A Time for Mercy

26

After five days of walking the beach, swimming, reading, sleeping late and napping, and getting slaughtered in chess by Mr. McCullough, Jake was ready for a break. Early on the morning of May 31 he hugged Carla, said goodbye to his in-laws, and happily drove away, eager to spend the next five hours in blissful solitude.

The Kids Advocacy Foundation had an office on M Street near Farragut Square in central Washington. The building was a 1970s-style block of gray brick with five floors and far too few windows. The directory in the lobby listed the names of dozens of associations, nonprofits, coalitions, federations, brotherhoods, and so on, everything from AMERICAN RAISIN GROWERS to the DISABLED RURAL MAIL CARRIERS.

Jake got off the elevator on the fourth floor and found the right door. He stepped inside to a cramped reception room where a small dapper gentleman of about seventy sat behind a neat desk and greeted him with a smile. “You must be Mr. Brigance, all the way from Mississippi.”

“I am, yes,” Jake said, stepping forward with an outstretched hand.

“I’m Roswell, the boss around here,” he said, standing. He wore a tiny red bowtie and a crisp white shirt. “A pleasure to meet you.” They shook hands.

Jake, in khakis and a button-down, no tie, no socks, said, “And nice to meet you.”

“You drove up from the beach, right?”

“Yes.” Jake glanced around and took in the decor. The walls were covered with framed portraits of young people in prison whites and jail coveralls, some looking out from behind bars, others in handcuffs.

“Welcome to our headquarters,” Roswell said with another cheerful smile. “That’s quite a case you have down there. I’ve read your summaries. Libby expects us to read everything.” He waved at a door as he spoke. “She’s waiting.”

Jake followed him into a hallway and they stopped at the first door. Roswell said, “Libby, Mr. Brigance is here. Mr. Brigance, meet the real boss, Libby Provine.”

Ms. Provine was waiting in front of her desk and quickly offered a hand. “A pleasure, Mr. Brigance. Mind if I call you Jake? We’re quite informal around here.” The accent was thick Scottish. The first time they had spoken on the phone, Jake struggled to handle the brogue.

“Jake’s fine. Nice to meet you.”

Roswell disappeared and she pointed to a small conference table in the corner of her office. “I thought you might want some lunch.”

On the table were two deli sandwiches on paper plates and bottles of water. “Lunch is served,” she said. They took their places at the table but neither made a move for the food.

“An easy drive?” she asked.

“Uneventful. I was happy to get away from the beach and the in-laws.”

Libby Provine was about fifty, with red curly hair that was graying, and she wore sleek designer frames that made her almost attractive. From his research he knew she had founded the nonprofit twenty years earlier, not long after she finished law school at Georgetown. KAF, as it was known, had a staff of paralegals and four lawyers, all in-house. Its mission was to assist in the defense of teenagers on trial for serious crimes, and, more specifically, to try and rescue them during the sentencing phase after they had been convicted.

After a few minutes of chitchat, with neither reaching for the sandwiches, though Jake was starving, Libby asked, “And you expect the State to proceed with capital murder?”

“Oh yes. We have a hearing in two weeks on the issue, but I do not expect to win. The State is going full speed ahead.”

“Even though Kofer was not actually on duty?”

“That’s the issue. As you know, the statute was changed two years ago and the new one is hard to ignore.”

“I know. Such a needless change of law. What’s it called, the Death Penalty Enhancement Act? As if the State needed more muscle in its quest to fill up death row. Total rubbish.”

She knew everything. Jake had spoken to her twice on the phone and sent a forty-page review that he and Portia had put together. He had talked to two other lawyers, one in Georgia, one in Texas, who had relied on KAF at trial and their opinions were glowing.

She said, “Only Mississippi and Texas allow the death penalty for the killing of an officer regardless of whether he was on duty. It makes no sense.”

“We’re still fighting the war down there. I’m starving.”

“Chicken salad or turkey-and-Swiss?”

“I’ll take the chicken salad.”

They unwrapped the sandwiches and took a bite, hers much smaller than his. She said, “We dug up some newspaper reports about the Hailey trial. Sounds like a real show.”

“You could call it that.”

“Looks like the insanity defense worked for a man who wasn’t insane.”

“It was all about race, something that will not be a factor with Gamble.”

“And your expert, Dr. Bass?”

“I wouldn’t dare use him again. He’s a drunk and a liar and I used him only because he was free. We got lucky. Have you found us the right expert?”

