Capitol Threat (15 page)

26

S
enator Dawkins spent the first few minutes of the day’s session hurling some of the softest softballs ever lobbed in the marbled walls of Capitol Hill. He began by asking Roush questions about his background: growing up in a poor—that is, economically challenged—family of coal miners in West Virginia, putting himself through college and law school, and eventually rising to the D.C. Circuit Court of Appeals. Then he took Roush through a guided tour of his judicial record, sparing him the immodesty of bragging about himself by doing all that dirty work for him.

“I was particularly moved by the language you used in the
Smoot
case when you upheld the states’ rights of eminent domain.” He quoted the opinion, reading from his notes. “ ‘We must always remember one paramount lesson from our constitutional studies: the Bill of Rights was not created to bestow powers to the federal government, nor even to individuals. It was conceived, drafted, and executed to ensure the continuance of the most sacred principle of federal law—that all rights not expressly given to the federal government are reserved to the states.’ ”

“Thank you, sir,” Roush said, bowing his head slightly. “I thought that was a pretty good line myself.” A spattering of laughter followed.

Of course, Dawkins had not chosen to talk about states’ rights by accident, as Ben well knew. He was reminding all those present that despite the opposition of his party, this nominee was a Republican, sufficiently conservative to attract the President’s attention in the first place. States’ rights was a good way to do it, since it was a catch phrase Republicans had used for decades to promote political agendas that could not be identified by their true name.

“Now if we may,” Dawkins continued, “I wanted to discuss your somewhat controversial dissent in
State v. Victor.
”

“I only dissented in part,” Roush clarified. “To some of the language in the majority opinion. I concurred in the result.”

“Just so. But your dissenting opinion does appear to leave open the possibility that, despite Supreme Court precedent to the contrary, you believe there are at the very least some instances in which the death penalty might be unconstitutional. Could you please explain what you meant?”

This discussion, too, had been prearranged. Ben and Sexton both agreed that his position on the death penalty was likely to be targeted by the Republican opposition. It would be the next item on the agenda, now that they had done about all they could with his professed homosexuality without appearing totally bigoted. So Sexton made the strategic decision to have the issue first raised by a friendly source. It wouldn’t prevent other committee interrogators from treading the same ground, but it might make them appear redundant.

“I can explain what I said in the context of that particular case,” Roush replied, “but as I indicated earlier, I can’t prejudge future cases or consider hypothetical applications of the opinion. My point was simply that the Constitution forbids cruel and unusual punishment.”

“Point of order,” Senator Matera said, interrupting. “Isn’t there direct Supreme Court precedent stating that the death penalty does not offend that passage of the Constitution?”

Ben grabbed the mike. “I believe this is Senator Dawkins’s turn to ask questions.”

Matera smiled. “I was merely interposing a point of order, Mr. Kincaid. You need to study your procedure if you’re going to continue to appear at this hearing.”

Well, Sexton wanted him to be an attack dog, Ben thought. Here goes nothing. “A point of order is a request for a procedural clarification addressed to the chairman of the committee. What you just asked was a substantive question addressed toward the nominee. By no stretch of the imagination could that be a point of order. What you did was what my mother used to call by its technical term: butting in.”

The laughter in the gallery only made it sting the worse. Matera’s back stiffened. “Did your mother teach you to be disrespectful to United States senators, Mr. Kincaid?”

“No, ma’am. Did your mother teach you how to take turns?”

Matera slid back into her chair, a thin smile on her face. Ben wanted to think he had perhaps earned a small measure of the woman’s admiration—but he doubted it.

Roush recovered his microphone. “Regardless of who asks the question, I think we all know that the Court has flip-flopped on this issue. First the Supreme Court abolished the death penalty, citing the cruel and unusual punishment clause. A few years later, a newly reconstituted court reversed that opinion.”

“And would you have the Court flip again?” Dawkins asked.

“Absolutely not. Again, I can’t prejudge a case that isn’t before me. But I have spoken earlier of the great importance of stability and continuity in the law. Sudden reversals such as the one I just described undermine the law and diminish people’s confidence in the judiciary.”

“Getting back to the original question, sir: what was the point you were trying to make in the
Victor
dissent?”

