Muriel frowned and said, “There is a certain sense of entrapment here, Your Honor. May I suggest that if Mr. Jaffe hadn’t goaded him, and very nearly put the words in his mouth, Mr. Nickerson might not have said even what he seems to have said?”
“You may certainly suggest that,” the judge replied.
“And it seems clear that Mr. Nickerson was enraged beyond reason,” Muriel said.
“He sure sounds mad enough to kick the cat,” said the judge.
“If you listen carefully to this tape, as I’ve done, Your Honor, you realize that Mr. Nickerson failed to confirm a single one of Mr. Jaffe’s wild accusations. He threatened Mr. Jaffe, that’s clear. He may well have attacked Mr. Jaffe physically, but we only have Mr. Jaffe’s word for that, and while I have nothing but respect for opposing counsel, it’s my obligation to point out that he is opposing counsel. And so you might say he’s a little prejudiced.”
The judge looked me over. It was obvious that under my bandage I had a swollen nose, and I walked like a man who’d lost an argument with a truck. The judge smiled and nodded. “So you might say, Ms. Suarez. And I’d agree.”
“Mr. Nickerson told Mr. Jaffe candidly that his accusations of suborning perjury and outright perjury were baloney.”
“No, ma’am. I heard what he said. He told Mr. Jaffe they were bullshit.”
“Your Honor, you’re absolutely right.”
“I’m going to think on this matter,” Judge Fleming said, “and play this conversation on my stereo at home. Get my grandson to fiddle with all those knobs so it’s real clear. I’ll get back to you both in a day or so.”
I remembered how he’d rebuked me the last time I reminded him that Darryl was close to the date of execution, and so this time I said nothing. But it wasn’t easy.
Three afternoons later, Judge Fleming called us into his chambers. “You’re a persistent fella,” he said to me.
“Yes, Judge.”
“What is it you want?” he asked.
I cleared my throat. “That’s in the motion I filed, Your Honor. Are you asking me to rephrase, or repeat?”
“Don’t snap your garters. Just tell me, Mr. Jaffe, in your own simple words, if you can, what you really want.”
“One way or another,” I said, “I want my client to have his day in court.”
“You want a hearing?”
“At least that, Your Honor.”
He raised a shaggy white eyebrow. “With witnesses?”
“That would be a good idea,” I said. I could barely tell if he was serious.
He turned to Muriel Suarez. “And ma’am, what is it you want?”
“Your Honor, I can tell you what I don’t want. I don’t want the state to have to go to the trouble, plus the considerable expense, of a full-scale hearing when there’s already been an eight-day jury trial where Darryl Morgan was convicted of first-degree murder.” She raised her voice a notch. “There is no new evidence.”
“Well, there’s this tape,” Judge Fleming said.
“That’s not evidence,” Muriel shot back. She wasn’t afraid of him at all.
“It’s a lot of shouting and threatening, that’s what it is,” Judge Fleming said, nodding. “But if you listen real good, and you use your common sense, you get to thinking. Wouldn’t you agree with that, ma’am?”
There wasn’t much Muriel could do except shrug and reluctantly say, “I might agree with that. But it’s still not—”
“Evidence,” the judge said. “Maybe not.” He turned back to me. “If I give you a day in court, who would you put on?”
“You mean which witnesses?”
He nodded, and I decided to roll the dice double or nothing. Which was an optimistic metaphor, because so far I hadn’t won a damn thing except some septuagenarian indulgence.
“Judge,” I said, “have you ever read the full transcript of Florida v. Morgan?”
He looked just a shade flustered, and I believed I had him. Well, you never knew with this man.
“Judge, I’m sure you’ve at least skimmed that transcript last April, and I’m just as sure that you got a good feeling about the case back then. And so you know that the transcript is interesting, but it’s not the word of the Lord. Now, if you grant my motion, you’ll of course want to hear from the moving party, which is Morgan. We will have one or two other witnesses. But I believe you’ll benefit by hearing and seeing the state witnesses too.”
Muriel jumped forward. “Judge, watch out: he’s just about asking for a new trial!”
