Part VII
“Do your duty!”
Eldred sat alone at his table in the cafeteria, eating his peas and onions. He sat alone more often than not, lately, as word has spread like wildfire that he was facing at a chance of being released. The pain everyone felt was just as Ahab had explained it to him. They knew him to be guilty and yet he was going to be released. He had been threatened a few times, once by someone he thought was his friend. Many of them were guilty of much lesser crimes; even petty theft of fresh produce from a farmer’s market.
He spoke out loud to the room of convicts who seemed to be shunning him, talking to no one but to anyone who was listening, “You’d all do the same thing, if you had the chance, wouldn’t you?”
He knew they felt betrayed. They’d told him that. It was almost as if they all expected him to turn down the chance for freedom, just so he could share in their misery and confinement. Even he knew that was foolish. He couldn’t understand their hatred for him and want to hurt him.
The previous morning he returned to his cell to find his mattress on the floor and someone had urinated all over his blanket and pillow. He slept on the bare bunk that night as the laundry was slow in washing his things in particular. They’d heard too.
This time, a new guy came and sat across from him. He was dark skinned but different. Eldred knew he was Mexican. He’d seen him around the yard for a few weeks. They ate in silence.
“When you get out, you’re gonna send me what I need in the mail.”
“What?” Eldred looked up, surprised the Mexican had spoken. His accent was thick.
He sneered at Eldred. “When you get out, you’re going to mail things to me. I’m gonna give you a list.”
“Why would I do that?”
“Because if you don’t, I’m going to cut you in your sleep before you ever get to go.” He drew his thumb across his throat in a menacing gesture.
Eldred recognized a real threat and despite the seriousness of the threat, he couldn’t help himself from reacting. “So suppose I go tell the guard you just said that? You’ll get solitary for a month for that.”
“Then maybe I should do it right now.” The Mexican sneered again.
Eldred could hear a metallic tapping on the table from underneath. He leaned over and could see the man holding a small, jagged-looking blade in his hand, tapping the table. He sat back up and stared at the man with a bit of trepidation which soon turned into a smile.
The threatening man seemed to get angry. “Why are you smiling at me?”
Eldred just sat there smiling.
“I asked you why you are smiling at me.” He let a string of Spanish fly, mixed with spittle, that most around them were sure was a whole boat load of profanity. The guards didn’t react as they didn’t speak Spanish and had no idea what was said. They just stood and watched.
Eldred nodded his head, “yes.”
“Yes what? You gonna do what I tole you?”
“No.”
“No! Then why you say yes?”
“I said yes to the man behind you.”
Alarm entered the Mexican’s face and before he could turn completely around, Ahab landed a haymaker right hook into his right ear from behind. The angry man folded up on himself, dropping his knife, which Ahab quickly scooped up and hid in the band of his pants.
“Woohoo that felt good!” Ahab yelled as whistles blew and three guards pounced on him. He didn’t resist but still took a few blows from the guards.
Eldred just sat there.
“He had a knife boss! He had a knife! I was protecting that man.”
The guard jerked Ahab around, “What knife?”
“I scooped it up boss. I stuck it in my waist.” The guard quickly found the knife and asked Eldred. “Is that what happened?”
“Yes boss. That’s what happened. The Mex was threatening me with it.”
The guards all knew the possibility of Eldred being released and knew to watch out for violent actions against him. “Alright then, next time, don’t hide it in your pants.”
He gave Ahab a shake and helped the other two officers drag off the limp form of the man lying beside the table. Everyone else in the cafeteria sat wide eyed and silent. They knew the unconscious man would wake up in a dark cell and spend more than a month in it. He would get out though, and Hardin would be in trouble.
“What are you looking at?” Ahab yelled at them all. They slowly turned back to their meals, intentionally going slow to not seem intimidated by Ahab, which they weren’t. Ahab knew he was valuable to all of them at some point because of his legal knowledge. He was reasonably secure in knowing that none of them would bother him.
Ahab sat back down with Eldred, “Boy-O that felt good! That one had been pestering me for months and trying those threats on me. He’s a no-good rapist.” No matter what your crime and your conviction, rapists and people who hurt children were especially heinous in the convict population. They were ordinarily open game for the others who took great joy in watching them suffer.
