“So Robert Rand has five years to find something that exonerates him?”
“For now,” Howe said. “California has taken the position that the five-year waiting period provision of the Ramirez Act is unconstitutional. They’ve asked the U.S. Supreme Court to rule that Congress has no power over California criminal law. We’ll see.”
“There has to be some kind of appeal that’s possible,” Ted insisted.
“Oh, you think so?” Howe’s smile was grim. “Not under the terms of the Ramirez Act. The writ of habeas corpus is a thing of the past, unless there’s illegal discrimination or some other specific federal issue. For someone like Mr. Rand, a white male convicted of a state crime in a state court, no federal appeal is possible.”
“Well, what about appealing to the California Supreme Court?”
Howe shrugged. “The California legislature has given great discretion to prosecutors in cases of violent crime,” he said. “Judges, on the other hand, have very little discretion.”
“I don’t understand this,” Ted said. “You have rights under the Constitution. Why can’t a judge enforce them?”
Howe leaned back in his chair and pushed his legal pad to the side of his desk in disgust. “It’s my fault, apparently,” he said.
Ted looked at him.
“That’s what Jackson says. He thinks it’s my fault. And he’s probably right.”
Ted was silent.
“You see,” Howe continued, “If I hadn’t pushed for the Equality Amendment, if I had been satisfied to let the courts continue enforcing equal rights through the reasoning they used in the desegregation cases, we might not have arrived at this point today.”
Ted blinked. “If you say so,” he said pleasantly. “Got any Scotch?”
Howe waved his hand in the direction of the bar. “But how could I leave it alone?” he asked. “It wasn’t right. It wasn’t secure. Constitutional rights belong in the plain language of the Constitution. Out of reach of judges. Out of reach of Congress.” He sounded as if he were arguing with a firing squad. “You can’t even imagine it today. In every election campaign we heard that civil rights could be rolled back if the wrong man became president. Why? Because he would appoint the wrong Supreme Court justices. And they would reverse the decisions of the right Supreme Court justices. And our rights were hanging by a thread. Sometimes less.”
Ted placed a drink on Howe’s desk and sat down with one himself.
“And it wasn’t just blacks,” Howe continued. “It was the same for women. In every presidential election, a woman’s right to a legal abortion—they used to call it ‘the right to choose’—was at risk. Now why, I ask you, was a woman’s right to choose at risk while a woman’s right to vote was secure? Why? Because a woman’s right to vote was in the plain language of the Constitution. Nothing could change it except a two-thirds vote of each house of Congress and the ratification of three-quarters of the states. But a woman’s right to choose, well, that rested on a bare majority of justices who discovered a right to privacy in a penumbra emanating from the Bill of Rights. That’s not a Constitution, that’s a Ouija board.”
Ted just blinked, and sipped his Scotch, and waited. Howe was on his feet, pacing the width of the office with the intensity of a tornado. “People don’t understand the nature of a constitution,” he boomed. “It says what it says, and it’s not enough to imagine that it says something more. If it doesn’t say what it should say, it must be amended. And it never said segregation was unconstitutional. It never said equal rights were guaranteed regardless of race. That was pulled out of thin air under the guise of interpretation. Everybody knew it, and no one would say it. But it was true, and here’s how you could tell: Whenever a Supreme Court justice retired, you would hear screeching from coast to coast that the wrong nomination could mean the undoing of all our progress on civil rights. Some even predicted a 5-4 decision that would take us back to Plessy v. Ferguson. Separate but equal. You see? This was only possible because the Constitution did not actually, truly, plainly ban racial discrimination. That’s why I pressed for the Equality Amendment. It was time. It was long past time.”
Howe returned to his desk and sat down heavily. The strain of the day was visible on his face. “What I hadn’t foreseen,” he said, reaching for the icy glass that had begun to drip a wet ring of condensation on his desk blotter, “was that others with less understanding would use my arguments to successfully press their own ideas for constitutional amendments. Thankfully, some of those were eventually repealed. I hope that will be the fate of the 37th Amendment as well.”
