Clifford Irving's Legal Novels - 02 - FINAL ARGUMENT - a Legal Thriller

by Clifford Irving

  “Why is it,” I asked gloomily, “that I never smelled it?”

  A blind young musician passed by, strumming a guitar. He was followed by a tall, good-looking blond woman in a bikini, wheeling a bicycle. Kenny and I both turned for a moment to look.

  “Because,” Kenny said, “you had your head up your ass in a plastic bag, trying to pretend you had a clean job. What I hear, Ted, a lot of things went on, you just said, ‘No, that can’t be, so I won’t look.’ And you marched merrily onward until it suited you to cop out for Sarasota.”

  “You heard that? Are you bullshitting me?”

  “Listen, it’s nothing new. Ambition is the fuel of the justice system, denial is the grease. Why should you be different?”

  “You make it so personal,” I said.

  “So do you. You came up here looking for Nickerson’s balls. All he did was what half the guys in his shoes do all the time. And you should have known. Talk about snitches, listen to this. We investigated a complaint a few years ago—you remember Bongiorno, our local organized crime boss? This Homicide detective was accused of planting a story in order to get Bongiorno on a murder one conspiracy rap. Detective goes to a professional snitch and says, ‘What we heard is, So-and-so provided the murder weapon, and they made the drop over there.’ And the snitch goes, ‘Yeah, that’s exactly what this dude admitted to me!’ “

  “What happened to that detective?”

  “Bongiorno had political connections in Tallahassee and he put a lot of heat out. The snitch changed his mind. They needed a fall guy —come to think of it, it was a fall gal—so they suspended the detective from JSO, and eventually she got married and quit.”

  “Kenny, never mind that. I need to find out what happened. Who lied, and why. Do you know where Nickerson is?”

  “Long gone, and the sheriff’s office isn’t that buddy-buddy with me these days. You’ll have to go through Beldon. Are you still friends?”

  “I send him a card for Christmas, he sends me one for Hanukkah. Sure we’re friends. Why shouldn’t we be?”

  In the deepening twilight the tourists headed for their efficiency units. Somebody in the parking lot was yelling about sand in the new Hyundai and wet bathing suits on the upholstery. Kenny craned his neck in several directions, but the tall blonde in the bikini had vanished.

  “With all this AIDS shit,” he said, “I was thinking of giving up my trips to Rio and getting married again. That tall blonde would have been fine … if she was rich. I love tall women. But I love rich women too. I know this terrific rich widow down in St. Augustine. But she’s only five feet tall.”

  “So marry her,” I said, “and she can stand on her money.”

  Kenny threw an arm around me affectionately. “My practical friend. And how’s your marriage?”

  “Fine.”

  “I’m your oldest pal, you’re supposed to confide in me.”

  “Do I sound like I’m lying?”

  “I’m an experienced cross-examiner. You don’t sound like a credible witness.”

  “I have a lot on my mind. All right… it’s something I just say, but actually it is fine. It’s not all that exciting anymore, but it’s something to depend on. Does that answer your question?”

  “Yeah, but it doesn’t make me envy you. So what is it you have on your mind?” “This business about Darryl Morgan. For Christ’s sake, that’s why I’m here.”

  “You’re making too much of it. A snitch perjured himself. So what else is new?”

  “But if Nickerson got Jerry Lee Elroy to lie, maybe Nickerson lied too. Did that ever occur to you? It does to me.”

  “But how are you gonna find out? Hunt him down and ask him? And even if he said, ‘Yeah, I made it up, so fucking what?’—what would you do?”

  I had no ready answer for that.

  “I remember the case,” Kenny said thoughtfully. “The Morgan kid admitted being there. The Zide widow and her son ID’d him. Even if Nickerson lied too—and it’s a big if—it still comes out to be harmless error. Nasty, but still judicially harmless.”

  “If Nickerson was lying, then whether Morgan was guilty or not, the trial was not a fair trial.”

  “Gimme a break. What are we, back in law school?”

  “You’re the public defender!” I nearly shouted.

  “And as the public defender, I have to be a realist. If I played ‘Hearts and Flowers’ on my violin all day long and worried whether every trial was fair, nothing would get done.”

