“Good morning, gentlemen,” he said in that booming voice of his. “Have you had any coffee?”
“We did. We just had breakfast,” Jack replied.
“Well, come on in then.” Chapman led them into his office, where they sat down in the two chairs in front of his desk.
“Are your accommodations okay?” He had set them up in a luxury hotel.
“Very nice, thank you,” Jack said.
“Good, let’s get to it then.” He handed them both a one-page document. “This is a very brief summary of the case of Thomas Felton. Have either of you heard of him?”
“I have,” Jack said. “He was the serial killer in Oakville about ten years ago.”
“Correct, although he was never convicted of being a serial killer. He was convicted of a double homicide.”
“But as I recall,” Jack continued, “the murder weapon had been identified from a previous murder.”
“That’s almost correct,” Chapman said. “Actually, there was an attempted murder, and the young lady who survived identified the weapon. She was subsequently killed, by the way.”
“So I take it,” Jack said, “that you want Henry and me to get involved in Mr. Felton’s case.”
“Precisely. The death warrant has been signed. His execution is scheduled for March fourteenth, and our office has been assigned to represent him in any post-conviction relief. The chief judge of Apache County has appointed Circuit Judge Andrew Holbrook to hear any post-conviction motions, and he’s set a status conference for the thirty-first of this month. That’s two weeks from now. We need to look at the case and decide if we want to file anything at that time. The judge, if he is going to set an evidentiary hearing, has to do it between the thirty-first of January and March fourteenth, leaving time for our client to appeal to the Supreme Court. We’re under the gun, gentlemen.”
“I don’t—”
Before Jack could finish his sentence, Chapman cut him off. “Before you say no, Jack, I want you to hear me out. This is the case we’ve been looking for. Nothing is more high profile than a serial killer. This is a circumstantial evidence case and, frankly, the evidence isn’t that strong. It’s pretty much all hearsay, or hearsay exceptions. Since the girl who originally identified the weapon is dead, the police officer she identified the weapon to testified in her place. So the weapon from a previous attempted murder was found at the scene, outside of the apartment in the woods, and that was the sole basis for the conviction. This guy was convicted because they were desperate to catch somebody.”
“You’re forgetting a couple of things, Ben.”
“What’s that?”
“Felton’s fingerprints were on the murder weapon and the murders stopped after Felton was arrested and convicted.”
“All I want to do is stop the execution. If Felton stays in prison for the rest of his life, I’m okay with that.”
“What if he gets off?”
“We don’t necessarily want that.”
“You don’t always get what you want, Ben. We could find a technicality that nobody came up with before. If I took Felton’s case, I would be ethically bound to give him the best representation I could muster. I can’t pick and choose how I’m going to represent him. So I have to make a determination at the outset if I want to give my best efforts to represent an alleged serial killer knowing that I might possibly get him off.”
Ben Chapman could see he was losing Jack. It was something he had anticipated. He had to approach the issue from another direction. This was where Henry came into the equation.
“Let’s just take this out of the realm of Mr. Felton for a second and look at the bigger picture. What is our work here? What is our goal? We want to eliminate the death penalty. We know the criminal justice system is flawed. Henry is a concrete example of that. He wouldn’t be here if you hadn’t exposed the flaws in the system, Jack.
“You’re the best lawyer we have. There’s no doubt about that. You’re a lawyer’s lawyer. But frankly, Jack, you cherry-pick your cases. You look to represent only those people you believe are innocent. So, in your cases, you’re not necessarily putting the death penalty on trial. The Felton case is high profile. It’s a circumstantial evidence case. We have the best opportunity we have ever had to expose the death penalty and the flaws in the criminal justice system to the world.”
“To what end though, Ben? I mean, is it better to expose the flaws in our system of justice and let a very dangerous man walk?”
“I’m not talking about letting this guy walk, Jack. I’m after the issue of capital punishment. I don’t need an answer now. Think it over. We can meet tomorrow or possibly the next day, but I need an answer soon.”
When they were outside the offices and headed for the parking lot, Henry finally piped up. “Boy, it’s much colder up here in North Florida,” he said, rubbing his hands up and down his upper arms.
“Yeah,” Jack mumbled. He was still mulling over Chapman’s words in his head. It was chilly, but the sun was shining and the wind wasn’t too bad.
“Now I know why he wanted me here,” Henry said when they were in the car and driving back to the hotel.
“Why is that?”
“He figures I’ll convince you to take the case. I’m his ace in the hole. He brings the two of us up here, goes through that dog and pony show, and leaves me to work on you for the next day or so.”
“And why is he so sure of you? You said he doesn’t even know you.”
“He doesn’t. But he does know that I spent seventeen years on death row. He assumes that I am a staunch opponent of the death penalty because of my own experience.”
“And?” Jack asked.
