Jamison suspected that Gifford had spent a sleepless night. That wasn’t his problem, but he hadn’t slept much either for, he suspected, different reasons. He looked back over his shoulder at the filled seats in the courtroom. The Harker case still drew in the media. They were like dogs waiting to see if there was still meat on a bone. Jamison knew that Gifford’s options were limited. He could call Christine Farrow, or he could call Richard Harker. There was no way he was going to get anything out of Foster until the immunity issue was resolved. He was betting on Harker and his decision as to how to cross-examine Harker was what had kept him sleepless most of the night.
“Your Honor, I call Richard Harker to the stand.” Gifford stepped to the side as the bailiff unlocked the leg irons tethering Harker to the steel eye bolt under the counsel table. The courtroom filled with murmuring from the reporters present, only silenced when Judge Wallace’s dark expression fell on them. Harker stood and waited, moving his head from side to side, stretching his neck. Wallace’s clerk told him to raise his right hand. Harker pulled up on his handcuffs attached to a chain around his belly to emphasize that he couldn’t raise his right hand to be sworn. Wallace waived off the ensuing confusion by the clerk, had Harker acknowledge the oath, and directed him to take the stand.
It was really the first time that Jamison had actually looked carefully at Harker. He was only fifty-two years old but the years rode hard on him. Prison could do that to a man, sapping him of the smile lines and wrinkles around his eyes from the sun and replacing them with the lines of a man always watching, waiting for predators. Jamison had learned early on that the lines on a man’s face often told his story. In prison if you aren’t a predator, you are prey. Harker didn’t have the look of a victim. His face was hard and drawn, his skin showed little color, and his eyes were shrouded by lids that he kept narrow as if squinting from the sun. But there was no sun and the squinting came from measuring everyone around him for the threat they might pose. Whatever he had been when he walked into prison, he was now a predator. Jamison imagined that Harker rarely opened his eyes wide. Today was no different.
Gifford circled around the counsel table asking Harker to state his name. He then went through the preliminaries of Harker being in San Quentin prison and how long he had been there before moving to the reason for his imprisonment. “You were convicted of the first-degree murder of Lisa Farrow, isn’t that correct?”
“That’s what a jury said.”
“And the jury said you should be sentenced to death, isn’t that also correct?”
“Yes, I don’t forget that. I never forget that, thinking that I would be executed for something I didn’t do.” Harker spoke quietly, although his voice was edged with projected resentment. “The judge refused to impose the death penalty. At the time, I thought he did me a favor. After all this time in Quentin, I’m not so sure. Twenty-six years of my life are gone.”
“When you were sent to San Quentin, what schooling did you have?”
“I hadn’t finished high school.”
“And now?”
“I have my high school diploma and a college degree.” Harker turned toward Judge Wallace with an ironic smile on his face. “In criminal justice, Your Honor.”
“Did you testify in your trial?”
“Yes, and I told the truth. Nobody believed me. Nobody ever believed me.”
“Did you kill Lisa Farrow?” Jamison considered the strategy of Gifford moving straight to the point, rather than going through the details. The implication being that if Hacker hadn’t murdered Lisa Farrow, then how would he know any of the details?
“No, I did not. I always loved her. I didn’t do anything to her. I wouldn’t hurt her or her little girl. I’m not perfect but I wasn’t no murderer.” Jamison caught the tense that Harker used, he wasn’t a murderer then. He suspected that Harker was skirting what he might have done to stay alive for the last twenty-six years.
“You said you loved Lisa Farrow. Describe your relationship.” Jamison started to object and stopped short. The more Harker said, the more Jamison had to ask about.
“I knew her when we were in high school. I never went out with her but we knew each other, you know?” Harker described how he had done a short stint in the Army but ended up being discharged for bad behavior. When he got out he went to work at different labor jobs in construction, eventually finding work as a mechanic. One night he met Lisa in a convenience store. One thing led to another and they lived together for a short period of time when Christine was around three, and then he moved on.