  “Your office handled all the Morgan appeals, right?”

  “Up to five years ago. Then the Florida legislature created a job called CCR—the Capital Collateral Representative. It’s a political office in Tallahassee, and they take these cases at the review stage. Because it was a fucking traffic jam, all those hundreds of guys convicted and sitting there on death row.”

  “You mean they weren’t frying them fast enough,” I said.

  Kenny nodded vigorously. “Probably half the work of the Florida Supreme Court was devoted to death penalty cases. Biggest waste of human legal resources known.”

  “Can I see your files?”

  He nodded again. “We always try for ineffective assistance of counsel. We never get it. We lose, and the defendant always looks depressed and says, ‘Where do we go from here?’ The PD lawyer says, ‘You go to prison. I go back to my office.’ “

  After dinner I walked alone on the beach to listen to the Atlantic crash against the shore. Tiny shining white animals washed up on

  the sand with each succeeding wave. Things Kenny had said nibbled at my mind . .. trying to pretend you bad a clean job.

  Was I like that? If, for example, I denied for so long that Alan was a druggie—and that was right before my eyes—wasn’t it possible that I denied other things?

  I tried to focus on Darryl Morgan. A man I didn’t even know, somewhere far away in another darkness. In Raiford, on death row.

  Why do I need to get involved in this now? What am I trying to achieve? What do I smell?

  I looked down the beach and realized that if I followed its wide path far enough to the south, I would reach Connie Zide’s house. I knew she still lived there. I hadn’t asked, but over the years bits and pieces of information slipped through the ether and came my way. The lonely widow—become a little reclusive and, they said, a little odd. Took a young lover now and then, gave him expensive gifts, fended off the older fortune hunters, declined to remarry. Solly’s estate had been divided into five equal portions: one part each to the two distant daughters, one of whom lived in Connecticut and the other in Santa Barbara; one part to Connie, one to Neil; and one part divided among a clutch of southern universities, each of which received either an endowed chair in the humanities or a varied scholarship fund. Most people were surprised at the wisdom of Solly’s generosity.

  Neil had stayed in the development business, also surprising most people by his efficiency and political smarts. The inherited millions he had parlayed into many more.

  I walked back toward the cheerful lights of Kenny’s house. See what you can find out tomorrow, I decided. A day is what you promised yourself. Perhaps—even for a day—recapture that feeling you used to have of being involved, of wanting to do something decent. Do what can be done, but don’t tilt at windmills. You have responsibilities elsewhere: to your family, your firm, to other clients. A day, then go home.

  At home that night Toba was watching TV upstairs in the master bedroom. There were nightly reruns of M*A*S*H, her favorite program. She had bathed and put on a bathrobe and old pink furry slippers that she wouldn’t part with even though the quilted outer part looked raggedy enough for the Salvation Army.

  She’d had a hard day and was feeling just a tad sorry for herself. Nobody was buying houses, and even if they were of a mind to do so, they made ridiculously low offers. Sellers were saying, “We’ll wait until this bad period is over.”

  Toba had been concentrating on rentals. A tenant to whom she had rented
a house on Longboat Key had called the office on the day he was scheduled to move in. “Ms. Jaffe, there are mouse droppings under the sink!” The family was moving into a motel until the mice had been exterminated. “And no poison, please! We have a toy poodle.” Toba rushed to the hardware store on St. Armands Key and bought twenty Sure-Kill traps. She set the traps with Camembert cheese that she snatched from our refrigerator.

  The next morning my intrepid wife carted away the little gray bodies with their bloody mouths. “God forbid the tenants should have seen,” she said to me. “They’re from Manhattan. They don’t accept anything that crawls, except cockroaches.”

  It was a season of animal troubles. One midnight in December she’d been awakened by a call from a hysterical tenant in the woods of Siesta Key. The tenant was in bed, and a monstrous ten-inch-long, eight-legged hairy animal was perched on her chest. It was staring at her in an unfriendly manner.

  “Mrs. Hart,” Toba said cheerfully, “I think you’ve either been partying too much or you’re having a nightmare.”

