A Time for Mercy

52

Monday morning, Jake finished tallying up his hours and expenses for the defense of Drew Gamble, and faxed his bill to the Honorable Omar Noose.

Since the judge’s first phone call on Sunday, March 25, the actual date of Stuart Kofer’s death, Jake detailed 320 hours, or about a third of his total time. He added 100 hours for Portia’s work, and he billed every possible minute related to the case — driving time, phone time, everything. He padded his time sheets generously and did so with no guilt. The approved rate for court-appointed work was only $50 an hour, a paltry sum for any lawyer’s time. The most expensive attorney in town was rumored to be Walter Sullivan, who boasted of charging $200 an hour. The corporate firms in Jackson and Memphis were billing as much. Two years earlier, in the Seth Hubbard will contest, Judge Atlee had approved $150 an hour for Jake, and he considered himself worth every penny.

Fifty bucks an hour barely covered his overhead.

His total was $21,000, or $20,000 more than the statute allowed for capital murder, and as he submitted it he doubted he would ever see the money. For that reason alone, the thought of a retrial was depressing.

What was a reasonable fee? It was difficult to say because people of means were rarely indicted for murder. Three years earlier, a wealthy farmer over in the Delta was charged with killing his wife with a twelve-gauge. He hired a well-known trial lawyer and was acquitted. The fee was rumored to have been $250,000.

Those were the cases Jake wanted.

Thirty minutes later, Judge Noose was on the phone. Jake swallowed hard and took the call. “Seems reasonable to me,” His Honor said. “You did a fine job, Jake.”

Relieved, Jake thanked him and asked, “What’s next, Judge?”

“I’m faxing your bill to Todd Tannehill right now with instructions to tell the board to write a check.”

Give ’em hell, Judge. He thanked him again and hung up. The Board would decline, and the plan was for Jake to then sue the county in circuit court, Omar Noose presiding.

An hour later, Todd Tannehill called. Todd was a good lawyer and had been the attorney for the Board of Supervisors for many years. Jake had always liked him and they had even gone duck hunting together. Todd said, “Congratulations on the win, Jake.”

“Thanks, but it’s only temporary.”

“Yeah, I know. Look, the fee is quite reasonable and I’d love to write you a check, but there’s this statute staring us in the face.”

“I’m looking at it too.”

“Well, I’ll submit the bill. The Board meets this afternoon and I’ll put this at the top of the agenda, but we both know the Board will decline. Noose said you’ll probably sue the county.”

“That’s always an option.”

“Good luck. I’ll get the ball rolling.”

Tuesday morning, Jake received a faxed letter from Tannehill.

Jake prepared a simple one-page lawsuit against the county and showed it to Lucien, who was in his room downstairs. He loved it and said, “Well, if these God-fearing creatures around here love the death penalty so much they can certainly pay for it.”

Because Dumas Lee combed the court records each Tuesday afternoon in search of news, Jake decided to wait a day or so before filing. The newspaper went to press at ten each Tuesday night, and the next day’s edition would undoubtedly scream about the mistrial in the Kofer murder. A story about Jake suing the county for his fees would just add fuel to the fire.

Lowell Dyer showed no such restraint. On Tuesday afternoon, he convened the grand jury in a special session and walked them through the murder once again. Ozzie testified and produced the same crime scene photos. In a unanimous vote, Drew Gamble was re-indicted for capital murder and served with papers in his cell. Dyer called Jake afterward and the conversation was tense.

Not that the timing really mattered. The fresh indictment was expected. And with a possible reelection looming, Dyer needed to do something dramatic to mitigate his defeat.

Early Wednesday morning, Jake read the Times over coffee with Carla. There was hardly enough room on the front page for all the bold headlines about the hung jury, and the photos, and the breathless reporting by Dumas. The new indictment was on page two. Still no comment from Mr. Brigance.

On Thursday morning, Jake filed his lawsuit against the county. He also sued the estate of Stuart Kofer for $50,000 for Josie’s medical bills, along with some extra for her pain and suffering. Two other lawsuits were being discussed around the office. One was his own against Cecil Kofer for medical expenses from the beating. The other was another suit against Stuart’s estate for Kiera’s care and treatment, as well as support for her child, yet unborn.

The suing was therapeutic.

Portia was cooking up a lawsuit of her own. Jake, like most small-town practitioners, never dealt with habeas corpus cases. Habeas work was almost exclusively done by lawyers representing prisoners claiming to be wrongfully detained, and virtually all of it was in federal court. But, as she learned, there was no prohibition against seeking habeas relief in state court. Late Thursday, she presented Jake with a lawsuit and a thick brief to support it. He looked at the heading — Drew Allen Gamble v. Ozzie Walls, Sheriff of Ford County — and said with a smile, “We’re suing Ozzie now?”

“That’s right. Habeas lawsuits are filed against the person holding the plaintiff. It’s usually the warden of some prison.”

“That should make his day.”

“He’s not on the hook for any damages. It’s more of a formality.”

“And in state court?”

“That’s right. We have to exhaust all state remedies before we can go to federal court.”

Jake read on, smiling. The lawsuit alleged that Drew was being unlawfully detained because the court (Judge Noose) considered the charge of capital murder to be a non-bailable offense. He had served over four months in the county jail while presumably innocent. The State had tried to convict him and failed. Because of his age, he was being held in solitary confinement and being denied educational opportunities.

“I love it,” Jake mumbled as he read. Portia beamed proudly at her handiwork. At the rate Jake was suing, there was little doubt he would file it promptly.

Ford County and the Twenty-second Circuit Court were violating the Eighth Amendment’s prohibition against cruel and unusual punishment by incarcerating a minor in an adult jail with no chance of making bail.

Jake put down the lawsuit and picked up her supporting brief. As he began to read it, she said, “It’s just a rough draft. Still got some work to do.”

“It’s brilliant. You don’t need law school.”

“Great. Just get me a license.”

He read slowly, flipping the pages, kept smiling. When he finished, she handed him more papers.

“What’s this?” he asked.

“The federal lawsuit. Once Noose says no, then we run to federal court where the judges know a lot more about habeas corpus.”

“Yeah, they hate it.”

“True, but they hate it because they are inundated with filings from jailhouse lawyers who have little else to do. Every inmate has a beef, whether it’s a legitimate claim of innocence or a rant about leaky toilets and bad food, so they flood the courts with habeas petitions. This is different and might just be taken seriously.”

“Same allegations?”

“Yes, pretty much the same lawsuit.”

Jake put it down and stood and stretched. She watched him and said, “And I think you should ask Noose to recuse himself. After all, he’s part of the problem because he won’t consider an appropriate bond. We should ask for another judge, one from outside the district.”

“Oh, that’ll make him happy. Here’s an idea. I have a meeting with Noose in the morning, with Dyer, post-trial stuff. He’s in town for first appearances and bail hearings. What if I show him and Dyer the habeas petition, with the brief, and threaten to file it here, then take it to federal court if necessary?”

“Has he ever seen a habeas petition?”

“I doubt it. I’ll suggest a recusal and demand an expedited hearing. He knows it’ll get to the press and he might want to avoid the hassle. Dyer can bitch and moan and posture for the public. The end game is to pressure Noose to set a reasonable bond so our client can bail out.”

“How can Drew afford any bond?”

“Great question. Let’s worry about that when the time comes.”