Wallace peered over the bench at Harker’s counsel. “Mr. Gifford, it’s your show. I’ve read the petition and the attached declarations. Why don’t you explain to me what you plan to present. I know this hearing is going to be interrupted by my regular calendar of cases, so I would like to have a handle on what it is you want me to focus on.”
Gifford nodded. “Your Honor, thank you. This hearing has been a long time coming for Mr. Harker, twenty-six years in fact. I know the court hears the argument all the time about insufficient evidence and what might have happened if the defense attorney had only brought in evidence that he failed to put before the jury. This isn’t one of those cases.”
Wallace’s head was tilted slightly as he listened. The usual argument was that the jury might have found reasonable doubt if it heard the new evidence the most recent lawyer had found that disputed the prosecution’s case in some way. The other argument was more common: that the trial lawyer had simply overlooked crucial evidence because of incompetence. It didn’t change the argument. It was always that hearing the omitted evidence might have affected the jury concluding the defendant was guilty. It was still different than concluding that the defendant was in fact innocent. Lawyers carefully rationalized as they walked the line on the legal distinction between innocent in the eyes of the law and actually innocent, the thin barrier between the ethics of legal argument and the subtext of society’s morality.
Gifford continued. “The reality is that Mr. Harker is in fact innocent.” The defense lawyer put added emphasis on his assertion of innocence before continuing. “He was convicted of a horrible crime, a murder that he didn’t commit. And I’m going to prove it. I expect the prosecutor is going to say if Mr. Harker didn’t do it, then who did? But I don’t have to show that. All I have to show is that there is substantial evidence that Mr. Harker was the victim of wrongful identification, perjury by a petty criminal, Clarence Foster, and a mistake by a little girl, Christine Farrow, who has come forward after all these years to try and make this right. Why did it happen? Well, I think I know why it happened, and I believe that Mr. William Gage and the man who was his associate, now a judge, Jonathon Cleary, not only let it happen, they made it happen.” He spit the last comment out with a force of conviction that insured everyone understood the nature of the accusation.
Jamison was on his feet trying to speak over the murmuring in the audience reacting to Gifford’s allegations about the district attorney and Justice Cleary. “Your Honor, I object to Mr. Gifford’s inflammatory rhetoric. If he has evidence, then I haven’t seen it, and if this is just an attempt to disparage the reputations of two highly regarded members of the legal community, then it is inappropriate and defense counsel knows that. What Mr. Gifford may or may not believe in his fevered web of conspiracy theories about the justice system is not proof and I request he be admonished right now.”
Jamison didn’t expect much to happen. He knew that the damage was done and that the headline on the news would repeat Gifford’s allegations without the benefit of scrutiny. He could hear the reporters rustling around in the audience, anxious to get the inflammatory claims on the next broadcast or news ribbon on the bottom of whatever game show was on television.
Wallace slammed his gavel down on the bench harder than he realized, the crack of wood against wood silencing the courtroom. “Mr. Gifford, I’m not here to listen to speculation and innuendo. If you have credible evidence relevant to Mr. Harker’s trial, then I’ll hear it. If you are going to posture, then you’re wasting my time. I remind you that I haven’t cultivated a reputation for patience with irrelevant nonsense. I also remind you that Mr. Gage and Justice Cleary are very distinguished members of the legal community and I will not look kindly on splattering them with mud just to further your client’s interests.”
Jamison could sense what was coming. Gifford was going to try to show that Harker was an innocent man railroaded by the system. It was basically what he believed happened to most of his clients—not that they were all innocent in fact, but that the system rolled over them like a freight train. Jamison sat back down, shaking his head.
Gifford persisted. “Your Honor, Mr. Gage and Mr. Cleary were the prosecutors. They had the responsibility—”
Wallace slammed his gavel down again. “Enough, Mr. Gifford. Present your case.”
“We call Michael Jensen.”
