by Paul Heald
“Well, Nancy Drew, are you satisfied?”
She just raised her eyebrows at him: What do you think?
* * *
Phil knocked on Arthur’s door when he returned to chambers. He had a vague notion of describing his trip to the courthouse, but mostly he wanted to check in on his friend. Something compelling happened to Arthur’s expression when he tackled a problem, a focus and single-mindedness that was intriguing even when he was headed down the wrong path. He wondered what Averill Lee Jefferson was writing on his friend’s face.
“Hey.”
Arthur was sorting through several piles of paper scattered over his desk. He had devoured the thick case file in less than two hours. “Hey,” he responded automatically.
“Did you skip lunch?”
“Yeah.” He looked up, briefly made eye contact and then glanced out the window. “What’s up?”
“Oh, more twists and turns in the Bastaigne affair,” Phil confided. “Carolyn wasn’t wearing nylons when she fell.”
Arthur looked at him without comprehension.
“Means it’s less likely that she slipped.”
“Oh.” He polished his glasses with his shirttail and shook his head. “I’m glad Melanie’s got something to be excited about … but I don’t really care. I love a good mystery, but this habeas shit teaches you that in real life, you always know whodunit. Or at least almost all the time. The only mystery is what happens after.”
“I suppose.” Phil watched his friend carefully. “But how can habeas be a mystery when you get to write the story?”
“Because these fucking cases are impossible,” he replied fiercely. “You want to hear about Jefferson?”
“Sure.” Phil moved two books off a chair and sat down.
“Bottom line: this guy is just fucked.” Arthur gestured to the papers in front of him. “He was a prison guard without any kind of criminal record. In fact, the guy seemed to be some kind of pacifist. All of his redneck relatives talk about him being the peacemaker during hunting trips and family reunions.” He picked up an affidavit. “Great with children too. The whole family used to dump their kids on him. Still would, if you believe this.”
“So what did he do?”
“He picked up an eight-year-old neighbor girl on the way to work and strangled her.”
“God …” He waited for his friend to say more, but Arthur just stared at him. “Any clue as to why?”
“Sort of. His wife was cheating on him and spent the night before the murder with a coworker of his right across the street from their house.”
“Did he rape the girl?”
“Well,” Arthur sighed, “he tied her up, put her in a garbage bag, and dumped her in the woods. Wild dogs ate the lower half of her body, so no one knows.”
“What does he say?”
“He says that he doesn’t remember any of it.”
Phil shook his head incredulously. “Trauma-induced amnesia? Good luck with that.”
“Oh, it’s way worse than that.” Arthur picked up a file and gestured with it. “According to the psychologist’s report, this guy was always pretty slow, barely graduated from high school, but when he was thirteen, his parents got worried that he wasn’t maturing as quickly as his cousins, so they took him to this doctor—now in prison on drug charges, I might add—and got him put on growth hormones.” He snorted with disgust. “It says that they were worried about the size of his penis.”
“You’ve got to be kidding.” Phil shifted uncomfortably in his chair.
“You can’t make this shit up,” Arthur replied grimly as he put down the report. “Anyway, apparently the doc injected him with these hormones, which another affidavit tells us is highly dangerous and is never done anymore, and Jefferson shoots up to about six foot three inches and turns into the jolly green giant, except that he gets excruciating migraines as a side effect and spends every other night banging his head against the wall in agony.”
“His shrink claims that the hormones turned him into a killer?” Phil asked.
“No”—he shook his head approvingly—“and that makes the report more credible. The psychiatrist just wants to paint a picture of a hulking and alienated high school boy who’s functioning on the margins. He withdraws whenever presented with any kind of conflict and is basically unhappy until a new girl moves into town his senior year and sweeps him off his feet.”
“He can’t have been totally alienated if he had a girlfriend.”
