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

by Clifford Irving

  “Who are they? I hate surprises.”

  “You might like this one,” he said, chortling, and there was nothing I could do about it.

  I was going over the Nickerson tape and getting some notes together before I drove down to Raiford that morning to see Darryl. I told Gary where I’d be. “If you don’t see me, look underwater at the deep end.”

  Half an hour later he showed up at poolside with an attractive but fidgety black woman who appeared to be about thirty years of age. She was wearing brand-new bluejeans and a well-filled pink sweater, but her hair needed brushing. With her were three children, two girls and a boy. One girl was about ten years old, the other was probably seven or eight; they held hands, giggled, and whispered together while they stared at the pool and the rising sweep of the hotel. The boy was tall, lean, and good-looking, a bit surly in manner, maybe sixteen years old. He wore an old sweatshirt with a picture of Magic Johnson, and his jeans had the requisite holes in the knees. He looked like a young Darryl. For a few moments, as they all approached from the lobby, I thought that some cousins of Gary’s might have hit town from the boondocks, and he didn’t know what else to do with them other than drag them over to my hotel. This didn’t please me. Then it occurred to me that the boy who looked like a young Darryl looked a lot like a young Darryl.

  “This is Pauline Powers,” Gary said, and the mother of the kids bobbed her head a few times and reached out to shake my hand. “And this is Polly and Priscilla”—the girls giggled even harder— “and this is Tahaun. His birth name was Peter, but he changed it himself just recently. Says it’s everyone’s right to choose his own name, and he thought Peter Powers sounded silly. That cute stuff’s okay for girls, but not for boys. You get the picture? Tahaun’s an African name, he tells me. He’s Darryl’s son.”

  We drove down to Raiford together in Gary’s Cadillac. The men were in front, with Tahaun squeezed between us, and the women in back—that’s how Gary set it up.

  By the time we turned off the interstate I knew that Tahaun rooted for the Lakers and the Dolphins and the Braves, and wanted to be a basketball star but was worried because he was only six feet two. His favorite music was rap, but he surprised me by saying he liked the Beatles and Elvis too. He was still a bit surly, but I sensed you could beat through it if he believed you liked him. He was a high school sophomore down in Boca Raton, where Pauline was the assistant manager in a Kentucky Fried Chicken.

  She was only fifteen when Peter/Tahaun was born, and a few years later she married. Her second child died of crib death. Then came

  Polly and Priscilla, and then a while back her husband, Powers, an auto mechanic in Boca Raton, was killed by a hit-and-run driver. Recently she saw on TV that Darryl was getting a new hearing for a murder he’d committed thirteen years ago. She hadn’t known about the murder or that the father of her son was on death row. She’d lost all touch with Darryl since he was a resident at the Arthur C. Dozier School for Boys. She had a car, and a week’s vacation coming.

  “My children never see where I was born,” she said to me.

  I could look at her face in the rearview mirror. I caught her eye for a moment, and she looked away. Then she shrugged.

  “My husband, he was a short man. Tahaun wanted to know how come he get to be so tall. It ain’t me, I tell him. After that, he asked about his natural daddy all the time. Drive me up the wall. Not much I remember about him, and that’s a fact, except how big the man was.”

  “You want to meet him?” I asked Tahaun.

  “Yeah.”

  “We’ll try.”

  In a strange way, Assistant Superintendent Ray Wright and I had become friendly. I don’t know how that had come to pass, except perhaps that we saw each other so often it was a bit absurd to go on sniping at each other. I suppose each of us suspected somewhere under the other’s skin was a human being, if you dug deep enough with a pointed instrument.

  I suggested to Gary that he take the girls into Starke for something to eat and to see the sights, and I would ask Wright if Pauline and Tahaun could join me in the visit. Darryl and I had met the last couple of times in the attorney’s visiting room, the same room where he’d once tried to strangle me. There was an assumption now that my life wasn’t at risk. I hoped it was correct.

  When I explained to Wright who I had with me, he thought it over for a few moments. “How old is the boy?”

  “Eighteen.”

  He peered out into the anteroom, where Pauline and Tahaun sat stiffly on two plastic chairs.

