Orbit 4 - Anthology Read online

  ”Mr. Edmonds?”

  ”Grant.”

  Two more votes were needed.

  ”Mr. Randolph?”

  *GRANT*

  ”Mr. Lovsky?”

  ”To grant.”

  ”That’s it. And now we can accept the combination to the safe. Madam Nord, will you please ask the deputy to summon Dr. Drago?”

  ”Most irregular,” grumbled Justice Burke.

  ”Possibly,” admitted Pendleton. “But at least it’s by stipulation of counsel. All we permit him to do is hand me the combination in a sealed envelope. We ask him nothing, and we must silence him if he attempts to speak. Ah, here they come.”

  Edmonds was mildly surprised. Drago was a tall, dignified young man with smooth, pale cheeks. He might have been the desk clerk at the local YMCA, or a bank teller, or a deacon at Edmonds’ own church.

  Drago’s eyes opened a little wider as he exchanged glances with Edmonds. And then his searching stare passed quickly around the table, next resting momentarily on Helen Nord... then Moore... Blandford... Godwin... and finally Pendleton. His mouth opened slightly, as though he were whispering to himself. Edmonds strained to hear. Was it, “Oh no?” He could not be sure.

  Pendleton said gently, “We thank you for coming, Dr. Drago. I am Pendleton. I understand you wish to give me the combination to the safe.”

  Like an automaton, Drago walked to the end of the table, and without a word handed the envelope to the Chief Justice.

  Edmonds was leaning forward intently. There was suddenly something very strange about Drago’s face. The cheeks were no longer smooth. And the man’s hair... seemed bushier. And then Edmonds knew: Drago’s face and scalp were rough with goose bumps. The thought sent a chill along his own spine. He looked rapidly around the table. No one else had noticed.

  But why? And what, in this, the law’s inmost, most austere sanctum, could possibly terrify any man, be he clairvoyant or not? He watched uneasily as Helen Nord led Drago outside and closed the door behind him. It required an effort of will to return to the business at hand.

  Pendleton was dictating into the transcriber: “Frank Tyson, petitioner, v. New York. Petition for writ of certiorari to the Court of Appeals of New York, granted, limited to the single question presented by the petition as follows: 1. Whether the search warrant used by the State Officers in the instant case violated the Fourth Amendment to the United States Constitution in that said warrant was not founded upon probable cause.”

  * * * *

  Eavesdroppers, or such as listen under walls or windows, or the eaves of a house, to hearken after discourse, and thereupon to frame slanderous and mischievous tales, are a common nuisance and presentable at the court-feet.

  -- Blackstone, Commentaries

  * * * *

  Edmonds paused at the door to Godwin’s office, and, as was his habit, stared across at the portrait of Laura Godwin hanging on the opposite wall.

  The room was full of reminders of the old justice’s dead wife. Actually, three portraits of Laura hung from the walls. The last, the one that now held Edmonds, was a brilliant, haunting thing, painted by the younger Wyeth just before her last illness. It still showed the elfin eyes that had conquered presidents. On her right wrist she wore Godwin’s wedding gift, a bracelet of green laurel leaves, clustered with pink pearls representing the little flowers. In death, as in life, the great court left her unawed, and she looked out upon the justices, individually and collectively, with the tolerant respect due precocious children.

  Godwin sought out anything that spoke her name. On a stand by the window grew a tiny bonsai laurel, a Kalmia latifolia transplanted from the Blue Ridge Mountains. Like the ancients, Godwin believed that this living symbol of his wife had the power to ward off lightning and similar disasters.

  In the burdened bookshelves behind his desk was an illustrated edition of Petrarch. Godwin had learned Italian just to be able to read of the poet’s Laura in the original. Next to Petrarch was a volume of Goethe’s poems. Edmonds had once pulled it out, and it had fallen open automatically to the marvelous Mignon: “Die Myrte still und hoch der Lorbeer steht. The myrtle silent, and high the laurel stands.”

