A Cure for Night (11 page)

17

T
O MY
surprise, I'd come to share Shawne Flynt's optimism regarding the case against him in the weeks since he'd first become my client. I'd assumed there'd be something—an informant, a flipped defendant, an undercover cop who'd made a buy—that would directly tie Flynt to the drug dealing on the corner of Grand and Putnam. But as I'd studied the so-called evidence that had been gathered by the police, all I saw was proof that
somebody
had been dealing drugs on that corner, with nothing linking my client to the dealing other than his physical proximity.

Perhaps the cops had hoped they could flip up the food chain the dealer they'd caught red-handed, or maybe they'd been content to make arrests they knew full well wouldn't ultimately stick, wanting to send a message that they were taking back the street and directing the business elsewhere. Or maybe they just hadn't made their arrest numbers for the month, were padding their stats by bringing in everybody they could find. Whatever the reason, this was a bullshit case, and I doubted any self-respecting DA would proceed with it.

None of which was to say that I thought Shawne Flynt was innocent. I had absolutely no doubt that he was a drug dealer, and that he was captain of the crew that had been swept up in Clinton Hill. But not being innocent didn't make him legally guilty.

I'd scheduled a four o'clock meeting with Shawne in my office, to which he arrived almost half an hour late. He didn't apologize, or even mention his tardiness. I told him that unless something changed I didn't see how the prosecution could go forward with the case against him.

"I done told you that back in the day," Shawne said. "This ain't
no thing."

"I don't think the DA will even want to present this to the grand jury," I said.
"If they toss it themselves it's on the police department for not making a good
collar. If they present it and can't get an indictment then it counts as a loss,
as far as the DA's office is concerned."

"Ain't even nothin' to drop," Shawne said. "They never caught me
doing shit."

I was well past the point of expecting to be thanked on those rare occasions when I delivered good news to a client, but I was nevertheless surprised by Shawne's complete lack of worry. Even a bullshit charge was enough to make people nervous; if anything, this was even more true in the case of actual criminals, who generally believed the police wouldn't hesitate to manufacture evidence that would put them away. But I'd never detected even a moment of concern from Shawne.

"So how you getting along with Strawberry?" Shawne asked.

It took me a moment to understand the question. Grand Avenue was a fairly long way from Glenwood Gardens, and Lorenzo struck me as too small-time to have a reputation outside of his home turf. Either I had underestimated him, or else I'd underestimated the extent to which Brooklyn's drug dealers from different neighborhoods kept track of one another.

"You know Strawberry?" I said, stalling.

"He tell you he capped Devin Wallace?"

"You know I can't talk about what my clients tell me," I said, trying to keep my voice light.

"It was me that was where Strawberry's at, I'd be thinking how I
might be better off doing twenty-five upstate than going back out on the
street."

"What are you saying, Shawne?" I asked, my heart starting to pound a little. The threat seemed clear enough; what I didn't understand was where it was coming from.

"I'm just saying, yo, way I hear it, Strawberry ain't even got
hisself a crew. He want to take out Devin by ghosting up on the G's back, that
shit ain't gonna fly more than once. Strawberry ain't gonna get no second try,
you feel me?"

"Are you threatening Lorenzo Tate?" I asked.

"Naw, man," Shawne said, leaning back and barking out a laugh.
"What I be doing that for? That shit ain't got nothing to do with me."

"But you're saying it might not be safe for him out in the world
if he gets acquitted?"

"The streets take care of their own," Shawne said. "That's all I'm
saying. You ain't need me to tell you that."

While Shawne was stepping back from actually threatening Lorenzo, the implication was clear. I could think of only one person on whose behalf Shawne could be speaking.
"Do you know Devin Wallace?" I asked.

"How 'bout you?" Shawne said, not even bothering to acknowledge my question.
"Who's making you well?"

I wasn't keeping up with him, and there wasn't much sense in my pretending that I was.
"Look, Shawne, the reason we're here is to talk about your case—"

"You told me you got that shit covered. I'm figuring you came
correct on that."

"That's true, but we really don't have anything else—"

"You get yours on the street, or have you learned to move past
that? Smart motherfucker like you, bet you got somebody who comes to you."

"I don't know what you're talking about," I said, although of course I did. It was hard to stay in my chair; everything in me wanted to bolt from the room. I could feel beads of sweat forming on my brow.

"It's all right," Shawne said softly, leaning forward now, the faintest smile on his lips.
"You don't got to cover from me. Dope really fucked shit up for you, though,
huh? You was a real lawyer back in the day."

"I don't know what it is you think you know about me—"

"Now, why you gotta disrespect me like that?" Shawne said, his demeanor shifting: all of a sudden I was face-to-face with the young man who ran a corner.
"Don't you be stepping up to me and calling me a liar when we both know nothing
I said been no kind of lie."

It was clear that Shawne really did know something about my past. I had no idea how he knew, or why he was raising it, what he was trying to get. What I needed was time to think, but I didn't see how that was going to happen.

"What does any of this have to do with you, Shawne?"

Shawne smiled, easing back again, putting aside the threat. "We
just two motherfuckers in a room talkin' some shit. Ain't nothing else. You
looking a little warm, homey. Want me to open you a window or something?"

"You did some homework," I conceded, brushing sweat off my forehead with my fingertips.
"Or somebody did. So what is it you want?"

"I'm just trying to make sure you're well, yo," Shawne said. "You
getting what you need?"

"I don't need anything."

