by Paul Heald
“I don’t know.” Phil grabbed a book and put pen to paper, a signal for her to leave. “He’s got plenty on his mind already.”
VIII.
ETERNITY IN A SPACIOUS GRAVE
What people did not understand was the relation of process to substance. The Judge twirled an unlit cigarette in his hand as he pondered the complicated legal dance that would end in the execution of Karl Gottlieb. The clearer a criminal’s guilt, the less understanding the public had of the importance of the procedures established by law. Those who thought about the problem assumed that habeas corpus constituted a safeguard for the accused. They were right in a way, but more importantly proper procedure was a safeguard for the legal system itself and the judiciary especially. “It makes it look like were doing law,” he had said to his wife before she died. “Dotting the i’s and crossing the t’s with due deliberation differentiates us from the bloodthirsty mob shouting for justice.”
As he waited for Arthur to enter his office, he wondered whether his young clerk understood that Gottlieb’s fate this time was preordained. After the surprise victory in his previous appeal, no one could doubt that the Eleventh Circuit was impartial and fair. Any plausible procedural justification that led to execution on this occasion would be viewed as inevitable and unbiased. Yet, he would let Arthur dance the dance. Once the necessary adjustments to his naïveté and his overconfidence had been made, he might turn out to be a pretty good clerk.
“Now, that you’ve had some time to study on it,” he asked as the young man settled down in the brown leather chair facing his desk. “How are you going to address Gottlieb’s argument that he was incompetent to stand trial and his conviction should be reversed?”
“Okay.” Arthur looked at the notes on his lap. “As you know, plenty of cases say it’s an error for a court to fail to order a psychiatric exam, but no state has been creative enough to hold a retrospective hearing on the matter five years after the defective trial … at least until Georgia did with Gottlieb.”
The Judge nodded.
“But I think there might be parallel kinds of cases where states have tried to remedy a mistake after the fact,” his clerk suggested hopefully. “For example, defendants sometimes claim that ballistic tests should have been performed on weapons, and I’ve found some cases where states have conducted retroactive tests on handguns. And there should be some cases where a defendant claims that a blood test should have been done, and then the state runs a post-conviction test on the old blood.”
“Interesting little problem, isn’t it?”
“I guess it’s all about the quality of the process.”
“Exactly!” The Judge jerked his thumb toward the closed curtains and scowled. “The world out there doesn’t know shit about how the death penalty really works. They think it’s about surprise witnesses, last-minute appearances by family members, lawyers rushing papers to the prison warden. What horseshit! People read too many mystery novels. It’s all about the process. It’s complicated and sometimes it’s even boring. But it happens here, three hundred miles from Gottlieb’s cell on death row. We’ll decide whether Gottlieb dies—and no one even knows where we are or what the hell we really do.”
“Yes, sir.” His downward glance suggested that he was beginning to get adjusted to the new weight on his shoulders.
The Judge considered lighting up, but decided to wait. Showing weakness was a mistake. The chambers would not be the same if he placed himself on level ground with his clerks. Judge Henderson disagreed and treated his like bosom buddies. He was a good friend and a good judge, but it was a dangerous idea to treat twenty-five-year-old clerks as friends, even when he had no one else he could really talk to. He dismissed Arthur with a wave.
“But don’t be fooled by the physical distance between us and Gottlieb, Mr. Hughes, the wheels of justice are grinding here. Don’t get your ass caught in the gears.”
* * *
Phil sat in the library, flipping through a treatise on trademark law and wondering why he did not find the woman sitting across from him more attractive. Melanie had a great sense of humor, at least when she wasn’t sniping at Arthur, and a lively wit was what he appreciated most. Not to mention that she was tall and athletic, with a mysterious full-lipped smile that should have been irresistible. She was also aggressive, ambitious, and clearly used to getting what she wanted, but that was no big deal. After all, his only successful romance in college was with a domineering vegan who viewed compromise on any issue, food-related or not, as unthinkable.
