Mind Game - In future Earth, the last appeal of the last Death Row inmate anywhere is concerned with the right to privacy of mind and soul. - Dave Eberhart, Denlinger's Publishers and Bookstore

THE BOOK

Fifteen years after his crime, in an ostensibly kinder and gentler future, attorney Duke MacNamara, convicted rapist-murderer, is the last man waiting on any death row-- anywhere. Only Barbara Silver, his former law partner, stands by the condemned man. But what she alleges in her final appeal brief to the U.S. Supreme Court defies imagination. Has the government's invasion of privacy been extended to the contents of a man's thoughts —or even his soul?

Excerpt

It was cool in the Great Hall. Still stinging from the indignities at the entrance, Craig passed by the marble busts of past justices on the way to his cubbyhole office. After six months on the job, a lot of his initial awe and nervousness at serving Justice Harry Forbes had dissipated. The oldest and longest-serving justice seemed to like him and the way he wrote his memos and opinions: clean and neat, the law applied to the bare facts leading to a conclusion, over and done.

As soon as he entered his office and saw the old cartons of documents his mood shifted. Over the beautiful spring weekend he had managed to put the case known in clerk circles as the "Elephant Man Petition" out of his mind. His fellow clerk, Mary Torrelli, had taped one of the evidentiary exhibits to the side of the top box in the pile. It was a photo of the petitioner, John Wayne MacNamara, convicted murderer, fifteen years on death row at Virginia's Mecklenberg Correctional Facility. Craig could not look at the eight-by-twelve color print without an intense feeling of revulsion.

MacNamara's face looked as if it had been partially eaten away by some carnivorous animal. Where the man's nose had been there was a gaping hole. His cheekbones had melted away. The bony orbits of his eye sockets were grossly deformed.

The Elephant Man's initial writ of certiorari had come through to the highest court "in forma pauperis." It had received a quick denial. Not one of the justices had opted to review the case. Craig remembered it as one of the easy calls. A quick application of the heart of Rule 10 and Rule 24 had been enough to dispose of the bizarre writ from the bizarre petitioner.

"A brief shall be concise, logically arranged with proper headings, and free of irrelevant, immaterial, or scandalous matter. The Court may disregard or strike a brief that does not comply with this paragraph…" Rule 24 added, "A petition for writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law."

This was, of course, bad news for the Elephant Man. No Supreme Court review of his case meant no stay of execution. But the game was not yet over. Some female attorney in Richmond, Virginia, had revived the petition with a motion to rehear the order denying MacNamara's petition.

Normally, any petition for rehearing had an even slimmer chance for success than did the original. The reason for this unhappy state of affairs was spelled out in Rule 44: "[The petition's] grounds shall be limited to intervening circumstances of a substantial or controlling effect or to other substantial grounds not previously presented."

As Craig knew well, that was a heavy burden to prove. But the attorney down in Richmond had come up with some very original "intervening circumstances of a substantial or controlling effect."

He could never put his finger on what drove him out of the office that morning, propelling him to the parking lot and behind the wheel of his ancient Chevy Nova. Part of it may have been that the Court was out of session that week. Maybe something about the horror of the petitioner's condition touched him. Maybe it was because if the woman in Richmond was right, the system of justice in the country had been subverted in a very dangerous way.

Or maybe it was because he was his father's son.

Whatever the reason, he knew he was dead wrong to seek an audience with the attorney who had filed for the rehearing. Supreme Court clerks did not make ex parte contact with one of the principals in a case. At every exit on Interstate 95 South he fought the impulse to get off the highway, turn around and go back to his ivory tower.

He didn't.

THE AUTHOR

A native of Washington, DC, Dave Eberhart earned a Journalism degree from the American University. Before getting underway in a writing career, however, he elected to serve as an officer in the United States Marine Corps.

After three years as a line officer, he was selected for the Funded Excess Leave Law Program, graduating from the University of San Diego School of Law.

Following a career as a trial lawyer, both in and out of the military, Mr. Eberhart returned to writing, and during a five year expatriate period penned five novels while repeating the travels of author F. Scott Fitzgerald through Europe.

After a stint as an editor with APB News in New York City, he became the veterans' affairs editor and later the news editor of the domestic edition Stars and Stripes, the nation's oldest military newspaper.

Presently, he is a writer and editor for NewsMax.com magazine and Web site.

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