A Cure for Night

by Justin Peacock

  Zach was waiting for me outside our office. I saw him do a slight double take at my appearance. "You okay?"

  "Fine," I said. "What's up?"

  "You're late," he said. "C'mon, Myra's ready for us."

  Isaac, Zach, Shelly, and I were mooting Myra for the Gibbons appeal, which I'd completely forgotten about. Myra stood at the front of the table while we sat at the far end. Behind her evening had set in, Borough Hall illuminated faintly in the growing dark. "May it please the court," Myra began. "This is a case that hinged on the defendant's confession. Terrell Gibbons has an IQ that makes him borderline retarded. It is well documented that people at that intelligence level are generally more open to suggestion than the average person. They also tend to be more eager to please, to submit their will to someone else, than the average person. As a result, someone with the defendant's intelligence level is much more likely to falsely confess—"

  "You're not denying that your client confessed?" Isaac interrupted.

  "Not in the sense that he said the words, Your Honor—" Myra began.

  "What other sense is there?" Isaac said.

  "The sense of actually meaning the words," Myra answered. "Mr. Gibbons testified that he confessed because he was tired and scared and the detectives threatened him with violence if he didn't."

  "And you made these arguments at trial, did you not?" Isaac asked.

  "Yes, Your Honor," Myra said. "But our argument here is that the court below erred in denying our attempt to put on expert testimony in order to connect my client's limited intelligence with the likelihood that he could be manipulated into falsely confessing. The trial court incorrectly saw this case as on all fours with cases such as Green and Lea. It's not."

  "The fact that your client is of limited intelligence is enough to distinguish this case from the earlier Appellate Division decisions?" Zach asked skeptically.

  "The central holding of those earlier New York cases, Your Honor, was that a jury's own experience and common sense would allow them to understand the coercive aspects of a hostile police interrogation. Petitioner does believe those cases are wrongly decided and should not be followed. However—"

  "So you are saying we should take issue with those decisions?" Zach pressed.

  "Not necessarily, Your Honor," Myra said. "While it is our position that those cases should in fact be overruled, this court need not do so in order to grant my client relief. The distinction—"

  "So you're arguing that we should say that anyone who wants to claim they falsely confessed should be able to bring on an expert, but that if we don't want to go that far we can carve out a space for people like your client who have documented intellectual or emotional problems that may make them uniquely susceptible to falsely confessing?" Shelly asked.

  "Exactly, Your Honor," Myra said. "Given the decisions in other state and federal courts, and the developments in the scholarly community establishing that false confessions are an issue worthy of expert testimony, those earlier New York decisions have become outmoded. But regardless of that—"

  "We're talking about decisions that are what?" Isaac interrupted. "Five years old?"

  "I don't think that matters," Myra replied. "Not if a consensus has subsequently developed."

  "And by a consensus, you mean the handful of cases from other jurisdictions discussed in your brief?" I asked.

  "There's no doubt this is a developing area of law," Myra said. "I think the Hall decision from the Seventh Circuit is extremely persuasive in this regard. A national consensus is fast emerging that goes against the two previous opinions from New York appellate courts. And this sort of emerging national consensus is of particular relevance when the issue in question concerns the general acceptance of expert testimony."

  We continued for another ten minutes or so, pressing Myra on the details of her argument. I thought Myra was good, but she seemed less comfortable in the role of scholarly appellate advocate than she did as a street-fighting trial lawyer.

  Afterward we all went out for a drink at the Ale House. I was still distracted from my conversation with Shawne Flynt and hadn't been able to fully focus on anything else. I knew I should tell Myra about what Shawne had said. If he was reaching out on behalf of Devin Wallace, that was something she should know. But I didn't know how to tell her that part without including what Shawne had known about me. And that wasn't something I was ready to tell her.

  "So?" Myra said once we were all seated. "How'd I do?"

  "Your presentation is good," Isaac said. "But it felt a little academic to me. You let us set the discussion. You're not giving the judges any reason to feel they have to overturn this conviction. You're giving them an opportunity to make new law in New York, but you're not forcing them to do so."

