Defense of an Other

by Grace Mead

  Both the prosecution and defense largely ignored the training in violence that Durant sought out immediately before the trial. The prosecution tried to present one witness to testify about it at the end of the trial. Andre Thibedeaux, the prosecutor, explained that no one else from the gym had been willing to talk to them, but the trial judge ruled the evidence inadmissible.

  The Observer has investigated Durant’s training and learned further details. Frank Hodges, the witness whose testimony the judge excluded, gave an exclusive interview to the Observer. Durant had been training for over a year and a half at Tommy O’Rourke’s boxing gym, where he learned traditional boxing techniques.

  But Tommy’s Boxing Gym taught Matthew Durant much more than he needed to know to stay fit. In the weeks leading up to the trial, Durant expanded his training regimen beyond boxing to prepare for a possible prison sentence.

  O’Rourke arranged for individuals with military and prison experience to teach Durant deadly self-defense techniques. And those advisors told the man accused of murder to become even more aggressive. These more recent training sessions focused on techniques that are illegal in the boxing ring, including kicks that could disable and finger strikes that could destroy airways. Hodges, himself a former prisoner, even counseled Durant to kill another prisoner early in his stay to make the other inmates respect him.

  What’s most surprising, perhaps, is that this training wasn’t discussed in front of the jury. The judge’s ruling was wrong. A person who engages in a rigorous training program to learn to kill shouldn’t be able to claim self-defense with the impunity of an innocent. And what does it say about Durant’s belief about his guilt that he began preparing to go to prison even before the trial began?

  The good citizens on the jury fortunately decided this case correctly without Hodges’s testimony, but the Observer hopes the trial judge’s legal ruling won’t set any sort of precedent.

  Matt balled his hands into fists under the table. The article carried an old picture of him taken from Farrar Levinson’s website with a caption that read: Wealthy lawyer Matt Durant had access to better lawyers than most, and he needed them. Unlike OJ, even his fancy lawyers couldn’t get him off.

  Matt now knew where the guards and prisoners had learned about the trial. It wasn’t a piece of a reputable reporting in a paper like the Times-Picayune. They were eating up this garbage, or Ted’s version of it. He suspected Ted wasn’t charitable or accurate when summarizing the story and hated to think of what an inaccurate version of the article would sound like.

  He pushed back his chair and took Parnell’s files and the criminal law treatise into a corner, far away from the computers.

  For the first couple of hours, he found nothing. But he did a double take when he reached the instruction on attempted murder—it appeared garbled—so he consulted the treatise passage on the relevant jury instruction again. The judge had committed a common mistake and instructed the jurors on the wrong level of intent required to commit attempted murder. He’d discovered the sort of legal mistake that could result in reversal and a new trial. A tentative grin spread across his face.

  Matt rose from the table, approached Luther, and offered to help sort books.

  “You find something already?” Luther asked.

  “I think so. I just want to shove it to the back of my mind and give it some more thought. I can do that while I shelve books.” Matt had learned at Farrar Levinson that the trick when under the greatest pressure was to buy time somehow to think the issue through thoroughly. Letters and briefs could be written quickly if Matt had already mapped out the argument in his head. Rewriting a bad draft filled with weak arguments would take much longer than thinking the argument through properly in the first place.

  Matt filled the rest of his afternoon in the library, shelving books and mulling over how he’d present the argument to Parnell. Managing Parnell’s expectations had become even more important and difficult after locating tentatively positive information. Promise too much and his client would be sure to be disappointed. Rehearsing the presentation in his mind, he scarcely noticed his surroundings in the library or later as Ted drove him back to Wheaton’s Building 2.

  Matt waited just inside the doorway for about ten minutes before Parnell walked in surrounded by followers. Parnell had an ambiguous day job that he suspected involved little work. He nodded to Parnell as he entered.

  “I can discuss your case whenever you’d like,” Matt said.

  “Let me relax for a bit and then eat,” Parnell said. Matt couldn’t figure out whether the seasoned convict was faking disinterest or was genuinely disinterested. Desperate people had probably made wild promises to Parnell over the years. He might be projecting indifference to impress the other inmates or to protect himself from the possibility of disappointment. It was impossible to tell.

  Parnell didn’t approach Matt until after dinner, soon before the lights were scheduled to turn off for the night. He motioned to Matt and rose to go into the bathroom, the only semiprivate structure in the barracks. The two men were soon alone.

  “All right. Tell me what you found in one day my other lawyer ain’t found yet.”

  “I think I’ve found an error in the jury instructions.”

  “What’s that mean?”

  “You were convicted of attempted murder. To prove that you committed attempted murder, the prosecution needed to show you took some act to attempt to kill someone intending to kill a person. The judge instead told the jury you needed only to have taken an act that could result in death with the intent to cause great bodily harm.”

  “What’s the difference?”

