The Mayor of Lexington Avenue (31 page)

“Yeah,” Jack replied. “You never get used to that.”

“You win the bet,” she said. “I wouldn’t have missed this for the world. I’ve never experienced anything like this before. I actually feel like I’m a part of it. You know—nature.”

“Yeah, I know. This is where Rudy thinks he’s going to be when he dies.”

“He might be right.”

“Oh, I think he is.”

“Nancy said Rudy told her to come out here.”

“He did.”

“Why haven’t you brought her?”

“Because I wanted to bring you first. Alone. I plan on bringing Nancy but I’m going to wait. If the worst happens, if things go bad with Rudy, this may be a source of comfort for her.”

“That’s a good idea, but you don’t really think things are going to go bad for Rudy, do you?”

“Not at all,” Jack said, his voice full of quiet confidence.

The sun had burned off the morning mist and warmed the air. Pat took off her parka and her sweatpants. As she did so, she took one more glance around and decided not to stop there. Off came the bikini as she stood up in the boat.

“What are you doing?” Jack exclaimed with a chuckle.

“I’m becoming one with nature,” she sang as she dove into the water.

“There’s a gator over there,” Jack said when she came back to the surface, pointing towards the shore.

“I know,” she said nonchalantly. “Wasn’t it you who told me that gators won’t hurt you? Now, are you coming in?”

Jack almost overturned the little dinghy in his haste to shed his mortal apparel.

The Supreme Court building had all the features of the classic Roman style, with broad marble steps leading to a vast entrance guarded by massive circular columns. Just inside the main door, however, was an immediate reminder of the modern age—a security-screening checkpoint.

Pat had flown up to Tallahassee with Jack the night before and she accompanied him that morning to the oral argument. She had never been to an appellate argument before. The courtroom itself was somewhat like a college classroom and somewhat like a concert hall. There were semicircular rows of dark mahogany benches for public seating that sloped down towards a podium in the middle. On each side of the podium were tables and chairs for the lawyers. The podium faced an elevated stage with a wide mahogany dais where the seven judges sat. The lawyers at the podium faced the dais and looked up at the judges as they made their arguments. It was an intimidating atmosphere, and to Pat it seemed deliberately designed that way.

She sat in the far back row trying to be as inconspicuous as possible. There were three separate cases set for oral argument that morning. The lawyers arguing those other cases sat in the public area right behind the podium. Besides Pat, there was nobody else in the courtroom.

Rudy Kelly
vs.
the State of Florida
was the first case on the docket. Jack chose the table to the right of the podium. He removed his brief and some other reference documents from his attaché case, set them on the table and sat down to await the entrance of the distinguished jurists of the Florida Supreme Court. The attorney for the state followed the same procedure on the other side of the podium. At nine o’clock sharp there was a rap on the door behind the judges’ dais. A black man in a blue uniform appeared. “Hear ye, hear ye, hear ye,” he bellowed in a magnificent deep, melodic voice. All the lawyers immediately stood up, as did Pat. “The Supreme Court of the State of Florida is now in session. All those who have grievances before this court may now come forth and be heard.” As he spoke, the seven Supreme Court justices, six men and one woman, entered the room and took their respective places at the dais. When they were all seated, Chief Justice Robert Walker turned to the lawyers.

“You may be seated,” he told them. Everybody sat down. Chief Justice Walker got right down to business. “The first case this morning is
Rudy Kelly
vs.
the State of Florida.
Counsel, are you ready to proceed?”

Jack stood up first. “Jack Tobin, counsel for appellant Rudy Kelly—I’m ready to proceed, Your Honor.” His counterpart followed suit: “Emory Ferguson from the Florida attorney general’s office on behalf of the State of Florida. We are ready to proceed, Your Honor.”

“Very well,” the chief justice replied. “Mr. Tobin, you may proceed.”

Jack approached the podium. “Thank you, Your Honor.” He’d barely finished the sentence when the first question came his way. It was from Judge Thomas Flood, the most conservative juror on the bench and a strong advocate of the death penalty.