“Why did you and Lisa break up?”
Harker remained silent, slowly turning to look at Jamison before answering. “We began to argue a lot because of my drinking. We had a fight and I hit her. It wasn’t the only time. Anyway, I left. We saw one another once in a while. I would go by and give her some money if I had any to spare.”
“Did you know Rick Sample?”
“I knew him. Saw him around anyway. I heard he was livin’ with Lisa but I had no hold on her. I wasn’t the one who killed her. I wouldn’t have done that. She was the best thing that happened to me, but I wasn’t the best man for her. Maybe too young. I don’t know. But that little girl. I cared about her. I would never hurt her or her mother.”
“Do you know Clarence Foster? Did you know him back then?”
“Yeah, pretty much everyone in the neighborhood knew Clarence. He didn’t live that far from Lisa’s house. That’s how I met him. On weekends there was a bunch of us and we would sit in the park or on somebody’s porch and drink. There was a lot of us. When somebody had beer money we shared.”
“How did Clarence Foster make a living? Do you know?”
Harker barked out a laugh. “Same way I did when I didn’t have no money. We took it. Stole it mostly unless I was working. Sold some weed, things like that. I didn’t sell hard drugs. Clarence did the same thing but mostly he was a thief, and I guess you could say so was I. But we didn’t hurt nobody. I wasn’t no robber or nothin’.”
“Where were you when Lisa Farrow was murdered?”
“I was home drinking. I was passed out, I guess. When I came outside it was all over the neighborhood. That kind of news travels fast. I went over there but cops was everywhere so I stayed away. Next thing I know, cops came after me and I was in jail. I kept tellin’ ‘em I didn’t hurt her but nobody believed me and that lyin’ son of a bitch Foster, he told ‘em I did it.”
Gifford paused, clearly contemplating his next question. “Did you ever sit in the back of a patrol car with Clarence Foster?”
Harker leaned forward. “Yeah, I did, and he admitted he lied about me.” The words came out quickly and it was evident that Gifford had coached him.
Jamison was immediately on his feet raising a multitude of objections, including hearsay. Wallace tilted his head to the side, shaking it a little before sustaining the hearsay objection and granting Jamison’s motion to strike the answer. The effort to strike the answer ensured that it was not part of the record for purposes of evidence. It didn’t go away but it did render it meaningless, at least meaningless as far as lawyers were concerned. When a jury was present it was like telling them to forget hearing the bell ring. No juror really did, but for the purposes of the hearing with Wallace, it meant that Jamison had kept Harker from talking about what Foster said unless Foster testified. Jamison had calculated that he would cross that bridge when he came to it.
Gifford began arguing the point with Wallace, pointing out that if Harker wasn’t allowed to testify to what Foster said, that his admissions of lying wouldn’t be before the court. Wallace made it clear he wasn’t going to argue the point. His ruling would stand, pointing out that the rules of evidence didn’t change just because of the nature of the hearing.
“Did the prosecutor interrogate you?”
“You mean Gage, the guy who tried to get me executed? Yeah, he asked me questions. So did the detective.”
“Did you tell them that Foster h
ad admitted he lied?”
Jamison again rose to his feet, but Wallace cut him off. “I’ll allow it because my understanding from Mr. Gage and Detective Jensen was that they never heard anything like that.”
Harker turned to Wallace. “It wasn’t them, Your Honor. It was that young prosecutor.”
Gifford interrupted. “You mean Judge Cleary, the man who testified?”
“Yeah, him. He’s the one I told. He talked to me and I told him.”
Gifford looked over at Jamison. “Did you ever see Clarence Foster at San Quentin Prison? Was he also doing time there?”
“Yeah, Foster was there for a while, but he stayed away from me. He stuck with the brothers, you know.”
“The brothers?”
“Yeah, the black guys. In the Q everybody sticks with their own kind. I stayed with my kind and Foster stayed with his. But if you’re asking did he tell me he lied, yeah, he did.”
