The Last Plea Bargain

by Randy Singer

  I could hear Brandywine’s mother gasp at my suggested sentence. Brandywine would be nearly forty years old by the time he got out. I would have asked for more if I thought Judge Whitaker would go for it.

  When Rowena rose to argue, she reminded the court that Brandywine had no priors. He had taken full responsibility for his crimes and apologized to the court. “If it were left to Ms. Brock, every convicted felon would die in prison.” It was a cheap shot, but I didn’t give her the satisfaction of a response.

  “Let me address the elephant in the room,” Rowena continued. “No defendant has had the guts to come into a court in Milton County in the past two weeks and plead guilty to anything. None of my clients have done it. Everybody in this county knows that plea bargains and guilty pleas have become a thing of the past. Why? Because men like Mr. Brandywine, who are willing to take responsibility for their crimes, end up being killed within thirty-six hours of their release. As the court considers its sentence, I think the court should take into account the fact that Mr. Brandywine pleaded guilty today because it was the right thing to do, even though he is risking his life to do it.”

  Judge Whitaker gave me a chance for rebuttal, and I went off. “Judge, I cannot believe what I just heard. This defendant—Jimmy Brandywine—just pleaded guilty to leering over hundreds of images of young girls on his computer, and now his attorney wants the court to treat him like some kind of hero? Ms. Guilford can’t be serious! Just because the defendants in this county have entered a conspiracy to backlog the system doesn’t mean we should reward somebody involved in child pornography.”

  I calmed down. Took a breath. “Each one of these pictures is a separate crime. Ms. Guilford is right; I do want Your Honor to keep this man in jail for the rest of his life. Because this man is evil. And there’s no guarantee that a man as selfish and exploitative as him will not prey on young girls again the day he gets out. But I know a life sentence isn’t possible. Eight years is a bargain, Your Honor. Anything less is an insult to the lives of these young victims.”

  When I sat down, Judge Whitaker made a face as if he didn’t get paid enough to make these kinds of decisions. “Ms. Brock makes some very good points,” he said. “And as the DA’s office knows, this court has been very tough on sex offenders in the past. But Ms. Guilford is also right. This defendant had a clean record before his arrest. And there are no allegations that he distributed child pornography or produced child pornography. As Ms. Guilford also suggests, this court must take into account the overcrowding of our county correction center and give this defendant some credit for coming forward and admitting his guilt. No other defendant has been brave enough to do that in any Milton County courtroom for the past two weeks.”

  Whitaker stopped and made some notes on his yellow legal pad. I felt the hair on the back of my neck bristle. I knew I wasn’t going to like the sentence.

  “As Ms. Brock suggests, the court will require the defendant to register as a sex offender. In addition, the court will impose the eight-year sentence suggested by Ms. Brock but will suspend all but the six months that the defendant has already served. The court will require supervised probation for an additional two years and order payment of five thousand dollars into the Victim Restitution Fund.”

  “Praise God,” I heard Brandywine’s mother say behind me. I considered her comment blasphemous.

  Judge Whitaker banged his gavel, and Guilford thanked the court for its ruling. I shook hands with Rowena, glared at Brandywine, and stalked out of the courtroom.

  Things were out of control in Milton County. I couldn’t remember another child pornography case where the defendant had gotten off so easy. The inmates were now officially running the asylum.

  When I told Masterson about the verdict, he suggested we call the Milton County police and park a vehicle in front of Brandywine’s house for the next few days. I reminded Masterson that Brandywine was a porn addict, not a city dignitary. But I knew Masterson was right. If anything happened to Brandywine, there wouldn’t be another guilty plea in Milton County for months.

  It was two o’clock on Wednesday morning when a phone call woke me out of my Ambien-induced sleep.

  “You don’t have to worry about Brandywine getting off easy,” LA said. “He and his mother just died in a house fire. They say the explosion was set off by a remote-controlled device.”

  I sat up straight in bed and tried to clear the cobwebs out of my head. “I thought they put Brandywine under surveillance.”

  “They did. But the explosive device was apparently planted in the house a couple of days ago.”

  48

  On Thursday night, I went into my dad’s study and riffled through a corner filing cabinet. In the third drawer down, I found the VHS tapes my father’s law partner had used to record the trial of State v. Marshall, which had been broadcast by Court TV. During law school, I had promised myself many times that I would watch the entire thing from gavel to gavel but had never mustered the emotional energy to do so.

  I hooked up an old VCR in the family room, and it took me about twenty minutes to find the section I wanted. Judge Snowden’s rulings had been dissected on appeal and criticized endlessly by Mace James but always upheld by the appellate judges. However, there had been some strong dissents about whether Caleb Tate should have been allowed to call an expert witness to testify about how the cops had supposedly manipulated my father into a faulty identification of Marshall.

  From the beginning, the police had suspected Antoine Marshall. He had been previously arrested for breaking and entering to feed his meth habit. According to Caleb Tate, the cops had planted characteristics of Antoine Marshall in my father’s mind with their suggestive questions: Did the suspect have dreadlocks? Was he African American? Did he appear to be thin and athletic?

