Courting Death

by Paul Heald

  “That’s weird,” Arthur mused. “When you think about those huge opinions of his in our textbooks, ‘economical’ does not spring to mind.”

  Phil nodded and poured himself another beer while Arthur looked through the papers. He wondered how long it would take his new friend to see the same patterns that he had. He picked up the empty pitcher, walked to the long polished bar to order a refill, chatted with the bartender, and then visited the men’s room. When he returned, Arthur appeared to have finished—he was an astonishingly fast reader. Law school must have been a breeze from someone who could read forty-five pages in ten minutes.

  “This is what strikes me the most,” Phil said as he spread two sets of papers in front of Arthur. “Look at this. Here’s a bench memo written to the Judge by an ex-clerk named Rob Perry. And here’s the official published opinion in the same case. As you can tell, there’s only a couple of superficial differences between the two. A private memo written by someone just out of law school got turned into binding legal precedent. The Judge deferred completely.”

  Arthur looked at the papers and nodded cautiously. “So the Judge emphasizes brevity and clarity because he doesn’t write his own opinions anymore.”

  “If my clerks were going to write my opinions,” Phil guessed, “I wouldn’t want them getting too creative either … In the old days, back in the civil rights era, the Judge probably wrote all his own stuff. Now with a different caseload, he’s willing to delegate the job of opinion writing, but he’s not about to authorize us to wax eloquently about what we think the law should be.”

  “One of my professors who clerked on the Supreme Court told me that he didn’t think that any Justice had actually written an opinion in years,” Arthur revealed, his mouth set in a grim line. “Their clerks do almost all the writing.”

  Phil said nothing, full of wonder at the level of responsibility they had so surreptitiously acquired.

  “And you know what’s really amazing?” Arthur continued, “On the first day of work, I’m already doing this huge class action.”

  “Yeah.” Phil pointed to his book bag and added, “And if the case I’m working on is affirmed, all the law schools and medical schools in Georgia, Florida, and Alabama will have to change their admissions policies.”

  “Well, at least he tells us which way the case comes out.”

  “After we do all his research for him and write a memo saying what the result should be.”

  Arthur poured two more glasses. Phil’s foamed over the top, and he blotted the spillage with a paper napkin. Arthur sipped and scanned the scene, seemingly unconcerned about the power they would be wielding.

  “So, it doesn’t worry you?” Phil asked, surprised by Arthur’s nonchalance.

  “What?”

  “Well,” Phil tried to articulate the source of his anxiety, “think about the death cases we’re going to get.” He pushed his beer away and leaned back in his chair. “Are you going to be comfortable doing the research in a habeas corpus case and then writing a memo saying there should be no stay of execution?”

  Arthur frowned. “You sound like the Judge in my interview. He asked the same question.”

  “What did you say?”

  “I said what my professors told me federal judges in the south wanted to hear: ‘Judge, I have serious doubts about the way the system of capital punishment works in this country, but current law does allow for its application in appropriate circumstances.’” He spoke as if the answer were obvious. “Not too bleeding heart, not too bloodthirsty. So, you read the cases and write a memo that gets the law right, regardless of what the substantive result is.”

  Phil studied him for a moment, trying to figure out whether Arthur was a true believer in the death penalty or just a fan of the rule of law or just someone who would say anything to clerk for the Judge.

  “Not me,” Phil said. “I think the result matters.”

  “What did you do?” Arthur’s eyes narrowed. “Lie in your interview?”

  “Yes.” Now that he had said it, Phil felt better. He had given the same answer in his interview as Arthur had, but he had not meant it. When faced with telling a lie or disqualifying himself for the job, he chose the former. “I went to law school to help people, not to kill them.”

  Arthur gave him a funny look. “Even if capital punishment is wrong, don’t we have to obey the law? We might disagree with the Supreme Court, but who are we, especially as law clerks, to substitute our own judgment?”

