Final Argument: A Legal Thriller Part 3

"So the jury will convict."

"You can bet the family jewels on it. But not on part two."

In Florida a murder trial was divided in two parts. In the first part the jury heard evidence, then voted as to guilt or innocence. If the verdict was Guilty, in part two of the proceedings the same jury voted on a recommendation for sentencing. The final decision was up to the judge.

"Let me tell you what I'm feeling," I said. "Until '72 you did all the death penalty cases. That suited me fine. I've never done one, and this doesn't strike me as the time to start."

"So you'd want someone defending Morgan who'll give you a decent battle when it comes to sentencing."

"If I had the case, yes."

"You're asking me is Oliver capable of doing that, the answer is f.u.c.k no."

I hadn't asked him a d.a.m.n thing. "Well, there's my answer too." "It won't come to that, Ted. Take the case. Handle the media people. Cut a deal up front with Oliver."

"Why can't Settels do that?"

Beldon studied me for a few moments. "Is there some other reason you don't want to prosecute?"

"No," I said hurriedly, fiddling with the lock on my briefcase. I looked up. "If I cut a deal, you'll approve it?"

"Hey, white boy, you think I want blood? A twenty-year-old dumba.s.s black boy's blood? We got a white cop who got trigger- happy, and some unhappy black folks out there all over the county and the state. I don't want a riot. I don't even want a trial. I want it smooth, Ted. That's your specialty. Do it as a personal favor to your old Uncle Beldon."

He had me where he wanted me, and I nodded. "For you," I said, puckering my lips.

"Bless your little cotton socks," he said. He threw me a kiss and handed me the case file.

When the grandfather clock in my office chimed the morning hour of seven, I settled behind my state-issue metal desk and read the rap sheet on Darryl Morgan, who for a month prior to the murder had been an a.s.sistant handyman on the Zide estate. (Mowing that stadium-size lawn was a day's work for a man on a Toro, and it was done twice a week.) He was the third of five illegitimate children born to Marguerite Little, who cleaned white people's homes in Jacksonville Beach. His biological father was unknown. Marguerite's common-law husband, A.J. Morgan, was a groundskeeper at the Palmetto Country Club and a part-time Baptist preacher, who had been heard to cry, "I'm here to do G.o.d's work, whatever the h.e.l.l it is."

Marguerite's other living children were Dwight, a heroin addict who had left home at seventeen and was doing time in Illinois for armed robbery; and Gull, twenty-two, illiterate, churchgoing, narcoleptic, the mother of four children by various fathers. After two abortions, she had been sterilized by a local midwife. Gull made a living as a prost.i.tute, charging ten dollars, singing Christian hymns, and sometimes falling asleep while she worked. The family lived in a four-room wooden shack on the edge of a rat-infested palm grove west of San Pablo Road, half a dozen miles from the beach. No cooling Atlantic breezes reached that grove.

Since his fourteenth birthday Darryl Morgan hadn't known two straight years of freedom. Banished to reform school for breaking school windows and hoisting a tape deck from a parked car, he had then done time on a penal farm for jackrolling drunks and in Clay County Jail for grabbing money from a Burger King cash register. Finally he had been sentenced to a branch of FSP for burglarizing an auto parts warehouse. He was eighteen then. He did nineteen months on that seven-year bit, then was released, because in the crowded Florida prisons a man usually served less than a fifth of his sentence.

Gary Oliver, his knight in the lists, arrived at my office at 8:00 A.M.

I poured coffee from the Silex into two chipped mugs. We both took it black without sugar, a coincidence that seemed to please Oliver, for he beamed and made comment. Lifting a pack of Winston Lights from the pocket of his suit, he offered one to me. I shook my head.

"You a nonsmoker, Mr. Jaffe?"

"No, sir, I'm an addict who quit." I didn't mention that I still puffed at the occasional Havana smuggled in by friends flying back from London or Mexico City.

Oliver clucked his tongue. "That tells me you're a man of character.

"At times, yes."

There it was, the raw truth. I was proud of myself. I could have accepted Oliver's compliment without comment and probably gotten away with it.

My portly visitor got right to the point; he said to me, "Mr. Jaffe, I'm from Georgia. Why are you people in Florida so in love with killing black folks?"

He may have been my adversary, but he deserved a straightforward answer.

I told him that all over the country people were fed up with the way the prisons let men loose before they'd served their full term of punishment. These men went back into the community, took drugs, and did the crimes all over again. And most of these men were black. Down here in Florida, retired white folks were fleeing not just the wind-chill factor but the specter of drug-crazed primitive Afro- American men invading their old neighborhoods. They wanted safety in the sun. Get rid of the sc.u.m ... especially the black sc.u.m.

Kill them.

Oliver seemed shocked that I would lay things out so bluntly. He would have been happier, I thought, as a country lawyer in some small Georgia town.

"You believe in the death penalty, Mr. Jaffe?" This was not a challenge; he was more probing than Beldon had implied.

