Suspicion of Vengeance (20 page)

"I
know."

"You mustn't invest all your emotional energy in a case like this one. The odds aren't good."

"Anthony,
please
stop being so negative."

He looked at her awhile, then set his glass on a shelf He tugged on her wrist. "Come here." She sat on his lap, and he locked his arms around her. Her hips pressed down warmly. "You're tired. Did you sleep last night?"

"No. I kept hearing gates clanging shut."

"Pobrecita. "
He kissed the back of her hand. "I should have warned you."

"What a grim place. It's like some horrible sci-fi movie. You hear these huge fans going, and voices echoing in the cellblocks. A thousand men but you don't see anyone because they're all on lockdown. At the far end of the corridor is Q wing. The death chamber. It's right next to G wing, the old death row. Fifty inmates there, the other three hundred and twenty in a new prison up the road. G wing couldn't hold them anymore. Oh, the guards were very nice, answering all my questions. They said they still have Old Sparky, and they can roll it out and hook up the wires, if anyone prefers electrocution to lethal injection. Kenny was moved to Q wing on Monday. That's how they get a man used to dying. They separate him from everyone he knows, and they take what little he has away from him. There's a science to it, you see. It's like a machine, everything so organized and precise and soulless."

"Don't think about it anymore." Anthony stroked her arm, going up under the sleeve of her shirt. Her skin was satiny. "I worry about you, sweetheart."

She hugged him. "I know you do, but I'll be all right."

"You have to rely on me a little more. Anything you need, ask me. Will you? Anything." He kissed her, taking his time, feeling the tense muscles in her back begin to let go. "Why don't you put all this away for the night?"

"I wish I could."

"Yes. Put it away. Come over to my house. I'll get you up early. Make you some coffee."

Her laugh was warm against his neck. "You're so bad, tempting me like that."

"I never see you anymore."

Through her shirt he kissed one breast, then the other.

"Anthony, I can't go with you. Not tonight." He made a small groan of disappointment. "Then why don't we make love right here?"

"Here? God, no. Karen might be listening."

"We'll be very quiet." He bit her earlobe, put kisses down her neck.

"It's so late."

"You don't have a few minutes for me?" He unsnapped her jeans.

"Anthony, stop it." She pushed herself off his lap and shook her hair back from her face. "Is this what you came over here for?"

"I came to offer my help."

"And I should show my gratitude."

Heat rushed into his face. "You're right, it's late." He got up and put on his coat. "When you have time, call me. Maybe after April eleventh."

"That's a terrible thing to say!"

"Buenas noches, señora."

He was in his car turning left onto Biscayne Boulevard when his cell phone rang. He knew who it was. He turned off the ringer and dropped the phone back into his pocket.

The Rickenbacker Causeway led from Miami to Key Biscayne, and the bridge arched over the bay. As Anthony's car swept down the far side of it, he kept one hand on the steering wheel and reached into his pocket. The message light was blinking.

"¿Qué quiere esa chica?"
He flipped open his cell phone, dialed a code, and listened. Her voice was in his ear, hushed with remorse.

"Guess who? ... I'm sorry, Anthony, but what did you
expect?
Karen's such an eavesdropper, and I have all this work to do.... I do
not
want to have a two-minute fuck with you. . . . No, I take that back. I would love it. . . . I'm sorry. You're trying to help me, I know you are
      
Call me as soon as you get this message. Ten minutes, then I'm turning my phone off and going to bed. I'm so tired. . . . Love you.
Buenas noches."

There was a click, then silence.

He looked at his watch.
"Ay, Dios."
He hit her number on the speed-dial. It rang, but there was no answer. He waited for the tone.

"Sweetheart, my phone was turned off, and I just saw the light blinking, and I called you right away, but it was too late.... I'm sorry, too. . . . Here, listen. I'm kissing you good night....
Duérmete bien.
Sleep well.
Te quiero, mi cielito."

CHAPTER 13

Friday morning, March 16

Leaving home at six o'clock in the morning put Gail at the courthouse in Stuart before eight. She was waiting at the door to Judge Willis's office when his judicial assistant arrived. The woman's name was Ms. Huff Gail told her she wanted to set a date for the Rule 3.850 hearing in
State vs. Clark.

