by Marti Green
“Why? Lots of judges come out with strange rulings. That’s why we have appellate courts.”
“I know, but still—well, anyway, I decided to take a look at where he got his law degree.”
“And?”
“From University of Florida law school—the best one in the state.”
“So, even good judges sometimes get it wrong.”
Melanie knit her brows together, then handed Dani two sheets of paper. “Look at this. Bios of both Judge Hinchey and Ed Whiting. They went to the same law school at the same time, served on the law review together, then both started at the same state attorney’s office after graduation. I bet they’re friends. Whiting hates the Meltons. We know he thinks they used their money to cover up Win’s crime.”
“What are you saying?”
“I think Whiting had a private conversation with the judge about Win, and I’ll bet he asked him to deny our motion.”
“That’s quite an accusation. They’d be brought before the state ethics committee if it were true, maybe censured.”
“I know. But what if I’m right? What if this hearing is a sham, and Judge Hinchey has already decided to rule against us?”
Dani leaned back in her chair and thought about Melanie’s findings. Ex parte conversations—those held by one attorney with a presiding judge about an ongoing case, without the presence of the opposing attorney—were strictly forbidden. Dani had no doubt they happened from time to time. Especially in small communities, where lawyers and judges traveled in the same circles, and inevitably became friends. But it was almost impossible to prove. And even where those conversations took place, it didn’t necessarily lead to bias by the judge. She reached her hand to twirl a strand of her hair, something she often did when bothered, only to remember her hair was no longer long enough to wrap around her finger.
“If it’s true, I don’t think there’s anything we can do about it. Let’s just hope he doesn’t want to be reversed twice on the same case.”
CHAPTER
22
“All rise.”
The people assembled in the courtroom, including Dani and Melanie, stood. Win, clad in his prison garb and seated in the prisoner’s box, his hands and feet shackled, was also present. Judge Hinchey entered the courtroom, and after he took his seat on the bench, motioned for those assembled to sit.
“So, I guess the high court thinks your so-called new evidence deserves a hearing. You ready, Ms. Trumball?” asked the judge.
“Yes, Your Honor.
“And is the State ready?”
“Yes, Your Honor,” answered Ed Whiting.
“Well, go ahead and call your first witness.”
There was no jury for this hearing. The sole arbiter on whether Winston Melton should get a new trial would be Judge Hinchey.
“Your honor, I wish to submit to the court the transcript of the deposition of Earl Sanders as defendant’s Exhibit One.”
As expected, Whiting immediately jumped up. “Objection. The State has the right to confront this witness, and as everyone knows, he is now deceased.”
Dani knew this was the fight she must win. Without Sanders’s confession, there was no new evidence to support Win’s claim of innocence. “Your Honor, Mr. Whiting was made aware of the imminence of Mr. Sanders’s execution. He was provided sufficient notice of his deposition and was invited to attend and question him. He can’t now claim that he’s deprived of his right to question the witness when he very deliberately waived that right.”
“That right, Mr. Whiting?”
“Yes, Your Honor, but—”
“No buts about it. You had notice of the deposition, and Florida law is clear. If the witness is now deceased, his deposition can be used. Hand it over, Ms. Trumball.”
Dani pressed her lips together to hold back a huge grin. She walked over to the bench and handed the judge the transcript, then gave a copy to Whiting.
“I suppose you have some live witness testimony?” Judge Hinchey said.
“I do. I call Sheriff John Higgins.”
The courtroom door opened, and a beefy man with a goatee and thin strands of hair combed over the bald spot on top of his head strode inside and took his seat in the witness box. After he was sworn in, Dani asked, “What is your profession?”
“I’m the sheriff of Sumter County, Florida.”
“And, as sheriff, is it your duty to investigate homicides within Sumter County?”
“Yes, ma’am.”
“Would you please describe your investigation into the murder of Lauren Jacobs?”
“Objection. Relevance,” Whiting called out from his seat.
