Clifford Irving's Legal Novels - 02 - FINAL ARGUMENT - a Legal Thriller (30 page)

The clock on the wall in chambers said 9:20. The other lawyers found chairs, and the young assistant attorney general from Tallahassee hoisted himself up on one of the file cabinets. The slender, bespectacled assistant state attorney from Beldon’s staff was named John Whatley, and next to him sat Muriel Suarez.

She smiled cordially at me. I went straight over to her and asked what she was doing there.

Whatley had just come out of FSU law school, she explained, so she was there to make sure he didn’t make any mistakes.

“But you and I have discussed this case,” I said. “I can’t remember offhand what I’ve told you, but whatever it was, it was in confidence.”

“Beldon seems to think that’s irrelevant.”

“He assigned you?”

“What do you think, I volunteered?”

I understood. Tit for tat. I had been privy to the state’s thinking twelve years ago. Muriel Suarez had been privy to my thinking just days ago. How could I complain? Beldon, you sly dog.

Judge Fleming unknotted his tie, turned to me, and said, “I think we can save a bunch of time by discussing this informally right here in chambers. Mr. Elroy, your witness, former cellmate of the condemned, is not present in this court. From what I gather, he doesn’t have the pulse of a pitchfork. He’s a lightning bug in the lemonade bowl. That’s what you were trying to tell me outside?”

“Yes, he’s shaken hands with eternity,” I said. I heard my voice as from a distance, enunciating carefully.

“When exactly did this happen?” the judge asked.

“Last night, at about ten o’clock. Stabbed to death at the Jacksonville Kennel Club.”

“As ye sow.” The judge turned to Whatley and Muriel Suarez. “What sayeth the State of Florida besides ‘amen’?”

Whatley said, “Your Honor, the entire thrust of the petitioner’s position is the proposed testimony of Mr. Elroy as to alleged perjury concerning Mr. Morgan’s confession in Duval County Jail in 1979. Nothing else in the appellant’s petition is new: this court and other courts have heard all the other arguments before. Much as the state regrets Mr. Elroy’s passing, our contention is that the deceased witness’s affidavit is not sufficient to establish perjury. The state has no way of cross-examining an affidavit in order to test veracity and credibility.”

“I understood him,” Judge Fleming said, looking at me. “How about you?”

“There are precedents for accepting the sworn affidavit of a dead man,” I said. “Considering when this thing happened, I haven’t got case law ready yet. But if you give me time, Your Honor, I’ll produce it.”

That was pure bluff. I had no idea if any existed, although it seemed likely.

“There is far more precedent for rejecting an affidavit without a live and responsive body attached to it,” Whatley said.

Judge Fleming nodded. “You’re right, Mr. Assistant State Attorney. And you’re right too, Mr. Defense Counsel. But you”—he pointed a gnarled and trembling finger at Whatley—”are righter than you are, sir.” And he pointed the same frail digit at me.

“Your Honor—” I began.

“No, no, no,” the judge said. “I don’t want to hear argument. I know the issues. There’s a man on death row. Man wants to live, state wants to kill him. Man’s lawyer wants to string things out just as long as he can and keep his client sucking air. Judge wants to get on with the business of his court. Can’t make everybody happy. You got any other live witnesses, Mr. Jaffe?”

“Not today, Judge. But I hope to find some.”

“You pulling my leg?”

“No, sir.”

The judge thought for a while.

“I’m going to allow this affidavit, but I’m going to find that this recantation would not have affected the outcome of the trial. What I’m saying is, Mr. Jaffe, you lose. I’m going to deny your petition for relief. I’m not going to hear argument over a witness who can’t do more than pass gas and talk to us from the great beyond. Bad luck is what it is. But that’s what a lot of things are.”

“Judge-”

“Mr. Jaffe”—the judge leaned forward in his chair, his pale eyes watering—”it was nice to meet you again. Give my regards to Caroline.”

“Caroline?”

“Isn’t she still your wife?”

“No, sir. Never was.”

