by Paul Heald
“You left the file here last night,” she explained. “Look, this is Gottlieb’s second petition, right?”
“Yeah.”
“This is his second petition, right?”
“Yes.” He emphasized the answer to show he had heard the question right the first time. She stared at him and blinked, as if waiting for a sign that he comprehended her secret code.
“Arthur, what’s the foremost law of habeas corpus?”
“Oh, just spit it out, Melanie,” Phil broke in impatiently.
And then it dawned on Arthur. He had gotten so drawn into the substance of Gottlieb that he had forgotten the importance of procedure. “You cannot make arguments in your second petition that you could have made in your first petition.”
“Bingo.” Her expression suggested that she was explaining something simple to a slow child. “Without that rule, you could bring an endless stream of petitions, all alleging the same claims, delaying your execution indefinitely.”
Arthur nodded, feeling both stupid and relieved when he realized where she was going. “You’re right. I read his first petition yesterday—his lawyer didn’t raise any objection to the use of the Buckhead murders as an aggravating circumstance!”
“Exactly. Now, if you remember your federal jurisdiction class, there is one exception.” She waited for Arthur to fill in the blank.
“Uh … let’s see … if Gottlieb relies on a case that is a radical change in the law or that establishes a new fundamental right, then he is excused from not raising a claim in his first petition.” He looked at his watch. He had to talk to the Judge in thirty minutes, not much time to assess the law of aggravating circumstances at the time of Gottlieb’s first petition three years earlier. With his execution scheduled in less than twenty-four hours, there was no time to delay. As he jumped up to look for cases, he glanced at Melanie.
“Thanks!” He felt a bit foolish that she had shown him up so easily, but being bested by her was far better than screwing up something so simple in front of the Judge. The smile he got in return for his gratitude was a bit smug.
“Gottlieb’s relying on precedent that’s almost ten years old.” She pushed a light brown book toward him with a case marked by a square of yellow sticky paper.
“What?” Surely she had not done his research for him.
“The Eleventh Circuit decided a long time ago that a court can’t use a bad prior conviction as an aggravating circumstance.” He read the brief synopsis of the case note and saw that she was right. “Which means Gottlieb could have made this exact same argument about aggravation in the first petition, but his lawyer forgot.” She picked up her things, stood up, and walked toward the door. “You’re welcome,” she added with a quick turn before she headed down the corridor to her office.
Arthur glanced at Phil, who sat speechless at his end of the table; then he grabbed a piece of paper and started to write an addendum to his memo for the Judge. After a moment, he grumbled and looked up. “I don’t know whether to kiss her or throw something at her.”
“Forget about her,” Phil said abruptly. “What are you going to do about Gottlieb?”
“I’m going to show the Judge this case that Melanie found.”
“And now the retroactive sanity hearing issue is alive again. What about that argument?”
Arthur knew what his friend wanted to hear, that he too had principles. “I’ve found some relevant cases, I think.” After running into Melanie’s bulldozer, he was no longer as sure of himself. “I’ll lay out what they say for the Judge and let him decide.”
Phil frowned, saying nothing, but doing a poor job of hiding his disapproval.
“Look, I didn’t write the law,” Arthur said. He held up the book and gestured with it. “And I didn’t decide these cases.”
“There’s no law here apart from you and the Judge.”
Arthur shook his head slowly. “I don’t believe that.” He picked up the book and legal pad and left the room without looking back.
* * *
Contrary to public perception and thanks to modern technology, a prisoner’s second (or third or fourth) habeas petition moves through the system quite quickly. In the twenty-four hours after Gottlieb’s second petition was filed, it had already been denied by the state trial and appellate courts. A decision by the Georgia Supreme Court had arrived Wednesday at lunchtime. The federal district court acted next, finishing its review early Thursday morning. The Judge wanted to be ready to rule by later on Thursday, which would allow the US Supreme Court the rest of the day and the wee hours of Friday morning to decide whether or not to stay the execution and hear the case. Arthur knew that the Supreme Court heard arguments in only two or three death cases a year, so Gottlieb had no real chance if the Judge and the other two members of the panel did not grant him the stay he requested.
