by Paul Heald
“Not me,” Arthur replied. “I don’t know why you want all this employment stuff. I didn’t even take labor law.”
“That’s because you like trees more than people.”
“You’re right.” He popped open the folder. “If Karl Gottlieb were a small shrub, for example, the world would be a much better place.”
Melanie picked up the file and tried to decide whether she wanted to argue for the case. After reading the factual summary, she looked up at her co-clerks. Despite their different styles, they had become very comfortable with each other during the weeks before her arrival. They were both very smart, but Phil was a sweetie, and certainly the more cautious and deliberate of the two. Arthur was just as bright and sometimes pretty funny, but he was immature and his sense of sarcasm could cut too close to the bone. They both loved to argue, but their disagreements reflected a difference in approach rather than a difference in substance. And they shared another trait in common: self-confidence.
She was confident too but, being a southern girl, had always thought there was something vaguely unseemly about letting anyone see it. She had never liked the contestants who preened themselves and strutted about like peacocks in the pageant changing room. And law school was no different—even there she had found her classmates parading their IQs like her former rivals used to flaunt their boobs. In both venues, she had managed to emerge victorious without modifying the deferential demeanor that was her secret weapon. But sometime, she admitted, it might be interesting to show the judges the fire inside.
Even her parents were clueless about her drive and ambition. How did they think she gotten so far in life anyway? The power of sweetness? To be fair, she had been playing a role for them since she was a child and had learned that performing could stop their arguments. At times, following her around the pageant circuit was all that had kept them together. But that embarrassing demon was almost exorcised. Finishing runner-up four years earlier had given her a wonderful out from the stupid charade. Then, she had proven herself at the most famous law school in the country and now she would prove herself in the chambers of the most famous judge in the South.
Her reverie was interrupted by Phil. “Arthur and I have been tabbing the cases we’re really interested in, and you should do the same. Everything is negotiable as long as we each end up with a third of ’em.”
“Didn’t the Judge say Arthur should take fewer because he’s working on the Gottlieb case?”
“Yeah,” Phil replied with a doubtful glance at his friend, “but he wants to the show the Judge that he can still handle a full load of regular cases too.”
She nodded and flipped through some files, browsing through the obligatory Issues Presented section of each of the briefs. She didn’t foresee too many arguments. Phil seemed to like the business and tax cases, while Arthur liked the environmental and civil rights stuff. She had no problem ceding that territory to them, especially since most of the unclaimed cases looked fairly interesting, but apart from some thoughtful pursing of her lips and calculated arching of her eyebrows, she withheld comment until she was halfway through the stack.
“I don’t think we’re going to have too many fights over these cases,” she drawled sweetly, “but I’m wondering whether there’s anything a little juicier that I haven’t seen yet?”
“Well, there’s some commercial stuff,” offered Phil. “You could have Resolution Trust Corp. v. Third Bank & Trust of Macon if you’re into the fiduciary duties of bank directors.” Despite his plans to work for the ACLU, he seemed oddly interested in commercial law.
“No thanks, Phillip. I was thinking more in terms of some criminal cases. I really liked the criminal work I did at the Harvard clinic my third year.”
“Prosecutorial or defense clinic?” Arthur asked. Many law schools offered students not only the possibility of representing indigent criminal defendants but also—for those students who were tougher on crime—the opportunity to help the state prosecute them instead.
“Neither,” she replied, “I worked on a prisoner legal counseling project, helping prisoners write habeas corpus petitions and file complaints about civil rights violations.”
Arthur gave her a smirky grin and pushed a file across the table to her. She took it cautiously and began to read. The case involved a repeat check bouncer named John Moyes who had been sentenced to eighteen months in prison. During Moyes’s routine intake physical, the prison doctor, who spent two half days a week seeing to the needs of 450 inmates, decided to suspend Moyes’s daily prescription of Haldol, a powerful antipsychotic drug that he had been taking for several years to control his self-destructive impulses. The doctor had not seen Moyes before, nor did he make a complete inquiry into his medical history. Several days after his last dose of Haldol, Moyes took a cafeteria fork and removed his right eye during lunch.
To make matters worse, the doctor had not immediately ordered Moyes back on the drug after being notified at his office what his patient had done. Before the doctor got back to the prison the following day, Moyes had managed to break off a bit of spring from under his bed and crudely sawn off both of his testicles. The prisoner, through his legal guardian, was suing the prison and the State of Alabama for violating his civil rights.
“Okay,” she said carefully, “he’s not suing the doc because he’s probably immune under state law. That’s why it’s a constitutional claim, so the issue is not whether the doctor made a mistake, but whether he should have known that his screwup constituted a violation of an established constitutional right, like maybe due process … or cruel and unusual punishment.”
“Right,” Arthur confirmed. “And if the right wasn’t clearly established at the time of the incident,” he added, assuming she had missed the most salient issue, “then everyone gets off. So, I’ve been looking for cases involving doctors and detainees decided before the date of the accident.”
“What have you found?”
“Nothing, I just started.”
She returned to the brief, a beatific study in concentration, eyes moving rapidly back and forth, left hand unconsciously curling and uncurling a lock of her hair.
