Final Argument: A Legal Thriller Part 30

They shook hands, then drew back and measured each other for a while. They looked more like brothers than father and son. Darryl, even though he had gray in his bushy hair, was a man of only thirty- three. To me that was young. He was huge and powerful, and even if Tahaun didn't grow that tall, he would look like his father one day.

"You play any ball in here?" Tahaun asked.

"h.e.l.l, no."

"What do you do?"

Darryl thought for a while. There was a great deal, I realized, that he could have said. He could have told this boy stories that would raise the hair on the back of his sixteen-year-old neck. He could have mesmerized him with tales of brutality and death and absurdity and hustle in the joint and on the row. He could have told him how in the chill early mornings they rattled the spoons against the bars until the lights dimmed and they lost another brother to Big Wooden Mama.

"I'll show you what I do," he said. Leaning forward a bit, in one smooth motion from his back pocket he slipped out a deck of worn playing cards-one of the decks I'd given him-and a few skinny rubber bands that looked as if they were ready to fray and snap.

He entertained Pauline and his son and me for half an hour. His bony brown fingers seemed swifter than rips of lightning; I never saw what they did. The moons of his fingernails flashed under the fluorescence that beamed down from the ceiling. Pauline squealed with pleasure. Tahaun just stared.

With Darryl there were no jerky motions, no hand wagging. His misdirection and timing were as elegant as I'd seen. The hand, of course, isn't really quicker than the eye, but it's more clever. And the tongue is the hand's partner. Darryl didn't say, Pick a card. He looked at Tahaun and gravely intoned, "You're my son, so we got an affinity. I can read your mind, just like your mama can. I can see in your naked eye that you doubts me, so I'm going to prove it to you." And then, without touching the deck, Darryl ordered Tahaun to bury a chosen card and fan out the pack. "I wants you to keep your eye on my hands and this deck of cards, and don't let your mind wander. Concentrate! Think of that card! Think hard, boy!" And he guided Pauline's finger until it quivered over what turned out to be the king of hearts.

"That's it," Darryl cried, seemingly flabbergasted. "Pauline knows!"

"That is it," Tahaun said, and he was flabbergasted.

"Do it again," he told his father.

"Can't. I got to rest. The strain on my old brain is too much."

A few minutes later the boy and his mother left; Gary Oliver was returning to pick them up. Darryl and I went to work on what we wanted to happen in Judge Fleming's courtroom.

When I was gathering up my papers and about to go, he said, "What you think of my boy?"

"Good kid. Determined. What do you think?"

"Don't know what to think." He seemed mystified, as Tahaun had been at the sleight of hand. "He say to me, he don't like people to laugh at other people. Seem like a nice boy. But I tell you something you not going to believe. I knowed from jump street I'd run into him one day. Used to know that, I mean. Once I got locked up and they got fixing to kill me, seemed like I'd never see him-sure didn't think I'd run into him here. But I did. f.u.c.k, man, I did." He thought for a long time, brows knitted together, and then put his hard hand on my shoulder. That was the hand that had nearly strangled me to death last spring before the guards had stopped him. His fingers squeezed into my trapezius muscle.

"They come see me again?" he asked.

"You want that?"

"Sure I wants it."

"I'll try to arrange it."

Chapter 26.

IN THE YELLOW glare of the overhead bank of lights, Judge Horace Fleming's bald skull shone like a nearly full moon reflected in flesh- colored mud. His huge courtroom had a twenty-foot-high ceiling; it reminded me of the courtrooms you see in doc.u.mentaries of n.a.z.i Germany. The pale walls weren't particularly clean. The witness stand was a boxy desk far from the lawyer's lectern. The judge's oak bench swept in a magisterial arc halfway across the room. Such a courtroom was designed to invoke the terrifying potency of the law: to remind us, as if we needed to be reminded, that the law can change lives, that the law has the power of life and death.

This was the same courtroom where Darryl Morgan's trial had taken place and where Judge Bill Eglin had overridden the jury and p.r.o.nounced his sentence.

Here now-half-gla.s.ses perched on the end of his bulbous nose, the whites of his dark eyes threaded with b.l.o.o.d.y little veins-Horace Fleming reigned, in his fas.h.i.+on. He drank cup after cup of strong coffee and sometimes during the examination of a witness would beckon to his court clerk to bring him the fruit bowl that she kept on her desk. In it was a cornucopia of fruits, which always included a couple of gleaming Was.h.i.+ngton State Red Delicious apples for Muriel Suarez. (There was no honeydew melon for me, but I didn't take that as a slur.) The judge himself, no doubt in deference to the state of his dentistry, ate only soft pears and bananas.

A moment came during our hearing when he halted a cross-examination, turned to the crowded courtroom, and dangled a banana peel at arm's length. "Ladies and gentlemen, behold-the perfect fruit!" He then waggled a finger at the court reporter and said, "I want that on the record. I want the world to know."

Then he indicated to the lawyer and the witness that they could proceed.