  “I haven’t thoroughly reviewed the evidence, but it seems to me like the prosecution had evidence you fired your gun in the middle of a pretty chaotic SWAT raid. Firing a gun always poses the risk of killing someone. Even if you fire a gun into the air, there’s the risk that the bullet will kill someone when it falls back to the ground. And firing it during that raid created a significant risk of a firefight. So the prosecution could easily show that you took an act that could result in death. Under the judge’s instructions, the prosecution then only had to show you intended to injure, rather than kill, someone. If the prosecution had instead been forced to prove that you intended to kill one of the cops, it would have been harder for the jury to find you guilty.”

  “Don’t sound like a great argument to me. Thos’re just words,” Parnell said doubtfully.

  Matt kept his hands at his sides and resisted the urge to gesture as he talked. He was afraid they’d shake. “What makes it a great argument is that the Louisiana Supreme Court has ruled it’s legal error for the judge to give the instruction that he gave. There are some problems with the argument and you just touched on one, but it’s solid.”

  “What are they?”

  “Well, let’s start with the problem you just pointed out. The appellate court could find the jury would have found you guilty no matter how the judge had instructed them. That’s called harmless error. But the appellate court has to conclude that, properly instructed, no reasonable juror would have decided to acquit you. And that’s a pretty high standard.”

  “Okay. I can see how that might work. What are the other problems? I wanna hear ’em all now, not after it’s too late.”

  “Your lawyer objected to the attempted murder charge, but he didn’t raise this specific argument. The appellate court could find your lawyer waived the argument, which would make it harder for us to win.”

  “What do you think of my lawyer?”

  “Your lawyer is okay, not great. I suspect your lawyer’s well aware of your business activities, right?”

  “Yeah. He know a lot. I use him to make shit confidential. Sometimes he sends me packages.”

  “Lawyers are conservative. A lawyer with a lot of talent is going to avoid the kind of work that could get him in trouble. If he’s good enough, he doesn’t need to do anything that could get him in trouble to make lots of money
. You should really think about hiring different lawyers when you have a lot at stake in a criminal trial. They may not, uh, know your business as well, but that could actually be an advantage.” Matt wished he hadn’t stammered.

  “Never thought of it that way before. What happens if this court says the judge got it wrong?” Parnell asked.

  “You aren’t going to get out of prison immediately,” Matt said. “Your lawyer has already filed papers asking the trial judge for a new trial, but he’ll probably refuse. Then we appeal. And if we win the appeal from that decision, you could get a new trial on at least the attempted murder charge and I’m going to try to fashion an argument for an entirely new trial on all charges.”

  “It’s a start,” Parnell admitted.

  “Yeah, it’s a start. I only spent a few hours with the record and I haven’t read the entire transcript yet, but I wanted to let you know what I’d found.”

  “Yeah, you did good. You safe for now.”

  “Thanks,” Matt said.

  When Matt returned to his bunk, he noticed three letters sitting on his pallet. Tyrone said, “The guards delivered those this morning after you left. I forgot until now.”

  “Thanks,” Matt said. He wondered why they hadn’t been on his bed before dinner, but he decided it didn’t matter. He picked up the envelopes. One was from his mother, one with Lisa’s name atop an unfamiliar address and one from Farrar Levinson. He decided to save the one from his mother for last and opened the letter from Farrar Levinson. Immediately beneath the letterhead, starting on the left margin, was stamped: Privileged & Confidential, Attorney-Client Communication:

  Dear Matt,

  I wanted to update you on the status of your post-trial brief and appeal. As you might imagine, we’ve been combing the record for some sort of reversible error. The post-trial brief is our first task. We’ll argue that the verdict was not supported by the evidence and was against the weight of the evidence, but, as you know, that has little chance of convincing the trial judge.

  I hate to report that your best legal argument is probably a long shot. We’ll argue that Judge Masterson erred in permitting the prosecutor to strike a gay juror and in seating jurors that expressed negative feelings about gays. As you know, if Judge Masterson had permitted the prosecution to strike jurors based on their race or gender, we’d have an excellent argument for a new trial. But the courts have provided safeguards against discrimination based on race and gender that they haven’t extended to sexual orientation.

  The argument will likely fail in front of every Louisiana court, ranging from Judge Masterson to the Louisiana appellate court to the Louisiana Supreme Court. We would really be angling to have the United States Supreme Court take the case. You know as well as I do that the Supreme Court receives over 6000 requests to hear cases each year and only hears about 60 or 70, so it’s a real long shot.

  I was hoping that we might be able to convert one of our jury arguments about Detective Jones’s interview technique into a legal appellate argument. Lisa has researched the issue, but we haven’t come up with anything yet. As you know, appellate courts are loath to interfere with the jury’s weighing of the evidence that way. We’re looking for other evidentiary and instructional errors, but we haven’t found anything promising yet.

  My respect for you as a lawyer hasn’t changed and I’m going to send you a copy of your file. If you see anything that Lisa and I’ve missed, please let me know. I hope you’re doing as well as possible, and I want to repeat that the verdict against you was a travesty.

  Sincerely,

  Thomas Farrar

  Matt folded the letter in half and closed his eyes. Farrar’s report confirmed his initial feeling that he didn’t have any legal arguments likely to succeed on appeal. Their successful track record with legal rulings in front of Judge Masterson meant that they’d be asking a court to second-guess the jury’s findings of fact. Appellate courts didn’t do that. A brief could describe the facts favorably to create atmosphere and color, but the prosecution witnesses’ history of criminal convictions, for example, wouldn’t be considered by the appellate court as a legal reason to reverse the verdict.

