Justice Delayed (Innocent Prisoners Project)

by Marti Green

  Dani hesitated long enough for Tommy to jump in.

  “We’re HIPP,” he reminded her. “We represent innocent convicts, remember?”

  “Even if he’s guilty, he may be innocent of the death penalty.”

  “What the hell does that mean?”

  “It means he may have been wrongly sentenced to death because of an intellectual disability.”

  Tommy swung his head around for a quick, incredulous glance at Dani. “Are you kidding me? Sounds like mumbo jumbo to get around taking on the case of a guilty man.”

  Dani knew Tommy wouldn’t be happy working on Osgood’s case if the facts came back against him. Still, she also knew he was a team player and would do what she asked of him. “When we get back, I’ll track down his former attorney and get his records. After I go through them, I’ll have a better sense of where you should start your investigation. At this point, like with all our investigations, let’s consider him innocent.”

  “So, I should figure sometime next week?”

  “Yeah. Assuming I can track down his lawyer. Jeez—twenty-two years. Who knows who’ll be around anymore?”

  CHAPTER

  4

  Back in HIPP’s office, Dani began her search for Nick Bennington. He wasn’t listed in Martindale-Hubbell, the directory of lawyers practicing anywhere in the United States. When Bennington represented Osgood, he’d headed his own firm. Dani suspected he was a solo practitioner then, probably handling a wide gamut of matters, from drafting wills to personal injuries to a smattering of criminal cases. Still, that didn’t mean he wasn’t good. Dani wouldn’t know whether he’d mishandled Osgood’s trial and appeals until she got her hands on his records and spoke to him about his trial strategy. But she couldn’t find him. Not even in the online telephone directories.

  There were three other lawyers named Bennington practicing law in Georgia, according to Martindale-Hubbell. Maybe one of them was related to Nick. She got lucky with her second call. Or unlucky, as it turned out. Lucy Bennington was Nick’s daughter. She’d graduated law school ten years earlier and entered her father’s practice. Dani was right—it had been a one-man show until Lucy joined him. Then, the two practiced together until two years ago, when a diagnosis of Alzheimer’s forced his retirement.

  “Did your father ever talk to you about Jack Osgood’s case?” Dani asked Lucy.

  “Not really. I was just a child when he was tried. Even when his appeals were filed.”

  “Do you still have your father’s old files?”

  “Probably. Most are in storage, but they should be easy to locate. Dad kept a superefficient filing system. I’ll have someone do a search and then FedEx them to you.”

  It would certainly help to have the files, but Dani always learned so much more by speaking to the original attorney. Especially here, where he’d clearly made a decision not to raise Osgood’s intellectual functioning. She wished she knew why. “Do you think your father would meet with me?”

  There was a hesitation on the phone before Lucy spoke again. “Dad’s in an Alzheimer’s care facility. He has moments of lucidity, but most of the time he’s out of it. He still recognizes me, and I’m grateful for that. But—I don’t know that he’d be able to help you.”

  “Still—I’d like to give it a try, if that’s okay with you. After I go through the files.”

  “I suppose it wouldn’t be harmful for him. Sometimes it’s the old days he remembers best.”

  Dani thanked her, then hung up. Unless the file answered all her questions, it seemed likely she’d be heading back to Georgia very soon.

  Her next call was to a forensic psychologist. She’d located one in Georgia who had a reputation as a smart, thorough, no-nonsense expert utilized by both defense and prosecuting attorneys. Dani hoped she’d be able to shed light on Osgood’s limitations.

  Three days later, Dani had finished reviewing Osgood’s trial transcript as well as the appeal briefs and decisions. Lucy had found the files quickly, and Dani spotted them piled up on the floor as soon as she’d entered her office the next day. After her first read, she flipped through the documents quickly a second time, concerned that she’d missed something, but she hadn’t. Throughout all the pages, there was no mention of Osgood’s intellectual disability. Although the Supreme Court’s ruling that barred execution of such prisoners didn’t occur until 2002, well after Osgood’s trial, the state of Georgia had barred such executions beginning in 1991—three years before his trial. Did Bennington not raise the issue because he didn’t think Osgood met the legal requirement for such a disability? Or, was Bennington incompetent? He didn’t seem to be, based on Dani’s review of the records. So, why hadn’t he? Dani realized only Nick Bennington could answer that question. And, according to his daughter, his mind might be too far gone to be of any help. Still, Dani had to try. She booked a flight back to Georgia the next day.

