The Law of Second Chances jt-2

by James Sheehan

  31

  Luis Melendez called Sal Paglia the day after his visit to Benny. He’d first had to digest everything over a few scotch and sodas before he could revisit it with anyone. Luis rarely drank. He was very disciplined after the drug years of his youth. Benny’s diatribe, however, had taken a toll on his psyche.

  “My son has agreed to your representation,” Luis told Sal after Hazel got him on the line.

  “Good. Good,” Sal said. “How’d the meeting go?”

  “It went.”

  “Not good, huh?”

  “No. He’s got good reason to be angry.”

  “Well, maybe we can do something for the both of you by getting him out of jail. By the way, I’ve got a mortgage broker coming in here to meet with us tomorrow afternoon at four o’clock to get the paperwork done on your refinancing. Be sure to bring your tax returns and everything else on that sheet I gave you so he can get started right away.”

  Luis sensed a tone of desperation in Sal’s voice and he was right. Sal was scared. He had already given three thousand bucks to his loan shark, Beano Moffit, who had visited him rather unexpectedly a few days before.

  “Give me one reason why I don’t break your legs,” Beano had asked at the time. Sal loved that about shylocks-they always made it sound like it hurt them more than you when they broke your body parts into pieces. Just to be sure he remained intact, he’d given Beano three thousand reasons not to break his legs. But he knew the reprieve wouldn’t last for long. He needed Luis’s money. He also needed to tell somebody about the heat he was getting from Beano, so he called his good friend, Sergeant Al Borders of the NYPD.

  “Al, don’t ask me any questions, okay? I just want you to know that if something happens to me, Beano Moffit is behind it.”

  “No. Sal. Don’t tell me you’re into Beano.”

  “I’m not telling you anything, Al. I’m just saying, if I turn up missing or something, you tell the powers that be to put the heat on that prick.”

  “Don’t say anything else, Sal. Consider it done.”

  After Luis had been to the office and the paperwork was completed on the refinancing, Sal took a trip downtown to see Benny. They met in the same room where Benny had spoken with his father. Sal was determined to make things go smoothly.

  “Benny, I’m Sal Paglia, the lawyer Luis Melendez hired to represent you. First thing I want to tell you-Luis is paying the freight, but you are my client. I’m working for you, not him. I’ve got experience in this stuff and I’ve got a plan, which I’ll tell you about in a minute. Second item-I do the talking. You don’t tell me nothing unless I ask. If I ask a specific question, you give me a specific answer. The reason I tell you this is because if you tell me something, I have an ethical obligation not to put on evidence that contradicts what you told me. Understand?”

  Benny nodded. At this point, he simply didn’t care. Sal continued to explain, despite Benny’s nod. “You see, the less you tell me, the greater leeway I have in defending you. Got it?”

  “Sure,” Benny replied. Trying as best he could to tune Sal out.

  “Third item,” Sal continued. He was on a roll now-he’d had a few cups of coffee before showing up at the prison. “Bail. I don’t think I’m going to get you out of here anytime soon. That stiff you smoked-I mean, allegedly shot-was a high roller. Anytime you smoke-and I’m just talking hypothetically, you understand?”

  “I understand.” Benny felt the need to say something just to slow Sal down a bit. The lawyer was like a runaway freight train.

  “Anytime you smoke a high roller, all hell breaks loose. So to make a long story short, that’s why you ain’t gettin’ out of here anytime soon.”

  “Gotcha. Anything else?” Benny had had his fill of Sal. This is who my old man entrusts my life to? I’m getting fucked all over again.

  “Oh yeah. I just want to tell you I’ve got a plan to get you out of here. I’ve been over the public defender’s files in detail, and I see some things we can work with. I’m going to hire a world-famous medical examiner from California to testify on your behalf. I’ve used him before. He’s great. His name is Dr. Donald Wong-you may have heard of him. So don’t worry, we’re working on a defense for you.”

