To Save the Nation

by Robert E Kass

  Winkler gasped. “But Guttmann was never given a trial! They tried Martinez. If executing Guttmann, an innocent man, isn’t a violation of due process and his 8th Amendment right to be free from cruel and unusual punishment, then I don’t know what is. Even non-citizens have constitutional rights. What about the destruction of the physical records when they went digital?”

  The conversation was interrupted when Winkler’s cell phone indicated another call was coming through. From the caller ID, he could see it was Alice Hanover.

  “Dan, I’m gonna put you on hold. It’ll just be a minute.”

  He wasn’t expecting the psychologist to call and hoped she wasn’t going to withdraw her support for fear of retribution from the warden. He listened intently, then thanked her for the call and switched back to Dillingham.

  “Dan, you won’t believe it. Alice Hanover, the prison psychologist, tracked down a former prison employee, Darcy McManus, who was at Georgia Diagnostic when Martinez was brought back in after his escape. It was her job to take fingerprints of all new arrivals. She distinctly remembers insisting that Martinez be fingerprinted. Potts, then assistant warden, was present, gloating about how he got the escapee back. He refused to allow her to take prints, saying it wasn’t necessary, that they knew who they were dealing with. Failure to take his fingerprints violated established procedure, and she pointed that out. She was ticked that he just blew her off, but was afraid to press him on the issue because he was the boss. She’ll sign an affidavit.”

  “My God,” said Dillingham. “Combine that with the destruction of the paper records when they went digital, and it looks like we have our constitutional violation. Something like prosecutorial misconduct. So, we go with the prints from the photo of the screenshot from the prison computer system—”

  “We don’t have a choice, Dan. If we ask Warden Potts to take new fingerprints or e-mail the prison record for a cleaner image, we’ll get stonewalled. I guarantee that 100%. Let’s go with what we have. I’ll attach an affidavit with the two sets of prints and the fingerprint expert’s opinion that the two match, assuming that’s what he tells us. That should work for now. We can get new prints during the period of the stay. The standard for a stay of execution pending disposition of a habeas corpus petition is that there are ‘significant grounds’ upon which relief may be granted. The new information should constitute evidence that Guttmann is not the man convicted as Martinez.” Winkler was getting a little ahead of himself but felt confident the fingerprints would support his argument of mistaken identity. “You mentioned a second problem, Dan. What other obstacles have you uncovered?”

  Dillingham had clearly given a lot of thought to the situation. “We can’t just file all our appeals. We need an adverse decision from which to appeal. Up to now, all the appeals and Clemency Petitions have been filed on behalf of Martinez. Now we have a totally different party, Ricardo Guttmann. I think we should start with the Georgia state court that convicted Martinez, and if the judge doesn’t buy the mistaken identity argument, then we let loose with the appeals.

  “But even before we do that, I think a visit to the county prosecutor, Johnny Morrow, would be the smart way to go. I’ve already contacted Jeremiah Bean’s office, the Georgia Capital Defenders, to send an attorney to meet with you. I don’t think you should meet with the prosecutor without local counsel. The soonest Morrow can meet is four tomorrow afternoon, which is fine. It’ll give us some time to finish the petition and get the affidavits.

  “The prosecutor is up for re-election in a few months, and if he refuses to listen to us, it could look real bad that he let the state execute the wrong man. If he doesn’t agree that the wrong guy is about to be executed, then we take it to the judge for an immediate decision, and if that doesn’t work, then we launch the appeals.”

  “Do we have time for all this, Dan?”

  “I don’t see any choice, David. It’s a question of whether we go straight to the judge or play our hand with the prosecutor first. We won’t have our petition and affidavits ready until sometime tomorrow, and in any event, we couldn’t meet with the judge without the petition and affidavits. I know there’s a lot on the line here, and it’s a rush, but we have no choice.

