A Time for Mercy

27

The investigator for the district attorney was a former Tyler County deputy named Jerry Snook. On a Monday morning, he arrived for work at the D.A.’s office in the courthouse in Gretna and began planning his week. Fifteen minutes later he was summoned to Lowell Dyer’s office next door.

His boss was already in a foul mood. Dyer said, “Just got off the phone with Earl Kofer, who calls me at least three times a week. Wanted to know what he always wants to know. When’s the trial? I said August the sixth, same as the last time you called. The date is set and will not be moved. Wanted to know if the trial will be in Ford County. I said I don’t know because Brigance wants to move it. Why, he asked? Because he thinks there’s too much notoriety around Clanton and is looking for a friendlier venue. He wants a jury that’s not familiar with the case. This upset Earl and he started cussing, said the system is always rigged to protect the criminal. I explained that we will resist any effort to move the case but the decision will be left to Judge Noose. He ranted about Brigance and the Carl Lee Hailey trial and said the system wasn’t fair because he got off by claiming to be insane and that’s what Brigance will do again. I reminded him that Judge Noose refused to change venue in that trial and it’s been a long time since he agreed to move one. I explained that it’s rare in Mississippi for a judge to change venue, and so on. But he doesn’t listen and is really bitter, which I understand. He wants me to guarantee that the kid will be convicted and sent to death row, and he wanted to know when there will be an execution. He said he read somewhere that Mississippi has plenty of men on death row but can’t seem to get them to the gas chamber. Said the average time on death row is eighteen years. Said he can’t wait that long, that his family is devastated, and on and on. The same conversation we had last Friday.”

“Sorry, boss,” Snook said.

Dyer moved some papers around on his desk. “Oh well, just part of the job, I guess.”

“You wanted to talk about the mother and sister.”

“Yes, primarily the sister. We need to talk to them, now. We have a general idea of what Josie will say at trial, but we will not call her as a witness. The girl, though, has to testify. We have to assume that the defendant will not take the stand, so we have to call his sister. What do you know about them as of today?”

“They’re still living in the church. Josie is working at least two part-time jobs. Don’t know what the girl is doing. She’s a kid and school’s out.”

“We can’t talk to her unless her mother is present. I mean, we could, in theory, but it would cause problems. Brigance would get involved and raise hell. It looks like they’re doing whatever he says.”

“I don’t mind knocking on the door when Josie is gone.”

Dyer was shaking his head. “She’ll freak out and call her mother. It’s too risky. I’ll call Brigance and arrange a meeting.”

“Good luck with that.”

“The trial’s in two months. Are you ready?”

“I will be.”

“When are you headed to Ford County?”

“Tomorrow.”

“Stop by and say hello to Earl Kofer. The family needs to be reassured.”

“Would love to.”

Jake and Carla parked in front of the jail and walked in the front door. He had his briefcase. She was carrying a large cloth bag filled with textbooks and notepads. Inside, Jake spoke to two deputies he knew but did not introduce his wife. The mood was immediately tense and the greetings were strained. He led Carla through a door to the jail and stopped at the counter where Sergeant Buford was waiting on them.

Jake said, “Ozzie told us to be here at nine. Judge Noose’s orders.”

Buford glanced at his watch as if Jake couldn’t tell time. “I need to look at that,” he said, pointing to Jake’s briefcase. Jake opened it for a quick inspection. Satisfied but not pleased with the encounter, Buford looked at Carla’s bag and asked, “What’s in there?”

She opened it and said, “Textbooks and notepads.”

He poked around without removing anything and growled, “Follow me.”

Though Jake had reassured her, Carla’s stomach was in knots. She had never been inside the jail and half-expected to see real criminals leering at her through the bars. But there were no cells, only a dank, narrow hallway with worn carpet and doors on both sides. They stopped at one and Buford unlocked it with one of the many keys on his ring.

“Ozzie said two hours. I’ll be back at eleven.”

