Final Argument: A Legal Thriller Part 9

Chapter 10.

THE NEXT DAY, in one of the public defender's dusty storage rooms on the third floor of the courthouse, I thumbed through what was left of the Florida v. Morgan file. A memo told me that on August 22, 1986, most of the original doc.u.ments had been s.h.i.+pped over to CCR in Tallaha.s.see. At the time, the a.s.sistant PD on the case had been someone named Brian Hoad.

I asked for him, and a legal intern looked up from a volume of Shepard's Federal Citations. "Try Courtroom Four."

I entered Courtroom Four, on the second floor, and took a seat in one of the pews. It wasn't hard to pick out Brian Hoad, a pale man wearing gla.s.ses and sitting next to the defendant, a skinny black man. A young police officer was testifying on direct examination. The prosecutor was a well-built Hispanic woman in her thirties, wearing a dark-blue suit. The judge on the bench looked bored.

The young cop admitted that having been fired at by the defendant at the scene of the robbery, he didn't want to give chase. "A man who's fired a shot will stop and shoot again, and we couldn't see him."

Hoad said, "Objection-"

"Overruled."

"Your Honor-"

"Don't argue with the court," the judge commanded.

"I haven't stated the basis-"

"Next question," the judge said, stifling a yawn.

At the recess I introduced myself and asked Hoad if we might talk in the snack bar. This was a thirty-five-year-old lawyer making barely forty thousand dollars a year; many of his clients, who filed affidavits of insolvency or hards.h.i.+p and thus received free legal services, would earn more than he did. He was probably in it because he enjoyed battling authority, didn't like billing clients, distrusted cops, and believed that the state should interfere as little as possible with people's lives except to redistribute the wealth.

I paid for coffee and crullers, and we sat down in two red plastic chairs. "Is that a strong case you've got up there?" I asked.

"About as strong as this coffee," Hoad said glumly.

"Then how come you're in trial?"

"I handle over three hundred felony cases a year. I try to plea- bargain all but the best. This is a hard-a.s.sed prosecutor. She wouldn't deal. I got screwed."

Not as much as your client, I thought.

"I wanted to talk to you about an old case," I said. "You handled the appeal. Darryl Morgan-first-degree murder. The trial was back in '79, so you may not remember it."

Hoad nodded a few times. "Visible case. Shot Solomon Zide."

"I was the trial prosecutor."

"Jesus." Hoad laughed. "You?"

I frowned and said, "I'm a defense attorney now, down in Sarasota." Hoad was still looking away from me and chuckling. "What the h.e.l.l's so funny?" I asked.

"Well, it's not really funny. It's just surprising. When you introduced yourself in the courtroom it was just another name. But now I've got it. You're a kind of legend around here."

I remembered what Kenny Buckram had told me: A lot of things went on, you just said, "No, that can't be, so I won't look." I hadn't realized how much that had hurt me until now, when I found myself virtually praying that this young fellow didn't have the same opinion, even secondhand.

"Beldon Ruth asked me to prosecute Morgan," I said. "It was the last case I did before I packed it in."

"You mind if I tell you something?"

"I hope I'm not going to mind."

"I had that Morgan appeal in my caseload for a long time. I've read that trial transcript three or four times, looking for error. You did a fine job in the first stage. Hard to argue with any of it. But in the punishment part, you were lousy. You just gave up."

"I didn't want the Morgan kid to die."

"Well, that didn't help me at all. My chief point on appeal was incompetent defense counsel in the sentencing phase, and one of the judges up in Tallaha.s.see commented, off the record, 'Mr. Hoad, just between us, it may have been the other way round.' Another one told me, 'We can see clearly why the trial judge didn't accept the jury recommendation of a life sentence. A specific argument in favor of the death penalty, detailing the aggravating circ.u.mstances as per Florida Statute 921.141, was not advanced by counsel for the state.' "

I sighed. "You had the appeal from the beginning?"

