The Law of Second Chances

by James Sheehan

  Scott Tremaine did not want to end his cross-examination on such a sour note, but he had nothing else to ask, and he knew that any further questions of this witness about the Brady decision would get him nowhere but into further trouble. “I have no further questions, your honor,” he said and sat down.

  It had been a long day, so the judge decided to wrap it up at that point. Jack had a few words with Henry before his personal army took him back to jail. Jack met with Wofford in the hallway outside the courtroom. The man was beside himself.

  “I’m sorry, Jack. I didn’t realize that I was going to hurt Henry.”

  “How do you think you hurt him, Wofford?”

  “Hell, I gave opinions against your case.”

  “Look, Wofford, we all knew this was a Brady case going in. We knew we couldn’t win on those other arguments. Your truthfulness and the way Scott had to pull the opinions out of you are going to work in our favor. You have narrowed the issue and framed it just the way we want it.”

  “It’s funny. I’ve been doing this for so many years as an attorney and a judge. It was a totally different experience being a witness. I thought he blew me away.”

  “He almost did. It was a very effective cross, but you hung tough. I think we are exactly where we want to be.”

  “Thanks, Jack. I don’t know if you’re telling me the truth, but I feel better.”

  “The truth will be in the decision. I’m going to be done tomorrow, in case you want to stick around.”

  “Really?”

  “Yeah. The judge has all she needs right now, I think. I’m going to put Griffin and Webster on for five minutes apiece.”

  “Watch out for Webster. He could be a tricky witness.”

  “You know the old mantra, Wofford. If you’re going to try cases, you have to be fearless.”

  “Or crazy,” Wofford replied.

  34

  Soon after filing his notice of appearance, Benny’s lawyer, Sal Paglia, filed a motion to set bond. He knew he had no possibility of getting Benny out, but that wasn’t his goal. Sal knew how to manipulate the media and how to gather them together in a heartbeat to make a dramatic pronouncement about nothing. It was better advertising than money could buy.

  So Sal called a press conference right after his motion was denied.

  “This is a travesty of justice!” he told all the broadcast networks, plus CNN and a few others. “My client is being denied his constitutional right to bail.” Sal blustered on for about ten minutes, which he figured was the maximum attention span of any television reporter. Then he stopped. He had earned a significant spot on the evening news.

  “Sal, my boy, you’ve still got it!” he proclaimed in his rented apartment that evening as he watched himself on TV. “Keep stoking that fire and you’re back in business.”

  He filed another motion two weeks later, seeking more of the same free publicity. This time, however, he also had a legitimate purpose.

  The courtroom was full of lawyers waiting to have their motions heard. Sal wasn’t shy. “Judge, I have here the affidavit of Dr. Donald Wong saying he has been retained on this case but that he will not be available until the last two weeks of October next year. I’ve discussed this with my client, and I’m waiving speedy trial and requesting that you set a date certain for this trial in the last two weeks of October of next year.”

  It was an unusual request. Most defendants who were incarcerated wanted to get out as soon as possible. Sal was trying to keep his client in jail for almost a year before he even had a trial. It didn’t make sense. On the other hand, Sal had a legitimate problem with his expert. Judge Franklin Harrison was handling the motion calendar that day: he had heard of Dr. Donald Wong and knew him to be a famous pathologist who wrote books and testified all over the world. Harrison didn’t understand why Wong had been retained in this case, but that was the lawyer’s decision. The judge never suspected that Sal’s real motive was to milk the case for all it was worth before finally taking it to trial.

  “What says the state?” the judge asked.

  Ellen Curry was a rather new deputy district attorney who had been on the job only six months, working misdemeanors. She was handling the hearing for a big shot who couldn’t make it. She knew nothing about the case, having seen the file for the first time five minutes before walking into court. She did know, however, that if she agreed to this outlandish delay there would be hell to pay when she returned to the office. “Judge, this is a ridiculous request. Do the wheels of justice come to a halt because of the schedule of one man? There are other experts. Mr. Paglia can find somebody else who doesn’t sell his soul so often. The citizens of New York have a right to have this case heard within a reasonable time.”

  Judge Harrison liked that about young lawyers—they spoke of justice and the rights of citizens and selling your soul. Nobody did that in a motion hearing. Those were words that were saved for juries, because only jurors would swallow that stuff. The other lawyers in the courtroom were probably gagging. They all knew from experience what the still- idealistic Curry had not yet figured out—paid experts all over the country were selling their souls every day. The judge didn’t need to be told that. Every once in a while, though, it was refreshing to hear.

  Sal stood to counter the argument, but the judge stopped him.

  “I’ve heard enough, Mr. Paglia. I agree with Ms. Curry. This court cannot revolve around the calendar of one man. I’ll give you six months to get another expert and be ready for trial. We’re going to put this case on the docket for June 14th of next year. Next case.”

  On the courthouse steps, Sal ranted and raved for precisely ten minutes about the injustice done to his client that day. Actually, he had gotten just what he wanted—six months.

  “When you want six months, you ask for a year,” Sal told the TV set as he watched his performance on the six o’clock news.