  "How am I supposed to force them to make new law?" Myra said, clearly not liking such blunt criticism, however constructively intended. "It's a tough balance with an appeals court," Isaac conceded. "But I think you've got to interject more passion into it. You've got to convince them that Terrell is innocent, make them be looking for a way to reverse his conviction."

  "Okay," Myra said. "How?"

  "They're only going to be willing to do that if they think there's no other way to avoid a clear injustice."

  "But, Isaac," Zach protested, "you know the Appellate Division assumes that anybody convicted at trial is guilty. I don't think you can backdoor an actual innocence claim on them. That kind of claim only flies when you've got new evidence, or prosecutorial misconduct, something like that."

  "I'm not saying it'll be easy," Isaac said. "You want your work to be cut out for you, go join the district attorney's office."

  ISAAC STAYED for only one drink, talking strategy the entire time. After he left the rest of us got another round.

  "I can't imagine how much pressure you must be feeling," Shelly said to Myra.

  "Why should Myra be feeling pressure?" Zach asked. "She's not the one who stays in jail."

  "Well, no, obviously," Shelly said, looking unsure of whether or not Zach was joking. "But to have somebody else's life in your hands . . ."

  "We always do," Myra said. "That's not the issue."

  "What is, then?" I asked.

  "Usually we're trying to help somebody get away with something," Myra replied. "Even for me, it's hard to lose too much sleep over the prospect that a guilty person will actually be punished for his crime. It's a bit different when it's somebody who didn't do anything who's looking at spending the rest of his life in jail."

  "You actually think about whether your guy is guilty or innocent?" Zach asked Myra.

  "You don't?" Shelly asked him.

  "Not if I can help it," Zach said. "I mean, sometimes they're just so guilty that you can't really help noticing it. But to the extent that I can keep from thinking about it I certainly do."

  "So you never lose sleep over a case?" I asked.

  "I didn't say that," Zach said. "I can never sleep the night before a trial starts. But that's just nerves."

  "Have you ever had a client you were sure was innocent?" Shelly asked Zach.

  "I really don't think of it that way," Zach said. "I think of it more in terms of degrees of plausibility. It's about whether I think I can manage to sell the story they've given me."

  "But you can't avoid wondering what really happened," Shelly protested. "It's human nature."

  "You never know what really happened," Zach said. "So it's best to just let it go."

  "Sure," Myra said. "Except it's not always that easy."

  "It is if you make it," Zach replied. "Besides, you know as well as I do that what Isaac was peddling tonight doesn't play. The appellate courts are pretty much incapable of even thinking about innocence. It's not in their DNA. Their whole purpose is just to make sure the rules were followed. If they were, then they're going to affirm. If they weren't, but it's not egregious, they're going to affirm. If they weren't, and it seems sort of brutally unfair, they're going to reverse. That's why I hate doi
ng appeals."

  "I didn't know you hated appeals," I said.

  "Plus the fact that they're all about the law. Meaning you actually have to do research, read cases, all that shit that almost made me drop out of law school. Bores me to tears. Give me a good old-fashioned blood-on-the-walls cross-examination any day."

  "Me too," Myra said. "But I can't let this one go. That's never happened to you?"

  "Honestly, no," Zach said. "And looking at you right now, I have to say I hope it never does."

  18

  MYRA AND I were overdue to pay another visit to Lorenzo Tate at Rikers, and we'd carved out time on a Friday afternoon to leave the office early and head out there. On the drive I updated Myra on the additional material we'd gotten from the DA along with the photo array. I still hadn't told her anything about Shawne Flynt, hadn't found a way to do so without bringing up my own past as well.

  "There's only one thing that helps us," I said. "But it's pretty cool. Apparently Latrice was right about Yolanda Miller's budding drug habit. She quickly fell on black days after the shooting. She's had two quick busts, one for possession and one for assault. She's got both of those pending, could be facing some time in the system."

