Two Lost Boys

by L. F. Robertson

  “I think his mother must have warned him away,” I said.

  “Maybe; I don’t know. But this morning he brought it up again. This time he said he didn’t really think his sister would tell a lie like that, but that she must have just had a bad dream or something. Obviously, he feels some loyalty to his sister; he didn’t want to call her a liar. But at the same time he wasn’t telling me it had happened. I could still put something about the incident and what he said into my report, but you said yesterday you didn’t think I should, if Andy doesn’t endorse it. Is that still how you want to go?”

  “Yes,” I said. “I wish he were willing to confirm what he told me. But since he isn’t, there doesn’t seem to be much we can do. I’ll check with Jim, but I think he’ll agree with me.”

  “Okay,” Dan said. “I’ll let it go unless I hear from you. As for the IQ testing, I scored it last night, and he’s definitely in the mildly mentally retarded range.” He explained how Andy had done on the subtests that measured a person’s skills in different types of brain functioning: verbal, math, short-term recall, longer-term memory, mental flexibility.

  “And for the neuropsychological testing, I’ll need to score it and get back to you with the full picture. But I can tell you it’s likely he has some pretty substantial deficits. He had trouble with all but the simplest sets. I’m figuring his overall score will be in at least the moderately impaired range. I’m surprised no one did neuropsychological testing before his trial.”

  I’m never sure how to react to news that a client has shown evidence of brain damage. On the one hand, brain damage can save your client’s life. When the prosecutor argues that your client chose to use drugs and commit murder and other crimes simply because he’s antisocial, cold-blooded, pleasure-seeking, and selfish, you can counter with expert testimony that he has a defect in his brain that keeps defeating his attempts to control his impulses and make good choices in life. On the other hand, it means your client has what amounts to a permanent and crippling mental illness and will live his life in a chaos of mistaken perceptions and unpredictable compulsions. Not exactly a cause for wild cheering.

  As we waited for the check, Dan said, “I’m supposed to go skiing with the kids this weekend. Is it okay if I finish analyzing my data after that and call you early next week? I know you need it pretty quickly.”

  I swallowed a mouthful of salad. “Should be okay. Our filing deadline is the middle of next month.”

  In the parking lot, watching Dan’s car pull away, I felt suddenly empty with exhaustion. I’d made the long drive from Corbin’s Landing two days in a row, but beyond that, I realized I’d been tense with waiting: worrying whether Andy would refuse to see Dan again; whether something else would go wrong—some bureaucratic snafu in the prison, a sudden lockdown of prisoners—that would derail the examination; whether the testing would show that Andy wasn’t mentally retarded after all. Everything had gone well, and the results seemed even more favorable than I’d expected, but my body had stopped pumping adrenalin, leaving me feeling depleted and knocked down. I sat for a minute or two, contemplating the long drive home. Then I got out of the car and walked back into the shopping center and into a chocolate store I’d seen on our way to the pub.

  When I drove out of the lot, ten minutes later, I was armed with a very hot latte (with low-fat milk to soothe my itching conscience) and a quarter-pound of buttery caramels and dark chocolate-covered orange peel. When the habeas petition was finished, I told myself, I would go on many hikes up in the hills. Maybe I’d even get a mountain bike. In the car, I ate a caramel and wondered what the possibilities were for going into business making candy. No more negligent lawyers, no more painful interviews in trailer parks and small sad towns, no more grim visits to San Quentin. I took a sip of the latte. The coffee was good, and its toasted, slightly bitter edge brought my senses back to reality as I started the engine of my car.

  38

  No candy store, no bakery. During the next few weeks I griped about my choice of careers, and my decision to get back into this one, as I wrote page after page of legal boilerplate and factual narrative for the petition, and Jim and I edited the declarations of Nancy Hollister and Dan Moss.

  Nancy had worked on habeas cases before, and she knew what we needed; her declaration didn’t require much work. But Dan was new to litigation and had never written a report for a case. I wrote most of his declaration for him, working from my notes of what he told me, calling him almost daily as I tried to translate the jargon of psychology and neuropsychology into language a judge or law clerk would understand and a jury might have found meaningful and sympathetic. Dan quickly understood what I was looking for, but it still took a lot of hours before we got everything right and had a declaration he felt was accurate and something he could stand behind. “My wife’s starting to wonder what’s going on between us,” he joked one weekend, after my third call in a day.

  March blew in with rainstorms that collapsed hillsides and sent boulders and chunks of dirt calving like icebergs from the cliffs of the coastal range. A section of Highway One south of us was closed for a week after a rock slide, and a downed power line left Corbin’s Landing without electricity for two days.

  Before the electricity went out, I had emailed what I hoped would be the final draft of the petition to Jim. Nevertheless, during the power failure I drove north each day through sheeting rain to Gualala, the nearest actual town, where I set up my laptop in a coffee house with Wi-Fi, worked while nursing a succession of lattes, and exchanged emails with Corey about margins, titles, and the naming and numbering of exhibits.

