Decision

by Allen Drury

  “Do you see the figure of Calvin Coolidge, counsel?

  “Calvin Coolidge?” Regard asked blankly.

  “Yes. He was noted for brevity.”

  There was a guffaw from Wally Flyte, quickly suppressed but enough to break them all up. For several seconds there was not much decorum on the Supreme Bench as Regard, flushing to the roots of his hair, struggled desperately to recover his balance and his dignity. For a moment he obviously did not know whether to explode into anger or swallow his feelings and behave. Prudence and common sense made the decision and with a dignity that cost him much he bowed his head in deference.

  “I stand corrected, your honor, and I apologize to the Court if I have violated some rule or spoken too elaborately for your honors’ taste.”

  “Just try to stick a little more to the facts,” Duncan Elphinstone suggested. “We know all these gentlemen you mention better than you do: we have a vantage point several feet higher than yours and we see them almost every day of our lives. You come here in opposition to the plea for stay and review entered by Holgren.”

  “I do, your honor,” Regard said. “I oppose it, and the state of South Carolina opposes it, with all the strength that is in us.”

  “You and your mob also come here, I take it, to threaten the Supreme Court of the United States,” Clement Wallenberg grated out with a sharp hostility that took them all by surprise. Regard flushed again and this time responded in kind.

  “Your honor may choose to use whatever nasty words he likes about the decent law-abiding citizens of this nation,” he snapped, “but their concept of the law is as valid as yours, I think. And perhaps more so.”

  “I despise what you are trying to do to this country, Mr. Stinnet,” Justice Wallenberg said, “and I make no apologies whatsoever for saying so.”

  “Nor do I apologize to your honor,” Regard said in an equally harsh tone, calculating, inaccurately, that his audience would be largely with him where their Brother Wallenberg was concerned, “for characterizing your approach to this matter as unfair and unjudicial. Now perhaps,” he added icily, “if I may be permitted to continue—”

  “You may continue,” the Chief said, equally icy, “but you will refrain from attacking members of this Court personally or the end effect will be to sadly damage your case, I’m afraid. And you, Justice Wallenberg, will kindly refrain from using your superior position to bully counsel. It does not become you and it does not become the Court. Proceed, counsel.”

  “Well—” Clem began, but The Elph rounded on him so sharply that he actually flinched back a little in his chair alongside.

  “Your honors,” Regard resumed after a long moment of silence, during which the tension increased and the other Justices looked solemn and wary, “I suppose this is an indication of the passions which surround this case, both in my state and throughout the nation—indeed, throughout the world. I do not deny that emotion does surround this matter, as petitioner’s counsel states. But I do deny ‘caprice.’ There is no ‘caprice’ about it. We who seek the death of Earle Holgren do so coolly, deliberately, in full knowledge that we are dealing here with the life of a human being. And with full knowledge that we are also dealing with a symbol and a sign of all that is wrong with the American criminal justice system today.

  “‘The life of a human being’! Yes, your honors, that is what we are dealing with when we deal with the fate of Earle Holgren. And what did Earle Holgren deal with when he removed the lives of three human beings and permanently destroyed the life of a fourth, I ask your honors? And what will be the point of those deaths, that maiming, what will be the point of his own death, if it is not brought home to the entire world and to all would-be criminals everywhere in this unhappy, troubled land, that crime in America simply must not pay?”

  “How do you respond to petitioner’s plea, counsel?” Justice Demsted inquired, sounding unimpressed. “Why don’t you take up his counsel’s points seriatim? That may help to get us back on the track.”