“Mr. Tobin, is it correct that this case has been before this court two times already?”

“That’s correct, Your Honor.”

“Isn’t that enough? Doesn’t there have to be an end to these appeals at some point?”

“With all due respect, Your Honor, the answer is no. There should never be a line drawn in the sand when somebody’s life is at stake and the possibility exists that a mistake was made.”

“What new evidence do you bring us?” The question came from Judge Escarrez, a new member of the court and a conservative Catholic. Jack did not know his views on the death penalty.

“Well, Your Honor, we have discovered that the deceased had semen in her vaginal cavity at the time of her death. The blood type of that semen did not match Mr. Kelly’s—so it was not his. This was a material piece of evidence not revealed to defense counsel and it could have caused a jury to conclude that someone was in the deceased’s home after Rudy Kelly left—and that that someone committed the murder.”

“That’s an awfully big leap of faith, Counsel,” said Judge Arquist, the female judge, a moderate on the court. “The presence of semen in the vaginal cavity in and of itself does not suggest anything about time, does it?”

“Yes and no, Your Honor. For instance, if the deceased had sex that morning or even afternoon, she probably would have done something to remove that semen, either taken a shower or wiped herself clean in some other manner. And even if she didn’t, the semen wouldn’t have been there if she had been walking around all day, and the evidence was that she had worked that day and she had, at least, been to the convenience store. So the probabilities are that she had sex that night and probably sometime close to the time that she was murdered—maybe just before.

“Since the coroner was never asked and never testified about this semen at trial and since he is now deceased, there is no contemporaneous testimony about when the deceased had sex.”

“Is it accurate that there is no evidence in the record of nonconsensual sex, such as bruises around the vagina or bruises on the body—the kind we might normally find in a rape situation?” The question came from John McClellan, another moderate, who was also a proponent of the death penalty. There were no liberals on this court, so Jack knew he wasn’t going to get any softball questions.

“That is accurate, Your Honor, but it’s not decisive as to whether this evidence was relevant to the issue of guilt or innocence. For instance, a jury could conclude that someone entered the house after Mr. Kelly left, had consensual sex with the deceased, and then killed her.”

“Is there any evidence she had a boyfriend?” Judge McClellan pressed.

“No, Your Honor, but that doesn’t mean anything. The evidence shows that she either had consensual sex with someone other than Mr. Kelly that night or that she had nonconsensual sex that left no telltale marks. In either case, she had sex with someone that night other than Mr. Kelly and a jury could have concluded that that person killed her. Because the defense never knew about that semen evidence, they could not present that theory to the jury.”

“But Counsel, your client admitted he was in the house that night around the time of the murder. His blood was on the carpet, and as I understand his statement to the police officer, he said he might have killed her. That’s pretty incriminating evidence, isn’t it?” It was Chief Justice Walker.

“At first glance, Your Honor, but when you consider that Rudy Kelly was a nineteen-year-old, borderline retarded boy who lived with his mother; that his mother was excluded from the interrogation; that no recording devices were used in the interrogation even though the Bass Creek police department had both audio and video recording devices readily available; that the only evidence of what young Rudy said was written by the investigating officer; and that that same officer participated in the decision to keep this semen evidence from defense counsel—when you consider that without Rudy Kelly’s so-called confession, there is no case, no evidence at all, then you begin to see that this is a very weak evidentiary case. One that certainly does not warrant the death penalty.”

“This evidence that you’ve just discussed is not in the record, is it, Counsel?” asked Judge Scott, the only black jurist, also a moderate.

“Yes, it is, Your Honor. It’s in the transcript of the suppression hearing. For some reason, the public defender never brought to the jury’s attention the circumstances under which the so-called confession was given, even though the judge had ruled at the suppression hearing that it was admissible evidence. As you may recall, this failure on the part of the public defender was the issue in the second appeal. I hope this court can see how things are adding up in this case. If the jury knew how the ‘confession’ was procured and also knew that the state hid semen evidence from the defense, they never would have convicted this young man.”

