I told him I’d make some calls to see if there were free legal services available for his parents, and said to tell his sister she could call me if his parents were picked up.
Howard was my last visit that day. Because he was in the Adjustment Center for the latest in an ongoing series of small infractions of prison rules, he was not allowed a face-to-face visit, nor could I buy him anything to eat or drink. Instead, we each sat in an airless, closet-sized room with a glass partition between us, and talked over bad telephones.
Howard was more lucid and less demanding than usual. His letter-writing campaign had for once paid off, in a small way. He’d received a sympathetic letter about his plight from an NGO in the Netherlands; he held it up to the glass for me to read and promised to send me a copy. He had been getting visits from a prison chaplain, though Howard didn’t think much of the man’s knowledge of the Bible. Howard spent a long time recounting in microscopic detail their disagreements about the meaning of the Book of Revelation.
“I told him about my case,” he said.
“Howard, you know you’re not supposed to talk about your case to people outside your legal team,” I said. The warning was a formality at this point; Howard had spent the last decade and a half talking about it to anyone he could corner.
“I told him I’m innocent. I explained the conspiracy. He was pretty shocked. Not surprising. Everyone is when I tell them about it and that I was in jail when Jared Lindahl was killed. They all wonder why I’m still here.”
“Well, I hope we can get you out soon.”
“How is Steve Scanlon? Have you met him yet?”
“No, but Mike has. I gather he’s okay.”
“Good. He’s done his best to help me.”
I’d been nonplussed by Howard’s calmness. Finally, I asked him point blank, “Howard, are you taking a new medication?”
“In fact, yes,” he said. “They’re making me take Risperdal.”
“How did that happen?”
“They thought I was suicidal, but I wasn’t. Anyway, they sent me to the psych ward and got a court order, so I have to take it for a year, they say.”
The things that happen between visits, I thought. No one from the prison had told us any of this. “Well, you seem calmer,” I said.
“I’m just tired all the time,” he said. As if to prove his point, he yawned. “If you don’t have anything else to tell me, I’ll go back to my house and take a nap.” He gestured behind him to the guard stationed behind the no-contact booth, and within a minute, he was being handcuffed. He turned away without a goodbye, and I was free to go.
I hadn’t even reached my house when the next ax fell.
17
“I suppose I shouldn’t have been surprised that they’ve assigned Judge Redd to Howard’s hearing,” Mike said, when I called him, after listening to his voicemail. “Actually, I’m a little surprised they didn’t pick him first, since he was the trial judge.”
“Is it really that bad?” I asked. As far as I could tell from reading the transcript of Howard’s trial, the judge, except for keeping all evidence of the Aryan Brotherhood’s involvement in the murder away from the jury, had more or less sat back and let Howard bury himself.
“Well, his nickname locally is Judge Dredd.”
“Ah,” I acknowledged.
“Howard’s Luck,” Mike sighed. “Again.”
At some point we had given the name to the endless series of misfortunes and reversals that seemed to follow Howard through his life.
“I wish I had a nickel,” I began singing, “I wish I had a dime; I wish I had a boyfriend, to kiss me all the time.”
“What’s that?” Mike asked.
“An old hopscotch song. Just seemed right for the moment somehow.” I went on. “My mother took my nickel, my father took my dime; my sister took my boyfriend, and gave me Frankenstein.”
“Huh,” Mike said. “Sounds about right.”
“And the funding cut?” I asked.
“Pretty bad,” he said. “I talked with Mary, the claims person, and she said the court is taking the view that most of the investigation must have been done already, when Gordon Marshall had the case, so we didn’t need all the money I was asking for. She said I could ask them to reconsider, but she didn’t sound real hopeful. The only good news is that the court approved money for Ida Rader to testify as an expert.”
“So what do we do now?”
“I’ll have to assign less work to Dan,” Mike said, “and you and I do more of the investigation. I can do unpaid work, but I don’t have the money to pay a lot of expenses. I’ll make sure you’re paid for your time.”
“Don’t worry about that,” I said, esprit de corps rising grandly above the mundane thought that I had a living to make. “In for a penny, as they say. What do we still need to do—aside from the hearing, of course?”
“Well, Dan and I have gone to see most of the guys we know about. There are a couple more we need to visit, one in prison and one out. Then there’s the discovery litigation. By the way, Judge Redd’s clerk called this morning about setting a date for a status conference. He wants to set dates for the hearing and find out how the discovery has been going. He thinks we can do it by telephone, save a trip down there. He wants to do it at eight in the morning, a week from Friday. Does that work for you?”
It did, and I said so.
“Fine. I’ll let her know.”
“Have we heard anything about discovery yet from Blaine?” I asked.
“Not a peep. We’ll see what she has to say at the hearing.”
18
The morning of the hearing on our discovery motion was cool and foggy, and the whiteness of the light inside my little house reminded me of snow. While I puttered around the kitchen, feeding dog and cats, grinding coffee beans, and pouring cold cereal, I mused about paying Maggie a Christmas visit to see real winter and the Northern Lights.
