“The usual,” I said. “Killer prosecutor, lying cops.”
“No AB guys?” Ed asked.
“Not yet. So far it’s been the detective and the DA. Amazing how no one remembers anything when it might help your client. And one good witness, an expert on prison gangs who knew the shooter, Scanlon.”
“Hope it goes better from here,” he said.
“Me too.” I handed him the coffee. “Thanks for keeping Charlie for me. I’ll have to ask you again in a couple of weeks, if you’re around.”
“Let me check my busy calendar,” he said, raising his eyes heavenward. “Nope. Nothing going on till I don’t know when.”
“Thanks,” I said. “The judge seems to be doing this hearing in his spare time, a couple of days at a time, until we’re all too exhausted to go on.”
“Bummer,” Ed said.
“Well, I should leave you to your exciting morning and go home to mine,” I said.
He gave a brief laugh. “Have fun. Check the cider; it’s smelling pretty good.”
With Charlie trotting beside me on short, determined legs, I walked back home through the dripping woods.
No good news ever comes in a voicemail, I thought, as I piled the armload of logs I’d picked up from the woodpile onto the rack, added one to the stove, and set a couple of others on its top to dry. I exchanged my boots for felt clogs and hung up my jacket, then made myself another cup of coffee and a bowl of cereal and carried them into my office.
There were a couple of voicemails from the state prison phone exchange—no way of knowing who they came from, just an automated voice saying I had a collect call from an inmate at San Quentin—and then one, and another, from someone I knew. Abby Stanhope, the lawyer who had been appointed to represent Walter Klum in his habeas corpus case all those years ago, had called me twice while I had been away in Wheaton. I called her back, got an automated answering system, and left a voicemail in her mailbox. Then I booted up my computer and read through my emails and a newspaper or two as I ate. As usual, the news worth reading about was bad. I had opened up the research file in one of my appeals and was starting to read through my notes when Abby called back.
“Janet, hello. I must be a voice from the distant past at this point.”
“No problem,” I said. “Good to hear from you. How’s Walt Klum these days?”
“Well, that’s what I’m calling about.” The briefest of hesitations. “We have a problem.”
I rolled my eyes heavenward and uttered a silent damn. This was not the time for Walt to have a problem. “What is it?” I asked.
“I don’t know if you know, but the state Supreme Court just denied his state habeas petition.”
“I didn’t,” I said.
“Well, it was really recent, just a couple of weeks ago. Anyhow, now we have to file a federal petition, and Walt doesn’t want to sign the form.”
“Oh, jeez,” I said. “And I guess the clock is running?”
“Yep.”
A generation ago, Congress passed a law designed to make it harder for federal courts to grant new trials to criminal defendants. One of the new hurdles they had thrown up was a statute of limitations for filing a habeas corpus petition in the federal court after losing in the state court system. A defendant had one year to file his federal petition, and if he missed the deadline he was out of luck.
Because Walt was under a death sentence, there was another wrinkle. Once the state Supreme Court denied his state habeas petition, the state could immediately set a date to execute him. But if he filed a simple request telling the federal court that he intended to file a federal habeas petition and asking that court to appoint him an attorney, the federal court would issue a stay of execution until it had had a chance to hear his case. For most defendants in his position, the choice between continuing to fight their cases and being executed within a few months doesn’t require a lot of thought. But most people have a firmer hold on life than Walt.
“This just came at a really bad time for him,” Abby said. “His sister—Edna, the older one—died a couple of months ago.”
“I’m so sorry,” I said. I remembered Edna. Mike and I had helped her navigate the prison visiting process, and she had traveled from Oregon a couple of times a year to see Walt. She had also called a few times to warn us when Walt’s phone calls or letters seemed unusually depressed or delusional.
“Yeah,” Abby said. “He feels like he doesn’t have anybody now. I think the denial of his state petition just convinced him there was no reason to go on.”
Oh, God, I thought. “You mean he wants to be executed?”