He nodded. "But I didn't get over to Tallaha.s.see until '81. I had half an hour to persuade the seven dwarfs that Morgan shouldn't be strapped into an electric chair and jolted to death. Hopeless. Then we got turned down in the Eleventh Circuit. Didn't have anything to take to the feds in Atlanta, but I went anyway. It's a beautiful old court. Gives you a feeling that justice might be lurking. But it's an illusion." He peered at the dregs in his coffee cup. "One of the judges up there was sympathetic. He said, 'Counsel, if we rule your way, won't we also have to grant relief in a lot of other cases that present the same claim?' "

"You had an answer for that, I hope."

"I said, 'Yes, probably you would, Your Honor, and probably you should.' They kicked me out of there in under a hour. But that was already in '86. That's the name of the game. Keep your man alive." "Did you argue against Eglin's override of the jury recommendation? That there was a rational basis for the jury sparing Morgan and that the trial judge abused his discretion?"

"Sure. It didn't work. In 1987 a man named Beauford White was executed after the jury gave a twelve-to-zero recommendation for life. And there was an override on a guy named Dobbert in 1984, where they'd voted ten to two for life."

I didn't know what to say. But he did.

"Florida, Indiana, and Alabama are the only three states that have the post-Furman override provision. There's been one override in Indiana, about six in Alabama, and more than ninety in Florida. This is the killer state."

I told him about Jerry Lee Elroy's 1979 deal in exchange for perjury.

"And the cop, Nickerson, he set that up?"

"If Elroy's telling the truth."

Hoad seemed excited. "Will your client testify to what he told you?"

"There'd have to be something in it for him. Elroy is not your basic altruist."

He looked at his watch. "d.a.m.n, I have to get back to court and help put the judge to sleep again."

Going up in the elevator, I said, "Why did you get so involved with this case?"

"Have you ever been to Raiford, Mr. Jaffe?"

"No."

"An execution is not something you quickly forget. You know, they're having one day after tomorrow. A local boy."

"Who are they burning?"

"Sweeting. Remember him? Killed a pair of coeds at Jacksonville University eight years ago. Chopped them up, buried them down by the river, dug one up again because he had these dreams that she might still be alive and blaming him. Well, he dies on Sat.u.r.day. You should go and watch Eric Sweeting pay for his sins. Then you'll understand why I get involved."

The elevator stopped at the second floor. The woman prosecutor was waiting for us. She said to Hoad, "Can I talk to you for a minute?"

They talked, then Hoad returned, the prosecutor preceding him, heels clicking, moving briskly on strong legs into the courtroom. She carried her head high and didn't smile. She was a good-looking woman, I thought.

"Making any progress?" I asked.

"Suarez is backing off," Hoad said. "Looks like she'll cut a deal. Fifteen years for armed robbery and attempted murder, concurrent. That's not bad. I'm gonna tell my guy to go for it."

"That's Suarez? The woman you were talking to?" She was the a.s.sistant state attorney who had prosecuted Jerry Lee Elroy and let him go.

"Right."

"I'll hang out for a while," I said. "Maybe we can all have lunch together."

By noon the armed robbery case in Courtroom Four was history. The prosecutor, Muriel Suarez, and the public defender, Brian Hoad, shook hands, and both went off to lunch with me. I remembered the ritual. You laughed and didn't talk much about the case, but you gossiped a lot about other cases, other lawyers, judges. In the courtroom the lawyers had snarled and yelled at each other, because that was the protocol-the adversarial relations.h.i.+p was the basis of the system and the only way approximate justice was achieved. Justice was not the same as mathematics.

That was why no one ever wanted a truly innocent client. That was nightmare. That was something you couldn't joke about so easily.

In Worman's Deli near the federal courthouse, seated at a table in the back, Suarez munched on a pickle. She said to Hoad and me, "I heard a good one yesterday. These two lawyers-civil lawyers"- grinning, showing badly capped white teeth-"are walking along the beach, and they see this gorgeous woman in a thong. One lawyer says, 'Boy, I'd love to f.u.c.k her.' Second lawyer says, 'Yeah? Out of what?' "

In this country, it seemed to me, lawyers had taken the place of Poles as the b.u.t.t of jokes. The only difference was that we may have deserved it.

