30 Days of Justis

by John Ellsworth

  "What about the application for accelerated hearing I'm filing? How does that get handled?"

  She smiles. "I will personally hand-carry a copy of this filing upstairs to the judges. Give me a number where I can call you."

  I've rarely been treated this well in a court anywhere anytime. I write out my phone number and hand it over.

  "As soon as I know something I'll call."

  "What's your name?"

  "Kitty Hawkins."

  "I am so grateful for your help with this. Thank you."

  She levels her gaze at me. "Counsel, were I sitting on death row instead of this woman I'd want someone just like me to help at this point. Getting this heard on an accelerated basis is critical, and I know that. I won't stop until it's docketed. Then I'll call you. Are you getting your five dollars worth?"

  I smile. "It's a good start. We'll see what comes next."

  "Wish me luck," she says and heads for the hallway. I follow her out and watch as she disappears upstairs.

  Now I feel useless. What to do? Do I leave the courthouse and go back to the Davenport? Or do I wait around to see if, for some reason, the court would want me to appear in court or chambers today? I decide to stick around.

  Outside, a motorist at a red light gives me directions to a coffee shop. It feels good to stretch the legs.

  Down to the corner and up two blocks I go, no hurry, taking in the sights and sounds of this afternoon on my grandson's fifth birthday. Just the thought of him puts a spring in my step. The thought of him and his mother reunited, however, brings me to a sudden stop. I decide to go back where I can be closer to the court, not further away.

  Retracing my steps, I feel my phone vibrate in my suit pocket. U.S. District Court calling. I answer.

  "Mr. Gresham, this is Kitty Hawkins. You're on before Judge Malfi Acosta at nine o'clock tomorrow morning. You can access a copy of the order he just signed. It'll be on the court's website after six tonight. How am I doing so far?'

  "Five bucks is all this cost me? This is better than Costco."

  "We aim to please. See you in the a.m., Mr. Gresham. Get a good night's sleep, sir."

  "I cannot even begin to thank you, Kitty."

  We hang up. Using my phone, I browse to 1-800-Flowers and order a vaseful of flowers for Kitty and her office mates. It will be delivered tomorrow.

  I grab a cab and set off for the hotel. In the backseat, I'm reminded, for some random reason, of Tinkerbell and Peter. "Clap if you believe in fairies," Peter tells the audience.

  I clap, quietly, in the backseat. Not because I believe in fairies but because sometimes there's a Kitty Hawkins I can believe in.

  The driver looks at me in the rearview mirror. "You clapping back there?"

  "I am."

  "Same price. Knock yourself out."

  DAY 18/30

  I am seated at counsel table at 8:30 on Friday morning when in walks Franklin Lemongrass and a man I don't know. Both men are wearing gray suits the color of ash and talking animatedly, stepping on each other's lines, locked in strenuous disagreement. In fact, the nearer they get, the more I realize they're having a knockdown drag-out fight.

  "Morning, gents," I pipe up in a bright voice. "Did you leave the clown car parked out front?"

  Neither bothers to answer. They're stewing, refusing to speak to each other and, of course, ignoring me. Which is fine. I'm after Lemongrass anyway. Marcel has dibs on Larsyn, but I've got Lemongrass, this mean little bastard from the AG's office. Right now I'd stand up and batter Lemongrass around the head if I thought I wouldn't go to jail for it, but I would. So, we'll settle this with our brains instead of our brawn.

  Today I know and can prove Larsyn and Judge Maxim greased the rails for Cache by paying off streetwalkers so they wouldn't be available for Cache's trial. It turns out Larsyn wasn't ever going to call them anyway, but it's still there, the conspiracy.

  "Did you girls get my application?" I chide them. Again, no answer.

  "Is this it?" Lemongrass at last replies, holding up my petition and my emergency motion. "I thought this was toilet paper you sent over as a joke."

  I ignore him. "Are you planning on filing a written response? If so, how about passing over a copy before court begins."

  "Oh, it isn't here yet," says the second gray suit.

  "And who are you, sir?" I inquire.

