To Save the Nation

by Robert E Kass

  “Sorry I’m a little late,” she said. “I’d hoped to be here earlier so we could talk about your petition, but I’ve read what you e-mailed me, and anyhow, you’re the one who’s going to make the presentation. I’m just window dressing, right?”

  “Kind of,” said Winkler. “I’m not admitted in Georgia, and there’s no time for a pro hac vice admission. Officially, your office is counsel to Martinez, and when I met with Jeremiah Bean in the hospital, he asked me to come on as co-counsel. One of my colleagues, who drafted the petition, thought we should start with the prosecutor rather than just file the petition with the court. So, let’s go in and see what we can do.”

  As they entered the prosecutor’s office, the secretary said the prosecutor was waiting for them and ushered them in. Mary Ellen Palmer made the introductions, then turned the meeting over to Winkler.

  “Mr. Morrow, sir, I appreciate your taking the time to meet with us. I know the hour is late, and in fact, the clock is ticking on the execution of Mr. Martinez, which is scheduled to take place next Tuesday evening at six o’clock.”

  “I’m very much aware of that, Mr. Winkler. Our office has been involved in this matter for years, and I argued our case to the Georgia State Board of Pardons and Paroles. You know his request for clemency was recently denied, don’t you?”

  “Yes, sir, I certainly do. I’m here for a completely different reason. We have evidence that the prisoner who’s scheduled to be executed is not Juan Martinez, but is in fact Ricardo Guttmann, an Argentine banker. There’s a clear case of mistaken identity. Mr. Guttmann was never tried for any crime and shouldn’t be executed. We’re asking you to take the initiative and order a stay of execution so the new evidence we have can be thoroughly reviewed and he can be released.”

  The prosecutor, surprised by the information, abruptly sat up in his chair and leaned forward. “And what might that evidence be, Mr. Winkler?”

  “I have it right here, Mr. Morrow, fingerprints showing the person who’s incarcerated as Juan Martinez is, in fact, Ricardo Guttmann. I have an opinion of a credentialed fingerprint expert comparing the prints of Ricardo Guttmann, taken by the New York City Police Department. The expert examined both the fingerprints of Ricardo Guttmann and the fingerprints of the prisoner known as Juan Martinez, which appear in the prison records. They’re a perfect match.

  “The prisoner is, in fact, Ricardo Guttmann. Let me give you a copy of the expert’s report and the two sets of fingerprints. I also have my own affidavit with regard to Martinez’ prints from the prison record, and our Petitions for Habeas Corpus and Stay of Execution, which I hope we won’t have to file. We’ve made them on behalf of Martinez and Guttmann.”

  The prosecutor laid the papers on his desk as his eyes moved from one set of fingerprints to the other, then to the expert’s report, then the petitions.

  “Mr. Winkler, where did you get these fingerprints? This case has been bouncing around for decades, and this is the first time anyone has raised an issue about the identity of the prisoner.”

  “The prints from the prison record are from a photo I took of the record on the warden’s computer, with his consent. I asked him to print the record, but he said he couldn’t because his printer wasn’t working. He allowed me to take the photo. The quality isn’t the best, but it was good enough for the expert to conclude there was a 100% match. The second set of prints is from the files of the New York State Banking Commission. The prints were taken by the NYPD based on positive identification of Guttmann, who at the time was applying for a banking license. I’m in the process of getting a certified copy. The expert’s report was just faxed to me.”

  “Hmm…” The prosecutor was silent as he took off his glasses and laid them down on the desk, picked up the two sets of prints and expert’s report, and stroked his chin, squinting as he reviewed the last-minute material, thinking about how to respond.

  “Mr. Winkler, I don’t get it. How the hell did Guttmann get into prison in the place of Martinez?”

  “As the affidavit of the former prison employee indicates, sir, there was an irregularity in the intake procedure at the prison. Martinez escaped. Someone who looked just like him—Guttmann—was brought back in. Fingerprints weren’t taken, even though prison procedure required them. The person in charge of that process tried to take the prints but was told by a superior it wasn’t necessary. That’s covered in the affidavit of the former prison employee, Darcy McManus. Her superior who directed her not to take the prints was the current warden, who was the assistant warden at that facility at the time.”