  Those last words made Benny feel a little better. Sal had reviewed the files and actually had a plan. Benny’s cautious optimism wasn’t entirely unwarranted, either. As goofy as Sal was, he knew how to get people off.

  “The thing is,” Sal cautioned, “getting this guy is going to take some time. Like I said, he’s a big shot. He’s got to clear his calendar not only to do his investigation but also to testify at trial. So you’re going to be in here for a while.”

  “How long?” Benny asked.

  “Six months to a year.”

  Benny shrugged his shoulders. “I ain’t got nothing better to do,” he said.

  Sal had Benny sign a bunch of papers before leaving, including a contract of representation and a waiver of speedy trial. The lawyer gave Benny some final words of encouragement before he left.

  “And don’t worry about the death penalty. They got it in New York, but they never use it.”

  32

  Even though Charlie was back in town and he needed the time to prepare for Henry’s hearing, Jack decided to make the trip to Miami for Pat’s Monday morning chemotherapy treatment. Pat had not slept the night before and she was having severe pain again, which was unusual; her pain generally subsided when she started chemotherapy. Jack wanted to talk to Dr. Wright about it in person.

  “This is not a good sign, Mr. Tobin,” Dr. Wright told him when he described Pat’s pain. “It means that the tumors are withstanding the chemotherapy and are growing again. We won’t know for certain until we do the scans, which are scheduled for next week. I’m going to prescribe ten milligrams of Oxycontin for her to take once a day, and I’m going to give you a prescription for Percocet, which you can give her anytime she has pain. I’ll be calling your local doctor to coordinate all this.”

  “We don’t have a local doctor.”

  “I have records from a local doctor who was treating your wife.”

  “That would have been Dr. Hawthorne. We stopped going to him because he failed to realize that Pat had a serious problem, even though she was complaining of pain for nine months.”

  Dr. Wright didn’t respond. Jack didn’t blame her. He was a lawyer, after all, and his words could easily be taken as a prelude to a lawsuit. “I’ll make a few calls today and find someone local for your wife. I think we’ll also set up her chemotherapy locally after next week. She doesn’t need to be making this trip. I’ll call you later this afternoon with your new doctor’s name.”

  On the way home, Pat was almost giddy as she talked and laughed up a storm. The drugs did that to her. For Jack, considering what he had heard from the doctor that day, it seemed almost surreal.

  Jack maintained a separate office in Bass Creek away from home, even though he no longer had any clerical help. He still liked the ritual of going to the office. It was quiet, and he could shut everything else out and do his work. He had four days left to prepare for Henry’s hearing.

  On Tuesday night when he returned home, Pat was still in bed. He had come to expect this for the first couple of days after chemo, but when she was still in bed on Thursday, he began to worry.

  “She’s not eating either,” Charlie told him. “I can barely get those protein drinks in her. She’s losing more weight.” By this time, all her hair had fallen out. Things were happening very fast, and Jack wasn’t sure what to do. Dr. Wright had given him the name of another local doctor, but they were scheduled to be in Miami on Monday and to see Dr. Wright then anyway.

  “I think we’ll just do the best we can until Monday,” he told Charlie. “What do you think?”

  “I think you’re right. She seems to be comfortable, and we probably wouldn’t be able to get an appointment with the local doctor before Monday.”

  He called Judge Fletcher�
�s office and told her secretary the problem.

  “I can’t start until Tuesday with my wife in her present condition. The judge has set aside the week for this hearing, but I don’t think it will last for more than three days anyway.”

  “I’m sure the judge won’t have a problem with the delay, Mr. Tobin. So, unless you hear different from me in the next fifteen minutes, you can notify your witnesses that we’ll start on Tuesday.”

  Next, Jack called Henry to let him know about Pat’s condition and the reason for the delay. Up to now, he had not told Henry about Pat’s cancer.

  “Jack, I know you’ve had your reasons for not telling me about your wife’s condition. I even think I know what those reasons are. From now on, though, keep me abreast of everything. Pat told you to stick with me; now I’m telling you that her medical condition has priority over my hearing. I don’t care if you have to delay the hearing for a year, Jack-make sure Pat gets well.”