We had corned beef sandwiches for lunch, and when we were finished Hoad stood and said, "Folks, I have to fly. I've got a woman over in the jail pled guilty to possession of crack cocaine. It turned out to be wax, but the state attorney won't let her rescind her plea. I have to get over there."

"Speedily, I'd imagine," I said. "I've got the check. I'll call you about the Morgan file."

When he had gone, Muriel Suarez said, "The name Morgan rings a bell."

I brought her up to date.

"I remember the case. Floyd Nickerson told me Elroy was a creep, but a reliable creep. Gap in his tooth, right? I remember him. And Carmen Tanagra."

The way she said that last name made me wait for something more. But there was nothing. Her eyes moved away, and she reached for her mug of Michelob.

"Carmen Tanagra was the other detective on the Zide case. She have anything to do with Elroy?" I asked.

"She was Nickerson's partner. I knew her. But it was Nickerson who came to me and proposed the deal."

"Tanagra still around?"

Muriel shook her head decisively. "Got more or less kicked out. She wasn't a really smart cop. I mean, she was a good woman, but they corrupted her."

Something clicked in my memory. "Was she by any chance involved in the Bongiorno episode? The cop who got the snitch to lie? And they found out in time?"

"Right. They nailed Carmen's a.s.s to the wall. She didn't like it, so she quit."

"To do what?"

"We're not in touch," Muriel said, and there was still an edge in her voice, something I didn't understand.

Then she smiled and looked at me with more cheerful eyes. They were dark and Latin; they actually flashed, as in the old songs. Her parents were Cuban, she told me, and had brought her here as a baby. Once again I became aware of how attractive a woman she was.

"So, Mr. Jaffe, Mr. Civil Lawyer from Sarasota, what are you going to do about all this?"

"Morgan's still alive. Barely. They're going to execute him in April."

"You think you could get him a new trial?"

"I could try for a stay of execution. That's what I told Beldon."

"And what did my lord and master say?"

"You can't guess?"

" 'Morgan was guilty, he shot those people. Leave it be.' " She grinned. "You care if he lives or dies?"

"Yes, I d.a.m.n well do," I said, with a vigor that surprised me. And so I repeated it. "I care. And I'm going to do something about it."

"You losing any sleep? That's my standard. You hit the pillow and pa.s.s out, you're okay."

"Do you always. .h.i.t the pillow and pa.s.s out?"

"Not lately," Muriel said.

"What's happened lately?"

"One of my first cases as a felony prosecutor was Eric Sweeting. The name mean anything to you?"

"Brian mentioned it," I said. "They're burning him Sat.u.r.day morning down at Raiford."

"Right. Unless the governor grants clemency."

"Why are you losing sleep? Sweeting was guilty."

"And the jury recommended death by a vote of nine to three." Muriel drank some more beer. "But I'm going to be there when they pull the switch. Witness it, by G.o.d."

"Why do you want to do that?"

"Because when I did the case eight years ago, the morning before I asked the jury to bring in a verdict of death, I looked in the mirror and said, 'Muriel, this is not a statistic you read in a book. This is a human being, with a mother and father and three sisters who love him, and you're arguing in favor of his being killed. You're not only trying to kill him, you're condemning those other people to grieve for maybe the rest of their lives. If you haven't got the guts to witness that execution and the moral fiber to face his family on the day it happens, you shouldn't argue in favor of it.' So I promised myself, if it ever happened, I'd go. Well, he's exhausted his appeals quicker than most, and now it's happening. The day after tomorrow. Only an hour away from where we sit. Unfortunately, I don't have any excuse."

I said nothing. Could I do that? No. That was one of the reasons I had quit the business of putting people in barred cells.

"If you recall," Muriel Suarez went on, "it was a particularly heinous murder. So the first time I met Sweeting, I expected a monster. I gritted my teeth, walked into the jail with the public defender to meet this beast who chopped up his teenage victims. Eric was nineteen years old, weighed about a hundred and fifteen pounds, about the size of a jockey. Red hair, freckles, braces on his teeth. A polite, dumb country boy-looked like a cross between Alfred E. Neuman and a pit bull."

"r.e.t.a.r.ded?"

"The defense tried to prove that. But it wasn't so."

"How do you account for his committing such a heinous murder?"