Cache isn't well enough to be here, of course. I've let the court know she officially waives her presence. No problem there.
Marcel has come across the street from his hotel room here in Spokane. He is seated at my left.
There's a rustle at the courtroom door on my far left. Judge Maxim files into court dressed in his black robe and white shirt beneath and black necktie. He wears clear-frame glasses, and he reflects a yellowish hue as if maybe he's jaundiced. He takes his place up above us all and nervously shuffles the files on his desk. He looks at the clerk and gives a slight nod. The clerk calls the court to order.
"Mr. Lemongrass!" the judge booms down in a voice that bounces off the walls and would rattle the windows if there were any. "It's your motion, please proceed with any argument you wish to make."
Lemongrass hops to his feet; he's holding a yellow tablet with his finger marking his place as he begins speaking.
"Your Honor, this is a simple enough case. The defendant tried to take her life in the lockup at Purdy. She ripped up a mattress and tied a long rope of ticking around her neck. Then she looped it over the bars of her cell and slumped almost to her knees, shutting off her oxygen supply. She was found much later and rushed to St. Anthony Hospital in Gig Harbor. She remains there today.
"Now, at the time I filed this motion to accelerate her execution date, defendant Evans was in a deep coma. The doctors didn't know whether she would ever regain consciousness. The cost to the State of keeping this prisoner alive in the hospital was just over one-hundred-thousand dollars per day, a ridiculous cost for someone who would be dead in two weeks anyway. The motion made sense then, from a dollar standpoint and it still makes sense now. Accounts Receivable at the hospital tells me the State is now incurring costs of sixty-thousand per day to keep the prisoner in intensive care, even now that she's awake. In just under two week's time at sixty-grand per day, she'll run up costs over eight-hundred-thousand dollars. Nearly a million dollars wasted just so a dead-woman-walking can remain hospitalized another fourteen days. That just doesn't add up, both financially and legally. So, the State makes its motion to accelerate and asks that it be granted. Additionally, the State has moved to withdraw the defendant's life support, which is now moot. But in the event she lapses into unconsciousness again we'll be right back here, renewing that motion and asking for an accelerated hearing."
"Very well, counsel. Please be seated. Mr. Gresham, are you ready to respond?"
I jump to my feet. "I am, Your Honor."
"Proceed, then."
"I'd first like to address the counter-motion I've filed for a change of judge."
"No, I'd like you to argue the motion to accelerate, counsel."
"But Your Honor," I protest, "if you grant my motion for a new judge then there won't be a need to argue the acceleration motion. It will have to be decided by your replacement."
He narrows his eyes at me. The lens in his eyeglasses shoots a glint of morning light directly at my face. I blink hard. "Counsel, your motion for a change of judge is denied without comment. Please proceed to respond to the acceleration motion or do you want me just to go ahead and grant it without argument?"
"You're denying my motion for a change of judge?" I cry. "Has it escaped the court's notice that I've attached a letter from you, Your Honor, to a Seattle bank with a ten-thousand-dollar contribution to Kelly Larsyn's judicial appointment committee? Is the court seriously asking my client to believe that your contribution is anything other than a payoff to Mr. Larsyn for his refusal to let my client testify so your deceased nephew, Hiram Wilberforce, could be avenged?"
"Counsel, keep going with this, and you're headed to jail on a contempt charge. If there's anything your client doesn't need right now, it's to have her lawyer in jail for contempt. Your choice."
"Just so you know, I'll be appealing the court's denial of my motion for a change of judge."
"Understand, counsel. Appeal away. Now, your response sir. This is your last chance."
"Your Honor, while there might have been many facts about this case in dispute at trial, the key element of all elements is that your nephew, Judge Wilberforce, had sexual intercourse with my client. Not only did he have sex with a minor, but that also makes her a victim incapable of consenting to the act regardless of his ludicrous claim in the CPS notes that she had blackmailed him."