“I’d like to leave in an hour,” Jake said.

Buford shrugged as if he could not care less and opened the door. With a jerk of the head, he motioned for them to step inside and then locked the door behind them.

Drew was sitting at a small table in the same faded coveralls he wore every day. He did not stand or say hello. His hands were free and he’d been playing with a deck of cards.

Jake said, “Drew, this is my wife, Ms. Brigance, but you can call her Miss Carla.”

Drew smiled, because it was impossible not to smile at Carla. They sat in metal chairs across the narrow table.

Carla smiled and said, “Nice to meet you, Drew.”

Jake said, “Now, Drew, as I explained yesterday, Miss Carla will visit you twice a week and organize a plan for your schoolwork.”

“Okay.”

Carla said, “Jake tells me you were in the ninth grade last year, right?”

“Uh-huh.”

With a smile, Jake said, “Drew, I want you to get in the habit of saying ‘Yes ma’am’ and ‘No ma’am.’ ‘Yes sir’ and ‘no sir’ would be a good thing too. Can you practice this?”

“Yes sir.”

“Attaboy.”

Carla said, “I checked with your teachers and they told me your subjects were Mississippi history, Algebra One, English, and general science. Does that sound right?”

“I guess so.”

“Do you have a favorite subject?”

“Not really. I didn’t like any of them. I hate school.”

The teachers had verified this. They were unanimous in their assessment that he was indifferent to his studies, barely made passing grades, had few friends, kept to himself, and in general seemed miserable at school.

Carla’s first impression was similar to Jake’s. It was difficult to believe that the kid was sixteen years old. Thirteen would have been a good guess. He was frail, skinny, with a mop of blond hair that badly needed trimming. He was awkward, timid, and avoided eye contact. The thought that he had committed such a heinous murder was hard to fathom.

She said, “Okay, a lot of kids hate school, but you can’t drop out. Let’s just say that this is not school. Let’s call it private tutoring. What I want to do is take about thirty minutes with each subject and then leave you with some homework.”

“Homework sounds like school,” Drew said and they laughed. For Jake, it was a minor breakthrough, the first attempt at humor he had seen by his client.

“I guess it does. Where would you like to start?”

He shrugged and said, “I don’t care. You’re the teacher.”

“Okay. Let’s start with math.”

Drew frowned and Jake mumbled, “Not my favorite either.”

Carla reached into her bag, pulled out a notebook, and placed it on the table. She opened it and removed a single sheet of paper. “Here are ten basic math problems I want you to do for me.” She handed him a pencil. The problems were simple sums that any fifth grader could handle in a matter of minutes.

To ease the pressure, Jake removed a file from his briefcase and was soon lost in something lawyerly. Carla pulled out a history textbook and thumbed through it. Drew went to work and did not appear to struggle.

His academic progress had been uneven, to say the least. In his young life he had attended at least seven schools in different districts and states. He had dropped out at least twice and transferred numerous times. He had lived in three foster homes, one orphanage, with two relatives, in a borrowed camper, spent four months in a juvenile jail for stealing bikes, and there had been stretches of homelessness in which there had been no school at all. His most stable period had been from the ages of eleven to thirteen when his mother was in prison and he and Kiera were sent to a Baptist orphanage in Arkansas where they found structure and security. Once paroled, Josie reclaimed her children, and the family continued its chaotic journey to somewhere.

With Josie’s written consent, Portia had doggedly tracked down his school records, and Kiera’s as well, and put together their sad little biographies.

Jake, while pretending to read with a frown, was thinking of how far his client had come in the past eleven weeks. From his catatonic state in their first meetings, through his first words, his two weeks at Whitfield, his forced acceptance of solitary confinement, and the dreariness of life in a cell, to a point now where he could maintain a decent conversation and ask about his future. There was little doubt the antidepressants were working. It also helped that Mr. Zack, another jailer, liked him and spent time with him. He brought the kid chocolate brownies baked by his wife, and comic books, and he gave Drew a deck of cards and taught him gin rummy, poker, and blackjack. When things were slow, Mr. Zack went down to his little room for a hand or two. Human contact was crucial for everyone, and Mr. Zack loathed the notion of solitary confinement.