When Arthur walked into the Judge’s office, his boss did not bother to look up. The preliminary memo lay on his desk, and he was studying it through a pair of reading glasses perched on the end of his nose. When he finished the last page, he turned his gaze to his clerk. “Do you have anything to add to what you’ve got here?”
Arthur could not tell from his expression whether the Judge approved of the memo or not. “Yes, sir, the issue of improper aggravation turns out to be easier than I thought. Gottlieb’s lawyers should have raised it in the first petition three years ago. It’s procedurally barred now, even though it’s otherwise a winner.” He felt a little guilty for not mentioning Melanie’s role in his conclusion, but that regret faded when the Judge made it clear that he had already figured out the answer.
“Obviously.” He nodded impatiently. “And what about the retroactive sanity hearing?”
Arthur hesitated for a moment, acutely aware that Gottlieb’s life hung in the balance. Until that moment, he had not decided where the cases pushed him, but as he spoke, it seemed that the State of Georgia had the better of the argument and he gradually donned the robe of advocate.
“Even after going through the computer databases and all the West digests, I couldn’t find a single example of a state court holding a retroactive competency hearing, but courts have frequently held retroactive hearings of other kinds. In one Fifth Circuit case, a gang member was convicted of murder, but on appeal he successfully argued that the state should have granted his request to run ballistics tests on the alleged murder weapon. The state performed the test three years after the crime and proved that his pistol was the murder weapon after all. Court says no problem, and he stays in jail.
“Another case involved a rapist seeking to overturn his conviction because no tests were done to prove fluids found on the victim’s clothes were his. Instead of giving him a new trial, the Fourth Circuit ordered the test be conducted on evidence still in the state’s possession. The blood matched, and the case says that the retroactive correction of the error was permissible.
“Why shouldn’t Georgia be able to do the same with the issue of Gottlieb’s competency?” Arthur asked earnestly. “The State has collected a bunch of evidence of his mental state at the time of trial, including the transcript and the testimony of his lawyers, the trial judge, and even one of his cell mates. I think the analogy to ballistics testing or blood testing is a pretty good one.”
The Judge swiveled his chair sideways and stared at the curtains hiding the picture window. He smiled and nodded. “Nice job, Mr. Hughes. Your enthusiasm for this case is almost catching, but I’m afraid I don’t really buy the analogy.”
Arthur sat in stunned silence.
“Ballistics and DNA tests give yes or no answers. They can be performed years later with little or no loss of accuracy. Testing competency is a lot different—it’s hardly an exact science even at the time of trial. Once years have passed, how can we really be sure that Gottlieb was competent?”
“But I’ve read the transcripts,” Arthur insisted. “He’s perfectly coherent, sometimes even brilliant.”
“But you’ve read the b
ook too, son.”
But the book is irrelevant, Arthur thought. And giving me the book was probably a breach of judicial ethics.
“If he’s crazy,” the Judge continued, “then it’s a very subtle crazy, likely to show itself in ways other than ranting and raving in the courtroom. Who knows what was running through that twisted mind of his?”
He paused for a moment and sighed. “And I’ll tell you a secret. I don’t even think he killed the Macon girl. The details of the crime don’t fit his pattern at all, and the only witness who placed him anywhere near the victim couldn’t remember a thing until she was hypnotized after seeing all the news reports about the famous killer in custody. It would be pretty ironic to execute him for a crime that he didn’t commit.”
He was watching Arthur with a look that might have been pity or sadness. “You’ve done good work though, excellent work. You took this further than I thought you possibly could.”
Arthur shrugged. Shot down twice in one morning, he just wanted to get back to his office. The excitement and exhilaration of his first day on the job seemed long behind him. “All right, I’ll go and draft an order granting Gottlieb’s stay.”
