Unintended Consequences (21 page)

“Robert Wilson’s counsel strayed so far below the range of professional competencies as to be shocking. This court should recognize the travesty that has occurred and rule that George Calhoun’s conviction be set aside. Thank you.”

She sat down and Melanie leaned over to whisper into her ear. “Good job. Smithson seemed really intent on what you were saying.”

Getty was dressed just as smartly today as yesterday, this time in a navy suit with a pink-and-white-striped shirt crisply tucked into her straight skirt. She stood and addressed the judge.

“Good morning, Your Honor. Defendant’s counsel would have you believe that in order for an attorney to be competent, he must be prescient as well. She seems to think that Mr. Wilson should have known that, one day in the future, DNA evidence would be used in criminal proceedings, and urged the trial court to undertake the expense. She thinks that despite an outright admission from Mr. Calhoun’s wife that the dead child was theirs, Mr. Wilson should have looked into his crystal ball and known that she lied. It’s absurd. Sallie Calhoun is spending twenty-five years to life in prison because of her role in the death of that child. No reasonable attorney would think that she lied about something that would result in her incarceration for the remainder of her years.
Strickland
says that an attorney can make a reasonable decision that an investigation is unnecessary. Mr. Wilson did just that in this case.

“The other instances of alleged incompetence that Ms. Trumball references in her brief are all inconsequential. Even if Mr. Wilson erred, which I don’t believe he did, those errors would have had no impact on the verdict.

“Now, five years or so ago, Mr. Calhoun, for the first time, offered Mr. Wilson a story that seemed so wild that any attorney would have been suspicious. The letter came as Mr. Wilson prepared Mr. Calhoun’s last appeal. It seemed like a desperate move to him, as it would to most attorneys. Should he have dropped everything and said, ‘Let’s get a DNA test?’ Hardly.

“Defendant’s counsel is trying to convince this court that a DNA test could prove her client’s innocence. But that’s not what you’re being asked to decide. The question before you is whether Mr. Wilson exercised his professional judgment in a manner consistent with other attorneys. The only answer to that is absolutely yes. Thank you.”

“Okay, counselors,” Judge Smithson said. “I understand the urgency of this case, and I’ll do my best to give you a ruling as quickly as possible.”

With that, the matter was finished. Once again all they could do was wait. They left the courtroom and turned their cell phones back on. Dani’s phone beeped, alerting her to a message. She waited until they’d left the courthouse to retrieve the message. It was Bruce, letting her know that the state court had scheduled a hearing on the appeal of the exhumation case for Thursday. It made no sense to travel back to New York that night only to return the next day. She informed the others and they headed back to the hotel to extend their reservations.

“What’s your assessment?” Tommy asked as they walked to the Holiday Inn.

Dani shrugged. No matter how well or poorly she thought a hearing had gone, the decision often surprised her.

“I thought Getty’s closing was pretty weak,” Melanie said.

“She made some good points,” Dani said. “But it only matters what Smithson thinks. His reputation is good—smart, fair to both sides instead of a prosecutorial bias. But I’m worried. If he doesn’t rule in our favor, we’ll need to get a petition in to the court of appeals fast. Melanie, we’ll have some time tomorrow. We should get started on that just in case.”

Dani knew they were fighting an uphill battle. The chance of getting a convicted killer freed on grounds of ineffective assistance of counsel was small. Of the 107 death sentences handed down in Indiana since 1977, when the United States Supreme Court reinstated it as a potential penalty, only two men had been exonerated of their crimes, one of them two weeks before the scheduled execution and the other three days before. Yet she knew that many more on death row lacked the money to pay attorneys proficient in capital cases and lacked the resources to hire experts to refute those put forth by the prosecution. It wasn’t the color of their skin that was the biggest hurdle to obtaining justice; it was the color of money.

They arrived at their hotel and, after arranging to extend their stay, retreated to their separate rooms. Each of them focused on preparing for the next task: getting a court to allow them to exhume the little girl’s body. Hours went by until the ring of her cell phone interrupted Dani, who’d been absorbed in her work.

“Ms. Trumball?” the voice at the other end asked.

“Yes.”

