by Allen Drury
One unfortunate aspect of all this, known only to his counsel, was its effect on the defendant: an ego already almost out of control became even more arrogant as the reports flooded in. Another aspect was its effect on television. As if by magic sympathetic network support for the “pro-law” group at home and the excessive attention paid to the demonstrators abroad suddenly dwindled away. As if some giant hand had come down and wiped it from the screen—as indeed several giant hands had done—the pro-Holgren movement virtually disappeared overnight from the tube.
The editors and managers of the printed media suddenly realized that they were alone in their extended coverage of what Regard steadfastly described to all his callers and interviewers as “a small over-publicized minority” favoring Earle’s case and opposing the proposed televising of his death.
Debbie flew back down to Columbia after the ruling and saw Earle that evening. She had not thought it possible for him to become more complacent, more arrogant, more certain of his own superiority and uniqueness. His attitude dispelled her illusions immediately. An almost psychotic—why “almost?” she asked herself suddenly, finally admitting what she knew to be true—euphoria seemed to surround him as he called her “Superstar” and crowed over his enemies.
“They’ve shot their wad,” he predicted scornfully, “Pomeroy’s ruling was the high-water mark. From now on there’s going to be a return to sanity. The Court isn’t going to stand for that kind of nonsense. The law is going to prevail. The TV bit puts the cap on it. Pomeroy has his gripe—”
“Just a dead daughter,” she remarked again, this time with a real bitterness, and he said, “Hey, whose side are you on?” in a tone that for a moment sounded genuinely aggrieved. Then he shrugged.
“He has his gripe,” he conceded lightly, “and everybody knows it. So he’s had his chance. So now we go to somebody else and get a sensible ruling—the full Court reconvenes and takes it up—and then we’ll get somewhere.”
“You really think the full Court will reverse your sentence?” she asked in a tone of such skepticism that he gave her a sudden angry glare. “You really are in a dream world!”
“Then why don’t you get out of it?” he demanded with sudden naked savagery. “Why don’t you just get the hell out, Miss Superstar, and stop bothering me? I’ll get Harry Aboud or somebody else. Or I’ll do it myself! I don’t need you!”
“You need something,” she said. “God knows what it is or who can give it to you, but you do need something, all right.”
“Go on!” he said. “Out!”
But she did not move, nor did her eyes flinch from his nor did she indicate in any way that she was both frighteningly angry and frighteningly panic-stricken at the thought that he might really banish her from his life. It must be like training a cobra, she thought with a wild, helpless wryness: it’s deadly but it must be fascinating to see if you can keep it from striking you. Particularly when, unlike the ones you see in sideshows, this one was neither sedated, milked of its poison, nor yet fully defanged.
“You aren’t going,” he remarked presently; and a pleased, knowing smile that she hated but knew she deserved spread across his face.
“Why, Superstar,” he said softly, “I believe you really do like my hairy bod, after all. Or is it my scintillating wit and great brain? It could be, you know! I’ve all three.”
“You haven’t got as much of anything as you think you have,” she said, finding it hard to breathe but forcing her voice to stay steady, even though his smile suddenly deepened and with a mocking gesture he made as if to start unzipping his fly to prove her wrong. “You’re one step—two steps, maybe—away from the electric chair, and you act as though you’re still on a picnic where everybody bows down and says how smart Earle Holgren is. Well, you’re not smart. You’re dumb. You’re just plain dumb!”
But at this, which she fully expected would goad him into some word or gesture that would at last solve her dilemma for her and force her away for good, he only smiled; and leaning back in his chair with his hands behind his head, his legs spread wide, crotch outthrust and an insolent grin on his face, he watched her steadily while a flush slowly mounted her face and she felt as though her legs would collapse beneath her. This man was a psychopath, a murderer, a strange lost being outside the bounds of normal living—but she was helpless. So she rationalized it as she had to, hating herself for it but using the only excuse that retained even the slightest hold on rationality: she was a lawyer, he was her client, and her duty still lay with him until all channels that might preserve his life had been exhausted.
She patted her severely drawn hair with a hand that trembled ever so slightly—he saw it, of course, he always saw everything—and managed to make her voice matter-of-fact.
“I think I should file the next appeal not later than tomorrow morning.”
His eyes suddenly narrowed, he dropped his insolent pose and tone and sat forward intently. “Who are you going to go to?”
“Taylor Barbour is the junior Justice, and according to Court custom—”
“According to Court custom, at this point you can choose anybody you damned please,” he snapped. “I want Wallenberg, he’s supposed to be the great liberal around there.”
“Taylor Barbour is the younger man,” she said, standing her ground. “He’s more flexible, he’s not so crotchety, his liberal reputation is even stronger—”
“And he has a daughter in a coma and he thinks I did it. What is it that makes him so perfect for my case?”
“Because he’s an honest man!” she snapped in a tone as angry as his. “And his daughter is in a coma! And if he rules in our favor in spite of that, then his words will carry a lot more weight with the country and with the Court itself, and we’ll have a lot better chance to win a reversal from them and get it remanded back to South Carolina for further hearing. That’s why I want to go to Taylor Barbour! Can your ego permit you to grasp any of that?”