Jake was stopping by almost every day. They often played cards and talked about the weather, girls, friends, games that Drew once played. Anything but the killing and the trial.

Jake was still not ready to ask his client the most important question: “Did you know Kofer was raping Kiera?” And that was because Jake was not ready for the answer. If it was “Yes,” then revenge was in play, and revenge meant that Drew acted with forethought to protect her. Forethought equaled premeditation, and that meant the death penalty.

Perhaps he would never ask the question. He still had serious reservations about putting Drew on the stand to face a withering cross-examination by the district attorney.

As Jake watched him do the math, he could not imagine allowing the kid to be sacrificed in front of the jury. It was a decision any defense lawyer had the right to reserve until the last moment. Mississippi did not require the defense to divulge before the trial whether or not the accused would testify. Jake had hinted to Judge Noose and Lowell Dyer that Drew would not, but that was part of a ploy to force the prosecution to call Kiera as a witness. Other than her brother, she was the only possible eyewitness.

Drew said, “Here,” and handed Carla the sheet of paper. She smiled, handed him another, and said, “Okay, now try these.” It was another series of slightly more difficult sums.

As he worked, Carla graded the first set. He’d missed four out of ten. She had her work cut out for her.

Buford was back after an hour and Jake was ready to leave. He asked Drew to stand, shake hands firmly, and say goodbye. Carla was preparing a brief lesson on the Native Americans who once lived in their state.

Jake left the jail on foot and walked three blocks to the square for a meeting he wanted to avoid. He entered Security Bank, waited five minutes in the lobby, and soon saw Stan Atcavage waving him into his spacious office. They exchanged greetings like the good friends they were, but both were dreading what they were about to discuss.

“Let’s cut to the chase, Stan,” Jake finally said.

“Right, look Jake, as I’ve said before, this is not the same bank it was two years ago. Back then we were locally owned and Ed gave me plenty of wiggle room. I could do almost anything I wanted. But, as you know, Ed sold out and he’s gone now, and the new guys down in Jackson run a different show.”

“We’ve had this discussion.”

“And we’re having it again. We’ve been good friends for many years and I’d do anything within my power to help you. But I’m not calling all the shots anymore.”

“How much do they want?”

“They don’t like this loan, Jake. Lending money for litigation. They refer to it as ‘Tort Sport’ money and they said no at first. I convinced them that you knew what you’re doing and you were certain Smallwood would be a gold mine. Now that the case has blown up, they feel vindicated. They want half of the seventy thousand and they want it real soon.”

“And so that leads us to my request for a refinancing. If the bank will redo the mortgage on my home, extend more credit, I’ll have some cash to work with. I can pay down the litigation loan and stay in business.”

“Well, your business model worries them. They’ve gone through your financials and are not impressed.”

The idea of a bunch of big-shot bankers poking through his financials and frowning at his income made his blood boil. He hated banks, and once again vowed to somehow get them out of his life. At the moment, though, that seemed impossible.

Stan continued, “Last year you grossed ninety thousand and netted fifty before taxes.”

“I know this. Believe me I do. But the year before I grossed one-forty. You know what it’s like hustling clients in a small town. With the exception of the Sullivans, every lawyer around the square is up and down.”

“True, but the year before you were sitting fat because of fees from the Hubbard will contest.”

“I really don’t want to argue with you, Stan. I bought the house two years ago from Willie Trainer for two-fifty, a lot for Clanton, but then it’s a lot of house.”

“And I approved the loan, without hesitation. But the guys in Jackson are skeptical of your appraisal.”

“You and I both know the appraisal is on the high side. I’ll bet those sumbitches down in Jackson live in homes that cost a lot more than three hundred thousand.”

