The Last Plea Bargain (21 page)

48

On Thursday night, I went into my dad's study and riffled through a corner filing cabinet. In the third drawer down, I found the VHS tapes my father's law partner had used to record the trial of
State v. Marshall
, which had been broadcast by Court TV. During law school, I had promised myself many times that I would watch the entire thing from gavel to gavel but had never mustered the emotional energy to do so.

I hooked up an old VCR in the family room, and it took me about twenty minutes to find the section I wanted. Judge Snowden's rulings had been dissected on appeal and criticized endlessly by Mace James but always upheld by the appellate judges. However, there had been some strong dissents about whether Caleb Tate should have been allowed to call an expert witness to testify about how the cops had supposedly manipulated my father into a faulty identification of Marshall.

From the beginning, the police had suspected Antoine Marshall. He had been previously arrested for breaking and entering to feed his meth habit. According to Caleb Tate, the cops had planted characteristics of Antoine Marshall in my father's mind with their suggestive questions: Did the suspect have dreadlocks? Was he African American? Did he appear to be thin and athletic?

When they showed a lineup to my dad, Marshall was the one person who displayed all of the characteristics seeded in my dad's brain.

As she did with the expert on cross-racial identification, Judge Snowden ruled that this testimony about the so-called faulty lineup was inadmissible. However, she did let Tate proffer the testimony outside the presence of the jury to establish a record for appeal. I found the start of the proffered testimony and watched it with an uneasy feeling in the pit of my stomach.

The expert's name was Dr. Natalie Rutherford, a diminutive and energetic professor of psychology at the University of Michigan who had published extensively on the issue of creating false memories. She had qualified as an expert in numerous other cases. In one notable trial, she had testified about a psychiatrist who had planted false memories in a patient under hypnosis. That patient came to believe that her priest had repeatedly raped her when she was a young child. But during the investigation for the criminal case, it was discovered that the patient was a virgin. The priest sued the psychiatrist, and Dr. Rutherford testified on behalf of the priest. The jury returned a verdict of $2.5 million.

Together with her students, Dr. Rutherford had conducted more than one hundred experiments involving over five thousand individuals in an attempt to document how misinformation creates memory distortion. One of her favorite tricks was to superimpose a picture of someone as a child, together with a parent, onto a photo of a place the person had never been. After viewing the image, that person would be asked to describe the experience pictured. Most subjects provided vivid details, remembering nuances about events that had never occurred.

Rutherford testified that the same phenomenon occurred when individuals tried to recall more-recent events. Our memories, she said, are constructed by combining actual memories with the content of suggestions received from others. Inaccurate memories, formed in part based on inaccurate suggestions from others, would be as compelling and real to a person as accurate memories.

Rutherford also testified about how we synthesize our memories by recalling certain details accurately and then filling in the blanks with details obtained from others. Once these new details become part of the event, they are seared into our memories just as certainly as the details we recalled independently.

On a theoretical level, even I had to admit that her testimony made sense. I thought about the case of the DC sniper attacks, when a media report had stated that the suspects might have been driving a white van. Immediately afterward, several witnesses at the scenes of several different shootings reported seeing a white van fleeing right after the shootings. When the suspects were eventually apprehended, they were driving a blue sedan.

Dr. Rutherford's example was even more memorable. People who had visited Disney World were shown a fake picture with text that described how they shook hands with Bugs Bunny. When they were asked what they remembered about that encounter, most of the subjects remembered hugging Bugs Bunny, and a few remembered touching his ears or tail. Others specifically recalled that Bugs Bunny was holding a carrot at the time.

Dr. Rutherford smiled, trying hard to win over a skeptical Judge Snowden. “Bugs Bunny is a Warner Brothers cartoon character,” she said. “He would never be allowed to set foot in Disney World.”

Moving to the case at hand, Rutherford testified that she had carefully reviewed the original lineup shown to my father and the questions that had been asked during the preceding police interview. It was her opinion, based on twenty-six years of studying the phenomenon of creating false memories, that the police had done so with my father. Antoine Marshall was no more likely to have committed the crime than any other person within driving distance of our house that night.

