Decision (58 page)

Chapter 8

Again the steamy heat—the leaden sky—the threat of thunderstorm later—the picket line stretching all around the building—the metropolitan police and the Army on guard outside—the Court’s own security force alert and nervous inside. Very few were allowed to pass through the great bronze doors and the ground-floor entrance this day: regular staff, law clerks, media. All others were barred.

Around the Court, stretching out from the picket line on all sides to the adjacent streets, an enormous crowd shoved and jostled. Their unceasing gabble rose now and again to crescendo as slogans, exhortations and shouts, unintelligible but clearly menacing to the Court, burst out. Facing the pickets, backs to the building, rifles at rest but pointedly ready, a line of soldiers, sent up by the Pentagon at the President’s order, stood impassively sweating in the rising heat.

“Aren’t we overdoing it a bit?” Justice Flyte inquired of The Elph when they arrived in the Chiefs limousine shortly after 9 a.m. and were hurried in the garage entrance. A quick look around convinced him that they were not. All the makings of chaos were present. In a way the Court had not known for many decades, it was in the eye of the storm.

In the Robing Room a few moments later everyone was sober and grim: no jokes, no laughter, no old, accustomed ease. Even Wally was serious now. The traditional handshake held an extra fervor, a deep and almost desperate pressure, a feeling of “We’re all in this together”—a feeling that they just might not come out of it this time … although of course they knew they would.

They were the Court.

They had to.

It would be an unthinkable blow to America if they did not.

But it was a grim-faced eight men and a woman who stepped forward through the red velvet curtains when the Marshal cried his “Oyez! Oyez!” The chamber was full to overflowing. In every last inch of space members of the media from all over the world were crowded. The room had been scoured for bombs inch by inch for two solid hours. Everyone who entered had passed through a metal detector and been thoroughly searched. All precautions would seem to have been taken. But it was a strange time, in all lands: and one never knew.

“We are armored in the law,” the Chief had reminded, in a voice more serious than joking, when the ten o’clock bell rang and they began to move forward to their chairs. They told themselves this would be enough. But one never knew.

When all in the chamber were seated, the Justices stared out with an impassivity a little more set and determined than usual upon the restlessly stirring media. The Chief began to speak in a quiet, almost conversational tone.

“The public information officer informs me that there has been considerable disgruntlement among our friends of the media because on this occasion we have not published the opinions of the Court”—the plural was hastily jotted and underlined on several hundred notepads—“simultaneously with their delivery. Nor are we publishing the customary ‘syllabus,’ as it has come to be known in recent years, which is a headnote containing a summation of the case and opinions for the easy reference, understanding and convenience of the media.

“The custom of simultaneous publication has been abandoned on this occasion after consultation among all members of the Court. Although we are not agreed on everything about this case”—he smiled slightly and in his audience the Associated Press murmured to UPI, “Oh, come on! For Christ’s sake stop being cute and get on with it!”—“we were agreed that the utmost of discretion must be exercised to make sure that no advance intimation of our decision should reach the public. The reasons for this,” he said with a sudden sharp glance at Regard, sitting attentively in the front row, “are obvious in what you all passed through outside on your way in here.

“In this case, the vote stood four to four at the conclusion of conference. The deciding vote was cast, and the majority opinion—at his own request—will be delivered by”—he paused and the tension shot up a hundredfold—“Justice Barbour.”

There was an instant expulsion of pent-up breath, an excited stirring and whispering, “a quiet tumult,” as Ray Ullstein had once put it to his seatmate Rupert Hemmelsford on another tense Court occasion. Decorum held, but only just.

Within the heart of the junior member quiet tumult also prevailed. But though it cost him more than anyone but Cathy, possibly, would ever know, he forced his voice to its customary grave and measured level and began to read, looking up from time to time for emphasis, not seeing anything in particular when he did … just history, perhaps—and himself, caught in its endless ironic twistings.