Ted took a long sip of Scotch. “The 37th Amendment,” he said, nodding. “Which one is that?”
Howe sipped his Scotch, then drained it. “The 37th Amendment,” he said quietly, “repealed the ‘due process’ clauses of the Fifth and Fourteenth Amendments. It replaced them with what is now known as the ‘law of the land’ clause.”
Ted looked blank. Howe leaned back in his chair. The soft leather made a sighing sound. “The Constitution at one time guaranteed that no person could be deprived of life, liberty or property without due process of law,” Howe explained. “Today it says no person shall be deprived of life, liberty or property in violation of the law of the land.”
“What’s the difference?” Ted asked.
“Well, the practical effect,” Howe replied, “was to dissolve a long string of Supreme Court decisions protecting the rights of criminal defendants in state courts. During the 1960s, the Court under Chief Justice Earl Warren held that the protections listed in the Fourth, Fifth, Sixth and Eighth Amendments to the U.S. Constitution were so fundamental to the concept of liberty that they were essentially incorporated into the idea of due process. And because the Fourteenth Amendment prohibited the states from denying due process of law to any person, the states were thereby required to give criminal defendants the protections of the federal Bill of Rights in all state court proceedings. This was a revolutionary idea. Previous Courts had consistently held that the Bill of Rights was binding only on the federal government, not on the states.”
Ted nodded.
“So when the 37th Amendment was ratified in 2016, repealing the due process clauses, the effect was to remove the protections of the federal Bill of Rights from defendants in state courts. They have the protection only of their state constitutions and their state laws. They may not be deprived of life, liberty or property in violation of the law of the land, whatever idiocy that happens to be at the moment. In California, it is the law of the land that cases involving violent crimes are tried under so-called expedited procedures. You are a living witness to the tragic results.”
Ted stared into his empty glass, watching the reflection of the recessed lighting fixtures wobble on the wet surface of the ice cubes. “Was there something you wanted to discuss with me?” he asked finally.
“Yes,” Howe said. He stood up and moved to the armchair next to the sofa where Ted was sitting. “You’re in the advertising business, is that correct?”
“Yes.”
“It’s my belief, though I can’t prove it,” Howe said, “that the eyewitnesses who identified Robert Rand did so because they had seen him on television. Our only hope to save Mr. Rand’s life is to build a credible case for mistaken identity and try to get the governor to commute the sentence.”
Ted was hesitant. “How can I help with something like that?” he asked.
“Well, I’m not sure,” Howe said. “I thought perhaps you might have access to records of airplay, that kind of thing. Emily Rand can provide you with a list of programs in which Rob has appeared.” He looked helpless, lost in a strange business.
Ted nodded slowly. “I believe that’s possible,” he said. “It’s not really my area. It’s more the media department. But it’s possible.”
“There may not be much time,” Howe said.
Friday, May 19, 2056
Ted held up his hands. “Wait,” he said. The six people crowded around h
is desk all stopped talking and stood motionless for a moment. “All right,” Ted said. “One at a time. Miller, you first.”
Art director Miller Sebring spoke slowly and clearly. “The client doesn’t like the font,” he said.
“Okay,” Ted said. “Change the graphics.”
“Not just the graphics,” Miller said. “The animation. The lettering that cuts into the side of the mountain. Today’s Friday. This goes on the air Sunday. It’s a 30-hour job to redo that animation.”
“All right,” Ted said. “Hire as many extra animators as you need to get it done by tomorrow evening. Or get whatever hardware you need. This ships out at 5:00 a.m. Sunday morning, we can’t change that. What else?”
“They want a female announcer.” Kayla Neuman-Green sounded irritated.
“Fine. Set up an audition for later today.”
“Already did,” Kayla said.
“Okay,” Ted said. “Nothing we can’t handle so far. What else?”
Three people spoke at once and the phone rang. Ted held up one hand to silence the group and picked up the telephone handset with the other. “Ted Braden,” he answered.