  When they showed a lineup to my dad, Marshall was the one person who displayed all of the characteristics seeded in my dad’s brain.

  As she did with the expert on cross-racial identification, Judge Snowden ruled that this testimony about the so-called faulty lineup was inadmissible. However, she did let Tate proffer the testimony outside the presence of the jury to establish a record for appeal. I found the start of the proffered testimony and watched it with an uneasy feeling in the pit of my stomach.

  The expert’s name was Dr. Natalie Rutherford, a diminutive and energetic professor of psychology at the University of Michigan who had published extensively on the issue of creating false memories. She had qualified as an expert in numerous other cases. In one notable trial, she had testified about a psychiatrist who had planted false memories in a patient under hypnosis. That patient came to believe that her priest had repeatedly raped her when she was a young child. But during the investigation for the criminal case, it was discovered that the patient was a virgin. The priest sued the psychiatrist, and Dr. Rutherford testified on behalf of the priest. The jury returned a verdict of $2.5 million.

  Together with her students, Dr. Rutherford had conducted more than one hundred experiments involving over five thousand individuals in an attempt to document how misinformation creates memory distortion. One of her favorite tricks was to superimpose a picture of someone as a child, together with a parent, onto a photo of a place the person had never been. After viewing the image, that person would be asked to describe the experience pictured. Most subjects provided vivid details, remembering nuances about events that had never occurred.

  Rutherford testified that the same phenomenon occurred when individuals tried to recall more-recent events. Our memories, she said, are constructed by combining actual memories with the content of suggestions received from others. Inaccurate memories, formed in part based on inaccurate suggestions from others, would be as compelling and real to a person as accurate memories.

  Rutherford also testified about how we synthesize our memories by recalling certain details accurately and then filling in the blanks with details obtained from others. Once these new details become part of the event, they a
re seared into our memories just as certainly as the details we recalled independently.

  On a theoretical level, even I had to admit that her testimony made sense. I thought about the case of the DC sniper attacks, when a media report had stated that the suspects might have been driving a white van. Immediately afterward, several witnesses at the scenes of several different shootings reported seeing a white van fleeing right after the shootings. When the suspects were eventually apprehended, they were driving a blue sedan.

  Dr. Rutherford’s example was even more memorable. People who had visited Disney World were shown a fake picture with text that described how they shook hands with Bugs Bunny. When they were asked what they remembered about that encounter, most of the subjects remembered hugging Bugs Bunny, and a few remembered touching his ears or tail. Others specifically recalled that Bugs Bunny was holding a carrot at the time.

  Dr. Rutherford smiled, trying hard to win over a skeptical Judge Snowden. “Bugs Bunny is a Warner Brothers cartoon character,” she said. “He would never be allowed to set foot in Disney World.”

  Moving to the case at hand, Rutherford testified that she had carefully reviewed the original lineup shown to my father and the questions that had been asked during the preceding police interview. It was her opinion, based on twenty-six years of studying the phenomenon of creating false memories, that the police had done so with my father. Antoine Marshall was no more likely to have committed the crime than any other person within driving distance of our house that night.

  Judge Snowden listened carefully and then affirmed her earlier ruling that the testimony was inadmissible. “It seems to me that you simply want to use Dr. Rutherford to take the place of the trier of fact and tell the jury why they should or should not put weight on Mr. Brock’s eyewitness account,” Judge Snowden said. “It’s a clever attempt, Mr. Tate, but the court is not going to allow it. It’s no different than your proffered testimony on cross-racial identification.”

  The jury never heard Dr. Rutherford, and at the time I was glad. But now, with the new information about the success my father had enjoyed in Judge Snowden’s courtroom, the Rutherford testimony bothered me. Could she be right? Had my father been unwittingly set up by the cops? And if so, could that mean my mother’s killer was still at large?

  The last twelve years of my life had been defined by an absolute certainty that Antoine Marshall had killed my mom and deserved to die for it. So much of my energy and time had been spent trying to make him pay for what he had done. I couldn’t allow myself to doubt that now.

  My father had to be right. Even if he did have uncanny success in front of Judge Snowden. Even if, God forbid, he was blackmailing her somehow, there was no motive for him to try to put an innocent man to death. My father couldn’t be wrong about this.

  Could he?

  49

  I had never understood how my father could continue to be a defense lawyer even after my mother’s death. On Friday morning, sitting in traffic on my way to work, I considered that question again in a different light. Things that appeared innocent and even noble before now seemed more foreboding if Caleb Tate was telling the truth.

  In the first few days after talking with Tate, I had refused to even consider the possibility that my father might have been corrupt. Even after I checked the results of his cases, I still chose to believe that there must be some innocent explanation. But as the week progressed, I found myself reliving past events, looking at them through the prism of this new information. And I began to wonder if my dad might have been keeping some very dark secrets.

  I remembered, for example, a particularly poignant conversation at a P. F. Chang’s during my junior year of college. I had just ordered the chicken dumplings. My father was eating beef fried rice. My brother was there as well. I was home for winter break, and I had decided to go to law school to become a prosecutor.