"Careful, counsel, it was I who instructed the jury on aggravated homicide by killing of a judge. That was all taken into account by me in formulating the instruction I gave and in ruling certain key facts proven at trial. Facts needed to justify the giving of the motion."
"Which I can only understand is your rationale for totally ignoring that his sexual assault victim was a minor. Isn't that what's happened here?"
"Counsel, I'm not a witness in this case. Asking me questions won't be countenanced. Do it again, and you're off to jail."
"Is that how the court avoids these compelling facts? By putting the advocates of these compelling facts in jail? Then jail away, judge. It won't be the first time for me."
He knows I know I have him. There's no way in hell he can put the lawyer of a death row inmate in jail this close in time to the execution date. It would be automatic grounds for overruling the execution warrant by showing evil intent or a conspiracy against the inmate. I can virtually say anything I want without exposure.
"Counsel, last call. You can finish your response or I will grant the State's motion and won't put you in jail. But your daughter—client—will die just that much sooner. Stall at your own risk, sir."
Slick: he turned the tables on me without any effort at all. Nicely done, Judge.
"As I was saying, Your Honor, the State's rationale, based as it is totally on irrelevant financial concerns, should be summarily denied. It deserves no comment. We in the United States don't execute people because it's cheaper to do so. The notion itself shocks me, and it shows a total disregard for the humanity of this prisoner at least and violates her constitutional right to be spared cruel and unusual punishment. And here's another thing for the court to consider. Send my daughter off to die at an early date because it's financially justified and I will file a lawsuit against you personally, Judge Maxim, that will drain your resources every month when you pay your legal bills for the rest of your life. That's the sentence I will pass on you. Grant this motion by the State at your own risk, sir!"
Back at you. He fumes, he turns seriously colorful, running from a yellow jaundice to a purple rage to a blazing white that only wants to strike back with all its power.
But he can't. For the reasons I've given. Mainly that I'm the lawyer for a death row inmate. That's a Get-Out-of-Jail-Free-Card anywhere in the U.S.
"Counsel, the motion will be granted. The date of execution will be moved from August 4 to July 25. For members of the media in attendance here today, this order by the court will save the State about a half-million dollars in hospital costs. Is there anything else, gentlemen?"
"Yes, what's your address where I can have you served with my lawsuit, judge?"
"You are found to be in contempt of this court, Mr. Gresham. You are sentenced to jail for seven days. You will report to the jail within twelve hours of your client's execution. Is that all, sir?"
He has me after all.
But seven days is nothing compared to eternity. I can do seven days standing on my head.
Now if I could only step in and be the life sacrificed for this state's notions of right and wrong instead of my client, my daughter, Cache Evans.
It's time to appeal.
Lemongrass tugs at my arm as we're filing up the aisle, leaving the courtroom.
"Got a minute?"
"Yes. What's up?"
"I'm going to get her."
"Say again?"
"I'm going to get your daughter off the State's food trough. She's cost us enough already."
I'm so angered by this, so enraged, that I draw back my fist and am bringing it forward when I suddenly feel
a strong hand arrest my swing from behind. I turn to see. Marcel. Marcel has stopped me from getting myself thrown in jail on an aggravated assault charge.
Lemongrass laughs, baring big yellow teeth at me. His voice and mouth and teeth remind me of a braying jackass. How could I not have noticed this before?
"Jackass," I snap at him.
"Hey, asshole. I'm turning off the spigot. Now what's the big brave man going to do, hit someone smaller?"
"Yes, I am. Except you aren't going to see it coming next time. And Marcel won't be around to stop me next time. And it won't be a fist. It will be something that sounds like a gun. Oh, that's right, you've never heard a gun just behind your ear before, have you? Guess what? You won't hear this one, either. But I will say your name. Then you'll know it was me just before the lights go out forever."
Lemongrass's blood drains from his jaundiced face. He jerks his head this way and that. "Anyone? Did anyone hear the threat Mr. Gresham just made at me?"
A blue-shirted sheriff's deputy following us up the aisle, nods.
