Andie parked in the driveway and walked quickly into the house. She dropped her purse on the couch, went straight to Righley’s room, and sat on the edge of the bed. It wasn’t her intention to wake her, but Righley’s eyes blinked open. Andie had been completely unaware of how distraught she must have looked until Righley asked the question.
“What’s wrong, Mommy?”
“Oh, it’s just been one of those days, honey.”
“Do you want a do-over? You can have one. I won’t tell Daddy.”
Andie smiled sadly. “It’s not up to Daddy.”
“You can ask God. Maybe if you ask, He’ll say I can have one, too.”
Andie recalled the conversation Jack and Righley were having on the way to school, and it broke it her heart. “Honey, it’s good to pray. But we don’t pray for do-overs. Daddy’s right. There are none.”
“Why?”
Tough question. “Why? Well, I think the reason there are no do-overs, is because . . .”
“Because why?”
“Because we have each other,” said Andie. “As long as we have each other we don’t need any do-overs.”
“Promise?”
Andie brought her closer and held on tightly. “Yeah. I promise.”
On Saturday morning Jack took a long bike ride, up and over the Key Biscayne bridge—the only real “hill” in Miami—and onto the mainland. He rode right past Cy’s Place in the Coconut Grove business district and didn’t stop pedaling until he was in South Grove.
George Washington Carver Middle School is a top-ranked magnet school in an area that was once known as the Grove Ghetto. The Grand Avenue neighborhood isn’t the war zone it had been when Janet Reno was state attorney in the 1980s. Back then, butting right up against Miami’s most expensive real estate was a ghetto that could service just about anyone’s bad habit, from gangs with their random hits, to doctors and lawyers who ventured out into the night to service their addictions. That had been Theo’s neighborhood. For some of his friends, Carver Middle had been the first punch in their ticket out. Theo and his brother weren’t as lucky, having wandered the streets too late at night for too many years. At least Theo had made it out alive.
The neighborhood wasn’t quite so bad anymore, but it was fair enough to call it hardscrabble, especially after dark. One thing surely had not changed: basketball ruled. Jack found “Coach Theo” with his eighth-grade-boys team in the Carver gym.
“Be with you in a minute, Jack,” Theo shouted from across the court.
His players were running “suicides” up and down the court, the sprint-until-you-puke ritual that the toughest coaches imposed on the best teams. Jack took a seat in the bleachers, ready to dial 911 or administer artificial resuscitation, as necessary.
“This ain’t a walk!” he shouted to his team. “Everyone under thirty seconds!”
Jack’s first meeting with the prosecution had not gone well. Abe Beckham was senior trial counsel at the Office of the State Attorney for Miami-Dade County, the go-to prosecutor in capital cases. He’d recently earned the moniker Honest Abe, a courthouse joke that marked an impressive milestone of four-score-and-seven murder convictions without a loss. Two of those victories had been against Jack, and if their first conversation about Xavier Khoury had been any indication, Beckham was highly confident of a third. Jack had paid the prosecutor a visit on Friday, seeking only to break the ice and suggest that, perhaps, Beckham should at least consider backing away from the death penalty. It had been a short conversation.
“Sorry, Jack. This is a capital case if ever there was one.”
“You have to get a conviction before you can get the death penalty.”
“Right. See that barrel of fish over there? Shoot one on your way out, would you, please?”
Getting Beckham to budge was going to be even harder than Jack had thought.
“Family on three!” Theo shouted, and his players did their practice-ending ritual, gathering in a tight circle, a mix of black, brown, and white hands at the center.
“Family!” they shouted in unison, and then it was a mad dash to the drinking fountains. Theo walked over to Jack.
“Coming back to be my assistant?”
Jack stepped down from the bleachers and smiled. “I wish.”
Theo’s team was in the locker room, and it was just the two of them courtside.
“Give me a hand with the equipment?” he asked.
“You got it.” Jack draped a dozen jump ropes around his neck, gathered up as many basketballs as he could carry, and followed Theo into the storage room.
“I met with the prosecutor yesterday,” said Jack.
“How’d that go?”
Jack summed it up in two words. “Not well.”
“You come here to tap my brilliant legal mind?”
“Sort of.”
Theo shoved a stack of orange training cones onto the top shelf. “Talk to me.”
“The prosecution is way too confident. Legally, guilt or innocence is supposed be a separate question from life or death. But sometimes strong evidence of guilt bleeds over in the prosecutor’s mind. The death penalty becomes a foregone conclusion. End of story.”
“Why is he so confident?”
“Why?” Jack asked, scoffing. “Well, for one thing, Xavier said ‘I did it’ in front of three police officers.”
“That’s bullshit.”
“Maybe it is to you. To Abe Beckham, it’s a confession.”
“Confession, my ass, Jack.”
“How do you see it?”
“I see a brown kid looking at three white cops pointing their guns at him. You, his mom, and every other white person in America hears him say, ‘I did it, I’m the shooter, I’m a mass murderer.’ I hear, ‘Don’t shoot me, I did whatever you say I did, just please don’t shoot me.’”
“I don’t know, Theo. You really think I should turn this into Black Lives Matter?”