  The clock on the fireplace mantel had been stopped years ago, at the moment of Laura’s death. Godwin had never since permitted it to be wound. On his credenza sat a small silver casket engraved in laurel leaves. Edmonds knew its contents: a shining black plastic ink-blot; a box of matches that would not light; a deceptive fiberglass cigar; a cement egg-- all paraphernalia that Laura had used in years past in perpetrating her famous April Fool jokes on her famous husband.

  The room seemed warm to Edmonds. A log fire was burning with steady cheerfulness in the handsome fireplace. He knew that Godwin’s chief secretary got to the office thirty minutes early to start the fire, after the old man had once complained of being cold.

  ”Ben! Come in, my boy.” Oliver Godwin peered up at Edmonds from behind the stacks of books, files, and documents cluttering his big oak desk. “We’ll have a full house at argument today. Have you seen the headlines? Here’s the Daily News: High Court Hears Mindreading Case. And the Post: Assassination Case to Supreme Court. And the Star: Supreme Court Questions Tyson Evidence. Well, I think we’re ready for ‘em. I’ve dug up a little wiretap chronology. History, dear boy, that’s the modern touchstone. Bah! Holmes said it first, nearly a hundred years ago. ‘One page of history is worth a volume of logic.’“ His hands began fluttering like pink mice through the debris covering his desk. “Strange, very strange. I had it here just yesterday, right next to the nineteen eighty-three Annual Index.”

  Edmonds had seen this a hundred times. It always fascinated him. He knew that Godwin made valiant efforts to keep all his papers and files on his desk. Godwin never knowingly filed anything. And although his desk was the largest in the Marble Palace, it had become buried years ago, soon after his appointment to the Court. Thereafter, the heaps could grow only vertically. Still, legend stated that the system had actually worked in the early years. Nothing could possibly get lost; it had to be there, somewhere. And knowing that it was there, Godwin did not mind digging until he found it. He developed the skill, intuition, and patience of a trained geologist in excavating for the exact stratum. Stooping, he could peer at the side of a stack of papers and read them, edgewise, as an archeologist would read tree-rings, or varve-layers in an ancient lakeside. At one time, Edmonds had wondered whether Godwin would be driven to rediscover carbon-dating. But then came the day when Godwin had mislaid his famous dissent in the double jeopardy case. Laura Godwin had to drive in with his “house copy,” just at robing time. And then and there she had forced his clerks and secretaries to swear an oath in blood, that old man’s wrath notwithstanding, that they would start a decent filing system.

  And now Godwin pounded the stacks on his desk and shouted through the rising clouds of dust: “Gus!” Although monosyllabic, it was a long, wailing cry, fully orchestrated, a blend of supplication, outrage, entreaty, and indignation.

  His senior law clerk, Miss Augusta Eubanks, a lady of indeterminate years, walked in quietly, holding a paper cup in each hand and a file under her arm. “The Tyson file, Mr. Godwin?”

  ”What else?” he roared. “I’ll bet it was lost in that metal junkheap you keep out there to curse and torment my declining years. Well, hand it over!”

  ”First, your pills, Mr. Godwin. And we will not have a scene in front of Mr. Edmonds.”

  Edmonds took all of this philosophically. He happened to know that Laura Godwin had called Augusta to her deathbed and had extracted her promise to stay with the judge until he retired. He also knew that the old gentleman had set up a sizable trust in Augusta’s name.

  The old man meekly tossed down the pills and water. She gave him the file.

  ”You have to be firm with them,” he whispered as she left. “Patient, but firm. They’re the ones the Senate ought to confirm. They think they run the place. And maybe they do.” He flipped th
e folder open. “Ah, here we are. First wiretapping, California, eighteen sixty-two, after they strung the telegraph across the Rockies. And California was the first state to make wiretapping a crime. But General Jeb Stuart of the Confederate cavalry couldn’t care less. He had his own personal wiretapper in the field. Doesn’t say how they did it. Shunt tap, maybe. And then Alexander Graham Bell invented the telephone in eighteen seventy-six, and the real fun began. The New York police had already been actively tapping for several years when the first tapping litigation hit the courts and the newspapers, in eighteen ninety-five. And here’s a note on the nineteen twenty-eight Supreme Court case, Olmstead v. United States. The feds tapped the phone of four indignant rum runners.” He leaned back in happy contemplation. “Prohibition, Ben. Before you were born. Everyone had his personal bootlegger. Speak-easies. The eye at the peephole. The raids. But the bathtub gin-- ugh! That’s why they smuggled it in.”

