The Trial

by Robert Whitlow

  “No. I wish I did.”

  “If you think of someone, let me know.”

  The following day, Mac spent the afternoon in his law library, but his thoughts often drifted to the evaluation Dr. Wilkes was performing or, he worried, attempting to perform. It was going to take someone with the skill of Anne Sullivan, the woman who unlocked the key to Helen Keller’s dark, silent world, to unravel Pete Thomason’s psyche.

  At six o’clock the phone rang. Mac usually didn’t answer the phone after hours, but he was tired of reading law books.

  “Mac McClain’s office,” he said.

  “Mr. McClain?”

  “Speaking.”

  “This is Anna Wilkes. I’m on my car phone, and the reception is not very good.”

  “I can hear you.”

  “I just finished my evaluation and wondered if we could talk a few minutes before I go back to Chattanooga.”

  “Sure. My office is around the corner.” Mac gave her directions.

  Mac heard the bell on the front door ring and walked from the library, across the hall, to the reception area.

  The psychologist was in her early to mid-forties, medium height, blue eyes with short, slightly curly dark hair. Professional, yet attractive. Mac extended his hand, “Mac McClain.”

  “Anna Wilkes.” She put her hand in his.

  “Would you like a cup of coffee?”

  “Yes. I need a little boost.”

  “How do you drink it?”

  “With everything.”

  Mac led her down the hall to his office. “Have a seat while I get your coffee.”

  He left Dr. Wilkes sitting in his office and went to the break room. When he returned, the psychologist was standing in front of a large, framed photograph of a mountain waterfall.

  “Did you take this picture?” she asked.

  “Yes.”

  Taking a sip of coffee, she asked, “Where is it?”

  “Jacks River Falls in the Cohutta Wilderness. It’s at the end of a four-mile trail along an abandoned roadbed. I’ve been there many times.”

  “It’s beautiful,” she said, sitting down and retrieving a white notepad from her briefcase. The psychologist sat very straight in her chair and propped some reading glasses on the end of her slightly upturned nose.

  “I wanted to talk to you about Pete before I drove back to Chattanooga,” she said.

  “Did you have any problems?” Mac asked.

  “Were you expecting any?”

  “Uh, no, but I’ve seen a couple of outbursts of anger.”

  “He’s angry, but the biggest hurdle I faced was establishing sufficient trust and rapport to conduct a valid interview and evaluation. It took more than two hours to begin testing, primarily because of his depression.”

  “How depressed?”

  “Clinically depressed at a severe level. His depression, however, does not prevent him from understanding the nature of the charges against him. He is not delusional and has real, albeit detached at times, connection with reality.”

  “So he is competent from a mental standpoint to proceed to trial?”

  “Yes. And although he’s legally competent, he claims total amnesia for the eighteen- to twenty-four-hour period during which the crime apparently occurred. Thus, from a practical point of view, I don’t see how he can assist you in preparing his defense.”

  “It’s going to be a challenge. What do you make of the amnesia?”

  “There are several recognized causes of amnesia. The best known is posttraumatic retrograde amnesia, the loss of memory following some physical trauma such as a blow to the head. That’s what usually happens on TV.”

  “Okay.”

  “Pete said he had no signs of physical injury when he was arrested.”

  “Right. He was thoroughly checked at the hospital.”

  “A more common form of amnesia is alcohol- or drug-induced amnesia caused by habitual, long-term abuse of alcohol or mind-altering drugs.”

  “Did he tell you there were amphetamines and barbiturates in his system at the time of the arrest?”

  “He mentioned the test but denied using any drugs.”

  Mac tapped the edge of his desk with his pen. “What do you think about the effect of the amphetamines and barbiturates? Could they have produced the amnesia he describes?”

  “I would like to see the report on the amount of drugs in Pete’s system, but in my opinion a one-night binge of those types of amphetamines and barbiturates would not produce the type of total inability to recall that he claims.”

  “Which means?”

  “He may be faking.”