"I heard him, Lemongrass. And I heard you, too. Even if he does shoot you no one's going to try very hard to track him down. Not after what you said first."
We continue our slow single-file to the courtroom door where, at last, Marcel and I are free of Lemongrass.
I'm thinking only of destroying him on appeal.
And maybe just a little bit about procuring a gun.
It turns out Larsyn was in the courtroom when we made our arguments. Within the hour, he files his motion to withdraw as attorney of record and Judge Maxim signs off on the motion. No hearing, no argument, nothing; just grants the motion.
I'm upset with this development because I'm concerned it might affect my tenuous ability to appear on Cache's case because I'm not a Washington-licensed attorney and because Larsyn was, if you will, vouching for me. Now he's gone, and now that patina of legitimacy by association with a Washington lawyer is gone, too.
However, no one raises the issue, especially Judge Maxim. Evidently, it's the same thinking: you don't throw a death row inmate's lawyer off the case in the two weeks before her execution. If you do, there's going to be a huge appeal and a huge delay while the Court of Appeals calendars and countenances all argument. Maxim doesn't want that, so, the upshot is, I remain on the case without the association of local counsel.
So be it.
Just before the courthouse closes for the day, I file my emergency appeal and petition for post-conviction relief. Rules of Appellate Procedure 17.4 require certain pre-conditions for an emergency appeal, and I take all steps to meet those. I've already made the telephone calls and copies of filing to Lemongrass and the court of appeals.
The Chief Judge acts immediately and grants my motion to expedite. The Court of Appeals will hear my post-conviction petition tomorrow, right here in Spokane in the Division III Court of Appeals.
Washington State post-conviction appeals allow me to raise the claim of ineffective assistance of counsel in the trial court. We're talking Kelly Larsyn here, who advised Cache she shouldn't testify. In my petition, I reference the evidence that Larsyn should have used at trial, in the form of Cache's affidavit and the evidence that arose when Judge Maxim tipped his hand by paying off Larsyn for withholding the testimony about his nephew's rape of Cache. This is the letter Maxim wrote along with his bank deposit.
I'm off to my hotel here in Spokane.
Back at the hotel, I find Lucky all wagging tail and happy to see me. Lucky has been visited several times by the concierge service. He's been watered and walked and peed on all the planters on the front side of the hotel. I tip them a hundred dollars.
Marcel comes by. We talk for an hour or more. I unload on him—I'm not angry with him, just with the system, just with being home-towned by the good old boys. He presses me for alternatives. What if the court refuses to help her tomorrow? What then? I don't have any answers. He says he may have an answer, that we'll talk again tomorrow. What's he up to? He's closed-mouthed, and I know better than to press him to find out what he's planning. He does say he's going over to Gig Harbor tonight and I can only shake my head. Does this guy never tire out? We shake hands, and he's off, finally.
Now to get some sleep and wake up refreshed and ready for war, day two.
Marcel
Marcel parks his second rental—a gray Corolla—two blocks away from hospital parking. He removes a black locker bag to take along. He is wearing black pants, black turtleneck, and black watch cap, so the night swallows him up. Ever so swiftly he makes his way to the hospital. Downstairs, just off the St. Anthony Hospital lobby, he steps into the restroom when no one is watching and makes his way to the far stall. Closing the door behind him, he undresses.
From the black bag, he withdraws green scrubs, tops, and bottoms. He puts these on, easing the trouser legs over his black running shoes. Then he wraps an expensive stethoscope around his neck and loops an ID badge and security key card on a chain around his neck. He drops the car keys in a pocket of his scrubs. The black bag accepts his black clothes. He folds the bag and crosses to the bathroom's used-paper-towels receptacle. Scooping an armful of its contents out, he stuffs the black bag below and then replaces the upper contents on top of the bag. Hidden away as the clothes are, Marcel is betting the maintenance people won't empty the receptacle before he returns. If they do, nothing of value is lost.