“You can have it if you want,” Arthur finally said. “The whole thing kind of grosses me out.” In spite of the offer, she got the impression that he did not really consider the case appropriate for her. He added quickly, “Besides you obviously know more about this area of the law than I do.”
“Uh-huh.” Was he patronizing her? “I’ll take it, Arthur.”
He shrugged and pulled another file from the pile, but not before he shot a cryptic glance at Phil. What the fuck was that about? Maybe nothing. Probably nothing. And it didn’t matter, because under no circumstances was she going to let him get to her.
VI.
EXCITABLE BOY
With Suzanne and Maria away at her friend Judy’s for dinner, Arthur tucked himself into the corner of the living room sofa and read through the Judge’s book on Karl Gottlieb. He got up only once, a bathroom break prompted by a cat’s sudden scamper across the porch floor. Gottlieb was locked up miles away, but Arthur felt like he was gazing surreptitiously through the bars of his cell, and when a pair of car headlights passed the house just a little too slowly, it felt like the condemned man was looking back. The ancient décor of the living room did little to calm his nerves. The furniture dated from the same general era when Gottlieb was a kid, and whatever warped him may have happened in a room much like the one in which Arthur sat. He almost invited Phil for a nightcap at the Wild Boar to clear his head, but instead he warmed a couple of Pop-Tarts in the toaster oven, poured a glass of milk, and studied the sports page under the bright fluorescent light of the kitchen. Warm food dispelled Gottlieb’s specter, but he was still relieved when the front door banged open and Maria ran down the hall.
Early the next morning, Suzanne waved something at him as he left for work. It was the Gottlieb book. “You need to be careful what you leave in the living room.” Her expression was a
mixture of concern and irritation. “Maria can’t read, but some of the pictures in here might scare her, and I don’t want to have to explain to her what this is about.”
“I’m so sorry,” he cried, remembering the black and white photos of broken women lying in shallow graves. “It won’t happen again!” He pointed to the paperback as if to disown it. “I really never read this kind of crap.”
“Then why are you reading it now?”
“For work, sort of.”
“For work … then don’t tell me.” She made to pitch the book to him, but then took a closer look at it as she leaned her shoulder against the smooth plaster wall of the hallway. Even without makeup, her face was a beguiling study in concentrated thought.
“Oh, wait,” she said, “don’t tell me the Judge pulled Gottlieb’s case again? I read in the paper this morning that the execution’s scheduled for Friday.”
“You didn’t hear it from me.”
“And is this relevant to the case?” She gestured with the book again. Her eyes shone and her tone was measured, absent was the vibe of the harried mother herding Maria around the house. He resisted a wild impulse to kiss her.
“It shouldn’t be relevant, really,” he explained. “According to the Judge, we work on these cases at a distance. No relatives of the victims or Gottlieb will ever appear. No last-minute witnesses. No hearing either. Everything happens in a flurry of memos hundreds of miles away from Gottlieb’s prison cell.” He leaned against the wall on the other side of the hall and sighed. “Not like a mystery novel. His guilt isn’t in doubt, nor his ultimate fate, really. I can see why the Judge thinks this is an easy case.”
“Easy?” She looked doubtful and gestured again with the book. “This was a bestseller, wasn’t it?”
“Yeah.” He nodded. “People are fascinated by Gottlieb. Or maybe they just want to be horrified or maybe they want to judge him.” He shrugged and admitted his own prurient interest. “I read it because Gottlieb’s always intrigued me. His background doesn’t give any clues why he killed so many people. He didn’t torture animals or set fires; he wasn’t a bed-wetter; he had a college degree; he wasn’t impotent … He could have normal romantic relationships with women.”
“You’re not going to invite him over for dinner, are you?” She cracked a smile and handed him the book.
“Hardly!” He stuck it in his back pocket and followed her into the kitchen where she poured both of them glasses of orange juice.
“You know the only black mark on his record was a charge of peeping into a neighbor’s bedroom late one night,” Arthur continued. “Nobody thought he was a great guy, but his friends and parents were really shocked to find out he was a murderer. Even after seeing tons of evidence, his mother and father still deny that he was responsible for a single killing, much less thirty.”
“That’s no surprise, I suppose.”
He thought that she was going to say more, but she sat down and looked hard at him. It was disconcerting to be so firmly the center of her attention.
“I don’t know.” He shrugged. “He’s always struck me as the embodiment of pure evil. You’d think someone would have noticed early on.”
“And now you get to judge him.”
“Well … the Judge does.”
“But you’re the arm of the Judge. You’ll be doing the research and writing the memo.” She sipped her juice and looked at him like he was going to work that morning at a nuclear plant and might come home covered in radiation.
* * *
When Arthur got to chambers, he went straight to Phil’s office. With the addition of some personal knickknacks, a couple of oil paintings appropriated from the photocopy room, a small carpet, and some deft positioning of his furniture, he had given his work space the feel of a Victorian drawing room. Arthur found his friend leaning back in his chair, legs perched on the corner of his desk. He looked more like a muscular blond surfer dude than a highly educated law clerk, an image that was dispelled as soon as he opened his mouth and his rich baritone rolled out.