  “I was not aware I was off the track, your honor,” Regard said, flushing again. “I thought my points so far quite pertinent. However, your honor wishes me to answer counsel for petitioner seriatim. That should not be hard to do.” He glanced over his shoulder at Debbie, sitting composed and expressionless. “Since they are grounded in so little logic…

  “To begin with, the matter of Holgren’s arrest. If his ‘rights’ were “violated’ by the circumstances of his capture, then it was not deliberate, willful, malicious or calculated. It was simply human error sparked by the great abhorrence and repugnance his captors felt for him and for what he had done. The law must make some allowance for human error, your honors, otherwise it becomes not a safeguard for the decent but a straitjacket for the decent. And the criminal goes free on technicality…

  “Counsel for petitioner talked about public pressure and made a great point of waving her arm dramatically out there and calling your attention to the sound of the good citizens who have come here because of their desire to see justice done. Well, let me wave dramatically toward them too, your honors”—and he did so with a sarcastic expression—“and let me, too, call your attention to their impatience for justice, their demand for justice, their desperate need for justice! It is out there, your honors, make no mistake! They want justice and they will get justice! They cannot be denied, they will not be denied! They want—”

  “Counsel,” Justice Flyte interrupted in a deliberately bored tone, “will you refrain from stump speeches? They don’t do you any good, you know, not any good at all. And they simply antagonize this Court. This Court—”

  “This Court,” Regard said harshly, interrupting him, “had better pay attention to the will of this people! Otherwise this Court is going to be in big trouble!”

  “Your effrontery,” Mary-Hannah McIntosh said, her pince-nez quivering on her nose, her square, honest face suffused with indignation, “absolutely appalls me, counsel. How you can expect us to give adequate weight to your arguments when you come here and attempt to threaten the Supreme Court of the United States? How you can expect us—”

  “Because you are the Supreme Court, your honor,” Regard said softly, “and you are supposed to be above all that… Are you?”

  There was stunned silence for several moments, broken only by the continuing distant murmur of the crowd. The size of the big marble room seemed to close in on the little handful of people at the bench and gathered just below it. Above them the ancient lawgivers looked down. No one spoke for quite a long time.

  “Mr. Stinnet,” Duncan Elphinstone said at last, “will you return to the issue or shall the Court go into recess and reach judgment without hearing your final arguments?”

  “You cannot do that, your honor,” Regard said with a respectful but adamantine firmness, “without inviting the certain wrath of an enormous number of your countrymen. It is checkmate.”

  The shocked silence enveloped them again. Hughie Demsted shifted in his chair.

  “Chief, it is obvious that this man intends to fight this issue now, as he has throughout, on the front pages and on the television screens. He is apparently taking the gamble that his mobilization of public opinion is so effective that it can override any antagonism he may arouse here. He is in effect daring us to disagree with him, no matter what the law may be.”

  “As far as I am concerned,” Wally Flyte said with an indifference that sounded quite genuine, “my vote will not be influenced one iota by either his bombast or his bluster—or his ubiquitous Justice NOW! If he makes his case, he has my vote. If he doesn’t, he doesn’t. And the hell with him.”

  “And so say I,” said Ray Ullstein quietly.

  “And I,” said May McIntosh. “And I,” said they all, while Debbie watched wide-eyed and almost breathless and Regard stood before them searching thoughtfully from face to face; not looking particularly threatening, but embodying one of the gravest challenges the Court had ever faced.

  “Counsel,” Duncan Elp
hinstone said softly, “it does appear to be checkmate. Now, would you like to continue?”

  “Very well, your honor,” Regard said, as though there had never been any interruption, “the matter of the jury, the alleged ‘caprice or emotion’ of South Carolina and the bearing of these upon the fairness of the trial in the courts below. Counsel opposite refrained from the jury-selection process. It was her free choice. As the transcript shows, I went to extraordinary lengths to be fair in my selections, absent her participation. I don’t think I could have been any fairer, even choosing six avowedly opposed to the death penalty. And still, as Justice Hemmelsford noted, when the verdict came in it was unanimous for guilt and for death. So I think that issue might well be dismissed…”

  He paused and took a drink of water, straightened his coat, his shoulders and his lanky form.