  Matt opened the letter from Lisa, hoping for something to cheer him up:

  Atlas—

  Lisa offered to mail this letter for me, and I’ve never had a pen pal before so I thought I’d drop you a line.

  I was obviously upset to learn of the verdict, but I hope you’ll hang in there. From what I know of you, you will.

  Lisa and I are up to no good, as usual. We went out to Superior Mexican restaurant on Friday night dressed to the nines. As I suspect you know, they make their margaritas with grain alcohol. We each had one and that pretty much was the beginning and end of the night. We wound up back at Lisa’s watching Bobby Flay on the Food Network, who I think she’s a bit obsessed with.

  On Saturday, I’d resolved to follow your lead and start working out. And I definitely managed to buy workout clothes. Does that count as working out? I think it does.

  Oh well, off to work, but please write back. You can write to Lisa’s address.

  Take Care,

  M

  Matt smiled. Eric had written the letter from a return address that wouldn’t identify him and elliptically enough that it could be from Lisa’s girlfriend rather than her gay friend. He’d have to think of something funny to write back.

  Matt finally opened the letter from his mother:

  Dear Matt,

  Thank you so much for your letter. I’m so happy to hear you’re safe. You’re right that exercise could help.

  The big news around here is that LSU is playing Tennessee in the SEC championship. It’s all anyone around here ever talks about. I hope you’re going to get a chance to watch it on TV at least.

  I was happy to send the money. Mr Farrar says he won’t take anything for the trial or the appeal. He says the appeal will only require a fraction of the time the trial did, especially since he and Lisa tried the case and will also be working on the appeal. And it’s your money. You earned it and you should be able to spend it.

  I also changed jobs and I’m now working at St Paul’s. I’m working on nights and weekends, which has put a bit of a damper on my social life, but the people are so much nicer.

  I’m thinking about going over to Dallas soon to do some shopping with some of the other nurses. We think we might be able to get the hospital to spring for a trip to a physical-therapy conference. It’s worth a shot at least. I’m sure we won’t be staying at a five-star hotel, but it’s nice to get out of Lafayette every now and again.

  I just want to repeat, and I’ll never be able to repeat it often enough, that I love you and I’m proud of you. I know you couldn’t abandon Joey Buckner in that alley or he would have gotten hurt very badly. I pray for you every morning and every evening. A mother couldn’t be prouder of her son.

  Love,

  Mom

  Tears sprang to his eyes. He well knew his mother’s hard work and insistence on reading to him at night when he was little—no matter how tired she was—had paved his educational path. It was no more his money than hers.

  She also hated working weekends and the other nurses at the hospital had been her closest friends for over a decade. She hadn’t left her job because she’d wanted to—she’d lost it because of the time she’d taken off for the trial; because the hospital didn’t want to employ a nurse who’d raised a murderer; or both. And who knew what would have happened if she hadn’t taken time off to support him and testify at his trial.

  Matt felt his frustration build. Farrar and Lisa had worked throughout the trial for him and failed. And now his mother had probably been fired for giving the testimony that might have saved his life.

  He’d had enough. He’d been forced to sit on the sidelines as twelve strangers decided whether he’d live or die. The argument about striking a gay juror was a long shot, but Matt knew he was also an exceptional lawyer, as naturally talented as anyone he�
�d ever known. And he had nothing but time in here.

  This wasn’t right, and he’d trained for years to persuade appellate courts to right wrongs—he’d work on Parnell’s case to survive, but he’d work on his own case to get the hell out of Wheaton.

  Chapter 20

  Matt woke the next morning with a driving need to establish a routine so he could work on Parnell’s case to stay safe while devoting all of his other mental energy to his own. He’d reread the principal cases every day; he’d write and rewrite briefs until he’d committed every possible permutation of every sentence to memory; and he’d spend every free moment thinking about new approaches and novel arguments.

  At the library that morning, he pulled all of the Supreme Court cases where the Court had struck down laws discriminating against gays. He read them over and over again. He could make this work. He had to.

  That afternoon, Matt sorted and catalogued books. He was filling out the orders for Wheaton when he noticed something odd: all of the men in Building 2 were ordering case reporters and requesting volume numbers that were multiples of seven. Sometimes it was the seventh book in the Supreme Court Reporter, sometimes the fourteenth book in the Federal Reporter, and sometimes the thirty-fifth book in the Southern Reporter. But always a multiple of seven. Matt considered examining the books more closely, but Luther’s raised voice distracted him.

  “Damn it, Reggie,” Luther said. “There’s a difference between a short i and short e sound.” Matt looked over to see Luther working with a man in his seventies at one of the wooden tables in the library.

  “But you don’ hear it when people talk.”

  “You don’t hear it when ignorant brothers and hicks talk, but the whole point of this is so you don’t sound like an ignorant brother. There’s a difference between pin and pen. Can you hear it?”