Courting Death

by Paul Heald

  “What I eventually found was a one-page 1956 Supreme Court opinion holding that the constitutional right to counsel does not extend to the preparation of habeas corpus petitions.” Arthur sighed as he dropped his bomb. “In other words, there’s no remedy for a prisoner whose first habeas lawyer was grossly incompetent. If a defendant’s constitutional rights are violated at trial, his very first petition had better set forth all the errors. If it doesn’t, then he’s fucked, because you can’t complain about how shitty your first habeas lawyer is.”

  “So, your memo’s going to say that he’s not entitled to a stay of execution.” Phil’s eyes pleaded for Arthur to reveal some precedent that would save Jefferson’s life. He had looked hard. There was none.

  “What choice do I have?’ Arthur wanted to lay his head on the oak table and sleep.

  He expected Phil to object. Melanie and Suzanne would not shed any tears over Jefferson, but his co-clerk had decided long ago what the answer was in all these cases.

  Instead of arguing, Phil took off his glasses and massaged the sides of nose between his thumb and forefinger. He apparently had his own problems.

  “Watkins?” Arthur asked.

  “Yeah. It’s his first habeas petition, so he doesn’t have any of Jefferson’s procedural problems.” Phil smiled weakly and shook his head. “It’s just that there’s nothing for his attorney to complain about. Watkins made a knowing confession that he won’t renounce because he still feels bad about the killing. And since he pleaded guilty, there was no trial, so there’s no trial mistakes to find.”

  “So the real problem,” Arthur concluded, “is that the sentence was just too harsh.”

  “Yup.”

  “And that’s not unconstitutional.”

  “Nope.”

  “So what are you going to do?”

  When Phil had announced his opposition to the death penalty months ago, Arthur had wondered what would happen if his friend got just this sort of case. Much of the time the law was fuzzy and there was room to massage it into a memo recommending clemency. But Watkins was worst-case scenario for someone like Phil.

  “What are my options?” He doodled for a moment on his legal pad and then set down his pencil. “I could write a memo arguing that the death penalty is unconstitutional.”

  “Except that the Judge doesn’t believe that.”

  “Or, I could tell him that I won’t work on capital cases because I don’t believe in the death penalty.” Phil’s voice was grim.

  “Then he’d know that you lied to him in your job interview.”

  “Not to mention that it would be letting Watkins down.”

  “Any other options?” Arthur asked.

  “I could throw the Judge under the bus … fabricate some sort of argument from an old case, ignore later precedent, and hope to fool him.”

  “You’ll get caught.”

  “I know.” He snapped his pencil in half and picked up his things. “I’m going to read through the petition again and look for more cases. There’s got to be something out there.” He walked to the door but turned before he left. “What are you going to do?”

  Arthur inclined his head toward the Judge’s office. “I’m going to consult the Oracle of Delphi.”

  Ms. Stillwater was gone, so Arthur knocked on the Judge’s door and entered in response to an inarticulate grunt. Once in the room, he could barely see the Judge’s back as he fished around for something in his credenza.

  “Good morning, Judge.”

  The white-bearded old man straightened up, a pack of cigarettes in one hand and a lighter in the other.

  “I need to ask you a quick question before I write my memo in the Jefferson case.”

  The Judge lit a cigarette and winked at him conspiratorially. He took a deep drag. “Mr. Hughes, you’re way ahead of schedule.”

  He motioned for Arthur to sit down. “The pipeline’s so clogged Jefferson’s case probably won’t make it up here until Friday.” He flicked an ash into his top right drawer. “But go ahead and tell me what you’ve got.”

  Assuming the Judge had already read Jefferson’s file, he explained that the case presented a strong Hitchcock claim that should have been argued in Jefferson’s first habeas petition. While he was deriding the competency of the first habeas attorney, the Judge interrupted—

  “And, of course, you found out that there’s no remedy for the damage caused by an ineffective habeas counsel.”

