Suspicion of Vengeance (37 page)

Amber Dodson's parents sat just behind the prosecution table with Amber's sister, Lacey, who watched the proceedings as though lions were about to devour the Christians. At breaks in the proceedings she would whisper to Sonia Krause, and Ms. Krause or her chief assistant would turn around and lean over the railing and see what Lacey wanted. Gary Dodson sat nearer the wall, half hidden behind two other men in dark suits, probably younger prosecutors. For days Gail and Anthony had been trying to get to him and ask about the Mendoza deed. How much had Amber known about it? But he'd been a ghost. His secretary had given excuses: out of the office, in conference, out of town.

Jackie had gone over to the hotel last night to borrow the crime scene photos again, and she had stuck around awhile. They weren't counting on a favorable ruling from Judge Willis. They were putting their hopes on finding more evidence to tie Rusty Beck to Amber Dodson's murder. They had some proof, but not enough. Their investigator was showing Rusty's driver's license photo around Amber's neighborhood, but so far nothing. The plan to force Whit McGrath to turn on Rusty hadn't worked out. The only word from McGrath had been a phone call from his attorney threatening a lawsuit.

It was unfortunate that Glen Hopwood hadn't been able to remember where they'd dumped the bodies. It was also unfortunate, Jackie thought, that the Mendoza boy hadn't grabbed the shotgun away from Rusty Beck and let him have both barrels.

This courtroom was familiar to Jackie, who had testified on several felony cases. Like the rest of the building, it was typically modern. White walls, acoustical tile ceiling, rows of blue-upholstered chairs bolted to the floor. The judge sat behind a raised, oak-paneled dais with two flags behind him and a state seal over his head. He rocked slowly in his beige upholstered chair, and now and then he would pull back the sleeve of his robe and glance at his watch. "Let's move along, counselor."

Presently on the stand was the state's last witness, a sheriffs deputy who said that a few months ago he had arrested Tina Hopwood's son, Jerrod, and that Hop-wood had been "extremely angry" about it. They were trying to show that Tina Hopwood had made up the story about Kenny's alibi because she wanted to get back at the police.

Tina had been the first witness on the stand. She had long, straight black hair and pale, angry eyes. Anthony Quintana had held open the swinging door in the railing for her, and her dress had swished like a cat's tail as she'd stepped up to the witness box. She'd been nervous at first but settled down as Gail took her through what had happened. Gail asked her about her past, getting it out of the way before the prosecutor could make her look bad. Sonia Krause had tried to, but Tina had given it back to her. Gail had coached Tina to keep her temper and to hide nothing.

Anthony Quintana took the next witness, Vernon Byrd. He was dressed in a suit, and except for his size, Jackie wouldn't have recognized him. He swore that nobody had promised him anything to testify. "I shouldn't have made up that story about Kenny Clark, but I wanted to get out of prison. The prosecutor said he'd be grateful if I told the truth, but I didn't. I lied, and I'm sorry."

Sonia Krause's assistant hammered on Byrd's credibility.

After that, the defense called the two men from Fort Pierce who'd seen Kenny Clark so soon after the murder that it was unlikely he could have done it. Gail's voice was getting husky. She started coughing, and had to go back to the desk to get some water. Anthony stood up, spoke to her quietly, and she nodded, then sat down. Her skin was flushed. From her seat in the front row Jackie mouthed the words, Are
you okay?
Gail gave her a little smile. Anthony finished questioning the witness.

After a break, the state's case began. Ron Kemp testified that he didn't know where Ms. Hopwood had come up with this story, but it was absolutely not true. She had been drunk, had cursed him and Detective Federsen. They had let her sober up, then had come back, and she'd told them that Mr. Clark had left the trailer around nine-thirty that morning. Federson got on the stand to say the same thing.

Anthony Quintana cross-examined both of them, and it was blistering. He had looked into personnel files, found other incidents where witnesses complained that Kemp or Federsen had pushed them around. Kemp nearly lost his temper. That scored some points, Jackie thought.

Then Sonia Krause put on the deputy who had arrested Tina Hopwood's son.

Jackie glanced over at Gary Dodson again. He was slouched in his seat, head in his hand, hiding his face. Jackie decided she would talk to him. The reporters would be all over Gail and Anthony, and they wouldn't be able to get out of here fast enough, but Jackie thought she could catch up to Gary.

Finally the deputy was excused.

