The Lawyer's Lawyer (14 page)

T
he story that the police and the state attorney might have conspired to convict Thomas Felton was not only the lead story
on the local news at six, it was the
only
story. The state attorney had a spokesperson, the police department had a spokesperson, the sheriff’s office had a spokesperson—and
the message was the same: Thomas Felton was guilty as charged, and his lawyer was just blowing smoke because the execution
was near.

“They’re not saying very many flattering things about you, Jack,” Henry said. They were in the living room of the condo. Henry
had just arrived back from Miami. Jack had told him he might need him to run down some leads during the next two weeks. Jack
was on the floor doing some stretching exercises. He’d just come in from his run.

“I’m crushed,” Jack said. “I want so much to be liked by the media. After all, they are the truth seekers, aren’t they?”

“It all depends on how you define truth. If it’s synonymous with circus, then you’re right. They are the circus seekers. They’re
looking to make a circus out of this thing.”

“It’s what they do,” Jack replied.

“Well, you’d better be careful, my friend. They’re going to work people into a lather and somebody just might come looking
for you. Do you have that Sig Sauer with you this time?”

“I do.”

“Good. Keep it loaded and keep it handy.”

“You know, Henry, sometimes I think you’re a little too paranoid.”

“If I wasn’t so paranoid, one of us wouldn’t be here right now.” It was the second acknowledgment between them concerning
the sniper on Jack’s running route.

Just then there was a hard knock on the front door, followed by several harder knocks.

“I’ll get it,” Henry said.

Jack knew that Henry was probably armed, but he never saw the weapon. Henry checked the peephole to make sure some whack job
wasn’t out there with a gun in his hand. Then he opened the door.

Danni walked right in, not even waiting to be invited.

“Where is he, Henry? And don’t tell me he’s not here. I saw his car in the parking lot.” She was standing in the open area
between the living room and the kitchen right by the dining room table but she didn’t see Jack on the floor.

“And it’s great to see you, too, Danni,” Jack said, sitting up.

“That’s not funny. Jack, how could you do this? How could you represent a cold-blooded killer like Felton and at the same
time accuse Sam Jeffries of being a crooked cop?”

“I didn’t accuse Sam Jeffries of anything. I just told the judge he was the cop who testified about the murder weapon. That’s
it.”

“That’s it? Didn’t you tell the judge that the knife wasn’t the murder weapon?”

“I did.”

“So you merely inferred Sam Jeffries was a liar.”

“The judge made that inference, I didn’t.”

Jack was still sitting. He considered getting up but decided he was safer on the floor.
I don’t think she’ll kick me when I’m down.

“You still haven’t answered why you’re representing that piece of garbage.”

“Look, I know why you’re upset and it’s certainly understandable considering all that you went through.”

“You have no idea,” Danni said.

Henry was standing on the sidelines watching. He knew what was going on even if the two of them didn’t.

“You’re probably right but let me tell you why I’m here. You know I work for Exoneration. They were assigned this case. Ben
Chapman, the director, called me and Henry to Tallahassee and asked me if I’d represent Felton. I was very reluctant to do
so for a lot of reasons but I agreed to at least look at the file. Once I did and saw the injustice that had occurred, I couldn’t
let it go.”

“For what it’s worth, Danni, I agreed with him,” Henry added, seeing that Jack might need a lifeline.

“It’s not worth anything, Henry, and that’s not a personal statement aimed at you. It’s not worth anything because the man
is guilty and he needs to stay guilty until he’s dead.”

“I won’t say this in court because I don’t have to and because I don’t have the evidence to prove it, but from where I’m sitting,
that man, Thomas Felton, was set up,” Jack said.

“Jack, do you know what this community went through ten years ago? Do you have any idea what Sam Jeffries went through personally?
What Hannah and I went through? You can’t unleash this vicious killer on this community again. You just can’t do it.”

“Danni, it’s not about me. I’m just a lawyer. The law gives Mr. Felton the right to counsel when he’s about to be put to death.
If it weren’t me, it would be somebody else. And I hate to say this because I do understand what this community has been through,
certainly not as much as those who lived here, but I didn’t plant a knife in the bushes and claim it was the murder weapon.”

“You’re not just some lawyer, Jack, and you know it. And don’t try and hide behind the law. You have a choice. I’m asking
you—don’t take this case.”

“It’s too late, Danni. It really doesn’t matter who is representing Felton at this point. The cat is out of the bag. This
judge or an appellate court is going to have to deal with the facts whether I’m presenting them or somebody else is.

“Part of me wants to do what you ask simply because you are the person making the request, but I can’t.”

“You mean you won’t.”

“If I had known how personal this situation was to you and Hannah, I probably would not have even looked into the matter.
However, I took on this responsibility. I can’t shrink from it at this late stage.”

Danni stood there ramrod straight in silence, her arms locked across her chest for what seemed like an eternity. Jack wanted
to bridge the gulf between them but he didn’t know how.

