The Last Plea Bargain (25 page)

56

For Mace James, half the battle had been getting court approval to even conduct this test. He had filed his motion under seal because the test results would remain confidential unless they tended to exonerate Antoine Marshall. The attorney general's office had responded under seal, citing all the reasons the test itself would be inadmissible.

But Mace had done his homework. The Brain Electrical Oscillation Signature test, or BEOS, had already been used by a court in India to affirm two murder convictions. The technology had been tested and peer-reviewed by eminent neuropsychologists around the globe. Mace had attached affidavits from several of them to his motion.

The test involved the unique use of an electroencephalogram to distinguish experiential knowledge from conceptual knowledge. A suspect would be hooked up to thirty-two electrodes, two of which would be placed on his earlobe and the rest on various areas of his scalp. The suspect would sit quietly with his eyes closed as the administrator read a series of statements. Computer software would map the electrical signals the suspect's brain generated in response to the statements. Because experiential knowledge of an event is accrued only through participation in it, electrical activity would map differently than if the suspect had only learned about the event through others. In other words, the test could distinguish between memories created by experience and memories created by being told about an event.

Mace had lined up one of the top neuropsychologists in the country to conduct the test. Perhaps out of a reluctance to give Mace James another issue to complain about on appeal, the court had finally consented. But the court made it clear that it reserved judgment as to whether or not it would ultimately consider the test results as evidence. That decision would wait for another day.

Now, nineteen days before Antoine Marshall's scheduled execution, Mace James sat in an enclosed conference room at the Diagnostic and Classification Prison in Jackson, watching a scene straight out of a George Orwell book.

Antoine Marshall wore a cap with the thirty-two electrodes that measured his brain waves. He had his eyes closed, listening intently to the statements suggested by Dr. Rukmani Chandar. They began with baseline statements—“The sky is blue”—and Chandar studied the responses on the computer. Next, Chandar moved to events that he knew would elicit an experiential response, such as “In the early part of 2000, I was high on meth” or “I ate eggs this morning for breakfast.” He also interspersed statements that would only elicit a conceptual response, such as “I've argued a case before the Georgia Supreme Court.”

Once the baselines were established, Chandar carefully went through a short series of factual statements about the crime in question. “I broke into the Brocks' house at 130 English Oak Court. . . . I was carrying a gun that night. . . . I saw the open garage door. . . . I shot Dr. Brock when she interrupted me. . . . I shot Robert Brock in the stomach.”

Mace watched his client's expression as these questions were asked. Antoine showed no external reaction, his demeanor the same during the description of the crime as it was during the baseline questions. Chandar was focused only on his computer and the electrical patterns he was seeing in front of him. Mace knew it would take a few days to fully interpret all the results, but Chandar was plainly seeing something interesting even now.

Mace couldn't tell whether it was good news or bad.

The test lasted no more than an hour. After it concluded, Chandar was tight lipped about the results. “I cannot say definitively until I've had more time to analyze each pattern.”

“How long will it take?”

“Two days. Maybe three.”

Mace had waited this long. He could begin drafting the briefs now, assuming that the test results would be good news. After all, Antoine had already passed two polygraphs. How could he not pass this test? The real issue would be whether the courts would regard the results as reliable evidence. On that point, Mace knew he faced an uphill battle. But at least the battle would bring a new wave of publicity to the case, one that would center around a cutting-edge scientific test that once again confirmed his client had been nowhere near the Brock house on the night in question.

If Mace won, defense lawyers everywhere would have a powerful new weapon in their arsenal. The Fifth Amendment guarantee against self-incrimination would prevent prosecutors from using this test in America unless the defendant acquiesced. It would be like DNA evidence, but the defense would have a veto over whether or not the evidence could be used. This test alone could radically turn the tables in favor of defense lawyers everywhere.

But Mace couldn't concern himself with the broader societal implications of what he was doing. Right now he had a laser focus. He was trying to save Antoine Marshall's life.

57

The Republican primary took place on the last Tuesday in July, a date I had been dreading for more than a week. On the good side, the ubiquitous commercials featuring me and other “Women for Masterson” would finally stop running or, if Masterson won, would at least run less frequently. But on the bad side, I had volunteered to man one of the polling stations for my boss.

At the time, it had seemed like a good idea. All the other ADAs were signing up. But when I woke up at five o'clock so I could be at the polling station by six, I simply wanted to know one thing:
What was I thinking?

It wasn't just that the forecast called for temperatures around ninety degrees and morning rain showers; it was the very thought of going to a strange place and greeting people I didn't know—who probably didn't want to talk to me—so I could urge them to vote for Bill Masterson. I believed he was the best candidate. But I always hated those bothersome poll workers when I went to vote. Today, I would be one of them.

I arrived on time and sat down at the
Masterson for AG
table with another volunteer. She had already placed a few Masterson signs at the curb and around the parking lot, but the area was dominated by Andrew Thornton's signs. When the Thornton volunteers finished setting up their large tent with free bottled water, right next to our much smaller Masterson table, my competitive juices kicked in. The other Masterson volunteer was content to sit behind the table and answer questions, but I joined the Thornton volunteers on the sidewalk, jockeying for position so we could be the first to greet the voters.

