The Color of Law (15 page)

“What’s there to know? We know what Mack wants.”

“And I know what my client wants.”

Dan chuckled. “Your
client
? Clients pay us fees, Scott. Ms. Jones isn’t paying us anything. She’s costing us. She’s an expense to this firm. And she’s expendable.”

“Dan, I’m her lawyer!”

Dan stood. “Scott, do you really believe she’s innocent? Do you really believe she didn’t kill Clark?”

Scott shook his head. “No.”

“Then what’s the problem?”

“The problem is, Dan, if I don’t introduce that evidence about Clark’s past, she’s gonna die!”

A look of absolute puzzlement came over Dan’s face. He said, “And how does that affect your life?”

And that had been the guiding principle of A. Scott Fenney’s professional life since the day he joined Ford Stevens: How would it affect his life? Or, more to the point, his income. Any event—a lawyer fired, a client dumped, a case won or lost, a law enacted or repealed, a natural disaster, a stock market crash, a war, a presidential election—that affected his life and income was, by definition, important. Any event that did not affect his life or income was unimportant, irrelevant, as inconsequential to him as another gang murder in South Dallas. Now, driving home to his $3.5 million mansion in a $200,000 automobile, Scott found himself wondering: How would Shawanda Jones being sentenced to death affect his life and income?

The answer was obvious: not at all. The day after her conviction, he would be back at his desk, working to make rich clients richer and bringing home $750,000 a year. As he would the day after her execution. She would quickly become part of his past. A year from now he wouldn’t even remember her name.

Scott had always followed Dan Ford’s advice, and he knew he should follow Dan’s advice now. He should chalk up Shawanda’s pathetic heroin-addicted life as unimportant and irrelevant and inconsequential to his life. He should lose her case and move on, as he had with other clients whose cases he had lost. Even Scott Fenney couldn’t win every case. Those few times he had lost, he had moped around, cursing the judge and jury for a few days, but once the client paid his final bill and the check cleared, he had gotten over it and moved on.

But there was a difference.

Scott Fenney had never thrown a case. Or a contest. Or a game. He had always played to win. Every game he had ever played—football, golf, lawyering—had been a test of his manhood, so he had played every game to win. All-out, no-holds-barred, win at all costs—that’s what made him a winner. Every cell in his body was infused with the desire to win, a desire that had taken him from being the poor kid on the block to owning a mansion on Beverly Drive in the heart of Highland Park. But Dan Ford was now telling him to play to lose. Could Scott Fenney play to lose and still be a winner?

That thought bothered him all the way home. But as he pulled into the motor court behind his mansion, a new more bothersome thought had invaded his mind: How would Shawanda’s death affect Pajamae’s life?

Scott had said bedtime prayers with the girls, tucked them in snugly, and was standing to leave, but he needed to ask Pajamae a question.

“Pajamae, do you think your mother could hurt anyone?”

“No, sir, Mr. Fenney. Mama, she’s got a good heart. She cares about people. Her problem is, she doesn’t care enough about herself. She’s always telling me to love myself, but she doesn’t love herself. My daddy made her like that, hitting her, making her sick. So don’t blame her, Mr. Fenney, it’s not her fault.”

Then she turned her big brown eyes up at Scott and asked him a question.

“Mr. Fenney, are the po-lice gonna kill my mama, too?”

FOURTEEN

E
XECUTION OF THE DEFENDANT
would violate her civil rights under the Eighth Amendment to the Constitution of the United States…

The defendant. Her mother. Execution. Damn.

Pajamae was playing in the pool with Boo; they were standing in opposite shallow ends and tossing a Frisbee back and forth across the deep middle part of the pool. Scott was sitting on the patio reading Bobby’s brief that argued Pajamae’s mother should not be put to death if found guilty of murdering Clark McCall.

It was another blazingly hot Sunday afternoon in Highland Park. The girls were cool in the pool. Scott was sweating in the shade of the patio awning. Rebecca was down in the exercise room climbing the Stairmaster to nowhere in air-conditioned comfort. Consuela was in Little Mexico being courted by Esteban Garcia. Scott had driven her down that morning to the Cathedral Santuario de Guadalupe Catholic Church located at the northern boundary of downtown Dallas, which was also the southern boundary of Little Mexico. Esteban was waiting at the curb, dressed in black boots, black trousers, and a long-sleeve white shirt starched crisp; he was clean shaven and his hair was slicked back. He looked like a Mexican matador. He greeted Consuela de la Rosa like a princess, taking her hand to help her up and out of the low-slung Ferrari. She turned and waved good-bye to Scott, then walked to the entrance of the church like a teenager in love. She was brown and beaming.

