The Tenth Justice

At seven the following morning, Ben walked into Justice Hollis’s chambers wearing plaid shorts and a faded T-shirt. “BEN, IS THAT YOU?” he heard Lisa shout from their office. “Get your ass in here!”

“What’s wrong?” Ben asked, running into the office. “Are you okay?”

“You won’t believe what just happened.” Lisa’s fingers were racing through the Rolodex on her desk. “I got a call from the governor’s office in Missouri, and we have twenty-four hours to act on this application for a death penalty stay.”

“What are you talking about?” Ben asked, throwing his briefcase on his desk.

“Here it is!” Lisa proclaimed, pulling a card from the Rolodex. Turning to Ben, she explained, “There’s a murderer in Missouri who killed three little kids. He was sentenced to death about ten years ago and his case has been appealed through the courts since then. The execution was set for October, but for some reason, the state bumped up the date to tomorrow. He’s allowed an appeal to the Supreme Court, so we now have twenty-four hours to find Hollis and get his opinion.”

“How do we reach him?” Ben asked.

“That’s what I’m trying to figure out,” Lisa said, holding out the Rolodex card. “He left me the number where he was staying in Norway, but apparently he went traveling for a few days. I took his Rolodex from his office. I know he has a sister who lives in California, so I’m going to call her.”

Ben picked up his phone, dialed information, and asked for the number of the U.S. Marshals Service. Looking at Lisa he said, “Every justice has to have a marshal with them at all times. They must know where he is.”

“Hi, Mrs. Winston?” Lisa asked. “I’m so sorry to wake you, but I’m a clerk for Justice Hollis and we need to reach him. It’s an emergency.”

“Hello, is this the Marshals Service?” Ben asked. “This is Ben Addison calling from Justice Mason Hollis’s chambers. We need to reach the justice. It’s an emergency.”

“She doesn’t know where he is,” Lisa said, hanging up her phone as Ben explained the situation to the Marshals Service.

“Uh-huh. Okay. Yes, definitely,” Ben said.

Lisa smacked Ben on the arm. “What’re they saying?”

“They know where he is,” Ben said, hanging up. “They won’t give us the number, but they’re contacting him, and they’ll have him call us.”

“Did you tell them it’s an emergency?” Lisa asked. Noticing the do-you-think-I’m-a-moron look on Ben’s face, she said, “Sorry, just making sure.”

Ten minutes later, the phone rang. Pulling it from its cradle, Ben calmly said, “Justice Hollis’s chambers . . . Hello, Justice Hollis. How’s Norway? Yes, I hear it’s beautiful this time of year. No. Yes, the office is great. Lisa’s been terrific. We just had a little emergency. A death penalty appeal just came through, and they want to execute the defendant tomorrow morning. So, uh, what should we do?” After scribbling some notes to himself, Ben finally said, “We’ll call you there later this afternoon.”

“What the hell did he say?” Lisa yelled as soon as Ben put down the phone.

“Here’s what has to happen,” Ben said, flipping the page on his pad to make a list. “First, we have to let every justice know that their votes are due by eight tomorrow morning. We need five votes to get a stay of execution. If only four vote for the stay, this guy dies tomorrow. Then, after we notify all the chambers, we have to write a memo recommending whether Hollis should vote to grant the stay.”

“All the relevant case history will be in the lower federal court papers,” Lisa said.

“Exactly. And he told me how to get those. He said we probably won’t be done until early tomorrow morning, but he said he wants the completed memo by six A.M. tomorrow. I have his fax number.” Flipping on his computer, Ben said, “I’ll write the official request so we can get the court papers.”

“I’ll let all the other chambers know what’s happening.”

“After you tell them, make sure you put the whole story in a memo so they all have official notification,” Ben said as Lisa darted for the door. “Then none of them can say they didn’t know about it.”

Lisa nodded and ran out.

An hour later, nine boxes of official court papers were delivered to the office. “We’re dead,” Ben said when he saw the boxes being wheeled in.

“There’s no way we’ll be able to read through all this by tonight,” Lisa said.