“To be honest, I don’t think he’s really thought it through. Right now I’m just trying to find anything that might turn him around. He liked and respected you and Mike, and I thought it might help if you could go see him. Sound him out, show him he still has people who care what happens to him.”
“Absolutely,” I said. “I’ll see how soon they can fit me in. He’s not refusing visits, then?”
“No. He’s always come down, except once or twice when he was sick.”
“That’s good. Have you talked to Mike?”
“Yes,” she said. “He’s going to try to get a visit on the 28th. I gather you both have a hearing in Wheaton.”
“Yeah.”
“Lucky you. I had a case there once—awful place.”
“Tell me about it. I’ll set up a visit and let you know what happens.”
“Great! Take care.”
“You too.”
This was a bad time for Walt to go off the rails, I thought, and followed that up by asking myself whether there was a good time. I had been through this with a couple of other clients over the years. It was uncommon, but not uncommon enough, for defendants on death row to decide, usually temporarily, that they didn’t want to go on with their cases. They might be worn down by the thousand daily frustrations of prison life, depressed and tired of the protracted legal fight, or anxious and trying to seize control of their situation by turning the fearful uncertainty of future execution into reality. The state is no help: unless you can prove that a client is too mentally ill to competently make the decision to be executed, the law takes the position that there is no difference between being executed involuntarily or voluntarily. The best you can hope for is to try to talk your client off the ledge and buy time for him to move through and out of his despondent mood—not that it always works.
One of my bitterest memories is of a former client, Ronald Harmon, who managed to find a lawyer willing, for perverse reasons I never understood, to represent him pro bono and defend his right to be executed. Despite the pleas of his appointed lawyers and other people who had known him, including me, that Ron was bipolar and his decision the product of a deep depression, the federal district judge agreed with Ron’s request to dismiss his case. A few months later, he was executed, in the usual unseemly media spectacle of retrospectives of his life and crimes, interviews with the family of his victim, photo spreads of the execution chamber, and op-eds for and against his death. I tried to visit him during that period, but Ron, angry that I had opposed his decision, refused to see me. Obviously, there is no way of knowing whether he would have ended up executed anyway at the end of an unsuccessful sequence of petitions and appeals, but I never resigned myself to the bland willingness of the system to allow a mentally ill man to meet an ugly, public, and avoidable death.
I scanned the paper copies I had made of the documents in Forbush’s file, combined them with the ones I had scanned in the clerk’s office, and emailed them to Mike, then called him.
“I just talked with Abby Stanhope about Walt Klum,” I said.
“Me too,” he said. “I said I’d go see him, but I can’t until after Thanksgiving. I have to travel to Michigan for a week of witness interviews on a case, and then we’re driving to San Diego to spend Thanksgiving with Sue’s parents.”
“I’m not going anywhere, so I thought I’d try to set up a
visit as soon as they’ll let me.”
“Glad to hear it. I told Abby I’d go see him on the 28th, on my way to Wheaton. Thanks for the Forbush files, by the way; I’ll send some of the information along to Dan, see if he can locate him.”
“Hope it helps. Do you want me to see Howard while I’m at the prison?”
“That’s okay, I’ll visit him on the 28th, too.”
“Who do you have on board for the 29th?” I asked.
“Scanlon and a couple of former AB guys who knew Lindahl was in the hat and were aware of the order for Scanlon to take care of him. Maybe George Gettle, Howard’s advisory attorney; I’m trying to reach him.”
“Okay. Let me know if there’s anything I can do. Good luck in Michigan.”
Modern technology comes late to the prison system, but the current visiting officer at San Quentin, unlike his predecessors, let lawyers email their visit requests to him instead of faxing them. I filled out and printed the form asking to set up visits with Walt and, while I was there, Andy Hardy, my client waiting for a ruling on his habeas petition, then scanned and emailed them to the prison. I wrote letters to Andy and Walt letting them know I’d requested a visit and when to expect me, and spent a couple of hours researching a coerced confession issue for the appeal of the young woman who had drowned her children.