Scott was white and worried.

Scott, I need an answer for McCall. Now.

What if he said no to McCall? What could Mack McCall do to
Scott Fenney, Tom Dibrell’s lawyer
? McCall might be the senior senator from Texas and Dan Ford’s former fraternity brother, but he paid no legal fees to Ford Stevens. So saying no to McCall would not harm the firm; of course, it wouldn’t help the firm either. But still, no harm, no foul. Sure, McCall could block A. Scott Fenney’s future nomination to the federal bench, but that did not concern Scott; he had no intention of taking a pay cut to only $162,000 a year. Saying no to McCall would result only in a pissed-off U.S. senator; Scott could live with that.

But could he live with a pissed-off senior partner?

How would Dan Ford take no for an answer? Saying no to Dan would be breaking new ground for Scott; he had never said no to Dan, never even considered saying no. Now Dan wanted to be the president’s lawyer, which required that Mack McCall be elected president, which required that Scott Fenney hide Clark McCall’s past, which required that Scott say yes.

Dan would not be happy if Scott said no.

But Scott brought in over $3 million in fees for the firm each year, and that always had a way of brightening Dan’s mood. And if Scott promised to increase his billings to Dibrell to $4 million this year—
which would require some seriously creative accounting
—surely Dan would forgive Scott (who was like a son to him) this one act of rebellion. Surely.

Still, Scott Fenney had never said no to a coach, a client, or his senior partner. If the coach called an end sweep on third and 20, he ran it. If a client wanted him to coerce a sexual harassment settlement by threatening to bring up the woman’s sexual history, he threatened it. If a senior partner wanted him to rubber-stamp a decision to fire a fellow partner, he did it. But now a U.S. senator and his senior partner wanted him to hide critical evidence and watch his client be executed. Could he do it?

What if he did? What if Scott Fenney said yes to Mack McCall and Dan Ford? Both men would be very happy. McCall would be elected president, Ford Stevens would be the president’s law firm, and Dan Ford would be the president’s lawyer. The firm would open a Washington office, new corporate clients would pay millions in legal fees to the firm, and the partners would double their income. Scott Fenney would be filthy rich. All of which sounded good until he heard Pajamae’s little voice: “Catch it, Boo!”

Mr. Fenney, are the po-lice gonna kill my mama, too?

Scott heard the French doors behind him swing open and felt the rush of cool air against his warm neck. Rebecca stood beside him and he smelled her sweaty scent. She was wearing a tube top and short running tights that clung to every surface of her lean body. Scott felt the urge to pull his wife onto his lap and hold her close; but like a dog who had gotten smacked the last hundred times he had gone after a bone, Scott did not make a move in that direction. They watched the girls play.

“It’s good she has a friend now,” he said.

“She has friends,” Rebecca said, “girls from the best families in Highland Park. She just refuses to do anything with them.”

“Then they’re not her friends, Rebecca.”

They watched in silence again. After a moment, Rebecca said, “A black girl for her best friend. That’ll be such a positive on her debutante application.”

She abruptly pivoted and went back inside. Scott shook his head.
Her debutante application.
Barbara Boo Fenney would never be a Highland Park deb; she just wasn’t the right type. Neither would Pajamae Jones; she just wasn’t the right color. She had been born on the wrong side of life, just as Scott had been, but she could not run with a football to the right side of life as he had. Maybe that was why Scott felt a bond with this little black girl, because they were both from the poor side of the tracks; or maybe because Scott had always taken up for the weak kids, like Bobby. Back in high school, Bobby would’ve been beaten up daily if he hadn’t been under Scott’s protection.

Pajamae Jones was now under Scott Fenney’s protection.

She threw the Frisbee over Boo’s head. Boo retrieved it and flung it from far across the yard. The Frisbee landed in the middle of the pool, in the deep section. Pajamae climbed out of the shallow end and walked around to the far side where the Frisbee floated on the water. She knelt down and reached out for it, just out of her grasp. She leaned farther over the pool and before she fell in and sunk below the surface of the blue water, Scott had already dropped the brief and was running toward the pool.

Boo screamed, “She can’t swim!”

“Stay there, Boo!”

Scott dove into the pool, not even thinking that he was still wearing sneakers and shorts. He went straight to the bottom and grabbed Pajamae around her waist. He pushed hard with his legs; they broke the surface with a splash. Pajamae was coughing up water. Scott lifted her out of the pool and onto the deck, then climbed out and knelt beside her. She rolled over and heaved more water. She slowly sat up.

“Are you okay, baby?”

Pajamae looked up at Scott. “I thought I was gonna die, Mr. Fenney.”

