Janet Moodie--Next of Kin

by L. F. Robertson

  “Don’t I know it,” Marty said. “Nice when your hard work finally pays off, though. If it was luck, I hope some of it rubs off on Sunny.” I didn’t have time to say anything more before the last of the participants came in. “Jill Epstein,” she said, shaking my hand. I didn’t know her; I assumed she’d been hired after I left.

  “Right, let’s get down to business,” Toni said. A podium had been moved to one end of the table, and Toni took up her position behind it. We anointed Joe as chief justice and time-keeper, and Toni began her prepared remarks. As she went through her arguments, we peppered her with questions, each of which she answered articulately and concisely; she was definitely ready for the hearing. Death penalty lawyers may be quixotic by the standards of most of the profession, I thought, but we’re no dummies. But as I listened a little tensely to the dialogue, I realized that I was feeling a proprietary interest in how a work that was at least partly mine was being presented to the court.

  The morning of the hearing itself, I sat at my desk at home, a cup of milky coffee before me, its handle to my hand, watching a live stream of the oral argument over the state’s Internet channel and marveling at the technology that allowed me to be in the audience of a hearing in Los Angeles without leaving my house. My connection left something to be desired, and I spent a few frustrating moments waiting while something or other buffered. But all in all it was a lot cheaper and less time-consuming than traveling five hundred miles. The argument went well, as those things go; the justices asked Toni many of the same questions we had in the moot court, and they seemed interested in the case, though without sending any real signal about which way they were leaning.

  My appointment with Sunny was two days later.

  “You’re here early,” Sunny remarked, as we sat across from one another over coffee and cookies in the attorney visiting room.

  “I drove up yesterday,” I said, “so I wouldn’t be so tired when I got here.”

  “I guess that’s good for me. I’m a morning person.”

  “How is your knee?”

  “Pretty good. They did the surgery not too long after you were here last. Took me to an outside hospital. You know how the security works here; sometimes they just wake you up early and take you to the hospital with no warning. I had a day’s notice because I had to fast before the operation. But it feels so much better now! I’m still using a cane, but I won’t need to for much longer. How have you been? How was your Christmas?”

  “Quiet. I’m pretty much alone; my son and his wife live in Australia.”

  “Wow—that’s a long way away! Do you get to see them?”

  “We talk on Skype.”

  “Skype?”

  “It lets you talk to people over the Internet and see them at the same time.”

  “That’s amazing—so much has changed since I was on the outside. I wish they had that here; it would be fun to get to see Kyle and Brianna more often. It was quiet here, too. But we had a nice dinner, with ice cream for dessert. There was eggnog in the vending machines. Carol visited, and Brittany and her family, and we drank eggnog both times. I was happy as can be to see them again; the kids are so much bigger than the last time they were here, and Brianna is smart as a whip.” Sunny was trying to sound upbeat, as usual, but something behind her eyes showed the hurt she felt at seeing them so seldom. “Britt says she can read some of her books already, and she’s only three! Britt said you came to see her, by the way.”

  “Yes, Natasha and I went. We had a good visit. Got to meet Rick and the kids.”

  “Does she seem happy?”

  “Yes, very much so. She’s an impressive young woman.”

  “Yes. She really turned around after that awful summer. I didn’t know what would happen with her after I was arrested; she’d been so wild, and then she was really depressed after Todd died. I can’t tell you how relieved and proud I was when she said she wanted to go live with Nana because she was worried about what Nana would do without me to help her. Britt was always good-hearted, just immature. But all the things that happened made her grow up fast,” she added sadly.

  “A couple of big things have happened in your case,” I said.

  “Oh—what?” Sunny watched me with the polite interest of someone who had learned to be afraid to hope too much.

  “We saw Steve Eason.” She made a face. “He told us he lied when he said Todd confessed to him. He said it never happened.”

  Sunny’s eyes widened in surprise. “You mean he admitted it?” She was shaking her head. “I knew someone was lying. I didn’t know if it was him or Todd. Oh, God, I can’t believe he would do that to anyone. Why?” She seemed on the verge of tears.

