Dying Declaration

by Randy Singer

  Though Charles politely protested, Denita insisted on going. He walked her out to the hallway, where they stood facing each other for a long time. Denita tilted her head toward the war room. “Doesn’t seem like your type.”

  “She’s not,” he said, though he wasn’t sure he meant it. He really wasn’t sure of anything right now.

  “You’re a good man, Charles.” Denita spoke the words tenderly. Then she took his arm, leaned forward, and kissed him on the cheek. “I’m sorry it wasn’t meant to be.”

  Before he could answer, before he could admit how much he regretted that too, she let go of his arm and turned away. And then, like so many times before, Charles found himself watching her go, staring at her back, his heart throbbing with the familiar pain of what might have been.

  He stood there for a few minutes, scenes of their time together racing through his mind like a home video on fast-forward. He felt the corresponding rush of emotion, as if reliving everything he had ever felt toward Denita in those same few moments. It left him totally spent. He needed time alone, just to crash, just to sort things out. Get over her one more time . . . somehow release these emotions he had been keeping inside for so long.

  His mind flashed to the dream he had just a few short days ago: an arrogant Denita sitting high on her lofty bench, overlooking a graveyard of children, laughing at him. He thought about how different the real Denita was from the one he had imagined in his dream. God had humbled her somehow. He felt a little ashamed for even thinking about writing a letter to Crafton, for putting so much stock in a stupid dream. After all, wasn’t that the same dream that had him marrying Nikki?

  Right.

  Nikki. His bride-to-be. Waiting for him in the war room, three sheets to the wind, plotting legal strategies that would never work. He suddenly didn’t have the strength to go back in there and deal with that.

  But he knew that he owed it to Thomas to try.

  He placed his head in his hands, slouched against the wall, and began to pray.

  Nikki was sprawled out on the floor when Charles made it back into the war room. She was reading a document and drinking her Corona. “Want one?” she asked, holding the bottle toward Charles.

  “Huh?”

  “Want a beer?”

  Charles looked at her and lowered his eyebrows. “You can’t have beer in here. This is a Christian law school.”

  “Okay,” Nikki said. Then she took a long gulp. “Sure you don’t want one?”

  “Yeah.”

  “Your loss.”

  Charles joined her on the floor, and they sat there in silence for a while, Nikki gulping down her beer, Charles leaning back on his palms, staring straight ahead. He hoped Nikki would ask a question about Denita. He would take that as a cue to open up about it. But she didn’t and so he tried to chase thoughts of Denita from his mind by focusing on the case. Neither subject brought him any joy.

  “It was Buster,” he finally said. “They must have believed Buster.”

  Nikki burped. “Yep. I can’t believe they bought his act. He’s such a moron.”

  “But a free moron,” Charles complained. Suddenly, the events of Buster’s testimony and the case seemed so far away, so insignificant.

  “But a free moron,” Nikki repeated. For some reason that must have seemed funny to her, and she started giggling. She looked at Charles, who totally missed the humor. “Sorry,” she said.

  She took another swig, then spoke in the exaggerated manner of someone having a little difficulty with her tongue. “So, Charles, since you’re the magician, how you gonna pull a new trial outta your hat this time?” Her voice went up an octave at the end of the sentence to emphasize her question.

  He sighed. It wasn’t the question he had been hoping for, but he tried to focus on the case. “I’ve been doing nothing but research since I got back here more than ninety minutes ago,” Charles said. The mild rebuke about time was lost on Nikki. “We’ve basically got two grounds for requesting a new trial, both of them long shots.”

  Charles watched Nikki peel the label from her bottle.

  “First, I’ll argue that Silverman should not have allowed Reverend Beckham to testify because his testimony breached the priest-penitent privilege. Second, I’ll argue that no reasonable jury could convict Thomas but not Theresa. I mean, they were both totally in this together. There was no evidence to make his conduct different from hers—”

  “Except Buster,” Nikki interrupted.

  “Yeah, except Buster,” Charles agreed.

  More silence followed as they pondered the treachery of Buster Jackson.