Jamison immediately objected on the grounds of hearsay and the answer being nonresponsive to the question, which was only asking about what Harker meant by “brothers.” Wallace leaned back in his chair, holding up his hand for silence. “Why should I let this in, Mr. Gifford? Mr. Foster hasn’t testified, and it is clearly hearsay.”
“Your Honor, Foster hasn’t testified because the prosecutor won’t give him immunity. He’s keeping Foster off the stand and arguing technical objections to keep out evidence of my client’s innocence. This isn’t right.”
“You still haven’t answered my question, Mr. Gifford. I’m sorry, you are going to have to do more for me to consider your client’s statement as to what somebody allegedly said who refuses to testify. This hearing is about new evidence, evidence that couldn’t be produced at your client’s trial. “
Gifford exploded. “This hearing is about justice. Foster lied.”
All of a sudden Harker stood up, shouting, “I’m innocent, goddammit. You’re supposed to listen to me.” Harker’s voice broke and he began to cry. “I’m innocent. I can’t go back. I didn’t do it.”
Wallace sat silently until Harker calmed down. “Objection sustained. Anything more, Mr. Gifford?”
“What’s the point?”
Wallace leaned forward, leveling his gaze on Gifford. “Mr. Gifford, don’t cross the line with me. You knew walking in here that if you were going to be effective with your writ, you were going to have to get in evidence that wasn’t available at your client’s trial, and you weren’t going to get to bend the rules of evidence. I’m not here to allow you to bring in inadmissible evidence and I’m not going to be flexible on that. Mr. Jamison, unless Mr. Gifford has something more you may cross-examine.”
Jamison sat, tapping his pencil on the counsel table. As much as he would like to cross-examine Harker about the crime, he hadn’t said anything. The witnesses who were important were Foster and Christine Farrow. Foster hadn’t testified to anything. The more he questioned Harker, the more Harker would talk about his innocence while reporters furiously scribbled in their notebooks, and the greater chance he would ask a question that would allow Harker to get in what Foster allegedly said. This hearing was all about new evidence, and Harker testifying to self-serving statements about what somebody said wasn’t going to help him. “No questions, Your Honor.”
At lunch, O’Hara and Ernie sat in Jamison’s office chewing on sandwiches from the courthouse cafeteria. As far as Jamison was concerned it was like eating mystery meat wrapped in cardboard, but his investigators didn’t seem to mind. However, Jamison had learned early on that the diet of cops was somewhat similar to goats; they weren’t very discriminating. Finally, O’Hara spoke up about Jamison’s refusal to ask Harker questions. Jamison put his sandwich down and explained that for Gifford to prevail he was going to have to bring in new evidence that wasn’t available at the trial. Evidence from Foster that he lied when he identified Harker would be such evidence, but Foster hadn’t testified and Gifford wasn’t going to be allowed to get in statements he said Foster made without getting them in through Foster. What Gifford had been counting on was that Foster would testify or that Judge Wallace would give him some slack in the rules. Jamison had been counting on the fact that Wallace was a stickler for the rules. As far as Foster was concerned, it wasn’t the prosecutor’s job to allow in evidence that wasn’t otherwise admissible. Gifford was on his own, and if it took Jamison objecting to exculpatory evidence, that was his job.
Ernie listened quietly before asking, “But what if Foster really did tell Harker that he lied? Shouldn’t Judge Wallace consider that?”
O’Hara offered his opinion before Jamison could answer. “Harker’s a convicted murderer and now he’s just trying any bullshit he can think of to get out of the joint. It’s not Matt’s job to help him.”
Jamison didn’t make any excuses for his objections. “Gifford knew that what he was trying to get in shouldn’t be admitted. What he was counting on is the seriousness of the case and that Wallace would cut him some slack. Wallace would do the same thing to me if the shoe was on the other foot. I knew if Foster didn’t testify then Gifford should not be allowed to get in those statements. Wallace was right. The rules don’t change depending on consequences.”
Ernie persisted. “Well, what if Foster testifies?”
