by Paul Heald
“Did you learn to sing by watching MTV?” she yelled when two sopranos made the same mistake a third time. When the altos giggled nervously, everyone was chewed out for their lack of concentration. In retrospect the scene seemed somewhat contrived, but her anger had been effective. The group perceived no evil motive—just honest passion. She cared about the music, and they refocused and sang with previously unmustered intensity for the last thirty minutes of practice.
When they got to the tavern and found Phil, Kennedy bought the first pitcher. “I want your expert advice,” he explained as he poured. “The History department is considering making an offer to one of two faculty candidates. The new professor will teach our constitutional law and legal history courses. They’re equal in every way, but one has a PhD from a top-ten grad school but a law degree from a mediocre one, while the other has a PhD from a mediocre program, but a JD from a great law school.” He took a long draught of his beer and wiped a dollop of foam off his beard with the sleeve of his jacket. “Since I spent a year in law school and I’ve got a doctorate, I’m supposed to advise the hiring committee.”
The professor was twenty years older than the two clerks, but his brown eyes twinkled with a boyish enthusiasm. And why not? Arthur thought. Kennedy had a job where big decisions came in discrete, nonthreatening packages, amenable to discussion over a pint of imported beer in a warm bar on chilly winter night.
After Arthur and Phil agreed that the quality of the new hire’s law school degree was most important, they plied the professor with more beer and questioned him. He spoke eloquently about being forty-five and still in love with his wife, about not having won the Pulitzer Prize, and about the occasional student who returned to thank him. He talked about music and feigned annoyance at a buxom junior who seemed to unbutton yet another button every time she met for her tutorial.
While they talked, an almost mystical sense of community enveloped Arthur for the second time that day. Just hours earlier, after the sopranos had stopped scooping and everyone was finally together, they had sung virtuously, transcending pitch and rhythm, eventually finding the pure center of the sound. When the rehearsal ended, they fell completely silent for a moment. The eventual performance two months later no longer mattered because for a brief time they had occupied a place outside themselves, and it was utterly unimportant that no audience had heard. Now, a similar magic threaded its way through the smaller community constituted by Phil, Kennedy, and Arthur. They were not singing as such, but something about the sublime rhythm of their conversation suspended for a moment all of Arthur’s doubts about the existence of God, the communion of saints, the resurrection of the dead, and the life everlasting, even as they talked of basketball, beer, their love lives, and the source of the Judge’s mood swings.
* * *
Suzanne rocked on the porch, arms crossed against the cold as she watched and waited. Do you say something to your lover when you’re only one day late with your period? Do you pile more grief onto a plate that’s already full? Of course, much depended on whether Arthur was just a fun and confidence-building diversion or something much more serious. As she spotted him striding happily up the street to the house, her usually reliable intuition took a leave of absence.
“Oops, I better wipe away the telltale lipstick.” He teased her, rubbing his forearm across his mouth as he climbed up the steps.
“I don’t have to worry about that, do I?”
She stood up and hugged him tight. He nuzzled his face into her hair and assured her that he was incapable of cheating on her.
“Now, that’s a fine promise to make with Boar’s Head breath and cigarette hair.” She smiled and hoped that he would not notice that her eyes were red.
“Are you okay?” he asked.
She didn’t reply, but clung to him as they entered the warmth of the house, content to linger in the incomplete comfort of his arms.
XXI.
PASS THE CHAMBER POT
In the middle of February, as tiny-petaled phlox bloomed in endless shades of purple, rose, and violet among stalks of early daffodils, the law clerks of the Eleventh Circuit waded knee-deep in gore. The governors of Florida, Alabama, and Georgia had signed more than one hundred execution warrants within a week-long period, and almost every affected prisoner responded by filing a petition for habeas corpus. About one-third of the strongest cases earned stays of execution by state supreme courts willing to monitor their own lower courts rather than watch them be slapped down by the feds. Another third were first-timers, prisoners who had never filed a habeas corpus petition and were entitled under an informal rule of the Eleventh Circuit to an automatic stay of execution and a close look at the merits of their cases. That left thirty or so death row inmates on the fast track. With twelve judges comprising the circuit and three clerks per judge, virtually every clerk would have a case to call his or her own.