Theo locked the storage door—three megalocks, Jack noted, a reminder that crime in the Grove Ghetto was not just a distant memory from Theo’s youth.
“I’m not telling you to turn it into anything, Jack. Just tell it like it is.”
Chapter 11
On Monday morning Jack was inside the criminal courtroom of Circuit Court Judge Humberto Martinez, seated at the table for the defense, alone only in the sense that his client was not with him. Xavier had refused to attend, which was his choice, but the gallery was packed with parents, teachers, members of the media, and dozens more. Riverside would not reopen for at least another week, and Jack noticed a few high school students in the crowd.
At 8:59 a.m., precisely one minute before the scheduled hearing, the prosecutor entered through the swinging gate at the rail behind Jack and started toward the other table.
“Good morning, Abe,” said Jack.
“Jack,” he said, opting for a one-word response that barely passed as a greeting.
“All rise!”
The call to order brought the crowd to its feet, and the packed courtroom fell silent as Judge Martinez ascended to the bench.
With experience as both a prosecutor and defense lawyer, Martinez was a good fit for a high-profile case that demanded an evenhanded jurist. His reputation wasn’t one of pandering to the media, but he definitely wasn’t camera shy. As a younger man, his good looks and decisiveness had put him on the short list to star in the Latin version of The People’s Court on Spanish-language TV. It hadn’t worked out. “Too polite,” the producers had told him.
“Take your seats,” he said, and when everyone was settled, he looked straight at the prosecutor.
“Mr. Beckham, I’ve read your motion. As I understand it, the state of Florida seeks a court order directing Mr. Swyteck to file a formal notice of appearance in this case as counsel for the defendant, Xavier Khoury.”
“That’s correct, Your Honor. This is a capital case. The public defender has withdrawn as counsel. We are at a critical stage where important decisions are b
eing made. If Mr. Khoury has no lawyer of record, all the work we do to secure his conviction over the coming months will be for naught. His appellate lawyer will argue that the conviction is invalid because he was deprived of his constitutional right to counsel.”
“I understand your concern,” the judge said. “But what is the basis for ordering Mr. Swyteck, specifically, to be his counsel?”
“On Friday, Mr. Swyteck visited my office and said he’s representing Mr. Khoury for purposes of negotiating a plea, but he has not agreed to be trial counsel.”
The judge looked at Jack. “Is that true, Mr. Swyteck? Has Mr. Khoury engaged you as his attorney?”
Jack rose. “Judge, I met once with Mr. Khoury. He has yet to say a word to me. I explained that I would be willing to meet with the prosecution on his behalf to try to negotiate a plea. I’m not comfortable saying anything more than that in open court, as what I said is protected by the attorney-client privilege. But I asked Mr. Khoury to nod his head if he would like me to do that for him. He nodded.”
The judge leaned back in his oversized chair, looking up at the ceiling, thinking. “So it’s your position that you’re his lawyer for the limited purpose of negotiating a plea.”
“Correct,” said Jack. “I have not made an appearance in this case.”
“Which is the point of my motion,” said Beckham. “He needs to get off the fence.”
The judge shifted his attention from the ceiling to Jack. “Seems to me you’re splitting hairs, Mr. Swyteck.”
“Judge, I have not agreed to defend Mr. Khoury at trial.”
“Well, you’re here now, and as an officer of the court, you’d be doing this community and the justice system as a whole a great public service by acting as Mr. Khoury’s counsel.”
“Judge, I—”
“As far as I’m concerned, you’re in,” said the judge. “File your notice of appearance in the record at the conclusion of this hearing. You are counsel of record for Mr. Khoury until you can demonstrate good cause why I should relieve you of that obligation. Anything further?”
“No, Your Honor,” said Beckham.
Jack felt as though he’d been run over by a bus, but he knew the rules. Once a lawyer was counsel of record in a criminal case, it was virtually impossible to get out, even if the client stopped paying. It was the reason defense lawyers asked for the entire fee up front.
All Jack could do was take solace in the fact that this would come as good news to his friend Nate Abrams.
“Judge, there actually is one thing more,” he said, casting his gaze toward the prosecutor. “If I’m in, I’m all in. I have a motion for the court’s consideration.”
“Judge, I object,” said Beckham.
“Overruled. As they say, Mr. Beckham, be careful what you wish for. What’s your motion, Mr. Swyteck?”
The only way to make death by lethal injection a negotiable item was to take Beckham’s confidence down a peg. And that was the point of Jack’s first motion before the court—with a little help from Theo Knight.
“Your Honor, both the Miami-Dade Police and the state attorney have stated publicly that Mr. Khoury confessed to the shooting at Riverside. It’s our position that this statement is not a confession. Alternatively, if it was a confession, it was obtained in violation of Mr. Khoury’s constitutional rights and should be suppressed.”
Beckham groaned. “Judge, this is a completely frivolous motion.”
“Mr. Beckham, someone who has been in my courtroom as many times as you should know by now that I generally make my decisions after I’ve heard the evidence. Mr. Swyteck, have you any evidence to support your motion?”
