He looks at Jim. Jim leans in and says, “We’re going to begin by doing a quick intake.”
“Right now?” I say.
“Yes, all your information,” Courtney says. “All the details of the case.”
“We’re on a fast track,” Keith says. “We really have no time to waste.”
I look at him, then at Jim, then at Courtney. I swallow, hold for a count of three, and then I say, my voice cracking, “So, I mean, do you—”
“We want to take your case,” Keith says, grins, nods at his students. “I wasn’t sure at first. They convinced me.”
For a moment, I cannot decipher or comprehend a single word.
That sentence—“we want to take your case”—crashes in my head like a crack of thunder. The words echo. The words drown out all other sound.
Finally, I’m able to focus. Keith says he needs all my documentation. I hand him my paperwork. He shuffles through it and shakes his head.
“I’ve never seen anything like this,” he says, still shaking his head. “You’re so prepared.”
“I spend a lot of time in the law library,” I say.
“Unbelievably impressive.”
“Thank you.”
“We get an overwhelming amount of submissions,” Keith says. “We’re a nonprofit. We rely on our students. We try to look at every one, but given our situation—”
He pauses.
“We only take on the cases we’re confident we can win.”
I nod, feeling myself biting my lip.
“Okay,” Keith says. “You’ll need to sign an agreement, allowing us to represent you, assuming that’s what you—”
“I do,” I say.
Jim slides the agreement across the table toward me.
I do.
That’s what two people say when they get married.
In the visiting area of the Green Bay Correctional maximum-security prison, I’m marrying the Wisconsin Innocence Project.
For better, for worse…I pledge myself to you…
Till death do us part.
* * *
—
Fourteen days until the deadline.
I get on a conference call with Courtney and Jim, the two students from the Innocence Project. They have gone over the habeas petition I worked on with Rob Henak and begun preparing the adjusted, official habeas petition, the one they will submit. They compliment me on how well I’ve presented my argument of ineffective assistance of counsel. I’m grateful to Rob, who got me to this point. Courtney and Jim explain the next step. I will have another meeting with them and Keith to go over their argument and give me a copy of the final draft, the certificate of appealability. No one mentions the loud ticking of the clock we all hear.
* * *
—
Six days before the deadline.
Keith, Courtney, Jim, and I meet again in the visiting area. Keith absently strokes his goatee.
“Jarrett, you have a very strong argument here,” he says. “We are absolutely going to include the ineffective assistance of counsel. But that is one of the hardest burdens to meet. We want to lead with another argument.”
“What would that be?”
“Insufficient evidence,” Jim says.
“Your case reeks of obvious racism,” Courtney says.
“The young woman testified that nobody threatened her, nobody forced her,” Keith says. “She said that over and over.”
I see their argument. I hear their outrage.
Keith leans in, raises his voice. “For the court to uphold this guilty verdict, they would have to say that the mere presence of three Black kids in a room with a white girl was enough to equal force, or threat of force. That is egregious.”
I look past them, at the guard who gazes at me vacantly, and try to decide what I think.
I’ve known all along that racism lived at the core of my conviction. Other than the three of us and our families, the only black you saw in that courtroom was the judge’s robe.
But I never considered leading with that. I have spent literally years agonizing over how to present a succinct, clear, powerful argument of ineffective assistance of counsel, and now Keith, not only a lawyer, but a law professor, wants to lead with insufficiency of the evidence. It makes total sense. And it feels overwhelming.
I spread my arms on the table and feel my eyes starting to close. I have never felt so wasted, so completely—depleted.
“Man, I’m tired,” I say.
“What do you think?” Keith says. “About leading with that argument.”
I don’t care what you lead with as long as you lead me out of here.
That’s what I think. I don’t say that.
I say, “Look, when you put your name on my case, when you say this is coming from the Wisconsin Innocence Project, people will take notice. I defer to you. I believe in my argument. But I am comfortable with whatever makes you comfortable.”
“We think it’s the way to go,” Courtney says. “At least that’s how we should lead.”
I lift my head.
“I need to say one thing. This is my opinion, based on my observation, from my experience and from working with inmates for years. I don’t think any court in Wisconsin will acknowledge that race is a problem in criminal cases.”
“This—?” Keith says, gesturing across the room. “I mean, come on. You got twenty-eight years? What happened to you is beyond egregious. It’s criminal.”
I don’t know if I agree. I’ve been filing cases for inmates, going with my gut, but always making sure my arguments were sound, and I’ve been winning. I realize now that I have to give up control. I have to trust Keith and the Wisconsin Innocence Project with my future.
“Okay,” I say. “Let’s lead with insufficient evidence.”
* * *
—
I go back to my cell, my mind racing, my body burning.
Six days.
I pace. I speak quietly, but aloud, to myself, to God. I pace, then stop and press myself against the bars. Since when are Black people treated fairly in this country? Especially in the state of Wisconsin?
