Final Argument: A Legal Thriller Part 26

"h.e.l.l, you got werewolf tendencies and you broke a prison official's nose. Who's gonna argue with you?"

In a week's time he called me in Sarasota. He had gone down to Bradford County and poked around. Clive Crocker was willing to drop civil charges in return for payment of his medical bills, plus five thousand dollars as compensation for his physical suffering and the emotional humiliation in front of his colleagues. He would sign a waiver of prosecution, meaning he would agree not to testify. Then it was up to the state attorney's office in the county; they could still go forward if they felt they could win the case through other means, with other witnesses.

"Why would they do a s.h.i.+tty thing like that?" I asked.

"Hey, you were a prosecutor," Gary Oliver said. "You tell me why they'd do it."

"To be s.h.i.+tty."

"And that happens, as we both know. You got to risk it." He chuckled in my ear. "You know, if they nolle-pros the case, Ted, they're gonna want you to sign a waiver of liability against the sheriff's office."

"Anything else?" I asked. "Would they like me to bend over in front of the courthouse and take it up the culo at five bucks a man for the sheriff's annual picnic?"

But when I got home I closed a tax-free mutual fund, and the next day I had Ruby mail a certified check. I thought of signing it f.u.c.k you. Who reads signatures? But I scrawled my name instead.

In Sarasota County, Toba finished her deposition. She was told by the wolf spider woman's lawyer that a settlement of $75,000 would be acceptable at this early stage of the proceeding. If not, Mrs. Hart was going to court to sue for half a million.

My fork paused in midair over the pasta salad. I looked at Toba across the dinner table. "This is G.o.d's revenge on me for being a lawyer."

"What do you want to do?" Toba asked.

"I want to import some Durango scorpions for Mrs. Hart's laundry hamper and some Brazilian piranha fish for her toilet bowl."

After dinner I began packing. I told Toba that I had to make oral argument before the Supreme Court in Tallaha.s.see in six days. She looked bewildered. "I thought you'd lost that death penalty case last spring."

"I lost it then-I want to try and win it now."

"So you're flying up nearly a week ahead of time?"

"There are things I need to do. People I want to talk to. Judges I have to bribe."

"Lawyers should marry other lawyers," Toba said gloomily. "That's what they deserve."

The next day I b.u.mped into Harvey Royal in the men's room at Royal, Kelly and told him that I was leaving for the north again.

"Ted, this case has become an obsession."

"Yes," I said, "and you should try it, Harvey. Aside from a few aches and itches in unmentionable places, obsession brings out the best in a man."

In the Florida Supreme Court, a lawyer is allotted half an hour to persuade the state's seven justices that a human being shouldn't be strapped into the electric chair and burned to death.

The judges looked at me with great interest. I thought: Yes, there's hope. I can do it. They will see.

To my left on the podium was a row of small lights. During my given half hour the lights would change from green to white, to warn me when my time was nearly up. When the lights flashed red, that was the end. You had to finish your sentence and step down.

I opened oral argument by pointing out that throughout the trial twelve years ago Judge Bill Eglin had called Darryl Morgan by his first name, had even called him "boy," and in doing so had demeaned the defendant and poisoned the minds of the jury. Defense counsel at the time had not objected.

One of the younger judges raised her hand and said, "Mr. Jaffe, which tree are you barking up? If you're arguing that the trial judge was wrong in what he did, you're estopped by procedural default, because, as you pointed out, there was no objection made by defense counsel. So we won't listen to that. If you're arguing ineffective a.s.sistance of counsel, I have to remind you that we've been down this road before in Morgan. Has anything changed?"

"I pray that what's changed," I said, "is the court's willingness to be swayed by the interests of justice and mercy." Looking into the judge's ice-blue eyes, I quickly added, "In addition, there's the new factor of perjured testimony by a state witness back in 1979. You have copies of his affidavit in front of you, Your Honors. I alluded to it in my opening statement."

The chief judge adjusted his bifocals and glanced at the papers in front of him. "Counselor, I have a problem here. I'm looking at the trial record, where the state prosecutor is listed as Edward M. Jaffe. Now I'm looking at your supporting affidavit-the appeal attorney is Edward M. Jaffe. Are there two Edward M. Jaffes practicing law in the state of Florida?"

