The Law of Second Chances

33

Jack hardly slept that night worrying about his wife. Wofford could tell there was a problem as soon as he walked in the restaurant where they had arranged to meet.

“What the hell happened to you, Jack? You look terrible.”

“I’m fine. I didn’t get much sleep last night. My wife is in the hospital. She has cancer.”

“I’m sorry, Jack. Is it real bad?”

“Yeah.”

“Look, we can postpone this hearing until a better time.”

“There may not be a better time, Wofford. At least now she has round-the-clock care.”

“You’re sure?”

“Yeah.”

“Well, just ask me open-ended questions and I’ll take it from there.”

To the casual eye, Henry appeared to be public enemy number one when he walked into the courtroom on Tuesday morning. He was wearing handcuffs, leg irons, and a waist belt to which his handcuffs were attached, and he was accompanied by no fewer than eight sheriff’s deputies, two with shotguns. Since this was a non-jury hearing, the shackles were not removed, and none of the officers left the courtroom. If Henry made the slightest unanticipated move, the possibility existed that he would be shot on the spot.

Henry sat down next to Jack and turned to look at him.

“Are you okay, Jack? You look like hell. And how’s Pat?”

“Thanks for the compliment, Henry. Wofford said practically the same thing. I’m fine, but Pat’s not doing so well. We had a rough night last night. She’s in the hospital.”

“Let’s put this off, Jack. I told you I can wait.”

“No, Henry. This is the best time. Really. She has twenty-four-hour care in the hospital. Her best friend Charlie is there too. And I’m ready. We need to do this right now.”

“Are you sure you shouldn’t put your wife first?”

“Henry, she’s the one who sent me.”

Moments later, Judge Fletcher took the bench. Jack hadn’t even checked to see who was representing the state, but somebody was over there shuffling papers, getting ready.

“This is the evidentiary hearing to determine if Henry Wilson, who is presently on death row, is entitled to a new trial,” Judge Fletcher began. “Counsel, are we ready to proceed?”

Jack stood up. “The defense is ready, your honor.”

A man stood up at the state’s table across the aisle. Jack saw that it was Scott Tremaine, a lawyer he had known for the past twenty years-a lawyer with a great reputation. Scott was no longer with the state’s attorney’s office: he had been specially appointed to represent the state in this case.

“The state is ready, your honor,” Scott said.

“Then let us proceed.”

In a non-jury situation with an experienced judge and experienced counsel, many procedures were short-circuited. For instance, the attorneys did not make opening statements. They both knew that the judge was going to make her decision based on testimony from the witness stand. There was no need to waste her time.

They spent most of the morning marking all the exhibits, agreeing to enter some of them into evidence and stipulating to certain facts. Jack was glad that Scott Tremaine was on the other side. Scott was not a game player. If there was a legitimate basis to exclude something, he would argue until the cows came home against its inclusion, but he wouldn’t make stupid or illegitimate arguments. That tactic would backfire with this judge anyway.

By lunchtime all the exhibits that the parties agreed were admissible-including the transcript from the original trial, the previous motions for new trial, and all previous orders-had been entered into the record. All documentary evidence that the parties could not agree on had been simply marked as an exhibit. When it was time to introduce disputed exhibits, appropriate objections would be made to the judge. The parties had also stipulated that David Hawke, the main witness against Henry, was deceased, and that James Vernon, the man who Wofford had argued in the original trial was the real killer, was also deceased. Scott Tremaine produced both death certificates, which surprised Jack. He wasn’t sure why the state was concerned about the precise dates of death.

The state further stipulated that neither David Hawke nor his cousin Delbert Falcon had ever been charged with any crime arising out of the death of Clarence Waterman, the man Henry was convicted of killing.

After lunch, Jack called Wofford to the stand. There were certain preliminary matters he had to establish for appellate purposes, such as Wofford’s past experience as a criminal defense attorney and his present position as a judge.

Once the preliminaries were out of the way, Jack honed in on the issues. Susan Fletcher leaned forward, listening intently.

“What was your defense in Mr. Wilson’s original trial?” Jack asked Wofford.

“Our defense was that someone else committed the murder and that Henry Wilson was not at the murder scene.”

“Did Henry Wilson have an alibi?”

“No.”

“Did he testify?”

“No.”

“Were there any witnesses who placed him somewhere else?”

“No.”

“So you were limited to creating a reasonable doubt as to Henry Wilson’s guilt by giving the jury evidence that someone else may have committed the crime?”