“You know I am. But I’m not necessarily opposed to some wacko serial killer being fried. I mean, nobody should ever mistake me for being a bleeding heart.”
“I certainly wouldn’t, Henry. Not after Oakville.” Jack was referring to the killing of the man who had been about to shoot him while he was jogging. It was something they had never spoken about. Since he’d brought the subject up, Jack decided to get some closure at the same time. “That is over, isn’t it?”
“Yeah,” Henry said without acknowledging his part in anything. “The Eel called me a few days later and said it was finished. It’s one less thing you have to worry about, Jack.”
“Good. I won’t bring it up again. Now back to this man on death row. You’re forgetting something, aren’t you, Henry?”
“What’s that, Jack?”
“A lot of people said pretty much the same thing about you. Nobody gave a rat’s ass about a career criminal like you going to meet his maker.”
“One slight difference, Jack: You don’t rehabilitate serial killers. They’re like vampires. You have to cut out their heart to make them stop.”
“Just because it’s a serial killer case, everybody, including you, assumes this guy is guilty. He could be innocent.”
“You’re the one who pointed out that Felton’s fingerprints were on the murder weapon and that the killings stopped after he was arrested.”
“The prints are pretty substantial evidence, but I don’t think the same way about the cessation of the murders. Serial killers for the most part are not stupid. And, contrary to popular opinion, most of them don’t want to get caught. So somebody gets arrested for the murders. It’s a perfect time to move on. The killings don’t stop, they just move to a different location. That can be new and exciting for a killer.”
“I guess you’re right,” Henry said. “You know, Jack, for a guy who has been clean as a whistle his whole life, you do a good job getting inside of the heads of criminals. So what are you going to do?”
“Don’t know yet.”
“And what’s a lawyer’s lawyer? I never heard that term before until Chapman said it.”
“It’s just a figure of speech.”
“What does it mean?”
“It’s a term to describe a really good lawyer—you know, the guy other lawyers w
ant when they get in trouble.”
They arrived at the hotel. Henry slid out of the passenger seat chuckling.
“What’s so funny?” Jack asked.
“I was just thinking,” Henry said. “What happens to the lawyer’s lawyer when the lawyer’s lawyer needs a lawyer?”
“Is that a tongue twister? And why would you think it was funny that I wouldn’t have a lawyer?”
“I don’t know—sick sense of humor, I guess. Besides, I’m the only one of us who gets in trouble and I’ve got you.”
“Babe.”
“What?”
Jack was laughing now. “I’ve got you—babe.”
“I don’t know about you, Jack. I think I just might get my own room.”
Jack was still laughing. “More space for me. You were never meant for a double room anyway, Henry. And I won’t have to wear earplugs anymore.”
“Jesus, Jack, you’re brutal. Gimme a break, will ya?”
“You don’t mess with the lawyer’s lawyer, Henry.”
The next morning at eight, Jack called Chapman’s office and set an appointment for eleven. He hadn’t made up his mind yet but he wanted to set a deadline for himself. That left him three hours to bounce things off of Henry.
“I don’t mind taking the case. I really don’t. I think there’s merit in arguing that this was a circumstantial evidence case and that it doesn’t merit the death penalty. I mean, the murders were gruesome enough to warrant it, but the evidence was a little flimsy, at least according to Chapman. I haven’t seen anything yet.
“The thing that bothers me, and I don’t know why, maybe it’s just a feeling—what if there’s a loophole and this guy goes free? Do I want that on my conscience?”
They were at breakfast in the hotel dining room: silver coffee pot, cloth napkins, white table cloth.
“Don’t you have to ask that question in every case, Jack? I mean, you weren’t absolutely positive that I was innocent, were you? Yet, you got me set free.”
“I was pretty sure of you, Henry. I’d have staked my life on you by the time it was all over.”
“Why don’t you give this Felton guy the same opportunity to convince you of his innocence? Tell Chapman you’ll review the file and you’ll visit Felton and then you’ll make your decision.”
“He won’t like that. He wants me to represent Felton whether he’s innocent or not.”
“Who cares what he wants? You’re not looking at him when you look in the mirror in the morning.”
“I could still make a mistake.”
“You could, but you convinced me of something last night, Jack. Something I had not thought about in a while. This man might be innocent and you, my friend, are probably the only person capable of saving him from his date with the grim reaper.”
The two men’s eyes met. They didn’t often go back there because they didn’t need to. Henry was reminding Jack, as Jack had reminded him just the night before, that one man through his faith and his tenacity can make a transforming difference in another man’s life.
“Chapman made the right decision asking you to come along, Henry.”
“Good, because it’s going to cost him. Did I tell you I’m flying back to Miami, Jack? I want you and your trees to have an opportunity to bond.”
The meeting at eleven didn’t go that well. Chapman was furious that Jack put conditions on whether he would represent Felton.
“We’ve only got two months, Jack. What if you review the files and meet with Felton and decide not to take the case? It will be too late to get somebody else in and do an effective job.”
