Final Argument: A Legal Thriller Part 22

"If I remember," I said, "I'll be in touch."

I went to see a judge again and secured a court order. Then I bought two decks of playing cards and put them in my briefcase. The next day I drove down to Raiford. After I'd presented the court order to Raymond Wright, I waited an hour and a half on a bench in a hallway until I was escorted to the cell on death row. Today Darryl wore a Mickey Mouse T-shirt and bluejeans. He was shackled and chained, and the two correctional officers sat outside again, at the proper distance.

"I'm going to file a pet.i.tion for a retrial," I told him. "There may be a hearing. Will you cooperate with me?"

Darryl asked, "Where there gonna be a hearing?"

"Jacksonville. With a different judge than before."

"Do I get to go?"

"You have to go."

"What do I have to do?"

"Just keep quiet, listen to what goes on, don't try to strangle anybody. If it's overnight, you stay in the Duval County Jail."

"You say may be this hearing. You don't say going to be."

"That's right. No promises."

"You promise, I don't believe you nohow. What you want me to do for you?"

"I want you first of all to agree that I represent you. That I'm your lawyer, your attorney, your counselor."

"Lot of weird things happen in my life," Darryl said. "This got to be near the top of the list."

I gave him the two decks of playing cards.

Just after 5:00 P.M., from the deep shadow of the gun tower at the main gate, I stepped forward onto the gravel. Two men were waiting for me. I noticed how their boots shone in the slanting sunlight. They wore the pale blue-gray uniforms of Bradford County deputy sheriffs.

"Edward M. Jaffe, sir?"

"That's my name."

"We have a warrant for your arrest for aggravated battery."

"You have what?"

But I had heard him clearly, and he really didn't have to repeat it. "Look"-I tried to smile and be nonchalant-"I'm a lawyer, and I'm here to see a prisoner, a client. My home is down in Sarasota. I'm a former chief a.s.sistant state attorney from Jacksonville. I'll be glad to show you all the ID I've got and give you some numbers to call."

They read me my Miranda rights and asked me to place my hands behind my back in order to be handcuffed.

It would be tempting, but inaccurate, to say that I didn't believe this was happening to me. I understood the process all too well-I had been part of it many times. But I'd never played this role. I may have been in shock.

One of the deputies took my briefcase from me. Cold steel cuffs clicked into place on my wrists. I was stuffed into the caged back seat of a patrol car.

It didn't take me long to figure it out. Clive Crocker had filed a complaining affidavit that I had hit him and broken his nose. He had sworn that he hadn't provoked me, and undoubtedly he produced witnesses who filed other affidavits, including a doctor's statement.

But I recalled that the law stated that unless the injury was permanent or disfiguring, it was simple battery, a mere first-degree misdemeanor. Normally I would have been asked to stop off at the sheriff's office and tell my side of it. That would not have been a custodial interrogation.

"It's simple battery, not aggravated battery," I explained to the deputy sheriffs who were driving me to jail. "I'm a lawyer. I know what I'm talking about."

"You can explain it to Judge Burch.e.l.l."

We reached the sheriff's office in the courthouse on the main street of Starke. A red ribbon stretched across the courthouse door, proclaiming that WE ARE NEIGHBORS DRUG-FREE AND PROUD. But we didn't stop there for me to see the judge; we stopped so that one of the deputies could pick up his coffee thermos, which he'd left on a chair. From the courthouse we drove to the Bradford County Jail, a two-story red-brick building on a side street.

"I can't get out of this car," I said.

"Why not?"

"My knees are stuck."

"Try," the deputy with the thermos said.

It was important to stay calm. I asked if I could make a telephone call to a lawyer.

"After you've been booked," the deputy said.

Was that how the law worked? That didn't seem fair. There was a great deal, I realized, that lawyers didn't know.

In a small room downstairs I was booked, fingerprinted, and photographed. I was stripped of my belt, wrist.w.a.tch, shoelaces, wallet, and keys. A deputy placed me in a green-walled cell upstairs with a single frosted window that opened on a hallway. The deputy left. I heard the downstairs door clang. I heard a car engine start.

I had seen no one in the other cells. They weren't doing a very good business here. Starke, understandably, wasn't the crime capital of North Florida.

My cell had a toilet with no seat, two double-decker metal bunks, a fire extinguisher, and a black telephone on the wall. But when I picked up the telephone and put the receiver to my ear, there was no dial tone.

"This phone doesn't work!" I yelled.

But there was n.o.body there to hear me.

