by Allen Drury
“All of these complex issues might be addressed by the Court. The plurality has chosen to address itself to three only: whether petitioner’s constitutional rights were violated in the manner of his arrest; whether his trial was fairly conducted in view of substantial popular outcry for a verdict of guilty; and whether the death penalty was properly imposed according to the laws of the state of South Carolina in conformity with prior rulings of this Court.”
(“And no ruling on the merits of the death penalty itself?” the New York Times inquired blankly of no one in particular. “And whether it is proper to televise—or to ban television?” TV Guide murmured in similar puzzlement. An uneasy stirring began to transmit itself, by a sort of journalistic osmosis, along the close-packed benches of the media. “Sidestep!” the New York Times whispered scornfully. “Cop-out!” charged the Los Angeles Times. Ever-ready suspicion changed the mood instantly from excited anticipation to sarcastic put-down. Anticipating this, the tone of the Justice hardened.)
“There may be some who may wish the Court to address a multiplicity of issues, including the merits or demerits of the death penalty itself, or the propriety and moral defensibility of the proposal that the execution, if it be held, be televised. The plurality feels that these issues are secondary to the constitutional questions raised by the main burden of petitioner’s defense and the main thrust of his appeal.”
(“How can he say that?” Debbie demanded in whispered dismay of Harry Aboud who, burly and jovial and visible at last, had decided to come down from New York to lend, as he put it, moral support. He was sitting beside her a couple of spaces along the front row from Regard, who from time to time gave him a contemptuous glance.)
“In any event,” Tay went on, a certain dryness entering his voice, “the plurality has no doubt that these questions will be more than adequately discussed by the minority.
“I may say,” he interjected in a tone suddenly more personal and informal, looking down directly at the mass of attentive faces raised to his, “that it was my own decision to request the Chief Justice that I be permitted to deliver this opinion. I thought it fitting, since”—he hesitated for just a second but a sudden harshness he apparently could not control overrode it—“since I have an interest. I felt that if I could do anything by my direct participation to give greater weight to the majority, I wanted to do it. The Chief Justice concurred.
“Query One,” he resumed, his tone formal once again: “Were petitioner’s constitutional rights violated in the manner of his arrest?
“On this point the majority agrees with the argument of South Carolina that there was nothing calculated or deliberate about either denial of rights or the brutality which evidently did exist. The majority feels that both were almost inevitable outgrowths of the very inflamed and extreme emotions which petitioner himself had in fact created when he committed the crimes which, in the judgment of the jury and the two courts below, he did indeed commit.
“Furthermore, we accept the argument of South Carolina that within an hour or less of his apprehension petitioner was fully advised of his rights against self-incrimination and was given free and full access to the lawyer who still represents him. The issue then turns on whether a prisoner must be advised of his rights at the very instant of his detention, or whether advice within a sufficient and reasonable time adequately meets the protections of the Constitution.
“For too long, in the opinion of the plurality, justice in similar cases in this country has turned on the nicety of the situation—on, as it were, the tyranny of the clock. Apprehended criminals known to be guilty of equally heinous crimes have actually been freed on this technicality. The majority of the present Court believes it is time to end this extreme exaggeration of the law. It is time to base the law on common sense and reduce to some degree the dependence of justice upon whether advice was given at Minute One or Minute Forty-five, as long as advice is adequately given within a time that reasonable men, using reasonable common sense, can reasonably regard as reasonable.
(“Christ!” the New York Times whispered. “Does that set us back a hundred years! There goes Miranda!” “Damned reactionary bastards!” the Boston Globe spat out. “And Tay Barbour, of all people,” the Minneapolis Tribune remarked, more in sorrow than in anger. “Is that ever a betrayal of everything he’s always stood for!”)
“Therefore,” Tay said, aware of some stir in the media but expecting it and ignoring it, “the majority finds itself in agreement with South Carolina on this point and rejects the contention of petitioner that he was subject to undue and damaging delay in advising him of his rights. The delay was human and excusable and no undue or uncorrectable damage, in our opinion, was done.”
He paused and took a drink of water while Clem Wallenberg glowered down the bench at Ray Ullstein and shook his head in obvious and exaggerated dismay. Justice Ullstein, while not so dramatic about it, also looked unhappy and shook his head sadly in reply. Debbie, white-faced, her eyes never leaving Tay’s face, looked as though she had lost a lifetime idol.
“On the second point,” Tay resumed, “whether petitioner’s trial was fairly conducted in view of substantial popular outcry for a verdict of guilty, the plurality once again finds itself constrained to side with South Carolina.”
(A groan, quickly stifled but loud enough to guarantee the attention desired for it, came from somewhere in the media. Regard leaned forward deliberately and gave Harry Aboud and Debbie a triumphant look. Harry, momentarily losing his amicable air, glared back. Debbie, eyes unmoving on Tay, never even knew Regard had looked.)
“It is true that there was substantial popular outcry for a verdict of guilty. But charges of ‘popular outcry’ and ‘public pressure,’ although they too have been used in our courts to justify the overturning of verdicts and the freeing of convicted criminals, are not, in the opinion of the majority, sufficient in and of themselves to warrant overturning the verdict in this case.
