“If this court does what Mr. Gifford is asking it to do, the consequence is that Richard Harker may eventually walk out the prison door, having escaped responsibility for a crime that is beyond moral comprehension because of the outrage of the system not respecting its own finality. There is a reason that to overturn a verdict in a case like this that a court has to have serious concerns about the integrity of the conviction, and those concerns have to be based on new evidence, credible evidence. A jury’s verdict is entitled to be honored and not constantly attacked without some showing there is a reasonable likelihood that a jury would have reached a different verdict. This isn’t new evidence, Your Honor. This is a carnival stunt cruelly distorting the mind of a tortured woman and this court can have no confidence in its integrity under the law of this state.
“What Mr. Gifford is asking you to do is to take evidence that has no legal value and trump a verdict rendered years ago after a jury heard all the evidence and all the testimony. Mr. Foster’s testimony alone was sufficient to uphold the verdict of guilt. We know Richard Sample didn’t do this so what’s left? There should be justice for Lisa Farrow. There was justice for Lisa Farrow.
“I feel great compassion for her daughter but at this point she is being asked to go over what she saw when she was three years old. What adult even remembers what they did at five years of age, let alone three? Now she is being asked to revisit that time of her life and she is being made insecure about what she did and said then.
“I remind the court that a jury heard her testify. A jury understood that she was a small child. The defense attorney argued that because of her age a jury should be very concerned about relying on her. All of that was considered at a time when these events were unfortunately fresh in her memory. She was examined by a very capable lawyer for Mr. Harker. That is the way our system works. That young woman is again being made a victim here because of the guilt that she is being forced to carry. This court should do the right thing and rely on the law, not emotion and pleas of uncertainty. This court has the confidence of the verdict of twelve people who decided guilt in this case beyond a reasonable doubt. It should have been over almost thirty years ago. It should definitely be over now. Deny the writ of habeas corpus that asks the court to grant a new trial, Your Honor. That is the right thing to do under the law.”
Judge Wallace rocked back and forth in his high-backed black leather chair, the creaking under the weight of his bulk resonating in the courtroom as he looked over both counsels at the back wall of his courtroom. He had been a young lawyer when this case happened and now this same case was in his hands. He could feel his chin resting on his chest as he moved his gaze over the cluttered top of his bench. The sounds of the courtroom, the presence of other people, all was lost to him as he considered the moment. He knew he could recess and be given time to think about it. But like most judges, he had let the issues and the facts slowly resolve in his mind as he waited for the end of the case. There were cases where he had to reflect in the quiet of his office and in his study at home. But those cases generally involved issues of policy or complex factual or legal issues. And then there were sentencing cases where he had to carefully consider what was right with the full weight of his discretion bearing down on him as his responsibility. The issue here wasn’t so much the right thing to do, it was the consequence of doing the right thing. The law and conscience were not always pushing in the same direction.
Wallace pulled off his reading glasses and let them drop on the bench, the sound much louder in the silent courtroom where everyone’s eyes were on him. He rubbed his face, thinking about the fact people often forgot that in the justice system, not even the United States Supreme Court could overrule the reasoned discretion of a single trial judge. And now that discretion rested with him. He could hear himself breathing. It was always easy for the public or the press to decide what the right decision was. They didn’t have to make it. As he considered what he was about to say he realized only another judge would know how he felt at a moment like this. It was far more difficult being a judge than people understood. People didn’t stand up for you when you walked into court, they stood up to acknowledge the responsibility you had. You internalized decisions that other people couldn’t make. You had to be decisive. The worst sin for a person in a black robe was indecision. The second worst sin was showing it. He had already spent his time lying awake listening to his wife’s steady breathing beside him as he considered this case, his thoughts moving back and forth as he looked to find the thread of logic that would guide him, allowing him to do the best he could and always praying he was right.
The silence waiting for the judge’s decision seemed to fill the courtroom with its own sound, shuffling feet and rustling paper, but Wallace heard none of it. He had closed his ears to everything except the sound of his own thoughts. Finally, he raised his head, his rumbling voice sounding even more gravelly than usual as emotion tinged it. “The law of this state is clearly expressed by our supreme court where new evidence or arguments are raised involving the guilt or innocence of a person who stands convicted of a crime. It isn’t sufficient that the evidence raised in a habeas petition might weaken the prosecution case in a new trial or make the decision more difficult for a judge or a jury. The law is that a criminal conviction can only be successfully attacked if there is new evidence and that new evidence casts fundamental doubt on the accuracy and reliability of the proceedings. Our high court has said that the new evidence, if it has credibility, must undermine the entire prosecution case and point unerringly to innocence or reduced culpability.
“Mr. Gifford has claimed that Clarence Foster was lying. If that was so, it is reasonably probable that it might have affected the outcome of the defendant’s trial. However, neither Mr. Foster nor any witness produced by the defense has established that Foster was lying. Yes, there is innuendo and implication, but all of that was before the jury when this case was tried.