“It’s simple, really. The majority opinion took the position that the death penalty is always constitutional and within the power of the state. I simply made the point that, while there was no reason to believe it was unconstitutional in the case at bar, it was possible that the death penalty might be applied so inconsistently, or might be obtained so fraudulently, that it would constitute cruel and unusual punishment—the position taken by virtually every other highly industrialized nation on the planet. We’ve all heard about the capital convictions obtained in Oklahoma based upon evidence that was falsified by a forensic scientist who sacrificed her conscience in pursuit of her boss’s quest for a high execution rate. We know more than a hundred people have been released from death row because DNA evidence proved they did not commit the crime of which they were convicted. We’ve seen the studies that show that minorities are given the death sentence at a vastly higher rate than white defendants. We saw the governor of Illinois commute the sentence of every single prisoner on death row due to irregularities in the system. At some point, the Supreme Court might have to consider whether the state is required to establish some degree of certainty before it executes. We know a conviction is no guarantee of guilt. Maybe each state should establish an ombudsman or watchdog committee to oversee the process. Maybe the forensic evidence in capital cases should be double-checked by independent agencies. Those are matters for state legislatures to consider. My point was simply that, absent guarantees of fairness and accuracy, it was possible that a particular execution might be deemed cruel—because guilt was obtained by fraud—or unusual—because the sentence was applied disproportionately due to reasons of race or sexual preference.”

“Sounds to me like judicial activism of the worst kind,” Matera interjected.

Ben reached for the mike, but Roush responded before he had a chance to object. “That is exactly what this is not, ma’am. I specifically said that these are matters for the legislature to consider. The role of the appeals judge would simply be to consider whether the guarantees that lie at the heart of the Constitution are being observed.”

“Would those be the guarantees at the heart of the Constitution,” Matera asked, “or somewhere in the penumbra?”

“If I may be so bold as to interrupt the distinguished senator from Wyoming,” Dawkins said, “I was under the impression that this was my time with the nominee.”

“Well, when I hear activist balderdash like that,” Matera ranted, “I just can’t contain myself.”

“You’ll have to,” Dawkins said. “Because I’m not done.”

“Tell us the truth, Judge Roush,” Matera said, charging ahead. “You’re planning to repeal the death penalty first chance you get, aren’t you? That’s your secret agenda. One of them, anyway.”

Attack dog, Ben reminded himself. Attack dog. “I’m instructing the nominee not to answer.”

“Because you’re afraid of what he might say?” Matera asked.

“Because you do not have the floor, ma’am.”

Matera turned toward Senator Dawkins. “Will the senator from Minnesota yield the floor?”

“I will not,” Dawkins replied succinctly.

“Are you planning to filibuster?”

“I am planning to finish taking my turn.”

“Well, I’ve had about all of these touchy-feely-friendly questions I can stand.”

“I didn’t care much for the questions you asked yesterday, either, madam. But I still managed to keep my mouth shut while you asked them.”

“Mr. Chairman,” Matera said, “may I pose an interlocutory voir dire examination to clarify this point before Senator Dawkins proceeds with his questioning?”

May she pose a
what
? Ben thought. That wasn’t in the copy of Robert’s Rules of Order that he read.

“I’ll allow it,” Senator Keyes replied.

Dawkins appeared outraged, but Matera plowed ahead before he had a chance to say anything.

“Mr. Roush, I—and all of America, I think—would like a straight answer. Are you planning to repeal the death penalty?”

“I’m not planning to do anything,” Roush answered, “except consider the cases that come before the Court and rule on them to the best of my ability.”

“Can you promise that you will not attempt to repeal the death penalty—a penalty which, I might add, sixty-eight percent of all Americans favor?”

“It would be gross—” He glanced across the room at media-savvy Gina. “—er, wildly inappropriate for me to answer that question.”

“I’ll take that as a ‘no.’ ”

“You will take it the way it was given,” Roush shot back, his voice rising. His eyebrows knitted together. “You are asking me to predict how I would rule on a hypothetical case that is not before me, not before anyone—because it doesn’t exist.”

“All I’m asking for is a straight answer.”

“Mr. Chairman,” Ben said, jumping in, “this is not any kind of voir dire examination. This is harassment.”