The Judge frowned and turned back toward the curtains. “I don’t think that will be necessary.” For a long moment, the only sound in the office was the distant tapping of Ms. Stillwater’s keyboard and the hum of the air conditioner. “In theory, this court should issue a stay of execution and hold oral argument to give his attorney a chance to submit more detailed briefs on the issue, but that’s not going to change the end result. While Gottlieb waits for a decision in this case, the governor would probably sign a death warrant for the Buckhead murders.
“The bottom line is, your work won’t be wasted. Although your analogy to ballistics and blood testing isn’t perfect, it’s plenty for the other two judges on the panel who would never consider granting him a stay this time for any reason anyway! It’s a fact of life that a judge cannot remedy all the errors he sees, especially in high-profile murder cases. We gave Gottlieb a second bite at the apple last time and bought him about two years more than he deserved.”
Arthur watched wide-eyed, scarcely believing what he was hearing. At one moment Gottlieb had won a stay and in the next he was dead. Was this really the herioc figure who did battle with the governor of Georgia back in the sixties? If the Judge noticed his expression, he didn’t acknowledge it.
“Don’t be so shocked,” the Judge continued. “Look what’s happened to Justice Brennan. By becoming the Great Dissenter, by arguing every goddamn point in every goddamn case, he no longer has any credibility left for the cases that he might win.
“Go draft me a short order denying Gottlieb’s petition.”
Arthur went back to his office and wrote the order. He cited the Fifth and Fourth Circuit cases on retroactive testing of weapons and fluids. He wrote persuasively and realized the Judge was right about the other members of the panel. They would not question his reasoning. He reread the memo twice before making the long walk down the hall to Ms. Stillwater’s office. She took it from him without comment.
“The Judge is gone,” she said. “You can go on home if you want to.”
He took her advice, but walked through the college campus instead of going home, tracing a meandering path through the outskirts of the town. He arrived on Oak Street two hours later than usual, exhausted and relieved to see a bright light shining in the hallway of Suzanne’s house.
When he got to work the next day, he found a photocopy of a fax on his desk:
To: ALL ACTIVE JUDGES
Date: Friday, September 1
From: Mark Davis, Clerk of the Court
Subject: EXECUTION OF
KARL ROBERT GOTTLIEB
Attached for your information is the US Supreme Court order entered last night in the Karl Gottlieb case. The Eleventh Circuit panel entered an order denying CPC and a stay of execution yesterday, August 18, at 3:11 p.m.
Mr. Gottlieb was pronounced dead at 7:16 a.m. today.
X.
THE MORNING AFTER BLUES
Phil enjoyed almost everything about his new life in Georgia: the intimacy of the Judge’s chambers, his tiny but funky downtown apartment, the grandeur of the old Carnegie Public Library just down the street from his place, and his favorite graduation present, a second-hand Volkswagen Rabbit provided by his mom that let him explore every corner of the atmospheric town. The only thing he didn’t like was seeing a friend forced to decide whether habeas corpus petitioners should live or die.
After waiting all day for Arthur to emerge from his office, Phil walked down the short carpeted hall and knocked on his door. Hearing no response, he paused and listened for any sign of activity. He knew his friend was in there, so he rapped once again and then pushed the door halfway open.
Arthur sat with his back to the desk, looking out his window onto the courthouse square. His broad shoulders leaned hard into his chair, and his thick brown hair, uncut since he arrived in Clarkeston, bunched up against the top of his collar. Obviously thinking about the prior day’s events, he presented a noble and compelling sight. Phil’s heart went out to him.
“How about a pitcher at the Boar?” Phil asked, wondering if a change of venue might help slough the weight off his friend’s shoulders.
“How about three of them?” Arthur turned grimly and tossed a pen onto his desk.
“Done!” Phil smiled and looked at his watch. “The Judge left early today so we should be good to go in another fifteen minutes or so.”
Phil studied his friend, trying to determine the extent of the damage done by the Gottlieb case. Arthur looked tired, but maybe he would open up after a couple of beers. He didn’t want to pressure Arthur into talking about Gottlieb, but he could just be there for his friend.
