The Confession

CHAPTER 12

Wednesday morning. Six hours after leaving his office just after midnight, Robbie was back in the conference room preparing for another frantic day. The night had not gone well. The drinking session with Fred Pryor and Joey Gamble produced nothing, except an admission by Gamble that Mr. Koffee had indeed called and reminded him of the penalties for perjury. Robbie had listened to the entire session. Pryor, who over the years had become masterful with his recording devices, had used the same pen mike and passed along their conversation through a cell phone. The sound quality was remarkable. Robbie had enjoyed a few drinks along with them, in his office, with Martha Handler sipping bourbon and Carlos, the paralegal, drinking beer and monitoring the speakerphone. They all had enjoyed their booze for almost two hours, Joey and Fred in a fake saloon somewhere outside of Houston, and the Flak Law Firm hard at work at the office in the old train station. After two hours, though, Joey had had enough—even beers—and said he was tired of being pressured. He could not accept the reality that a last-minute affidavit signed by him would repudiate his testimony at trial. He did not want to call himself a liar, though he stopped short of admitting he’d lied.

“Donté should not have confessed,” he said several times, as if uttering a false confession were grounds enough for a death sentence.

But Pryor would shadow him throughout Wednesday and Thursday, if necessary. He believed there was still a slight chance, one that increased as the hours went by.

At 7:00 a.m., the firm gathered in the conference room for the daily briefing. All were present, all bleary-eyed and fatigued and ready for the final push. Dr. Kristi Hinze had worked through the night and finished her report. She summarized it briefly while everyone ate pastries and gulped coffee. The report was forty-five pages long, more than the court would want to read, but maybe enough to get someone’s attention. Her findings surprised no one, at least no one within the Flak Law Firm. She described her examination of Donté Drumm. She had reviewed his medical and psychological history while in prison. She had read 260 letters he had written over the eight years he’d been on death row. He was schizophrenic, psychotic, delusional, and depressed and did not understand what was happening to him. She went on to condemn solitary confinement as a means of incarceration and again labeled it as a cruel form of torture.

Robbie instructed Sammie Thomas to file their petition for relief with Dr. Hinze’s report attached in full to the firm’s co-counsel in Austin. Throughout the appellate process, all eight years of it, Robbie’s firm had been assisted by the Texas Capital Defender Group, commonly referred to as the Defender Group, a nonprofit that represented about 25 percent of the inmates on death row. The Defender Group did nothing but capital appeals, and did so with great expertise and diligence. Sammie would send the petition and report electronically, and at 9:00 a.m. the Defender Group would file hard copies with the Court of Criminal Appeals.

With an execution looming, the court was on alert and prepared to quickly address the last-minute filings. If they were denied, which they usually were, Robbie and the Defender Group could then run to federal court and fight their way up the mountain, hoping for a miracle at some point.

He discussed these strategies and made certain everyone knew what was to be done. Carlos would be in charge of the Drumm family the following day, though he would remain in Slone. He was to make sure they arrived at Polunsky on time for their final visit. Robbie would be there to make the final walk with his client and to witness the execution. Sammie Thomas and the other associate would remain at the office and coordinate the filings with the Defender Group. Bonnie, the paralegal, would stay in touch with the offices of the governor and the attorney general.

The request for a reprieve had been filed with the governor’s office, and its denial was being awaited. The Kristi Hinze petition was ready to go. Unless and until Joey Gamble had a change of heart, there was no new evidence to make a fuss about. As the meeting dragged on, it became evident that there was little of substance left to do. The conversation waned. The frenzy was beginning to subside. Everyone was suddenly tired. The waiting had begun.

———

When Vivian Grale was elected to the bench in 1994, her campaign had been about high moral standards, putting the laws of God first, putting criminals in prison for even longer periods of time, and, of course, more efficient use of the death chamber down at Huntsville. She won by thirty votes. She defeated a wise and experienced judge by the name of Elias Henry, and she did so by cherry-picking several criminal cases in which Judge Henry had dared to show compassion for the accused. She splashed these around in ads that made him look like a coddler of pedophiles.

After her affair with Paul Koffee was exposed, after her divorce, and after she resigned and left Slone in disgrace, the voters repented and returned to Judge Henry. He was reelected without opposition. He was now eighty-one years old and in declining health. There were rumors that he might not be able to finish his term.

Judge Henry had been a close friend of Robbie’s father, who died in 2001. Because of this friendship, he was one of the few judges in East Texas whose blood pressure did not spike when Robbie Flak walked into the courtroom. Elias Henry was about the only judge Robbie trusted. At Judge Henry’s invitation, Robbie agreed to meet in his chambers at 9:00 a.m. Wednesday morning. The purpose of the meeting was not discussed on the phone.

“This case bothers me a great deal,” Judge Henry said after a few pleasantries were out of the way. They were alone, in an old office that had changed little in the forty years Robbie had visited it. The courtroom was next door and empty.

“As well it should.” They both had unopened bottles of water in front of them on a worktable. The judge, as always, wore a dark suit with an orange tie. He was having a good day, his eyes fierce and intense. There were no smiles.

“I’ve read the transcript, Robbie,” he said. “I started last week and I’ve read it all, and most of the appellate briefs as well. Taking a view from the bench, I can’t believe Judge Grale allowed that confession into evidence. It was coerced and blatantly unconstitutional.”