  “People with consciences.” Phil looked at Arthur without flinching. “I can’t leave my conscience outside the courthouse door.”

  “That sounds very noble.” Arthur smiled, obviously unconvinced. “But isn’t that exactly what we’re supposed to do?”

  Instead of pushing the debate, Phil forced a laugh, already familiar with the arguments Arthur was marshaling. “No! What we’re supposed to do is go next door and order some pizza and another pitcher.”

  “Good idea, counselor.”

  Over food, the talk was less philosophical. Clerkships only lasted one year, so Arthur asked for a summary of the lessons of Phil’s first month. He related his brief experience and passed on what little he had learned from a recently departed clerk who had been assigned to initiate him, a colorful character named Titus Grover III, a native Georgian who bragged about “polishing the library table” with female conquests that he had brought up to the Judge’s chambers at night.

  As they walked unsteadily back through campus, the cooling summer dusk gently dropped around them. The high-pitched buzz of the locusts and tree frogs reverberated in the muggy air and followed them back across the river and into town. As they passed through the night, they concluded that they had found the ideal job–one where a love of stories and argument could be put to productive use, well-aware that the generation of clerks before them had used their skills to advance civil rights and build a working model for nonviolent social change. Neither of them realized at the time that the merger of scholarship and justice, of law and love, was far from inevitable.

  IV.

  PEOPLE WHO DIED

  Several weeks later, on a Tuesday afternoon in early August, the Judge called Arthur into his office and informed him that Karl Gottlieb, the most famous serial killer in US history, had been scheduled to die in the Georgia electric chair the following Friday morning. Arthur blinked once and swallowed hard.

  “Efficiency never goes unpunished, Mr. Hughes. According to Stillwater, you’re the furthest ahead in your work, so this death watch goes to you. Gottlieb’s lawyers are going to file a motion for stay of execution in the state trial court this afternoon. As a matter of courtesy, the clerk of the court there will fax us a copy of the brief as soon as it’s filed so we can anticipate his arguments.”

  He grabbed a thick file folder on his desk and fingered it rythmically while he explained the habeas process. His eyes never left Arthur’s.

  “Death warrants are signed by the governor a week or so in advance of the execution date, so these cases pop up without much warning. The time to research them gets compressed even further because a petition is required to move through the state court system before it can be refiled in the federal district court.”

  The Judge waited for Arthur to nod before continuing. Was the old man looking for some sign of miscomprehension or panic?

  “Because we’re so high up on the food chain, the petition is usually faxed to chambers less than thirty-six hours before the execution, but we can work on it before it officially gets to us. In order to get up to speed, you should read the opinion I wrote two years ago when we granted Gottlieb a stay of execution on his first habeas petition.”

  “I remember that one,” Arthur interrupted eagerly. “It was my second year in law school. Didn’t a group of congressmen try to impeach you and Judge Garnett for granting Gottlieb a stay and sending the case back to state court?”

  “He killed at least thirty young women,” the Judge sighed as he leaned ba
ck in his chair, tilting past the edge of the light cast by the reading lamp on his desk. “He was finally caught after the murder of a twelve-year old girl in Macon, Georgia. After his arrest he started acting weird, so his attorney—the local public defender—moved for a psychiatric evaluation on the basis that his client wasn’t competent to stand trial. Gottlieb stood up and shouted that he was completely sane. He dismissed the attorney on the spot and demanded that he be allowed to conduct his own defense. The trial judge suspended the proceedings at that point and rescheduled the hearing for the following day. He urged Gottlieb to reconcile with the PD or find someone else willing to represent him.

  “Gottlieb showed up with some out-of-town celebrity attorney the next day.” The Judge shook his head with disgust. “When asked about the need for a psychiatric evaluation, the new counsel replied that an interview was not desired by him or his client, and he withdrew the prior motion. In the meantime, the PD is standing at the back of the courtroom, jumping up and down and screaming to the judge that Gottlieb is certifiable.

