by Pascal Marco
“But how are you going to prove this?” she asked. “The only one who can corroborate your story is one of the five killers or Clayton Thomas himself.”
“I know. So I’ve got to find some way to make those two we’re holding come forward and tell me the whole story.”
“How can you do that now since you’ve already spoken to them without their lawyer being present? They’ll throw the case out faster than—”
“Yes, I know. I know.” Stan said, grumbling his reply, knowing Maxine’s understanding of the law was second only to her knowledge of the Civil War. “The only one who can help me now then is Clayton.”
“Clayton? And how do you propose to do that? He’s on track to be the first black candidate for President of the United States. Why would he jeopardize that?”
“Because he owes me, that’s why. Because he said he’d make it up to me some day. It looks like I’m going to have to pay a visit to my old best friend and call in my mark.”
CHAPTER 34
Before Brian left the Kobe’s home last Friday, he had called his law school teacher, Professor Stengel, and set up an appointment to meet him the following Tuesday at the professor’s office in the Ross-Blakely Law Library on ASU’s Tempe campus. He had briefly explained to Stengel what he was looking for, prepping him for the meeting.
When Brian arrived at the professor’s office, Stengel welcomed him from behind a meticulously clean desk.
“Hi, Brian. I’m glad you’re on time. Nothing worse than people who aren’t punctual, you know. I’ll need to keep this brief. I’ve got a class in forty-five minutes across campus.”
“Of course, Professor. I really do appreciate your time on this,” Brian said as he sat down across from him.
“So, how can I help?”
“Well, sir, I’m working with the Maricopa County Attorney’s Office. It’s somewhat involved, but I will keep my inquiry as brief as possible. I’d like your opinion on something.”
The detective retold Stengel the story of James Overstreet witnessing of the murder of Manny Fleischman over thirty years ago in Chicago’s Burnham Park. He detailed the Chicago Police Department’s impetuous pursuit of the alleged juvenile offenders, the authorities’ subsequent hasty arrests and interrogations, and their misinterpretation of the escape route of the attackers. He also described the prosecution’s key oversight in not taking the eyewitness back to the scene of the crime prior to the trial to corroborate his story.
“Well, I must say, Brian, the case does sound intriguing. And the police didn’t provide the alleged offenders counsel, you say? Even when they requested representation?”
“That’s right, sir. The judge in the case had no choice but to throw out their confessions.”
“I can understand why the confessions would’ve been thrown out, but Miranda didn’t exclude the bat.”
“The bat was introduced and the eyewitness IDed it as the weapon. But the prosecution was never able to prove it was used as the murder weapon,” Brian explained. “The theory is that the primary suspect must have cleaned the bat of any residual blood traces. They were never able to positively type it against the victim and, unfortunately, the bat’s owner had the same blood type.”
“That’s right. You said this happened in nineteen seventy-five. Pre-DNA days,” Stengel observed, nodding. “So, if I might ask, what’s your involvement in this case, Brian?”
“I’m not really at liberty to say at this point. Let’s just say I have an interest in seeing this brought to justice.”
“Well that’s all fine and good but I don’t need to remind you, Brian, that double jeopardy applies here, do I?” Stengel proceeded to count off his other legal concerns on his fingers. “Not to mention statute of limitation issues, the fact that they were juveniles, and the fact that juvenile records are sealed.”
“No, no. Of course not. We’re not looking at retrying them for the murder. But we think we can overcome the statute of limitations issue.”
“How?” Stengel asked.
“We might be able to show we have grounds to file a federal conspiracy charge against them.” Brian inched forward in his seat toward him. “You remember that case you talked about in class a couple of weeks ago, United States versus Masters?”
“Yes, I remember.”
“Well, I’ve read and reread the court’s decision. It held that a conspiracy can include an agreement to conceal the conspirators’ conduct and such concealment can continue the conspiracy for statute of limitations purposes.”
“Yes. That’s correct. But how do you propose to introduce that in court?” his professor asked.
