A Time for Mercy

53

The courtroom was busy at nine on Friday morning as lawyers milled about and gossiped and told stale jokes. Families of freshly indicted young men watched from the pews and worried. Clerks scurried about with paperwork and flirted with the lawyers. Jake was the man of the hour and several of his rivals were forced to offer congratulations on the win over in Chester. This stopped, however, when Lowell Dyer arrived on behalf of the State.

A bailiff fetched Jake and Todd Tannehill and said His Honor wanted them in chambers. Noose was waiting, standing and stretching and in obvious discomfort, when they walked in. He greeted them warmly with handshakes all around and pointed to the chairs at the table. When seated, he said, “We have a busy docket this morning, gentlemen, so let’s get right to the point. Jake, you’ve filed your lawsuit for your fees. Todd, how soon can you file your answer?”

“Real soon, Judge.”

“I’m afraid that’s not good enough. The complaint is a simple one-pager, a real rarity in this business, with Jake’s bill attached. I’m sure your answer will be even briefer. Denials all around. Right?”

“Afraid so, Judge.”

“You’ve consulted with your clients and I assume all five supervisors are in agreement.”

“Yes sir.”

“Good. I want you to hustle back to your office, prepare a one-page answer, bring it back over here, and file it while I work through my docket.”

“File it today?”

“No sir. File it before lunch. The trial will be set for next Thursday in this courtroom, a bench trial with me presiding. Jake, do you anticipate calling any witnesses?”

“No sir. I really don’t need any.”

“Nor do you, Todd. It will be a very short trial. I want all five of the supervisors in the courtroom. Jake, subpoena them if you have to.”

“That won’t be necessary, Your Honor,” Todd said. “I’ll get ’em here.”

“Okay, but if one fails to show, then I’ll issue a warrant.”

Todd was taken aback, as was Jake. The idea of arresting an elected county supervisor and hauling him into the courtroom was startling.

Noose wasn’t finished. “And, Todd, I suggest that you quietly remind the five that there are two lawsuits pending in this court in which Ford County is the primary defendant. One involves a contaminated landfill owned by the county and alleged to have polluted some drinking water. The plaintiffs are asking for a lot of money. The second concerns an accident involving a county dump truck. Both claims appear to have merit. I want Jake to get paid. The county has the money because I’ve seen the books. They are, as you know, public record.”

Even more startling was the less than subtle threat by a presiding judge to show favor in unrelated cases. Tannehill was stunned and said, “Judge, pardon me, but that sounds like a threat.”

“It’s not a threat. It’s a promise. I dragged Jake into the Gamble case with the assurance that he would get paid. His fees are reasonable, don’t you agree?”

“I have no problem with his fees. It’s just that—”

“I know, I know. But county supervisors have wide latitude in budgetary matters and they can pay this money out of unrestricted funds. Let’s get it done.”

“Okay, okay.”

“You’re dismissed, Todd. Please file your answer before noon.”

Tannehill shot Jake a bewildered look, then scurried out of the room. When he was gone, Noose stood and stretched again. “How many cases do you have this morning?”

“Two first appearances, plus Gamble. I don’t suppose you want him in court today.”

“No. We’ll do it later. Let’s get through the morning’s business and meet back here for lunch, with Lowell.”

“Sure, Judge.”

“And Jake, order us some catfish po’boys from Claude’s, okay?”

“You got it, Judge.”

The lawyers took off their jackets and loosened their ties, at His Honor’s suggestion. His robe hung by the door. The po’boys were still warm, and delicious. After a few bites and a round of small talk, Noose asked, “Do you have your calendars?”

Both nodded and reached into their briefcases.

Noose looked at some notes and asked, “How does December the tenth sound for the retrial?”

Jake had nothing scheduled past October. Dyer’s trial calendar revolved around Noose’s. Both said they were clear for December 10.

“Any idea where it might be?” Jake asked, hoping fervently that it would not happen again in Van Buren County.

“Well, I’ve been thinking about that,” Noose said as he took a bite and wiped his mouth with a paper napkin. “We should keep this show on the road. Things didn’t work out too well in Chester. We’re not doing it here. Tyler County is Lowell’s backyard, so it’s out. That leaves Polk and Milburn counties. I’ll pick one in due course and we’ll tee it up there. Any objections?”

Lowell said, “Well, of course, Judge, we’ll oppose any motion for a change of venue.”

Neither side was eager for a rematch. Dyer feared another loss and Jake was worried about a possible bankruptcy.

“Of course you will,” Noose said. “But don’t spend a lot of time opposing it.”

And with that, the court had ruled.