After breakfast, as I waited for the phone call and shrugged a flannel shirt over my jeans and cotton tee, I felt grateful that I didn’t have to be in a suit and even more grateful that I didn’t have to be in Wheaton, where the daytime temperature at this time of year would probably top out at well over a hundred degrees.
The phone rang. It was Mike conferencing me in, and soon I could hear the judge, Frank Willard, and Sandra Blaine. For the benefit of the court reporter transcribing the call, the judge recited the nature of the hearing, and we stated our appearances.
Judge Redd didn’t waste time. “So, before Judge Brackett recused himself, you had a hearing set for October, right?”
We all murmured agreement.
“And discovery compliance the middle of September?”
More murmurs of assent.
“Well, unless something has changed, I’d like to keep those dates.”
More murmurings, this time with an undertone of uncertainty, as we all presumably checked our calendars. Willard and I came back saying both dates were still good for us. Mike said he now had a preliminary hearing on September 18, the date set for discovery compliance, but the October hearing date was still clear. The loudest whining came from Sandra Blaine, who said she had conflicts on both dates.
“How is the discovery compliance going?” the judge asked. “That should be almost ready by now, shouldn’t it?”
Blaine hemmed and hawed. She had been so busy with other cases; it had been very difficult to conduct the review.
“How far along are you?” the judge asked. She had to admit that she hadn’t yet gotten the files from storage.
The judge was not amused. “You’ve had all spring and summer, and it’s nearly Labor Day. You have almost a month before the 18th. Surely you can do your review and make the materials available to Mr. Barry by then. I don’t want to have to continue the evidentiary hearing because you haven’t provided timely discovery.”
Blaine hedged. She was sorry she hadn’t been able to get to the files, and she couldn’t do it now because she was l
eaving on Labor Day weekend for a three-week vacation in Europe. The judge was unimpressed. “I’m sorry, Mrs. Blaine,” he said, “but I’m not letting this hearing be delayed any more than necessary. I tried Mr. Henley’s case. It seemed fairly simple. I can’t imagine that the district attorney’s files would be particularly extensive or that there was anything of significance that wasn’t given to Mr. Henley or his advisory counsel. You should be able to assign someone in your office to get them from storage and go through them for work product or whatever. I’m ordering you to do that and to have the discovery available to Mr. Barry and his co-counsel by September 18th. No more excuses; is that clear?”
“Yes, Your Honor,” Blaine said. I wondered if she wasn’t thinking she might have had a better bargain with Judge Brackett.
“Good. Mr. Barry, did you say you had another hearing on September 18th?”
“Yes, Your Honor,” Mike said, “but Ms. Moodie can take care of reviewing the discovery.”
“Good. Mrs. Blaine, find someone from your office to take care of it, and let Mr. Barry and Mr. Willard know who that person will be. Can you do that by the end of the day today?”
“May I have until Monday, Your Honor?”
“Okay, Monday.”
Blaine wasn’t finished. Her next problem was that in the time after Judge Brackett had recused himself, another department had set one of her cases for trial on October 11, and she was sure it would go for at least a week, and perhaps two.
“How about continuing the hearing to November 1st?” the judge asked.
Mike liked that, and I, as usual, had nothing else I was doing. There was a ragged chorus of, “Thank you, Your Honor,” some probably more sincerely meant than others, and we all hung up.
Mike called me right away. “Well, that didn’t go too badly.”
“Better than I expected. It may just be me, but I get the impression Judge Redd isn’t exactly fond of Blaine.”
“Well, he probably knows her pretty well; my guess is he can tell she’s stonewalling. Glad he reacted the way he did.”
“Maybe he won’t be so dreadful after all.”
“You will be able to go to Wheaton on the 18th, won’t you?”
“Yes, no problem.”
“Great. I want to be there to see the files as soon as we can. I don’t want Willard to get there first; he might talk them out of giving us stuff. I just hope they don’t have the bright idea of calling him before the date. Not much we can do about it, though.”
“We have to send Blaine and Willard our discovery, too. Are you taking care of that?”
“Yeah. We don’t have anything to give them at this point but a few interview reports from some of those old-timers Dan and I saw. Now that we know the hearing date again, I’ll have to send subpoenas to the Department of Corrections for debriefing documents on Scanlon and a couple of other people. I’ll get Annie to do those. It’s good to be moving again.”
19
In early September I flew up to Alaska to see my sister Maggie in Fairbanks.
Maggie took a few days off from her job in the IT department of the university, and we spent my visit picking blueberries and low-bush cranberries, feeding and running her wildly energetic pack of sled dogs, soaking in the hot springs at Chena, and catching up on each other’s lives. I admired the raspberries and giant cabbages in her garden, and she envied my ability to grow tomatoes.
“You’ve become a real end-of-the-roader down there,” Maggie said one day as we drank gin and tonics on her deck on one of those gold afternoons where the summer sun seemed to hang forever in the sky above the spruce trees. “You may as well move back here.”
