The 37th Amendment - A Novel by Susan Shelley

The 37th Amendment - A Novel By Susan Shelley - Copyright 2002. All rights reserved.
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You are reading "The 37th Amendment," a novel by Susan Shelley. Copyright 2002. All rights reserved. This material may not be republished, retransmitted, printed, copied or distributed in any manner, in whole or in part, without the written consent of the author. Permission is granted for publication of short excerpts in the context of a review or commentary, provided the material is appropriately credited.

Chapter Five

"Owens v. United States?" Ted asked. "What's that all about?"

He was seated in Dobson Howe's office, twenty-three stories and thirty minutes removed from the grim scene in the courtroom. John Morley Jackson had stayed with Emily Rand. Dobson Howe had asked Ted to come back to his office for a few minutes and Ted, shaken, had followed him to the car without a word.

"Owens v. United States is a case brought by California's Attorney General against the U.S. government," Howe explained. "California is challenging a federal law which restricts the use of capital punishment."

"Is this the five-year waiting period law?" Ted asked.

Howe nodded. "Congress passed a law mandating that no death sentence could be carried out in any state until at least five years after conviction, in order to allow a reasonable period for new evidence to emerge and for mistakes to be discovered."

"And for appeals, right?"

"No."

"No?"

"No. Congress was troubled by the possibility that California's expedited procedures would result in mistakes. They didn't want mistakes. They also didn't want murderers freed on what they considered to be technicalities. The result of this was the Ramirez Act, which mandates a five-year waiting period for executions and at the same time strictly limits federal appeals of state convictions."

"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 habeus 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 abortionthey 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 his 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."

"Let me ask you Ivan, does this mean that everyone on death row in California will be executed immediately?"

"It could very well mean that, Mia. That would be consistent with California law, and the Court has said that nothing more...."

"Hullo?" It was the voice of Ted Braden.

"Ted," Howe called out the name to the speaker phone. "Dobson Howe."

"Good morning, Mr. Howe."

"Please call me Dobson. I urge everyone to call me Dobson when I'm about to impose an impossible request. That material we spoke about on Friday. I need it immediately."

"But I don't have it yet," Ted said. "Sometime late today is when I expect to receive it. And that's not definite. It could be tomorrow."

"Oh."

"Don't be so discouraged," Ted said, "It looks fairly promising." He told Howe about the TV movie and the promotional ads for it. "Now I'm just waiting to find out if Rand was in any of the promos," Ted explained. "Then it's no trouble to find out when and where they aired."

Another phone in Howe's office rang. "Good, good," Howe said hurriedly. "Call me the instant you know anything." He gave Ted his private phone number. "That will reach me wherever I am," Howe said, "And thank you." He pressed a button on the phone. "Dobson Howe," he said sharply.

"Dobson. John Morley Jackson."

"I've already left word for the governor and two of his top aides," Howe said. "Also Margulies."

"What about going to a federal judge?"

Howe sighed.

"I know there's no chance," Jackson said. "But maybe a habeus petition will buy us a few days."

"Yes," Howe said. "Who knows, a few days may be enough."

Governor Mike Hughes closed the door. "Well?" he asked.

A black-haired man in his late sixties studied a spreadsheet laid out on the coffee table. "It's about what you'd expect," he said. "Sixty-eight percent think the executions should be carried out immediately. Twenty-five percent favor commuting the sentences to life in prison."

The governor stared at the pages, the ruddiness of his face intensifying to a fine tomato red. He lifted a metal paperweight from the spreadsheets and rolled it absently in his left hand. Then suddenly he threw it against the paneled wall, leaving a white dent in the fake wood. "What am I supposed to do?" he shouted. "Order eleven executions in one day? Have every editorial page in the country call me bloodthirsty? Stand at the window and wave at the ten thousand people marching around the governor's mansion with picket signs?"

"You don't have to do that," said the black-haired man. "You could always go against the will of sixty-eight percent of the voters and lose your job in two years to that idiot mayor."

John Morley Jackson's wireless rang at 10:50 a.m., just as he was turning his '46 Mercedes into the driveway of the parking structure under Dobson Howe's building. "Yes?" he answered.