“Oh, the nominee looks like he’s doing just fine to me,” Keyes said calmly. “But I think it might be time to return the questioning to Senator Dawkins.”

“Point of clarification,” Matera said, not giving Dawkins a moment to inhale.

“Very well,” Chairman Keyes said, with a touch of feigned weariness.

“Judge Roush, is your fanatical opposition to the death penalty based upon your fear that your boyfriend will be the next person who gets it?”

The Caucus Room erupted. Not just the press, but almost everyone in attendance gasped, whispered, cheered, booed, or raced for the door. On a side monitor, Ben could see that the camera was moving in for a close-up of Roush. He was trying to remain calm, but for perhaps the first time in the entire proceeding, he was losing the battle. Sparks of anger seemed to leap from his eye sockets.

“I have been instructed by counsel not to discuss the tragic death that occurred at my home—”

“I don’t care what your lawyers said,” Matera snapped back. “A woman was found dead in your garden, and it looks like your longtime homosexual lover killed her.”

“He did not,” Roush replied, clipping off each word.

“How do you know? Were you with him in the garden?”

“I know.”

“If he didn’t,” Matera said, “the only other person who could’ve done it was you.”

“That’s not true, there were hundreds of—”

“Listen to me, both of you,” Ben said, snatching the microphone away. “You are not supposed to be discussing this. We have been told not only by counsel but by the police—”

“I think the American people have a right to know!” Matera said, pounding the bench. “They have a right to know who we’re putting on the Supreme Court. A murderer’s accomplice? Or the murderer himself!”

Roush leaped to his feet. Ben tried to pull him back, but it was no use. He had totally lost it. “I have known Ray Eastwick for seven years,” Roush shouted. “He is not a murderer.”

Matera scoffed. “Love is blind.”

“He did not kill that woman!”

Pandemonium ensued. The chairman pounded on his bench, but the uproar was not quelled. Ben tried to object in his most fiery attack-dog manner, but no one was listening. Despite their best precautions, the murder had been dragged into the hearings, dragged into the living room of every American watching. Matera would be criticized tomorrow in the press, but what did she care? She was retiring at the end of this term, and now she would retire the hero of her party and her President. Roush would go down in flames. Haskins would be nominated, and a week later, no one would remember who Roush was. A hard-liner would replace a man with a conscience.

And it was all Ben’s fault.

27

O
nce again, Loving fought traffic on the elevated Whitehurst Freeway, wondering how a nice Oklahoma boy like him had ended up in D.C. Sure, Ben had helped him when he needed it most, and he would do anything for the guy—within reason. This East Coast relocation was really pushing it, though. At least the Potomac was quiet tonight. He’d come from the south, near the Woodrow Wilson Bridge, and the engine noise of the police patrol boats was happily absent. He took the usual crisscross of highways and byways to Georgetown, then parked near a rather dilapidated neighborhood. Loving could tell it had once been a thriving commercial center, but apparently the rise of the nearby Georgetown Waterfront Complex had stolen the tourists and the shoppers. He didn’t know who might be having a meeting in a neighborhood like this. No one he wanted to meet.

Except for Trudy, of course.

He walked parallel to the waterfront, then took a shortcut through Francis Scott Key Park. Nice place, especially for a guy whose main accomplishment was writing the lyrics to a song no normal human could sing. Loving tried to pretend the neighborhood wasn’t giving him the creeps, but it was, and no degree of self-disciplined self-denial was going to make him forget it. As the environment grew worse and worse, it became harder and harder to believe he was still in the nation’s capital. Granted, you only had to travel half a mile from Capitol Hill to be in the slums, but even the slums weren’t as bad as this sleazy, dirty, depopulated neighborhood. The street itself seemed to reek; the stink rose from the waterfront, the abandoned buildings, even the pavement. The only people he saw were pimps and prostitutes. He couldn’t even retreat to the alleyways, as was his usual wont, because every time he tried he bumped into a drug deal in progress. He couldn’t wait to get out of there.