  Dr. Moss’s findings had been as helpful as he’d anticipated. Our phone conversations about them had been awash in technical terms—lateralization, executive function, crystallized knowledge, the Halstead Impairment Index—but the bottom line was where Andy needed it to be. His full-scale IQ was 68, and the functioning of the parts of his brain that process and remember information was well below normal. Translating the findings into a written declaration in support of the petition had been slow but satisfying work, and in the end we had what I hoped was a fairly clear explanation of what wasn’t working right in Andy’s brain and how his disabilities left him adrift in the world, bewildered by the everyday complexities of life.

  Dr. Moss’s findings and opinions supported a suite of arguments in the petition: that the constitution prohibited the state from executing Andy because executing a mentally retarded defendant would be cruel and unusual punishment; that even if Andy didn’t meet the test for mental retardation the evidence of his low intelligence and other brain deficits might have moved the jury to doubt the prosecution’s claim that he was the ringleader in the crimes and show him the relative mercy of a sentence of life without possibility of parole; and that Andy’s trial lawyer provided him with ineffective assistance because he could have found all this out by looking at his school records and hiring a neuropsychologist.

  The day Corey emailed me to tell me the petition had been filed, I thought I ought to celebrate, but I couldn’t think of anything to do. In the end I drove down to Vlad’s pub on the highway and marked the occasion with a pint of hard cider and a plate of brie and crackers.

  After finishing the petition, my mind felt drained of words and any ability to put them together. I spent the next several weeks repairing deer fencing, grafting and planting apple and pear trees, repotting lemon trees, digging compost into the garden beds, and writing up billing claims itemizing my work on Andy’s cases and the other appeals I’d been too busy to bill on. Because I’d stopped taking new work to finish Andy’s petition, I made a few phone calls to the agencies in charge of appointing lawyers to criminal appeals, to let them know I was available again. My life began to look a lot like what it had been before I took Andy’s case.

  Jim and I visited Andy together, to give him a copy of the petition and exhibits and explain to him, as best we could, the case we had tried to make for getting him a new trial. And
y made a show of looking through the papers, but he didn’t seem to notice the claims based on mental retardation. Once I reassured him that we hadn’t included anything about Evie killing Len, he seemed content to put it aside and make small talk.

  Afterward, I talked with Jim about Carla and suggested asking Judge Fuentes for an order allowing us to take a videotaped deposition of her testimony. If Andy received an evidentiary hearing on his habeas petition, and Carla wasn’t around to testify in person, her written declaration wouldn’t work as a substitute; it would be considered hearsay. It wasn’t completely useless: mental-health experts, like Nancy Hollister or Dan Moss, could refer to her declaration as part of the basis for their opinions about Andy’s psychological and intellectual functioning. But the judge wouldn’t be able to consider Carla’s declaration as direct evidence of the facts in it, unless the attorney general agreed to allow it. And in the bitter gamesmanship of capital litigation, for the attorney general to stipulate to anything that might help a defendant get a new trial was practically unheard of.

  A court-approved deposition, on the other hand, where the attorney general could cross-examine the witness, would be the equivalent of presenting testimony in advance of the hearing, and the videotape of it would be admissible evidence. Motions for depositions were commonly granted by the federal courts for witnesses who were very old or ill, so Jim had a good shot at getting the court to approve deposing Carla.

  For a couple of months after the petition was filed, I didn’t hear anything from Jim or Corey, except an email telling me the unsurprising news that the attorney general had requested and received an extension of time to file a responsive pleading to the petition. From experience, I guessed it would probably take nearly a year for Brenda Collinson, the attorney general in Andy’s case, to read what we’d written and write an answer. Even Dave had stopped emailing. It was as though we were all too tired of the case to deal with each other.

  Ed went on a fishing trip to Baja, finally giving me the chance to repay him for all his dog-sitting by keeping Pogo for two weeks. It was two weeks of doggy day camp, with long walks with Charlie and Pogo every day and trips to dog-friendly beaches where Pogo could work off some of his boundless energy chasing tennis balls and seagulls.

  I got appointed to a few more appeals, and I decided to take another one in a capital case—just the appeal. No witnesses to interview, no traveling to exotic locales—just reading and research and writing and visiting my client every now and then to touch base. It was a three-defendant gang case from Los Angeles County, involving two crimes: a robbery and murder at an ATM and a drive-by shooting that left two bystanders dead. My new client had been arrested a day after the drive-by carrying a Glock that was later identified as the murder weapon in the robbery. That, a blurred photo from the ATM camera, and the testimony of one of his codefendants in the drive-by, who was allowed to plead guilty to second-degree murder for his cooperation with the prosecution, were the major evidence against him—though it didn’t help his defense that he’d been caught in a taped phone conversation trying—allegedly—to arrange to have the snitching codefendant killed before the trial.

  The client himself, Arturo Villegas, was short, tattooed, and painfully young, puffed up with immature swagger and bravado. He had been eighteen when he was arrested, and twenty-one when he was sentenced. Four years on death row waiting for a lawyer and a few months in the hole for fighting with a rival gang member hadn’t calmed him down much, though it had given him a better grip on the reality of prison life than he’d probably had at the time of his trial. After I’d visited him a couple of times, called his parents, and put forty dollars on his books for the canteen, it seemed we’d have a decent working relationship.