  Mrs. Hart called the police. When they arrived, they removed a rare, poisonous wolf spider.

  At about the time that I boarded the flight to Jacksonville, Mrs. Hart, through her lawyer, informed Toba that she was suing her for negligence, malpractice, and slander.

  While I was walking on the cool sands of Jacksonville Beach with Kenny Buckram, Toba cooked a meal of lamb chops and apple sauce and frozen french fries. Alan set the table with red linen napkins, took out his old Zippo and, with a flourish, lit a candle. Finishing her vodka tonic, Toba opened a bottle of cabernet sauvignon.

  “Mom, the Becker kids are going sailing over the weekend down at Captiva Island. They’ve got an uncle who has a fifty-six-footer with standing headroom, sleeps seven or eight, must be fantastic. They invited me along. Can I go?”

  “Of course you can. You’re nineteen years old—you can do things like that without asking me.”

  “We’ll probably check out the night life on Captiva, which I’m sure is nonexistent. But I don’t like to be without any money, hang around like a damn parasite. I hate to ask, but—”

  “Don’t worry,” Toba said.

  “You’re great, Mom.”

  “Just don’t get too sunburned. The sun on the water is very powerful.”

  After dinner she heard Alan on the phone in the den, leaving a message for someone to call him back. He dropped into an easy chair to watch a video on the TV, and that was when Toba said good night and went upstairs to bathe. She could hear the sound of gunfire and screeching tires; it seemed to her that he always watched different versions of the same movie. She took the bottle of cabernet with her. After she had settled among the warm bubbles and lemon- scented oil of the bath, she drank another glass of wine. Later, in the bedroom, wrapped in her terry-cloth robe, she lay on the bed, supported by the special backrest with arms, while she watched M*A*S*H. From time to time she heard the little ding as the phone was hung up elsewhere in the house.

  I miss Cathy, Toba thought. It’s hard when a daughter leaves home.

  In Ithaca, Cathy would be awake, studying. The question was: wait until eleven, when the rates go down, or call now?

  Toba poured the last bit of the wine into her glass. She picked up the phone.

  Alan’s voice filled her ear.

  “.. . man, good and fucked! I’ll get the money tomorrow for sure. It was hard tonight. She fucking drives me crazy….”

  Toba’s cheeks heated up steadily. She couldn’t put down the phone.

  A young male voice on the other end of the line said, “One fanfuckingtastic blast. Fucking wasted is what we’ll get.”

  “Fuckin’ A!”

  Far across the room, in the mirror above her dressing table, Toba could see the moronic look on her own face. Her mouth had fallen open.

  Alan said, “Got ‘ludes, quarter grains… . Bobby’s holding the caps. …”

  “Gotta hang up, dude.”

  Toba carefully replaced the receiver and slid out of bed, drawing the belt of her bathrobe tightly around her waist. Her knees felt like pudding. In the bathroom she washed her face in cold water in an effort to get the fire out of her skin. Barefoot, on shaky legs, she padded downstairs to the kitchen, to the wine rack on the wall next to the microwave. She removed another bottle of cabernet. With the bottle and the corkscrew, she climbed back upstairs to bed.

  Chapter 10

  THE NEXT DAY, in one of the public defender’s dusty storage rooms on the third floor of the courthouse, I thumbed through what was left of the Florida v. Morgan file. A memo told me that on August 22, 1986, most of the original documents had been shipped over to CCR in Tallahassee. At the time, the assistant PD on the case had been someone named Brian Hoad.

  I asked for him, and a legal intern looked up from a volume of Shepard’s Federal Citations. “Try Courtroom Four.”

  I entered Courtroom Four, on the second floor, and took a seat in one of the pews. It wasn’t hard to pick out Brian Hoad, a pale man wearing glasses and sitting next to the defendant, a skinny black man. A young police officer was testifying on direct examination. The prosecutor was a well-built Hispanic woman in her thirties, wearing a dark-blue suit. The judge on the bench looked bored.

  The young cop admitted that having been fired at by the defendant at the scene of the robbery, he didn’t want to give chase. “A man who’s fired a shot will stop and shoot again, and we couldn’t see him.”

