On February 9, when Antoinette’s reprieve was almost at an end, Grace was granted another hearing before the court of pardons in Trenton. Grace submitted all the new affidavits she had collected. Most important was the doctor’s report on the autopsy. After her presentation in the big courtroom in the State Building, Grace retired to the corridor outside the chamber. She paced nervously up and down for almost an hour, awaiting the court’s fateful decision.
When Grace was summoned back into the chamber, the court had decided to give her a choice. They would, right then and there, agree to commute Mrs. Tolla’s death sentence to life imprisonment—which was all they really had the authority to do—or they would grant an additional reprieve of thirty days to give Grace an opportunity to petition before the court of errors and appeals for a new trial altogether. The governor and his board had ruled that Grace had introduced sufficient new evidence to justify a retrial, but they did not have the authority to grant one. They were asking the new lawyer to make a very difficult choice.
And she had to make it immediately.
If Grace accepted Antoinette’s sentence of life imprisonment, she would be condemning her young client to a penalty tragically severe for a woman who had acted in defense of her own life and honor. But if Grace sought a new trial and failed to secure one, there would be no more reprieves, and Antoinette would die. It was a gamble with the highest of stakes. Dean Ashley had not covered this in law school.
Grace asked for a short recess. When it was granted, she returned to the corridor. Antoinette’s husband, Giovanni Tolla, was waiting there anxiously and misinterpreted Grace’s grave attitude to mean the worst of outcomes. He pleaded with Grace to ask the court that he be allowed to die in his wife’s place.
After reassuring him that such a sacrifice would not be required, Grace walked down the hall to the office of the attorney general, Robert McCarter. She did not know the older attorney, but she was hoping that he might be able to give her the kind of advice that Dean Ashley used to. McArthur beckoned her into his office, small but filled with large books. He was cordial but said that her problem was an individual responsibility. He did not feel free to interfere. Grace felt the sting of his words as he shut his door. But she recognized their truth.
Grace returned to the pardon board and accepted the thirty-day reprieve to try for a new trial. She prayed she had made the right decision. Grace was only licensed to practice law in New York, so she hired a local Newark attorney named Samuel Kalisch to aid in the presentation of the case before the court of errors and appeals. That night, Grace again went back to the jail to tell Antoinette Tolla that her agony was not yet over.
The day before, an immigrant named Jerry Rosa was hanged in the jail yard. A few hours before his scheduled execution, the terrified man had somehow eluded his guard and barricaded himself in a closet. No threat or inducement could get him out, and it had finally been necessary to break through the wall and spray a powerful hose on him until he was exhausted. They pulled him out of the closet, half-conscious and soaked to the bone. When his time finally arrived, Rosa absentmindedly marched to his death, less than a hundred feet from Antoinette’s cell window.
*
With three days left to Antoinette’s reprieve, there was still no decision from the Supreme Court. Grace had presented her case weeks before and grew so uneasy that she called on each of the judges separately to remind them. This was not something she had learned at NYU, but she had run out of options. She was thinking of unreported guns and poorly translated testimony. Grace begged them to render a prompt decision.
Grace was also having difficulty even seeing Antoinette Tolla. Since her initial lawyer was court-appointed, the sheriff of the jail didn’t officially recognize Grace as Antoinette’s attorney. This was the stupidest thing Grace had ever heard.
On the penultimate day of the reprieve, the court ruled that sufficient new evidence had been presented to warrant a new trial for Antoinette Tolla. But in the same breath, it declared that it had no jurisdiction to reopen the case at this late date. Grace was angry, but would not give up. The March term of the court of pardons was to begin its session the following day. Grace was determined to be heard in that session, for that would be the final day of Antoinette’s reprieve. Grace also proceeded to get out a writ of error for the United States Supreme Court, as a final, wild gesture to stay the hanging. The writ required Antoinette’s signature, so Grace made the trip once more to the jail. Antoinette signed her name numbly, and Grace left again.
An East Coast snowstorm was falling as Grace boarded a late train to return to Trenton. Grace sat down, exhausted. As she looked around the train, she was surprised to see Governor Stokes sitting across the aisle, reading an evening newspaper. Grace stared at him to make sure she wasn’t seeing things as the train shook. When the train stopped, he came toward Grace with a smile.
“Are you still working to save Mrs. Tolla?” he asked.
“I would not give up as long as there was hope,” Grace responded.
The following afternoon, Grace was granted a ten-minute hearing before the governor and his board. She knew it was her—and her client’s—very last chance. Grace told them that this time she had come not for mercy, but for justice. The Supreme Court had ruled that the evidence justified a new trial, but the Court was powerless to grant it. Grace quoted the opinion of one of the justices:
Her (Mrs. Tolla’s) state of mind on that occasion was one evincing deliberation and premeditation: but had the excluded testimony (as to antecedent sexual assaults and indignities) been admitted, the verdict upon this vital point might have been different, A prolonged and persistent course of efforts to debauch a woman have a different effect on her mind than a single solicitation. A strong element of premeditation was shown in the purchase of the pistol. I cannot agree, however, that if the pistol was not used in self-defense it may not have been purchased with that object, and if it was, the strong element of premeditation drops out of the case or, at least, is rendered doubtful.
Grace concluded her plea with the contention that, since the courts of law declared themselves powerless to right the wrong done to this woman, it was the duty of the court of pardons to pass on the evidence as a trial court and jury and consider a full pardon based on its contents.
This was a bold interpretation of the law. It was also Grace’s last-ditch effort. She hoped that her legal reasoning was more persuasive than the lateness of the moment. Her ten minutes were up.
When Grace was recalled to the room, it was to hear that the governor, after a vote of six to two by the board, had commuted Antoinette Tolla’s death sentence to seven-and-a-half years’ imprisonment. It was the only time in the history of the state of New Jersey that the court of pardons had commuted a death sentence. Allowing for the time Antoinette had already spent in jail, and with good behavior, her actual term might be about five years.