The Closing: A Whippoorwill Hollow novel (The Whippoorwill Hollow novels)

Copyright 2013 by Ken Oder. All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission, except in critical articles and reviews.

This book is a work of fiction. Any references to historical events, real people, or real places are used fictitiously. Other names, characters, places, and events are products of the author’s imagination, and any resemblance to actual events, places, or persons, living or dead, is entirely coincidental.

ISBN: 978-1-939889-17-1 (SkipJack Publishing)

First Edition: February, 2014

Second e-book edition: June 2014

Editor: Meghan Pinson, My Two Cents Editing

Cover image:
Double Sunset, 2009
by Devon Oder

A prison guard ushered Nate Abbitt into a room marked Visit A – Max Sec and closed the door. The room was divided by soundproof glass, with desks snug to the pane and telephones bolted to the walls on each side. Nate sat at the desk and withdrew documents from his briefcase. He heard the crackle of lightning and felt the rumble of thunder as it passed under the cell block and subsided in the distance. He closed his eyes and ran his hand over his close-cropped gray hair.

The barred door on the other side of the divider rolled open and Kenneth Deatherage entered the room. Dressed in a khaki prison jumpsuit, he was in his mid-twenties, average height, with a round florid face and oily red hair that fell to his shoulders. Manacles were chained to his ankles and his wrists were cuffed behind his back. A guard closed and locked the door. Deatherage backed up to it, stuck his hands through the bars, and stared at Nate while the guard uncuffed him. Deatherage’s pale blue eyes betrayed no hint of the crimes he was accused of—assault, rape, murder. The guard walked away, and Deatherage sat in the chair and grabbed the phone. Nate picked up the phone on his side.

“Who are you?” Deatherage said.

“Nate Abbitt.”

“What do you want?”

“Did you receive my letter of introduction?”

“I won’t sign for the mail. They won’t give it to me without me signin for it.”

“I’m a lawyer. The court asked me to represent you.”

“What happened to Swiller?”

“Randolph Swiller died of a heart attack last month.”

Deatherage paused. “Did he file the appeal before he died?”

“No.”

“Have they set a new execution date?”

“No. Your execution date was postponed indefinitely. Swiller explained that to you, didn’t he?”

“I haven’t seen Swiller since they threw me in this hole. The warden told me they put off my date, but he didn’t say why.”

“Cases are pending before the United States Supreme Court challenging the constitutionality of the death penalty. There’s a nationwide moratorium on executions until the court rules. All execution dates in Virginia were suspended indefinitely.”

Deatherage seemed surprised. “How long will they hold off on the killins?”

“The court won’t render a decision for at least a year or two.”

“A year or two.” Deatherage’s heavy body settled into his chair. He chuckled. “I’ll be damned. A year or two.”

Nate placed a court pleading, a letter, and a pen in a metal tray in a slot below the window and shoved the tray through to Deatherage. “The court asked me to take your case, but it’s subject to your consent. I prepared these documents. The court pleading says you want me to represent you. If you sign it, I’ll file it with the court and begin reviewing the case. The letter is from you to Swiller’s estate, telling the executor to send me Swiller’s files. His estate can’t release his files to me without your consent because they’re protected from disclosure by the attorney-client privilege.”

Deatherage’s eyes traced the path of a scar that slashed across Nate’s forehead and down the side of his jaw. “What happened to your face?”

“I was in a car accident.” Nate pointed to the pleading and the letter. “Read the documents and tell me what you want to do.”

Deatherage stared at Nate’s scar for a few moments and then looked at the documents. He moved his lips as he ran his finger under each line. When he came to the last page, he squinted at Nate’s name. “Nathan A. Abbitt. I’ve heard your name somewhere.”

“I was a prosecutor. I prosecuted some of the men in here with you.”

Deatherage furrowed his brow. “You’re that crooked lawyer, the one from Selk County, the one they ran out of the county lawyer’s job.”

Nate showed Deatherage nothing, no change in expression, no color in his face, no discomfort.

“You’re the one who sent Jimmy Deeks to death row.”