“Not on my watch.”

She wiped her nose and leaned into Scott. She buried her face in his wet shirt and wrapped her arms around him. He patted her back.

“Girl, you’re getting swimming lessons.”

FIFTEEN

S
COTT
F
ENNEY
led a double life: at the law firm, he was a successful lawyer practicing law like he played football—winning at all costs, working the margins, gaming the system, bending the rules, mastering the art of aggressive and creative lawyering, and making lots of money. At home, he was a good man, a faithful husband to Rebecca and a loving father to Boo, in whom each night at bedtime he tried to instill the virtues of living a good and decent life. Rebecca didn’t want to know what he did each day at the office and Boo didn’t need to know. The only part of his lawyer life he brought home each night was the money.

All lawyers lead such a Jekyll-and-Hyde life, diligently maintaining a strict separation between their dual lives, lying to their wives and children, and hiding their lawyer lives like a drug addict hides his illegal habit. Scott always told everyone he was a lawyer, but he never told anyone what he did as a lawyer. A lawyer learns that such matters are best left at the law firm. You walk into the office each morning and become a successful lawyer; you leave each night and become a good man again. But with each night, the transformation back—from Hyde to Jekyll—becomes harder. The lawyer in you doesn’t want to let go. But you beat it back because you cannot allow the boundary between your two lives to be breached. Scott Fenney had never brought his lawyer life home—
never!
—until the day he brought home a nine-year-old black girl.

Pajamae Jones was now part of his life—both lives. She was part of his home life, her mother part of his lawyer life. She loved her mother, and he was her mother’s lawyer. His decisions as her mother’s lawyer would determine if she had a mother much longer: if he said yes to Dan Ford, he was sending Pajamae’s mother to death row. The boundary between his dual lives had been breached, and now, like the last two teams standing at the end of a long season set to play for the championship, his two lives—Dan Ford versus Pajamae Jones—were locked in a life-and-death struggle for Scott Fenney’s soul.

I need an answer for McCall. Now.

Are the po-lice gonna kill my mama, too?

Would he be the lawyer Dan Ford wanted him to be? Or the man Pajamae needed him to be? He could no longer be both. He had to choose between his two lives. He had to face it head-on, like all those times when the blocking broke down and number 22 found himself alone on a football field facing five defenders. Then, as now, he had a choice to make: step out of bounds before getting hit or charge forward and take the hits and make the extra yards. Football coaches call those moments “gut checks,” because it is in those moments when you find out what you’re made of.

Scott Fenney was facing a gut check.

The trial date was one week closer, and Scott was sitting at the small table in the small room at the federal detention center next to Bobby and across from Shawanda. She was happy, upbeat, and full of energy. Bobby was showing her photos from Carl’s background checks.

“This is Clark in his better days. He ever try to pick you up before that night?”

She shook her head. “No, sir. Course, drunk white boys all look the same on Saturday night.”

Bobby held up another photo. “The honorable senator.”

Shawanda stared at the image of Mack McCall and said, “He make my skin crawl.”

“Yeah.” Bobby pointed to a big bald man standing in the background of the same photo. “You ever see this guy?”

“No, sir…and I wouldn’t forget that face.”

Scott said, “Who’s he?”

“Delroy Lund, McCall’s bodyguard. His goon, according to Carl. Ex-DEA. Carl says he can smell a dirty cop a mile away.”

“So what’s he got to do with the case?”

Bobby shook his head. “Nothing.”

“So Carl came up empty?”

“Yeah, but he never quits looking.”

With that news, Scott decided to make one last attempt to convince his client to accept the plea offer. “Shawanda, all we have is this Hannah Steele woman. Clark raped her a year ago.” Scott turned to Bobby. “Did Carl get a photo of Hannah?”

“No, she’s real shy, wouldn’t let him. Carl said she’s like a piece of china, a real fragile girl. Said he wouldn’t bet a six-pack on her holding up under a tough cross. And Ray Burns is gonna be damn tough, he’ll try to make her look like a…” Bobby’s eyes cut to Shawanda. “He’ll explore her sexual history.”

“Yeah.” Scott turned back to his client. “Shawanda, if you made a deal, at least you wouldn’t be facing a death penalty.”

“Mr. Fenney,” she said, “if I can’t be with Pajamae, I just as soon die.”

Scott sighed and nodded at Bobby.

“Okay, Shawanda,” Bobby said, “we’ll go to trial. But you’ve got to understand, the evidence against you is substantial, more than enough to put you on death row. Our only hope is Hannah. We’ll put you on first, then we’ll put her on. She’ll corroborate…back up your testimony, which gives the jury more reason to believe you.”