“If you look at pages thirteen and fourteen of the transcript, Your Honor, the relevance will be clear.”
Now Whiting stood. “This witness will no doubt testify that Sanders confessed to the murder of Lauren Jacobs. I still assert that it’s not relevant. Whether Sanders committed other murders bears no relation to whether he committed the murder of Carly Sobol.”
“It goes to the credibility of his confession. If it’s proven that Sanders was truthful in every other part of his confession, then it’s reasonable to conclude that he was truthful in his confession to the murder of Ms. Sobol.”
Judge Hinchey held up his hand to quiet the lawyers, then scrutinized the pages before him. When finished, he said, “I’ll allow his testimony to come in. Continue, Ms. Trumball.”
“Sheriff Higgins, please answer the question.”
“Now, see, it isn’t often that one of our teens is murdered. I mean, we have our vehicle deaths and the occasional drug death, but Sumter is a pretty peaceful county. So, when Lauren didn’t return from high school one afternoon, the whole force was out canvassing for her. Found her body behind an abandoned building. Forensics said she was choked first, then raped. Had knife marks on her hands, like she put up a fight.”
“And did your department ever arrest someone in connection with her murder?”
“No, ma’am. Never found out who did it. That is, until your investigator got in touch with us.” The sheriff took his hand and wiped it across his forehead. Despite the air-conditioning, Dani saw that he was sweating.
“And after speaking to the HIPP investigator, were you able to identify the murderer of Ms. Jacobs?”
“Yes, ma’am. We concluded that it was Earl Sanders.”
“And how did you reach that conclusion?”
“Well, first, his confession. But see, he knew about the knife marks on her hands. We never let that information out to the press. Only her parents knew about that, and they’d been told to keep that detail quiet.”
“Thank you, Sheriff. I have no other questions.”
Dani sat, and Whiting stood and walked over to the witness box. “Sheriff Higgins, do you know for a fact that Ms. Jacobs’s parents never told anyone about the knife wounds?”
“Well, they said they didn’t, and they’re pretty honest people.”
“But they could have been embarrassed to admit they hadn’t followed your instructions, isn’t that so?”
“I suppose that’s possible.”
“So, if Earl Sanders ran across someone who’d heard about the knife wounds, he could have known about it that way, right?”
Higgins scratched the top of his head. “Well, that seems pretty far-fetched to me.”
“Suppose he ran into the real murderer in prison. Suppose the real murderer told him about all the women he’d murdered. Isn’t that possible?”
“I guess.”
“And if that’s true, then Sanders would have been lying when he confessed to murdering those women, right?”
“All I know for sure is that Sanders confessed to killing Lauren Jacobs and that he got the details right.”
“Thank you. You can step down now,” Whiting said, then turned to t
he judge. “Your Honor, I renew my objection to this testimony. It does nothing to support the credibility of Earl Sanders’s confession to the murder of Carly Sobol.”
Before Dani could respond, the judge waved her down. “The testimony is admitted. Proceed, Ms. Trumball.”
Dani picked up some papers from the defense table, dropped a packet on the prosecutor’s table, and then approached the bench with the remaining batch. “Your Honor, I have affidavits from eight other sheriffs with respect to other murders Sanders confessed to. I’d like to submit them as defendant’s Exhibit Two.”
Whiting jumped up from his seat. “This is absurd. None of them are here to testify. As you can see from my cross-examination of Sheriff Higgins, there are a great deal of unanswered questions in these statements.”
“Each of these sheriffs are in different states, and I can’t compel them to appear. Florida law permits their affidavits to be considered in that circumstance.”
The judge looked over each of the documents. “There’s no jury here. Just me, and I can decide how much weight I’ll give each of these.” He handed the affidavits to the court clerk and said, “Mark these as defendant’s Exhibit Two.”
