Final Appeal (3 page)

“Yo,” Artie says.

“Right, bro. Yo.” Eletha rolls her eyes as she walks into the room, trailing expensive perfume. Her glossy hair is pulled back into a neat bun at the nape of a slim neck. In her trim camel suit she looks more like a judge than a secretary, and the day black women get to be federal appellate judges, she’ll be mistaken for one. “Who you invitin’ next, Charlie Manson?”

“That’s not funny, El.”

Eletha stops in the center of the office and puts a hand on her hip; a quintet of clawlike polka-dotted fingernails stand out on her otherwise classy look. “It’s not funny, bro?”

“No.”

“It’s not funny when you invite a
crazy man
to court? It’s not funny that some
nut boy
endangers Armen’s life? Endangers the lives of us
all
?”

Artie fiddles glumly with his Magic Eight Ball, one of the many toys on his desk. “He’d never hurt any of us, he idolizes Armen. And he’s not a nut boy.”

“He ticks, Artie,” I remind him.

Eletha looks crazed, but she crazes easily. “What are you tellin’ me, he’s not a nut? The man thinks he’s a friggin’ Timex! Why they let him in the courthouse I’ll never know.”

“They have to,” Sarah says. “He has a right to access. It’s in the Constitution.”

“The hell it is,” Ben says, without looking away from his monitor.

“He’s not a nut.” Artie pouts.

Eletha puts a hand to her chest and begins Lamaze breathing to calm herself. I first saw this routine three months ago when she had to interview me for my job, because Armen had gotten stuck in Washington. After she calmed down, we spent an hour swapping ex-husband stories. I touch her arm. “El, keep breathing. Don’t push, it’s too soon.”

She looks down at me, her face suddenly grave. “That’s not the worst of it. Did you hear?”

“Hear what?”

“They filed the appeal in the death penalty case this morning.
Hightower
. The death warrant expires in a week.” Her words hang in the air for a moment.

“Oh, no.” I sink deeper into the leather chair next to Artie’s desk. I better not get this case. I’m a working mother now; I have enough guilt for an entire hemisphere.

“A week?” Ben says, shaking his neat head. “Of course Hightower waited until the last minute. Wait till the bitter end to file and hope the warrant expires. It’s a game with them.”

Sarah looks over sharply. “It’s only his first appeal.”

“Fine. Let’s make it his last.”

“Ben, he even tried to kill himself. He thought he deserved to die.”

“He did.”

Eletha’s soft brown eyes linger on Ben’s face, but her thoughts are clearly elsewhere. “This case is gonna be a real bitch. The law clerk’s gonna be up all night, Armen’s gonna be up all night, and I’ll be up all night. Last time, I didn’t tell Malcolm why.” Malcolm is Eletha’s son, whose picture she keeps on her desk; he’s an intelligent-looking boy with lightish skin and glasses. “Some things kids don’t have to know.”

I wonder how I’d tell Maddie. What would I say? Honey, Mommy works for a man who decides whether another man should live or die. No, Mommy’s boss is not God, he just looks like him.

“Has Armen served on many death panels?” Sarah asks.

Eletha rubs her forehead. “Too many.”

“Three,” Ben says. “All dissents. The proverbial voice in the wilderness.”

Eletha glances at him. “They were from Delaware, I think. None from Jersey. And we haven’t executed in Pennsylvania since I don’t know when.”

“About thirty years.” Ben pops the
SAVE
button with an index finger. “Elmo Smith, for the rape-murder of a Catholic high school girl. But I can’t recall the method.” He pauses just a nanosecond, his mind working as rapidly as the microprocessor. “Pennsylvania executes by lethal injection now, but then—”

“Christ, what difference does it make?” Sarah says, making tea on the spare desk. “Move to Texas, you can watch it on pay-per-view.”

Ben snaps his fingers. “Electrocution, that’s right!”

“Death penalty for twenty, Alex,” Artie says, and Eletha starts to breathe in and out, in and out.

“The death penalty is revenge masquerading as justice,” Sarah says, unwilling to let the grisly subject go. I like Sarah but am coming to understand that not letting anything go is an avocation of hers. It served her well last November; she worked on Armen’s wife’s campaign for the Senate, in which the feminist lawyer came from behind to win by a turned-up nose.

“When we talk about justice,” Ben says, “we shirk thinking in legal terms.”