  "Steve S. Shofelt, Assistant U.S. Attorney. I'm appearing on behalf of the U.S. Attorney's Office. By law, we're to litigate these cases."

  "And your position on the death penalty, in this case, is what?" I ask.

  "Our position is that your client should be executed."

  "Oh, I've never just gone along with the state like that. I have my views on these cases."

  "Meaning?"

  I spread my hands. "Meaning that as a trial lawyer in the Washington, D.C. Attorney's Office I've never been asked to work alongside any state attorney's in federal court. It's new to me."

  "Hold on. You're an assistant U.S. Attorney?"

  "I am."

  "Then you have a conflict of interest in appearing here as defense counsel in the court where you're a prosecutor. A major conflict of interest. I'm going to request the court to excuse you from the case by that conflict."

  My heart jumps in my chest. This had crossed my mind several weeks ago, but I had stuffed it down, ignored it. Now it surfaces again and, while I hate to admit it, Steve S. Shofelt is correct. I shouldn't appear with this conflict. There's only one thing I can do, but I wait for the court to address the issue first.

  As soon as Judge Malfi Acosta takes the bench, she peers over the top of her reading glasses. "Gentlemen, the court has been called to order. We're on the record in the Cache Evans post-conviction matter. Does either side have any preliminary matters before we proceed to the merits of the petition for writ of habeas corpus?"

  It's a setup. Ordinarily, a judge wouldn't ask for preliminary matters in a motion setting like this. These two gentlemen have approached her ex parte, meaning, without my participation. A very dirty and illegal thing to do. But Judge Acosta seems to have overlooked it and is now coming after me.

  Shofelt is immediately on his feet. "Your Honor, we've just learned that counsel for the petitioner is an Assistant U.S. Attorney in Washington, D.C. As such, he should be conflicted out of this case."

  She doesn't miss a beat. None of this is new to her—I see it now.

  "How do you respond to this counsel?" Judge Acosta asks me.

  That was short and sweet. She's coming after me, and I know it. First the behind-the-scenes meeting and now turning the court's eye on me. I know what I must do.

  "Your Honor, just this morning I have resigned my position with the U.S. Attorney's Office. I'm here as private counsel for the defendant."

  Shofelt stutters but doesn't manage to make an intelligible response except to say he'd like me to produce a copy of my letter of resignation. I say I will today before five o'clock.

  He re-takes his seat. Now I've got a new angle to deal with: I'm going to have to resign from a job I've enjoyed. But the other side of the coin is that Cache's life comes first before my career. It's done, and it stays done.

  "Very well, counsel, but please provide the court with a copy of your letter of resignation as well by five p.m. today. Do you understand?"

  "Perfectly, Judge."

  "All right, it's your motion today, so please proceed."

  "May it please the court. United States Code Title 28, Section 2254(d) requires that a state court apply established federal law in its adjudication of a prisoner's claim for habeas corpus relief. This flows from the case of Strickland v. Washington, where a federal test was developed that a criminal defendant can seek relief for an ineffective assistance of counsel if he proves (1) that his counsel's performance was objectively unreasonable, and (2) his counsel's error prejudiced the outcome of the case.

  "In a nutshell, if Cache Evans can show—which she can—that Attorney Kelly Larsyn's defen
se of her in the state court was unreasonable and that his negligence prejudiced her, she is entitled to habeas relief. On this basis, we are here today. I have attached affidavits from Eleanor Riddell, Millicent Evans, a clerk of the court, several ladies of the night, and me, which show how Larsyn did everything he could to throw my client's case, to allow her to be convicted.

  "Moreover, I've proven by affidavit that Attorney Larsyn and Judge Maxim conspired to have the jury find my client guilty of first-degree murder in the death of Judge Hiram Wilberforce, the nephew of Judge Maxim, the trial judge. Judge Maxim's letter and donation to Larsyn are in the file. These are major grievances all, any one of which is grounds enough to set my client free and dismiss the case against her. Which is what we're asking the court to do. I have more I can offer, but I would ask that the court first read my complete motion and the affidavits and letter and blood tests mentioned."