“There is admittedly a vast and overwhelming impatience in the country with the way the criminal justice system presently performs. This impatience is already beginning to lead down dangerous pathways no member of this Court and no responsible citizen of whatever station in life can condone. Yet the impatience itself, we believe, has ample grounds for existence; and the fact of it must be taken into account in rendering justice.
“Otherwise popular attempts at cure may get so far out of hand as to become, in and of themselves, dangerous to the rights and freedom of all citizens who may, for whatever reason great or small, come afoul of the law.
“The plurality feels that while popular pressure was very evident during petitioner’s trial, and while it is very evident today, it did not unduly influence the verdict rendered. Again, the test of reasonableness applies. By any reasonable standards, the trial and verdict were fair; and popular pressures cannot be blamed for a trial well conducted and a verdict honestly and unanimously arrived at.”
He paused to take another sip of water. Below, Harry Aboud nudged Debbie and whispered, “So much for you, from your great hero. What do you think of him now?” But she only looked at him, face white and strained, and then looked back at Tay. He did not see her nor note the steadily growing mixture of desolation and bitter anger that was beginning to come into her dark, clever eyes.
“We come finally to the third issue, whether the death penalty was properly imposed according to the laws of South Carolina in conformity with prior rulings of this Court. Here the majority would like to quote from the banner case that is always quoted here whenever the death penalty comes under discussion, namely Gardner v. Florida, 430 U.S. 349, 357‒358, opinion of Justice Stevens. Omitting citations available in text, its pertinent passage states:
“‘…death is a different kind of punishment from any other which may be imposed in this country… From the point of view of the defendant, it is different in both its severity and its finality. From the point of view of society, the action of the sovereign in taking the l
ife of one of its citizens also differs dramatically from any other legitimate state action. It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appears to be’—and here I give what seems to the majority a pertinent emphasis—‘based on reason rather than caprice or emotion.’
“It is here that the plurality parts company with the State of South Carolina. South Carolina’s law governing the imposition of the death penalty was written to conform to decisions of this Court, and it does so conform. But while it is obvious that due deliberation and due process were had at every stage, and that ‘caprice’ can be completely ruled out, still the question of ‘emotion’ remains.
“We do not believe such unanimity for the death penalty, or the unanimity of the Supreme Court of South Carolina in upholding it, would have been present without the very great emotion generated initially by the crimes committed, and then by the carefully orchestrated action of the organization known as Justice NOW! and its leaders, to maintain, increase and further inflame that already great emotion.
“Therefore it is the opinion of the Court that the death penalty in this instance should be set aside; and to that extent the judgment of the South Carolina Supreme Court is Reversed.
“However,” he said, holding up a warning hand as many members of the media obviously tensed and got ready to move—“it is the further judgment of the plurality that the verdict of guilty, while based largely on circumstantial grounds, is the correct one; and it is our opinion that the petitioner, Earle William Holgren, should be imprisoned in a federal facility, under conditions of maximum security, with permanent denial of parole, for the rest of his natural life.
“The death sentence being thus void, we see no need to comment upon it or upon the television proposal.
“In this opinion I am joined by my Brethren Elphinstone, Flyte, Hemmelsford and Pomeroy.
“It is so ordered.”
(“They can’t just arbitrarily set aside one sentence and impose another!” gasped the young lady from the Des Moines Register, a new reporter at the Court. “Who says they can’t?” the New York Times responded tartly. “They’re the Supreme Court of the United States, aren’t they? Who’s to stop?”)
For several minutes all was confusion as many members of the media tried to rush out. They were barred by a line of guards, arms linked, stretching all around the chamber, who had unobtrusively assumed position while attention was riveted on Tay’s concluding words. The result was a great deal of violently whispered profanity and a great deal of pushing and shoving. But the guards, while tense, were neither impressed nor belligerent; and the members of the media, though frustrated and furious, were basically well behaved and in considerable respect of the Court. Nobody got hurt and a great deal of tension was relieved. Presently the reporters were back in their seats and the chamber was in order.
The Justices, who had remained deliberately impassive, noticeably relaxed. May McIntosh took a drink of water and murmured something to Hughie Demsted at her left that caused them both to smile; both then murmured congratulations to Tay on his delivery of the majority opinion. Ray Ullstein and Wally Flyte also smiled to him from along the bench, Rupe Hemmelsford gave him a thumbs-up and Moss, with a look in which old friendship and shared pain were intermingled, did the same. The Chief Justice, too, smiled and nodded his approval. Only Clem Wallenberg, face flushed with anger, lips tightly pursed, eyes glowering, stared straight ahead and gave not an inch.
“If the chamber is now in order,” Duncan Elphinstone said quietly, “we can proceed. I would suggest to our friends of the media that there is a minority decision to come. There is also a matter of respect for Justice Wallenberg, who will deliver it.” He turned to the rigid figure at his left and gave him a pleasant smile. “Justice, if you are ready—”
But Clem wasn’t having any pleasantries. His angry expression did not change and when he spoke it was for the most part in staccato phrases sharply bitten off. “He’s as mad as a wet hen,” Wally Flyte whispered to Ray Ullstein. “I hope he isn’t going to spoil your opinion with a temper tantrum.” “Oh, he’ll come through,” Ray replied, “but nobody is going to mistake how he feels about you fellows in the majority.”
