Mark the Sparrow

by Clark Howard

  “It’s sound reasoning,” Morris Niebold commented. “Even though it rejects our argument, I think we have to admit that the court’s logic is faultless.”

  “I don’t admit it,” Genevieve said firmly. “If it were faultless, the opinion would be unanimous. We did have one dissenting justice, I believe.”

  “Quite true, my dear,” Niebold conceded. Genevieve clenched her jaw. How she wished he would stop calling her that. “Borden,” said Niebold, “why don’t you go over the minority opinion for our colleagues?”

  “Surely.” White thumbed to the back of the opinion. “The dissent was from Mr. Justice Tanaka, the court’s newest and only non-Caucasian member. His position is pretty much in line with our own: he feels that a trial judge must appoint someone to act as guardian of the defendant’s rights. He feels that such an appointment is doubly essential in cases involving defendants from disadvantaged ethnic backgrounds—” Borden White smiled. “This doesn’t surprise me in the least, coming from a Jap,” he said smugly. “At any rate what Tanaka does not agree with is our position that this guardian of the defendant’s rights must also be an advisor to the defendant in trial strategy. He feels that these are separate and distinct functions and should be treated as such. He even goes so far as to say that in some instances, such as in controversial cases of national interest or notoriety, two individuals be appointed: one to advise, one to monitor. In that way, he states, there can be no question as to the concern of the court in protecting the individual’s rights. Justice Tanaka concludes his opinion by observing that the placing of trial courts in what the majority refers to as an untenable position is a weak excuse for failing to take positive steps to buttress the foundation of individual rights.”

  “I must say,” Morris Niebold intoned, “that Tanaka has guts, Jap or no Jap.”

  “May we get on with the discussion of future plans?” Genevieve asked.

  “Of course, my dear,” said Niebold. His round, shiny cheeks gleamed almost as brightly as the chrome of his wheelchair. “Which would you care to take up first, the legal or nonlegal plans?”

  “The legal.”

  “Very well, that’s simple enough. Borden and I have already discussed that point and we’ve decided that we will take the appeal that was denied by the state and file on the same grounds in the federal court.”

  “The same appeal?”

  “Yes. The fact that we had one California justice on our side I think indicates that our position has some definite judicial merit. And whereas the California court was disinclined to place any undue burden on the trial judges in its own state, the federal court may not be so reluctant. Borden and I both feel, from a constitutional point of view, that we will have a very good chance in the federal court of appeals.”

  “Fine,” Genevieve said. “That will amount to a nice delaying tactic, nothing more, because I don’t think a federal court is going to overrule a state supreme court on the matter of a trial judge’s jurisdiction within its own state. What I’m primarily interested in is what we’re going to do at the state level. If we’re going to get Weldon off Death Row, it’ll be through our own state courts, not the federal court system. I’m convinced of that. So while this delaying appeal is being studied in the federal courts, what do we intend to do at the state level?”

  “Well, I’m afraid we’ll have to do a little research before we decide that,” Niebold said with a smile. “After all, the denial of our appeal has just been sent down; we need a little time to regroup and decide how best to next attack the state court. That sort of thing takes quite a bit of digging.” He turned his smile on Carla Volt. “We’ll put our expert legal assistant on it right away. In the meantime, I wonder if now wouldn’t be an appropriate time to discuss the nonlegal aspects of the case. Robert,” he said, turning to Cloud, “would you be agreeable to Weldon himself taking a somewhat harder stand with regard to his situation?”

  “A harder stand in what way?” Cloud asked.

  Morris Niebold hunched slightly in his chair and put the tips of his fingers together tent-fashion. “Up until now,” he said in an academic voice, “Weldon’s profile to the public has been one of innocence, wrongful conviction, and lawful but irresponsible condemnation to death in the gas chamber. His image has been one of a quiet, thoughtful person laboring under a miscarriage of justice, but being aided by a small, dedicated group of people—”

  “That is precisely the image that Rob and I have worked very hard to convey to the public,” Genevieve interrupted evenly.

  “We realize that, Genevieve,” said Borden White, “and the two of you have done a splendid job of it. It’s just that Morris and I now wonder if it might not be time for a reevaluation of that image.”

  “Exactly,” said Niebold. “The soft sell, as they call it, has served its purpose by getting people interested in Weldon’s plight. I wonder now if a somewhat more—ah—active role on his part might not benefit our cause even more.”

  “Would you mind defining what you mean by active?” Genevieve said.

  “All right. Let me give you an example. Until now, practically the only quote the public has heard from Weldon is that he’s innocent. The people who are interested in him don’t know, for instance, how he feels about G. Foster Klein, or the members of the jury who found him guilty, or old Judge Lukey, who could have overruled the jury and given him life in prison instead of death. And then there’s the Calder woman and that little Mexican girl who both had to have made mistaken identifications for him to be innocent. Incidentally, we never have come up with that Mexican girl’s whereabouts, have we?”

  “No,” Cloud said, “we haven’t.”

