Two Lost Boys

by L. F. Robertson

  The homicide detectives weren’t talking much, Dave said. “Canevaro was pretty predictable. He has no use for Andy; thinks he and his brother should both fry. Hines has retired and lives in a trailer park out of the state. Canevaro didn’t want to tell us where he was living, but I’m pretty sure I’ve located him in a database search. He’s in Nevada, near Reno.”

  The courtroom bailiff at the trial, Bill Forschner, also retired, had a bit more to say. “A nice guy,” Dave said. “He and his wife have this beautiful big log cabin on the mountain, with a hundred-mile view out their living-room windows. Built it himself, with his two sons, and he’s real proud of it. Anyhow, he said Dobson was a good trial lawyer once, but he drank too much. He’d tried a lot of murder cases, but not for a while. Everyone was surprised he got appointed to a death-penalty case. Apparently the state had filed so many that the court was running out of defense attorneys to appoint. But Forschner didn’t recall anything that made him think Dobson was impaired during the trial. He always showed up on time, no liquor smell that he remembers, seemed to act okay. He’d always hit the bars after court, though, have three or four drinks.”

  Dobson’s ex-wife wasn’t any more helpful. “She still cares about him,” Dave said, “even though she left him because of his drinking. She says it never affected his work. She was a clerk in the traffic court, right in the courthouse complex, and if there had been any problem with Arnie’s performance in court, she thinks she’d have heard about it. She was pretty protective of him. Said he’d been an army lieutenant in Vietnam, and he had his demons over that. But he put his heart into his cases. And no, she won’t sign a declaration. She remembered this case and said Andy’s a serial killer and ought to die. I got their divorce records and Dobson’s death certificate, but there’s not much in them.”

  “How did Dobson die, anyway?” I asked.

  “Heart attack,” Dave said. “His ex-wife said he worked himself to death.”

  Not on this case, I started to say, but thought better of it. Nil nisi bonum, and all that; not much point in getting snarky about the dead.

  The jail guards Dave interviewed were a washout—not unexpected, since ninety-nine out of a hundred of them will tell you that your client was perfectly normal and faking any mental illness you may think he had. They remembered Andy and Emory only vaguely and didn’t recall that they were anything but typical prisoners. “They had this mother,” one of them said. “Used to visit them all the time. Was that them?” It seemed that Evie wasn’t someone one forgot.

  He talked to some local lawyers who remembered Dobson and his drinking, but they made him seem more like a bon vivant than an alcoholic.

  Several days into his trip, he finally hit something like pay dirt, in the form of a former high-school counselor and a retired principal from Shasta High who remembered Andy and Emory.

  In his evening phone call, Dave told me, “The principal said they weren’t that memorable as students, but he remembered them because they ended up on death row. The counselor actually volunteered that he felt kind of sorry for Andy because he was so slow. Thought you’d like that. He also said Emory had a mean streak and Andy got in trouble for following his brother.”

  The men remembered Evie, too. “‘One of those mothers whose kids can do no wrong,’ was how the principal described her,” Dave said. “If either of them was disciplined, she was there the next day, complaining. If they got in a fight, it was the other kid’s fault. If they destroyed school property, the other kids did it, not them. Mostly, it was Emory, it seems. He seems to have been more of a troublemaker than Andy. But when they wanted to put Andy into special ed, she wouldn’t hear of it. Refused to sign the papers. ‘Nothing wrong with my boy. He just needs more time to learn. You need to spend more time with him.’ Like that. Never rude, the counselor said, just this nice little lady who wouldn’t hear a thing against her boys. But the principal called her a screwball.”

  “Interesting,” I said. “Did he say why?”

  “He just said he thought she was scary. Said he wasn’t surprised that the boys ended up in prison,” Dave added.

  “Dave—what did she do?”

  “Jan, I’m sorry, he really didn’t say. I’ll call him tomorrow, okay?” Dave sounded like he’d about had it with being on the road. Sitting in my armchair in my cool, quiet house, I felt guilty.