  Dani walked into her Bronxville home shortly before 5:00 p.m. When she wasn’t traveling, she usually left for work at nine and began heading back home at three. That had been her deal when she’d accepted the job at HIPP eight years earlier. Bankers’ hours, with time made up by working from home as long as needed to represent her clients effectively. It had always been important to her to see Jonah off to school and to be waiting for him when he got off the school bus. Except, the latter part didn’t always occur. Once she was at work, she’d often get caught up in a task, making it hard to leave when she wanted. Luckily, she’d found Katie, her sitter, who was always there for Jonah. Katie was a godsend—especially since Ruth had been born. The few afternoon hours that Katie used to work had expanded to a full day.

  As soon as she walked into the house, Jonah bombarded her, and Ruth began crying. Ruth usually cried when Dani walked in—her way of telling her mother she’d missed her. Dani picked up Ruth, who’d just started to walk, and motioned for Jonah to follow her into the kitchen. She loved the smells that always greeted her when she returned home, because Katie usually had some treat she’d baked for Jonah fresh out of the oven. This time, it smelled like brownies.

  “How was school, Jonah?”

  “It was okay. But I have animating news. Ruthie can say my name now. Sort of. She called me Nah.”

  “That is exciting news.” Dani was used to Jonah’s unusual choice of words, common among those with Williams syndrome. She chatted with Jonah some more, calmed Ruth down enough so that she could put her down, then began to prepare dinner. She tuned the radio over the sink to WQXR and immediately recognized a Beethoven symphony. Growing up, she’d always cringed when her parents played classical music, but now, Jonah’s proficiency in music had sparked her interest in listening to it. She’d worried so much about Jonah’s future, but despite his disabilities in some areas, he was a talented composer. Last year, the Westchester Philharmonic had performed his symphony, to rousing cheers from the audience. Now, she’d become convinced that his talent would help him survive in a world without his parents’ protection. How had he grown so fast? It was just yesterday he was Ruth’s age. He was already three inches taller than Dani and had begun to get peach fuzz on his chin. Soon, he’d need to start shaving. Before she knew it, he’d be leaving for college. That was three years away, but Dani had been assured he would undoubtedly be accepted at a music college, one that made allowances for his deficits.

  She looked over at Ruth, who was playing with toys on the kitchen floor, and smiled. At least she would have her when Jonah went away. Her happy, chubby, wonderful surprise.

  CHAPTER

  5

  Stone Ridge, Georgia, reminded Dani of the picture-perfect small towns she’d read about in the books she’d devoured as a child. She’d been a voracious reader when she was young. As an only child, she didn’t have siblings to help her pass the hours before her parents returned from their jobs, so she’d turned to books instead.

  She and Tommy had flown in to Atlanta that morning, rented a car, and driven an hour north to this small hamlet once
rocked by the murder of Kelly Braden. Lucy Bennington had agreed to meet with Dani and take her over to the nursing home that housed her father. Later, they would stay in town and try to track down people who’d known Jack Osgood back then.

  As they neared the town, they passed alternating acres of forest and pastureland dotted with drowsing cows packed under any available shade. Bennington and Associates was housed in a cottage directly on Stone Ridge’s main street. When Dani and Tommy were led by Lucy’s assistant into her office, Dani was immediately struck by how young she looked. Lucy’s straight chestnut-brown hair, with a row of bangs that framed her face, made her look more like a college coed than an attorney practicing on her own. Dani knew that since Nick Bennington’s retirement, Lucy had been the sole lawyer in the firm.