"Some needs just don't play that way. Some needs, they get into
you, they ain't never going away. I don't got to be telling you this shit."

I couldn't contain myself anymore. I stood up and opened my office door.
"I think we're done here," I said.

Shawne stayed in his seat, looking up at me impassively. "That how you want it, that'll be how it is," he said finally, standing.
"Thought you might be looking for a friend is all. You change how you feel, you
know where I am."

AFTER SHAWNE
left I went to the men's room, ran cold water in the sink, cupped it in my hands, and splashed it on my face. I did it again and again, trying to cool myself down. When I caught my reflection in the mirror I hated what I saw: I looked ashen, disheveled, strung out even. I didn't look like the person I thought I was.

Zach was waiting for me outside our office. I saw him do a slight double take at my appearance.
"You okay?"

"Fine," I said. "What's up?"

"You're late," he said. "C'mon, Myra's ready for us."

Isaac, Zach, Shelly, and I were mooting Myra for the Gibbons appeal, which I'd completely forgotten about. Myra stood at the front of the table while we sat at the far end. Behind her evening had set in, Borough Hall illuminated faintly in the growing dark.
"May it please the court," Myra began. "This is a case that hinged on the
defendant's confession. Terrell Gibbons has an IQ that makes him borderline
retarded. It is well documented that people at that intelligence level are
generally more open to suggestion than the average person. They also tend to be
more eager to please, to submit their will to someone else, than the average
person. As a result, someone with the defendant's intelligence level is much
more likely to falsely confess—"

"You're not denying that your client confessed?" Isaac interrupted.

"Not in the sense that he said the words, Your Honor—" Myra began.

"What other sense is there?" Isaac said.

"The sense of actually
meaning
the words," Myra answered.
"Mr. Gibbons testified that he confessed because he was tired and scared and the
detectives threatened him with violence if he didn't."

"And you made these arguments at trial, did you not?" Isaac asked.

"Yes, Your Honor," Myra said. "But our argument here is that the court below erred in denying our attempt to put on expert testimony in order to connect my client's limited intelligence with the likelihood that he could be manipulated into falsely confessing. The trial court incorrectly saw this case as on all fours with cases such as
Green
and
Lea
.
It's not."

"The fact that your client is of limited intelligence is enough to distinguish this case from the earlier Appellate Division decisions?" Zach asked skeptically.

"The central holding of those earlier New York cases, Your Honor,
was that a jury's own experience and common sense would allow them to understand
the coercive aspects of a hostile police interrogation. Petitioner does believe
those cases are wrongly decided and should not be followed. However—"

"So you are saying we should take issue with those decisions?" Zach pressed.

"Not necessarily, Your Honor," Myra said. "While it is our
position that those cases should in fact be overruled, this court need not do so
in order to grant my client relief. The distinction—"

"So you're arguing that we should say that anyone who wants to claim they falsely confessed should be able to bring on an expert, but that if we don't want to go that far we can carve out a space for people like your client who have documented intellectual or emotional problems that may make them uniquely susceptible to falsely confessing?" Shelly asked.

"Exactly, Your Honor," Myra said. "Given the decisions in other
state and federal courts, and the developments in the scholarly community
establishing that false confessions are an issue worthy of expert testimony,
those earlier New York decisions have become outmoded. But regardless of that—"

"We're talking about decisions that are what?" Isaac interrupted.
"Five years old?"

"I don't think that matters," Myra replied. "Not if a consensus
has subsequently developed."

"And by a consensus, you mean the handful of cases from other jurisdictions discussed in your brief?" I asked.

"There's no doubt this is a developing area of law," Myra said. "I think the
Hall
decision from the Seventh Circuit is extremely persuasive in this regard. A
national consensus is fast emerging that goes against the two previous opinions
from New York appellate courts. And this sort of emerging national consensus is
of particular relevance when the issue in question concerns the general
acceptance of expert testimony."

We continued for another ten minutes or so, pressing Myra on the details of her argument. I thought Myra was good, but she seemed less comfortable in the role of scholarly appellate advocate than she did as a street-fighting trial lawyer.

Afterward we all went out for a drink at the Ale House. I was still distracted from my conversation with Shawne Flynt and hadn't been able to fully focus on anything else. I knew I should tell Myra about what Shawne had said. If he was reaching out on behalf of Devin Wallace, that was something she should know. But I didn't know how to tell her that part without including what Shawne had known about me. And that wasn't something I was ready to tell her.

"So?" Myra said once we were all seated. "How'd I do?"

"Your presentation is good," Isaac said. "But it felt a little academic to me. You let us set the discussion. You're not giving the judges any reason to feel they
have
to overturn this conviction. You're giving them an opportunity to make new law
in New York, but you're not forcing them to do so."

"How am I supposed to
force
them to make new law?" Myra said, clearly not liking such blunt criticism, however constructively intended.
"It's a tough balance with an appeals court," Isaac conceded. "But I think
you've got to interject more passion into it. You've got to convince them that
Terrell is innocent, make them be looking for a way to reverse his conviction."

"Okay," Myra said. "How?"

"They're only going to be willing to do that if they think there's
no other way to avoid a clear injustice."

"But, Isaac," Zach protested, "you know the Appellate Division
assumes that anybody convicted at trial is guilty. I don't think you can
backdoor an actual innocence claim on them. That kind of claim only flies when
you've got new evidence, or prosecutorial misconduct, something like that."

"I'm not saying it'll be easy," Isaac said. "You want your work to
be cut out for you, go join the district attorney's office."