The 37th Amendment: A Novel (12 page)

“Yes, sir,” the voice said respectfully. “How may I help you?”

“I must speak to Justice Weiss immediately,” Howe said. “Can you ring through to his office? Someone must still be there, it’s only seven o’clock.”

“One moment, sir.”

Howe listened to silence for forty-five seconds. “Mr. Howe, this is Daniel Fox,” said a voice. “I’m one of Justice Weiss’ clerks. Can I help you?”

“I have some material that Justice Weiss insisted he must see tonight,” Howe said. “Is he still there or may I reach him at home?”

Daniel Fox paused. “Justice Weiss is in the hospital,” he said. “He was rushed there an hour ago with severe abdominal pain.”

“Oh, no,” said Howe. “Do you think they’ll let me see him?”

At eight o’clock the next morning, Dobson Howe was seated in the anteroom outside the chambers of Associate Justice Anne Crawford, the 55-year-old former chief justice of New York’s high court. He did not have an appointment. Justice Crawford had been assigned by Chief Justice Seaton to take responsibility for Justice Weiss’ circuit while he was incapacitated, and Daniel Fox had promised to arrange for Howe to meet with her before Robert Rand’s execution could be carried out. He had four hours.

At ten a.m., Howe was shown into Justice Crawford’s chambers. She was a tall woman, elegantly dressed. She greeted him with a warm smile.

“Mr. Howe, so nice to meet you,” she said.

“Justice Crawford,” he said, shaking her hand politely. “Thank you for seeing me.”

“No thanks are necessary,” she said. “I understand you’re here on an emergency matter.”

“Yes, ma’am. In exactly two hours, the State of California is going to execute an innocent man. I’m here to ask you for a stay.”

“I see,” Justice Crawford said. “Well, sit down and let’s discuss it.” She gestured to a chair opposite her desk, then walked around the desk and sat in a high-backed brown leather chair that seemed far too wide for her slender frame. “Since time is so short,” she said, “why don’t you start by telling me a bit about the case?”

“It’s the Robert Rand case,” Howe said.

Justice Crawford’s eyes widened. “Oh,” she said. “I wasn’t aware that there was a federal question in that case.”

“Yes, ma’am, we are preparing to file an appeal with this Court challenging Mr. Rand’s conviction on constitutional grounds.”

Justice Crawford frowned. “It’s just a local murder case, isn’t it?” she asked. “Did the crime take place on federal land? Was the victim a federal employee? I don’t see a likelihood of racial or gender discrimination. Where’s the federal issue here?”

Howe was silent.

Justice Crawford tried again. “Did California treat this defendant in a manner inconsistent with state law? Is there an equal protection issue?”

Howe said nothing.

“Mr. Howe, I have great respect for you,” Justice Crawford said. “I’d like to help you. But the Robert Rand case is exactly the kind of case in which the U.S. Supreme Court is not empowered to intervene.”

“Justice Crawford,” Howe said slowly. “We believe the State of California has violated fundamental rights guaranteed by the United States Constitution. We believe Congress acted unconstitutionally when it limited the rights of defendants in cases of this type to take an appeal to the U.S. Supreme Court. We believe that act of Congress should be struck down and we intend to use an appeal in this case to make that argument before the Court.”

Justice Crawford was silent.

“Unless you act, an innocent man will be killed by the State of California.”

“How do you know that?”

Howe opened his briefcase. He removed a thick stack of papers held together with a rubber band. Casey had tied up the hotel’s fax system for an hour and a half. “The details will have to wait,” Howe said. “But the essence is this: Robert Rand’s image was everywhere on television in the days immediately before his arrest. While he matched the description of the suspect in a general way, he actually was recognized from his TV performance. That’s how he was identified prior to his arrest, and that’s why he was picked out of a lineup.”

Justice Crawford looked down at her hands, folded in front of her on the desk.