“No, ma’am,” I said. “A hearing with no more than the principal witnesses. Mr. Nickerson is one of them. If you don’t put him on, I will. And I don’t think we can understand what Mr. Nickerson says unless we hear from Mr. Neil Zide. And if we’re going to hear from Neil Zide, why not hear from his mother?”
“Judge-”
“Hang on there, both of you,” Fleming said, and he turned to me. “Mr. Jaffe, if you’re telling me you want to hear the state’s principal witnesses, you’ve got more nerve than a toothache. Is that what you’re saying?”
“I’m saying you should hear them, Your Honor, if only for the sake of enlightenment. It would certainly be quicker and simpler than reading that long and tedious trial transcript. We’re talking maybe three thousand pages, Judge.”
Fleming stroked his jaw and looked straight into my eyes without blinking. “You sure have got billy goat in your blood. You wouldn’t mind doing a little cross-examination of those folks, would you?”
“Sir, I’m not going to retry the case, but yes, there’s something to what you say. I wouldn’t mind a little cross.”
“Ms. Suarez?”
“Judge”—she was angry and didn’t hide it—”he will retry the case if you allow him to cross our principal witnesses!”
The judge smiled mischievously. “Well, Ms. Suarez, I’ll ask you again: what do you want? Not what you don’t want, but what you do want.”
Muriel rose to the occasion. “I want justice, Your Honor, leavened with common sense.”
“Good for you,” Judge Fleming said. “So do I, most of the time. But most of all, I want to be enlightened. You follow me?”
“Not quite,” Muriel said.
“Ma’am, I want to know why this Nickerson fella was so het up by Mr. Jaffe’s accusations. And since the principal witnesses are alive and kicking, why shouldn’t we hear them? Think of it this way.” He jerked a thumb in my direction. “By the time it’s over we’ll have this fella off our backs. That would make life a lot easier for the state attorney’s office and this court, wouldn’t it?”
“Your Honor—”
“Just a little hearing,” Judge Fleming said, “for the purposes of judicial enlightenment and—what did you call it, ma’am?—justice leavened with common sense? I like that. But not until January, because I’ve got a full calendar right up until New Year’s Day, and on Monday, January 13, I turn over this courtroom to Mr. Ruth. So make it Monday, January 6. I’ll grant another stay. Come January, I’ll give you three days, tops. I need Thursday and Friday before the weekend to pack up and get out. That gives you both plenty of time between now and then to think things over and refresh anyone’s memory needs refreshing. Or maybe even cut a deal. Is that all right, Ms. Suarez? Does early January suit you? And by the way, do you like fruit?”
She took a deep, shaky breath. “Yes, Your Honor, I do.”
“I always have fruit in my courtroom. Which is your favorite fruit?”
“A freshly picked Washington State Delicious apple,” she said, once again rising to the occasion.
The judge turned to me. “And you, sir?”
“Honeydew melon,” I said.
“No.” He frowned. “I meant does early January suit you?”
“Yes, Judge.” I was ready to let out a war whoop, but I controlled myself. “Suits me just fine.”
Chapter 25
CERTAIN CASUAL REMARKS echo with far more weight than the speaker intended.
Some years ago the veteran Steelers, a class act in pro football, met the upstart Rams in the Super Bowl. This was the first Super Bowl appearance for the Rams. The Steelers trampled them, and I remember the TV commentator explaining: “The Rams came here to play, but the Steelers came here to win. The outcome was never in doubt.”
The keenness of that observation stayed with me, waiting just below the surface of memory until I needed it. I had felt triumphant, even vindicated, when Judge Fleming granted a hearing in Florida v. Morgan. It would have been acceptably human to prepare for the hearing, go to court, and do the best I could, for better or for worse, win or lose. That would be playing the game.
But unlike the Rams, I wasn’t showing up in court merely for the glory of playing. Like the Steelers, I was going there in order to win. I had to win. I had to do considerably more than the best I could. And I had to make some sacrifices.