Jensen walked through the swinging gate separating the counsel tables from the audience and raised his right hand. He glanced over at Jamison, slightly nodding his head. Wallace’s clerk swore him in and Jensen settled himself in the witness chair, stating his name at the direction of the judge, and waiting for Gifford to begin.
Gifford didn’t waste time on pleasantries. “Detective Jensen, am I correct that you are now retired as a detective with the Tenaya County Sheriff’s Department?”
“Yes.”
“While you were employed as a detective, were you assigned to investigate the murder of Lisa Farrow?”
“Yes.”
“Do you recognize my client, Mr. Harker?”
“Yes.”
“Did you arrest him for the murder of Lisa Farrow?”
“Yes.” Jensen looked around the courtroom and shrugged, implying he didn’t understand what the point was of Gifford’s questions. Anyone who had watched cops testify understood that what he was really signaling with his terse responses was his disgust at being there. It wasn’t lost on Gifford.
“Detective Jensen, you don’t like my client, do you?”
“No, I don’t like murderers and I have no use for men who beat up women or leave children to burn to death. Am I supposed to?”
“No, Detective, I suppose not, but you are assuming Mr. Harker did that, aren’t you?” Jamison shifted uncomfortably in his chair. Gifford was baiting Jensen and Jensen was biting.
“It isn’t an assumption, counselor. I know he did it.”
“And how do you know that, Detective Jensen?” Jamison looked down at his legal tablet. Jensen had walked right into it.
“His fingerprints were at the scene. He was identified by the neighbors as going into the house with another man. The other man identified him and testified that your client started hitting Ms. Farrow. And Christine Farrow identified him.” Jensen leaned back in the witness chair, satisfied that he had made his point.
“There were also other people’s fingerprints at the scene, weren’t there, specifically Richard Sample’s, correct?”
“Yes, but he wasn’t the one who did it.”
“And you know that because Clarence Foster and Christine Farrow identified Mr. Harker, correct?”
“That and the fact that Sample had an alibi.”
“But you initially put out and all-points bulletin, an APB, for Mr. Sample, didn’t you?”
“Yes, but like I said, he didn’t do it.”
“You keep saying that, Detective Jensen.”
“So did twelve jurors, so I’m not alone in my opinion.”
“Isn’t it true that Richard Sample was initially identified by Christine as the one who was in the house, the man who killed her mother?”
“She was confused. That little girl was three years old and they found her next to her mother’s body. What she said was, ‘Rick did it.’ At the time I didn’t know that there were two men named Rick who her mother had been with. The grandmother said it was Rick Sample that the little girl was talking about, so our initial reaction was to go after Rick Sample. Later we realized that it was your client. They look a lot alike, Sample and your client.”
“In fact, you arrested Sample, didn’t you?’
“Yes, but he had an alibi and it put him out of the county when Lisa Farrow was murdered.”
“And in your mind that meant Mr. Harker did it, isn’t that right?”
“That and the fact that he was identified as the murderer.”
“Right. Let’s talk about that, shall we? The neighbor, a Mrs. Nancy Slaven, she identified Mr. Sample, didn�
��t she?”
“And so did the other neighbor, Maria Castillo. They were the ones that saw the two men go into the victim’s house and they were the ones who found the little girl, Christine, sitting next to her mother.”
“And according to you, they were wrong in their identification also, correct?”
“Like I said, Sample and your client looked a lot alike. But when they testified in court they pointed straight at your client, Counselor.”
“What made you decide it was Mr. Harker?”
“Like I keep saying, Mr. Gifford, your client’s fingerprints were in the house and Clarence Foster admitted it was him and the little girl said so too.”
“Let’s talk about Clarence Foster. Did you question him?”
“I did at first and then the DA Mr. Gage, well he wasn’t the DA then, he was there and so was Mr. Cleary.”
“Did you tape record your interview?”
“Yes, I tape recorded all my interviews. Best evidence of what happened is a confession and a jury gets to hear the person say it himself. Not the way we used to do it but it’s better, I think.”