  It was a long weekend. Pat did not get out of bed once, even though Charlie and Jack constantly encouraged her to do so. She wasn’t eating either. It was a chore just to get her to take a few sips of her protein drink through a straw.

  “We’ve got to change something,” Jack told Charlie outside Pat’s room. “This particular chemotherapy treatment doesn’t seem to be working.”

  Charlie agreed. “We’ll take it up with the doctor on Monday,” she said.

  On Monday morning, Pat had a CT scan and an ultrasound. In the afternoon, Dr. Wright examined her. Jack took her to both appointments in a wheelchair because she was too weak to walk.

  “I’m okay, Jack. I’m just tired,” she told him. It was the same thing she’d been saying to him and Charlie all week.

  “I’m going to put her in the hospital for a few days,” the doctor told Jack and Charlie after the examination. “She needs some IV fluids to get her stabilized and a blood transfusion. Her red blood count is low.”

  A blood transfusion. The words hit Jack like a sledgehammer.

  “It’s not unusual, Mr. Tobin,” the doctor explained. “Patients on chemotherapy often have to have blood transfusions. What’s troublesome is that she is not eating, she’s losing weight-and she’s in pain. The scans will tell us what we need to know, and we can set a game plan from there. Okay?”

  Unable to say anything, Jack just nodded. “You can go in and visit her if you want. I’m having an ambulance take her to the hospital.”

  Jack was about to follow the doctor into Pat’s room when Charlie grabbed his arm and held it.

  “You can’t go in there looking like that, Jack,” she told him. “Pat will know the doctor gave you bad news. Get yourself together. And remember, it’s our job to keep her spirits up.”

  33

  Jack hardly slept that night worrying about his wife. Wofford could tell there was a problem as soon as he walked in the restaurant where they had arranged to meet.

  “What the hell happened to you, Jack? You look terrible.”

  “I’m fine. I didn’t get much sleep last night. My wife is in the hospital. She has cancer.”

  “I’m sorry, Jack. Is it real bad?”

  “Yeah.”

  “Look, we can postpone this hearing until a better time.”

  “There may not be a better time, Wofford. At least now she has round-the-clock care.”

  “You’re sure?”

  “Yeah.”

  “Well, just ask me open-ended questions and I’ll take it from there.”

  To the casual eye, Henry appeared to be public enemy number one when he walked into the courtroom on Tuesday morning. He was wearing handcuffs, leg irons, and a waist belt to which his handcuffs were attached, and he was accompanied by no fewer than eight sheriff’s deputies, two with shotguns. Since this was a non-jury hearing, the shackles were not removed, and none of the officers left the courtroom. If Henry made the slightest unanticipated move, the possibility existed that he would be shot on the spot.

  Henry sat down next to Jack and turned to look at him.

  “Are you okay, Jack? You look like hell. And how’s Pat?”

  “Thanks for the compliment, Henry. Wofford said practically the same thing. I’m fine, but Pat’s not doing so well. We had a rough night last night. She’s in the hospital.”

  “Let’s put this off, Jack. I told you I can wait.”

  “No, Henry. This is the best time. Really. She has twenty-four-hour care in the hospital. Her best friend Charlie is there too. And I’m ready. We need to do this right now.”

  “Are you sure you shouldn’t put your wife first?”

  “Henry, she’s the one who sent me.”

  Moments later, Judge Fletcher took the bench. Jack hadn’t even checked to see who was representing the state, but somebody was over there shuffling papers, getting ready.

  “This is the evidentiary hearing to determine if Henry Wilson, who is presently on death row, is entitled to a new trial,” Judge Fletcher began. “Counsel, are we ready to proceed?”

  Jack stood up. “The defense is ready, your honor.”

  A man stood up at the state’s table across the aisle. Jack saw that it was Scott Tremaine, a lawyer he had known for the past twenty years-a lawyer with a great reputation. Scott was no longer with the state’s attorney’s office: he had been specially appointed to represent the state in this case.

