The 37th Amendment: A Novel (9 page)

“Objection.” John Morley Jackson’s voice was even and calm. “Relevance.”

“Overruled,” the judge said quietly. “Answer the question, please.”

Rand hesitated. “They play a part,” he said. “They perform a part written by a playwright or screenwriter.”

“Or a lawyer?” Logan asked.

“Objection!” Jackson shouted.

“Sustained,” said the judge. “The jury will disregard Mr. Logan’s last question.”

“And would you tell the jury in your own words,” Logan continued, “what it is that a magician does?”

Rand sighed. “They perform illusions,” he said.

“Illusions?” asked Logan. “Would it be fair to say that magicians persuade an audience to believe something that is, in fact, not real at all?”

“Objection!” Jackson repeated.

“Overruled,” the judge said. Rand looked over at his attorney, then at Logan. “It would not be fair,” he answered, “because people know the difference between what is true and what is not true, no matter how it appears at that moment.”

Logan looked irritated. He scanned his notes for a long moment. “No more questions,” he said, turning abruptly and walking back to his seat.

“Redirect?” asked the judge.

“No, your honor,” Jackson said. “We’re ready to call our next witness.”

The judge nodded. “Go ahead, then,” he said.

“Your honor,” Jackson said, “The defense calls Ted Braden.”

Ted’s testimony did not take long. Under the precise questioning of John Morley Jackson, he pinpointed exactly when Robert Rand arrived at the Laker game on February 21st. It was just minutes after the murder of Maria Sanders was committed.

Jordan Rainsborough began her cross-examination immediately. “Mr. Braden,” she said, “Is it true that Mr. Rand owes you $500?”

Ted was startled. Had Rand told her that? “Well, not really,” he said. “It was just a basketball bet. I’m not trying to collect from him.” He looked over at the defense table. Rand smiled. Dobson Howe was frowning and John Morley Jackson was staring at Ted with unusually focused eyes.

“You made a $500 bet on a basketball game with the defendant?”

“On the playoffs, yes.”

“Do you generally make bets with strangers, Mr. Braden?”

“No, of course not.”

“The person you’d make a bet with is generally someone you know, someone you see regularly—it’s kind of a guy thing, isn’t it?”

“I suppose it is.”

“Is it also kind of a guy thing to stick together when somebody’s in trouble?”

“Objection!” Jackson shouted.

“Sustained,” said the judge.

“Withdrawn,” said Jordan. “No more questions.”

The jury deliberated for two hours Thursday afternoon. At 4:35 p.m. they returned a verdict of guilty on two counts of first-degree murder with the special circumstance of the murder of a law enforcement officer. At 4:45 p.m. Judge William Bryce, acting under California’s mandatory sentencing guidelines, sentenced Robert Rand to die by lethal injection at 9:00 a.m. the following Wednesday. The execution was stayed by order of the United States Supreme Court pending a decision in the case of
Owens v. United States
.

C
HAPTER
5

“O
wens v. United States
?” Ted asked. “What’s that all about?”

He was seated in Dobson Howe’s office, twenty-three stories and thirty minutes removed from the grim scene in the courtroom. John Morley Jackson had stayed with Emily Rand. Dobson Howe had asked Ted to come back to his office for a few minutes and Ted, shaken, had followed him to the car without a word.

“
Owens v. United States
is a case brought by California’s Attorney General against the U.S. government,” Howe explained. “California is challenging a federal law which restricts the use of capital punishment.”

“Is this the five-year waiting period law?” Ted asked.

Howe nodded. “Congress passed a law mandating that no death sentence could be carried out in any state until at least five years after conviction, in order to allow a reasonable period for new evidence to emerge and for mistakes to be discovered.”

“And for appeals, right?”

“No.”

“No?”

