Alfred Hitchcock’s Mystery Magazine. Vol. 43, No. 7 & 8, July/August 1998

Death Penalty by N. Nelson

“Darcy Hayes did kill someone. Guilt is not the issue. It rarely is in a criminal case. Our concern is what he will be convicted of, and even more important, what his punishment will be,” said Wilson McGraw, the defense attorney.

To Thomas Clark, fresh from passing the bar exam and only a few months out of law school, this sounded awfully cynical and mercenary. But he was in no position to disagree, it being only his second month with McGraw. McGraw had agreed to give Clark a job on a week-to-week basis.

The arrangement was that Clark worked for a pittance the first month and after that his pay gradually increased until, at the end of a year, he’d be making just under what some people started at. McGraw was neither Simon Legree nor the Salvation Army. Jobs for young attorneys were scarce, and Clark was more than willing to forgo some wages for the chance to follow the highly respected McGraw around to gain experience. McGraw, for his part, got an intelligent, eager mind to handle some of his more routine matters. He figured the association was workable unless Clark showed flaws McGraw couldn’t live with. McGraw had enough of his own flaws to live with.

McGraw’s client, Darcy Hayes, was a twenty-five-year-old high school dropout who made a living at many things. Thing one was auto theft. Thing two was robbery. McGraw knew of these vocations because Hayes had been convicted of them. As an adult, he had been convicted of car theft three times and robbery twice. Most recently he’d spent four years of a six year sentence in the state prison for armed robbery.

A month ago Hayes tried robbing a gas station. The attendant resisted, Hayes picked up and swung a lug wrench lying on the counter, and the attendant died.

He was identified both by fingerprints found on the wrench and by a motorist who pulled into — and then quickly out of — the station as he saw the attendant go down. As a multiple offender Darcy Hayes faced the death penalty if indicted for either first degree premeditated murder or second degree intentional murder without premeditation.

McGraw was explaining strategy to Clark.

“Our goal is to get the best possible deal without a trial, to lock in a sentence. Darcy will no doubt be convicted in a trial. If he is convicted, the prosecutor can request and the judge can impose any sentence allowed by law. In this case that could mean the death penalty. Darcy Hayes does not want to die.”

The district attorney could present the case to a grand jury in a couple of weeks, and McGraw wanted to settle before then if possible. So far, Hayes was charged by criminal complaint with second degree felony murder; a death penalty charge could only be brought with a grand jury indictment.

“Once they get the indictment,” McGraw explained, “they’re likely to push for the death penalty. It would look bad to plead down a capital case. The best we might hope for then is for the judge to sentence Hayes to life without parole.”

“Why don’t they go ahead and get the indictment? Why should they talk settlement now?” Clark asked.

“They’re required to at least discuss the case with the defense attorney and the judge to see if it can be resolved. Our court system is so inundated that only by getting pleas in most cases can it keep functioning. In a capital case there would be years of costly appeals before the death sentence was carried out.

“Beyond that, though the grand jury will give them the indictment on the most serious charge they request, the petit jury, which decides guilt or innocence, may convict on a lesser charge. Every trial lawyer knows there’s no certainty in trial.” McGraw said the jury might not find first degree murder with premeditation because the lug wrench was at the scene and Hayes only used it once, but they certainly might find second degree intentional murder. To fight off an intentional murder charge Hayes would have to testify because only he could testify that he meant only to rob, not to kill.

“If I put him on the stand to say the attendant’s death was unintentional, the prosecutor can bring in all his adult convictions in an effort to attack his believability. Once the jury hears his record, they might convict on that alone.”

The prosecutor was Donald Morrison, a fifteen-year veteran of the district attorney’s office. Morrison was more than competent, and crafty. He also wasn’t above using a particular case for his own glory, McGraw explained.

“With a significant case like this murder, he might want a trial for the publicity rather than a plea bargain. He has every right to try the case. But first he’ll have to make some kind of an offer to try to avoid trial or all the judges will hear that he didn’t, and he doesn’t want to provoke them. Every week cases are divided among the judges available. An unnecessary murder trial that ties up one of them affects everyone’s workload.

