The Lawyer's Lawyer

by James Sheehan

  Jack had walked right by the cameras.

  “Mr. Tobin, do you have a moment—”

  “No comment.”

  “Mr. Tobin—”

  “No comment.”

  He’d never raised his voice. He’d never looked toward the camera. He’d simply kept moving.

  Inside the courtroom, his demeanor was quite different. He was more than eager to respond to the justices’ questions.

  “Do you know what you’re saying in here, Mr. Tobin? You’re saying that the police and the prosecutor were all involved in one big conspiracy,” Chief Justice Robert Walker said. It was the same question/statement Judge Holbrook had posed weeks before.

  “No, Your Honor, I’m saying that the weapon found outside the premises where the victims resided and were murdered could not be the murder weapon based on the findings contained in the coroner’s reports.”

  Jack knew they might need to connect those dots eventually. The standard on appeal of a death penalty case was newly discovered evidence and he could not meet that standard. The public defender had the coroner’s reports and should have seen the discrepancy between the reports and the physical evidence. His only fallback then would be prosecutorial misconduct under Brady v. Maryland. Still, he didn’t want to go there yet. He wanted the justices to lead him there. It was a dangerous tactic and Thomas Felton’s life hung in the balance.

  “It’s inconceivable to me that the police, the coroner, and the prosecuting attorney did not see the disconnect between the murder weapon and the coroner’s findings,” Justice Juan Escarrez opined. He was a conservative and a key vote.

  “I agree with you, Your Honor, at least as to the coroner and the prosecutor. The police officer, Sam Jeffries, who was actually the head of the task force, testified that he believed the bowie knife he found was the murder weapon. He was not at the autopsy and he never read the autopsy report. I have no evidence to quarrel with that testimony. The coroner, however, had to know about the discrepancy between the physical evidence and his findings. And I believe it is a reasonable inference that the prosecuting attorney knew since she never asked the coroner at trial if the bowie knife was the murder weapon, and she positioned his testimony in such a way that he was long gone when Captain Jeffries opined that it was.”

  “So you believe this is a Brady v. Maryland situation?” Justice Ray Blackwell, the newest member of the court, asked.

  “Yes, sir. Brady held that if a prosecutor withholds material evidence, whether innocently or not, that is grounds for a new trial.”

  “But the evidence was not withheld. It was right there for the public defender to see. He had the coroner’s reports and he had access to the murder weapon just as you did, Mr. Tobin.”

  “That’s true, Your Honor, but he did not appreciate the discrepancy in the evidence. Should a man be put to death because the state attorney and the coroner succeeded in putting one over on the public defender? I don’t think that’s what Brady stands for.”

  For his part, Mitch Jurgensen kept hammering away on the fact that the report could have been mistaken.

  “It was the coroner’s testimony combined with Captain Jeffries’s testimony along with the other evidence in the case that caused the jury to convict. This court should not go behind that decision.”

  “Even when we know this was not the murder weapon?” Justice Margaret Arquist, the only female member of the court, asked.

  “You don’t know that, Your Honor. The coroner isn’t here and his reports were never evidence in the original case.”

  “The record is clear that the coroner testified from his reports, not from his memory, and it’s inconceivable, at least to me, that the coroner would make such a blatant error in the reports of both victims. That evidence combined with the way the prosecutor presented her case, as Mr. Tobin pointed out, creates a pretty compelling case for his client, doesn’t it?”

  “I respectfully disagree, Your Honor.” It was all Mitch Jurgensen could say.

  Justice Arquist wasn’t through, though. “Mr. Tobin, I still have some concerns because of the fingerprints on the bowie knife and the evidence that this knife or one almost exactly like it was involved in a previous attempted murder. We are dealing with a serial killer situation and we have to be very careful.”

  “Yes, Your Honor. I have the same concerns myself although my client was never charged with being a serial killer. Even if there is a basis here for a new trial, shouldn’t we look at the bigger picture even if the law doesn’t provide for that? The answer I come up with is yes and no. Yes, we should be particularly careful in evaluating the evidence but no, we should not apply a different standard. Should the presumption of innocence be any different when a man is being accused of a crime which may be a part of a series of crimes? Should he be entitled to less due process? On the other side of the dilemma are these questions: If the evidence at trial was contrived, what about the evidence found at the scene? If the bowie knife wasn’t the murder weapon, is it reasonable to believe that the killer left it there? Or is it more reasonable to believe that the police, and it could be just one person, put the knife there with Felton’s fingerprints on it since they already had surreptitiously obtained his prints on a previous visit to his apartment? Those are questions neither I nor this court can or must answer but in considering the bigger picture of the seriousness of this particular case, perhaps they should be part of the analysis.”

  It was a highly unusual oral argument. They were way outside the evidence in the case. However, Jack knew that the judges had to wrestle with that bigger picture just as he did.

  “While we are exploring these so-called other issues that are not part of the record, Mr. Tobin,” Judge Blackwell continued, “how do you deal with the fact that the murders stopped after your client was arrested?”

