The Lawyer's Lawyer (29 page)

T
om didn’t talk to Jack before he was taken back to his jail cell. Instead, he went looking for Henry.

“I need you to come back with me to the jail. We’ve got to talk some sense into Jack.”

Up to that point, Henry had not been involved much in the trial strategy and he had not been in on Jack and Tom’s conversations
during the trial, so he didn’t know with any specificity what Tom was talking about.

“Sure, I’ll go with you,” he said.

Jack was in his usual position when they arrived, stretched out on the bed in his yellow jumpsuit with his back propped up
against the wall and his hands behind his head. Tom sat across from him on an empty cot. Henry, not particularly fond of jail
cells, leaned against the far wall after Jack gave him a big hug. They had not seen each other in a few days.

“So why did you ask to approach the judge there at the end?” Jack asked Tom.

“I wanted him to adjourn early so I could come back here and talk to you about the cross-examination of Danni Jansen.”

“I thought I was clear. I don’t want you to cross-examine her. Look, I know that last part was a surprise to you. I hadn’t
thought about the night I visited her and so I didn’t tell you about it. I didn’t expect her to testify about it either. I
was almost as surprised as you. But she told you the truth today. All you had to do was look at her and you could see that
she did not want to be there. She probably gave Sam the information in a conversation and then they subpoenaed her to court.
I don’t want you to cross-examine her. Period.”

“Do you realize she just cemented the State’s case against you with that testimony about you coming out of the woods? If we
don’t attack her credibility with every weapon we have, this case may be all over. I know you like this woman, Jack, but she’s
not your friend.”

“It’s not about me liking her, Tom. I trust her. I trust her to tell the truth.”

“Henry, will you talk some sense into him?”

Henry looked at Jack, and the two men just smiled.

Tom thought they were crazy. Jack was on trial for his life, and they were smiling like two kids who had a big secret between
them.

“What’s going on here? Do you two know something I don’t?”

“You’re a fisherman, Tom,” Jack said. “You’ve told me about your lake house and how you like to go out on your boat alone
and fish.”

“Yeah, so?”

“Well, Henry and I fish together, and we talk constantly. One of the things we talk about is how people always see others
so clearly and never see themselves.”

“I’m not following you at all.”

“Jack trusted me,” Henry said. “He believed in me when nobody else did. Both he and I trust Danni Jansen to tell the truth.”

“I’m lost. How the hell does that have anything to do with your fishing conversations?”

“You,” Henry continued. “You think you see us clearly but you don’t because you don’t see yourself.”

“I can’t believe I’m sitting in this jail cell and asking this question, but I guess I’ll go along with you for shits and
giggles—how do I not see myself?”

“You’re just like us,” Jack said. “You believe in your people when nobody else does. You believed in Rufus Porter—that black
man you represented who was accused of rape—when nobody else believed in him.”

“There’s a big difference between my believing in Rufus Porter and the two of you believing in this Danni woman.”

“And just what is that big difference, Tom?” Jack asked.

“Rufus and Henry were telling the truth. Danni Jansen isn’t. Everything she said under oath today might be technically true,
but deep down in her core, whether she comes to grips with it or not, she knows that Sam Jeffries has set you up. She may
be lying to herself about it, but it’s still a lie.”

They were silent for a minute or two as Tom’s words sank in. Then Henry spoke.

“Tom’s right, Jack. She was with you that day. She has to at least suspect that Jeffries set you up. She also has to know
something about what happened ten years ago when that bowie knife was planted. Jeffries is lying about that, too.”

“Look,” Jack said. “She worked with Sam Jeffries for twenty years. She went through the murder of his wife and then his daughter
with him. She has to believe in him to a certain extent. She may have had some doubt but not enough to refuse to testify as
to what she knows. I’m not going after her.”

“It may cost you your life, Jack,” Tom said.

“I’ll take my chances.”

“Don’t be foolish, Jack.”

“It may look that way to you, Tom, but this is who I am. I can’t go after somebody I believe in.”

Tom stood up to leave.