  “He doesn’t look eighteen. Are you sure?”

  “Yes.”

  He sighed heavily. “You’ve got a lot of nerve, Jaffe. Anyone ever tell you that?”

  “I’ve been told,” I admitted.

  “They can see him if you’re with them.”

  So Darryl met his son and the woman whose photograph as a fourteen-year-old girl he’d had on the plank of plywood at Dozier. He was shy with her, and she with him. They were strangers, of course.

  When I introduced him to Tahaun, Darryl blew out his breath in amazement. “God damn he muttered. “I knew it.”

  They shook hands, then drew back and measured each other for a while. They looked more like brothers than father and son. Darryl, even though he had gray in his bushy hair, was a man of only thirty- three. To me that was young. He was huge and powerful, and even if Tahaun didn’t grow that tall, he would look like his father one day.

  “You play any ball in here?” Tahaun asked.

  “Hell, no.”

  “What do you do?”

  Darryl thought for a while. There was a great deal, I realized, that he could have said. He could have told this boy stories that would raise the hair on the back of his sixteen-year-old neck. He could have mesmerized him with tales of brutality and death and absurdity and hustle in the joint and on the row. He could have told him how in the chill early mornings they rattled the spoons against the bars until the lights dimmed and they lost another brother to Big Wooden Mama.

  “I’ll show you what I do,” he said. Leaning forward a bit, in one smooth motion from his back pocket he slipped out a deck of worn playing cards—one of the decks I’d given him—and a few skinny rubber bands that looked as if they were ready to fray and snap.

  He entertained Pauline and his son and me for half an hour. His bony brown fingers seemed swifter than rips of lightning; I never saw what they did. The moons of his fingernails flashed under the fluorescence that beamed down from the ceiling. Pauline squealed with pleasure. Tahaun just stared.

  With Darryl there were no jerky motions, no hand wagging. His misdirection and timing were as elegant as I’d seen. The hand, of course, isn’t really quicker than the eye, but it’s more clever. And the tongue is the hand’s partner. Darryl didn’t say, Pick a card. He looked at Tahaun and gravely intoned, “You’re my son, so we got an affinity. I can read your mind, just like your mama can. I can see in your naked eye that you doubts me, so I’m going to prove it to you.” And then, without touching the deck, Darryl ordered Tahaun to bury a chosen card and fan out the pack. “I wants you to keep your eye on my hands and this deck of cards, and don’t let your mind wander. Concentrate! Think of that card! Think hard, boy!” And he guided Pauline’s finger until it quivered over what turned out to be the king of hearts.

  “That’s it,” Darryl cried, seemingly flabbergasted. “Pauline knows!”

  “That is it,” Tahaun said, and he was flabbergasted.

  “Do it again,” he told his father.

  “Can’t. I got to rest. The strain on my old brain is too much.”

  A few minutes later the boy and his mother left; Gary Oliver was returning to pick them up. Darryl and I went to work on what we wanted to happen in Judge Fleming’s courtroom.

  When I was gathering up my papers and about to go, he said, “What you think of my boy?”

  “Good kid. Determined. What do you think?”

  “Don’t know what to think.” He seemed mysti
fied, as Tahaun had been at the sleight of hand. “He say to me, he don’t like people to laugh at other people. Seem like a nice boy. But I tell you something you not going to believe. I knowed from jump street I’d run into him one day. Used to know that, I mean. Once I got locked up and they got fixing to kill me, seemed like I’d never see him—sure didn’t think I’d run into him here. But I did. Fuck, man, I did.” He thought for a long time, brows knitted together, and then put his hard hand on my shoulder. That was the hand that had nearly strangled me to death last spring before the guards had stopped him. His fingers squeezed into my trapezius muscle.

  “They come see me again?” he asked.

  “You want that?”

  “Sure I wants it.”

  “I’ll try to arrange it.”