  “There are two possibilities, Your Honor. Either my client was guilty or whoever committed the murders decided it was a good time to move on. I can’t choose which of those two options is correct. I’m just a lawyer so I go back to what I know. The evidence in this case does not support a finding of guilt for the crime charged. The prosecutor knew that. The coroner knew that. The prosecutor chose to hide that fact from the jury and the unwitting public defender. I took the case for those reasons. I believe my client should receive a new trial for those reasons. The law is the law.”

  Chapter Thirty-Four

  On the day scheduled for his execution, Thomas Felton was moved from his cell on death row to the death cell near the execution chamber. Jack stayed with him all day. They had still not heard from the supreme court, and Jack tried to keep his client optimistic. The argument had gone very well, but Jack had had better clients and stronger arguments in the past and still lost, a fact he did not share with Felton, who was extremely nervous.

  It was four o’clock. The execution was scheduled for six. Jack knew they would hear something before then. He just didn’t know when or what the verdict would be. Why do they always wait until the last minute? he asked himself. On the other hand, maybe it was good to give people hope right up to the final hour.

  Felton had been given the option of receiving a generic form of Valium, diazepam, which he had accepted, but it had not yet arrived. His last meal was due any moment as well. He was jumpy as all get-out, and angry.

  “I’m gonna die because of the testimony of one stupid police officer. I can’t believe it.”

  His analysis was off base but Jack wasn’t going to correct him. His job was to keep Felton calm and hopeful.

  “The judges have all the information. It’s not over yet, Tom.”

  His meal finally arrived: a strip steak with mashed potatoes, green beans, and biscuits. Felton inhaled everything, his anxiety consuming him. Jack thought of an evening many, many years ago. He was a young boy waiting for dinner and he was famished. When his mother set his supper on the table, he wolfed it down.

  “You ate that like it was your last meal,” his father had said to him in a di
sapproving manner. Now, after all these years, he knew literally what his father had been talking about.

  Thankfully, a guard came with the sedative as soon as Felton finished his supper. Then he was off for his last shower, leaving Jack alone in the cell. Jack knew what was coming next. A preacher would come in and talk to Tom. Then the warden would read the death warrant. Jack would have to leave after that as final preparations for the execution began.

  Why do I put myself through this? he asked himself.

  Felton came back from the shower dressed in a white shirt and prison pants. All clean and dressed in white, Jack thought. Purified for the slaughter. Does that somehow relieve our collective conscience?

  The preacher came in to speak with the prisoner and Jack got up to leave.

  “I’ll be right outside the door, Tom,” he said to Felton, whose demeanor had changed dramatically. He was totally subdued now and a look of resignation had settled on his face.

  “Don’t, Jack. Don’t come back. Go now. I don’t want to talk anymore.” Felton hugged him. “I appreciate everything you’ve done for me. Nobody could have done more.”

  The warden offered his office for Jack to sit and wait and Jack accepted. I’m not going out with the anti–death penalty protesters this time, he told himself. At every execution, a group of protesters gathered outside the prison gates until the execution was postponed or the inmate was executed. They carried placards and sang hymns. In the past, Jack had joined them. He just wasn’t up to it this time and he didn’t know why.

  He was sitting in the warden’s office at ten minutes to six, imagining Tom being strapped onto the gurney and the medical team putting the heart monitors and the IVs in place, when the warden burst in.

  “I just got the call. The supreme court granted your motion for a new trial.”

  Jack accompanied the warden back to the death cell where Tom Felton was waiting. The man was in shock. He was still a little subdued from the diazepam, but he was aware enough to know that he had been minutes away from death, strapped to a gurney with IVs in his arms and heart monitors on his chest when everything stopped. Nobody had told him anything yet.

  The warden let Jack in and closed the cell door behind him.

  “Let me know when you’re ready and we’ll move him back to his cell,” the warden told Jack.

  Jack sat in the death cell with his client for a minute or two before either of them spoke. Tom was sitting on the bed, his head down, his hands holding onto the cot for dear life.

  “They should have finished it,” he said finally. “I was ready. I won’t be able to do this again. I’ll have to find a way to kill myself.”

  “You won’t have to do it again,” Jack said.

  Tom looked up, confused. “What’s that supposed to mean?”

  “The supreme court granted you a new trial.”

  “So that’s what this was about. Why didn’t anybody tell me?”

  “I guess they figured you should hear it from me. You probably have a lot of questions, and it wouldn’t be appropriate for the warden or the guards to try and answer them.”

  “I see. We never did talk about what would happen if I got a new trial.”

  Felton still seemed a little wary, as if he didn’t or couldn’t believe what was happening.

  “No, we didn’t. I don’t think the State can retry you. They just don’t have any evidence.”

  “You mean they’re going to set me free.”

  “They could. I don’t know. They could hold you on a different crime.”

  “They’ve never charged me with anything else, have they?”

  “No. The guards are going to take you back to your cell. I’ll check with the State, but I believe we’ll know something within a few weeks.”

  “That long?”