Eldred stared at him.
Ahab knew what he was thinking – that punch in the mouth that Hardin had given him.
“I ain’t sore about that punch in the mouth. Matter of fact that made us even from where I slugged you earlier. Now, however, you really owe me one because I just saved your bacon.”
“So what do you want?” Eldred didn’t trust him at all.
“Same deal, I want you to take care of some things on the outside for me when you get out.”
“I don’t know about that.”
“It won’t be nothing like he wanted. I don’t have family outside and need some stuff filed and sent around. You could do it and not be in trouble. Call it my legal and Mexican defense fee.”
“I can do that.”
“Good!” He sat down “So what have you heard from the court?”
“Nary a word, not since I got that letter that I showed you. They ain’t said a word to me.”
“That’s been almost two months! I told you they’re slow.”
“You don’t think it got lost somewhere do you?”
“That’s possible. I would worry that it got lost on purpose. Yours is an old case and will mean a lot of work for someone. If they give you a new trial, they’ll have to track down witnesses, if they are still alive. They’ll have to pull out old evidence, if it still exists after twenty years. They’ll have to have transcripts.”
Eldred shook his head. “They don’t have em. They never did.”
“That’s right! I forgot! Usually that’s a really bad thing, but this time it may be to your advantage. In essence there is no record of your trial other than maybe the Judges notes and the pleadings and filings and convictions.”
Eldred looked completely confused.
“They aren’t just going to let you go, Hardin. They will have to offer you a new trial and try to correct the problems you complained about in your Habeas Corpus. You’re still guilty of your crime until the new trial says you aren’t.”
Eldred looked downtrodden.
Ahab leaned over and gave him a smart slap on the back, “Relax! Like I said, they don’t have enough information about your old trial. How can they try you twenty years later and prove beyond a shadow of a doubt that you did it? You’re as good as home free.”
“That’s what I thought last time. So did my lawyer.”
“Times have changed. Times have changed. People actually care about your civil rights now and people are walking the streets all over the south and in the north too, shouting about your rights. You’ll get your trial and if nothing else you’ll get out of these walls for a few weeks while you have
that trial.”
“If you say so; I ain’t gonna hold my breath for it.”
• • • •
“Hey Burl we got another one from the prison!” The secretary shouted at the Court Clerk Burl Dinkins. “Want me to put in the ‘I’ll read it later’ pile?”
“How many does that make this week?” He shouted back. “I don’t want them to pile up too much.”
Burl took his job very seriously but when you’re the Court Clerk of a large metropolitan criminal court, you can’t just jump through every flaming hoop that a prisoner offers to you. They are convicts after all and don’t have anything better to do with their time than to send out useless motions and requests for orders to an office as obviously over-worked as his.
“Is it one of the regulars? Let me guess, it’s Hazleton or Bonds, isn’t it?”
“No!” She cackled, probably losing her chewing gum to the floor. “It’s some poor Joe named Hardin,” her sarcasm dripping on poor.
“I’d better read it now then while I have a mind to. I’ll do the others tomorrow after court lets out.”
She brings the letter to him, “here ya go. I’m gonna go outside and smoke.”
“Filthy habit; it’s going to rot your head off of your shoulders one day.”
She coughs with bizarre timing and appears to taste what was coughed up; thinking silently that maybe the old man was right.
“Alright let me see here. This shouldn’t take too awfully long.” He opened the letter with the blade of a knife that he’d taken off of a man in the foyer of the court room one day who was planning to kill a judge with it. It was the one time he’d ever beat the Bailiff to the punch, and the last. He was sore for a month after that scuffle.
“Well he has somewhat decent penmanship.” He read murmuring to himself, his lips moving the whole time. It was an annoying habit his secretary teased him about. “Hmmm, looks like you filed an appropriate Writ of Habeas Corpus but haven’t had continued process on it yet.”
He went to his ledger and found the name where it was sent forward from his office several months earlier. “The fault isn’t here my friend, I did my job already. No need to file the additional motion you’re asking about.”