Judge Snowden listened carefully and then affirmed her earlier ruling that the testimony was inadmissible. “It seems to me that you simply want to use Dr. Rutherford to take the place of the trier of fact and tell the jury why they should or should not put weight on Mr. Brock's eyewitness account,” Judge Snowden said. “It's a clever attempt, Mr. Tate, but the court is not going to allow it. It's no different than your proffered testimony on cross-racial identification.”

The jury never heard Dr. Rutherford, and at the time I was glad. But now, with the new information about the success my father had enjoyed in Judge Snowden's courtroom, the Rutherford testimony bothered me. Could she be right? Had my father been unwittingly set up by the cops? And if so, could that mean my mother's killer was still at large?

The last twelve years of my life had been defined by an absolute certainty that Antoine Marshall had killed my mom and deserved to die for it. So much of my energy and time had been spent trying to make him pay for what he had done. I couldn't allow myself to doubt that now.

My father
had
to be right. Even if he did have uncanny success in front of Judge Snowden. Even if, God forbid, he was blackmailing her somehow, there was no motive for him to try to put an innocent man to death. My father couldn't be wrong about this.

Could he?

49

I had never understood how my father could continue to be a defense lawyer even after my mother's death. On Friday morning, sitting in traffic on my way to work, I considered that question again in a different light. Things that appeared innocent and even noble before now seemed more foreboding if Caleb Tate was telling the truth.

In the first few days after talking with Tate, I had refused to even consider the possibility that my father might have been corrupt. Even after I checked the results of his cases, I still chose to believe that there must be some innocent explanation. But as the week progressed, I found myself reliving past events, looking at them through the prism of this new information. And I began to wonder if my dad might have been keeping some very dark secrets.

I remembered, for example, a particularly poignant conversation at a P. F. Chang's during my junior year of college. I had just ordered the chicken dumplings. My father was eating beef fried rice. My brother was there as well. I was home for winter break, and I had decided to go to law school to become a prosecutor.

“How can you still be a defense lawyer after what happened to Mom?” I asked my dad.

Chris grimaced. My dad and I always spoke bluntly with each other, but Chris didn't like confrontation in the family.

My dad put his fork down and wiped his mouth. “Good question. And I'm not sure anything I say will convince you that it's been the right thing to do, but you should at least know that I've given it a lot of thought . . .” He hesitated, then added, “. . . and a lot of prayer.

“Your mother fell in love with me when I was a defense attorney. Even after we were married, she would testify as an expert on both sides of cases. Her biggest thrill was working with me to defend someone who was innocent. So, Jamie, I know you want to honor your mom by being a prosecutor, and I think that's noble. But I hope you can see that there's some nobility on the other side as well.”

“In theory, I see that,” I had said, taking a bite of my food. “But when's the last time you defended a person who was truly innocent?”

“Here we go,” Chris said.

My dad took a bite and started talking, as he always did, before he swallowed. And it was his answer that was tumbling through my mind now. “There's no such thing as a truly innocent person, Jamie. Evil is part of our nature. Some learn to control the evil impulses. Others don't. I represent the ones who don't. But they're really not that much different from us.”

“So Antoine Marshall and Chris are basically the same?” I asked. I played it safe and used my brother as the example of innocence, given my own somewhat-checkered adolescent history.

“Actually,” Chris said, turning into the preacher boy, “if you read the Sermon on the Mount, we are. Anyone who's angry with his brother is the same as someone who murders. If I lust after a woman, I've committed adultery. Dad is right from a theological perspective. We're all guilty if you look at our hearts.”

I loved my brother. But at the time, one year into his theological education, he was hopelessly preachy. “With all due respect,” I said, “I'm more of an Old Testament girl when it comes to justice. Let their children become fatherless and all that.”

“Funny,” my dad said, “you seemed to be a lot more enamored with mercy during your teenage years.”

In high school, I had been grounded a few times. Okay, quite a few. But that was different.

“In my logic class, Dad, we call that an attack ad hominem.”

My father's words hadn't convinced me that night, but I gave them some serious thought during my time in law school. I watched his law practice from a distance and admired the way he represented his clients. And I came to accept, at least at the time, that it was his own way of honoring my mom.

