“He’s also a firm believer in upholding precedent.”
“Even if it’s wrong?”
“You’re preaching to the choir, Sara, but I thought I’d pass it along. Knight’s not going to get five votes without him, you know that. Even with him she might fall short.”
“Well, what does he want?”
This was how it went most of the time. The famed clerk network. They hustled and debated and scrounged for votes on behalf of their justices like the most shameless political hucksters. It was beneath the justices to openly lobby for votes, for a particular phrasing in an opinion, or for a specific angle, addition or deletion, but it wasn’t below the clerks. In fact, most of them took great pride in the process. It was akin to an enormous, never-ending gossip column with national interests at stake. In the hands of twenty-five-year-olds at their first real job, no less.
“He doesn’t necessarily disagree with Knight’s position. But if she gets five votes at conference, the opinion will have to be very narrowly drawn. He’s not going to give away the farm. He was in the military in World War II. He holds it in the highest regard. He believes it deserves special consideration. You need to know that when you’re putting together the draft opinion.”
She nodded her head in appreciation. The backgrounds of the justices played more of a role in their decision making than most people would suspect. “Thanks. But first Knight has to get the opinion to write.”
“Of course she will. Ramsey is not voting to overturn Feres and Stanley, you know that. Murphy will probably vote in favor of Chance at the conference. He’s the senior associate, so he gets to assign the opinion. If she gets her five votes at conference, he’ll give Knight her shot. If she delivers the goods — meaning no broad, sweeping language — we’re all okay.”
United States v. Chance was one of the most important cases on the docket for this term. Barbara Chance had been a private in the Army. She had been bullied, harassed and frightened into repeatedly having sexual intercourse with several of her male superiors. The case had gone through the internal channels of the Army with the result that one of the men had been court-martialed and imprisoned. Barbara Chance, however, had not been content with that. After leaving the military, she had sued the Army for damages, claiming that it had allowed this hostile environment to exist for her and other female recruits.
The case had slowly worked its way through the proper legal channels, Chance losing at each stop. The matter presented enough gray areas in the law that it had eventually been plopped like a big tuna on the doorstep of this place.
The current law said that Chance had, ironically, no chance of winning. The military was virtually immune from suit by its personnel for any damages, regardless of the cause or the element of fault. But the justices could change what the law said. And Knight and Sara Evans were working hard behind the scenes to do just that. The support of Thomas Murphy was critical to that plan. Murphy might not support overturning completely the military’s immunity right, but the Chance case could at least punch a hole in the Army’s wall of invincibility.
It seemed premature to be discussing resolution of a case that had not yet been heard, but in many cases and for many justices, oral argument was anticlimactic. By the time it rolled around, most had already made up their minds. The argument phase of the process was more an opportunity for the justices to showcase their positions and concerns to their colleagues, often by use of extreme hypotheticals. They were akin to mental scare tactics, as if to say, “See what could happen, Brother Justice, if you vote that way?”
Michael stood and looked down at her. It was at his urging that Sara had signed up for another term at the Court. Raised on a small farm in North Carolina and educated at Stanford, Sara had, like all the clerks here, a wonderful professional future waiting once she left the Court. Having a clerkship at the Supreme Court on one’s résumé was a gold key to entry at just about anyplace an attorney would care to put down his briefcase. That had affected some clerks in a negative way, giving them inflated egos that their actual accomplishments did not quite back up. Michael and Sara, though, had remained the same people they had always been. Which was one reason, aside from her intelligence, good looks and refreshingly balanced personality, that Michael had asked her a very important question a week ago. A question he hoped to receive an answer to soon. Perhaps now. He had never been a particularly patient man.
Sara looked up at him expectantly.
“Have you given my question any thought?”
She had known it was coming. She had avoided it long enough. “That’s all I’ve been thinking about.”
“They say when it takes that long, it’s a bad sign.” He said this jokingly, but the humor was obviously forced.
“Michael, I like you a lot.”
“Like? Oh boy, another bad sign.” His face suddenly grew warm.
She shook her head. “I’m sorry.”
He shrugged. “Probably not half as sorry as I am. I’ve never asked anyone to marry me before.”
“You’re actually my first too. And I can’t tell you how flattered I am. You’ve got it all.”
“Except for one thing.” Michael looked down at his hands as they quivered a bit. His skin suddenly seemed too tight for his body. “I respect your decision. I’m not one of those who thinks you can learn to love someone over time. It’s either there or not.”
“You’ll find someone, Michael. And that woman will be very lucky.” Sara felt so awkward. “I hope this doesn’t mean I’m losing my best friend on the Court.”
“I wish my life had been so easy.” Sara smiled.
