The Law of Second Chances

25

Charlie decided to stay an extra week when she heard about Henry. Jack and Pat initially protested, but Charlie dismissed their objections.

“I’m staying. You’ve got things to do, Jack, and so do Pat and I. We’re going to spend all your hard-earned money.”

That was the end of it. Charlie’s presence freed Jack up to concentrate on Henry’s situation. Pat was always on his mind-but he could see that Pat was having a lot more fun with Charlie than she would have with him.

He called Susan Fletcher’s office every day that week about the motion for rehearing, but he never managed to speak to her.

“She knows about your motion, Mr. Tobin,” her secretary told him. “I give her your message every day. She’s very busy. She’s in court right now.”

With just three days to go before the execution, Jack called Wofford.

“I can’t get through to Judge Fletcher. I don’t think she wants to overturn a decision of one of her colleagues, so she’s just ignoring it and letting the time run out.”

“You’re probably right,” Wofford told him. “Have you talked to Henry?”

“Every day for about two minutes. I’ve kept him informed, but I need to see him in person. I’ve got a federal habeas corpus action prepared, but I need his permission to file it.”

“You have to talk him into it?” Wofford asked.

“He’s a stubborn man. It was a chore to get him to agree to the original motion. He’s just sick of the system.”

“I’ll tell you what, Jack. You go see Henry, and I’ll take care of the Susan Fletcher problem. Trust me. One way or another, you are going to have an order.”

“Okay, Wofford, I’ll leave Susan Fletcher in your hands.”

The next morning, Jack left for Starke, where he planned to stay until Henry either got a stay or was executed. The last time he’d taken such a trip, Pat went with him. She knew the ordeal he was in for. She held his face in her hands as she kissed him good-bye.

“Remember that I’m with you in this, right next to you. I know that you will do everything for Henry that is humanly possible because that is who you are. I’ll be praying for both of you.”

Henry doesn’t know how lucky he is, Jack thought as he set out on his long journey to North Florida. Having Pat as an advocate before the Almighty is as good as you can get. He was hopeful suddenly that the Almighty, seeing the sorry shape that he was in, would give Pat a little more time before He called her home.

On the eve of his execution, Henry’s handlers were giving him all kinds of special treatment. He was allowed to be with Jack in their special meeting room unfettered by handcuffs and shackles. The two men shook hands for the first time.

“You did a good job, Counselor. You did everything you possibly could for me. Remember that.”

“We’re not done yet, Henry. Not by a long shot. I’ve got a habeas corpus petition to file in federal court. There’s a study that says the lethal injection method is cruel and unusual. I just need your permission to file it.”

“The answer is no, Jack. You may not be done, but I am. I’m not going to let them strap me on that gurney tomorrow night just to release me at the last minute so they can do it again a month from now.”

“Why do you say that?”

“Do you honestly think they’re going to stop executing people because there might be a flaw in the lethal injection process? They’ve gone from the noose to the electric chair to lethal injection-which, by the way, is optional. They still have Old Sparky. What I’m saying, Jack, is if I don’t get a new trial and I’m not found innocent, I don’t want to play their game. Let’s get it over with.”

Jack didn’t know what to say, so he said nothing. Henry had a right to decide when enough was enough. It was now up to Judge Susan Fletcher whether Henry would live or die.

Wofford Benton had thought that because he was a judge Susan Fletcher would take his calls. After trying every hour on the hour for a day and a half, he realized he was sorely mistaken.

On Thursday, October 29, 1998, the day Henry Wilson was scheduled to die, Judge Susan Fletcher was in her courtroom in downtown Miami presiding over preliminary hearings when an overweight, balding man in his mid-sixties walked in and came straight down the middle aisle. He strode deliberately past the bar that separated the people from the judge, her staff, and the attorneys. The courtroom was full with those who were being brought before the court, their attorneys, the state’s attorneys, sheriff’s deputies, and numerous other spectators and court personnel.

An attorney was standing at the podium arguing on behalf of his client when the intruder interrupted him in mid-sentence.

“Excuse me, sir. I’ll just be a minute,” the man said to the attorney, turning to the judge, who had not yet recognized him. “Your Honor, I am Judge Wofford Benton from Polk County and I have been trying to get in touch with you for two days. I want to talk to you about a motion that is pending before you regarding a man who is about to be executed today-Henry Wilson. I would like to know why you have not addressed that motion.”

There was dead silence in the courtroom. All eyes were on Judge Fletcher.

Wofford had learned a long time ago that transparency created its own pressure. He knew that he would not have gotten anywhere if he had gone to the judge’s chambers and tried to see her. Now that he had stated his position in open court, she would have to address the issue. He wasn’t just another lawyer that she could tell to sit down. He was her peer.

Susan Fletcher glared at Wofford. They knew each other, although not very well.

“We’re going to take a ten-minute recess,” she announced as she stood up. “Judge Benton, if you will follow me, we’ll discuss this matter in my chambers.”

As soon as they were in chambers and the door was closed, Judge Fletcher erupted.

“How dare you walk in my courtroom and make an accusation like that?”

“I didn’t make an accusation. I made a statement that is true. You have not addressed the motion and today is the last day.”

“What’s your stake in this, Wofford? Arthur Hendrick has already denied the motion. The tactics this Tobin guy has used-and I understand he has a very good reputation on the civil side here in Miami-these tactics border on the unethical. He’s forum-shopping and I don’t want to be part of it.”

“Wait a minute, Susan. He moved to recuse a judge for a valid reason. Artie Hendrick signed the order because he had to. That’s not forum-shopping. Why the hell do you think they have the rule? It was my suggestion, by the way. And you shouldn’t be prejudging his motives without reading the damn motion.”

“Your suggestion? You still haven’t told me what your stake in this is. No matter-you are way out of bounds. Coaching a lawyer on a pending case? The Judicial Qualifications Commission will have your ass, Wofford.”

“I represented the man on death row seventeen years ago. He’s there because of my incompetence. I’m having a difficult time with that, Susan, so I’m now going to see that he gets justice no matter what it costs me.”

“It might cost you your seat on the bench.”

“So be it. This man may be innocent, and I’m not going to sit idly by and watch him die because of something I neglected to do seventeen years ago.”

Susan sighed. “Even if I look at this motion, I might not think it merits an evidentiary hearing or a new trial. Seventeen years is a long time. I’m sure every stone has been turned over.”

“Just look with an open mind, that’s all I ask. Don’t think about the seventeen years. Don’t think about Artie Hendrick’s recusal. Just read the motion. If you think the facts merit an evidentiary hearing, then enter an order setting one. That will stop the execution. Here is the number to call.” Wofford handed her a card. “If you don’t think it merits an evidentiary hearing, then enter an order denying the motion.”

Susan Fletcher looked at him.

“All right, Wofford. I’ll read the motion this afternoon. I make no promises, however. If there is no new evidence that warrants a hearing, I’m going to deny it. What time is the execution scheduled for?”

“Six o’clock.”

“All right. Now if you’ll excuse me, I’ve got a courtroom full of people I’ve got to get through before this afternoon.”