“We believe we can show that the gang had intended from the beginning to prevent discovery of a planned crime and had conspired to commit murder, and that this concealment was part of the original conspiracy.”
“But as that case stated,” Stengel added, “you’ll need to show that their actions weren’t the result of a spontaneous reaction to their fear of arrest and prosecution. In U.S. v Masters, the court stated that a distinction must be made by the prosecution to infer the existence of a conspiracy and must show that the perpetrators took care to cover up their crime in order to escape detection and punishment. Can you prove none of these conditions existed?”
“We believe we can.”
“And that’s just the first hurdle,” Stengel went on. “Then, if I remember correctly, you would have to show that an original agreement was made among them to continue to act in concert in order to cover up, for their own protection, traces of the crime after its commission took place.”
“Yes, I know,” Brian said, his voice trailing off, sensing the immensity of the burden of proof.
“And, besides,” Stengel added, “according to what you’ve already told me, the murder wasn’t committed on federal property.”
“Yes, but the conspiracy was,” Brian said. “The gang planned the murder on a piece of federally owned property inside Oak Woods Cemetery in Chicago. There’s a Confederate burial mound there that the U.S. government acquired in eighteen ninety-five and still owns to this day.”
“Well, that’s remarkable luck, but do you have proof of this conspiracy because coincidences don’t win trials,” Stengel chided. “Do you have any witnesses to this alleged conspiracy or participants who are willing to come forward?”
“We’ve got two of the actual participants locked up on unrelated charges here in Maricopa County. But I don’t think they’ll volunteer to roll over on this. They’re both three-time losers.”
“Maybe they’ll sing a different song when they realize the penalty if they’re found guilty,” Stengel said.
“I don’t understand. Why?”
“Because the conspiracy to cover up a murder may hold the same sentence for the crime itself,” Stengel said.
“Really?” Brian struggled to keep up with notes he had been taking since they started their conversation, but after Stengel’s surprising remark he made sure to double underline his last statement, annotating CHECK FURTHER in his notebook’s margin. When he was done writing, he asked, “So, if they’re found guilty, then it’s the death penalty for them?”
“Not so fast. I didn’t say that. You said this act was allegedly committed in nineteen seventy-five. There was a moratorium on federal executions back then. Your case is unprecedented if they’re found guilty. If we use today’s law, they’d get the death penalty. If we revert to the time of the commission of the crime, then they’d get life.”
“Either way, it’s win-win,” Brian said, sounding somewhat relieved.
“Don’t get your hopes up, Brian. You’ve got a lot to prove. And U.S. v Masters is the only case of its kind that has tried this legal theory. That’s not much of a precedent. It’s too bad you don’t have someone who’ll come forward voluntarily,” the judge added, looking at his watch.
“That’s what we’re working on right now. We know the whereabouts of a witness to the original conspirators,” Brian replie
d.
“I’d say that’s very fortuitous for your side,” said Stengel, “but what makes you think he’ll cooperate and come forward without a federal subpoena?”
Brian had no reply, not knowing what strategy Stan planned in leveraging Senator Clayton R. Thomas to come forward.
“We haven’t quite figured that out yet, sir.”
“Well, I suggest that if and when you do convince him to come forward, based upon the history of this gang and their current criminal involvement, you might want to offer him witness protection as an enticement.”
Brian chuckled, shaking his head as he wrote in big-blocked, capital letters in his notebook: OFFER SENATOR WITNESS PROTECTION?!?!
“What’s so funny?” his professor asked.
“Irony, Professor Stengel. The unbelievable irony, that’s all.”
PART FOUR
SWEET HOME CHICAGO
CHAPTER 35
From his vantage point in the window seat of Southwest Flight 543 to Chicago, Stan Kobe was provided a view he had never heretofore experienced. A few thousand feet below him Lake Michigan stretched out as far as the eye could see. It lay like a blue velvet carpet tousled gently by a northwesterly wind, its prevailing direction at this time of year. He calculated that it had been thirty years, two months, and twenty-nine days since he had laid eyes on the inland body of water. Her embracing blueness reached far off onto the horizon, mimicking, albeit weakly, the zero edge swimming pool in his north Scottsdale backyard. Needless to say, this magnificent body of freshwater held far more than the twelve thousand gallons or so of his man-made play pool back in Arizona. And it held many more memories, too.