“Well, by the end of high school, he’s kinda doing okay. He’s so big that he’s starting on the football team and even though school pretty much sucks, he’s still got all of his cousins to go hunting and fishing with in the backwoods of north Florida.” He rolled his chair back and forth on the hard plastic mat behind his desk. “By all accounts the girlfriend is pretty slutty, and even though his fundamentalist parents go ballistic, he marries her and does a one-year junior college course to become a prison guard. By their second anniversary, she already regrets the marriage and stays out partying to all hours of the morning, but he still absolutely adores her. She shoves this final fling in his face and he cracks.”
“By killing an innocent little girl?”
“Apparently so … he confessed as soon as he was caught.”
Phil waited for Arthur to finish the story and provide the missing connection, but he was disappointed.
“He called the parents a couple of times, rambling incoherently about knowing where their daughter was,” Arthur explained. “The cops caught him with a phone tap.”
“That’s it?” Nobody deserved the death penalty, Phil thought, but the killers should have to explain why they did what they did. Without an explanation there’s no closure, no path to mercy and forgiveness.
“Oh, that’s much less than it,” Arthur sighed. “With the confession, the trial lasted a day. The jury never saw any evidence of his background. They had no clue who they were sentencing.” He stacked up the papers and put them back in the accordion folder on top of the desk. “I’ve just given you a taste of the psychiatric and character testimony that the jury never heard. He may have been a killer, but everyone agrees that he only spent one morning of his life being anything but a sweet, damaged kid.”
Was Arthur himself swayed by the evidence? He looked disgusted by the course of events at Jefferson’s trial, but he had put aside his qualms to send Gottlieb to the chair. Jefferson, however, was no Gottlieb. Surely in this case, no matter what the law said, his friend would do the right thing. Surely. Their eyes met and Phil almost asked, but he didn’t want to know the answer. He let their shared sense of injustice linger a while before he nodded and left.
Phil walked slowly down the hall and waved at Ms. Stillwater who sat typing at a right angle to her desk. She gave him a curious look as he opened the door and entered his office. He could sense that something was not quite right. He scanned the room and saw that his normally clutter-free desk top was occupied by a large brown file folder. He circled it cautiously and then leaned against his chair and peered downward, as if he were looking down a deep well. On the top of the file was a single Post-it marked “Thomas Watkins.”
XXII.
BAD MOON ON THE RISE
The day that the habeas cases arrived, Phil decided to shake things up. Instead of his usual quick lunch at the Chinese buffet on Court Street, he suggested to his co-clerks that they walk to a friendly soul food restaurant on the edge of town. Arthur and Melanie followed, willing this one time to clog their arteries with mouth-watering chicken and potatoes fried in bacon grease. The sun shone brightly as they crossed the railroad tracks and approached a small cinder block house. A short line of racially mixed laborers and businessmen waited outside the door, but the lunch rush was almost over, and they got a seat in less than fifteen minutes.
“Let me ask you guys a question,” Melanie said as she poked at her coleslaw. “Do you think that the Judge didn’t give me a death case because I’m a woman?”
&
nbsp; “Trust me,” Phil interjected, “you don’t want one.”
“That’s not the point!”
“Maybe he thinks you’re too bloodthirsty.” Phil was trying to make Melanie laugh, but he could see the gears turning in her head. She wanted desperately to make a good impression on the Judge and probably resented being denied the chance to show what she could do with the toughest kind of case. She was the hardest working of the three clerks. He wondered if the Judge appreciated the ridiculous hours that she put in.
“Forget it,” she dropped the subject, “why don’t you tell me what y’all ended up with.”
“Well,” Arthur explained while dissecting a crunchy battered chicken breast, “I’ve got this basically nice, kind of pitiful guy, whose wife was cheating on him. But instead of killing the wife and boyfriend, he snatches an eight-year-old off the street and chokes her to death.”
Melanie turned, incredulous. “That’s his excuse for murdering a kid?”
“Actually, he didn’t make any excuses. He admitted doing it.” Arthur popped a piece of chicken into his mouth. “You know me. I don’t deal in mysteries.”