“This is May Collins, Judge Smithson’s secretary. He’d like you to be at his court 10:00 a.m. tomorrow. He’s going to read his decision from the bench.”

“Thank you. We’ll be there.”

She hung up and wondered what it meant. Had Judge Smithson reached his decision quickly because their case was compelling or because he wanted to give them enough time to appeal? She called Melanie and Tommy to let them know. “Melanie, this means it’s especially important to have our papers ready in case we need to appeal. It goes to the court of appeals in Chicago, so we’ll need to overnight the papers as soon as they’re ready. That is, if we lose tomorrow.”

Melanie was chipper. “I really feel we’re going to win.”

“Well, just in case, get the appeal ready.”

“Gotcha, chief.”

Dani worked through dinner, ordering room service instead of joining Melanie and Tommy, but by nine o’clock she was bushed. It was just as well; it was honeymoon hour. She called Doug.

“How’s it going?” he asked.

“I’ll find out tomorrow morning. The judge will have his decision then.”

“How are you holding up?”

“I’m exhausted. Not just physically. Emotionally too.”

“It’ll be over soon.”

“Yes, but how? That’s what’s draining me. I know he’s innocent, I just know it. Only I don’t know if there’s enough time to save him.”

“We have an imperfect system. As long as there’s a death penalty, some innocent men and women will die.”

Suddenly, the combination of her fatigue and worry overwhelmed her, and she burst into tears. “It’s wrong, it’s so wrong,” she said through her sobs.

Doug let her cry herself out. “It’s better now than it used to be,” he said after she calmed down. “At least in some cases there’s DNA evidence to clear an innocent person. That wasn’t always the case. Maybe twenty years from now there’ll be some new scientific advance that can conclusively tell when a person is being truthful or lying. Maybe fifty years from now genome mapping will be complete, and scientists can figure out whether a person’s genes make him capable of murder. Maybe if those things happen, or others that we can’t even imagine, maybe then there won’t be any innocents sitting on death row. In the meantime, you can only help one prisoner at a time. And for now, that prisoner is George Calhoun.”

Dani dabbed her eyes with the napkin from her dinner tray. “If only we’d been able to find some evidence that Angelina had been left at the Mayo Clinic.”

“And you’re convinced she was?”

“Yes. Absolutely convinced.”

“Then Calhoun is lucky he has a lawyer who believes in him.”

“Now if he only has a judge who feels the same way.”

“Maybe he does. You’ll find out tomorrow.”

By ten o’clock her eyelids started drooping. She said goodnight to Doug and got ready for bed. As she set the alarm, she felt prepared for whatever would happen tomorrow and each of the remaining days until Calhoun’s execution date.

“I’m going to read my decision into the record,” Judge Smithson said after they were all assembled in his courtroom. “Defendant has come before this court on a habeas corpus petition claiming that he received ineffective assistance of counsel in violation of the state and federal constitutions. This proceeding is the first time he has raised such a claim, but it is not unexpected, as his trial and appellate counsel were the same. The burden is on the defendant to show that his lawyer’s performance fell below an objective standard of reasonableness and that there is a reasonable probability that the results of the proceedings would have been different if not for his attorney’s errors. In looking at the reasonableness of the attorney’s conduct, we must view it in light of the circumstances at the time of the proceedings. We may not apply subsequent knowledge or conduct to a prior period. Defendant claims that his attorney failed to perform a proper investigation into the facts during the pretrial stage. Yet defendant’s own conduct led to such failure. Defendant’s wife asserted the dead child was their own, and although defendant denied such was the case, he steadfastly refused to inform his attorney as to the whereabouts of his daughter. Given those facts, it was not unreasonable for his attorney to forgo an investigation. Nor was it unreasonable for him not to seek exhumation of the child’s body twelve years later in order to conduct a DNA test. Once again, the defendant’s conduct over those twelve years would lead a reasonable attorney to believe his claim was ‘grasping at straws.’

“The remaining claims of ineffective assistance do not rise to the level of prejudicial conduct. For these reasons, defendant’s petition is denied and he is to be remanded back to Indiana State Prison.”