  “That was probably a breach of confidentiality,” the Judge admitted, “but it put the trial judge on notice that Gottlieb might be nuts.”

  “But Gottlieb said he was competent and ready to proceed.” Arthur was beginning to get into the story. He had no recollection of the procedural maneuvering in the case, just the gory details of the crime. It was nice to feel like an insider to a hidden history.

  “Right.” The Judge nodded and leaned forward to deliver the punch line. “And after Gottlieb was convicted and sentenced to death, his next new attorney filed a habeas petition arguing that the state’s failure to conduct a psychiatric evaluation should result in a new trial.”

  A groan rumbled past Arthur’s lips, and the Judge nodded his approval of Arthur’s reaction.

  “Judge Garnett and I found the trial judge was on notice that Gottlieb might be severely disturbed. Between his own behavior in the courtroom and the PD’s protests, the judge should have ordered a psychiatric evaluation.”

  “Makes sense, I suppose,” Arthur agreed, “especially when he had no reason to trust Gottlieb’s new attorney.”

  “Every judge makes mistakes, but we had to send the case back.”

  Arthur watched the Judge carefully and stayed quiet. It was not his job to opine on judicial error—except that was precisely his job. He wondered with a morbid curiosity what role the Judge would give him in the next chapter of Gottlieb’s story.

  “We figured that the State would hold a new trial,” the Judge continued, “but instead a court-appointed psychologist evaluated Gottlieb’s mental capacity from just the trial transcripts. The psychologist found that Gottlieb had testified effectively and had delivered a brilliant final summation after dismissing his attorney. After reading the report, the state court concluded that Gottlieb had been competent to stand trial and upheld his conviction.”

  The Judge grinned at the audacity of the State in conducting a retroactive competency hearing without even interviewing the person whose competence had been in doubt.

  “My guess,” he suggested, “is that the new habeas petition will complain about this retroactive hearing. You might start by seeing if there’s any precedent for doing what Georgia did.”

  He handed the densely packed accordion folder over to Arthur. What other secrets were in there, he wondered. One of his law professors had analogized criminal cases to plays. What would it mean to step out on the stage of such a famous and long-running show?

  Before he could stand up, Ms. Stillwater burst into the chambers.

  “Judge! Ms. Melanie has arrived. I told her to wait in the library.”

  “Stillwater!” The Judge fumed. “How many times have I told you to knock before coming in here? Arthur might have been smoking or something.”

  “You’re the only who smokes in here,” she snorted and turned to Arthur. “Come on out and say hello. She’s even prettier than she looks on television.”

  The Judge rolled his eyes and nodded toward the door. Ms. Stillwater had told Arthur earlier in the day that his final co-clerk would be arriving soon. She had emphasized his new colleague’s beauty pageant credentials—which Melanie had mysteriously not included on her resume—while Ms. Stillwater had barely mentioned her sterling law school record.

  Ms. Stillwater called Phil out of his office as Arthur and the Judge followed her to the library. The four of them squeezed through the doorway and greeted their newest colleague.

  “This is Melanie Wilkerson,” the proud secretary announced, “the only runner-up Miss Georgia to finish in the top ten percent of her law school class at Harvard.” The young woman winced and then stood up and smiled. She was more than just pageant pretty. Her lips were full and red. An unruly mound of lustrous auburn hair was held behind her head with several turquoise barrettes. Her conservative white blouse and black pencil skirt almost disguised her figure.

  “Nice to finally meet you.” Phil stepped forward and took her hand. “It’s always good to put a face to someone you’ve only spoken to on the phone.”

  “Nice to meet you too. Thanks for switching spots with me and letting me come last!” she replied. “You’re the only reason that I got to split the summer between the Justice Department and Williams & Connolly.”

  Arthur stared at her for a moment, then wiped his palm on his pants and extended it to her. “Have you found a place to live yet?”

