A Time for Mercy

by John Grisham

  * * *

  —

  THE FOLLOWING DAY, Libby Provine of the Kids Advocacy Foundation arrived from Washington and brought with her an ace psychiatrist from Baylor University. Dr. Thane Sedgwick worked in the field of adolescent criminal behavior and had a résumé an inch thick. Credentials aside, he grew up in rural Texas, near Lufkin, and spoke with a twangy drawl that would never draw attention in north Mississippi. His task was to first spend a few hours with Drew, then prepare a profile. At trial, he would be held in the bullpen until the sentencing phase and brought to the stand in the likely event Drew was found guilty and the defense was fighting for his life.

  According to his résumé, Dr. Sedgwick had testified in twenty trials over the past thirty years, always in last-ditch efforts to keep the client off death row. Jake liked him immediately. He was jovial, even comical, laid-back, and his accent was a thing of beauty. Jake marveled at the fact that somehow, while picking up four college degrees and spending a long career in academia, the Texas drawl had not been flattened out.

  With Portia tagging along, they went to the jail and met Drew in what was now his classroom. After thirty minutes of small talk, Jake, Portia, and Libby left the room and Dr. Sedgwick set about his work.

  At 2:00 p.m., they walked across the street and entered the main courtroom. Lowell Dyer and his assistant were already there with papers strewn over the State’s table. Jake introduced Libby to the other lawyers. Dyer was cordial, though he had resisted Jake’s petition to allow Libby to assist him at trial. It had been a silly objection, in Jake’s opinion, because Judge Noose, along with every other trial judge in the state, permitted out-of-state counsel on a onetime basis when properly associated with a local lawyer.

  As they chatted, Jake checked out the courtroom and was surprised at the number of spectators. One group, sitting behind the prosecution, was the Kofer clan and a number of friends. Jake recognized Earl Kofer from a newspaper photo Dumas Lee had run not long after the murder. Next to him was a lady who looked as though she had been crying for a year. No doubt it was the mother, Janet Kofer.

  Earl glared at him with pure hatred, and Jake pretended not to notice them. But he glanced again, and again, because he wanted to register the faces of the Kofer boys and cousins.

  Judge Noose took the bench at 2:30 and motioned for everyone to keep their seats. He cleared his throat, pulled his mike closer, and announced, “We are here to discuss several motions, but first a pleasant matter. Mr. Brigance, I believe you have an introduction.”

  Jake stood and said, “Yes, Your Honor, Ms. Libby Provine of the Kids Advocacy Foundation will be joining the defense efforts. She is licensed to D.C., Virginia, and Maryland.”

  Libby stood with a smile and nodded at His Honor, who said, “Welcome to the fray, Ms. Provine. I’ve reviewed your application and résumé, and I’m satisfied that you are more than qualified to sit in the second chair.”

  “Thank you, Your Honor.” She sat down, and Noose picked up some papers. “Let’s get right into the defense’s motion for a change of venue. Mr. Brigance.”

  Jake moved to the podium and addressed the judge. “Yes, Your Honor, in our motion I included affidavits from several people, all of the opinion that it will be difficult if not impossible to find twelve people in this county who are impartial. Four are local lawyers, all well known to the court. One is the former mayor of the town of Karaway. One is the minister of the Methodist church here in town. One is a retired school superintendent down in Lake Village. One is a farmer in the Box Hill community. The other is a community organizer.”

  “I’ve read the affidavits,” Noose said, rather curtly.

  Of the non-lawyers, all were former clients Jake had leaned on heavily, and all agreed to the affidavits with the stipulation that they would not have to appear in court. Many of the people Jake had approached had flatly refused to get involved, and he couldn’t blame them. There was a great reluctance to do anything that might be perceived as helping the defense.

  The affidavits all read the same: The witnesses had lived in the county a long time, knew a lot of people, knew a lot about the case, had discussed it with family and friends, most of whom had already formed opinions, and doubted that a fair, impartial, and uninformed jury could be found in Ford County.