"John, it's Brenda," a voice said. "I know you like to get bad news as soon as possible."

"Brenda!" he said. A wave of static enveloped the connection as he drove under the building. "Brenda? Brenda! Damn!" Jackson made a sharp left turn into a fire lane, hit the brakes and backed up. Horns sounded. Nearly scraping the wall, Jackson drove out through the entrance and turned right onto the street. More horns. He keyed a number into the wireless. "Court clerk's office," a woman's voice answered.

"Brenda, it's John."

"What happened?"

"Ah, this phone. You'd think somebody would have invented a better one by now. What's up?" He made a right turn.

"Well, hon, I saw something cross my desk about your client and I thought you'd like early warning on it."

"You bet. Which client?"

"Robert Rand. The execution has been scheduled for 9:00 a.m. Wednesday."

"What?"

"Yeah, the governor ordered all the executions to go forward under the terms of the original sentences, now that the Ramirez Act has been overturned."

"But I haven't gotten any official notice."

"You will, that's what I'm calling to tell you. There'll be a letter delivered to your office sometime today. They only have to let you know twenty-four hours in advance, but the letter will go out today to make sure you get it before tomorrow morning."

Jackson didn't notice that he had missed the turn to go around the block. "Right," he said. "Hey, Brenda, thanks for the call. I appreciate it."

"You're welcome, hon. I thought you'd probably want to know as soon as possible."

"Yeah. Thanks again. Bye." He jabbed a button on the keypad and then punched in Dobson Howe's number.

Dobson Howe was staring out the 23rd floor window at the partly cloudy May sky as the governor's aide, Mark Galindez, explained in dry detail the low probability of a clemency request finding favor with the governor.

"Mark," Howe interrupted finally, "I am in the process of developing new evidence."

Galindez paused. "What kind of evidence?" he asked.

"Evidence of mistaken identity."

"What have you got?"

"I have to have more time."

"Dobson, what have you got?"

"Well," Dobson hesitated. "Some material will be coming to me this afternoon."

"So you haven't even seen it yet?"

A soft chime sounded on Howe's desk. "Just a minute, Mark," he said. He pressed the handset against his chest and touched a button on the speakerphone. "Yes?"

"Mr. Howe, John Morley Jackson is on line four."

"Tell him I'm on the phone with the governor's office and I'll call him back."

"Yes, sir."

Howe picked up the phone again. "I'm sorry, Mark."

"Dobson, I'd like to help you here but I have to say, the chances don't look good."

"I understand, Mark, but if you'd just get the governor to call me back, all I need is a 30-day stay. I'm not asking for a pardon, or a commutation. Just a 30-day stay, that's all. Just ask him to call me back."

"I did ask him," Galindez said gently. "He doesn't want to talk to you."

"God damn it, Mark!" Howe's voice exploded against the windows of the office. "He has to talk to me. An innocent man's life is at stake."

Galindez sighed. "I'll try again," he said. "But if I were you, I'd be chasing down a justice of the California Supreme Court right now."

"That's my next call," Howe said.

Howe's assistant, Casey, had silently opened the door and was squeezed against the doorjamb, watching him with a look of concern on her face. Howe said a polite good-bye to Mark Galindez and hung up the phone. "I just heard," he said.

"I thought you probably did," Casey nodded. "Mr. Jackson heard from someone in the clerk's office. He'll be here shortly."

"What's the status on Margulies?"

"In conference. I left an urgent message."

The telephone rang. Casey turned around to reach for it and crashed straight into John Morley Jackson. "What took you so long?" Howe asked irritably.

"Unexpected detour," Jackson said. He stepped around Casey and walked into the office. "How did it go with the governor?"

"Haven't spoken to him yet."

A chime sounded on Howe's desk. He touched a button on the phone. "Justice Margulies on line one," Casey's voice announced.

Howe pressed the button for the speakerphone. "Evan, how are you?" he boomed.

"Fine, Dobson, fine. I got an urgent message to call you. Everything all right?"

"Yes, yes," Howe said confidently. "Fine. But there is an urgent matter concerning one of my clients. I'm hoping you'll consider granting a stay while we develop some new evidence."