He leaned to look at the open door. “Hey Cybil, you out there?” he shouted looking for the secretary. “She’s still out smoking and gossiping with the other gals out back. I’ll just do it myself.”
He lifted the receiver of the telephone and connected with the operator. “This is the Court Clerk’s office. Please connect me with the State Supreme Court Clerk’s office. Thank you, yes I’ll wait.”
He waited for a few moments and someone came on the line. “This is Burl Dinkins calling for the Clerk.” He paused, “Yes, thank you.” He responded to a query.
Someone else came on the line. “Good morning Robin, this is Burl. Look, I think I have one for you that needs some legs under it.” He listened for a moment. “Yes, it’s in your office already, here’s the number…”
• • • •
“Good night it’s cold out here! Why in the world do you want to talk to me outside in this weather?” Ahab asked of Eldred, huddled against the wall of the yard where sunshine was just shining through the wintery clouds. He pulled the collar of his coat tight around his neck and shoved his hands deep in his pockets.
“Here read this.” He handed Ahab a folded envelope.
Ahab took a tentative step back when he took it. “Don’t swing any punches now!”
“I won’t. That was just one time.”
Ahab unfolded the letter. “Well I’ll be! Do you know what this is?” He jumped up and down which was comical to watch for a man his size.
“Sort of but I need help understanding all of it.”
“According to this, on January 20, 1966, you’re going to be appointed an attorney to represent you in…oh my goodness…local court!”
He jumped up and down again and then quickly settled to Earth. “Hey wait, that’s today! This is dated three days ago.”
“Yep.”
“All you can say is yep? Aren’t you excited? You’re getting a new trial. It says so right here!” He waved the letter around wildly.
“Yep.”
• • • •
“Who do we have who can do some pro-bono work on the list?” The Judge asked of his assistant. “Looks like the Supreme Court is referring a really old case back to us to retry.”
“How old?” She asked, looking skeptically at him.
“Wow. This one is from 1944. Is there anyone around here who was working twenty years ago?”
“I believe Hamblin was here back then.”
“The Clerk, really? Get him on the phone and have him come up here.”
“Right away.”
• • • •
“You wanted to see me Judge?” The old Clerk asked as he entered the empty court room.
“Yes, come and talk to me. I’m trying to find out about an old case that we had way back in 1944. It’s the Hardin case.”
“Hardin, Hardin.” He said the name a few times, rolling it around on his tongue and in his mind. “Yes I believe I remember that one. A young fellow murdered a doctor.”
“You’re probably right.”
“He got the death penalty didn’t he?”
“No that was commuted at trial and he was given life.”
“I remember! That was the ninety-nine year sentence!” He turned grave. “Why is that coming back up now?”
“It looks like we’re going to try that case again. Someone somewhere may have made some mistakes and the Supreme Court wants to make sure that we didn’t.”
• • • •
“So it is by order by the Chief Justice of the Supreme Court that the matter of Eldred Hardin versus Warden Joseph Breer in this cause is assigned to this court for hearing and it further appears that the Petitioner is an indigent person and is unable to employ counsel and that he is entitled to counsel.”
“It is therefore ordered by the court that…uh…” the Judge leans over quietly to his assistant. “Who was that?”
“Mr. Leonard, your Honor.”
“Yes, that the honorable W.P. Leonard, of the local Bar be and is appointed counsel to represent the petitioner in the stated cause.”
He looks through his calendar. “It is further ordered that we will set this cause for hearing at a date, as yet undetermined, until which time we will give Mr. Leonard adequate opportunity to consult with the petitioner and prepare for hearing.” The Judge taps his gavel on the bench, more out of habit than anything as there were only four people, counting himself and his assistant, in the court room at the time. They were clearing some docket items before the current trial resumed after lunch.
“Please make sure that Mr. Leonard and his new client are provided notice of this and send Mr. Leonard my regards.”
The assistant looked at him silently as she nodded her head in understanding. “I wonder what Leonard ever did to him?” She thought.