“We don’t want an indictment, and the best way to avoid that is to plead to the current charge. Second degree felony murder is a forty-year sentence; with time off for good behavior Hayes would serve twenty-six years and eight months.”

To Clark this seemed like an awfully long time to agree to serve. Certainly after a trial a person might get forty years, but to agree to stay in prison for forty years without a trial! That was appalling. He pointed that out to McGraw, who merely shrugged. He was a successful attorney because his face and voice showed only what he wanted when anyone was looking.

McGraw had spent some sleepless nights arriving at his decision, and it was a very bitter thing to have the harshness of the sentence pointed out by this fledgling attorney. McGraw was a thoughtful, introspective man, a loner. He didn’t like to be second-guessed. Maybe that was why he’d stayed a solo practitioner for so long.

“It isn’t your life or my life we’re risking if we go to trial,” he said calmly. “I will certainly try to get less time, but that may not happen. Remember now, what I’ve told you is strictly confidential. If they know our strategy, I won’t get the best deal for Hayes. I may not get any deal at all.”

Clark wanted to discuss it further, but McGraw walked away. It was too painful. None of his clients had ever received a death sentence, and the gnawing uncertainty about whether Hayes would die or live was eating at him. It was pushing his pulse rate up and keeping an unsettled, butterflies-in-the-stomach feeling in his gut much of the time.

McGraw’s first death penalty case had fallen on him before he was a lawyer. He was a sophomore in college when he was selected for jury duty. The accused man (McGraw never thought of him by name) was guilty, and so the jury found. He had killed an acquaintance in an argument over a set of mag wheels for his car. It happened in that time before senseless violence was so cavalierly tolerated. McGraw was naive and shocked by the crime. The other jurors convinced him to vote for the death penalty.

His life probably wouldn’t have changed if that had been the end of it, but his name was drawn as the juror to attend the execution. Justice was swifter back then. Just eighteen months after the man was convicted he was strapped into the electric chair.

McGraw was on the other side of the window looking into the death chamber when the curtain went up, thankful that the man had a hood over his head. When the electric current hit, the man jerked in the chair, strained against the leather bands holding him in, and... well, McGraw didn’t think about the rest of it any more while he was awake. Sometimes it came back at night in sweating, rolling-around nightmares.

Now at times like this, waiting for the skirmish, worrying about strategy and tactics, McGraw hated being a trial lawyer. Clark saw no sign of that turmoil. Nor would anyone else.

A week later McGraw got the notice that the pretrial conference was set before Judge Patrick Flynn, an impatient no-nonsense Irishman. McGraw told Clark that was both bad and good.

On the one hand, Flynn was very fair before a defendant was convicted, and he knew what a case was worth. He had a way of jumping on anyone who was being unreasonable and would pressure the prosecutor to make an offer. On the other hand, Flynn had a reputation for throwing the book at convicted defendants. He would also end plea discussions quickly if a defendant rejected what he thought was a fair offer. While some judges might keep the parties in chambers for hours trying to get a settlement, there wasn’t much bargaining in front of Flynn.

On the morning of the pretrial conference they set off for the courthouse, McGraw bareheaded despite the bitter wind and Clark hatted, muffled, and carrying the file. Clark was looking forward to sitting in on the pretrial. He had to stop by the Clerk of Court’s office to file some motions on another case before they met the prosecutor, Morrison, and McGraw said he wanted to visit an old friend, so they split up at the courthouse door.

McGraw actually wanted to be alone to think over his strategy one more time. His demeanor, as always, showed none of his worry. His weathered, lined face had been around long enough that it hid the effects of having been up since three A.M. He hadn’t meant to get up that early but the nightmare of the man in the electric chair had returned and, when he awoke, he knew there was no hope for sleep. He got up and tried to read, do a crossword puzzle, or watch TV. He ended up taking an early shower and getting to the office at six. He paced behind his office door until it was time to go to the courthouse.

