Decision

by Allen Drury

  Mary’s call was equally brief. It was not as pleasant.

  “I just heard what you did.”

  “Yes?” he said, bracing himself.

  “I think it was a cowardly betrayal of your daughter, your responsibility as a Justice, and yourself. Why didn’t you say what you really feel about that monster? Why didn’t you defend Janie?”

  “In my way, Mary,” he said with a sigh, “I am. In my way.”

  “Well,” she said, “it isn’t my way, and it isn’t the way of the millions and millions in this country who won’t be able to understand why you gave him a stay at all, let alone why you didn’t take the opportunity to describe him as what he is, that monster. He’s destroyed your daughter, and you won’t even call him murderer. At least Moss was honest. He said the crimes were heinous. I never admired him before but I do now.”

  “I’m sorry you don’t admire me, but Moss has his concept of the law and of himself and I have mine. He’s doing what he thinks best and so am I.”

  “You’ll probably even vote to reverse the death sentence,” she said bitterly. “That would fit your ‘concept of yourself,’ all right.”

  “I don’t know what I’ll do,” he said for what seemed to be the hundredth time.

  “You don’t know what you’ll do about anything,” she cried, “except be soft on the criminal who destroyed your daughter!”

  “How is she today?” he inquired, trying to change the subject for a moment before terminating the conversation.

  “You don’t deserve to know,” she said, and hung up.

  He sat for several minutes in his silent office, chin on hand, staring unseeing into some distance he could not really discern or understand. At last he lifted the receiver and dialed a number.

  “Hello,” she said.

  “Can I come over?”

  She hesitated.

  “The kids are here.” Then she uttered a little laugh. “But they might as well get to know you. They’ll go to bed later.”

  “Whatever,” he said. “Whatever. I just—I just want a little comfort. That’s all.”

  “Yes, my dear,” she said quietly. “I know. Hurry.”

  Another call from Columbia came north, put through after the warden checked with Regard and Regard said, “Sure, but bug it.” “You’re bugged,” the warden told the prisoner and the prisoner told him what he could do with it. But he was so enraged that he went ahead with the call anyway.

  “So that’s your great liberal Justice!” he shouted when Debbie came on the line. “That’s your fucking compassionate humanitarian precious Taylor Barbour! Of all the lily-livered, turn-tail, half-assed excuses for a two-bit, cowardly, sidestepping—”

  “Listen!” she yelled in return, shouting him momentarily into silence. “Listen, you crazy man! He gave you your stay, didn’t he? He’s given you your chance, hasn’t he? Why the hell can’t you ever settle for what you get and be thankful? He could have denied it. He could have let his emotions run away with him like Moss Pomeroy and sent you packing. But he didn’t, you ungrateful bastard! He was a decent enough man to give you a chance. Now God damn you, be thankful!”

  (“My, my,” the warden said to his deputy as the tape spun on. “Gracious, such language.” “They deserve one another,” the deputy said. “Too bad they can’t both fry in hell.” “You’re a little rough on her,” the warden demurred mildly, “but he’s a bad, bad boy.”)

  “He could have given an opinion!” Earle cried. “He could have said what a phony rap this is! You said he could have had a lot of influence on the Court if he’d had the guts! Why didn’t he do it? What’s the matter with that half-assed, lily-livered—”

  “You said that before,” she shouted back, “and I don’t want to hear another word against Taylor Barbour! He’s still on our side, I’m convinced of it! You’ll see! You’ll see!”

  “I’d better see,” he said, voice dropping abruptly to an ominous softness that made the warden glance at the deputy as they both leaned forward intently. “I’d better see, or I’ll have a date with that fucking weak-kneed bastard someday! I’ll have a date!”

  “You’ll be lucky if you have a date with anything but the electric chair!” she told him, starting to cry from sheer anger, tension and frantic frustration with him. “He may be the only chance you’ve got on that whole Court. And you talk about him like this.” Her voice trailed away on a despairing note. “And I have to defend you. I have to defend you…”

  “Yes,” he said, quite calm now, with an odd fleering relish that again made his listeners exchange glances. “Apparently you do, Superstar. Apparently you do.”

