Authors: Allen Drury
Tags: #Literature & Fiction, #Contemporary, #Genre Fiction, #Political, #Contemporary Fiction
Decision (59 page)
“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.
When 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.
“Well: the majority has canceled the death penalty in this case, but it has done so by indirection. It has not met it head-on—”
(“What does that matter,” the new young lady from the
Des Moines
Register
whispered anxiously to her companions, “when they’ve
done
it?”
“Hush!”
one of her older colleagues ordered severely and she never did find out.)
“—it has not seized the opportunity to condemn it as it should be condemned. It has evaded the issue.
“Nor has the majority addressed itself to the broader constitutional aspects, the nature of the trial, the improper place of public pressure, the monstrosity, I repeat once again, of the television proposal. We cannot agree with the majority. In our opinion the case should have been remanded back to South Carolina for re-hearing. The trial should have been vacated, given a really honest and objective jury, kept genuinely free from the hysterical stunts of this so-called Justice NOW! that besmirches America with its rabid ravings and demonstrations and—and—” he spat out the word,
“rallies
designed to try to twist the laws and blackmail this Court into becoming a star chamber!…
“I am joined in this opinion by my Sister McIntosh and my Brethren Ullstein and Demsted.”
He paused; blinked; thought for a moment; concluded in a quieter, more reasonable tone.
“I am not sure all of my colleagues of the minority join me in some of my references to the majority or in some of my language. Now and again, sometimes, I get a little carried away: a little harsh, perhaps. I don’t really mean to, but I feel these things.
I
feel these things! They are important to me …
as, I suppose,” he acknowledged with a glance along both sides of the bench that brought wry but basically friendly nods from all but Moss, still angry, and Tay, still staring far away, “they are important to all of us. They have to be.”
And he sat back as the Chief looked down at the media, smiled and said,
“Now,
ladies and gentlemen. All opinions, of which there are the two major and seven dissenting or concurring in some degree, are available to you in the press room. The Court stands adjourned until the first Monday in October.”
***
BOOK FIVE
***
Chapter 1
The Court had spoken. The media split between metropolitan and small-town along easily predictable lines.
“A sharply divided Court has stood the Constitution on its head,” remarked the
New York Times.
“Justice Barbour’s opinion is very clever, but it is a clear evasion of responsibility.”
“There is equal justice under law for somebody,” observed the
New York Times,
“but apparently not for Earle Holgren.”
“Justice has been rendered fittingly on a convicted murderer,” said the Porterville, California,
Recorder.
“The Court was wise to adhere to the law and skip the diversions that might have been lavished on the death penalty and the television aspect,” agreed the Fort Myers, Florida,
News-Press.
And so it went across the country, and, indeed, across the world.
Television’s general emphasis was anti-Court, since from neither majority nor minority had it really received any consolation. “Where does this leave the networks?” CBS’ sage-in-residence inquired, looking into the camera with an earnestly offended expression. Echo answered, “Where?” and from the offices of Eldridge, Muggridge, Pockthwaite and Thistle came only silence.
Neither the major media nor Justice NOW! were satisfied with the performance of the Court’s newest member. Critics in the media were savage in their condemnation of his “wishy-washy reasoning,” his “almost cowardly evasion of responsibility,” his “willingness to allow an understandable human repugnance toward the petitioner to overcome a lifetime’s dedication to the finest standards of the law.”
“A fine reputation (so averred the
Times)
has been shattered and a long shadow, from which he will be a long time emerging, has been cast over his value to the Court.”
Justice NOW! was more direct. The first reporter who emerged from the Court after the decision was bombarded with questions. As soon as he had given his answers an ominous angry chant began to rise:
“Down with the Court!”
And on alternate beats, heavier and more insistent:
“DOWN WITH BARBOUR!”
By the time the Justices departed half an hour later via the garage entrance, the hostility had become organized. Banners had materialized and numerous straw figures labeled “The Court” and “Two-Faced Tay” suddenly dangled together from lampposts around the building.
It was not comforting for the Justices to see, as their cars were sped swiftly away in the midst of police motorcycle escorts, that many of the figures had already been ignited and were beginning to send up heavy puffs of smoke; nor to hear on the car radio as their convoys took them fast but skillfully through the noonday traffic to their respective homes, that Justice NOW! was already out with a strongly hostile statement.
“Justice NOW! cannot condemn too strongly,” its concluding sentences read, “the way in which the Supreme Court of the United States has chosen to override the just conviction and sentencing of a murderous criminal. And we specifically deplore and condemn the part played by Justice Taylor Barbour, who should know, if anyone does, how deserved and how right were the conviction, the death penalty and the television proposal for the man who destroyed his daughter.”
