The Last Plea Bargain (18 page)

40

The judicial building that housed the Georgia Supreme Court on Capitol Square in downtown Atlanta was built to impress. The Superior Courts of Georgia—the trial courts—were messy and chaotic, their dockets jammed with criminal defendants cutting deals and spouses arguing over the kids—real-life courtroom dramas where arguments erupted and raw emotions played out. But the Supreme Court was above all that—magisterial, precise, and focused on the law. This was the last stage of the state's legal process, a place of finality, a place where hopes were dashed forever, a place where sudden reversals could wipe out everything that had occurred before.

Three-story pillars flanked the entranceway to the sturdy granite building. The lawn was manicured to perfection, a pristine mix of mature trees, trimmed shrubs, and freshly planted spring flowers. The grass itself was a deep green.

The May morning scheduled for oral argument could have been featured in a Georgia tourism brochure—sunny with temperatures in the high seventies, a slight wind out of the northeast. Weather like this normally made me upbeat and energetic. It would have been a great day to go for a run or to paddle my kayak on the Chattahoochee. But it was never a good day to hear Professor Mace James proclaim the innocence of my mother's killer.

I found out in advance that the state's side of the case would be argued by Andrew Thornton. Bill Masterson, who normally attended these appellate proceedings with me, could not be there. He claimed his services were needed in the Milton County Superior Court. I thought it had something to do with a reluctance to sit in the audience and be forced to watch—and cheer for—your political adversary as he handled a high-profile case. Either way, Masterson had told me to brace myself. He didn't like the amount of attention the Georgia Supreme Court was paying to Professor James's latest filing. Plus, he said, Thornton was more of a desk jockey than an appellate court lawyer.

When I arrived, the building was surrounded by scaffolding being used by construction workers to pressure-wash the courthouse and remove the old grout. Mist from their work floated in my direction, and I took it as a bad omen—finding a way to get rained on when there wasn't a cloud in the sky.

The building had seen its share of controversy, including some landmark death-penalty cases that had ended up at the US Supreme Court. In
Furman v. Georgia
, this court had upheld the death penalty arising from a murder conviction. But the US Supreme Court reversed, ruling that laws that gave juries wide discretion in the application of the death penalty constituted “cruel and unusual punishment.” That 1972 ruling put a de facto moratorium on the death penalty in the United States that lasted for the next four years.

A second Georgia case lifted that moratorium. In
Gregg v. Georgia
, the courts considered a new statutory scheme that became known as “guided discretion,” whereby trials would be divided into two phases. The first phase would determine the guilt or innocence of the defendant. The second phase, if necessary, would determine whether there were sufficient aggravating circumstances to impose the death penalty. The Supreme Court approved of that scheme, and the executions resumed.

In a third case,
McCleskey v. Kemp
, decided in 1987, the courts considered whether the death penalty should be ruled unconstitutional because of the allegedly discriminatory manner in which it was applied in Georgia. McCleskey's lawyers had examined over two thousand murder cases and statistically demonstrated that defendants charged with killing white victims in Georgia received the death penalty in 11 percent of the cases, but defendants charged with killing black victims received the death penalty in only one percent of the cases. The disparity was most pronounced in cases with black defendants and white victims, when the death penalty was given 22 percent of the time. If the roles were switched—white defendants and black victims—the rate dropped from 22 percent to one percent.

Both the Georgia Supreme Court and the US Supreme Court had considered the statistics and decided they weren't enough to nullify the death penalty. The executions continued.

As I passed through the metal detector at the judicial building, I thought about these cases and others like them that I had studied in law school. I had always defended the death penalty because I understood a victim's need to see ultimate justice. I wondered now if the Georgia Supreme Court, already famous for its death-penalty jurisprudence, would plow new ground on our case. Would future generations of law students read about
Marshall v. Georgia
and debate the merits of the death penalty while ignoring the personal toll a case like this takes on the victims?

I hoped not. I desperately wanted this whole saga to be over, for the court to declare that the Cooper affidavit was not a game changer, that Antoine Marshall's erratic march to the death chamber could continue. I wanted this case to be a footnote in the textbooks, not a section heading.

I arrived a full fifteen minutes early to the stately courtroom where the court heard arguments. There were seven high-backed leather chairs behind the oak dais at the front of the courtroom. The oak-paneled walls were lined with portraits of former chiefs. The carpet was a plush dark green, and the large wall behind the bench, in contrast to the oak walls on the sides of the courtroom, was covered in granite. That wall had a single Latin inscription highlighted in bold-relief letters:
Fiat justitia, ruat caelum
. I had looked it up after the first time our case had been argued here, more than eight years ago. It meant “May justice prevail though the heavens fall.” I prayed that would be the case today.