  “One more thing: What about our representation of the inmate? How is it that we’re now his counsel? Have you met with him?” Dillingham didn’t want to overlook any technicality.

  “No, not yet, and I can’t see how that’ll happen before we meet with the prosecutor tomorrow.” Winkler couldn’t escape the facts.

  “I have an idea,” said Dillingham. “Jeremiah Bean is with the Georgia Capital Defenders. Technically, it’s the organization that represents Martinez, not the attorney, so when one of their lawyers tags along, we’ll have continuity of counsel, and you just appear as co-counsel. Didn’t Jeremiah Bean make you co-counsel when you met with him at the hospital?”

  “Hmm…he was real weak, heavily medicated to manage his pain, hard to understand, but he did communicate.”

  “David, that’s when he asked you to be co-counsel! Who’s to say that’s not true?”

  Winkler smiled and nodded. Dillingham continued.

  “I’ve also touched base with the Innocence Project, given their experience with exonerating wrongfully convicted individuals through DNA testing. I’ve asked them to mobilize their social media network once we get the petitions filed. Within a few hours after we file, I expect we’ll have thousands of people and anti-death penalty organizations contacting their Congressmen, the Governor of Georgia, and even the President to set this thing straight.

  “Once we compare the fingerprints, I’ll contact the Embassy of Argentina. I’m certain they’ll lodge an official protest with the State Department that one of their nationals is being wrongly detained and about to be executed. They couldn’t have been notified at any point in the process since his true nationality wasn’t even known.”

  Winkler was amazed at how quickly Dillingham brought himself up to speed in areas in which he’d never worked.

  “Dan, there’s no question this is a clear violation of the Vienna Convention on Consular Relations, but I’m not sure how that’s going to help us. That treaty has been in the press with regard to Mexican prisoners on death row in Texas. The police are supposed to tell them of their right to contact the consulate for assistance. Consular officers are supposed to monitor and support defense counsel’s efforts, confer regularly with the defendant and his family, and attend court proceedings. But the cases have ended badly. I seem to recall the Mexicans were executed notwithstanding the treaty violations.

  “I guess we could invoke the Convention,” Winkler continued, “but I certainly wouldn’t count on it, and I’m also a little leery about contacting the Argentine Embassy right now. They could want Guttmann for other reasons. Let’s take this a step at a time. Get the stay, then get him out and ask for protective custody. We’ll deal with the Argentines later.

  “Dan, I’ve got to go. I’m gonna tell the pilot we’re not flying tonight. I’ll draft what I need to on my end and watch my e-mail for your draft of the petition. Thanks for your help.”

  “Remember me at the next annual review meeting,” Dillingham replied. “Anyhow, it’s a nice change from corporate litigation. Let’s see if we can make the justice system work.”

  CHAPTER 36

  “MR. VINKLER, YOUR INSTINCTS WERE RIGHT. Trevor Banks is not who he says he is.”

  It was Thursday morning. Winkler was busy in his motel room, reviewing Dillingham’s petition and polishing his affidavit, when Afzam called him with some shocking news.

  “It wasn’t easy, but I used facial recognition software on the image of Banks we got off our security surveillance system, after enhancing it to sharpen it up. Then I went out on the Web and looked for matches but came up with nothing. But then I had the system age whatever was on the Web, based on the number of years between the Web photo and the current date, and we got a couple of matches, and they are very, ve
ry interesting. I just e-mailed some photos to you.”

  “I have your e-mail with several attachments,” said Winkler.

  “The first is the current photo,” said Afzam. “This is the fellow you know as Trevor Banks, taken within the past few days. The other photos are the matches. If you just look at the original photos, you won’t see much of a resemblance. Too many years have passed, and they haven’t been very kind to him. But once you age enhance them, the similarity is amazing.

  “These photos are from news articles, archived from the late 1970s, and in each case he is pictured with a group of Argentine military leaders. In photo #2 he’s in the back row, right behind the big shot. Same as in the next one. Each time pictured with the same fellow, Colonel Raoul Vincenti.”

