“Your Honor—” I began.
“No, no, no,” the judge said. “I don’t want to hear argument. I know the issues. There’s a man on death row. Man wants to live, state wants to kill him. Man’s lawyer wants to string things out just as long as he can and keep his client sucking air. Judge wants to get on with the business of his court. Can’t make everybody happy. You got any other live witnesses, Mr. Jaffe?”
“Not today, Judge. But I hope to find some.”
“You pulling my leg?”
“No, sir.”
The judge thought for a while.
“I’m going to allow this affidavit, but I’m going to find that this recantation would not have affected the outcome of the trial. What I’m saying is, Mr. Jaffe, you lose. I’m going to deny your petition for relief. I’m not going to hear argument over a witness who can’t do more than pass gas and talk to us from the great beyond. Bad luck is what it is. But that’s what a lot of things are.”
“Judge-”
“Mr. Jaffe”—the judge leaned forward in his chair, his pale eyes watering—”it was nice to meet you again. Give my regards to Caroline.”
“Caroline?”
“Isn’t she still your wife?”
“No, sir. Never was.”
“Must have you mixed up with someone else.”
I left Fleming’s chambers and walked out into the corridor to tell Darryl Morgan that the state still wanted him to die.
Chapter 22
MY NECK ACHED. My stomach complained, and my joints were sore. I thought I might have eaten a poisoned cheeseburger at the bar on Main Street where I often grabbed a quick lunch. The family doctor diagnosed the symptoms as a new strain of flu, but none of the prescribed medications helped. A blood test showed no evidence of a known ailment.
My fingers grew sluggish when I tried to write briefs or even letters. Ruby came to me one day, distressed, and said, “It’s happened, Ted. I can’t read your handwriting.”
I sweated in air-conditioned rooms and had to keep extra shirts in a closet at the office. My hands shook, and coffee splattered on two new ties and my pin-striped gray suit. I gave up coffee, thinking that it might be the cause of my continuing upset stomach; it was certainly ruining my wardrobe. I cut myself almost every time I shaved. The final indignity was a cyst that appeared on my scrotum. I went to a urologist, who said, “It’s not dangerous, and it shouldn’t grow bigger. Lead a normal life.”
The soles of my feet began to itch. During one Monday morning partners’ meeting I had to take off my shoes and socks in order to rip away with my fingernails at the tender flesh. The pink soles turned red and began to bleed.
My partners stared at me. I didn’t blame them. This was the time that both they and Toba believed I was going crazy.
I had taken my chief witness to the dog track and allowed him to be murdered by a Miami drug lord. As a result, Darryl Morgan had received another death warrant from the governor of Florida. Unless some other court granted a stay, he would be led from Q block and electrocuted in the death chamber at Raiford on August 2, 1991, at seven o’clock in the morning.
Desperate, I filed papers (including the affidavit of a dead witness) with the state Supreme Court in Tallahassee. I had no hope that the court would grant a retrial, but they might providentially grant the stay pending their decision. Indeed, a week later, the court granted another stay for a period of sixty days. I was invited to appear before them on August 27 for oral argument.
“Go for it, Ted!” I yelled, encouraging myself.
I was in the office. Ruby looked in at me. I shrugged, and she withdrew her head without saying a word.
I called Brian Hoad at the public defender’s office in Jacksonville and told him the good news. I was curious as to why the court had scheduled oral argument so early. “I thought they delayed for months, sometimes years. What’s the big rush?”
“They usually do delay,” Hoad explained, “if we or CCR file the petition. But if there’s a private lawyer, that tends to speed things up. They figure your time is valuable, and they know you’re doing it pro bono. They don’t want to keep you waiting.”
“The guy on death row—be might want to wait.”
“That guy, Ted, is a convicted killer. It costs the state money to feed him powdered eggs and keep his TV operating.”
“Would you like to take this case back, Brian?”
“No.” But then Hoad hesitated. “Does that mean you want to give it up?”
“If I did, from what you tell me, Darryl Morgan might live longer.”
“You didn’t answer my question.”