As soon as Arthur entered his office, he saw a thick file sitting ominously on his desk. A yellow sticky note bearing Ms. Stillwater’s spidery handwriting declared the subject of the file to be “Averill Lee Jefferson.” The name did not ring a bell. He turned his back on his desk and looked out the window at the dandelions polluting the courthouse lawn. Perhaps someone should take a scythe to them.
He spent the first half of the morning reading the pleadings in the Jefferson case and then walked into the library where he found Phil and Melanie.
“You know how most petitioners make at least a dozen whacko claims?” He sat down and thumped the top of the case file. “I’ve got a petition that makes only two arguments.”
“Maybe it’s good strategy,” Phil replied. “If you raise too many issues, the best argument gets lost in the clutter and you piss off the clerk who has to sort through the garbage looking for it.”
“What’s the gist of it?” Melanie asked.
“Well, there’s a plausible Hitchcock claim, arguing that his constitutional right to a fair sentencing hearing was denied by the jury’s failure to hear important mitigating evidence. Have you heard of Hitchcock?” His co-clerks both shook their heads. Melanie seemed curious, but Phil wore a scowl of disapproval at his friend’s academic approach to life and death issues.
“It’s not complicated,” Arthur explained. “The Supreme Court established in a series of opinions ending with Hitchcock v. Florida that a trial judge can’t exclude evidence offered by a convicted murderer to show he deserves life in prison rather than the death penalty. A defendant gets to show that he was or is a drug addict, a drunk, a victim of child abuse, a good husband, a model prisoner, a regular churchgoer, or anything else that might make him look better.”
“Before you get into that,” Melanie interjected eagerly, “have you checked whether this is his first or second petition? You remember Gottlieb.”
“Yup. I checked.” He nodded. “Unfortunately for Mr. Jefferson, this is not the first habeas petition he’s filed. So, his Hitchcock claim, which looks really strong on merits, is in serious trouble. He should have raised it in his first habeas go-round, so he’s barred now from complaining about all the evidence the jury should have seen.” He flipped back through the documents to a copy of the petition filed on Jefferson’s behalf two years earlier just to make sure that there was no mention of Hitchcock. “By the way, his first petition was truly a piece of shit. And check out the signature line on the last page …”
Phil was reluctant to play along, but he scanned the last page along with Melanie. “Well, I see the attorney’s name, followed by his state bar number and … oh fuck … his patent bar number.”
“Welcome to criminal justice in the South!” Arthur whistled. “Nothing like asking a patent attorney to practice criminal law! The local bar’s pro bono guy was really on the ball making assignments that day.”
“So, Jefferson might die because a charity attorney couldn’t recognize that a blatant error was committed when he was sentenced to death?” Phil stared hard at his friend, daring him to approve of such a har
sh result even in theory.
“That’s exactly why the Florida legislature now funds a special office of attorneys in Tallahassee to represent death row inmates in habeas cases,” Melanie explained as she took the Jefferson petition from Arthur. “Look at this: his current attorney comes from that office, but it didn’t exist at the time of his first petition.” She pushed the papers back in front of him. “I’ll bet I can predict his second claim.”
He smiled. Phil might be his best friend in the chambers, but Melanie understood the perverse excitement of working through the maze of habeas corpus. “Go for it.”
She cleared her throat. “I’ll bet he argues that his first habeas counsel was incompetent, thereby denying his constitutional right to effective counsel.”
“You are a prophetess!” Arthur reverenced her briefly with both arms outstretched like a bleacher bum worshiping Andre Dawson at Wrigley Field. “Under the Sixth Amendment right to counsel, having a totally incompetent attorney is the functional equivalent of having no counsel at all. So, I’ve got to look at all the evidence after all.”