“Why can’t I take one of them lie detector tests, prove I ain’t lying? I seen them on that TV show—they make the boy wanna marry the daughter take a lie detector test, ask him if he was cheating.” She laughed. “Them white boys lie every time.”

Bobby was shaking his head. “That’s not a good idea, Shawanda.” He turned to Scott. “Scotty, I was thinking about those reporters calling you, asking for TV interviews with Shawanda? Maybe we should do that, let her tell the world what happened. That’ll condition the jury pool. And after she’s told her story, you can ask that any other woman who was beaten or raped by Clark McCall come forward so Shawanda doesn’t go to jail for a crime she didn’t commit.”

“That sound good to me, Mr. Fenney,” Shawanda said.

Scott dropped his eyes and said, “I don’t know, Shawanda, that might not be the best strategy.”

Scott’s eyes were still down when Bobby said, “Shawanda, Scotty and I need to talk outside.”

Bobby stood and knocked on the door. The guard opened the door, and Scott pushed himself up out of the chair and followed Bobby into the hall. They had walked ten steps down the corridor when Bobby stopped and leaned against the wall.

“She’s doing a lot better,” Scott said.

“She’s high.”

“What?”

“She’s feeling the rush.”

“You mean heroin?”

Bobby nodded.

“How do you know?”

“Scotty, my best clients are dopers. You can see it in their eyes when they’re on it. It’s like they own the world.”

“How’d she get it in here?”

Bobby shrugged. “Guard, janitor, who knows.”

“She looked good the last time. I figured she was over it.”

Bobby shook his head. “A junkie’s never over heroin. The cravings are always there. I get them probation conditioned on treatment, they get the methadone, stay straight a couple weeks, a couple months, then go right back to it like an old lover.”

“Her life’s on the line and she can’t stop shooting up? My wife’s pissed off at me, Dan’s pissed off at me, I’m taking all this grief so she can get high? All this for a goddamned junkie?”

“Scotty, if you lived her life, you’d probably shoot up, too. You got the best of life, she got the worst. But she can still be happy when she’s high. And now the stuff on the street is so cheap, she can spend every waking minute high—until she dies.” Bobby sighed. “And she’ll die from the stuff one day.”

“We’re trying to save her from the death penalty so she can kill herself with heroin?”

“Yep, that’s exactly what we’re doing. I can see it in her eyes, Scotty, she’s a junkie for life. And hers will be a short life.” He stared at his shoes a long moment, then stood straight. “But not as short as Ray Burns wants it to be. So, you catching some heat over this?”

Scott nodded. “Big-time. Why not a polygraph?”

“My junkie clients always think they can beat the machine. Course, when they’re high, they think they’re fucking Einsteins. But they always fail. She takes it and fails, she’s history.”

“Polygraphs aren’t admissible. Burns can’t use it against her.”

“Not in court. But Ray’ll leak it to the press, it’ll be front-page news. Every juror will know she failed.”

“Maybe she’ll plead out if she fails.”

“Look, Scotty, I know this is a tough decision for you and I know you don’t want to make it, but hey, man, that’s why you make the big bucks. What do you want to do?”

“McCall’s pressuring Dan Ford to get me to drop this defense, not to drag his dead son through the mud.”

“Clark lived in the mud, Scotty. He was a bad boy.” Bobby checked his shoes again. “So Dan told you to drop it?”

“He advised me to. He wants to be the president’s lawyer. Good for business.”

“But bad for Shawanda. Is your job on the line?”

“
My job?
No! Dan wouldn’t fire me. I’m like his son.”

Bobby nodded. “Three, four years ago, I represented a father who killed his son over a football game.” He chuckled softly. “Look, Scotty, I’m not a big-time lawyer like you, I don’t represent important people, I don’t make much money,…but I’ve never screwed a client. I’ve always done my best for every client, even if my best isn’t much. Clark beating her up, raping Hannah Steele, maybe more women—Scotty, that evidence might be the difference between life and death for her.”

Bobby ran his hands over his head of thin hair.

“All my clients are just like her, poor, black or brown, living in an alternate world where daddies are dealing and mamas are hooking. Difference is, all my clients are guilty, no bones about it. But she may really be innocent—or at least have acted in self-defense. We drop Clark’s past, we’re sentencing her to death by lethal injection—you and me, Scotty, not a jury. We’ll be responsible, same as if we push that needle into her arm.” He shook his head. “Scotty, I need the money you’re paying me for working this case, but I can’t live with that.”

“What do you mean?”

“I mean, you drop this evidence, I’m out.”

