Decision

by Allen Drury

  “Mr. Justice,” Regard said respectfully, “I shall try to make my questions brief because I know this is a very painful matter for you and for all of us. Or at least,” he added thoughtfully, turning to stare at the defendant, “most of us.”

  Debbie made as though to rise but with a wry little smile Earle put a hand on her arm and pulled her back.

  “Mr. Justice,” Regard said, “I believe you arrived in South Carolina after the bombing of Pomeroy Station?”

  “I did.”

  “Why did you come here at that time?”

  “Because my daughter Jane,” he said in a tone as level and unemotional as he could make it, “had been injured in the explosion. She had severe lacerations and bruising of the body.”

  “Principally in what area?”

  “The cranial area.”

  “How did the severity of the injuries display itself?”

  “She was in a coma when her mother and I arrived,” he said, and there was a clucking of sympathy from the jury and throughout the room. He caught Moss’ eyes and received a sad but encouraging look.

  “She did not know you.”

  “No, sir, she did not.”

  “How long was it before she emerged from the coma?” Regard asked. “Or,” he added quickly, “did she?”

  “Oh, yes,” Tay said, struggling to keep his voice steady. “A week ago last Saturday.”

  “Did she know you and her mother at that time?”

  “Yes.”

  “Was she fully comprehensive of your presence?”

  “Yes.”

  “And of her surroundings?”

  “Yes.”

  “And of what had happened to her?”

  “She knew that something bad had occurred.”

  “Was she responding normally, would you say, except for some understandable weakness and drowsiness from sedation?”

  “Yes,” he said, reflecting that Regard had certainly done his homework and bracing himself for the next question. It was exactly what he expected.

  “And is she now?”

  The room became deathly still.

  He hesitated for a second, glanced again quickly at Moss, who nodded his head almost imperceptibly, looking both sad and grim. He took a deep breath and said clearly,

  “No, she is not.”

  Again the sympathetic sounds, the shocked, horrified reactions.

  “Would you care to tell us what has happened, in your own words, Mr. Justice,” Regard asked gently, “or would you like me to elicit it with further detailed questioning?”

  “Oh, no,” he said, though it cost him much, “I will tell you… She lapsed back into coma after our short initial conversation with her and then roused again, three times, during the course of Saturday afternoon and evening. On Sunday, believing everything to be progressing well, and being assured by the doctors of this, I accepted an invitation to visit Justice and Mrs. Pomeroy at their home outside the city. Shortly before I was preparing to return to the hospital I received a call from my wife, who had remained with our daughter.”

  “What did she say?” Regard asked.

  “‘Come back, oh, come back!’” he said, and despite his firm intention to keep it unemotional, something of the terror of Mary’s anguished cry crept into his voice. His audience became, if possible, even more hushed.

  “And you did so.”

  “As fast as Justice Pomeroy could drive me,” he said, “which was very fast… At the hospital”—he stopped, mastered himself with a visible effort that made his recital even more moving—“at the hospital I found that my daughter had—had suffered a massive seizure—”

  There was a sympathetic cry of “Oh, no!” from somewhere in the room, but he ignored it though sorely tempted to cry out savagely, “Oh, yes!”

  “—and had again lapsed into coma, this time—this time, so the doctors have told her mother and me—for—for good.”

  He paused and heard some woman, possibly Mrs. Holgren, actually sob.

  “Do you mean to say,” Regard said gently, “that your daughter—”

  “I mean to say,” he said, and this time the savage desire to shock, in some sort of blind impotent protest against fate, did come out in his voice, “that we are informed on the best of medical authority that our daughter Jane has permanently lost all mental capacity and for the remainder of her life will never be more than a—a living corpse. A human vegetable. A nothing. A nothing!”

  And his eyes, filled with the rage and horror of it while the audience burst into shocked incoherent sounds of sympathy and protest, came to rest at last squarely on the defendant, who stared back defiantly. But for the first time his face was white, his defiance was obviously and unmistakably an act of sheer will, and his eyes, after holding Tay’s for a moment, shifted and looked desperately—or as close to desperation as he would allow himself—away.

  “Your honor,” Regard said softly, “I have no further questions of this witness. Counsel—” he added with grim politeness and gave Debbie a slight, sardonic bow.

  She stood up and a low, rumbling boo swept through the audience, echoed a hundredfold outside. Judge Williams rapped his gavel sharply and spoke in a voice that showed a little tension but was, as ever, reasoned and firm.

  “The audience has been warned,” he said. “I want no further disturbances or demonstrations of any kind. Stop that!”

  And crashed down his gavel a second time, so hard that it seemed it might break. Absolute silence ensued. He let it run on for a good long time before he finally said:

  “Counsel, do you wish to question the Justice?”

  “Yes, your honor,” she said in a low voice. “Just two questions. First, Justice Barbour: do you believe in, or do you oppose, the death penalty?”

  “Your honor,” Regard began, “I must object to that kind of philosophical question in this proceeding. It has no place—”

  “Oh, yes it does!” Debbie cried, even as Perlie Williams turned upon his old friend and said firmly,

  “Counsel is overruled. The question is entirely legitimate, in the court’s estimation. Your honor, would you care to answer?”