  ”So what happened to the four rum runners?”

  ”The Supreme Court said their constitutional rights hadn’t been violated by the wiretap, and that the evidence obtained by tapping was admissible. Holmes dissented, of course. ‘A dirty business... the government played an ignoble part.’ And do you know, it took us thirty years, but we gradually came around to Holmes’s view. Ten years after Olmstead, in Nardone v. United States, we conceded that maybe Holmes was partly right, but only for evidence offered in federal courts. We still didn’t think the Fourth and Fifth Amendments applied to the state courts. And then finally, in Mapp v. Ohio, we extended the doctrine to apply to the states. In those early days, when we finally did get around to finding a few instances of illegal wiretapping, we made it turn on trespass. Some of the early distinctions were fabulous. If you drilled a hole in a wall and pushed a mike through, that was trespass, and it was illegal. But merely hanging a mike on the outside of the wall was still okay. And if you drove a spike mike into the wall, it was legal if it didn’t go all the way through, provided it didn’t touch a ventilating duct. But of course all these nice distinctions are buried in the footnotes now. Today, any kind of electronic pickup is illegal, and evidence obtained by wiretapping can be excluded in any court in the country, even if the cops wiretapped by a court order. Berger v. New York. But do you think our rulings have stopped wiretapping?”

  ”I’m sure they haven’t.”

  ”Indeed not, my boy. In fact, we redoubled it. The police now have to wiretap twice as much to get evidence that they can prove they didn’t get by wiretapping. And telephone wiretapping is the simplest trick in the world. Ex-employees of big city phone companies do it best. They call a clerk in the repair section and ask for the terminal box and location of the ‘pairs’-- the two electrodes for a specific telephone. There’re several pairs in each terminal box, in a nearby underground utility conduit. They run a line from the pairs, attach a hand-set, and they’re in business. They might run a dozen lines from a dozen different terminal boxes to an empty room in a nearby building, and have one man monitor all the lines, with automatic tape recorders that start whenever a number is dialed. I think at one time or another every important phone in Washington has been tapped.”

  ”Surely not our phones.”

  ”Of course, my boy. We were tapped liberally in nineteen thirty-five and thirty-six, in the Ashwander v. T.V.A. case. And maybe at other times that we never found out about.”

  ”Holmes was right. It is a dirty business.”

  Godwin was thoughtful. “Dirty, ignoble... but very possibly necessary. Three-quarters of the racketeers and dope peddlers convicted in New York before the Berger case were caught with wiretapping. Ben, I just don’t know. Surely there are instances where it is justified, say to recover a kidnapped child, or to save the life of an innocent man. Maybe we’re going to have to figure out a way to let the police keep up with the criminal. Telephone tapping is passé, anyhow. The criminals are afraid to use a telephone. The police use bugs, hidden mikes, parabolic microphone pickups, light beams reflected from a windowpane vibrating from voices in the room.”

  Edmonds looked toward the window, and beyond to the white dreary innocence of the Library of Congress. “Do you think somebody out there is reading your window?”

  ”Who knows?” said Godwin genially. “The point is, you can’t find the heading ‘Wiretapping’ in the Index to Legal Periodicals anymore. They started grouping everything under ‘Eavesdropping’ long ago-- a broader term, of course. I imagine the rash of law journal articles that Tyson will generate will all show up under ‘Eavesdropping,’ not ‘Clairvoyance’ or ‘Psi.’ And we’ll be back to the old common law misdemeanor. A dirty business? I suppose. But let’s fit our reports together. What did your clerk turn up on clairvoyance?”