As a boy, he had only been able to see the lake from the shore, imagining what must exist at her outer edge, unfathomable to grasp at such an immeasurable distance. As he gazed through the airplane’s cold Plexiglas window he reminisced, remembering how his seventh-grade teacher, Miss Burns, had explained to her class that Lake Michigan was a prehistoric remnant of the retreat of glacial ice. A body of water probably more than fourteen thousand years old.
“That’s almost as old as my great-granny,” Clayton Thomas had wisecracked to James Overstreet, making him laugh that day after school when James walked with his best friend in Burnham Park so many years ago.
James Overstreet was someone Stanford Kobe barely remembered now, the boy’s identity lost. He and Clayton had stared at the old lady lake as they sat on the edge of the limestone steps that jutted out from the shoreline, tossing small stones into her indigo waters. The best friends shared a dream that day, promising each other, as naïve, innocent boys often do, that when they got older they’d sail across the lake to find out where it ended; to find out what adventures lay out there, waiting for them on the far side of Miss Burns’s ancient, mysterious lake.
The Boeing 737 banked steeply to the left on its final approach to Midway Airport. Stan watched as the horizon dipped below his view, making the vast freshwater lake’s edge vanish. He stretched from his seat as high as his seatbelt would allow him until the massive body of water disappeared from his view. Now only clouds rushed past the plane’s windows.
Losing sight of the lake filled his mind with another vivid childhood memory. He recalled the day he had watched his mother walk out of sight when she dropped him off for his first day of kindergarten at Oakenwald Public School. He had stood inside the school and stared out through the building’s steel-meshed glass doors for what had seemed like an eternity, watching her walk away. In his mind, he knew she was still out there, somewhere, yet the experience of losing sight of her made his heart skip a beat, not knowing and wondering, when—or if—she would return.
As the plane touched down, he had already internally rehearsed his speech with the current U.S. Senator from Illinois, Clayton R. Thomas, a hundred times. Stan had found out after making a call to the senator’s Washington, D.C., office on Tuesday that the senator would be in his Chicago office this week in between a session of Congress. As a ranking Democrat on the Senate Judiciary Committee, Senator Thomas would be holding a town hall meeting in Chicago, dealing with the recent announcement by the Department of Homeland Security that the Windy City had become the #1 destination for illegal immigrants from Mexico.
Stan’s office had contacted the senator’s office and asked for an emergency meeting between a representative from the Maricopa County State’s Attorney’s Office and the senator prior to the public assembly. It was to discuss, as the formal e-mail read, “Chief County Attorney Andrew Thomas’s announcement to make every resource in his office immediately available to the senator’s committee in order to stem the tide of illegal immigrants funneling through Arizona to Chicago.” Stan just hoped he could pull the sham meeting off prior to his boss getting wind of his maneuvering, instructing his own secretary to set up an auto reply to any incoming e-mails while he was away.
Stepping out of the terminal to hail a cab, the late fall but still humid Chicago air engulfed him in a warm embrace. He was finally home. He stopped for a moment and closed his eyes, taking time to savor the fact that his dream had come true—he had returned to the place of his roots. As a youth, autumn in Chicago had been his favorite time of the year. Actually, James had loved all the seasons except the bitter Chicago winter, which prevented him from taking his daily treks to the lakefront. Standing on the curb, he held the emotion for a moment, heart open, wrapping his arms around the sensation. He was back in the city of his birth, back to the hometown he had been ripped from as a boy.
He told the cab driver his destination: “Forty-three hundred South King Drive.”
“Bronzeville. Yah, sir. No problem.”
