Executive Privilege

by Phillip Margolin

  Brad was relieved that Little was so gracious.

  “You’re our client,” he said magnanimously, “and you couldn’t really come to our office, could you?” Brad asked with a smile, hoping that a little humor would lighten the depressing surroundings.

  Little grinned. “I guess not.”

  Brad began to relax. Maybe this wouldn’t be so bad after all. Then he remembered that he hadn’t given the bad news to the mass murderer sitting on the other side of the glass.

  “I came to Salem to discuss some problems I’m having with your case,” Brad started diplomatically.

  “What problems?”

  “Well, the writ of habeas corpus that you filed alleged incompetence of counsel.”

  Little nodded in agreement.

  “And the judge who conducted the hearing disagreed with you about the quality of your representation at trial.”

  “He was wrong.”

  “Uh, yes, I know that’s your position, but we have a problem. The United States Supreme Court wrote an opinion in a case called Strickland versus Washington. In that case they said that-and I’ll quote this”-Brad said, pulling a copy of the opinion out of his file-“‘a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in the light of all the circumstances, the identified acts or omissions were outside the range of professionally competent assistance…’”

  “I’ve read Strickland,” Little said.

  “Good. Then you understand that you can’t just accuse your lawyer of screwing up. You have to tell the court very specifically what he did that constituted ineffective assistance.”

  “I did. I told my lawyer that I had an alibi for the time that I was accused of kidnapping and murdering Laurie Erickson and he didn’t investigate my claim.”

  “Okay, that’s the problem. There’s no question that your lawyer had an absolute duty to make a reasonable investigation of facts in your case that could establish an alibi-and he testified that you said you had an alibi-but he said that you didn’t give him any facts he could investigate. I’ve read the transcript of your habeas corpus hearing. The judge asked you where you were and you avoided answering the question. So, I guess the bottom line is that I don’t see any way we can win your case on appeal because the Ninth Circuit is just going to say that you didn’t make an adequate record to show your lawyer did anything wrong.”

  “I still want to appeal.”

  “Maybe I didn’t make myself clear, Mr. Little. I read the transcript of your case. Then I did a lot of research on this issue. After that I conferred with other attorneys in the firm. No one thinks you can win. It would be a waste of time to pursue your appeal.”

  Little wasn’t smiling now. “How long have you been out of law school, Mr. Miller?”

  “Uh, not that long.”

  “And how many criminal cases have you handled?”

  “Well, actually, this is my first.”

  Little nodded. “I thought so. Tell me, are you still new enough to your chosen profession to believe in the pursuit of Justice?”

  “Sure, of course.”

  “And I take it that you wouldn’t approve of an innocent man being framed for something he didn’t do?”

  “Of course not.”

  “And you wouldn’t want an innocent man to be executed for a crime he didn’t commit.”

  “No one would want that.”

  “The person who murdered Laurie Erickson might.”

  Brad frowned. “Are you saying you didn’t kill Miss Erickson?”

  Little kept his eyes locked on Brad’s and nodded slowly.

  “So you really have an alibi for the time she disappeared?” Brad said even though he didn’t believe a word of his client’s assertion.

  “Yes, I do.”

  “Why the big secret? If you had evidence that would have led to your acquittal why didn’t you tell your lawyer at trial or explain it to the judge at the hearing?”

  “That’s a little tricky.”

  “Look, I don’t want to sound judgmental but you seem to be evading my questions about your alibi in the same way you avoided answering the judge’s questions at your hearing. If you’re not honest with me I can’t help you.”

  “Here’s my problem, Mr. Miller. There was a witness who could clear me completely, but my involvement with her would implicate me in another crime.”

  “Mr. Little, what do you have to lose? You’re on death row not only for the murder of Laurie Erickson. You were sentenced to death for two other murders. The Supreme Court affirmed those convictions a week after your habeas corpus hearing. Even if I win this case, you’ll still be executed.”