  ”Very little. Only two cases, in fact-- both criminal.” Edmonds opened his file. “Here’s Delon v. Massachusetts, nineteen fourteen. A so-called clairvoyant was arrested for practicing medicine without a license. It seems she went into a trance, and the spirits gave her the diagnosis and what medicine to prescribe. She had a license to practice clairvoyance, but not to practice medicine. Went to jail.”

  ”Seems reasonable. What’s the other case?”

  ”New York v. MacDonald, eighteen ninety-six. MacDonald was absolutely identified as a would-be burglar in an apartment on Second Avenue in Manhattan. But he produced several hundred alibi witnesses who swore that at that very moment, he was on the stage of a Brooklyn theater, under hypnosis by the famous Professor Wein. The professor explained to the court that MacDonald’s astral projection had simply got loose temporarily and had unwittingly materialized miles away in Manhattan. The judge let MacDonald off with a warning not to get hypnotized, ever again. But there’s the bell. Time to robe.”

  They walked around to the robing corridor together.

  * * * *

  The last demand upon him-- to make some forecast of the consequences of his action-- is perhaps the heaviest. To piece the curtain of the future, to give shape and visage to mysteries still in the womb of time, is the gift of imagination. It requires poetic sensibilities with which judges are rarely endowed and which their education does not normally develop.

  -- Justice Felix Frankfurter

  * * * *

  Lawyers on a Supreme Court case for the first (and generally the only) time describe the experience in hushed tones. They compare the long walk up the marble steps and through the towering white columns as a thing of horror, like mounting the guillotine, and the wait in the great boxlike courtroom until their case is called, a refinement of hell. And to wear tails, rented the day before from a Washington haberdashery, uncomfortable and occasionally not a perfect fit, when before they have never even worn a tux, with a certain knowledge that every mouth in the packed room is curled in scorn at their naivete and gaucherie, is an experience not voluntarily repeated.

  It is thus for the petitioner’s lawyer, even though he knows that over half the cases heard by the high court result in reversals in his favor. And it is even worse for the attorney for the state. He is full of gloomy forebodings. Back home, with all the power of his state behind him, he got a conviction. Here, he has to start all over again. And now immense forces are arrayed against him. The tables are turned. He is now the defendant.

  Guy Winters, Assistant Attorney General for the State of New York, ran his finger halfway around his collar, then folded his hands self-consciously on the table in front of him. His eye wandered over the long bench of Honduras mahogany, extending almost the width of the courtroom, and then one by one to the nine faces behind it, and finally back to his opponent, Walter Sickles, representing Frank Tyson. Sickles was already at the lectern and was about to begin.

  Edmonds was not surprised to find the courtroom packed. Some of these people, he guessed, had stood in line all night to get in. A triple quota of reporters was present. The oldtimers of the press could frequently forecast how the vote would go just by listening to the questions asked by the justices. He wished he could do as well. />
  From the lectern that stood squarely in front of Chief Justice Pendleton, Sickles began his presentation, slowly, in a low voice, without notes. He was glad of the microphone on the lectern, but hoped it would not pick up the knocking of his knees. As in a dream, he heard his own voice echoing back from the maroon drapes behind the great bench. “My client stands convicted of murder, on evidence improperly admitted, in that it was obtained in violation of his constitutional rights.”

  ”You refer to the rifle, with Tyson’s palm-print?” demanded Justice Godwin.

  Sickles groaned inwardly. Not ten seconds at the lectern, and the questions had begun. “Yes, Your Honor.”

  ”You admit the ballistics tests?”

  ”Yes, Your Honor.”

  ”And that this evidence was obtained by search warrant giving the warehouse address and where the rifle would be found in it?”

  ”Yes, Your Honor, but-- “

  ”But what, Mr. Sickles? Proceed.” Godwin’s mustache twitched grimly as he leaned back.

  ”The warrant was not issued upon probable cause.”