  Judge Acosta pushes her readers back up on her nose and clasps her hands on the desk before her. "Counsel, I have read your affidavits. And the court finds that, as a matter of law, the Strickland test doesn't apply in this case."

  I'm immediately panicked, but I keep it tamped down and respond.

  "Judge, the Strickland case is settled law from the Supreme Court. It cannot just be set aside in one of these cases merely because you decide to set it aside."

  "Counsel, are you seriously telling me how I can run my court and how I can make the rulings I make? Is that your motif here today?"

  "It isn't, but on the other hand I am the advocate for Cache Evans, and I know, and counsel knows, and the court knows the Strickland Test is mandatory. It's a requirement."

  "Having read the motion and all attachments, the court finds that, as a matter of law, there is not an objectively unreasonable fact situation raised by you, counsel. The matters you have listed out are all questionable, particularly the conspiracy notion. I happen to know Judge Maxim, and I know him to be a man of unquestionable honesty and integrity. He wouldn't conspire with anyone ever for any reason, and the court takes judicial notice of that integrity."

  "Judge, what about the fact Mr. Larsyn did not attempt to show Judge Wilberforce's HIV could come from several other women he had sex with? Does the court take judicial notice of Wilberforce's integrity too?"

  "I believe Judge Wilberforce when he says he was blackmailed by your client. What happened after that, I have no way of knowing. But, yes, I cannot find that the affidavits of prostitutes and a convicted murderer can overcome the integrity and value I place on Judge Wilberforce's claim. He just can't be overruled like you would have it, counsel. I'm not prepared to do that. I won't do it. Anything further?"

  "No, Judge. I get it. I've just been home-towned. Judges looking out for other judges."

  She ignores me and plunges ahead with the intention of quickly ending our session.

  "Counsel for the State of Washington, anything you'd like to add?"

  "No, Your Honor."

  "Counsel from the U.S. Attorney's Office, Mr. Shofelt?"

  "Nothing, Your Honor."

  "Very well, the court denies the petitioner's request for a writ of habeas corpus. The execution of your client will continue as ordered by the governor, Mr. Gresham. We stand in recess."

  I sit there, stunned.

  Lemongrass and Shofelt are chuckling among themselves. Whatever hostility that existed between them before has dissipated. They are patting backs and allowing each other to go first out of the courtroom until they're all but falling over each other. I turn in my chair because, as they waltz each other up the aisle, Lemongrass turns to me and calls out, "Counsel, we have one ticket left for a ringside seat to your client's execution. You can bring a date with you."

  I shove my briefcase aside and turn to run up the aisle after this insane person.

  But, luckily, Marcel has come into the courtroom and evidently observed the proceeding. From the rage on his face, I can see he has also heard Lemongrass's insult. He steps into the aisle, blocking me from murdering an assistant attorney general.

  "Let it go, Ace. You're gonna kick their ass before it's done. And then you're going to sue them personally, their wives, and their kids."

  He couldn't have arrived at a better time. Marcel is a necessary ingredient in my life when the bad guys are after one of my kids.

  I would kill for my family.

  Brent Massingill

  We fly back to Spokane and rent a car at the airport. Marcel swings by a pawn shop. He tells me to wait in the car. He returns ten minutes later with a small case. I don't even ask.

  He drives us east of Spokane. He knows the way to Serenity House, and he drives by and gives me a look. It appears to be an abandoned grade school with after-thought living quarters constructed from doublewides. There are few lights burning where the children would be housed. I check my watch. It's still early, just dark.

  "Hang on. Now we're headed to Massingill's place."

  "How far?"

  "Less than a mile."

  "Does he live alone?"

  "He does. I've been out here a half-dozen times, and he's the only one out and about. It's a small apartment anyway. Wouldn't hold but maybe one more person."

  I look at him quizzically across the dashboard light. "How would you know how many people it would hold? You've actually been inside?"

  "Now, Boss. You know better than that."

  "Sheesh. Just don't get busted."

  "Now, Boss. You know better than that."

  A head shake. I do know better than that.