Loving had taken the DocuPen back to the office, and Jones—when Loving could pry him away from the C-SPAN coverage of the hearing long enough—plugged it into a USB port and brought up the calendar pages he had scanned. The listing for that night didn’t give any indication of what Nadya was planning to do, but it did give an address, which in the long run was far more valuable. He’d find out what Nadya and her friend Trudy were up to when he got there.

He rounded a corner and saw three white punks huddled around a fire set in a metal trash can. It was not a cold night; he supposed this had been done just for dramatic effect. Didn’t take a genius to figure out they were gang members. He kept his eyes focused front and center and hoped he could pass without incident.

“Whatchoo doin’ on mah street, bee-otch?” one of the punks sang out.

Loving had to suppress a grin. He loved it when white boys tried to talk black. It was so pathetic.

“Just passin’ through,” Loving said, with a nod of the head. He didn’t stop walking.

“Betchoo I know whatchoo want,” another offered. “I’ll give ya some,” he added, wiggling his ass.

Loving sighed. It would be so pleasurable to stop and beat the living crap out of these kids. But he supposed he’d best stay on task.

Halfway down the street, a bullet whizzed by, just above his head.
Damn!

Loving ducked and ran. Crouched but still in motion, he made tracks toward the street corner. None of the shops were open; there was no place to duck into for safety. Another gunshot, and even the street punks scrambled. Loving saw a bullet hit the brick wall just beside his head. Judging from the angle of deflection, it was coming from somewhere above him.

Sniper. And him with no place to hide.

This could be a problem.

Loving raced across the street and dove toward a small grocery on the corner, hoping it would be open. It wasn’t. He considered breaking in, but he knew that by the time he managed that, even the clumsiest of snipers would have nailed him. He kept running, dodging in one direction, then another, hoping that if he stayed sufficiently serpentine and unpredictable he might last a little bit longer. He had almost made it to the end of the street when he saw a black sedan pull up on the opposite side.

A rear door opened. Pretty Boy appeared.

He was carrying his machine gun.

Someone else was getting out of the back of the car, too, but Loving didn’t stop to take notes. He backtracked a few steps and then turned left, hoping to get as far as possible as quickly as possible. As soon as he saw an alleyway, he raced into it. He didn’t care who was in there; he needed cover, fast. He flung himself between two sleazy-looking old men who were taking something down, knocking away everything they held in their mutual hands. Might be a trillion dollars of heroin hitting the pavement for all Loving knew, and for all he cared. He had to stay safe. He searched for a trash Dumpster, anything that might shield him. There was nothing. Probably just as well. If he stopped anywhere, Pretty Boy and his new playmate would close in quickly.

He stopped for a moment to catch his breath, wondering if he were still within the sniper’s range. Another gunshot rang out, ricocheting off the walls and burning into the pavement not a yard from his foot. Well, that answered that question.

He resumed running, wondering how close the killer really was. It was entirely possible he was not pinned down to a sniper’s nest but mobile, moving from rooftop to rooftop, able to follow Loving almost anywhere. If that were the case, he was a thousand times more dangerous.

Loving wasn’t safe in the alley, obviously, so he plunged out the opposite opening and kept running. He started right, but another bullet burned a trail before him. He whipped around and started in the other direction. He’d been lucky so far, given that the sniper had an obvious advantage on him. In fact, he’d been far too lucky. There was only one possible conclusion.

The sniper wasn’t trying to kill him. He was trying to herd him. Probably toward Pretty Boy.

Sure enough, at the end of the street, well before he arrived, Loving saw Pretty Boy and his new companion whip around the corner, arms at the ready. The new guy was probably a professional, but Loving could tell he wasn’t in Leon’s league. They’d fired Leon to punish him for his previous failure, which was mostly Pretty Boy’s fault, and now they were suffering for it. This man was older, more haggard, tall and too relaxed for modern-day murder, especially when the target not only knew someone was after him but had some experience at avoiding trouble. Definitely not a Leon; more like Max von Sydow in
Three Days of the Condor.
Who, Loving recalled, never did manage to plug Robert Redford. But Loving supposed he couldn’t expect this story to have the same happy ending. This wasn’t a movie, and besides, he was much better-looking than Robert Redford.

He had about a third of a second to make a decision. The two hit men were in front of him, the sniper was behind, and the only other thing on the street was a flight of stairs leading to the subway.