  “So you’re asking me to call off an execution based on this expert report. Is that right, Mr. Winkler?”

  “Yes, sir, based on the expert’s report, and this affidavit of a former prison employee, which supports the fact that no fingerprints were taken when the prisoner known as Juan Martinez was admitted after the escape of Juan Martinez. According to what the warden told me, fingerprints of Martinez taken at the time of his original admission were destroyed somewhere along the way when the prison went digital, without retaining digital copies. So, the prints in the prison’s computer system were taken months, or maybe years after the escape, when the prison went digital. They are, indeed, the prints of the prisoner known as Juan Martinez, who’s really Ricardo Guttmann. Based on this new evidence, we’re just asking you to grant a stay to allow for a thorough review. Thirty days should do it.”

  “And how do I know any of this is authentic? I’m sure you can appreciate how it looks from this side of the desk. After several decades of no one raising this issue, you come waltzing in here at the eleventh hour—I’m guessing you’re from out of state, acting as co-counsel—with what purports to be evidence of a major screw-up on the state’s end. To the best of my recollection, there’s never been any suggestion that we had the wrong guy. Why wouldn’t he have said something?”

  “It’s a long story, Mr. Morrow, but actually he’s repeatedly said he isn’t Martinez, but he’s been unable to say who he is because of amnesia due to injuries suffered in prison. His assertions were simply rejected, just like the allegations of innocence made by so many prisoners. The point is, we’ve just determined who he is—and he is not Juan Martinez.”

  “So, Mr. Winkler, on the strength of your affidavit, an opinion of an out-of-state fingerprint expert, and an affidavit of a former prison employee alleging a breach of protocol decades ago, you want me to grant a stay of execution. Is that what you’re asking?”

  “Yes, sir, that’s the idea.”

  The prosecutor took a deep breath and was silent for what seemed to Winkler to be an eternity.

  “Mr. Winkler, I’m sorry, but I just can’t make a major decision like this based on the very late and flimsy evidence you’re presenting to me. For all I know, the fingerprints aren’t authentic, or if they are, they’re not a match. I don’t mean to insult you or suggest any impropriety—and I’m well aware that a man’s life is on the line—but it could all be phony. I would need to see originals or certified copies of anything you’re going to rely on, including the expert’s opinion, and original fingerprints would have to be reviewed by our own expert.

  “I’d suggest we see how the judge feels about this. The Chief Judge, Terry Barnes, may still be around. I know the other judges were going to be out of town this week at a judicial conference. Let me call his chambers.”

  The prosecutor picked up the phone and dialed Judge Barnes’ chambers. His assistant picked up.

  “Good afternoon, Nelly. Is Judge Barnes available for a brief visit? I have an important matter I’d like to run by him.”

  The assistant explained that the judge had left earlier in the afternoon, to take a long weekend hunting. He was going alone and wasn’t going to be back in town until Monday evening. He’d specifically told his assistant he didn’t want to be bothered and was going to turn off his cell phone. He was in the middle of a lengthy trial and was burned out. She had no idea where he was headed.

/>   “Mr. Winkler,” said the prosecutor, “I’m really sorry, but I don’t see how Judge Barnes is going to be of any help. I suppose you could wait until Monday, when the other judges will be back—”

  Winkler looked at Mary Ellen Palmer, and they both shook their heads in amazement. Was the judge’s absence legitimate? Or had he made a last-minute decision to go hunting when he learned of Winkler’s visit, to avoid having to weigh in on the Martinez case? The bottom line, however, was that they hadn’t obtained even a denial from which they could appeal. There was no way they could risk waiting until Monday.

  As they left the prosecutor’s office, Winkler pulled out his cell phone and called Dan Dillingham.

  CHAPTER 38

  DILLINGHAM AGREED THAT THEY NOW HAD NO CHOICE but to start filing their petitions.

