Executive Privilege (8 page)

“After I sobered up I looked back over my life. I’d gone to high school in Westbury, Long Island, and college at Hofstra, also on Long Island and not too far from home. Except for a trip to Europe with my folks and a trip to the Continent on my own after college, I’d spent most of my life on the East Coast of the United States. Now that I wasn’t on the marriage-career track anymore I asked myself why I should stay in Manhattan when there was a whole world out there. So, I went online and scoped out firms in Colorado, California, Oregon, and Washington state. When Reed, Briggs asked me to interview, I flew west and returned with a job offer. And here I am.”

“But you’re not completely over Bridget yet?”

“I am a good part of the time. Most of what I see in Portland doesn’t remind me of her. That helps. But every once in a while I’ll hear her favorite song on the radio or an old movie we watched together shows up on TV and it all comes back.”

“And there’s this anniversary.”

“Yup.”

“Is that why you buried yourself under Clarence Little’s files?”

“Reading about the case helped me forget.”

“Until I pulled the scab off your wound. I’m sorry.”

“Don’t be. It helped to talk about it. Getting it off my chest is better than holding everything in.”

“Glad I could help, then.”

“What about you, any tragic love affairs in your past?”

Ginny took a swig of her beer before answering. “I’m not sure.”

“And that means…”

“I do have a boyfriend. He’s in med school in Philadelphia.”

“That’s pretty far away.”

“Yes it is. We’re taking a break from each other to see if absence makes the heart grow fonder.”

“At your suggestion or his?”

“My, aren’t you getting personal.”

“I spilled my guts. You can spill yours.”

“It’s sort of mutual. I mean, he proposed it, but I didn’t fight very hard.”

“How long have you been going out?”

“Freshman year of college.”

“That’s a long time.”

“Yeah, but people change. Besides, that’s seven years of togetherness. Seven years is when the seven-year itch kicks in for married folk. There must be a reason for that, don’t you think?”

“So you’re in Portland to see if you miss him?”

She picked up her beer bottle and nodded.

“And…?”

Ginny shrugged. “I’m not certain. We talk on the phone a lot, and that’s nice. But I think he’s seeing someone.”

“Oh?”

She shrugged. “Matt’s a lousy liar. What bothers me is that I don’t care. I think I’m relieved, actually. Maybe he was right and we need to move on.” She sighed. “Time will tell. Tune in next week.”

Brad smiled. “We’re two pathetic losers, huh?”

“Speak for yourself, Bud. I see myself as someone on the verge of a new adventure in living.” She looked at her watch. “I also see that it’s way past my bedtime.”

Brad started to reach for the bill but Ginny beat him to it. “You bought the greasy pizza. This is my treat. You can get it next time.”

“Deal,” Brad said, knowing that Ginny was too strong-minded to back down and happy that she was thinking that there’d be a next time.

The trip down I-5 from Portland to the state penitentiary in Salem, Oregon’s capital, took an hour. During the ride, Brad Miller’s thoughts seesawed between his upcoming visit with Clarence Little and the meeting he’d had two days before with the Dragon Lady. As soon as he’d completed his research, Brad had told Susan Tuchman that he didn’t think there was any issue in Clarence Little’s case that he could argue with a straight face to an appellate court. He’d assumed that Tuchman would tell him to file a motion to dismiss the appeal after writing a letter to Little explaining that he had no case. Neither of these actions would require Brad to come within fifty miles of his homicidal client. Instead, Tuchman had ordered him to drive to the penitentiary and explain his conclusion to the death row inmate in person. Brad had tried to convince his boss that he should be billing hours for the firm rather than spending nonbillable hours locked behind high concrete walls with someone whose idea of a good time was chopping off the pinkies of the women he’d murdered. Tuchman had smiled—sadistically Brad had thought—while explaining how client contact would aid his growth as a lawyer.

Brad’s knowledge of prison came mostly from movies in which brutal inmates either raped one another in the shower or took innocent civilians hostage during riots. The only criminal Brad could remember meeting was a tough kid in his high school gym class who—rumor had it—had gone to jail for stealing a car a year or so after graduation. The thought of being locked in with psychotic killers, deranged rapists, and violent drug dealers did not appeal to him in the least, and the idea of sitting across from a mass murderer made him very uneasy. The corrections officer who’d set up Brad’s visit with Clarence Little assured Brad that there would be bulletproof glass and concrete separating them, but Brad had seen
The Silence of the Lambs
and didn’t have complete confidence in the ability of law enforcement agencies to keep really wily serial killers behind bars.

The night before he drove to the penitentiary, Brad had a vivid dream about Laurie Erickson’s autopsy. In parts of his nightmare Laurie was on the slab, but in other lurid dream sequences there was a man who vaguely resembled Brad lying beneath the coroner’s blood-stained scalpel. Brad had startled out of sleep several times during the night, and each time he burst into consciousness his heart was racing and his sheets were damp with sweat. When he finally gave up on sleep at 5:45
A.M.
he was exhausted and worried. By the time he parked in the visitors’ lot at the penitentiary he was a wreck.