A whoosh of relief swept through Dani. Ever since Melanie had discovered the connection between Judge Hinchey and Ed Whiting, she’d feared the judge would overrule her on every request. Now, she’d gotten the two most important pieces into evidence—Sanders’s confession and the various sheriffs’ affidavits. Is the judge just humoring me? she wondered. After all, he did hint that he might not give those affidavits much credence. But the confession was in, and with her other witnesses to back up the facts Sanders had disclosed, she was beginning to feel confident that they might prevail.
“Any more witnesses?”
“Yes, Your Honor. I call Billy Clark to the stand.”
For the rest of the morning, Dani elicited testimony from Billy Clark, the motel clerk, and Debby Malone, the restaurant hostess, who placed Sanders in the vicinity of Palm Beach at the time Carly Sobol was murdered. Whiting tried to poke holes in their testimony, but there wasn’t much he could do. He asked each of them if they’d been offered money by anyone to give those answers, and each denied that. Dani ended the day by offering into evidence the police report, which described the butterfly tattoo on the victim and the description of the tree under which her body was discovered.
When the testimony was finished, the judge said he’d hear closing statements from the attorneys. He pointed to Whiting and said, “Go ahead, counselor.”
Whiting stood up at his table. “Your Honor, the US Supreme Court has articulated in the case of Herrera v. Collins that once a defendant has been convicted, the presumption of innocence disappears. In that case, someone else confessed to the crime for which Herrera was convicted, and like here, that person was deceased. The court ruled that the threshold for a showing of actual innocence should be very high. Also like here, the Herrera case found that the affidavits offered to prove the defendant’s innocence didn’t meet that threshold, since, again like here, there had been no opportunity for cross-examination and therefore no ability to determine the credibility of the affiants. Mr. Sanders’s purported confession lacks the same indicia of credibility and fails to meet the required threshold to justify a new trial.”
When he finished, he sat, and Dani stood. “First, in Herrera, unlike here, the defendant failed to act timely after the discovery of the new evidence. Second, and most important, Mr. Whiting neglects to say that the Herrera case was decided under federal constitutional law. In Florida, Jones v. State is controlling. Under that decision, we must show that the newly discovered evidence so weakens the case against Mr. Melton that it would create a reasonable doubt as to his guilt. We have more than satisfied that burden. Mr. Whiting’s attempt to discredit Mr. Sanders’s confession is based on pure conjecture. He offers no evidence that Mr. Sanders obtained information about those other murders from someone else, nor does he offer any evidence that Mr. Sanders’s specific knowledge of the tree where the murder took place or the butterfly tattoo on Ms. Sobol’s body was provided to him. As the well-known Occam’s razor goes, ‘Among competing hypotheses, the one with the fewest assumptions should be selected.’ Mr. Sanders confessed to the murder of Carly Sobol, he was in the area when that murder took place, he knew details of the scene, and details of nine other murders he claimed to have committed. If a jury had heard that evidence at Mr. Melton’s original trial, no matter how many red herrings Mr. Whiting threw at them, they would almost certainly have acquitted him.”
“Okay, counselors. We’ll recess now. Be here at ten a.m. tomorrow, and I’ll have a decision for you.”
Dani sat and felt the adrenaline from the hearing drain from her body, replaced by fatigue. She’d done all she could for Win Melton. Now it was in Judge Hinchey’s hands.
The heat of the day had cooled down in the evening, but a light sweater was all Dani needed. She was glad to be away from the bitter temperatures in New York. She and Melanie had found a restaurant near their hotel and settled in for dinner.
“I’m still worried about Hinchey,” Melanie said.
Dani picked up her glass and took a sip of her chardonnay. The dry, oaky flavor went down smoothly, and almost instantly she could feel her muscles start to unwind. “I know what you mean. I keep thinking he ruled in our favor each time to create a bulletproof record. He let everything in so he looks reasonable, and then—poof—it’ll all blow up in our faces.”
“I wish we could have confronted him about his relationship with Whiting. Asked him to recuse himself,” Melanie said.
“If we did that and he didn’t turn the hearing over to someone else, we really would have turned him against us.”