His Honor kept eating and talking. “Not that it matters. We could pick twelve people off the streets in any of the five counties and get the same result. Gentlemen, I’ve thought of little else since the mistrial, and I do not believe any jury will convict this boy, nor will any jury acquit him. I’d like to hear your thoughts.”

Jake nodded and demurred and Dyer said, “Well, we certainly have to try again, don’t we? I can see the same challenges, but I’m confident of getting a conviction.”

The standard response from every prosecutor.

“Jake?”

“I agree with you, Judge. The votes may vary a little, probably not an even split, but a unanimous verdict is not imaginable. The only fact that will change is that Kiera will give birth next month so there’ll be a child. We, of course, will have the blood test to prove it’s Kofer’s.”

“And there’s no chance otherwise?” Dyer asked politely.

“I believe the girl,” Jake said.

“So you’ll lose the ambush angle?”

“Maybe, or maybe I’ll have another one.”

“Gentlemen. We’ll try him again, on December the tenth, and there will be no more ambushes. If the jury cannot agree, then we’ll go from there. No chance of a plea agreement?”

Dyer shook his head and said, “Not now, Judge. I can’t agree to a plea to anything less than capital murder, not for a dead officer.”

“Jake?”

“Same. I can’t ask a sixteen-year-old boy to agree to a deal that gives him the next thirty or so years in prison.”

“I assumed as much. Gentlemen, I see no way out of this mess. The facts are what they are and we can’t change them. We have no choice but to keep trying.”

Jake pushed his sandwich away and reached for some papers. “I guess that brings us to the issue of bail. So far, my client has served five months for nothing. He is, as we all know, presumed to be innocent. The State has tried once to prove him guilty and the State failed. It is not fair to keep him locked up. He is as innocent as we are, not to mention he’s a minor, and he deserves the chance to get out.”

Dyer shook his head as he took a bite.

Noose, surprisingly, said, “This has been on my mind too. It’s troubling.”

“It’s worse than that, Judge. The kid was two years behind in school back in March. As we’ve learned, his education has been rather spotty. He’s now incarcerated far away from any classroom.”

“I thought your wife was working with him.”

“Several hours a week, Judge, and it’s a temporary arrangement at best. It’s not enough. The kid has shown some interest in learning, but he needs to be in a real school with teachers and other kids, and with lots of tutoring after hours.” Jake handed both some paperwork. “This is a petition for a writ of habeas corpus I plan to file on Monday in circuit court. And I’ll ask you, Judge, with all due respect, to recuse yourself. If we fail in circuit court, then I’ll go federal and get some relief. The kid is being unlawfully detained and I can convince a federal judge of that. The petition claims a violation of the Eighth Amendment prohibition against cruel and unusual punishment on the grounds that he is a minor being held in an adult facility, and in solitary confinement, and with no access to educational resources. We’ve found two cases on point, from other jurisdictions, and they’re covered in our brief. If we get relief, and get him out, then both of you can blame someone else, and not worry about any political fallout.”

This irritated Noose and he flashed an angry look at Jake. “I don’t think about the politics, Jake.”

“Well, you’re the first politician who doesn’t think about the politics.”

“I’m offended. Do you consider me a politician, Jake?”

“Not really, but your name will be on the ballot next year. Yours too, Lowell.”

“I don’t allow politics to enter my considerations, Jake,” Lowell said, a bit too piously.

“Then why not let him out?” Jake shot back.

They took a deep breath as Noose and Dyer skimmed the petition. They were obviously caught off guard and not sure what they were reading. After a moment, Jake said to Noose, “I’m sorry if I offended you, Judge. I did not intend to.”

“Apology accepted. We need to be honest here and agree that allowing a capital murder defendant out of jail would upset a lot of people. Do you have a plan?”

“Yes. An appearance bond is used to ensure that a person accused of a crime will show up and face the charges. I promise you both that if and when you want Drew, his mother, or his sister to appear in any court, they will be there. You have my word. My plan is to get him out and take him to Oxford where Josie and Kiera are living, and get him in school in a couple of weeks. Kiera will start school after she has the baby. No one knows them over there, though I guess their address is now in the record. Both Drew and Kiera need tutoring and some counseling, and I’ll try to arrange things.”

“Is the mother working?” Noose asked.

“She has two part-time jobs and is looking for a third. I found them a small apartment and I’m helping with the rent. This will continue as long as I don’t go broke.”

“There has to be a secured bond, Jake. How can they afford it?”

Jake handed him a document and said, “This is the deed to my home. I’ll put it up as security. And I’m not afraid to do so because I know that Drew will appear in court.”