“Then Gifford will be able to ask what he wants and impeach Foster. But first he has to get Foster to testify. That’s his job, not mine. Look, Ernie. No judge is going to grant a new trial simply because a defendant comes in and says that a witness lied. The judge is going to have to have clear proof or hear it from that witness, and even then the judge may not believe it. Foster is in the joint. He isn’t going to win any friends by cooperating. It is all about newly discovered evidence. They had their chance to cross-examine Foster at Harker’s trial. I’m not doing anything to Gifford that he wouldn’t do to me if our roles were reversed. Gifford is the one who has to prove his case. So far he hasn’t and I’m not going to help him.”
Ernie asked, “Are you going to give Foster immunity from prosecution? His lawyer isn’t going to let him testify unless he has immunity.”
Jamison shook his head. “Hell no, I’m not going to agree to immunity. First of all, I have no idea what Foster might say and whether we could believe it even if he testified. Second, if I give Foster immunity, then Foster becomes Harker’s witness. I’m not going to do that. There’s no downside for Foster to come in now and start testifying that he lied. What can we do to him? I’m not going to help his lawyer do that. My job is to make sure the conviction is upheld unless I have real evidence that shows it was wrong. This is Sam Gifford’s show, not mine.”
Ernie persisted. “So no matter what Foster has to say, you aren’t going to allow him to say it?”
“It’s not a case of me not allowing Foster to say it. Foster can get up and testify if he wants. I’m not stopping him. But I’m not going to let Gifford get in evidence without Foster testifying.”
“And Foster isn’t going to testify without immunity.” Ernie was obviously disturbed by the strategy.
O’Hara stood up, tired of the discussion. “What difference does it make? Nobody’s going to believe Foster’s statements. It’s all lawyer bullshit, anyway. Harker did it. Matt’s job is to keep him from trying to get out of it. This happens all the time. Twenty, thirty years after the trial, somebody comes in and starts questioning what was long ago decided. It’s done and we need to stick him back in his hole where he belongs.”
After the two investigators left, Jamison sat at his desk, turning to stare out the window. What he had said to Ernie and O’Hara had been legally correct. But there was a difference between legal and moral. The law satisfied itself that legally right was a moral result. What Jamison reflected on as he sat there was not whether he was legally wrong.
Chapter 29
Your Honor, we call Christine Farrow.” Jamison kept his eyes focused on Judge Wallace, knowing that all other eyes were fixating on the young woman being led into the cou
rtroom. She was Gifford’s silver bullet and it was now clear he was not going to keep everyone in suspense. It was also clear that Gifford intended to feed the press so it would draw them in. His goal was to arouse the sympathy of the news media for his client and to create a narrative that District Attorney Bill Gage and his chosen warrior, Matt Jamison, were perpetuating injustice to an innocent man.
Jamison allowed himself a sideways glance as she was sworn. Not much had changed since his interview with her. Perhaps she was a bit thinner. She had more makeup on but it only emphasized her age-sharpened features. She had on a simple blue dress, belted at the waist, and shoes that were probably her only good pair other than work shoes. But one thing came through all of that. Her defense had been her anonymity and her face showed that she was clutching at the prison bars built by her life. This was a woman to whom life had given little measure of kindness and mercy, a very small victim in a very large world. When she took her seat on the witness stand she seemed to shrink even smaller. Jamison felt queasy about what he had to do, knowing the system was going to damage her again. And she was simply an innocent.
“Please state your name.”
“Christine Farrow.” Her voice was so low that it came out as a whisper. Judge Wallace quietly asked her to speak louder and she nodded her understanding, repeating her name. “Christine Farrow.”
Gifford’s demeanor noticeably changed as he began methodically taking Christine back in time.
“Christine, do you recognize the man sitting next to me?” he asked, pointing to Richard Harker.
“No.”
“You don’t know who he is?”
“I know who he is because of his picture on the news but other than that I don’t know who he is—I mean I don’t recognize him.”
Shades of Truth Page 19