The Mayor of Lexington Avenue

Twenty-six

It took another two days and nights but Jack finally got through almost every file. There were a few very thin ones in the last box that he didn’t get to but he was sure he had read all the important stuff. And on their evening runs he took Pat through what he had learned that day. It was good for both of them: Pat was learning about the case in depth, knowledge that she shared with Nancy the next morning at work; and Jack was organizing and summarizing his thoughts as he spoke.

“You were right that Rudy’s private attorney was a woman. Her name was Tracey James, apparently a real hotshot, based in Vero Beach.” They were on the stretch by the river. There were no boats around, just two pelicans swimming along together. A third dive-bombed into the water not far from them, scooped up a fish and flew away, ignored by the two swimmers. They must have already eaten, Jack thought, knowing how pelicans would fight over the tiniest of morsels. Or maybe they’re in love. .

Pat interrupted his daydream. “And she really did quit because they weren’t paying her enough?”

“Who?”

“Who do you think? This Tracey James woman you just told me about.”

“Oh yeah. I don’t know exactly. The files only say she dropped off the case before it went to trial, but if Mike told you that, I’d believe it. It’s not like I never heard of a lawyer only being in it for the money. Anyway, that’s how Rudy got stuck with the public defender. She did a good job, though, before she withdrew from the case. She took the investigating officer apart on the stand at a preliminary hearing. If that had happened at trial, I suspect Rudy would be walking the streets today.”

“Why didn’t it happen at trial?”

“Because the public defender was either a drunk or an idiot.”

“Isn’t that a basis for an appeal?”

“Yeah, but they already tried it and got nowhere. Anyway, at the preliminary hearing Ms. James raised a very interesting issue-whether Rudy, because of his intelligence deficit and his personality, could actually refuse to talk to the police. She also raised the issue of whether the police should have stopped interrogating him when his mother arrived at the police station.”

“I guess the judge didn’t buy it, huh?” It was getting a little deep and Pat was struggling to follow. Luckily, they were running five miles that night.

“Actually, he did. He didn’t grant the Motion to Suppress the evidence but he allowed them to bring up all the circumstances of the confession-how they kept Elena in the other room, how they had video and audio equipment available and never used it. And the confession itself wasn’t really a confession. This detective simply got Rudy to admit that if he was mad enough, he could kill somebody.”

“And you’re saying the public defender didn’t use any of that evidence?”

“None.”

The next night they did a seven-miler. Jack explained to her how the legal advocacy group handled the appeals. The first appeal was based on the denial of the Motion to Suppress. The Supreme Court of Florida denied that appeal, finding that Judge Wentwell’s solution-to allow the circumstances of the interrogation to be presented to the jury-was a proper legal ruling. The second appeal was based on the ineffectiveness of counsel, the public defender, who failed to put into evidence the circumstances of the interrogation.

“I think it was a pretty good appellate strategy,” Jack continued. “Let the court rule that the evidence could have and should have been presented, then follow it with a second appeal based on the fact that the public defender failed to present this crucial exculpatory evidence.”

“Well, how the hell did they lose the second appeal then?” The more she understood the details, the more outraged Pat became.

“You have to understand something: There’s more at stake here than meets the eye. First, appellate courts are reluctant to overturn trial courts-only about fifteen percent of cases are overturned on appeal. Second, the public defender is the trial lawyer in this case. He is a state employee just like the prosecutor. The court is going to be very reluctant to find the public defender ineffective in the performance of his duties. And third, the public likes the death penalty-they don’t like activist judges who interfere with a jury’s decision. The court is not immune to public opinion.”

Pat was livid at what Jack was telling her. They were running through the woods now in a totally secluded area. She started screaming. “This is about somebody’s life! Who cares about public opinion or politics or public defenders or any of that shit? This is about somebody’s life!”

The more excited Pat became, the calmer Jack got. “Do you remember that old psychology question? ‘If a tree falls in the woods and nobody is around, does it make a sound?’”

Pat had no idea where he was going. She was emotional and upset and Jack was going off on some stupid tangent. “Yeah. So what?” she replied tersely.

“Well, in this context the answer to that question is no. We know that murder trials, especially those based on circumstantial evidence-eyewitness accounts with no physical evidence, or some physical evidence but little else, as in this case-are fundamentally flawed. As high as thirty or forty percent of the defendants are innocent. Yet people are still being sentenced to death because nobody is listening. Nobody cares. Don’t take this personally, Pat, but you didn’t care until it was Rudy. Neither did I. Nobody cares. They’re putting children to death, retarded people. The state of Texas has executed one hundred and forty people in the last eight years-and they don’t even have a public defender system, which means people are being represented by court-appointed lawyers, some of whom are drunk or sleeping during trial, or whatever. You’re seeing firsthand how a case can get fucked up, but it happens every day in courtrooms all over this country. And it will continue to happen until people start listening and hearing.”

When their run was over, Pat went straight to her room. The thought of eating after that conversation made her want to puke.