Ben read the sides of the boxes, which were labeled by year. “How about I start with the oldest stuff, and you take the newest? I figure we’ll hit the middle together sometime this winter.”

Lisa agreed and the two began to plow through the mountain of papers.

At two P.M., Ben’s phone rang. “Justice Hollis’s chambers. This is Ben,” he said.

“Hi, Ben, this is Rick Fagen. I was a clerk for Justice Hollis three years ago. I was just calling to see how things were going. It’s a tradition for the older clerks to give you a call every once in a while. I know things can seem imposing in the first few weeks.”

“It’s a hell of a time, all right,” Ben said.

“Who is it?” Lisa asked.

Covering the phone, Ben whispered, “It’s one of Hollis’s old clerks.”

“Perfect,” Lisa said. “I got a call from a clerk last month. They totally know how to deal with this crap. Ask him what we should do.”

“Rick, can I ask you a question?” Ben said. “We just got a death penalty case—”

“Unbelievable,” Rick said. “They always do this early in the term. I assume Hollis is away?”

“Sunning and funning in Norway,” Ben said. “And we have to read a truckload of documents to recommend whether he should grant a stay.”

“Okay, here’s what to do,” Rick said, with a reassuring confidence in his voice. “If this case has been floating around for a few years, chances are you’ll never be able to read all the supporting documents. You should concentrate on the legal issue this final appeal is based on. All the other issues are unimportant. What I’d do is go on to one of the legal databases and key your search to the single legal issue you’re looking at. If it’s habeas, do a habeas search; if it’s a jury instruction question, do that. Westlaw is definitely the easiest way to—”

“I already went through Westlaw,” Ben said. “The problem is the record’s a mess. We can barely tell where to start.”

“Just focus on the original trial transcript, since so much of the appeal is usually based on a screwup that happened at the lowest level. Have any of the other justices reported in yet?”

“No,” Ben said, still writing down Rick’s instructions. “It just came to us this morning.”

“If you’re lucky, five of the other justices will grant the stay before you guys are done. That way you don’t even have to sweat it out.”

“And what are the chances of that?” Ben asked as Lisa read over his shoulder.

“It depends on the issue. If it’s a Fourth Amendment issue, Osterman and the conservative crew will never touch it. Dreiberg might pick it up, though. The key for you guys is that you understand you’re not writing your opinion, you’re writing Hollis’s. You may think this defendant got screwed, but you have to base it on what Hollis might think. Traditionally, he won’t touch a death penalty appeal unless it’s an innovative legal issue. Otherwise, he’s pretty happy to put his faith in the lower court’s decision.”

“What if it’s based on factual innocence?” Ben asked, twisting the phone cord tightly around his finger.

“That depends on the facts,” Rick said. “If you have a case where the defendant was truly denied his rights, Hollis may take it. You have to be careful, though. You’re not Sherlock Holmes, so don’t think you can solve the case from your office. If the defendant maintains that he’s factually innocent, you better be sure there’s a mistake in his trial. Don’t waste Hollis’s time by just saying you have a hunch and that you feel it in your gut that the defendant didn’t do it. Hollis has been sitting on the bench for twenty-three years. He may have a weak spot for First Amendment issues, but he doesn’t give a squat about your hunch.”

After a long pause, Ben said, “What if you really, really know that this guy is innocent? I mean, you feel it in your gut and your chest and your armpits. Everywhere.”

“It’s your decision,” Rick warned. “If you’re right, good for you. But if you’re wrong, Hollis’ll deny the stay and you wind up with egg on your face. It’s not that big a deal, but since it’s your first few weeks, I’d want to gain a bit more of his confidence before I crawled out on a limb.”

“So I should let this guy fry so I don’t look bad?”

“Listen, I don’t know the facts of the case,” Rick said. “I’m just saying pick your battles wisely. I have to run, but if you have any questions just give me a call.”

“Listen, thanks for the help,” Ben said. “We really appreciate it.” After writing down Rick’s number, Ben hung up the phone, turned on his computer, and reentered the Westlaw database.