She nibbled on the crust of her sandwich and nodded. “You’ll need at least two experts. One for the insanity defense, which I believe is all you have, and one for sentencing, assuming he’s convicted. That’s where we can help. Virtually all of our clients are guilty, and some of their crimes are pretty horrific. We just try to keep them alive and out of prison for the rest of their lives.”

Jake had a mouthful so he just nodded. Libby apparently was a light eater.

She continued, “One day in this great land the Supreme Court will rule that sending juveniles to death row is cruel and unusual punishment, but we’re not there yet. The Court may also see the light and rule that sentencing kids to prison for life without parole is nothing but a death sentence. Again, we’re not there yet. So we soldier on.”

She finally took another bite.

Jake had asked for money and manpower. Money for expert testimony and litigation expenses. And he wanted the assistance of another seasoned lawyer in the “second chair” during the trial. The law required a second defense lawyer but Noose was having trouble finding one.

Jake had made these requests in writing and they had discussed them over the phone. KAF lawyers were overworked. Its funds were tight. He had driven five hours for the meeting to say hello and impress upon Libby Provine the urgency of Drew’s case. Perhaps a face-to-face meeting would lead to her cooperation.

Two other requests to similar organizations were pending but did not look promising.

She said, “We’ve used a child psychiatrist from Michigan in a number of cases, a Dr. Emile Jamblah. He’s the best so far. A Syrian, slightly darker skin, speaks with an accent. Might this be a problem down there?”

“Oh yes. Could be a real problem. Anybody else?”

“Our second choice would be a doctor out of New York.”

“Got anybody with the right accent?”

“Maybe. There’s one who’s on the faculty at Baylor.”

“Now you’re talking. You know how experts work in courtrooms, Libby. He or she needs to be from another state because the farther he or she has traveled to get there, the smarter he or she is perceived to be by the jury. On the other hand, people down there react strongly to strange accents, especially Northern ones.”

“I know. I tried a case in Alabama ten years ago. Can you imagine me talking to a jury in Tuscaloosa? It was not a good outcome. The kid was seventeen. Now he’s twenty-seven and still on death row.”

“I think I read that case.”

“What will your jury look like?”

“Frightening. A regular posse. It’s rural north Mississippi, and I’ll try to change venue to another county simply because of the notoriety. But wherever we go the demographics are much the same. Seventy-five percent white. Average household income of thirty thousand. I expect nine or ten whites, two or three blacks, seven women, five men, ages thirty to sixty, all Christians or claiming to be. Of the twelve, maybe four made it to college. Four didn’t finish high school. One person earning fifty thousand a year. Two or three unemployed. God-fearing souls who believe in law and order.”

“I’ve seen that jury. Is the trial still set for August the sixth?”

“It is and I don’t see a delay.”

“Why so soon?”

“Why not? And I have a good reason for wanting the trial on August sixth. I’ll explain in a moment.”

“Okay. How do you see it unfolding?”

“Fairly cut-and-dried, to a point. The State will go first, of course. The prosecutor is competent but inexperienced. He’ll begin with the investigators, crime scene photos, cause of death, autopsy, and so on. The facts are plain, unambiguous, the photos are horrendous, so he’ll have the jury in his pocket at the opening bell. The victim was an army veteran, a fine peace officer, a local boy, all that. The case is really not that complicated. Within minutes the jury will know the victim and his killer and see the murder weapon. During cross-examination, I’ll ask about the autopsy and drag out the truth that at the time of his death Mr. Kofer was blind drunk. That will begin the ugly process of putting him on trial, and it’ll get worse. Some of the jurors will resent this. Others will be shocked. At some point the State will probably call the sister, Kiera, to the stand. She is an important witness and she’ll be expected to say that she heard the gunshot and her brother admitted to killing Kofer. The D.A. will attempt to prove that his actions and movements before the shooting show that the kid knew what he was doing. It was revenge. He thought his mother was dead and he wanted revenge.”

“Sounds believable.”

“Indeed it does. But Kiera’s testimony could be even more dramatic. When she takes the stand, the jury and everybody else in the courtroom will know immediately that she is pregnant. Over seven months along. And guess who the father is?”

“Not Kofer.”

“Yes. I’ll ask her to identify the father and she’ll testify, rather emotionally I suspect, that he was raping her on a regular basis. Five or six times, beginning around Christmas. Whenever they were alone he raped her, and after each assault he threatened to kill her and her brother if she told anyone.”