“Hey, Arthur,”—he laid down the folder that he had been reading—“you’re late … I’ve been here since six.” This was his habit. He claimed that years of waking up for early-morning swim practice in high school and college had never worn off.
“God,” Arthur sighed, “it’s a sick world where 7:15 in the morning is late.” He pulled the Gottlieb book from his briefcase. “I didn’t have a good night’s sleep.” He slid the book across the desk. “Bad dreams.”
Phil glanced at the paperback but did not pick it up. “Well, no wonder. What are you reading that for?” He paused for a moment, and then his brow furrowed. “More to the point—why are you reading it at all? You’re working on the Gottlieb case. Aren’t you afraid that you’ll prejudice the outcome?”
“Is there really any doubt about the outcome?”
“That’s not the point.” He slid his feet off the desk and rocked slightly in his chair. “Isn’t Gottlieb entitled to have a clerk that hasn’t filled his head with pulp fiction? And who says he’s going to fry anyway? The Judge bought him two more years last time he came up.”
“The Judge is the one who gave me the book.”
Phil opened his mouth as if to respond, but then picked up a paper clip from his desk, straightened it out, and began poking the top of his wooden desk. “Why would he do that?” He looked up. “It doesn’t make any sense.”
“He thinks that Gottlieb is a goner … Maybe he’s trying to make me feel better for writing memo that finds no stay of execution should issue.” He shrugged. “It’s kinda hard to read the book and feel sorry for the guy.”
“How can you not feel sorry for someone who’s so fucked up?”
“But that’s the thing about Gottlieb. He’s not just a victim passing the shit on down the line.” He tapped the book. “His mom had a little postpartum depression and couldn’t breast feed him, and it sounds like she was a little frustrated career-wise, but there’s no history of family abuse.”
“What about his father?”
“Kind of a cipher. He was a low-level bookkeeper who came home every night, poured himself a martini, and watched television. He might have been guilty of a little benign neglect. You know, lousy attendance at Little League games, stuff like that, but nothing remotely close to shocking.”
“Not quite the serial killer recipe.”
“Nope.” Arthur saw his friend warming up to the subject despite his declared disgust with everything having to do with death cases. Everyone was fascinated by Karl Gottlieb. “Apparently he had a rough move just before he started middle school, and once he got caught as a peeping tom, but before he started killing women in graduate school, everything looked pretty normal.”
“I was a little kid when it started,” Phil remembered with a shake of his head. “Some farmer plowing his cornfield outside of Madison rakes up four bodies and suddenly there’s a serial killer on the loose.”
“Knocking women on the back of the head with a baseball bat, raping and sodomizing them after death.”
“And it just kept happening.”
“And the media probably helped him get away with it. The news kept describing a monster, but he looked and acted like some well-to-do prepster. Even after the panic, he could still chat up a girl in the coffee shop, offer to drive her home, and kill her instead.” Arthur looked for a sign that his friend understood that this was a special case, that no one could really have a problem with this execution.
“This doesn’t sound like an easy case to me, Arthur.”
“What are you talking about? You mean this retroactive sanity hearing business is going to get complicated?”
“No, I mean that if anybody deserves to die, then it’s Gottlieb. You see, if you had some poor likeable schmuck, it’d be easy to write a memo granting him a stay.” He flicked the paper clip in the wastebasket. “It’s going to be a lot harder to write that memo for Gottlieb.”
“Goddamnit, Phil,”
he sputtered, “between you and the Judge, this memo’s already written! He’s ready to fry Gottlieb, and you want to save him.”
“I don’t want to save him.” Phil got out of his chair and opened up the blinds behind his desk, revealing the green parade of trees along Oak Street that led to Suzanne’s house. A car blasting its stereo shot past the courthouse. “I want to save you.”
Arthur studied him closely, hoping that his friend was not about to get all evangelical. “You did not just say that.”
“Look,” Phil spoke, picking his words carefully, “Gottlieb’s crime, his sin, his … his whatever, was killing people, right? I don’t want to see you join that club. I know that in this case the state is going to say it’s all right, it’s legal, hell, it may even be legally compelled, but you don’t have to participate. You don’t have to join the Gottlieb club.”
Arthur had heard all of the arguments against capital punishment, and he was sympathetic to many of them, but this was over the top. “First of all, I won’t be killing Gottlieb; I’ll be writing a memo to a federal judge. That’s not quite the same as whacking someone on the head. Second, why don’t we let the law dictate the memo? I don’t have any agenda except to research the question I’m presented with. I’m just going to report the law to the Judge.”
“I don’t think it’s that easy, Arthur.” He sat down again as he spoke. “We just can’t say that the only person who kills Gottlieb is a discretionless prison guard who pulls the switch on the Georgia electric chair. He’ll get a call from the prison warden telling him to do it, and the warden will have gotten a call from the governor’s office saying the same. Several courts, including ours, will have the chance to cut the governor off. And we have absolute power over what the governor can do. If your memo says no execution, then there won’t be an execution.” He offered Arthur a compassionate grimace. “You are much more on the line than the poor schmuck who pulls the switch. There’s really nothing he can do to stop anything.”