• • • •
“So what did you do to that Judge to get assigned to that case?” I asked curious about what he could have done to incur the wrath of a Judge.
“I don’t have any idea. To this day, I never knew why he appointed me that man’s counsel. I would like to think it was because he knew I would give him the most effective representation.”
“Do you really think so?”
“No,” he admitted defeated. “I think he believed I’d screw it up and then Hardin would go back to prison for the remaining seventy-eight years. Judges don’t like to have their courts reviewed or under review.”
“Was it the same Judge?”
; “No but it was the same court. They are territorial even if the mess wasn’t their own. They, er, we stick together.”
“That’s right! I forgot you were a Judge too.”
“For a little while at least, it wasn’t what I expected.”
“So what did you do about being appointed?”
“Well, at first I got mad because I can’t make any money taking freebie cases like that one. Then I got drunk because I got mad.” He saw the look on my face.
“I don’t drink anymore and even then I didn’t drink much.”
He again saw an unbelieving look on my face.
“What about the flask you carry?” I asked, actually it was more like a challenge.
“This old thing?” He pulled it out of his pocket and threw it to me. “Go ahead and take a swig.”
He stared at me defiantly.
Not wanting to be daunted by this I unscrewed the cap, held my breath, and tipped it back. What oozed down my throat wasn’t scalding liquor like I expected but a silky-sweet, very thick liquid. I gagged on it.
“What the…”
“It’s my own creation. I cut Honey with hot tea and stir it all together until it’s just barely a liquid.”
I looked astounded.
“To tell you the truth, I hate black coffee. It’s just too aggressive for me. I won’t tell anyone though. It would soften my image. This mix makes it sweeter and easier to drink.”
“I thought this whole time you were mixing in whiskey and then not sharing with me.”
“Nope, I was being selfish of my mix. I don’t usually keep a lot of it. Being in my pocket keeps it warm.”
I try not to imagine it pressed against his elderly leg, staying warm, after I just took a drink of it. Too late, I was disgusted.
“You look like you just swallowed a fly,” He laughed. “Now back to the trial.”
I wiped my watering eyes and tried to be more attentive.
“The first thing I did was to gather as many of the court documents I could get and study up on the case. There weren’t very many and they weren’t very much help. Back then, there really wasn’t an archivist who could hold it all together in an orderly fashion for people like me to research. Now, they are much more efficient and hard working. It would have been much easier if they were back then too.”
“Did you find what you needed?”
“No, actually, I did not.”
“What was missing?”
“In a word – everything!”
“What was missing that you needed?” I was taking copious notes at this point.
“There wasn’t a court transcript. Can you believe they’d try a Capital Case and not have a court reporter working? Apparently the State didn’t need one and the Defense didn’t want to or couldn’t pay for one. Now, twenty years later, I had nothing to go by. I had to piece everything together as I could.”
“Then what did you do?”
“Once I pretty much understood what had happened, I went to visit Hardin for the first time. It was at the Prison then.”
“So when does the book come about?”
“I’ll get to that soon enough.”
• • • •
“Spread your arms and your feet.” The guard instructed him as he prepared to enter the visitor’s area of the prison. “What’s in the brief case?”
“Legal documents protected by confidentiality and attorney-client privilege.”
“Don’t worry, I didn’t intend to read them. I just wanted to make sure you don’t have a tommy-gun hidden away in there.”
He continued to pat down the lawyer, assuring no weapons were in his possession. “You’re familiar with the rules, right?”
“I am.”
“Ok we’re going to take you into a room where you can meet with your convict. You’ll go in first and once you’re settled, we’ll go have him brought up.”
“I understand. I’ll probably be doing this quite a bit.”
“Right. Once we bring him in, we’ll handcuff him to the bar on the table. Do not touch him and do not hand him anything other than papers or a writing pen. Make sure of that. We will be watching through the window from time to time.”
“I understand.”
The guard turned to leave. “Make yourself comfortable. It’ll be about thirty minutes before we can get him since this was unscheduled.”
“I’ll make an appointment next time.”
“It would be much appreciated.”
