A Time to Stand

by Robert Whitlow

  “Yes, Your Honor,” Adisa replied. “Dr. McHenry is present in the courtroom. I believe the State is willing to stipulate the chain of custody for both the hair and the saliva residue delivered from the GBI evidence lab to Dr. McHenry’s facility in Sandy Springs along with the DNA samples obtained from my client at the Reidsville penitentiary.”

  “Mr. Kildare,” the judge said. “Your response?”

  “Chain of custody is stipulated, Judge.”

  “Very well,” the judge said to Adisa. “Proceed.”

  Dr. Joseph McHenry walked up to the witness stand and raised his right hand. Adisa administered the oath, and the forensic pathologist sat down.

  “Please state your name and tell the Court your professional qualifications,” she said.

  Dr. McHenry was an autopilot witness. He’d testified over three hundred times in criminal cases, mostly for the prosecution, but also for the defense if the results of his testing supported the innocence of the accused. Adisa knew the doctor could talk without interruption for thirty minutes unless she reined him in.

  “Most of my testimony has involved homicides or suspected homicides,” the witness said. “I’m often asked to analyze a corpse and determine the likely cause of death within a reasonable degree of medical certainty.”

  “But in this case, your inquiry was limited to DNA comparison.”

  “Yes.”

  “Using what technique?”

  “There are several DNA analysis methods: automated short tandem repeats, or STRs; single nucleotide polymorphisms, or SNPs; mitochondrial DNA, or mtDNA; Y-chromosome DNA; and the restriction fragment length polymorphism, or RFLP, technique. Advances are coming online at a rapid clip. There is some interesting research going on at Stanford—”

  “Which protocol did you use for the DNA samples delivered to you from the GBI lab and provided by Mr. Larimore in this case?” Adisa asked, interrupting.

  “RFLP for both the saliva and the hair samples. It was the most appropriate methodology.”

  “Did the GBI provide enough material to perform the analysis and reach a conclusion?”

  “Yes, as to hair. No, as to saliva. The passage of time had degraded any saliva left on the cigarette butt, rendering the sample nonproductive.”

  This wasn’t news to Adisa, and she took it in stride. She heard Larimore grunt behind her and motioned with her hand for him to stay calm. The inmate was still fuming over the original prosecutor’s use of the remains of a hand-rolled cigarette to link him to the victim, a seventy-three-year-old man who was sitting on the back porch of his residence when a robber surprised him, tied him up, burglarized his house, and stole his car.

  “Please tell the Court the results of your testing on the hair samples,” Adisa said.

  “They did not match.”

  “Within what probability?”

  “That’s an odd question,” the witness replied, raising his eyebrows. “I’m not sure if I should say zero percent or one hundred percent.”

  Before Adisa could rephrase the question, the judge spoke.

  “Do you believe the hair samples come from the same person?” the judge asked the witness.

  “No. And I’m one hundred percent sure of my answer. In addition, I placed the samples under a microscope. Magnified, it was clear that the hair came from different people. One person had curly brown hair; the other person’s hair was straight and black.”

  Adisa saw the judge glance at her client and then turn to her.

  “Where and how was the GBI sample obtained?” the judge asked Adisa.

  “As I mentioned in my brief, the State stipulates the hair sample was removed from beneath the fingernails of Mr. Chesney, the victim. He testified at trial that he briefly fought with the assailant.”

  “That’s correct,” Kildare replied, half rising from his chair. “And identified the defendant from a lineup as the perpetrator of the crime.”

  “A lineup that did not meet the requirements of Kirby v. Illinois,” Adisa quickly responded. “At that point Mr. Larimore had already been charged with the crime and had the right for a lawyer to be present.”

  “The lineup issue was extensively litigated in the defendant’s prior appeals,” Kildare responded with more vigor. “If Ms. Johnson believes this is relevant to the current motion, she is going to have to—”

  “It’s not relevant, Your Honor,” Adisa interjected. “The extraordinary motion for new trial is based on the DNA evidence.”

  “Then stick to it,” the judge said.