  Mac winced. “How can I determine if he’s faking? I’ve been practicing law for thirty years, and nobody has perfected a ‘truth-o-meter.’ I don’t trust lie-detector tests, and neither do the courts. They’re not admissible in Georgia unless both sides agree, and I’ve seen cases where polygraph examiners looked at the same charts and came up with different conclusions.”

  “Could you arrange an evaluation with someone you think is reputable?” “Possibly. If the results are favorable, I could show it to the district attorney and say, ‘See. The boy is telling the truth.’ On the other hand, if the evaluator found Pete deceptive, the prosecution couldn’t use it against him because we didn’t agree in advance that the findings would be admissible in court.”

  “What do you have to lose then?”

  “Just a thousand dollars out of my own pocket. The judge won’t authorize payment for an independent polygraph exam.”

  Dr. Wilkes ran her finger past the notes she had written in her notebook. “There is another possibility.”

  “What is it?”

  “Are there still samples of Pete’s blood from that night available for testing?”

  “There should be. They draw at least two vials and retain one in case something comes up later.”

  “I think you need to have his blood retested for other drugs.”

  “I can do that, but I don’t think the police sent someone else’s blood to the lab, and I don’t want more drugs to show up on Pete’s rap sheet.”

  “That’s not the reason. Once he settled down and started talking to me, Pete told me about the results of the blood test on Angela. He said there was Rohypnol in her system but no evidence of rape. Is that true?”

  Mac hesitated. “Is this going in your report?”

  “No. It has no bearing on Pete’s psychological status.”

  “Okay. What he told you is true.”

  The psychologist continued, “Rohypnol has strong amnesiac properties; criminals use it because victims can’t remember the crime. Labs don’t normally check for Rohypnol unless they are specifically asked to do so.”

  “That’s what I’ve heard.”

  “Who can’t remember the crime in this case?”

  Mac dropped his pen on his desk. “I need to have Pete’s blood tested for Rohypnol.”

  “Yes, I think you do.”

  “Do you have any forensic training?” Mac asked.

  “No specialized forensic training, and don’t give me any premature accolades. I’m impartial. I just want to do a thorough job.”

  Mac looked out his office window as he considered the new defense raised by the psychologist’s suggestion. “It’s worth pursuing.”

  Dr. Wilkes continued, “My report will contain the results of my clinical interview, WAIS IQ testing, Rorschach, Beck’s Depression Inventory, and General Achievement Testing. I can summarize by telling you that he is not psychotic, had an emotionally deprived upbringing, and is above average in intelligence. I’d like to do a full-scale MMPI, but I’m not sure the results would be valid given his current level of depression.”

  “Anything else?”

  “No.”

  Mac walked the psychologist to the front door and shook her hand.

  “Thanks for everything. Especially the suggestion about the blood test.”

  “Certainly,” she said smiling.
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  Mac watched Dr. Wilkes walk to her car through the large picture window in the reception room.

  That evening at home, Mac spent a few extra minutes on the deck throwing sticks for Flo and Sue to chase through the dry leaves. The dogs found a rabbit’s scent and, baying at the top of their lungs, forgot about the dead sticks and raced up the next ridge. While he waited for their return, Mac looked up into the clear fall sky as stars made their evening debut. No city sounds or lights intruded into his thoughts or dimmed his vision of the heavens.

  Dr. Anna Wilkes impressed him, and as he stared into the night, a vivid image of her face surfaced before his mind’s eye. He blinked and shook his head. The image faded. Turning, he went into the house.

  8

  I have not yet begun to fight.

  JOHN PAUL JONES

  When Mac returned to the office after lunch the next day, Mindy pulled one of his phone messages from the stack on her desk and handed it to him.

  “Bert Langley from the D.A.’s office phoned fifteen minutes ago. He asked you to call him back as soon as you came in.”

  Mac went into his office and dialed the number.

  “Joe Whetstone is here from Atlanta,” Bert said. “We have a couple of things to discuss with the judge on the Thomason case. Can you meet us in the big courtroom in a few minutes? They’re bringing the defendant over from the jail.”