“Oh, yes,” he said, “I can grasp that. But”—he looked at her sharply—“suppose we go to Taylor Barbour and he doesn’t rule in our favor. That exhausts it for us, doesn’t it?”
“He will,” she said flatly.
“How do you know?”
“Because he’s an honest man,” she repeated stubbornly, “and a genuine liberal, not a media poseur like Justice Wallenberg.”
He frowned.
“All I can say is, if we’re going to take this kind of gamble you’d better be God damned sure of what we’re doing.”
“I have faith in Taylor Barbour,” she said simply. “I believe in him.”
“Well, goody for you. But it’s my neck.”
“Goody for you,” she retorted. “At last you appear to be realizing it.”
He was silent for a few moments, only rousing to glare at the guard and give him his favorite gesture as the man looked in the peephole and then went on. Finally he spoke in a moody but grudgingly acquiescent tone.
“Okay—okay We’ll go with your precious Taylor Barbour. But I tell you, Superstar”—an ugly light came into his eyes that made her shiver involuntarily as she watched him staring grimly off into space—“if you’re wrong—if that bastard lets us down—”
“Yes?” she inquired, deliberately unimpressed and deliberately sarcastic, since that was her only way to reassert herself. “What will you do? Die gracefully?”
“I won’t die at all!” he said with a sudden furious anger. “Earle Holgren won’t die at all!”
“I wish I were as sure of that as you are.”
“You’d better be,” he told her in the same fierce way, and again she shivered. “You’d God damned well better be!”
“I’m flying back tomorrow morning,” she said, trying to ignore his tone and keep her own matter-of-fact. “I’ll file it with him by nightfall.”
“Good,” he said, staring at the floor, chewing on his knuckles, off in some inward world of his own. “Then we’ll see what that phony-liberal bastard is made of.�
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***
Chapter 5
“I don’t think you know what you really do think,” Moss had told him near the midnight of his own decision; and now as he sat in his chambers looking across his desk at Debbie and Regard, for the second time met in battle before a Justice of the Supreme Court, he wished he had more certain guidelines in his own mind to follow.
With little variation, they had repeated the arguments they had presented to Moss. This time Debbie expanded her emphasis on the “cruel and unusual” nature of the death penalty and the “cruel, unusual and monstrous character” of the proposed public execution and proposed television broadcast. Regard placed his stress upon the frightening increase in general crime, the need for public example as a deterrent, “the public’s right to know under the First Amendment,” and—a new argument—“the proven fact that television is a basic part of American life, that many polls and surveys have shown that the majority of Americans look to television to form their opinions and attitudes on matters of grave import to the nation, and that therefore the proposed televising of this event transcends the mere punishment of a convicted criminal and raises it to the status of a major public educative act, vital to the reaching of a national consensus on the necessity for controlling crime with promptness and finality.”
When they had finished he stood up and they perforce did the same.
“It is now almost noon,” he said. “If you wish to tell the media, who I suppose are waiting outside and will want to know, you can say that I will either have my opinion in this matter by six o’clock this evening, or, if I don’t make it by then, I will certainly have it by ten tomorrow morning. Thank you both.”
He held out his hand to Debbie, who gave it a quick, hard, almost embarrassed little handshake, and then to Regard, who lingered a bit more fulsomely but presently relinquished it and followed her out. He could hear a sudden stir in the hall as the media descended upon them but it quickly died away. Apparently he had been taken at his word and the reporters would not return until six.
He called the kitchen, ordered a sandwich and a glass of iced tea; consumed them rapidly; told his secretary to have the switchboard turn away all calls and gave her and his clerks the afternoon off; heard them leave; went out and locked the door to his chambers; came back and sat down at his desk.
And faced himself.
Nothing he had heard had changed his basic blind rage against the individual who had destroyed his daughter. On the other hand nothing had changed his basic concept of himself as a decent, compassionate, liberal servant of the law who must, if he possibly could, rise above such feelings. Moss had not been able to: human vengeance had overridden his duty to the law. Or so Tay thought, and so, to judge from the bitter reaction in editorials, news stories and commentaries, thought many of the media’s most prominent figures. He had argued with Moss that night, but although he expressed strong regret at what Moss intended to do, his old friend could sense his uncertainty. “You’re arguing with me just because you think you ought to be arguing with me,” was another thing Moss had said to him then. In the hours after midnight, when his mind was still churning their conversation, he had known that Moss was correct.
Now the burden had passed to him; and he knew that this was only the first stage of the testing he would have to go through before the Court reached its final decision. He was well aware, as Debbie had told Earle, that what he said in his opinion would have a major influence on his sister and brethren when they came to pass judgment. It would have a major influence on national opinion as well. He had suffered almost as much as Moss and was apparently destined to go on suffering with the same intensity, unrelieved by time’s passage.
If he disqualified himself, the Court would very probably vote 4‒4, South Carolina would be upheld and the death penalty-TV verdict would stand.
