"Two other newly discovered witnesses have testified that they saw Mr. Clark at ten-thirty on the morning of the murder, which fits perfectly with Tina Hopwood's statement that Mr. Clark left her trailer at ten o'clock. He could not have committed this crime because it was a physical impossibility for him to be in two places at once.
"The prosecution's original case was also built on the testimony of a jailhouse snitch, Vernon Byrd. You have heard him admit that he fabricated Mr. Clark's inculpatory statement. There was no such statement. Mr. Byrd lied to earn a reduced prison sentence. A year after the trial, Mr. Byrd was released.
"There are in the file affidavits from three jurors who say that had they known all of this, they would never have voted to convict. I myself filed an affidavit based on my conversation with the eyewitness, Mrs. Dorothy Chastain. She saw someone in the victim's yard at 10:05 a.m. the day of the murder. She believes that she saw Mr. Clark. She is mistaken. She confused Lacey May-field with someone else who may have come by at that time. Seven days later, after these details had become muddled in her mind, she was shown a photo display, a method so suggestive that it is no longer in use by the sheriff's office. She was shown six photographs. One of the men had long hair. That man was Kenny Clark. It is no surprise that she identified him in the lineup the next day.
"We have also submitted with our motion several studies, including one from the U.S. Justice Department, which all indicate an extremely high error rate among eyewitnesses."
The judge shifted in his chair and pulled back his cuff. "Mr. Quintana, the hour is growing late."
Anthony acknowledged this with a nod. "At the trial there was no physical evidence tying Kenny Clark to the crime. None. There were no fingerprints. The victim's blood was not found on his knife, nor was her missing jewelry found in his possession. The trace evidence found at the scene was not conclusive. All they could say was, 'It's not inconsistent,' which is the same as saying, 'We don't know.'
"Mr. Clark is an innocent man, the victim of police misconduct, the lies of a jailhouse snitch, and a mistaken identification. He was wrongfully arrested, tried, found guilty, and sentenced to death for a crime he did not commit. He has spent the last twelve years of his life either in jail waiting for trial or on death row, and his time has dwindled to twelve days. If this trial were to be held today, a verdict of acquittal would be the unquestioned result. I believe that the court must recognize this. Based on new evidence of Kenny Clark's innocence and in the interests of justice, the conviction must be set aside."
The spectators murmured among themselves. Gail turned her head far enough to see Jackie. They exchanged a smile. Jackie knew that the entire appeal could turn on what Judge Willis decided.
"State? Your summation, please."
Sonia Krause stood up, a short, gray-haired woman in a black suit and high-heeled pumps. She put her notes on the lectern, then glanced at the defense table as she began speaking.
"With all due respect to counsel for the defendant, this is not a case about innocence. It's a blatant attempt to overturn a verdict of guilty and have another shot at it because they didn't like the first result. The defense is asking the court to disregard the jury's decision, and substitute its own. I'm sorry, but this isn't the way the system works.
"Putting that aside for a minute, let's take a look at their case. First, Vernon Byrd. He testified at trial, and he was cross-examined thoroughly by the defendant's lawyer. Mr. Byrd stuck by his story. And now he's changing his mind. Why? Isn't it a little strange that a man with such a long criminal record would open himself up to charges of perjury? Are we really expected to believe that Mr. Byrd would come forward out of the goodness of his heart? He has denied receiving any compensation, but frankly, we find that incredible.
"As for Tina Hopwood, look at what she alleges. Sheriff's office investigators threatened to plant drugs in her home if she told the truth. Incredible. And why would she suddenly, after all this time, come forward and point her finger? Her teenage son was arrested by the sheriff's office just a couple of months prior to her making these accusations. Was that a coincidence? I don't think so.