"If there are no other witnesses," the judge said, bringing his chair around, "I'm going to allow you-all to make a short summary, but please make it quick. It's past six-thirty, and we need to move along."

Gail had wanted to give the summation. Jackie saw her reach over and squeeze Anthony's hand. He smiled at her, then rose to his feet, buttoning his suit jacket as he strode to the lectern on the defense side. His wavy hair was tamed straight back off his forehead, his suit was conservative gray, and his cuffs closed with buttons, not gold cufflinks. Every other time Jackie had seen him, he'd been wearing three rings. Now there were none. He put both hands on the lectern. His voice was strong and resonant, with a slight Spanish accent. Jackie had come to like it. She thought it made him sound more dramatic.

"Your honor, this is a case about actual innocence. Kenneth Ray Clark did not kill Amber Dodson. The evidence proves it. A witness, previously unknown to the defense, now says that Mr. Clark could not have committed the crime because at the time of death, he was with her. She didn't come forward twelve years ago because she was afraid. The lead detective, Ronald Kemp, and his partner, Tom Federsen, came to her home, where her children were sleeping in the next room, and threatened to plant drugs, to revoke her probation, and send her to jail if she told the truth. This is outrageous police misconduct, by itself enough to justify a new trial.

"Two other newly discovered witnesses have testified that they saw Mr. Clark at ten-thirty on the morning of the murder, which fits perfectly with Tina Hopwood's statement that Mr. Clark left her trailer at ten o'clock. He could not have committed this crime because it was a physical impossibility for him to be in two places at once.

"The prosecution's original case was also built on the testimony of a jailhouse snitch, Vernon Byrd. You have heard him admit that he fabricated Mr. Clark's inculpatory statement. There was no such statement. Mr. Byrd lied to earn a reduced prison sentence. A year after the trial, Mr. Byrd was released.

"There are in the file affidavits from three jurors who say that had they known all of this, they would never have voted to convict. I myself filed an affidavit based on my conversation with the eyewitness, Mrs. Dorothy Chastain. She saw someone in the victim's yard at 10:05 a.m. the day of the murder. She believes that she saw Mr. Clark. She is mistaken. She confused Lacey May-field with someone else who may have come by at that time. Seven days later, after these details had become muddled in her mind, she was shown a photo display, a method so suggestive that it is no longer in use by the sheriff's office. She was shown six photographs. One of the men had long hair. That man was Kenny Clark. It is no surprise that she identified him in the lineup the next day.

"We have also submitted with our motion several studies, including one from the U.S. Justice Department, which all indicate an extremely high error rate among eyewitnesses."

The judge shifted in his chair and pulled back his cuff. "Mr. Quintana, the hour is growing late."

Anthony acknowledged this with a nod. "At the trial there was no physical evidence tying Kenny Clark to the crime. None. There were no fingerprints. The victim's blood was not found on his knife, nor was her missing jewelry found in his possession. The trace evidence found at the scene was not conclusive. All they could say was, 'It's not inconsistent,' which is the same as saying, 'We don't know.'

"Mr. Clark is an innocent man, the victim of police misconduct, the lies of a jailhouse snitch, and a mistaken identification. He was wrongfully arrested, tried, found guilty, and sentenced to death for a crime he did not commit. He has spent the last twelve years of his life either in jail waiting for trial or on death row, and his time has dwindled to twelve days. If this trial were to be held today, a verdict of acquittal would be the unquestioned result. I believe that the court must recognize this. Based on new evidence of Kenny Clark's innocence and in the interests of justice, the conviction must be set aside."

The spectators murmured among themselves. Gail turned her head far enough to see Jackie. They exchanged a smile. Jackie knew that the entire appeal could turn on what Judge Willis decided.

"State? Your summation, please."

Sonia Krause stood up, a short, gray-haired woman in a black suit and high-heeled pumps. She put her notes on the lectern, then glanced at the defense table as she began speaking.

"With all due respect to counsel for the defendant, this is not a case about innocence. It's a blatant attempt to overturn a verdict of guilty and have another shot at it because they didn't like the first result. The defense is asking the court to disregard the jury's decision, and substitute its own. I'm sorry, but this isn't the way the system works.