After he left the room, the attorney stood up and stretched his arms over his head. He walked around the small room a few times, obviously bored, and tested the door handle a few times. It was locked. He was effectively a prisoner now. He wished that he’d brought something with him like a newspaper to occupy his time. He looked around and eventually looked into the waste basket. In the bottom, lying face down, was a small hip pocket book.
Not considering the implications of germs or other vile things in the bottom of a waste basket, he picked it up. It was a relatively new copy of To Kill a Mockingbird by Harper Lee. Someone must have gotten upset with it or bored of it and tossed it out. He’d heard of the story and he heard of a movie about it, but had seen neither. He was more of a John Wayne fan instead of Gregory Peck. With a shrug he returned to his seat and began to read.
He didn’t realize how much time had passed before there was a commotion at the door and the guard was visible through the window. He quickly dog-eared the top of page 34 and put it in his brief case to finish later. Where had the time gone?
The guard led Harding into the room and cuffed him to the table in front of his new attorney. He should have looked excited but instead looked sleepy and bored.
“He’s all yours. Just knock on the door when you’re ready to end this. We’ll let you out and then come back for him. If there are any problems just shout, we’ll be right outside.” He absently tapped the baton hanging from his belt.
“I’m sure we’ll be fine.” The guards backed out of the room and closed the door, locking it behind themselves. “They must use those batons a lot,” he thought. “I should ask about that at some point.”
Eldred was sitting as he didn’t have a choice, that or lean over the table. The chains on his wrists holding him to the bar didn’t leave a lot of leeway for movement. He reached over to shake his hand and a rapping sounded on the glass. The Guard was shaking his head in a negative gesture.
“Whoops, I forgot,” said the lawyer giving an apologetic gesture in return. The guard just smiled crookedly, probably having to do the same thing several times a day.
“Are you Eldred Hardin?”
“That’s my name. Are you my lawyer who’s gonna get me out of jail?”
“I am your appointed counsel and it remains to be seen if you will get out.”
“Remains to what?”
“We don’t know if you’ll get out yet or not.”
“Oh.”
“So here’s what I have. You confessed to killing a man back in 1944, you went to trial, you had a lawyer, you were convicted and here you are.”
“That’s about it.”
“But now you say that you didn’t have effective counsel, that your rights were violated, and that you were sick enough that you shouldn’t have gone to trial.”
“That’s about it.”
“So my question is why did you wait twenty years to do this?”
“I seen it in a movie. This feller was on trial for his life, like I was and the jury was all white. The lawyer working for him said it was wrong because it was all white. My lawyer here in prison said my jury was against my rights because it was all white.”<
br />
“You have a lawyer here in prison? Why am I here?”
“He ain’t a real lawyer. He used to be.”
“I see. He’s a convict too.”
Purely out of curiosity he asked, “What was the movie you were watching to come up with this?”
“Sure enough, he’s a con too. The movie was something about how to kill a cat bird.”
“How to kill a cat bird; that’s a strange movie title,” then it hit him. “Do you mean To Kill a Mockingbird?”
“Yeah, that’s it. I’m Tom Robinson when I’m not making cooked corn for everyone.”
“Are you telling me that’s your name now?”
“Well no! That’s... he’s…well, he’s just like me. I don’t know how to rightly explain it.”
“Does anyone else know about you and this movie?”
“Yeah, a lot of people.”
“I see, I’ve been set up for a joke,” he thought about the book in the trash.
“Huh?”
“Nothing.” He elected not to mention the book but would read it anyway. He wanted to know how this man associated himself with a character in it. The next time the guard walked by and looked in, he received a jaunty wink from the attorney earning an odd expression from the guard.
Reeling things back in to the present and “real” reality, “I’ve read over your claims so on top of all of this, you say that your Jury was inappropriate and against your rights?”
“There wasn’t a single black man on it.”
“Maybe they weren’t selected. Juries are meant to be random, you know.”
“No, I was at selection! There weren’t no black men!” Eldred tried to stand out of anger but he forgot he was chained to the table, making a loud clattering racket and jerking him back down.