  Benny was also watching that night from prison. This guy is some kind of nut, he thought. But he does have balls. Maybe that’s what you need in that business. Benny didn’t realize that his thoughts about Sal were pretty much in line with those of his father, Luis.

  35

  Pat was sitting up in bed talking and laughing with Charlie when Jack got to the hospital that night. A little bit of color had returned to her cheeks.

  She beamed when she saw him. “Hi, honey. How did it go today?”

  “Pretty good, sweetheart. How are you doing? You look a whole lot better.” He gave her a big kiss.

  “I feel better.” She was slurring her words a little, which Jack attributed to the medication. They were giving her morphine.

  “She had the blood transfusion this afternoon,” Charlie told him when Jack sat down next to her. “That and the IVs have made a world of difference.”

  “What does the doctor say?”

  “She hasn’t said anything yet. The test results still aren’t back. Maybe tomorrow.”

  “How is Henry?” Pat asked. It was a funny thing. Pat always asked about Henry and Henry was now always asking about Pat—and the two had never met.

  “Henry is doing fine.”

  “Are you proving to the judge that he’s innocent?” Charlie asked.

  “Innocence has very little to do with it at this point,” Jack replied.

  “Yeah,” Pat added. “It’s about whether they can prove the lawyer screwed up or the evidence is new. Right, Jack?”

  “That’s pretty much it.”

  “Wait a minute, I’m lost,” Charlie said. “Why has innocence got nothing to do with it?”

  “I don’t really want to talk about this,” Jack responded.

  “We do,” Pat told him. “Charlie and I have talked about everything under the sun. We need something new, don’t we, Charlie?”

  “We sure do—something with substance.”

  Jack looked at the two of them. In the midst of all this, they were still having a good time with each other.

  “All right, I’ll explain it to
you, Charlie, but the peanut gallery,” Jack said pointing at Pat, “has to refrain from making editorial comments.”

  Pat put her hand to her lips and mimicked zippering them shut.

  “At this stage of the game, Charlie, to get a new trial you have to show that your lawyer was either totally incompetent, or that there is some new piece of evidence out there that nobody could have found before, or that the prosecutor hid evidence. If you can’t demonstrate any of those three things, it doesn’t matter whether you’re innocent or not.”

  “That’s really the way it works?”

  “Yeah.”

  “And there are no other avenues?”

  “Essentially that’s it. You can go to the governor for clemency, but that’s a political issue and our governor has never granted clemency.”

  Jack slept well that night knowing that his wife was doing so much better. Maybe she and Henry will both get a reprieve, he thought before nodding off.

  The next morning in court, Jack put Ted Griffin on the witness stand and had him tell the judge about his conversation with James Vernon, which Griffin did in essentially the same nonchalant manner as when he first told Jack.

  “He told me he cut Clarence Waterman’s throat.”

  “Why did he tell you that?” Jack asked.

  “I’m not sure.”

  “And you never told anybody?”

  “Not until I told you a few weeks ago.”

  Jack left it right there. Let Scott wade into unknown waters if he wanted to.

  “Did you believe him?” Scott Tremaine asked on cross.

  “I didn’t really think about it one way or another. James Vernon was certainly not an honest fellow. On the other hand, what was his motivation to lie?”

  “In the seventeen years since this murder happened, did anybody ever ask you if James Vernon talked to you about this murder?”

  “No. Not until Mr. Tobin did a few weeks ago.”

  “No further questions, your honor.”

  “Call your next witness, Mr. Tobin.”

  As usual, the second day of trial moved a lot faster than the first. Anthony Webster took the stand. He reluctantly admitted that he’d interviewed James Vernon and that Vernon had told him he was at the murder scene with two other men, neither of whom was Henry.

  “I really didn’t put much stock in what this guy had to say,” Webster told Jack. “He might have been a friend of Henry Wilson’s or something. As I recall, they both bought drugs from the victim.”

  Jack was sure that last line had been recently rehearsed. Webster had no independent recollection when Jack had interviewed him.

  “In any event, you told the prosecutor about that interview, correct?”

  “That’s correct.”

  “Did you take notes of that interview?”

  “I did.”

  Jack handed him a document. “I’ve handed you defendant’s exhibit number 10 and ask you to identify that document.”

  “These are the notes of my interview with James Vernon.”

  “The same notes that you provided to the prosecutor?”

  “Yes.”

  “No further questions.”

  Scott Tremaine had no cross.

  “Call your next witness,” the judge told Jack.

  “I have no other witnesses, your honor.”

  “Mr. Tremaine, do you have any rebuttal?”

  “No, your honor.”

  “Let’s break for lunch,” the judge announced. “I’ll hear closing arguments when you come back.”

  “You handled Webster just right,” Wofford told Jack over lunch. “You kept it tight so he couldn’t give any opinions, although he managed to stick one in—that crap about Henry knowing Vernon. But it didn’t make sense anyway. Just because you know a guy doesn’t mean you’re going to confess to a murder to save him.”

  “The only thing that mattered with Webster was that he interviewed Vernon and told the prosecutor about it. That made it a Brady case.”

  “Let’s hope the judge sees it the same way we do.”