“No, you don’t. It makes rejection a lot harder to accept.” Michael went over to the doorway. “We’re still friends, Sara. You’re too much fun to be around. I’m too smart to let that go. And you’ll find someone too, and he’ll be very lucky.” He didn’t look at her when he added, “Have you found him yet, by the way?”
She started slightly. “Why do you ask that?”
“Call it a sixth sense. Losing is a little easier to accept if you know who you lost out to.”
“There’s no one else,” she said quickly.
Michael didn’t look convinced. “Talk to you later.”
Sara stared after him, very troubled.
* * *
“I remember my first years on the Court.” Ramsey was staring out the window, a smile working across his face.
He was seated across from Elizabeth Knight, the Court’s most junior associate. Elizabeth Knight was in her mid-forties, average height, with a slender body, and long black hair tied back in a harsh, unflattering bun. Her face possessed sharply edged features, and her skin was unlined, as though she never spent any time outdoors. Knight had quickly established a reputation as one of the most vocal questioners at oral argument and as one of the most hardworking of all the justices.
“I’m sure they’re still vivid.” Knight leaned back in her desk chair as she mentally checked off her work schedule for the rest of the day.
“It was quite a learning process.”
She stared at him. He was now looking directly at her, his large hands clasped behind his head.
“It took me five years just to figure out things, really,” Ramsey continued.
Knight managed not to smile. “Harold, you’re being much too modest. I’m sure you had it all figured out before you walked in the door.”
“Seriously, it does take time. And I had many fine examples with whom to work. Felix Abernathy, old Tom Parks. Respecting the experience of others is nothing to be ashamed of. It’s an indoctrination process we all go through. Though you certainly have progressed faster than most,” he quickly added. “Still, here, patience is a very cherished virtue indeed. You’ve been here only three years. I
’ve called this place home for over twenty. I hope you understand my point.”
Knight hid a smile. “I understand you are a little perturbed that I led the way for U.S. v. Chance to be put on the docket at the end of the last term.”
Ramsey sat up straight. “Don’t believe everything you hear around here.”
“On the contrary, I’ve found the clerk grapevine to be extraordinarily accurate.”
Ramsey sat back once more. “Well, I have to admit that I was a little surprised about it. The case presents no unsettled question of law that requires our intervention. Need I say more?” He threw up his hands.
“In your opinion?”
A tinge of red eased across Ramsey’s face. “In the published opinions of this Court over the last fifty years. All I ask is that you accord the Court’s precedents the respect they deserve.”
“You’ll find no one who holds this institution in higher regard than I do.”
“Very happy to hear that.”
“And I’ll be delighted to entertain your thoughts further on the Chance case after we hear oral argument.”
Ramsey looked at her dully. “It will be a very short discussion, considering that it doesn’t take long to say yes or no. Bluntly speaking, at the end of the day, I’ll have at least five votes and you won’t.”
“Well, I convinced three other justices to vote to hear the case.”
Ramsey looked as though he might laugh. “You’ll quickly learn that the difference between votes to hear a case and votes to decide it is enormous. Rest assured, I will have the majority.”
Knight smiled pleasantly. “Your confidence is inspiring. That I can learn from.”
Ramsey rose to leave. “Then consider this other lesson: Small mistakes tend to lead to large ones. Ours is a lifetime appointment, and all you have is your reputation. Once it’s gone, it doesn’t come back.” Ramsey went to the door. “I wish you a productive day, Beth,” he said before leaving her.
Rufus?” Samuel Rider cautiously pressed the phone to his ear. “How did you track me down?”
“Ain’t many lawyers up these parts, Samuel,” Rufus Harms said.
“I’m not in the JAG anymore.”
“Being on the outside pays good, I guess.”
“Some days I miss the uniform,” Rider lied. He had been a terrified draftee, fortunately with a law degree in hand, and had chosen a safe role in the Judge Advocate General’s Office — or JAG — over toting a gun through the jungles of Vietnam as a pudgy, fear-soaked GI, a sure beacon for enemy fire.
“I need to see you. Don’t want to say why over the phone.”
“Everything okay up at Fort Jackson? I heard you were transferred there.”
“Sure. Prison’s just fine.”
“I didn’t mean that, Rufus. I was just wondering why you looked me up after all this time.”
“You’re still my lawyer, ain’t you? Only time I ever needed one.”
“My schedule’s kind of tight, and I don’t usually travel over that way.” Rider’s hand tightened on the phone with Harms’s next words.
“I really need to see you tomorrow, Samuel. You think you owe me that?”
“I did all I could for you back then.”
“You took the deal. Quick and easy.”
“No,” Rider countered, “we did the pretrial agreement with the convening authority, and the trial counsel signed off on it, and that was the smart thing to do.”