“Ok calm down, I’m not your enemy. I’m going to be asking you a lot of questions during this process and you need to remember I’m not here to hurt you. You’re already sentenced to ninety-nine years. You’ve got nothing to lose and plenty of time to listen.” The guard looked through the window and was waved away with a smile.
“Alright, I’m sorry.”
“Tell me about the killing Eldred. Don’t leave anything out.”
Hardin started to protest.
“Ok then tell me about the alleged killing. Don’t lie to me. You can’t ever lie to me, no matter what it’s about. If I ever catch you lying to me, I can guarantee you won’t get released from this place.”
• • • •
“I thought that book was something that you’d picked up in a book store or was given to you by someone as gift.”
“Heavens no, I never read anything just for pleasure. I have better things to do with my time. I picked that book out of the trash purely out of boredom in a prison interview room. To this very day, I wonder if it was put there by Divine purpose or was purely accidental.”
He picked it up off of his desk from where he’d placed it the day before after I returned it to him. “It’s served me very well over the years and I dare say that I’ve memorized most of it. It keeps me grounded, even if it is purely fiction. It’s a goal of sorts.”
“A goal?”
“Yes, one where I stand up in the face of something that is unjust, with the innocent and the righteous standing behind me, and I shake my fist, daring them to come beyond me, never mind the consequences.”
“Just like Don Quixote!” I kept coming back to thoughts of this legendary Conquistador. He battled an inanimate enemy that could never be defeated. “But what about that quote written in the front cover?”
He opened the book reading aloud from the inscription, “Fascination, Bravado and passion will only win just so much. Justice, Compassion and Courage will finish the battle.”
“Did you write that?”
“No, I did not. That was probably written by some grandmother for a prisoner so he wouldn’t feel so downtrodden in prison. More than likely she thought him innocent which may be how it ended up in the trash.”
I was crestfallen and he noticed it.
“Do you have a problem with that?”
“No, I…” I stammered, “I thought it was a charge for you to do what is right and just from someone who was wiser or more experienced than you, maybe a mentor or something. I thought the book may have been a memento of something like that.”
“No, I found it in the trash. There was nothing romantic about it. Sorry.” He paused thoughtfully. “I don’t believe in accidents so it was placed there just for me to find that day, before I met Eldred. I believe that. There are only two books which I admit changed my life, the first is the Bible and the second is this worn-out old thing.” He held it up for emphasis and then laid it down reverently.
“Why didn’t you ever buy a new one?”
“Why would I? The words haven’t changed.”
I had to laugh at that. He had me there. Just because it was well worn didn’t mean it wasn’t still the same book.
“So did Hardin tell you how innocent he was?”
“Quite the contrary, it was just the opposite. He told me the whole story from start to finish, just as I’ve told you. He didn’t leave out any details which surprised me that he had that kind of recall after so many long years and especially considering his mental deficiency.”
“Did you think he was crazy?”
“Crazier than an outhouse rat! That boy told me he had people living inside of him at times.”
“So you still wanted to get him out of prison?”
“Not at first. Not after the first meeting. I was glad that he told me the truth about everything but it convinced me he didn’t deserve to be free. He did kill that Doctor. There was no question about it.”
“But what about the not guilty by reason of insanity tactic?”
“We talked about that and he told me how his first attorney approached that. Today in court that is what we call an affirmative defense. It means the defense has to actually prove their case, so they would have to prove that he was truly insane.”
“Isn’t that what you did?”
“Not me. I knew the boy was loco. They didn’t appoint me to retry the case based on that. If they failed to offer proof toward their defense, then that’s on the attorney not the court and certainly not grounds for the Supreme Court to grant a new trial. I was appointed to retry the case based on its Constitutional merits.”
“So it didn’t matter he was crazy?”
“Yes and no. It mattered to me greatly because he didn’t understand, in my mind, how the murder was wrong. After twenty years he was still fixated on the robbery charges, which were dropped after the ninety-nine year murder conviction. He was so stuck in the mentality that the only thing he did wrong was steal that nothing else was looked at as more wrong than that. Does that make sense to you?”
“Yes I suppose it does. He was probably raised that way.”