I’d hated the four years I’d spent in Anchorage, following my parents’ quixotic decision to move there from California. But Fairbanks was different. On visits to Maggie and her husband Pete over the years, I’d grown to love the vast and forbidding Alaska interior; and now that I’d gotten over my youthful resentment at being forced to live thousands of miles from any center of culture, moving back north didn’t seem quite so unrealistic—at least in the summer. It would be nice to be near my family, I thought, especially with Gavin so far away in Australia. “Alaska is beautiful,” I acknowledged, “but I’m too settled where I am. I don’t think I could get used to snow again.” Or eight-month-long winters, I admitted to myself.
I was on the second leg of my trip, visiting my other sister Candace and her enviably perfect family outside Anchorage, when Howard’s case lurched back into my consciousness. An email arrived from Mike: “Bad news. The state Supreme Court cut my investigation funds request in half. We’ll need to talk when you get back.” Maggie would have cursed mightily in sympathy with me over the bad news, but Candace and Emil didn’t have much pity for convicted murderers or the money problems of court-appointed lawyers. So I shut up about it, listened to Candace expand on the accomplishments of her children, and enjoyed the hikes we took in the state parks around Anchorage, the panoramic view of the mountains from her living room, and the salmon Emil barbecued for us the evening before I had to leave.
I barely had time, it seemed, to collect Charlie and do my laundry from the trip, when it was time to head back to Wheaton.
20
Before leaving I called the district attorney’s office and talked to the deputy district attorney who had been assigned to pull the prosecution files in Blaine’s absence; he confirmed that they would be ready and waiting for me. I also called Dot Henley, to let her know I’d be in town and invite her to lunch, if I finished my review in time.
The Central Valley in mid-September was still breathlessly hot outside the windows of my air-conditioned car, and beyond the irrigated fields and orchards, the hills were dusty tan after the rainless summer. The air was hazy with the smoke of distant wildfires, and now and then I passed a fire truck on its way to or from the mountains.
Wheaton was quiet on a warm Sunday night, and I ate dinner at the Mexican restaurant where Mike and I had gone before, surrounded by families gathered around festive plates of chips and guacamole and fajitas. Back in my room, I fell asleep watching a forgettable romantic comedy on the hotel’s movie channel.
At the district attorney’s office the next morning, I was greeted by a young man and woman who seemed hardly out of college. The man was the deputy prosecutor who had been left in charge of giving me the Henley and Scanlon discovery, the woman a paralegal who was assigned to sit with me while I reviewed it.
The prosecutor, whose first name was Adam, handed me a business card and a manila envelope. “Copies of CDs and cassette tapes,” he said, making a disapproving face. “I would have put them on a flash drive for you, but we don’t have the equipment, so the best I could do was copy them onto a DVD.”
They showed me to a vacant office, where a small stack of boxes stood on a desk and another stack on the floor beside it. “The ones on the desk are Henley’s, the ones on the floor are Scanlon’s,” Adam said. “We’re still in the process of scanning the discoverable material, but because of the court’s order, we’re making the originals available to you to review today. We should be able to send you the scanned copies in a few days.” The paralegal, whose name was Candace, volunteered to make photocopies of anything I wanted. They seemed a little worried that the compliance wasn’t on schedule; apparently Judge Redd was not to be trifled with.
Candace found a chair in a corner of the office and sat, reading a textbook of some sort, while I set up my computer and portable scanner and pulled a stack of file folders from the first box.
Most of it was the usual stuff you find in case files: police reports, coroner’s investigator reports, crime-scene photos, the autopsy report and photos, rap sheets of the defendant, the victim, and some of the people interviewed about the crime. A lot of the pages had numbers stamped or handwritten in their corners to identify them as discovery materials; those would have been given to the defense before the trial. I had a list of the numbered pages we had already in the files of
Howard’s previous attorneys. As for the rest, I scanned some and had Candace make copies of others. It was a tedious process. When Candace and I had to leave the office for her lunch break, I wasn’t quite through the files of Howard’s case. I called Dot and postponed our meeting till the next morning, and then ate a lonely and unceremonious lunch at a sandwich place near the courthouse before hurrying back for the afternoon.
The letter almost escaped my notice. It was the middle of the afternoon, and I was in a slump that even the giant iced coffee I’d brought back from my trip into the noonday heat hadn’t lifted. I was skimming through documents from the files of Scanlon’s case, scanning or having copied anything I didn’t remember seeing before.
The jail deputies had intercepted several “kites,” letters sent between jail inmates, from Scanlon to other men in the jail, and had given copies to the prosecutor. I was leafing through them when I turned a page and saw a fax cover sheet and behind it a photocopy of an envelope addressed to Steve Scanlon and a two-page letter. The cover sheet was from a parole office in Wheaton and addressed to a detective in the Wheaton police department. On it was a handwritten note reading, “Letter confiscated during the search of Steven Scanlon’s vehicle on February 6, 1999.”
On the envelope the sender was given as Calvin McGaw, the return address was Folsom Prison. The letter itself was handwritten; between that and the poor quality of the fax copy I decided I didn’t have time to try to read it. None of the documents—the cover sheet, the letter, or the copy of the envelope—had discovery numbers on them.
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