“We plan to challenge the limits on habeas corpus so no state defendant in a capital case is left without recourse to this Court,” Howe said. “The question before you, respectfully, is whether you will take this opportunity to save an innocent man’s life with a stay of execution pending his appeal.”

“You know,” Justice Crawford said, “this isn’t 1956. This is 2056. No one in this country has the right to due process of law. Under the 37th Amendment, all you have is the right to be tried under the law of the land. And the law of the land does not give the United States government or this Court a veto over the workings of California’s criminal justice system. Congress limited our appellate jurisdiction in state criminal cases, as it is empowered to do by the Constitution’s ‘exceptions’ clause. You can look it up yourself, it’s in Article III, Section 2. Maybe you can find a loophole. We couldn’t.”

Howe felt as if a rock had landed in his stomach.

Justice Crawford looked up at him with sad eyes. “The appeal you contemplate is meritless, possibly frivolous,” she said. “I have no power to grant a stay of execution pending such an appeal.”

“Justice Crawford,” Howe pleaded, “This is 2056, not 1856. This Court cannot stand by while a state violates the fundamental rights of a United States citizen.”

“This Court has been told by the sovereign people of the United States that it is not empowered to overstep its constitutional authority. Your fight is not with me. It is with the people of the State of California. If you wish to call the governor, you may use my phone.”

Justice Crawford stood up and walked out of her chambers, leaving Howe alone at the desk. He glanced at a small clock mounted in the side of a granite gavel. It was 10:25. Grabbing for the phone, he keyed in the number of his office in Los Angeles. “Casey,” he said when she answered, “Don’t leave your desk. I’m going to try to get the governor on the phone and I’ll need you to be ready to send him any documents he’ll agree to review.” With that he hung up on her and called the governor’s office.

A cultivated female voice answered the phone. “Governor Hughes’ office,” she said.

“This is Dobson Howe. I must speak to him about Robert Rand. It is an emergency.”

“One moment, please, I’ll patch you through to him.”

Howe waited on hold for several minutes. Then he heard a click. “Hello, Dobson, I’ve been expecting your call.” It was the governor.

“Hello, Mike. Thank you. I know it’s early.”

“No problem, no problem. I gather you are calling about Robert Rand.”

“Yes. There is new evidence that you....”

Hughes interrupted him. “I just got off the phone with your partner, Jackson. I had to give him bad news.”

“Mike, I want you see some new evidence that has just come into my possession.” Howe looked at the clock. It was 10:35.

“New evidence?” The governor sounded unconvinced.

“This is a case of mistaken identity, Mike. This is an actor who was picked out of a lineup because he was a familiar face from television, not because he was the man in that parking lot. I can prove it. Let me send you the documentation.”

There was silence on the other end of the phone.

“I can send it to you right now, Mike. All I’m asking for is a 30-day stay so we can prove Robert Rand’s innocence.”

Howe heard a sigh. “Send everything over here and I’ll look at it,” the governor said. “But I’m not promising anything. That’s a pretty bizarre story you’ve drawn up. Under your theory, actors could get away with murder.”

Howe wasted no time getting Casey on the phone and telling her to send all the Ted Braden material to the governor. Then he keyed in the number for Justice Margulies’ wireless. “Yeah?” Margulies answered.

“I hope I didn’t wake you,” Howe said.

“Not at all. How are you, Dobson?”

“I’m well, Evan. You know why I’m calling, don’t you?”

“Yes. I thought I’d hear from you this morning. You’re not a man who gives up easily.”

“You must order a stay of execution, Evan. There’s new evidence that has to be considered. This is a plain case of mistaken identity.”

“What new evidence?”

Howe told him about the promos, the saturation coverage, and the arrest after the ads had been on the air for five days. “Let me send you the material,” he said.

“I don’t have to see it,” Margulies answered. “Have you spoken to the governor? He’s the one who should make this decision.”

Howe thought about the recall elections twenty years ago after three state Supreme Court justices ruled in favor of defendants one too many times for the voters’ taste. And Margulies was considered the courageous one on the bench. “I spoke to the governor,” Howe said. “He’s looking at the material now.”