  “I hope this isn’t your only reason for coming here,” Lucy said after the introductions were finished. “I don’t know how lucid Dad will be today. He was pretty out of it yesterday.”

  “We’re here for the day. But I’m keeping my fingers crossed that your father will remember something about Jack’s defense.”

  Lucy retrieved her purse from the desk drawer, and they headed out to Meadowbrook Senior Living, a continuing-care facility located in the next town. “Dad moved in here after Mom died,” Lucy said on the drive over. “Within six months, he was in the assisted-living section, and a year later in the Alzheimer’s care unit. I think he just gave up after Mom was gone. They’d been married forty-four years.”

  Fifteen minutes later, they walked into Nick Bennington’s room. The frail-looking man was slumped down in the chair, staring at the TV, his face pallid. Thin, gray hair hung over his forehead in stringy wisps.

  “Dad? It’s Lucy.”

  Bennington looked up. His pale eyes stared at his daughter as though she were a stranger.

  “Dad. This is Dani Trumball. She’s a lawyer, just like you and me.”

  His eyes turned toward Dani, and a smile crossed his face. “Millie? Where’ve you been? I’ve missed you.”

  “Millie was my mom,” Lucy explained.

  Dani realized this visit was hopeless. This man was too far gone to help her. Nevertheless, she took a step closer to him. “Mr. Bennington, I represent Jack Osgood. Do you remember him?”

  “Millie?” he asked again.

  Dani reached over and touched his hand. “I’m sorry. I’m not your wife. My name is Dani Trumball.”

  Bennington stared at her, his eyes watering. “Not Millie?”

  “No. I’m sorry.” Dani waited a moment, then asked him again, “Do you remember Jack Osgood? You represented him after he was charged with murdering a teenage girl.”

  Bennington hung his head down, murmured quietly, “Not Millie,” a few times, then looked up and stared at Dani once more. After a few moments, he asked, “He the retarded man?”

  Dani winced at the word, a relic of the past. “Yes. Do you remember him?

  Bennington’s body straightened, then he grimaced. “I’ll never forget him.” He stared once more at Dani. “He’s still alive?”

  “Yes, and I’m trying to help him.”

  “You got to stop his execution,” Bennington said, his voice croaky. “He never should have gotten the needle. I don’t know whether the boy killed her or not, but if he did, he didn’t know what he was doing. Being retarded, I mean.”

  “But you never raised that at his trial, or even the appeals you filed. Why was that?” Like every death-penalty case that Dani took on, numerous appeals had been filed. With Osgood, the first was a mandatory appeal to the Supreme Court of Georgia, required by Georgia law, to review the sentence of death, as well as any purported errors of law during the trial. After the conviction and sentence were upheld, Bennington followed with both state and federal habeas corpus appeals. None of those appeals claimed that Osgood couldn’t be executed because of an intellectual disability.

  “You practice much in Georgia?”

  Dani shook her head.

  “I hired a psychologist. Had Osgood tested. He told me it was borderline whether Osgood was mentally retarded. That job he had, it worked against him. Made him look like he was capable. And in Georgia, even when it’s clearer, it’s almost impossible to get a finding of mental retardation. I had a better chance of proving he was innocent and decided that was the way to go.”

  “But after that failed, after he was sentenced to death? What was there to lose?”

  Now, Bennington’s eyes were steely clear as they locked onto Dani’s face. He was silent for a time, then just shook his head. “I’d have had to admit he was guilty. And he kept swearing he wasn’t. Know how many capital defendants have avoided the death penalty in Georgia because they were retarded? Barely more than ten percent. Only state with lower percentage is Florida. Know why?”

  Dani did, but he didn’t give her a chance to answer.

  “Have to prove it beyond a reasonable doubt. Now, you ever meet a psychologist or psychiatrist who said something was absolutely certain? I sure haven’t. My own expert wasn’t even certain. I didn’t like the odds, especially where it was a close case, like with Jack. And back then, it was even harder than now.”

  Dani wasn’t sure she agreed with him, but at least now she understood Bennington’s reasoning. She had one last question. “Did you think he was innocent?”