“No, it won’t. You’ve got the files right here.” Jack pointed to four boxes leaning against the wall in Chapman’s office. They hadn’t been there the day before, and Jack correctly surmised that they were the files on Thomas Felton’s case. Chapman had been pretty sure of himself.
“I can get through those files in a week and meet with Felton the following week. I probably want to meet with him at least twice before the case management conference with Judge Holbrook. Meanwhile, you can line up an alternate if I don’t take the case. I will certainly work with whoever you get to bring them up to speed. I’ll even attend the case management conference with that person.”
Chapman wasn’t satisfied although he had no choice but to acquiesce. Jack was not going to budge.
“Okay, Jack, you’ve got two weeks.”
Chapter Twenty-Nine
The trip to visit a death row inmate at Union Correctional Institute in Raiford, Florida, was something Jack would never get used to. The formalities of signing in, being searched, leaving the freedom of fresh air and wide open spaces for steel bars and narrow hallways always made him appreciate his life just a little bit more.
He had tried to get Henry to come with him, figuring Henry could pick out a cold-blooded killer, no matter how good a con man he was, by just being in the room with him. Henry was reluctant to do it but he couldn’t say no to Jack. It was the warden who put the kibosh on the whole idea.
“The only way Henry Wilson is going to be allowed on death row is when he comes back permanently,” the warden had told Jack. Apparently the man had not gotten over the fact that Henry had been set free. And he had seemed so concerned for Henry’s well-being when Henry was about to be executed.
Jack could have fought the warden’s decision, especially if Felton had agreed to the visit. However, it would have taken time, and time was the one precious commodity he did not have. So he went alone to meet Thomas Felton.
The circumstances of the meeting itself were different from the usual procedure afforded to Jack. In the past, he had been allowed to meet with his client in a room, face to face across a table. Today, he was allowed only to sit at a chair in one room and talk to Felton by phone in another room while looking at him through a set of bars and windows. Death row inmates had very strict monitoring regulations: they lived in a six-by-nine foot cell; they couldn’t mingle with the prison population; they couldn’t even take a shower every day. Apparently, serial killers had even stricter regulations. Jack saw two guards standing behind Felton as he sat on his stool on the opposite side of the bars.
For a brief moment before picking up the phone, Jack studied Felton. He was still a young man at thirty-three, tall, thin and surprisingly handsome although his head was shaved. Jack looked into Felton’s clear green eyes. Felton returned the gaze. Jack picked up the phone.
“Hello, Mr. Felton. I’m Jack Tobin. I’m a lawyer with Exoneration and I’ve been asked to look into your case.”
“I know who you are, Mr. Tobin, and I’m honored to speak to a lawyer of your standing.”
That was unusual. The typical death row inmate, including Henry, practically spit on him when he introduced himself. They’d already been through a few lawyers and had been disappointed too many times to feel anything but enmity toward the litigators who came to visit bearing false hope.
Felton was different. Jack knew from reading his file that he had had only one appeal and that was right after his conviction, a perfunctory performance alleging the usual grounds—inadequacy of counsel and improper evidentiary rulings. It was as if the lawyer wrote on the brief, “I don’t want to represent this guy but I have to, so here it is.” After that, there was nothing. Nobody wanted to touch the serial killer’s case. No wonder he was happy to see Jack.
“Mr. Felton, I’ve reviewed your entire file, and I’ve got a good feel for what happened on the night of the murder and what has happened with your case since then. Is there anything you want to tell me?”
“Just that I’m innocent. I didn’t kill those two people. I think they convicted me because I didn’t have an alibi.”
“Well, they did find a knife with your fingerprints on it.”
“I never saw that knife before they showed it to the judge and the jury in my trial. I don’t know where they got the fingerprints from.”
“You never gave a statement to the police after you were arre
sted, correct?”
“No, I didn’t. I did tell them I was innocent.”
“Why not give them details, I mean if you were innocent?”
“I was a law student, Mr. Tobin. I was always told that no matter whether you were innocent or not, don’t talk to the police without a lawyer. When I did get a public defender, he not only didn’t want me to talk to the police, he didn’t want me talking to him. Would you have advised me to talk to the police?”
“Probably not. Listen, we’ve only got about seven weeks before your scheduled execution. I need something to take to the court. Can you give me anything?”
In fact, Jack had already found something substantial that would provide a basis for a motion for post-conviction relief and that indicated that Felton might be innocent. He was just testing Felton, trying to figure out in his own mind whether the man was innocent or not.
“I’m sorry, Mr. Tobin, I can’t. The police came to my apartment two times before that last murder occurred. I was already a suspect in their minds because I had done my undergraduate work at the University of Utah and there had been a serial killer at that campus when I attended. I just think they wanted to solve this murder, and I was the best candidate they could come up with.”
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