  “Do you plan to call these people to the stand today?” Noose asked.

  “No sir. Their affidavits are straightforward and state everything they might say in court.”

  “I’ve also read your rather lengthy brief. Anything to add to it?”

  “No sir. It’s all there.”

  Noose, like Judge Atlee, detested wasting time with lawyers who felt the need to repeat during arguments everything they had submitted in writing. Jake knew better than to cover the same territory. The brief was a thirty-page masterpiece Portia had worked on for weeks. In it, she traced the history of venue changes not only in Mississippi but also in more progressive states. Moving a case rarely happened, and she argued that it wasn’t done enough, resulting in trials that were not fair. However, the state supreme court almost never second-guessed trial judges.

  Lowell Dyer felt otherwise. In response to Jake’s motion, he had submitted his own stack of affidavits, eighteen in all, and they included a veritable roll call of hardcore law-and-order types whose tone was more in favor of a guilty verdict than an impartial jury. His six-page brief stuck to precedents and included nothing creative. The law was on his side and he made it plain.

  “Do you plan to call any witnesses, Mr. Dyer?” Noose asked.

  “Only if the defense does.”

  “It’s not necessary. I’ll take the matter under advisement and issue a ruling in the near future. Let’s move on to the next motion, Mr. Brigance.”

  Dyer took his seat as Jake returned to the podium. “Your Honor, we have moved to dismiss the capital murder indictment on the grounds that it violates the Eighth Amendment’s prohibition against cruel and unusual punishment. Until two years ago, this indictment would not be possible because Stuart Kofer was not killed in the line of duty. As you know, in 1988 our esteemed legislature, in a misguided effort to get even tougher on crime and to expedite more executions, passed the Death Penalty Enhancement Act. Until then, the murder of a law enforcement official was a capital offense only if he or she was on duty. Thirty-six states have the death penalty, and in thirty-four of them the officer must be on duty to allow such a charge. Mississippi, in an effort to imitate Texas and increase executions, decided to broaden the scope of death penalty crimes. Not only is murder required, but murder plus something. Murder plus rape, or robbery, or kidnapping. Murder of a child. Murder for hire. And now, under this new and misguided statute, murder of an officer off duty. An officer not on duty has the same standing as every other citizen. To expand, like Mississippi has now done, violates the Eighth Amendment.”

  “But the U.S. Supreme Court has yet to rule on this,” Noose said.

  “True, but a case like this could well lead the Court to strike down the new law.”

  “I’m not sure I’m in a position to strike it down, Mr. Brigance.”

  “I understand this, Your Honor, but you can certainly see that it is an unfair law and you have the power to quash the indictment on these grounds. The State will then be required to re-indict on a lesser charge.”

  “Mr. Dyer?”

  Lowell stood at his table and said, “The law is the law and it’s on the books, Your Honor. Plain and simple. The legislature has the power to pass whatever it chooses and it’s our responsibility to follow its dictates. Until the law is amended or struck down by a higher court, we have no choice.”

  “You chose the wording of the indictment and the statute you’re prosecuting under,” Jake said. “No one made you indict for capital murder.”

  “It’s capital, Mr. Brigance. Cold-blooded murder.”

  “The t
erm ‘cold-blooded murder’ appears nowhere in the statute, Mr. Dyer. There’s no need to sensationalize it.”

  “Gentlemen,” Noose said loudly. “I’ve read the briefs on this issue and I’m not inclined to quash the indictment. It follows the statute, whether we agree with it or not. Motion denied.”

  Jake was not surprised. But to argue this point on appeal, after a conviction, he was required to raise it now. He had long since accepted the reality that he would be litigating appeals for Drew for years to come, and much of the groundwork had to be laid before the trial. The statute’s validity had not been tested before the U.S. Supreme Court and it seemed destined to go there.

  Noose shuffled some papers and said to Jake, “What’s next?”