“No, I don’t want to give it up,” I said. “And I will not give it up.” Until he’s free, I thought, or dead.
I instructed Ruby to cancel all my appointments for the next day, flew up to Jacksonville, hired another car, and in the August heat drove down to Raiford to tell Darryl that the Florida Supreme Court was willing to consider sparing his life. I wanted to look in his eyes and strike some spark other than disdain and hatred.
Darryl refused to see me.
Wright had the day off, and I was dealing with another functionary. He said, “There’s nothing I can do about it.”
“What did Morgan say?”
“That he’s busy.”
Jerking off or doing card tricks, I thought. Turning up the volume on the country-music station until my temples throbbed, I drove back to Jacksonville. I was the Don Quixote of North Florida. One of my clients had been murdered by the drug cartel because of my carelessness; I had another who was about to be murdered by the state and was too busy to see me. I kept on tilting at appeals courts, believing them to be instruments of justice when actually they were legal windmills.
On the jet back to Sarasota my feet began to itch. While scratching them, I felt a discomforting sensation in my testicles. I went to the toilet. The cyst on my scrotum had increased to the size of a small pea and now had the color of a strawberry. It itched almost as much as the soles of my feet.
Was there a God? Who else could be testing me this way? I considered going to synagogue next Saturday morning. I needed help from another source.
In Sarasota I was called one morning to Charlie Waldorf’s office at the Criminal Justice Building. Buddy Capra ushered me into an office layered with cloudlike wreaths of smoke. Waldorf’s potted rubber plant had butts stubbed into its gray soil.
From behind his desk, without any preliminaries, Waldorf said, “Robert Diaz in Miami is talking to me about indicting you for tampering with a witness.”
“Diaz is full of shit.”
I dropped into an armchair; then I jumped up and began to pace the room while I talked. “Jerry Lee Elroy wasn’t absent from an official proceeding. I didn’t hinder him from doing anything legal, and I certainly didn’t induce him to withhold testimony. All I did was ask him to testify in another case. And he agreed.”
Capra said, “You took him out of Miami, where he was under the protection of the state authority.”
“Took him? Fuck, no. He went willingly.”
“But secretly. He gave the slip to two deputy sheriffs at the track, didn’t he?”
“If he did, and I wouldn’t know, that was his idea. I wasn’t at the track. I said, ‘Elroy, if you’d care to, oblige me by meeting me at Miami International.’ Lo and behold, he showed up.”
Charlie Waldorf leaned across his desk, like an attack dog ready to spring. I couldn’t see the back of his neck, but I’m sure the hackles were up. “It boils down to this, Jaffe. Did Elroy tell you that pursuant to your request he’d asked one of the assistant state attorneys, a man named Baxter, for permission to leave Miami? And did Elroy tell you permission was refused? And after being told that, did you knowingly aid and abet him to leave? Care to answer?”
Before I tear your throat apart, he wanted to add.
I said, “Only two people know the answers to those questions, Charles. One of them ain’t talking, and the other one can’
t. I didn’t obstruct justice. I tried to do justice. And if Diaz wanted to keep Elroy in Miami, he was tampering with justice.” I decided to lower the tension and, hopefully, the stakes, which happened to be my freedom and my license to practice law. “Listen, I’m truly sorry it happened—believe me, sorrier than you are. But it’s blood under the bridge. So let’s all relax, okay?”
Waldorf said, “You got some fucking nerve.”
Beldon Ruth’s exact words. People were telling me harsh things these days, and I was refusing to listen. I suppose that was the key to survival.
In the elevator I broke into a sudden sweat. The whole time in Waldorf’s office I had wanted to tear off my shoes and socks and rip into the soles of my feet with my nails or a block of sandpaper. Could they indict me? Ridiculous. But yes, they could. State attorneys were lords of a fiefdom. If they woke up grouchy on a given day, they could tack on a hundred years of pen time to the lives of ten different human beings. That our criminal justice system should depend on such people was a mistake. That it depended on people at all made it irreparably flawed.
