The Last Plea Bargain (5 page)

7

In the hotel room, Mace guarded the door while Freddie sat on the bed, rubbing his jaw, nursing his left eye with ice wrapped in a wet washcloth. They had cleaned up most of the blood, but a small cut was visible. Mace hadn't landed that particular blow, but it still wouldn't look good.

Junior arrived five minutes later and fired up his video recorder.

“What's he doing here?” Freddie demanded. When he stood, Mace pushed him back onto the bed.

“Sit down and shut up.”

Mace turned toward the camera and waited for Junior to start recording. “My name is Mason James, and I'm here at the Union Station Hotel in Nashville, Tennessee, room 521, with a man by the name of Freddie Cooper whose friends call him Coop.”

Junior trained the camera on Freddie, who sat on the bed, frowning.

“I just rescued Mr. Cooper from a fight in the poolroom at the Flying Saucer bar,” Mace continued. “It just so happens that I recognized Mr. Cooper as a man with three prior felony convictions for various drug offenses. It could have been four, and he could be serving time right now, but he managed to get the fourth one dismissed when he turned jailhouse snitch against my client Antoine Marshall about eleven years ago.”

Mace moved to the bed and towered over Freddie. “I also happen to believe that Mr. Cooper is in possession of cocaine again.”

Junior panned out to a wide-angle shot.

“Empty your pockets,” Mace demanded.

“Kiss my—”

Mace pounced and pulled Freddie up from the bed by his collar. “Empty your pockets,” he hissed.

“Oops,” Junior said from his perch next to the door. “The camera cut off. It will be a few seconds before I can turn it back on.”

Freddie's eyes were wide with fright. “Don't hit me, man,” he said to Mace. He held up his palms and glanced at the camera to see if the recording light was on. He quickly reached into his pocket and threw a package of white powder on the bed.

“Did you get that?” Mace asked Junior.

“Yep. Hidden camera next to the TV. Installed it this afternoon.”

Mace let go of Freddie, pulled a pair of gloves from his pocket, put them on, and picked up the bag. “Don't want to confuse the fingerprints,” he said to Freddie.

Freddie looked dazed by the events taking place. The booze was apparently clouding his judgment. “What do you want?” he asked.

“I want you to smile for the camera and repeat what you told my buddy last night.”

Mace was referring to the conversation that Junior had taped. It had taken Junior a week to befriend Freddie and manipulate the conversation around to the role Freddie played in the trial of Antoine Marshall. Finally, last night, after more than a few beers, Freddie had bragged about the deal he had cut with prosecutors and how he had played fast and loose with the truth. But the tape was indecipherable. And when Junior tried to pry the same information out of Freddie tonight, Freddie didn't want to talk.

“We've already got you on tape,” Mace said. “And the way I see it, you've got two choices. One, you repeat what you said last night for the video camera. You also sign an affidavit stating under oath that you lied eleven years ago. Then I'll file it with the court. Under that scenario, the prosecutors and courts will try to minimize your testimony because they don't want to upset the conviction of Antoine Marshall. There's not a chance in the world that you'd be prosecuted for perjury.”

Mace could see the sweat breaking out on Freddie's brow, and he knew he had him.

“The second choice is that you refuse to clear this up, and you stand by your original testimony. Under that scenario, I'll turn this videotape and bag of cocaine over to the Nashville police and, after Antoine Marshall is executed, I'll send the tape from last night's confession to the prosecutors in Atlanta. With Antoine Marshall dead, they'll have no reason to minimize your lies, and you'll get prosecuted for both perjury
and
possession of drugs. You've got ten seconds. Which one will it be?”

Freddie stared blankly at Mace and blinked a few times as if this were all just a bad dream. He looked at the small package of cocaine that Mace had placed on the dresser and then glanced at the video camera.

Mace crossed his arms. “Five seconds.”

“They put me in a cell with your boy,” Freddie said. “I told them I didn't want to room with no . . .” Freddie stole another glance at the video camera. “With no Afro American.”

He shifted his feet and continued. “Um . . . they told me it would only be for a few days and if I knew what was good for me, I'd shut up and do it. They told me your boy was up for murder and that maybe he'd talk to me. They didn't give me no promises or nothing like that, but I'm not stupid.”

Mace could have debated that point, but he let it slide. Junior circled around behind Mace's shoulder to get a better angle on Freddie. Mace listened stone-faced as Freddie gave a rambling and at times incoherent rendition of why he had lied. When the whole thing was on tape, Mace suggested that he make some coffee and they run through it again.