How large they would be, how they would reshape my formerly ordered life, I could only speculate; and then I had to say to hell with it and lower my head to plunge forward through the thickets of deceit and the swamp of denial that my life had become over the past dozen years. Somewhere in Camus, one of the characters mourns, “I see too deep and too much.” Those words had always touched me, even if they struck me as hyperbolic. But now I lived them, for I knew that Darryl Morgan was innocent of the crime for which he had been accused, convicted, and condemned to die. And I believed I knew who had murdered Solomon Zide. What I didn’t know was how to prove it and how to escape with my marriage and my career intact.
In October, finally, I heard from the Florida Bar Association in the state capital. I never found out who lodged the complaint, but I suspect it was done at the behest of the chief judge of the Supreme Court, he whom I had accused of making “a serious mistake.” I had been a wiseass; there was a price to pay. There’s almost always a price for quixotic derring-do, and it’s almost always not worth paying. This instance may have been the exception.
The Professional Ethics Committee of the Bar wanted to know how I could justify representing a man whom I had formerly prosecuted. They also asked me to respond to a complaint by the state attorney’s office in the Seventeenth District—Robert Diaz in Miami —that I’d “knowingly and willingly” misrepresented to my former client Jerry Lee Elroy the terms of a plea-bargaining agreement between Elroy and the state attorney.
What was I meant to do? Since humankind emerged from the cave, we’ve lived by an evolving rule of law that allows us to face the sunset without dread. But there were times when the rule of law didn’t keep its promise. There were even times when chaos was better than law if law proved barbaric.
Who defined “better”? The representatives of the law did, of course. At best, this was a tautology. At worst, it was a vicious circle.
I wrote a letter to the Ethics Committee. I said that I was representing Darryl Morgan because it was in the interest of justice for me to do so. He had asked me to represent him. And I intended to keep on representing him as long as he wanted me.
As regards Jerry Lee Elroy, I wrote, I didn’t know what in hell they were talking about. They were mistaken.
Then Beldon Ruth called me from Jacksonville.
“How are you, lad?” He was already assuming a lofty judicial air, and I sensed that it boded me no good.
“I’m well, Beldon. And you?”
“Couldn’t be better. And the family?”
“Great. And yours?”
That nonsense over, he got down to business. Our deal last summer, he said, hadn’t been open-ended. It had applied to my motion based on Jerry Lee Elroy’s affidavit. I had lost. It was a new ball game now. The state attorney’s office for the Fourth District was still the “appropriate government agency” that supposedly had to grant permission for me to represent Darryl in court, Beldon was still the state attorney, and he’d thought it over and decided that it was tainted, unseemly, against the canons—”and,” he said, “from what I hear, you’ve got your tail in a crack with the Bar Association. Time to back off, Ted my boy.”
“Horace Fleming granted my motion,” I said.
“For a hearing. That doesn’t mean you can be the lawyer to conduct that hearing.”
“Beldon, if nothing unravels, come January I’ll be there. I’ll have backup counsel, so you go ahead and file your protests and do whatever you feel you have to do. I think it’s shitty of you, but I suppose you’ve got your reasons.”
“You know them,” he said.
“And they’re not good enough.”
He thought that over. “If you go out and break both your legs, don’t come running to me.”
A week later the Ethics Committee sent me a letter by Federal Express overnight mail. This time they didn’t mention the accusation of my having lied to Jerry Lee Elroy; they had no proof, and the whole concept of plea-bargaining was best kept out of the public eye: it looked so tacky. But as regards the Florida Code of Professional Responsibility and its Rule 4—1.11, concerning successive government and private employment, the Bar Association felt I was guilty of “the appearance of impropriety.” In other words, it didn’t matter that Darryl Morgan wanted me as his lawyer. It didn’t look right.
I wrote back politely and said that was unfortunate, but nevertheless I was going forward with the case.
Harvey Royal asked me into his office. As a matter of form and courtesy, the Bar Association had sent copies of all this correspondence to Royal, Kelly, Wellmet, Jaffe &C Miller in Sarasota. The Bar Association, in other words, was snitching on me. They were in a fight they wanted to win.