"Well, as you know that's not as easy as it used to be," Margulies said. "What can you tell me about the case?"

"It's the Robert Rand case," Howe said.

"Oh! The Rand case. Oh, my."

"We are developing significant new evidence of mistaken identity. Mr. Rand is innocent."

"Oh, my. The Rand case."

"I'll have this new material in my hands later today or early tomorrow," Howe said. "All I need is a 30-day stay of execution."

"Have you spoken to the governor?"

"Not yet."

"Okay." Margulies sounded relieved. "Call me after you speak to the governor."

"There isn't much time," Howe said. "The execution is set for the day after tomorrow at 9:00 a.m. We must have a stay."

"I understand," Margulies said. "Speak to the governor about it. I'm sure he'll be receptive to your arguments, but if not, call me back."

"All right, Evan." Howe frowned. "Thank you." He pressed the disconnect button on the speakerphone.

Jackson had settled in on the leather sofa and opened his briefcase on the coffee table. "I've got the habeus papers," he said. "Who's your favorite district court judge?"

"Doesn't matter," Howe said. "The answer won't be yes anywhere."

"That's true," Jackson said. "But we might get a temporary restraining order out of Judge Dunst. I think she might order a show cause hearing."

Howe shook his head. "There's simply no federal issue," he said.

"That's true, too," Jackson said. "But I'll go over there today, and file the papers in her court. Then, if she turns me down, I'll take my papers and walk them up to the nearest circuit judge."

"What if she stalls you?"

"Well, I can't wait. I'll go to the circuit judge anyway."

Howe sat down in the big leather chair behind his desk. He rocked it back and forth, saying nothing.

Jackson did not interrupt him.

Howe swiveled around to face the windows. He studied the contours of the city below, every edge of every building crisply defined in the bright May sunlight. Finally, he swiveled to face Jackson. "I think it's time the U.S. Supreme Court heard a challenge to the statutory limitations on habeus corpus," he said. He pressed a button on his phone. "Casey," he said, "I have to fly to Washington D.C. What's the latest flight I can get out on tonight?"

Ted came into work Tuesday morning to find a handwritten note on his desk. "I'm sorry about the delay on your info," the note began. "My contact at LTN was out with the flu yesterday but I'm hopeful she'll be back in the office today. Brianna."

By the time Dobson Howe had checked in to the Washington D.C. Regency, showered, dressed and finished the first of two pots of lukewarm room service coffee, it was almost noon. The phone in his room rang. "Yes?" he answered.

"Mr. Howe, it's Casey," his assistant said. "Ted Braden just called. He said there's been a delay in getting the information you wanted. He doesn't know if he'll be able to get it today."

Howe sat down on the bed, instantly regretting that he had not chosen a chair closer to the second coffee pot. "Then I'll just have to fake it," he said.

Justice Joshua Weiss was on his feet and out from behind his desk before Dobson Howe was even through the doorway. "Dobson, how are you?" he said. "I wish I'd known you were in town, we could have played golf on Sunday."

"Just got in today," Howe said. He shook Justice Weiss' outstretched hand, then found himself in a bear hug.

"Sit down, sit down," he said. "Coffee?"

"No, thanks."

"You look wonderful. Maybe we should all live in California."

Howe smiled. "Well, Josh, today I'm grateful that you're in Washington."

Justice Weiss smiled his big, charming smile. "Why is that?" he asked.

Howe leaned forward and spoke in a subdued voice. "I'm here to ask you for a stay of execution in the Robert Rand case," he said.

The smile faded from Justice Weiss's face.

"There is new evidence," Howe continued. "It is a case of mistaken identity."

Weiss was frowning now. "Have you taken it to the governor?" he asked.

Howe hesitated. "The governor is reluctant to intervene," he said.

"And your state Supreme Court?"

"Waiting for the governor to go first."

Justice Weiss stood up and took a step toward a bookcase, then turned and walked toward his desk, then stopped pacing suddenly and turned toward Howe. "Where's the federal issue?" he asked.

Howe opened his briefcase and took out a thick folder. "We are currently preparing an appeal to this Court of Mr. Rand's conviction," Howe said, "on constitutional grounds."

