Decision

by Allen Drury

  “Because you love me, Superstar,” he said sardonically. “It’s one of the great romances of the age. But unless you get me out of this place,” he added with a mock sigh, “I’m afraid we’re just never going to be able to do anything about it. And that would be a pity, wouldn’t it?”

  “You’re weird, you know that?” she said. “Really weird.”

  “Have a good flight, Superstar,” he said, turning away with a hearty yawn he made no attempt to conceal. “Have a good flight and give ’em hell.”

  Quite absurdly considering what she had just so confidently concluded, she felt a sharp pang of dismay at his apparent indifference. Stop that, she told herself furiously, stop that! But she didn’t seem to be able to; and realized with a sudden chilling certainty that he very probably knew it.

  Next morning at ten she was waiting at the bar when the Court convened, having paid the filing fee and filed with the Clerk the forty copies of petition required by Court rules. (Regard had been present also, filing his response immediately, though under Court rules he had thirty days in which to do it. They did not speak.) Her strategy was to seek recognition of the Court and announce the filing in person—thereby, she hoped, winning substantial initial publicity from those among the media disposed to be friendly to her client.

  Her excitement was intense, her heart thumping heavily, as she prepared to perform this irregular and likely to be censured act. But she was not to have the chance. Instead she was as taken aback as everyone when the Chief Justice, as soon as the Court was seated, looked down calmly upon an audience filled with the little flags and lapel shields of Justice NOW! and said quietly,

  “It is the consensus of the Court that the Court’s business for the term is sufficiently concluded so that an immediate adjournment is possible. Accordingly the Court stands adjourned until the fall term starting the first Monday in October.”

  There was a startled gasp from audience, media and Court officials but he gave it no time to grow. His gavel came down with a sharp, decisive thunk!, he rose, his sister and brethren rose, they turned without expression and disappeared. The red velvet curtains fell softly together and that was that.

  COURT QUITS IN FACE OF HOLGREN CASE! the headlines said. JUSTICES DUCK IMMEDIATE RULING ON TV DEATH! HIGH COURT SIDESTEPS “ROMAN HOLIDAY” ISSUE. POMEROY GETS FIRST CRACK AT DAUGHTER’S ALLEGED KILLER.

  “We cannot condemn too severely,” the New York Times’ editorial said, “the transparent way in which the Supreme Court of the United States has turned tail and run in the face of the major challenge to human decency and constitutional safeguards posed by the proposed ‘death by television’ of Earle Holgren, the alleged South Carolina bomber.

  “This craven flight ill becomes the heirs of Chief Justice John Marshall and other illustrious jurors who have preceded present members on the nation’s highest bench.”

  And so agreed the New York Times, the Washington Inquirer, the Los Angeles Times, the Boston Globe and others holding the same view.

  But from the headquarters of Justice NOW! in Columbia came a statement signed by Regard, Ted Phillips and forty of their fellow attorneys general, urging Moss to remain on the case and upholding the proposed televised execution of Earle Holgren as “a needed and salutary warning to criminals who in recent years have terrified America’s decent citizens and run rampant through all our cities and neighborhoods.”

  And a hastily taken Gallup poll stated that 63 percent of their countrymen felt that both Moss and Tay should remain on the case; and that 74 percent approved of the television proposal.

  In certain luxurious—and pragmatic—network offices in New York and Hollywood the conviction was growing, with an outward show of reluctance but an inward rapidity, that the First Amendment—“the people’s right to know”—and possibly a certain amount of monetary profit might, after all, go very logically together.

  The crowd had begun to gather almost as soon as news of the Court’s adjournment came over tube and radio. After lunch it grew rapidly in size. By 3 p.m. it surrounded the building on all sides, particularly heavy on the front steps, at the side entrance and at the garage entrance on Second Street. All the Justices but one had departed almost immediately, well aware that some sort of demonstration might occur. The extra District police assigned on Sunday were back on the job, and the Court police, usually called upon to do little more than chide tourists politely for trying to carry cameras into the chamber, stood nervous but determined at their posts. Law clerks and staffs had been dismissed for the day and had departed almost as soon as their bosses. The great bronze doors had been shut and locked in daytime for the first time in many years: no one, in fact, could remember when the last time had been. Reporters and television camera crews circulated through the crowd picking up random quotes and clips for the evening news. The signs and banners of Justice NOW! were everywhere in the suffocatingly hot afternoon. The sky was a lowering gray. One of the District’s frequent summer thunderstorms threatened to let fly at any moment.

  Inside the anteroom of the Marshal’s office, Regard and Debbie sat side by side on a leather sofa. Debbie had left the Court after adjournment to meet Harry Aboud for an hour’s consultation and then had eaten lunch with him at Maison Blanche. Pledges of support had been received from quite a few distinguished fellow guests. Regard had stayed at the Court at Moss’ invitation to eat lunch with him in his chambers, but despite earnest arguments and importuning had received no indication from a taciturn Justice what he intended to do, only that he expected to have an announcement by 4 p.m. This information had been given the media by the press office soon after lunch. Its publication had greatly increased the crowd. Now the two counsels had come together again, waiting. They still had not spoken.

