The Law of Second Chances

35

Pat was sitting up in bed talking and laughing with Charlie when Jack got to the hospital that night. A little bit of color had returned to her cheeks.

She beamed when she saw him. “Hi, honey. How did it go today?”

“Pretty good, sweetheart. How are you doing? You look a whole lot better.” He gave her a big kiss.

“I feel better.” She was slurring her words a little, which Jack attributed to the medication. They were giving her morphine.

“She had the blood transfusion this afternoon,” Charlie told him when Jack sat down next to her. “That and the IVs have made a world of difference.”

“What does the doctor say?”

“She hasn’t said anything yet. The test results still aren’t back. Maybe tomorrow.”

“How is Henry?” Pat asked. It was a funny thing. Pat always asked about Henry and Henry was now always asking about Pat-and the two had never met.

“Henry is doing fine.”

“Are you proving to the judge that he’s innocent?” Charlie asked.

“Innocence has very little to do with it at this point,” Jack replied.

“Yeah,” Pat added. “It’s about whether they can prove the lawyer screwed up or the evidence is new. Right, Jack?”

“That’s pretty much it.”

“Wait a minute, I’m lost,” Charlie said. “Why has innocence got nothing to do with it?”

“I don’t really want to talk about this,” Jack responded.

“We do,” Pat told him. “Charlie and I have talked about everything under the sun. We need something new, don’t we, Charlie?”

“We sure do-something with substance.”

Jack looked at the two of them. In the midst of all this, they were still having a good time with each other.

“All right, I’ll explain it to you, Charlie, but the peanut gallery,” Jack said pointing at Pat, “has to refrain from making editorial comments.”

Pat put her hand to her lips and mimicked zippering them shut.

“At this stage of the game, Charlie, to get a new trial you have to show that your lawyer was either totally incompetent, or that there is some new piece of evidence out there that nobody could have found before, or that the prosecutor hid evidence. If you can’t demonstrate any of those three things, it doesn’t matter whether you’re innocent or not.”

“That’s really the way it works?”

“Yeah.”

“And there are no other avenues?”

“Essentially that’s it. You can go to the governor for clemency, but that’s a political issue and our governor has never granted clemency.”

Jack slept well that night knowing that his wife was doing so much better. Maybe she and Henry will both get a reprieve, he thought before nodding off.

The next morning in court, Jack put Ted Griffin on the witness stand and had him tell the judge about his conversation with James Vernon, which Griffin did in essentially the same nonchalant manner as when he first told Jack.

“He told me he cut Clarence Waterman’s throat.”

“Why did he tell you that?” Jack asked.

“I’m not sure.”

“And you never told anybody?”

“Not until I told you a few weeks ago.”

Jack left it right there. Let Scott wade into unknown waters if he wanted to.

“Did you believe him?” Scott Tremaine asked on cross.

“I didn’t really think about it one way or another. James Vernon was certainly not an honest fellow. On the other hand, what was his motivation to lie?”

“In the seventeen years since this murder happened, did anybody ever ask you if James Vernon talked to you about this murder?”

“No. Not until Mr. Tobin did a few weeks ago.”

“No further questions, your honor.”

“Call your next witness, Mr. Tobin.”

As usual, the second day of trial moved a lot faster than the first. Anthony Webster took the stand. He reluctantly admitted that he’d interviewed James Vernon and that Vernon had told him he was at the murder scene with two other men, neither of whom was Henry.

“I really didn’t put much stock in what this guy had to say,” Webster told Jack. “He might have been a friend of Henry Wilson’s or something. As I recall, they both bought drugs from the victim.”

Jack was sure that last line had been recently rehearsed. Webster had no independent recollection when Jack had interviewed him.

“In any event, you told the prosecutor about that interview, correct?”

“That’s correct.”

“Did you take notes of that interview?”

“I did.”

Jack handed him a document. “I’ve handed you defendant’s exhibit number 10 and ask you to identify that document.”

“These are the notes of my interview with James Vernon.”

“The same notes that you provided to the prosecutor?”

“Yes.”

“No further questions.”

Scott Tremaine had no cross.

“Call your next witness,” the judge told Jack.

“I have no other witnesses, your honor.”

“Mr. Tremaine, do you have any rebuttal?”

“No, your honor.”

“Let’s break for lunch,” the judge announced. “I’ll hear closing arguments when you come back.”

“You handled Webster just right,” Wofford told Jack over lunch. “You kept it tight so he couldn’t give any opinions, although he managed to stick one in-that crap about Henry knowing Vernon. But it didn’t make sense anyway. Just because you know a guy doesn’t mean you’re going to confess to a murder to save him.”

“The only thing that mattered with Webster was that he interviewed Vernon and told the prosecutor about it. That made it a Brady case.”

“Let’s hope the judge sees it the same way we do.”

After lunch, Jack argued every point, even though he knew the only viable one left was the Brady disclosure. He tried to anticipate Scott Tremaine’s argument on that issue.

“Judge, in a moment Mr. Tremaine is going to tell you that the nondisclosure by the state’s attorney is irrelevant because Wofford Benton could have and should have learned of the Webster interview from other sources. I ask you not to accept that argument. It would, in effect, emasculate the Brady rule. It would say to prosecutors, you can still withhold information and get away with it. I do not believe that is the law.”

When Scott Tremaine rose to speak, he had no choice but to make the arguments Jack had already addressed: that the information about Anthony Webster’s interview should have been discovered by Wofford Benton or any other attorney representing Henry Wilson at least four years ago; and that it had been a known fact for fifteen years that David Hawke and his cousin were not prosecuted. He threw something else in as well-something Jack had been worried about throughout the entire case.