"What grounds?" Justice Weiss asked skeptically.

"But the appeal will be moot without a stay of execution," Howe continued, "because he's scheduled to die tomorrow morning at 9:00 Pacific Time. I'm asking you to issue a stay pending the resolution of these issues."

Justice Weiss stared at the floor. "Son of a bitch," he said quietly.

Howe said nothing.

"You think he's innocent?"

"It's a case of mistaken identity."

"I watched that trial on television like everybody else," Justice Weiss said. "What about that girl who said she drove with him to the parking lot?"

"Lying."

"Can you prove it?"

Howe was silent.

Justice Weiss returned to his armchair and sat down. "Now listen, Dobson," he said. "We know each other since law school. I'm not going to bullshit you. And you're not going to bullshit me."

Howe looked up innocently.

"Don't give me that," the justice said. "You want me to order a stay of execution pending a meritless appeal, just to stall for time while you try to prove your theory of mistaken identity."

Howe leaned back on the sofa but said nothing.

"Do you understand that you're asking an Associate Justice of the Supreme Court of the United States to halt the lawful processes of the California criminal justice system, despite a constitutional amendment and forty years of decisions, including one this week, telling all branches of the U.S. government to stay the hell out of the states' business?"

Howe nodded.

"Do you understand that if I do this, every death penalty defendant in every state court throughout the country will be pounding on the door of the U.S. Supreme Court, and one day one of them is going to get in, and then we'll be on the path back to the 20th century, with every police department in the nation once again forced to operate under the supervision of this Court?"

Howe nodded.

"Well then I'm sure you understand," Justice Weiss said, "why I'm not going to do it without seeing some proof."

Howe was struggling to connect a piece of communications equipment through the data port in the hotel room's telephone. Every time he plugged it in, it disconnected his call to his office in Los Angeles. "Casey? Hello?" he said. "Damn!" He yanked the connector out of the telephone and keyed in the number again. "Law offices," Casey answered.

"It's me, again, Casey," Howe said. "I can't get this thing to work."

"I've been trying to tell you, Mr. Howe," Casey said, "I have nothing to send you. Ted Braden said he's still waiting for the material."

"Oh, no," Howe said. "Does he have anything at all? Get him on the phone. I'll hold on."

It took Casey less than a minute to track Ted down in a West Hollywood restaurant and connect him to Howe in a conference call.

"Ted? Dobson Howe."

"Yes, sir," Ted said, unwilling to mention Howe's name in front of the client who was seated across the table from him.

"It's critical that you tell me everything you've found out to this point about Robert Rand's television appearances the week before his arrest," Howe said. "Whatever you have. I need it immediately."

"I'll have to call you back from the office a little later," Ted said, giving the client a reassuring smile. "There's nothing I can tell you right now."

It was 6:05 p.m. on the East coast when Ted finally called Dobson Howe's hotel room. "Yes," Howe answered. His voice sounded dispirited, or perhaps just exhausted.

"All right, I've got it," Ted said. "There was a 30-second promo, plus a :15 and a :10. Robert Rand was in the :30 and the :15. I won't have the actual videos until tomorrow night but I have the complete list of every time those two promos ran. Between May 7th and May 11th they were seen a total of sixteen hundred and seventy-two times in forty-five different places. Okay?"

"Better than okay," Howe said. "Send it right over to Casey and she'll figure out a way to get it to me."

"Thank you for calling the office of Justice Joshua Weiss. The office is currently closed. Please call back between the hours of 8:00 a.m. and 6:00 p.m. If this is an emergency, please dial 0 for an operator."

Howe jabbed the zero button on the hotel room phone. "Operator," said a man's voice.

"Good evening, this is Dobson Howe," the lawyer boomed into the phone.

"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 habeus 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."


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You're reading The 37th Amendment, a novel by Susan Shelley. Copyright 2002. All rights reserved. This material may not be republished, retransmitted, printed, copied or distributed in any manner, in whole or in part, without the written consent of the author. Permission is granted for publication of short excerpts in the context of a review or commentary, provided the material is appropriately credited.

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