  “A jailhouse conversion,” Charles muttered. “I had my doubts all along, but I never saw this coming. He owed his life to Thomas.”

  “And now his freedom,” Nikki said.

  Charles nodded. “This morning, which seems like forever ago now, we were in the catbird seat. Armistead imploded on the witness stand yesterday, and then Tiger ate the Barracuda for lunch. I just couldn’t believe we could lose. And after Theresa’s diary was read on the first day, I figured if anybody was in danger of getting convicted, it was her, not him. I should have spent more time attacking Buster in my closing. I just didn’t think anybody would believe him—”

  “Wait,” Nikki said, holding her palm straight out. “Rewind it. What’d you say?”

  “I should have spent more time on Buster in closing. I just—”

  “No. Before that.”

  “Um, I thought if anybody might get convicted, it’d be Theresa, not Thomas?”

  “Stop!” Nikki said. “That’s it!” She placed her bottle, nearly empty, on the floor. She started to stand but tripped and fell back to her hands and knees. She crawled a few feet toward Charles, then stopped. She was on all fours, her dark eyes dancing with excitement.

  “Don’t you see it?” she exclaimed. “We got set up.”

  “Nikki, let’s just get you home. We’ll talk about this in the morning.”

  She crawled closer and then sat up on her knees facing Charles. She placed her open palms against both sides of Charles face. “Look at me,” she pleaded, “and listen to me. We . . . got . . . set . . . up.”

  “And?” Charles said.

  “And I intend to do something about it,” Nikki said. Then she let go of Charles’s face and quickly stood. She took a little sideways step to catch her balance. “Just as soon as I get back from the bathroom.”

  69

  TWENTY-FOUR HOURS LATER, Nikki sat across from Thomas Hammond in the Virginia Beach City Jail interviewing room. Her raging headache had receded a little. She had spent the entire day searching for Buster Jackson to no avail. She was hot, tired, and in no mood for Thomas’s sullenness. She had been with him for fifteen minutes, and he had barely spoken.

  “Where’s Buster Jackson?” she asked for the third time.

  Thomas shrugged.

  “Look,” Nikki said, exasperated, “I’m just trying to help you here. But I can’t help unless you let me.”

  “You’ve done everything you can,” Thomas said. “It’s over.”

  “It’s not over,” Nikki said, slapping the table. “Why are you so determined to be a martyr?”

  Thomas did not answer. Nikki stared at him and waited more than a minute.

  “Where’s Charles?” Thomas asked.

  “He’s working on a motion and brief for a new trial to free you. He’s working on the evidence for the sentencing hearing to keep your jail time to a minimum. I’ve been all over Tidewater, Virginia, today trying to find Buster Jackson so I can spring you, and you’re the only one who doesn’t seem to care how much time you serve.”

  “That’s not true,” Thomas said.

  “Then tell me where Buster Jackson is!” Nikki shouted.

  “I can’t,” Thomas said.

  “Come on!” Nikki stood and loomed over the table. “What is wrong with you?”

  Thomas shrugged again.

  “You want to know what I think?” she ask
ed. There was no visible response. “Okay, I’ll tell you what I think. And you can just sit there like a miserable self-inflicted martyr and wallow in your own pity. But here’s what I think.

  “I think you put Buster up to it. I think you heard us say, in the conference room after the first night of trial, that everything had gone great on the first day except the introduction of Theresa’s prayer journal into evidence, which we didn’t have an answer for. You said you wanted to testify. You said it wasn’t right for Theresa to take the fall. I said there wasn’t going to be any fall, but you didn’t believe me. You couldn’t be sure.”

  Nikki watched Thomas’s face as she talked. It was a blank mask.

  “Then you went back and talked to Buster in your cell that night. You asked him to be your snitch, to take Theresa off the hook, to guarantee your conviction and her acquittal, didn’t you?”

  Thomas just stared ahead, as if he hadn’t heard a word.