  Portia handed Jake a brief and he returned to the podium. “Your Honor, we are asking the court to move the defendant to a juvenile facility until the trial. He is now and has for the past two and a half months been locked up here in the county jail, which is no place for a sixteen-year-old. In a juvenile facility he will at least be housed with other minors and given limited contact. More importantly, he will have access to some level of educational instruction. He is at least two years behind in his schoolwork.”

  “I thought I had approved a private tutor,” Noose said, peering over the reading glasses that were perpetually lodged at the very tip of his long, sloping nose.

  “A few hours a week, Your Honor, and that’s not enough. I know the tutor very well and she says he needs daily instruction. He is barely keeping up and will only fall further behind. I’ve spoken to the director of the facility down in Starkville and he assures me the defendant will be secured and confined. There is no chance of escape.”

  Noose was frowning. He looked at the district attorney and said, “Mr. Dyer.”

  Lowell rose at his table and said, “Your Honor, I’ve checked with the directors of all three juvenile facilities in this state and there’s not a single capital murder defendant in any of them. Our system simply doesn’t work that way. For a crime like this, the defendant is always held in the county where the crime took place. Mr. Gamble will be tried as an adult.”

  Jake said, “Adults are finished with their education, Your Honor. The ones in jail may need more of it, but it’s behind them. That’s not true for this defendant. If he gets sent to Parchman he’ll have access to some level of instruction, though I’m sure it’s inadequate.”

  Dyer said, “And he’ll be held in maximum security. That’s where capital murderers are housed.”

  “He hasn’t been convicted yet. Why not place him with other juveniles and at least give him the chance to be in a classroom? There’s nothing on the books to prevent this. It’s true that these defendants are customarily held in their home counties, but that’s not the law. The court has discretion.”

  “It’s never been done,” Dyer argued. “So why make an exception now?”

  “Gentlemen,” Noose said again, cutting off the debate. “I’m not inclined to move the defendant. He’s charged as an adult and will be tried as one. And he’ll be treated as one. Motion overruled.”

  Again, Jake was not surprised. He fully expected Judge Noose to preside over a fair trial and favor neither side, so asking for favors at this point was a waste of time.

  “What’s next, Mr. Brigance?”

  “That’s all the defense has for now, Your Honor. Mr. Dyer has a motion in limine, and I suggest that we take it up in chambers.”

  Dyer said, “Agreed, Your Honor. It’s of a sensitive nature and should not be discussed in open court, at least not now.”

  “Very well. We will adjourn and reconvene in chambers.”

  Stepping over to his table, Jake couldn’t help but steal a glance at the Kofers. If Earl had a gun, he would have opened fire.

  * * *

  —

  NOOSE REMOVED HIS robe and fell into his throne at the end of the table. Jake, Libby, and Portia sat along one side. Opposite were Lowell Dyer and his assistant, D. R. Musgrove, a veteran prosecutor. The court reporter sat to the side with her stenograph and recorder.

  Noose fired up his pipe without thinking to open a window. He sucked in a mouthful of smoke as he scanned a brief in front of him. He exhaled and said, “This is very troubling.”

  It was Dyer’s motion so he spoke first. “Your Honor, we want to limit some of the testimony at trial. Evidently, this killing took place after a nasty fight between Josie Gamble and Stuart Kofer. We will not call her as a witness but the defense certainly will. Therefore, she will be asked questions about the fight, prior fights, and perhaps other physical abuse by the deceased. This could turn into a real circus as the defense, in effect, puts Stuart Kofer on trial. He will not be around to defend himself. This is simply not fair. The State seeks a ruling by the court, pretrial, that testimony about any alleged physical abuse be severely restricted.”

  Noose was flipping through the motion and supporting brief filed by Dyer, though he had already read it. “Mr. Brigance.”

  Libby cleared her throat and said, “Your Honor, may I?”

  “Of course.”

  “The reputation of the deceased is always fair game, especially in situations like this where violence was in play.” She was precise, with perfect diction, her Scottish brogue conveying authority. “In our brief, we trace the history of this issue in this state for many decades. Rarely has testimony about the deceased’s violent reputation been excluded, especially when the defendant was also the subject of abuse.”