"The defense claims that if the case were tried today, the jury would have to vote for acquittal. That isn't true. Can we say that the jury could not have found Kenneth Ray Clark guilty? No. Take away Vernon Byrd's testimony entirely from the first trial. The jury still could have voted for guilt. Let's assume that these other so-called alibi witnesses had testified at trial. Could the jury have disbelieved them and voted for guilt? Yes. And if Tina Hopwood had come to court, and if she had testified as she testified today, could the jury have disbelieved her? Of course. They could have found her as unpersuasive as I do. They could have doubted her motives, as I do. They could have relied on the other evidence in the case. Mr. Clark was put at the scene by a responsible, reliable eyewitness who had time to observe him clearly. His face was imprinted onto her mind. She identified him not just from a photo display, but in a physical lineup—"
"I know all this, Ms. Krause," the judge said. "Sorry to rush you, but let's get to the legal points, shall we?"
"Yes, your honor." The state attorney turned a page in her notes. "Kenneth Ray Clark was, and is, a violent man. He had been arrested for a knife attack. He had been arrested for burglary in the same area as the Dodson house, just a few months prior. He and the victim worked for the same company. There is ample evidence then, which I will dispense with restating, and there is ample evidence now. When a jury votes for guilt, all the state's evidence must be taken as true. All of it, and on appeal the defense can't pick and choose what it wants to disregard. The jury's verdict establishes that not only did the eyewitness actually see Kenneth Ray Clark, and that not only did Mr. Clark make a confession to his cell mate, but all the physical evidence must likewise be taken as proven fact. They can't come in here and say that the trace evidence and the knife don't matter.
"They say that another jury, trying this case again, would vote for acquittal. This is not the standard for review. That is not what this court must consider. As a matter of law, the court must ask two questions. First, is the evidence newly discovered? No, it is not. There is nothing here that could not, in the exercise of due diligence, have been discovered before. Second, would this evidence, if presented to a jury, result in a different verdict? As you have seen, the answer to that is no.
"Defense counsel would disregard the rules. We must have rules, or the entire system falls into chaos. We would never have finality to any case. Each one could come back and come back, litigated forever. When does it stop? When does it stop for Amber's husband or for Amber's parents and sister, who have been waiting for twelve years? When does it stop for the victim herself, who still awaits justice?"
Several spectators applauded, and voices rose in the courtroom.
"Order!" the bailiff shouted.
Jackie saw Gail suddenly let go of Anthony's arm and stand up. She walked to the lectern. "One minute for rebuttal, your honor. My client is due to die in twelve days. I think he deserves to be heard for one minute."
"All right, Ms. Connor. One minute."
Walking toward the lectern she straightened her blue scarf, the only color on her slim, cream-colored suit. She pulled the microphone toward her from the level where Anthony had put it. Last night she had complained to Jackie that she wouldn't have time to do more than wash her hair. It shone beautifully, parted on the side, curling under at her collar. She cleared her throat, but the huskiness was still there.
"Your honor. The prosecution talks about rules, and I think it's because they don't have anything else to talk about. They can't talk about right and wrong, so they rely on procedure. I agree that we need to have rules, but not when they're used to obscure the truth. Can anyone with an open mind really be sure about Kenny Clark's guilt? Sure enough to send him to his death! Can you say that, your honor? Can you, not as a judge, but as a human being, sit there and say that you don't care that in twelve days a man will b
e strapped to a gurney and killed for something he didn't do? Step out from behind the robes, your honor. Don't put the responsibility on the prosecutor, or the jury, or the governor, or the executioner. It's your decision. You know that something is very wrong here. I ask you, I beg you, not to be a cog in the machine. You're going to retire soon. You said this was your first case as a criminal court judge, and your last. Do you want your last memory of this profession to be that you helped the state kill an innocent man?"
As Gail went back to her seat, Jackie stared at Judge Willis's face, which had turned red. His white hair seemed to glow.
"Ms. Connor," he said slowly, "if I did not believe that you are under an emotional strain, I would hold you in contempt. The court would like to hear your apology."
She stood up again. Her voice was raspy. "Would it affect the ruling?"
"No, it would not."