“It was, Judge, and it is. I won’t defend her, but she had little choice. There was no other credible evidence. If she tossed the confession, then Koffee had nowhere to go. No conviction, no defendant, no suspect, no dead body. Donté would have walked out of jail, which would have been front-page news. As you well know, Judge Grale had to face the voters, and judges don’t get reelected in East Texas if they keep the law above politics.”

“Tell me about it.”

“Once he knew the confession would go to the jury, Koffee was able to piece together other evidence. He stomped and strutted and convinced the jury that Donté was the killer. He pointed fingers at him, and then he cried at the very mention of Nicole’s name. Quite a performance. What’s the old saying, Judge? ‘If you don’t have the facts, yell’—and he did a lot of yelling. The jury was more than willing to believe him. He won.”

“You fought like hell, Robbie.”

“Should’ve fought harder.”

“And you’re convinced he’s innocent? No doubt in your mind?”

“Why are we having this discussion, Judge? It seems rather moot at this point.”

“Because I’m going to call the governor and ask for a reprieve. Maybe he’ll listen, I don’t know. I wasn’t the trial judge. I was, as we know, retired at the time. But I have a cousin in Texarkana who gave the governor a ton of money. It’s a long shot, but what’s there to lose? What’s wrong with delaying things another thirty days?”

“Nothing. You’re having doubts about his guilt, Judge?”

“Serious doubts. I would not have admitted the confession. I would have thrown the snitch in jail for lying. I would have excluded that clown with his bloodhounds. And the boy, what’s his name—”

“Joey Gamble.”

“Right, the white boyfriend. His testimony would probably go to the jury, but it was too inconsistent to carry weight. You said it best in one of your briefs, Robbie. This conviction is based on a bogus confession, a dog named Yogi, a lying snitch who later recanted, and a jilted lover bent on revenge. We can’t convict people with garbage such as this. Judge Grale was biased—I guess we know why. Paul Koffee was blinded by his own tunnel vision and the fear he might be wrong. It’s a terrible case, Robbie.”

“Thank you, Judge. I’ve lived it for nine years.”

“And it’s dangerous. I met with two black lawyers yesterday, good guys, you know them. They’re angry with the system, but they’re also afraid of the backlash. They expect trouble if Drumm is executed.”

“That’s what I hear.”

“What can be done, Robbie? Is there a way to stop this? I’m not a death-penalty lawyer, and I don’t know where your appeals are right now.”

“The tank is almost empty, Judge. We’re filing an insanity petition now.”

“And your chances?”

“Slim. Donté has no record of mental illness until now. We’re alleging that eight years on death row have driven him insane. As you know, the appeals courts usually frown on theories that are hatched at the last minute.”

“Is the boy crazy?”

“He has severe problems, but I suspect he knows what’s happening.”

“So you’re not optimistic.”

“I’m a criminal defense lawyer, Judge. Optimism is not in my DNA.”

Judge Henry finally unscrewed the cap off the plastic bottle of water and took a sip. His eyes never left Robbie. “Very well, I’ll call the governor,” he said, as if his phone call would save the day. It would not. The governor was getting lots of calls right now. Robbie and his team were generating plenty.

“Thanks, Judge, but don’t expect much. This governor has never stopped an execution. In fact, he wants to speed them up. He has his eye on a Senate seat, and he counts votes before he chooses what to eat for breakfast. He’s a two-faced, cutthroat, dirt-dumb, chickenshit, slimy little bastard with a bright future in politics.”

“So you didn’t vote for him?”

“I did not. But please give him a call.”

“I will. I’m meeting with Paul Koffee in half an hour to discuss this with him. I don’t want him to be surprised. I’ll also chat with the fellow over at the newspaper. I want to be on record in opposition to this execution.”

“Thanks, Judge, but why now? We could’ve had this conversation a year ago, or five. It’s awfully late to get involved.”

“A year ago, few people were thinking about Donté Drumm. There was no execution looming. There was a chance he would find relief in a federal court. Maybe a reversal, a new trial. I don’t know, Robbie. Maybe I should’ve been more involved, but this is not my case. I was busy with my own matters.”

“I understand, Judge.”

They shook hands and offered their farewells. Robbie took the back stairs so he wouldn’t bump into some lawyer or clerk who wanted to chat. As he hurried along the empty corridor, he tried to think of another elected official in Slone or in Chester County who had voiced support for Donté Drumm. One came to mind, the only black city councilman in Slone.

For nine years, he had fought a long and lonely battle. And he was about to lose. A phone call from the cousin of a big donor would never be enough to stop an execution in Texas. The machinery was well-oiled and efficient. It was in motion, and there was no way to stop it.

On the front lawn of the courthouse, city workers were assembling a makeshift podium. A few policemen loitered about, chatting nervously as they watched the first church bus unload. A dozen or so black folks got off and made their way across the lawn and past the war memorials. They found their spot, unfolded chairs, and began to wait. The rally, or protest, or whatever it was to be called, was scheduled for noon.

Robbie had been asked to speak, but declined. He couldn’t think of anything to say that would not be inflammatory, and he did not want to be accused of inciting the crowd. There would be enough troublemakers.

According to Carlos, who was charged with monitoring the Web site, the comments, and the blogs, the traffic was increasing dramatically. Protests were being planned for Thursday in Austin, Huntsville, and Slone and on the campuses of at least two of the black universities in Texas.

Give ’em hell, Robbie thought as he drove away.