Women. Sui generis. On occasion incomprehensible. Yet indispensable. He could hardly complain: by ancient rumor, Laura Godwin had won his appointment by cheating in a poker game with the President’s judiciary advisors.
There would be no sanity in the Tyson decision. And the public outcry would far dwarf the reaction to the Warren Report of the sixties. For the honor of the Court, he could not let it happen. And just how was he going to prevent it?
He resumed pacing and thinking. Had Tyson really pulled the trigger? Helen Nord seemed so certain he was innocent. Women and their intuition. But suppose she’s right? (And I’ll have to grant the validity of her psi experience with John Nord.) Can this Court intervene, sua sponte, to prove it? Certainly not. But can I? I have hunches, too. I’ve always had hunches. Made my money that way. Does this make me a psi? Maybe. I don’t know. God! What a crew. Nord. Moore and his dowsing. Blandford and that plane to Miami... And what about Edmonds and those impossible photos? Is it actually conceivable that a human intellect can reach into the past and put what he sees on a camera film? Serios did it, and that Japanese fellow. It all begins to make sense. Edmonds is probably the worst of them. And if there will be no image on the film until Decision Day, how does it get there? What are the rules? Can one psi have a hunch about another psi? There’s only one way to find out. And to find out, I will have to do a thing which, if done by one of my brother justices, would merit my strongest censure.
He stopped his slow striding and glared at the phone. He knew now that he would have no peace until he acted. In sudden resolution he seized the phone and dialed a number.
”Evans? Pendleton. I have a very delicate matter I want you to handle, very confidential. You’ve heard of Philip Dopher? Yes, that one-- elevator operator in that building. I want you to find him and give him a thousand dollars. Tell him it’s expenses to hear the Tyson opinion firsthand. He’ll have to be here every Monday until we hand it down. It’ll take several weeks. My guess is about April First. Tell him he gets another thousand on Decision Day. But he’s got to be in court then to get it. Make up something. Tell him it’s sponsored by the Sons of Justice. Tell him anything. Just get him here. No, Evans, I can’t talk about it. It’s just a hunch. Oh, one more thing, bring him in the first day yourself, and show him where he has to sit-- well up front, where Ben Edmonds can see him easily.”
* * * *
Tweedledee: If it were so, it would be; but as it isn’t, it ain’t. That’s logic.
-- Lewis Carroll, Through the Looking Glass
* * * *
It was Friday Conference again.
”We have been discussing Tyson now for over two hours. Agreement seems impossible.” The voice of the Chief Justice was measured, controlled. But Edmonds thought he detected a note of grim amusement. His other colleagues, in contrast, seemed morose, almost sullen, as though only now they realized certain impossible aspects of their task. Pendleton continued as though in brooding monologue. “We must make an end and vote, even though it but defines our differences. I will begin by summarizing my own position. If clairvoyance does not exist, then clearly the warrant was invalid, and we must reverse New York. But I cannot reach that conclusion. There are too many documented cases of clairvoyance. Yet it is admittedly erratic, cannot be called up at will, and generally requires verification by the normal senses. Its most fervid proponents do not claim that it has the certainty of ordinary seeing and hearing. Any magistrate called upon to issue a psi warrant would certainly be entitled, perhaps even required, to look into the antecedents and previous record of the psi-informant. Some psi’s of international reputation and long histories of demonstrated police success might be sufficiently reliable to support a warrant if there were no other fault in the arrangement. But unfortunately for this argument, I think there is a fault, and a grave one. Granted this is not wiretapping. Neither the electric current nor electromagnetic radiation is demonstrably involved in psi transmission. A Faraday cage shuts out electromagnetic radiation but cannot shut out psi. Absent interception and publication of an electrically generated message, Section six-oh-five of the Federal Communications Act has not been violated. So our long line of wiretapping cases-- as such-- is not directly controlling. And yet an invasion of privacy has occurred in a depth that far surpasses wiretapping. The intrusiveness, and the breach of privacy, goes far beyond the sounds and sights available to bugging and spy TV. Our very thoughts are laid bare. It’s worse than truth serum: we needn’t even be present to have it done to us. I think Tyson’s constitutional rights were invaded. I think we should reverse. And now I’m done. Mr. Godwin?”
”I agree up to a point. The problem as I see it turns on whether this particular bit of clairvoyance involved reading Tyson’s mind, that is, assuming there’s such a thing as clairvoyance in the first place-- which I very much doubt. I don’t see how Tyson could have known exactly where the movers had put that particular box in the warehouse. Or even if he did know, we haven’t been shown that it was Tyson’s mind that was read. For all we know, the clairvoyant might have read the warehouseman’s mind. Or nobody’s mind. Tyson’s privacy wasn’t invaded unless his mind was read, and I just don’t think it was read, whether or not psi is for real. But my main point is, we shouldn’t interfere. These are very complex procedural matters better left to the state courts. Look at it this way. If a person is indicted for murder, the determination of his guilt or innocence should not be considered as a sporting event, to be governed by the Marquis of Queensberry Rules, but by a practical and actual determination of the guilt of the indictee, with the state, in order to prevail, being required to establish guilt beyond any reasonable doubt. In my view the State of New York has fully discharged its burden. Psi isn’t even relevant. Roly?”