I pace some more, wear out the cell floor; then I collapse onto my cot.
I don’t want to be defeatist, but I feel beaten up.
A question haunts me: Am I about to enter a fight that has been fixed?
Do I already know the outcome?
* * *
—
Five days to go.
Four.
Three.
When I don’t hear from anyone, I start obsessing.
What if they don’t file on time?
What if something happens to the paperwork?
What if they get into an accident?
Maybe I should bypass them and send in the submission myself.
I can’t miss this deadline.
Two days to go.
Nothing. Not a word.
I feel sick. My nerves turn in on me. My body aches. I get stabbing pains in my stomach. I feel so impotent, so out of control. I pray. I list every sin I’ve ever done, every action that comes close to a sin, and I beg for forgiveness. I drop to my knees in my cell and I pray: “Please let them make this submission on time, please. Whatever I did, I’ll never do it again. Please, oh, Lord. Please.”
The deadline comes. The deadline goes. Silence closes in on me. I hear nothing, not a sound. It’s as if I’ve suddenly gone deaf. I can’t eat. Forget sleep. I can’t concentrate on anything.
A day passes. Another.
Then the clanging of keys.
I get mail.
I receive a packet from the Wisconsin Innocence Project. They have filed on time, a day before the deadline, and they have sent me a copy of the filing. Then I get a phone call—Keith,
Courtney, and Jim on a conference call.
“We just wanted to let you know we filed,” Keith says.
“I got the copy. Thank you.”
“Here’s what happens next,” Keith says. “We wait.”
I laugh.
“This could take a minute,” Keith says.
It will take a lot more than a minute, I think. I lost in the appellate court two years ago. It took another year for the Wisconsin Supreme Court to refuse to hear my case. This will likely take another year. Each stage in the process has taken a year of my life.
“Now, you could be denied by the federal district court and prevail in the U.S. Court of Appeals for the Seventh Circuit,” Keith says. “That could happen.”
“That will happen,” I say.
I blurt that because I believe it.
“I’m going to win on ineffective assistance of counsel. I feel it.”
“Well, we think the other argument is so strong—”
“It is strong. It’s a good argument.”
I take a breath before I speak.
“I sit up here and all I do is read cases. If the court rules that way on race, it will open the floodgates. Everyone will start using that argument—that race was used to meet an element of force or threat.”
I raise my voice, raw with emotion—rage and frustration and exhaustion rushing out in one massive exhale.
“The Supreme Court and all the courts have never been sympathetic to Black people making arguments based on color. That is a fact. Look at how the courts treat us. The Supreme Court in Dred Scott v. Sandford ruled that we were not even human. Do you remember that? Look, I appreciate everything you’re doing and I am hoping against hope, but how can you expect me to have confidence that justice will prevail based on race?”
Silence.
For a moment, I think they have hung up the phone.
I whisper, the emotion congealed like a rock in my chest. “No justice is going to happen for me in a Wisconsin court. I’ve got to get out of there, out of the district court. I will win in the Seventh Circuit. Again, I sit up here all day long, day after day, reading these rulings on other people’s cases. They didn’t touch the importance of my eyewitness. They never acknowledged that. All they say is your lawyer had a trial strategy. That is utter nonsense. They didn’t even address Rovaughn’s 11–1 verdict to acquit. It’s outrageous.”
No one speaks. I sigh and whisper even lower. “I’m sorry. I’m so—”
“I know,” Keith says.
“I’m sorry,” I say again.
“I wish I could speed this along somehow,” Keith says, “but it’s out of my control.”
“I know how that feels.” I sigh again. “Okay, so we wait.”
After a pause, I say to reassure them, to reassure myself, and because I believe it, “One way or another, we will win.”
I thank them, hang up the phone, and return to my cell.
I pace, I pray, I wait.
* * *
—
A week passes. Happy New Year, 2005. Two more weeks pass. Then three weeks. I keep working my cases. Busloads of fresh inmates arrive, some guys I remember from Waupun. They huddle in the bullpen, waiting intake. “Li’l Johnnie Cochran,” I hear more than a few times. “What you doing up here? Hey, man, you take a look at my legal work?”
Time passes. Weeks, months. Buses of prisoners arrive continually. Green Bay Correctional bulges at the seams. Every second I spend away from the law library, I fear that some newbie who’s either drugged or deranged will lose his mind and come at me. Meanwhile, nothing from the district court. I’m so antsy I can’t sit still in my cell. I pace like a maniac. I’m in constant motion. I bet I’ve logged a thousand miles walking five feet by nine feet and back again. Then, one night, two guards barge into my cell—one the size of a nose tackle with a mean streak, and the formerly friendly guard who used to talk sports with me. That was before. He’s since turned cold and hard. They roust me out of my cot, yanking my legs.
“Hey, what—?”
“Pack up your stuff.”
“Why?”
“You’re going to segregation.”
* * *
—
“Group resistance,” they say. “Smuggling drugs into the prison.”