Dani’s hands shook. She willed herself not to cry. It wasn’t over yet, she kept telling herself. Not for thirteen more days.

C
HAPTER

24

I
ndianapolis was home to the state court of appeals. Dani felt as if they’d come full circle from their visit there just a few short weeks ago. Their case wasn’t scheduled until the afternoon, so she’d decided to visit Sallie once more at the Indiana Woman’s Prison. Dani was already seated in the interview room when the door opened and Sallie entered, still gaunt, still lifeless.

“Hello, Sallie. Do you remember me?”

She nodded. Like she’d done during the first interview, she stared down at the table.

“I’ve been speaking to George, your husband.”

She looked up. “Is he still alive?”

“Yes.”

“Tell him I’m sorry,” she said, her voice barely a whisper.

“Sorry for what?”

“He’ll know.”

“Sallie, George told me what happened to Angelina.”

Tears started to roll down Sallie’s cheeks. She remained silent as she rocked back and forth. Finally, she said, “We killed her.”

“How did you kill her, Sallie?”

“George knows.”

“George told me Angelina was sick, that she had cancer. Do you remember that?”

“We killed her.”

“But how, Sallie?” The frail woman sitting across from Dani looked ghostly, with her white pallor and skin so translucent that her bones showed.
She believes she killed Angelina. She’s so cut off from reality that she can’t tell the difference between murder and abandonment. Unless George lied to us. Could they have killed her out of a misguided sense of mercy? To spare her more suffering?
“Do you remember that Angelina’s cancer came back?”

Sallie stopped rocking. “They wouldn’t help her. We couldn’t pay them, so they wouldn’t help her. How could they do that? How could they turn a child away?”

“They should have treated her. It was cruel.”

Sallie nodded. “You see. You understand.”

“Yes, I understand. You had no choice. Tell me what you did.”

Suddenly, a wail of anguish erupted from deep within Sallie. She wrapped her arms around her body tightly. “We were supposed to care for her. We were her parents. She needed our comforting, our little baby, our precious little girl. She needed us.”

Dani said nothing for a while and left Sallie alone with her memories. When her rocking stopped, she asked, “Did George kill her to end her suffering?”

“We didn’t end her suffering. We did worse, much worse.”

“Did you leave her at the Mayo Clinic?”

Sallie nodded.

“Was that George’s plan?”

Another nod.

“You didn’t want to do that?”

Sallie shook her head.

“Is that why you said you and George killed her?”

Sallie stared at her, her eyes alive for the first time with a burning intensity. “We did kill her. We left our baby alone and sick with no one around to love her and take care of her. That’s murder, isn’t it?”

“No, Sallie,” Dani said. “I don’t know whether it was right or wrong, but it wasn’t murder.” She let the words sink in. “Did you want to be punished for what you and George did, for leaving Angelina at the hospital?”

“Yes.”

“Do you think George should be killed for doing that? For making you go along with it?”

Sallie remained silent for a long time. Again, her arms were wrapped tightly around her body, the skin under her hands beginning to turn purple with bruises.

“Sallie? Can you answer my question?”

Sallie looked at Dani with lifeless eyes. “I will hate George for the rest of my life for what he did.” She stood up to leave, and Dani thought she was finished, but she stopped at the door and turned to her. “Yes, I think George should die,” she said and left the room.

Dani had nurtured a dim hope that, with the truth out in the open, Sallie would agree to give her an affidavit, a sworn statement that confirmed what she and George had done with Angelina. But it was obvious that she wouldn’t, and Dani didn’t even ask. Instead she now knew that George’s tale was absolutely true. Had there been a kernel of doubt that she’d pushed away, it no longer existed. Now it wasn’t her
belief
that George was innocent—it was a fact.

Three robed judges sat behind a raised mahogany bench. The small courtroom had only six rows of seats behind the swinging gate. Dani, Melanie, and Tommy sat in the third row. Their case was fourth on the court’s calendar, and they waited while oral argument took place in the cases before theirs. Two of the cases were civil, one a criminal matter. As Dani listened to the arguments, it became apparent that this was a “hot” bench—the judges had read the briefs submitted beforehand and were actively engaging the attorneys in questioning.