He began in straight narrative fashion, having discovered from many perusals that there is no set pattern for opinions in the Court, style and manner of presentation being as diverse as the personalities of the Justices who deliver them. After reviewing the circumstances of Earle’s arrest, the trial, the verdict and the television proposal, he came to the nub of it:

“All of these complex issues might be addressed by the Court. The plurality has chosen to address itself to three only: whether petitioner’s constitutional rights were violated in the manner of his arrest; whether his trial was fairly conducted in view of substantial popular outcry for a verdict of guilty; and whether the death penalty was properly imposed according to the laws of the state of South Carolina in conformity with prior rulings of this Court.”

(“And no ruling on the merits of the death penalty itself?” the
New York Times
inquired blankly of no one in particular. “And whether it is proper to televise—or to ban television?”
TV Guide
murmured in similar puzzlement. An uneasy stirring began to transmit itself, by a sort of journalistic osmosis, along the close-packed benches of the media. “Sidestep!” the
New York Times
whispered scornfully. “Cop-out!” charged the
Los Angeles Times.
Ever-ready suspicion changed the mood instantly from excited anticipation to sarcastic put-down. Anticipating this, the tone of the Justice hardened.)

“There may be some who may wish the Court to address a multiplicity of issues, including the merits or demerits of the death penalty itself, or the propriety and moral defensibility of the proposal that the execution, if it be held, be televised. The plurality feels that these issues are secondary to the constitutional questions raised by the main burden of petitioner’s defense and the main thrust of his appeal.”

(“How can he
say
that?” Debbie demanded in whispered dismay of Harry Aboud who, burly and jovial and visible at last, had decided to come down from New York to lend, as he put it, moral support. He was sitting beside her a couple of spaces along the front row from Regard, who from time to time gave him a contemptuous glance.)

“In any event,” Tay went on, a certain dryness entering his voice, “the plurality has no doubt that these questions will be more than adequately discussed by the minority.

“I may say,” he interjected in a tone suddenly more personal and informal, looking down directly at the mass of attentive faces raised to his, “that it was my own decision to request the Chief Justice that I be permitted to deliver this opinion. I thought it fitting, since”—he hesitated for just a second but a sudden harshness he apparently could not control overrode it—“since I have an interest. I felt that if I could do anything by my direct participation to give greater weight to the majority, I wanted to do it. The Chief Justice concurred.

“Query One,” he resumed, his tone formal once again: “Were petitioner’s constitutional rights violated in the manner of his arrest?

“On this point the majority agrees with the argument of South Carolina that there was nothing calculated or deliberate about either denial of rights or the brutality which evidently did exist. The majority feels that both were almost inevitable outgrowths of the very inflamed and extreme emotions which petitioner himself had in fact created when he committed the crimes which, in the judgment of the jury and the two courts below, he did indeed commit.

“Furthermore, we accept the argument of South Carolina that within an hour or less of his apprehension petitioner was fully advised of his rights against self-incrimination and was given free and full access to the lawyer who still represents him. The issue then turns on whether a prisoner must be advised of his rights
at the very instant of his detention,
or whether advice
within a sufficient and reasonable time
adequately meets the protections of the Constitution.

“For too long, in the opinion of the plurality, justice in similar cases in this country has turned on the nicety of the situation—on, as it were, the tyranny of the clock. Apprehended criminals known to be guilty of equally heinous crimes have actually been freed on this technicality. The majority of the present Court believes it is time to end this extreme exaggeration of the law. It is time to base the law on common sense and reduce to some degree the dependence of justice upon whether advice was given at Minute One or Minute Forty-five,
as long as advice is adequately given within a time that reasonable men, using reasonable common sense, can reasonably regard as reasonable.

(“Christ!”
the
New York Times
whispered. “Does
that
set us back a hundred years! There goes
Miranda!”
“Damned reactionary bastards!” the
Boston Globe
spat out. “And Tay Barbour, of all people,” the Minneapolis
Tribune
remarked, more in sorrow than in anger. “Is
that
ever a betrayal of everything he’s always stood for!”)