  “That’s the bottom line, Judge. I just wanted to make sure you didn’t see anything I was missing. If that’s still the law, then it’s a pretty straightforward denial of stay.” He clutched the file in his left hand and started to stand up.

  “One thing I’ve learned,” the Judge drawled contemplatively, his voice stopping Arthur in his tracks, “is that there’s no such thing as a straightforward death case.” He tapped off another bit of ash and waited until his clerk sat back down. “Before you write the memo, would you do a little further research just to ease my mind?”

  “Sure.” While Arthur waited, curious to learn what he missed, the Judge balanced his cigarette on a stapler and started rummaging through one of his massive bookshelves.

  “I’ve read the Jefferson file all the way through twice, mostly because I just couldn’t make any sense of the crime. I felt like even with all those doctors’ reports and affidavits something was missing. Ah, here it is.” He turned and revealed a paperback collection of Greek drama that looked like it had not been opened for forty years. “It’s been a long time since I’ve read this, so you’ll have to humor me. Give the first play a read and tell me whether it helps explain what’s missing in Jefferson’s file.” He nodded at his clerk but provided no more guidance.

  Realizing with a chill that he was seeing the first manifestation of senility in one of the great jurists of the twentieth century, Arthur promised to read the play as soon as possible and quickly retreated as the Judge rearranged the mess on the credenza.

  He went straight to Phil’s office.

  “What now?”

  “I think the old man has finally cracked. I told him that there were no valid grounds for granting Jefferson’s petition and he gave me this to read.” He held up the book.

  “So? He gave me a law review article to read just yesterday.” Phil reached over the desk for the book and then looked up quizzically. “Euripides’s Medea and Other Plays?” He laughed. “Awesome stuff, but I can’t say that I’ve seen it cited in too many recent cases.”

  He handed the volume back to his co-clerk. “What does he want you to do with it?”

  “Just read it. I guess our next conference is going to be like a book club.” Arthur shook his head in disbelief. “Maybe he’ll bring some brownies.”

  “Look, I don’t know what he’s up to,” Phil said, “but I haven’t seen any sign that he’s losing his mind. And besides, isn’t it more fun to read a play than a bunch more cases?”

  Arthur grudgingly conceded the point and went back to his office. He put his feet up on his desk and began to read.

  XXIII.

  THE LAST ONE YOU EVER LOVED

  Melanie sat in her apartment and looked across the parking lot at the pennants fluttering over Toys”R”Us. Her co-clerks were still at work, fussing over their habeas cases. Without one of her own, she had finished early, and for the first time since her arrival the previous July, she had left the chambers before Arthur and Phil. It was pointless being mad at the Judge for the special treatment she was getting. He was a southern gentleman, a victim of his upbringing, unconsciously relegating her to second-class status. Even so, the absence of a bloody, violent, disgusting, convoluted, and disturbing capital case gnawed at her until she left the apartment, wandered through the miles of asphalt surrounding her building and settled on the newest Clint Eastwood film as a temporary diversion.

  As she left the theater two hours later, she decided that maybe she did sort of have a death case. Carolyn Bastaigne was just as dead as the vict
ims of Arthur’s and Phil’s killers. The logical next step was to contact Jennifer Huffman, but she was a possible co-conspirator with Carolyn in the securities fraud scheme, so a phone call to her was out of the question. In addition, Melanie wanted to see the face of the ex-clerk for Judge Meyers when she answered questions. Unfortunately, she was broke, and the Judge was unlikely to bless a vacation in the middle of a busy session.

  The next morning, after handing the second draft of a bench memo to Ms. Stillwater, Melanie marched into Phil’s office without knocking. She plopped herself down in his chair with a spectacular pout.

  “Phil, why don’t you find me an excuse to go to New York to talk to Jennifer Huffman and then give enough money to fly me there?”

  “Okay,” he said with a smile as he reached into his pocket. “Do you take credit cards?”

  “No,” she whined, “just call and book me a ticket!”