The hearing had to be put somewhere in the twenty-six days remaining until April 11. Gail needed as many of those days as possible to prepare her case. But the hearing couldn't be too close to the execution date. If Judge Willis denied relief, there had to be enough time left to appeal.

Gail had already spoken to the "death clerk" in Tallahassee, a woman named Marcia Turner, who kept track of all capital cases in Florida. Ms. Turner had told Gail that the justices liked to hear oral arguments at least ten days before executions. This meant by Friday, March 30. Gail told Ms. Turner that this didn't give her enough time to prepare for the hearing before Judge Willis. With some reluctance, Ms. Turner tentatively set it down for 10:30 a.m., Monday, April 2 and asked Gail to have her brief in by 5:00 p.m. on Thursday, March 29. The Attorney General's Office could file their answer on Friday, and the justices would review the case over the weekend.

Thus the hearing in Judge Willis's court would have to take place no later than the morning of March 29. There was no way to know how he would rule, so Gail would have to be ready not only with the motion under Rule 3.850 but the appeal as well. The motion could run two hundred pages exclusive of exhibits, attachments, and citations. The brief for the Florida Supreme Court could be another hundred, with more exhibits, attachments, and citations.

If Willis denied relief, Gail would immediately file the appeal, with a copy for the clerk, a copy for each of the seven justices, and a copy for the Attorney General. Thousands of pages, everything bound, indexed, and referenced.

Denise Robinson had given Gail some bad news: Kenny had already had one appeal to the local U.S. district court, and he wouldn't get another one, not since the Anti-Terrorism and Effective Death Penalty Act of 1996. Congress didn't want those little federal judges throwing monkey wrenches into the system, issuing stays of execution. Gail would have to make a choice. She could go to the Eleventh Circuit Court of Appeals in Atlanta, the same three-judge panel that heard Kenny's first appeal—and turned it down. Or go straight to the United States Supreme Court. It depended on how things worked out. In either event, the federal appeal would be in the form of a petition for writ of
habeas corpus
and/or petition for
certiorari.
Gail would prepare those in advance as well. The federal clerks would also expect to get courtesy copies of everything filed in the state court. More typing, more printing, more pages, and by then, costs in the multiple thousands of dollars, never mind the spinning numbers on the attorney's time clock.

Sometime before oral argument in the Florida Supreme Court, Gail would lodge the petition for
habeas
in the federal court system. The clerk would hold on to it. The moment the Florida justices ruled against her, if they did, the petition would be filed and the gears of the federal appeals process would engage. The case would proceed upward, Eleventh Circuit to U.S. Supreme Court. Or bypass the Eleventh Circuit. It depended.

Rules and protocol, deadlines and page limits, finding the federal issues. There was a system to this. Figuring the angles, pulling back on the cue, letting go at the right speed and force, balls clicking, hitting the rails, bouncing gently, ball in the pocket. She prayed to make the shot. Miss, and her client would be dead.

Gail had gone past panic to a state of extreme concentration.

She told Judge Willis's JA that oral argument in the Florida Supreme Court was set tentatively for Monday, April 2, and that she would like the 3.850 hearing early on the preceding Thursday.

Ms. Huff said she needed to check with the judge. She went into chambers and after some murmured conversation returned to say that Thursday morning was impossible, as the judge was in trial. What about Friday, March 23, a week from now? Gail said there was no way she could be ready by then.

There was more conversation in chambers. Ms. Huff came out again. She was trying to remain patient with the idea of a hearing dropped into the middle of the week on short notice. Would Wednesday, March 28, be all right? Gail said she preferred the afternoon. They went back and forth for a while on whether Gail really needed four hours.

A short, white-haired man in tie and shirtsleeves appeared at the door of chambers to listen to the conversation. Gail assumed this was Judge Willis. He worked at his teeth with a toothpick, trying not to be obvious about it.

Finally he said, "You know, Ms. Connor, this is the second 3.850 motion in this case. I'm supposed to hold a hearing on whether you get a hearing at all."