"G.o.ddammit!" I yelled. "What's going on? Who's here? Isn't there anybody here?"

It began to grow dark. I shook the bars, hoping to rattle them. But they were solid. They made no sound.

Chapter 20.

AT SIX-THIRTY in the evening another prisoner arrived, to be placed in the cell with me. With him came spaghetti and meatb.a.l.l.s and two slices of white bread on a yellow plastic tray, as well as a deputy I'd not seen before.

"This phone's broken," I said, as calmly as I could. "I haven't made a phone call yet to a lawyer. Can I do that from another cell?"

"Phone doesn't work after five o'clock," the deputy said.

"None of them?"

"You want c.o.ke or Sprite?"

"None of these telephones work after five o'clock in the afternoon? Is that what you're telling me? I don't believe it! How is that possible?"

"Mister," he said, "you don't look like a kid. You should know that anything is possible."

I knew it. Had always known it. And there was no sense whatever in my asking him why.

"When do they start working again?"

"Seven o'clock in the A.M."

"And when does the judge start work? When does he hold bail hearings at the courthouse?"

"Nine, ten o'clock. Depends."

I didn't dare ask on what.

The deputy escaped, and I sank down on the cot like a man who's been told he has a fatal disease. My fellow prisoner-a drunken white man in his thirties, unshaven and red-eyed-lit a cigarette from a new pack of Kents. He saw me staring at him.

"You want one?" he asked.

"Yes. Please."

By eleven o'clock the following morning, when I went before Judge Burch.e.l.l, I had smoked five of my cellmate's Kents plus two Marlboro Lights that I'd managed to b.u.m from the morning deputy. The mattress I'd been given was two inches thick and positioned above a steel slab. I slept in my underwear and socks, and at one point, in the blackest part of the night, had to p.i.s.s. But my sodden cellmate had been there before me, on unsteady feet, and had missed the bowl, so that after a moment or two I realized the uncomfortable feeling in my feet combined with the rising odor indicated that I stood in a pool of his stale urine. My cotton socks were quickly wet through. I had to yank them off, toss them in a far corner, and sleep without them. The cold reached up from the steel bed into my ankles and the bones of my feet and the joints of my toes, chilling them as if they rested on the polar icecap. I slept a total of two hours.

At a few minutes past seven I called collect to Kenny Buckram's office. He wasn't in his office yet, and the machine couldn't accept the charges. Then I called his home at Neptune Beach. Same problem. Kenny was probably out f.u.c.king. How dare a lawyer do that when his client needs him? By ten o'clock, when I'd been brought to the Bradford County Courthouse-unshaven, gritty-eyed, smelly, sockless, without having brushed my teeth-I was still alone.

"Your Honor," I said, looking up, as I had looked up many times before on behalf of other men (and, in the dark past, on behalf of the State of Florida), "I probably don't look it, but I'm an attorney, a former chief a.s.sistant state attorney in the Fourth Circuit. It hadn't been my plan to do this, but now I'm here representing myself. And so I'd like to begin by asking the court, why is this an aggravated battery charge? It's my understanding that unless the injury is permanent or disfiguring, it's simple battery. A misdemeanor, not a felony. I believe that Mr. Crocker has accused me of striking him and breaking his nose. For the sake of argument, even if that's true ..."

I tailed off, because Judge Burch.e.l.l, the county court judge, a cherubic southern man of perhaps sixty, no doubt as dangerous as a coral snake, was shaking his head at me as if I were a backward child.

"Mr. Jaffe," he said, "I think you may have a fool for a client. You're accused of striking a correctional officer at the prison. He's the equivalent of a police officer. That's always a felony. I can see by the look on your face that you've forgotten that. But do you remember now?"

"You're absolutely right, Judge. I forgot about that little detail."

Judge Burch.e.l.l surprised me. Or took pity on me as a man in a rumpled suit who didn't quite know his trade-a has-been, or maybe a never-was. The bond for a second-degree felony was $2,500. I had a hundred and twenty dollars in my wallet, no checkbook, and I was well aware that the State of Florida didn't accept American Express or even Visa.

But the judge said he'd be willing to let me go ROR-released on my own recognizance-and the young a.s.sistant state attorney, who had to live with Judge Burch.e.l.l in this courtroom five days a week, announced that he had no objection. The judge set a court date for the future.

"You'll show up, Mr. Jaffe?"

"Your Honor, I wouldn't miss it for the world."

"Goodbye, sir."

"Goodbye, Judge."

