by Marti Green
Ten minutes later, the curtain covering a window to an adjacent room opened. The room was barren, its walls painted a stark white, with only a gurney next to one wall. Two officers were in the room. Dani heard Mrs. Sanders gasp when she saw her son strapped to the gurney. Two needles were visible in his veins, connected to long tubes that were strung through a hole in the cement-block wall. Dani knew that on the other side of that wall the tubes were attached to an intravenous drip in which Phenobarbital would flow. A heart monitor was attached to the prisoner to indicate when his heart had stopped. For the sake of Mrs. Sanders, Dani hoped it went smoothly. The whole nation had heard of several executions that had gone terribly wrong, causing extreme pain to the inmate. Because the Hippocratic oath prevented doctors from inserting the needles into veins in order to cause the death of a person, that act was performed by laypeople, who didn’t always get it right.
“Do you have any last words?” the warden, stationed next to Sanders, asked.
The color in Sanders’s face had drained, his eyes were opened wide, and his strapped hands clutched the edge of the gurney. “No. I already said all I had to say.”
The warden nodded to the officer, who picked up a phone on the wall, pressed a button, and then said, “It’s time.” It was the signal to begin the Phenobarbital drip. Seven minutes later, the heart monitor emitted a steady beep. Earl Sanders was dead. As the curtain closed, the only sounds in the room were the loud sobs of his mother.
Over the next few weeks, Dani worked on briefs for two inmates. One had been incarcerated for nine years; the other, thirteen. New DNA evidence had come to light that exonerated each of them. The motions were perfunctory. The evidence of their innocence was incontrovertible, and everyone, including the prosecutors, knew they would be released. It was something to do while she waited for a hearing date on their appeal of Win Melton’s case.
She was finishing up one of those motions, rereading a passage, when she heard, “Hey, gorgeous.”
She looked up and saw Tommy in the doorway. “Hey, yourself.”
He stepped into her office, sat, and pulled out a notepad from his pocket.
“Whatcha got there?” Dani asked.
“Your last conversation with Whiting troubled me. I mean, he seemed so insistent that the Meltons somehow engineered this whole confession. So, I decided to do a little digging.”
“Find anything?”
Tommy nodded. “Horace Melton had two sons—Henry, called Hank by everyone, and Win’s father, Donald.”
Dani scrunched her face together. “How come I never heard of Hank?”
“Because he’s dead. Killed in a car accident when he was twenty-eight.”
Dani leaned back in her seat, picked up a pencil, and began twirling it in her fingers. “So, what does this have to do with Whiting?”
Tommy smiled. “Here comes the interesting part. Whiting had an older sister—Connie Whiting. Around twenty-five years ago, when both she and Hank Melton were students at Princeton, she claimed Melton raped her. She reported it first to the campus police, then the cops in Princeton. Apparently, she was pretty roughed up. This was before DNA, but whatever happened to her didn’t seem consensual. Melton was arrested, released on bail, and a month later, she dropped the charges. Scuttlebutt at the time was that the Meltons paid her off.”
“Well, I can understand now why Ed Whiting thinks the Meltons are doing the same thing again. Carly was murdered. They couldn’t stop a homicide trial. So, they pay someone else to take the fall. I guess that’s what he’s thinking.”
“How about you? Does this make you wonder?”
Dani was quiet for a moment. “I suppose it should. But my ping-ponging back and forth between guilty and innocent was driving me crazy. So, I decided to look at it as if his grandmother hadn’t offered us the money to take his case. There isn’t enough in the record to justify a guilty verdict. Another man who committed multiple similar crimes confessed to murdering Carly Sobol. We’ve corroborated the facts he’s given us about that murder. My gut, when I met with Win, was that he was telling the truth. And I’ve always trusted my gut. So, I do think he’s innocent. And I don’t think it’s just because I don’t want to represent a guilty defendant.” Dani fervently hoped that before their representation ended, her belief in Win’s innocence would be proven right. “It’s a shame what happened to Whiting’s sister. I hope at least she made good use of their money.”
“There’s more. A year after the rape, she dropped out of college and, not much later, committed suicide.”
Dani’s hand flew up to her mouth. “How awful!”
“Yeah,” Tommy said. “It’s a good reason for Whiting to hate the Meltons. And maybe take it out on their grandson.”
CHAPTER
20
Waiting was always the hardest part for Dani, yet it was an inevitable aspect of being a trial attorney. Waiting for a hearing, waiting for a case to be called, waiting for a decision. She often wondered if she would have been happier practicing corporate law. No sitting around in courtrooms there. A negotiation, sometimes protracted, sometimes quick. Reaching a meeting of the minds, memorializing the agreement in a contract. No life-or-death decisions. No tainted witnesses. No arbitrary judges or misguided juries. Corporate law was so civilized, the epitome of white gloves, no one’s hands dirtied in the process.