“You didn’t really try to beat it none on the sentencing. Most try to do that.”
“Who told you that?”
“Learn a lot in prison.”
“Well, you can’t waive the sentencing phase. We put on our case to the members, you know that.”
“But you didn’t call no witnesses, didn’t really do much that I could see.”
Rider now got very defensive. “I did the best I could. Remember something, Rufus, they could’ve executed you. A little white girl and all. They would’ve gone for first degree, they told me that. At least you got to live.”
“Tomorrow, Samuel. I put you on my visitors’ list. Around about nine A.M. Thank you. Thank you kindly. Oh, bring a little radio with you.” Before Rider could ask him why he should bring such a device, or why he should even come to see him, Harms had hung up the phone.
Rider eased back in his very comfortable chair and looked around his spacious, wood-paneled office. He practiced law in a small rural town some distance from Blacksburg, Virginia. He made a fine living: nice house, new Buick every three years, vacations twice annually. He had put the past behind him, particularly the most horrible case he had ever handled in his brief career as a military lawyer. The kind of case that had the same effect on your stomach as curdled milk, only no amount of Pepto-Bismol could right the discomfort.
Rider touched a hand to his face as his thoughts now drifted back to the early seventies, a time of chaos in the military, the country, the world. Everybody blaming everybody else for everything that had ever gone wrong in the history of the universe. Rufus Harms had sounded bitter over the phone, but he had killed that little girl. Brutally. Right in front of her family. Crushed her neck in a few seconds, before anyone could even attempt to stop him.
On Harms’s behalf, Rider had negotiated a pretrial agreement, but then, under the rules of military law, he had the right to attempt to beat that deal in the sentencing phase. The defendant would either receive the punishment in the pre-trial agreement, or the one meted out by the judge or by the members — the military counterpart of a jury — whichever involved less prison time. Harms’s words gnawed at the lawyer, though, for Rider had been persuaded at the time not to put on much of a case at the sentencing phase. He had agreed with the prosecutor not to bring in any witnesses from outside the area who could attest to Harms’s character and so forth. He had also agreed to rely on stipulations from the official record instead of attempting to find fresh evidence and witnesses.
That was not exactly playing by the rules, because a defendant’s right to beat the deal was not supposed to be waived or bargained away in any substantive manner. But without Rider working behind the scenes like that, the prosecutor would have gone for the death penalty, and with those facts, he probably would have gotten it. It mattered little that the murder had happened so quickly that proving premeditation would have been very difficult. The cold body of a child could derail the most logical of legal analyses.
The bald truth was nobody cared about Rufus Harms. He was a black man who had spent most of his Army career locked in the stockade. His senseless murder of a child certainly had not improved his standing in the eyes of the military. Such a man was not entitled to justice, many had felt, unless it was swift, painful, and lethal. And maybe Rider was one of those who felt that way. So he hadn’t exactly practiced the scorched-earth policy in his defense of the man, but Rider had gotten Rufus Harms life. That was the best any lawyer could have done.
So what could Rufus want to see him about? he wondered.
As John Fiske rose from the counsel’s table he glanced over at his opponent, Paul Williams. The young assistant commonwealth attorney, or ACA, had just finished confidently stating the particulars of his motion. Fiske whispered, “Your ass is grass, Paulie. You messed up.”
When Fiske turned to face Judge Walters, his manner was one of subdued excitement. Fiske was broad-shouldered, though at six feet he was a couple of inches shorter than his younger brother. And unlike Michael Fiske, his features were far from classically handsome. He had chubby cheeks, a too-sharp chin and a twice-broken nose, one time from high school wrestling, the other time a carryover from his cop days. However, Fiske’s black hair was swept over his forehead in an unkempt manner that somehow managed to be attractive and intimate, and his brown eyes housed an intense core.
“Your Honor, in the interest of not wasting the court’s time, I would like to make an offer in open court to the Commonwealth Attorney�
�s Office regarding its motion. If they agree to withdraw with prejudice and contribute one thousand dollars to the public defender’s fund, I will withdraw my response, not file for sanctions and we can all go home.”
Paul Williams leaped to his feet so quickly his eyeglasses fell off and hit the table. “Your Honor, this is outrageous!”
Judge Walters looked over his crowded courtroom, silently contemplated his equally bulging docket and flicked a weary hand at both men. “Approach.”
At the sidebar, Fiske said, “Judge, I’m only trying to do the commonwealth a favor.”
“The commonwealth doesn’t need favors from Mr. Fiske,” Williams said with disgust.
“Come on, Paulie, a thousand bucks, and you can get a beer before you go back and explain to your boss how you messed up. I’ll even buy you the beer.”
“Not in ten thousand years will you get a dime from us,”