When it seemed that Charlie and I both needed a break, I bundled him into the car and, after a stop at my mailbox on the highway, drove down to the state park around the old Russian settlement at Fort Ross, where we took a short walk along the bluffs, with the windblown rain sheeting into my face and ruffling Charlie’s fur. After that we backtracked to the real-estate and vacation rental agency that was my mail drop and office address, where my business mail was waiting for me in a mailbox in the hallway. Then I walked next door to Vlad’s.
The little pub was empty except for a couple of pairs of off-season tourists waiting out the rain at tables near the wood stove. Vlad wasn’t there, but I bought a growler of his pumpkin ale to take home, from the young woman who had the thankless job of tending bar and waiting tables that day.
That afternoon I worked out some of my snarled feelings about Walt’s crisis and Howard’s hearing by starting a batch of bread and spending a few minutes in the garage watching the occasional rise and burst of carbon dioxide bubbles through the airlock of the carboy of cider. Living processes, moving at their own pace, the rising of the bread and the slow fermentation of the apple juice, settled my mind and put the wrongs of the world into context for a while.
31
Well, at least it isn’t raining, I thought, as I did a final inventory of my prison visiting gear—black slacks, white sweater, no-underwire bra, gray jacket, simple gold earrings and necklace, black raincoat with pockets emptied, manila folder of papers with no paperclips, transparent plastic cosmetic bag with pens, dollar bills, and change, a giant insulated mug of hot milky coffee, and a breakfast sandwich: almond butter and strawberry jam. I checked my wallet for my driver’s license and bar card. Charlie went into his fenced yard, and the cats decided to follow him out. Then it was my turn to go out in the pre-dawn darkness, to my car.
The drive always seemed like an epic journey in miniature, from wild coast through gentle ranch lands, towns, and then suburbs and freeways. The commuter traffic on the last stretch was lighter than usual, and I arrived at San Quentin a quarter-hour early for my visit. The guards assigned to the front visiting office checked my ID and ran their eyes over my clothes and papers, and after a shoeless walk through the metal detector, I was free to move on, down the long walkway paralleling the staff parking lot and the bay beyond it, the water gray and choppy this morning, through the entry gates, and left to the old brick building with the cages for legal visits. The first clanking gate of the sally port opened and then closed behind me, the second one opened, and I was in the visiting area. The guard behind the Plexiglas window took my ID and said, “Hardy’s down here.”
Andy Hardy, my first visit that day, was waiting for the state Supreme Court to act on a habeas petition we had filed for him earlier in the year. It seemed inevitable that he would get an order to show cause and a hearing, as Howard had, because we had presented strong evidence that Andy was intellectually disabled, and under decisions from the United States Supreme Court it would be unconstitutional to execute him. In the meantime, Andy waited impassively for whatever might happen. But in the past few months his sister had died, and his mother had disappeared in a mysterious car accident. My guess was that she was dead, but Andy lived in hope that she would get back in touch with him. For now, though, he had only me and my co-counsel on the outside to answer his infrequent phone calls and buy him the quarterly packages of ramen, peanut butter, cookies, instant coffee, T-shirts, socks, shoes, and the like that helped supplement the bad food and rudimentary clothing supplied by the prison.
I turned right and walked along the aisle between the rows of cages. A couple of men in prison uniforms glanced over at me from inside the barred cubicles, then turned away, seeing I wasn’t the visitor they were expecting. Then I saw Andy sitting in one to my right. The cubicle had a barred window overlooking a service road, with a glimpse of the bay behind hedges on the other side. Andy’s head was turned toward it, and he didn’t see me approach.
“Andy?” I called quietly.
He turned quickly to face me, and his long pale face lit up with a shy smile. “Hi, Ms. Moodie,” he said.
I asked him what I could get for him from the food machines, and he asked for a cheeseburger, chips, and an orange soda. “No ice cream,” he added. “It gets too messy.”