Harvey sighed. “Ted, this is bad business. This is a little more serious than a broken nose. You could be censured. Even disbarred.”
“But I won’t be.” I tried to put a great deal of confidence into my voice and body language.
“Why are you so certain?”
“Because I’ll win the case in Jacksonville. If they disbar me, they’ll look bad. And we know that what they care about most is how they look.”
He tapped his fingers on the desk and said, “What about this other matter? That you lied to your client, this man Elroy. That’s a terrible accusation. I’m positive it has no basis in reality.”
I still don’t know why I did what I did. I suppose because I was tired of being everyone’s target. “Elroy is dead, Harvey. With a sea urchin shoved in his mouth. He can’t talk.”
Lines of age appeared to grow downward from Harvey’s narrow nose. He coughed a few times. “What are you saying?”
“That it’s my word against a dead man’s.”
The lines deepened. “Ted, I worry that you don’t grasp the significance of this. The state attorney in Miami seems to believe you told your client that part of the plea bargain was a requirement that he testify in the Morgan appeal. If you told him that, and you knew it wasn’t so, you acted unethically. Surely—surely you see that.”
I got up from where I sat, on the edge of his desk, and moved toward the door. “It would have worked,” I grumbled, “if some thug hadn’t slipped an ice pick between this asshole’s ribs when we were at the dog track. That was something no one could foresee.”
Harvey’s skin began to turn dapple gray, and his jaw was sagging. “You’re not implying that it’s true?”
I winked at him. To deny what he’d seen, he quickly closed his eyes, but I think it was too late; it also gave me time to slide out the door.
Fall moved slowly toward winter. I was nervous; I knew the upcoming hearing was the last chance to save Darryl Morgan’s life.
Toba and I were finally allowed to call Alan up at Oakwood in New York. He explained that the telephone was in a hallway and there was a strict five-minute limit.
“What are you doing with your time?”
“There are a lot of family meetings. And I read a lot.”
Family. Well, why not? I was doing what I could for Darryl, and Darryl’s brothers were doing it for my kid.
“Do you run? Can
you work out?”
“There’s no place to run. And there’s nothing to work out with.”
“But you’re not depressed?”
“I’m doing it one day at a time,” Alan said gravely.
Prison inmates said that.
Toba was working only part time in her real estate office now and spending the rest of the time canvassing for the local pro-choice group. She seemed to have cut out all alcohol except for one large glass of red wine with meals, and she rarely discussed the therapy she was doing with Dorothy Buford. But one December evening after dinner, the day before I was due to fly up to Jacksonville, she flung her napkin angrily on the table. “What a bitch! I never grasped that until now. So negative about everything! At college if she called and I said, ‘Hello,’ right away she’d say, ‘What’s wrong?’ I’m still never superficial enough or cheerful enough for her.”
She didn’t have to tell me who she was talking about.
“Or attractive enough,” Toba said, going into high gear. “The last time I stayed with her, she barged into the bathroom—I was naked in the tub. She frowned and went, ‘Hmmm.’ I said, ‘What’s the matter, Mom?’ ‘Did I say anything was the matter?’ ‘Well, you gave me a funny look and you went hmmm. Am I misshapen, or anything like that?’ ‘Tell me, Toba,’ she said, ‘does he still like to touch you?’ “
“Tell her I do,” I said. “In fact, how about after we stack the dishwasher?”
On the way upstairs, I asked if her mother knew what was happening now with her grandson.
“Of course. But she told my aunt Hermine that he’s at a weightlifting camp in the Catskills.”
I flew to Jacksonville the next morning. The Friday before the hearing was scheduled to begin, when I was sitting by the pool at the Marina Hotel eating a late breakfast and swilling a gallon of coffee that I hoped would get me through the day, Gary Oliver called.
“I’ve got some people here in my office,” he said. “I talked to them last night, but it was kind of late to contact you. I want to bring them over now.”
Clifford Irving's Legal Novels - 02 - FINAL ARGUMENT - a Legal Thriller Page 26