After lunch, he saw Arthur emerge from his office and start collecting waxy pages curling out of the fax machine. He pressed them flat on the library conference table and went to collect more from Ms. Stillwater’s office. Phil took a peak at the stack and saw that Gottlieb’s pleadings were finally arriving. The Judge would rely on Arthur’s summary rather than read all the voluminous original documents himself.
After ten minutes of ferrying paper from the fax to the library, Arthur sat down and almost immediately commented on the proceedings.
“Fuck,” he spit out. “What a bucket of fuck!”
“What’s the matter?”
“I’ve been researching the retroactive sanity hearing all morning, and his fucking petition adds a new claim on top of that one.” Arthur slammed his pencil down, and the tip went flying past Melanie’s head.
“Hey!”
“Sorry …” He turned and explained himself. “Gottlieb’s arguing that he deserves a new hearing because his death sentence was based on an invalid prior conviction–that earlier conviction for the Buckhead murders.”
“I didn’t know the Buckhead trial came first.”
“Yeah, the Atlanta prosecutors were more efficient, I guess.” Arthur said, “Anyway, a murderer is only eligible for the death penalty if the aggravating factors in his case outnumber the mitigating factors. In the Macon case I’ve got, Gottlieb was sentenced to death based on two aggravating circumstances. This earlier conviction in the Buckhead murders was one, and the second was that the Macon murder was ‘especially atrocious, heinous, or cruel’ as set forth in the capital murder statute. No mitigating circumstances were found.”
“So how does that make his conviction invalid?” Even though he believed all death penalty convictions should be overturned, Phil knew how to play the game, although it left him feeling vaguely sullied. “In Georgia, if you lose 2-0 or 1-0, you still go to the chair. What’s wrong with the Buckhead conviction, anyway?”
“Gottlieb says he was incompetent to stand trial, just like he said he was incompetent to be tried in the Macon case. The twist is that no one ever retroactively evaluated his competency to be tried for the Buckhead killings.” Arthur rubbed his forehead with the palm of his hand. “And we’ve got the Judge’s own published opinion from two years ago standing for the proposition that failure to order a competency hearing is error! The conviction in the Buckhead case can’t be used as an aggravating factor to support his Macon death sentence.”
“Well, there’s still the heinousness aggravating factor.” Melanie finally chimed in. “Like Phillip says, a 1-0 loss is as bad for Gottlieb as a 2-0 loss.”
Arthur picked up the pleadings and shuffled through them while he talked. Phil felt a pang of pity for his friend as he struggled with the arguments. “I don’t get it. Gottlieb’s new lawyers are awesome … Why would they bother attacking one aggravating factor but not the other?”
“Good question.” Phil had a feeling that the answer to Arthur’s question might end up saving Gottlieb’s life. He admired the persistence of Gottlieb’s attorneys, undoubtedly working for free under a lot of pressure for the sole purpose of saving a life that most Americans thought was not worth saving.
Phil watched Arthur read to himself as Melanie studied him. Why was she not participating more in the discussion? She was usually interested in criminal law after all. Phil considered changing the subject and bringing up yesterday’s strange phone call, but then Arthur
let out another groan.
“I can’t believe this … Gottlieb already won the heinousness argument in an appeal a couple of years ago. He’s not a heinous killer.”
“What?” Phil and Melanie burst out simultaneously.
“According to the Georgia Supreme Court,” Arthur read, “especially heinous killers invoke the terror of impending death in their victims.” He looked up and spoke in a resigned voice. “Heinous murderers torture their victims first or enjoy forcing them to contemplate their own deaths. In the Macon case, Gottlieb snuck up behind his victim and clubbed her. She probably never knew what hit her.”