  On Thursday night the headlines said:

  HINT COURT MAY DELAY HOLGREN CASE THREE WEEKS.

  On Friday morning they said:

  JUSTICE NOW! CONDEMNS HOLGREN DELAY, DEMANDS IMMEDIATE ACTION. THOUSANDS PROTEST ACROSS NATION. COURT SIEGE THREATENED.

  On Friday afternoon they said:

  HUGE CROWD GATHERS AT COURT IN ANTI-HOLGREN RALLY. JUSTICE NOW! PLEDGES NON-STOP VIGIL UNTIL CASE DECIDED. SLOGANS PAINTED ON BUILDING.

  Without comment at 8 p.m. Friday night, after several hours of hectic private telephone consultation, a brief statement was issued through the Marshal’s office:

  “Pursuant to call of the Chief Justice, the Supreme Court of the United States will convene at 10 a.m. on Monday next in closed session to hear arguments in the case of Holgren v. South Carolina.”

  But the crowd, faithful to Justice NOW!’s promise, did not disperse over the weekend; nor did public pressure decrease on either side of the issue; nor did overseas demonstrations diminish very much; nor did the road ahead become any clearer or easier for the nine who lived and worked under the banner EQUAL JUSTICE UNDER LAW.

  ***

  Chapter 6

  Well,” Wally Flyte said as Clem Wallenberg, the last to appear, came from the Robing Room to join them in the Conference Room where they always formed their little procession to the chamber, “lead the lambs to slaughter, Dunc!”

  But it was a feeble joke and he knew it, and after a moment when all any of them could muster was a rather feeble smile in response, he gave it up and spoke more somberly. “I never thought I’d see the day when the Court bowed openly to public pressure.”

  “Nor I,” Hughie Demsted said. “But here it is.”

  “I think,” Mary-Hannah said, “that I could take everything else but the paint on the building. It makes me feel—violated.”

  “Yes,” Ray Ullstein agreed, “that’s the word. I think that bothers me most, too.”

  “And me,” the Chief said; and suddenly an emotional note he obviously hadn’t expected overtook him. “I like this place.” He cleared his throat vigorously as Rupert Hemmelsford nodded.

  “I’m glad to see we have extra police protection.”

  “We’ve got them all,” The Elph said. “Our own, the District, and the President called a little while ago and said he’d assign a couple of Army units if we needed them. I told him I didn’t think we needed to be quite that dramatic yet. Although”—he sighed—“it could happen.”

  “It wouldn’t have happened,” Clement Wallenberg growled, “if our two junior brethren had seen fit to do their duty and dispose of this case before the Court became a public spectacle.”

  “I did my duty!” Moss snapped. “I denied that—individual’s stay. What more could I do?”

  “Well,” Justice Wallenberg conceded grudgingly, “Tay didn’t. He just passed the buck to all of us. It only delayed what we’re going to do.”

  “And that’s what, Clem?” Hughie Demsted inquired dryly.

  “Remand it to South Carolina for further trial,” Justice Wallenberg said defiantly.

  “I don’t know about that,” Justice Hemmelsford said, and Justice Wallenberg snorted.

  “You wouldn’t! If there’s any reactionary, conservative way to approach things—”

  “Oh, crap!” Rupert Hemmelsford exclaimed, voice rising
angrily. “Stop giving me that old standard bullshit, Clem, if you don’t mind. I’ve had it up to here with your pious posturings.”

  “‘Pious posturings’?” Clem Wallenberg cried, while behind his back Mary-Hannah could not resist a wink at Hughie Demsted, who winked back. “‘Pious posturings’? Why, you two-bit reactionary bastard, I’ll—”

  “You won’t do anything,” the Chief Justice interrupted in a voice that commanded silence, “except shake hands with everybody like we always do, and get on into that courtroom and do the job you’re here for. You’re not such a bad Justice, Clem, if you’ll just stop play-acting and get on with it.”