The judge was almost always cordial, and if you argued or contradicted him he didn't chop off your head or banish you from the realm. He simply ignored you. He went on his merry way, customary procedures be d.a.m.ned. It was all personal, all dictated by mood. The rules of evidence? You could throw them out the door. As Kenny Buckram had said, it was always interesting. Certainly challenging. But it was, also, often dangerous. Because when you got through chuckling, you realized there was a man in that courtroom whose life was on the line.

There was no jury. This wasn't a trial, merely a hearing to determine whether or not there should be any change in Darryl Morgan's status. The judge, after hearing the evidence, could dismiss or grant my motion for a new trial; he could commute the death sentence to life; and in extraordinary circ.u.mstances he could even send Darryl home, if such a place existed.

It was an open court, and the press had learned what was going on. A former prosecutor under threat of sanction by the Bar a.s.sociation was attempting to plead on behalf of a black man he'd sent to death row. It was Horace Fleming's last case before Beldon took over his judicial appointment. Zide was a name to be reckoned with in Florida; the murder was remembered. It was rumored that the widow as well as the heir were going to perform on behalf of the state and do their best to enlighten Judge Fleming as to what had happened out at the beach on that terrible night in 1978.

The Star and the National Enquirer decided to give the hearing full coverage. The recession and the famine in Africa and the demise of the Soviet Union weren't hot news anymore. A black man on trial was hardly a rarity, but for precisely that reason this case suddenly captured people's attention. Then the New York Times and even the Wall Street Journal sent reporters down.

On Monday morning the courtroom was full.

Muriel Suarez and John Whatley-the young a.s.sistant state attorney who'd been there when Fleming ruled against us in the matter of the affidavit from a dead witness-carried the banner for the State of Florida, but you could feel Beldon's presence as the eminence grise. In fact, on opening day in early January, in his navy blazer with nautical gold b.u.t.tons, he was outside the courthouse to talk to the reporters and the TV cameras.

"Do you feel it's appropriate," Time's stringer asked him, "for your former chief a.s.sistant state attorney to be representing the man he sent to the electric chair?"

"We're about to make our feelings known on that matter," Beldon said cordially, sucking his unlit pipe and looking like a college professor about to become emeritus. "And then it'll be up to the judge to decide."

As soon as Fleming rapped his gavel and asked if the state was ready, and then if the defense was ready, and I replied, "Yes, Your Honor," young John Whatley sprang to his feet.

"If it please the court, the State of Florida moves to disqualify Edward Jaffe as counsel for the defense in the matter of Florida v. Morgan."

"Why?" Fleming demanded.

Whatley gave all the reasons, and it was clear to me he'd been coached by the master. He was no longer the long-winded boy who had argued the previous April against the inclusion of Elroy's affidavit. He was personable and deeply confident, a young man being groomed for higher things. His gray suit was perfect for the role: it didn't hang too well on the neck, and the dark-blue tie over the white s.h.i.+rt had a skinny knot that was slightly askew. Juries would love him. A great many judges would give him leeway.

Fleming peered at me over his tortoisesh.e.l.l gla.s.ses. "Mr. Jaffe, what say you?"

I said, "Your Honor, I could answer in kind, and quote cases and precedents and high-minded concepts like impropriety and alleged confidentiality, but I think this argument boils down to answering just two questions. The first question is: Shouldn't a defendant in a case as serious as this-in any case, for that matter-have the right to be represented by the lawyer of his choice? And the second one is: In the interests of truth, shouldn't that lawyer be permitted to bring to bear all the facts at his disposal, provided he didn't come by those facts illegally? What is the state afraid of? That I know things I shouldn't know? Is that possible in a court of law? Is there anything that shouldn't be known? Doesn't full knowledge lead to an approximation of justice?"

I might have gone on, but the judge was frowning and waving his hand back and forth at me in an admonitory gesture; so I shut up.

"You're wasting your breath, Mr. Jaffe," he said.

Now it was my turn to frown.

Judge Fleming said, "I don't mind people thinking I'm senile and stupid, but I don't want to give them any proof. If any of you lawyers think we've come this far just to turn tail and go fis.h.i.+ng, you're in the wrong courtroom. State of Florida, call your first witness."

Whatley started to open his mouth again, but Muriel Suarez yanked him by the sleeve of his jacket and stood up at the counsel table in the well of the courtroom. In contrast to her colleague, who was dressed in what might well have been a mail order suit, she wore a black wool nipped-at-the-waist Italian-looking creation and filigreed gold eyegla.s.ses. Other than lipstick she used no makeup today, so that she looked like a scholarly courtesan. Even Fleming couldn't keep his eyes off her. A couple of television reporters were in the courtroom, and their cameramen jostled to position themselves and their minicams on the other side of the gla.s.s-paneled courtroom door.

"Permission to approach the bench, Your Honor," Muriel said.

"Come right up." The judge crooked a gnarled finger to beckon. He couldn't refuse. And a closer look at Muriel probably didn't seem like a bad idea.

Up there we could only whisper. I leaned across the oak bench, with Gary Oliver at my side and chewing on the end of a pencil just as he had done thirteen years before. Muriel leaned from another angle, backed up by an eager John Whatley. The judge bent forward with an audible creak, turning up his hearing aid.

