Due Process

by Scott Pratt

  “Let’s go,” I said to Jack and Charlie. “This guy has obviously lost his mind.”

  FRIDAY, SEPTEMBER 27

  The storm had died down a bit while everyone waited for the results of the DNA testing to come back from the TBI lab in Knoxville. Armstrong had stopped giving interviews, the two games had been forfeited, and the three players who lived in the house where the party was thrown—including Kevin Davidson—had been dismissed from the football team. Kevin was devastated by the dismissal. He and his parents had come to me asking if there was anything they could do about it, but sadly, there wasn’t. He controlled the house where a party was thrown and a stripper had been paid. It was grounds for dismissal from the team. They probably could have tossed him out of school, too, but they didn’t.

  It was early on a Friday morning and I’d just arrived at the office. I was just sitting down at my desk when our secretary, Beverly Snyder’s, voice came over the intercom.

  “You have a call from a TBI agent named Anita White on line one,” Beverly said.

  “Thanks,” I said, and I punched the button on the phone.

  “Special Agent White,” I said. “Always nice to hear from you.”

  I’d known Anita White for several years. She was an agent in the Johnson City office when I was working as an assistant district attorney and she single-handedly brought down a man who had murdered a judge named Leonard Green. She’d since moved her way up the chain and was now the Assistant Special Agent In Charge of the TBI’s Knoxville office. Assistant Special Agent In Charge. The TBI loved their titles.

  “How are you, Joe?”

  “Hanging in there.”

  “Caroline?”

  “Doing the same. Tough as ever.”

  “I have some good news and some bad news for you,” she said.

  “Good news first,” I said.

  “The lab has been working around the clock on the DNA analysis. They finished yesterday. The woman who made the accusations had DNA from five different males on her and in her.”

  “How can that possibly be good news?” I said.

  “None of the males were ETSU football players. Not a single player sample matched up with anything from the rape kit.”

  A smile came over my face.

  “That’s good to hear, Anita. I really appreciate you letting me know. When is the public going to hear about this?”

  “We’re going to hold a press conference at ETSU on Monday,” she said.

  “So, this entire thing was a hoax. I wonder if Armstrong will charge her with making a false report.”

  “I don’t think that’s going to happen,” she said.

  “Why not?”

  “Because I called Mike Armstrong yesterday afternoon after the report hit my desk. He wasn’t pleased at all. He said he’s going to do two things: hire a private lab to go over the DNA again and arrest three of the players who were apparently picked out of a lineup by the victim. He’s going to announce at the press conference that he is proceeding with the prosecution.”

  “You’re kidding me,” I said. “He’s actually going to arrest them?”

  “He’s going to indict them first so he doesn’t have to subject his case and his victim to cross-examination during a preliminary hearing.”

  “I swear, Anita, I can’t, for the life of me, figure out what is going on in that man’s mind.”

  “He said he’s going to do it the old-fashioned way. He’s going to put his pretty young white girl on the stand and have her tell the jury she was raped by three black men. He said he has some other tricks up his sleeve, but he didn’t say what they were and I didn’t ask.”

  “He’s gone nuts,” I said. “We have a video showing the rape couldn’t have happened. We went to Mike’s office and he wouldn’t look at it. When I tried to talk to him, he covered his ears.”

  “Covered his ears? You mean like a kid?”

  “Yeah, can you believe that? Then he started singing some stupid song until we left. It was surreal.”

  “Well, I’m glad it’s your problem,” Anita said. “I just thought I’d give you a heads up.”

  “Thank you, Anita. Nice talking with you.”

  I hung up the phone and walked into Jack’s office. He was working on a motion to exclude some evidence in a DUI case he was handling. Charlie was in court in Elizabethton, about twenty miles away.

  “The DNA tests are in. All of the players are clean,” I said when I stepped inside Jack’s door.

  “That’s great!” he said. “Absolutely fantastic. Kevin’s out of the woods.”

  “No, I’m afraid he isn’t. Anita White just called me. She said they’re holding a press conference at ETSU on Monday to make the DNA results public, but Armstrong is also going to announce that he’s going to proceed with the prosecution and indict three players who were identified by the victim.”

  “What? Do you think he can get an indictment?”

  “Of course he can. The grand jury will only hear from one witness, and that witness will be Johnson City Police Investigator Bo Riddle. They’ll ask him a few questions, he’ll tell them a few lies, and they’ll rubber stamp a true bill. The old saying that a DA can indict a ham sandwich if he wants to is true.”

  “So what do we do?”

  “Right now? You’re going to call Stony and tell her I need to see her again, ASAP. I’m going to call Kevin and his parents and give them the bad news.”

  FRIDAY, SEPTEMBER 27

  “I need to get to the bottom of this,” I said to Stony. Jack had called her and she’d come to the office within two hours. I was meeting with her alone in the conference room. I didn’t want anyone to hear what I was going to ask of her. “It just doesn’t make any sense. Somebody, somewhere is calling the shots.”

  “You don’t just think it’s a rogue DA showing himself to be tough on crime so he can get re-elected?” she said.

  “This goes beyond rogue and passes into the realm of magical realism. I can’t think of a single reason Mike Armstrong would want to take up this fight.”