”Psi certainly is relevant, Mr. Godwin,” said Burke calmly. “It’s the sole question certified.”
”I didn’t vote to grant certiorari,” said Godwin bluntly. “But now that we have the case, I can decide on any basis I like.”
”Most illogical,” snorted Burke. “But no matter.” He turned to Helen Nord. “You say you believe in psi?”
”Yes.”
”And also in logic?”
”Yes, at least as long as it makes sense.”
The rotund justice looked over at her sharply. She returned his look with expectant interest. He knotted his jaw muscles and continued. “Logic by definition is that which makes sense: nothing more, nothing less. No miracles. No supernatural hocus-pocus. Everything that takes place, every event, every effect, is logically caused by something, something which preceded it in time, and which provided the physico-chemical causative chain that resulted in the effect. These premises are the foundations of our intellectual existence. Psi violates them. Therefore psi is false; it does not exist.”
”I’m not very bright at logic,” said Godwin, “but why can’t you turn it around the other way? Psi exists: therefore the foundations of our intellectual existence are false.”
”Just what I might have expected from you, Brother Godwin. You are using the conclusion to destroy the premise. The mental effort required for logical thinking is quite beyond a party of your years, I’m afraid.”
Godwin sat up straight. His mustache began to twitch. Helen Nord broke in hurriedly. “All that sounds very complicated.”
”Perhaps so, perhaps so,” conceded Burke, “at least to those unaccustomed to disciplined cogitative processes.” He touched his fingertips together and considered the matter. “Perhaps we can benefit from an example, taken from a sub-species of logic known as operationalism. So. If a loaded gun is pointed at my heart, the trigger is pulled, and the bullet proceeds toward me in a straight line, I would certainly be killed, would I not?”
”Of course.”
”My death is the effect of the bullet in motion?”
”Agreed.”
”And the bullet in motion is the effect of the pressure of the hot gases within the barrel of the gun?”
”Y
es.”
”And the gases are the effect of the ignition of the gunpowder by the primer, in turn the effect of the firing pin striking the primer cap?”
”Certainly.”
”And the movement of the firing pin is caused by the trigger pull, in turn the effect of the squeeze of the gunman’s finger?”
”True.”
”So we have a complete chain of cause and effect?”
”Yes.”
”And it is logical to assume that every effect must have some identifiable cause? Nothing happens without a specific cause?”
”It may be logical. But there may be a reasonable doubt as to whether the rules of logic apply to psi. Psi seems to operate without any cause-effect linkage. For example, if psi takes over, your bullet might vanish in midair.”
Burke sighed. “I give up. I absolutely give up.”
Pendleton hid a grin.
Godwin leaned forward querulously. “Are we to understand, Roly, that in this case you are trying to get by on logic?”
The insinuation was insidious; it implied that Burke’s analysis was superficial; and indeed, that the justice had not devoted the necessary time and study to grasp all the fine points of the case.
Burke’s face turned slowly pink. He glared back at Godwin. “I would like you to understand exactly that. Law has no other basis.”
But it was no good. The others were looking at him almost sympathetically. Who are they to judge me, he thought bitterly. Logic is... logic!
Pendleton cleared his throat. “We’ll have to go on. Mr. Moore?”
”I agree with our brother Godwin. You call it clairvoyance. If that’s what it is, nobody’s mind was read. By definition, clairvoyance excludes telepathic cognition of the mental activities of another person. And if nobody’s mind was read, there was no invasion of privacy protected by the Fourth. I would affirm.”
”Mr. Blandford?”
”In my view the evidence shows clairvoyance exists, but it also shows it is erratic, often not available on call, generally not reproducible, so I feel that clairvoyance is too unscientific for use as a ‘probable cause.’ Reverse.”
”Mr. Lovsky?”
”I agree with Burke, supra, that clairvoyance is an impossibility. But I don’t agree that it must follow that the warrant was improperly issued. The warrant was duly sworn. It pinpointed what was to be searched, and the rifle was in fact found, exactly as described on the information. Pendleton, contra, I would affirm. Cf. Godwin, id.”
”Mr. Randolph?”
*CONCVR*
”Mr. Edmonds?”
”Personally, I believe in psi. But I don’t think it should be used as a police technique without the consent of the suspect, and any evidence thus discovered should be inadmissible. Reverse.”
”Madam Nord?”
”I, too, believe in psi. And I think the warrant was valid and the rifle admissible. But I would reverse. Tyson didn’t do it.”
Pendleton took a deep breath. “Why do you think he didn’t do it?”
She looked back defiantly. “Because, that’s why.”
