by Randy Singer
It would have been the perfect way for us to part, but real life doesn’t work like that.
“J-Lo!” he yelled. He had left her off leash in the house and now noticed a yellow spot under the corner of the dining room table, right where Justice typically lay at my feet.
“Bad dog,” LA scolded.
He insisted on cleaning it up, and I let him. Justice kept looking at me as if to make sure he wasn’t in trouble too. “Good boy,” I told him as I rubbed his head.
LA scrubbed the carpet until the stain disappeared.
“She gets a little jealous,” he said.
54
At 9:30 a.m. on Monday, July 2, Mace James received an e-mail from the Georgia Supreme Court with the opinion in Antoine’s case attached. Mace said a quick prayer and clicked his mouse with a sweaty hand.
The court had denied his petition and reaffirmed the August 7 execution date. And they had some harsh language for Mace as well.
Defense counsel has a duty to zealously represent his client. But that duty has bounds. In this case, counsel transgressed those bounds and came dangerously close to committing fraud on the Court. While the Court understands that defense counsel was driven by the perceived exigencies of the circumstances, his role as an officer of the Court prohibits the type of trickery and violence he apparently used to obtain the affidavit of Mr. Cooper. His actions reflect poorly on the legal profession and show a lack of judgment that is troubling to this Court.
Mace felt his emotions collide as he read the opinion. Frustration because the justices did not appreciate the truth of what had happened. Embarrassment at the stinging criticism. Helplessness because he was representing an innocent man on death row and everything he tried seemed to make matters worse. But mostly he just felt drained. He had spent years butting his head against one brick wall after another. And now he only had a few weeks left.
Mace got in his car and drove to Jackson to personally deliver the news to his client. By the time he got there and picked up the telephone, staring at Antoine Marshall on the other side of the glass, he had become despondent.
“The Georgia Supreme Court denied our petition,” Mace said. He slid a printout of the opinion through the slot under the glass. Antoine picked it up without speaking and turned sideways in his seat so he could hold it at arm’s length. “I left my reading glasses in the cell,” he said.
Mace watched Antoine squint as he read the opinion slowly, grunting and shaking his head while he turned the pages. He read for an agonizingly long time, slowly devouring every word. Mace could see the hope leave Antoine’s face, replaced by a grim certainty that his years on this earth were now numbered at thirty-six.
When he finished the opinion, Antoine placed it on the shelf in front of him and turned back to Mace. There were tears welling in his eyes.
“I’m sorry,” Mace said.
“These other dudes on death row—their lawyers don’t care,” Antoine said. His voice was raspy and close to breaking. “But me, my lawyer drives all the way down from Atlanta just to look me in the eye and tell me he’s sorry. My lawyer beats up some dude in a bar and risks his law license just to give me a chance. You ain’t got nothing to be sorry for, Mr. James.”
Antoine sat up straighter in his chair and looked directly at Mace. Mace had come to console his client, but it was working the other way around.
“I’m proud that I’ve got the best lawyer of anybody here on death row.”
“I appreciate that,” Mace said. And he did. More than Antoine would ever know. “But maybe I’m not so hot if I can’t get you out of here.”
Antoine shook his head. “Some things were meant to be. You did everything you could. Don’t blame yourself.”
Antoine passed the opinion back under the glass, and Mace put it in his briefcase. He had actually intended it to be Antoine’s copy, but it was clear his client didn’t want it hanging around his cell.
“After I pass, I want you to make me a promise,” Antoine said.
Mace looked him in the eye. Despite the redness and tears, Antoine seemed determined.
“Don’t just put my file in a cabinet and move on to the next case. I know I got no family who care about this, but I need to have my name cleared. It’s the only way to make sure that this doesn’t happen to the next dude. Maybe that’s why God’s got me here in the first place.”
“I hear you, Antoine,” Mace said. They had been through this before. “But now you listen to me. Because I’m not done fighting to keep you alive.”
Antoine gave Mace a sarcastic chuckle. “August 7 is coming, Mr. James. Whether you’re ready for it or not. I just want to make sure that after it comes and goes and I’m no longer here, you’re going to keep working to clear my name.”
“You have my word on that,” Mace said.
Antoine nodded, and Mace noticed a slight twitch. The pressure was taking its toll.
“I’ve got one last strategy, but it’s a long shot,” Mace warned. “I’ll need the court’s permission to even give it a try.”
Antoine shrugged. “Right now, a long shot sounds pretty good.”
55
The Peachtree Road Race is held each year on the Fourth of July in the city of Atlanta. It is the world’s largest 10K race—and in my opinion, also the wackiest. Sixty thousand runners are released from twenty different starting corrals. Among them this year would be about half the ADAs from Milton County. We had divided into two groups—serious runners and those who planned to walk. We all had T-shirts that said Masterson for Attorney General on the front and on the back had a copy of the Miranda warning. The shirts would be some of the tamer outfits worn by runners.
I got up at 5 a.m., took care of Justice, and drove to the MARTA line, where I squeezed onto the train with runners of all shapes and sizes. My competitive instincts always kicked in for events like this, and I would look around, pick out the fastest-looking runners, and compare myself to them. I could probably beat them if only I had trained more. If only I had longer legs. If only I didn’t have a job that required seventy or eighty hours a week.
