The Law of Second Chances (24 page)

“I don’t believe the incompetence satisfies the test of
Strickland v. Washington
. As this court knows, it’s a very high standard. The level of incompetence must be such that the accused is, in effect, denied counsel.”

“Thank you, Judge. Just to be a little clearer, is it your opinion that your representation and the errors that you made did not constitute incompetence as a matter of law?”

“That’s correct,” Wofford admitted.

Jack could now see how the rest of the cross-examination was going to go. Tremaine had succeeded in turning Wofford into his own expert. Through Wofford, he was going to try to prove that Henry had not met any of the legal criteria for a new trial. It was a brilliant tactic.
Just hang in there, Wofford
, Jack thought.
You’ve been here before
.

Meanwhile, Scott Tremaine continued his assault on Henry’s case.

“Is it accurate that besides not having Mr. Griffin available for trial, you never spoke to Mr. Griffin after interviewing Mr. Vernon?”

“That’s correct.”

“And if you had talked to Mr. Griffin back then, if you had done your job, you would have learned that James Vernon had also spoken to Mr. Webster, the prosecution’s investigator, and told Mr. Webster he was at the crime scene at the time of the murder, correct?”

“Possibly.”

“Possibly? I don’t understand.”

“He could have refused to talk to me based on the attorney-client privilege.”

“In any event, you didn’t bring Ted Griffin into court back then and ask the question and test the privilege issue before a judge, did you?”

“No.”

“As a circuit judge, you are familiar with the law on newly discovered evidence, correct?”

“Yes, I am.”

“And you have had to decide what constitutes newly discovered evidence in cases just like this?”

“That’s correct.”

“What James Vernon told Ted Griffin seventeen years ago cannot be considered newly discovered evidence, can it?”

Jack was on his feet. “Objection, your honor.”

“Overruled.”

“No,” Wofford answered.

“And that’s because you knew about the conversation seventeen years ago, even though you never asked Ted Griffin what was said, correct?”

“That’s correct.”

“And even if what James Vernon told Ted Griffin was privileged, the privilege died with Mr. Vernon five years ago, correct?”

“That’s correct.”

“How long do you have to file a motion for new trial when you learn, or should have learned, of newly discovered evidence?”

“One year.”

“So even if what James Vernon told Ted Griffin was privileged, this motion is still four years too late, correct?”

“Objection.”

“Overruled.”

“That’s correct,” Wofford answered.

“And since the information about Anthony Webster’s interview with James Vernon came from Mr. Griffin, that’s something that could have and should have been discovered at least four years ago as well, correct?”

“That’s correct.”

“So that’s not newly discovered evidence either?”

“It may not be newly discovered evidence, but it still may provide a basis for a new trial.” It was the answer Jack had hoped to hear. “I believe that a prosecutor has an affirmative duty to disclose exculpatory evidence under
Brady v. Maryland
. If the prosecution does not disclose that evidence, it cannot hide behind the argument that the defendant’s counsel could have and should have found out anyway.”

“Do you have any case law to support that opinion?”

“No, but that is my interpretation of
Brady.”

Yes!
Jack was saying to himself.
Hang tough, Wofford
.

“But you do agree that you could have learned about Anthony Webster if you had talked to Mr. Griffin seventeen years ago or four years ago?”

“Yes.”

“And would it be fair to say that if David Hawke and his cousin Delbert Falcon were not prosecuted for two years after Henry Wilson’s conviction, that was enough time to put you on notice that they weren’t going to be prosecuted, correct?”

“Yes.”

Scott Tremaine should have stopped there, but he didn’t.

“So the fact that they were not prosecuted is not a basis for a new trial, is it?”

“If the prosecutor affirmatively kept this information from the defense at the trial, I think that too is a
Brady
violation and could form the basis for a new trial.”

Jack looked at Henry, who was taking it all in. He saw Henry mouth the word
yes
when Wofford gave his last answer. Jack had two more witnesses to put on, but he and Henry and probably Scott Tremaine all knew that it now came down to Judge Fletcher’s interpretation of
Brady v. Maryland
.