“Did he take the stand during the trial to explain what was running through his mind when he strangled her?”
“Nope.”
“Did his attorney argue for second degree murder, heat of passion excuse, that sort of thing?”
“Nope.” He took a noisy slurp of Coke through his straw. “The evidence suggested strongly that his actions were deliberate.”
“Then he’s a monster.”
She put down her silverware and shook her head. She was quite charismatic when she was passionate about something, her careful professionalism cast unconsciously aside. “No feeling human being could deliberately kill a child in cold blood … I can understand taking a shot at the wife and lover, but not killing some random kid.”
She looked hard at Arthur. “You’re not trying to find a way to get this guy off, are you?”
“Calm down, I just started my research today.” Arthur took another sip. “I didn’t know you were such a fan of capital punishment.”
“In theory, I’m not,” she explained. “Some of the prisoners I worked with at our law school clinic were bigger victims than the people that they killed, but when it comes to Gottlieb and your new guy, it’s hard for me to be a bleeding heart.”
For a few minutes, the three clerks ate in silence, deep in the middle of a true southern experience: soul-satisfying food in a laid-back neighborhood joint, a friendly buzz of conversation with state-sponsored death for dessert.
A smiling waitress poured them all more drinks and gushed, “You’re welcome, sweetie,” when Arthur thanked her.
“You’re pretty quiet.” Melanie turned her attention to Phil. “What did you get stuck with?”
“Not a monster.” He finished his last bite of chicken and pushed his slaw to the middle of the table. “This guy Watkins was a decorated black army sergeant who got drunk with a friend. In the middle of the night, the friend decides to rob his ancient, half-deaf uncle out in the country somewhere down in rural south Georgia. For God knows what reason, the sergeant goes along. When the uncle opens fire in the dark at them, the sergeant reflexively shoots back and kills the old guy. He felt so bad when he sobered up the next morning that he marched straight down to the sheriff’s office and confessed.”
Phil dunked a french fry in ketchup and sighed. “He then waived his right to counsel and a jury trial. Unfortunately, he was in a super redneck county and got the death sentence, even though he had no prior criminal record. I’ll bet even the Grim Reaper here—”
“Hey!”
“—would agree that this is not the especially nasty sort of murder that the Supreme Court says capital punishment is reserved for. The problem is that it doesn’t look like any of his constitutional rights were ever violated during the course of his arrest and trial.”
Arthur crunched a corner of Texas toast. “So, I’ve got a monster who might get off, and you’ve got a respectable dude who’s got no chance.”
“You wanna trade?”
Arthur thought about the offer for a moment. “Nah, you can keep your guy. I wouldn’t know what to do with someone who wasn’t a nutcase.”
“Shoot, and I was going to offer you Watkins and two drug cases to be named later.”
* * *
Suzanne sat at the kitchen table, picking at her supper and wondering what was wrong with her intuition. She should not have to take a pregnancy test to discern her condition. She should just know, like she had when Maria was conceived. After a few more bites, she took her plate to the sink and wondered if she had been listening for the wrong future. Joy and disaster echoed on different bands of the spectrum. This was not like before. Despite her appreciation of Arthur’s wit and kindness to Maria, she had trouble seeing him as a husband. He was too immature, too moody, too focused on his own goals, all of which destined him for a life in Washington instead of Clarkeston.
She stared at the unopened home pregnancy test on the table and slipped it into her purse. Taking the test when Arthur got home had seemed a good idea at first, but now she hesitated. Before she dealt with his reaction, she needed to determine her own. Maybe a hypothetical talk about pregnancy was a good interim step. She was considering how to broach the subject when she heard the front door slam and Arthur’s heavy footsteps echo down the hall.
“You want some leftovers?” She opened up the oven and gestured to two small pieces of cod. “I’ve got some tater tots too that Maria didn’t finish.”
He gave her a kiss and sat down at the table. “Sure. That’d be great.”