“Damn you, Jack,” she finally said as she headed for the door. “And Judge Holbrook is not going to give you a new trial. You
can bank on that.”

Then she was gone.

D
anni was right about Judge Holbrook. Even though Jack was successful in getting all his evidence in at the evidentiary hearing,
including the coroner’s reports, the judge denied his motion for a new trial.

Mitch Jurgensen had someone from the coroner’s office, a doctor named Jessel, testify that many of the reports ten years ago
had typographical errors in them because the equipment was out of date and the staff was overworked.

Jessel’s testimony gave the judge something to hang his hat on. He also threw in the fact that Jack’s evidence was not
newly discovered evidence
since the public defender who had represented Felton at trial could have figured out exactly what Jack had figured out simply
by reading the autopsy report.

Jack did have the opportunity to meet Sam Jeffries again since he subpoenaed him to the hearing. The two men had not spoken
since the Julian Reardon incident.

“I testified that the bowie knife I found was the murder weapon because I believed it was the murder weapon,” Sam told Jack
under oath in Judge Holbrook’s courtroom.

“Weren’t you aware that the entry wounds on both victims were only one-quarter inch wide?”

“No. I was aware the victims were both killed because they had been stabbed. I found this bowie knife right outside the victims’
apartment complex. We later tied the prints found on that knife to your client. This bowie knife or one identical to it was
used in a prior attack by the serial killer. That was the basis for my testimony.”

“Did you ever speak to the coroner?”

“No.”

“Did you attend the autopsy?”

“No.”

“Do you know anybody who did?”

“No.”

Jack had half expected Judge Holbrook to deny his motion even though the evidence was overwhelmingly in his client’s favor,
so he had prepared in advance an appeal brief to file with the Florida Supreme Court. First, however, he needed his client’s
approval.

Thomas Felton was remarkably composed when Jack gave him the news. He now had less than four weeks to live.

“The evidence was all right there for the judge. I got all the evidence we needed on the record,” Jack told him. “The only
thing we can do is appeal.”

“It’s hard for me to believe that the police planted a bowie knife in the woods when the murder weapon was a stiletto and
the judge let them get away with it when he had all this evidence in front of him,” Felton said.

“I hear you, Tom, but it’s never that simple. The judge lives in this community and he knows the murders stopped after you
were arrested. He also knows that he wouldn’t win an election for dog catcher if he set you free.”

“So I’m to die so that Judge Holbrook can continue his career as a judge. Something’s wrong with this system.”

“Something is wrong with every system. People are fallible, so systems are fallible. Listen, we’ve got to make a decision
on this appeal. Time is running short.”

“File it, Jack. It’s my only chance. I do want to live and be free again. And thank you for all you’ve done.”

T
wo weeks later Jack was standing in the well of the Florida Supreme Court. The well was the area where the lawyers stood to
face the court, seven judges who were on an elevated dais above them. Behind them was the gallery where the dark mahogany
benches were gradually elevated like stadium bleachers though not as steep. The well was the lowest point in the courtroom—thus
the name.

It was not a typical courtroom. It was the highest appellate court in the state of Florida. Such courtrooms were designed
specifically for appellate arguments with an elevated dais for the judges, tables for the lawyers directly below the judges,
a podium between the tables where the lawyers stood to face the court and present their arguments, and a huge gallery to accommodate
hundreds of interested observers who almost never showed up. Appellate arguments were boring although today there were about
forty people in the gallery, most of them reporters.

Jack had been to the court many times and in recent years it had all been on death row cases. He was not intimidated by the
pomp and circumstance. The bailiff came out first. “All rise!” he said in a wonderful, deep voice. “Hear ye, hear ye, hear
ye: The Supreme Court of the State of Florida is now in session. All those who have grievances before this court may now come
forth and be heard.”

Everyone in the courtroom stood up and the seven judges paraded out in their black robes and sat on their individual seats
above the lawyers. Jack hardly noticed. He was there to save a man’s life. In fact, he hoped the judges were aggressive and
inundated him with a barrage of questions. “If they don’t ask questions, they’re not interested,” he’d told Henry before he
left for Tallahassee.

Nor was he affected by the bevy of reporters and cameras set up outside the courtroom. This case had gained national and international
attention after the disclosure that the coroner and the prosecutor might have hidden evidence. It was a serious matter and
worthy of the attention, but Jack knew that the reporters were leaning very heavily on the drama side—the serial killer, the
powers of the state lined up against him, and the possibility of future mayhem. Now that was news!

Jack had walked right by the cameras.

“Mr. Tobin, do you have a moment—”

“No comment.”

“Mr. Tobin—”

“No comment.”

He’d never raised his voice. He’d never looked toward the camera. He’d simply kept moving.

Inside the courtroom, his demeanor was quite different. He was more than eager to respond to the justices’ questions.

“Do you know what you’re saying in here, Mr. Tobin? You’re saying that the police and the prosecutor were all involved in
one big conspiracy,” Chief Justice Robert Walker said. It was the same question/statement Judge Holbrook had posed weeks before.