  “Boy, you’ve really got it bad haven’t you?” Phil laughed and leaned back in his chair. She could see a bankruptcy treatise on his desk; he was taking a break from the Watkins case.

  “She’s the only person left who might know something more about the case.”

  “Except the Judge.” Phil motioned across the hall. “Why don’t you talk to him?”

  “Very funny.” She pursed her lips and frowned. “I’m being serious. I need to see the expression on Huffman’s face when I tell her that we know Carolyn was trading on inside information.”

  “You think she’s going to confess or something?”

  “I don’t know, but I’m pretty good at telling when people are lying.”

  “The pulsing vein in the temple gives them away?”

  “Something like that.”

  He squeezed his eyes shut for a moment and muttered something under his breath. “I can’t believe I’m going to suggest something this unethical.” He let out a huge sigh. “Why don’t you call up Jennifer’s firm and ask for an interview? They’ll fly you up at their expense, and the Judge probably won’t begrudge you the trip.”

  To an outsider, the suggestion would have seemed absurd, but clerking for the Judge meant that she could call any major firm in the United States and instantly get an interview, and the biggest firms wouldn’t even blink at paying her travel expenses.

  “But I’ve already decided that I want to work in Washington,” she replied. “I can’t stand New York.”

  “That’s why it’s unethical, dear.”

  Melanie stood up and put her hands on Phil’s desk. “It would work though, wouldn’t it?” She felt a surge of energy. “And it would give me a great excuse to talk to Jennifer, and to learn about the firm, of course.”

  “And if I were a Jesuit,” Phil said cryptically, “I could even justify it on moral grounds.”

  “How so?”

  “Don’t you think Cravath would want to know if they have an insider-trading sleazebag working for them?”

  * * *

  After Melanie said good-bye to the recruitment coordinator at Cravath, Swaine, and Moore, she stared at the phone and marveled at the credibility she had earned simply by working for the Judge. The eager young woman on the other end of the line did not even inquire about her level of interest in the firm or in New York City. Who wouldn’t want to work at the highest-paying firm in the country? She had just asked Melanie to fax a resume and immediately began arranging the details of the interview trip. Melanie asked Ms. Stillwater to run the dates of her absence past the Judge.

  On the way back, she stuck her head in the library and saw Arthur chewing on the end of a pencil and reading a small paperback that was obviously not a volume of federal cases. “Finished with all your work already?” She leaned against the door and put her hand on her hip. “You’re a clerking machine.”

  He looked. Then shut the book and tossed it casually on the table toward her with a curious look on his face. “Behold my work.”

  She leaned over and picked up the book. “So this is what Phil meant when he said that the Judge gave you some literary homework.” She handed the book back to him. “I saw a performance of Medea a long time ago, but I don’t remember much.”

  “You remember Jason, of Jason and the Argonauts fetching the Golden Fleece fame? It’s mostly the story of him being a shitty husband.” He shrugged at his reductive summary, but she was intrigued enough to sit down.

  “He goes through all sorts of adventures to get the Golden Fleece,” he explained, “none of which he could have survived without Medea, his wife. She’s sort of a sorceress who double crosses her own family to help Jason. Without her, Jason gets nowhere.”

  “That sounds vaguely familiar.”

  Sometimes when Arthur talked, his eyes looked up and to the right, as if he were seeing what he was describing. She could study his face without her gaze being misinterpreted.

  “Well, after getting the fleece and having some more adventures, they land exhausted on the shores of Corinth where the king offers to let Jason settle down with one of his daughters as his new wife.” He looked at Melanie. “Turns out that Medea is from some barbarian tribe and her marriage to Jason doesn’t count in the eyes of Greeks, even though she and Jason have two kids.”

  “Anyway, Jason is middle-aged, tired, and the king’s hot daughter looks pretty good to him, so he announces that he’s accepting the offer and divorcing Medea, all for the so-called good of the family. Worst of all, instead of apologizing, or at least acknowledging Medea’s loyalty, he refuses to accept any blame and tries to put the breakup all on her.”