  “He was charged with a crime and wanted to stay out of prison.”

  Sunny was overcome. “Oh my God,” she repeated. “And he did what he did, for that?” She was shaking. “I’m sorry,” she said. “I’m just in shock.”

  I reached a hand to take hers. “You have every right to be. But this will probably get you a new trial.”

  She was still shaking her head. “After all this time.”

  “Yeah, I know. And something else happened, too.”

  She roused herself. “What was that?”

  “Brittany told us about Greg’s murder.”

  Sunny grew still. After a second or two, she asked, in an unsuccessful attempt at casualness, “Oh? What did she say?”

  “She said Todd killed Greg.”

  “Okay.” Sunny nodded; that was something she’d apparently accepted as fact.

  “And that he and Braden planned it.” I could see her relax, and she nodded her head at the news.

  “She never said anything,” I went on, “because she was afraid of Braden. She said Braden hinted to her that he had killed Todd and that she’d be next if she talked.”

  Sunny was nodding, as if this had been her theory all along. “Okay,” she said again. I could tell she was still shaken by the revelation about Steve Eason.

  “She said she’d been afraid to come forward because of Braden’s threat. But now that he’s serving life in prison, I guess she thinks it’s safe for her to talk about it. She signed a declaration for us saying that’s what happened.” I didn’t mention that Brittany had told us she’d told Sunny the same story; and Sunny didn’t, either.

  “So she really wasn’t part of it?” Sunny said, tentatively. I felt she was probing us for confirmation.

  “That’s what she’s saying. She said they kept her out of it. And Todd told her afterward.”

  Sunny had resumed nodding.

  “We want to file Brittany’s declaration with the habeas petition, but we wanted you to know what was in it ahead of time, so you wouldn’t be surprised.”

  “Right. It won’t get Brittany in trouble, will it?”

  “We don’t see how, unless someone can show she’s lying.”

  Brows knitted, Sunny thought for a few seconds before speaking again. “I see. What about Braden? What does he say?”

  “He won’t talk to us, so I don’t know. I can’t imagine he’ll admit that he conspired with Todd to murder Greg.”

  “No,” Sunny said, shaking her head more or less automatically in agreement. “I can’t imagine that.”

  “I’ll show you the declaration, and you can see what it says.”

  I gave her a copy, and she read it over several minutes, studying each page. When she had finished, she gave it back to me.

  “Are you all right with our filing it?”

  She nodded, caught between hope and worry. “You’re really sure this won’t hurt Brittany?”

  I struggled for the right words to reassure her, but somehow it all sounded like legalese. “On the basis of what she says, I don’t think she can be charged with anything now. She says she wasn’t part of the plot to kill Greg, so she isn’t admitting she was involved in the murder, and personally, unless something changes, I don’t see that they’d have any basis for charging her. The DA might try to say she wa
s an accessory for not reporting it, but I don’t think they’d get far; the statute of limitations has expired for that kind of charge. The only way it could hurt her is if some evidence came out that she lied in her declaration. We don’t know of any such evidence; do you?”

  “No—no.” She shook her head.

  “If that’s the case, I think we can go ahead and file it, all right?”

  “I guess. You’re sure, right?”

  “I can’t absolutely guarantee anything. But based on what we know, I can’t see any way it can hurt Brittany to go ahead with it. And Brittany signed it because she wants us to use it to help you.”

  Sunny took a deep breath and held it for a couple of seconds, then nodded and said, “Okay, then.”

  “I think with that plus Steve Eason’s declaration, the court will have to give you a new trial.”

  “Oh.” She sounded exhausted, and it occurred to me that a new trial, with all the stress that entailed, and the risk of another death sentence, wasn’t necessarily the good news I’d assumed it would be.

  “If they grant you a new trial,” I added, “there’s a good chance the district attorney will agree to some plea bargain that will let you out of prison.”

  She seemed to brighten a little. “So I may get out.”

  “Hopefully. I think there’s a good chance of that happening.”