Nate didn’t say anything.

“They claim Jimmy Deeks put a bullet through his daddy’s head while he was sleepin, but Deeks says he didn’t do it.”

“Deeks is lying.” Nate pointed to the documents again. “Decide what you want to do.”

Deatherage leaned forward and jabbed his finger at Nate. “Deeks says you’re crooked. Says you framed a man, a ree-tard. Says you talked the retard into signin a phony confession that said he killed somebody when he didn’t do it. Deeks told me that tough old judge in Selk County caught you and threw you out of the county lawyer’s job. The old judge tried to keep what you did secret, but Deeks says everybody in Selk County knows about it.”

“That case has nothing to do with you.”

“Don’t I have a right to know if you framed a man?”

“You have a right to reject my appointment. Turn me down and I’ll be on my way. The court will send you another lawyer.”

Deatherage stared at Nate for a long time.

“Make your choice,” Nate said.

“You were a big-time county lawyer. Why did you switch sides?”

“I have to make a living.”

“Why did you agree to take my case?”

“You have a constitutional right to counsel.”

“You think I killed her, don’t you?”

“I don’t know. I don’t care.”

Deatherage fell silent.

“Make up your mind,” Nate said.

“I don’t know, mister. You look beat down. How old are you?”

“Fifty-six.”

“You look older than that. You look tired and worn out, like you don’t have much fight left in you. How long were you the county lawyer?”

“Twenty-six years.”

“How many men did you send down the river to this hellhole?”

“I didn’t keep count.”

“How many did you send to death row?”

Nate considered whether to answer the question. He said, “Four.”

“They die in the chair?”

“All but Deeks. He got the benefit of the moratorium, the same as you.”

“You watch the killins?”

“Two of them.”

Deatherage’s eyes settled into the trench of Nate’s scar. “You’ve seen em do the deed. That’s somethin in your favor, I suppose. You know what it’s like when they pull the lever and shoot the juice into a man. Nobody could watch em fry a man and not want to put a stop to it.”

Nate returned Deatherage’s stare evenly and said nothing.

Deatherage said, “If you framed the retard, you know how it’s done. That’s another point in your favor. And you can’t be workin for em. They threw you out of the county lawyer’s job so they can’t trust you. You’re probably the only one they could send here who can’t be workin for em.”

“Make your choice,” Nate said.

Deatherage looked at the documents. Thunder sounded faintly in the distance. He signed the pleading and the letter and shoved them through the slot. Nate looked at the pleading that placed him between Deatherage and the electric chair.

“They framed me,” Deatherage said. “Swiller and Judge Herring and the sheriff and God knows who else, the whole Buck County crew, they rigged the trial to put it on me. I didn’t kill her.”

Nate placed the documents in his briefcase. “I’ll meet with you again after I review the files.” He hung up the phone. Deatherage said something into the phone but Nate couldn’t hear him through the soundproof divider. He didn’t care what Deatherage had to say.

Nate left Visit A – Max Sec and walked back to the guard’s desk. The guard was a short, stocky man with bushy eyebrows. He pushed a ledger across his desk to Nate, and Nate signed it and entered the time of his departure.

“One of your clients do it to you?” the guard said.

“What?”

“That big old scar. One of your clients cut you?”

Nate turned away from the guard, opened the prison door, and emerged from the penitentiary into a pouring rain.

Nate rented an office in Jeetersburg, Virginia, on the second floor of a residential home that had been converted to an office building after World War II. From his office window, Nate had a good view of the courthouse across Lighthorse Street. A week after he met with Deatherage, he sat at his desk, stared at the courthouse, and thought about the cases he had tried there as Selk County commonwealth’s attorney. He missed the challenges, the accomplishments, and the sense of purpose of his twenty-six years as the county’s chief prosecutor. He longed to prosecute again, but the court’s discovery of his professional malfeasance a year and a half earlier on January 12, 1967, made that impossible.

