Executioner's Song, The - Norman Mailer [413]
Earl Dorius would certainly attack the point again, and in reserve, Dabney had an elegant Supreme Court decision to introduce. It could dignify standing in the most dubious taxpayers' suit. Dabney, however, did not want to put it out too early. The decision was more than ten years old, and later Supreme Court decisions had weakened it. Better to save it for the end, so as not to give the other side too much room to chip away.
Dorius's next argument was that "These issues that are being raised tonight, under the guise of an eleventh-hour appeal, are issues known to these plaintiffs at least two months." There had been a tremendous delay in filing the action. In Gomports v. Chase, a 1971 Supreme Court decision in a school desegregation case, Justice Marshall stated that "under normal circumstances, the injunction would issue," but the case had come in too late. So, Justice Marshall denied it. The ACLU, in submitting this action "just nine hours prior to the execution, is very analogous to the Gomports case. The plaintiffs have sat on their rights too long," said Dorius.
For the Attorney General's office, it was Bill Evans's turn next. The Supreme Court, he argued, had only insisted on two conditions for death-penalty cases. One was the need for a separate trial and Mitigation Healing. Utah had that. The other requirement was that whoever determined the sentence must be provided with standards for guidance. That element was also in the Utah system. Besides, the Supreme Court had never said that mandatory appeal was the only system to satisfy them.
Bill Barrett was next. "With this taxpayers' suit, the plaintiff is attempting to stop an execution, not stop the wrongful expenditure of tax dollars. They have not established that they have a good-faith pocketbook action." It was a short point and a strong one. Dabney felt the time had come to produce his special argument.
"If I may, Your Honor," said Dabney, "Mr. Barrett left out a very significant case when discussing the standing question. That is Flast v. Cohen, a decision of the United States Supreme Court in 1968. In that case, Your Honor, which was a taxpayers' case to prevent the expenditure of certain funds by Congress and the Senate, Mr. Chief Justice Warren wrote that the only basis upon which this particular action was brought was that the plaintiffs were taxpayers of the United States government. Nonetheless, Chief Justice Warren found that there was, in fact, adequate standing." Judge Ritter looked up.
"Tell me that again," he said.
Here was the crux, Dabney felt. He would emerge with or without standing. The basis upon which Chief Justice Warren found for the taxpayers, he explained, was "a balancing concept between the amounts of money on the one hand, with the type of legal interest on the other." If you had a taxpayers' suit where the danger to public rights was not important, but a lot of money was involved, that was a legitimate suit with good standing. "On the other hand, if the legal interest is of extreme importance, then the Court does not have to become so concerned with the financial interest." If low on one side you had to be high on the other. Since the death penalty was the ultimate sentence, it seemed to Dabney that you did not need very much taxpayers' money to have standing. The right was so important that the sum of money could be small.
6
After that, Dabney felt stronger. Ritter did not reply, but Dabney felt standing grow underneath his toes. Now he could attack other aspects of the case.
"They say that Mr. Gilmore had a hearing before the Utah Supreme Court," said Dabney. "The only hearing had there, Your Honor, was questions to Mr. Gilmore: 'Do you want to appeal or not appeal?' And he said, 'I don't want to appeal.' They said, 'Do you know what you're doing?' He said, 'Yes, I do.'