“As for the testimony of Christine Farrow, I’m very troubled by this. Any caring person should have compassion for this young woman and the destruction this crime caused to her life. And now she is back in court with no end to her understandable anguish. The law of this state with respect to hypnosis is clear and it wasn’t followed. Yes, I let it come in because of the gravity of the consequences in this case and because I personally needed to have confidence that I had considered everything. But beyond that, admissible or not, I have no confidence in her change of testimony as to identity. Her original statements were near the time of the crime. She knew the difference between Harker and Sample even then. There is no evidence she was lying as a child and no evidence that her testimony then was the consequence of inappropriate influence. Even now as an adult the reason for her recanted identification undermines it. It is the product of an understandably troubled mind, rendering it far from reliable. If I were to grant a new trial based on the recantation by Christine Farrow, I don’t believe it would be admissible in a new trial. And even if it was admitted, I don’t think it is credible. Even if Christine had not testified in the original trial, there would still be Foster and the neighbors who identified Harker. And even though Harker and Sample look very similar to one another and Sample could have been mistaken for Harker, the weight of the evidence is that Sample wasn’t there and Christine could not have identified Sample because he wasn’t there. Therefore, that further undermines the validity of her statements under hypnosis and her recantation of her identification of Richard Harker.”
Wallace’s voice grew stronger. “These are always difficult decisions and this one is especially so, but I have carefully weighed the evidence presented. The law requires finality unless it is clear that finality creates an injustice. I find no reasonable basis to conclude under the law that injustice was done. The writ is denied. The defendant, Richard Harker, is remanded to the custody of the sheriff for transport back to the state prison facility at San Quentin.” Without waiting for any further comment, Wallace slammed his gav
el on the bench and walked out of the courtroom.
That was when all hell broke loose. Harker stood up and started screaming he was innocent. He was flailing his arms and pulling on the chain that bound his legs to the eye bolt under the table. He hit Gifford, but it was unclear if it was intentional or simply an accident. Two bailiffs grabbed Harker and pulled him down while other bailiffs came in from adjoining courtrooms and tried to control him. Finally, a deputy fired a Taser, which hit him squarely in the chest, disabling him with a significant electric shock until they could get him restrained. But the physical reaction was not what would long remain in people’s minds. It was Harker screaming that he was innocent, crying and sobbing. Nobody would soon forget that sound as bailiffs hurried everyone out of the courtroom except the lawyers.
Jamison and O’Hara watched as Harker was taken from the courtroom, his feet dragging on the floor as he continued to thrash as much as he could in the chains wrapped around his stomach and attached to his wrists and legs. O’Hara was muttering, “Son of a bitch, son of a bitch,” over and over. It wasn’t because of the scene. It was because that’s what he thought of Harker.
Chapter 37
As Jamison walked down the hall of the district attorney’s office, deputy DAs came out of their offices to congratulate him. Apparently, Helen the receptionist, had announced the decision before he had walked out of the courtroom. After being totally unavailable for the last several weeks, the district attorney himself was standing in the doorway of his office waiting as Jamison came down the long hallway. Bill Gage extended his hand. “I knew you’d get that bastard. Maybe now we can put it all behind us. Good job.” Jamison nodded in response and shook Gage’s hand before going into his own office and surveying the pile of paper that had accumulated. O’Hara wasn’t far behind.
Jamison slumped in his chair, the courtroom image fresh in his mind. He’d seen this before, when guilty men made one last desperate wail as the reality of their situation settled on them, claiming innocence to all who would listen. No matter what he thought of the defendant, it was always unsettling. Jamison was sure that Judge Wallace was legally right. In the back of his mind, however, he knew that the right result under the law wasn’t always the right result in the eyes of men.
O’Hara plopped in a chair in front of Jamison’s desk, an unlit cigar firmly clinched between his teeth. His eyes seemed to bore right though Jamison. It was the same look he gave a man as he decided how to interrogate him. O’Hara had an almost unerring instinct for what a man was thinking. “Okay, Harker made a lot of noise. It’s never easy to watch but he got what he deserved. It’s always the same way. Twenty years after the fact they never look like the dirtbag they were when they committed whatever brutal goddamn act they did. You know how many men I’ve sent to prison who claim they’re innocent, who still claim they’re innocent, and every one of those sons of bitches were guilty as sin. So is Harker. Your problem is you think too much. I told you that before. So, get your head out of your ass, Matt. You just put one of the worst criminals I’ve ever seen back in his hole and slammed the door shut for a final time. Don’t sit here thinking about whether you did the right thing. I know you. I know what you’re thinking. Fuck him. Walk away. You’re a hero.”
It was always easier for O’Hara, Matt thought. He saw the world in black-and-white, right and wrong. There were no shades of gray clouding his judgment or his confidence in his judgment. Jamison nodded. It was a process. He had followed the law. Jamison looked toward the door when Ernie tapped on the edge of the doorway. “You better hear this.” From the look on his face, it was obvious that whatever it was, it wasn’t good.
“Hear what?”
“Harker’s dead.”
Jamison came halfway out of his chair. “What do you mean dead? We just saw him less than thirty minutes ago.” Jamison stopped talking, waiting for Ernie to explain.