When he left Clark at the courthouse door, he headed for a secluded corner of the law library. McGraw sat, not caring about the hard chair and the widely spaced dowels of the chair back. He closed his eyes and breathed quietly. People were a mystery to him. He’d spent a lifetime getting to know himself, but to his mind, he had constructed only a working hypothesis, not a true understanding. He still wondered how much of what happened in life other people understood though he did not. As usual, he didn’t feel ready for this day.

Meanwhile Clark was killing time. He’d gone upstairs to the second floor and walked to an office that had a twelve foot long window with a four foot wide counter that opened on the main hallway. Though he wasn’t short, it touched his chest when he leaned against it. He gave the papers to one of the deputy clerks of court, turned in the check on which McGraw had carefully filled in the filing fee, and was done with his errand. He had ten minutes to wait.

He looked up and down the hall. A broad tile floor stretched the entire length of the building, with windows at each end. There were also stairwells at each end of the building and elevators in the middle of the building. The courtrooms and judges’ chambers were one flight up, on the third floor at the west end. The district attorney’s office was on the fourth floor, also at the west end. That was the extent of his knowledge of the courthouse. He was barely past being a law student, and law students went to classes and law libraries, not courthouses.

Clark saw a statue at the east end of the hall in front of a window. He strolled down to look at the plaque on the base. It was one of the first settlers of the region. He went around behind it to look out the window. Then he heard footsteps and voices coming down the hallway.

“He wants me to offer manslaughter and twenty-five years? I can’t believe it. Barker knows it’s a good case,” said an agitated voice.

“He wants you to present that triple homicide to the grand jury and doesn’t want you to get tied up in trial with the Hayes case,” replied a second voice.

“Twenty-five years isn’t nearly enough. Hayes could, he should, get the death penalty, or life without parole,” said the first man.

“Certainly you can proceed if he rejects the offer, but this isn’t an order you can just ignore.”

Clark heard the pushbar on the door bang as the men went through and got a fleeting glance at them going up the stairs as the door swung shut. He was stunned. He stared at the door. His mind spun. That was Morrison and another prosecutor; they were talking about the Hayes case! Barker was the district attorney, their boss. Clark had to find McGraw right away. He needed time to explain what he’d heard before Morrison arrived at Judge Flynn’s chambers.

He headed for the door but thought better of it and went to the elevators in the middle of the building. He stood looking at the buttons. Where to find McGraw? He had no idea whom McGraw had gone to see. He wished McGraw didn’t play everything so close to the vest. All he could do was go to chambers and hope McGraw showed up before Morrison. McGraw did.

McGraw saw how anxious Clark was and went willingly into the nearest conference room. Clark told his story all in one breath. McGraw’s eyebrows first went up and then lowered into a frown of concentration as Clark finished.

“How do you know it was Morrison?”

“He gave a lecture I went to in law school.”

“Who was he talking to?”

“I don’t know.”

“What did they look like?”

Clark took a deep breath and let it out in exasperation.

“Morrison was tall and well-built and had on a gray suit. The other guy was medium size, wore a brownish suit.”

“Did they see you?”

“They might have, but they paid no attention to me.”

McGraw leaned against the conference table, frowning at the floor. When he looked up, his face was relaxed, the hint of a smile about his mouth.

“I may not be paying you enough,” he said. “Take the rest of the morning off. I obviously don’t want Morrison to see us together.” Clark grinned and left, going down the stairs at the west end of the courthouse, his feet almost dancing on the steps. McGraw watched him leave, the frown back in place.

When Morrison appeared a few minutes later, McGraw’s face was composed. They had agreed to meet early enough to discuss the case before going into Flynn’s chambers.

McGraw watched as the elevator opened and Morrison stepped out. Morrison was about six two, blond, brown-eyed, probably weighed two hundred pounds. He had on a gray suit as Clark had said. But as he stepped off the elevator, something bumped up against McGraw’s subconscious hard enough for him to sense it. Something that didn’t fit. He wished he had more time to think about what it was. The next minutes would be critical to McGraw and his client. A bead of sweat trickled down the small of his back.