"Putting that aside for a minute, let's take a look at their case. First, Vernon Byrd. He testified at trial, and he was cross-examined thoroughly by the defendant's lawyer. Mr. Byrd stuck by his story. And now he's changing his mind. Why? Isn't it a little strange that a man with such a long criminal record would open himself up to charges of perjury? Are we really expected to believe that Mr. Byrd would come forward out of the goodness of his heart? He has denied receiving any compensation, but frankly, we find that incredible.

"As for Tina Hopwood, look at what she alleges. Sheriff's office investigators threatened to plant drugs in her home if she told the truth. Incredible. And why would she suddenly, after all this time, come forward and point her finger? Her teenage son was arrested by the sheriff's office just a couple of months prior to her making these accusations. Was that a coincidence? I don't think so.

"The defense claims that if the case were tried today, the jury would have to vote for acquittal. That isn't true. Can we say that the jury could
not
have found Kenneth Ray Clark guilty? No. Take away Vernon Byrd's testimony entirely from the first trial. The jury still could have voted for guilt. Let's assume that these other so-called alibi witnesses had testified at trial. Could the jury have disbelieved them and voted for guilt? Yes. And if Tina Hopwood had come to court, and if she had testified as she testified today, could the jury have disbelieved her? Of course. They could have found her as unpersuasive as I do. They could have doubted her motives, as I do. They could have relied on the other evidence in the case. Mr. Clark was put at the scene by a responsible, reliable eyewitness who had time to observe him clearly. His face was imprinted onto her mind. She identified him not just from a photo display, but in a physical lineup—"

"I know all this, Ms. Krause," the judge said. "Sorry to rush you, but let's get to the legal points, shall we?"

"Yes, your honor." The state attorney turned a page in her notes. "Kenneth Ray Clark was, and is, a violent man. He had been arrested for a knife attack. He had been arrested for burglary in the same area as the Dodson house, just a few months prior. He and the victim worked for the same company. There is ample evidence then, which I will dispense with restating, and there is ample evidence now. When a jury votes for guilt, all the state's evidence must be taken as true. All of it, and on appeal the defense can't pick and choose what it wants to disregard. The jury's verdict establishes that not only did the eyewitness actually see Kenneth Ray Clark, and that not only did Mr. Clark make a confession to his cell mate, but
all the physical evidence
must likewise be taken as proven fact. They can't come in here and say that the trace evidence and the knife don't matter.

"They say that another jury, trying this case again, would vote for acquittal. This is
not
the standard for review. That is not what this court must consider. As a matter of law, the court must ask two questions. First, is the evidence
newly discovered?
No, it is not. There is nothing here that could not, in the exercise of due diligence, have been discovered before. Second, would this evidence, if presented to a jury, result in a different verdict? As you have seen, the answer to that is no.

"Defense counsel would disregard the rules. We must have rules, or the entire system falls into chaos. We would never have finality to any case. Each one could come back and come back, litigated forever. When does it stop? When does it stop for Amber's husband or for Amber's parents and sister, who have been waiting for twelve years? When does it stop for the victim herself, who still awaits justice?"

Several spectators applauded, and voices rose in the courtroom.

"Order!" the bailiff shouted.

Jackie saw Gail suddenly let go of Anthony's arm and stand up. She walked to the lectern. "One minute for rebuttal, your honor. My client is due to die in twelve days. I think he deserves to be heard for one minute."

"All right, Ms. Connor. One minute."

Walking toward the lectern she straightened her blue scarf, the only color on her slim, cream-colored suit. She pulled the microphone toward her from the level where Anthony had put it. Last night she had complained to Jackie that she wouldn't have time to do more than wash her hair. It shone beautifully, parted on the side, curling under at her collar. She cleared her throat, but the huskiness was still there.

"Your honor. The prosecution talks about rules, and I think it's because they don't have anything else to talk about. They can't talk about right and wrong, so they rely on procedure. I agree that we need to have rules, but not when they're used to obscure the truth. Can anyone with an open mind really be sure about Kenny Clark's guilt? Sure enough to send him to his
death!
Can
you
say that, your honor? Can you, not as a judge, but as a human being, sit there and say that you don't care that in twelve days a man will be strapped to a gurney and killed for something he didn't do? Step out from behind the robes, your honor. Don't put the responsibility on the prosecutor, or the jury, or the governor, or the executioner. It's
your
decision. You know that something is very wrong here. I ask you, I beg you, not to be a cog in the machine. You're going to retire soon. You said this was your first case as a criminal court judge, and your last. Do you want your last memory of this profession to be that you helped the state kill an innocent man?"