Three cups of coffee later, with more than a little coaching by Mace, Freddie turned in his best performance of the night. The left eye was now swollen, and both eyelids were heavy with sleep and inebriation. The bloodshot eyes darted away from the camera more frequently than Mace would have liked, and Freddie couldn't keep himself from slurring his words, which were sometimes incoherent. But this wasn't a Spielberg film. At 3 a.m., Mace allowed Freddie to lie down and take a short nap while Mace pounded out an affidavit on his computer. By 5 a.m., nap time was over, and Mace printed the affidavit on a portable printer that Junior had brought into the room and made Freddie sign it.

If all went according to plan, Freddie's face would soon be splashed all over the Atlanta TV stations. Mace went to the front desk and faxed the affidavit to an attorney at Knight and Joyner, a large firm in downtown Atlanta that was helping on the case as part of their pro bono program.

Mace checked his watch. Fourteen hours from now, if this plan didn't work, a medic at the Georgia Diagnostic and Classification Prison in Jackson would stick a needle in Antoine Marshall's arm, and Georgia would execute an innocent man.

8

I don't remember waking up on the day of Antoine Marshall's scheduled execution because I don't remember falling asleep the night before. Instead, I slipped in and out of consciousness all night, interrupting my nightmares to jump awake and stare at the clock. After my heart calmed down, I would realize that I still had hours to go before the sun came up.

The sun never did come up. The morning was overcast and gray, and the weatherman was predicting showers all day. It was, I decided, an appropriate forecast for what promised to be a brutal day.

I got out of bed early and checked the paper online. There was no fresh news about Marshall's execution. I fixed a cup of coffee, fed Justice, and steeled myself for the onslaught of noise that would come out of Antoine Marshall's camp. Each filing would be more ridiculous than the last. Bill Masterson, who had been through this drill a time or two before, warned me not to read any of them. “They're desperate, Jamie. They'll say whatever they need to say to get the execution postponed.”

I ignored his advice. For the past seven years—three years as a law student and four as a prosecutor—I had obsessively monitored each court system where Mason James and the lawyers from Knight and Joyner filed their various petitions and writs. Each word of their briefs would eat at me and fuel my frantic desire to get this final day of Marshall's fight behind me. Now, at last, the day had arrived.

To prepare myself, I had read a wide range of reactions from other victims who had viewed executions. Some ranted that the process seemed too humane for the monsters who had committed such despicable crimes. Others were stunned and speechless. A few said they regretted going. For most, it seemed that the process was strangely unsettling and created more questions than answers. Protesters treated the death-row inmates like heroes. The convicts received marriage proposals from crazy European women. Pastors who engaged in prison ministry would tell stories about last-minute conversions. Even the prison system catered to the murderers for most of the day, giving them whatever they wanted for a last meal. The condemned man's final words were circulated far and wide.

And the victims were once again forgotten.

I was so emotionally drained by the time Friday morning arrived that I didn't have the energy to go to the gym. I showered and dressed by seven and then changed my outfit three times. I didn't want to wear black as if I were in mourning. Nor did I want to look too much like a lawyer. I finally settled on a skirt-and-blouse combination with a sweater that my mother once wore. I put on a topaz necklace and matching earrings that had belonged to her.

Legally, I didn't have to go to the execution. But morally . . . that was a different issue. How could I advocate for the ultimate punishment in my cases at the office and not show up to see it through in my personal life? I told myself I wasn't bloodthirsty or seeking revenge. This was the way I paid tribute to the memory of my mom. This was the way I stood for justice.

I wondered what Antoine Marshall would say when the time came. He had written letters to my brother, Chris, talking about how he had found Jesus in prison and how religion had changed his life. He said he prayed for us every day. But he never admitted that he had killed my mom, and I knew he would deny it to the grave. I tried to brace myself for seeing the man who had made me an orphan boldly proclaiming his innocence one last time. I would stare through the one-way glass and shake my head in defiance.

Chris woke up at eight and came down to fix oatmeal. He had left Amanda and their two young girls at home in northern Georgia so the girls could stay in their routines, impacted as little as possible by Marshall's execution. Even Chris had originally said he wasn't going to the execution, but after Dad's stroke, he'd changed his mind.

Chris was fundamentally opposed to the death penalty because he thought the system too often got it wrong. African Americans were disproportionately executed, and DNA evidence too frequently exonerated men who had served long stretches in prison. But Chris was the passive one in the family, and I had convinced him not to share those views publicly. I knew the system wasn't perfect, but I also knew the system had gotten it right this time. We didn't need the press playing one sibling against the other.