“Good morning, Wilson.”

“Good morning, Donald,” McGraw replied.

“Is Flynn still on the bench?”

“As far as I know.”

“What do you want to do with this one?” asked Morrison.

“I’m willing to listen to your offer.”

“Well, let’s see. Hayes is a multiple offender. He’s looking at the death penalty or life without parole if we indict and convict on first degree murder. I think he has to waive indictment and plead to a sentence of life without parole.”

“Life without parole is too heavy. He wouldn’t agree to that.”

“I thought that was a reasonable offer, given the evidence and the judge,” Morrison said. He paused briefly, staring into McGraw’s face. McGraw waited, not speaking, heart pounding. This offer was nowhere near twenty-five years. “But,” Morrison continued, “I’ll offer a plea to second degree murder and forty years just to save the taxpayers the expense of the trial and the cost of his room and board for the rest of his natural life.”

McGraw was shaking his head, smiling. “You know, Morrison, you’re getting too soft.”

Just then Judge Flynn’s law clerk opened the door. “The judge ordered me to find you; he’s in a hurry,” the clerk said nervously. He ducked back into chambers, and Morrison stepped in immediately after him.

McGraw stood in the hall momentarily. Why hadn’t Morrison offered twenty-five years? He had only offered forty.

That was what McGraw had wanted earlier this morning, but not what he expected now. He looked up and down the hall, crooked his finger inside his collar over the knot of his tie, and pulled it back and forth a couple of times. He sighed and walked into Judge Flynn’s chambers. It was never easy.

McGraw was waiting in his office at noon when Clark got there. The whisky bottle was far back in the bottom right-hand desk drawer, and he was chewing his third breath mint. He swallowed it. “What happened?” Clark asked, plopping down in the leather chair across from McGraw.

“Hayes pled to second degree murder, forty years, eligible for parole in twenty-six years and eight months,” McGraw said. He didn’t want to delay or sugarcoat the news, he wanted to get it out and over with.

“Forty years!” Clark’s mouth hung open. “Forty years! What happened? Did the judge... did Morrison... how come...” Clark took a breath. “Why did you take that deal? We could have gotten less time. Fifteen years less. Are you crazy? You sold him down the river!” Clark stopped. “Wait a minute, is this a joke?”

“No joke,” replied McGraw. “I got the feeling—”

“I don’t believe this!” Clark interrupted. He felt betrayed, hurt, untrusted. “Is that what good defense lawyers do? Waltz in and plead their client guilty to whatever the district attorney’s office wants? It sure takes a lot of skill to do that!” He began to rise.

“Shut up,” roared McGraw, “and sit down!” He had bolted to his feet and slammed his hands down on the desk as he yelled, and the sudden violence of his action literally pushed Clark back into his chair. “I did what I thought was best for my client!”

“Finished?” Clark asked belligerently.

“Morrison came down too fast from his first offer, something didn’t seem right. I haven’t figured out what yet. I decided I had to stick with the original plan.”

“Then you can find another gopher. I quit.”

The door slammed. McGraw looked down and saw that his hands were flat on the desk. He sat down, drawing them towards himself. When he was seated, they were fists. He pounded them on the desk three times. He took a deep breath and let it out. Then he sagged. He put his elbow on the desk and propped his forehead in his palm.

It had been a long time since he’d last lost his temper. No judge, attorney, or jury had ever seen it happen. True, he had acted angry when situations called for it, but he’d never lost control. Today he’d drunk the whisky too early.

He sat for the rest of the afternoon ruminating. He looked at the desktop, the door, the wall, and settled finally on staring out the window. The gusty March wind was tossing the bare tree branches around under gray, scudding clouds. He thought.

He often thought about conversations he’d had during the day. He sometimes wondered how much more accurate his perceptions would be if he gave an opposite interpretation to what he’d been told. He let his mind wander, going back to the Hayes case off and on. Had he lost his nerve? Had he pled Hayes guilty for too much time because the death penalty loomed too darkly in his own past?