Phil’s heart gave a little leap. He had no natural sympathy for Gottlieb. The man was a monster, but that was all the more reason that Arthur should not indulge the public’s lust for retribution. There was now no reason for Arthur to be Gottlieb’s last victim. “So, we’re back to zero-zero … tie goes to Gottlieb.” Phil tried to contain his excitement. “Arthur, this is great! You can write a memo telling the Judge that the execution has to be stayed. You’re off the hook!”
Arthur frowned. Phil could tell from the clenched teeth and glaring eyes that he had already imagined himself as the clerk who denied Karl Gottlieb’s last appeal.
“Off the hook? If you think that I’d feel guilty about pulling the switch on this guy, then you’re crazy.”
“He’s a person, Arthur.”
“That may be so, but he hasn’t won yet.” He pushed the papers in front of him and sighed. “But you’re right, Phil. I need to just do the math and stop treating this like a game.” He paused and shook his head. “I can’t believe I need to report to the Judge tomorrow.”
Phil watched Melanie frown and get up to leave. She paused at the library door and offered some advice. “The solution is pretty obvious, Arthur, if you just think about it hard enough.”
IX.
SWEET DREAMS ARE MADE OF THESE
Maria was safely asleep and the front porch beckoned to Suzanne. The afternoon rain had come later than usual, granting relief without giving the sun time to burn off the moisture from roofs, roads, and walkways. The wind blew from the north, and she could almost imagine the relief of fall was not two long months away. She sat and rocked in the darkness, multiplying the breeze and dreaming of taking Maria to the beach for a late-summer vacation. But the thought of sand led to thoughts of beach toys and so to the toys scattered all around her and soon she was reaching down and pitching the closest ones into the toy chest and then following a trail of LEGOs around the corner of the porch.
As she picked up the last block and squinted at her neighbors’ window to confirm that she was really seeing porn on their television screen, she heard the front door open and watched Arthur lean against the corner of the railing, half in shadow, half illuminated by the streetlamp. He was a handsome boy, tall and lean with a tousled mop of dark hair. She wondered what he would do if she sidled over and put her arms around his trim waist. She settled for studying him a bit longer. The contemplative pose suited him, lending a gravitas that was sometimes lacking when he opened his mouth.
“Hey,” she spoke softly to avoid startling him. “If you came out to help with cleanup, you’re too late.”
“Sorry.” He turned and shifted his stance, as if trying to decide whether he should go back in. “Is there anything more I can do out here?”
“Not really.” She walked past him and dropped the final load of toys into the chest. “But you could go to the kitchen and bring me a beer.”
“Sure.”
When he returned, two brown bottles in hand, he sat down next to her on the porch swing and carefully wiped away the moisture condensing on the glass. He handed her one, clinked it with his own, and stared out over the street.
“Long day?” No psychic powers were necessary to divine his mood. He grunted and mumbled something inaudible that ended in Gottlieb.
“That can’t be any fun,” she replied.
He snorted. “The Macon murder has dimmed my love for baseball, that’s for sure.” He turned toward her and tried to explain what was bothering him. “I just finished reading the last chapter of the book that the Judge gave me. The author interviewed Gottlieb in prison a couple of times and asked him why he killed all those women.”
“What sort of horseshit did he come up with?” There was no possible reason that he could have given.
“Well, the guy’s not too introspective, so he mostly rambled on in the third person about how he killed them, but when the psychologist pressed him, he started talking about how he possessed his victims. That was what obsessed him, possession and control. He was playing God.” He picked at the label on his bottle while he spoke, trying to unpeel it in one piece. “Gottlieb would look around a place and decide who would live and who would die. He was the ultimate decider of fates. That’s why he didn’t torture them or even particularly care to see them suffer. That’s why he always whacked their skull from behind and then raped them. It was the ultimate possession he was after, the ultimate act of control.”
“That’s just sick.” She took a sip of her beer, but it tasted metallic and flat.
“If you enjoy snuffing out candles, you don’t want them fighting with you.” Arthur finished his peeling job and held up his prize.
“That’s well put,” she said, “if somewhat creepy.”