Scott Tremaine did not want to end his cross-examination on such a sour note, but he had nothing else to ask, and he knew that any further questions of this witness about the
Brady
decision would get him nowhere but into further trouble. “I have no further questions, your honor,” he said and sat down.

It had been a long day, so the judge decided to wrap it up
at that point. Jack had a few words with Henry before his personal army took him back to jail. Jack met with Wofford in the hallway outside the courtroom. The man was beside himself.

“I’m sorry, Jack. I didn’t realize that I was going to hurt Henry.”

“How do you think you hurt him, Wofford?”

“Hell, I gave opinions against your case.”

“Look, Wofford, we all knew this was a
Brady
case going in. We knew we couldn’t win on those other arguments. Your truthfulness and the way Scott had to pull the opinions out of you are going to work in our favor. You have narrowed the issue and framed it just the way we want it.”

“It’s funny. I’ve been doing this for so many years as an attorney and a judge. It was a totally different experience being a witness. I thought he blew me away.”

“He almost did. It was a very effective cross, but you hung tough. I think we are exactly where we want to be.”

“Thanks, Jack. I don’t know if you’re telling me the truth, but I feel better.”

“The truth will be in the decision. I’m going to be done tomorrow, in case you want to stick around.”

“Really?”

“Yeah. The judge has all she needs right now, I think. I’m going to put Griffin and Webster on for five minutes apiece.”

“Watch out for Webster. He could be a tricky witness.”

“You know the old mantra, Wofford. If you’re going to try cases, you have to be fearless.”

“Or crazy,” Wofford replied.

34

Soon after filing his notice of appearance, Benny’s lawyer, Sal Paglia, filed a motion to set bond. He knew he had no possibility of getting Benny out, but that wasn’t his goal. Sal knew how to manipulate the media and how to gather them together in a heartbeat to make a dramatic pronouncement about nothing. It was better advertising than money could buy.

So Sal called a press conference right after his motion was denied.

“This is a travesty of justice!” he told all the broadcast networks, plus CNN and a few others. “My client is being denied his constitutional right to bail.” Sal blustered on for about ten minutes, which he figured was the maximum attention span of any television reporter. Then he stopped. He had earned a significant spot on the evening news.

“Sal, my boy, you’ve still got it!” he proclaimed in his rented apartment that evening as he watched himself on TV. “Keep stoking that fire and you’re back in business.”

He filed another motion two weeks later, seeking more of the same free publicity. This time, however, he also had a legitimate purpose.

The courtroom was full of lawyers waiting to have their motions heard. Sal wasn’t shy. “Judge, I have here the affidavit of Dr. Donald Wong saying he has been retained on this case but that he will not be available until the last two weeks of October next year. I’ve discussed this with my client, and
I’m waiving speedy trial and requesting that you set a date certain for this trial in the last two weeks of October of next year.”

It was an unusual request. Most defendants who were incarcerated wanted to get out as soon as possible. Sal was trying to keep his client in jail for almost a year before he even had a trial. It didn’t make sense. On the other hand, Sal had a legitimate problem with his expert. Judge Franklin Harrison was handling the motion calendar that day: he had heard of Dr. Donald Wong and knew him to be a famous pathologist who wrote books and testified all over the world. Harrison didn’t understand why Wong had been retained in this case, but that was the lawyer’s decision. The judge never suspected that Sal’s real motive was to milk the case for all it was worth before finally taking it to trial.

“What says the state?” the judge asked.

Ellen Curry was a rather new deputy district attorney who had been on the job only six months, working misdemeanors. She was handling the hearing for a big shot who couldn’t make it. She knew nothing about the case, having seen the file for the first time five minutes before walking into court. She did know, however, that if she agreed to this outlandish delay there would be hell to pay when she returned to the office. “Judge, this is a ridiculous request. Do the wheels of justice come to a halt because of the schedule of one man? There are other experts. Mr. Paglia can find somebody else who doesn’t sell his soul so often. The citizens of New York have a right to have this case heard within a reasonable time.”