“Mr. Braden,” the voice could be heard across the desk. “Dobson Howe. How are you today, sir?”
“Fine, just fine, thanks. A little backed up here, is the only thing.”
“I won’t keep you,” Howe said. “However, I have the list of Robert Rand’s television program appearances that we spoke about. I’d like to send it to you.”
“Sure,” Ted said. “Absolutely. Fly it right over.”
“May I e-mail it to you?” Howe asked, “I’m afraid I’m not up on the new technology.”
“That’s fine,” Ted said. He gave Howe the e-mail address. “I’ll get to it just as quickly as I can,” he said, “But today’s Friday and I’ll be working all night and all day tomorrow on these Sony Motors spots.”
“I understand,” Howe said. “Thank you very, very much.”
“No problem,” Ted said. “I’ll send you whatever I can find.”
“Very good,” Howe said. “Thanks.” He hung up.
Ted looked at the group around his desk. “Where’s Brianna?” he asked.
Brianna Schafer Ramos looked over her shoulder at Ted, the creases in her neck squeezing together like the folds of an open drapery. “No,” she said.
“Please, Brianna,” Ted pleaded, dropping down on one knee, “Please.”
“No.” Brianna shook her head. “I’m up to my ears with Farm Kitchens homestyle sausage links. I don’t have time to do anybody’s unofficial project, not even yours, I’m sorry to say.”
“I’ll make it worth your while.”
Brianna swiveled her chair around and looked Ted over. “I wish you meant that, Theodore,” she winked. “You’d make an old woman very happy.”
Ted took her hand and kissed it. “Please, Brianna. It’s important.”
Brianna sighed. “All right,” she said.
“Great.” Ted was on his feet and digging in his jacket pocket for Dobson Howe’s e-mail. He pulled out five printed pages, slightly crumpled, and put them on the desk. “This is a list of television shows,” he said. “Can you find out if any of them aired between February 21st and May 11th of this year?”
“You mean anywhere? Broadcast, cable, wireless, demand, anywhere?”
Ted frowned. “I didn’t think about demand,” he said. “Is there a public record of how many people ordered an on-demand viewing of a show?”
“Of course not,” Brianna said. “You want to know nationwide or just locally?”
Ted smiled. “Locally,” he said.
“I can probably get that for you.”
Ted kissed her hand. Brianna Schafer Ramos was the best media specialist he had ever worked with, and he’d been at four agencies just in the last six years. “Thank you,” he said.
Brianna was staring at Dobson Howe’s name on the page in front of her. “Does this have something to do with that trial?” she asked.
Ted glanced around to make sure no one was listening. He nodded.
“Really? Well, why didn’t you say so right away? What are we looking for?”
Ted held a finger to his lips and spoke in a low voice. “We’re looking for evidence that one of the witnesses might have identified Robert Rand because they recognized him from TV. These are all the shows he did. I’m trying to find out if any of them could have been seen between February 21st and May 11th.”
“I’ll have it for you in an hour,” Brianna said. “This is so exciting.”
Ted had three people around his desk exactly one hour later when Brianna called. “Good news and bad news,” she said.
Ted held the telephone handset tight against his ear in an effort to keep her voice from escaping. “Okay,” he said.
“The bad news is none of the shows played anywhere between February 21st and May 11th. The good news is that one of the shows, a TV movie actually, ran on May 13th.”
“That’s good news?” Ted asked.
“Well, yes it is,” Brianna said, “Because it ran on the LTN channel as part of ‘Take No Prisoners’ Week. They promote those things to death.”
“Promos,” Ted murmured in wonder. “I didn’t even think about promos.”
“Oh, absolutely,” Brianna said. “Commercials for these movies run all day long for a week in advance. And on a lot of channels, not just LTN. Plus they promote direct-to-consumer, in print, everywhere. Billboards, even. So if your guy was in the ads for this movie, he could have been seen any time between May 7th and May 13th. In other words, five days up to and including May 11th.”