Jack’s gaze landed on the police officer standing by the door in the back of the courtroom, whom Jack had noticed on the way in. “The defense calls Miami-Dade police officer Glenn Donner.”
Beckham rose. “Judge, this is highly irregular.”
“Officer Donner was one of the MDPD officers on the scene when my client was arrested,” said Jack. “His testimony goes to the heart of the defense’s motion.”
“Officer Donner, come forward and be sworn,” the judge said.
All heads turned as a middle-aged man dressed in the distinctive taupe MDPD uniform walked down the center aisle, his steady footfalls on the tile floor the only sound in the room. He stopped, raised his right hand, and swore to tell the truth.
“I most certainly do,” he said.
His embellishment on a simple “I do” was a little thing, but like any good trial lawyer, Jack picked up on the little things. Right out of the gate, this witness had violated rule number one of “Courtroom Testimony for Dummies”: never say more than you have to, not a single word more.
“Good morning, Officer,” Jack said as he approached.
“Good morning.”
The witness was wringing his hands, even before the first question. His anxiety was understandable. It was easy for the prosecutor to dismiss Jack’s motion as frivolous, but Donner was the man in the hot seat, and no one wanted to be known as the MDPD officer whose testimony got a confession to a school shooting kicked from the case.
Jack went straight to work.
“Officer Donner, you were one of the MDPD officers on the scene at the Khoury residence on the morning Xavier Khoury was arrested, correct?”
“I was one of four. It was our job to secure the perimeter while the search team entered the residence to execute the warrant.”
“You were not part of the search team?”
“No.”
“But you and the other officers on perimeter security went there knowing that a handgun had been found on school grounds, and that this handgun was registered in the name of Amir Khoury. Right?”
“We knew the basis for the issuance of the warrant, yes.”
“The search team was inside the house when Mrs. Khoury drove up in her sedan?”
“Yes. Her Mercedes,” Officer Donner added, as if it were a crime to be rich.
“Molly Khoury was driving. Was she armed?”
“We didn’t know.”
“Her two younger children were in the back seat. Talitha, age eight, and Jamal, age fifteen,” said Jack. “Were they armed?”
“There was no way to know.”
“Her son Xavier was in the passenger seat. Was he armed?”
“We thought he might be.”
“Did he make a sudden move when he exited the vehicle?”
“No.”
“Did he have something in his hand that looked like a gun?”
“Not that I saw.”
“Did you see anything inside the car that looked like a gun?”
“I don’t believe so.”
“Did he say he had a gun?”
“No.”
“Did he threaten you in any way?”
“Not really.”
“But as soon as Xavier and his mother stepped out of the car, you drew your weapon, correct?”
“Yes, of course. There had just been a school shooting.”
“You weren’t there to arrest Xavier, were you?”
“No.”
“No arrest warrant had been issued, correct?”
“That’s correct.”
“No one had accused Xavier of being the school shooter, right?”
“Not to my knowledge.”
“You didn’t ask him if he was the shooter, did you?”
“No.”
“None of the other officers asked him. Right?”
“They did not.”
Jack checked his notes, though they were mostly chicken scratch, since this was a motion on the fly. “So let me see if I have this straight. An eighteen-year-old boy rides up in the family car with his mother.”
“Objection,” said Beckham, rising. “According to Roper v. Simmons, the defendant is an eighteen-year-old man.”
He was referring to the US Supreme Court decision that prohibited the execution of juveniles as cruel and unusual punishment.
&nbs
p; “Let me rephrase,” said Jack. “An eighteen-year-old high school student rides up in the family car with his mother. The instant they step out and set foot on the ground, four armed police officers surround the vehicle and draw their weapons.”
“As I said, there had just been a deadly school shooting.”
For effect, Jack assumed the stance, arms extended, as if he had a gun. “You yelled ‘Freeze!’”
“Yes.”
“Mrs. Khoury shouted back, ‘Don’t shoot!’”
“Yes.”
“Her two younger children were crying in the back seat, terrified.”
“I don’t know if—”
“Really, Officer Donner?” said Jack, dropping the marksman’s stance and resuming his posture as lawyer. “You don’t know?”
“I suppose they were frightened.”
“And it was at that moment—with four police officers aiming their loaded weapons at his mother, his sister, his brother, and him—that Xavier Khoury said, ‘Mom, it’s okay. I did it.’”
“That is what he said.”
“And you took that to mean he did what?”
The witness hesitated, as if sensing that the lawyer was setting a trap. “I have no idea what he meant.”
“Precisely,” said Jack, pouncing on the answer he wanted. “You never asked him if he was the school shooter, did you?”
“No.”
“You didn’t tell him that his father’s gun was found at the scene, did you?”
“No.”
“So when he said ‘I did it,’ you had no way of knowing if he meant the shooting at Riverside.”
“I—” Officer Donner started to say, then stopped, seeming to sense that Jack liked the way this was going. He was suddenly backpedaling. “I can’t read his mind, if that’s what you’re asking.”
“When Xavier saw the police and said ‘I did it,’ he could have meant that he was guilty of downloading music illegally from the Internet, like millions of other high school kids. Right?”
Twenty Page 7