  “I hope you’ve found some way to stay out of the heat,” I said, trying to change the subject.

  “Not hardly. I’m getting used to it. I’ve biked in weather almost this hot, but I’ve never been able to figure out why anyone would live in it.”

  “Me neither.”

  “Do you want declarations from any of these folks?”

  I thought for a moment. We would need declarations eventually, signed, sworn statements from potential witnesses, reciting what they would be able to testify to if the court gave us a hearing. “Not yet,” I said. “Let’s wait till we have an expert who can tell us what information we need on the intellectual disability issue.”

  I’d read the transcripts and CV Coleman Chu had sent me and looked up Dr. Moss’s faculty web page on the UC Davis website. He looked about forty, with a round baby face and metal-framed glasses. His hair was light-colored and a little disheveled, as though he had just rubbed his hands through it. In my mind’s eye, I could see his wife looking at the picture on the website, shaking her head, and saying, “You couldn’t have combed your hair before they took it?”

  After making the decision to talk with him about working on Andy’s case, I spent twice as long as I should have composing an email that I hoped would strike the right tone of respect and professionalism.

  21

  Dr. Moss answered my email the next day. That’s another reason I like academics; they like email. Soon we had a date to meet at his office in Davis.

  The Davis campus is typically University of California—blocky post-war architecture, tall shade trees, and green lawns, except for a few additions befitting its role as the state’s agricultural school, such as a department of viticulture and a dairy barn—and completely incomprehensible to navigate. In spite of Dr. Moss’s very specific directions, I ended up lost on roads that circled back on themselves past barely distinguishable light-gray buildings identified by discreet, unreadable signs. After passing the dairy barn for the second time, I called for help, and he talked me in.

  His building was an air-conditioned sanctuary from the steamy heat outside. Even the walk from my parking place had left me feeling wilted and sticky, and Dr. Moss suggested sodas from the machine at the end of the hall. Armed with a Diet Coke and a bottled water, both almost painfully cold, I settled in a chair near his desk, and we began talking business.

  I liked him right away. He was taller and thinner than I thought he would be from his photo, and his hair, light brown with a little gray in it, was neater. His eyes were light, and his metal-framed glasses seemed almost to disappear against his face. He was wearing khakis and a pale blue Oxford shirt that looked a little worse for the heat.

  A couple of framed diplomas hung on the wall over a file cabinet on one side of the office; on another wall hung a poster for a Matisse exhibition in Chicago. His desktop was fairly uninformative: photos of a smiling dark-haired woman and two brown-haired children, a small stack of file folders, a yellow pad and two or three pens, a monitor and a keyboard.

  He offered me a chair in front of his desk. “I guess I should start by saying that when you contacted me I wasn’t sure I ever wanted to testify in another one of these hearings. Maybe it’s the stakes involved, but the level of hostility is really something else.”

  “It can be pretty bad,” I agreed.

  He nodded. “I’ve testified as an expert a couple of times in court and in hearings about legislation, and I’ve never had anyone impugn my integrity until Mr. Beasley’s case. The prosecutor actually accused me to my face of tailoring my testimony because the defense was paying my fee and then made some comment abou
t liberal experts who make up diagnoses to save criminals from the death penalty. He never even asked my views on the death penalty. He had no idea what they were.”

  “I saw that in the transcript,” I said. “He was really over the top.”

  He sat upright, picked up a pen from his desk as if looking for something to do with his hands, and turned it slowly in his fingers as he spoke. “To be honest, I’m not entirely against the death penalty, at least in theory. I think there are people who deserve it.” He paused for a moment as if considering what to say next. “I’m a neuropsychologist, not a lawyer. But I do agree with the Atkins decision. People who are intellectually disabled are much more compromised by it than most people think. They really can’t be expected to function in the world as well as someone of normal intelligence. From what you’ve told me, there’s a good chance Mr. Hardy fits that picture.”