  39

  From time to time, Dave’s assistant Brad (“my database maven,” Dave called him, with the marvel of the middle-aged at the technical proficiency of the young) had worked at finding a possible address for Nicole Shumate, the girl Andy had let go. Nicole had been essentially homeless before and during the two trials, squatting in vacant buildings or living with one group or another of drug-using friends and moving from place to place as her welcome, or their rent, ran out. All we had for her was her name, a couple of temporary addresses, a date of birth from a police report, and a photograph from the trial exhibits. Using those, Brad had found court records showing that she had been convicted of possession of marijuana and cocaine in California a year after the trial. She had pled guilty and received a short jail sentence and probation. After that, it seemed, she had moved to Las Vegas, where she had picked up arrests for shoplifting and using a stolen credit card. She had served another jail sentence, and, after being released on probation, had successfully completed a drug program. After that, the trail disappeared.

  She wasn’t in prison, at least not in California or Nevada, and she didn’t show up on any of the databases tracking residence or credit histories. The absence of any more references could mean that she’d died somewhere without being identified or, more likely, had married. Marriage is the bane of skip tracers; a woman can change her last name overnight and disappear from the databases more effectively than if she had died. A search for the record of her marriage would require searching fifty states (assuming she’d stayed in the United States), some of which had laws making access to marriage records difficult for anyone but the couple themselves.

  Eventually, Brad found a marriage record from Arizona showing that a Nicole Shumate and a David Madison had been married in Phoenix about ten years ago. After that Brad found other databases showing the couple at two different addresses in Arizona and Nevada. But the most recent address was in California, where credit reporting records showed Nicole Madison, aged thirty-two, and David Madison, thirty-five, residing with Joshua Madison, seven, and Lisa Madison, five, in a single family dwelling on Edelweiss Drive in La Cresta, a small town in the mountains north of San Bernardino.

  “Bingo!” Dave emailed, with the information.

  The petition was filed, but I knew we had to interview her, or at least try. She was the only surviving victim of Andy and Emory’s crimes, better able than anyone else to describe what had happened in the barn and to help us figure out why Andy had let her go. The police had written her story in their reports, and she had testified at both trials. But we had to question her ourselves, if possible, to find out if there was anything omitted from the police reports or left unasked at trial. It’s not unknown for police investigators and prosecutors to deep-six interesting bits of information that might muddy their cases against a defendant.

  “Can you come with me?” Dave asked. “It may be easier for her to talk to a woman—assuming she’s willing to talk to us at all.”

  I dreaded the interview, but I had an oral argument coming up in Riverside and no excuse not to make a side trip to La Cresta. Dave was free that weekend, so on a Friday afternoon we flew down to San Bernardino together.

  * * *

  We both knew San Bernardino pretty well. The county probably had more of its population on death row than any other except Los Angeles. Eventually everyone who worked on death-penalty appeals had a case, or more than one, from San Bernardino, and we had both done our share of time there.

  There was a pretty decent Hilton hotel near the freeway, with a Japanese restaurant across the street. Over salmon teriyaki and Kirin beer, Dave and I plotted our approach to Nicole. We had both read everything the file contained about her. Her statements to the police and her testimony at the two trials had been consistent, varying only where memory might naturally falter. She had been a good witness, answering questions well and clearly: no exaggerations, theatrics, or verbal potshots at the defendant or his lawyers.

  She had been a sixteen-year-old runaway, turning tricks downtown for money for food and drugs, when she had had the bad luck to flag down Emory’s truck. Once she was inside, she testified, Andy had grabbed her and pushed her head down below the dashboard while Emory drove the truck out of town and out
to the farm. They’d walked her to the barn, and into a room inside it where there was an old sofa and a television set. They’d taken turns raping her and making her go down on them for a couple of hours. Afterward, Emory had tied her to a chair, with a gag made out of a towel in her mouth, and left her in the barn.

  Some time late that night, they’d come back with food. They’d untied her and let her eat, telling her that they would kill her if she made any noise, and after she’d eaten, they both had sex with her again, and tied her up. The next day Andy brought her breakfast and lunch and had let her come into the house to take a shower. He’d wanted to have sex with her, she said, but she started crying, and he stopped. In the evening he’d brought her dinner again. Exhausted from fear, she had fallen asleep, and she wasn’t sure how much later it was that he’d reappeared alone, untied her real fast, and told her to hurry up and get into the truck. She believed he was taking her someplace to kill her.

  Out on the highway, she pushed the truck door open, jumped out, and ran into the woods. He said something about not meaning to hurt her, but she didn’t believe him. She saw the truck make a k-turn and head back toward the ranch.

  She walked down the road for a couple of miles, ducking into the trees whenever she saw headlights, and when she was too tired to go on, she hid in the woods near the road until morning. When it was light enough to see what the cars approaching looked like, she flagged down a passing pickup truck and told the driver what had happened to her, and he took her to the police station in Shasta City.

  After Andy and Emory were arrested, she identified them in a lineup and identified their truck. The police had taken her to the ranch, where she pointed out the room in the barn where she had been kept. On the witness stand, she identified Andy and Emory and photographs of the truck and the room.