Judge Flynn had been particularly short that day. When McGraw entered the room, Flynn had asked Morrison what the offer was, turned to McGraw, and asked if they had a deal or not. There was no preliminary chitchat. Morrison looked at McGraw and raised his eyebrows. The deal on the table was second degree murder and forty years. Morrison was saying nothing more. Was Morrison going to make another offer if McGraw turned down the forty years? If Morrison didn’t make another offer, Judge Flynn might send them packing right away, given the mood he was in.

Something was wrong with what Clark had seen and heard, but McGraw couldn’t put his finger on it. His mouth was dry. “We have a deal, your honor,” he said. From the corner of his eye he thought he saw Morrison’s mouth twitch, but he couldn’t be sure and, when he looked, there was nothing. Had Morrison gotten fifteen years more out McGraw than he should have?

Hayes had been brought over from the jail, and McGraw went through the deal with him and advised him to take it. Hayes was reluctant, but he hadn’t hired McGraw to ignore his advice while facing a possible death penalty and McGraw reminded Hayes of that.

McGraw knew some of what bothered him about the way it played out. Morrison had made one offer and then another one too fast. If he’d really wanted to get a plea to the forty years, he wouldn’t have offered it that fast, he’d have drawn it out more. Was he going to offer twenty-five years if McGraw turned down forty? Or did Morrison want McGraw to reject the offer so he could proceed to indict for first degree murder with a death penalty?

Then there was the conversation that Clark had overheard. Huh. Why had he ignored it? Something had told him to. So he’d handled the plea as if he didn’t know about that conversation. He had reverted to form, gone with the original plan.

Had he been a lone wolf for so long that he didn’t want Clark’s help? If he hadn’t had an associate, he wouldn’t have known about the overheard conversation. He wouldn’t have spent the afternoon agonizing.

In the end it was the something that had bumped into his subconscious mind when he first saw Morrison that finally came to the surface and provided the key to understanding the battle.

McGraw sat bolt upright when it hit him. He stopped himself and thought through what Clark had told him again. He wanted to feel relieved, but he needed to think about it very carefully to be sure.

McGraw knew Morrison’s office was on the fourth floor of the courthouse, at the west end. The judge’s chambers were on the third floor, also at the west end. Clark had been looking at the statue, which was at the east end of the courthouse. It was on the second floor. That’s where Clark had seen Morrison and the other man, had seen them go up the east stairs.

Yet when Morrison arrived at the judge’s chambers he stepped out of the elevator in the middle of the building. Why would he walk up two flights of stairs but take the elevator to come down one flight? And why would he be walking up the stairs at the opposite end of the building from his office? He must have known that Clark worked for McGraw because Clark was constantly filing motions and doing research for McGraw.

Morrison must have wanted to plant that conversation! Morrison had figured Clark would be sure to report to McGraw before the pretrial. Morrison wanted McGraw to reject any offer above twenty-five years. Then he could proceed with an indictment.

McGraw nodded slowly. So that was what had happened today. He chuckled. What a blessed relief.

Was it a rationalization or the truth? Either way, it would allow him to live with himself and his nightmares a little longer.

Noticing sunlight slanting through the window, he looked at the clock on his desk. It was six o’clock. He had arrived at the office twelve hours ago. It seemed like a lifetime; maybe it was. It was time to quit for the day.

Tomorrow or the next day maybe he would contact Clark and patch things up. If Clark wanted to. McGraw wondered if he cared enough about having an associate to tell Clark what he thought had happened. That was something to worry about later.

He pulled open the bottom right-hand drawer of his desk, took out the liter of amber liquid, and unscrewed the cap. He lifted it and drank two long, stinging swallows. He put the cap back on and slid the bottle to the very back of the drawer. It was still half full. This one had been in there three days. His goal was to make it last a week.

He closed the drawer.

After all, he thought, Darcy Hayes had killed someone.