  “Maybe he and Riddle are both racists. Maybe they don’t care. Maybe they just want to inflame an already intense situation.”

  “And start a race war here in town? Because with the climate in the country today, I can see it happening. I’m afraid people will get killed, maybe lots of people. Why would they want to do that?”

  “I think you might be overreacting,” Stony said.

  “Maybe so, but he’s about to arrest three young black men and charge them with raping a woman with no evidence other than the false claims she’s making. Unless he manufactures something. A TBI agent told me this morning that he’s going to hire a private lab to go over the DNA evidence again because there wasn’t a single bit of DNA from an ETSU football player in or on this so-called victim.”

  “So, the report is done?” Stony said.

  “Yeah, they’re going to release the results Monday at a press conference. They’re also going to indict the three players she picked out of the bogus lineup you told me about. I’m going to need that tape if you can get it.”

  Stony nodded. “I can.”

  “That’d be nice,” I said. “I need to ask you a favor, Stony. I don’t know if you’ll want to do it, but if you can, I’d really appreciate it.”

  “What’s the favor?”

  “Can you get me some deep intelligence on Armstrong?” I said.

  Stony’s eyebrows raised. “Deep intelligence? I’m assuming you want me to black bag him.”

  The FBI’s infamous black bag teams were surveillance experts. They could get into and out of places without being noticed, insert listening devices, video cameras, track vehicles, wiretap landline phones and intercept cell phone conversations. They gathered mountains of information without the target ever knowing.

  “It’s something you’re capable of doing,” I said. “When we first met, you told me you were an expert in surveillance and had carried out several black bag operations dur
ing your career with the FBI.”

  “I did those jobs after obtaining warrants from federal magistrates or judges.”

  “I’m afraid we don’t have that luxury. If you don’t want to do it, I understand. But if you do, I think it could go a long way toward helping us understand what’s going on. It might save a few lives. It might save more than a few.”

  “You’re asking me to break the law, Joe.”

  “You know something, Stony? You did more than twenty years with the FBI, right? I’ve been at this for more than twenty years now. One thing I’ve learned is that when you’re dealing with the law and this fleeting concept we call justice, exceptions sometimes have to be made. Lines sometimes have to be crossed to ultimately get what we all want, and that’s for the right thing to happen. The truth to be discovered. The guilty punished and the innocent freed. I don’t believe for a second that you could sit here and look me in the eye and tell me you’ve never crossed a line that you thought you maybe shouldn’t cross.”

  Stony laced her fingers beneath her chin and began rocking back and forth in the chair. She was on a brief tour of her own soul, searching for something she could live with.

  “It’ll take me some time to get everything together, get his routines locked in, and get the equipment in place. Then we’ll have to wait and see what, if anything comes of it. I’ll have to monitor the devices personally. Do you want his office, too?”

  “You can do that?”

  “I can do anything. They called me Cat Burglar in the unit.”

  “By all means. Get his office.”

  “It’s going to be expensive.”

  “The Davidsons will be paying. If they can’t, I will.”

  “Okay,” she said. “You’ve talked me into becoming a criminal. Let’s hope it’s for the greater good.”

  Shortly after Stony left, a courier arrived with the report from the independent lab we’d hired to analyze the blood taken from Sheila Self the night she was at the hospital. As soon as I read it, I scanned it and emailed it to Dr. William Kershaw, a forensic toxicologist who was on the faculty at the Quillen College of Medicine and who had testified as an expert witness in dozens of cases in and around Washington County, most often on behalf of the state. I wrote him a brief synopsis of the case and asked if I could call him as soon as possible. I was surprised when I received an email from him only fifteen minutes later. He told me to go ahead and give him a call.

  “This is quite interesting,” he said when I got him on the phone.

  “I thought so, that’s why I sent it to you. I’m not sure what the numbers mean, though,” I said.

  “They mean this woman was still severely impaired when the blood was taken. What concerns me the most about it is the amount of GHB in her system.”

  “What concerns you about it?” I said.

  “When you combine alcohol, ecstasy and GHB, especially at the levels I’m reading in this report, I wouldn’t be the least bit hesitant about going into court and offering an expert opinion that this young woman would not have been able to remember what happened to her at the party. She would have been severely impaired, and most likely would have experienced what we call anterograde amnesia. She’s actually lucky she didn’t pass out or go into a coma or possibly even die.”

  “And you would testify to that under oath?”

  “I’ve done it before,” he said.

  “Consider yourself hired,” I said. “Can you write me a report that I can attach to a motion I intend to file in court?”

  “Certainly.”

  “How long will it take you?”

  “I can have it to you in a couple of days.”

  “Excellent. Thank you, Dr. Kershaw. I’ll be in touch.”

  I hung up the phone and pounded the desk.

  “Gotcha again,” I said out loud. “I’m going to make you look like the fool you are, Mike Armstrong.”

  WEDNESDAY, OCTOBER 9

  I pulled up to the Judicial Center in Jonesborough in a foul mood. The bones in Caroline’s legs, especially her knees and hips, were causing her a great deal of pain in spite of all the medication she was taking. She’d developed another urinary tract infection and was semi-delirious. I left her in the hands of a new home health care nurse and wasn’t the least bit happy about it.