  Outside Moss’ chambers a lone policeman stood guard. The corridor was empty, as was virtually the entire building. The library was closed, the Great Hall deserted, the press room abandoned. Everything waited on one man.

  Alone in his office he sat at his desk and doodled on a yellow legal pad, his mind going over and over conflicting arguments, back and forth, back and forth, until he finally told himself that he must do something or go mad.

  There were no rules binding on Justices, only on lawyers appearing before them. No one could prevent his sitting on the case and he was under no obligation or requirement to justify his ruling. A simple Granted or Denied would be entirely sufficient. But he felt he owed it to himself, to his wife and above all to Sarah to state his reasons. He was glad he had set himself a deadline, otherwise he felt he would never decide.

  Once he called Sue-Ann at the plantation, asked what he should do. She told him she didn’t know, but whatever it was, she would support him. “I love you,” he said. “I love you,” she said. The cute laughing ghost of their daughter came into both their minds. He hung up, more saddened and confused than ever.

  Finally at three-thirty he gave a deep sigh, tore up the doodles and tossed them in a wastebasket. Outside, tension was rising in the crowd; through his window he could hear its uneasy murmur. There would be critics waiting to pounce, whatever he did. They would charge him with easy decision, easily made, but he knew what he had been through. He began to write, with a hand that noticeably trembled.

  Finished, he called the Marshal and dictated. Two minutes later the Marshal called in his secretary and dictated also. Five minutes after that, Debbie and Regard were handed identical pieces of paper. The Marshal, moved by some hearkening-back to the past that made it seem a natural thing to do, walked firmly out through the Great Hall, had the guards open the bronze doors for him, and stepped out on the top step. Abruptly the crowd became silent. For a few seconds the only noise came from the slow, curious passage of traffic in the street.

  “Appeal to stay the verdict in Holgren v. South Carolina to permit review by the Supreme Court of the United States,” the Marshal read in a clear, steady voice, “has been received by Justice Pomeroy as Circuit Justice, Fourth Judicial Circuit. Afte
r deliberation Justice Pomeroy has decided not to disqualify himself. Arguments will be heard in chambers at ten a.m. tomorrow.”

  A great shout went up.

  Regard gave Debbie a triumphant look as they left the Marshal’s office.

  Debbie turned on her heel, expressionless, and walked away.

  ***

  Chapter 4

  Justice NOW! was back next morning: obedient to its leader’s demand, it was not relaxing. The crowd was smaller, the atmosphere less hectic, but the bronze doors were still closed to all but authorized entries and the extra police were still on duty all around the building. Outside Justice Pomeroy’s chambers a dozen officers now stood guard. Media only were allowed in the corridor, and they were held back thirty feet by temporary wooden barriers. Through them Debbie and Regard passed just before 10 a.m.

  “What’s going to happen, Regard?” Henrietta called—her office had sent her up, to her surprise and delight, to be “in at the kill,” as she put it to her colleagues.

  “Justice is goin’ to be upheld,” he said calmly. “What else could happen, here?”

  “What do you think, Miss Donnelson?” someone else inquired.

  “It’s just a rehearsal,” she said with studied indifference. “I don’t expect any surprises.”

  “You don’t expect a stay, then.”

  “I would be very much surprised.”

  Regard swung around.

  “Now, I’ll say,” he said, “that I am not so ready to dismiss a fine Justice as counsel is. I don’t know how Justice Pomeroy will rule—”

  “Have you asked him?” someone inquired. He shook his head in mock dismay.

  “Man, I’ve been on my knees!” Everybody laughed. “But he just isn’t talkin’, and he shouldn’t be. The one thing I do know is that whatever he decides will be decided on the law, because that’s the kind of Justice he is, Miss Donnelson to the contrary.”

  “I didn’t say anything to the contrary,” she retorted sharply. “I just said I don’t expect any surprises. And I don’t.”

  “The Justice is ready, counsels,” the public information officer said from the door in a disapproving tone. “Please come in so we can start the proceedings.”

  “Yes, sir,” Regard said smartly.

  “Certainly,” said Debbie.

  At three twenty-three exactly the door swung open and they reappeared. Both looked tired, both were uncommunicative.

  “How did it go?” the New York Times asked.

  “We presented the arguments,” Debbie said.

  “Do you feel you got a fair hearing?” CBS inquired.

  “He’s a good Justice,” Regard said.

  “He is that,” Debbie agreed, sounding faintly surprised.

  “Come along, gentlemen,” the public information officer urged as they rounded the corner, disappeared from view and went their separate ways. “The Justice won’t have anything for you for a while, so if you want to wait it might as well be in the press room.”

  “Can’t you give us any clue as to when it will be?”

  “I haven’t the slightest idea,” the public information officer said.

  “If we could only be sure of a time,” the AP said, rather wistfully.

  “Tell him Henny wants to know whether she has time to go to the hotel, take a nap, powder her nose and have a couple of drinks and a steak,” she suggested. The public information officer, with a sudden humanizing grin, turned back, knocked discreetly on the door and was admitted. In a moment he reappeared.

  “He says nothing until tomorrow morning. He hopes to have his printed decision for you by ten o’clock.”