  “So who is Trevor Banks?” asked Winkler.

  “Based on the captions and the accompanying news stories, he is Alejandro Ramos and was a high level aide to the colonel,” said Afzam.

  “Were you able to find out any more about him?” asked Winkler.

  “His name was only mentioned in one more item,” replied Afzam. “This is what I think you would refer to as a ‘home run.’ I found a confidential, top-secret, classified internal State Department memorandum, now declassified and made available after a Freedom of Information Act request. The memo is a transcript of a meeting which took place in 1976 between representatives of the Argentine Government and Henry Kissinger, then Secretary of State.

  “The Argentines were fed up with the left-wing Montonero guerillas and asked Kissinger for political support in their decision to use the full force of the military to stamp them out.

  “He urged them to finish the job and eradicate the rebels before Congress would get back in session. He was concerned about a new human rights law which would require the White House to certify that a government was not violating human rights before providing U.S. aid. He was hoping the Argentine generals would wrap up their murderous eradication of the left before the law took effect.”

  “And what was Ramos—or Banks—doing at that meeting?”

  “He was the representative of the Argentine military. He made the point, loud and clear, that human rights had to step aside for the greater good of the country—to save the nation.”

  “What about Colonel Vincenti? Could you find anything on him?”

  “He was convicted of torture in Argentina in the early eighties, as part of the Dirty War prosecutions. He was at the very top of a group which engaged in electroshock, water-boarding, and what were euphemistically called ‘transfers’ of prisoners. The prisoners were actually drugged, stripped, then thrown out of airplanes into the ocean, never to be seen again. Then he was pardoned, so he never did time. However, I did a search for his image on the Web, aging the ones I found where he was pictured with Banks, and look what I found. It’s photo #3.”

  The third photo was from a front page article in a recent edition of The New York Times. The title of the article read: “New Secretary of Homeland Security Set for Approval.”

  “But this is Eduardo Cruz, a Congressman from Florida who’s in the process of being appointed Secretary of Homeland Security. He’s just awaiting Senate approval. What does this have to do with Colonel Raoul Vincenti? Are Cruz and Vincenti the same guy?” Winkler was stymied.

  “It certainly looks like it to me,” said Afzam. “Have a look at photo #4, another current photo of Cruz. He is accompanied by an aide, none other than the man we know as Trevor Banks. Seems to me that a couple of people have tried to bury their past, and one is about to ascend to a very important position of power in the United States, quite possibly without the Senate having the benefit of full information on him.”

  Winkler’s heart stopped. What had he gotten himself into? Was he about to blow the cover of a man who aspired to lead one of America’s top security organizations? Or did the President really know who he was and want someone like him to help quash our own internal dissent?

  Even if that’s so, he thought, there must still be a few reasonable voices in the Senate who’ll want to know the person whose appointment they’re being asked to approve is a cold-blooded killer and torturer.

  “Afzam, see if Dan Dillingham can get Senator Harden’s office to pull their file on this nomination, and at least let us know if there were any name changes mentioned. We may not be able to see the entire file, but maybe we can open the door to closer scrutiny if there was no disclosure of name changes and we bring up this apparent inconsistency. If they can get their hands on Congressman Cruz’ immigration records, I‘d be very interested to see if he disclosed his checkered past, or buried it.”

  “Certainly, Mr. Vinkler, but there is one more thing. Your private investigator, Luke Rollins. What do you know about him?”

  “Not very much, Afzam, except that he’s had a career in law enforcement and came highly recommended.”

  “Were you aware that he served in the U.S. military?”

  “Yes, he mentioned that, but we didn’t discuss details.”

  “Mr. Vinkler, did you know that he spoke Spanish?”

  “Yes, and in fact he did a great job translating Ricardo Guttmann’s letter. But he didn’t profess any great language expertise.”

