Executive Privilege

by Phillip Margolin

  “Some other serial killer who just happens to have an MO identical to Clarence Little’s?”

  “Good point.”

  “Anyway, none of that matters. I can’t reargue the facts in a habeas corpus case. I can only raise constitutional issues that were argued by Little in the habeas corpus hearing.”

  “Why does Little think he should get a new trial?”

  “He claims that he had an alibi for the night Erickson was murdered and his trial lawyer didn’t pursue it.”

  “So he’s going with incompetence of counsel?”

  “Yeah, but he doesn’t have any case. The trial attorney testified at the hearing. He said that Little did claim that he had an alibi but wouldn’t tell him what it was. He says he kept pressing Little for more information but Little was always so vague that he couldn’t use an alibi defense.”

  “What did Little say?”

  “Not much. I read his testimony. He just asserted that he had given the lawyer enough information but he wouldn’t tell the judge where he was supposed to have been, and he fenced with the prosecutor. He comes across as real evasive in the transcript. The judge accused him of playing games with the court. He ruled that Little’s attorney was competent and that was that.”

  “Are there any other issues?”

  “Not that I can see.”

  “So, what are you going to do?”

  Brad shrugged. “I guess I’ll skim the transcript and read all this stuff just to be sure. The guy is on death row. I’ve got to leave no stone unturned, right? But I think I’m just spinning my wheels. I’ll do some research. I owe the client that. If I don’t find anything I’ll meet with Tuchman and tell her we should advise the client to drop the appeal.”

  Ginny wiped her hands and mouth on a napkin. “I have a brilliant suggestion.”

  “About the case?”

  “No, about life. It’s almost nine and you look like shit. I think the Dragon Lady can wait a day to hear your views on Mr. Little’s case, but I don’t think you can last much longer without a beer. So, I want you to pack up your case file and escort me over to the bar at the Shanghai Clipper.”

  Brad looked at his watch. He’d lost track of time and his enthusiasm for work.

  “That is a brilliant suggestion. You must have been top of your class.”

  “I did ace drinking law.” Ginny stood up. “I’ll get my coat and meet you by the elevator.”

  The Shanghai Clipper, an Asian fusion restaurant with a modern decor, was on the second floor of an office tower a few blocks from the Reed, Briggs offices. Large windows looked down on a section of the Park Blocks, a row of parks that started at Portland State University and stretched from north to south through the city with only a few interruptions. Brad and Ginny found a table in a dark corner of the bar next to a window and ordered beers and a few appetizers.

  “Alone at last,” Ginny said.

  “It is good to get out of the office.”

  “You’ve got to watch yourself, pardner. A little overtime is okay, but you don’t want to court a nervous breakdown.”

  “Is this advice of the ‘do as I say, not as I do’ variety? You worked as late as I did.”

  “Touché.”

  “Besides, it doesn’t much matter whether I’m at home or the office.”

  “Whoa, you’re not feeling sorry for yourself, are you?”

  “Actually, I am. Today is the anniversary of a really rotten event.”

  The waiter appeared and placed between the lawyers two cold bottles of Widmer Hefeweizen, a selection of sushi, and a plate of fried won tons with a dipping sauce. When he left, Ginny cocked her head to one side and studied Brad for a moment. Then she closed her eyes, tipped her head back, and placed her fingertips on her forehead.

  “I am seeing an image of a woman,” she said in a fake Hungarian accent.

  Brad sighed. “It’s that obvious, huh?”

  “When a guy is morose it’s usually a safe bet that a woman is the cause.”

  “You got me.”

  “Want to talk about it? I’m a good listener.”

  “Yeah, sure, why not bore you with my tale of woe. Once upon a time I was madly in love with Bridget Malloy. She was-is still I guess-the girl of my dreams. She’s smart and beautiful and she accepted my marriage proposal the third time I made it.”

  “Uh-oh.”

  “Yeah, I know, I should have taken no for an answer the first time, or at least the second time, but I can’t think straight where Bridget is concerned.”