"I'm aware of that, judge, but we're under warrant, and there isn't much time. Do you have two dates open?"

His judicial assistant muttered something and shook her head.

The judge said, "Well, Joan, let's just put it down for March 28, two o'clock in the afternoon. We'll go past five if we have to, but I hope this doesn't take too long. My wife and I have tickets at the Lyric Theater that night. Can't remember what's going on, but she'll have a fit if we're late. Let's try to get this wrapped up by six o'clock at the very latest." He told Gail to file her papers by 5:00 p.m. on Monday, March 26, to give the state attorney time to reply.

"I'm due to retire next month," he added. "Your client was my first capital case on the criminal bench, and he's going to be my last. How about that?"

"What a coincidence," Gail said. She reached into her briefcase and took out some papers. "As long as you're here, judge, would you mind?"

The first was a motion for an order allowing her to take depositions. "Mrs. Chastain has new information. Her ID of my client was tainted, and I need to establish that on the record. Officers Kemp and Federsen were involved in preventing an alibi witness from testifying. I believe Sheriff Bryce knew about it, and I want to establish that."

The judge tossed his toothpick into the trash under his JA's desk and took the motion from Gail. He read it and shook his head. "You'll have to request a hearing. If I signed this
ex parte,
the prosecutor would throw a fit. But let me tell you right now, I won't grant your motion. Mr. Clark's trial attorney had every opportunity in the world to delve into the ID issues when he deposed these witnesses eleven years ago."

Gail had not really expected him to allow depositions, but she had not known a hearing was required. She handed him the other motion. "This one is just routine, really. It's so I can get all the crime scene photographs from the sheriffs office."

"Ms. Connor, what did I just say? A hearing is required on motions for discovery."

"When? There isn't
time.
We're under a death warrant."

"I don't make the rules," he said, "but I expect lawyers to comply with them."

Her mind spun. "Okay. What if I have someone from the state attorney's office call you and say it's all right? What about that?"

Ms. Huff bit her lips on a smile and pretended to be busy at her computer.

Peeved, the judge said, "Why can't you get the photos from CCR? They have them, don't they?"

"I need to see
all
of them."

"Crime scene photos aren't new evidence. You could have had them before. I won't grant this motion either."

Gail's pulse picked up. "I'm not saying the photographs are new evidence, I'm saying they might lead to evidence the police missed that
would
be new. It's no burden on the sheriff's office to give me the photos. Judge Willis, please. My client is facing imminent execution. I wouldn't ask for the photographs if I didn't honestly believe they contained crucial new evidence."

The judge held up his hands. "Tell you what. You run over to the state attorney's office and have somebody call me. If they have no objection, I'll sign it." He called to her as she hurried across his office. "Now you be sure and get that brief in on time, Ms. Connor. I hate to rush, and something like this throws everybody off schedule."

"Yes, judge. Thank you." She groveled her way out the door, biting her tongue. Screw the schedule. Screw the judge's theater tickets.

Gail took copies of the motion and order next door to the state attorney's branch office. Joseph Fowler, the original prosecutor on the case, had retired. One of his assistants, Sonia Krause, had become the state attorney of the Nineteenth Circuit, at the main office in Fort Pierce. Gail supposed she might see the woman in court on March 28. Krause had been second chair at the Clark trial. Gail expected no cooperation, but finally someone came down to see her, an attorney in the criminal trial division. He took the pleadings, went back upstairs, and came down again fifteen minutes later. "This isn't proper procedure," he said, "but we're going to extend you the courtesy." She thanked him profusely, went back to the courthouse, and paced for almost an hour outside Judge Willis's chambers waiting to see him.

The judge shook his head, uncapped his pen, and signed the order. "Must be your lucky day, Ms. Connor."

She returned once more to the state attorney's office and gave a copy of the order to the woman behind the desk. Raising a brow, the woman gave her a date-stamped receipt.

At the post office Gail sent copies of everything to the Attorney General in West Palm Beach, overnight delivery, certified mail. They would be arguing against her in the Florida Supreme Court, should she lose in the trial court.