  “Well, Mr. Vinkler, I don’t think he has been totally candid with you. The memorandum of the meeting with Secretary Kissinger indicates that Mr. Rollins was present, that he was in fact the Military Attaché at the Embassy in Buenos Aires and acted as interpreter at that meeting.

  “I don’t want to speculate, but it would not surprise me if he knew Trevor Banks—or Alejandro Ramos—from his days with the military in Buenos Aires. The U.S. and Argentine military had a very close relationship. In fact, it wouldn’t surprise me if Mr. Rollins brought Mr. Banks to you. My concern is that he may be feeding information to Banks, and possibly those other people who are trying to find Ricardo Guttmann or the missing fortune.”

  “Oh my God! Afzam, thank you so much! I have to figure out how to cut ties with Rollins immediately. We certainly don’t need a mole in this operation.”

  Winkler ended the call with Afzam and stood for a moment, gazing out the window. He was shocked by the revelation that Rollins had been in Argentina and supported the Argentine military during the Dirty War. How could Rollins not have mentioned this to him? Should he confront Rollins directly on this? Did it matter? Did he need Rollins anymore, or had his role as an investigator come to an end? Would a blow-up with Rollins be worse for him as he continued to deal with Trevor Banks, or Ramos?

  There was a knock on the door. It was Rollins.

  “Morning, David. How’s the paperwork going?”

  “Fine, Luke. Should be wrapping it up shortly. You know, Luke, I think from this point onward it’s all legal work. What I mean is, I don’t think we really need your talents as an investigator anymore, now that we’ve figured it all out and found our man, so to speak.”

  “I agree, and I’m just as happy to stop the clock and get back to the office. I just had a call, and there’s a juicy assignment waiting for me as soon as I get back.

  Something about a judge who’s been leading a double life and has a second family in another state. Wife number one has a divorce attorney who’d like me to help him work up the case.”

  “Just tally up your hours,” said Winkler, relieved that Rollins was so willing to step aside, “and Emma will get you a check. Thanks for all your help. I really mean it.”

  At this point, Winkler didn’t need the drama of a confrontation with Rollins about who he was really working for. Whatever information had been passed along was yesterday’s news, and Winkler needed to focus his energy and efforts on getting the stay of execution.

  CHAPTER 37

  IT WAS ALL FALLING NICELY INTO PLACE. Winkler didn’t know if the petition would win the day, but it said all the right things.

  New information supported the position that the prisoner wasn’t who the prison records said he was, that there was a clear case of mistak
en identity. The fingerprints spoke for themselves. The set from the New York Banking Commission, taken by the NYPD, represented the prints of Ricardo Guttmann. The prints from the screenshot off the prison’s own computer were a perfect match, according to a report and affidavit of a credentialed fingerprint expert. Winkler’s own affidavit accompanied the screenshot of the prints, and if there was any doubt as to their authenticity, the court could either order the prison to print another copy or order that new prints of the prisoner be taken.

  The affidavit of Darcy McManus, the former prison employee, supported the position that there was official misconduct when Martinez—or Guttmann—was admitted after the escape, without taking his fingerprints, in clear violation of prison rules. The destruction of the paper records in this case wasn’t consistent with any written policy. Winkler was optimistic his meeting with the prosecutor would be fruitful, but at the same time he realized things rarely go as expected.

  Winkler arrived at the County Building just before four o’clock. He was to meet Mary Ellen Palmer, an attorney with Georgia Capital Defenders, outside the prosecutor’s office on the third floor.

  The County Building was a classic nineteenth century government building that housed the county courtrooms, as well as the prosecutor’s office and other county offices. The roof was domed, and the front bore classic pillars. The ceilings were twenty feet high, the floors were marble, and the doors to each office were solid oak, with heavy trim and brass hardware.

  Winkler paced nervously, wondering if Mary Ellen Palmer was going to be on time. She appeared a minute after four.