  At this unexpected attack from his flank, Justice Wallenberg was temporarily speechless. His face turned red, he looked as though he might pop. If the issue before them had not been so serious, if they could not hear the uneasy murmur of ten thousand pressing voices outside affirming the fact, Justice Flyte or someone might have made a joke and started a laugh to break the tension. As it was, no one seemed to have the heart. And presently Clem “decompressed,” as Mary-Hannah put it to Tay later, without making any rejoinder, other than a fearful scowl.

  For several moments no one else said anything either. Then Ray Ullstein spoke in his usual reasoned way.

  “I was wondering if perhaps we shouldn’t extend the usual half hour for hearing arguments to a longer period for this case? It’s of such interest that I think it might be wise.”

  “That’s my inclination if the rest of you agree,” The Elph said. “I think it might be well to grant an hour at least, maybe even two or three. It’s not a simple case, God knows. We want to give both sides plenty of time. Plus the fact that we have a couple of amicus curiae briefs just filed this morning.”

  They all looked surprised.

  “Really?” Ray Ullstein asked. “From whom?”

  “The American Civil Liberties Union, for one—”

  “Naturally,” Justice Hemmelsford remarked.

  “—and a group known as CBS et al.”

  “Really,” May McIntosh said. “How interesting.”

  “Very,” the Chief agreed.

  “Probably just as well we’re meeting right away,” Rupert Hemmelsford observed. “Better get it over with, I think.”

  “Yes,” the Chief said. “I’m glad you all talked me into it last night. I had some idea that extra time would calm things down out there”—he gestured toward the window, through which came the restless sounds of the crowd—“but very likely it wouldn’t. Our friend Stinnet really has them stirred up.”

  Solemnly then, mutual annoyance momentarily forgotten, they turned to one another and shook hands around the circle, a custom started by Chief Justice Melville Fuller in the late nineteenth century, faithfully observed ever since at the start of all sessions. It was generally interpreted to mean, “We may have our differences, but we are all servants of the law.”

  Then the bell rang promptly at ten and they moved forward through the red velvet curtains in their stately little parade: the Chief in the center, flanked by Wally Flyte on his right, Clem Wallenberg on his left, the others following two by two, taking their seats according to seniority on each side of the central group. The Marshal cried out his customary “Oyez! Oyez!” and admonished all persons having business before the Honorable, the Supreme Court of the United States to draw near and give their attention.

  “God save the United States and this Honorable Court!” he concluded, his plea noticeably more fervent than usual. Faces impassive, the Justices took their seats. Looking deeply impressive and immensely powerful, outwardly at one in the majesty of the law, they stared down upon a nervous Debbie, a jaunty but secretly nervous Regard, the two lawyers who represented the American Civil Liberties Union and CBS et al. From outside came the distant murmur of the restless crowd.

  Debbie, as lawyer for petitioner, spoke first. She was brought to the heart of her argument when Rupert Hemmelsford pointed out that in spite of her abstention from jury selection Regard had scrupulously chosen six jurors opposed to the death penalty “who still voted unanimously when all the evidence was in to sentence your client to death. Shouldn’t that tell us something?”

  She looked taken aback for a moment but rallied.

  “That goes exactly to the heart of petitioner’s challenge to South Carolina, your honor. What it tells us is that the jury was so overwhelmed by the prejudicial emotion generated statewide and nationwide by the organization of opposing counsel, the organization known as Justice NOW! that it did not matter what the former perceptions and beliefs of jurors were. They were overwhelmed into voting as they did by the sheer tide of emotion generated by opposing counsel and his organization—emotion which at this moment”—she paused and gestured dramatically toward the windows, beyond which the restless murmur of the crowd could be distantly heard—“still tries to warp, influence and determine the judgment on this case—which at this moment challenges even you on this highest Court, your honors.

  “Thus do the judgments rendered in South Carolina, and the actions of this organization both there and here at this very moment, fall directly athwart the position of this Court as set forth in Gardner v. Florida, 430 U.S. 349, 357‒358, as stated by Justice Stevens for the plurality:

  “‘It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.’