"Not that I know of, Your Honor."

"Then you were the prosecutor at the original trial?"

"Yes, I was."

"That's already sufficiently irregular for me to wonder what exactly is going on and why it's been permitted. But added to that, Mr. Jaffe, is the fact that the witness you now claim was perjuring himself at the trial ... why, he was your witness!"

"Yes, that's a fact."

The judge's eyes narrowed. He spoke into his microphone in a stage whisper. "Did you suborn perjury, Mr. Jaffe?"

He knows I didn't, I realized, but he's decided to have a little fun and games at an appeal hearing. Why not? Nothing at stake except a few decades of a dumba.s.s n.i.g.g.e.r's life.

I explained the circ.u.mstances of my meeting Jerry Lee Elroy in Sarasota, and Elroy's admission to me. While I was doing that, the light bulbs turned from green to white.

"Five minutes, Counselor," one of the junior judges said cordially. I made my final plea.

The judges retired.

In ten minutes they were back in their seats at the horseshoe-shaped bench.

The chief judge said, "We don't intend to draw this matter out and leave the appellant in suspense. This court, more than most others, understands the gravity of a death sentence. This court also understands the desperate wish to take a second bite at the apple, and stresses that it will not tolerate collateral proceedings whose only purpose is to vex, hara.s.s, or delay. We believe it is unseemly for a prosecutor to wear one hat at one trial and, even with more than twelve years having pa.s.sed, don another hat for an appeal hearing. We suspect that the Florida Bar a.s.sociation shares this opinion. It is our view that Mr. Morgan's trial was not perfect few are but neither was it fundamentally unfair. No relief is warranted."

The judge tapped his gavel on the table. The light bulbs turned red.

My deepest ambition, to argue before a supreme court and save an innocent man's life, had danced before me and slipped away. The state wanted Darryl Morgan to die.

"You've made a serious mistake," I said.

That was completely out of line. The chief judge said, "What did you say?"

"I said, Judge-because I know more about this case than you do -that you've made a serious mistake."

"Mr. Jaffe, we could hold you in contempt for that remark."

"You could indeed," I said. And I left the courtroom.

Chapter 23.

I HAD FAILED to save Darryl Morgan's life, and that plunged me into a pit of gloom that threatened to have no bottom. But life goes on. Though I was still focused on Darryl, there were other things I had to deal with.

Toba was having a hard time too. "The country's depressed," she said, "and so am I." Her office telephone rarely rang; she wasn't making money.

She set herself some new goals. To learn Spanish. To put in some serious time working for the pro-choice movement. To gain three or four pounds so that her face wouldn't look so drawn but so the weight wouldn't go to her thighs.

Cathy had a summer job as a c.o.c.ktail waitress at a seafood restaurant on the Quay. Alan was working at a garage on St. Armands Key. He went camping one weekend down on the Caloosahatchee River with some friends. When he got back he told Toba that they'd never been able to set up the tent properly and, when a heavy rain began to fall, he and another kid found a station wagon with the back gate open. They went to sleep in it. Two cops woke them at 6:00 A.M. and took them in handcuffs to the Lee County courthouse in Fort Myers, where they were arrested for trespa.s.sing.

"Like criminals? That's absurd!" Toba cried.

He would handle it himself, Alan said. Toba told me about it that evening. "If he pleads guilty, what sort of fine will they give him?"

"Couple of hundred bucks, maybe. Don't worry-the court will let him do community service. Picking up garbage in parks, scrubbing graffiti off school walls."

In order to make it easier for Alan to pay the fine for trespa.s.sing, Toba decided to pay his bill with Dorothy Buford. She called to make the arrangements.

The therapist said, "Alan's not been my patient for the last three weeks."

"Oh? May I ask why you let him go?"

"He left. It was his decision that he didn't need more therapy."

Toba sat on this knowledge for a full week. One evening, staring at the September sunset with a vodka tonic in her hand, she took an uncertain step in the wrong direction and fell into the pool. She came up for air, gasping, with the highball gla.s.s and the wedge of lime and the ice cubes floating on the surface of the water. She went upstairs and changed out of her wet clothes into dry sweats.

Then she called Dorothy Buford. "Do you have an opening? May I sort of take my son's place? I have some problems, but I can't put my finger on them. I've been drinking too much. This evening I fell into our swimming pool, fully dressed."