  “The state is ready, your honor,” Scott said.

  “Then let us proceed.”

  In a non-jury situation with an experienced judge and experienced counsel, many procedures were short-circuited. For instance, the attorneys did not make opening statements. They both knew that the judge was going to make her decision based on testimony from the witness stand. There was no need to waste her time.

  They spent most of the morning marking all the exhibits, agreeing to enter some of them into evidence and stipulating to certain facts. Jack was glad that Scott Tremaine was on the other side. Scott was not a game player. If there was a legitimate basis to exclude something, he would argue until the cows came home against its inclusion, but he wouldn’t make stupid or illegitimate arguments. That tactic would backfire with this judge anyway.

  By lunchtime all the exhibits that the parties agreed were admissible-including the transcript from the original trial, the previous motions for new trial, and all previous orders-had been entered into the record. All documentary evidence that the parties could not agree on had been simply marked as an exhibit. When it was time to introduce disputed exhibits, appropriate objections would be made to the judge. The parties had also stipulated that David Hawke, the main witness against Henry, was deceased, and that James Vernon, the man who Wofford had argued in the original trial was the real killer, was also deceased. Scott Tremaine produced both death certificates, which surprised Jack. He wasn’t sure why the state was concerned about the precise dates of death.

  The state further stipulated that neither David Hawke nor his cousin Delbert Falcon had ever been charged with any crime arising out of the death of Clarence Waterman, the man Henry was convicted of killing.

  After lunch, Jack called Wofford to the stand. There were certain preliminary matters he had to establish for appellate purposes, such as Wofford’s past experience as a criminal defense attorney and his present position as a judge.

  Once the preliminaries were out of the way, Jack honed in on the issues. Susan Fletcher leaned forward, listening intently.

  “What was your defense in Mr. Wilson’s original trial?” Jack asked Wofford.

  “Our defense was that someone else committed the murder and that Henry Wilson was not at the murder scene.”

  “Did Henry Wilson have an alibi?”

  “No.”

  “Did he testify?”

  “No.”

  “Were there any witnesses who placed him somewhere else?”

  “No.”

  “So you were limited to creating a reasonable doubt as to Henry Wilson’s guilt by giving the jury evidence that someone e
lse may have committed the crime?”

  It was definitely a leading question, but Scott Tremaine didn’t object.

  “That’s about it,” Wofford answered.

  “What was the evidence you put on to establish that fact?”

  “The only evidence I had was a prison snitch, a fellow named Willie Smith. James Vernon was in jail at the time of this trial, and Smith was his cellmate. Smith testified that on the Friday before the trial was to begin James Vernon told him that he murdered Clarence Waterman.”

  “Did you think that was strong evidence?”

  “Absolutely not. This guy was a convicted felon and the timing of the confession was just too convenient. But it was all I had.”

  “Was that the only evidence you planned on putting on when the trial began?”

  “No. I planned on calling James Vernon himself.”

  “For what reason?”

  “He had told me that he was present at the murder and that Henry wasn’t. He said two other men were with him and they did the killing. He wouldn’t name the other men.”

  “Did you call him at trial?”

  “Yes.”

  “What happened?”

  “He took the Fifth and refused to testify.”

  Jack picked up the transcript of James Vernon’s unsworn interview with Wofford Benton, which had been marked as defendant’s exhibit number 8 but not stipulated into evidence.

  “Mr. Benton, I’m handing you defendant’s exhibit number 8 and ask you if you can identify that document.”

  “Yes. It is a transcription of a recorded interview I had with James Vernon on April 13, 1980, about a month before Henry Wilson’s trial began.”

  “Did you ever tell any of the appellate attorneys representing Mr. Wilson in his two previous appeals about the existence of this transcript?”

  “No, I did not.”

  “Why not?”

  “Nobody asked me. It wasn’t really significant to me, and I actually forgot I had it.”

  “Since that time, have you changed your opinion on the significance of this transcript?”