  “This story has to have an unhappy ending.”

  “It does. We were going to be married after I graduated from law school. The hotel was rented, the save-the-dates sent off, the wedding planner hired. Then Bridget asked me to meet her for drinks in the restaurant where I’d proposed for the second time.”

  Ginny put her hand in front of her eyes. “I can’t look.”

  Brad laughed bitterly. “You’ve obviously figured out the punch line to this sorry joke. Bridget told me that she couldn’t go through with the wedding. I think she said something about me being a great guy who was sure to find someone more worthy and something else about not being ready to settle down, but I can’t really be certain. After Bridget dropped her bombshell the rest of the evening is a blur.”

  “I’m guessing you didn’t handle this well.”

  “Nope. At least not right away. I spent the next two days drunk or in bed. I was in really bad shape. But then the clouds cleared, the sun came out, and I had an epiphany. Bridget said she was too young to settle down and I decided she was right and that maybe I was too young, too.

  “Before Bridget backed out of the marriage, we’d planned to live in my apartment in the city. I was on my third callback to four Manhattan law firms and I was going to take the best job offer and work my way up to partner while Bridget completed her masters of fine arts and pursued her dream of being a writer. We’d have a child or two and move to the suburbs where we’d both grown up. There was a large home in a wealthy area of the North Shore and a country club membership somewhere in the plan. Then middle age and retirement after the kids were finished with grad school. It was all very tidy and awfully similar to the lives our parents had lived.

  “After I sobered up I looked back over my life. I’d gone to high school in Westbury, Long Island, and college at Hofstra, also on Long Island and not too far from home. Except for a trip to Europe with my folks and a trip to the Continent on my own after college, I’d spent most of my life on the East Coast of the United States. Now that I wasn’t on the marriage-career track anymore I asked myself why I should stay in Manhattan when there was a whole world out there. So, I went online and scoped out firms in Colorado, California, Oregon, and Washington state. When Reed, Briggs asked me to interview, I flew west and returned with a job offer. And here I am.”

  “But you’re not completely over Bridget yet?”

  “I am a good part of the time. Most of what I see in Portland doesn’t remind me of her. That helps. But every once in a while I’ll hear her favorite song on the radio or an old movie we watched together shows up on TV and it all comes back.”

  “And there’s this anniversary.”

  “Yup.”

  “Is that why you buried yourself under Clarence Little’s files?”

  “ Reading about the case helped me forget.”

  “Until I pulled the scab off your wound. I’m sorry.”

  “Don’t be. It helped to talk about it. Getting it off my chest is better than holding everything in.”

  “Glad I could help, then.”

  “What about you, any tragic love affairs in your past?”

  Ginny took a swig of her beer before answering. “I’m not sure.”

  “And that means…”

  “I do have a boyfriend. He’s in med school in Philadelphia.”

  “That’s pretty far away.”

  “Yes it is. We’re taking a break from each other to see if absence makes the heart
grow fonder.”

  “At your suggestion or his?”

  “My, aren’t you getting personal.”

  “I spilled my guts. You can spill yours.”

  “It’s sort of mutual. I mean, he proposed it, but I didn’t fight very hard.”

  “How long have you been going out?”

  “Freshman year of college.”

  “That’s a long time.”

  “Yeah, but people change. Besides, that’s seven years of togetherness. Seven years is when the seven-year itch kicks in for married folk. There must be a reason for that, don’t you think?”

  “So you’re in Portland to see if you miss him?”

  She picked up her beer bottle and nodded.

  “And…?”

  Ginny shrugged. “I’m not certain. We talk on the phone a lot, and that’s nice. But I think he’s seeing someone.”

  “Oh?”

  She shrugged. “Matt’s a lousy liar. What bothers me is that I don’t care. I think I’m relieved, actually. Maybe he was right and we need to move on.” She sighed. “Time will tell. Tune in next week.”

  Brad smiled. “We’re two pathetic losers, huh?”