“That’s beside the point, Jake. They’re saying no to a new mortgage. I’m sorry, Jake. If it were up to me I would approve the loan to you with just your signature, no collateral.”

“Let’s not get carried away here, Stan. You are, after all, a banker.”

“I’m your friend, Jake, and it pains me to pass along the bad news. Zero. No new mortgage. I’m sorry, Jake.”

Jake sighed in defeat and almost felt sorry for his friend. They watched each other for a moment. Jake finally said, “Okay, I’ll shop it around. When do they want their money?”

“Two weeks.”

Jake shook his head as if in disbelief. “I guess I can dip into the rather shallow pool of my savings.”

“I’m sorry, Jake.”

“I know you are, Stan, and I know this is not what you want. Don’t beat yourself up over it. I’ll survive. Somehow.”

They shook hands, and Jake couldn’t wait to get out of the bank.

He used the back alleys to avoid people and minutes later eased into his office. More bad news was waiting.

Josie was sitting with Portia at the front desk. Both were drinking coffee and seemed engaged in a pleasant conversation. She had not bothered to make an appointment and Jake was not in the mood for more hand-holding, but he couldn’t say no. She followed him upstairs to his office and sat across from him at his cluttered desk. They talked about Drew for a moment and Jake reported that Carla was over at the jail going through their initial tutoring session. He exaggerated a little and said Drew seemed to be enjoying the attention. They talked about Kiera for a moment and Josie described her as lonely, bored, and frightened. Mrs. Golden from the church visited three times a week for lessons. She was piling on the homework and this kept Kiera somewhat engaged. Charles and Meg McGarry stopped by every other day to check on her. Josie had stopped going to church because Kiera couldn’t go with her anymore. She was finally showing a little and their secret had to be protected.

Josie pulled some letters out of her purse and handed them over. She said, “Two from the hospitals, here and in Tupelo, and one from the doctor over there. A total of sixteen thousand dollars and change, and, of course, they’re makin’ threats. What am I supposed to do, Jake?”

Jake quickly scanned the numbers and once again marveled at the cost of health care.

She said, “I’m working three part-time jobs now, all minimum wage, and we’re barely gettin’ by, but I can’t pay these bills. Plus my car needs a new transmission. If it croaks we’re just screwed, plain and simple.”

Jake said, “We can bankrupt these.” He avoided bankruptcy work with as much enthusiasm as he avoided divorces, but occasionally he waded into the pit with a client in dire need.

“But I need my doctor, Jake. I can’t bankrupt him. Plus, I filed two years ago down in Louisiana, for the second time. Isn’t there a limit on how many times you can file?”

“I’m afraid so.” With her financial problems, criminal convictions, and divorces, he figured she knew more about the law than most lawyers. While he admired her spunk and determination to survive and protect her children, he fought the urge to judge her harshly for her mistakes.

“So, I can’t file again. What do you suggest?”

He wanted to suggest that she go hire herself another lawyer. He had his hands full with her son, and that would probably drive himself into bankruptcy. He had never agreed to represent her. On the contrary, he had been strong-armed into defending Drew. But he was the family’s lawyer and there was no way out of it.

Harry Rex would run her off, shoo her out of the office, and show little sympathy. Lucien would take her in and then dump her problems on the desk of some lowly associate while he mounted a noisy defense of her son. Jake didn’t have that luxury. And the truth was that he rarely said no to an indigent client in need. At times it seemed that half of his work was pro bono, either agreed on up front or realized months later when his fees were written off.

Complicating matters was the ticking clock. Kiera would have a baby in about three months. His conversations with Carla were still fresh.

“Okay, I’ll call the hospitals and doctors and have a chat.”

She was wiping her eyes. “You ever had your paycheck garnished, Jake?”

What paycheck? “No, I haven’t.”