  “I remember now,” Melanie replied, images of the play flashing in her mind’s eye. “It’s basically a primer on how not to break up with somebody.”

  “And a pretty good one too,” he sighed, “even if it was written 2500 years ago.”

  “What do you mean?”

  His eyes had wandered again and he looked pensive.

  “When I was a senior in college, one of my roommates broke up with his fiancée to date this gorgeous graduate student. He was constantly at her apartment, so I ended up having to deal with his ex all the time. She used to call our room crying, wanting to talk with him.”

  “That must have been fun.” Melanie stacked two fists on the table and rested her chin on top while Arthur shook his head in disgust.

  “No kidding. He told me not to tell her anything and to just hang up, but instead I told her that pleading with him to come back was a waste of time. He was totally into his new girlfriend and couldn’t be bothered to go to class, much less find time for her.”

  “That’s pretty harsh,” Melanie sympathized, “but I would have done the same thing.”

  “Well, she didn’t want to hear it. She kept saying that if he only knew how much she hurt, he would change his mind. If he only knew, he would stop.” He picked the book back off the table thumbed through it absentmindedly. “I was afraid that she was getting suicidal, so I gave her the phone number of the new girlfriend’s apartment. She called and he told her that they were never really meant for each other. Then, he just hung up on her.”

  He ran his finger along the spine of the book and continued. “That was a big mistake. She started stalking him and vandalized his car. Finally, she spray-painted a big red “A” on his back after one of his classes. They got in a shoving match, and she was suspended from school for a semester. As a condition of getting readmitted the next year, she had to get counseling.”

  “No guy is worth that much trouble,” Melanie whistled. “Get drunk, cry for a weekend, and then just get over it.”

  “That’s easy for you to say—I’ll bet you’ve never been dumped!”

  She blushed at the compliment and then started to protest, but he cut her off. “It gets worse. A couple of weeks later, I get this phone call from her therapist who’s looking for my roommate because she’s threatened to kill him in her sessions. Since the threats were credible, the doctor had to call him.”

  “Great introduction to tort law disclosure duties!
” She smiled and reached for a cookie from a plate that Ms. Stillwater had left on the table. She offered him one, but he waved it away.

  “I suppose the therapy worked, because my roommate survived, graduated, and still works in Chicago for a brokerage firm, but I always thought the whole mess could have been avoided if he had sat down with her, admitted his attraction to the new woman, apologized like crazy, and let her cry on his shoulder for a while. She would have still been miserable, but she probably wouldn’t have gone off the deep end.”

  “I get it … Jason was as bad at breaking up as your roommate.”

  “Yeah, and when Medea’s tears and anger fail to make the slightest dent in him, she kills the king’s daughter and even though she adores her sons, she stabs them to death with Jason’s own sword. Of course, even at the end Jason’s clueless, screaming that everything’s her fault.”

  “Doesn’t Medea get away?” She flicked a small pile of cookie crumbs into the wastebasket. “If I remember right, she denies Jason the body of his sons for burial—a huge deal back then—and is carried off by Apollo to sanctuary somewhere, right?”

  “That’s right. The gods don’t punish her for her crimes.”

  “She gets off,” Melanie said with a frown and made a silent promise to let down her next boyfriend extra gently when the time came to cut him loose.

  * * *

  Arthur sat at the table, beginning to think that the Judge’s intuition was not totally off base. Talking with Melanie had revealed some connection between Medea and Jefferson, but he still couldn’t see where the Judge wanted him to go. The two child killers had some traits in common, but a comparison was not immediately fruitful. Medea’s behavior was horrific, as was Jefferson’s. They both were cheated on by their spouses, but then again, so were a lot of people who managed to respond much more appropriately. The play didn’t provide any explanation why Medea resorted to infanticide rather than throwing the ancient equivalent of darts at a picture with Jason’s face on it. It certainly didn’t explain why a previously nonviolent young man would murder an eight-year-old girl whom he had previously been kind to.