“Bobby—”

“Scotty, I followed you every step of the way—high school, college, law school. Back then, I would’ve followed you anywhere. I was weak and you were strong and you protected me. But you ain’t Batman no more, and I ain’t Robin. I can’t follow you on this. It just ain’t right. She may not be a white society girl…she may be a junkie hooker, living in the projects, but her life means something, too. Maybe not to you, maybe not even to herself…but to me. And to her little girl. She needs someone strong to protect her…someone like you used to be.” He paused. “When your secretary called that day, said you wanted to have lunch, man, I about cried. All those years, I really missed you.” His eyes were watering. “And being around you again now, it’s been great…just to breathe your air again.” He breathed in and out. “But, Scotty, you do this to that girl, I don’t want to see you no more.”

“Come on, Bobby.”

“Scotty, the court appointed you. You’re her right to counsel. You do what you think is right.”

Scott turned away, wishing this gut check could be answered by simply running into five frothing-at-the-mouth testosterone-charged linebackers.

Scott got into the Ferrari, but he couldn’t go back to the office. Downtown suddenly felt claustrophobic. So he drove onto the Dallas North Tollway and hit the accelerator hard. He felt the power of the machine beneath him as he took the engine through the gears. The 360 Modena topped out at 180 miles per hour, but Scott eased off the accelerator at eighty, the customary highway speed in Dallas. No one drove the speed limit in Texas, not even women putting on their makeup. Northbound traffic was light at this time of the morning, so he drove unimpeded in the left lane. He often drove aimlessly about the 4,000 miles of roads in Dallas when he needed to think. For some reason, he thought better in a Ferrari.

Without thinking, Scott suddenly veered across three lanes of traffic and exited at Mockingbird Lane, cut over to Hillcrest, and drove north. He turned left, stopped three doors down on the right, and stared at the new two-story monster house, arched entry, dormers, vaulted roof. But in its place he saw the small one-story cottage that had once occupied this lot, the home he and his mother had rented from the good doctor. Living room, kitchen, two bedrooms, two bathrooms, less than one thousand square feet including the porch where they often sat after dinner and waved at neighbors taking their evening walks. He remembered crawling into bed, lying back on the pillow, and waiting for his mother to come in, sit down, open the book, and read a chapter. And when she finished, she’d close the book and say, “Scotty, be like Atticus. Be a lawyer. Do good.”

It’s hard to do good when your clients are bad.

Lawyers never believe their clients because clients lie. They lie to the IRS and the SEC and the FBI. They lie about their taxes, they lie about their financial statements, and they lie about their lies. Most of the time, they don’t get caught. When they do get caught, usually for lying about their lies to the FBI—a felony called obstruction of justice—their lawyers stand outside the courthouse and proclaim their client’s innocence right up to the moment the client plea-bargains, pays a fine, and lives to lie again.

A lawyer always assumes his client is lying.

So Scott naturally assumed his heroin-addicted hooker-client was lying. But maybe he would believe a nice white sorority girl. He had gotten Hannah Steele’s unlisted phone number in Galveston from Bobby. Now he sat in the Ferrari and listened to the call ring through. A soft voice answered.

“Hello.”

“Hannah Steele?”

“Who’s calling?”

“Scott Fenney. I’m Shawanda Jones’s lawyer. My cocounsel, Bobby Herrin, spoke with you.”

“Yes, Mr. Fenney.”

“Hannah, I need to hear your story. I need to hear you tell me what Clark McCall did to you.”

A long sigh. “I’ve told Carl and Bobby, I don’t—”

“I know this isn’t easy, Hannah, but Senator McCall is pressuring me not to bring up Clark’s past at the trial, not to call you as a witness. For me to make a decision, I need to hear for myself what happened.”

“All right.”

Hannah Steele told Scott of her encounter with Clark McCall. She had met him on the SMU campus after a football game. He asked her out for the next night. He picked her up at her sorority house. They had dinner at a Mexican restaurant in the Uptown section of Dallas, the nightlife area between downtown and Highland Park. They had a few drinks and they went to the McCall mansion, where Clark attacked her, beat her, and raped her. Afterward, he acted as if nothing out of the ordinary had happened. He gave her a ride back to the sorority house and even smiled at her when she got out of his car. She got in her car and drove straight to the police station and filed a complaint. She was taken to Parkland Hospital for a rape analysis and then returned to the sorority house. The next morning, a man came calling for her, saying he was Senator McCall’s lawyer. He handed her a document and a pen, said it was a release and confidentiality agreement, and he gave her a cashier’s check for $500,000 to settle all claims against Clark and cover her relocation costs.