“My distinguished brethren on the other side,” Justice Wallenberg began with a scathing sarcasm, “have engaged in so much tergiversation—in its meaning of ‘to use evasions, or subterfuge; to equivocate’—that one who respects the Constitution and the law can hardly know where to begin. Copies of the minority opinion will be furnished you in a few moments along with the text of my Brother Barbour’s majority opinion, so I will not bore you with language you can read for yourselves. Informally, though, I’ll make our points as we see them, free from his well-polished rhetoric that conceals such a poor grasp of the facts and the law.”
(“Wow!” the Denver Post whispered to the San Francisco Chronicle. “The old boy’s really on the rampage, isn’t he?” “Barbour deserves it,” the Chronicle said shortly. “The whole majority does.”)
“I’m not going to recite the facts again,” Clem said, “except to remind that petitioner was brutalized when he was arrested; his rights were denied; his trial was a constant charade of trying to appease a rabid and ill-informed public opinion stirred up by a worthless organization put together for the political advantage of a few minor ambitious officials who want to become major ambitious officials; the guilty verdict was similarly a sop to rabid public pressure; the death sentence likewise; and the monstrosity of the television proposal simply an attempt to stir up a national blood lust utterly alien to the United States of America. It’s a degradation to have it even mentioned. It’s a worse degradation to have it deliberately evaded by the majority in their opinion. Somebody has to keep standards going in this country! When all’s said and done, that somebody is us. The majority has failed us, in a sad way on a sad day for America. For shame! For shame!”
He paused to glare up and down the bench, while his three colleagues of the minority sought to catch his eye, shake their heads, warn him against such bitterness. It was useless, as they all knew. A glum expression settled on the faces of his Brethren Ullstein and Demsted and his Sister McIntosh, as he plunged ahead while the media scribbled gleefully in their notebooks.
“Two members of this Court should have disqualified themselves from the very beginning, and you will find we state as much in the minority opinion. We are fully sympathetic to their problems but we think it has been impossible for them to judge fairly. However, they are here, and because they are, we have the majority opinion with all its flimsy rationalizations and its skillful evasions of the issues that are really vital to the country. It is too bad, very much too bad. They would have relieved themselves of much anguish and the country of much poor law and much potential future trouble as a result of this decision, if they had just withdrawn. It will always be one of the historic mistakes of this case that they did not.”
He again glared down the bench at Moss, who, genuinely angered, glared back. Then he swiveled his head like some furious old turtle in Tay’s direction. Tay looked straight ahead, chin on hand, eyes, by a deliberate act of will, unresponsive and far away. Justice Wallenberg snorted and went on.
“The minority has its opinions on the probable guilt of petitioner; in general we agree with the majority on this point. But the Constitution and the laws derived therefrom are supposed to apply to all citizens, no matter how worthless. They are not supposed to be suspended simply because of a fair presumption—and we consider it fair—of guilt. Rights are rights. You don’t split them up and divide them and turn them into fragments, a little bit applied here and a little bit applied there. You give them to everybody, or you rob all. The worthless as well as the worthy deserve the full protection of the law. Temporary public hysteria can’t be allowed to change that. Otherwise we are all lost.
“Any apprehended person has certain rights. Those rights are in being at the moment of arrest. Wh
en a majority of this Court accepts the idea that it doesn’t matter when they are granted, as long as they are ultimately granted, then it opens the door for them to be granted in an hour—ten hours—a day—two weeks—two months—whenever. Eventually it opens the way for them to be granted never.
“That is not how the minority reads the Constitution. It is not how America is to be safeguarded. It is not how our democratic rights are to be preserved. It is terribly dangerous law. It is, in the final analysis, no law. It is the anarchy that this so-called Justice NOW!”—and he gestured with a grand contempt beyond the walls, where the distant cacophony came clearly—“seeks, wants, demands.
“Consequences always spread far beyond this courtroom, never let us forget that, far beyond the language used here in handing down decisions. What we do grows and grows and grows, whether the case be large like this one or as small as ever comes here. Because nothing really small ever does come here. Everything we do is large in its ultimate effect. Nothing we do stops here. It goes beyond—far beyond. We regret the majority has forgotten this. We condemn their opening of doors that may not, perhaps, be closed again.
“The majority carefully skirts the merits or demerits of the death penalty. We of the minority are not afraid to say flat out that we are against it. We believe it does not inhibit, it does not prevent, it does not reduce. It simply sacrifices one life for one or more already gone. It does not restore lives lost. It does not reform criminals, except as it removes them. It does not prevent other murders by other people. Sometimes the threat of it does not even prevent further murders by the same person. It is murder itself, self-defeating and also barbaric, no matter how sanctified by the state. The majority dismisses it, though I understand several members of the majority will take the mealy-mouthed path sometimes followed here, of joining in an opinion and then putting in a supplemental statement that they still are opposed to the death penalty, nonetheless.