  “How can you still be a defense lawyer after what happened to Mom?” I asked my dad.

  Chris grimaced. My dad and I always spoke bluntly with each other, but Chris didn’t like confrontation in the family.

  My dad put his fork down and wiped his mouth. “Good question. And I’m not sure anything I say will convince you that it’s been the right thing to do, but you should at least know that I’ve given it a lot of thought . . .” He hesitated, then added, “. . . and a lot of prayer.

  “Your mother fell in love with me when I was a defense attorney. Even after we were married, she would testify as an expert on both sides of cases. Her biggest thrill was working with me to defend someone who was innocent. So, Jamie, I know you want to honor your mom by being a prosecutor, and I think that’s noble. But I hope you can see that there’s some nobility on the other side as well.”

  “In theory, I see that,” I had said, taking a bite of my food. “But when’s the last time you defended a person who was truly innocent?”

  “Here we go,” Chris said.

  My dad took a bite and started talking, as he always did, before he swallowed. And it was his answer that was tumbling through my mind now. “There’s no such thing as a truly innocent person, Jamie. Evil is part of our nature. Some learn to control the evil impulses. Others don’t. I represent the ones who don’t. But they’re really not that much different from us.”

  “So Antoine Marshall and Chris are basically the same?” I asked. I played it safe and used my brother as the example of innocence, given my own somewhat-checkered adolescent history.

  “Actually,” Chris said, turning into the preacher boy, “if you read the Sermon on the Mount, we are. Anyone who’s angry with his brother is the same as someone who murders. If I lust after a woman, I’ve committed adultery. Dad is right from a theological perspective. We’re all guilty if you look at our hearts.”

  I loved my brother. But at the time, one year into his theological education, he was hopelessly preachy. “With all due respect,” I said, “I’m more of an Old Testament girl when it comes to justice. Let their children become fatherless and all that.”

  “Funny,” my dad said, “you seemed to be a lot more enamored with mercy during your teenage years.”

  In high school, I had been grounded a few times. Okay, quite a few. But that was different.

  “In my logic class, Dad, we call that an attack ad hominem.”

  My father’s words hadn’t convinced me that night, but I gave them some serious thought during my time in law school. I watched his law practice from a distance and admired the way he represented his clients. And I came to accept, at least at the time, that it was his own way of honoring my mom.

  But now I had to ask the question. Could it possibly be that my father had been part of a corrupt system? Even thinking it, I felt like a traitor. How could I doubt my own father? But how else could that data be interpreted?

  When my father died, I felt like someone had ripped out my heart. A part of me had died with him. But as Chris had reminded me, at least I had the memories.

  Now I wasn’t so sure. It felt like a cancer was eating at the memories, turning every happy moment into something sinister. It was hard enough to lose a father’s love. It was harder still to lose a family’s legacy.

  50

  On Memorial Day, the Atlanta Times ran a front-page story on the mess in the Milton County judicial system. For the first time, the story connected the deaths of Ricky Powell, Rontavius Eastbrook, and Jimmy Brandywine to the no-plea-bargaining pact among the felons. The story quoted heavily from “a source with ties to the Milton County prosecutor’s office and police department,” and I knew it had to be LA.

  The source noted that plea bargains had stopped right after Caleb Tate had spent a few days in jail. Tate’s firm now represented leaders from two of the most powerful gangs. The writer stated that Tate had not been charged with any crimes other than the murder of his wife, but anybody with half a brain could have read the article and connected the dots. They were the same dots LA and I had connected shortly after the inmates launched
their rebellion.

  I called LA. “Nice article,” I said.

  “There’s an article? In today’s paper?”

  “Right.”

  He laughed. “Are you implying I’m the unnamed inside source? Do you really think I’d give Caleb Tate that much free publicity? His phone’s probably ringing off the hook with clients.”

  There were rumors that LA was having a fling with one of the female reporters at the paper. But then again, there were rumors about LA having flings pretty much everywhere.

  “Have you come up with anything concrete tying him to the three killings mentioned in the article?” I asked.

  “Not yet. But when I do, you’ll be the first to know.”

  The next day, everyone in our office received a memo from Bill Masterson. The subject: our new response to the plea bargain crisis.

  I’ll be holding a press conference later today to announce a change in strategy for dealing with the crisis in the Milton County judicial system. I wanted you to hear it from me first.

  As you know, enabling legislation authorizing me to deputize private-firm lawyers has gone nowhere. Accordingly, we’re taking a different approach.

  First, we need to increase personnel. Ten large firms in the Atlanta area have each volunteered to send one of their associates to me for the next six months. This means the firm will pay the salary of the associate, but he or she will be an employee of the Milton County DA’s office and accountable to us. A similar arrangement has been made with ten other firms that will help the public defender’s office. We don’t need enabling legislation to do this, because they will be treated as employees, not volunteers.

  In two weeks, once these attorneys are trained, they will be responsible for handling a large chunk of our misdemeanors. But still, this increases our workforce by only 25 percent, whereas our caseload has gone up 900 percent. And these new attorneys won’t be ready to handle felonies for several weeks. Which leads me to part two of the plan.