“Well, good,” Margulies said. “If he turns you down for any reason, you call me back.”

“I’ll do that,” Howe said. “Thanks, Evan.” As he hung up the phone on Justice Crawford’s desk, his wireless rang. “Yes,” he answered.

“Dobson, it’s Jackson. Are you getting anywhere with Justice Weiss?”

Howe filled him in on the disappointing details. Jackson told Howe of his failed efforts to secure a temporary restraining order from either a federal district judge or a circuit judge of the Court of Appeals. “Well,” Howe said, “I’ve sent the governor all the information from Ted Braden. He’s reviewing it now.”

“Is he?” said Jackson. “That’s odd, because he’s on television right now talking about public safety and swift justice.”

“
What?
”

“I would say, from the looks of it, his answer is no.”

Still holding the wireless to his ear, Howe grabbed the phone from Justice Crawford’s desk and keyed in Margulies’ number again. He heard a ringing sound, then a click. “I’m unavailable,” said a recording. “You may leave a message or reach me at my office.”

“Damn it!” Howe said. He jabbed the redial button on the phone and again heard the ringing, then the click. “I’m unavailable,” said the recording. “You may leave a message or reach me at my office.”

C
HAPTER
6

Friday, May 26, 2056

T
he weather on Friday morning was Hollywood-perfect: dark and gloomy under a shapeless gray cloud cover, with just a hint of depressing drizzle. Right out of Alfred Hitchcock.

Funerals always made Ted think of Alfred Hitchcock.

Ted left his car at the far end of the parking lot and walked across the long expanse of pavement to Glendale Memorial Park’s non-denominational chapel, a low-rise building with wide tinted windows along one side. He opened the glass double doors and found himself inside an empty lobby. A black and white letterboard on a small table showed the name “Rand” with an arrow pointing left. Following it, Ted saw heavy wooden doors, propped open with door stops.

The chapel could have seated three hundred people. Emily Rand sat in the front row on the right, her arms around two small children sitting on either side of her. A white-haired woman sat next to them. John Morley Jackson sat on the aisle two pews behind them, next to Dobson Howe. A few women were seated together toward the back. Ted nodded to the lawyers, taking a seat in front of them.

Ted had not been to many funerals but there seemed to be nothing unusual about this one. The pastor made no mention of the circumstances of Robert Rand’s death. He spoke tastefully of Rob’s love for his mother, Jennifer, and for his wife, Emily. He spoke of Rob’s devotion to his two children, eight-year-old Candace and five-year-old Bobby. Ted saw the shoulders of the white-haired woman in front of him heave with silent sobs. Emily hugged her children tighter to her. Bobby wriggled.

The minister asked if anyone wanted to say a few words about Rob. There was a quiet shuffling of feet in the room, and no one moved. The minister shifted his weight awkwardly.

Ted felt a rising anger that made his temples pound. Slowly, deliberately, he rose to his feet and walked to the front of the chapel, past the highly polished oak casket and to the podium. The pastor smiled gently at him and stepped aside. Ted turned to face the room. This is not the time or the place, he thought, and you’re not the guy. But a pain that had lodged in his chest from the moment he heard the verdict now felt as if it were tearing through his skin. He pressed his palms against the top of the podium.

“A terrible injustice has been done,” he said. His voice shook a little with what sounded like nervousness. It was rage. He looked at Emily Rand. Her eyes were saucers.

“Robert Rand was an innocent man,” he said slowly. “Look around this chapel. Where is everybody? Where are his friends, all the people who knew him, who worked with him? Nobody came. They think he’s a murderer.” Ted looked at the two children in the front row. Behind them, Dobson Howe’s piercing gaze was fixed on Ted’s face.

“These two children should grow up in a world where people know the truth about their father,” Ted said solemnly. “Robert Rand was an innocent man.” With effort, he removed his hands from the podium and walked up the aisle.