At five-thirty P.M., Joel, one of Chief Justice Osterman’s clerks, entered the office. “We’re out. Osterman’s denying the stay.”

“So you’re leaving now?” Lisa looked up from her stack of papers.

“You got it,” Joel said with a smug smile. “Our day is done.”

As Joel walked out, Lisa shouted, “I wish you a life ridden with hardship and a lingering death.”

“See you tomorrow,” Joel sang. “Hope you’re not wearing the same clothes.”

Within the next three hours, Justice Gardner denied the stay, while Justices Veidt, Kovacs, Moloch, and Dreiberg all granted it.

“Three justices left, and all we need is one more yes vote,” Ben said. “What are the chances this decision falls on us?”

“I don’t want to talk about it,” Lisa said, her eyes glued to the document in her hand. “I just need to stay focused, and this will all be over soon. I am calm. I am focused. I am the center of my universe and I am one with the document.”

At eleven P.M., Lisa leaned back in her chair and screamed, “I can’t take it anymore! I haven’t moved for the past twelve hours!”

“What happened to being one with the universe?” Ben asked.

“Fuck the universe,” she said, getting up from her chair and pacing around the office. “I hate the universe. I whiz on the universe. I am now one with anger, resentment, and hatred. Let’s fry this bastard and go home.”

“Now that’s exactly the kind of jurisprudence we need to see more of on this Court.”

Suddenly, the office door opened and Angela announced, “Both Blake and Flam are out. Stay denied. It’s all on you.”

Ben looked at Lisa, whose shoulders slumped in defeat. “So if we fry this guy, we can go home?”

Not long after midnight, Ben was sitting in front of his computer, his eyes fixed on his screen. “I don’t see the proof here,” he said for the third time in fifteen minutes. “I don’t know this guy, I never met him, but I know the proof’s not here.”

“You don’t know shit,” Lisa said, stretched out on the sofa with her arms covering her eyes. “Now what do we want to say in this memo?”

“Let’s give Hollis a brief overview of the facts, and we’ll recommend he grant the stay based on factual innocence.”

“We don’t know this guy is innocent,” Lisa said.

“This defendant did not receive a fair trial, and that’s a fact.” Ben stopped typing. “The arresting officer swears in the police report that he saw someone run out the back door of the house when the defendant was arrested. But when the defense tries to admit the officer’s testimony, the trial judge denies the request saying it’s inconsequential. That’s ridiculous.”

Lisa sat up on the sofa. “It’s called judicial discretion. There’s no reason to assume the judge was wrong.”

“There is a reason,” Ben said, turning his chair toward his co-clerk. “The defendant contends that this mystery figure was an alibi witness on the night of one of the murders.”

“That still doesn’t explain the other two murders,” Lisa said. “Even if he didn’t kill one child, he killed two others.”

“You’re missing the point.” Ben’s voice rose with irritation. “I’m not saying he’s innocent of all the murders, but if he killed two people instead of three, he might not’ve gotten the death penalty. Maybe the jury would’ve sentenced him to life imprisonment instead.”

“Ben, this guy killed two innocent children in one night. Even you admit that. If he didn’t kill three, big fuckin’ deal. He still deserves what he’s getting.”

“That’s just your opinion,” Ben said, jumping from his seat. “If the jury voted on three murders, that’s different than two murders.”

“But you don’t even know if the officer’s testimony would’ve gotten him off,” Lisa interjected. “Maybe he still would’ve been found guilty.”

“But maybe he wouldn’t have,” Ben waved his hands, exaggerating his point. “It’s not up to us.”

“Listen to yourself,” Lisa said, getting up from her seat to stand face-to-face with Ben. “You can’t redo every trial just because you would’ve done it differently. The jury heard the defendant’s testimony. They heard him say there was an alibi witness who he couldn’t get in touch with. They still convicted him of three murders. Just because a cop saw this mystery witness, that doesn’t mean the witness was really an alibi. Whether the policeman’s testimony was admitted or not, the alibi couldn’t be found. Seeing a person who could potentially be an alibi doesn’t add one iota of proof that an alibi existed.”