The first matter on circuit court judge Harry Blackwell’s morning calendar that day had been the arraignment of Jack Tin, a mentally impaired defendant charged with murder. Nate was drunk when he stood to enter his appearance on behalf of the commonwealth, but no one noticed. By then, he had mastered the art of appearing sober while drinking throughout the day. He gripped the lectern firmly, stood straight, and spoke in a strong, clear voice. The arraignment proceeded smoothly until he offered in evidence Tin’s signed confession. At that point, the judge cut Nate off in midsentence, adjourned the hearing, and summoned Nate to his chambers.

In chambers the judge sat at his desk dressed in a black suit. He was eighty years old, tall and gaunt, with snow-white hair and a handlebar moustache. His face was flushed; his expression stern. There was a tape recorder on his desk.

“What’s going on, Harry?”

The judge flipped a switch on the recorder, and the reels of the tape turned. Nate heard his voice and the voice of his secretary, Rosaline Partlow. Nate asked Rosaline to sign an affidavit swearing she’d witnessed Tin confess to the murder of his own free will. She refused at first, but Nate persisted and she agreed. His voice and Rosaline’s voice droned on.

Nate went to a window that looked out on the town square. It was snowing big wet flakes that blotted out the sunlight and darkened the room. The soft light of the judge’s desk lamp and the scent of his cherry pipe tobacco gave the room an atmosphere of peacefulness that seemed ironic to Nate, given the circumstances. The voices on the tape fell silent. The judge turned off the recorder and sat with his arms crossed over his chest.

After a long silence, Nate said, “Where did you get the tape?”

“The sheriff gave it to me.”

“Are you going to have me indicted?”

“I persuaded the sheriff not to press charges. He assured me there are no copies of the tape recording. I intend to destroy the original.”

Nate swallowed hard. “Thank you, Harry.”

“My forbearance is based on requirements that are not negotiable. You will submit your resignation to the board of supervisors this morning. You will notify the bar association you wish to go on inactive status for personal reasons. You will not practice law again until and unless I allow you to do so.”

Nate struggled to control his emotions. It was all he could do not to reach for the flask of whiskey he had concealed in the breast pocket of his suit jacket. It took him a while to find his voice. Then he said, “All right. I’ll do as you say.”

The judge stared at Nate, disappointment etched on his face. Nate couldn’t bear to return his gaze. The judge said, “I’ll try to keep your malfeasance confidential, Nathan, but I can only do so much. Too many people in the sheriff’s office know about it.”

Nate nodded. “I understand.”

The judge stood, crossed the room, and opened the door. “Go home. Think about what you’ve done. When you understand the reasons you betrayed the trust so many of us placed in you, perhaps you can find a way to redeem yourself.”

Nate walked out of the room, and the judge closed the door behind him. He found a spot in the shadows at the other end of the hall, leaned against the wall, took several deep breaths, and tried to slow the beating of his heart. With a trembling hand, he withdrew the flask from his pocket, turned it up, and drained it.

Later that day, Judge Blackwell’s clerk found Nate nursing a glass of whiskey in a back room of Michie’s Place, a restaurant that served alcohol under the table. The clerk said the judge wanted to see him in chambers again.

Nate trudged through the snow to the courthouse. In chambers Judge Blackwell asked him about other prosecutions, and he answered the questions truthfully. At the end of the meeting, the judge looked over his notes and said, “I count four cases plus the Tin case. Five tainted prosecutions in all.”

Nate nodded.

“Have you told me everything?”

“Yes.”

Judge Blackwell leaned back in his chair and put his hand over his eyes. Nate returned to Michie’s Place.

As the judge predicted, he was unable to keep confidential the reasons for Nate’s resignation. Someone talked and the truth about him spread throughout the state. When the judge finally agreed to allow Nate to resume practicing law, no county or city in Virginia would hire him as a prosecutor. He turned to criminal defense, a role he detested, but as he told Deatherage, he had to make a living.

He turned away from his office window and his view of the courthouse. His eyes fell on a cardboard box that sat on the floor near his desk. Someone, probably a file clerk, had scrawled on its side “
Commonwealth v. Deatherage
.” The box contained the record of the criminal proceedings. He forced himself to open the box, spread its contents on his desk, and begin to review the file. He soon became engrossed in the story of the case.