  Chapter 26

  IN THE YELLOW glare of the overhead bank of lights, Judge Horace Fleming’s bald skull shone like a nearly full moon reflected in flesh- colored mud. His huge courtroom had a twenty-foot-high ceiling; it reminded me of the courtrooms you see in documentaries of Nazi Germany. The pale walls weren’t particularly clean. The witness stand was a boxy desk far from the lawyer’s lectern. The judge’s oak bench swept in a magisterial arc halfway across the room. Such a courtroom was designed to invoke the terrifying potency of the law: to remind us, as if we needed to be reminded, that the law can change lives, that the law has the power of life and death.

  This was the same courtroom where Darryl Morgan’s trial had taken place and where Judge Bill Eglin had overridden the jury and pronounced his sentence.

  Here now—half-glasses perched on the end of his bulbous nose, the whites of his dark eyes threaded with bloody little veins—Horace Fleming reigned, in his fashion. He drank cup after cup of strong coffee and sometimes during the examination of a witness would beckon to his court clerk to bring him the fruit bowl that she kept on her desk. In it was a cornucopia of fruits, which always included a couple of gleaming Washington State Red Delicious apples for Muriel Suarez. (There was no honeydew melon for me, but I didn’t take that as a slur.) The judge himself, no doubt in deference to the state of his dentistry, ate only soft pears and bananas.

  A moment came during our hearing when he halted a cross-examination, turned to the crowded courtroom, and dangled a banana peel at arm’s length. “Ladies and gentlemen, behold—the perfect fruit!” He then waggled a finger at the court reporter and said, “I want that on the record. I want the world to know.”

  Then he indicated to the lawyer and the witness that they could proceed.

  The judge was almost always cordial, and if you argued or contradicted him he didn’t chop off your head or banish you from the realm. He simply ignored you. He went on his merry way, customary procedures be damned. It was all personal, all dictated by mood. The rules of evidence? You could throw them out the door. As Kenny Buckram had said, it was always interesting. Certainly challenging. But it was, also, often dangerous. Because when you got through chuckling, you realized there was a man in that courtroom whose life was on the line.

  There was no jury. This wasn’t a trial, merely a hearing to determine whether or not there should be any change in Darryl Morgan’s status. The judge, after hearing the evidence, could dismiss or grant my motion for a new trial; he could commute the death sentence to life; and in extraordinary circumstances he could even send Darryl home, if such a place existed.

  It was an open court, and the press had learned what was going on. A former prosecutor under threat of sanction by the Bar Association was attempting to plead on behalf of a black man he’d sent to death row. It was Horace Fleming’s last case before Beldon took over his judicial appointment. Zide was a name to be reckoned with in Florida; the murder was remembered. It was rumored that the widow as well as the heir were going to perform on behalf of the state and do their best to enlighten Judge Fleming as to what had happened out at the beach on that terrible night in 1978.

  The Star and the National Enquirer decided to give the hearing full coverage. The recession and the famine in Africa and the demise of the Soviet Union weren’t hot news anymore. A black man on trial was hardly a rarity, but for precisely that reason this case suddenly captured people’s attention. Then the New York Times and even the Wall Street Journal sent reporters down.

  On Monday morning the courtroom was full.

  Muriel Suarez and John Whatley—the young assistant state attorney who’d been there when Fleming ruled against us in the matter of the affidavit from a dead witness—carried the banner for the State of Florida, but you could feel Beldon’s presence as the éminence grise. In fact, on opening day in early January, in his navy blazer with nautical gold buttons, he was outside the courthouse to talk to the reporters and the TV cameras.

  “Do you feel it’s appropriate,” Time’s stringer asked him, “for your former chief assistant state attorney to be representing the man he sent to the electric chair?”

  “We’re about to make our feelings known on that matter,” Beldon said cordially, sucking his unlit pipe and looking like a college professor about to become emeritus. “And then it’ll be up to the judge to decide.”

  As soon as Fleming rapped his gavel and asked if the state was ready, and then if the defense was ready, and I replied, “Yes, Your Honor,” young John Whatley sprang to his feet.

  “If it please the court, the State of Florida moves to disqualify Edward Jaffe as counsel for the defense in the matter of Florida v. Morgan.”

  “Why?” Fleming demanded.