As Dani waited for a hearing in her appeal denying Melton a new trial, she wondered what, if anything, she should do with Tommy’s information about Whiting’s sister. All prosecutors were biased to a degree. They believed the defendant was guilty. They were advocates for the state and vigorously pushed for a conviction. Dani liked to believe there were none who’d push for that end if they doubted the defendant’s guilt. And by and large, that was true. Now, she wondered if that was the case with Whiting. Had he foreclosed considering Sanders’s confession because he believed Melton was guilty, or was it payback for his sister? And if the latter, what should she do about it?
Reluctantly, she decided to put that information aside, that nothing would come from acting on it. After all, regardless of Whiting’s motive, the judges were objective. She would have to rely on that.
Three weeks after their appeal was filed, a date was scheduled for oral argument. It would take place in seven days. Dani buzzed Melanie, let her know, and the two women began their preparations.
Dani and Melanie walked up the white marble steps of the Florida Supreme Court in Tallahassee, passed through the marble columns flanking the entrance, and stepped into the large rotunda. They went through security, then made their way to the courtroom where, because it was a death-penalty case, their appeal of Judge Hinchey’s decision would be heard. Once again, Ed Whiting, not a lower-level prosecutor, appeared on behalf of the State of Florida.
When their case was called, Dani stood and walked to the lectern. “Your Honors, may it please the court, my name is Dani Trumball, and I represent Winston Melton. Subsequent to the signing of the death warrant, a man stepped forward and confessed to the crime for which Mr. Melton was convicted.”
Yvonne Clarke, the chief justice and the only woman on the bench, interrupted. “Florida’s Timely Justice Act was meant to foreclose frivolous appeals by putting a cutoff date on post-conviction appeals. Why should we consider this appeal?”
“In upholding the constitutionality of that Act, this court envisioned the possibility of a post-conviction challenge, raising doubts about a defendant’s guilt, after the death warrant was signed. In fact, the possibility of that appeal served as a fail-safe mechanism that satisfied constitutional requirements. If new evidence comes to light that strongly suggests the innocence of a man or woman on death row, surely the State has an interest in ensuring that it doesn’t execute innocent people.”
“Yes, but couldn’t an inmate fabricate a claim of new evidence just to push back the date of execution?” asked one of the just
ices. “Isn’t that just what the Act is trying to avoid?”
“I suppose that’s possible,” Dani acknowledged. “But an evidentiary hearing would determine whether the new evidence is real or manufactured. In this instance, Mr. Melton wasn’t afforded a hearing to demonstrate that Mr. Sanders’s testimony was credible. And the overwhelming facts show that he was telling the truth.”
The warning light on the lectern turned yellow, and Dani finished quickly, then sat.
Ed Whiting walked to the lectern, his back erect, his face composed. After introducing himself to the members of the bench, he began. “Your Honors, the Timely Justice Act has been upheld by this court. The plain language of the statute is clear. Once the death warrant has been signed, execution must take place within one hundred eighty days.”
“Assuming that statute doesn’t prohibit a 3.851 motion,” interrupted Judge Hasting, the white-haired male jurist sitting to the left of the chief justice, “shouldn’t a confession by someone else require a hearing?”
“No, I don’t believe so, not automatically. The confession needs to come up to established indicia of reliability. There’s nothing to tie Mr. Sanders to the murder of Carly Sobol. Even if a hearing were allowed, the defendant should be required to demonstrate a factual basis to the witness’s statement.”
“Didn’t Mr. Sanders describe things at the murder scene that hadn’t been made public?” Hasting asked. “And weren’t his confessions to other similar murders corroborated? Why isn’t that enough to justify a hearing?”
“Because he could have been given the information about the murder scene by the defendant,” countered Whiting. “And the fact that he committed similar murders doesn’t mean that he committed this murder.”
Whiting finished up his argument uninterrupted by the justices. When it was over, Dani gathered up her papers and headed outside the courtroom.
“What do you think?” Melanie asked when they were alone.
Dani rubbed the back of her neck. Only two judges had asked questions, and their positions seemed split. The thinking of the remaining five was a mystery. “I honestly have no idea where they’ll come out on this. But if we lose here, it’s over for Winston.”
Once outside the courthouse, Dani pulled out her cell phone and dialed Amelia Melton. She dreaded her weekly calls to her, but she had promised she’d let her know how the oral argument went. Mrs. Melton’s first words when she came to the phone were, “Do you think you’ll win the appeal?”
“I don’t know,” Dani answered. “Sometimes the judges are very active on the bench, and I can guess what they’re thinking, but most of the judges were silent this time.”
“And these judges? Are they appointed or elected?”
“First, they’re appointed by the governor, then every six years the voters decide whether to keep them in office.”
“Good. Now I’d like you to e-mail me the names of each of them.”
Dani shuddered to think what Mrs. Melton might do with the names. Hopefully, she wouldn’t try to contact them, attempt to sway their opinion. She would surely end up in jail if that occurred. But she had high-priced attorneys advising her, and Dani knew it would be foolhardy to argue with her, especially since the names could be easily obtained from the Internet.
“I’ll send that right over to you.”
There was a brief silence before Mrs. Melton spoke again. “I hope I haven’t made a mistake in retaining your services.”