A steady rain moved into the area by eight o'clock, and the Thornton volunteers started jogging toward the cars of any voters who didn't have umbrellas, sharing a big golf umbrella and walking next to them until they reached the bubble zone around the polling place where campaigning was prohibited.

My coworker headed to her car to wait out the storm. Not me. I got out my own small umbrella and tried to escort voters too, though I got soaking wet in the process.

By noon the rain had stopped, but the parking lot felt like a sauna. I was tired of being outnumbered and outhustled by the Thornton folks, so I decided to bring in some reinforcements. I left my coworker at the polls for thirty minutes while I drove home and picked up the wonder dog. When we returned, Justice greeted everyone with the tongue-hanging, tail-wagging enthusiasm of a black Lab. People would stop and talk. And for the rest of the afternoon, I had a constant huddle of people around me as I explained how Bill Masterson was working hard to make sure criminal defendants didn't succeed with their no-plea-bargaining strategy.

At three in the afternoon, Masterson himself came by, and our little crowd of well-wishers grew. He stayed for about two hours and gave me a fist bump before he left. “You're a natural politician,” he said.

“You owe me,” I replied.

That night, Masterson's supporters gathered in a Marriott ballroom. There were unconfirmed rumors that Bill had run away with the nomination. I sipped a Diet Coke and made small talk with my officemates, wishing I could be home working on Caleb Tate's case. At nine fifteen, local television stations began calling the race in Bill's favor. He took the stage at nine thirty, and the room erupted.

I was genuinely happy for the man. He thanked a long list of people, including me and most of the other prosecutors in our office. I didn't like the political process, but I was pleased to see a good man have a chance at statewide office. And selfishly, it wouldn't hurt my career to be on a first-name basis with the attorney general.

I didn't get home until eleven o'clock, and I absentmindedly grabbed the mail at the end of the driveway. My first order of business was to let Justice out. While he was outside, I shuffled through the bills and magazines I had picked up. Among them was a letter with a handwritten envelope and the return address for Antoine Marshall. I stared at it for a moment before finally summoning the emotional energy to open it.

The letter was two pages of small block printing. It had been years since he had sent me a few letters, and I couldn't believe what I was now reading.

I was so shocked that I had to read the letter twice just to convince myself it was real. Marshall had been fighting this case for twelve years, and now, just seven days before his second scheduled execution date, I finally had what I always craved: an admission of guilt.

Dear Ms. Brock:

I am writing to tell you how sorry I am and to ask your forgiveness. My lawyer does not know I am sending this letter and would probably tell me not to, but I had to anyway.

For twelve years, I believed I was innocent of the charges against me for the murder of your mother. I passed a lie detector test—actually two—and I do not remember ever being in your house. But I just went through a test that scanned my brain when they asked me questions about the shooting of your mother. The doctor who gave me the test said my brain activity showed I had been there that night.

I must have been high on meth or something because I honestly don't remember.

I know you probably can't forgive me but I've prayed to God and know that he has forgiven me. After I gave my life to him, I told him I would do the right thing from that day forward and this now seems like the right thing. I am sorry I have put you through twelve years of hell and eleven years of appeals, but soon you won't have to worry about that no more.

I pray that you will find it in your heart to forgive me. I am having a hard time forgiving myself.

Sincerely yours,

Antoine Marshall

I finished the letter, folded it neatly, and placed it back in the envelope. I couldn't begin to make sense of my feelings. I was numb with the shock of it. Could this really be happening? After all these years?

I had to tell somebody, so I picked up the phone and called LA. I started reading him the letter, but halfway through I had to stop, my voice choking on the emotion.

“Are you okay?” he asked. I loved hearing the concern in his voice, but I honestly didn't know how to answer.

He gave me a moment to gather myself and then asked softly, “Do you want me to come over?”

“I'm okay,” I said. “I really am okay.”

Mace James was not okay. His novel concept for proving Antoine's innocence had backfired. Since receiving the results, Mace had tried to downplay the reliability of the BEOS test, but Antoine wasn't buying it. And Mace himself was left to wonder whether he was truly defending an innocent man or just one who had been so high he hadn't remembered the night of the murder when he took the polygraph.

But what did it really matter? Mace had a job to do; he had seven days to save Antoine's life. The debate over the reliability of the BEOS test and Antoine's innocence could be fully resolved later. Mace's job was to make sure his client was still around when it was.

58

I woke up on Wednesday, August 1, the day after receiving the letter from Antoine Marshall, and opened it again. I reread it while I drank my morning coffee. The euphoria of finally having an admission from my mother's killer had worn off. Melancholy took its place, a strange sense of despondency that I could not shake.

I had always been honest with myself, even hard on myself—something Dr. Gillespie had been trying to beat out of me in my counseling sessions. It wasn't working. And this morning, I had second thoughts about the way I was handling the information about Judge Snowden.