It was definitely a leading question, but Scott Tremaine didn’t object.

“That’s about it,” Wofford answered.

“What was the evidence you put on to establish that fact?”

“The only evidence I had was a prison snitch, a fellow named Willie Smith. James Vernon was in jail at the time of this trial, and Smith was his cellmate. Smith testified that on the Friday before the trial was to begin James Vernon told him that he murdered Clarence Waterman.”

“Did you think that was strong evidence?”

“Absolutely not. This guy was a convicted felon and the timing of the confession was just too convenient. But it was all I had.”

“Was that the only evidence you planned on putting on when the trial began?”

“No. I planned on calling James Vernon himself.”

“For what reason?”

“He had told me that he was present at the murder and that Henry wasn’t. He said two other men were with him and they did the killing. He wouldn’t name the other men.”

“Did you call him at trial?”

“Yes.”

“What happened?”

“He took the Fifth and refused to testify.”

Jack picked up the transcript of James Vernon’s unsworn interview with Wofford Benton, which had been marked as defendant’s exhibit number 8 but not stipulated into evidence.

“Mr. Benton, I’m handing you defendant’s exhibit number 8 and ask you if you can identify that document.”

“Yes. It is a transcription of a recorded interview I had with James Vernon on April 13, 1980, about a month before Henry Wilson’s trial began.”

“Did you ever tell any of the appellate attorneys representing Mr. Wilson in his two previous appeals about the existence of this transcript?”

“No, I did not.”

“Why not?”

“Nobody asked me. It wasn’t really significant to me, and I actually forgot I had it.”

“Since that time, have you changed your opinion on the significance of this transcript?”

“Yes.”

“And why have you done so?”

“To be perfectly honest, I don’t think that I ever read it before you found it in my barn a few weeks ago. In the transcript, James Vernon not only said he was at the murder scene and that Henry Wilson wasn’t there, but he also said that he told the same story to his lawyer, Ted Griffin.”

“Why was that significant?”

“Well, if I had anticipated James Vernon changing his mind about testifying, I could have talked to Ted Griffin and had him available to testify.”

Jack introduced the transcript into evidence over the objection of Scott Tremaine, who argued that it was hearsay and that it was irrelevant. The judge let it in.

“In your opinion,” Jack continued, “would Ted Griffin’s testimony have made a difference in the outcome of the trial?”

Scott Tremaine was on his feet. “Objection, your honor. This is opinion testimony on one of the ultimate issues you will have to decide.”

“Overruled.” The judge obviously wanted to hear what Wofford had to say.

“Absolutely, it would have made a huge difference,” Wofford responded. “James Vernon took the Fifth. If I could put a lawyer on, rather than the prison snitch, and have him testify as to what James Vernon told him about this murder, we would have had a much stronger case.”

“You didn’t do that, though-have Ted Griffin waiting in the wings in case James Vernon took the Fifth?”

“That’s correct.”

“When did you realize that you’d made a mistake in not having Ted Griffin waiting in the wings?”

“Just a few weeks ago, when I read the transcript again for the first time. For some reason, even at trial I did not remember that James Vernon told me he had talked to Ted Griffin. It was a huge mistake.”

“Do you know who Anthony Webster is?”

“Yes. Anthony Webster was the investigator for the state in this case.”

“Did you know that Anthony Webster also spoke with James Vernon?”

“I know now because you told me that a few weeks ago as well.”

“The first time you knew that Anthony Webster, the prosecutor’s investigator, had spoken to James Vernon was less than a month ago?”

“That’s right. You told me that you obtained that information from Ted Griffin.”

Jack stole a glance at the judge. She was writing copious notes.

“If you had known that Anthony Webster talked to James Vernon at the time of the original trial would you have called Webster as a witness?”

“Absolutely.”

“Would that have made a difference in the outcome of the case, in your opinion?”

Scott Tremaine was on his feet again. “Objection, your honor. Mr. Tobin is trying to have Judge Benton decide this case rather than you.” Jack could tell that Scott was attempting to play to the judge’s vanity, but she was obviously having none of it.

“What’s your legal objection, Counsel?”

“It calls for an opinion on one of the ultimate issues before this court.”

“Overruled. The witness may answer the question.”

“Yes,” Wofford answered, “it would have made a great difference to the outcome of the case. I would have been able to put the state’s investigator on the stand after the state’s case was over and have him admit that there was a witness out there who said Henry Wilson didn’t commit the murder. That testimony would have made the prosecution look like it was hiding something, and I would not have had to use the prison snitch. I don’t think Henry would have been convicted under those circumstances.”