  After lunch, Jack argued every point, even though he knew the only viable one left was the Brady disclosure. He tried to anticipate Scott Tremaine’s argument on that issue.

  “Judge, in a moment Mr. Tremaine is going to tell you that the nondisclosure by the state’s attorney is irrelevant because Wofford Benton could have and should have learned of the Webster interview from other sources. I ask you not to accept that argument. It would, in effect, emasculate the Brady rule. It would say to prosecutors, you can still withhold information and get away with it. I do not believe that is the law.”

  When Scott Tremaine rose to speak, he had no choice but to make the arguments Jack had already addressed: that the information about Anthony Webster’s interview should have been discovered by Wofford Benton or any other attorney representing Henry Wilson at least four years ago; and that it had been a known fact for fifteen years that David Hawke and his cousin were not prosecuted. He threw something else in as well—something Jack had been worried about throughout the entire case.

  “Finally, Judge, in order for you to grant a new trial, you would have to determine that the outcome of the original trial would have been different. The only new evidence was what James Vernon told three people. If James Vernon was lying, then all that new evidence is meaningless. The evidence is undisputed that James Vernon told three different people two different stories. That’s pretty good evidence he was lying.”

  Henry’s fate was now in the hands of Judge Fletcher.

  “I’m going to prepare a detailed written order,” Judge Fletcher began, “but I am going to announce my decision at this time.” She proceeded to shoot down the ineffective-assistance-of-counsel argument and all the newly-discovered-evidence arguments before getting to the part Jack was really waiting for.

  “With regard to the fact that David Hawke and his cousin were never prosecuted, I don’t believe that that is a Brady violation. Mr. Hawke testified at trial that no deal was struck beforehand. However implausible that testimony might be, there is simply no evidence to contradict it.”

  Jack tensed. Henry’s options were running out. They now had one issue left—Anthony Webster’s interview.

  “But I do believe,” Judge Fletcher continued, “that Mr. Webster’s interview of James Vernon was Brady material, because Mr. Vernon told Mr. Webster that Henry Wilson did not commit this crime. I believe such testimony would have affected the outcome of this trial, and I say that particularly because there was no physical evidence connecting Mr. Wilson to this murder. His conviction was based solely on the testimony of one man. Yes, Mr. Benton should have talked to Mr. Griffin, and if he had, he probably would have learned of the Webster interview. However, that is not the issue. In my opinion, a prosecutor who fails to disclose exculpatory evidence to the defense, whether intentionally or not, must suffer the consequences if that failure to disclose is prejudicial.

  “As to the argument that Mr. Vernon may have been lying, that’s an issue that the jury should have been allowed to decide.” She paused, then looked directly at Henry.

  “Therefore, I am granting the motion for new trial.”

  Henry sat in his chair, stunned. The only spectator in the gallery was Wofford Benton, who gave an audible sigh of relief.

  “Did she just say what I thought she said?” Henry asked Jack.

  Jack put his hand on Henry’s shoulder. “Yes she did, Henry. You are getting a new trial.”

  It wasn’t over yet, though. Scott Tremaine stood to address the court.

  “Your honor, it is my duty to inform you that the state does not intend to appeal your decision. Nor does it intend to retry this case.”

  It was Jack’s turn to be stunned. He wondered whether Henry had any idea of what was about to happen. The judge addressed Henry directly.

  “Mr. Wilson, would you stand up?” Henry pushed himself out of his chair. His hands were visibly shaking. “In light of the pronouncemen
t by the state, it is my duty to advise you that you are a free man. If you choose, you can be transported back to prison to pick up your belongings and clean out your cell, or I can enter an order right now releasing you and you can send for your things when you get settled. The choice is yours.”

  Henry very calmly addressed the judge.

  “I’d like to be released right now.”

  The judge looked at the sheriff’s deputies. “Release this man,” she ordered.

  It took a few minutes for all the shackles to be removed, during which time Henry’s hands continued to shake and tears started to run down his cheeks. Finally, he was freed, and he and Jack embraced.

  “I never thought this day would come,” Henry told Jack through his tears. “And I will never forget what you did for me.”

  Jack had to clear his throat to speak. He was in almost as bad an emotional state as Henry. “I had a lot of help, Henry—from the man standing in the back of this courtroom.” They looked to the back of the courtroom where Wofford Benton was standing, and Jack motioned him to come forward.

  Wofford walked hesitantly to the defense counsel’s table. He and Henry had not spoken in seventeen years. Henry wrapped the small, pudgy man in his arms. Both men cried.

  “Thank you, Wofford.”

  “Thank you, Henry, and thank God for giving me this opportunity to redeem myself.”

  Nobody had anticipated that Henry would be released that day. The only clothes he had were his prison clothes, and the state was not about to let him walk away with those. Wofford volunteered to buy him a new outfit, so Henry and Jack waited in the courtroom for another hour with the sheriff’s deputies while Wofford went shopping.

  Jack took the opportunity to have a brief conversation with Scott Tremaine.

  “That was a great cross-examination of Wofford,” Jack said, trying to soothe the sting of the judge’s ruling.