  “Caprice or emotion, I submit to your honors, are what have informed this case from beginning to end. Caprice or emotion are what dominated the state of South Carolina. They are what presently dominate this nation. They are what stand outside your own walls, your honors. Listen to them and ask yourselves whether they should once again control the fate of this defendant!”

  She paused, color heightened, face excited, breath coming fast, mien triumphant. For a moment there was silence. Then the Chief spoke in a dry voice, yet no more harsh, challenging or personal than Justices of the Supreme Court often are to lawyers who come before them.

  “You are to be commended on dramatics, counsel. Now let us get back to the facts.”

  Debbie flinched as though he had struck her; flushed deeply; but recovered, as lawyers before the Court must on such occasions, for they have no choice. The only consolation was her perception that they would probably be equally rough on Regard.

  “Yes, your honor,” she said, voice trembling a little but managing. “Here we come to what is perhaps the most damning and distressing feature of all—caprice or emotion not only dominated trial and verdict but they then apparently came to dominate a judge who theretofore had been scrupulously fair, I believe, in his conduct of the trial. At the request of the attorney general of South Carolina and on order of Judge Williams, it is proposed that the death sentence, if it be done at all, be turned into a public circus, a great media event, a televised bloodletting so far beyond the bounds of decency, justice and reason as to make a mockery of the law and a mockery of every pretense to decency that America ever had.

  “Cruel, unusual—and monstrous. That is what is proposed by South Carolina. This attempt makes a mockery of the entire trial and a mockery of American justice in entirety. The verdict of guilty rests only on circumstantial evidence. The death penalty is cruel and unusual punishment not justified in any way by the facts on the record, which are the only things this Court is legally bound to consult. The addition of a proposal for a televised public execution lowers it to the level of abysmal barbarity.

  “Petitioner requests, therefore, that the verdicts of the courts below be reversed, that the sentence of death be thereby voided and that the proposal for a public, televised execution be condemned so roundly and inescapably by this Court that no jurisdiction in this nation will ever again dare even to suggest it.

  “I thank your honors.”

  She bowed, picked up her brief, and started to turn away. The Chief Justice stopped her with a lifted hand.

  “Miss D
onnelson,” he said, “you have more time. Did you wish to have the amicus curiae brief of the Civil Liberties Union argued before us?”

  She glanced at her fellow lawyer, who shook his head and then stood up and came forward.

  “If the Court please,” he said, “and with counsel’s concurrence, I do not think that will be necessary. She has made our points concerning the death penalty and the public television proposal and made them very well. As your honor knows, our brief has gone to the media along with hers, and we thank the Court. In the interests of saving your time, we will rest at that.”

  “Thank you, counsel,” Duncan Elphinstone said. “The Court appreciates your consideration. The Court will hear counsel for the state.”

  Regard came forward, not glancing at Debbie, placed his brief on the lectern, placed his hands on it and leaned forward earnestly.

  “Your honors,” he said, “as I look around this courtroom”—and he did so, turning to survey the beautiful high-ceilinged room where so many historic cases had been argued and decisions handed down—“I see on the friezes above us the faces and figures of the great lawgivers of all time. I see such men as Menes, first pharaoh of Egypt, three and a half millennia before Christ. I see Hammurabi, almost two thousand years before Christ. I see Moses and Solomon—Solon and Confucius—Draco and Augustus. To my left”—and he turned, raising an arm to them reverently—“I see lawgivers of the Christian era, Napoleon and Blackstone, King John and Charlemagne, Muhammad and John Marshall. Above the main entrance”—and he continued to turn so that his back was now to the Court, whose members were glancing at one another with amused and skeptical looks—“I see the figures of Justice, Divine Inspiration, Wisdom and Truth, and flanking them on the one side, Security, Harmony, Peace, Charity, and the Defense of Virtue. While on the other”—his voice dropped dramatically—“I see the powers of Evil, Corruption, Slander, Deceit—and Despotic Power.”

  He turned back to face them fully once again and as he did so, The Elph inquired mildly,