“I’m impressed, Ben. Did you make that up all by yourself?”

“No. Oliver Wendell Holmes said it.”

Sarah looks nonplussed.

“Played for the Knicks,” Artie says. He launches the Magic Eight Ball on an imaginary trajectory through that great basketball hoop in the sky, that one all men can find when they don’t have a real ball. The air guitar principle.

“It’s irrelevant what happens at this level anyway,” Ben says. “It’s going up to the Court.”

“And what’ll that do to your chances, Safer?” Artie says.

Ben hits a key but says nothing.

“Chances for what?” I say.

“Didn’t you know, Grace? Ben is waiting for a phone call from Justice Scalia. He’s this close to a Supreme Court clerkship.” Artie squints at his forefinger and thumb, held a half-inch apart. “Maybe even
this
close, am I right, Ben?
This
close?” He makes his fingers touch.

“Ask the Eight Ball,” Sarah says.

“The Eight Ball! Excellent!” Artie shakes the ball and turns it upside down to read it. “Oh, my God, Ben,” he says in mock horror. “‘
Better not tell you now
.’ Very mysterious.”

I look at Ben, reading his monitor screen. “Ben, did you really get an interview with Scalia?”

“Yes,” Ben replies, without looking away from the monitor.

“But Grace, Ben has a big problem,” Artie says ominously. “If Armen decides
Hightower
and the guy don’t fry, we got trouble. Big trouble, right, Ben?”

Ben types away. “Of course not, Weiss. I still have the credentials.”

“You mean like clerking for Armen the Armenian? Husband of Senator Susan, another flamer?” Artie winks slyly at Sarah, and she smiles back. I wonder if they’re sleeping together, and how Sarah squares it with her lust for Armen. Not to mention her alleged allegiance to Armen’s wife.

“The chief has sent clerks to the Court,” Ben says. “He’s very well regarded by the Justices.”

“By the
conservative
Justices?”

“Depends on what you mean by conservative.”

“Anybody not on life support.”

Ben’s mouth twitches, and I can tell Artie’s hit a nerve. I hold up my hand like a traffic cop. “That’s enough outta you, Weiss. Don’t make me come over there.”

“Who else is on the panel in
Hightower
?” Sarah says.

Eletha looks at a piece of paper in her hands. She doesn’t notice Ben reading the paper upside down, but I do; Ben spends more time reading upside down than right side up. “Here it is. Gregorian, Robbins, and Galanter.”

“Awesome!” Artie says. “That means Hightower walks. Armen writes the opinion, Robbins joins it, and Galanter pounds sand. Two to one.”

Sarah looks less certain. “Galanter’s a Federalist, but Robbins can go either way on this one.”

“What’s a Federalist?” I ask.

“Fascists. Nazis.”

“Republicans with boners,” Artie adds.

Ben clears his throat. “It’s a conservative organization, Grace. Of which I was an officer in law school, as a matter of fact.”

Suddenly, the door to Armen’s office opens and men talk in low, governmental tones as Armen walks them to the main door of chambers. Artie strains to listen and Ben inhales what’s left of his coffee. Eletha turns around just in time to catch Bernice.

“
Roarf! Roarf!
” Bernice, a huge Bernese mountain dog, bounds through the door. Yes, Armen brings his shaggy black doggie to work, all hundred pounds of her. He’s the chief judge, so who’s gonna tell him he can’t? Me? You?
“Roarf!”

“No! Don’t jump up!” Eletha barks back. The sharp noise stops Bernice in her tracks. Her bushy black tail, white at the tip, switches back and forth; she sneezes with the vigor of a Clydesdale.

“Sit, Bernice. Sit!” Armen says, coming up behind the dog.

Bernice wiggles her wavy hindquarters in response. Her eyes roll around in a white mask that ends in rust-colored markings on her muzzle. Bushy rust eyebrows give her a permanently confused look; appearances are not always deceiving.

“She never sits, Armen,” Eletha says. “I don’t know why you even bother.”

“She used to, she just forgets,” Armen says. “Right, girl?” He scratches the plume of raggy hair behind Bernice’s ears and looks at Artie. “So, Weiss, you shitting bricks?”

Artie sets the Eight Ball down. “Enough to build a house, coach. I’m really sorry.”

“Can’t you grovel better than that? I’m disappointed.”

“
Really
sorry, coach. I am not worthy.” Artie bends over and touches his forehead to the briefs on his desk. “It’ll never happen again,” he says, his voice muffled.