  “Thank you,” she said. I could hear a note of relief in her voice.

  “I have one other question,” I said, suddenly remembering. “Were you aware that Greg’s business was in financial trouble before he died?”

  Sunny nodded. “Kind of. Greg didn’t say anything— he wouldn’t, not to me. But Carol told me he asked her husband for a loan to cover some kind of balloon payment that was coming due. I remember she said I shouldn’t worry about Greg divorcing me; he probably couldn’t afford to.”

  “Would Brittany have known anything about this?”

  She shook her head. “I don’t see how. I didn’t say anything about it to anyone, for fear it might get back to Greg.”

  “Thanks,” I said. “That was a question that came up. Now I’ll tell you how the oral argument went.” I took a swig of my vending machine mocha and then summarized for her what Toni had argued, and what the justices’ reactions seemed to be. “Toni did a terrific job, and the justices seemed interested in the case, but I wouldn’t want to bet on where they’re going with it.”

  “Well, it’s nice to know they were interested.”

  “That’s true,” I said. “And on that note, we’re done with business, unless you have any more questions.”

  She managed a small smile. “I can’t think of a single one. My brain is overloaded.”

  We spent the rest of the visit exchanging pleasantries about how our lives had been going. I told her about Lizzie. “I just love cocker spaniels,” she said. “We always had a dog and cats when I was a kid, but Greg didn’t like pets. If I get out, I’m definitely getting a cat, at least.” She told me more about the holiday visits from Brittany and her family and Carol, and the antics of the children, and shared a few funny stories about life on the row. Somehow, we found ourselves comparing favorite Christmas cookie recipes. We were both surprised when the guard knocked on the door and said our time was up.

  “We’ll send you a copy of the habeas petition when it’s filed,” I said. “And the court’s opinion in your appeal should come out some time in March. They ought to mail you a copy, but I’ll send one anyway.”

  As I made my way out of the prison, the copy of Brittany’s declaration tucked inside my manila folder of papers, I thought about how easily Sunny had accepted both Brittany’s story and her excuse for not having come forward with it when she might have been able to save her mother from a murder conviction and death sentence. I knew already that Brittany’s account, or at least the major part of it, was not a surprise to her. Yet she had never even hinted at it to me or anyone else I’d talked to on her various defense teams. It left me feeling off-balance and apprehensive. We were about to file a habeas corpus petition advancing what we’d thought was a new theory and new evidence of Sunny’s innocence, when an important piece of it wasn’t new at all to the person it most affected. It made me wonder, anxiously, what else Sunny wasn’t telling us.

  21

  Carey and I agreed we should file Brittany’s declaration with the habeas petition, though Sunny’s reaction left us both befuddled.

  Carey had also enlisted a couple of friends, an accountant and a probate attorney, to review the files Craig Newhouse had received from Greg’s business and the probate of his estate. Their reports concurred that Greg’s business had been in deep trouble at the time of his death. “They say he really was on the verge of bankruptcy,” Carey told me. “He’d borrowed a lot, and bought a lot of properties at the wrong time, so a lot of them were underwater. Max, the accountant, didn’t think Greg could have raised enough money to keep going.” We added an argument to the habeas petition, that Craig had provided ineffective assistance of counsel for not presenting this evidence at Sunny’s trial.

  With Eason’s declaration and Brittany’s, I felt, for the first time, optimistic that the court might grant our request for a hearing to take evidence on whether Sunny should get a new trial. Sometimes, as I work on a case, I can grow to believe in it, to nurture a feeling, however delusional, that we might just win. In my more realistic moments I realized that some of that was happening now, and that even with the case we had, we’d probably still lose. The petition was just the opening salvo in a long battle. Eason might return to his original story with some excuse for why he lied to us; and we had no idea what Braden would say when he learned of Brittany’s accusation. We might get a judge who just thought that the best we had wasn’t enough in his or her mind to deserve retrying the case. None of that mattered for the moment, though. We were on the home stretch, with the filing deadline looming ahead of us, Carey and I writing and then editing each other’s drafts, and Natasha gathering the last records and witness declarations we’d need for the exhibits.