  “But not for something I didn’t do. It’s a matter of honor, Mr. Miller.”

  “Okay, I can see where you wouldn’t want to let someone get away with framing you. What I don’t understand is why you didn’t tell your lawyer your alibi if you feel so strongly about this. Anything you told him would have been confidential, even if you confessed to another crime.”

  “I assume that would hold for you, too?”

  “Yes. I’m your attorney, so everything you tell me is confidential. If you tell me about a crime you’ve committed I’m forbidden by law to reveal that confidence to anyone. And I’m sure your trial attorney told you the same thing. So, why didn’t you tell him the name of the witness?”

  “Because he’s an idiot. The court stuck me with a complete incompetent. I had no faith that he would follow up properly if I confided in him. And my other cases were on appeal, so I didn’t want to incriminate myself in another crime until I knew what was going to happen in those cases.”

  Little hesitated. Brad could see he was going through some kind of internal struggle.

  “There’s another thing,” Little said. “In order to prove my innocence I’m going to have to part with some cherished keepsakes. I just couldn’t give them up to that moron. Now there doesn’t appear to be a chance I’ll ever see them again unless it’s in court and they’re introduced as evidence. So I have nothing to lose by telling you about them.”

  “You’ve just met me, Mr. Little. Why do you think I’m any smarter than your trial attorney?”

  “Because the firm of Reed, Briggs, Stephens, Stottlemeyer and Compton saw fit to hire you, and they don’t employ idiots.”

  Brad sighed. “I appreciate the vote of confidence, but it may be too late for me to help you. I’m handling your appeal. An appeal is based on the record of the court below. We can’t introduce new evidence in the Ninth Circuit.”

  “What if you could prove that I’m innocent? The authorities would listen to a lawyer from Reed, Briggs. If the police were convinced that I didn’t kill Laurie Erickson the governor would pardon me, wouldn’t he?”

  “I really don’t know. I’m good at research, which is why I was assigned your case, but I’m not really up on criminal law or procedure. There probably is some way to help you if you can give me a way to prove you didn’t commit the murder.”

  Little was quiet for a moment. Brad could almost hear him weighing the pros and cons of confiding in his new attorney.

  “All right, I’ll take a chance. At this point, as you so aptly pointed out, I’ve got nothing to lose.” Little leaned forward. “On the night Laurie Erickson was kidnapped and murdered I was with somebody.”

  “So you’ve said, but I need a name and a way to contact the witness.”

  “Her name is Peggy Farmer.”

  Brad wrote the name down on his legal pad. “Do you know how I can find her?” he asked.

  “Yes, I do. She’s in the Deschutes National Forest about five miles from the parking lot of the Reynolds Campgound. On the eve
ning the police insist I was kidnapping Laurie Erickson I was disemboweling Peggy.”

  Brad’s stomach shifted and he felt like he might throw up. Little noticed his discomfort and smiled.

  “She was camping with her boyfriend. They were deep in the woods; a very athletic couple. I followed them, eliminated her friend while he was sleeping, and played with Peggy until I grew bored. The confusion arises because no one has discovered the bodies. They’re listed as missing. There have been search parties, but I did a very good job of hiding them.”

  “Mr. Little,” Brad said, trying very hard to keep his voice steady, “if Miss Farmer is dead how can she help your alibi defense?”

  “You know about my pinkie collection?”

  Brad nodded, not trusting himself to speak. Bile was already rising in his throat.

  “If a forensic expert examined my collection he would find a pinkie belonging to Peggy, but he wouldn’t find one belonging to Laurie Erickson.”

  An image of a Mason jar filled with pinkies flashed in Brad’s mind and he felt faint.

  “Peggy’s roommate will tell you that Peggy and her boyfriend went camping Wednesday afternoon and were supposed to come home Friday night because they had a wedding to attend on Saturday. I worked Thursday and Friday. I called in sick on Wednesday. If I killed Peggy it would have to have been on Wednesday, and Laurie was snatched on Wednesday evening. I couldn’t have been in two places at once.”