“Good morning,” Chris said. “What time are we leaving?” He was still wearing pajama bottoms and a T-shirt. His blond hair stuck out in a number of random directions.

“I thought I'd go to work for a while first,” I said. “We probably need to leave here by three.”

We ate in silence for a few minutes while I checked some websites, then shut down my computer. “Thanks for doing this, Chris,” I said softly.

“I'm not looking forward to it.”

“Neither am I.”

He continued eating, concentrating on his oatmeal, while I packed my briefcase. We each had a thousand thoughts but no words to express them. We had talked for hours about this moment, but now that it had arrived, it seemed the only thing to do was march stoically ahead and accept whatever life threw at us.

“Any chance he'll get a stay?” Chris asked. He took a swig of milk. I didn't think he would be so calm this morning, just wolfing down breakfast as if it were any other day. My stomach was already in knots.

I shrugged. “Doesn't look like it. But who knows? We need to be ready for anything.”

Chris looked at me, and I saw the apprehension in his eyes. I had misread his silence as nonchalance. But at that moment, I realized it was something else—uncertainty, nerves, even fear. My brother was older, the pastor in the family. But I would have to be the steadfast one. I could tell he didn't want to face this day; he didn't want to be a silent accomplice to a state-sanctioned killing. I had no such reservations.

“I just want it to be over,” Chris said.

9

Mace James raced from Nashville to Atlanta, working his cell phone the entire trip. While he drove, nine attorneys at Knight and Joyner worked on the last-minute filings. In the less-frantic weeks and months leading up to this day, Mace had taken the lead. He had argued before the Georgia Supreme Court and the Eleventh Circuit Court of Appeals. He had personally written most of the briefs and had filed, at last count, sixteen habeas petitions. But now, on the final day, he let the big firm take care of the details. His job was twofold: get the press involved and, if all else failed, be there for Antoine.

There were only three chances left—all long shots. They had just filed a habeas petition with the US Supreme Court based on the shortage of sodium thiopental and concerns about where Georgia had obtained its supply. Mace figured he had better odds of becoming pope. They had also petitioned the Georgia State Board of Pardons and Paroles for clemency. The outlook there was dismal but not entirely hopeless. The board had granted clemency in seven cases since 1976, including a 1990 case where a death-row inmate's sentence was commuted based on an exemplary prison record, demonstrated remorse, a religious conversion, and pleas for clemency from the victim's family. Antoine had two out of four—a good prison record and a religious conversion. Mace doubted it was enough. Many prisoners claimed dramatic jailhouse conversions. Mace was one of a select few who had stayed the course after his release.

That left the habeas petition being filed that morning with the Georgia Supreme Court. Another Hail Mary, but the best of a meager lot. Mace had flipped Freddie Cooper, leaving only the eyewitness testimony of Robert Brock with no corroborating DNA or other scientific evidence. And Brock's testimony had been largely discredited on cross-examination.

Despite patches of rain, Mace pushed the speedometer to ninety miles per hour as he raced down I-75 in north Georgia. He held the speed until his truck started shaking and then backed off the accelerator just a little. A few times he saw the state police early enough to slow down to eighty. Once he probably would have been pulled over but got boxed in before passing a state trooper hiding in the median. None of that stopped him from sending text messages and making phone calls. One eye on the road. The other checking the Internet using his BlackBerry, wondering why the press had so little interest in an innocent man's execution.

Actually, Mace knew exactly why. His client was a three-time convicted felon. A black man convicted of killing a respected white woman in her own home. Antoine had no advocates other than his lawyers and a committed band of death penalty opponents who took up the cause of every death-row inmate. Antoine's mother had died five years ago, and there were no other family members who would attend the execution. For most of Georgia, Antoine Marshall was nothing more than prisoner 12452, a man destined to make headlines one last time—the local section—before he stopped getting room and board at taxpayer expense. Troy Davis, a former death row inmate, had been executed in 2011 despite recantations from seven of the nine witnesses against him. By comparison, Freddie Cooper's recantation was nothing special. Only one television station in all of Atlanta had any interest in airing taped footage of it.

Mace arrived at that station at nine thirty and checked in with the receptionist. He had thrown a gray suit coat over his black T-shirt because he hadn't had time to go home and change. He knew he looked like death, but maybe that was appropriate.