  “I certainly think so,” I said.

  “It’s not a foregone conclusion; there’s much more testing that would need to be done. But I am interested in working with you on his case.”

  I thanked him.

  “But you said it was on appeal, I think?” he went on. “Where do I fit in, if the trial’s over?”

  I made an inept attempt at explaining the intricacies of post-conviction proceedings.

  “But you’re going to have a hearing like the one in the Beasley case?” Dr. Moss asked.

  “Maybe,” I said. “Right now, what we have to do is convince the court that it should hold a hearing at all. If you evaluate Mr. Hardy and find that he’s intellectually disabled, we’ll put your findings into a written declaration and file that with his habeas corpus petition.”

  “When would the hearing be?”

  “If we have one, maybe not for years. Capital habeas cases move very slowly in the court system.”

  “Really? Years?” he said, shaking his head. “I have so little to do with criminal law. Most of this is like a foreign language to me. To evaluate Mr. Hardy, I’d need to do quite a bit of testing—a neuropsychological battery and IQ testing. You’d need to get background information to establish that he was disabled before he was eighteen; that IQ score of his in elementary school was a good start. And we’d need to find out about his adaptive functioning—his self-care, cognitive, social skills—and that will involve interviewing him and other people—family, teachers, coworkers. When would you need this done?”

  “We have to file our petition in the middle of next March.”

  “I could do an evaluation some time this fall. Where is Mr. Hardy?”

  “San Quentin. Arranging for an evaluation there takes some time. The prison has to do a background check to clear you as a visitor, and we need to reserve the psychiatric interview room in the prison a few months in advance, because it’s pretty booked up. We should be able to get the room some time in November. Are you available then?”

  “As far as I know.”

  We spent a few minutes discussing money—Dr. Moss’s hourly rate and the number of hours it was likely to take for an evaluation and report. “We’ll need to make a funds request to the judge,” I said, “but assuming it’s granted, we should be able to get started in a month or so. I hope that’s okay.”

  It was. But before we parted company, I had a favor to ask him. “It’s about adaptive functioning,” I said.

  That was the hardest part. Diagnosing someone as intellectually disabled didn’t just mean testing their IQ. An expert also had to determine how well the person managed the details of day-to-day life, such as cleaning, cooking, personal hygiene, getting from place to place, keeping track of money, reading, and so forth. One didn’t need to be bad at all of it to be found disabled, just significantly deficient in a few areas. I had read Dr. Moss’s testimony in Coleman’s case, and it seemed—understandably, I guess—that people with intellectual disabilities varied tremendously in what they could and couldn’t do well. Some could drive a car or hold down a simple job, while others couldn’t, but might have other skills, such as the ability to cook or do simple arithmetic. But even after reading what Dr. Moss had said, along with some materials from seminars, I had only a vague idea of what adaptive functioning was and how to establish that Andy wasn’t good at it.

  Dr. Moss gave me a rundown of areas to look at for adaptive functioning problems. “You need to establish how he functions compared to normal people in a normal environment—which means how he did before he went to jail.”

  “Andy could drive a pickup truck,” I said.

  “Believe it or not, it’s not uncommon for intellectually disabled people to know how to drive a car,” Moss said. “But check whether he had a license—passing the test is harder.”

  I made a note to call Corey.

  “Let me suggest some reading,” he said, and he tossed out the titles of seven or eight books and articles. I told him I’d get back in touch as soon as we had the court’s approval on our funding request.

  Before heading back to the coast, I stopped at the Davis medical library—after getting lost again first—and copied the articles Dr. Moss had suggested to me.

  When I turned on my cellphone after leaving the library, there was a message from Dave. He had run out of people to interview in Pomo County, and he was heading back to the Bay Area. Just as well, I thought. We’ve got plenty of work to do.

  22

  “Mr. Christie. Ms. Moodie.”