Mace James and a few other lawyers were seated in front of the bar on the left. Mace always looked out of place in a suit with his hulking frame, bald head, and tattooed neck. As a teenager, I had been enraged by Caleb Tate's showmanship when he defended Antoine Marshall at trial. As an adult, listening to the arguments of Professor James made me equally livid.

Caleb Tate came across as a slick actor—I knew he didn't really believe in Antoine Marshall's innocence, but he had a job to do and knew how to put on a show. But for Mace James, it was more than a job; he was a true believer in Marshall's innocence. Though I admired his crusading spirit, his blind allegiance to his client and his refusal to acknowledge the truth of what his client had done infuriated me.

At the hearing, I was surprised to see Caleb Tate seated just behind counsel table for the appellant. Tate had not played a role in the appeals for Antoine Marshall to date but apparently couldn't resist a hearing if the press would be there.

I took my seat on the first bench on the right, hoping the Supreme Court justices would notice a member of the victim's family at the proceedings. Three appellate lawyers from the AG's office were in a huddle at counsel table. One of the younger ones noticed me and said hello. I stood, and all three reached over the rail to shake my hand and thank me for coming. Even Andrew Thornton, the oldest member of the team.

The handshake with Thornton was awkward, and he appeared even stiffer than normal. And this was the man who would be seeking justice for me and my family.

41

The justices filed in right on time, and the clerk called the court to order. It was an imposing forum, and I wondered if I would ever gain the poise and ability to argue a case here. The setting didn't seem to bother Mace James in the least.

He settled in behind the podium without a single note and stared straight at the seven justices sitting a mere twenty feet away. A red digital clock at the right of the bench displayed the time left on his twenty-minute argument. From my perspective, I could see only a partial profile of his face—his jaw firmly set—the tattoo on his neck, the back of his head, and his broad shoulders flexing as he grabbed both sides of the podium.

“May it please the court, I represent the appellant, Antoine Marshall, in this capital murder case. Sixty days ago, the state of Georgia came within three hours of executing an innocent man. Fortunately, this court intervened.”

James let them chew on that thought for a second, and I repeated the Latin phrase under my breath:
“Fiat justitia, ruat caelum.”

After his brief pause, James resumed with confidence, hammering home points that in my mind had already been addressed by the courts. The alleged impropriety of Bill Masterson's striking three African Americans from the jury panel, the questions Judge Cynthia Snowden had asked to rehabilitate my dad's testimony, her refusal to admit the polygraph results, and her refusal to allow the testimony of two expert witnesses.

“I'm not trying to replow old ground here,” James said. The comment made me scoff, and the justices looked like they shared my skepticism. “But I think we need to look at the Cooper affidavit in the total context of this case. This is not a situation where the testimony of a jailhouse snitch was just one more incriminating piece in a mountain of evidence proving guilt. If you take away the testimony of Cooper, the only thing left is the disputed cross-racial eyewitness testimony of a man who failed to pick the defendant out of a lineup presented to him on the witness stand in court.”

“But, Counselor,” the chief justice interrupted. She was a conservative whom I was counting on as one of the four votes we needed to rule against Marshall. “Mr. Tate cross-examined Freddie Cooper at trial and discredited him so much that the DA hardly even mentioned Cooper in his closing. How can you ignore that and claim Cooper's testimony was the linchpin of the prosecution's case?”

“I'm not saying it was the linchpin, Your Honor. But we really don't know how much the jury relied on him. And that's the point. How can we say the state proved its case beyond a reasonable doubt apart from Cooper's testimony? One discredited eyewitness? No DNA, no confession, no corroborating evidence? This case begs for a retrial.”

“How convenient,” shot back Justice Sherman, a junior member of the court who was a former prosecutor. “The only eyewitness, as I understand it, is now dead, and your client wants a retrial.”

Yes,
I thought. It was frustrating to sit there and listen to James make these high-sounding arguments about why a killer should go free. But it was heartening to see at least a few justices challenging him. Still, as the give-and-take played out over the next twenty minutes, I couldn't tell whether we had the four votes necessary to win.

The swing vote, Justice Skelton, was a Southern gentleman, an unassuming moderate who had been on the court longer than anyone except for the chief. And Skelton just sat there, chin in his hand, listening intently but saying nothing.

What was that man thinking?

42

When Assistant Attorney General Andrew Thornton stood behind the podium, the courtroom seemed to expand. He was slender, with a head that appeared too big for his body. He peered over reading glasses as he spoke. Unlike Professor James, he carried a thick black notebook to the podium and even read his introductory remarks from it, setting forth the procedural background for the case. He started slowly; the justices appeared bored, and I wanted to stand up and deliver the argument myself.

“We've read your brief,” the chief interrupted. “We know how the case got here. Let's get to the point.”

I cringed. Why did my mother's case have to end up in the hands of this guy?

Undeterred, Thornton reached down and held up a three-page document. “I have here a second affidavit from Mr. Cooper,” he said.