A car drove too quickly down the street, stereo blaring so loudly that she could not hear the beginning of his reply.
“…I’ve read about a bunch of famous serial killers. With most of them, you get some sort of insight into what went wrong in their lives. Most of them were horribly abused as kids or something like that.”
“But most child abuse victims don’t go out and kill dozens of people,” she said.
“Of course not,” he agreed. “Anyway, I’m not excusing anyone. I’m just saying that you can sort of understand what might drive them. You could imagine going back in time, giving them to responsible parents, and saving the world a lot of pain. Another bunch of killers are clearly brain damaged or drugged up in some way. They’re scary, but easy to understand.” He frowned. “Gottlieb’s different.”
For a couple of minutes, they sat quietly and listened to the low drone of the summer insects sporadically interrupted by the buzz and sizzle of the neighbor’s bug zapper. Suzanne shifted her body on the swing so she could see him better.
“Did you ever read Dante’s Inferno?” she asked.
“Back in high school. I thought that all the different layers of Hell were pretty cool. Well, hot … whatever.”
“I had to read it in college,” she explained. “I’ve never forgotten this guy that Dante meets in the frozen lake at the very bottom of Hell.
“Dante is shocked to see a monk he’d spoken to in Italy just before he started his journey into Hell. The monk explains that he hasn’t died yet; his body is still walking around Italy, doing all sorts of horrible things. It’s just that when he killed all of his dinner guests one night, his soul became so evil that it plunged straight down to Hell in advance of his body.” She looked out at the street. “That’s always stuck with me. I imagine soulless bodies wandering around the earth committing crimes. You read about some convenience store clerk who’s told to lie on the floor and gets shot for no reason. It seems like nobody’s really in the killer’s body at all when it commits the crime because no human could do such a thing.”
She turned and looked at him. “Does that make any sense to you?”
He nodded after a moment. “I don’t know whether it makes sense or not—theology is Phil’s thing—but Gottlieb hardly seems human.”
“He’s the ultimate predator is what he is.” She shivered and slid closer to him. “I shouldn’t admit it, but part of me will feel relieved when he’s executed.”
She looked out over the familiar street and back to Arthur. He didn’t look like he was going to get much sleep that night. Suddenly, she was glad of her job and its intimacy with life. She did not
envy the dark business of death that got worked in the Judge’s chambers.
“Whatever he is,” Arthur replied, “he’s not alone. People like him have probably always been out there. I kind of like your theory because it makes them unpersons, not really human at all, like some kind of dangerous virus.”
She nodded and a dark intuition settled between them.
“But what if there’s something fundamentally human about Gottlieb?” he continued. “What if the only difference between him and normal people is that his predatory instinct is just a lot closer to the surface?”
They watched the street in silence, considering the awful possibility that Gottlieb had somehow cultivated and fed something that lurked in all men.
* * *
When he got to the courthouse at seven the next morning, Arthur found his co-clerks waiting for him in the conference room. He had spent all night thinking about Gottlieb’s petition and could come to no other conclusion than to advise the Judge that the execution had to be stayed. Gottlieb’s attorneys had made both of the aggravating circumstances in his case disappear. The propriety of the retroactive sanity hearing was now irrelevant.
Phil spoke to him first. “What are you going to tell the Judge?” His plaintive look irritated Arthur. His co-clerk was sure how the case should come out, how every death penalty case should come out. It let him escape the hard thinking.
“You win.” Arthur shrugged. “I don’t even have to get into the question of whether the retroactive sanity hearing was okay. He wins this one on procedural grounds.”
“No, he doesn’t.” Melanie spoke from the far end of the table, not even bothering to look up from her book. “He’s toast.”
“What?” She glanced up as Arthur spoke. She wore a teal jacket and an intricately embroidered white blouse. Behind the table she looked more like a television anchor woman than a law clerk.
“You’re missing the forest for the trees.”
Arthur sat down across from her and waited impatiently for the explanation. Phil’s eyes were wide.