  Whatley gave all the reasons, and it was clear to me he’d been coached by the master. He was no longer the long-winded boy who had argued the previous April against the inclusion of Elroy’s affidavit. He was personable and deeply confident, a young man being groomed for higher things. His gray suit was perfect for the role: it didn’t hang too well on the neck, and the dark-blue tie over the white shirt had a skinny knot that was slightly askew. Juries would love him. A great many judges would give him leeway.

  Fleming peered at me over his tortoiseshell glasses. “Mr. Jaffe, what say you?”

  I said, “Your Honor, I could answer in kind, and quote cases and precedents and high-minded concepts like impropriety and alleged confidentiality, but I think this argument boils down to answering just two questions. The first question is: Shouldn’t a defendant in a case as serious as this—in any case, for that matter—have the right to be represented by the lawyer of his choice? And the second one is: In the interests of truth, shouldn’t that lawyer be permitted to bring to bear all the facts at his disposal, provided he didn’t come by those facts illegally? What is the state afraid of? That I know things I shouldn’t know? Is that possible in a court of law? Is there anything that shouldn’t be known? Doesn’t full knowledge lead to an approximation of justice?”

  I might have gone on, but the judge was frowning and waving his hand back and forth at me in an admonitory gesture; so I shut up.

  “You’re wasting your breath, Mr. Jaffe,” he said.

  Now it was my turn to frown.

  Judge Fleming said, “I don’t mind people thinking I’m senile and stupid, but I don’t want to give them any proof. If any of you lawyers think we’ve come this far just to turn tail and go fishing, you’re in the wrong courtroom. State of Florida, call your first witness.”

  Whatley started to open his mouth again, but Muriel Suarez yanked him by the sleeve of his jacket and stood up at the counsel table in the well of the courtroom. In contrast to her colleague, who was dressed in what might well have been a mail order suit, she wore a black wool nipped-at-the-waist Italian-looking creation and filigreed gold eyeglasses. Other than lipstick she used no makeup today, so that she looked like a scholarly courtesan. Even Fleming couldn’t keep his eyes off her. A couple of television reporters were in the courtroom, and their cameramen jostled to position themselves and their minicams on the other side of the glass-paneled courtroom door.

  “Permission to approach the bench, Your Honor,” Muriel said.


  “Come right up.” The judge crooked a gnarled finger to beckon. He couldn’t refuse. And a closer look at Muriel probably didn’t seem like a bad idea.

  Up there we could only whisper. I leaned across the oak bench, with Gary Oliver at my side and chewing on the end of a pencil just as he had done thirteen years before. Muriel leaned from another angle, backed up by an eager John Whatley. The judge bent forward with an audible creak, turning up his hearing aid.

  This was all off the record. Here at the bench, sometimes, trials were won or lost. And here, now, Muriel Suarez on behalf of the State of Florida played her hole card. It had been there all along to be played whenever she felt she needed it. Of course it had been provided to her by Beldon Ruth, who in turn had had it provided to him by the governor of Florida, who needed Beldon’s support in the always restless black community of Jacksonville.

  “Your Honor,” Muriel said, “we hope you won’t take this the wrong way and think we were playing games. We weren’t. And we aren’t.” She spoke softly and almost seductively. “The state is now willing to join the defense in a motion to commute the sentence of Darryl Morgan from death by electrocution to life imprisonment.”

  “Well, well, well,” said the judge.

  He seemed surprised and not at all annoyed. Close to death, he probably didn’t fear it, but he knew that at seventy-nine he had a somewhat different point of view than a man of thirty-three. He turned to me, beaming. “What say you, Mr. Jaffe?”

  I was surprised too. I was more than surprised. I cleared my throat and told him that I’d have to consult with my client.

  “How long will that take?” the judge asked, a little puzzled by what he took to be my coolness.

  “I don’t know, Your Honor. Maybe half an hour. Maybe a lot longer.”

  “But no longer than that?”

  I wasn’t quite sure what he meant, but I said, “No, sir.”

  “Mr. Jaffe, this isn’t what I’d call a complicated decision. You get my point? But we’ll recess until ten o’clock tomorrow morning. That should give your client plenty of time for making up his mind whether he wants to live or die.” And for me to pack a lunch in the cooler and go fishing, his eyes said.