by Marti Green
“And we’ll see the aminals?”
“Yes, and you can feed the goats and sheep if you’d like.”
Rachel’s face glowed with her smile. “Yippee.”
How easy to please a three-year-old, Sunny thought. If only life stayed that way.
CHAPTER
21
Dani was exhausted. She and Melanie had worked around the clock. After filing the appeal of Judge Edwards’s order denying exhumation of the body, they’d gone painstakingly through everything that had taken place before HIPP became involved and put together a petition, filed in the federal district court of northern Indiana, to set aside Calhoun’s conviction on the basis of ineffective assistance of counsel. The papers had been submitted and now all they could do was wait for the hearing dates. Tonight was the first time Dani had been home in weeks without hours of work awaiting in her upstairs office.
With Jonah fast asleep, Dani lay entwined in Doug’s arms on the living-room couch. It was honeymoon hour, but she was too tired to talk. She snuggled in his arms silently while he stroked her hair. The tenderness of his touch soothed her and she felt herself begin to unwind. “I think our papers are good, but they would have been so much stronger if Tommy had been able to get some confirmation of Calhoun’s story,” she said when her energy started to return.
“You can only deal with the facts you have.”
“Well, obviously. I’ve been doing this for some time, you know. I’m not naïve.”
“Ouch.”
She sighed. “I know. I’m being irritable and I shouldn’t. I’m just too tired to restrain myself.”
“It’s okay. I’ve been married to you for some time, and I know how you get. I’m not naïve.”
“Ouch.”
They both laughed, and suddenly Dani felt the heaviness she’d carried around for days leave her body. “Seriously, I’m worried about Calhoun’s chances. It’s so much easier when the appeal is based on DNA evidence.”
“That’s true. You’ve got a tough road here. Especially this late in the game. He’s already been turned down on multiple appeals.”
“Sure, but his lawyer did a half-assed job on those. And George hadn’t offered an explanation for his daughter’s disappearance back then.”
“The court’s not going to look too kindly on him waiting seventeen years to offer that explanation.”
That’s what troubled Dani the most. Seventeen years of silence. She understood Calhoun’s reason. She appreciated the driving force to protect his child. Silence bought Angelina the possibility of treatment. It bought George hope that she would have a future. But once five or six years had passed, the time when it would be known whether the treatment had helped her or she had succumbed to the cancer, he’d still offered no explanation. Why? Dani had spoken to Calhoun on the phone many times since her first visit. When she asked that question, he said, “I didn’t think anyone would believe me.” And perhaps he was right. When he finally did broach it with his first attorney, Wilson ignored him.
“I know. My fear is they’ll equate his silence with guilt. That’s what Tommy thinks. He’s sure George only gave us part of his story; that he mixed some truth with his lies to make him seem more believable. He knew we’d be able to confirm his daughter’s medical history and then made up a story that would be impossible to check out.”
“What does he think happened to Angelina?”
“He thinks George murdered her. Maybe because he felt overwhelmed by her illness, maybe because he thought it more merciful than letting her suffer.”
“And you? Do you have any doubts?”
She thought about Doug’s question. This was her first investigation. It had been her decision to take Calhoun’s case. It would make sense for her to feel some uncertainty, but she didn’t. “None. Absolutely none. And that’s what makes this so hard. I believe Calhoun is innocent, but I’m not sure I can save him.”
“So he will have sacrificed his life for his daughter’s.”
“Maybe, or maybe his daughter died anyway, alone and frightened. And maybe he deserves to be punished for that. But does he deserve to die?”
Doug, ever the professor, passed on the question. “What do you think?”
“No. Without reservation, no.”
Each time the office phone rang, Dani hoped it was a court advising her of a hearing date. Her fingers were crossed that they’d hear first from the state court on the exhumation appeal. It would change everything if the girl found in the woods wasn’t George’s daughter. Of course, if she was Angelina, that changed things too. Not everything perhaps, because she could still appeal based on the inadequacy of Calhoun’s counsel. But she had to ask herself: Would she still want to continue with the appeal if it was Angelina’s body in the grave? She mulled over the scenario and realized she would. Before meeting George, she’d have said an emphatic “no.” Now, hearing about Angelina’s illness, knowing the despair George and Sallie experienced, made her realize she was wrong to have an absolute ban on representing child murderers. Even if Tommy was right about George, he didn’t deserve to die. Perhaps if Wilson had done a better job, George would have received a sentence of life in prison rather than execution.
“Hear anything yet?” Bruce asked as he walked past her office.
“Not a word. Is it usual for it to take this long?”
“We like to think the judges share the same sense of urgency we do, but that’s not always true.”
“I can’t seem to concentrate on anything else now.”
“Your briefs are top-notch, you’ve gone over the oral argument dozens of times—it’s out of your hands now. Let it go.”
“Are you able to do that with your cases?”
Bruce smiled. “Never.”