  But I had to be in court at 9:00 a.m. Kevin Davidson, a player named Demonte Wright, and a third player named Evan Belle were being arraigned. They’d been indicted two days earlier by the Washington County Grand Jury, arrested the day before, charged with aggravated kidnapping and aggravated rape, and had spent the night in jail. The magistrate who signed the arrest warrants hadn’t set a bail amount, so besides the arraignment, we’d be arguing over bail.

  The courtroom was packed with members of the media, and there were at least eight television cameras scattered around. The judge was Gwen Neese, a sixty-year-old, attractive woman who had been a judge for six years and hadn’t yet managed to develop what I called “black robe fever.” She treated people, including defendants and their attorneys, with dignity and respect, and she knew the law cold, which was refreshing after having dealt with men like Leonard Green and Ivan Glass for so many years. Their IQs were lower than most of the people I defended.

  Judge Neese walked into court at 9:00 a.m. sharp as the bailiff called the proceeding to order.

  “I’d like to take up the case with the three defendants who have been charged with kidnapping and rape first,” she said. “Bring them in.”

  Four uniformed bailiffs flanked the three young men as they walked into the room. They were wearing the orange jumpsuits provided to inmates at the Washington County Detention Center, and they were handcuffed, shackled and waist-chained. It was the kind of treatment reserved for the worst of the worst, and I thought it was over the top.

  “This is ridiculous, your Honor,” I said as I walked to the podium where the arraignment would take place. “Would you please order the bailiffs to remove the shackles and waist chains?”

  “I take it you’re representing one of these defendants,” Judge Neese said.

  “Kevin Davidson,” I said. I reached out and put my hand on Kevin’s shoulder. “I’m representing him along with my associates, Jack Dillard and Charleston Story.”

  Jack and Charlie were sitting in the jury box with several other attorneys. The judge looked over at them and nodded. She turned back to me.

  “Courtroom security decisions are made by the sheriff’s department, Mr. Dillard. You know that. These men are all charged with two Class A felonies. I can’t speak for the sheriff or whoever made the decision about the waist chains and shackles, but I would imagine it’s just standard operating procedure for these charges.”

  “The charges are completely baseless,” I said. “There isn’t enough evidence to have probable cause for an arrest.”

  “The grand jury obviously disagreed with your assessment,” the judge said.

  “You and I both know how grand juries work. They hear one side and they rubber stamp what the prosecution puts in front of them.”

  Mike Armstrong was sitting at the prosecution table. He stood quickly.

  “I take offense to that remark,” Armstrong said. “We’ve investigated this case thoroughly, we have a positive identification from the victim, and we intend to hold these men accountable for the serious crimes they committed.”

  “I tried to show Mr. Armstrong a video we obtained that was taken at the party where my client and his teammates allegedly kidnapped and raped this so-called victim. It clearly shows that none of what she is saying is true. Mr. Armstrong refused to look at the video. When I tried to talk to him, he covered his ears like a child and wouldn’t listen to anything I had to say. The line-up that produced the identification of which Mr. Armstrong speaks was illegal. Totally bogus. And we can prove it. On top of that, we have an expert who will testify that the alleged victim had such a high concentration of drugs in her system—one in particular called gamma hydroxybutyra
te—that she wouldn’t have been able to remember what happened the night this alleged assault took place.”

  “And I’ll cross-examine this so-called expert and discredit him in front of the jury,” Armstrong said.

  “That’ll be interesting, since he’s testified for the state dozens of times,” I said.

  “Gentlemen, please. We’re not here to try the case,” the judge said. “We’re here for arraignment.”

  “I realize that,” I said. “I just want the court to be aware that this case has been brought on the flimsiest evidence I’ve seen in my entire career. I have no idea why, but I’ll eventually get to the bottom of it. And when I do, there will be severe ramifications.”

  “Excuse me,” Armstrong said. “Did Mr. Dillard just make some kind of veiled threat?”

  I turned and looked at him.

  “You’re going to pay for what you’re doing to these young men, you and that goon that’s helping you. That’s not a veiled threat. It’s a promise.”

  “That’s enough,” Judge Neese said.

  “Every one of these young men voluntarily gave DNA samples to the police, your Honor,” I said. “When the results of the testing came back from the TBI lab, there wasn’t a trace of DNA from any of them on or in the victim, who just happens to be a stripper and a prostitute. And Mr. Armstrong’s investigator, Bo Riddle, assaulted my client during his first interview. He kneed him in the testicles.”

  “That’s an outrageous accusation!” Armstrong bellowed.

  Judge Neese banged her gavel hard. It was the first time I’d ever seen her use the gavel.

  “I said that’s enough,” she said sternly. “Let’s keep it civil. Mr. Dillard, do you waive the reading of the formal indictment?”

  “We do.”

  “How does your client plead?”

  “Not guilty. Totally innocent. Railroaded.”

  “Please don’t force me to hold you in contempt,” Judge Neese said.

  “I’m sorry, your Honor. I’m angry about this one.”