“But it does change the story the jury heard,” Ben said. “I’m not saying the policeman’s testimony would’ve proven the alibi, but it would’ve added some strength to the defendant’s story that a mystery man existed. Before you go to your death, I think you should at least get every opportunity to prove your story.”

“You just feel bad for this guy because you don’t like the death penalty as a solution,” Lisa said.

“That’s exactly right,” Ben said, cracking his knuckles. “I want to recommend Hollis take the case. If you don’t agree, I understand, but it’s worth it to me. If Hollis disagrees, the worst that happens is I look bad. Considering this guy’s life is at stake, I’ll risk it. If it makes you happy, I’ll put only my name on the memo.”

Lisa shook her head and put her hands on her hips. “Do you really feel that strongly about this asshole?”

Ben nodded.

“Fine, let’s write the recommendation,” Lisa said. “If Hollis disagrees, though, I kick your ass.”

Returning to the computer, Ben smiled. “Deal.”

“Hurry!” Lisa yelled at five-fifty A.M. Racing out the door with the newly printed, thirty-two-page recommendation, Ben headed straight for the fax machine in Hollis’s private office. Twenty minutes later, he returned. “Can we be more tired?” he asked, smoothing back his now greasy hair from his forehead.

“I assume the fax went through okay?” Lisa asked. The bags under her eyes highlighted her own exhaustion.

Ben nodded and sat down next to her on the sofa.

Squinting up at her co-clerk, she said, “You really have a wussy beard.”

“I do not,” he said, running his hand across his light stubble.

“You do too. It’s not a character flaw. It just means you’re not a real man.”

“You wish you knew how much of a man I am,” Ben said, smiling.

An awkward silence filled the room. “You just flirted with me,” Lisa said.

“What are you talking about?” Ben laughed.

“You did. You just flirted.”

“I did not.”

“Then what was that ‘You wish you knew how much of a man I am’? You might as well have said, ‘Check out my meat.’”

“That was it. You got me,” Ben said sarcastically. “Hey, Lisa, let’s end these games. Check out my meat.”

“You wish I would,” Lisa said with a smirk.

Ben pointed at Lisa. “Don’t pull that with me, woman! That was you flirting with me. You just did it back!”

“You’re crazy,” Lisa said, laughing. “Listen, let’s just forget this. We’re not hooking up. We’re both tired, and I’m in no mood to let mental exhaustion make me do something I’ll regret.”

“Exactly.” Ben tilted his head back. “Though I promise you no one has ever regretted it.”

“Lisa, wake up!” Ben said, shaking her awake.

“Wha?” she said as she sat up on the red sofa. “What time is it?”

“It’s seven-thirty. I can’t sleep. I keep thinking about this defendant. What if Hollis denies the stay because we did a crappy job? That means we killed him.”

“We didn’t kill anyone. We did the best we could and we made a sound recommendation.”

“You think so?”

“Definitely. We did what we thought—”

The phone rang.

Ben jumped for it. “Hello? Hi, Justice Hollis. Did you get the fax okay?” Ben fell silent and Lisa slapped his arm, trying to elicit a reaction. “No, we understand,” Ben said. “Yes, we know the process. Okay. I guess we’ll see you in a month or so. Have a good day.” Hanging up, Ben paused, looking at Lisa with a blank stare. “That’s five votes! We got stayed!” he screamed.

They embraced and jumped around the office, chanting, “We got stayed! We got stayed!”

“I can’t believe it!” Lisa said. “What else did he say?”

“He said he enjoyed our memo. He said the argument was persuasive, our analysis was sound. He said we used the word ‘moreover’ too much, but he thought we were right on point. He’s already called the governor’s office in Missouri. We just have to make all the preparations to hear the case.”

“I can’t believe it.”

“And y’know what the best part was? Hollis actually said, and I quote, ‘These trial courts are a fuckin’ pain in the keister.’”

“Hollis said ‘fuckin’?”

“Right to me,” Ben said with a wide smile. “This is a great fuckin’ day.”