Judge Harrison liked that about young lawyers—they spoke of justice and the rights of citizens and selling your soul. Nobody did that in a motion hearing. Those were words that were saved for juries, because only jurors would swallow that stuff. The other lawyers in the courtroom were probably gagging. They all knew from experience what the still- idealistic Curry had not yet figured out—paid experts all over the country were selling their souls every day. The judge didn’t need to be told that. Every once in a while, though, it was refreshing to hear.

Sal stood to counter the argument, but the judge stopped him.

“I’ve heard enough, Mr. Paglia. I agree with Ms. Curry. This court cannot revolve around the calendar of one man. I’ll give you six months to get another expert and be ready for trial. We’re going to put this case on the docket for June 14th of next year. Next case.”

On the courthouse steps, Sal ranted and raved for precisely ten minutes about the injustice done to his client that day. Actually, he had gotten just what he wanted—six months.

“When you want six months, you ask for a year,” Sal told the TV set as he watched his performance on the six o’clock news.

Benny was also watching that night from prison.
This guy is some kind of nut
, he thought.
But he does have balls. Maybe that’s what you need in that business
. Benny didn’t realize that his thoughts about Sal were pretty much in line with those of his father, Luis.

35

Pat was sitting up in bed talking and laughing with Charlie when Jack got to the hospital that night. A little bit of color had returned to her cheeks.

She beamed when she saw him. “Hi, honey. How did it go today?”

“Pretty good, sweetheart. How are you doing? You look a whole lot better.” He gave her a big kiss.

“I feel better.” She was slurring her words a little, which Jack attributed to the medication. They were giving her morphine.

“She had the blood transfusion this afternoon,” Charlie told him when Jack sat down next to her. “That and the IVs have made a world of difference.”

“What does the doctor say?”

“She hasn’t said anything yet. The test results still aren’t back. Maybe tomorrow.”

“How is Henry?” Pat asked. It was a funny thing. Pat always asked about Henry and Henry was now always asking about Pat—and the two had never met.

“Henry is doing fine.”

“Are you proving to the judge that he’s innocent?” Charlie asked.

“Innocence has very little to do with it at this point,” Jack replied.

“Yeah,” Pat added. “It’s about whether they can prove the lawyer screwed up or the evidence is new. Right, Jack?”

“That’s pretty much it.”

“Wait a minute, I’m lost,” Charlie said. “Why has innocence got nothing to do with it?”

“I don’t really want to talk about this,” Jack responded.

“We do,” Pat told him. “Charlie and I have talked about everything under the sun. We need something new, don’t we, Charlie?”

“We sure do—something with substance.”

Jack looked at the two of them. In the midst of all this, they were still having a good time with each other.

“All right, I’ll explain it to you, Charlie, but the peanut gallery,” Jack said pointing at Pat, “has to refrain from making editorial comments.”

Pat put her hand to her lips and mimicked zippering them shut.

“At this stage of the game, Charlie, to get a new trial you have to show that your lawyer was either totally incompetent, or that there is some new piece of evidence out there that nobody could have found before, or that the prosecutor hid evidence. If you can’t demonstrate any of those three things, it doesn’t matter whether you’re innocent or not.”

“That’s really the way it works?”

“Yeah.”

“And there are no other avenues?”

“Essentially that’s it. You can go to the governor for clemency, but that’s a political issue and our governor has never granted clemency.”

Jack slept well that night knowing that his wife was doing so much better.
Maybe she and Henry will both get a reprieve
, he thought before nodding off.

The next morning in court, Jack put Ted Griffin on the witness stand and had him tell the judge about his conversation with James Vernon, which Griffin did in essentially the same nonchalant manner as when he first told Jack.

“He told me he cut Clarence Waterman’s throat.”

“Why did he tell you that?” Jack asked.

“I’m not sure.”

“And you never told anybody?”

“Not until I told you a few weeks ago.”

Jack left it right there. Let Scott wade into unknown waters if he wanted to.