I took a taxi back to the prison parking lot to pick up my rental car. My hands were trembling, and the inside of my mouth felt as if I'd eaten glue. I knew that if I weren't a lawyer, and if I hadn't been wearing a suit, and if I had been black, I'd be back on that steel cot in the Bradford County Jail.

On the way to Jacksonville I stopped at a gas station and bought a pack of Benson & Hedges Lights.

The next morning I stared into the bathroom mirror of my hotel room. Whatever suntan I had was gone. My eyelids were red, and my eyes itched from the smoke that curled from the ashtray.

Just one after each meal, I told myself, to make life a little easier, to calm these rapidly aging nerves. Then just one after each cup of coffee during the day, or each vodka tonic in the evening. Maybe half a pack. And soon an extra one with coffee in the morning, because those were the best ones of the day, before your tongue turned numb and your throat to dry fire. And then the h.e.l.l with it, I'll smoke whenever I G.o.ddam want to smoke!

I understand you better than before, Alan. I'm an addict too.

Behind his desk at the public defender's office, Brian Hoad said to me, "There are procedural land mines, so watch out. Your main issue is the false testimony on the confession, but you've got to include every other possible argument you can think of. Because if Judge Fleming denies relief and you go up the ladder to the Florida Supreme Court, or file a writ of habeas with the feds in the Eleventh Circuit, you can't introduce any new issues."

"But what if something new comes up?"

"Tough t.i.tty. The b.a.s.t.a.r.ds want to be able to read it all in the record-that way, they can say no before you even get to Tallaha.s.see."

Without thinking, I reached for the pack of cigarettes in my shirt pocket and lit one with a plastic throwaway lighter. I scanned the desk for an ashtray, but there was none.

Hoad was looking at me curiously, rather as if I had produced a t.u.r.d from my pocket. "I don't remember you smoking."

"My life's changing," I said.

I didn't go down to Raiford again on that trip. Darryl had nothing to do with this. He was the man meant to die, not the advocate for his survival.

I tried to communicate with Toba now and then. How goes it? How's Alan? They were fine, she told me, with unremitting hostility. At the offices of Royal, Kelly, Wellmet, Jaffe & Miller I felt the same coolness. I was working on my cases but not putting in a lot of billing time. Harvey Royal wanted me in Washington. Barry Wellmet wanted me in Bradenton-the chief client among the milk distributors was counting on my experience. I told Barry, "The case will settle out."

"But they want you there, and they'll pay for it."

"Buy them lollipops," I said.

I was not a man who dreamed much-or rather, not a man who easily remembered his dreams. But at night now the dreams were thick with fear and often breathless with flight from unknown pursuers. Or I was being led somewhere by uniformed men who meant to do me harm. Worse, I felt I was always on the edge of the dream where a human head flamed heavenward, but in sleep I managed to keep that at bay. I was warding off evil. The head that threatened to burn was not Darryl Morgan's or even Eric Sweeting's. Some part of me feared that the head was my son's.

I submitted my motion to Judge Horace Fleming on the last day of March. Morgan's execution at Raiford was scheduled for Thursday, April 11.

On Monday, April 8, at noon, Fleming called me into chambers at the Duval County Courthouse. A little one-on-one game without the adversary lawyer on the scene-ex parte, it's called, and it's definitely not done by ninety-nine percent of decent judges. But old hands in the game never play by the rules we learned in law school, and sometimes not even by the canons.

The judge slouched in his chair, silver hair brushed back, gla.s.ses perched on the edge of his red, veined nose. He spoke slowly, and he looked as if he should have been in a rocking chair on a country porch, sipping a mint julep. In chambers he had taken off his robes and suit jacket and sat there with thumbs hooked in leather suspenders. Potted plants stood in all corners of the room, and greenery climbed all over the judge's diplomas. On the walls and on his desk were photographs of his grandchildren and great-grandchildren and various hunting dogs. There were some of the judge, younger, kneeling on various docks and pridefully inspecting large game fish. Also on the desk, surrounded by other piles of papers, were my pet.i.tions for a stay of execution and relief in Florida v. Morgan. The pages of the pet.i.tions, removed from their black spring binder, had been fanned out in the center of the desk like a giant deck of cards.

"I read it," Judge Fleming said.

"Good, Your Honor. I'm glad."

"Well?"

I waited a moment. "What do you mean, Judge?"

"This is all you got to say?" Judge Fleming asked. He ran a gnarled arthritic finger along the spread-out pile of papers, as if he were saying: Pick a card.

"Yes," I said, agonizing, wondering what I had left out.