When I came home from the office, she told me what had happened. I began to pace the room, cracking my knuckles.

"You're not making this up?" I said.

"Why are you so upset? I didn't get hurt."

"Years ago, do you remember I told you about a woman, a witness in a case up in Jacksonville, who fell into her pool fully dressed?"

"Vaguely."

"I pulled her out."

"So?"

"It just seemed strange for it to happen again."

"You didn't pull me out," Toba said, puzzled. "And I'm not a witness. I'm your wife. I was s.h.i.+tfaced. That's why I fell in."

She told me then what she had learned about Alan.

I didn't want to ambush him. I left him a note: "Kiddo, I'll be waking you before I go to the office. I want to talk to you about your leaving therapy."

When I came downstairs at six-thirty in the morning, Alan was already pouring milk into his granola. He said sadly, "Well, I f.u.c.ked up again."

"That's a way of putting it." I put a kettle of water on to boil. Tea promised to be more calming than coffee.

"This is what happened," Alan said. He wasn't getting anywhere with Dorothy Buford, and so for the last three weeks he'd taken the money that I'd contributed toward the therapy fee and spent it on marijuana.

"And the story I told you about what happened down on the Caloosahatchee, that's bulls.h.i.+t. We were in a car parked by the river. The cops rousted us about one o'clock in the morning because they were suspicious. They got us on possession. Two ounces, minus what we'd already smoked."

"How'd you like jail?"

"Not much."

And one more thing, he said. He'd told us he'd pa.s.sed the courses in physics and American history, but that wasn't true. No diploma was coming in the mail.

"Dad, I was thinking of going to San Francisco. My friend Bobby Woolford is out there now. He's got his own apartment, and a job, and I can stay with him. Don't worry, he's off drugs. Frisco's a place I always wanted to go to."

"If you go there," I said, "be sure you don't call it Frisco. San Franciscans will throw rocks at you."

Into the teapot I measured out what I considered to be the proper mixture of Irish Breakfast and Earl Grey. I poured boiling water into the pot, and the fragrant heat of another continent rose to my nostrils. I wished I were there, sitting on a straw mat, absorbing enlightenment.

I gathered my family together that evening in the living room and told them that I had a proposition to make to Alan. I wanted their input as well as his.

I turned to him and said, "I want to thank you for your honesty. I understand now why you're depressed, and even why you've contemplated suicide. You'd have to have b.a.l.l.s of iron and a heart of steel not to be depressed by your life. Because anyone who keeps making the same mistake over and over again has to know he's on a treadmill like a laboratory rat."

Alan lowered his head.

"I made some calls today," I said. "I wound up talking to a woman lawyer in Jacksonville whose kid brother was a c.o.ke addict. He went into a state-sponsored residential drug program in upstate New York. I spoke to the head of the program, and he said he'd make an opening for you now. He'd want you to come to Manhattan within a week for an interview, and I'd have to go with you."

"Dad, I told you I wanted to go to San Francisco."

"Yes, you did, and so I also spoke to the a.s.sistant state attorney down in Fort Myers. They know about the other bust, on Siesta Beach-they could hit you with thirty days jail therapy now. If you go to San Francis...o...b..fore all that's settled, it makes you a fugitive. But if you go into the New York drug program, the State of Florida will drop the charge."

We argued for more than an hour. Finally I called a halt. "Alan, I need to know by the end of the week. And the last time we talked, I made something clear to you-I'm not backing down on it. You can't stay in this house any longer. Go into the program or get out of here."

On Thursday morning, unshaven, Alan was waiting for me again at the breakfast table.

"All right," he said quietly.

When you've won, when the other party's agreed to your terms, don't gloat or encourage more debate. Walk away. I made the necessary telephone calls.

On Friday we flew to New York.

We stayed in a hotel facing Central Park. Gla.s.s-and-steel office buildings soared into the sky, and homeless men sprawled in their shadows. On Fifth Avenue black men sold fake Rolex watches. Other men clutched at our arms and begged. Beautiful women, white and black, hurried by, heels clicking.

"You like New York, Dad?"

"Yes, but I doubt that I could explain why."

"It's a scary city."

The planet is scary, I wanted to tell him.