I was no longer baffled by the source of my maladies. I had to save Darryl Morgan’s life and my health as well. A week later I flew again to Jacksonville, where I took Gary Oliver to dinner at a seafood restaurant on the river.
He was older and grayer now, more sure of himself, and with more of a sparkle in his eye. We had always been formal with each other, but I put an end to that. I’d never quite treated Gary as an equal, partly because he had a drinking problem and partly because twelve years ago I hadn’t thought he was much of a lawyer. Since I’d started smoking again, I no longer had quite the same lofty attitude toward people who might fall into the category of addicts. And I’d come to realize that, in his own way, Gary had done his best for Darryl Morgan. No one could have done better. I sensed that he had what my mother called sitzfleisch—a certain earthy tenacity. I had to learn to look more deeply into people and see what was of value.
At the end of the shrimp cocktail, I said, “Gary, we’re on the same side now. I came up here because I need your help.”
Oliver nodded warily. The last time we talked, he’d been selling. Now he was buying.
“Back in trial, in April ‘79, you believed Morgan was guilty, isn’t that so?”
“Sure, but the kid kept telling me he didn’t do it.”
“That didn’t sway you to believe him?”
“Can you raise corn on concrete?” Oliver said.
“Then why’d you put him on the witness stand?”
“I told him, ‘Darryl, don’t get up there.’ He insisted.”
“He, not you?”
“You think I’m that dumb? He was gonna have his say if it harelipped every mule in Georgia.”
“But when he was on the stand, he never really told his version of what he and William Smith did that night.”
“That’s right. I knew it’d hurt him. Jury’d find him guilty, which they were going to do anyhow, but then they’d give him death for making up such a ridiculous lie. I kept him away from that story of his. I just let him say, ‘No, I didn’t kill no one.’ I figured that’s all he really wanted to do.”
“Gary, I want to run a few facts and theories by you, if you don’t mind. Just consider that you’re singing for your supper.”
“If I can help that kid, I’ll do it.”
I told him just about everything that had troubled me since I had become involved in Florida v. Morgan the second time around. He already knew about Jerry Lee Elroy, and I told him about my hunch that Floyd Nickerson had also lied about Darryl’s confession, and how Carmen Tanagra had all but confirmed it. And about the odd coincidence that had sent Nickerson from JSO to a plush job at a ZiDevco country club village near Gainesville, and about Neil Zide’s slip when at first he’d denied any knowledge of how Nickerson got the job but somehow knew the date of the detective’s departure for Orange Meadow. About the violent death of Victor Gambrel, security chief for Zide Industries—the man who had arrived at the Zide estate only a few minutes before the Jacksonville Beach patrol car. “So what’s your theory?” Oliver asked.
“Let’s assume for the sake of argument that your old client and my new client is telling the truth. He was there at the Zides’—he admits that. But he didn’t pull the trigger on the gun that never turned up.”
Oliver looked at me carefully. “Well, Zide didn’t turn that gun on himself, that’s for sure. And Mrs. Zide didn’t cut her own face that badly. Someone did it.”
“Someone who looks like Darryl?”
“Not many fit that bill.”
“Someone who doesn’t look like Darryl?”
“Only other people around were Mrs. Zide and her son.”
“Yes,” I said.
“Could be. Unlikely, but could be.”
“Why unlikely?”
“She got cut bad, Ted.”
“But not necessarily by a burglar.”
He mulled that over for a while, as I had done on other occasions. “Husband might have cut her. And then she shot him.”
“It’s possible.”
“You don’t sound convinced.”
I asked Oliver how often he’d heard of a middle-aged multimillionaire cutting his wife in the face with a knife. While he was formulating an answer, I added, “In the presence of his adult son.”
Oliver finally said, “Not a good bet. But that doesn’t mean it couldn’t happen.”