“No. Congress was troubled by the possibility that California’s expedited procedures would result in mistakes. They didn’t want mistakes. They also didn’t want murderers freed on what they considered to be technicalities. The result of this was the Ramirez Act, which mandates a five-year waiting period for executions and at the same time strictly limits federal appeals of state convictions.”

“So Robert Rand has five years to find something that exonerates him?”

“For now,” Howe said. “California has taken the position that the five-year waiting period provision of the Ramirez Act is unconstitutional. They’ve asked the U.S. Supreme Court to rule that Congress has no power over California criminal law. We’ll see.”

“There has to be some kind of appeal that’s possible,” Ted insisted.

“Oh, you think so?” Howe’s smile was grim. “Not under the terms of the Ramirez Act. The writ of habeas corpus is a thing of the past, unless there’s illegal discrimination or some other specific federal issue. For someone like Mr. Rand, a white male convicted of a state crime in a state court, no federal appeal is possible.”

“Well, what about appealing to the California Supreme Court?”

Howe shrugged. “The California legislature has given great discretion to prosecutors in cases of violent crime,” he said. “Judges, on the other hand, have very little discretion.”

“I don’t understand this,” Ted said. “You have rights under the Constitution. Why can’t a judge enforce them?”

Howe leaned back in his chair and pushed his legal pad to the side of his desk in disgust. “It’s my fault, apparently,” he said.

Ted looked at him.

“That’s what Jackson says. He thinks it’s my fault. And he’s probably right.”

Ted was silent.

“You see,” Howe continued, “If I hadn’t pushed for the Equality Amendment, if I had been satisfied to let the courts continue enforcing equal rights through the reasoning they used in the desegregation cases, we might not have arrived at this point today.”

Ted blinked. “If you say so,” he said pleasantly. “Got any Scotch?”

Howe waved his hand in the direction of the bar. “But how could I leave it alone?” he asked. “It wasn’t right. It wasn’t secure. Constitutional rights belong in the plain language of the Constitution. Out of reach of judges. Out of reach of Congress.” He sounded as if he were arguing with a firing squad. “You can’t even imagine it today. In every election campaign we heard that civil rights could be rolled back if the wrong man became president. Why? Because he would appoint the wrong Supreme Court justices. And they would reverse the decisions of the right Supreme Court justices. And our rights were hanging by a thread. Sometimes less.”

Ted placed a drink on Howe’s desk and sat down with one himself.

“And it wasn’t just blacks,” Howe continued. “It was the same for women. In every presidential election, a woman’s right to a legal abortion—they used to call it ‘the right to choose’—was at risk. Now why, I ask you, was a woman’s right to choose at risk while a woman’s right to vote was secure? Why? Because a woman’s right to vote was in the plain language of the Constitution. Nothing could change it except a two-thirds vote of each house of Congress and the ratification of three-quarters of the states. But a woman’s right to choose, well, that rested on a bare majority of justices who discovered a right to privacy in a penumbra emanating from the Bill of Rights. That’s not a Constitution, that’s a Ouija board.”

Ted just blinked, and sipped his Scotch, and waited. Howe was on his feet, pacing the width of the office with the intensity of a tornado. “People don’t understand the nature of a constitution,” he boomed. “It says what it says, and it’s not enough to imagine that it says something more. If it doesn’t say what it should say, it must be amended. And it never said segregation was unconstitutional. It never said equal rights were guaranteed regardless of race. That was pulled out of thin air under the guise of interpretation. Everybody knew it, and no one would say it. But it was true, and here’s how you could tell: Whenever a Supreme Court justice retired, you would hear screeching from coast to coast that the wrong nomination could mean the undoing of all our progress on civil rights. Some even predicted a 5-4 decision that would take us back to
Plessy v. Ferguson
. Separate but equal. You see? This was only possible because the Constitution did not actually, truly, plainly ban racial discrimination. That’s why I pressed for the Equality Amendment. It was time. It was long past time.”

