightened, face excited, breath coming fast, mien triumphant. For a moment there was silence. Then the Chief spoke in a dry voice, yet no more harsh, challenging or personal than Justices of the Supreme Court often are to lawyers who come before them.

“You are to be commended on dramatics, counsel. Now let us get back to the facts.”

Debbie flinched as though he had struck her; flushed deeply; but recovered, as lawyers before the Court must on such occasions, for they have no choice. The only consolation was her perception that they would probably be equally rough on Regard.

“Yes, your honor,” she said, voice trembling a little but managing. “Here we come to what is perhaps the most damning and distressing feature of all—caprice or emotion not only dominated trial and verdict but they then apparently came to dominate a judge who theretofore had been scrupulously fair, I believe, in his conduct of the trial. At the request of the attorney general of South Carolina and on order of Judge Williams, it is proposed that the death sentence, if it be done at all, be turned into a public circus, a great media event, a televised bloodletting so far beyond the bounds of decency, justice and reason as to make a mockery of the law and a mockery of every pretense to decency that America ever had.

“Cruel, unusual—and
monstrous.
That is what is proposed by South Carolina. This attempt makes a mockery of the entire trial and a mockery of American justice in entirety. The verdict of guilty rests only on circumstantial evidence. The death penalty is cruel and unusual punishment not justified in any way by the facts on the record, which are the only things this Court is legally bound to consult. The addition of a proposal for a televised public execution lowers it to the level of abysmal barbarity.

“Petitioner requests, therefore, that the verdicts of the courts below be reversed, that the sentence of death be thereby voided and that the proposal for a public, televised execution be condemned so roundly and inescapably by this Court that no jurisdiction in this nation will ever again dare even to suggest it.

“I thank your honors.”

She bowed, picked up her brief, and started to turn away. The Chief Justice stopped her with a lifted hand.

“Miss Donnelson,” he said, “you have more time. Did you wish to have the
amicus curiae
brief of the Civil Liberties Union argued before us?”

She glanced at her fellow lawyer, who shook his head and then stood up and came forward.

“If the Court please,” he said, “and with counsel’s concurrence, I do not think that will be necessary. She has made our points concerning the death penalty and the public television proposal and made them very well. As your honor knows, our brief has gone to the media along with hers, and we thank the Court. In the interests of saving your time, we will rest at that.”

“Thank you, counsel,” Duncan Elphinstone said. “The Court appreciates your consideration. The Court will hear counsel for the state.”

Regard came forward, not glancing at Debbie, placed his brief on the lectern, placed his hands on it and leaned forward earnestly.

“Your honors,” he said, “as I look around this courtroom”—and he did so, turning to survey the beautiful high-ceilinged room where so many historic cases had been argued and decisions handed down—“I see on the friezes above us the faces and figures of the great lawgivers of all time. I see such men as Menes, first pharaoh of Egypt, three and a half millennia before Christ. I see Hammurabi, almost two thousand years before Christ. I see Moses and Solomon—Solon and Confucius—Draco and Augustus. To my left”—and he turned, raising an arm to them reverently—“I see lawgivers of the Christian era, Napoleon and Blackstone, King John and Charlemagne, Muhammad and John Marshall. Above the main entrance”—and he continued to turn so that his back was now to the Court, whose members were glancing at one another with amused and skeptical looks—“I see the figures of Justice, Divine Inspiration, Wisdom and Truth, and flanking them on the one side, Security, Harmony, Peace, Charity, and the Defense of Virtue. While on the other”—his voice dropped dramatically—“I see the powers of Evil, Corruption, Slander, Deceit—and Despotic Power.”

He turned back to face them fully once again and as he did so, The Elph inquired mildly,

“Do you see the figure of Calvin Coolidge, counsel?

“Calvin Coolidge?” Regard asked blankly.

“Yes. He was noted for brevity.”

There was a guffaw from Wally Flyte, quickly suppressed but enough to break them all up. For several seconds there was not much decorum on the Supreme Bench as Regard, flushing to the roots of his hair, struggled desperately to recover his balance and his dignity. For a moment he obviously did not know whether to explode into anger or swallow his feelings and behave. Prudence and common sense made the decision and with a dignity that cost him much he bowed his head in deference.

“I stand corrected, your honor, and I apologize to the Court if I have violated some rule or spoken too elaborately for your honors’ taste.”

“Just try to stick a little more to the facts,” Duncan Elphinstone suggested. “We know all these gentlemen you mention better than you do: we have a vantage point several feet higher than yours and we see them almost every day of our lives. You come here in opposition to the plea for stay and review entered by Holgren.”

“I do, your honor,” Regard said. “I oppose it, and the state of South Carolina opposes it, with all the strength that is in us.”

“You and your mob also come here, I take it, to threaten the Supreme Court of the United States,” Clement Wallenberg grated out with a sharp hostility that took them all by surprise. Regard flushed again and this time responded in kind.

“Your honor may choose to use whatever nasty words he likes about the decent law-abiding citizens of this nation,” he snapped, “but their concept of the law is as valid as yours, I think. And perhaps more so.”

“I despise what you are trying to do to this country, Mr. Stinnet,” Justice Wallenberg said, “and I make no apologies whatsoever for saying so.”

“Nor do I apologize to your honor,” Regard said in an equally harsh tone, calculating, inaccurately, that his audience would be largely with him where their Brother Wallenberg was concerned, “for characterizing your approach to this matter as unfair and unjudicial. Now perhaps,” he added icily, “if I may be permitted to continue—”