  “Carla, make a note for the agenda of our next meeting to discuss the feasibility of hiring a private detective agency to track her down.” Niebold turned back to Cloud. “The point I was making is that now might be the time to encourage Weldon to become somewhat more positive in the outward image that the public sees—”

  “You want him to begin attacking people like Klein and Lukey, is that it?” Genevieve asked bluntly.

  “Not attacking,” Borden White said quickly. “We don’t want anything vehement—”

  “Not at the outset, at any rate,” Niebold put in.

  “But we do feel that some retaliation on his part is in order—”

  “I am against it,” Genevieve said unequivocally.

  “Come now, Genevieve,” said White. “Without even discussing it?”

  “We’ve been discussing it,” she replied imperviously. “What you’re suggesting will change Weldon from a victim to an aggressor. It will lose him ninety percent of the public support he has gained.”

  “It could have the opposite affect,” argued Niebold. “It could whip his present supporters into a fine frenzy and gain him a legion of new followers. People love a scrapper, you know, dear. Always have.” Before Genevieve could comment, Niebold had turned to Cloud. “Robert, what do you think?”

  “I don’t know,” Cloud said hesitantly. “The thought of undoing all we’ve done to make Whit a sympathetic person doesn’t instantly appeal to me. Even a slight change would involve a lot of careful planning. The tone of this second book we’re doing would have to be completely changed—”

  “I’m sure that could be accomplished with some editing,” Borden White observed. He paced around the desk until he was standing near Morris Niebold. “Please understand that we’re not asking for anything drastic,” he said with growing agitation. “What we basically want is to reach agreement among ourselves to explore the feasibility of having Whitman project a little more strongly. We think it will be good for the foundation, good for the next appeal we file, and good for our cause in general. We don’t have to resolve exactly what degree of change we want or how we intend to accomplish it—but for the minutes of this meeting we would like to record a definite commitment from each director to pursue the matter. Therefore I am putting the matter in the form of a motion.”

  “I will
second it,” Morris Niebold announced, as solemnly as if he were naming a new Pope.

  “All in favor?” Carla Volt, recording the minutes, asked.

  Niebold and White both voted aye.

  “All opposed?” Carla asked.

  “Opposed,” Genevieve said.

  Carla turned to her lover. “Mr. Cloud?”

  Cloud remained silent.

  “You may abstain if you like, Robert,” advised Niebold.

  Cloud looked over at Genevieve. She met his stare but neither spoke nor allowed her expression to speak for her. Only deep in her eyes did Cloud see—or imagine that he saw—a plea.

  “I’m opposed,” he said finally. “I’m sorry, gentlemen, but I have to go along with Genevieve.”

  There was a second of silence in the office. Then Morris Niebold brought it back to life again.

  “Sorry! Don’t be, Robert! That’s why we each have a vote, so we can express ourselves in complete good faith. This is a matter on which we happen to be equally divided in opinion. So be it! Carla, let the minutes show that the motion was neither carried nor defeated but was tabled for further discussion at a later date. Is that satisfactory with everyone?”

  “Fine,” said Cloud as Genevieve and Borden White mumbled their assent.

  “Done,” Niebold said, “and let’s have no more talk of anyone being sorry.” He smiled like an aging cherub. “Now, I move that we adjourn this meeting.”

  So concerned had Cloud and Genevieve been with the denial of Weldon Whitman’s main appeal that they had forgotten the far less important, secondary appeal which had been suggested by Carla Volt and subsequently filed along with the primary papers. That appeal had put forth the theory that to limit the number of letters a condemned man was allowed to send and receive was, in essence, placing a limitation on the latitude given him by the law to appeal his case. Since the law had created so many avenues of appeal for the convicted criminal, it seemed inconsistent that at the same time it would permit a penitentiary regulation to so restrict those avenues as to actually dilute the right of appeal. It was true, Whitman’s plea admitted, that exceptions were made for correspondence with attorneys and the courts—there being no restrictions at all on those classifications of mail—but by limiting other forms of correspondence, the regulation was in fact circumventing the prisoners’ right to appeal by curtailing correspondence which might be contingent or supplemental to unrestricted mail. As an example, the appeal set forth a theoretical case wherein an incarcerated man might be allowed to write as many letters as he desired in an attempt to retain an appellate lawyer, but be strictly limited in the number of letters he might write to relatives and friends in an attempt to raise funds to pay that lawyer. The situation—so claimed the first part of Whitman’s sub-appeal—was definitely an anomaly of the law and worth the Supreme Court’s attention to correct it.

  The second part of the sub-appeal was that the arbitrary San Quentin regulation prohibiting the possession of typewriters by condemned men was essentially a violation of the same right of appeal by virtue of the fact that it placed an unfair burden on prisoners such as Weldon Whitman who were playing active roles in their appeals. A typewriter, the appeal argued, could help the prisoners’ correspondence create a neat, favorable, businesslike impression, quite the contrary to that created by a penciled letter written on lined prison stationery. Such an impression might well make the difference whether a person or organization decided to aid the condemned man in his quest for freedom. Regarding the prison’s security reasons for prohibiting typewriters on Death Row, it was pointed out that such reasons were nothing more than token excuses, because typewriters were allowed in all other cellblocks, except Isolation and similar punishment units, and those other cellblocks were not nearly as secure as the Condemned cell-block. The argument narrowed down to the fact that Death Row was the most secure block in the prison, therefore it was the block where the permitting of typewriters would pose the least potential danger.