“Poor Tay,” Justice Ullstein remarked to his passengers Mary-Hannah and Hughie. “He can’t win.”
“Clem would probably say he doesn’t deserve to,” Hughie said. “I was disappointed in him myself, to tell you the truth. But I can see his reasoning. I think.”
“He has to live with it,” Mary-Hannah observed. “I don’t envy him. It will take him a while.”
He had already learned that it would take him a while, though his sister and his brethren could not know it. When he left the Robing Room and returned briefly to his chambers before leaving the building, he found a lonely figure waiting for him in the corridor, otherwise deserted save for a guard seated in his usual position far along toward the center of the hallway in front of Rupert Hemmelsford’s door. No one else was in its empty echoing marble expanse.
Her face was drawn and stricken; she looked, as Regard had remarked in what now seemed a long-ago moment when they had seen her waiting at the hospital in Columbia, like “a bedraggled little swamp-hen of a gal.” But her eyes were blazing with anger, her expression was one of cold contempt, her voice trembled with a consuming and implacable rage.
“How could you!” she cried in a tense whisper, modulated enough so the guard would not hear but carrying clearly to Tay as he approached. “How could you? How could you betray everything you’ve always stood for all your life? How could you betray everybody who believes in you? How could you betray us? How could you be such a clever coward?
How could you?”
“Miss Donnelson,” he said, trying to keep his own voice low and calm, though suddenly all the accumulated tensions of recent hours—his desperate unhappiness for Janie—his hatred for Earle Holgren—his terrible struggle with his conscience—his innermost, devastating thought that perhaps in many eyes whose respect he valued he
was
only a “clever coward”—seemed to boil over inside him and threaten a rage as explosive and vindictive as her own. “I do not care to defend my decision to you or to anyone. I have rendered it, I have been supported by a majority of the Court. The matter is closed. Now please get out of my way and let me enter my office.
Get out of my way.”
“I won’t!” she cried, louder now, spreading her arms across his door. Down the corridor the guard, aroused from his customary amiable lethargy, rose and began to come toward them. “I
won’t!
You owe me an explanation, Taylor Barbour! You owe the whole world an explanation! The great liberal! The great lover of mankind! The great, compassionate—”
“Miss Donnelson,” he said, his own voice rising sharply in spite of his determination to hold it down, “go back to your murderer and leave me alone! You ought to be thankful we left him alive, monster that he is. He deserved nothing from us—nothing from me—
nothing! And I let him live.
If you haven’t got sufficient gratitude to realize
that—”
“Gratitude for what?” she demanded. “Gratitude for your ducking the death penalty? Gratitude for your betraying yourself? Gratitude for betraying all who believe in you? Gratitude for—”
“Justice,” the guard said, sounding tough—Supreme Court guards had never had to sound tough up to these last few days, the pace was pretty slow most times, but he found he rather enjoyed it, actually—“Justice, do you want me to remove this woman? Shall I put her in jail?”
“Not in jail,” he said, icily calm as she became more frantic. “All she’s doing is talking. It’s still a free country. Just remove her from my door and put her out of the Court. That will be sufficient.”
“You’ll see if all I’m doing is talk!” she screamed with a sudden violence that startled them. “You’ll see! You’ll see!”
“Guard!”
he said sharply.
“Yes, sir!” the guard said hastily, grabbing her arm and yanking her, still screaming, obscene and unintelligible now, down the hall. “Get along out of here, now, you!”
And in a moment they were gone, her voice screeching quickly away into silence; and the corridor was deserted and still again. He stood absolutely rigid for several moments calming his whirling thoughts, resting his hand on his door as though to protect it from some mysterious, unexpected assault; presently tried it, found it locked, unlocked it, opened it and went in. His secretary and law clerks, he was thankful to note, had gone to lunch. The office was as silent and deserted as the hall. He walked through to his inner chamber, tossed his copy of the majority opinion on his desk, started to pick up the latest appeals for certiorari that he would take home to begin his work for the summer; paused suddenly and returned to his desk.
Picking up the majority opinion again he wrote on it in a firm hand that did not tremble, though he was still breathing heavily:
“First opinion delivered by me in the Supreme Court of the United States”; dated it, signed it, replaced it, neatly this time, on his desk.
“I’ll have to send that to the Library of Congress for my ‘Court papers,’” he said to the empty room with a strange ironic bitterness he couldn’t quite understand. “Probably won’t be anything else worth saving.”
Then he too left the Court and went, in his police-escorted car, past the jeering crowd and the burning effigies of “The Court” and “Two-Faced Tay,” back to the house in Georgetown and the call that he knew would inevitably soon come.
When it did it was similar in tone and general thrust to the berating he had just received. He took very little of it before he put it, finally and forever, to rest.