Howe returned to his desk and sat down heavily. The strain of the day was visible on his face. “What I hadn’t foreseen,” he said, reaching for the icy glass that had begun to drip a wet ring of condensation on his desk blotter, “was that others with less understanding would use my arguments to successfully press their own ideas for constitutional amendments. Thankfully, some of those were eventually repealed. I hope that will be the fate of the 37th Amendment as well.”

Ted took a long sip of Scotch. “The 37th Amendment,” he said, nodding. “Which one is that?”

Howe sipped his Scotch, then drained it. “The 37th Amendment,” he said quietly, “repealed the ‘due process’ clauses of the Fifth and Fourteenth Amendments. It replaced them with what is now known as the ‘law of the land’ clause.”

Ted looked blank. Howe leaned back in his chair. The soft leather made a sighing sound. “The Constitution at one time guaranteed that no person could be deprived of life, liberty or property without due process of law,” Howe explained. “Today it says no person shall be deprived of life, liberty or property in violation of the law of the land.”

“What’s the difference?” Ted asked.

“Well, the practical effect,” Howe replied, “was to dissolve a long string of Supreme Court decisions protecting the rights of criminal defendants in state courts. During the 1960s, the Court under Chief Justice Earl Warren held that the protections listed in the Fourth, Fifth, Sixth and Eighth Amendments to the U.S. Constitution were so fundamental to the concept of liberty that they were essentially incorporated into the idea of due process. And because the Fourteenth Amendment prohibited the states from denying due process of law to any person, the states were thereby required to give criminal defendants the protections of the federal Bill of Rights in all state court proceedings. This was a revolutionary idea. Previous Courts had consistently held that the Bill of Rights was binding only on the federal government, not on the states.”

Ted nodded.

“So when the 37th Amendment was ratified in 2016, repealing the due process clauses, the effect was to remove the protections of the federal Bill of Rights from defendants in state courts. They have the protection only of their state constitutions and their state laws. They may not be deprived of life, liberty or property in violation of the law of the land, whatever idiocy that happens to be at the moment. In California, it is the law of the land that cases involving violent crimes are tried under so-called expedited procedures. You are a living witness to the tragic results.”

Ted stared into his empty glass, watching the reflection of the recessed lighting fixtures wobble on the wet surface of the ice cubes. “Was there something you wanted to discuss with me?” he asked finally.

“Yes,” Howe said. He stood up and moved to the armchair next to the sofa where Ted was sitting. “You’re in the advertising business, is that correct?”

“Yes.”

“It’s my belief, though I can’t prove it,” Howe said, “that the eyewitnesses who identified Robert Rand did so because they had seen him on television. Our only hope to save Mr. Rand’s life is to build a credible case for mistaken identity and try to get the governor to commute the sentence.”

Ted was hesitant. “How can I help with something like that?” he asked.

“Well, I’m not sure,” Howe said. “I thought perhaps you might have access to records of airplay, that kind of thing. Emily Rand can provide you with a list of programs in which Rob has appeared.” He looked helpless, lost in a strange business.

Ted nodded slowly. “I believe that’s possible,” he said. “It’s not really my area. It’s more the media department. But it’s possible.”

“There may not be much time,” Howe said.

Friday, May 19, 2056

Ted held up his hands. “Wait,” he said. The six people crowded around his desk all stopped talking and stood motionless for a moment. “All right,” Ted said. “One at a time. Miller, you first.”

Art director Miller Sebring spoke slowly and clearly. “The client doesn’t like the font,” he said.

“Okay,” Ted said. “Change the graphics.”

“Not just the graphics,” Miller said. “The animation. The lettering that cuts into the side of the mountain. Today’s Friday. This goes on the air Sunday. It’s a 30-hour job to redo that animation.”

“All right,” Ted said. “Hire as many extra animators as you need to get it done by tomorrow evening. Or get whatever hardware you need. This ships out at 5:00 a.m. Sunday morning, we can’t change that. What else?”