  “Maybe not. I can’t say at this point. I hoped you’d be a little happier.”

  “I’m sorry, Jack. I’m still a little dopey from the drug, and I think I’m in shock as well. Thank you.”

  “No problem. I’ll walk you back to your cell.”

  Jack went to the door and signaled for the guards.

  Chapter Thirty-Five

  After leaving the prison, Jack went back to the condo in Oakville. He was emotionally exhausted and immediately went to bed but he couldn’t sleep. Henry had bought a bottle of Jack Daniel’s a few weeks back, and Jack decided to pour himself a shot and sit out on the patio and listen to the crickets sing. It was a beautiful night, clear skies with a slight breeze. He brought the bottle with him and poured another shot a few minutes later. After that second one, he could feel the tension rise from his body like steam from a natural spring.

  When Henry was released, Jack was ecstatic. He didn’t feel that way about Tom Felton because he still wasn’t sure that Felton was innocent. There had always been a safety valve in the back of his mind to establish that innocence, something he hadn’t discussed even with Henry.

  For Felton to be guilty, some of the evidence had to be legitimate. Obviously, the bowie knife was not the murder weapon in the Brock/Diaz murders, but it could have been the actual weapon used by the killer when he attempted to kill Stacey Kincaid. If those fingerprints on the bowie knife were real and not planted, something that would be apparent to any fingerprint expert, the State could still charge Felton with the attempted murder of Stacey Kincaid. That was Jack’s out. If they didn’t charge Felton with attempted murder, the fingerprints were definitely bogus and Felton was innocent.

  Jack took a long deep breath and poured himself one last shot. In a few minutes he wouldn’t have any trouble sleeping.

  After the new trial was granted, things happened a lot faster than Jack had expected. The supreme court’s opinion in the case of State of Florida v. Thomas Felton was a scathing rebuke of the state attorney and the coroner’s office. The police department escaped criticism because there was no real evidence to conclude that they were part of the plot to railroad Felton. The coroner was dead but Jane Pelicano, the prosecuting attorney and now the state attorney for Apache County, was still very much alive. The day after the supreme court’s decision, the Oakville Sun ran a front-page headline summarizing that opinion and its castigation of the prosecutor and the coroner. Jane Pelicano immediately resigned.

  The next day the governor appointed a man named Robert Merton as her successor. It was a logical decision. Merton was the chief assistant in the office, so continuity was assured, and he had not been around at the time of Felton’s trial, so the taint was removed. Still, the quick appointment made Jack suspect that the governor had either known about Pelicano’s resignation before it happened or had caused it to happen.

  Merton wanted the whole Felton affair over with so he could start on a clean slate. Even though Sam Jeffries was adamant about initiating a new prosecution based on the attempted murder of Stacey Kincaid, Merton was having none of it.

  “We’ve still got evidence to prosecute for the attempted murder, Bob. We can keep him in prison,” Sam told the new state attorney when he visited him in his office almost immediately after the appointment.

  “And how do we explain the knife at the Brock/Diaz crime scene? Felton, who was not guilty of the Brock/Diaz murder, just wandered by and dropped it off? Do you think the court’s going to exclude evidence of what this office did in the Brock/Diaz murder prosecution when we try to introduce this knife into evidence in this new case? Of course not. This office will have yet another black spot on its reputation.

  “That’s not the way I’m going to start my tenure, Sam. There’ll be no new trial and there’ll be no new prosecution. Thomas Felton is going to be released.”

  Jack went to visit Felton two more times before his release. The first time was only a few days after the scheduled execution, and Felton asked some questions that Jack thought were slightly unusual.

  “Everybody around here heard about my stay of execution. They all say I’m going to be released.”

  “Let’s not get ahead of ourselv
es,” Jack cautioned. “I believe you will be released as well but that hasn’t happened yet.”

  “Somebody said I could file a claims bill and get paid for the time I’ve been in here.”

  That was the surprise. Jack had fully expected Felton to ask him to file a claims bill at some time in the future but not three days after the scheduled execution.

  “You can. I’ve done it before and I’ve got the forms. It’s fairly simple. I know a few state representatives who could introduce the bill.”

  “How much should I ask for?”

  “How much do you want?”

  “Twenty million dollars—two million for each year I was on death row. Do you think that’s too much?”

  “It’s not too much to ask for as long as you understand you’re not going to get it. You are more likely to get somewhere between three and five million if they decide to give you something. It’s totally at their discretion. Asking for twenty actually gives them a little cover. No matter what they eventually give you, they can say you were asking for a lot more.”

  “No matter what it is, Jack, I want you to get a third.”

  “I didn’t do this for money. You can give it to Exoneration if you want.”

  “Exoneration didn’t save my life, Jack. You did. I’ll give it to you. You can give it to them if you want.”

  Jack thought about it for a few seconds. It wasn’t the way he wanted to do it but Exoneration needed the money. He had time, and he had the forms on his computer to get this taken care of in a day. He didn’t want to give Felton’s generosity any time to change its mind.