“I met his parents when I was a child and they were hard people. I’m sure if he’d been caught stealing as a child, his mother would have beaten him to a bloody mess. His father probably would have killed him outright and buried him in the garden. They were good people.”
“But the value of life…”
“The value of life was different in those days. Times were hard, and they were especially hard for blacks. Once they were freed after the Civil War, very few people were overjoyed in trying to make their lives any easier, so they struggled for better than 100 years to try to break even with the white folks. Fortunately, now days, we don’t hold to that and people are supposed to be treated like people, regardless of their color. It’s what this country stands for.”
“You strayed. You
were talking about the value of life.”
“Oh yes, as I was saying. Because the value of life was so different in those days, it wasn’t unheard of for people to take a life if it was justified. It was easier to justify back then than it is now and the definition of justice was quite different as well.”
“I’m with you.” I say as I scribble furiously on my note pad.
“So after you met him, what did you do?”
“I tried to get the Judge to remove me from the case. I was very forthright and I had no desire to take part in freeing a guilty man.”
“Apparently the Judge didn’t take you from the case.”
“What I got was a reprimand and a lecture about how everyone, no matter who they are, is entitled to effective counsel and representation in the U.S. Justice system. He still didn’t tell me why I was appointed to this case, but I did begin to believe it wasn’t as much an initiation for me as it was a life-vest for the local court.”
“What do you mean a life vest?”
“Well, speaking now in hindsight and the Judge then probably saw it the same way; some significant procedural errors were made. Today we call them Violating Constitutional Rights that will make you end up in Federal Court down on Broadway in Nashville with your hat in your hand praying for mercy.”
“The Judge was looking for a way to ease the conscience of the court? Is that it?”
The old lawyer laughed. “I’ve never thought of it that way, but you could be right.”
I made sure to write that down as he continued.
“I hoped at the time that he assigned me to the case because despite my hesitation, he knew I’d do what was right. If he stayed in Jail it was because I was able to show beyond a shadow of a doubt that he was guilty and there was no improper procedure. If he was released it was because I was his champion and justice would be done at the request of the court and previous wrongs thwarted whether they were intentional or not.”
“So what did you do next?”
“The wheels of justice move rather slowly but much like a locomotive, once they get going, they are hard pressed to be stopped. I tried to give a little energy to the case and started filing motions based on the facts I had at hand. I didn’t sugar coat anything and used only what we knew to be hard proven fact. The murder was essentially irrelevant.”
“Irrelevant? You lost me again. That’s why he was convicted. How is it irrelevant?”
“It’s the procedure! The court has rules and obligations that it must uphold. It’s not that it may or chooses to uphold. It must! Hardin confessed to the murder and the court and the jury accepted the confession as legitimate. He did it in front of reliable witnesses who were without question, honest and of high integrity, especially that Sheriff. He killed the Doctor.”
“So he was going to be released on a technicality.”
“If you want to simplify something so important to our way of life, then yes. The Court failed to appropriately select a jury of his peers. The key word there is his peers, not the courts peers, but his, a simple, country gone city, young, black man. None of those jurors met that bill and none that they chose from met that either. He didn’t have a peer anywhere in that court room, except maybe in the audience watching and I bet those were few.”
“I understand, but he still committed the crime. He was guilty.”
“Yes he was and that is what has tormented me for so many years. I know that I did what was right because our system of justice, flawed as it is, is the best in the world and well below the hand of God the Almighty. If we don’t uphold our own laws, as the law bearers and keepers, how can we ask that of our citizens?”
“That idea I can understand. So he wasn’t released because of anything he did. He didn’t earn his release at all. He was released because of something someone else didn’t do.”
“There was a line in that book that toppled me over the balance in favor of providing that effective counsel to a guilty man.”
“Which line was that?”
With a theatrical flourish the old lawyer stood in his suspenders, hooked his thumbs in his pants and lifted his chin. “This is my Winston Churchill pose.”
I shrugged and he continued. “In the name of God, do your duty!” he shouted.
We heard feet coming toward the door asking, “Are you ok in there?”
“We’re fine!” He shouted, “Just enforcing something important.”