  “Oh, yes! Ms. Stillwater found me a lovely apartment in a brand new complex just off of the perimeter road. It’s got a big swimming pool, tennis courts, health club—everything you could want.” She smiled brightly. “You’ve probably driven by it. It’s called The Poplars.”

  “Probably because they cut down a bunch of poplar trees,” Arthur blurted out, remembering his visceral reaction to the sterile apartments he had seen on his trip into town. “Well, have fun out in yuppie land.”

  “Excuse me?” She dismissed him with a glance and turned to Ms. Stillwater.

  “Never mind,” Arthur mumbled under his breath.

  The secretary cast him a curious look and bustled her new ward off to her office. The Judge signaled to Arthur to follow him back into his lair.

  * * *

  The Judge looked at Arthur and tried to figure out what went on inside the kid’s head.

  “You always so slick with women?” he finally asked.

  “What do you mean?”

  “Never mind. Just trying to make a joke.” The Judge sighed. “Just trying to lighten the mood, son. Having someone like Karl Gottlieb on your plate can really be a grind.”

  “I know.”

  “You do?” The Judge glared at him. “You and I are gonna decide next week whether this man will be executed. Do you remotely understand what that means?”

  “Not really, I guess.”

  “Not really …” He struggled to keep the mocking tone out of his voice. Intimidating the kid was not going to prepare him for a week of wading through a cesspool of habeas litigation. “You know what, Arthur? As nasty as the Gottlieb case is, it’s a relatively easy one. In fact, it may be the easiest death case you ever have.” He held up his hand and scooted his chair smoothly across the hard plastic sheet between his desk and credenza. He opened the top drawer and pulled out a paperback book.

  After studying the cover for a moment, he tossed it to Arthur. It was entitled: An Interview with the Angel of Death: The Twisted Mind of Karl Gottlieb. “You might find this interesting. It’s supposedly the most objective book on Gottlieb. I got it in the mail after we sent his case back to state court. A very angry citizen thought that I should see what a monster we had, and I quote: set loose on the heartland of America.” He snorted.

  “Since I figured the state would retry him and he’d be out of our hair, I went ahead and read it. It’s not too bad.”

  Arthur nodded, but his expression suggested that he doubted the propriety of reading materials outside the record.

  “You know those f
our girls he killed in Atlanta?” the Judge explained. “He broke into the house they were renting and spattered their brains all over the walls with a baseball bat. Apparently, he wanted to feel the squish between his toes, so he took his shoes off and waded around for awhile.” The Judge made no effort to hide his disgust. “He was convicted of those murders on the basis of the footprints he left at that crime scene.”

  The Judge pulled out a drawer on the right side of his desk, grabbed a pack of cigarettes, and tapped them against the palm of his hand. Smoking was illegal in the building, but he had issued an informal ruling that excepted his office.

  “Don’t get me wrong. The fact of the Atlanta murders will not affect the impartiality of our deliberations in the Macon case. We will do our duty here, but remember that you already knew a whole lot about this guy before you ever stepped in this office.” He softened his expression for a moment. “Shoot, the whole damn country does. So, if you’re curious and want to know what I know, I don’t think it’s going to hurt anything.”

  V.

  MY WAY

  After just two days at work, Melanie had concluded that Arthur Hughes was an arrogant and self-important twit, and watching him sift smugly through the new pile of appellate briefs did nothing to change her opinion. At the next session of the court, the Judge, and two of his colleagues, would hear twenty-one appeals over two days. After dividing up the cases, each clerk would have six weeks to research and write the memoranda that the Judge would rely on at the hearing. Phil and Arthur acted like old pros and were quickly going through the stack, putting sticky notes on the cases they wanted to bid for.

  “Does anyone want this sex discrimination case?” Phil slid a file across the battered walnut table in the chambers library. The room was a slightly bigger rectangle than their offices, but instead of a desk underneath the window, a set of movable bookcases stood overflowing with treatises, partially blocking the light from coming in. The conference table sat in the exact center, so broad that one could not shake hands with the person on the other side.