Staci Anderson, the reporter who would be asking the questions, was shorter than she appeared on television but every bit as striking. She had long dark hair and a subtle Latin American look. Like all anchors, she had layered on the makeup, and her teeth nearly sparkled.

Mace followed Staci inside and spent the next few minutes in makeup. A talkative woman dusted his bald head so it wouldn't create too much glare and caked on some blush. When he was finished, Mace showed Staci and her producer the tape, and the producer mumbled something about it being “good stuff.” Before he knew it, Mace was sitting on the set with cameras rolling and Staci firing questions at him.

“Why did Freddie Cooper wait until the night before the execution to come forward?” Staci asked. “It seems awfully convenient.”

Mace tried not to bristle at the question. He didn't want to seem like one of those crusaders who thought every death-row inmate should be turned loose on the streets. “We had been looking for him for a few weeks,” Mace said. “He doesn't exactly have a hyperactive conscience, and if we hadn't found him, he probably wouldn't have said anything. I think he was hoping we would get the execution stopped by some other means.”

“But as I understand it,” Staci said, “there is still an eyewitness to this crime—Robert Brock, the husband of the victim, who was also shot by your client. How does Mr. Cooper's change of heart impact Mr. Brock's credibility?”

It was a good question, Mace knew. And it was the same question the Georgia Supreme Court would be asking. This might be Mace's best chance to convince the court. Justices watched television too.

Mace turned away from Staci and looked directly into the camera. “Mr. Brock is a victim of a horrible crime, and my sympathy goes out to him and his family. But he was in shock when he saw his wife bleeding on the floor. He had a moment's glance at the intruder before being shot himself. Later, the police used suggestive questioning and a faulty lineup to convince Mr. Brock that my client was the killer. At trial, the defense was not allowed to introduce expert testimony about the dangers of cross-racial eyewitness identifications nor about how the police officers, using a bad lineup and loaded questions, had planted false memories about the suspect's appearance.”

“What happens next?” Staci asked.

“We've filed a petition for a stay with the Georgia Supreme Court,” Mace said. “We'll get a ruling later today.”

“Thank you, Professor James,” Staci said. “I know you've got a busy day ahead of you, and we appreciate your time.”

Mace knew he was expected to just mumble his own thanks. The cue cards behind the camera were down to five seconds. But he didn't have to play by their rules.

“Antoine Marshall, to my knowledge, is the only defendant on death row who's passed a lie detector test,” Mace added.

The time card was up before Staci could tease the next segment. During the break, she thanked Mace, then started talking to her producer about what was coming up next.

Mace left a copy of the Freddie Cooper tape with the station and checked his watch. It was time to head south to death row.

All morning long, I worked at my desk and, with sweaty palms, hit the button to refresh the various court sites I monitored. I saw the petition with the attached Freddie Cooper affidavit at ten thirty. I immediately called the AG's office, and they said they were on it. A response would be filed within two hours.

“This happens all the time,” one of the lawyers assured me. “You've got nothing to worry about.”

I got a text from a friend about the news report when it aired at noon. I watched a replay on my computer and caught myself grinding my teeth. Mace James had no shame. My dad was lying unconscious in a hospital bed, and James was taking shots at him.

They ran a clip from Cooper's recantation, and he looked like he had been beaten up. I called the AG's office a second time.

“Have you watched the video?” I asked. “It looks like they beat that statement out of him.”

“We noticed that,” they assured me. “We put it in our briefs.”

A few hours later, just before I arrived home, I gave Chris a call. “I'll be there in a few minutes. Have you let Justice out?”

“About a dozen times.”

I knew Justice was taking advantage of my brother and garnering some extra attention. The thought of it made me smile.

When I arrived home, I parked in the driveway, and Chris was out the front door before I even beeped the horn. The sky was still overcast, but it had stopped raining. When Chris reached the car, he took off his overcoat and tossed it in the backseat. My father was a few inches shorter than Chris and before his strokes had outweighed Chris by about twenty pounds. But for this occasion, Chris had decided to throw on one of my dad's sport coats and my dad's favorite tie. The tie looked great, but the coat was riding a few inches up Chris's arms and dwarfed him in the shoulders.

Chris had told me I looked good before I left for work that morning. I had told him that I was wearing Mom's earrings and necklace. Now, the sight of my brother wearing my dad's sport coat made me tear up.

Chris got in without saying a word.

“You look great,” I said, my voice hoarse.

“I wish he could be here,” Chris said.

I backed out of the driveway without saying another word.