  “Your Honor.”

  Jim’s response seemed to disperse, like the smoke of a cigarette, in the still air of the courtroom.

  We were in the United States District Court in Sacramento, Jim and I and the magistrate assigned to Andy’s case, to talk money. Being court-appointed attorneys meant that our services were paid for by the taxpayers. We, the people—including all those who’d voted for the death penalty in the first place—had paid the attorneys’ legal fees and the expenses for investigators and experts for both sides, for the trial that put Andy on death row, the automatic appeal from his conviction, and now these habeas corpus proceedings. It had cost a lot of money, a lot more than if he’d just been sentenced to prison for life, like Emory. Emory had gotten a court-appointed lawyer for his appeal in the state court, but that was all—no free habeas corpus counsel, no money to investigate what might have gone wrong with his trial. He’d run out of legal moves years ago, and there was nothing left for him but to do his time.

  But the elected representatives of the taxpayers had also arranged that the money we were being paid for trying to keep the state from having its way with Andy, and the money we got for expenses—for travel, investigators and expert witnesses—would be doled out by the judge in the case—or sometimes, as in Andy’s case, the magistrate, a sort of assistant judge.

  Judge Sally Fuentes, the magistrate assigned to Andy’s case, had been a partner in a white-shoe law firm, an officer in the American Bar Association, and often showed up on the covers of lawyer’s trade magazines for “top women lawyers of the year” features. A few years ago, she had taken what amounted to a well-earned retirement into a federal judgeship. Standing in the courtroom below the bench, I felt a bit like a poor relation.

  Jim had told me that as judges go, Judge Fuentes had a reputation for being reasonably realistic about expenses in death-penalty cases. I’d heard horror stories about judges who had given appointed attorneys no money at all to investigate their cases, and one who had gone through the roof because an investigator on the road had rented a mid-sized car on a day when no compacts were available. Jim was responsible for handling the money issues in Andy’s case, and that was fine with me. He had given Judge Fuentes a proposed budget for his investigation before he’d brought me onto the case, and she’d given him all the money he’d asked for then. With the new information we had about Andy’s IQ, we were coming back to ask for more.

  Until now, our status conferences with Judge Fuentes had been telephone hearings, that is to say, conference calls with the magistrate and the attorneys, a procedure that not
only saved the government money and travel time for its appointed lawyers, but let me go to court in jeans and a t-shirt. Generally, they involved the briefest of progress reports and lasted only a few minutes. This time, though, we were asking both for money to retain Dr. Moss and for an extension of the deadline for the petition so that he could do his work; and the judge wanted to question us in person.

  I’d never liked trial work; the courtroom isn’t a place for someone like me, prone to second-guessing and after-the-fact agonizing over what I might have said or done. Appellate law doesn’t involve much going to court. Oral argument, and perhaps an occasional hearing to correct the appellate record, that was all; my legal battles were fought, for the most part, from my office, where I could sharpen my arguments and get them right before launching them at the enemy.

  I tried to listen to Jim as he went through the litanies of the status conference, but I found myself musing instead on the curious psychology of the courtroom. The proportions of the room, with its paneled walls and high ceiling, gave it a ceremonial feeling, like a church or a small concert hall, and the space absorbed and dissolved the human sounds and movements inside it. The air was cool and still, with a faint smell of polished wood, the lighting diffuse and shadowless. It cast a spell: the robed judge and uniformed marshal; the stately pace of the proceedings; the continual formalities of standing and sitting and the ancient forms of address; the sense of isolation from the outside world—there were no windows, I realized—all worked together to lull people into feeling that the rituals of the law, and their consequences, are not only just but inexorable. When I was working in the public defender’s office, the effectiveness of the trick, even in crowded city courts, had amazed me: defendants heard themselves sentenced to long prison terms and then walked quietly out with the bailiffs as if they were about to go home. Almost no one rebelled or challenged the illusion.