  Hoad said, “Objection—”

  “Overruled.”

  “Your Honor—”

  “Don’t argue with the court,” the judge commanded.

  “I haven’t stated the basis—”

  “Next question,” the judge said, stifling a yawn.

  At the recess I introduced myself and asked Hoad if we might talk in the snack bar. This was a thirty-five-year-old lawyer making barely forty thousand dollars a year; many of his clients, who filed affidavits of insolvency or hardship and thus received free legal services, would earn more than he did. He was probably in it because he enjoyed battling authority, didn’t like billing clients, distrusted cops, and believed that the state should interfere as little as possible with people’s lives except to redistribute the wealth.

  I paid for coffee and crullers, and we sat down in two red plastic chairs. “Is that a strong case you’ve got up there?” I asked.

  “About as strong as this coffee,” Hoad said glumly.

  “Then how come you’re in trial?”

  “I handle over three hundred felony cases a year. I try to plea- bargain all but the best. This is a hard-assed prosecutor. She wouldn’t deal. I got screwed.”

  Not as much as your client, I thought.

  “I wanted to talk to you about an old case,” I said. “You handled the appeal. Darryl Morgan—first-degree murder. The trial was back in ‘79, so you may not remember it.”

  Hoad nodded a few times. “Visible case. Shot Solomon Zide.”

  “I was the trial prosecutor.”

  “Jesus.” Hoad laughed. “You?”

  I frowned and said, “I’m a defense attorney now, down in Sarasota.” Hoad was still looking away from me and chuckling. “What the hell’s so funny?” I asked.

  “Well, it’s not really funny. It’s just surprising. When you introduced yourself in the courtroom it was just another name. But now I’ve got it. You’re a kind of legend around here.”

  I remembered what Kenny Buckram had told me: A lot of things went on, you just said, “No, that can’t be, so I won’t look.” I hadn’t realized how much that had hurt me until now, when I found myself virtually praying that this young fellow didn’t have the same opinion, even secondhand.

  “Beldon Ruth asked me to prosecute Morgan,” I said. “It was the last case I did before I packed it in.”

  “You mind if I tell you something?”

  “I hope I’m not going to mind.”

  “I had that Morgan appeal in my caseload for a long time. I
’ve read that trial transcript three or four times, looking for error. You did a fine job in the first stage. Hard to argue with any of it. But in the punishment part, you were lousy. You just gave up.”

  “I didn’t want the Morgan kid to die.”

  “Well, that didn’t help me at all. My chief point on appeal was incompetent defense counsel in the sentencing phase, and one of the judges up in Tallahassee commented, off the record, ‘Mr. Hoad, just between us, it may have been the other way round.’ Another one told me, ‘We can see clearly why the trial judge didn’t accept the jury recommendation of a life sentence. A specific argument in favor of the death penalty, detailing the aggravating circumstances as per Florida Statute 921.141, was not advanced by counsel for the state.’ “

  I sighed. “You had the appeal from the beginning?”

  He nodded. “But I didn’t get over to Tallahassee until ‘81. I had half an hour to persuade the seven dwarfs that Morgan shouldn’t be strapped into an electric chair and jolted to death. Hopeless. Then we got turned down in the Eleventh Circuit. Didn’t have anything to take to the feds in Atlanta, but I went anyway. It’s a beautiful old court. Gives you a feeling that justice might be lurking. But it’s an illusion.” He peered at the dregs in his coffee cup. “One of the judges up there was sympathetic. He said, ‘Counsel, if we rule your way, won’t we also have to grant relief in a lot of other cases that present the same claim?’ “

  “You had an answer for that, I hope.”

  “I said, ‘Yes, probably you would, Your Honor, and probably you should.’ They kicked me out of there in under a hour. But that was already in ‘86. That’s the name of the game. Keep your man alive.” “Did you argue against Eglin’s override of the jury recommendation? That there was a rational basis for the jury sparing Morgan and that the trial judge abused his discretion?”

  “Sure. It didn’t work. In 1987 a man named Beauford White was executed after the jury gave a twelve-to-zero recommendation for life. And there was an override on a guy named Dobbert in 1984, where they’d voted ten to two for life.”