“I guess when he got hit with that Taser nobody knew he had some kind of heart problem. At least that’s what they’re saying they think happened. The jail sergeant called me. Harker started gasping for breath as they took him back to his cell. I guess he was dead before he hit the floor. The bailiffs worked on him, but his eyes just rolled back in his head. Figured you needed to know as soon as possible. Press is going to be all over this.”
“Well, shit.” O’Hara threw his head back, rocking his chair. “Son of a bitch will finally be getting what he deserves. All we could do is sentence him to life. Couldn’t send him to hell. Now he’s there.”
Jamison took a deep breath. “Does Gage know?”
Ernie shook his head. “I don’t think so. If he does, I didn’t tell him, but I guess the sheriff could’ve called him.”
Jamison didn’t wait for Gage’s secretary to buzz him into Gage’s office. He walked through the door as he knocked. Gage was sitting behind his desk, leaning back in his chair and talking on the phone. He glanced at Jamison with momentary irritation and then smiled, hanging up the phone. “For a man who’s just won a major victory in court you don’t look very happy. I heard about Harker’s outburst but you and I both know that shit happens. You shouldn’t let it get to you.” He waved Jamison over to a chair.
As he sat down, Jamison said abruptly, “I just got word that Harker’s dead. Apparently, he collapsed as they put him back in his cell. I thought you should know.” Gage buzzed his secretary to get the sheriff and found out that the sheriff had left a message to call while he was on the phone.
Gage blew out a stream of air, stood up, and walked to the large window in his office. He didn’t ask any questions requesting more information about what happened. “You know he was a rotten bastard. What he did to that poor woman was the worst thing I ever saw. He deserved to be executed and the judge let him live. As far as I’m concerned, he’s been on borrowed time ever since. I can’t feel sorry for him. I feel sorry for that girl.” Gage seemed to be searching for a word.
Jamison filled it in. “Christine.”
“Right, Christine. She didn’t deserve what happened to her. Harker destroyed her life too.” Gage turned his back to the window and faced Jamison. “It’s almost like a generational case, your father, me, you. Well now it’s finally over. You can let it go and so can I.” Gage moved around his desk and sat back down, appearing to consider his words before he spoke again, the news of Harker’s death passing from him like a momentary cloudburst. “That was the state party chairman on the phone. Looks like I’ll be the Democratic nominee for attorney general. Everybody else is getting pushed out. That means two things. First, I’ll be the next attorney general of this state, and second, this chair is going to be vacant.” Gage let the implication hang in the air. “You’re not still pissed about me not telling you about your old man, are you?”
“No, but you should have told me, Bill.”
“Maybe. But it seemed like the right move at the time. You need to learn that if you sit in this chair you don’t just make policy decisions, you also make political decisions—do what’s best to get done what needs to be done. You are going to piss people off.” Gage’s eyes narrowed, squinting at Jamison. “That is if you plan on sitting in this chair.” He kept his hands resting on the desk and raised his index finger, pointing at Jamison. “Of course, the next man sitting in this chair will be here because I put him here.” Gage didn’t say anything else for a few seconds, although the silence seemed interminable. “You did a good job. Take it for what it is. All these things add up in your career. Forget about Harker. I already have.” Gage reached for his phone. The conversation was over. “Remember what I said, if you want to sit in this chair.”
Chapter 38
The next morning Paul Carter was waiting in the reception area when Jamison walked through the front door of the office. “I want to talk to you—in your office.”
They walked the hallway to Jamison’s office. Jamison closed the door as Carter settled in a chair. The file he had received from Jamison, his father’s file, was in Carter’s han
ds. Jamison moved behind his desk and waited.
Carter was definitely uncomfortable. He kept fidgeting in his chair while Jamison stared at him. Finally. Jamison said, “Well? You obviously have something to say that you don’t want to tell me. What is it?”
“I heard about what happened yesterday with Harker in court and then what happened at the jail. Look, Matt, I’m just trying to do my job. It doesn’t mean I always like the decisions I have to make.”
“I understand that. Being a public defender is a tough job. You don’t get to pick your clients. I know that.”
Carter’s face showed indecision. “I need your word that you’ll never tell anyone what I’m going to say. I need your word.” Jamison nodded. Carter said, “I want you to say it.”
“Okay, you have my word. What is it?”
“I don’t think Harker was guilty.”
“That’s it? You going to tell me why?”
“You going to give Foster immunity?”
“I told you before, not without knowing what he’s going to say. You’re holding that file. Is that supposed to be the answer? Does that file contain material that shows Harker wasn’t guilty?” Jamison’s voice grew louder. “You come in here waving my father’s file around. Are you telling me my father’s file shows that Harker wasn’t guilty?”
“Not exactly.”
“Then what, exactly?”
“I don’t think Harker got a fair trial.”
“Is that because you have evidence he didn’t do it or because you think maybe there’s evidence that would affect his trial? Paul, I’m not going to run around reacting to this when you’re giving me nothing.”
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