Brad made certain that his car was locked before walking down the tree-lined lane from the lot to the front door of the prison. The sun was warm, and there was a light breeze. On either side of the lane were pleasant white houses that were once residences and now served as offices for the staff. It would have been an idyllic setting if the prison’s intimidating egg yolk yellow walls, topped with razor wire and guarded by gun towers, weren’t looming over the charming houses with their neatly trimmed lawns.

Brad walked up a short flight of steps to a door that opened into a waiting room tiled in green and lined with cheap couches covered in rust-colored upholstery that had been made in the prison. Two guards stood behind a circular counter in the center of the room. After Brad explained the purpose of his visit and showed his bar card and driver’s license he was told to have a seat.

Two heavyset older women occupied one of the couches. One was African-American and the other was white. They seemed to know each other. Brad guessed that their sons were in prison and they’d struck up a friendship during prior visits. A woman in her early twenties sat on another couch fussing with a boy who looked to be four or five. The woman was attractive but wore too much makeup. The boy was whining and straining against the hand that held him firmly. His mother looked harried and on the verge of using violence to make the boy do what she wanted.

Brad found an unoccupied couch as far from the mother and her child as possible and studied his notes for the meeting. The kid was screaming now and it was hard to concentrate so he was relieved when one of the guards walked over to a metal detector and called out his name and several others. The older women had headed for the metal detector as soon as the guard left his post behind the counter. The mother picked up her son and carried him to the end of the line the older women had formed. Brad joined them. When it was his turn the guard told him to take off his shoes and belt and empty his pockets before walking through the machine. When Brad had his belt and shoes back on, the guard led the visitors down a ramp. At the end of the ramp was a set of sliding steel bars. Their escort signaled another guard who sat in a control room. Moments later the gate rolled aside with a metallic groan and they entered a holding area. As soon as the first gate closed a second gate opened and the group followed the guard down a short hall where they waited while he unlocked the thick metal door to the visiting area.

A corrections officer sat on a raised platform at one end of a large open room crowded with more prison-made couches and flimsy wooden coffee tables. Vending machines dispensing soft drinks, coffee, and candy stood along one wall. A gray-haired man shuffled over to the coffee machine. It was easy to tell he was a prisoner because the inmates wore blue work shirts and jeans.

Brad waited until the women had talked to the guard before telling him that he had an appointment to meet with Clarence Little. Brad expected the guard to be impressed or horrified when he heard the name of Brad’s client, but he just looked bored when he called death row to request Little’s transport.

“You’re across the hall,” he said when he hung up. “It’ll take about fifteen minutes to get him down here. Do you want to wait here or in the noncontact room?”

Brad glanced briefly at the occupants of the visiting room, which he had expected to be filled with tattooed Hells Angels and wild-eyed psychos with shaved heads, but none of the prisoners looked threatening. Several men sat on the floor playing with young children. Others leaned across coffee tables holding whispered conversations with wives and girlfriends. Still, it made Brad nervous to be in close proximity to someone who’d done something bad enough to get him sent to prison.

“I’ll wait in the noncontact room,” he told the guard.

Across the hall from the general visiting room was another visiting area. Windows made of bulletproof glass were set in two of the walls. Behind some of these windows sat prisoners deemed too dangerous to be allowed in the open visiting area. Their visitors sat on folding chairs, and the conversations were carried on over phone receivers. At the end were two rooms barely big enough to accommodate a bridge chair. The guard opened the door to one of them and ushered Brad inside. The chair faced a glass window set in concrete blocks painted institutional brown. A slot for passing papers had been built into the bottom of the window and a metal ledge just wide enough to accommodate a legal pad jutted out from the wall underneath the window. A phone receiver like those Brad had seen the other visitors using was attached to the wall.

The guard left and Brad stared anxiously through the glass at a door that allowed entry into an identical room on the other side. There were no photographs of his client in his file and Brad’s imagination had created a murderer who was an amalgamation of Hannibal Lecter, Jason, and Freddy Krueger. The man who was led into the room by two corrections officers was five eleven, slender, and looked like an accountant. His brown hair was combed carefully so that the part was clearly displayed. His skin was smooth, his nose small and undistinguished. Gray-blue eyes examined Brad through plain, wire-rimmed glasses while the guards unlocked his ankle chains and handcuffs. One of the guards was carrying a folder. The edges were frayed and it was covered with writing. The guard handed the file to Little.

Neither Brad nor his client spoke while the guards were present. As soon as they closed the door behind them Little pulled his folding chair close to the phone and sat down. He placed the file on the ledge in front of him and picked up the receiver. Brad’s stomach tightened.