Pendleton exhaled slowly, then smiled at her reassuringly. “Quite all right. So be it. Let me sum up. We have five to reverse, four to affirm. And in neither the majority nor the dissent do we have the slightest unanimity of rationale.” He studied his notes. “Madam Nord, you’re up next on the opinion list. Will you please draft the majority opinion? With the variation of views, and especially considering your own, your task will be cut out for you.”
”I’ll do my best,” said Helen Nord. “In fact, in the interests of reconciliation of divergent views, I’ll even go along with the rationale of the majority-- that either psi doesn’t exist, or if it does, the psi-based search warrant was defective.”
”Yes?” said Pendleton, surprised.
”On one condition.”
”Such as what?” demanded Burke suspiciously.
”That we open the safe on Decision Day.”
”Preposterous!” cried Burke. “Exhibit Q was never properly admitted into evidence, and even if it had been, the question of its probative value would be within the exclusive jurisdiction of the trial court. The Supreme Court of the United States never decides facts except in rare cases of original jurisdiction!”
”Then I’ll file a specially concurring opinion to reverse on the plain and simple ground I don’t think Tyson is guilty!”
Godwin chuckled. “And she’d to it, too!”
”If I might make a suggestion,” said Pendleton, with an enigmatic smile, “we could order the safe opened after handing down both the majority and dissent. It could of course have no bearing on our decision as then rendered, but both Tyson and New York could use it, if they choose, and if its contents truly merit it, as basis for rehearing. Mrs. Nord? Gentlemen? Then it’s agreed.
”Just one more point. Despite the gravity of the case, we have a duty to the defendant and to the country to act as promptly as possible. Hopefully, we can hand down the decision on April First.”
* * * *
When the penalty is death, we are tempted to strain the evidence and even the law in order to give a doubtfully condemned man another chance.
-- Justice Robert H. Jackson
* * * *
It was Monday, April 1, Decision Day, in the Marble Palace. Practically every appellate court in the country-- saving only the United States Supreme Court-- distributes printed or typewritten copies of its decisions to its litigants as the sole means of stating the outcome of the case. But from time to immemorial the Supreme Court-- the only appellate court with its very own printing shop on the premises-- had “handed down” its decisions orally. And “orally” means whatever the delivering justice chooses it to mean. It might mean reading an entire ninety-page opinion-- a favorite tactic of Justice Lovsky; or it might mean a very brief oral summary of the salient law and facts, after the manner of Justice Randolph. Or, as in the case of Justice Burke, it would start out as a summary and develop, willy-nilly, into a profound exposition of logic-in-law, through the historical framework of the Justinian Code, the Magna Carta, Coke, Comyn’s Digest, the Constitutional Convention, the probable (corroborative) views of John Marshall, and would inevitably conclude with appropriate selections from Burke’s Logic in Appellate Decisions. The law students of George Washington and Georgetown Universities might have to get the printed decision to discover who had won, but all agreed it was an enthralling experience.
After he was seated, Edmonds surreptitiously searched the first row of the pewlike red-cushioned seats and found there the face he had noted on previous Mondays, and the face he did not want to find: a bald man, burly, bearded, his eyes a study in controlled, violent cunning. Edmonds moaned inaudibly. Let this pass. But it would not pass. Everything was here, waiting. He looked over at the safe on the marshal’s cart. It was still locked, still inviolate, but within minutes all that would be changed forever.
When he had taken office ten years ago he had sworn to uphold the Constitution and the laws of the United States. A month ago he had flung down Orwell’s 1984 on the conference table. Beware! he had cried. And beware of whom? Of Benjamin Edmonds, Ph.D., J.C., Associate Justice of the United States Supreme Court, and psi extraordinary. For he thought it very likely that he was now going to violate his oath, and in so doing, the constitutional rights of another. And thereby he would strike down, besmirch, and discredit for decades the enhallowed institution he had sworn to preserve. For Helen Nord (and how did she know?) was right. Tyson had not pulled the trigger of that fateful rifle. He knew. (And for that matter, how did he know?) And so there remained a thing for him to do, a thing so simple, so devastating, that the Tyson case would be decided instantly and forever. It was not lawful; it had only justice to excuse it.
Edmonds noted that Pendleton seemed to be studying him from the corner of his eye. But then the Chief Justice turned and nodded gravely to Helen Nord, at the far left. She nodded back. She was on her own.
The woman’s voice was clear and strong. Briefly she recited the undisputed facts, read the single question certified to the Court, then came directly to the point. “It is the view of a majority of this Court that the search warrant was not issued upon probable cause, as is required by the Fourth Amendment, in that the basis of the information was not explained to the magistrate who issued the warrant. Aguilar v. United States. This finding requires the further finding that the evidence obtained by the search is inadmissible under the Fifth Amendment. And it must follow that Tyson’s conviction must be reversed, and that he is entitled to a new trial, in which this tainted evidence must be excluded.”
Orbit 4 - Anthology Page 9