“Must have you mixed up with someone else.”

I left Fleming’s chambers and walked out into the corridor to tell Darryl Morgan that the state still wanted him to die.

Chapter 22

MY NECK ACHED. My stomach complained, and my joints were sore. I thought I might have eaten a poisoned cheeseburger at the bar on Main Street where I often grabbed a quick lunch. The family doctor diagnosed the symptoms as a new strain of flu, but none of the prescribed medications helped. A blood test showed no evidence of a known ailment.

My fingers grew sluggish when I tried to write briefs or even letters. Ruby came to me one day, distressed, and said, “It’s happened, Ted. I can’t read your handwriting.”

I sweated in air-conditioned rooms and had to keep extra shirts in a closet at the office. My hands shook, and coffee splattered on two new ties and my pin-striped gray suit. I gave up coffee, thinking that it might be the cause of my continuing upset stomach; it was certainly ruining my wardrobe. I cut myself almost every time I shaved. The final indignity was a cyst that appeared on my scrotum. I went to a urologist, who said, “It’s not dangerous, and it shouldn’t grow bigger. Lead a normal life.”

The soles of my feet began to itch. During one Monday morning partners’ meeting I had to take off my shoes and socks in order to rip away with my fingernails at the tender flesh. The pink soles turned red and began to bleed.

My partners stared at me. I didn’t blame them. This was the time that both they and Toba believed I was going crazy.

I had taken my chief witness to the dog track and allowed him to be murdered by a Miami drug lord. As a result, Darryl Morgan had received another death warrant from the governor of Florida. Unless some other court granted a stay, he would be led from Q block and electrocuted in the death chamber at Raiford on August 2, 1991, at seven o’clock in the morning.

Desperate, I filed papers (including the affidavit of a dead witness) with the state Supreme Court in Tallahassee. I had no hope that the court would grant a retrial, but they might providentially grant the stay pending their decision. Indeed, a week later, the court granted another stay for a period of sixty days. I was invited to appear before them on August 27 for oral argument.

“Go for it, Ted!” I yelled, encouraging myself.

I was in the office. Ruby looked in at me. I shrugged, and she withdrew her head without saying a word.

I called Brian Hoad at the public defender’s office in Jacksonville and told him the good news. I was curious as to why the court had scheduled oral argument so early. “I thought they delayed for months, sometimes years. What’s the big rush?”

“They usually do delay,” Hoad explained, “if we or CCR file the petition. But if there’s a private lawyer, that tends to speed things up. They figure your time is valuable, and they know you’re doing it pro bono. They don’t want to keep you waiting.”

“The guy on death row
—be
might want to wait.”

“That guy, Ted, is a convicted killer. It costs the state money to feed him powdered eggs and keep his TV operating.”

“Would you like to take this case back, Brian?”

“No.” But then Hoad hesitated. “Does that mean you want to give it up?”

“If I did, from what you tell me, Darryl Morgan might live longer.”

“You didn’t answer my question.”

“No, I don’t want to give it up,” I said. “And I will
not
give it up.” Until he’s free, I thought, or dead.

I instructed Ruby to cancel all my appointments for the next day, flew up to Jacksonville, hired another car, and in the August heat drove down to Raiford to tell Darryl that the Florida Supreme Court was willing to consider sparing his life. I wanted to look in his eyes and strike some spark other than disdain and hatred.

Darryl refused to see me.

Wright had the day off, and I was dealing with another functionary. He said, “There’s nothing I can do about it.”

“What did Morgan say?”

“That he’s busy.”

Jerking off or doing card tricks, I thought. Turning up the volume on the country-music station until my temples throbbed, I drove back to Jacksonville. I was the Don Quixote of North Florida. One of my clients had been murdered by the drug cartel because of my carelessness; I had another who was about to be murdered by the state and was too busy to see me. I kept on tilting at appeals courts, believing them to be instruments of justice when actually they were legal windmills.