Loving hated to do it. He knew that once again going into a crowded place would endanger innocents, especially given Pretty Boy’s proven penchant for firing his weapon in public. But there was no alternative.

He hit every other step on his way down the metal stairs, then plunged into the throng. He pushed his way through the crowd and leaped over the turnstile. He didn’t have time to pay the fare. He realized that it might get him arrested, but at the moment, that would be a good thing. If he could attract some law enforcement attention, it was just possible the killers might back off. He tore down another flight of steps and moved toward the trains.

A bullet whizzed just in front of his face, this time so close there could be no question in his mind: these people were trying to kill him, no matter who else got hurt. Some of the people around Loving realized what had happened and ducked or screamed, but the station was so crowded and so noisy most people didn’t notice at all.

Where were they?

When he looked up, Loving got his answer—one he didn’t like at all. Pretty Boy and Max were perched on the upper level. They’d found an overlook, a balcony of sorts, and it gave them a perfect view of everything below. There was no way he could escape them, especially if Pretty Boy opened up his automatic weapon on the crowd. It wasn’t nearly packed enough for Loving to get lost in the melee. And there was no telling how many people might die if serious gunplay ensued.

He didn’t have time to deliberate at length. He just went for what seemed like the smart thing at the time. Loving cupped his hands to his lips and bellowed: “Look out! Sniper!”

As if in answer, another shot rang out, and the crowd went crazy. Everyone was screaming at once, moving a dozen different directions, colliding and fighting with one another. Despite all the movement, no one was getting anywhere. It was a frenzied crowd. Men, women, and children panicked. Loving felt bad about creating terror in these terror-filled times, but his actions had the desired effect. Now there was far too much activity for the assassins to get a clear shot. Pretty Boy might not care if he hit a stray bystander or two, but apparently he drew the line at wholesale slaughter.

Good. Keeping a crowd packed tightly around him, Loving managed to slide down the passageway until he was out of sight of the balcony. He ran up another flight of stairs, but instead of crossing to the trains moving in the opposite direction, he kept going to the street level.

Loving emerged gasping, desperate for air. He looked both ways down the street, then above to the rooftops. As far as he could tell, he’d lost the assassins. But how could he be sure? And what if he was still within the snipers’ range?

He leaned against the wall, trying to slow his heart, trying to get a grip on himself, wiping the sweat from his brow. Twice now he’d managed to escape what looked like certain death. How long could he realistically expect to keep this up? He had to find out what was going on, and not just for Thaddeus Roush’s sake—for his own sake as well.

Loving limped to the corner until he could read the street sign by the poor illumination provided by a nearby lamp.

He had to laugh. Maybe it was just the emotional release that follows periods of great anxiety, or a final kick of adrenaline, but he found himself laughing and crying all at once, so hard his sides shook.

He’d ended up exactly where he’d been planning to go in the first place. Even the right city block.

He’d have to remember to send Pretty Boy and Max a thank-you note for helping him find his destination. He was usually so poor with directions.

And then a thought hit him, one that sent shivers right up his spine.

Was it possible the killers already knew where he was going? Is that why they were able to have a sniper in place before he got there?

Loving raced down the remainder of the street, even though his side and his sore leg ached, until he found the number he wanted. He ran up the short porch steps and down the hall to a door and peered through the window at what appeared to be the backstage of a small auditorium. What kind of criminal operation took place here? he wondered. Drugs? Is that what this case was about? Is that why someone was so determined to kill him—to protect his stash? Maybe the place had been converted into a bordello. Maybe some kind of gambling ring. A gangland hideout.

There was no way for Loving to know. The only thing of which he was certain was that he was better off inside than out, so he stepped into the dark auditorium.

He took a cautious step forward, trying to make as little noise as possible. He could hear someone on the stage talking. As he approached, he realized that there was not only someone on the stage, but several rows of people sitting in the audience.

What was this? An underworld crime boss meeting? A perverted sex show? What kind of den of iniquity had he stumbled onto this time?

He took a tiny step closer—and that was when the man on the stage spotted him.

“Ah—here he is!” he said, gesturing offstage toward Loving. The audience burst into applause. “And what kind of poem will you be reading, sir?”