Melanie nodded in agreement.
The waiter came by and took their dinner order. Dani didn’t want to think about tomorrow. She always hated the waiting, the suspense of not knowing how something she’d put her heart into would turn out. When she was back in the office, she’d throw herself into other work, but here, in Florida, there were no other cases. Only Winston’s.
“Tell me about your wedding plans,” Dani said to Melanie, desperate to talk about anything else but tomorrow’s decision. She’d gotten engaged a year ago, to a lawyer she’d met when she worked at a Wall Street firm, before joining HIPP. Dani knew how hard it was to plan a wedding, much less a honeymoon, when both of their work schedules were so demanding.
Melanie happily obliged, and as Dani listened, sipping wine as she sat back in her chair, thoughts of the hearing gradually dissipated, like wisps of smoke flying up to the sky.
Dani and Melanie were back in the courtroom the next morning, along with Ed Whiting. Win Melton was in the prisoner’s box.
“All rise,” the bailiff intoned.
The judge entered the courtroom and took his seat. “I’m going to read my decision from the bench. This motion was brought by the defendant in which he claims that newly discovered evidence demonstrates that he is actually innocent. First off, the motion was timely made. Under Rule 3.851(d)(2), the motion must have been made within one year of the date the defendant discovered the new evidence. That he has done.
“Two requirements must be met for the defendant to obtain a new trial based on this evidence. First, the evidence must not have been known, and could not have been known with due diligence, at the time of the trial. Since no one knew of Mr. Sanders’s confession then, the defendant has satisfied the first prong. Next, the evidence presented must be such that if the jury had been made aware of it, it is likely that he would have been acquitted.
“Although a confession by someone else to the crime would in most circumstances lead to an acquittal of this defendant, the prosecution has argued that the confession by Mr. Sanders lacks credibility because he could have obtained the information contained in his deposition from other persons. However, the prosecution has of
fered no evidence to back up that claim. For this reason, I rule that defendant has satisfied both requirements and is entitled to a new trial.”
Melanie reached under the table and squeezed Dani’s hand. Dani looked over at Win and saw he had a wide grin on his face. Dani hadn’t realized how tight her neck muscles had been until she felt them release when the judge finished his ruling.
“Mr. Whiting,” Judge Hinchey continued, “I assume the State wishes the defendant to be remanded pending the outcome of the second trial?”
“We do, Your Honor.”
“The defendant shall be remanded back to prison. Now, look at your schedules, counselors. Let’s see when we can start this trial.”
Dani and Whiting worked with the judge and scheduled the trial to begin in three weeks.
As soon as she left the courthouse, she phoned Amelia Melton. “We won the motion. Win will get a new trial,” she announced, her voice filled with excitement.
“That’s wonderful, dear. It’s just what I expected from you. Now, finish your job at his trial, and HIPP will receive the final $500,000.”
After Dani hung up, she realized that in Mrs. Melton’s world, money ruled everyone. Not a belief in justice, in fairness, in righting wrongs. No, in her mind, everyone had a price, and she had met Dani’s.
CHAPTER
23
As soon as Judge Hinchey returned to his chambers, he picked up the phone and dialed the governor’s office. When the governor came on the line, the judge said, “It’s done. Melton will get a new trial.”
“Good man, Fred. I won’t forget this.”
Hinchey could almost feel the man beaming on the other end. He wanted to say, “I won’t let you forget it. That next state Supreme Court appointment better be mine.” Instead, he answered, “I’m glad I could be of help.”
When the judge hung up, he leaned back in his leather swivel chair and closed his eyes. So much of politics involved favors—little ones and big ones. It was a nasty reality of public life. When Whiting had shared with him his history with the Melton family, then urged him to keep that in mind as he decided whether to hold an evidentiary hearing, he did that as a favor to a friend. It hadn’t troubled him. Whiting had been persuasive in arguing that the confession had been bought with the Melton money.