For this reason alone, if he was to remain true to his lifelong beliefs, he could not disqualify himself.
He was the only hope for balance.
But by the same token, if he remained on the case he could not abandon himself to vengeance or a heavy weight would be put upon the Court and there would be a drastic effect upon public opinion. If he refused to let himself be swayed by his emotions, the Court’s tasks would be somewhat easier and the effect upon public opinion more calming.
A verdict from him denying stay would only encourage Justice NOW! and inflame all the angry emotions it had coalesced in the hearts and minds of so many millions of his countrymen. If he granted stay, the organization would receive at least a substantial setback and there might be some reversal of the blind drive toward discriminate vengeance that was now sweeping the country…
It was easy to state, infinitely more difficult to adjudicate when you were the only one concerned and the burden rested, at least temporarily, on you and you alone. He too had his doubts about the circumstances of Earle Holgren’s arrest; he too had some questions about the conduct of the trial, even though he was convinced that Perlie Williams had leaned over backward to be fair to everyone. He still had his profound and instinctive misgivings about the death penalty, made more agonizing rather than reduced by his daughter’s tragedy. And the idea of public execution compounded by television was as repugnant to him as it was, he hoped, to most who considered themselves civilized.
So there were many grounds for granting the stay. Against it, in the last analysis, lay only his own human reactions, the anguish of a parent, the thought of Janie sleeping away her life, permanently and beyond recall, bereft of all the laughter, the gaiety, the sweet personality, the good heart, all the bright promise of a life that now would never be lived. It raised doubts so fundamental about the death penalty, and about “the law” as a concept that was supposed to rise above the honest reactions of decent people, that it shook his whole life and being to their foundations. Justice had always been an abstract before to him and, he suspected, to his colleagues as well. Never before had tragedy struck directly at the Court. Never before had the challenge passed through the bronze doors beneath EQUAL JUSTICE UNDER LAW and come squarely to them. Always before it had been at least at one remove, more often several.
In a sense they had always been spoiled. They had always had it easy. No issue ever really came home to them in the immediate human way this one did. No one ever said them nay, nothing ever really, deeply, fundamentally and beyond escaping, challenged them. Thanks to Earle Holgren, now it would. Between them and the hour of what would be a truly wrenching decision for them all stood only Tay Barbour, who had every reason in the world to give in to his vengeful emotions—except his concept of himself and the concept that those whose opinions he valued had of him.
He thought for a very long time; drew up several tentative opinions on his yellow legal pad; read them … re-read them … polished them here and there … tore them up.
Nothing seemed right, nothing seemed adequate to the case or to the mental and emotional turmoil he was going through. Finally, around 4 p.m., he reached a decision. Some, he supposed, would call it cowardly, even though it followed recent Court custom that by now was virtually automatic. He was not happy with it himself. It moved things forward but it gave no guidance. It only put off the day of reckoning and did nothing to help solve the law’s dilemma and that of the nine who were its ultimate guardians. It would be called—and he supposed it would be—a cop-out.
But he could not force himself, try as he might, to do other.
He wrote swiftly, called the printer and told him to rush it out immediately. At 6 p.m. it reached the media.
SUPREME COURT OF THE UNITED STATES
Justice Barbour for the Court.
This application for stay of execution and review by the full Court comes here for the second time, having been rejected by Justice Pomeroy.
Arguments were presented by counsel for applicant and counsel for the State of South Carolina. The arguments were largely repetitions of arguments heretofore summarized in Justice Pomeroy’s opinion. Li
ttle can be gained by reviewing them. The matter obviously is of sufficient importance not only to applicant but to the country as a whole to warrant further hearing.
Accordingly the case is referred to the Court for review and stay of execution for thirty days is
Granted.
He was on his way out of the office when the phone rang. He hesitated, then picked it up.
“Justice,” the switchboard operator said, “I’m sorry to disobey your request that calls be held, but I have the Chief Justice on the line. And your wife is waiting.”
“Yes,” he said, sitting slowly down at his desk. “I’ll take them both. The Chief first.”
“Good boy!” Duncan Elphinstone said. “You did the right thing. You gave us time, which is what we need most, at the moment.”
“I suppose I should have stated my reasons and given some argument—”
“Not at all,” The Elph said reassuringly. “Why should you?”
“Moss did.”
“Moss gave in to his emotions and I can’t blame him. But I think he made a mistake in letting them show. He should have done what you did: there it is, and that’s that. Fortunately our rules permit another appeal and you could reverse him.”
“You think it’s best for us to consider it, then,” he inquired, sounding dubious. The Chief responded with a vigorous,
“Yes! Of course I do. I wish you could have given us more than thirty days, but that’s about all the country will stand for, I think.”
“Maybe it won’t even stand for that.”
“No,” the Chief agreed grimly. “Maybe it won’t. We’ll just have to see about that. I think every bit of delay helps to calm things down a bit.”
“I hope you’re right.”
“I hope so too,” Duncan Elphinstone said, sounding not at all sure.