  “I thought it was strange the next morning, after such a great first day in trial, that you got so emotional—so melancholy, really—with Tiger. It’s the first and only time I’ve seen you cry. It’s as if you knew something bad was going to happen.

  “Then, when Buster testified, he was very careful in what he said. I checked my notes first thing this morning. Then I called the court reporter—had her read that testimony to me over the phone.”

  Nikki pulled a piece of paper out of the pocket of her jeans and read her scribbled notes: “Here’s what Buster said you said: ‘“If I don’t testify, the jury will wonder why. If I do testify, it all comes out. How can a jury let me skate if’n they hear”’Pops is always sayin’ if’n—“if’n they hear that I knew my boy was gonna die, but I wouldn’t take the kid to the hospital? What else can a jury do to someone who demanded—I mean flat out demanded—that his woman not take the kid for three solid days—all the time knowin’ the kid is dying?”’”

  Nikki folded up the paper and stuffed it back in her pocket. “There are a lot of ifs and if’ns in that statement, Thomas. And you know what I think?”

  She leaned forward across the table. “I think you made this confession up just to protect Theresa,” she whispered. “I think it’s incredibly noble of you to do that, but also incredibly stupid. We would have gotten both of you off if Buster hadn’t testified. But if you tell me where Buster is now, we can at least get him to court on Monday and try to get you a new trial. And, Thomas, it won’t take away from Theresa’s innocent verdict. Nothing can touch that now.”

  “I can’t,” Thomas said simply. “I promised.”

  Nikki sighed and leaned back in her seat. “Thomas, Thomas . . . so noble, but so misguided.”

  She stood to leave but decided to give it one more try. “If you can’t tell me where he is, then at least get a message to him to meet me. Tomorrow night. The McDonald’s on Battlefield Boulevard in Chesapeake. Across the street from the hospital. Nine o’clock.”

  Thomas did not speak, but Nikki thought she noticed a slight nod of his head.

  “Thanks,” she said, as if he had guaranteed that Buster would appear. Then she called for the guard quickly, before Thomas would have a chance to think this through and change his mind.

  70

  BY SUNDAY NIGHT the words on Charles’s monitor were growing bleary. He had been holed up in his office all weekend reading case after case. He had gotten so desperate that he called Denita on Saturday, just to pick her brain about possible issues for appeal. By midafternoon she had e-mailed some research results. She had hit the same stone wall he did.

  Time was running out, and he was getting nowhere. He reached for his Nerf basketball and stood to stretch. He took a few shots. He took stock.

  Even if Nikki was right about Thomas and Buster, and he suspected she was, it would make no difference. Technically, Buster had told the truth on the witness stand. He had simply repeated what Thomas had told him in the cell the previous night. And what Thomas had told him was also technically true, since it was so wrapped up in hypothetical statements. “If a jury heard this, then they would do that.” It was frustrating that Thomas tried to take justice into his own hands, but it was hardly the basis for a new trial.

  Charles could just see himself trying to convince Judge Silverman to give him a new trial based on Buster’s testimony. “Well, you see, Judge, my client’s alleged jailhouse confession wasn’t really a confession. He was just making this whole thing up so the jury could come to a compromise verdict and find him guilty and his wife innocent.” He could just hear Silverman’s response: “Now, that’s original, Mr. Arnold, claiming that a confession wasn’t really a confession. That’s exactly what the last five defendants said.” No, Nikki’s theory might be interesting, but it wouldn’t do them any good.

  He reread Denita’s long e-mail and the cases she had sent. While he appreciated her efforts, his ex-wife had done no better than he had. The most promising avenue was the discrepancy between the verdict in favor of Theresa and against Thomas. But in reality, that argument was pretty thin. Juries rendered split verdicts against coconspirators all the time. It hardly made the verdicts suspect, especially in this case since Buster’s testimony provided a basis for a verdict against one but not the other. And the priest-penitent privilege issue was not working out either. Silverman had been right in ruling that the privilege was waived, at least based on the cases Charles and Denita had turned up.