Wofford’s testimony was going well. Jack switched gears to cover the final subject matter of his direct examination.

“Was there any physical evidence to link Henry Wilson to this murder?”

“No.”

“What evidence was there?”

“There was the testimony of David Hawke that he drove Henry Wilson and Hawke’s cousin, Delbert Falcon, to Clarence Waterman’s hairdressing salon; that he waited while they went inside to steal his money and his dope; and that they killed him when they were in there. Henry Wilson didn’t have an alibi. I believe that the jury considered David Hawke’s testimony and asked themselves the following question: why would a man tell a lie to voluntarily incriminate himself and his cousin? When they couldn’t come up with a viable answer, they concluded that David Hawke was telling the truth and that Henry Wilson was guilty.”

“Did you know at the time of trial that David Hawke was not going to be prosecuted for his role in this crime?”

“No. As a matter of fact, I asked him-and that is on page 197 of the transcript, exhibit number 1, your honor-if he was promised anything for his testimony, and he said no. I didn’t find out until you told me that neither he nor his cousin was prosecuted for this crime.”

“If you had known that at the time of the trial, would that have made a difference?”

Scott Tremaine felt obligated to make his objection even though by this time he knew it would do no good with this judge. He had to preserve the point for appellate purposes. “Objection,” he said matter-of-factly.

“Overruled.”

“It absolutely would have made a difference,” Wofford replied. “The jury might have questioned the entire case if they’d known the other two men involved were walking.”

“No more questions,” Jack said and sat down next to Henry.

“Great job,” Henry whispered in his ear.

“Don’t evaluate the testimony until cross-examination is over,” Jack told him. Henry may have had experience reading legal briefs and cases for years, but he didn’t know what could happen to a seemingly good witness on cross-examination.

Scott Tremaine walked to the podium.

“Judge Benton, do you believe that your failure to anticipate that James Vernon would take the Fifth and to have Ted Griffin waiting in the wings to testify was incompetence and was one of the reasons Mr. Wilson was convicted of murder seventeen years ago?”

Wofford swallowed hard before answering. It wasn’t easy for a sitting judge to admit incompetence on the record. “Yes, I do,” he said.

“It’s my understanding that you have been a circuit judge for about ten years, is that correct?”

“Yes.”

“And I assume that during that time you have had to sit and decide cases just like this one, is that correct?”

“Yes.”

“Many, many times?”

“Yes.”

“And you have had to decide this very issue-incompetence of counsel-haven’t you?”

“Yes.”

“So you are thoroughly familiar with the case law?”

“Yes.”

“Let me ask you this question, then. Even though you feel your mistake in Henry Wilson’s case constituted incompetence, does it satisfy the legal standard for incompetence?”

It was Jack’s turn to jump to his feet. “Your honor, he’s asking the witness to make a legal evaluation of his own behavior.”

“No, Judge,” Scott responded. “I’m just asking him for an opinion on one of the ultimate issues-the same thing Mr. Tobin has been asking for the last hour or so.”

Scott Tremaine had deftly turned the tables.

“Overruled,” the judge declared. “The witness will answer the question.”

“It should constitute incompetence,” Wofford said.

Scott Tremaine looked right at Judge Fletcher. “Your honor, I request that you instruct the witness to answer the question posed.”

“Answer the question, Wofford,” Judge Fletcher said.

Wofford continued to hesitate. Scott Tremaine waited patiently. Finally, Wofford answered.

“I don’t believe the incompetence satisfies the test of Strickland v. Washington. As this court knows, it’s a very high standard. The level of incompetence must be such that the accused is, in effect, denied counsel.”

“Thank you, Judge. Just to be a little clearer, is it your opinion that your representation and the errors that you made did not constitute incompetence as a matter of law?”

“That’s correct,” Wofford admitted.

Jack could now see how the rest of the cross-examination was going to go. Tremaine had succeeded in turning Wofford into his own expert. Through Wofford, he was going to try to prove that Henry had not met any of the legal criteria for a new trial. It was a brilliant tactic. Just hang in there, Wofford, Jack thought. You’ve been here before.

Meanwhile, Scott Tremaine continued his assault on Henry’s case.

“Is it accurate that besides not having Mr. Griffin available for trial, you never spoke to Mr. Griffin after interviewing Mr. Vernon?”

“That’s correct.”

“And if you had talked to Mr. Griffin back then, if you had done your job, you would have learned that James Vernon had also spoken to Mr. Webster, the prosecution’s investigator, and told Mr. Webster he was at the crime scene at the time of the murder, correct?”