But now I had to ask the question. Could it possibly be that my father had been part of a corrupt system? Even thinking it, I felt like a traitor. How could I doubt my own father? But how else could that data be interpreted?

When my father died, I felt like someone had ripped out my heart. A part of me had died with him. But as Chris had reminded me, at least I had the memories.

Now I wasn't so sure. It felt like a cancer was eating at the memories, turning every happy moment into something sinister. It was hard enough to lose a father's love. It was harder still to lose a family's legacy.

50

On Memorial Day, the
Atlanta Times
ran a front-page story on the mess in the Milton County judicial system. For the first time, the story connected the deaths of Ricky Powell, Rontavius Eastbrook, and Jimmy Brandywine to the no-plea-bargaining pact among the felons. The story quoted heavily from “a source with ties to the Milton County prosecutor's office and police department,” and I knew it had to be LA.

The source noted that plea bargains had stopped right after Caleb Tate had spent a few days in jail. Tate's firm now represented leaders from two of the most powerful gangs. The writer stated that Tate had not been charged with any crimes other than the murder of his wife, but anybody with half a brain could have read the article and connected the dots. They were the same dots LA and I had connected shortly after the inmates launched their rebellion.

I called LA. “Nice article,” I said.

“There's an article? In today's paper?”

“Right.”

He laughed. “Are you implying I'm the unnamed inside source? Do you really think I'd give Caleb Tate that much free publicity? His phone's probably ringing off the hook with clients.”

There were rumors that LA was having a fling with one of the female reporters at the paper. But then again, there were rumors about LA having flings pretty much everywhere.

“Have you come up with anything concrete tying him to the three killings mentioned in the article?” I asked.

“Not yet. But when I do, you'll be the first to know.”

The next day, everyone in our office received a memo from Bill Masterson. The subject: our new response to the plea bargain crisis.

I'll be holding a press conference later today to announce a change in strategy for dealing with the crisis in the Milton County judicial system. I wanted you to hear it from me first.

As you know, enabling legislation authorizing me to deputize private-firm lawyers has gone nowhere. Accordingly, we're taking a different approach.

First, we need to increase personnel. Ten large firms in the Atlanta area have each volunteered to send one of their associates to me for the next six months. This means the firm will pay the salary of the associate, but he or she will be an employee of the Milton County DA's office and accountable to us. A similar arrangement has been made with ten other firms that will help the public defender's office. We don't need enabling legislation to do this, because they will be treated as employees, not volunteers.

In two weeks, once these attorneys are trained, they will be responsible for handling a large chunk of our misdemeanors. But still, this increases our workforce by only 25 percent, whereas our caseload has gone up 900 percent. And these new attorneys won't be ready to handle felonies for several weeks. Which leads me to part two of the plan.

From now on, each of you should triage your cases. We can't continue to prosecute all the cases that come across our desks. Prioritize. Devote your attention to violent repeat offenders and reputed gang leaders. Let the small operators and nondangerous felons go.

Which ties in with part three. A big challenge for us right now is the overcrowding of our prison system. In the last few days, three federal lawsuits have been filed alleging that the jail is overcrowded to the point that it constitutes cruel and unusual punishment. This situation will only worsen as we warehouse criminals awaiting trial.

Accordingly, starting this week, we will release all nonviolent offenders on a personal recognizance bond. In addition, we will no longer seek jail time for nonviolent offenders.

Our first responsibility is to protect the citizens of Milton County from those who would inflict physical harm or death. In the present crisis, we need to make some difficult choices. Either we can continue down the current path and allow many violent offenders to slip through the cracks, or we can crack down on them and allow others a second or even third chance.

Please see the attached guidelines that divide the crimes into violent/nonviolent categories and specify the types of bond requests and sentences we will now be seeking.

Bill Masterson held his news conference at eleven. I wasn't able to watch because, like the other prosecutors, I was busy in court. But over my lunch break, I heard that Masterson had explained the new guidelines and handled a myriad of questions in his normal blunt and straightforward manner. The story was now a national news feed, and commentators were applauding Masterson's leadership in a time of crisis. They liked the emphasis on prioritizing violent crimes and believed this could be a template for other jurisdictions facing similar challenges.