  “Why is Thomason going to be there?” Mac asked.

  “Judge’s orders.”

  “I’m on my way.” Mac hung up the phone.

  “I’ll be at the courthouse,” he told Mindy as he passed by her desk. “Don’t know when I’ll be back.”

  Mac pushed open the door at the rear of the courtroom. Everyone else was already present.

  Joe Whetstone, his back to Mac, stood in front of the bench, talking with Judge Danielson. When the back door of the courtroom opened, Joe turned, glanced at Mac, and continued his conversation. Mac had never met Whetstone, but the Atlanta attorney had a well-earned reputation as a smooth trial lawyer. Rumor had it the tall, scholarly forty-year-old former assistant with the U.S. Attorney’s office in Atlanta would run for Congress in the next election. Mac knew that close contacts with the Hightower family could prove valuable to Joe’s financial and political future. Potential constituents would hear the name Whetstone and remember Joe as the champion of justice in Echota County.

  Restrained by leg chains and handcuffs and clothed in his orange jumpsuit, Pete Thomason sat waiting at the defense counsel’s table. A deputy with a pistol on his hip stood against the doorway where prisoners were brought into the courtroom.

  As he walked down the gently sloping aisle to the front of the courtroom, Mac felt a few butterflies in his stomach. There was always nervousness before the first blows were landed in any fight, and Mac was very familiar with precase jitters.

  He opened the waist-high wooden gate that separated the judge, jury, and lawyers from the general seating area, deposited his briefcase beside the defense table, and joined Joe Whetstone in front of the judge.

  State v. Thomason officially began.

  “Good afternoon, Judge,” Mac said.

  “Mac,” the judge acknowledged Mac’s greeting. “Do you know Joe Whetstone?”

  “No, Your Honor,” Mac and Joe Whetstone shook hands.

  “We were just talking a little tennis,” the judge said. “Joe plays in an ALTA league in north Atlanta and has a state ranking in his age classification.” “The judge is a dominant force in tennis in this neck of the woods,” Mac said.

  “Perhaps we can set up a time to play after the case is over,” Whetstone said.

  “I could use a lesson,” the judge said. He opened a thick file folder and made the transition from the tennis court to the legal court. “I believe everyone is here. You may proceed, Mr. Whetstone.”

  Mac returned to the defense table and sat down.

  Pete leaned over. “What’s going on?”

  “I don’t know. We’re about to find out.”

  When Joe stood to begin his presentation, the back door of the courtroom opened, and a petite, somewhat breathless young woman, dressed in blue jeans, dark green shirt, and cowboy boots, slipped into the room and sat down on one of the back benches.

  Holding up his hand to stop the prosecutor, the judge said, “Please come forward.”

  The woman looked around and asked, “Me?”

  “Yes,” the judge said. “Come forward and tell me your interest in this case.”

  Her boots clicking on the wood floor, the woman walked quickly down the aisle. “I’m Barbara Williams, a reporter from the Echota Express. I’m covering the Thomason case.”

  “Have a seat in the front row, Ms. Williams, while I handle something with the lawyers.”

  Mac stood.

  “At this time I am imposing a media blackout in this case and instruct all parties and their counsel not to discuss this matter with any media source until the jury is selected and the trial begins.”

  Whetstone spoke, “But—”

  “No, sir,” the judge said. “I do not want any pretrial publicity to taint the jury pool. I don’t want to move this case to another county and inconvenience all the witnesses who live and work in this area.”

  “Do you have any objection, Mr. McClain?”

  “No, sir.”

  “Mr. Whetstone and Mr. Langley?”

  “No, sir,” Joe Whetstone and Bert Langley said together.

  Turning to Ms. Williams, the judge said, “Do you understand my instructions? The lawyers and parties cannot talk to the media about this case until a jury is selected.”

  Mac could see the flush in the reporter’s face, but she bit her lip and said, “Yes, sir.”