“I can’t seem to satisfy anyone, can I, Mary?” he inquired with a wryness that only seemed to provoke her further.
“No, you cannot!”
she said with a harsh anger she could barely control. “How you could be such a weakling as to sidestep the death penalty I’ll never know! How you could be such a clever coward when your own daughter lies ruined forever by that monster! Why you didn’t—”
“Mary,” he interrupted, voice calm and certain at last because the eerie repetition of “clever coward” did it, suddenly everything fell into place. “I want a divorce. Now.”
“I’m not going to give you one!”
“Then I’m going to sue for one,” he said calmly.
“On what grounds? Have
I
been a poor wife? Have
I
had a sneaky little affair? Have
I
betrayed myself and my own daughter with a cowardly opinion from the Supreme Court—”
“That’s not a ground for divorce,” he said with a ghastly sort of humor, “and the rest you can’t prove. I’ll sue you, Mary, and I’ll win somehow, if it takes me all my money and the rest of my life. So make up your mind to a hell of a messy public fight, or give it to me. Yes or no.”
There was silence for a time, frozen and complete. She did not sob or cry or outwardly indicate emotion, though her voice when she spoke did tremble a little. He supposed that somewhere, in some part of her being that still possibly treasured him or her earliest memories of him, it did hurt her; as, to his profound surprise now that it was actually here, he found it hurting him. Not enough to stop him, however. It was far too late for that.
“What about Janie?” she asked at last.
“She’ll be taken care of. That’s our joint responsibility, now and always.”
“I can have her, then.”
“Mary,” he protested, “you don’t know what you’re taking on. I beg of you,
please
don’t start that again. She’ll be so much better off in a place that’s really equipped to take care of her. Really she will.”
“I’m not going to have her in an institution—”
He sighed.
“I’m not going to argue that with you now. Well have to work it out as we go along. For now, the question is divorce. Do I get it without a battle or do I have to make a public fight for it?”
Again there was a long pause. Finally she too sighed, a deep, dragging, infinitely weary sound, and surprised him utterly.
“If it will really make you happy, Tay—”
“It will,” thinking, astounded, Whatever made her change her mind and give in so easily? And telling himself quickly, Don’t ask, don’t hesitate, accept it and be thankful,
fast.
He repeated firmly, “It will.”
“Then I suppose,” she said in a remote tone he mistook for disinterest, “it will have to make me happy, too.”
“Thank you, Mary,” he said gravely. “I think you’ll find it will.”
“I hope so,” she said; and added in an odd forlorn little voice, “There never has been a divorce in my family.”
“Mine, either.”
It was only then that she began, at last, to cry, awkward, agonized, wracking sounds that seemed to come from the depths of her being.
But it was too late now.
A few minutes later, while he was puttering about in the kitchen getting himself a cup of soup he didn’t really feel like eating, the phone rang again. He knew who it would be but the last thing he felt like now was talking to her or seeing her. He tried not to sound brusque when he answered, but must have because she responded quickly in an alarmed tone,
“What’s the matter?”
“I’m sorry,” he said. “I’m just tired, I guess. It’s been a big day.”
“I think you did the right thing,” she said, accepting his explanation at once without comment. “It was the best possible compromise, it seems to me; the only thing you could do, under the circumstances.”
“I didn’t strike down the death penalty, though,” he said; and must have revealed uncertainty because she replied immediately,
“Nonsense! Why did you have to? You set it aside, didn’t you? You vacated it. And you still put Holgren away where he can’t bother anybody anymore. What more could any reasonable person ask?”
“Nobody’s reasonable about this case,” he said. “Maybe I wasn’t myself.”
“The majority went with you,” she objected stoutly. “What are you brooding about?”
“I’m not ‘brooding.’”
“It certainly sounds that way to me.”
“Well, I’m not,” he said, sounding a little amused and more relaxed.
“And the majority
did
go with you, right?”
“Oh, yes, they were glad to do so. The Elph lined them up. Anyway, they wanted to. They were as relieved as I was to find a way out—a middle ground. That’s always best for the Court and the country, if it can be done.”
“So why are you upset? I don’t get it.”
“A lot of things I want to tell you about, but not—right now.”
“Oh,” she said, trying not to sound disappointed, not succeeding. “I was hoping you would come over for dinner tonight. I’ve parked the kids with friends of mine in Alexandria and I thought now that it’s all over, we could—”
“I’m sorry,” he said; and repeated with a sudden urgency—“
I am sorry.
But for a while—a few hours, anyway—I think maybe—if you can understand and forgive me—I just want to be alone. I just want to think about it some more and come to terms with myself about it.”
“I thought you’d done that when you made your decision,” she said, but gently.
“I did but—I didn’t. I need to be at peace with myself. Can you understand that?”