“No, Your Honor, I’m saying that the weapon found outside the premises where the victims resided and were murdered could not
be the murder weapon based on the findings contained in the coroner’s reports.”

Jack knew they might need to connect those dots eventually. The standard on appeal of a death penalty case was
newly discovered evidence
and he could not meet that standard. The public defender had the coroner’s reports and should have seen the discrepancy between
the reports and the physical evidence. His only fallback then would be prosecutorial misconduct under
Brady v. Maryland.
Still, he didn’t want to go there yet. He wanted the justices to lead him there. It was a dangerous tactic and Thomas Felton’s
life hung in the balance.

“It’s inconceivable to me that the police, the coroner, and the prosecuting attorney did not see the disconnect between the
murder weapon and the coroner’s findings,” Justice Juan Escarrez opined. He was a conservative and a key vote.

“I agree with you, Your Honor, at least as to the coroner and the prosecutor. The police officer, Sam Jeffries, who was actually
the head of the task force, testified that he believed the bowie knife he found was the murder weapon. He was not at the autopsy
and he never read the autopsy report. I have no evidence to quarrel with that testimony. The coroner, however, had to know
about the discrepancy between the physical evidence and his findings. And I believe it is a reasonable inference that the
prosecuting attorney knew since she never asked the coroner at trial if the bowie knife was the murder weapon, and she positioned
his testimony in such a way that he was long gone when Captain Jeffries opined that it was.”

“So you believe this is a
Brady v. Maryland
situation?” Justice Ray Blackwell, the newest member of the court, asked.

“Yes, sir.
Brady
held that if a prosecutor withholds material evidence, whether innocently or not, that is grounds for a new trial.”

“But the evidence was not withheld. It was right there for the public defender to see. He had the coroner’s reports and he
had access to the murder weapon just as you did, Mr. Tobin.”

“That’s true, Your Honor, but he did not appreciate the discrepancy in the evidence. Should a man be put to death because
the state attorney and the coroner succeeded in putting one over on the public defender? I don’t think that’s what
Brady
stands for.”

For his part, Mitch Jurgensen kept hammering away on the fact that the report could have been mistaken.

“It was the coroner’s
testimony
combined with Captain Jeffries’s testimony along with the other evidence in the case that caused the jury to convict. This
court should not go behind that decision.”

“Even when we know this was not the murder weapon?” Justice Margaret Arquist, the only female member of the court, asked.

“You don’t know that, Your Honor. The coroner isn’t here and his reports were never evidence in the original case.”

“The record is clear that the coroner testified from his reports, not from his memory, and it’s inconceivable, at least to
me, that the coroner would make such a blatant error in the reports of
both
victims. That evidence combined with the way the prosecutor presented her case, as Mr. Tobin pointed out, creates a pretty
compelling case for his client, doesn’t it?”

“I respectfully disagree, Your Honor.” It was all Mitch Jurgensen could say.

Justice Arquist wasn’t through, though. “Mr. Tobin, I still have some concerns because of the fingerprints on the bowie knife
and the evidence that this knife or one almost exactly like it was involved in a previous attempted murder. We are dealing
with a serial killer situation and we have to be very careful.”

“Yes, Your Honor. I have the same concerns myself although my client was never charged with being a serial killer. Even if
there is a basis here for a new trial, shouldn’t we look at the bigger picture even if the law doesn’t provide for that? The
answer I come up with is yes and no. Yes, we should be particularly careful in evaluating the evidence but no, we should not
apply a different standard. Should the presumption of innocence be any different when a man is being accused of a crime which
may
be a part of a series of crimes? Should he be entitled to less due process? On the other side of the dilemma are these questions:
If the evidence at trial was contrived, what about the evidence found at the scene? If the bowie knife wasn’t the murder weapon,
is it reasonable to believe that the killer left it there? Or is it more reasonable to believe that the police, and it could
be just one person, put the knife there with Felton’s fingerprints on it since they already had surreptitiously obtained his
prints on a previous visit to his apartment? Those are questions neither I nor this court can or must answer but in considering
the bigger picture of the seriousness of this particular case, perhaps they should be part of the analysis.”

It was a highly unusual oral argument. They were way outside the evidence in the case. However, Jack knew that the judges
had to wrestle with that bigger picture just as he did.

“While we are exploring these so-called
other issues
that are not part of the record, Mr. Tobin,” Judge Blackwell continued, “how do you deal with the fact that the murders stopped
after your client was arrested?”

“There are two possibilities, Your Honor. Either my client was guilty or whoever committed the murders decided it was a good
time to move on. I can’t choose which of those two options is correct. I’m just a lawyer so I go back to what I know. The
evidence in this case does not support a finding of guilt for the crime charged. The prosecutor knew that. The coroner knew
that. The prosecutor chose to hide that fact from the jury and the unwitting public defender. I took the case for those reasons.
I believe my client should receive a new trial for those reasons. The law is the law.”