“Not the way you used to do it?”
“No, we used to just write it all down in our report, and then guys like you would say we were making it up. So now it’s all recorded.”
“And isn’t it true that Clarence Foster denied knowing anything about the murder; in fact, denied that he remembered anything?”
“Yeah, but after he realized what was involved, a vicious murder, he cooperated.”
“After you gave him immunity. Isn’t that right?”
“We didn’t give him immunity until the trial. That was the deal.”
“And that deal was made with Foster’s lawyer, who just happened to be Roger Jamison, the father of the prosecutor in this case, Mr. Matthew Jamison. Isn’t that true?”
Jamison came to his feet. “Your Honor, is there a point to this?”
Wallace held up his hand, stopping Jamison from further comment. “Mr. Gifford, are you trying to imply something here about Mr. Jamison’s father defending Mr. Foster and the fact his son is the prosecutor in this case?”
“No, Your Honor. Just connecting the dots.”
“Then unless you have a point to make, I suggest you move on.”
“I didn’t make the deal. Mr. Gage and Mr. Cleary did,” interrupted Jensen.
“Isn’t it true, Detective Jensen, that you put my client and Clarence Foster in a patrol car together?”
“Yeah, I did. Wanted to see if your boy would talk.”
“You just wanted to see if they would talk?”
“That’s right, Counselor. Sometimes when criminals think no cops are around they talk to one another and sometimes they talk about why they’re in the back seat of a patrol car. Given that they knew one another, I thought maybe your client would talk to Foster about why they were both there.” Jensen paused before adding, “Especially since they were both there for the same murder.”
“And Clarence Foster admitted to my client that he had lied when he identified him, didn’t he?”
“Not that I’m aware of, no.”
“Well you were taping the conversation, weren’t you?”
“Yeah, but we got nothing. Harker kept threatening Foster and Foster kept saying he had to do what was right, or words to that effect.”
“And where is that tape?”
“I don’t know, Counselor. I turned over the tapes and the evidence. Besides, there was nothing on it.”
“Nothing on it? You mean it didn’t record?”
“Sometimes it happened with those old wire transmissions. They didn’t record. I don’t know why. Anyway, I turned it into evidence, but I listened to it when they were talking because Foster had a wire on so I could hear it, and that’s all I heard. But there was nothing on the tape, just some hissing and static.”
“Well, that’s convenient, isn’t it? All we have is your word about what was said?”
Jensen leaned forward. “All we have is your client’s word that he’s innocent, but I have witnesses. So what’s your point?”
“My client told you that Foster admitted that he had lied, didn’t he?”
“No. All he ever said about Foster was that he was lying. Same thing his lawyer said at his trial.”
“So, Clarence Foster was supposedly in that house when he said my client attacked Lisa Farrow?”
“That’s what he said, Counselor. But it was Christine who said your client stood over her bed before setting the victim on fire. What’s your point? Do you have a point? Your client killed that woman. You know it and I know it. Everyone knows it.”
Gifford turned his back on Jensen and walked back to the counsel table. He stood, staring at Jensen for a minute, and then sat down. “I have nothing further of Detective Jensen.”
It was difficult to keep the surprise out of his voice because Jamison expected something more because there had to be something more. Gifford hadn’t made a dent. He momentarily debated with himself about asking any questions before saying, “No questions, Your Honor. Detective Jensen may be excused.”
Wallace leaned back in his chair, dominating the courtroom with his silence before he leaned back. “Call your next witness, Mr. Gifford.”
“Your Honor, we call William Gage.”
Chapter 22
Gage dominated every room he was in. It wasn’t much different in a courtroom, despite the presence of someone like Judge Wallace. As Gage walked through the swinging gate into the well of the courtroom, his eyes moved around like he was a general surveying a battlefield. Then he raised his right hand and walked to the witness chair. Gage stared first at Gifford and then at Harker, the expression on his face impassive as granite but his eyes telegraphing cold contempt.