I met the other prosecutors at our designated spot. Masterson was there, patting everyone on the back and thanking us for coming. He wouldn’t be running today, but he would set up an outpost about halfway through the course with big signs and banners and pass out Shot Bloks to the runners to give them a boost of energy.
My colleagues and I ended up standing around for more than an hour waiting for our corral to start. Even when it was our turn, it took a few minutes before I could take my first step. Eventually, like a giant amoeba, the runners all started to move, walking at first, then slowly jogging, and eventually running.
The Peachtree was not the place to go for a personal record, but it was great for the scenery. A lot of people wore costumes that should have earned them jail time. There were always a few folks dressed like the Statue of Liberty and men wearing kilts and women in bikinis. I always cringed at the guys wearing Speedos.
Eventually, our little pack of prosecutors spread out, and I left many of my colleagues behind. I picked up my pace so I was doing sub-eight-minute miles, dodging people like a running back on the football field. I was passed at mile three by a squadron of Marines, all running in formation, as if this were just another morning PT exercise.
By mile five I was paying for my earlier enthusiasm, and my pace had slowed to eight-and-a-half-minute miles. Ten kilometers had never seemed so long. Some of the runners passing me were laughing and having a good time, but I was sucking wind so badly that I could hardly breathe. It was just before mile marker six that a man running in prisoner’s stripes with a black mask came up beside me.
“Almost there,” he said.
“Yeah.” I hated it when people tried to talk to me while I ran. One-word answers usually ended the conversation.
“You guys are doing a good job in the Milton County prosecutor’s office,” he said. “Keep it up.”
“Thanks.”
“Here’s something that might help you. You can read it after the race.”
He handed me a folded piece of paper, and I instinctively took it. The whole exchange was strange, but I was tired and not thinking clearly at the time.
“Have a great finish,” the man said. He took off at a pace I couldn’t possibly match. I kept on running, unfolding the paper as I ran.
I slowed down and pulled over to the side even as the spectators urged us on. I read the paper and started running again. But now I was in a different zone, running slower, not even thinking about the finish anymore. The note was typed, and it wasn’t signed.
Be careful who you trust. Not everyone paid by the government is working for the government. How else do you think Rivera knew about the morphine?
In the Atlanta area there are dueling fireworks on the Fourth of July. The most spectacular ones take place at Centennial Olympic Park in downtown Atlanta. But they are rivaled by the fireworks that cap off the country music festival ten miles away in Buckhead. The problem with both places is that you sit in traffic for an hour just trying to get home.
LA had the solution.
We were sitting on the shoulder of the interstate, halfway between downtown Atlanta and Buckhead, with the portable blue strobe light doing its dance on the roof of LA’s unmarked police car. He had tuned the radio to the AM station that played music synced to the exploding fireworks over Centennial Park. That display had started first, but now, halfway through, it was joined by fireworks from Buckhead exploding behind us. Fireworks in stereo, and we would be gone before the traffic jams started.
I stole a glance at LA’s handsome profile, the reflections from the fireworks sparkling in his eyes. It should have been the perfect romantic night.
But I found myself wondering, How much do I really know about this guy?
There were, of course, rumors about LA and the ladies. And though he had always treated me with respect, he seemed to have two or three different schemes working at any given time. I had watched him work the system with little regard for ethics. I was pretty sure LA had leaked Rikki Tate’s psychiatric records to the press, for example. How far would he really go to get a conviction? Far enough to leak the information about morphine to Rivera so the felon’s testimony would be more believable? It bothered me that LA could read other people so well but was impossible to read himself.
“What’s wrong?” he asked.
“Nothing.”
“Okay. So what’s really wrong?”
“Don’t use that Truth Wizard stuff on me,” I said.
A bright spiderweb of fireworks burst in the window before us. Behind us, visible in our side mirrors, staggered rockets shot up from the ground and exploded into a mushroom cloud of red and blue.
“It doesn’t take a Truth Wizard to know that when a woman says, ‘Nothing,’ she really means, ‘Keep asking until you figure it out.’”
I pushed some hair behind my ear. “Let’s see . . . my father died, I’m stressed out at work, my mother’s killer is scheduled to be executed in one month, and our case against Caleb Tate is hanging on by a thread. Other than that, it’s just another great Independence Day.”
LA turned to me. “But that’s not all, is it?”
He was right. I felt like I was sitting in the car with a mind reader. Even so, I wasn’t about to tell him about the paper I had been handed in the race that day. About my suspicions. About the tension between a growing emotional attachment to him and the seeds of distrust that had taken root in my mind.
“I’m fine.” I glanced toward him. I could tell from the look on his face that he didn’t believe me, but he got the picture. I didn’t want to talk about it.
The radio was playing “Only in America.” Fireworks were exploding overhead. A guy with movie-star good looks was sitting next to me.
He extended his hand across the middle console, and I hesitated before I put mine in his.
“Your hands are cold,” he said.
“Cold hands, warm heart.”
“That was going to be my line.”