Jackie's heart rate increased. Anthony Quintana stood up, ready to intervene.
Gail said, "If knowing my client is innocent, and trying to prevent his execution, have caused me to give any offense to the court, I am sorry."
The judge stared back at her, then swung toward the state attorney. "Ms. Krause, you don't want another minute too, do you?"
"No, judge."
"All right, then. The state attorney is right, I can't substitute my judgment for that of a jury. On the other hand, I will admit to you that if this evidence were presented to me now, today, and the jury voted to acquit, I wouldn't say they were unreasonable in doing so. But the fact is, the law is the law, and I am obliged to follow it. I can't go willy-nilly second-guessing the elected legislature of the people of the state of Florida or disregarding the legal precedents of the appellate courts."
Sonia Krause stood up with a piece of paper and walked to the bench. "Judge, we have prepared an order, if that would help."
Anthony Quintana walked around the table. "This is improper. We object to this. It is the function of the court to render a decision, not to receive the state's argument in the form of an order, then sign it."
Ms. Krause said, "Defense counsel is free to submit their own proposed order."
"Both of you, sit down." The judge scowled at them. "In view of the fact that it's nearly seven o'clock and the defendant's brief has to be filed tomorrow by noon in Tallahassee, I'm going to go ahead and issue a ruling from the bench. A written version will be faxed to your offices, along with portions of the transcript relevant thereto. Make sure the clerk has your fax numbers."
He looked down at his desk. Jackie didn't know if he was reading from his notes or was unwilling to look Gail and Anthony in the eye.
"This court finds that the two defense witnesses from Fort Pierce could have been and should have been discovered before trial, and therefore their testimony must be disregarded. This court finds the testimony of Vernon Byrd lacking in credibility. That leaves the testimony of Tina Hopwood, which this court finds does qualify as newly discovered evidence. However, under Jones v. State, the standard is that the evidence must be of such a nature that it would probably result in an acquittal on retrial. The defense has failed to carry its burden of proof. Therefore, the motion for postconviction relief is denied."
The courtroom broke into applause. Lacey Mayfield leaped up, hands over her head. "Thank you, God!"
The bailiff shouted, "Order! Quiet!"
"Court is adjourned." Judge Willis brought his gavel down on its block and went out through the side door to his chambers.
In the corridor, TV cameras closed in, and lights came on. Anthony Quintana spoke in clipped, angry tones, answering a reporter's question. "Of course we're going to appeal. This is an innocent man. We have no doubt of it. If Kenny Clark is killed by the state based on the testimony of one mistaken woman, then God help us all."
Briefcase in one hand, he took Gail's elbow in the other, and they made their way to the stairs. Gail motioned for Jackie to come with them. Having lost sight of Gary Dodson, Jackie gave up trying to find him and followed her cousin.
She had learned last night how eight copies of an appellate brief could get to Tallahassee so quickly. Gail had e-mailed most of it already. She had a friend with a major law firm up there. He would print it out, sign it as a courtesy, and take it over to the clerk's office before the noon deadline.
Their footsteps echoed on concrete until Anthony pushed open the door on the ground floor. They walked out into the space between the courthouse and the adjacent county office building. Night was falling. The lights in the courtyard had come on, and people were still milling about. A group of them had gathered on the long, landscaped walkway that led to the parking lot. TV lights were on.
"The self-congratulatory press conference," Anthony noted.
"Let's go the other way," Gail said. "Really, I'd rather. I can't stand looking at those people. I need to call Kenny, then I want to go talk to Ruby."
"No, amorcito, you have done enough for today." Anthony touched her forehead. "You don't have a fever, but I think you should go to bed."
"You were wonderful," Jackie said, giving her a hug. "You both were."
Anthony said, "In the courtroom, I thought I would have to bring her toothbrush to jail for her." With an arm around Gail, he said to Jackie, "We're going home in the morning. Hector will stay here, in case anything turns up on the investigation. You have his number. And ours."