  There was a general groan of protest but everyone quickly accepted it and took off. Outside, the crowd gradually dispersed, the extra police went home, the bronze doors were locked once more. Lights burned for a long time in Moss’ office, but no one, now, kept vigil. Shortly before midnight the lights went out and five minutes later he drove out of the garage and went swiftly off through the still-sweltering night streets to his empty house.

  He made one telephone call after he reached home. It lasted approximately ten minutes. Tay argued with him but could not claim to be surprised. And he did not argue very vehemently—so halfheartedly and uncertainly, in fact, that Moss finally dismissed him with an impatient “I don’t think you know what you really do think.” He could not deny it as Moss hung up and left him staring bleakly into the darkness above his lonely bed.

  SUPREME COURT OF THE UNITED STATES

  Justice Pomeroy for the Court.

  This application for stay and review comes here on appeal from certiorari to the Supreme Court of South Carolina. At issue are the deaths of Sarah Ann Pomeroy, a minor; a mature female, Janet Martinson; an infant boy, name unknown; and the destruction of certain property at the atomic energy plant at Pomeroy Station, South Carolina. The verdict against applicant imposed by jury in the Court of General Session of South Carolina and upheld on automatic appeal by the South Carolina Supreme Court is death by electrocution.

  Subsequently on petition of the attorney general of South Carolina, the presiding judge in the trial directed that said execution be held in Columbia, South Carolina, on the Fourth of July, in a public place and before television cameras designed to broadcast it to continental United States and presumably by satellite to other nations.

  Applicant’s principal arguments presented by his counsel were the nature of his arrest, in which his right to be informed immediately of his rights was violated; the nature of his trial, in which he claims certain errors of procedure to have been present; what he terms “the undue amount of public interest and pressure” exerted upon the trial and upon jurors by the activities of an organization known as Justice NOW!; the fact that the death penalty was imposed, thereby subjecting him to what he terms “cruel and unusual punishment” within the meaning of the Eighth Amendment to the Constitution; and the fact that what the media have chosen to designate “execution by television” has been added to the penalty, thereby subjecting him further to what he terms “cruel, unusual and monstrous” (italics added) punishment.

  The attorney general of South Carolina, appearing for the State, replied in essence that the circumstances of applicant’s arrest were “subject to error in the heat of the moment” and “were not deliberate, willful, malicious or pre-calculated” in their interference with his right to be informed of his rights; that procedural errors if any in applicant’s trial were “so inadvertent and minuscule as to be virtually nonexistent”; that this case drew enormous national and international attention from the very beginning by the nature of the crimes themselves, and that the effect of Justice NOW! if any, was subsequent, superfluous and ancillary to the publicity and pressure already generated by nationwide concern about crime in general and these crimes in particular; that South Carolina’s laws provide that the death penalty cannot be imposed except by unanimous vote of the jury so instructing the trial judge, and also provide that all death sentences be automatically appealed to the state Supreme Court for review; that such unanimous vote of jury was forthcoming, that said appeal was made, and that the state Supreme Court did thereupon unanimously uphold the verdict; and that making the execution public and providing for its broadcast by television simply verifies the public’s right to know under the First Amendment and does not thereby transform a carefully restricted application of the death penalty into a wide-open imposition of “cruel, unusual and monstrous” punishment as alleged, but rather makes of the penalty a warning and a needed cautionary event for all others who may wish to transgress similarly or in part the laws of the several states and of the United States.

  In ruling upon the application for stay of execution and review of the case by this Court, particular notice is taken of the heinous nature of the crimes committed; of the fact that the death sentence was imposed only after exhaustion of all procedures provided by the carefully structured laws of South Carolina; and that neither of the courts below saw fit to qu
estion the circumstances of applicant’s arrest, the conduct of his trial or the final judgment rendered thereon by a free and independent jury, upheld after due deliberation by the state’s highest court of review.

  Application for stay and review therefore is

  Denied.

  POMEROY ORDERS DEATH FOR DAUGHTER’S KILLER! REJECTS STAY, HIGH COURT REVIEW! HOLGREN EXPECTED TO SEEK “FRIENDLY” JUDGE FOR SECOND TRY. JUSTICE NOW! AND PRO-LAW MOBS CLASH AT COURT. WORLD PROTESTS FLARE.

  And sure enough, on the grand old principle of Embarrass America whenever you can, the mobs were in the streets of many major cities around the globe. Very few demonstrators had the slightest idea what it was all about but that made no difference. The defense of Earle Holgren was ready-made for protest and it did not matter much whether demonstrations occurred in nations with some vestiges of legal tradition or in nations where public executions were the rule. Mobs were organized and sent into the streets with a gleeful perception that this was one more easy weapon with which to belabor America.

  Similarly in his own country Earle Holgren’s case was suddenly the focus of actual physical violence (fortunately not yet fatal) between Justice NOW! and its critics, whom the media instantly dubbed “pro-law.” “But we are pro-law, God damn it!” Regard said furiously when he saw the first such reference. His protest was futile. War by semantics had many skilled practitioners and now they employed it once again with the practiced ease acquired in many successful battles.