“Come on, Jake,” Dyer said, shaking his head.

“You can’t do that, Jake,” Noose said.

“There’s the deed, Judge. Mind you, the house is heavily mortgaged, like everything else I own, but I’m not worried.”

“What if they skip out again?” Dyer asked. “They have a history of living on the run.”

“Then I’ll track down the little asshole and haul him back to jail.” The humor hit where it was supposed to and they enjoyed a good laugh.

“What’s the value of the house?” Noose asked.

“I have one of those friendly, drive-by appraisals at three hundred thousand. And a mortgage to match it dollar-for-dollar.”

“We’re not using your house, Jake. What if I set the bond at fifty thousand dollars?”

“No sir. That means we, or I, will have to scrounge up five thousand cash for the bondsman. It’s a racket and we all know it. Right now I don’t have five thousand bucks to spare. Take the deed, Judge. The kid’ll be in court when he’s called.”

Noose tossed his copy of the deed on the table. “Lowell?”

“The State will oppose any bail for this defendant. It is capital murder.”

“Thanks for nothing,” Jake said.

Noose slapped a hand to his chin and begin scratching. “All right. The deed will suffice.”

Jake reached for more papers and handed them over. “I’ve already prepared an order for you to sign. I’ll talk to the clerk in just a moment. Then I’ll talk to Ozzie, if he’ll take my call, and arrange the transfer. I’ll pick up the kid first thing in the morning and take him to Oxford. Look, we were friends when this started and we’ll be friends when it’s over. I need your help in keeping this as quiet as possible. Josie owes money and has already been served with lawsuits. Kiera is having a child out of wedlock but no one in Oxford knows anything about it. I’d like her to start school as just another fourteen-year-old girl, not a young mother. And there might be some people who would like nothing more than to find Drew walking down the street. Secrecy is important here.”

“Understood,” Dyer said.

Noose waved him off as if he didn’t need the warnings.

Lucien wanted a Friday afternoon drink on his porch and was pushy about the invitation. Jake didn’t want to hang around his office, and after he finally got Ozzie on the phone and worked out the details of the release, he drove over and parked behind the old Porsche. Lucien, of course, was sitting in his rocker, drink in hand, and Jake wondered how many he’d already knocked back.

Jake took a seat in another rocker and they chatted about the heat and humidity. Normally, Sallie would eventually materialize and ask about a beverage, then bring one as if she was doing him a favor.

Lucien said, “I invited you for a drink. The bar hasn’t moved and there’s beer in the fridge.”

Jake left and returned with a bottle of beer. They drank for a while and listened to the crickets. Finally, Jake said, “You wanted to talk about something.”

“Yes. Reuben stopped by yesterday.”

“Judge Atlee?”

“How many Reubens do you know around here?”

“Why are you always the smart-ass?”

“Practice.”

“I actually know another Reuben. Winslow. He goes to our church so you wouldn’t know him.”

“Now who’s the smart-ass?”

“It’s a defensive measure.”

“Reuben and I go way back. We’ve had our differences, but we still talk.”

It would be impossible to find any lawyer, judge, or elected official in Clanton who had not had their differences with Lucien Wilbanks.

“And what’s on his mind?”

“He’s worried about you. You know Reuben. He fancies himself as the shepherd of all legal matters in town and quietly keeps up with things. Little happens in the courthouse that he doesn’t know about. He knew almost as much about the Gamble trial as I did and I was in the courtroom.”

“Sounds like Reuben.”

“He was not surprised at the hung jury, nor was I. They can try that boy ten times and won’t get a conviction, or an acquittal. Your defense was masterful, Jake. I watched you with great pride.”

“Thank you.” Jake was touched because compliments from Lucien were rare. Criticism was the norm.

“A strange case indeed. Impossible to convict, impossible to acquit. I’m sure they’ll try again.”

“December tenth, either in Smithfield or Temple.”

Lucien absorbed this and took a drink. “Meanwhile, he sits in jail, an innocent boy.”

“No. He gets out in the morning.”

“How’d you do that?”

“I didn’t. Portia did. She prepared a habeas corpus petition, wrote a compelling brief, and I showed it to Noose this morning. I threatened him with it, said I would file it here then take it federal.”

Lucien laughed for a long time, rattling his ice. When the humor passed, he said, “Anyway, back to Reuben. He’s bothered by some things. Smallwood. He doesn’t like the railroad and thinks it has operated dangerously around here for decades. He told me that thirty years ago a friend of his came within an inch of hitting a train at that same crossing. Guy got lucky and avoided an accident. Reuben has had Central in court a few times over the years, condemnation suits and such. He finds its people arrogant and stupid and just doesn’t care for the company.”