It took ten minutes or so to feed dollar bills and quarters into various vending machines and microwave the burger. I bought myself a bag of pretzels and a mocha—the chocolate flavor hid the sour cardboard taste of cheap instant coffee. I then added a dozen brown paper towels to the tray, walked back to the cages, and waited politely, holding the tray, while Andy and the guard went through the ritual of opening the cubicle door. It was the same every time and oddly uncomfortable to watch. The guard unlocked a metal panel in the door of the cage, and Andy backed up to it, holding his hands out behind him. The guard handcuffed him, he moved away from the door, and she slid it open to let me in. Once I was inside, she closed and locked the door, and the process was reversed as she unlocked Andy’s handcuffs and removed them through the port. By the time she had finished, I had distributed our food on the small, chipped table and leaned the tray against it on the floor.
Andy sat down at the table. “Wow, I wasn’t expecting you,” he said. “When they told me I had a legal visit this morning I wasn’t sure who it was.”
“I’m sorry,” I said. “I wrote you a letter, but I guess it didn’t get to you in time.”
“Nah. That’s okay, though.” He noticed his food, and devoted a few seconds to unwrapping the cheeseburger and opening the soda and the bag of chips. He held the bag out to me. “Would you like some?”
“I’m good,” I said. “I have my pretzels.”
“Yeah, you almost always get those. Guess you like them, huh?”
I shrugged. “They aren’t as fattening as most of the other stuff.”
“I don’t like them. The salt feels funny on my teeth.”
He’d said that just about every time I visited and bought pretzels, and I gave my usual answer. “I know what you mean. Guess it doesn’t bother me as much.”
He took a bite of cheeseburger—“Good,” he said, his mouth full—and then devoted himself to finishing it. When he was finished, he wiped his mouth and hands with a paper towel and took a long drink of the soda.
“Thank you for the canteen money,” he said. I’d put thirty dollars on his books a month ago, so he could buy some extra food and toiletries. “Got a dozen ramen and some instant coffee and shampoo. I was out of shampoo. And I still have some of everything left.”
“Good for you,” I said.
“Did you have a reason for coming t
o see me today?” he asked. “Have you heard anything about Mamma?”
I shook my head. “No, nothing.”
He sighed. “I keep hoping.”
“Of course. We’d all like to see her come back.”
“I miss her and Carla all the time.”
“Are you doing okay?”
“Yeah, better than I was.”
The rest of our visit was taken up in small talk. Andy didn’t ask any questions about his case; he was always content to let his lawyers handle it. He talked about his new neighbor in the cell next to his—much better than the previous one, who heard voices and had yelled day and night. That guy had finally been taken to the hospital after he began banging his head on the walls of his cell. Andy’s new neighbor was a lot quieter and mostly kept to himself, though he and Andy had traded a few food items from their quarterly packages.
Andy asked how I was doing, how my garden was, what Dave, our investigator on his case, was up to these days. We talked about television and what movies had played recently on the prison channel. And then the guard gave the five-minute warning, and our time was up. Andy was handcuffed and escorted down the aisle toward the painted iron door that led back to the cellblocks, and I followed him and stood near the sally port with three or four other attorneys I didn’t recognize, waiting for Walt.
I wondered if I’d recognize Walt when I saw him. I tried to remember how long it had been since I’d last paid him a visit—seven years? Eight? I needn’t have worried; when he emerged through the iron door, a guard at his side, I knew him right away. He’d always had the stance of a strong man broken, big and broad in the shoulders, but hunched and a little bewildered, as if he couldn’t quite figure out how he had ended up in this place. He was a bit thinner and more stooped than before, and his short, wiry hair had gone from salt and pepper to gray. He saw me, and a look of mild surprise crossed his blocky features. He and the guard turned away as he was led to his assigned cage, and I followed at a discreet distance.
Walt didn’t want anything from the vending machines. “Not even a Dr. Pepper?” I asked him, as it came back to me that that had been his favorite drink. He shook his head. “I’ll get a coffee, then, if you don’t mind.”
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