by Marti Green
“Defendant’s counsel is trying to convince this court that a DNA test could prove her client’s innocence. But that’s not what you’re being asked to decide. The question before you is whether Mr. Wilson exercised his professional judgment in a manner consistent with other attorneys. The only answer to that is absolutely yes. Thank you.”
“Okay, counselors,” Judge Smithson said. “I understand the urgency of this case, and I’ll do my best to give you a ruling as quickly as possible.”
With that, the matter was finished. Once again all they could do was wait. They left the courtroom and turned their cell phones back on. Dani’s phone beeped, alerting her to a message. She waited until they’d left the courthouse to retrieve the message. It was Bruce, letting her know that the state court had scheduled a hearing on the appeal of the exhumation case for Thursday. It made no sense to travel back to New York that night only to return the next day. She informed the others and they headed back to the hotel to extend their reservations.
“What’s your assessment?” Tommy asked as they walked to the Holiday Inn.
Dani shrugged. No matter how well or poorly she thought a hearing had gone, the decision often surprised her.
“I thought Getty’s closing was pretty weak,” Melanie said.
“She made some good points,” Dani said. “But it only matters what Smithson thinks. His reputation is good—smart, fair to both sides instead of a prosecutorial bias. But I’m worried. If he doesn’t rule in our favor, we’ll need to get a petition in to the court of appeals fast. Melanie, we’ll have some time tomorrow. We should get started on that just in case.”
Dani knew they were fighting an uphill battle. The chance of getting a convicted killer freed on grounds of ineffective assistance of counsel was small. Of the 107 death sentences handed down in Indiana since 1977, when the United States Supreme Court reinstated it as a potential penalty, only two men had been exonerated of their crimes, one of them two weeks before the scheduled execution and the other three days before. Yet she knew that many more on death row lacked the money to pay attorneys proficient in capital cases and lacked the resources to hire experts to refute those put forth by the prosecution. It wasn’t the color of their skin that was the biggest hurdle to obtaining justice; it was the color of money.
They arrived at their hotel and, after arranging to extend their stay, retreated to their separate rooms. Each of them focused on preparing for the next task: getting a court to allow them to exhume the little girl’s body. Hours went by until the ring of her cell phone interrupted Dani, who’d been absorbed in her work.
“Ms. Trumball?” the voice at the other end asked.
“Yes.”
“This is May Collins, Judge Smithson’s secretary. He’d like you to be at his court 10:00 a.m. tomorrow. He’s going to read his decision from the bench.”
“Thank you. We’ll be there.”
She hung up and wondered what it meant. Had Judge Smithson reached his decision quickly because their case was compelling or because he wanted to give them enough time to appeal? She called Melanie and Tommy to let them know. “Melanie, this means it’s especially important to have our papers ready in case we need to appeal. It goes to the court of appeals in Chicago, so we’ll need to overnight the papers as soon as they’re ready. That is, if we lose tomorrow.”
Melanie was chipper. “I really feel we’re going to win.”
“Well, just in case, get the appeal ready.”
“Gotcha, chief.”
Dani worked through dinner, ordering room service instead of joining Melanie and Tommy, but by nine o’clock she was bushed. It was just as well; it was honeymoon hour. She called Doug.
“How’s it going?” he asked.
“I’ll find out tomorrow morning. The judge will have his decision then.”
“How are you holding up?”
“I’m exhausted. Not just physically. Emotionally too.”
“It’ll be over soon.”
“Yes, but how? That’s what’s draining me. I know he’s innocent, I just know it. Only I don’t know if there’s enough time to save him.”
“We have an imperfect system. As long as there’s a death penalty, some innocent men and women will die.”
Suddenly, the combination of her fatigue and worry overwhelmed her, and she burst into tears. “It’s wrong, it’s so wrong,” she said through her sobs.
Doug let her cry herself out. “It’s better now than it used to be,” he said after she calmed down. “At least in some cases there’s DNA evidence to clear an innocent person. That wasn’t always the case. Maybe twenty years from now there’ll be some new scientific advance that can conclusively tell when a person is being truthful or lying. Maybe fifty years from now genome mapping will be complete, and scientists can figure out whether a person’s genes make him capable of murder. Maybe if those things happen, or others that we can’t even imagine, maybe then there won’t be any innocents sitting on death row. In the meantime, you can only help one prisoner at a time. And for now, that prisoner is George Calhoun.”
Dani dabbed her eyes with the napkin from her dinner tray. “If only we’d been able to find some evidence that Angelina had been left at the Mayo Clinic.”
“And you’re convinced she was?”
“Yes. Absolutely convinced.”
“Then Calhoun is lucky he has a lawyer who believes in him.”
“Now if he only has a judge who feels the same way.”
“Maybe he does. You’ll find out tomorrow.”
By ten o’clock her eyelids started drooping. She said goodnight to Doug and got ready for bed. As she set the alarm, she felt prepared for whatever would happen tomorrow and each of the remaining days until Calhoun’s execution date.