Footsteps went away from the door.
“So again, he was released on a very important technicality.”
“You’re getting way ahead of me but at least you acknowledge now that it was important. I haven’t even talked about him being released.” He sat back down in his chair with an “oof.”
“There was a lot of work and jockeying to take place before those words were even considered. As I said, I wasn’t convinced I could get him released or that it was even the right thing to do. I took that effective counsel lecture to heart but that night, I stayed up and read that book.”
“Is that why you had me read it in one night?”
“Yes. I wanted you to learn it just the same way I did.”
“That seems fair, although at the time I thought you were senile.”
“Don’t rule that out completely. I may still be. Just for now, think about that book.”
“Ok, so then what?”
“Then I went to see Eldred again, and I tell you, in those days I hated riding that bus to Nashville. Once I got there, I had to stay all day to get the return bus back home. It consumed the entire day.”
“You didn’t own a car?”
“No, at that time, I wasn’t making a lot of money, ala this pro bono case. I still hadn’t established my firm and future partnership either. I was a young lawyer with a degree and a brief case and access to law libraries around the county in other law offices.”
“What did you do?”
“The first thing I had to do was wait for the response to the writ of Habeas Corpus that was filed against the warden of the prison, who is called the Respondent. He had a set period of time to respond to the allegations in the writ or the writ would be granted on its face as accurate. The calendar can be your friend at times but it can also be your worst enemy.”
I wrote and wrote, trying to keep up with him. He would pause at times and give me a chance to catch up in my notes.
“In February of 1966 we got the reply and as we expected, the Warden, or rather the attorney for the Department of Corrections denied all of the allegations and prayed for the court to keep Hardin in his custody to finish out his sentence.”
“Why did he pray to the court?”
“It’s not as if he got on his knees and offered a religious prayer. It’s a term left over from the Old English Common Law that essentially means a hopeful or deserved request.”
“Gotcha.”
“So once we had the Warden’s response denying everything, we began to prepare to go to trial and I wasted many days in Nashville for one hour meetings with Hardin, which was all the prison would permit in a day. Now it’s different.”
“That seems terribly inconvenient. Since you and the court were in one city and the prisoner was in another.”
“It was. In April, I convinced the court to order Hardin released back to the local jail so he could participate in a hearing. They let him come to the jail just a few days beforehand so at least those few days we could truly prepare. So the dance began.”
I laughed some at the term he used, “the dance.” I had heard that used in so many different situations that were adversarial but a dance is something that is supposed to be friendly. It’s just one of those odd things I find funny.
“We went to the hearing wher
e I was able to present an amended petition to the court and spelled out specifically the Constitutional violations that my client was alleging. I worked hard on it for a few days using what little information I had and it flew. The Judge agreed with the amendment and allowed us to go forward with it. They let Hardin remain for a few days but soon ordered him back to the prison. It was fine with me. I didn’t really need his involvement at this point other than going every week or so to update him on the absolute nothing that I heard from anyone else – until the end of the month, I got a reply I wasn’t expecting from the District Attorney General. “
“What was that?” I could tell he was letting a bit of drama build up before he told me.
“They denied every single one of our claims,” He paused. “The District Attorney General was able to artfully and rightfully undo every single claim we had made – except for the last one.”
“What was the last one?”
“That was the one we had hoped would hold water. It alleged the improper jury selection.”
“So he agreed?”
“Not only did he agree, he provided the court the case law supporting our claim that the Jury was improper.”
“So he was released then?”
“Not so fast Speedy! There is still procedure that had to be followed, which got us in this bind to start with. As I was saying about the wheels of justice turning quickly like a runaway locomotive and nothing can stop them? Well a Judge can slam on those brakes in a hurry and they did.”
“It got to be the end of May and I still hadn’t heard anything else for more than a month. I took a few other cases and didn’t go see Hardin but twice. What good would it do? I got a letter from him and he was pleading his case to me, his own lawyer. That’s when I knew he was crazy. He was back to thinking he could convince me to release him from prison when I didn’t have that authority at all. He was quite literally begging.”
Turnbull: Based on a True Story Page 9