I had mixed emotions about it. I understood the practical need to prioritize, but I hated the thought of drug offenders getting off without any jail time. Addicts would eventually turn to violence, if that's what it took to feed their addictions. When they did, innocent people would die, and families would be shattered. Families like mine.

But I didn't have a better plan, so I didn't criticize Masterson's. Somehow we had to break the back of this criminal cartel.

When I returned to Milton County Superior Court that afternoon, LA was waiting for me on the other side of the metal detectors with a blonde-haired woman who looked to be a few years younger and three or four inches shorter than me.

“Jamie, this is Megan Armstrong, Rafael Rivera's probation officer.”

I shook hands with Megan. “Nice to meet you.” I turned to LA. “I'm running late for court; can you walk with me?”

“Sure.”

We headed down the hallway and up the escalator, LA at my side and Megan trailing half a step behind.

“Somebody tried to kill Rafael Rivera last night,” LA said.

I muttered a curse but didn't slow down. It seemed like the bad news just kept piling on.

“Drive-by shooting. Rivera's got the shattered windows and bullet holes in his car to prove it. Fortunately—or unfortunately, depending on your point of view—he managed to get away.”

“Without him there's no case against Caleb Tate. So I guess I'd reluctantly fall into the ‘fortunately' camp,” I said. We were now going up the escalator steps as fast as I could, and Megan was falling farther behind.

LA lowered his voice. “I talked to him this morning. He's actually running scared.”

“Good.”

“We can't lose him. And we don't have the resources to give him any kind of protection.”

We arrived at the top of the escalator, and I checked my watch. Already three minutes late. And it was Judge Westbrook, who liked to start on time.

I nodded toward a corner. “This has got to be quick,” I said as Megan finally caught up.

“It will be.”

The three of us huddled together, and LA explained his idea. He suggested that we get a private hearing with one of the judges and ask for modification of Rafael's probation terms. We could send him to California, where he would be supervised by one of LA's friends who worked as a probation officer. We could also make Rivera call Megan daily and update his status. “We need to get him out of Atlanta,” LA said. “At least for the next few months, until the trial starts.”

I didn't like it. I was afraid Rafael was just playing the system and would disappear once he got outside the jurisdiction of Georgia's courts. “Can't we send him down to Savannah or someplace like that?”

LA shook his head. “I checked out his car, Jamie. These guys are playing for keeps. We've already lost three convicts who copped a plea. We can't afford to lose Rafael.”

LA was right. But I didn't have to like it.

“I'm supposed to be in Judge Westbrook's courtroom,” I said. “After I finish, let's find Judge Brown and see if he'll modify the terms of Rivera's probation order.”

At nine o'clock the next night, Rafael Rivera boarded a plane to California. LA promised me that I would see Rivera again on August 20, the first day of Caleb Tate's trial.

Mace James was fired by text message. Caleb Tate didn't have the guts to call or even the class to send a letter or at least an e-mail. No, he shot off a text message. Actually, two text messages, back to back, because it wouldn't all fit into one.

Mace, I'm grateful for your help on my case, and you've done good work. But I'll no longer need your services, b/c I've decided 2 represent myself.

I know, a fool for a client and all that, but I think it's the way 2 go for now. Thanks for understanding. Caleb.

There was no mention of the trouble swirling around Mace from the Antoine Marshall mess. But Mace wasn't stupid. And in a way, he couldn't blame Caleb. Caleb Tate had enough problems of his own right now. He didn't need a lawyer who was being investigated by the state bar and who had just been suspended from his job at Southeastern Law School.

And frankly, it was good riddance. Though Mace believed in Caleb's innocence, he was pretty sure Caleb was behind the no-plea-bargaining strategy that had already cost three men their lives. Mace didn't want that kind of blood on his hands.

By the time he read through the text messages a second time, Mace actually felt like he could breathe a little easier. In addition to his concerns about Caleb Tate, Mace had only two months and a few days before the scheduled execution of Antoine Marshall, and he wanted to devote all of his time and energy to saving his client's life. Caleb Tate's case was scheduled to start just thirteen days after Marshall's scheduled execution. And now Mace had been granted a reprieve on Tate's case.

He felt like a bit of a new man.