“Therefore,” Tay said, aware of some stir in the media but expecting it and ignoring it, “the majority finds itself in agreement with South Carolina on this point and rejects the contention of petitioner that he was subject to undue
and damaging
delay in advising him of his rights. The delay was human and excusable and no undue or uncorrectable damage, in our opinion, was done.”

He paused and took a drink of water while Clem Wallenberg glowered down the bench at Ray Ullstein and shook his head in obvious and exaggerated dismay. Justice Ullstein, while not so dramatic about it, also looked unhappy and shook his head sadly in reply. Debbie, white-faced, her eyes never leaving Tay’s face, looked as though she had lost a lifetime idol.

“On the second point,” Tay resumed, “whether petitioner’s trial was fairly conducted in view of substantial popular outcry for a verdict of guilty, the plurality once again finds itself constrained to side with South Carolina.”

(A groan, quickly stifled but loud enough to guarantee the attention desired for it, came from somewhere in the media. Regard leaned forward deliberately and gave Harry Aboud and Debbie a triumphant look. Harry, momentarily losing his amicable air, glared back. Debbie, eyes unmoving on Tay, never even knew Regard had looked.)

“It is true that there was substantial popular outcry for a verdict of guilty. But charges of ‘popular outcry’ and ‘public pressure,’ although they too have been used in our courts to justify the overturning of verdicts and the freeing of convicted criminals, are not, in the opinion of the majority, sufficient in and of themselves to warrant overturning the verdict in this case.

“There is admittedly a vast and overwhelming impatience in the country with the way the criminal justice system presently performs. This impatience is already beginning to lead down dangerous pathways no member of this Court and no responsible citizen of whatever station in life can condone. Yet the impatience itself, we believe, has ample grounds for existence; and the fact of it must be taken into account in rendering justice.

“Otherwise popular attempts at cure may get so far out of hand as to become, in and of themselves, dangerous to the rights and freedom of all citizens who may, for whatever reason great or small, come afoul of the law.

“The plurality feels that while popular pressure was very evident during petitioner’s trial, and while it is very evident today, it did not unduly influence the verdict rendered. Again, the test of reasonableness applies. By any reasonable standards, the trial and verdict were fair; and popular pressures cannot be blamed for a trial well conducted and a verdict honestly and unanimously arrived at.”

He paused to take another sip of water. Below, Harry Aboud nudged Debbie and whispered, “So much for you, from your great hero. What do you think of him now?” But she only looked at him, face white and strained, and then looked back at Tay. He did not see her nor note the steadily growing mixture of desolation and bitter anger that was beginning to come into her dark, clever eyes.

“We come finally to the third issue, whether the death penalty was properly imposed according to the laws of South Carolina in conformity with prior rulings of this Court. Here the majority would like to quote from the banner case that is always quoted here whenever the death penalty comes under discussion, namely
Gardner
v.
Florida,
430 U.S. 349, 357‒358, opinion of Justice Stevens. Omitting citations available in text, its pertinent passage states:

“‘…death is a different kind of punishment from any other which may be imposed in this country… From the point of view of the defendant, it is different in both its severity and its finality. From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action. It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appears to be’—and here I give what seems to the majority a pertinent emphasis—‘
based on reason rather than caprice or emotion.’

“It is here that the plurality parts company with the State of South Carolina. South Carolina’s law governing the imposition of the death penalty was written to conform to decisions of this Court, and it does so conform. But while it is obvious that due deliberation and due process were had at every stage, and that ‘caprice’ can be completely ruled out, still the question of ‘emotion’ remains.

“We do not believe such unanimity for the death penalty, or the unanimity of the Supreme Court of South Carolina in upholding it, would have been present without the very great emotion generated initially by the crimes committed, and then by the carefully orchestrated action of the organization known as Justice NOW! and its leaders, to maintain, increase and further inflame that already great emotion.