Deatherage was arrested on June 3, 1967, in Bloxton, Buck County’s seat of government. He was charged with murder and rape. A Buck County General District Court judge had ruled that Deatherage was indigent and appointed Randolph Swiller to represent him. The case worked its way up to the Buck County Circuit Court, where Deatherage was arraigned on an indictment that accused him of willful, deliberate, and premeditated murder in the commission of rape. Deatherage pled not guilty and was tried on January 29, 1968, before Buck County Circuit Court Judge Edbert Herring.

Nate found the trial transcript and turned to the commonwealth’s opening statement. The Buck County commonwealth’s attorney, George Maupin, was Nate’s lifelong friend. George’s opening provided a clear roadmap to the prosecution’s case, but it gave the jury almost no information about the victim, Darlene Updike, a young woman from New York. The colorless opening statement in the Deatherage case seemed odd to Nate because it was out of character for George.

Randolph Swiller waived his opening statement; Nate was surprised. In his thirty years of experience he had never seen a defense counsel waive the opening statement. He could think of no strategic justification for forfeiting the opportunity to explain the facts and law to the jurors in the light most favorable to the defendant.

The commonwealth’s first witness was Willis Odoms, who testified that he lived next door to an abandoned warehouse in Bloxton. He and his wife returned home from a party before dawn on June 3, 1967. It was a hot night. When he opened his bedroom window for air, he heard a woman’s voice coming from the warehouse: “Please don’t. Oh, don’t. Please stop. Please.”

While Odoms’ wife called the police, he approached the warehouse with a handgun and a flashlight. He pointed his light at a warehouse window and saw Deatherage. “That son of a bitch peeked through the window. I could tell by the look on his face he was the cause of the trouble. He ducked down and I figured he would run out the back to get away. There’s a twelve-foot wall behind the warehouse and I knew he’d have to come around the front to get off the property, so I waited for him. Sure enough, he came sneakin alongside the building and took off down the road. I chased him and knocked him off his feet. I stuck my gun in his ribs and held him down till the sheriff’s man came along.”

On cross-examination, Swiller asked Odoms one question: “Did you see the defendant kill Darlene Updike?” Odoms said he didn’t see the killing.

George called Buck County Deputy Sheriff Darby Jones to the stand. Jones said he arrived at the warehouse at 5:25 a.m. and found Odoms standing in a dirt road that ran between the warehouse and a motel, holding a gun on Deatherage. Jones cuffed Deatherage and searched him. “I found a scarf in Deatherage’s pants pocket. It was the type of scarf a woman would wear over her head or around her neck. There was a stain on the scarf that appeared to be fresh blood.”

After questioning Odoms, Jones entered the warehouse and found a woman’s corpse sprawled on the floor under the window where Odoms first saw Deatherage. Jones radioed the Buck County sheriff’s office and told the dispatcher to notify the medical examiner. Jones then conducted a thorough search of the warehouse and found a rag, which appeared to have fresh blood on it, on the floor at the rear of the warehouse under an open window.

It seemed to Nate that a victim of rape and murder would have fought for her life during the assault, but George Maupin asked Jones no questions about the state of Deatherage’s clothing or his physical condition. Nate guessed this was because Deatherage bore no signs of a struggle. If Nate was right, Swiller should have asked Jones if there were scratches or bruises on Deatherage’s body or tears or rips in his clothing, but when the judge turned to Swiller for cross, Swiller said, “No questions, Your Honor.”

The next witness was the local medical examiner, Malcolm Somers. He testified that Updike was a young white female, five feet one inch tall, one hundred five pounds. He described the condition of the corpse upon his arrival at the warehouse. Her blouse was ripped open, and she was naked from the waist down. A bra, torn skirt, and panties lay on the floor near the corpse. Updike’s left eye was swollen shut. Her lip was split and two upper front teeth had been dislodged. There were abrasions on her hands, elbows, thighs, and knees. Her vaginal wall was torn and there was blood on her thighs. A rope was wound around her neck, and a stick was twisted in the coil of the rope. There were three bloody rings of broken flesh around her neck. A rag was lodged in her throat.