Libby was speechless. She shoved her sandwich a few inches away and closed her eyes. After a moment, she asked, “Why would the State put her on the stand if she’s pregnant?”

“Because the State doesn’t know it.”

She took a deep breath, moved her chair back, stood, and walked to the other end of her office. From behind her desk, she asked, “Don’t you have an obligation to inform the prosecutor?”

“No. She’s not my witness. She’s not my client.”

“I’m sorry, Jake, but I’m having some trouble processing this. Are you trying to hide the fact that she’s pregnant?”

“Let’s just say I don’t want the other side to know it.”

“But won’t the D.A. and his investigators meet with their witnesses before trial?”

“Normally, yes. It’s up to them. They can meet with her whenever they want. They talked to her two weeks ago in my office.”

“Is the girl in hiding? Does she have friends?”

“Not many, and, yes, she’s basically in hiding. I explained to Kiera and Josie that it would be best if no one knows she’s pregnant, but there’s always the chance that she’ll be discovered. There’s also the chance that the D.A. will find out. But she’s going to testify at trial, either for the prosecution or the defense, and if the trial’s in August she’ll be seven months pregnant.”

“Is she, uh, showing?”

“Barely. Her mother has told her to wear nothing but oversized clothing. They’re still living in the church but I’m trying to find them a place, an apartment in another town. They stopped attending church services a couple of weeks ago and are trying to avoid everyone.”

“At your recommendation, I’m sure.”

Jake smiled and nodded. Libby paced back to the table and sat down. She drank from her bottle and said, “Wow.”

“I thought you’d like it. A defense lawyer’s dream. A total ambush of the prosecution’s witness.”

“I know discovery is limited down there, but this seems a bit extreme.”

“As I said in my memo, there is virtually no discovery in criminal cases. Same for most of the country.”

She knew this. She took a bite of her sandwich and chewed slowly, her mind racing. “What about a mistrial? Surely the State will scream about the surprise and want a new trial.”

“The State rarely gets a mistrial. We’ve gone back eighty years and researched hundreds of cases involving mistrials. Only three were granted to the prosecution, and all involved important witnesses who didn’t show up for court. And I’ll argue that a mistrial is unnecessary because the girl will testify at trial regardless of which side calls her as a witness.”

“Any chance Kofer is not the father?”

“Doubtful. She’s fourteen and swears he was the first and only.”

Libby shook her head and looked away. When she looked back, Jake noticed moisture in her eyes. “She’s just a baby,” she said softly.

“A sweet girl who’s had a tough life.”

“You know, Jake, these are terrible trials. I’ve been through dozens of them in many states. Kids who commit murder are not like adults who commit murder. Their brains have not fully formed. They are easily influenced. They are often abused and mistreated and cannot escape bad environments. Yet they’re able to pull the trigger, same as an adult, and the victims are just as dead. Their survivors are just as angry. This is your first, right?”

“Yes, and I didn’t ask for it.”

“I know. As bad as these trials are, this is my work, my calling, and I’m still challenged by it. I love the courtroom, Jake, and I really don’t want to miss the moment when Kiera takes the stand. Talk about drama of the highest order.”

“Does this mean—”

“I want to be there. I have a trial in Kentucky in early August but we’ll push for a continuance. Our other lawyers are booked. Maybe, just maybe, I can clear my schedule and step in.”

“That would help considerably.” Jake could not suppress a smile. “What about the money?”

“We’re broke, same as always. We’ll cover my time and expenses and we’ll provide the expert if and when we get to the sentencing. I’m afraid you’re on your own to hire the right insanity person.”

“Any ideas?”

“Oh sure,” she said. “I know plenty of them. White, black, brown, male, female, young or old. Take your pick. I’ll find the right one, just let me think about it.”

“Definitely white, probably female, don’t you think? Our best chance for a little mercy might come from women. Someone who’s been slapped around by a drunk. Someone carrying a dark secret about being sexually assaulted. Someone with a teenage daughter.”

“We keep a thick file on the best experts.”

“Don’t forget about the accent.”

“Of course not. In fact there’s a shrink in New Orleans we used about three years ago. I wasn’t in the courtroom but our lawyers were impressed. So was the jury.”

“How much might this expert cost me?”

“Twenty thousand, give or take.”

“I don’t have twenty thousand.”

“I’ll see what I can do.”

Jake offered a hand to shake and said, “Welcome to Ford County, though let’s hope the trial is somewhere else.”

She shook his hand and said, “Deal.”