  He’d received the affidavit of the prison psychologist, Alice Hanover, but decided to hold it back because it merely made the story more confusing and could have put her in jeopardy.

  At this point, there was no need to get into any further details about Guttmann, or any motivation of Warden Potts to get Guttmann into prison as Martinez, or to have Guttmann executed. All that mattered was to get the stay and have Guttmann removed from the prison and placed into protective custody. They’d just focus their petition on mistaken identity and misconduct on behalf of the prison system in not taking Guttmann’s fingerprints when he was admitted after Martinez escaped.

  Winkler’s experience with the prosecutor proved that if anything can go wrong, it will. What should have been an easy decision for the prosecutor left them hoping this wasn’t an indication of things to come.

  He asked Dillingham what he could expect of the various appeals. “Dan, I don’t want to be a naysayer, but do we have a shot, even with all our proof?”

  “David, it’s worth doing, but it certainly won’t be a slam dunk. Half of all court cases are probably wrongly decided.”

  “I know, Dan. Do you remember the case of the Mexican national I mentioned? He’d been convicted in clear violation of the Vienna Convention. Despite tremendous pressure from the public and anti-death penalty organizations, the court denied a petition for a stay, and he was executed. There was something about how a treaty isn’t law, and the law hadn’t been enacted which would have given it effect. Wouldn’t they need to give reasons to deny our appeals?” asked Winkler.

  “Sometimes they do, sometimes they don’t. In this case, the State can denigrate the petition by arguing that the issue should have been raised earlier, the case has taken enough of the government’s resources, and whatever information is being presented now isn’t ‘new,’ but has existed for decades and it’s simply too late. There’s nothing you can do about it if they take that position. If you get a hearing, you can argue that an innocent man shouldn’t be executed because of the failure of prior counsel to find fingerprints buried in the files of the New York Banking Commission, which are totally unrelated to this case.

  “The State could also argue that the petition was improper because it wasn’t filed by counsel of record, who lays dying in the hospital after his car was bombed. I think you’ll be OK on that score,” said Dillingham, “since the petitions will show Georgia Capital Defenders as co-counsel.”

  Winkler and Dillingham agreed they would simultaneously file Habeas Corpus Petitions also styled as Petition for Stay of Execution, with the Superior Court in Georgia, Georgia State Board of Pardons and Paroles, the Georgia Supreme Court, the Federal District Court, the 11th Federal Circuit Court of Appeals, and the U.S. Supreme Court.

  Dillingham continued. “I don’t expect much from the Governor of Georgia, but we’ll serve the petition on the governor’s office as well. He’s proud of the number of death row inmates they’ve executed and has already turned down a petition in another case, based on violation of the Vienna Convention. Even though we’re only asking for a thirty-day stay until a court can rule on the mistaken identity issue, I think it’ll be hard to get his attention.

  “David, I wonder if our firm has any relationships in Georgia that might be able to bring pressure on the governor and appeal to his self-interest.” Dillingham was definitely thinking outside the box.

  “I’ve got it,” said Winkler. “Our firm represents Armando Velasquez, a Mexican-American former baseball all-star and multi-millionaire, who’s the new owner of the Atlanta Braves. He’s been very vocal on the anti-death penalty front.

  “They’ve been negotiating a new stadium lease for months, and there have been rumors that if the negotiations don’t go in Velasquez’ favor—to the tune of millions in subsidies for stadium improvements—he may well move the team to Los Angeles, his hometown. I know Velasquez—I set up a private foundation for him not too long ago—and based on our conversations, I’m fairly sure he’s going to stay put.

  “But recently there was a story in The Sports News suggesting he’s considering all of his options. It’s got the local and state officials on edge. My guess is, the governor would prefer to see the lease negotiations successfully concluded and finish his term with the team firmly planted in Atlanta for at least another decade.”

  “You’re not suggesting a deal linking the two, are you? Stadium lease for a thirty-day stay of execution?” said Dillingham.