He left Dani’s office and she pulled out an appeal she’d been working on for a different inmate. It was routine stuff: DNA evidence that had been unavailable when the client was convicted now proved his innocence. He had been convicted solely on one eyewitness’s testimony. Eyewitness accounts were the least reliable evidence, she knew, but juries loved it. They gobbled up the words of someone sitting on the witness stand, saying, “He did it. I saw him do it.” Nothing made them feel more comfortable sentencing a man, especially a black man, to the electric chair or to a lethal injection or whatever barbaric means a state chose to kill a convicted murderer. It didn’t matter if the prosecution lacked forensic evidence to go with the eyewitness testimony or if the accused had an alibi, especially if the alibi was a friend or a family member.
Doug always demonstrated the unreliability of eyewitness accounts to the students in his Evidence class in dramatic fashion. Once, before Dani had begun working again, she sat in on his class to watch the lesson unfold. He began the lecture with a discussion of the case they were studying. In the midst of this discussion, a gun-wielding stranger burst into the classroom. “Don’t move,” he shouted in a loud staccato voice. He rushed over to Doug, grabbed him and pointed the gun at his head. “Anyone fuckin’ moves, I shoot this guy. Hands on your desks—I wanna see them. Now,” he screamed at the students, a note of hysteria in his voice. “You,” he said to Doug, jabbing the gun against his temple, “hand me your wallet.” After Doug reached inside his jacket and turned his wallet over, the intruder grabbed Doug’s gold watch off his wrist and seemingly knocked him unconscious with the butt of his gun. Doug fell to the floor, the students gasped, and the intruder ran out. The entire incident lasted less than a minute. After a moment of stunned silence, a few students rushed from their seats to Doug’s aid, but before they could get to the front of the classroom, Doug calmly stood up with a big grin on his face.
“Congratulations,” he said to them. “You’re all eyewitnesses to a crime. Who can describe the perpetrator?”
Amazingly, in a class of about a hundred students, he got almost a hundred different descriptions. When Do
ug first began his theatrical event, he used a third-year student to act the part of the robber. Soon, he realized that New York City probably had more unemployed actors than any place outside Los Angeles, many willing to work for peanuts, and he began hiring an actor to play the role. He used actors of all races and nationalities. Sometimes he dressed the actor in neutral nondescript colors; sometimes he had him wear one brightly colored article of clothing, perhaps a hat or a jacket. It didn’t matter. Each time, the students argued vociferously about the color of his hair, his height, his weight, his age, the clothing worn, even the color of his skin. When the perpetrator wore a brightly colored article of clothing, it was frequently identified, but the students rarely reached agreement on other characteristics of the intruder. It was eye-opening for them; they all thought they were too smart to be mistaken.
The ring of the telephone broke Dani’s concentration. She looked at the caller identification and, seeing an Indiana exchange, grabbed the phone before her secretary picked up. “Dani Trumball,” she said into the receiver.
“Ms. Trumball, this is the clerk’s office at the US District Court for the Northern District of Indiana. I’m calling to let you know the hearing on your petition is scheduled for Monday at 10:00 a.m. It’s down for a day and a half. Will that be enough time?”
Her heart fell. Today was Thursday. Unless the state appeals court called by the end of the day, it looked like she’d be trying Calhoun’s ineffective-counsel petition first. “Yes, that should be fine.” After hanging up, she dialed Melanie on the intercom. “I just heard from the district court. We’re on for Monday.”
“Damn,” Melanie said under her breath. “What do you think is taking the state court so long? Maybe we should call and remind them of the date of execution.”
“I’ve been calling every day. I’m on a first-name basis with the chief clerk over there by now. She’s sympathetic, but it’s up to the scheduling judge.”
“What do you need me to do?”
“Subpoena Bob Wilson for Monday morning. He’s not going to be happy, but I’m sure he’s expected this. And the doctor at Meadowbrook Hospital. I’d love for him to appear, but we can’t compel him from another state. If he can’t come to Indiana, then let’s get his affidavit.”
“Okay, I’ll get on it.”
“And I’ll arrange for Calhoun to be brought to court. We’ll need him to testify.”
Dani hung up and put away the appeal she’d been working on before the call came in. Her full attention was now devoted to Calhoun and getting ready for court on Monday.
CHAPTER
22
Fifteen Days
The federal courthouse in Fort Wayne, Indiana, was a granite-and-limestone modified Greek Doric edifice with marble floors and walls in its lofty vestibule. Tommy had joined Dani and Melanie for their trip back to Indiana, and they were all settled in the courtroom, ready to go. The assistant US attorney opposing the motion, Jolene Getty, was a mid-thirties woman dressed in a power suit: a black, pinstriped pencil skirt with matching jacket and a crisp ivory blouse. Unlike the female attorneys depicted on television, who showed up in court with cleavage-revealing sweaters, she evinced professionalism. Introductions had already been made, and they were awaiting the judge. George, hands and feet shackled, dressed in an orange prison jumpsuit, sat in the prisoner’s box, a row of chairs reserved for men and women brought from various jails and prisons to participate in the proceedings.
As in the state court last week, the bailiff preceded the judge and told all to rise. Judge Arnold Smithson entered, seated himself, and indicated with his hands that everyone should be seated.