"What I believe," I said, "is beside the point. I believe in upholding my oath as a state attorney, and that requires me to apply the appropriate law. However"-I eased up-"I have some leeway. If you convince your client to plead out to first-degree murder, the State of Florida will accept a life sentence."

"With a mandatory twenty-five years?"

"That's the law. You know that."

But maybe that wasn't true. I was constantly dismayed at how many things lawyers didn't know, how ill-prepared they arrived for trial. What did you call the man or woman who graduated last in the cla.s.s at medical school? Doctor. The same held true for lawyers.

Oliver's large moist eyes narrowed. "I'll put it to him," he promised.

The following week, on a warm February morning, he returned to my office. Settling into a chair, he wiped his forehead with a damp handkerchief.

"This Morgan boy's crazy as an outhouse rat. Wants to take it to a jury. Claims he's innocent."

"I'm sure he does. But you've seen the evidence."

"Evidence don't mean a d.a.m.n when you're young and full of p.i.s.s and vinegar."

"You know a jury will find him guilty, Mr. Oliver. There are two eyewitnesses and two separate confessions. He's got a prior criminal record that includes violence. Morgan's black and the murdered man was white. That alone could kill him. I'm giving him a good deal. I'm giving him air to breathe."

Oliver sighed. "He says black folks will see he didn't do it."

"No," I said sharply. "Black or white won't matter. And you can't tell a Baptist juror that your client reads a chapter of the Bible every day. When she sees what Morgan and Smith did to Mrs. Zide's face, she'll get mean. Your responsibility, sir, in a case like this, where the evidence is strong, is to keep your client alive."

Oliver said, "I don't think this particular client has both oars in the water."

I s.h.i.+fted position, swiveling to look at the river. I wished I were out there sailing-it was difficult to kill anyone at the helm of a sailboat.

Turning back, I said, "Tell him this. If he goes to trial and he's found guilty, I'll do my best to put him in a coffin. He panicked that night at the Zides'-I can grasp that. But he had a weapon in his hand. He was prepared to use it, and he used it. A jury could reach up and bite off his big black d.i.c.k. Tell him that'll hurt."

Oliver looked glum. "You think that boy's quiet and repentant," he said. "I'm here to tell you he's got a mouth on hinges. He'd argue with a signpost, he doesn't know 'Sic 'em' from 'Come here.' He says to me, 'f.u.c.k you, and f.u.c.k this Ted Jaffe. Whup his Jew-boy a.s.s.' "

Oliver wasn't bargaining; he was turning me down. No smooth road.

Still I didn't quite believe it was going to happen. I waited a week. It had to be that Darryl Morgan's nerve would break first, and he would cop out and take the offer of life.

I called Gary Oliver at his run-down office over on Poinciana Boulevard.

"Has he changed his mind yet?"

"No, he wants a trial."

"I don't believe this."

"Believe it, sir."

That was how I was trapped into going to trial in a capital murder case-my last case as a prosecutor in Jacksonville. I wondered if Beldon had known all along that it was going to happen, but it took me twelve years before I gathered up enough anger to ask.

Chapter 4.

"RUBY," I YELLED, flying by her desk on the way out. "I'm going to the beach."

"Are you serious?"

But she knew I wasn't. In Sarasota, at the time when Jerry Lee Elroy called me from the jail, I was working on four cases. All seemed headed for trial unless the parties could agree to settle out of court.

In one, a Longboat Key real estate developer was suing a contractor for major construction errors and failure to deliver on time. In another, a pro football player with the Tampa Bay team had become involved in a dispute with a local transvest.i.te hooker-"Man, she was wearing a bikini, she had t.i.ts, and down in the crotch you couldn't see any bulge at all!"-and he had cut her up so badly she required forty-five st.i.tches. In the third case, after a local savings and loan had been taken over by the government, its former CEO was being sued in a cla.s.s action for fifty million dollars. The last case involved alleged price-fixing by Manatee County milk distributors.

I drove across the causeway for lunch at the Colony Beach & Tennis Club with Harvey Royal, senior partner of our firm, and our client, the condo developer who was suing the contractor. A few yards from the Gulf, while a fresh sea breeze rustled the palm fronds, we discussed trial strategy and a list of witnesses to subpoena. The food was gourmet, the air unpolluted. I lived five minutes away. This was definitely the good life, recession or not.

When the client left, Harvey and I spent another half hour over coffee, continuing to develop a theory of defense in the S &c L case. We discussed nonperforming commercial loans, quid pro quo transactions, FDIC pleadings, the appearance of growth at the expense of long-term health.

Harvey called for the check. "Any new business coming in?"

"Two-bit stuff."

"We can't afford two-bit stuff these days, Ted."

"Keeps me off the streets," I said.

Harvey offered a watery smile.

I drove back across the causeway that spanned the calm blue waters of Sarasota Bay, thinking about Jerry Lee Elroy.