“It’s awful. You work hard at a crap job and when you finally get paid there’s a yellow notice in the envelope. Some credit card company or finance company or crooked used car dealer has snagged your paycheck and cut it in half. It’s just awful. That’s the way I live, Jake. Always climbin’ a mountain, tryin’ to keep food on the table, and there’s always somebody after me. Writin’ mean letters. Hirin’ collection lawyers. Threatenin’, somebody’s always threatenin’. I don’t mind workin’ hard but I’m just tryin’ to stay afloat, to survive. I can’t even think about gettin’ ahead.”

It was easy to think that her problems were all self-imposed, the damage self-inflicted, but Jake wondered if she had ever really had a chance. She had lived for thirty-two hard years. If given the chance she could be attractive, and this had no doubt led to serious problems with bad men. Perhaps she had been abused. Or perhaps she had always made wrong decisions.

“I’ll make the calls and buy some time,” he said, because he could think of nothing else and needed to do some work, hopefully something that paid.

She blurted, “I need eight hundred dollars for a transmission, Jake, a used one. Can you make me a loan?”

In the life of a small-town lawyer, this was not an unusual request. Jake had learned the hard way to avoid lending money to broke clients. The standard and trusted response was Sorry, but it’s unethical for me to loan money to you.

Why?

Why? Because the chances of getting repaid are rather slim. Why? Because the ethics people down at the state bar association realized decades ago that most of its members, the majority of whom are small-town lawyers, need to be protected from such requests.

At the moment, he had about $4,000 in his firm account, money that would be sorely needed in the forthcoming months to keep his doors open. But, what the hell? She needed the money far more than he did, and if her car quit he would inherit even more problems he didn’t want to deal with. He could work longer hours, hustle more clients, ask Noose to give him indigent appointments that he could ramp up and obtain plea bargains. He was proud to be a street lawyer, as opposed to those stiff suits in the big firms, and he had always been able to hustle for extra work when in a pinch.

He smiled and nodded and said, “I can swing that. I’ll ask you to sign a promissory note with a due date a year from now. It’s sort of a formality, for ethical reasons.”

She wept for a while as Jake pretended to take notes. When the crying finally stopped she said, “I’m sorry, Jake. So sorry.”

He waited until she was somewhat composed and said, “Josie, I have an idea. You’re tired of living in the church. Pastor McGarry and his flock have been amazing in their support for you and Kiera, but you can’t stay there. They’ll soon realize she’s pregnant and the gossip will begin. You can’t pay these bills, and it’s unrealistic to think the hospitals and doctors will back off. I want you to disappear, to move, to simply vanish from this area.”

“I can’t leave, not with Drew in jail and facin’ trial.”

“You can’t help Drew right now. Move somewhere not far away and lay low until the trial.”

“Where?”

“Oxford. It’s only an hour away. It’s a college town with lots of cheap apartments. We’ll find one that’s furnished. Summer is here and the students are gone. I have a couple of lawyer friends there and I’ll lean on them to help find a job or two. Forget these bills. The debt collectors can’t find you.”

“That’s the story of my life, Jake. Always runnin’.”

“There’s no reason to stay here, no family, no real friends.”

“What about Kiera’s doctor?”

“They have a nice hospital in Oxford, a regional, with plenty of good doctors. We’ll make sure she’s taken care of. That’s a priority.”

Her tears were gone, her eyes clear. “I’ll need another loan to get set up.”

“There’s another reason, Josie. She’ll have the baby sometime in September, after the trial and after everyone in Clanton knows about her pregnancy. If she has the baby in Oxford, few people here will know anything about it. Very few. Including the Kofers. They’ll be shocked when they learn about their grandchild and they’ll probably want nothing to do with it. However, as I’ve learned, it’s impossible to predict what people will do. There’s the chance that they might want some contact with the child. That cannot happen.”

“That will not happen.”

“We’ll do the adoption over there, in another judicial district. Kiera will be in another school and her new friends will know nothing about her pregnancy. Moving away is the best move for her, and for you too.”

“I don’t know what to do, Jake.”