Phil opened his mouth as if to say something, but did nothing more than shake his head and turn back to his work.
Arthur brought the file back to his office and looked at the petition again. According to its concluding paragraph, a three-inch stack of affidavits from friends, family, and clergy, along with reports from psychological and medical experts, would demonstrate that even though Averill Lee Johnson had intentionally murdered an eight-year-old girl, he did not deserve to die.
* * *
“Hello, Mr. Dumont? This is Margaret Hill again, from Aetna Insurance.” Melanie spoke brightly into her living room phone. “I’m sorry to keep bothering you, but I’ve got one more question that I’d like to ask you.”
“No, you’re not.”
“Excuse me?”
“Maybe your name is Margaret, but you’re not with Aetna.” His rumbling voice relished revealing the lie. “The Judge told me a while ago that the federal government self-insures. No insurance company has any policy on the courthouse. Who are you anyway? A private investigator?”
Melanie froze. Although the reporter couldn’t see her, she felt completely exposed. As much as she wanted to know whether Carolyn was wearing a slippery pair of nylons on the night of her death, she was unprepared to impersonate a private eye. She gripped the phone hard and slammed down the receiver.
“Shit,” she said through clenched teeth. “Shit, shit, shit, shit.”
She reminded herself that the reporter had no way to trace her identity and began to calm down. She was safe, but no closer to learning whether Carolyn was wearing hose when she slipped. If the dead clerk had been, an accident was much more plausible, but if she’d been barefoot, then there were a lot more questions that needed to be asked. Suddenly, she realized that Dumont was not the best source of information on what Carolyn Bastaigne was wearing at the time of her death. Surely, the coroner’s official report would provide the answer.
But what if someone in the courthouse noticed her request for the report and told the Judge? He might put two and two together and demand to know why Melanie was snooping around. He might even fire her.
The next day, she chanced upon a solution to the dilemma as she walked to lunch with Phil.
“I can’t believe I’m so stupid!” She slapped herself on the forehead.
“I can’t either.” Phil grinned. “Maybe there was a lot of lead paint in your house growing up.”
She bumped his shoulder and propelled him against the brick wall of a store.
“Look, I need to tell you something. I called Sydney Dumont again. I wanted to see if Carolyn was wearing nylons on the night she fell. If she did, it was more likely a slip, right?” She glided next to him and took his arm while she spoke. Sometimes the lack of romantic spark was a good thing. She had never had a brother to lean on before.
She continued. “Imagine Carolyn getting really upset after the Judge tells her that he’s called Cravath. She races out of the chambers, desperate just to get away from the scene. Maybe she even pounds on the elevator button, but it’s too slow and she just has to get out, so she impulsively takes the stairs instead.”
“Well, it’s a better theory than Ms. Stillwater’s chocolate bar. What did Dumont say?” His stride matched hers perfectly as they walked down the sidewalk. “And why do you think you’re stupid?”
“Well, Dumont told me nothing and accused me of impersonating an insurance agent.”
“Fuck!” Phil stopped and turned to her, eyes wide with concern.
“Don’t panic,” she reassured him. “He said he talked to the Judge—I have no idea why—and knows that the building is not insured. I just freaked out and hung up. He has no clue who I am”
“You know your little obsession is going to get you in trouble.”
“Not if I’m more careful.” She led him down the street again. “Anyway, I thought about getting the autopsy report. After all, it’s a public document, but everybody knows everybody in the courthouse, and I was afraid it would get back to the judge.”
“You can’t take that chance.”
“But I haven’t been thinking straight,” she explained as she stopped him on the sidewalk. “There should be two documents. First, we already know about the closed inquest held by the feds. That was meant to determine the cause of death and whether any crime had likely been committed. I’d love to read that document, but even if there’s a copy in the federal courthouse, we don’t dare ask to see it.”