A state's witness had lied. Common enough. We lawyers lived in a jungle of lies. I couldn't recall any case that had gone to trial in which some surprise revelation hadn't popped because of a d.a.m.ning fact that a client had overlooked, or conveniently misremembered, or lied about. But this was different. Elroy, my witness, had lied because he'd made a deal with a cop, Floyd Nickerson.

I finally remembered the name.. ..

Darryl Morgan had confessed to Nickerson, who had sh.o.r.ed up his position by suborning false testimony from a jailhouse snitch. If that had come to light during the proceedings, Nickerson would have been booted out of the sheriff's office and Elroy would have been charged with a felony. There would have been a retrial.

Dumb, because the case was good enough already. In fact, airtight. So why had Nickerson done that?

I had no satisfactory answer.

For the last dozen years I had banished from my conscious mind the murder of Solomon Zide and the memory of Darryl Morgan. My unconscious mind was a different story. I had had nightmares. Those nightmares were of a man's head bursting into flames. But they never visited me more than twice a year, and I had learned to live with them.

At three o'clock I appeared once again at the Sarasota County Jail. With Jerry Lee Elroy, I stood before the judge who had drawn bond duty. Elroy handed me a certified check drawn on a Miami bank, and I pa.s.sed it along to the bondsman.

By 4:00 P.M. my new client was a free man. While I waited by the wire cage, he collected his red nylon windbreaker, gold wedding ring, asthma inhaler, money, and Miami Dolphins key ring. He wore a baseball cap that said d.a.m.n FLORIDA SEAGULLS and had fake bird droppings all over the top.

"Lookit here." Elroy waved a bulging wallet made of alligator hide. "They never give it back to you in the same currency. I had three hunnerd-dollar bills and three twennies-now I got enough fives and ones you can stuff a turkey. Suppose some guy with AIDS had all this shoved up his a.s.shole? You mind waiting while I try and get my hunnerds back?"

"Yes. Let's get the f.u.c.k out of here," I said. I grabbed his arm, more roughly than I'd intended. But he got the point. That was a language he understood.

In my office, seated in a Florentine green leather chair and looking out at the bay through the tinted plate gla.s.s, Elroy was more subdued. He was impressed by the opulence. (And so he should be; it had cost more to furnish that office than most men make in a year.) It promised staying power and clout, which were usually more desirable than justice. Except that now a fly had managed to sneak into the office, buzzing not around Elroy, who stank, but around me.

I leaned forward across the expanse of polished desk and said, "What you told me before about what happened up in Jacksonville. I can chew it, Elroy, but I can't swallow it. You follow?"

The d.a.m.ned fly landed on my nose. I brushed it away.

"Hey, it was a long time ago," Elroy said. "Maybe nine, ten years."

"Nearly twelve. And the first thing I want to know is, back then, did you think I knew}"

Elroy just shrugged.

The fly was back, droning around my left ear. This was not adding to my dignity. "Listen to me carefully," I said. "I would never have let you testify in the Zide case if I'd known you were lying."

Elroy said, "Oh, sure. Well, I mean, how'm I supposed to know who knew what? I only knew what the cop and the other lawyer told me." He was watching the fly. "I'm talking about that state chick who was out to get me on the battery charge."

"She and Floyd Nickerson came to you and made the proposition?"

"Who? Oh, yeah, right, the cop. I told you, he talked to me on the roof and asked me to do him this favor. Then later the state chick says, 'Okay, we're waiving the bail bond, we'll cut you loose on your own ...' What's it called?"

"Your own recognizance."

"Right. On my own ... on that. 'All you gotta do is show up in this other court, repeat what you told this detective. If not, your nuts'll wind up in a sling.' "

"You ever talk to Morgan about the shooting?"

"The f.u.c.k is Morgan?"

I kept my tone even. "Darryl Morgan was the man in your cell, the one you swore confessed in your presence that he'd murdered Solomon Zide."

Elroy smiled shrewdly. "Yeah, he talked to me. Four guys in a cell, hard not to talk to the next guy. And these other two, they was real swamp rats from over in Columbia County. Morgan was a tree n.i.g.g.e.r, know what I'm saying? He goes, Ts in here for a bad reason, 'cause I don't kill no one and they says I do. I's in deep s.h.i.+t.' And I go, 'Hey, man, tell me about it.' So he did-like he thought I really meant tell me about it. So he does it. He told me."

"What exactly did he tell you?"

"Like how he and his dumb-a.s.sed pal tried to rob this fancy house, and they make a real mess of it. Someone comes running after them, so they run away. I go, 'Hey, dude, you're up for first-degree murder, that story ain't worth a milk bucket under a bull. You gotta turn it into: they try to shoot you, you shoot back-like it's self-defense, see?' He goes, 'I never had no gun. That don't be true.' "

Elroy stopped, rose from the leather chair, took a manila folder from a pile, and swatted the fly against the lemon-smelling teak surface of my desk. With one blackened thumbnail he flicked it to the carpet. He smiled thinly, then sat down again.

"Counselor, I ain't learning nothing when I'm doing all the talking. When are we gonna discuss my case?"