  “Thank you. You may now leave the courtroom.”

  They waited until the fading tip-tap of the reporter’s boots signaled she’d left the room. “All right, Mr. Whetstone, proceed.”

  Joe began, “Two things, Your Honor. First, we are filing a Supplemental Notice of Compliance under Brady versus Maryland and the Georgia criminal discovery statute. You have a copy of the notice, and I am handing one to Mr. McClain.” He placed several sheets of paper on the table in front of Mac and Pete. “The State has located several witnesses who will testify about prior similar conduct by the defendant in which he utilized the date-rape drug Rohypnol in an incident involving two young women several years ago in South Carolina. No criminal charges were filed, but as a result of the incident, the defendant was dishonorably discharged from the Marine Corps.”

  “Are statements from the witnesses attached to your notice?” the judge asked.

  “Yes, Your Honor. Some of the individuals were interviewed on tape and I am furnishing a transcript to you and Mr. McClain. Copies of the original tape recordings will be delivered to Mr. McClain by the first of next week.”

  “Go ahead.”

  “I am also delivering to Mr. McClain pictures of Angela Hightower while she was alive and then after her death.” He handed Mac a large brown envelope.

  It was standard practice for prosecutors to show the jury studio-type pictures taken of murder victims before their death. The jury would contrast the face of the deceased while alive with the gruesome photos taken at the crime scene or the morgue.

  Mac remembered a case handled by Gene Nelson in which a young mother shot and killed her alcoholic husband, who frequently beat her senseless. The grand jury charged her with murder. The district attorney waved a glossy photo of the husband dressed in a suit and looking sedately into the camera in front of the jury and told them this was how the victim appeared when he was alive. Gene countered with a blown-up picture of the man in an obvious state of intoxication with a bottle of whisky in one hand and the baseball bat he used to batter his wife in the other. The defense lawyer argued that the photograph was a more accurate depiction of the way the husband portrayed himself to his unfortunate wife. The jury returned a verdict of involuntary manslaughter, and the judge
released the woman on probation.

  Of course, Mac’s case was completely different. The pictures of Angela would be one of the most emotionally damaging parts of the State’s case against Pete. Mac left the envelope unopened on the table and slid it away from Pete’s manacled right hand.

  Pausing to look at Pete, Whetstone continued, “After consulting with Mr. Langley and based on our review of the facts and circumstances surrounding the murder of Angela Hightower, the State has authorized me to inform Your Honor of its intention to seek the death penalty upon conviction of the defendant.”

  Mac jumped to his feet. “Your Honor, there is no evidence of aggravating—”

  The judge held up his hand. “I want to ask that myself, Mr. McClain.” Turning to Joe he asked, “What are the aggravating circumstances supporting imposition of a death sentence? It’s my understanding there was no sexual assault of the victim.”

  “That’s true, but we believe the evidence will show two other grounds which support a sentence of death. First, the defendant is guilty of a murder committed in conjunction with the crime of kidnapping. Although Angela Hightower initially consented to accompany the defendant to Atlanta, there was a change which rendered her continued presence with him to be against her will. Second, this murder was ‘outrageously or wantonly vile, horrible, or inhuman’ and involved an aggravated battery against Ms. Hightower. The manner in which the defendant sought to dispose of the body of the victim and the degree of trauma in her preceding death were particularly brutal.”

  The judge took off his glasses. “Mr. Whetstone, kidnapping may be an aggravating circumstance, but I do not think what happened to the victim’s body after her death would satisfy the legal requirement for the death penalty. Every murder involves some form of injury prior to the person’s death.”

  “I understand, Your Honor. But it only takes one aggravating circumstance to support the imposition of the death penalty. The facts prior to death are still being developed by the GBI and Mr. Hightower’s private investigators.”

  “Anything else?”

  “Not today.”

  The judge turned to Mac, who was still struggling to come to terms with the shift in the magnitude of the case. “Mr. McClain, do you have anything to bring before the Court?”