“Finally, Judge, in order for you to grant a new trial, you would have to determine that the outcome of the original trial would have been different. The only new evidence was what James Vernon told three people. If James Vernon was lying, then all that new evidence is meaningless. The evidence is undisputed that James Vernon told three different people two different stories. That’s pretty good evidence he was lying.”

Henry’s fate was now in the hands of Judge Fletcher.

“I’m going to prepare a detailed written order,” Judge Fletcher began, “but I am going to announce my decision at this time.” She proceeded to shoot down the ineffective-assistance-of-counsel argument and all the newly-discovered-evidence arguments before getting to the part Jack was really waiting for.

“With regard to the fact that David Hawke and his cousin were never prosecuted, I don’t believe that that is a Brady violation. Mr. Hawke testified at trial that no deal was struck beforehand. However implausible that testimony might be, there is simply no evidence to contradict it.”

Jack tensed. Henry’s options were running out. They now had one issue left-Anthony Webster’s interview.

“But I do believe,” Judge Fletcher continued, “that Mr. Webster’s interview of James Vernon was Brady material, because Mr. Vernon told Mr. Webster that Henry Wilson did not commit this crime. I believe such testimony would have affected the outcome of this trial, and I say that particularly because there was no physical evidence connecting Mr. Wilson to this murder. His conviction was based solely on the testimony of one man. Yes, Mr. Benton should have talked to Mr. Griffin, and if he had, he probably would have learned of the Webster interview. However, that is not the issue. In my opinion, a prosecutor who fails to disclose exculpatory evidence to the defense, whether intentionally or not, must suffer the consequences if that failure to disclose is prejudicial.

“As to the argument that Mr. Vernon may have been lying, that’s an issue that the jury should have been allowed to decide.” She paused, then looked directly at Henry.

“Therefore, I am granting the motion for new trial.”

Henry sat in his chair, stunned. The only spectator in the gallery was Wofford Benton, who gave an audible sigh of relief.

“Did she just say what I thought she said?” Henry asked Jack.

Jack put his hand on Henry’s shoulder. “Yes she did, Henry. You are getting a new trial.”

It wasn’t over yet, though. Scott Tremaine stood to address the court.

“Your honor, it is my duty to inform you that the state does not intend to appeal your decision. Nor does it intend to retry this case.”

It was Jack’s turn to be stunned. He wondered whether Henry had any idea of what was about to happen. The judge addressed Henry directly.

“Mr. Wilson, would you stand up?” Henry pushed himself out of his chair. His hands were visibly shaking. “In light of the pronouncement by the state, it is my duty to advise you that you are a free man. If you choose, you can be transported back to prison to pick up your belongings and clean out your cell, or I can enter an order right now releasing you and you can send for your things when you get settled. The choice is yours.”

Henry very calmly addressed the judge.

“I’d like to be released right now.”

The judge looked at the sheriff’s deputies. “Release this man,” she ordered.

It took a few minutes for all the shackles to be removed, during which time Henry’s hands continued to shake and tears started to run down his cheeks. Finally, he was freed, and he and Jack embraced.

“I never thought this day would come,” Henry told Jack through his tears. “And I will never forget what you did for me.”

Jack had to clear his throat to speak. He was in almost as bad an emotional state as Henry. “I had a lot of help, Henry-from the man standing in the back of this courtroom.” They looked to the back of the courtroom where Wofford Benton was standing, and Jack motioned him to come forward.

Wofford walked hesitantly to the defense counsel’s table. He and Henry had not spoken in seventeen years. Henry wrapped the small, pudgy man in his arms. Both men cried.

“Thank you, Wofford.”

“Thank you, Henry, and thank God for giving me this opportunity to redeem myself.”

Nobody had anticipated that Henry would be released that day. The only clothes he had were his prison clothes, and the state was not about to let him walk away with those. Wofford volunteered to buy him a new outfit, so Henry and Jack waited in the courtroom for another hour with the sheriff’s deputies while Wofford went shopping.

Jack took the opportunity to have a brief conversation with Scott Tremaine.

“That was a great cross-examination of Wofford,” Jack said, trying to soothe the sting of the judge’s ruling.

“Thanks, Jack. I want you to know I agreed to take the case before I reviewed the entire file,” Scott said. “After I reviewed it, I told the state’s attorney that I would argue the legal points but if the judge ruled against us, I wanted to be able to tell her that there would be no appeal and no retrial. Otherwise, I was off the case.”

“That answers a bunch of questions, Scott, thanks. I wish there were more prosecutors around like you.”

Wofford had done a good job picking out Henry’s new wardrobe, at least in one respect: everything fit. Henry felt a little awkward, but he looked good. Wofford had bought him a blue oxford shirt, a pair of gray slacks, black socks, and black loafers-size fourteen.

“You look like an Ivy Leaguer,” Jack told him when he emerged from the courthouse bathroom in his new ensemble. Henry gave him an embarrassed smile. He was a little nervous about everything.

The three of them went across the street to have a cup of coffee. “Where are you going to go?” Wofford asked when they were seated.

“He’s coming home with me,” Jack jumped in.

“No, Jack,” Henry objected. “You’ve got too much going on with Pat being sick and all.”

“Exactly, Henry. I’m going to be needing some help. We’ve got plenty of room, and Pat’s been looking forward to meeting you for quite some time.”

“I don’t know what to say.”

“Don’t say anything, Henry,” Wofford suggested. “Just go with it.”