The elevator up to Cache's floor, bottom to top, takes less than two minutes. He commits the time to memory.
Stepping off the elevator, he passes by the nurses' station, averting his eyes as he goes. Then he stops. Secrecy won't help. So he returns to the nurses' station and introduces himself as a first-year resident on rotation to neuro. He's given very little notice by the nurses. Residents rank lower than whale shit, they've been known to say.
Then he resumes his hurried watch to Cache's room. Outside her door, he checks the sweep hand on his watch. Thirty seconds, nurses' station to guards sitting half-asleep outside the door. He adds in another fifteen seconds for taking out the guards. Forty-five seconds from the elevator on into her room.
The guards don't even look up as he passes by. Just another guy in scrubs going inside to take vitals and yammer and yaw about the patient like they all do.
He reaches her bed and finds her sleeping. Good, no need to play like he's a real doctor with her. He spends five minutes at her bedside, watching the sweep hand on his watch tick off the seconds. Then he steps up to the keyboard mounted below the flickering monitor panel. He acts as if he's inputting data into her chart, but is really just acting. Nothing gets entered. He turns to leave.
One of the guards is staring him right in the face. The guard reaches for Marcel's ID badge and photo and studies it. His lips move as he reads, looking from badge to face, badge to face, satisfying himself that the guy is who he is pretending to be.
"Just checking," the smiling guard reassures Marcel. "This patient is on death row. So no need to take perfect care of her." This time he smirks—a shared confidence weighted in humor. Then he backs out the way he came. Marcel makes a note: this one is the guard he'll take down first when he returns. Leave him with a permanent scar, maybe a blade down his cheek.
"Perfect care, your ass," he mutters to himself.
Back at the elevator, he's now almost seven minutes into his visit from the time he stepped off the elevator. Add in another thirty seconds to dress Cache in something loose and long, plus the flip-flops. Maybe eight minutes on the floor, two minutes up and down—approximately twelve minutes in and out. Maybe much less. It depends on variables he knows he can't control. But it will need to be timed so there's enough of an edge to make the bus that will be coming downstairs at the time Cache emerges from the hospital.
It can be done. One of the secrets that will give him an edge will be to call the guards into the patient's room as if they're needed there when he first arrives. Then he can dump them where he falls, out of the line of view of anyone in th
e hallway coming or going when he's done and out.
In the beginning, Marcel himself will be dropped off fully clothed in the scrubs with his ID and stethoscope, no need to change and hide clothes when he goes inside. Coming back outside with Cache, a bus runs until one a.m., stopping every twenty minutes just next to the visitors' lot. She will ride alone on the bus down two stops, where he'll be waiting with a car. This way there will be no memory of Cache with another person boarding the bus.
Will his plan give him enough time to execute from start to finish before a nurse making rounds comes into Cache's room? That's an unknown that must be planned for. Marcel doesn't want to hurt a caregiver, only take her out of the picture. He'll work on how that should be done in case he is interrupted, or the nurses look up and notice him leaving with the patient. If the latter were to happen he'd merely smile and say they were heading to radiology, so he'd wait and have her change clothes once they were on the elevator rather than back in her room.
It is coming together.
One last thing. Some of the guards are kind to Cache. Marcel wants to leave them uninjured. Of course, if it turned out to be tonight's clown guarding when it was no longer an exercise but the real breakout, Marcel would do whatever was needed to take him out. Nothing lost there.
At the lobby, he circles back to the men's room. Sure enough, his black clothes bag awaits him deep inside the silver receptacle.
He changes clothes and disappears out the main entrance.
The doctor is no longer in the hospital.
DAY 13/30
As I walk into the Court of Appeals courtroom 1, Cache's execution has been officially re-set by order of Judge Maxim for July 25. Today is the 16th, so we're only looking at nine days before they put the needle in her arm. Now I see why the Court of Appeals agreed to hear my appeal as an emergency matter and expedited hearing.
30 Days of Justis Page 12