On the jet back to Sarasota my feet began to itch. While scratching them, I felt a discomforting sensation in my testicles. I went to the toilet. The cyst on my scrotum had increased to the size of a small pea and now had the color of a strawberry. It itched almost as much as the soles of my feet.

Was there a God? Who else could be testing me this way? I considered going to synagogue next Saturday morning. I needed help from another source.

In Sarasota I was called one morning to Charlie Waldorf’s office at the Criminal Justice Building. Buddy Capra ushered me into an office layered with cloudlike wreaths of smoke. Waldorf’s potted rubber plant had butts stubbed into its gray soil.

From behind his desk, without any preliminaries, Waldorf said, “Robert Diaz in Miami is talking to me about indicting you for tampering with a witness.”

“Diaz is full of shit.”

I dropped into an armchair; then I jumped up and began to pace the room while I talked. “Jerry Lee Elroy wasn’t absent from an official proceeding. I didn’t hinder him from doing anything legal, and I certainly didn’t induce him to withhold testimony. All I did was ask him to testify in another case. And he agreed.”

Capra said, “You took him out of Miami, where he was under the protection of the state authority.”

“Took him? Fuck, no. He went willingly.”

“But secretly. He gave the slip to two deputy sheriffs at the track, didn’t he?”

“If he did, and I wouldn’t know, that was his idea. I wasn’t at the track. I said, ‘Elroy, if you’d care to, oblige me by meeting me at Miami International.’ Lo and behold, he showed up.”

Charlie Waldorf leaned across his desk, like an attack dog ready to spring. I couldn’t see the back of his neck, but I’m sure the hackles were up. “It boils down to this, Jaffe. Did Elroy tell you that pursuant to your request he’d asked one of the assistant state attorneys, a man named Baxter, for permission to leave Miami? And did Elroy tell you permission was refused? And after being told that, did you knowingly aid and abet him to leave? Care to answer?”

Before I tear your throat apart, he wanted to add.

I said, “Only two people know the answers to those questions, Charles. One of them ain’t talking, and the other one can’t. I didn’t obstruct justice. I tried to
do
justice. And if Diaz wanted to keep Elroy in Miami, he was tampering with justice.” I decided to lower the tension and, hopefully, the stakes, which happened to be my freedom and my license to practice law. “Listen, I’m truly sorry it happened—believe me, sorrier than you are. But it’s blood under the bridge. So let’s all relax, okay?”

Waldorf said, “You got some fucking nerve.”

Beldon Ruth’s exact words. People were telling me harsh things these days, and I was refusing to listen. I suppose that was the key to survival.

In the elevator I broke into a sudden sweat. The whole time in Waldorf’s office I had wanted to tear off my shoes and socks and rip into the soles of my feet with my nails or a block of sandpaper. Could they indict me? Ridiculous. But yes, they could. State attorneys were lords of a fiefdom. If they woke up grouchy on a given day, they could tack on a hundred years of pen time to the lives of ten different human beings. That our criminal justice system should depend on such people was a mistake. That it depended on people at all made it irreparably flawed.

I was no longer baffled by the source of my maladies. I had to save Darryl Morgan’s life and my health as well. A week later I flew again to Jacksonville, where I took Gary Oliver to dinner at a seafood restaurant on the river.

He was older and grayer now, more sure of himself, and with more of a sparkle in his eye. We had always been formal with each other, but I put an end to that. I’d never quite treated Gary as an equal, partly because he had a drinking problem and partly because twelve years ago I hadn’t thought he was much of a lawyer. Since I’d started smoking again, I no longer had quite the same lofty attitude toward people who might fall into the category of addicts. And I’d come to realize that, in his own way, Gary had done his best for Darryl Morgan. No one could have done better. I sensed that he had what my mother called
sitzfleisch
—a certain earthy tenacity. I had to learn to look more deeply into people and see what was of value.

At the end of the shrimp cocktail, I said, “Gary, we’re on the same side now. I came up here because I need your help.”

Oliver nodded warily. The last time we talked, he’d been selling. Now he was buying.