“You’re a survivor, Josie. Get away from this place. Nothing good will happen to you and your daughter if you stay in this county. Trust me on this.”

She bit her lip and fought back more tears. Softly, she said, “Okay.”

Chancellor Reuben Atlee’s fine old home was two blocks from Jake’s in central Clanton. It was old enough to have its own name, Maple Run, and the judge had lived there for decades. Late in the afternoon, Jake parked behind a large Buick and knocked on the screen door. Atlee was a notorious tightwad who still refused to install air-conditioning.

A voice called him inside and Jake stepped into the humid and sticky foyer. Judge Atlee appeared with two tumblers filled with brown liquid, his standard whiskey-sour toddy to end another hard day. He handed one to Jake and said, “Let’s sit on the porch.” They went outside where the air was noticeably lighter and settled into rockers.

Judge Atlee had ruled the chancery court for a long time and quietly kept his nose in most of the county’s business. His jurisdiction was family law, all the divorces, adoptions, plus will contests, land disputes, zoning matters, a long list of legal matters that almost never included jury trials. He was wise, fair, heavy-handed, and had no patience with windy or lazy lawyers.

He said, “I see you got stuck with the Gamble case.”

“Afraid so.” Jake sipped the whiskey, not his favorite, and wondered how he would explain this to Carla. It wouldn’t be that difficult. If Judge Atlee handed you a drink and said sit on the front porch, no lawyer could say no.

“Noose called me for advice. I said there was no other lawyer in the county who could handle the case.”

“Thanks for nothing.”

“It’s part of being a lawyer, Jake. You don’t always get to choose your clients.”

And why not? Why couldn’t he and every other lawyer say no to a client? “Well, I’m stuck with it.”

“I suppose you’re going with insanity.”

“Probably, but he shot him in cold blood.”

“Such a shame. It’s all so tragic. What a waste of life, for the deputy and the kid.”

“I doubt there will be much sympathy for the kid.”

Atlee took a sip and gazed at the rooftops down the hill. The roof of the Hocutt House was visible in the distance. “What’s a fair punishment, Jake? I don’t like the idea of putting children on trial for capital murder, but the deputy is just as dead regardless of who pulled the trigger. The killer has to be punished, and severely.”

“That’s the great question, isn’t it? But it doesn’t really matter. The town wants a death verdict and the gas chamber. My job is to fight it.”

Atlee nodded and took another sip. “You said you needed a favor.”

“Yes sir. I don’t think it’s fair to try the kid in this county. It will be impossible to pick an impartial jury. Do you agree?”

“I don’t deal with juries, Jake. You know that.”

Jake also knew that Judge Atlee knew more about the case than all but a handful of people. “But you know the county, Judge, better than anyone. I plan to ask for a change of venue, and I need your help.”

“In what way?”

“Talk to Noose. You guys have a way of communicating that few people know about. You just said that he called you looking for advice on who to appoint. Lean on him to change venue.”

“To where?”

“Anywhere but here. He’ll keep jurisdiction because it’s his case and it’s high-profile. Doesn’t want to miss the fun. Plus, he might have an opponent next year and he wants to look good.”

“Buckley?”

“That’s the rumor. Buckley’s making noises down there.”

“Buckley’s a fool and he got slaughtered in his last election.”

“True, but no sitting judge wants an election.”

“I’ve never had one,” he said a bit too smugly. No lawyer with half a brain would challenge Reuben Atlee.

Jake said, “Noose refused to change venue in Carl Lee Hailey’s trial, and his reasoning was that it was so notorious that everybody in the state knew the details. He was probably right. This is different. A dead cop is a big story. Tragic and all, but it happens. The headlines go away. I’ll bet the folks up in Milburn County aren’t talking about it.”

“I was there last week. Not a word.”

“It’s different here. The Kofers have lots of friends. Ozzie and his boys are pissed. They’ll keep things stirred up.”

His Honor was nodding. He took another sip and said, “I’ll talk to Noose.”