  Adisa kicked herself for chasing an evidentiary rabbit that had long ago escaped into the woods. She rested her hands on a lectern while Dr. McHenry provided the necessary details about the DNA testing of the hair samples.

  “Once you isolated the DNA profile from the hair samples delivered by the GBI lab and determined that the hair did not come from Mr. Larimore, what did you do?” she asked.

  “I entered the data into CODIS and discovered—”

  “The judge is familiar with CODIS,” Adisa interrupted, “but please explain for the record.”

  “CODIS is the Combined DNA Index System maintained by federal, state, and local law enforcement systems. It allows comparison of DNA samples with the profiles on record from convicted offenders and is extremely valuable, especially in serial crimes.”

  “Were there any matches on CODIS?”

  “Yes, for an individual named Vester Plunkett within a degree of accuracy of 99.58 percent. In my opinion, the hair supplied to me from the GBI lab came from this individual.”

  “Mr. Plunkett is currently incarcerated and serving a forty-year sentence at the Big Sandy federal penitentiary in Kentucky,” Adisa said to the judge. “He was convicted five years after the Chesney robbery of three felony theft offenses, including one in which a bank guard was shot and severely wounded.”

  “Is that correct, Mr. Kildare?” the judge asked.

  “Yes, sir,” Kildare replied.

  “Anything else, Ms. Johnson?” the judge asked.

  Adisa had several more follow-up questions on her laptop, but the way the judge spoke indicated he’d heard what he wanted, or needed, to hear.

  “No, sir, subject to any redirect.”

  “Mr. Kildare, you may proceed.”

  Kildare stood and looked over at Adisa’s client for a moment. “No questions for Dr. McHenry, Your Honor,” he replied.

  “The witness is excused,” the judge said.

  The forensic pathologist left the witness stand. Adisa let out a deep breath. She knew the DNA evidence was strong, but postconviction relief in a criminal case was always a long shot. Courts were notoriously reluctant to disturb what a jury had decided. As she watched Dr. McHenry move past, she knew the pathologist was disappointed that Kildare wasn’t going to attempt to challenge his findings or conclusions. The pathologist had told her he loved to spar with lawyers who cross-examined him.

  “At this time I’d like to call Mr. Larimore,” Adisa said.

  “What’s he going to say?” the judge asked.

  “That he bought Mr. Chesney’s car from Vester Plunkett for six hundred and fifty dollars without any knowledge that the vehicle was stolen. At the time the crime occurred, Mr. Larimore was fishing alone at a pond about five miles away.”

  “What’s the State’s position?” the judge asked Kildare.

  “Judge, Ms. Springer in our office instructed me not to oppose the motion if Your Honor deems the DNA evidence sufficient to grant a new trial.”

  “I so find,” Judge Boswell replied quickly, catching Adisa off guard.

  Adisa was stunned. The judge turned to Kildare. “Is the State going to retry the defendant?”

  “No, sir. As you know from Ms. Johnson’s brief, Mr. Chesney passed away three years ago. I’ll contact his family and tell them what happened today. We do not oppose the defendant’s immediate release from custody without the necessity of a bond. I anticipate an indictment will be issued shortly charging Mr. Plun
kett with the crime.”

  Adisa felt an extreme sense of satisfaction. Six months of work vindicated in less than an hour. She turned to her client, who was in shock.

  “You’re going to be free,” she said, smiling.

  “It will take forty-eight hours to process the paperwork,” Kildare replied. “In the interim, Mr. Larimore will be kept at the Fulton County Jail.”

  “Ms. Johnson,” the judge said. “Please prepare a proposed order for Mr. Kildare’s review, then submit it to me by five o’clock tomorrow afternoon.”

  “Yes, sir.”

  “The Court will be in recess for fifteen minutes,” the judge said before leaving the bench.

  Adisa stepped over to Kildare. “Thank you,” she said. “I wasn’t sure how you viewed the case.”

  Kildare watched the judge exit the courtroom. He then faced Adisa. “John Adams once said, ‘Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.’ My job is to convict the guilty, not the innocent. Once I received Dr. McHenry’s report, the merit of the motion was decided in my mind. I wish every issue I faced was so clear.”