  "No shit," Myra said loudly. We had the windows of her Volvo open because Myra was smoking a cigarette, and the wind was whipping around inside the car.

  I nodded. "We still don't really have an angle in terms of her making Lorenzo the shooter," I said. "We can point out that her trial testimony is presumably in aid of her hoping to cut a deal, but it lacks some punch when she's only backing up her initial ID."

  "So why would she fall hard into drugs right after she pins the shooting on Lorenzo?" Myra said.

  "I can see two angles," I said. "One is she got all sad seeing her sweetheart shot in the back. Two, she couldn't carry the weight of fingering an innocent man."

  "I know which one I like," Myra said, ashing out her window.

  "What do we know about the state of Devin and Yolanda's relationship post shooting?" I asked.

  "We know that Devin had his other caretaker when we just paid him a visit," Myra said. "But that doesn't necessarily mean anything. Every man in the life I've ever come across feels entitled to two or three women."

  "Because theory three would be that Devin just dumped her," I said. "And she turned to drugs to knock her pain out of the park."

  "One way or another, it's ammunition for cross," Myra said. "It's better than nothing, which is what you usually get."

  I waited for a moment to see if she had anything else to say about Yolanda's fall into trouble. "We got some bad news too," I said.

  "What's that?" Myra said, not taking her eyes off the road as she stubbed out the butt of her cigarette in the car's full ashtray.

  "A new witness."

  "A witness to the shooting?"

  I shook my head. "A cellmate of Lorenzo's from Rikers. He's given a statement saying that Lorenzo confessed to him."

  "Godfuckingdammit," Myra said. "I fuckin' hate jailhouse snitches."

  I looked over at her as she drove, surprised by the depth of her sudden anger. I would've thought a half dozen years of working as a PD might have inured her to developments like the abrupt appearance of new witnesses, but that didn't seem to be the case. "We told Lorenzo not to talk to anyone about what he was accused of," I said.

  "This doesn't mean he did talk to anyone. Most of the snitches I've dealt with are straight-up lying."

  "So what do we do about it?"

  "The first thing is to find out what Lorenzo knows about the guy," Myra said. "Best-case scenario is they've never even met."

  ONCE CLEARED through Rikers, we sat in a small interview room, glass running the length of one wall. I couldn't tell if it was the same room I'd been in the first time we'd come to see Lorenzo, or a different room with the same characteristics. I supposed that was part of the idea of jail.

  We waited for Lorenzo for nearly twenty minutes. When he was finally shown in I was surprised by the genuineness of his smile: Lorenzo looked truly happy to see us. On second thought, why wouldn't he be? We represented the outside world; we were working for free to help him; we were the closest approximation of hope currently in his life.

  We shook hands all around; then Lorenzo sat down across from us.

  "Let's start with the bad news," Myra said. "The DA has a statement from a new witness."

  "Can't be no witness," Lorenzo protested. "Because ain't nobody gonna see me do something I didn't do."

  "It's actually someone from Rikers," I said. "Do you know Lester Bailey?"

  Lorenzo's brow furrowed. "There's a dude named Lester here, sure. We was in the same cell for a couple of weeks, but I ain't seen him lately."

  "That's probably because the DA moved him away from you once they'd gotten a statement from him," Myra said.

  "How can he be saying anything about me?" Lorenzo demanded. "He don't know shit."

  "He claims you confessed to him," I said.

  Lorenzo's whole body jerked back, his chair skidding away from the table. He held his arms open wide, his face contorting with disbelief. "What he trippin' on?"

  "You ever say anything to him about the shooting?" Myra asked.

  "Why I gonna cop to something I ain't even do?" Lorenzo protested.

  "But you did speak to him?"

  "Motherfucker was up in my cell, sure, we talk. But I ain't ever admit to no killing."

  "Did you tell him what you were accused of?" Myra asked.

  "He'd heard from around the way."

  "From who?"

  "I don't got clue one. Ain't no secrets in Rikers for nobody."

  "Did he ever ask you about it?"