“Brianna,” Ted said, “Do you think you could....”
“Absolutely,” she said. “But not until Monday afternoon at the earliest.”
Bright white sunlight was streaming through the windows of Dobson Howe’s office when he arrived Monday morning. It was five minutes to eight, half an hour before either the coffee service or his assistant would get there. He set his briefcase on the desk and turned on the television.
“Will the governor be making a statement today? Has the governor read the Court’s opinion yet?” Reporters were grilling a frazzled-looking press aide at a lectern embossed with the seal of the Governor of the State of California.
“The governor will be reviewing the Court’s opinion sometime today as will the California Attorney General,” the aide said.
Reporters persisted. “Does this mean executions will resume in California?”
“Oh, my God,” Dobson Howe whispered. He lunged for the computer to the right of his desk, banging two fingers on the keyboard in a rapid chatter.
A screen of news headlines came up. Blinking in red at the top of the screen were the words, SUPREME COURT OVERTURNS RAMIREZ ACT. Underneath, the subheadline read, “Justices Rule Congress Overstepped Its Authority in Halting California Executions.”
Howe grabbed for the phone, knocking it to the floor. The buzz of the dial tone came through the room’s speakers anyway. “John Butera,” he shouted. The voice recognition system sounded a series of tones as it connected to the telephone number. “Governor’s office,” a woman’s voice answered.
“This is Dobson Howe,” boomed the lawyer. “Calling for John Butera.”
“He’s not in yet, sir,” the woman answered.
“What about Mark Galindez?”
“He’s also not in yet, sir,”
“Is the governor available?”
“No, sir,” the woman said. “He’s expected at nine.”
“Please leave word for all three of them,” Howe nearly shouted.
“Yes, sir.” There was a click, and then silence.
Howe leaned down with difficulty and picked up the telephone, assaulting the buttons with his index finger on the way back up to his desk. Tones sounded through the speakers. “Justice Margulies’ office,” a man’s voice answered.
“Is he in yet? This is Dobson Howe.”
“No,
sir. He’s expected very shortly.”
“Leave word, will you?”
“Yes, sir.”
Howe pressed a button to disconnect the call. His gaze was fixed on a square of sunlight spilling over the edge of his desk and onto the carpet. “Margulies, wireless,” he announced suddenly. Tones sounded through the office, then a ringing sound, then a click. “I’m unavailable,” said a recording. “You may leave a message or reach me at my office.” Howe jabbed the disconnect button. “Ted Braden at home,” he boomed. Tones, then ringing. A young girl’s voice answered. “Hello?” she said.
“May I speak to Ted Braden, please, this is Dobson Howe.”
“I think he’s in the shower,” the girl said.
“I’ll hold on.”
“You will? Okay.” A loud clunk came through the speakers, followed by background noise from a television. Howe heard the pert voice of a network morning show anchor. “Still to come, legendary designer Opal Snow will be here with an exclusive preview of her first-ever collection of swimsuits. You won’t want to miss this. But first, let’s go to Ivan Young in Washington for an update on a breaking story. Ivan?”
“Hello, Mia. The United States Supreme Court has handed down a major ruling this morning. By an 8-1 vote the justices have overturned the Ramirez Act. That’s the federal law passed by Congress last year which required a five-year waiting period before any state could carry out the execution of a person sentenced to death. The law was widely seen as being aimed directly at California, which had carried out many times more executions than other states, and much more quickly than other states.”
Howe grabbed the TV remote control from his desk and ran through the channels until he saw Ivan Young standing in front of the U.S. Supreme Court building, grasping a folded sheaf of papers held together with staples.
“The Court ruled today that because the United States Constitution created a national government of specific, limited powers, with all other powers reserved to the states, and because Congress was given no power over the states’ criminal justice systems, Congress exceeded its authority when it passed the Ramirez Act. As a result, the justices today, by an 8-1 vote, struck down that law as unconstitutional. What that means, Mia, is that if California chooses to execute murderers within days of their convictions, Congress has no power to stop it.”
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