  This was way more than Brad had bargained for. He was supposed to be reviewing contracts and checking property records, not sitting inches away from a lunatic with a pinkie collection.

  “I see this is a bit much for you,” Little said kindly. “You can ask the guard for some water.”

  “I’ll be fine,” Brad insisted though he felt anything but.

  “You don’t have to be brave, Mr. Miller. We all fall apart if our situation proves to be too much for us. Believe me, I’ve seen it firsthand.” Little got a wistful expression on his face. “Some of them cry and beg right away. Others curse and threaten. They try to be strong. But even the strong beg when the pain is too much.”

  “Okay,” Brad said as he tried to maintain his dignity. “I’m going to leave now.”

  “I’m sorry if I upset you. But I must remind you that you are my lawyer and you have a duty to give me a vigorous defense. Anything less and you could be disbarred.”

  “Look, Mr. Little, this is the firm’s case. I’m just working on it. I’ll file a brief for you on the issues raised at your hearing but that’s it.”

  “I don’t think so. I’ve given you a way to prove my innocence. If you don’t pursue it I’ll file a bar complaint then I’ll sue you and then I’ll go to the press. I’ll tell them you failed to help me because you were too frightened. How do you think that publicity will help your career?”

  “You wouldn’t get anywhere with a suit or a complaint.”

  “Maybe, but you’ll be front-page news because I am. No one wants a coward for a lawyer. Think over what I just told you then get back in touch and I’ll tell you how to find my lovely souvenirs.”

  Brad walked back to his car in a daze and had trouble concentrating on the road during the return trip to Portland. The visions in his head shifted back and forth between Clarence Little’s collection of severed pinkies and Peggy Farmer’s disemboweled corpse. His emotions swung between anger at Little for putting him in a bind, an irrational fear that the convict would escape from death row and torture him to death, and curiosity about the truth of his client’s claims. Who better to frame for a murder than a serial killer? No one would take the protestations of a homicidal maniac seriously.

  Halfway to Portland, Brad dialed his cell phone.

  “Ginny Striker,” the voice at the other end answered.

  “Hey, it’s Brad, Brad Miller.”

  “Hi, what’s up?”

  “Do you have time to meet me for coffee?”

  “I’m kind of busy. Paul Rostoff gave me a rush job.”

  “This is important. I’m really desperate for some advice.”

  There was dead air for a moment and Brad held his breath. He’d called Ginny because she was very smart and had good judgment. Also, he couldn’t think of anyone else at the firm in whom he could confide.

  “I guess I can use a break.”

  “Can you meet me at the coffee shop on Broadway and Washington?”

  “Brad, this is Portland. I can see at least a million places to get coffee from my window. Why don’t we meet someplace closer to the office?”

  “I don’t want to risk running into anyone we know.”

  “What’s going on, Brad?”

  “I’ll tell you in twenty-five minutes.”

  Ginny was nursing a caffe latte at a table at the back of the coffee shop when Brad walked in. He waved at her then ordered a black coffee and carried it to the table. He’d grown up drinking his coffee black and had yet to develop a craving for the lattes, cappuccinos, and other fancy coffee drinks to which Portlanders seemed addicted.

  “I feel like Mata Hari,” Ginny said when Brad sat down. “Why all the secrecy?”

  Brad looked around to make sure that no one from the firm was in the shop.

  “I’m going to tell you about a confidential communication I just received from a client. You’re bound by the attorney-client confidence rules because we both work for Reed, Briggs, right?”

  “Yeah, that’s how I understand it.”

  “Because you can’t talk about what I tell you to anyone.”

  Ginny ran her finger back and forth across her chest. “Cross my heart and hope to die,” she said with a grin.

  “This isn’t funny.”

  “Sorry, but you’re so serious. I thought I’d lighten things up.”

  “You won’t be laughing when you hear what I have to say. I just got back from meeting Clarence Little at the state pen.”