They were both exhausted, Jackie thought. She said good-bye, then looked toward the crowd in the courtyard. "I'm going to see if Gary Dodson is still here."
He was. Lacey Mayfield had a grip on his arm, and though he leaned slightly away from her, his eyes on the ground, she wouldn't let go. The Mayfields were there, as well as another older couple beside Dodson, probably his parents. There were Ron Kemp, Tom Federsen, some other detectives, and a few uniforms. As she came closer, Jackie could see a Stetson hat. Her father usually stuck around for these things. Good PR, he'd told her. Palm trees on either side put the group in a frame.
The state attorney was speaking into the microphones held in her direction. Jackie didn't know what the question had been. Sonia Krause said, "The evidence just wasn't there. We're confident that the conviction will stand."
Someone asked what she thought of Gail Connor's last speech to the court. Ms. Krause smiled. "Well, Ms. Connor and I see things from a different perspective. I certainly don't like capital punishment, but it's necessary and appropriate in some cases. This is one of them. You will notice that the crime rate has dropped now that we're more serious about the death penalty in this country."
"Sheriff Bryce, do you see any chance Clark will get a new trial?"
He stepped forward and at the same time noticed Jackie standing among the crowd. "Chances of a new trial are pretty slim, and it would be a shame to put the victim's husband and all the relatives through that a second time, but we're ready."
"Did you ever have any doubt that Clark did it?"
His eyes rested on Jackie. "That isn't for us to decide. We turn the evidence over to the prosecutor, and they take it from there. But personally? I have no doubts. And I want to commend the state attorney's office for the fine job they did this afternoon."
There was some handshaking all around. Jackie stared off beyond the parking lot, past the City of Stuart water tower. She thought about what the prosecutor had said. Seeing things from a different perspective. They weren't out to get anybody. Just doing their job. Everybody sure of the truth.
When Jackie looked around again, she saw her father making his exit. More handshakes. A clap on the back for the detectives. He didn't glance her way as he left.
The lights were on Lacey Mayfield. She said this was the happiest day of her life. "No, I take that back. The happiest day will be when my sister's killer dies for what he did, and we can get on with our lives. Those fancy lawyers are clogging up the system with their little tricks and technicalities. A person should get one appeal, and that's it."
"Will you be a witness at the executi
on, Ms. Mayfield?"
"I'll be in the front row, holding up a picture of Amber. I want her face to be the last thing he sees on this earth, just like his face was the last thing she saw." Lacey Mayfield's parents, gray and old, stood behind her, leaning on each other.
As Lacey spoke, Gary Dodson, released from her grip, had sidled away through the crowd. Jackie spotted his dark gray suit and thinning hair. He embraced his mother, shook hands with his father, and then walked quickly in the gathering darkness toward the parking lot.
Jackie followed at a run, holding her shoulder bag against her side to keep it from swinging.
He was in his car with the engine running, reaching for the door, when she got there and held it open with a hand on the upper corner. He drove a dark green Oldsmobile sedan several years old. Jackie could feel the AC blasting out of the vents. The inside of the car smelled moldy.
Gary Dodson jumped a little in the seat. He squinted at her. "What do you want? I already said what I had to say."
"I'm not a reporter. My name's Jackie Bryce. I'm a City of Stuart police officer, in case you've seen me around, but I'm not on duty right now."
"Is your father the sheriff?" Dodson craned his neck to look at her. His scalp shone in the weak interior lights. "I heard the sheriff’s daughter was a police officer."
"That's me. Listen, Mr. Dodson, could I ask you a question? It won't take too long." When he didn't immediately say no, Jackie went on, "My mother was Louise Bryce. She died in September of 1988 in a car wreck, so I can't ask her. There was a deed from Ignacio and Celestina Mendoza to the JWM Corporation. You lost your job because of the deed. My mother notarized it. Who asked her to do that? Was it you or Whit McGrath? I don't know who else to ask."
Suspicion of Vengeance Page 29