  Adisa had considered Kildare smart but perhaps a bit lazy. Now she realized he might simply be efficient.

  “I guess you want to take a minute or two to celebrate with your client,” Kildare said. The prosecutor turned and spoke to the officer who’d escorted Larimore into the courtroom. “You can take off his shackles.”

  Larimore wiped tears from his eyes with the backs of his still-bound hands and held them out as the deputy removed the cuffs from his wrists. The deputy knelt down to free the inmate’s feet. Adisa watched, wanting to imprint the moment as a lasting memory.

  “Is your firm going to represent Mr. Larimore in his claim for reimbursement from the State for wrongful imprisonment?” Kildare asked.

  “I doubt it, but that will be up to my bosses. All my time has been pro bono.”

  “The government’s response to any damage claim will be handled by the attorney general’s office,” Kildare continued. “I’ll let you know the name of the person to notify.”

  “Okay, thanks.”

  Kildare left, leaving Adisa alone in the courtroom with her client and the deputy, who stepped away to give them privacy.

  “Thank you, ma’am,” Larimore said in the gravelly voice that had bristled with anger and animosity the first time Adisa met him face-to-face without a wall of glass between them. Now the voice cracked with emotion, and Adisa saw more tears in the corners of her client’s eyes.

  “You’re welcome,” she replied.

  “No, I mean it with all my heart,” Larimore persisted, roughly swatting away the moisture in his eyes. “You believed me even when no one else did.”

  Adisa wasn’t sure how to respond. Saying something about the importance of the Constitution for every American didn’t seem to fit. She settled on a brief explanation of the judge’s decision to make sure Larimore understood exactly what had happened.

  “I got it,” he said, nodding as she finished. “And I know that you were the one God picked out for me. I know it sounds crazy, but if I can ever do anything to help you, I’ll be there as quick as I can.”

  “You’re right to be thankful,” she said. “I prayed a lot about your case myself.”

  “Come on,” the deputy said to Larimore. “We’ll put you up for the night in the special suite we have for big-shot prisoners. It has a whirlpool tub, sauna, and your choice of snacks.”

  Larimore managed a grin that revealed several missing teeth. “Just don’t throw me in the hole with anyone who’s crazy enough to stick me with a shiv out of spite to make a name for hisself.”

  “Yes,” Adisa quickly added. “Is there a safe place for Mr. Larimore to stay while he’s processed for release?”

  “Yeah,” the deputy replied. “We’ll keep him in a cozy spot with a camera stuck up in the corner of the cell so we can watch him twenty-four/seven.”

  THREE

  THE MIDDLE-AGED WOMAN with shockingly blond hair who served as Police Chief Ben Lockhart’s assistant returned the phone receiver to its cradle. Luke scooted closer to the edge of his chair.

  “Officer Nelson, he’ll see you now,” the woman said.

  Luke licked his lips. Rapid heartbeat, dry mouth, nightmares, sudden sweating, and waves of anxiety had been intrusive companions during the ten days since he shot Deshaun Hamlin. Immediately placed on administrative leave with pay as required by police department regulations, Luke had spent most of his time at home. Jane’s support had proved as unwavering as her faith that he would be vindicated when all the facts came out. But it was hard for even her to be cheerful. The sunshine and joy in their lives came from Ashley, who at fourteen months was oblivious to everything except hunger, a dirty diaper, discovering the world at her fingertips, and the love in her parents’ faces.

  Luke opened the door to the office. Chief Lockhart was leaning back in his chair. A big man with a thick neck and an ample stomach, he immediately returned the seat to an upright position.

  “Make yourself comfortable, Luke,” Lockhart said in his slow southern drawl. “And let me get one thing out of the way. I didn’t ask you to come see me because I’m going to fire you.”

  “Thank you, sir,” Luke said with a sigh of relief.

  Lockhart scratched the top of his large head that was covered with closely cut black hair. “And I guess you heard the two bullets that missed the suspect didn’t put anyone else at risk.”