“I have the documents,” Jake said casually, though he had perked up considerably.

“And he’s bothered by the mystery witness, what’s his name?”

“Neal Nickel.”

“Reuben being Reuben, he’s read the court file from front to back, and he’s bothered by the fact that this guy was at the scene for three hours, cops everywhere, and he said nothing. Then he went home and hoped it would go away. Then he showed up the Friday before the trial wanting to testify. That strikes Reuben as being unfair.”

“Well, it was definitely a shock. But why is Reuben reading the court file? Surely he has enough work on his desk.”

“Says he reads files for pleasure. And he’s bothered by the child, the family’s only survivor, and is worried about her future. You set up the guardianship in Reuben’s court and he approved it, so he has a right to be concerned. He wants the child taken care of.”

“The child is being raised by Sarah Smallwood’s sister. It’s a decent home. Not great, but okay.”

Lucien drained his glass and stood slowly. Jake watched him walk away as if cold sober, and knew that the story was far from over. If it was headed in the right direction, Jake’s entire future might improve dramatically. Suddenly anxious, he gulped his beer and thought about fetching another.

Lucien returned with a fresh whiskey and began rocking again. “Anyway, Reuben doesn’t like the way the case is going.”

“Nor do I. I’m in debt because of it.”

“A good strategy might be to non-suit the case in circuit court, then refile in chancery.”

“The old non-suit trick,” Jake said. “We studied it in law school.”

A non-suit allowed a plaintiff to file a lawsuit, then dismiss it for any reason under the sun before a verdict, then refile it when convenient. Sue, and if discovery goes badly, non-suit and walk away. Sue, get to trial, get a rough-looking jury, then non-suit and fight another day. There was a famous case from the Gulf Coast in which a plaintiff’s lawyer panicked when jury deliberations dragged on and he thought he was about to lose. He announced a non-suit and everybody went home. The next day it was revealed that the jury had just decided to give his client a generous verdict. He refiled, tried the case a year later, and lost. His client sued him for malpractice, and won. Defense lawyers hated the rule. Plaintiffs’ lawyers knew it was unfair but fought to keep it. Most states had moved on to more modern procedures.

“What an archaic rule,” Jake said.

“True, but it’s still on the books. Use it to your advantage.”

Jake finished his beer. It was obvious that Lucien was in no hurry and was enjoying the moment. Jake asked, “And what might happen in chancery?”

“Good things. Reuben assumes jurisdiction of the case because of the guardianship and his responsibility to protect the child. He sets a trial date and off you go.”

“A bench trial, no jury.”

“Correct. The defense might request a jury, but Reuben will say no.”

Jake took a deep breath and said, “I need a shot of that brown stuff.”

“The bar hasn’t moved. Careful, though, or your wife might hit you.”

“My wife might be drinking too when she hears this.”

He left and returned with a Jack on ice. “If you will recall, Lucien, Harry Rex and I debated this very issue before we filed suit. I think you might have been in the room during one or two of our conversations. We decided to avoid chancery court because the Honorable Reuben Atlee is so damn tightfisted with money. To him, a hundred-thousand-dollar verdict is obscene, a violation of the rules of an orderly society. He’s a miser, a skinflint, a cheapskate. Lawyers have to beg to get a few bucks for their guardians.”

“He was generous to you during the Hubbard will contest.”

“He was, and we talked about that too. But there was so much money on the table it was easier to be generous. We filed Smallwood in circuit court because we liked our chances better with a jury.”

“True, Jake, and you wanted a big courtroom victory, a record-setting verdict that would put you on the map as a trial lawyer.”

“I did. Still do.”

“Well, you’re not getting that verdict with Smallwood, not in circuit court.”

“So, Judge Atlee wants to preside over the trial?”

“There won’t be a trial, Jake. He’ll force the railroad to settle, something he’s very good at. He did it with Hubbard.”

“He did, but after I won the trial.”

“And the settlement was fair, everybody got something, and the appeals were avoided. Right?”

“Right.”

“Same here. Refile in chancery and Reuben will take over. He’ll protect the child, and the lawyers too.”

Jake took a long sip, then closed his eyes and rocked gently. He could feel the pressure lift from his shoulders, the stress ooze from his pores. The alcohol was settling in and his breathing relaxed. For the first time in months there was a light in the distance.

The fact that Judge Atlee was sitting in the same rocker twenty-four hours earlier and telling Lucien what he should tell young Jake was difficult to absorb.

But then, it sounded just like Reuben.