“Can Suzanne come too?” Arthur asked. “She said she might be free after work.”
So much for an intimate tête-à-tête, Phil thought, but on the other hand, he was curious about Arthur’s mysterious landlady.
“That’s cool,” he replied. “I’ll ask Melanie too, but she’ll be working late as usual.”
“I hope so.” Arthur grimaced. “I don’t know what she’s got up her butt, but she really rubbed my nose in it yesterday.”
“Come on!” Phil grinned. “Think of it as a team-building exercise.”
“Yeah, like adding Yoko Ono to improve the Beatles.”
To Phil’s surprise, Melanie dropped what she was doing, and the three clerks were soon walking together across campus, talking shop and scuffling brittle Magnolia leaves along the sidewalk. The fall semester was two weeks old, but the air was warm and students were still dressed for summer. Phil got the comforting impression that fall would proceed with delicious slowness in Clarkeston.
Although it was Friday afternoon, they had no problem acquiring a window table with an unobstructed view back to the campus. Phil bought a pitcher, and Melanie filled Arthur in on the details of the death of Carolyn Bastaigne. She seemed more relaxed after her Thursday morning victory over Arthur, and Phil wondered whether she was the type of person who needed a bit of confrontation and a win to feel part of the gang.
“We were going to tell you about this yesterday,” Melanie said to Arthur as she scooted her chair closer to the table and took a small sip from her glass, “but you were busy with Gottlieb, so it didn’t seem important.”
No one would guess from her breezy vibe that she had pretty much cut off his balls the previous day.
“I’m really tempted to call the reporter who wrote the Bastaigne story,” she continued, “and ask him some questions—like why the Judge was never mentioned and who saw her last.”
“You should ask Suzanne what she knows,” Arthur replied. “She might’ve heard something. It must have been a pretty big deal at the time.”
“You’d never know it from reading the paper.”
As Melanie spoke, Suzanne arrived and took a chair between Arthur and Phil.
> “Hey,” Melanie acknowledged the newcomer with a wave, “what I want to know is: if she was as lazy as Ms. Stillwater says, then why was she working late and why she taking the stairs?”
Before anyone could answer her question, Arthur introduced Suzanne.
“Who are you talking about?” Suzanne asked.
In her department store jeans and plain button-down shirt, she was quite a contrast from the formal elegance of Melanie. Nevertheless, Suzanne was just as powerful a presence as her dark eyes flashed, and she pushed her thick black hair behind her right ear. She probably weighed thirty pounds more than the folks at Vogue would dictate, but Phil could see why Arthur had described her as beautiful.
Phil watched the two women exchange glances. They were mutually wary, he concluded, but he had no immediate theory as to why.
“Carolyn Bastaigne, one of the Judge’s clerks, died mysteriously a couple of years ago,” Melanie explained. “We got a crank call from her mother the other day. Have you ever heard of her?”
“Yeah, but I was in Alabama when it happened. I remember my mom calling and telling me that one of the Judge’s clerks had died.”
“How did your mom know who she worked for? The Judge’s name doesn’t show up in the newspaper article about the accident.”
Suzanne thought for a moment and took a sip of her beer. “Gossip, I suppose. But the lack of publicity isn’t too surprising. The Judge was hated for years, including by the Clarkeston Chronicle, but now it’s just the opposite. Unless there was a compelling reason to mention his name, I can see the paper deciding just to leave it out.”
“Do you remember anything else about what happened?” Melanie asked.
“No, but I remember that week pretty well. It was just after my father died. It was also the last time I saw the Judge at my house. He used to be around all the time when I was little, but then he sort of disappeared.”
“What do you mean the Judge disappeared?” Phil was fascinated by personal details about the Judge’s life. The old man wasn’t much for sharing, so all information needed to be gathered secondhand from clerk lore and Ms. Stillwater. Phil told himself that his father’s death when he was a boy had absolutely nothing to do with his obsessive interest in the Judge.