Stan didn’t recognize the cabbie’s accent, not that he would. This was actually his first cab ride, never having need of the service while living in Phoenix his entire adolescent and adult life.
“Bronzeville,” Stan repeated.
“Yah, sir. Bronzeville. Very nice. Good place now. Not so good many years ago. Now? Okay. No problem.”
Stan recalled the lectures given to him by Manny Fleischman about the famous people who emanated from or were drawn to this formidable enclave of black entrepreneurship and leadership. People like turn-of-the-century feminist and civil rights activist Ida B. Wells and Daniel Hale Williams, the father of open-heart surgery. Or the founder of the Negro National Baseball League, Rube Foster, and world-renown poet, Gwendolyn Brooks. Once called America’s “Black Metropolis,” from the late 1800s until after World War II, the area had been home to many of the nation’s most significant African-Americans.
His old Oakland neighborhood within the Bronzeville district, glutted with gang-infested Chicago Housing Authority high-rises when he lived there, had since come under the wrecking ball of urban renewal. The area had now become the “in” place for DINKs—double income, no kids—and yuppies—young upward professionals. Urban gentrification had taken over full force in this, at one time, most blighted of neighborhoods on Chicago’s near South Side—helping it experience a renaissance driven by unprecedented new construction and building rehab and renovation.
Thirty minutes later, the cabbie pulled the car up to the curb of Stan’s destination.
“Here yah go, sir. Forty-three hundred King Drive. You want me wait, sir?”
“Yes,” Stan replied, grabbing his attaché case from beside him in the backseat. “Please do. And, would you do me another favor?” As he said this, Stan handed the driver a fifty for the twenty-five-dollar fare and along with it a small piece of paper.
“Ah, thank yah, sir! No problem! I wait, no problem, sir.”
Stan stepped away from the yellow taxi and walked up to the storefront, its aluminum-and-glass door decaled with the official emblem of the United States Senate and the following:
CHICAGO OFFICE
U.S. SENATOR CLAYTON R. THOMAS
HOURS BY APPOINTMENT ONLY
Stan opened the door and walked in. A young, twenty-something black girl sat behind a desk with a
nameplate that read: reception.
“May I help you?” she asked.
“Yes, Stanford Kobe, Maricopa County State’s Attorney’s Office. I have an appointment with Clayt … uh … Senator Thomas.”
“Yes, Mr. Kobe. The senator’s been expecting you. Won’t you have a seat while I let him know you’re here?” She gestured toward two brown leather chairs to his left. “Did you have a good flight in?”
“Yes, I did.”
“Can I offer you coffee or a bottle of water?”
Stan shook his head and replied, “No, thank you.” He took a seat in one of the chairs that flanked a circular teak table, displaying a variety of literature on top of the dark wood’s oiled finish. All the pieces described in some manner the senator’s efforts in the local community. He picked up one that had Clayton’s picture on the cover. I see he still has that scar over his right eye. I remember giving him that. Guess that thing never kept him from getting elected.
“Senator Thomas,” the receptionist said into the phone, “Mr. Kobe is here to see you. Yes, sir.” She hung up and pointed to her left. “Right through there, Mr. Kobe, sir. End of the hall, last office on your right.”
As Stan opened the door for the hallway to the senator’s office, he wondered just what Clayton’s reaction would be when he saw him. Will he recognize me? Of course, don’t be silly. But he hasn’t seen me in over thirty years. Well, you recognized him, didn’t you? Yeah, I did recognize him. Clayton hasn’t changed a bit.
A recurring thought popped into Stan’s head. It was something that had occurred to him many times, especially after he became a high-profile prosecutor. His picture had been published dozens of times in the Arizona Republic, especially over the last ten years. And once or twice some legal articles he had been asked to write were published in a Washington, D.C., think tank publication. If he Googled himself, his picture was all over the Internet. Why haven’t I ever been recognized all these years I’ve been in witness protection? He tapped the top of his balding head. Have my looks changed that much?