“I’m through trying to talk sense into you. That woman abandoned you when she took that stand today. She knew exactly what
she was doing. She may not have liked it, but she did it.”

T
om Wylie felt terrible as he pulled into his parking space on Friday morning. An overcast sky with a light rain and thunderclouds
in the distance would have been perfect weather to reflect his mood. Instead, he got bright sunshine, which made him even
madder.
Why the hell does the sun have to shine every day around here? It should be dark and dreary at least two days a week. Disney
World is a fantasy.

He was mad at himself more than at Jack. He was frustrated with Jack but Jack was a good man, a man with principles.
Danni Jansen must be one hell of a woman
, he thought,
for both Jack and Henry to stand up for her like that.
He disagreed with them, but he didn’t know the woman. He should have given their opinions more respect.
Hell, I can’t afford to be nice and polite. I’ve got a guy on trial for his life.

And that was the crux of the matter. He wasn’t angry at Jack. He respected Jack’s opinion. But he was so frustrated. This
trial could be won if Jack would let him be just a little more aggressive. They could soothe people’s feelings down the road—although
he knew that wasn’t true. You assail someone’s character unjustly, you assail your own character. He wished some politicians
could understand that.

No, Jack was doing the right thing and he was willing to accept the consequences of his actions. It was just so damn painful
to watch this good man go down the tubes in the name of justice.

This was the last day of testimony by Tom’s calculation. Closings would be on Monday and then the jury would get the case.
There was a mob in front of the courthouse as he approached. They were jockeying for position in line. Everybody knew Jack
was going to take the stand today. As he got closer, he could see the reporters start to run toward him like starving mice,
desperate for that one unique morsel of information they could feed off of and disseminate to the rest of the world.

Tom put his hand up as he continued to move quickly toward his destination.

“I’m sorry. I’m late. I’ve got nothing to say.”

One reporter, a young woman with short blond hair, got in his face. “A lot of people are saying Jack can’t turn this around.
It’s already too late.”

It was a teaser, a line designed to get Tom’s blood pumping so he’d fire something back without thinking. She had probably
worked on that line all night. This wasn’t Tom’s first dance though. He knew the game. Still, he felt the need to come to
Jack’s defense—to say something for him that he hadn’t been able to say to him the night before. So he stopped, and when he
did, the reporters fought to get their microphones in front of his face, and the crowd closed in around him.

“Jack Tobin believes in our justice system, more than you can ever imagine. And I am proud to be representing him. He will
tell his truth today. It’s never too late when you have truth on your side. I hope you will all remember that. There is no
calculated hide-and-seek game by the defendant in this trial. Jack will tell his side. He will be subjected to cross-examination,
and the chips will fall where they may. Now, if you’ll excuse me, I need to get inside.”

Tom put his head down and pushed his way through the crowd.

There were no surprises with the preliminary witnesses that morning. Tom started with Ben Chapman, the executive director
of Exoneration. He took some time going over Chapman’s very impressive credentials as well as the work of the organization.
In Tom’s mind, Chapman was actually there for two reasons.

“What is the purpose or the mission of Exoneration, Mr. Chapman?”

“Well, we have many purposes. First and foremost, we provide competent experienced counsel for individuals on death row. Some
of them have never had that before. Second, but equally important, we try to shed light on the inadequacies of the criminal
justice system with the ultimate goal of eliminating the death penalty as a punishment. We have cases that deal with inadequate
defense counsel, improper identification, overzealous prosecutors—”

Robert Merton got the picture when he heard those words. “Objection, Your Honor. Mr. Wylie is trying to precondition the jury
with this testimony.”

The judge thought about it for a moment. “Sustained. Mr. Wylie, I believe the jury understands that Exoneration represents
death row inmates. Let’s move on.”

“Yes, Your Honor.”

He asked Chapman, “Did Jack Tobin work for your organization?”

“Not in a technical sense. Jack wasn’t our employee and we didn’t pay him a salary. He was an attorney who volunteered with
us to represent death row inmates. He’s been with us for about five years or so and he is an excellent attorney, the best
we have.”