Antoine Marshall was a thrice-convicted felon who had the integrity to send me a letter revealing evidence that might just seal his fate. And here I was, an attorney sworn to uphold the law, sitting on evidence that might have provided him with a way off death row. Sure, I had lots of rationalizations and justifications. And in terms of true justice, I now felt more vindicated than ever. Antoine Marshall had certainly killed my mother. But did that justify burying evidence that might give him a new trial?

The system sometimes required us to set guilty people free in order to protect the integrity of the process and everyone's constitutional rights. When I took my oath as a prosecutor, I was reminded by Bill Masterson that our job was to pursue justice and not just win cases. But now, on the most important case of my life, I was playing fast and loose with the rules.

I had no appetite for breakfast. The information about my dad haunted me; I couldn't do anything to take my mind off it. I watched Justice in the backyard, but I didn't really see him. Instead, I zoned out, wondering whether I had compromised my integrity and ethics to such an extent that my soul would never recover.

Antoine Marshall's execution was six days away. What would happen if I provided this information to Mace James now? Was it too late to matter? Even if it wasn't, would the attorney general be able to use this new letter from Antoine to offset the impact of the information about Judge Snowden and my father? Should I even be asking these types of questions? Phrased differently, could I really sit on this exculpatory evidence and watch the state put Antoine Marshall to death?

I needed to talk to Dr. Gillespie. I called him before I left for work, and he promised to squeeze me in as soon as I got out of court.

I talked to Chris later that afternoon. He had left four messages earlier in the day about a similar letter he had received. I had procrastinated calling him, knowing it would be emotionally draining to discuss it.

He answered on the first ring. “Did you get a letter?” Chris asked.

“Yes. I had to read it three times before it sank in.”

“Me too. I've been calling since last night.”

“I know. You might have heard we're a little busy down here.”

Chris was slow to respond. Knowing my brother, I realized he was getting up the courage to tell me something. “Jamie, I think this letter is genuine. I know how you feel about this, but I really believe Antoine Marshall has experienced a sincere religious conversion and that this brain test helped him come to grips with what he did. I'm not saying he's innocent, but I am saying he's not the same man today who he was back then.”

Chris stopped and waited for a response.

I thought it over, choosing my words carefully. “I deal with guys like Antoine Marshall all the time. They all claim to have come to Jesus in prison. Helps them get a better sentence. I think it's highly suspicious that he finally admits guilt just one week before his execution but only after he's tried everything else to get his case reversed.”

“His lawyer called today.” Chris kept his voice soft. I knew he didn't want an argument, and in truth I didn't either. “Wants to know if I'll give an affidavit urging that Marshall's death sentence be commuted to life without the possibility of parole.” He hesitated, probably expecting an explosion from me. When none came, he dropped his own bomb.

“I'm thinking about giving him one, Jamie. I've never been in favor of the death penalty, and I don't think I could live with myself if I didn't ask for mercy here. I keep coming back to the Sermon on the Mount, where Christ tells us to forgive others if we want to be forgiven.”

“We've both got to do what we think is right,” I said. I knew Chris expected more of a fight, but I was too weary and frazzled to talk about it. Even though I faced my own ethical dilemma surrounding Marshall's execution, I now felt abandoned by my older brother. Antoine Marshall had killed our mother, and my brother was going to voluntarily sign an affidavit suggesting that the man's life be spared? It felt like treason to me.

“Will you still go to the execution with me?” I asked.

“Yes. And I'm praying that you can find it in your heart to forgive this man even if you believe the state should put him to death.”

“Then keep praying. Because right now, I'm not feeling it.”

Clarity came halfway through my session with Dr. Gillespie. For the first time, I told him everything about the predicament I found myself in. True to form, he listened patiently and asked insightful questions. When he spoke, his words were measured and illuminating. He helped me look at my dilemma in a whole new light.

“At the core of your being,” he said, “you're committed to fairness and justice. Withholding evidence from Mace James and watching Antoine Marshall die would be like raping your soul.”

I said nothing.

“On the other hand, you also have a need to protect your father and preserve the ideal of this perfect family that was torn apart by Antoine Marshall.”

“So what should I do?” I asked.

“You should hold fast to the good memories of your dad and remember that he loved you very much. Nothing can take that away. But you've also got to embrace your father's shortcomings.

“Nobody's perfect, Jamie. We learn from our parents' mistakes and create a better world for ourselves and our kids. We only compound their errors by trying to cover them up.”

I left Gillespie's office saddened by the prospect of what I had to do. I would tell my boss about the evidence linking my father and Judge Snowden. He would feel duty-bound to share that data with Mace James. In a worst-case scenario, Antoine Marshall would walk out of jail a free man.

And so I prayed. Not that I would find it within me to forgive Antoine Marshall. My prayers had more of an Old Testament flavor—that one way or another, Antoine Marshall would get the type of justice he undoubtedly deserved.