I glanced at Mace James, who had been calmly taking notes. His head jerked up.

“In this affidavit, he recants his prior recantation. I would have filed this with our briefs, but we just found Mr. Cooper yesterday. I would instead like to file this with the court and provide Mr. James with a copy.”

James stood, his neck red. “At the very least, Mr. Thornton could have provided me a copy before the hearing started. This is the kind of prosecutorial misconduct that landed us here in the first place—”

The chief justice banged her gavel. “Mr. James, this is not a trial. Have a seat.” She scowled and turned back to Thornton. “And, Mr. Thornton, defense counsel is right. You could have provided him a copy before court started.”

Thornton mumbled an apology, his theatrics backfiring. “May I proceed?” he asked.

He was answered not by the chief but by the man seated to her right—sixty-seven-year-old Christopher Wright, the court's most liberal member. “This affidavit is not timely filed,” Wright said, “and frankly, it can only hurt your case. This is not a trial court. If you believe this court needs to decide the veracity of Mr. Cooper's testimony in order to determine the outcome of the case, why shouldn't we send it back for a new trial?”

Thornton didn't flinch. “If I could submit the affidavit and have Your Honor read it, you will see that it's more than just a question of Mr. Cooper's credibility. He swears in the affidavit that he was bullied into recanting his testimony by Professor James. That Professor James forcibly kidnapped him from a bar in Nashville, Tennessee, and threatened to falsely turn him in for drug possession if he didn't recant.”

Mace James was on his feet, arms spread wide.

“Sit down, Mr. James,” the chief justice said.

Thornton took it as a cue to continue. “In light of this information, which the state could not have discovered by due diligence before this hearing, I'm asking for leave to file a supplemental brief.”

“Let Mr. James see a copy of the affidavit, and provide the clerk with copies for the court,” the chief justice said.

Thornton did as he was told, and the clerk passed out copies to each of the justices. I could see the tops of all seven heads as they quickly read through the affidavit. Mace James showed his disgust while he flipped from page one to page two. I wished someone would have given me a copy.

“Continue,” the chief justice said after she had finished reading.

“Your Honors have seen the video of Mr. Cooper that was filed with the defendant's original petition,” Thornton continued. He no longer seemed so small and frail. “That video shows that Mr. Cooper had recently been in a fight. Now we know the rest of the story. The swollen left eye came from Mr. James. The video was recorded in a hotel room where Mr. Cooper was being held captive by Mr. James and his investigator. The recantation was coerced. At the end of the affidavit we just provided, Mr. Cooper reaffirms his original testimony.”

Reporters in the courtroom were tapping on their laptops, fingers flying. Now this was a story! Because Supreme Court arguments were generally dull affairs, only a few diehards had even shown up for today. Just two Atlanta stations had sent camera crews, as permitted by the court rules, to film from the alcove of the courtroom. But their glee was nearly palpable. And I could envision the headline in the
Atlanta Times
:
Law School Professor Accused of Beating Up Witness!

The motto of the Georgia Supreme Court was coming to life. Justice
was
prevailing.

When Thornton finished his argument, the chief justice granted Mace James five minutes for rebuttal. James took his place behind the podium, grabbed the sides, and stared at Thornton for a moment before addressing the court.

“That affidavit is patently false,” he said, his words seething with anger. “I'd like to know what the state promised Mr. Cooper to get it.”

“Counsel,” the chief justice said sharply, “leave the personal attacks out of it.”

“But, Your Honor, that's what this entire affidavit is. The state's using a three-time convicted felon to personally attack
me
. He lied in his trial testimony and now he's lying again.”

“Did you pull him out of a Nashville bar and threaten him?” Justice Sherman asked. The former prosecutor had probably seen his share of defense-lawyer shenanigans.

“Before the bar incident, one of my investigators recorded an admission by Mr. Cooper that he had lied at trial. Because the quality of that recording was not good, we did pull him out of a Nashville bar on the night before my client's scheduled execution to get him sober enough to do another recording and sign an affidavit.”

“Did you threaten to turn him in on drug charges if he didn't cooperate?” Sherman asked, the exasperation evident in his voice.

James hesitated, and I knew the justices had him.

“He had drugs in his possession, Your Honor. I told him that if he didn't come clean, I would turn him in. But he had already admitted that his trial testimony was false before this.”

“Did you tell the authorities that Mr. Cooper was in possession of drugs?”

There was more hesitation, crimson crawling up Mace James's neck, swallowing his tattoo and coloring his bald head. “No. I didn't believe I had an obligation to do so.”

“But you would have if he had not signed your affidavit?”

“I don't know.”

Sherman leaned forward. “Did you tell him that you would turn him in for possession of drugs if he didn't give you an affidavit recanting his prior testimony—yes or no?”

“Yes. But that doesn't mean the affidavit is untrue.”

“We'll be the judges of that.”