“I move to strike that last statement, Your Honor,” Merton said without standing up.

“Motion granted.” The judge looked at the jurors. “Members of the jury, I’m directing you not to consider those statements
by the witness about Mr. Tobin’s abilities as an attorney.” He then addressed Tom. “Mr. Wylie, I want you to control your
witness a little better than that.”

“Yes, Your Honor.”

“And Mr. Chapman, I’m instructing you to answer the question and only the question asked. There will be no more editorializing,
do you understand?”

“Yes, Your Honor.”

“Let’s proceed.”

Tom only had a few more questions to ask Ben Chapman.

“Is it accurate that Jack Tobin has represented a number of people on death row?”

“Yes. I’d say at least ten.”

“Have you ever known him to profit in any way from representing these people?”

“No. Never.”

“He donated his time for free?”

“Yes.”

“I have no further questions.”

“Cross-examination, Counselor?”

Robert Merton stood up and walked to the podium with an air of confidence. Merton had made his reputation as a prosecutor
primarily because of his ability to effectively cross-examine witnesses. Sometimes he tore them apart, making them look like
liars—snakes who slithered off the stand when he was finally through with them. Sometimes he used them to support his own
case. It all depended on the situation.

“I think the question you were just asked, Mr. Chapman, was
have you ever known
Jack Tobin to profit from representing death row inmates. Is that accurate?”

“Yes, that’s correct.”

“Which leaves open the possibility that Mr. Tobin could have profited from this representation and you might not have known
about it. Is that correct?”

“I doubt that very much. I have known—”

Merton cut him off. “You doubt it very much. I’m going to hand you State’s Exhibits numbers five and six. Have you seen these
before?”

Chapman took a few moments to review the documents.

“No, I haven’t.”

“So you didn’t know about them?”

“No.”

“Exhibit number five is a document called a claims bill. Are you familiar with a claims bill?”

“I’m not familiar with this one but I am familiar with a claims bill.”

“And what is a claims bill in the context of what you do?”

“If an individual on death row is exonerated, we almost always file a claims bill with the Florida legislature asking that
body to compensate the individual for the time he or she was wrongfully incarcerated.”

“And Exhibit number six. Do you recognize that document?”

“I have never seen this document but I recognize it as a contingency fee agreement.”

“Can you see that this document is a contingency fee agreement between Jack Tobin and Thomas Felton?”

“Yes.”

“Did you know that Jack Tobin prepared and signed a contingency fee agreement with Thomas Felton?”

“No, I did not.”

“Did you know that Jack Tobin prepared a claims bill asking for twenty million dollars from the Florida legislature and then
prepared a contingency fee agreement giving him, personally, a third of whatever Felton recovered?”

“No, I did not.”

“Now, your organization has bylaws and rules and regulations that you and the attorneys who work with your organization must
abide by. Is that correct?”

“Yes.”

“Is this contingency fee agreement a violation of your bylaws and your rules and regulations?”

“Yes.”

“Are the lawyers who work for you required to know about your rules and regulations?”

“Yes. They each sign a document saying they have read the by-laws of the corporation and the rules and regulations.”

“And the term ‘they’—would that include Mr. Tobin?”

“Yes.”

“I have no further questions, Your Honor.”

Jack leaned over and whispered in Tom’s ear when Merton was finished. “What were we thinking?”

Tom didn’t respond. The jury was watching and the judge was already addressing him.

“Redirect, Mr. Wylie?”

Tom didn’t want to ask Ben Chapman another question but Robert Merton had so thoroughly used Chapman to his own advantage
that he had to give it a shot.

“Mr. Chapman, what is your success rate in representing people on death row?”

“Oh, it’s very low. Less than five percent.”

“And is it accurate that it takes an awful lot of work to undertake a death row appeal?”

“The amount of work doing one of these appeals is incredible, not to mention the time constraints, the stress.”