  He turns off his lights as we round the corner onto Bayonne Road. Then we travel maybe a hundred feet, up into a parking lot, where we pull into an empty slot. It's a small complex, maybe six apartments, ranch-style. The grass is high, and the cars parked around are at least ten years old.

  We get out, close our doors without slamming, and head for the farthest porch light.

  Marcel is lugging the small case he's purchased from the pawn shop. I have no idea what we have.

  I knock on the door. Marcel rings the bell.

  In less than fifteen seconds the door opens and a youngish man—maybe thirty years old—stands looking out at us, his mouth agape. "So?" he greets us.

  "We're selling insurance," says Marcel.

  "Don't need insurance." He begins closing the door.

  But Marcel inserts his boot. "Not yet. You haven't heard our full spiel."

  The man shrugs and steps back. He's outnumbered, so we simply step inside. There's a TV against the back wall and a portable air conditioner humming in the west corner. A bamboo-frame couch with a forlorn looking footstool is arranged near the tube.

  "Anyone else here?"

  The young man looks at Marcel. "Who the fuck are you guys? I've got a gun."

  "Go get it if you want to die. You might wish you had done just that by the time we get finished. Lead me to the kitchen."

  "Fuck you!"

  Marcel hands me the case he's carrying. With a punch so swift it would make Ali jealous his right-hand strikes Massingill's throat. Our host immediately crumples to his knees, gasping for air. "What…the…"

  "Like I said. We're going to the kitchen." He holds out a hand and pulls Massingill to his feet. We pass into the next room.

  Massingill flips on the light, and I get a good look at him. His hair is buzzed, and he's wearing a wife-beater with a picture of Mickey Mouse ogling a sweet young mouse. Show Me Your Mouse? Mickey is asking her. I don't get it.

  "Have a seat," Marcel tells Massingill. He looks around and sees Marcel means the kitchen table. It's small, pushed up against a wall, a chair at each end, one in the middle.

  Massingill sits on the right end of the table. He still hasn't taken his hand away from his throat. He hacks and coughs, and I realize he's trying to make it appear much worse than it really is. Sympathy ploy.

  Marcel opens the lid of his case and removes a portable tattoo machine. There are three vials of ink attached, red, black, and green. "What
color are you partial to?" Marcel asks. "It better be red, black, or green."

  "What the fuck?" says Massingill, who by now has recovered enough pride to give off a whiff of belligerence. Exactly the opposite of what he should be doing with Marcel.

  "The fuck?" Marcel mimics. "This machine right here is insurance. You bought a policy."

  "What the fuck?"

  "Oh, yes. It's gonna give young girls an insurance policy guaranteed to make them run from you."

  "What—what—"

  "You can get your tattoo free. It's either on your tongue or your forehead. Take your pick."

  "What—what--"

  "Forehead you say? Fair enough. Now lean forward while I do you."

  "Do me? You're seriously thinking I'm gonna sit here and let you tattoo me with that thing?"

  "Oh, that's right. You were going to rape me instead. Just like you raped Cache Evans. Remember her, asshole?"

  "Cache Evans? Yes, I—no!"

  "Like I said, forehead or tongue?"

  "Neither one. I'm calling the police."

  Again with a punch so fast it's a blur. When Marcel pulls his hand away, the teacher's nose is smashed off to one side of his face. Cartilage is just below the surface, and both nostrils are flowing red.

  "Now lean the fuck forward, teacher!"

  This time there's no hesitation. Marcel lifts the business end of the machine and begins playing the needle across Massingill's forehead."

  "Boss," says Marcel without taking his eyes from his work. "How do you spell ‘rape' again? Oh, never mind. I just found it right here on this asshole's forehead."

  It takes almost two hours. But when Marcel switches off his machine, there is inscribed across Massingill's forehead two lines of text. The first one says, "I Rape Girls." The second line says "#MeToo."

  The letters are done in black. But they are edged with a red stroke, giving them a neon appearance clear across the room. I'm standing in the doorway, and it's very clear.

  Massingill looks into the mirror that Marcel makes of his iPhone. "Read it and weep," he tells his client.