  “So we come to the death sentence and the order by the Honorable James Perle Williams that the execution be public and televised. Petitioner pleads that the verdict of death is cruel and unusual punishment within the meaning of the Eighth Amendment, and he pleads that making the execution public and putting it on television would constitute ‘cruel, unusual and monstrous’ punishment. Apparently this is a voluntary and individual refinement of the Eighth Amendment which is based upon the same sort of emotional reaction that is charged against the state. We don’t accept it, your honors, and I will tell you why.

  “There is one simple, fundamental argument for putting the execution on television: to be a lesson and a warning. So dramatic—and so emphatic—that it cannot be ignored by criminals either actual or potential. A major and decisive deterrent to crime. A major turnaround to start this nation back on the road to a safe and secure society…

  “That concludes my argument, your honors. I would now like to introduce my colleague representing CBS et al. to present, amicus curiae, the final argument for dismissing petitioner’s plea against the televising of this execution. If it please the Court.”

  “Here comes the First Amendment,” Wally Flyte murmured to the Chief. “And a shrewdly clever choice for it,” the Chief agreed.

  “Counsel,” he said politely, “if you will come forward. Substantial time remains, but if possible we would appreciate your keeping it relatively short in the interests of speeding this matter along. Haven’t we seen you here before? Mr. Eldridge, isn’t it?”

  “Eldridge, Muggridge, Pockthwaite and Thistle,” said the kindly looking old lawyer who now stood before them comfortably relaxed, down-home and old-shoe, naming one of the most famously liberal—and profitably pragmatic—firms in the District of Columbia. “Yes, your honor, I have been here before; several times, in fact, the last being CBS v. United States, the so-called Haig Memorandum case.”

  “And we ruled against you,” The Elph recalled.

  The kindly old lawyer laughed.

  “Not this time, I hope… Your honors: CBS et al, which comprises Columbia Broadcasting System, the National Broadcasting System, the American Broadcasting System and a total of sixty-three independent cable television channels, appear here today amicae curiae to oppose the plea of petitioner in Holgren v. South Carolina insofar as it relates to a reversal of the order of Honorable James Perle Williams directing the televising of the public execution of petitioner. We address ourselves to this point only.

  “We base our argument squarely upon the solid and impregnable foundation of the First Amendment to the Constitution, bolstered and underpinned by the principle, sanctified by custom in recent years to the point where it is now virtually a matter of law, ‘the people’s right to know.’”

  “You think that extends to the people’s right to see a fellow being die in their living room?” Justice Wallenberg inquired.

  “Your honor,” Mr. Eldridge said easily, “the people see probably a dozen fellow beings die in their living rooms every night of the year. Why should one more affront them? Especially when he has been convicted of the heinous crime of murder and has been condemned to death by due process of law?”

  “In other words,” Justice Wallenberg shot back, “television has created so casual an attitude toward violent death that the state may impose it willy-nilly in the assurance that it will be accepted casually no matter what the circumstances?”

  “Especially when it is applied to a real-life murderer convicted of actual real-life crime by due process of law,” Mr. Eldridge said blandly. “That should arouse even less protest. Few, aside from those with a special interest, protest violence on television nowadays. Why should they protest a death thus sanctified?”

  “Expand on your argument for the First a little,” Hughie Demsted suggested. “How do you stretch it?”

  “Your honor!” Mr. Eldridge said with a fatherly smile. “Need I comment in this chamber that the Amendments are as elastic as a rubber band? Stretch them, indeed! Does anyone ever do anything else? The First says that Congress shall make no law abridging freedom of speech, or of the press—of which subsequent decisions here and elsewhere have confirmed television to be a part, for the purposes of the Amendment. Further it says that Congress shall make no laws abridging the right of the people peacefully to assemble, and to petition the government for a redress of grievances, which they now in great numbers”—he nodded toward the distant sound—“appear to be doing.