  “The kid was abused?” Noose asked.

  “Yes, but we did not include this in our brief because it would then be public record. On at least four occasions, Mr. Kofer slapped Drew in the face, in addition to threatening him many times. He lived in fear of the man, as did Josie and Kiera.”

  “How extensive was the physical abuse?”

  Libby quickly slid across the table an eight-by-ten color photo of Josie in the hospital with her face bandaged. She continued, “Well, we can start with Josie on the night in question. He slapped her in the face, then knocked her out with a broken jaw that required surgery.”

  Noose gawked at the photo. Dyer frowned at his copy.

  Libby said, “Josie will testify that the beatings were common and were happening with more frequency. She wanted to leave and was threatening to do so but had no place to go. The family, Your Honor, was living in a state of well-earned fear. Drew was being slapped around and threatened. And, Kiera was being sexually abused.”

  “Come on!” Dyer hissed.

  “I didn’t expect you to like it, Mr. Dyer, but it’s the truth and it needs to be discussed at trial.”

  Dyer said angrily, “That’s the problem here, Judge, and this is why I filed a motion to compel testimony from the girl. Jake wouldn’t allow her to answer my questions. I have the right to know what she’ll say at trial.”

  “A motion to compel in a criminal case?” Noose asked.

  “Yes, Judge. It’s only fair. We’re getting ambushed here.”

  Jake loved the word “ambush.” Just wait until you see her belly.

  Noose said, “But if you call her to the stand, she’s your witness. I’m not sure how you can compel the testimony of your own witness.”

  Dyer replied, “I’ll be forced to call her. There were three witnesses at the scene. The mother was unconscious and did not hear the gunshot. It’s unlikely the defendant will testify. That leaves the girl. Now I learn that she was sexually abused. This isn’t fair, Your Honor.”

  “I’m not inclined to grant your motion to compel her to talk now.”

  “Fine, then we won’t call her to the stand.”

  “Then we will,” Jake said.

  Dyer glared at him, fell back into his chair, and crossed his arms over his chest. Defeated. He stewed for a moment as the tension rose, then said, “This just isn’t f
air. You cannot allow this trial to descend into a one-sided slander-fest against a dead police officer.”

  Jake said, “The facts are the facts, Mr. Dyer. We can’t change them.”

  “No, but the court can certainly restrict some of this testimony.”

  “That’s an excellent idea, Mr. Dyer. I’ll take your motion under advisement and rule at trial when I see where things are going. You can renew them at that time and you can certainly object to any testimony.”

  “It’ll be too late,” Dyer said.

  Damned right it will be, Jake thought to himself.

  * * *

  —

  CARLA BAKED A pan of chicken thighs with cherry tomatoes and morel mushrooms, and they ate on the patio after dark. A thunderstorm had moved through and taken most of the humidity with it.

  Avoiding all talk of murder and trials of teenage killers, they tried their best to stick to more pleasant matters. Libby told stories of growing up in Scotland, in a small town near Glasgow. Her father was a well-known barrister and had encouraged her to follow the law. Her mother taught literature at a nearby college and wanted her to become a doctor. An American teacher inspired her to study in the States, and she had never left. As a law student at Georgetown she had sat through a gut-wrenching trial of a seventeen-year-old boy with a low IQ and a heartbreaking history. He had been given life without parole, a death sentence. Enough of that. Her next story was about her first husband, who was now on everybody’s short list to be nominated to the Supreme Court.

  Dr. Thane Sedgwick had spent three hours with Drew in his cell and preferred to talk about something else. They would meet for two more hours in the morning, and Sedgwick would prepare a lengthy profile. Sedgwick was quite the raconteur. His father had been a rancher in rural Texas and he’d spent his childhood in a saddle. His great-grandfather had once shot two cattle rustlers, loaded their bodies into his wagon, and delivered them to the sheriff two hours away. The sheriff thanked him.