“Mr. Little, my name is Brad Miller,” he said, hoping that his client wouldn’t notice the slight tremor in his voice. “I’m an associate at Reed, Briggs, Stephens, Stottlemeyer and Compton in Portland. The firm was asked to handle your habeas corpus suit in the United States Court of Appeals for the Ninth Circuit.”

Little smiled. “Your firm has an excellent reputation for doing quality work, Mr. Miller. I’m flattered that the court appointed Reed, Briggs to represent me. And I appreciate the fact that you’ve taken time from your busy day to visit me.”

Brad was relieved that Little was so gracious.

“You’re our client,” he said magnanimously, “and you couldn’t really come to our office, could you?” Brad asked with a smile, hoping that a little humor would lighten the depressing surroundings.

Little grinned. “I guess not.”

Brad began to relax. Maybe this wouldn’t be so bad after all. Then he remembered that he hadn’t given the bad news to the mass murderer sitting on the other side of the glass.

“I came to Salem to discuss some problems I’m having with your case,” Brad started diplomatically.

“What problems?”

“Well, the writ of habeas corpus that you filed alleged incompetence of counsel.”

Little nodded in agreement.

“And the judge who conducted the hearing disagreed with you about the quality of your representation at trial.”

“He was wrong.”

“Uh, yes, I know that’s your position, but we have a problem. The United States Supreme Court wrote an opinion in a case called
Strickland versus Washington
. In that case they said that—and I’ll quote this”—Brad said, pulling a copy of the opinion out of his file—“‘a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in the light of all the circumstances, the identified acts or omissions were outside the range of professionally competent assistance…’”

“I’ve read
Strickland
,” Little said.

“Good. Then you understand that you can’t just accuse your lawyer of screwing up. You have to tell the court very specifically what he did that constituted ineffective assistance.”

“I did. I told my lawyer that I had an alibi for the time that I was accused of kidnapping and murdering Laurie Erickson and he didn’t investigate my claim.”

“Okay, that’s the problem. There’s no question that your lawyer had an absolute duty to make a reasonable investigation of facts in your case that could establish an alibi—and he testified that you said you had an alibi—but he said that you didn’t give him any facts he could investigate. I’ve read the transcript of your habeas corpus hearing. The judge asked you where you were and you avoided answering the question. So, I guess the bottom line is that I don’t see any way we can win your case on appeal because the Ninth Circuit is just going to say that you didn’t make an adequate record to show your lawyer did anything wrong.”

“I still want to appeal.”

“Maybe I didn’t make myself clear, Mr. Little. I read the transcript of your case. Then I did a lot of research on this issue. After that I conferred with other attorneys in the firm. No one thinks you can win. It would be a waste of time to pursue your appeal.”

Little wasn’t smiling now. “How long have you been out of law school, Mr. Miller?”

“Uh, not that long.”

“And how many criminal cases have you handled?”

“Well, actually, this is my first.”

Little nodded. “I thought so. Tell me, are you still new enough to your chosen profession to believe in the pursuit of Justice?”

“Sure, of course.”

“And I take it that you wouldn’t approve of an innocent man being framed for something he didn’t do?”

“Of course not.”

“And you wouldn’t want an innocent man to be executed for a crime he didn’t commit.”

“No one would want that.”

“The person who murdered Laurie Erickson might.”

Brad frowned. “Are you saying you didn’t kill Miss Erickson?”

Little kept his eyes locked on Brad’s and nodded slowly.

“So you really have an alibi for the time she disappeared?” Brad said even though he didn’t believe a word of his client’s assertion.

“Yes, I do.”

“Why the big secret? If you had evidence that would have led to your acquittal why didn’t you tell your lawyer at trial or explain it to the judge at the hearing?”

“That’s a little tricky.”

“Look, I don’t want to sound judgmental but you seem to be evading my questions about your alibi in the same way you avoided answering the judge’s questions at your hearing. If you’re not honest with me I can’t help you.”

“Here’s my problem, Mr. Miller. There was a witness who could clear me completely, but my involvement with her would implicate me in another crime.”

“Mr. Little, what do you have to lose? You’re on death row not only for the murder of Laurie Erickson. You were sentenced to death for two other murders. The Supreme Court affirmed those convictions a week after your habeas corpus hearing. Even if I win this case, you’ll still be executed.”

“But not for something I didn’t do. It’s a matter of honor, Mr. Miller.”

“Okay, I can see where you wouldn’t want to let someone get away with framing you. What I don’t understand is why you didn’t tell your lawyer your alibi if you feel so strongly about this. Anything you told him would have been confidential, even if you confessed to another crime.”

“I assume that would hold for you, too?”

“Yes. I’m your attorney, so everything you tell me is confidential. If you tell me about a crime you’ve committed I’m forbidden by law to reveal that confidence to anyone. And I’m sure your trial attorney told you the same thing. So, why didn’t you tell him the name of the witness?”