Dani kept her voice under control, even though she wanted to loudly remind her that she never wanted to take this case. Instead, she calmly said, “You’re free to drop me if you’re not satisfied.”
“Humph! You’re verging on being impertinent with me, young lady. Just do your job, and get Winston exonerated.”
With that admonition, the call ended.
Winston paced along the perimeter of the exercise yard during his two hours of fresh air and daylight allotted to him that day. When the hours were over, he’d be brought back to his death-watch cell and wouldn’t be allowed out again until three days later. All his meals were in his cell. Every other day he could shower, one more chance to escape the six-by-nine-foot box where he counted down the days to the needle awaiting him. No matter how hard he tried, he couldn’t understand how he was in this position, facing death by execution. He was a Melton. From boyhood, he’d learned that money equaled power, and with power one could do anything. And the family money placed the Meltons in a position to wield power all over the world. Politicians didn’t have the most power—it was the people who funded their campaigns and pulled their strings once they were in office who exercised true power. From the smallest local election to the highest national office, the wealthy could dictate policy by the granting, or withholding, of money. It had always been so. Then why am I here, pacing a prison yard? he kept asking himself.
He’d only been a young child when he’d overheard his parents discussing his uncle and the allegations that he’d raped a young woman. “Dad will take care of it,” his father had said. Young Winston didn’t know what that meant, only that nothing bad happened to his uncle. When he grew up, he realized that his grandfather’s money had made the charges disappear. Everyone had a price, and his family had the funds to meet that price. Until now.
Grandmama had promised him he’d be freed. But she’d promised him he’d never be convicted, and here he was. The only thing irrefutable to him now was that his time was running out.
CHAPTER
21
Winter had arrived in New York in full force. Temperatures rarely rose above freezing, and almost daily snow showers meant increasing piles of snow along the sidewalks from the snowplows clearing the road. Dani’s normal commute into Manhattan from her home took thirty minutes longer, sometimes more. At times like this, the thought of picking up and moving to California, where Doug had been offered a full professorship teaching at Stanford Law School, seemed especially tantalizing. Although he’d turned it down last year, she knew they would accept him in a heartbeat. There was an innocence project nearby that she could work at as well. They’d leave behind piles of snow and slippery ice, yet still have mountains for skiing only a few hours away. She’d gladly substitute the possibility of earthquakes in exchange for springlike weather year-round.
Dani shook her head, and the vision of clean streets and warm sun evaporated. HIPP had become her home, the people there her family, the place where she knew she belonged. And despite the New York winters, Dani couldn’t imagine giving up the vibrancy of Manhattan and all it offered. She returned to the folder on her desk, filled with requests from inmates throughout the country seeking HIPP’s help. Moments later, she was interrupted by the buzz of her intercom. She glanced at the phone, and no other lights were lit up.
“What’s up, Carol?”
“It’s here, the decision on the Melton case.”
When the mail arrived, Carol was supposed to remove the contents from their envelopes, date-stamp them, and bring them in to the attorneys. Although she wasn’t supposed to read the mail herself, Dani knew she often did. “And?”
“And you won,” Carol said, the high pitch of her voice conveying her excitement.
“Well, hurry up and bring it in.” Dani breathed a sigh of relief. It was still a long way to Win’s exoneration, but now they were one step closer to a new jury hearing Sanders’s confession to the crime. At least, she hoped they would hear it. She’d need to convince Judge Hinchey to accept Sanders’s deposition, since his death made it impossible for him to testify.
Carol brought in the decision from the Florida Supreme Court, and Dani sat back in her chair to read it. The court had split, four versus three in her favor. The majority wrote: “The threshold issue we must address is whether the signing of a death warrant prohibits an inmate from bringing a motion under Section 3.851(d)(2)(A) of Florida’s Rules of Criminal Procedure when new exculp
atory evidence has come forth. We hold that it does not. We must next determine whether the confession of Earl Sanders to the crime for which Winston Melton was convicted warrants an evidentiary hearing. For the reasons set forth below, we hold that it does.”
Dani skimmed the remainder of the majority opinion, then turned to the minority opinion. “We agree that a motion under Section 3.851(d)(2)(A) is not barred by the Timely Justice Act. However, it was within the discretion of the motion judge to determine that Mr. Sanders’s confession was not credible. For that reason, we would uphold the decision below.”
A close call, Dani thought, with surprise. It shouldn’t have been. A confession by another should automatically guarantee a hearing. How could someone’s life be taken without every effort made to uncover the truth? She shook her head, then walked over to Melanie’s office.
“We won the appeal in the Melton case.”
Melanie’s face broke out in a wide grin. “That’s great. What do you want me to do?”
Dani sat down, and together they mapped out their strategy for the hearing. When she returned to her office, she flopped onto her chair, her shoulders drooped, as she once again was flooded with the recognition—one she faced so often—that an innocent person’s life depended on her.
Two days before Win’s hearing, Melanie stepped into Dani’s office and took a seat. “Judge Hinchey’s decision to deny Win a new trial without even holding a hearing seemed so out of whack, I decided to do a little investigating.”