  Lorenzo was focused now on figuring out how Lester Bailey had played him. "He did ask me. I didn't think nothing about it, but now as I'm thinking on it, he was trying to get me to tell him shit."

  "So what did you actually tell him?" Myra asked.

  "I didn't tell him nothing, 'cause I ain't got nothing to tell him," Lorenzo said. "He sayin' I flat-out copped to the shooting?"

  "He is," I said.

  "I never said nothing like that."

  "Be that as it may, this could cause us problems," Myra said. "If Lester Bailey wants to get on the stand and lie, there's not a lot we can do to stop him."

  "This is some bullshit, yo." Lorenzo was still agitated. "They gonna be puttin' me away 'cause some snitch is gonna lie?"

  "We'll see what we can do," Myra said. "We'll try to speak to Bailey, see if we can rattle his cage a little. Maybe we can get him to back down."

  "What about my boy Marcus?" Lorenzo said. "I got me an alibi on this shit."

  "We've talked to Marcus," Myra said. "And we don't feel we should put him on."

  "Not put him on?" Lorenzo said, smiling like he thought Myra was kidding. "But he was with me that night."

  "Marcus was pretty out of it when we talked to him. I think he'd make an extremely bad witness. Plus, if he takes the stand, the DA's going to be able to cross him on his criminal record. That'll just ensure that the jury associates you with drugs."

  "But I ain't got Marcus, I ain't got no alibi," Lorenzo protested. He was already thrown off by the news of Lester Bailey, and it was clear that our lack of interest in his alibi witness was making things considerably worse for him.

  "We don't think Marcus would be seen as a reliable alibi witness by the jury," Myra said. "He's going to hurt a lot more than he's going to help."

  "What kind of defense we gonna have without Marcus?"

  "We don't win on establishing our case," Myra said. "We win on tearing down theirs."

  Lorenzo looked at her, a little challenge in it; then he rubbed his hands over his face, taking a deep breath as he did so. "So what's your good news?" he asked after collecting himself.

  "What do you mean?" Myra asked.

  "You said you were startin' with the bad news. So what's the good news?"

  "I didn't actually mean to impl
y that there was good news," Myra said. "But we have made some progress. Do you know someone from the neighborhood named Malik Taylor?"

  "Malik? I know him from around, sure, how come?"

  "Apparently Devin Wallace told Malik to stay away from his girl, meaning Yo-Yo, despite the fact that Malik was the father of her child," Myra said. "Malik isn't ready, willing, or able to pretend that he was down with that. You ever hear anything on the street about Malik and Devin? Any beefs?"

  "Now you say, I do remember hearing something," Lorenzo said after a moment. "Word 'round the way was that Malik was all up in Yo-Yo's crib on nights when Devin ain't around. People be talkin' some shit 'bout how them two were back together."

  I glanced over at Myra, who was staring at Lorenzo with as much surprise on her face as I'd ever seen her show. "Who told you this?" she asked.

  Lorenzo shrugged. "Don't remember who I heard that from. It was just what people be sayin'."

  "Did Devin know about this?"

  "I sure wasn't gonna tell him. Ain't none of my business. I got no need to get mixed up in some shit like that."

  "Devin ever say anything about it, anything at all?"

  "Now you got me thinking, I remember he say something about how Malik was disrespecting him, how he was gonna have to educate the motherfucker on how to behave."

  "How did this come up?"

  Lorenzo looked away from us as he tried to remember. "He was just talking about shit that needed to get took care of. He said something about how Malik had gotten up in his business where he didn't belong."

  "Do you think Devin was saying he knew about Malik and Yolanda?"

  "I didn't pay it no mind back then. You put them two things next to each other now, it do seem that way, sure."

  "Assuming Devin did know about Malik and Yolanda," Myra said, "what would he have done to take care of it?"

  "Way Devin sees it, the Gardens is his, you know what I'm saying? The whole damn place belongs to him. You the number one dealer in a project, you gotta make sure anybody who steps up to you gonna get took down real quick."