  “To deny television—and the printed media, of course—access to the death of this individual would, in our humble opinion, be a direct, flagrant and insupportable abridgment of freedom of the press in the sense of the Amendment as broadened by subsequent interpretation. It would deny to the people that intimate and immediate knowledge of events which only television is equipped to bring them—that actuality which only television can provide. It would rob them of something vital to their welfare and peace of mind, namely the certain knowledge, because they will have seen it with their own eyes the moment it happens, that a criminal convicted of heinous crimes has indeed paid his debt to society and that justice has indeed been served quickly, decisively and without the endless delays so characteristic of our courts today.

  “To deny television access to the death of this individual would be to deny perhaps the greatest of all of television’s functions—its educative function.

  “Poll after poll, survey after survey has shown decisively that a majority of the American people get their knowledge of events from television, with other forms of communication increasingly subsidiary and peripheral. The great majority learn all they know from television.

  “It educates their minds.

  “It forms their opinions.

  “It molds and shapes their way of living, their attitudes toward their neighbors and themselves, their view of their own country and others, the very fabric and framework of their society and being.

  “Television is America.

  “America is television.

  “Without it, where would we be?”

  “I can see it’s really great,” Hughie Demsted said dryly, “but as one who has three kids who are exposed to this monster far more than their mother and I want them to be day in and day out, I am not so sure I want them to see a man actually die in front of their eyes on television.”

  “It happened in Vietnam, your honor,” the kindly old lawyer said blandly. “It happened in Dallas and Atlanta and Los Angeles. Anwar Sadat went down in everybody’s living room. El Salvador and Lebanon became as familiar as the house next door. Death after death, murder after murder, suicide after suicide, all, all, your honor, occurring in the intimacy of your own living room! Brought to you by television, the nation’s greatest educational medium! Brought to you by television, the living heart of America! And now it is proposed to deny the people the right to see that justice indeed prevails, that crime is truly punished, that law does, after all, rule their land. Would you deny them that? That would indeed be an abridgment of the people’s right to know!

  “Nothing does it like television, your honors! Nothing!”

  “How much do the network
s expect to make off this?” Wally Flyte inquired.

  “Your honor!” Mr. Eldridge exclaimed. “If I detect your meaning correctly, I can only say on behalf of my clients that we resent—”

  “How much?” Justice Flyte repeated patiently. “Lots of big ones? Lots of bread? Millions and millions, maybe, in return for this great educational service they’re so anxious to perform?”

  “It would be a public service broadcast,” the kindly old lawyer said stiffly, not looking so kindly.

  “But somebody would sponsor it,” Wally said. “They always do. How many contingency contracts already signed, counsel? How many big corporations already lined up? How many takers for Death in Prime Time?”

  “I know nothing about that,” the kindly old lawyer said, not at all friendly now, “nor do I consider it pertinent to our brief, your honor.”

  “No?” Justice Flyte said. “Well, I do.”

  “Perhaps you had best sum it up, counsel,” Duncan Elphinstone suggested. “I think we get the drift.”

  “CBS et al.” Mr. Eldridge obliged in a coldly formal tone, “speaking amicae curiae in the case of Holgren v. South Carolina, oppose that portion of petitioner’s plea that would seek to ban television from reporting the circumstances of his death at the moment of its occurrence. We base this on the First Amendment, freedom of the press and the people’s right to know. We are adamant in our opposition to anything that would curtail and abridge our right to televise this execution, ordered by the court below and placed rightfully in the public domain for the public education by order of Judge Williams.”

  “Thank you, counsel,” the Chief said, “and thank you all. I believe that concludes oral argument on briefs filed. The Court stands adjourned.”

  Businesslike and once more impassive, he and his sister and brethren rose and disappeared through the red velvet curtains, pausing in the Robing Room only long enough to disrobe, exchange head-shaking comments on the events of the morning, and agree to meet again at 10 a.m. Wednesday to start what they knew would be their long and heated discussion of the decision, or decisions, to be handed down in the case of Holgren v. South Carolina.