  “Yes, sir. Bruce Alverez sent me a text message letting me know. That’s a relief.”

  “It’s also a relief that half the shots you fired missed the Hamlin boy. From the scores you racked up on the range in April, I found that surprising. But things are different when it’s for real.”

  “Yes, they are.”

  Lockhart ran his thick index finger around the inside edge of his shirt collar. “Nelson, we’re going to have an off-the-record conversation. If you bring it up, I’ll deny it happened. I don’t want you to mention what I’m about to say to anyone, not even your wife. Understood?”

  “Yes, sir.”

  Lockhart shifted in his chair. “From your first day on the job, you’ve been one of the most loyal, conscientious officers on the force. You remind me of myself when I first got into law enforcement.”

  “I appreciate that.”

  “And I believe what you wrote in your report reflects your state of mind at the time you pulled your weapon and shot the Hamlin boy. Ordinary citizens don’t realize the pressure a police officer faces when making split-second decisions. Do I wish this hadn’t happened? Of course, but nobody I’ve talked to has heard you make a racist comment or treat anyone differently because of the color of their skin. That’s the only way to be in this day and age.”

  The chief paused. Luke wasn’t exactly sure where his boss was going with the conversation, but every police officer, even in a town like Campbellton, knew that both the perception and the reality of police interaction with the black community were a big deal, with strong opinions on both sides. There were two black officers on the force. Luke had enjoyed working with both of them.

  “It was tough fighting prejudice when I worked in Atlanta,” Luke offered, “but since coming here I’ve tried not to let anything influence me except what I’m supposed to do as an officer. My old unit commander in Atlanta was always reminding us that when it comes to color, justice is blind.”

  “But we should always keep our eyes open.”

  “Yes,” Luke replied, still uncertain as to the purpose of their conversation.

  Lockhart turned in his chair and picked up a photo from his credenza. It was a picture of a younger, much slimmer version of the police chief in an Army uniform with a desert setting in the background. He placed the photo so Luke could see it.

  “Did you know that I served a tour of duty in Iraq when I was in the Army?” Lockhart
asked.

  “No, sir.”

  “Most of the time I was holed up on a base where the worst things we fought were boredom and body odor. But for six weeks I was in a unit assigned to clear out pockets of opposition fighters in Mosul. We ended up in several firefights. Five of the men in our company didn’t make it. Others came back with scars inside and out.”

  As the police chief talked, Luke felt a touch of anxiety rising in his chest. He tried to control his breathing. Lockhart didn’t seem to notice.

  “During that time I killed at least four, maybe five men,” the police chief said. “We were fighting a war and people die in battle, but it’s not something that’s easy to forget. One night we were on patrol, and I shot an Iraqi who startled me when I came around the corner of a narrow street. When we checked his body we couldn’t find a weapon other than a nasty-looking knife strapped in a sheath under his clothes. He never pulled it out.”

  “Did you get into trouble?”

  “There was an investigation that involved talking to the other soldiers in my platoon, and after a couple of months a JAG officer issued a report exonerating me. The wait was brutal. Later, I found out that the colonel who commanded our unit went to bat for me in a big way. It was a war zone, and everyone was on high alert. When that happens it’s easy for our senses to be so amped up that everything is magnified.” Lockhart paused. “Kind of like lightning on a stormy night.”

  “I heard a gunshot,” Luke immediately replied. “I’m positive. It was stormy, but—”

  “Okay.” Lockhart held up his hand. “Put that aside for now. Here’s what’s more important. In your situation, District Attorney Baldwin is the JAG officer, and I’m your colonel. We’re working closely together on the police department’s internal investigation. Do you catch my drift?”

  Luke now knew the purpose for the meeting but couldn’t believe what he was hearing. Chief Lockhart was going to huddle up with the DA and make sure no criminal charges would be filed.

  “I think so.”

  “I only wish civilian life was as simple as things in the military,” Lockhart continued. “But we’re not in a war zone here in Campbellton, and it’s a lot more complicated than Mosul, Iraq. No matter what you hear or read in the media, remember the story I just told you.”