“Counselor,” he said, nodding in Dani’s direction, “are you ready to proceed?”
“I am, Your Honor.”
“Go ahead.”
Dani stood and pointed to several boxes laid out on a separate table. The boxes contained the complete transcript of each of Calhoun’s trials and hearings as well as all exhibits entered in those proceedings. They also contained copies of all decisions rendered in his case. “I’d like to mark the documents in those boxes as Petitioner’s Exhibit A.”
“Any objections?” Smithson asked the opposing counsel.
“None,” Getty answered.
“So marked.”
The records were key to HIPP’s claim that George had received ineffective counsel both at his trial and at all post-trial appeals. The relevant sections of the transcripts had been included in Dani’s brief—a written argument to the court supporting her claim of ineffective counsel—which had already been submitted to the court. The brief laid out each of the points during the trial where the prior counsel’s performance was deficient. There were a plethora of instances where he failed to object when he should have and where he failed to subject the prosecution’s witnesses, especially Sallie, to meaningful cross-examination. However, the clearest evidence of Wilson’s failure to provide effective assistance of counsel was not in the written record, so Dani needed to introduce those facts at this hearing.
“Do you have any witnesses?” Smithson asked.
“I do.”
“Go ahead and call your first witness.”
“I call Robert Wilson to the stand.”
Wilson lumbered up to the witness box, clearly unhappy to be there. Dani walked over to him. “Mr. Wilson, you represented the defendant”—she pointed to George—“on charges of murder in the first degree, did you not?”
“I certainly did. And at substantially less than my usual fee.”
“Have you represented other defendants in capital cases?”
“Sure have. Plenty of them.”
“So you were familiar with the amount of work involved in a capital case when you accepted Mr. Calhoun as a client.”
“Well, some cases take more work than others. Depends on the circumstances.”
“And when you decided to take Mr. Calhoun’s case, did you have an idea of how much work would be involved?”
“I made my estimate. Not much you can do when your wife confesses and implicates you.”
“And in fact, you expected to enter into a plea bargain with this case, isn’t that so?”
“Objection,” Getty called out. “Leading.”
“Let me rephrase,” Dani said before the judge could rule. “When you agreed to take his case, did you have any expectations of the outcome?”
Wilson hesitated. “Well, I certainly thought it made sense to try and get a plea, take the death penalty off the table.”
“And was an offer made by the prosecution for a plea agreement?”
“They sure as heck made one, but my client insisted he wanted to go to trial. Over my strong counsel to the contrary, I might add.”
“Did he tell you why?”
“Said it wasn’t his daughter they found in the woods.”
“Would you tell the court what you did about his claim?”
“What I did? There wasn’t anything to do. His wife had already said it was their daughter and that George there killed her and left her in the woods, where the police found her.”
“Did you question Mrs. Calhoun as part of your preparation for trial as to whether the girl found was her daughter?”
“I had a copy of her videotaped confession. There wasn’t any need to speak to her.”
“Did you request any psychiatric testing be done on Mrs. Calhoun?”
“I asked around her neighborhood, where she worked. Nobody thought she was crazy.”
“You didn’t order a DNA test on the body found in the woods, right?”
“Didn’t seem to be any point to do so. Like I said, Mrs. Calhoun had already admitted it was their daughter.”
“DNA tests are expensive, aren’t they?”
“A lot more than the Calhouns could afford.”
“Did you apply to the co
urt for funds to pay for a DNA test?”
Wilson sighed. “I keep telling you. There wasn’t any point.”
“What pretrial investigation did you undertake, then?”
“I spoke to his neighbors and his employer. I got them to testify to his good character.”
“That was for the penalty phase, though, right?”
“Well, the trial outcome was pretty obvious. I tried to get some mitigating factors before the jury so they’d sentence him to life in prison, like his wife.”
Dani returned to her table and looked through some papers before walking back to the witness stand. “You said Mr. Calhoun denied that the girl they found was his daughter. Did he tell you what happened to his daughter?”
“That’s the thing. He wouldn’t say a word. You can see how my hands were tied when he wouldn’t explain his daughter’s disappearance. After that, there wasn’t much that any lawyer could do.”
“You represented Mr. Calhoun on all his appeals, didn’t you?”
“Everything up till you folks stepped in last month.”
“And during all that time that you represented Mr. Calhoun, did he ever explain what happened to his daughter?”
“Never.” He caught himself. “Wait. He did say one time, maybe about five years ago—he said something about his daughter being sick. About nobody helping her. I don’t remember the details. It didn’t make much sense. I thought I put the letter in his file, but I guess it got thrown away by mistake.”
Wilson had changed his story to avoid reprimand by the judge. He knew all correspondence from his client should have been placed in his file, not wantonly discarded as he’d admitted to Dani when she first met him in his office. She let it pass. She didn’t want to crucify Wilson.
“Did you ever follow up with Mr. Calhoun about his claim that Angelina had been ill?”
Wilson looked down sheepishly. He’d been told about Tommy’s conversation with Dr. Samson at Meadowbrook Hospital. “I’ve got to admit, I didn’t think it was real, his story. I just let it go.”