“I’m going to read my decision into the record,” Judge Smithson said after they were all assembled in his courtroom. “Defendant has come before this court on a habeas corpus petition claiming that he received ineffective assistance of counsel in violation of the state and federal constitutions. This proceeding is the first time he has raised such a claim, but it is not unexpected, as his trial and appellate counsel were the same. The burden is on the defendant to show that his lawyer’s performance fell below an objective standard of reasonableness and that there is a reasonable probability that the results of the proceedings would have been different if not for his attorney’s errors. In looking at the reasonableness of the attorney’s conduct, we must view it in light of the circumstances at the time of the proceedings. We may not apply subsequent knowledge or conduct to a prior period. Defendant claims that his attorney failed to perform a proper investigation into the facts during the pretrial stage. Yet defendant’s own conduct led to such failure. Defendant’s wife asserted the dead child was their own, and although defendant denied such was the case, he steadfastly refused to inform his attorney as to the whereabouts of his daughter. Given those facts, it was not unreasonable for his attorney to forgo an investigation. Nor was it unreasonable for him not to seek exhumation of the child’s body twelve years later in order to conduct a DNA test. Once again, the defendant’s conduct over those twelve years would lead a reasonable attorney to believe his claim was ‘grasping at straws.’
“The remaining claims of ineffective assistance do not rise to the level of prejudicial conduct. For these reasons, defendant’s petition is denied and he is to be remanded back to Indiana State Prison.”
Dani’s hands shook. She willed herself not to cry. It wasn’t over yet, she kept telling herself. Not for thirteen more days.
CHAPTER
24
Indianapolis was home to the state court of appeals. Dani felt as if they’d come full circle from their visit there just a few short weeks ago. Their case wasn’t scheduled until the afternoon, so she’d decided to visit Sallie once more at the Indiana Woman’s Prison. Dani was already seated i
n the interview room when the door opened and Sallie entered, still gaunt, still lifeless.
“Hello, Sallie. Do you remember me?”
She nodded. Like she’d done during the first interview, she stared down at the table.
“I’ve been speaking to George, your husband.”
She looked up. “Is he still alive?”
“Yes.”
“Tell him I’m sorry,” she said, her voice barely a whisper.
“Sorry for what?”
“He’ll know.”
“Sallie, George told me what happened to Angelina.”
Tears started to roll down Sallie’s cheeks. She remained silent as she rocked back and forth. Finally, she said, “We killed her.”
“How did you kill her, Sallie?”
“George knows.”
“George told me Angelina was sick, that she had cancer. Do you remember that?”
“We killed her.”
“But how, Sallie?” The frail woman sitting across from Dani looked ghostly, with her white pallor and skin so translucent that her bones showed. She believes she killed Angelina. She’s so cut off from reality that she can’t tell the difference between murder and abandonment. Unless George lied to us. Could they have killed her out of a misguided sense of mercy? To spare her more suffering? “Do you remember that Angelina’s cancer came back?”
Sallie stopped rocking. “They wouldn’t help her. We couldn’t pay them, so they wouldn’t help her. How could they do that? How could they turn a child away?”
“They should have treated her. It was cruel.”
Sallie nodded. “You see. You understand.”
“Yes, I understand. You had no choice. Tell me what you did.”
Suddenly, a wail of anguish erupted from deep within Sallie. She wrapped her arms around her body tightly. “We were supposed to care for her. We were her parents. She needed our comforting, our little baby, our precious little girl. She needed us.”
Dani said nothing for a while and left Sallie alone with her memories. When her rocking stopped, she asked, “Did George kill her to end her suffering?”
“We didn’t end her suffering. We did worse, much worse.”
“Did you leave her at the Mayo Clinic?”
Sallie nodded.
“Was that George’s plan?”
Another nod.
“You didn’t want to do that?”
Sallie shook her head.
“Is that why you said you and George killed her?”
Sallie stared at her, her eyes alive for the first time with a burning intensity. “We did kill her. We left our baby alone and sick with no one around to love her and take care of her. That’s murder, isn’t it?”
“No, Sallie,” Dani said. “I don’t know whether it was right or wrong, but it wasn’t murder.” She let the words sink in. “Did you want to be punished for what you and George did, for leaving Angelina at the hospital?”
“Yes.”
“Do you think George should be killed for doing that? For making you go along with it?”
Sallie remained silent for a long time. Again, her arms were wrapped tightly around her body, the skin under her hands beginning to turn purple with bruises.
“Sallie? Can you answer my question?”
Sallie looked at Dani with lifeless eyes. “I will hate George for the rest of my life for what he did.” She stood up to leave, and Dani thought she was finished, but she stopped at the door and turned to her. “Yes, I think George should die,” she said and left the room.
Dani had nurtured a dim hope that, with the truth out in the open, Sallie would agree to give her an affidavit, a sworn statement that confirmed what she and George had done with Angelina. But it was obvious that she wouldn’t, and Dani didn’t even ask. Instead she now knew that George’s tale was absolutely true. Had there been a kernel of doubt that she’d pushed away, it no longer existed. Now it wasn’t her belief that George was innocent—it was a fact.