  “What’s he like?” Ginny asked eagerly.

  “He’s worse than I imagined,” Brad answered. Then he told Ginny about his meeting. She wasn’t smiling when he finished.

  “Do you think he’s telling the truth?” Ginny asked.

  “I don’t know. The guy’s a freak. When he told me he’d disemboweled that poor girl he didn’t show an ounce of emotion. I thought I was going to throw up. I’m sure he found my discomfort amusing. Little is sick and he’s a sadist.”

  “But is he a liar?”

  “I don’t know, but if I had to bet I’d guess he was telling the truth. He seemed genuinely offended at being convicted for something he claims he didn’t do, and he was adamant about proving his innocence, even though it won’t do him a damn bit of good because he’s going to be executed anyway.”

  “Why did you ask me here?” Ginny asked.

  “I don’t know what to do. My assignment is to research and file Little’s appeal. It’s not to prove he’s not guilty. And, anyway, legally, his guilt or innocence doesn’t mean anything in the Ninth Circuit. The court’s only interested in whether his lawyer was incompetent. Even if I find the pinkies the court wouldn’t consider the evidence.”

  “So don’t do it. Just write the brief.”

  “Can I just do that? I am his lawyer. Wouldn’t I be incompetent if Little gave me proof of his innocence and I didn’t investigate? And what if I don’t investigate and he goes to the press? How would that go over at the firm?”

  “I can make an educated guess,” Ginny said. “The partners loathe bad publicity. It discourages well-heeled clients from shoveling money into the Reed, Briggs vault. So I’d guess that you’d be thrown to the wolves.”

  “That’s what I thought. But would they like it any better if I was responsible for the acquittal of the most fiendish killer in recent Oregon history?”

  “Good point. At least they could argue that Reed, Briggs fights for its clients no matter how despicable they might be. That would endear them to the tobacco and oil companies.”

  “So you think I should try
and find the pinkies?”

  “It sounds a lot more interesting than trying to find the meaning of the section of the tax code they’ve got me studying. And there’s something else you should think about. What if he is innocent and you could prove it? You’d be famous. You might get enough great PR to bring business into the firm and speed you on your path to a partnership. Then you’d be the one at five o’clock on Friday who hands out thousand-page files to the associates with weekend plans. Wouldn’t that be great?”

  Brad sighed. “Please get serious. This whole thing is giving me a splitting headache.”

  “I say you do it. Call Little’s bluff. Ask him to tell you where he hid the pinkies. If he’s screwing with you, you’re off the hook.”

  “And if he’s not?”

  “You dig them up. I’ll even come with you. I’ll be your trusty sidekick.”

  Brad was suddenly suspicious. Ginny seemed a little too eager. He narrowed his eyes and studied her.

  “What’s going on? How come you’re so anxious to get involved in my case?”

  Ginny blushed, embarrassed. Brad thought it made her look adorable.

  “I got interested in Laurie Erickson’s murder after we talked,” Ginny confessed. “Do you know Jeff Hastings?” she asked, naming another first-year associate.

  “Sure. We’ve played tennis a few times.”

  “Jeff grew up in Portland and went to law school here, and his folks are loaded. They’re members of all the right clubs and know everyone and are connected politically, so Jeff heard all the gossip about Christopher Farrington when he was governor.”

  “What gossip?”

  Ginny leaned forward and lowered her voice. “There were rumors that Farrington was fooling around with Laurie Erickson.”

  “What! I don’t believe that. She was just a kid.”

  “Do you know what a dirty old man is?” Ginny asked with a smirk.

  Brad blushed. “I’m not an idiot, Ginny, but don’t you think the media would have been all over this with Farrington running for president?”

  “I asked Jeff the same thing. He said Farrington’s dodged a bullet. There were rumors floating around about an affair but everyone clammed up after Erickson was murdered. One rumor was that Laurie’s mother was paid off. Supposedly, a lot of money changed hands.”