  “Not at all,” replied Winkler. “But let’s just keep this in our back pocket. If we have to, we might enlist Velasquez’ support. He could be subtle, thanking the governor for his support in the past, and the governor would, of course, say how much he appreciates the contributions the team makes to the economy and national standing of the Great State of Georgia. Velasquez could then offer how executing a foreign national based on mistaken identity would be a travesty, something even a pro-death penalty advocate such as the governor would certainly want to avoid!

  “Right now, there are a couple of calls we need to make,” said Winkler, “and I think Emma can handle them. First, to Alice Hanover. If she’s still in town, I’d like her to come with us to the prison tomorrow to meet with Guttmann. Other than his attorney, she’s the only one who has his confidence. If he insists on no visitors, maybe she can break through that barrier. Emma can explain this to her.

  “Next, I’d like Emma to talk to Maria Theresa Romero and get her on the next plane to Atlanta. Hopefully, she’ll be able to arrive tomorrow morning, and we can connect with her at the airport and fly down to the prison on the Executive Air jet.”

  “David, you’re thinking that even if Guttmann is willing to shut everyone out—resigned to die and not interested in fighting anymore—he might make an exception if it’s his daughter who makes the plea to allow you to take one last shot?”

  “Right. And even if he rejects the offer, at least he will have had the opportunity to meet her, and she will have met her real father.”

  CHAPTER 39

  THEY WERE IN LUCK. Alice Hanover was still in town and agreed to meet Winkler at the prison. The meeting was tentatively set for the following day at eleven.

  Emma was able to contact Maria Theresa Romero and coordinate her overnight flight from Montevideo to Miami, and onward to Atlanta, to arrive at nine. Winkler would meet Maria Theresa at the Atlanta airport and continue on the executive jet flight to Griffin, Georgia, and from there it was just a short drive to the prison.

  Alice Hanover had agreed to contact Warden Potts and set up a meeting with Guttmann, Winkler, and a member of Guttmann’s family, supposedly to say final farewells. She was not to mention anything about the petitions. The psychologist assured Emma that Potts would schedule that meeting, even if Guttmann maintained a ‘no visits’ position. She was prepared to bring up Warden Potts’ wife’s therapy with Dr. Hibblewhite if the warden didn’t provide his full cooperation.

  Dan Dillingham had decided to have local counsel file the petitions in Atlanta, and they were standing by, awaiting word that Guttmann was on board. Dan would file the petition with the U.S. Supreme Court and—for dramatic effect, if nothing else—with the chief of s
taff of the President of the United States, all about the same time, after receiving Winkler’s call.

  Simultaneously, press releases would be e-mailed to all the major news organizations worldwide, to hundreds of human rights organizations, and to all the anti-death penalty organizations in the U.S. and abroad.

  Afzam had set up a Facebook page for the “Save Ricardo Guttmann Movement,” a place where supporters could sign to show their moral support for the petitions, and a Twitter feed for moment-by-moment developments, starting with the first petition being filed.

  The case was described as a classic one of mistaken identity, which proves the danger to the justice system when a person’s life can be taken, with an air of legitimacy, even though he isn’t guilty of any crime. A website would contain copies of all the petitions, fingerprints, and expert’s report as to the fact that they were the prints of Ricardo Guttmann.

  Billings Ryan, the firm’s public relations consultants, had scheduled a major press conference, to take place on the steps of the county courthouse, just down the road from the prison, at five o’clock.

  Winkler was hopeful Guttmann would go along with the petitions, but he really had no idea how he’d be received. If life were a Disney movie, he’d be greeted with open arms and a smile, Guttmann would sign on the dotted line, the stay would be granted, Guttmann would be vindicated, and Maria Theresa would be reunited with her father. But Winkler knew life wasn’t a Disney movie and the psyche of a death row inmate could be marked by profound distrust and resignation.

  CHAPTER 40

  WINKLER COULD SEE FROM THE ARRIVAL BOARD at Atlanta’s Hartfield International Airport that Maria Theresa’s flight from Miami had landed at 9:05 a.m., right on schedule. He figured it would take her just a few minutes to make it to the Arrivals Hall, as she’d cleared Customs & Immigration in Miami and was traveling with only a carry-on bag.