  The little spare time I had was consumed by walks with the dogs and trips to town with Harriet for grocery shopping and garden supplies. I kept going to exercise classes for the sake of my mental health; and I took a few precious hours to winter-prune my apples, pears, and plums and plant last year’s grafted trees.

  Emulating a Jewish tradition a friend had told me about, I’d burned a candle to Terry on each anniversary of his death, in February. As I lit it this year, I spent less time resenting that cold gray day when my life had collapsed like a house of cards, and more time surveying my complicated, but gradually mellowing feelings of anger, betrayal, loss, and love.

  Over time, as I’d worked through my shock and grief at Terry’s suicide, I was coming to remember why I had been happily married to him for almost thirty years. Terry was brilliant and intellectually curious, with a dry sense of humor. We never ran out of things to talk or laugh about. He was unsparing of dishonesty or willful ignorance, but generous and compassionate to underdogs of all persuasions. When we first worked together, I was awed and charmed by him; and when we started dating and then became serious, I felt a certain surprise that out of all the women in the world he had chosen me. As a couple, there was always a comfortable give and take between us; we shared laughs and private jokes, and we brainstormed with each other over our cases and traded ideas and inspirations. I owed a lot to him, professionally as well as personally. Even though Terry always seemed to keep a certain part of himself walled off from everyone in the world, including me, he probably confided more of his feelings to me than to anyone else. I felt easy with him in a way I never had with most people, even though I always felt overmatched by his effortless intelligence; one of the many things that hurt in losing him was how alone I felt without him. And I missed him a lot, though I’d spent years refusing to admit it.

  After lighting the candle that day, I sent Gavin a text, “Remembering your dad,” with
a photo of it shining on my stove top, and Gavin texted back, “Thanks, Mom; I miss him, too.”

  By the middle of February, the petition was nearly finished, and I had time for a conference for attorneys and other people who worked on defending death penalty cases. It was an annual event, three intense days of workshops and lectures, and it always felt like a reunion of old acquaintances bound by our common calling. Terry had been a celebrity in that tribe and had lectured or been on panels at every conference as long as I knew him. After his death, I had sworn off capital work and stayed away from the conferences. But for the last few years I’d started going again, and it had actually felt comforting to be back among people I’d known.

  Carey and Natasha were both there, and after running into one another at various workshops, we met one evening for drinks and dinner. I got to meet Carey’s husband, David, a quiet corporate lawyer, who seemed in awe of Carey’s tough idealism, and Natasha’s partner Mari, who was as petite and unflappable as Natasha was stout and brash. And I had lunch there with my old friend Dave Rothstein. Dave was an investigator who’d worked on cases with both Terry and me; it was Dave who’d first told me the news of Terry’s death. He and his new wife, Sue, had traveled to Argentina and Patagonia since we last talked, and they showed me photos on his phone of the two of them hiking through a magnificent, uncompromising landscape of rocks, mountains, and immense blue skies. “You should go,” he said.

  “I’m a hopeless stick-in-the mud,” I replied sadly.

  Dave obviously felt he needed to explain why I hadn’t been invited to their wedding. “We didn’t invite anyone,” he said. “We dithered for a long time about where to get married and when and who to ask; and then one day we said to hell with it, went to the courthouse and got a license and then went back a week later, got married by a judge.”

  “We eloped,” Sue said, proudly.

  Not long after returning home I had a phone call from my client Arturo Villegas. He was worried and upset; his father had been picked up and detained by the immigration authorities and was likely to be deported. His sister called me, tearfully, the next day, and I promised her I’d try to get names of some good immigration lawyers in Los Angeles. It took a few phone calls, but I was able to call her back a couple of days later and give her some recommendations. The arrest had upended Arturo’s family: his mother was hiding in a friend’s house, afraid to try to work; his sister, who was American-born and in college, was afraid she’d have to drop out of school to support the family; and his younger brother, angry and out of control, had taken up with a local gang.