  “Speak for yourself, Bud. I see myself as someone on the verge of a new adventure in living.” She looked at her watch. “I also see that it’s way past my bedtime.”

  Brad started to reach for the bill but Ginny beat him to it. “You bought the greasy pizza. This is my treat. You can get it next time.”

  “Deal,” Brad said, knowing that Ginny was too strong-minded to back down and happy that she was thinking that there’d be a next time.

  Chapter Ten

  The trip down I-5 from Portland to the state penitentiary in Salem, Oregon ’s capital, took an hour. During the ride, Brad Miller’s thoughts seesawed between his upcoming visit with Clarence Little and the meeting he’d had two days before with the Dragon Lady. As soon as he’d completed his research, Brad had told Susan Tuchman that he didn’t think there was any issue in Clarence Little’s case that he could argue with a straight face to an appellate court. He’d assumed that Tuchman would tell him to file a motion to dismiss the appeal after writing a letter to Little explaining that he had no case. Neither of these actions would require Brad to come within fifty miles of his homicidal client. Instead, Tuchman had ordered him to drive to the penitentiary and explain his conclusion to the death row inmate in person. Brad had tried to convince his boss that he should be billing hours for the firm rather than spending nonbillable hours locked behind high concrete walls with someone whose idea of a good time was chopping off the pinkies of the women he’d murdered. Tuchman had smiled-sadistically Brad had thought-while explaining how client contact would aid his growth as a lawyer.

  Brad’s knowledge of prison came mostly from movies in which brutal inmates either raped one another in the shower or took innocent civilians hostage during riots. The only criminal Brad could remember meeting was a tough kid in his high school gym class who-rumor had it-had gone to jail for stealing a car a year or so after graduation. The thought of being locked in with psychotic killers, deranged rapists, and violent drug dealers did not appeal to him in the least, and the idea of sitting across from a mass murderer made him very uneasy. The corrections officer who’d set up Brad’s visit with Clarence Little assured Brad that there would be bulletproof glass and concrete separating them, but Brad had seen The Silence of the Lambs and didn’t have complete confidence in the ability of law enforcement agencies to keep really wily serial killers behind bars.

  The night before he drove to the penitentiary, Brad had a vivid dream about Laurie Erickson’s autopsy. In parts of his nightmare Laurie was on the slab, but in other lurid dream sequences there was a man who vaguely resembled Brad lying beneath the coroner’s blood-stained scalpel. Brad had startled out of sleep several times during the night, and each time he burst into consciousness his heart was racing and his sheets were damp with sweat. When he finally gave up on sleep at 5:45 A.M. he was exhausted and worried. By the time he parked in the visitors’ lot at the penitentiary he was a wreck.

  Brad made certain that his car was locked before walking down the tree-lined lane from the lot to the front door of the prison. The sun was warm, and there was a light breeze. On either side of the lane were pleasant white houses that were once residences and now served as offices for the staff. It would have been an idyllic setting if the prison’s intimidating egg yolk yellow walls, topped with razor wire and guarded by gun towers, weren’t looming over the charming houses with their neatly trimmed lawns.

  Brad walked up a short flight of steps to a door that opened into a waiting room tiled in green and lined with cheap couches covered in rust-colored upholstery that had been made in the prison. Two guards stood behind a circular counter in the center of the room. After Brad explained the purpose of his visit and showed his bar card and driver’s license he was told to have a seat.

  Two heavyset older women occupied one of the couches. One was African-American and the other was white. They seemed to know each other. Brad guessed that their sons were in prison and they’d struck up a friendship during prior visits. A woman in her early twenties sat on another couch fussing with a boy who looked to be four or five. The woman was attractive but wore too much makeup. The boy was whining and straining against the hand that held him firmly. His mother looked harried and on the verge of using violence to make the boy do what she wanted.