  Charles threw another shot up. It bounced off the rim and out. At this stage, he admitted to himself, it was time to focus on getting Thomas the lightest sentence possible. Silverman would have a wide range of options to consider: twelve to thirty years. There were plenty of mitigating circumstances Charles could bring out on Monday. Silverman seemed like a reasonable man. If Charles could get Thomas the minimum, and if Thomas were a model prisoner, he could be out in five. Not perfect, but the best he could hope for under the circumstances.

  Another rim shot. Another miss. It was time to work on an argument for mercy. If Silverman decided to get tough and make an example of Thomas, the kids would grow up without a father. Charles sat back down at his terminal and rubbed his eyes. He fired up his Westlaw search engine and resumed his quest for the perfect case.

  At 9:15, Nikki started getting restless. For once in her life she had been on time, even five minutes early. She had been sitting at this same booth inside McDonald’s for twenty minutes now, watching every car that pulled into the parking lot, searching for Buster Jackson. She had drained two Diet Cokes and made one quick run to the bathroom. She was losing heart.

  She decided that she would wait until 9:30, no longer. She could do this tonight without Buster, but it would be a lot easier with him. One thing was sure, if she waited much past 9:30, the opportunity would be lost.

  She wore a pair of black stonewashed jeans and a black T-shirt. Her long dark hair was pulled back in a ponytail and tucked under a Nike hat—also black. In her right front pocket was a pair of black latex gloves. In her other front pocket she carried a pen and a few of her business cards, in case she needed to jot some notes on the back. She carried a penlight in her left rear pocket and a small switchblade in her right rear pocket. She wore no makeup and no jewelry.

  She had seen enough spy movies to know precisely how to do this.

  But she was hoping for a supporting actor.

  For fifteen more minutes, she continued to watch every car, van, and SUV that pulled into the parking lot, waiting for Buster to step out. There was precious little traffic, and certainly nobody who looked remotely like Buster. At 9:30, she talked herself into five more minutes, then ten. It was now dark, had been dark for forty-five minutes, and time was short. She would have to do this on her own.

  She walked slowly to her Sebring, straining her neck to look up and down the highway, sure that Buster would pull into the parking lot just as soon as she left. But she couldn’t wait any longer. Armistead worked the three-to-eleven shift and would be home no later than 11:30. She was alrea
dy cutting it too close for comfort.

  She sighed, softly cursing Buster under her breath. She climbed into the Sebring and gunned it, took one last look at the McDonald’s in her rearview mirror, and headed for Woodard’s Mill.

  71

  NIKKI LEFT THE SEBRING about a quarter mile from Armistead’s estate. She parked on a side road a few streets over in the neighborhood, then cut through some backyards until she was on Armistead’s street. She walked briskly to the driveway, checked carefully for cars in all directions, then started jogging toward the house. She saw no cars in the driveway and only a few lights on inside. Armistead had left the front porch light on as well as a light in the family room in the back.

  She walked quickly up the steps to the front door, looked over her shoulder, and rang the bell. She held her breath and waited. Nothing. She wasn’t really sure what she would have said if Armistead himself had answered the door. “Oh, I’m just here with Eagle Cleaners ready to clean your bathrooms. Can I borrow your toothbrush?” Fortunately, she didn’t have to worry about that. She took out her key and opened the door.

  She stepped inside, closed the door behind her, and punched the security code into the alarm panel on her left. It would be just like Armistead, with his compulsive personality, to change the code every week. She waited a few seconds. No sound. She supposed it could be one of those silent alarms that only goes off at a police station somewhere, but that was a chance she would have to take.

  She had done it now. Breaking and entering. No excuses, no defense. She pushed the tiny light on her watch and checked the time: 9:59. She had one hour. She would need to hustle.

  She started in the study. She had a few more thoughts about passwords. She tried the name of his college and the name of his med school. No luck. On the back of one of her business cards, she had written down every combination of the dates of his birthday. No luck. Social security number. Nothing. Mother’s maiden name. Wrong. She tried the old standby: 1-2-3-4-5. No luck. For fifteen minutes she tried various logical password combinations. None worked.