“It seems like counsel’s theory in his questions to you was that Jack Tobin was running some kind of business where he would
represent a number of these people, have the ones who win sign contingency fee agreements, and then make money off those success
stories. Knowing what you know about the success rate and the work involved, does that theory have any rational basis in fact—I
mean, does that make sense?”

Merton was standing before Tom had finished his question. “Objection, Your Honor. Speculation.”

“Sustained.”

“Your Honor, may I be heard?”

Judge Holbrook didn’t like Tom’s continuously questioning his authority, but he knew Tom had a right to make his record. His
anger made him change his own rule about speaking objections.

“You may be heard, Counselor. Go ahead.”

Tom was surprised that the judge was not calling him to sidebar. Perhaps the judge was trying to embarrass him. Whatever the
judge’s motive, Tom was happy to make his argument in front of the jury.

“Your Honor, Mr. Merton raised this issue with this witness on cross-examination. And I anticipate that he is going to try
and tell this jury on closing, based on this witness testimony, that Jack Tobin was running some kind of business with these
death row appeals. I think I am entitled to ask this witness if that argument has merit.”

“Anything else?”

“No, Your Honor.”

“Mr. Merton?”

“I don’t intend to make that argument, Your Honor. I intend to use this witness’s testimony to argue to this jury that Jack
Tobin was clearly going to make money, possibly seven million dollars, on his successful representation of Thomas Felton and
that he was doing it behind the back of the organization for which he was working. The loss of that profit was his motive
for killing Felton.”

“Thank you, Counselor. The objection is sustained. Any further questions, Mr. Wylie?”

Tom wanted to stick a knife in his eye, or his hand, or somewhere. Merton was killing him.

“No, Your Honor.”

“Call your next witness.”

The next witness was Henry Wilson. Tom kept it short and sweet. He didn’t know what Merton was going to do with Henry.

“Mr. Wilson, you had been on death row for seventeen years when you met Jack Tobin, is that correct?”

“That’s correct.”

“And what did Mr. Tobin do for you?”

“He represented me. He went through my file with a fine-tooth comb and found that prosecutors had hidden evidence. I was exonerated—they
set me free.”

“And how long ago was that?”

“Five years ago.”

“Now when you were set free, did Mr. Tobin file a claims bill with the legislature on your behalf?”

“Yes.”

“And did you receive any money?”

“Yes. Three million dollars.”

“Did you give any of that money to Mr. Tobin?”

“No.”

“Did he ask you for any money?”

“No.”

“Did he ever ask you to sign an agreement to give him money?”

“No.”

“I have no further questions.”

“Cross-examination, Mr. Merton?” the judge asked.

“Yes, Your Honor.” Merton walked right up to where Henry was sitting but he didn’t look at him. He looked at the jury so that
each juror looking at Merton would see Henry in the background, putting the focus entirely on Merton.

“Now before you went to prison for this seventeen years and before Mr. Tobin got you out, Mr. Wilson, is it fair to say you
were what one would commonly call a career criminal?”

Tom was on his feet. “Objection. Improper impeachment.”

Merton knew the proper method. You ask a witness if he or she has ever been convicted of a felony and how many times and if
they answered truthfully, the inquiry was over. Merton, however, didn’t care about the answer. It was all about the question—the
accusation.

“Sustained,” Judge Holbrook bellowed. After a week, the jurors were as used to the judge’s and the attorneys’ loud voices
as they were to the creaky floors and the fans and the air conditioners. They had adjusted.

Merton continued. “And after you got out of prison, is it true that you went to work with Mr. Tobin?”

“I volunteered to help out as an investigator for Exoneration on death penalty cases, if that’s what you mean.”

“Not on any death penalty cases, just the cases Jack Tobin was working on, isn’t that right?”

“Yes.”

“You became his right-hand man?”

“Yes.”

“You were a team?”

“Yes.”

“Mr. Tobin is your best friend, isn’t he?”

“Yes.”

“You would do anything for him, wouldn’t you?”

Henry was about to say, “I wouldn’t lie for him,” but he knew that wasn’t true. He’d kill for Jack. He already had.

“Yes.”