“Damn right,” Phil confirmed.
“The inquest, however, must have had access to a doctor’s autopsy of the body. That would have been conducted by a local official. I doubt the feds have their own doctors examining all dead federal employees. Carolyn died here in Clarkeston and was undoubtedly carted off to a local funeral home, and I guarantee some local official examined her and filed an autopsy report. The report may have been part of the evidence submitted at the inquest, but I’ll bet it was also filed in the local coroner’s office.”
Phil sighed and started trudging toward their lunch destination. “You might be right, but I bet you still have to show some identification to the county folks to look at the coroner’s files.”
“Well, we’ll just have to find out.” She offered him her biggest smile. “Because after lunch, you’re coming with me.”
When they had finished eating, they walked across a small urban park to the county courthouse. Compared to its federal counterpart, the red brick building looked quaint and a bit forlorn. It sat in the middle of a quiet tree-lined square surrounded by park benches and flower beds. A memorial obelisk to the Confederate fallen split the sidewalk on its way to the courthouse steps. They strode cautiously up the stairs, determined to retreat if they saw anyone they knew.
They made it to the Coroner’s Office on the third floor without seeing anyone at all. A middle-aged woman looked up from a novel as they entered.
“Hello!” Melanie said cheerfully. “What do we have to do to see an autopsy report?”
“One filed recently?”
Melanie shook her head.
“Because sometimes Fred will hold on to them for a while after an inquest, but any one older than six months will be in the back room.” She led them a dozen paces into a room occupied by two wooden chairs, a small table and three large metal filing cabinets. “Which one do you want?”
“Bastaigne, Carolyn.” Melanie spelled the last name.
“Don’t remember that one, but I’ve only been here two years.”
“It should be about five years old. I don’t know the exact date.”
“It doesn’t matter. We’ve got an alphabetical cross-index.” She flipped through the top drawer of the second cabinet. “Here you go. You gotta keep it in this room while you read it. I’ll be happy to make a photocopy of it and mail it to you later if you want.”
“Thanks!”
“And here”—the woman put t
he file on the table and pointed to the cover—“please sign your name and date it right here.” She handed a pen to Melanie and waited.
Concluding that the chance of discovery by the Judge was minimal, Melanie signed and waited for the woman to leave. She had not yet opened the folder, but already the visit was bearing fruit, for in clear black letters, right above her newly entered name was the signature of Jennifer Huffman, Carolyn’s best friend in the courthouse. The date was six weeks after the death and just two days after the report was filed.
“Well, what do you know?” Phil said. “I wonder why Carolyn’s friend was so interested in seeing the report?”
“Good question.”
“I had a classmate die in college … I must say that it never occurred to me to make a trip to the county courthouse to read any documentation.”
“Same here.” Melanie traced the signature slowly with her fingertips. “I mean, I’d never think to do it either.”
“Maybe she was just playing detective. Maybe she thought the death looked funny and was checking things out like we are.” He reached for the folder, but she grabbed it first.
“Maybe.” Melanie stared at it and pushed back a strand of hair out of her eyes. “Let’s see what’s inside.”
The report itself was dry and filled with technical medical jargon but it was not hard to understand that Carolyn had died of massive brain trauma cause by her fall. She had not been under the influence of drugs or alcohol. Although forty pounds overweight, she was otherwise in perfect health at the time of her death. An appendix to the report listed the personal effects found on the body: two hair clips, a pair of glasses (broken), one dental retainer, one necklace, two earrings, a dress, a bra, a slip, and underwear.
“No nylons.” Phil said.
“Nope.”
“Is that unusual? I mean, don’t woman normally wear nylons to work?”
“It depends. If the dress were long enough, she might not wear any. And I’ve seen her shoes—Ms. Stillwater’s got them stored in a box in the photocopy room with her stapler and some sticky pads. Carolyn could have worn them without socks or nylons.” She laid the report down on the table and chewed meditatively on her pen.