She fixed him a plate and slid a bottle of ketchup and a cold beer alongside it. “There you go.”
She sat down across from him. “Now, tell me about your day, and then let me ask you a question.”
He spoke and her face clouded as he summarized the facts of the Jefferson case. The victim had not been much older than Maria. Why had he attacked this child instead of his wife and her lover? She stared at him with a mixture of sympathy and distaste. “So, this is how you’re going to spend your time over the next week?”
“The legal issues are pretty straightforward, so it shouldn’t be too bad.” He shrugged and popped a tater tot into his mouth.
Did he owe his cool nerves to bravado or simply a poor memory of the Gottlieb case? “I don’t know how you can just stick to the issues when you’re dealing with a child murderer, but that’s your job, I guess.” She reached over and took a sip of his beer. “In a way, this guy sounds worse than Gottlieb.”
“What do you mean? He only committed one crime in his whole life.”
“Yeah, but what a crime! Can you imagine the terror that little girl felt when he started to choke her?” She peeled the label from the beer bottle with a brittle intensity. “At least Gottlieb knocked most of his victims over the head when they weren’t looking.” The wet paper ripped and she looked up. “I’m not saying we should give Gottlieb a medal or something, but can you even begin to understand how Jefferson could have done such a horrible thing?”
“God! Do you really wish I had that vivid an imagination?” He got up, put his plate in the sink, and ceded the remains of his beer to her. “Well, to change this delightful, uplifting subject, what’s your question?”
“Huh?” She tossed the beer label in the wastebasket. The kitchen felt polluted, and she had no desire to talk about anything personal. “Later. It’s not urgent right now.”
* * *
Later that evening, on the way upstairs, Arthur peeped through the door of the television room and saw Maria curled up on the sofa with her favorite blanket and a circle of talking animals. The three smallest were sick, and a doctor Bear and nurse Fox consoled the mother Bunny worried about her sick ones. The doctor was not sure what was wrong, but nonetheless prescribed painful injections of medicine to his patients. The victims squealed and the doctor comforted them in as deep a voice as th
e little girl could muster. Arthur tried to imagine what it would be like if one day Maria did not come home from school. She saw him as he stood in the doorway and put a finger to her lips and cradled her arms to show that the sick animals were sleeping. He smiled and put a finger to his lips in return and then trudged up the stairs to his bedroom, numb to what lay before him the next day.
* * *
By eleven thirty in the morning, he felt like the nation’s expert on when the failure to introduce mitigating evidence constituted ineffective assistance of counsel. It was a toss-up what was more disgusting in the cases he read, the grisly details of the murders or the grossness of the errors committed by the attorneys and judges in the trials. The precedential cases were an education on how not to conduct the penalty phase of a capital case. He only noticed toward the end of his reading that all the cases involved errors made by the defendant’s attorney at trial and not errors made by habeas counsel years later.
“What’s the word on your guy?” Phil asked as he emerged from his office to join Arthur in the library.
“Well, as far as I can tell, a minimally competent attorney would have pushed for admission of relevant evidence about Jefferson’s background.” He leaned back in his chair and looked up at his friend. “And now that I’ve read what the jury never saw, it looks pretty damn relevant. Lots of courts have held that work records, medical and psychological histories, and other proof of good character have to be admitted to help the jury with sentencing. There’s no doubt that Jefferson’s trial counsel was constitutionally defective.”
“So,” Phil said as he sat down and pushed away enough books to create a space for his file folder and legal pad, “his main problem is the failure of the patent attorney to complain about those errors when he filed the first habeas petition.”
“Right, that was the chance to point out the errors made at trial. In order for Jefferson to get a new sentencing hearing, he needs a case that condemns the incompetence of his first habeas attorney.” Phil nodded attentively, sunlight reflecting off the reading glasses he sometimes wore. They sat comfortably in leather-covered chairs, dressed in their best wool suits. They were both only twenty-four years old.