  “I have to tell you, I knew that boy well, not just as his lawyer, and I always thought—”

  “Time for your meds,” chirped a voice in the doorway.

  Dani turned around and saw a nurse walking toward the bed. She handed Bennington a glass of water and a small paper cup with three pills. He dropped them into his hand, then one by one swallowed each with a gulp of water. When he finished, the nurse smiled at him, then left the room.

  “You were saying?” Dani prompted him.

  “Millie?” he asked, a cloud back over his eyes.

  Dani had scheduled two other appointments. She’d gotten all she could from Nick Bennington. Despite his daughter’s efforts, he remained in a fog after the nurse left his room. As they walked out of the facility, Dani thanked Lucy, then she and Tommy slid into the seats of their rental car. She told him, “Let’s go to the school next.” Dani took out her phone, opened her notes app where she’d written its address, then plugged it into the car’s GPS. Tommy was behind the wheel, as usual. She wondered if there was a bit of gender stereotyping on her part—always having the man drive. When she and Doug went anywhere together, he automatically got behind the wheel, even though she was as good a driver as he.

  “Lost in thought, dollface?”

  She laughed. It was sexist and offensive, and she’d come to accept it from Tommy. Maybe that’s why she’d just worried about engaging in reverse sexism herself—her acceptance of Tommy’s banter had perhaps made her hypersensitive. She hadn’t always brushed off Tommy’s sexist repartee, and still didn’t from anyone else. At first, she’d tried to break him of the habit, but it was too ingrained in him. She knew how much he respected her, both personally and professionally, and so, over time, she’d decided to just ignore it. He was too important to her to do otherwise.

  They arrived at the high school ten minutes later and made their way to the principal’s office. Although Ms. Halstein had agreed to meet with them, Dani hadn’t made an appointment for a specific time, since she hadn’t known how long they’d be with Nick Bennington.

  They waited outside her office for ten minutes before the door opened and a short, heavyset woman escorted out a pimple-faced boy with a scowl on his face. “This is your last warning, Eddie. Remember that,” she said as the boy walked away, his shoulders hunched over.

  When the boy was gone, she approached Dani and Tommy. “You must be the people from New York.” Despite her small stature, she spoke with a strong voice and an authoritative manner.

  Dani stood up and made introductions. They followed the principal into her office and sat down on the hard wooden chairs opposite her desk. Dani handed her a release
signed by Osgood.

  “Jack gave me the names of a few teachers he had,” Dani said. “I’m hoping they still work here and I can speak to them.”

  “Some are; a few have retired,” Halstein said without hearing the names. “I’m just a few years away from retirement myself.”

  “Did you know Jack?”

  Halstein nodded. “Of course. After what happened, everyone in the school knew about him. But I remembered him. I’d always felt sad for boys like Jack. Sad because we really didn’t have the right resources for him.”

  “So, you knew he had special needs?”

  “Yes. But we’re a small town. The kind of classes Jack needed, he’d have to travel more than an hour each way. His mother didn’t want that. We did the best we could. Gave him special attention as much as possible. He left school as soon as the state allowed.”

  “Had the school ever had him tested?”

  “I believe so. We have a school psychologist that’s shared among several towns in the county. It’s someone different now, but I’m sure Jack must have been given an IQ test back then, and we should have the records. Let me check.” She turned to her computer and typed something in, then frowned. “I see he was first tested in the sixth grade, then again in the ninth. But we don’t seem to have the results here.” She picked up the phone on her desk and punched in two numbers. When someone answered, she said, “Betty, how hard would it be for you to find Dr. Quentin’s test records from back in the eighties?” Halstein listened to the answer, then said, “I’m looking for the test protocols of Jack Osgood. From the sixth and ninth grades, first in 1983, then ’86. Could you get on that right away?”

  Halstein hung up. “All of the school system’s paper records are stored off-site. The clerk is going to do a search for them now. I’m afraid it may take a few hours.”

  Dani looked over at Tommy. “Want to get some lunch?”