This was all off the record. Here at the bench, sometimes, trials were won or lost. And here, now, Muriel Suarez on behalf of the State of Florida played her hole card. It had been there all along to be played whenever she felt she needed it. Of course it had been provided to her by Beldon Ruth, who in turn had had it provided to him by the governor of Florida, who needed Beldon's support in the always restless black community of Jacksonville.

"Your Honor," Muriel said, "we hope you won't take this the wrong way and think we were playing games. We weren't. And we aren't." She spoke softly and almost seductively. "The state is now willing to join the defense in a motion to commute the sentence of Darryl Morgan from death by electrocution to life imprisonment."

"Well, well, well," said the judge.

He seemed surprised and not at all annoyed. Close to death, he probably didn't fear it, but he knew that at seventy-nine he had a somewhat different point of view than a man of thirty-three. He turned to me, beaming. "What say you, Mr. Jaffe?"

I was surprised too. I was more than surprised. I cleared my throat and told him that I'd have to consult with my client.

"How long will that take?" the judge asked, a little puzzled by what he took to be my coolness.

"I don't know, Your Honor. Maybe half an hour. Maybe a lot longer."

"But no longer than that?"

I wasn't quite sure what he meant, but I said, "No, sir."

"Mr. Jaffe, this isn't what I'd call a complicated decision. You get my point? But we'll recess until ten o'clock tomorrow morning. That should give your client plenty of time for making up his mind whether he wants to live or die." And for me to pack a lunch in the cooler and go fis.h.i.+ng, his eyes said.

I hurried back to the counsel table. "Don't talk to anyone," I instructed Darryl. Two burly deputy sheriffs cuffed him and began to shove him toward the back door of the courtroom. "I'll be at the jail in ten minutes."

I had to elbow my way past the gang of reporters; they knew what the state had done. They could smell it, or they had been tipped by the court reporter who had been up there at the bench with us. "No comment!" I yelled, rus.h.i.+ng past the wildly swinging boom mikes. Then I thundered down the staircase and out a side door that led to the Duval County Jail.

The press followed me into the street. High heels clicked and Reeboks scuffed on hot pavement.

"Did you tell Darryl? Will he accept?"

"Do you view this as a victory?"

"Why do you think the state caved in, Ted?"

"No comment," I said. You always feel a bit of an a.s.s when you say that. But you have to. It's part of the game.

The jail was only a block from the courthouse, and I was there in less than the promised ten minutes. I turned to the media gang, all of us sweating in the midday heat. "Give me a break, guys. It's Morgan's decision, not mine."

And Darryl knew all about it by the time I reached him in the air- conditioned room given over to visits by lawyers. The deputy sheriffs couldn't resist; they had told all. Darryl kept clenching and unclenching his fists, and now and then he beat with them against his ma.s.sive thighs.

"You can live," I said. "That's what it comes down to."

He looked at me with hard eyes. "How much time I got to do that way?"

"Another twelve years before you're eligible for parole. There's no guarantee you'll get parole. Most convicted murderers don't, I have to tell you that. But you'll live"

"I ain't afraid of death," he said.

"I know that."

"But I don't want to die like Sweeting done."

"I understand. Listen, Darryl, if you take this deal, if they give you life, you get off the row. That's what you have to focus on. They put you into population. You work at a job, you walk around the yard, you talk to people. You have visitors and you do things. You take your cards and your magic with you. You can do those tricks for the other men. You hear what I'm saying?"

"I don't know where to look," Darryl said.

I didn't understand what he meant, but I didn't say anything.

"I take life," Darryl said, "this hearing, it's over, right?"

"That's right. I'll make a motion for a retrial, but I probably won't get it."

"How we doing?"

"In court so far? We haven't done anything yet. And we're a little short of time now."

"How it turn out if we keep going?"

"I don't know," I admitted.

"You ain't smart enough to figure that out?"

"No."

"You want me to take the deal, right?"

"If I tell you to turn it down, and we lose this appeal, and they electrocute you, I can't live with that, Darryl."

He put his hand on my shoulder again. "You got to think about what I can live with, Mr. Lawyer. What you can live with don't matter, 'cause you out there, a free man. Hear what I'm saying?"

I didn't know Darryl or understand his mind. He might have come from Mars or New Guinea for all that I was able to get into his thought processes and heart. He had always been one-dimensional for me, as I probably had been for him. I saw that now, and it made me ashamed. So I just nodded.

He began to pace the little room. Then he stopped and said, "Tahaun, he came back again with Pauline. You know that?"

"I heard."

Gary Oliver had told me about it. They had all driven down to Raiford the day before the hearing began. Once again Gary had taken Pauline's daughters for a strawberry milk shake in the town of Starke.

"I talk to that kid alone for a time," Darryl said. "I ask Pauline to step outside. She a real good woman. She do it for me."

"How did the visit go?" I asked.

"Real good." Darryl sounded surprised. "You know, he's my son." He said that to me as if I hadn't known, and almost as if he too had only recently figured it out.

"I know that."

"Nice boy. But he got problems."

"I have a son too. They all have problems."