  The California Supreme Court, after considering both arguments, agreed with the appeal and granted the requested relief.

  “Can you believe this?” Genevieve asked incredulously the next day. “Can you believe a court that in one breath says a man has to die, and in the next lets him have a typewriter? It’s absurd.”

  They were in her apartment; she had invited Cloud over for breakfast before they went to the printshop to look at the first run of a new anti-capital-punishment pamphlet.

  “At least the court is giving us something for our efforts,” Cloud rationalized.

  “They’re giving us crumbs.”

  “Maybe so, but we still might be able to get some publicity out of it. In a way, it’s really a major decision as far as California prisons are concerned. It conceivably could affect every convict in California; certainly it will affect the future rights of every condemned convict.”

  “I suppose you can look at it that way,” Genevieve conceded.

  “We have to look at it that way,” he told her. “We have to take advantage of everything they give us. I think we can get some good newspaper coverage on the first man on Death Row to get a typewriter. And I’ve got an idea for a magazine article that might do us some good. As soon as we get to the office, I think I’ll call Ben Droller at Argus and see what he thinks of it.”

  Three weeks later, when Genevieve was visiting Whitman at the prison, he told her he had received the typewriter. She was delighted to see that he was pleased with it.

  “It’s really great,” the condemned man said enthusiastically. “The store sent me a ream of paper and a typing manual. I’ve already started teaching myself.”

  “I’m so glad you like it, Weldon,” she said. “It’s the very best manual I could find. I just wish it could be an electric model.”

  Whitman grinned. “I can just see them letting us have electrical outlets in each cell. Somebody, somehow, would find a way to blow the fuse on the whole block at least once a day.”

  Genevieve smiled and sat back to study him. He was wearing the new glasses that the state had recently issued to him.

  “I know,” he said, grinning. “With this beak of mine they make me look like the wise old owl.”

  Presently they got down to the serious talk.

  “Did Niebold and White get that appeal filed in federal court yet?” Whitman asked.

  Genevieve nodded. “Yes, it’s been filed. But they still haven’t come up with any grounds on which to base a new appeal in the state court. And I’m worried about it, Weldon. You’ve got an—” she had to force the words out—“an execution date that’s less than four months away. If the federal court turns you down before then, and no new appeal has been filed in the state court—”

  “No chance,” he said confidently. “In the first place, the federal court won’t act that fast; they’ve got too many appeals to decide, so they’ll have to grant me a stay before they even get to my case. I figure that’ll come about a week before my date. Secondly, Niebold and White have got to come up with something by then; hell, I could write an appeal myself in that length of time.”

  Maybe you should, Genevieve felt like saying. But she curbed her tongue because she had faith in Weldon’s judgment and she did not want to influence him unduly by voicing a prejudicial opinion of her own. “Perhaps I’m worrying over nothing,” she said in quiet retreat.

  “I think so,” Whitman said reassuringly. He smiled affectionately at her. “But I’d be a liar if I said it didn’t make me feel good to know that you worry about me.”

  “I know,” she told him softly. “I like to worry about you. It’s awful in a way, but I don’t really know what I’d do without it.”

  “You’re very important to me, honey,” he said in a gradually lowering voice.

  “And you to me, darling,” she whispered.

  They leaned toward each other as much as the partition between them would permit, and began their sex talk.

  The story Robert Cloud wrote for Ar
gus magazine was called “The Hero of Death Row.” Weldon Whitman was depicted once again as the quiet, unassuming, wrongfully convicted condemned man who, besides filing an appeal to reverse his own conviction, had also taken some of his valuable time to improve the rights of his fellow convicts on Death Row by asking the court to allow the use of typewriters in the Condemned block, and to let prisoners have broader correspondence privileges. Whitman had lost his plea for life, but had been granted the other relief he sought—not only for himself, but for all the incarcerated men who wanted to send and receive more letters while appealing their sentences, or who wanted typewriters in their Condemned Row cells.

  The article blatantly fictionalized Weldon Whitman—a man respected and admired by the men with whom he shared Death Row, a father confessor who listened to their troubles and consoled them, a wise scholar who counseled them in their personal problems, a self-taught lawyer who pointed out to them the weaknesses in the state’s case against them and suggested avenues of appeal—in short, an almost infallible, near-holy being who occupied a sort of death cell throne on the row of the condemned. The article was received with mixed response among Weldon Whitman’s block partners.

  “Hey, Whit!” yelled Stiles. “It say in this here story that you our hero and we can always’pend on you to he’p us out from our problems. Well, I gots this here problem, babe, an’ I wanna know if you can he’p me out from it.”