“Possibly.”

“Possibly? I don’t understand.”

“He could have refused to talk to me based on the attorney-client privilege.”

“In any event, you didn’t bring Ted Griffin into court back then and ask the question and test the privilege issue before a judge, did you?”

“No.”

“As a circuit judge, you are familiar with the law on newly discovered evidence, correct?”

“Yes, I am.”

“And you have had to decide what constitutes newly discovered evidence in cases just like this?”

“That’s correct.”

“What James Vernon told Ted Griffin seventeen years ago cannot be considered newly discovered evidence, can it?”

Jack was on his feet. “Objection, your honor.”

“Overruled.”

“No,” Wofford answered.

“And that’s because you knew about the conversation seventeen years ago, even though you never asked Ted Griffin what was said, correct?”

“That’s correct.”

“And even if what James Vernon told Ted Griffin was privileged, the privilege died with Mr. Vernon five years ago, correct?”

“That’s correct.”

“How long do you have to file a motion for new trial when you learn, or should have learned, of newly discovered evidence?”

“One year.”

“So even if what James Vernon told Ted Griffin was privileged, this motion is still four years too late, correct?”

“Objection.”

“Overruled.”

“That’s correct,” Wofford answered.

“And since the information about Anthony Webster’s interview with James Vernon came from Mr. Griffin, that’s something that could have and should have been discovered at least four years ago as well, correct?”

“That’s correct.”

“So that’s not newly discovered evidence either?”

“It may not be newly discovered evidence, but it still may provide a basis for a new trial.” It was the answer Jack had hoped to hear. “I believe that a prosecutor has an affirmative duty to disclose exculpatory evidence under Brady v. Maryland. If the prosecution does not disclose that evidence, it cannot hide behind the argument that the defendant’s counsel could have and should have found out anyway.”

“Do you have any case law to support that opinion?”

“No, but that is my interpretation of Brady.”

Yes! Jack was saying to himself. Hang tough, Wofford.

“But you do agree that you could have learned about Anthony Webster if you had talked to Mr. Griffin seventeen years ago or four years ago?”

“Yes.”

“And would it be fair to say that if David Hawke and his cousin Delbert Falcon were not prosecuted for two years after Henry Wilson’s conviction, that was enough time to put you on notice that they weren’t going to be prosecuted, correct?”

“Yes.”

Scott Tremaine should have stopped there, but he didn’t.

“So the fact that they were not prosecuted is not a basis for a new trial, is it?”

“If the prosecutor affirmatively kept this information from the defense at the trial, I think that too is a Brady violation and could form the basis for a new trial.”

Jack looked at Henry, who was taking it all in. He saw Henry mouth the word yes when Wofford gave his last answer. Jack had two more witnesses to put on, but he and Henry and probably Scott Tremaine all knew that it now came down to Judge Fletcher’s interpretation of Brady v. Maryland.

Scott Tremaine did not want to end his cross-examination on such a sour note, but he had nothing else to ask, and he knew that any further questions of this witness about the Brady decision would get him nowhere but into further trouble. “I have no further questions, your honor,” he said and sat down.

It had been a long day, so the judge decided to wrap it up at that point. Jack had a few words with Henry before his personal army took him back to jail. Jack met with Wofford in the hallway outside the courtroom. The man was beside himself.

“I’m sorry, Jack. I didn’t realize that I was going to hurt Henry.”

“How do you think you hurt him, Wofford?”

“Hell, I gave opinions against your case.”

“Look, Wofford, we all knew this was a Brady case going in. We knew we couldn’t win on those other arguments. Your truthfulness and the way Scott had to pull the opinions out of you are going to work in our favor. You have narrowed the issue and framed it just the way we want it.”

“It’s funny. I’ve been doing this for so many years as an attorney and a judge. It was a totally different experience being a witness. I thought he blew me away.”

“He almost did. It was a very effective cross, but you hung tough. I think we are exactly where we want to be.”

“Thanks, Jack. I don’t know if you’re telling me the truth, but I feel better.”

“The truth will be in the decision. I’m going to be done tomorrow, in case you want to stick around.”

“Really?”

“Yeah. The judge has all she needs right now, I think. I’m going to put Griffin and Webster on for five minutes apiece.”

“Watch out for Webster. He could be a tricky witness.”

“You know the old mantra, Wofford. If you’re going to try cases, you have to be fearless.”

“Or crazy,” Wofford replied.