Somers estimated the time of death as between 4:00 a.m. and 5:00 a.m. He said the cause of death was “asphyxiation due to compression of her neck and obstruction of her airway.” He notified the Virginia chief medical examiner’s office that Updike was the victim of a homicide.

Swiller asked no questions of Somers.

George then called Shirley West to the stand. West worked for the Virginia chief medical examiner’s western district office, based in Roanoke. The state’s chief medical examiner’s office was responsible for conducting investigations when a local medical examiner determined a death was the result of homicide. West was a forensic pathologist, and Nate had worked with her on many cases. She was a middle-aged single woman with no children. Her job was her life, and she was an excellent expert witness.

West confirmed the wounds Somers described and his determination of the cause of death, but she stated it more plainly: “Miss Updike’s assailant tightened a rope around her throat while she was in the process of swallowing a rag he stuffed in her mouth. She couldn’t breathe.”

The rag Somers found in Updike’s throat was white, six inches square, frayed on two edges. West said, “I established a match between dust on the rag and particles of concrete from the warehouse floor.”

West said the rope and stick found wrapped around Updike’s throat were a “makeshift garrote” used to strangle her. “The rope was a thirty-six-inch length of a common type. It was half-inch three-strand laid rope with a right-handed twist. It was made of hemp. It had been cut at both ends from a larger coil. The fraying at the ends and the discoloration of the rope indicated that it was not newly store-bought.”

“The assailant used the stick to tighten the rope gradually by twisting it. The stick was ten inches long, three quarters of an inch wide, and flat on all four sides. There was a vertical indentation along one side with small shards of glass embedded in the crevice. In the warehouse I found several broken window mullions under the window where Deputy Jones found the victim’s body. This stick matched those mullions.”

West had dusted the mullion for fingerprints. “There were prints along one end of the mullion that were too distorted to be identifiable. There was one clear partial print in its center. This print matched a portion of the defendant’s thumb print.” George Maupin’s direct examination of West left unclear the extent of the print that was found on the mullion.

Nate thought Swiller should have attacked the reliability of the match on cross because its accuracy depended in part upon the portion of the print not recovered. He flipped ahead in the transcript to see what Swiller did with the issue. By then, he was not surprised to find Swiller’s familiar refrain: “No questions, Your Honor.”

Nate grimaced and turned back to West’s direct testimony. West analyzed the blood evidence. Her tests revealed Updike’s blood type as B+ and Deatherage’s as O+. “There was a large bloodstain low on the front side of the defendant’s shirt. This blood was type B+. The scarf Deputy Jones found in the defendant’s pants pocket was also stained with B+ blood, and the blood on the rag Jones found on the floor in the back of the warehouse under an open window was the same blood type.”

West said Somers found semen in Updike’s vaginal cavity and on her thighs. West testified that the semen was deposited by an O+ secretor. Secretors secrete antigens of their blood type into body fluids. Non-secretors secrete very little of their antigens. West determined that Deatherage was an O+ secretor. From his days as a prosecutor, Nate knew that about eighty-five percent of the male population is comprised of secretors and O+ is the most common blood type, about forty percent of the general population, but George did not ask West questions that revealed these statistics to the jurors and Swiller did not clarify these weaknesses on cross.

West said she found on Updike’s corpse thirteen hair follicles, which appeared red to the naked eye. Under microscopic analysis she determined the follicles contained the pigment, pheomelanin, which is only present in red and yellow hair. Updike’s hair was black. Deatherage’s hair was red. West compared the follicles found on the corpse to samples of Deatherage’s hair. She observed a high degree of similarity in the thickness and presence of pigment in the cuticle, or outer layer, of the hair shaft. In the cortex, or middle layer, the organization, density, and distribution of pigment granules were also very similar. West opined that it was highly likely the hair follicles found on the corpse came from Deatherage.