Another trumped-up charge. The same confidential informant nonsense.
They tie me to a crazy scheme involving a program where inmates make teddy bears for kids. Inmates have been sending the bears to a wrong address, where someone on the outside stuffs them with cigarettes and weed and mails them back, return to sender. Guys call this program the Teddy Bear Mafia. I don’t take part, but an alleged confidential informant has tied me to the smuggling ring. The reporting officer calls me an instigator, a direct threat to prison society.
As punishment, they give me another 360 days in segregation.
I’ll fight this. I’ll litigate my way out as I did before. I’ll file a writ of certiorari the way I did before. It’s a ridiculous replay of previous events. Déjà vu all over again.
I tell myself I’m ready for segregation this time. I know how to do it. I’ll read, I’ll write, I’ll read my Bible verses, I’ll pray, I’ll enjoy my weekly shower. I’ll play chess through the vents. I’ll talk to the walls. I’ll sit and stare at the TV, flipping through my five channels. All while I wait in agony for the ruling to come down from the district court.
It sounds insane. But to stay sane in segregation, you have to do insane things.
I tell myself that I can do segregation again.
That’s what I tell myself.
I have to.
But no one can do segregation. Segregation does you.
* * *
—
Two months in, while reading the Bible, I suddenly find myself filling up with rage. “I’m sick of this crap!” I shout.
But maybe I shouted in my mind.
I pace furiously, drop down to the floor, rip off a hundred push-ups, pause, rip off another hundred, then another hundred. I keep going until I collapse, drained, exhausted. I feel numb, and then I feel gutted. Nine more months of this? When will I hear about my writ? When will I hear from the court about my petition?
I stare into space, the world appearing foggy, murky. When did I start thinking only in questions?
* * *
—
Then, as if God has a pager, He finds me. He sends me a message.
An angel.
That night, I gaze at my TV, listlessly flipping through my five channels, ABC, NBC, CBS, CNN, PBS. I stop at a program on PBS about the death penalty. I stare transfixed at a face that fills the screen. A white man. Stephen Bright, a director of the Southern Center for Human Rights in Atlanta. A frenetic bundle of nerves, his eyes blazing behind horn-rimmed glasses, his face thin, almost gaunt.
The interviewer asks Stephen a question about his work and his views on the death penalty. Stephen goes off. A lawyer, he represents mostly poor people and people of color who have been given the death penalty. He talks about how he finds this population to be the most vulnerable and the most underrepresented. Poor people, Black people, and brown people facing the highest stakes are the ones most often put to death because they don’t have good lawyers.
That is fundamentally unconstitutional.
I don’t know whether Stephen Bright says that to me on PBS or I say that to myself in my cell. Either way, he speaks to me. We have a broken system, he says and I parrot back, nodding emphatically at the TV. I watch this man, this fiery, seemingly inexhaustible attorney fighting to right a wrong and defend people who need competent representation, and I say to myself, I have to get out of here and I have to join that fight.
I’m not sure if I determine that I will become a lawyer at that exact moment, but I know that Stephen Bright’s passion
motivates me.
Pick yourself up off the floor, I tell myself. Literally. Figuratively.
You got work to do.
13.
Innocence
Two months into isolation, I lie on my cot, reading. A guard rattles my cell. “You have a phone call.” I slowly roll up to a sitting position. I lower my feet to the floor, moving even slower. I lick my lips. I feel a sense of doom. The guard grunts impatiently as he shackles my legs. I shuffle in front of him, walking slowly, painfully, my leg irons clanging.
I take the phone and murmur a muted hello.
Keith greets me and introduces me to two other voices on the line, the students who have joined him this semester, Carl Williams and Andy Twitmeyer, replacing Courtney and Jim. After a formal, even stiff set of hellos, Keith, Carl, and Andy halt and seemingly share a single breath. Then Keith speaks, breaking the clumsy silence.
“We got the ruling from the federal district court,” he says. “They denied your petition.”
“We’re shocked,” Carl says.
“We’re going to appeal it to the Seventh Circuit,” Andy says.
“I know we’ve just met,” Carl says, “but I—we all—feel very frustrated. As a Black man myself, I feel you have been wronged.”
These students, I think. Brimming with optimism, idealism. They mean so well.
I look at the line of cells, try to shut out the sounds of the night: inhuman cackling, a cappella singing, men screaming for no reason at all. I peer at my handcuffs as if seeing them for the first time. Are these my wrists? I float away mentally for a moment. Where am I? Who am I? Segregation messes with your head. Then I come back to earth, to this place. I eye the guard snarling at me, ten yards away, looking for any excuse to rough me up. He clears his throat as if announcing his presence, and I think, These students, their world out there, is some sort of fantasy world.
“Listen,” I say. “Keith, Carl, Andy. I don’t want you to feel bad. You did your best. But I am not at all surprised. I fully expected us not to get any justice from this court.”
Redeeming Justice Page 17