  “Yes,” Tay said, voice still tense but relatively back to normal after his bitter outburst. “Philosophically and in principle, I am opposed to it and always have been. However—” he said, holding up a hand as there was again an uneasy stirring in the audience despite Judge Williams’ dictum, “however, I would not now, or ever, prejudice my judgment of future matters that might come before me as a jurist. Nor would I foreclose myself arbitrarily from whatever judgment the facts of an individual case might call for.” And there, Cathy, he told her in his mind, I am meeting you halfway, at least, and I hope you appreciate it. “Does that answer your question, counsel?”

  “If that is the best you can do, Mr. Justice,” she said. He looked straight at her and replied quietly, “It is.”

  “Very well,” she said. “My second question is: If the matter here should ultimately come before the Supreme Court of the United States and you should not disqualify yourself, will your daughter’s condition affect your judgment concerning this defendant?”

  “Your honor,” Regard said, “now I really must object. Will counsel and her client never cease tormenting these poor people who have in the one instance lost a child from life, and in the other lost a child from all sentient being? Will they never have the common decency, your honor, to refrain from—”

  “Counsel!” Perlie Williams said sharply, in his first show of real anger in the whole trial, the tensions surrounding the case apparently getting even to him at last, “I will rule you both out of order, and I so do. Counsel for the defense asks an impossible question which should bring its own reward and create exactly the prejudice she claims to be fearful of. Counsel for the prosecution is indulging in maudlin self-serving. You will both be in order or we will have a recess and let you think about it. Justice NOW!” he added sarcastically, “or no Justice NOW!”

  For s
everal moments after that the courtroom was again very quiet. Hardly anybody dared cough, move, whisper or even look directly at the judge. Finally, he shifted position a little and sat back slowly in his chair.

  “Justice Barbour,” Regard ventured to say in a very quiet, circumspect voice. “I believe you may be excused, sir, if that is agreeable to opposing counsel—?”

  Debbie nodded with equal care and Regard said,

  “Justice Pomeroy, if you will please take the stand.”

  There was a muted stir of deep sympathy and warmth as Moss came forward; yet though his testimony was perhaps even more tragic than Tay’s, it was in a sense anticlimax. There was, after all, nothing much to add to the implacable, unchangeable fact that Sarah was dead. Nor could there be at this point much more sympathy than had already come to him and Sue-Ann in the past three weeks from all over the state and the nation. The Pomeroys were much admired and much loved; their tragedy was South Carolina’s and it had already been expressed in a hundred editorials and television and radio commentaries, many thousands of letters, telegrams, telephone calls.

  He testified quietly, with obvious emotion but without the open and uncharacteristic bitterness that had momentarily overwhelmed his old friend; and although what he had to say was devastating, it basically covered old ground and no longer carried quite the same emotional impact.

  When the trial was reviewed and recapitulated, as it was in almost every area of the media all across the country in the week immediately following its conclusion, it was recognized that the two witnesses most responsible for the conviction of Earle William Holgren were Boomer Johnson and Justice Taylor Barbour; and of these it was the Justice, with his heavy burden of living tragedy that he would most likely have to carry with him as long as he lived, who was generally conceded to be the final factor.

  To Moss, also, Debbie put her two questions and from him elicited answers both more direct and more damaging to her client’s hopes. Although Regard again tried to protect him, and Perlie Williams sharply reminded her of his statement not an hour ago concerning her second question, Moss brushed them both aside with thanks and said he would be glad to answer.

  To the question, “Do you or do you not believe in the death penalty?” he replied calmly,

  “I do.”

  There was the start of applause, hastily quelled in response to Judge Williams’ monitory glance, inside the room. Outside a triumphant roar of approval came from members and friends of Justice NOW!

  Debbie waited patiently, if with some obvious annoyance, until it quieted. Then her second query:

  “If the matter here should ultimately come before the Supreme Court of the United States, and if you should not disqualify yourself, will your daughter’s death affect your judgment concerning this defendant?”

  “Miss Donnelson,” Perlie Williams began sharply, “I warned you—”

  “Your honor,” Regard said simultaneously, “I thought we had been all over that—”

  Moss interrupted. “That’s all right,” he said again. “I don’t mind.”

  He sat for a moment considering. The room again became very still. Finally he spoke slowly and thoughtfully, looking directly at his fellow Justice, who looked somberly back.

  “If you bring this case before us, Miss Donnelson, as it is quite obvious you intend to do should the jury render a verdict of guilty upon your client and should the verdict be upheld by the supreme court of the State of South Carolina, then I would have to be honest with you”—he paused and the room if possible became even quieter—“and say that, yes, if I remained on the case, I could not help but be influenced by my emotions. However—” he said, holding up a hand, very much as Tay had done in response to the immediate murmur, “however, I hold an office for which I have a great regard, in an institution for which I have a great regard. I certainly am not prepared to say at this time how much I might be influenced, or whether you could count on my vote one way or the other. To expect me to say that now—or even, in fact, Miss Donnelson, to know that with any certainty now—is a little naïve, it seems to me.”