56
For Mace James, half the battle had been getting court approval to even conduct this test. He had filed his motion under seal because the test results would remain confidential unless they tended to exonerate Antoine Marshall. The attorney general’s office had responded under seal, citing all the reasons the test itself would be inadmissible.
But Mace had done his homework. The Brain Electrical Oscillation Signature test, or BEOS, had already been used by a court in India to affirm two murder convictions. The technology had been tested and peer-reviewed by eminent neuropsychologists around the globe. Mace had attached affidavits from several of them to his motion.
The test involved the unique use of an electroencephalogram to distinguish experiential knowledge from conceptual knowledge. A suspect would be hooked up to thirty-two electrodes, two of which would be placed on his earlobe and the rest on various areas of his scalp. The suspect would sit quietly with his eyes closed as the administrator read a series of statements. Computer software would map the electrical signals the suspect’s brain generated in response to the statements. Because experiential knowledge of an event is accrued only through participation in it, electrical activity would map differently than if the suspect had only learned about the event through others. In other words, the test could distinguish between memories created by experience and memories created by being told about an event.
Mace had lined up one of the top neuropsychologists in the country to conduct the test. Perhaps out of a reluctance to give Mace James another issue to complain about on appeal, the court had finally consented. But the court made it clear that it reserved judgment as to whether or not it would ultimately consider the test results as evidence. That decision would wait for another day.
Now, nineteen days before Antoine Marshall’s scheduled execution, Mace James sat in an enclosed conference room at the Diagnostic and Classification Prison in Jackson, watching a scene straight out of a George Orwell book.
Antoine Marshall wore a cap with the thirty-two electrodes that measured his brain waves. He had his eyes closed, listening intently to the statements suggested by Dr. Rukmani Chandar. They began with baseline statements—“The sky is blue”—and Chandar studied the responses on the computer. Next, Chandar moved to events that he knew would elicit an experiential response, such as “In the early part of 2000, I was high on meth” or “I ate eggs this morning for breakfast.” He also interspersed statements that would only elicit a conceptual response, such as “I’ve argued a case before the Georgia Supreme Court.”
Once the baselines were established, Chandar carefully went through a short series of factual statements about the crime in question. “I broke into the Brocks’ house at 130 English Oak Court. . . . I was carrying a gun that night. . . . I saw the open garage door. . . . I shot Dr. Brock when she interrupted me. . . . I shot Robert Brock in the stomach.”
Mace watched his client’s expression as these questions were asked. Antoine showed no external reaction, his demeanor the same during the description of the crime as it was during the baseline questions. Chandar was focused only on his computer and the electrical patterns he was seeing in front of him. Mace knew it would take a few days to fully interpret all the results, but Chandar was plainly seeing something interesting even now.
Mace couldn’t tell whether it was good news or bad.
The test lasted no more than an hour. After it concluded, Chandar was tight lipped about the results. “I cannot say definitively until I’ve had more time to analyze each pattern.”
“How long will it take?”
“Two days. Maybe three.”
Mace had waited this long. He could begin drafting the briefs now, assuming that the test results would be good news. After all, Antoine had already passed two polygraphs. How could he not pass this test? The real issue would be whether the courts would regard the results as reliable evidence. On that point, Ma
ce knew he faced an uphill battle. But at least the battle would bring a new wave of publicity to the case, one that would center around a cutting-edge scientific test that once again confirmed his client had been nowhere near the Brock house on the night in question.
If Mace won, defense lawyers everywhere would have a powerful new weapon in their arsenal. The Fifth Amendment guarantee against self-incrimination would prevent prosecutors from using this test in America unless the defendant acquiesced. It would be like DNA evidence, but the defense would have a veto over whether or not the evidence could be used. This test alone could radically turn the tables in favor of defense lawyers everywhere.
But Mace couldn’t concern himself with the broader societal implications of what he was doing. Right now he had a laser focus. He was trying to save Antoine Marshall’s life.
57
The Republican primary took place on the last Tuesday in July, a date I had been dreading for more than a week. On the good side, the ubiquitous commercials featuring me and other “Women for Masterson” would finally stop running or, if Masterson won, would at least run less frequently. But on the bad side, I had volunteered to man one of the polling stations for my boss.
At the time, it had seemed like a good idea. All the other ADAs were signing up. But when I woke up at five o’clock so I could be at the polling station by six, I simply wanted to know one thing: What was I thinking?
It wasn’t just that the forecast called for temperatures around ninety degrees and morning rain showers; it was the very thought of going to a strange place and greeting people I didn’t know—who probably didn’t want to talk to me—so I could urge them to vote for Bill Masterson. I believed he was the best candidate. But I always hated those bothersome poll workers when I went to vote. Today, I would be one of them.
I arrived on time and sat down at the Masterson for AG table with another volunteer. She had already placed a few Masterson signs at the curb and around the parking lot, but the area was dominated by Andrew Thornton’s signs. When the Thornton volunteers finished setting up their large tent with free bottled water, right next to our much smaller Masterson table, my competitive juices kicked in. The other Masterson volunteer was content to sit behind the table and answer questions, but I joined the Thornton volunteers on the sidewalk, jockeying for position so we could be the first to greet the voters.