  Brad found an unoccupied couch as far from the mother and her child as possible and studied his notes for the meeting. The kid was screaming now and it was hard to concentrate so he was relieved when one of the guards walked over to a metal detector and called out his name and several others. The older women had headed for the metal detector as soon as the guard left his post behind the counter. The mother picked up her son and carried him to the end of the line the older women had formed. Brad joined them. When it was his turn the guard told him to take off his shoes and belt and empty his pockets before walking through the machine. When Brad had his belt and shoes back on, the guard led the visitors down a ramp. At the end of the ramp was a set of sliding steel bars. Their escort signaled another guard who sat in a control room. Moments later the gate rolled aside with a metallic groan and they entered a holding area. As soon as the first gate closed a second gate opened and the group followed the guard down a short hall where they waited while he unlocked the thick metal door to the visiting area.

  A corrections officer sat on a raised platform at one end of a large open room crowded with more prison-made couches and flimsy wooden coffee tables. Vending machines dispensing soft drinks, coffee, and candy stood along one wall. A gray-haired man shuffled over to the coffee machine. It was easy to tell he was a prisoner because the inmates wore blue work shirts and jeans.

  Brad waited until the women had talked to the guard before telling him that he had an appointment to meet with Clarence Little. Brad expected the guard to be impressed or horrified when he heard the name of Brad’s client, but he just looked bored when he called death row to request Little’s transport.

  “You’re across the hall,” he said when he hung up. “It’ll take about fifteen minutes to get him down here. Do you want to wait here or in the noncontact room?”

  Brad glanced briefly at the occupants of the visiting room, which he had expected to be filled with tattooed Hells Angels and wild-eyed psychos with shaved heads, but none of the prisoners looked threatening. Several men sat on the floor playing with young children. Others leaned across coffee tables holding whispered conversations with wives and girlfriends. Still, it made Brad nervous to be in close proximity to someone who’d done something bad enough to get him sent to prison.

  “I’ll wait in the noncontact room,” he told the guard.

  Across the hall from the general visiting room was another visiting area. Windows made of bulletproof glass were set in two of the walls. Behind some of these windows sat prisoners deemed too dangerous to be allowed in the open
visiting area. Their visitors sat on folding chairs, and the conversations were carried on over phone receivers. At the end were two rooms barely big enough to accommodate a bridge chair. The guard opened the door to one of them and ushered Brad inside. The chair faced a glass window set in concrete blocks painted institutional brown. A slot for passing papers had been built into the bottom of the window and a metal ledge just wide enough to accommodate a legal pad jutted out from the wall underneath the window. A phone receiver like those Brad had seen the other visitors using was attached to the wall.

  The guard left and Brad stared anxiously through the glass at a door that allowed entry into an identical room on the other side. There were no photographs of his client in his file and Brad’s imagination had created a murderer who was an amalgamation of Hannibal Lecter, Jason, and Freddy Krueger. The man who was led into the room by two corrections officers was five eleven, slender, and looked like an accountant. His brown hair was combed carefully so that the part was clearly displayed. His skin was smooth, his nose small and undistinguished. Gray-blue eyes examined Brad through plain, wire-rimmed glasses while the guards unlocked his ankle chains and handcuffs. One of the guards was carrying a folder. The edges were frayed and it was covered with writing. The guard handed the file to Little.

  Neither Brad nor his client spoke while the guards were present. As soon as they closed the door behind them Little pulled his folding chair close to the phone and sat down. He placed the file on the ledge in front of him and picked up the receiver. Brad’s stomach tightened.

  “Mr. Little, my name is Brad Miller,” he said, hoping that his client wouldn’t notice the slight tremor in his voice. “I’m an associate at Reed, Briggs, Stephens, Stottlemeyer and Compton in Portland. The firm was asked to handle your habeas corpus suit in the United States Court of Appeals for the Ninth Circuit.”

  Little smiled. “Your firm has an excellent reputation for doing quality work, Mr. Miller. I’m flattered that the court appointed Reed, Briggs to represent me. And I appreciate the fact that you’ve taken time from your busy day to visit me.”