“Set that aside for a while. Suppose Darryl and William Smith came there to rob the estate, which is what Darryl says happened. And they arrive in the midst of an argument, and get scared by someone, and run off. Darryl says he saw Connie Zide outside on the terrace, in a bathrobe. So she might well have seen him. Then the family argument resumes, and Zide cuts his wife. She shoots him. Kills him. Maybe she didn’t mean to do it, but there he is, dead on the patio floor. She freaks out. It’s justifiable homicide, maybe, by reason of self-defense, or maybe it’s manslaughter. Or maybe it’s murder. She doesn’t really know. She’s not thinking clearly. So she says, ‘Hey, I’ll blame it on Darryl Morgan. Just a big ignorant nigger. And he was here. That’s a fact.’ “
Oliver shook his head slowly. “That would make her out to be a mighty mean woman. She didn’t strike me that way.”
“No, she’s not mean,” I said. “But you never know, do you?”
He was silent awhile, but I could tell that the taste of the thought intrigued him. “You think that’s what happened?”
“Not really.” The truth is, I couldn’t imagine the woman I had made love to, the woman who had wept in my arms on Cumberland Island, deliberately pointing the finger of guilt at a young man she knew to be innocent; proclaiming, “He did it.” She would have realized that her word—and Neil’s, if she convinced him to go along with her story—would be enough to put Darryl away for life or send him to the electric chair. But she hadn’t wanted Darryl to die; I remembered that. She had felt for him as a human being.
But maybe she didn’t want him to die because she knew that he was innocent.
Oliver stroked his jowls and said, “How does Floyd Nickerson getting that job tie in with the rest of it?”
“It’s pretty blatant, but it could have been a payoff.”
“And Gambrel’s murder?”
“Maybe that doesn’t tie in at all. You know how it is when you’re trying to shape a theory of defense. You clutch at everything and anything.” Finishing my coffee, I called for the check. “You were an investigator before you took up lawyering, and Beldon told me you were pretty good at it. Why don’t you sniff around? You could talk to potential witnesses. I never sat down with the security guard back then—he may have seen something that he didn’t report to the police. The deal is, if I win the appeal over in Tallahassee, and there’s a hearing or a retrial, I’ll ask you to sit second chair with me. For whatever’s your standard fee.”
“How much money are you making out of this?” he asked.
“Well, I’ll take a fair half of your diddly.”
I had watched Oliver drinking. He seemed to be taking it easy, in control. I gave him a Xerox copy of my notes.
Changing the subject, I said, “Gary, when I was down at Raiford I assaulted a prison official. I broke his nose.”
Oliver’s eyes widened. “No shit.”
“When the moon is full, I lose control. Turns out it’s a second- degree felony. Will you represent me in Bradford County? Not for diddly, but for whatever your normal fee is. And we won’t argue about that.”
“Hell, you got werewolf tendencies and you broke a prison official’s nose. Who’s gonna argue with you?”
In a week’s time he called me in Sarasota. He had gone down to Bradford County and poked around. Clive Crocker was willing to drop civil charges in return for payment of his medical bills, plus five thousand dollars as compensation for his physical suffering and the emotional humiliation in front of his colleagues. He would sign a waiver of prosecution, meaning he would agree not to testify. Then it was up to the state attorney’s office in the county; they could still go forward if they felt they could win the case through other means, with other witnesses.
“Why would they do a shitty thing like that?” I asked.
“Hey, you were a prosecutor,” Gary Oliver said. “You tell me why they’d do it.”
“To be shitty.”
“And that happens, as we both know. You got to risk it.” He chuckled in my ear. “You know, if they nolle-pros the case, Ted, they’re gonna want you to sign a waiver of liability against the sheriff’s office.”
“Anything else?” I asked. “Would they like me to bend over in front of the courthouse and take it up the culo at five bucks a man for the sheriff’s annual picnic?”
But when I got home I closed a tax-free mutual fund, and the next day I had Ruby mail a certified check. I thought of signing it Fuck you. Who reads signatures? But I scrawled my name instead.
In Sarasota County, Toba finished her deposition. She was told by the wolf spider woman’s lawyer that a settlement of $75,000 would be acceptable at this early stage of the proceeding. If not, Mrs. Hart was going to court to sue for half a million.
Clifford Irving's Legal Novels - 02 - FINAL ARGUMENT - a Legal Thriller Page 23