Gifford walked around the counsel table and approached the witness stand. “Mr. Gage, you are presently the district attorney of this county, correct?”
“Yes, for over twenty years.”
“And you recognize my client, Richard Harker?”
“Yes.”
“In fact, you prosecuted Mr. Harker for the murder of Lisa Farrow, which is why we’re here, correct?”
Gage sat silently, staring at Gifford who finally asked, “Did you understand my question?”
“What I don’t understand, Mr. Gifford, is why I’m here. Yes, I recognize your client. Yes, I questioned him. Yes, I prosecuted him for the murder of Lisa Farrow. Yes, I asked the jury for the death penalty and I got it. Let’s not drag this out, shall we? Your client murdered Lisa Farrow and I was the prosecutor. Just ask what you want to ask instead of dancing around.” Gifford looked over at Judge Wallace, waiting for him to admonish Gage to simply answer the questions. But Wallace sat in Buddha-like silence.
“All right, Mr. Gage, we’ll do it your way. You interrogated my client after his arrest, correct?”
“I said that I did.”
“My client consistently denied that he killed Lisa Farrow, didn’t he? In fact, he cried during that interrogation when you went into the details of how she died, didn’t he?”
“A lot of men cry during interrogations, Counselor. And there are a lot of reasons why they cry, not the least of which is that they are sitting there in handcuffs. Yes, your client denied killing Lisa Farrow.”
“And you didn’t believe him, did you?”
“No.”
“But you had already arrested Rick Sample for the same murder, so why are you so sure that my client killed that woman?”
“That woman? You mean Lisa Farrow? Counselor, since you seem hell-bent on asking, my answer is this. I’ve interrogated a lot of men and women over the years. I’ve watched them as they sat in an interrogation room and sweated and squirmed and twisted their hands, claiming they didn’t do what they were arrested for. Some of them only looked at the floor and lied and some of them looked me straight in the eyes and lied. But you get a sense of guilt. You can smell it. The stink comes off of them like a sour rag. You
look at the facts and the evidence and, in your heart, you know they did it—and your client did it.”
Gage’s voice began to take on an edge of barely controlled anger. “I had a witness who was in that house with your client when he began to beat Lisa. I had a witness who saw your client walk into that house. I had his fingerprints, and most of all, I had a little girl sitting in a chair just like this, pointing her finger at your client when I asked who stood over her bed that night. You asked. That’s my answer. There hasn’t been a single night since I prosecuted Rick Harker for murder that I have lost a moment’s sleep wondering if I did the right thing. Do you have any other questions?”
Gifford stepped back, the intimidation of Gage pushing out like a force field. “Mr. Gage, isn’t it true that Clarence Foster admitted to you that he lied when he said my client was the one who beat Lisa Farrow? You questioned Foster repeatedly, didn’t you? Why? Wasn’t it because he kept saying that he didn’t know?”
“Clarence Foster said a lot of things, Mr. Gifford, and they are all in the reports that have been given to you. But he never said your client didn’t kill Lisa. I pushed him hard. I admit that. It was an interrogation in the worst murder I’ve ever seen. I wasn’t nice. I did my job. He finally broke and when he did he pointed the finger at your client. End of story. I don’t prosecute innocent men, Mr. Gifford.” Gage started to get up. “Are we through here?”
Gifford held up his hand, putting some steel into his own voice. “No, Mr. Gage, I’ll tell you when we’re through. I have one more question. Isn’t it true that before Clarence Foster told you that my client killed Lisa Farrow, that he told you that he was so loaded on drugs and alcohol that he didn’t know what happened? And that you threatened him with the gas chamber if he didn’t tell you who was with him? And you then shoved a picture of my client in front of him? Isn’t that what really happened?”
Gage smiled thinly, pausing before answering. “That did not happen, Mr. Gifford, and you have absolutely no evidence that it did.”
“That’s not what Clarence Foster says.”
Shades of Truth Page 15