  “Would you disqualify yourself?” she asked, and again Judge Williams and Regard both started to protest. But again Moss stopped them with a mild “I don’t mind … Miss Donnelson,” he said, as though he were querying a child, “do you really expect me, at this moment, to give you an answer to that question?”

  “I would appreciate it, your honor,” she told him crisply. He shook his head as if in disbelieving wonderment and said, “Miss Donnelson. Oh, Miss Donnelson! How naïve can you get? Again, I don’t know. It isn’t one of those things you just decide on the spur of the moment or with a snap of the fingers. I can’t tell you until I actually face it. And although you were precluded from asking this same question of Justice Barbour, which I guess you intended to do”—she nodded—“I expect if you had asked it of him that his answer would have been exactly the same as mine.”

  He looked at Tay, and the audience turned and looked at him, too; and Tay also nodded, expression grim.

  “There you have it, Miss Donnelson,” Moss said softly, and for the only time his hatred for her client came into his voice. “You and your friend just don’t know, do you? You just don’t know what might happen, if you get up to the Supreme Court of the United States. You’ll just have to guess, won’t you? You can’t really plan, you just won’t know ’til the time comes. I feel sorry for you both, Miss Donnelson, I really do. But there it is.”

  “Your honor,” she said to Perlie Williams, “I have no further questions of this witness.”

  “Probably wise, counsel,” Perlie said dryly, prompting sarcastic, approving laughter from courtroom and Justice NOW! “Probably wise… Justice Pomeroy, thank you very much, sir, you are excused.” He turned to Regard. “Counsel?”

  “Your honor,” Regard said, “the State of South Carolina rests its case, reserving summation until the defense has also completed its case.”

  The courtroom seemed to relax for a few moments. But when Debbie stood and addressed the bench, something in her rigid back and tone of voice brought an immediate hush again.

  “Your honor,” she said, sounding strained and unhappy, “as counsel for the defense I have an announcement to make to the court. I wish to emphasize that while the first portion of what I am about to announce is my decision, taken in consultation with my client, the second portion is solely and entirely his own idea. It is a decision taken by him over my strenuous and repeated objections. But he is determined upon it, your honor, and this being so I have no choice but to abide by his wishes. I just want to emphasize that it is not my doing and the results are not my responsibility.”

  “I think you’ve made that clear enough,” the defendant said in an impatient voice that carried clearly in the excited hush. “Just get on with it now, okay?”

  “Yes, your honor,” Debbie said with sudden anger. “I shall ‘get on with it.’ Firstly, the defense will call no witnesses—”

  There was a gasp of surprise, followed by a murmur of voices despite Perlie Williams’ stern looking about. Several reporters half rose, poised to dash out with bulletins. The pool television camera swung in upon her tense, determined face.

  “—since we believe the prosecution has not proved its charges beyond a reasonable doubt and because we rely on the good sense, honesty and integrity of this jury and the traditional American principle that a man is innocent until proven guilty. No such proof has been produced here and we do not believe any witnesses from our side could give additional force to what the record already clearly shows.”

  She paused, took a drink of water and resumed, looking if possible even more tense.

  “At his request, however”—her audience, if possible, growing even quieter—“the defense will put one person on the stand. I have here a written notice, addressed to the court, of his desire to waive his constitutional right against self-incrimination. I now hand it to the court.”

  She stepped forward,
handed a paper to Judge Williams and stepped back while he took it, read it without expression, and handed it to the bailiff, who handed it to the official reporter. Then he looked down for a long, thoughtful moment upon the defendant.

  “Earle William Holgren,” he said. “This is your own decision, made without coercion from this court or anyone else?”

  “It is.”

  “Please come forward and be sworn.”

  “He’s crazy,” Moss whispered to Tay as the room and the crowd outside exploded, as spectators gabbled, reporters dashed and the television camera swung wildly from Debbie’s grim face to Earle’s triumphant expression to the elder Holgrens’ anguished dismay to the two Justices’ own startled disbelief.

  “He has a monumental ego,” Tay responded, “which I guess is craziness. And it’s going to be the death of him.”

  “By God,” Moss said, voice rising savagely against the hubbub. “I hope so.”

  ***

  Chapter 8

  The testimony the defendant gave under the questioning of his counsel and the cross-examination of the state received substantial praise from some of the major media, but in the minds of the great majority of his countrymen it really had very little to do with the crimes at Pomeroy Station. Very little—or everything, as Moss murmured to Tay as they listened to the destroyer of their children duck, dodge, defy and orate. Very little about the specific things with which he was charged—everything about the state of mind that had made them possible. The clichés of that small but much-publicized segment of a generation that had lived outside reality, and now was frozen in time with nothing for company but its own twisted misconceptions of the world, passed in review. Along with them went a contemptuous disregard for human life, the law and the ordinary decencies by which most people live as the simple price of survival, which linked the defendant directly to the rising tide of street crime, murder, rapes and robberies throughout the land. Those who had regarded Earle Holgren as a symbol of all that was wrong with the public safety felt more than justified in making his case the focus of their organized efforts.