Three robed judges sat behind a raised mahogany bench. The small courtroom had only six rows of seats behind the swinging gate. Dani, Melanie, and Tommy sat in the third row. Their case was fourth on the court’s calendar, and they waited while oral argument took place in the cases before theirs. Two of the cases were civil, one a criminal matter. As Dani listened to the arguments, it became apparent that this was a “hot” bench—the judges had read the briefs submitted beforehand and were actively engaging the attorneys in questioning.
“People versus George Calhoun,” the bailiff called out sooner than Dani expected. She and Melanie took their seats at the defendant’s table. Ted Landry seated himself at the prosecutor’s table.
“Are you ready?” asked the chief judge, sitting between the two other judges.
“Yes,” Dani said. She walked to the lectern between the two tables and arranged her note cards.
“Let me remind you that when the yellow light comes on, you have only one minute left. When the red light comes on, your time is up.”
“I understand. Your Honors, George Calhoun has been on death row for seventeen years, convicted of murdering his daughter, after the body of a young girl, estimated at between three and four years old, was found in the woods in Orland. From the very beginning, Mr. Calhoun has consistently and repeatedly denied that the child’s body was his daughter. At the time of his trial, DNA testing was not widely used. That’s no longer the case. Now—”
“Isn’t it true that Mr. Calhoun’s daughter had disappeared about the same time?” asked the judge on the right, a woman with brown hair pulled back into a bun.
“Yes, that’s true, and although my client failed to explain her disappearance at that time, he had compelling reasons for doing so.”
“Yes, I’ve read your papers. He now claims he abandoned her at the Mayo Clinic as an act of mercy.”
“More like an act of desperation. His daughter was dying and needed treatment that he couldn’t pay for and that no one would provide without payment.”
“Doesn’t Medicaid pay the medical costs for indigent families?” asked the judge on the left, an elderly man with dark horn-rimmed glasses.
“His income was too high to be eligible for Medicaid but too low to afford insurance. Although the state of Indiana now has a program to provide low-cost health insurance for children whose parents fall into that category, it didn’t exist nineteen years ago. DNA testing is now routine and widely accepted. Even with bones that are nineteen years old, it can conclusively determine whether the child was Angelina Calhoun. Shouldn’t—”
“How long would it take for DNA results to come back?” the right-side judge asked.
“It’s possible to obtain results in five days.”
“Assuming the lab isn’t backed up, isn’t that right?”
“Yes, of course.”
“It seems to me,” the chief judge said, “that you have a fundamental problem. The defendant has already exhausted his direct appeals. Even if we ordered the body to be exhumed and the results of the DNA test excluded Mr. Calhoun as the father, where does he go with that?”
“This would be newly discovered evidence. It would give rise to a new appeal.”
“How is it newly discovered evidence? If what Mr. Calhoun says is true, he’s known from the beginning that it wasn’t his daughter. At every step of his proceedings, this issue could have been raised. Hasn’t he waived the right to ask for the body to be exhumed now by his own silence?”
Dani saw the yellow light come on. She had only a minute left to persuade these three judges to rule in her favor. “Your Honors, if there is incontrovertible evidence available which could show that the child in the woods was not Angelina Calhoun, then the prosecutor’s case disappears. Their only basis for convicting Mr. Calhoun was the identification of that child as Angelina. Justice mandates that he have acc
ess to the evidence. If he has no appeals left—and I don’t believe that’s the case—then the governor of this state would be able to right a cruel wrong by commuting George Calhoun’s sentence and setting an innocent man free.”
“Your time is up, Ms. Trumball.”
“Thank you, Your Honors.”
She sat down and a sense of numbness enshrouded her. Landry stood at the podium now. Dani saw his mouth move but heard nothing. She felt exhausted from the preparation, from the performance, from the ever-present sound of the ticking clock. She felt like a wooden soldier marching steadfastly toward a steep cliff and the inevitable fall to the chasm below. A poke in her arm jolted her back to the proceedings.
“Dani, are you okay?” Melanie asked.
She looked up and saw that Landry had left. Two men in neatly pressed suits were waiting to take her place at the defense table. The next case had been called. It was time to leave.
The flight back from Indianapolis departed on time. Dani was anxious to be home, to be enveloped in the safe cocoon of her family. Her already great respect for Bruce had grown exponentially. He’d handled capital appeals from beginning to end for ten years now and, at least during the time she had worked there, never seemed to lose his equilibrium. It wasn’t so for her. There had been moments, alone in her hotel room, when she’d wanted to run away, crawl under the covers, escape the hell of representing an innocent man condemned to die. When she handled only the appeals, she didn’t bond with the inmate in the same way. She wrote words on a page and then argued law and principles in a court. It had changed now. She was connected to George Calhoun. She was his lifeline.
They circled LaGuardia Airport for twenty minutes before being cleared for landing, typical of congested New York City airports. When they finally landed, they all checked their voice mail.
“Hey, I got a message from a nurse at the Mayo Clinic,” Tommy said after closing his phone. “She saw the flier posted in the nurse’s lounge. Says she may have some information for us.”