Armen smiles. “Good enough. Shake and Bake can come to the games, but he has to stay away from the courthouse. If he doesn’t, the marshals will shoot him on sight. Plus I got you out of jail free, so you owe me a beer.”

Artie looks up, relieved. “After the game next week. At Keeton’s.”

“Fine.” Armen’s gaze falls on the papers in Eletha’s hands and his smile fades. “Is that
Hightower
?”

“Yes.”

He takes the papers and begins to read the first page. His brow wrinkles deeply; I notice that the dark wells under his eyes look even darker today. He’s given to occasional black moods; something will set him off and he’ll brood for a day. It makes you want to comfort him. In bed.

“Chief,” Ben says, “the defendant killed two sisters.”

Armen seems not to hear him. His broad shoulders slump slightly as he reads.

“One was a little girl and one was a teenager, very popular in the town.”

Armen looks up from the memo and his eyes find me. “It’s yours, lady,” he says.

I hear myself suck wind. “Mine?”

“You’re Grace Rossi, right? It’s got your name all over it.”

“Me, on a death penalty case? But I’m part-time.”

“I’ll give you time off later, and don’t whine.”

“But I don’t want to get involved,” I whine.

He half smiles. “Get involved. Somebody’s life is at stake.”

“But why me?”

“I need a lawyer on this one.”

Sarah freezes as she looks at Armen. I can almost hear the squeak of a hinge as her perfect mouth drops open.

3

E
mpty coffee cups dot the surface of Armen’s conference table, along with sheaves of curly faxes, photocopied cases, and trial transcripts from the
Hightower
record. We worked straight through dinner and into the night, reading cases and talking through the opinion. Then Armen began to tap out an outline on his laptop and I picked up the habeas petition to check our facts.

It says that Thomas Hightower was seventeen when he cut school to go drinking with a fast crowd, which got him drunk and dared him to kiss the prettiest girl in school. Hightower went to her farm, where he found Sherri Gilpin in the shed. He asked her out, and she laughed at him.

“Date a nigger?” she said. Allegedly.

In a drunken rage, Hightower slapped her and she fell off balance, cracking her skull against a tractor. He tried to give her CPR, at which point her little sister Sally came in and began to cry. Hightower says he panicked. He couldn’t leave witnesses; it would have killed his mother. So he throttled the child, then, full of shame, he got back into his car and drove himself into a tree. Enter the Commonwealth of Pennsylvania, which saved his life, reserving for itself the honor of putting him on trial. For death.

Hightower couldn’t afford a lawyer, not that one in the small coal-mining town would represent him anyway. The county judge appointed a kid barely out of night law school to the case, and the jury convicted Hightower of capital murder. During the sentencing hearing, where the jury decides life or death, Hightower’s lawyer argued from the wrong death penalty statute, one that had been ruled unconstitutional three years earlier by the Pennsylvania Supreme Court. Somehow he had missed that.

The obsolete death statute, the only one presented to this predominantly white jury, said nothing about the fact that a jury could consider Hightower’s youth, his diminished capacity because of alcohol, his lack of a prior criminal record, and the remorse that he demonstrated by his suicide attempt as “mitigating circumstances” in deciding whether to impose the death penalty. The jury took only fifteen minutes to reach its decision. Death.

I set the papers down and look out the huge windows that make up the fourth wall of the office. It’s the dead of night. Orangey streetlamps stretch toward the Delaware River in ribbons. White lights dot the suspension cables on the Ben Franklin Bridge. Traffic signals blink on and off: red, yellow, green. The lights remind me of jewels, twinkling in the black night. I watch them shimmer outside the window and turn the legal issues over in my mind.

The question is whether Hightower’s lawyer was so ineffective that the trial was unfair. Strictly as a legal matter, Hightower probably deserves a new trial; what he deserves as a matter of justice is another matter. This is why I practiced commercial litigation. It has nothing to do with life or death; the questions are black and white, and the right answer is always green.

“Well,” Armen says to himself. “Well, well, well.” He stops typing and reads the last page of his draft. The office is quiet now that Bernice has stopped snoring. I feel like we’re the only people awake, high in the night sky over the twinkly city.

“Well what?”

“I think we’re going to save this kid’s life. What do you think?”

The question takes me aback. “I don’t know. I don’t think of it that way.”