“That’s an opinion, Counsel.” The voice was that of Judge Copell, the last member of the court. It was very rare in a thirty-minute oral argument for all the judges to ask questions. Jack was encouraged by their attentiveness.

“Yes sir, it is, but one based on experience.” There were a few former trial lawyers on this panel, and they knew who he was.

“Are you seeking a new trial or are you appealing the sentence of death?” The question came from Chief Justice Walker again.

“Either, Your Honor. We’d prefer a new trial so that we can completely exonerate Rudy, but if you commute the death sentence because of the weak evidence, Rudy will still be around and we will have time to discover who the other person was and request a new trial on the basis of that evidence.” It was another question Jack was encouraged by, because it indicated that at least one jurist was thinking of options.

“That’s a pretty damaging charge you make in your brief, Counsel—that the state attorney, the coroner, and the police department conspired to keep this semen information from defense counsel—isn’t it?”

“Yes, and it’s one not lightly made, Your Honor. But there had to be discussions about this evidence and they must have realized the defense was entitled to this information. And they all had to agree to start this separate rape file, which, by the way, kept this information from being a public record, discoverable by the press. This was well thought out, Judge. That’s why I made the charge.”

When it was his opportunity, Emory Ferguson did exactly what Jack expected him to do. He harped on the fact that this was the third appeal and that there had to be finality to the process at some time. He went over the evidence that Rudy was in the house at the time of the murder and that
his blood
was found on the carpet. There was no doubt about that evidence. When asked by Justice Arquist what possible reason the state could have had for creating a separate rape file, he provided a well-rehearsed and at first glance plausible explanation:

“If they had wanted to suppress evidence to convict Mr. Kelly as counsel suggests, they would have destroyed the evidence. Nobody would have known. Instead, knowing that this semen did not connect to the murder, they started a separate file, preserving the evidence in case any additional exculpatory evidence came up.”

In his brief rebuttal, Jack pointed out that Richard Nixon should have destroyed the White House tapes but he didn’t. It was a stupid decision but it didn’t mean that he wasn’t guilty of obstruction of justice. He concluded with a reminder to the court of what was at stake:

“As I said before, this case involves a nineteen-year-old, borderline retarded young man, it is a circumstantial evidence case and we now know exculpatory evidence was kept from the defense. A case like this does not warrant the death penalty. As you all know, our system of justice is flawed. Since 1976 when the death penalty was reinstated in this state, fifty-eight people have been executed and twenty-five
have been released from death row.
We know at least one innocent person has been executed. That’s not a very good record. It’s a record that should make one pause when confronted with the facts and circumstances that we have here.”

Outside the courthouse, Pat threw her arms around him.

“You were magnificent—my knight in shining armor. Those judges were peppering you with questions and you didn’t even hesitate. I couldn’t think like that on my feet if
my
life depended on it. I think you clearly won. I think they’re going to overturn the conviction—at the very least the death penalty portion.”

“You really think so?”

“Don’t you? They have to. I didn’t know about those statistics. They’ve released half the number of people that they killed? That’s abominable.”

“Yeah, it is, and I do think they are going to at least overturn the death penalty portion of the conviction, but sometimes you need somebody else to validate your feelings.”

“That’s what I’m here for, honey—to validate your feelings.” She kissed him hard on the lips. “I’ve never been so proud to know somebody in my whole life. Did I tell you that you were magnificent? Did I tell you I love you?” This time Jack kissed her.

On the plane ride home, he re-analyzed the entire oral argument.

“Normally, I always leave an oral argument knowing that there was something I forgot to say. When those judges start hitting you with questions, you can’t remember everything. But I don’t feel like I missed anything this time.”

“You didn’t,” Pat told him. “You hit every point. Don’t worry. Rudy could not have had a better advocate today.”

Her words seemed to calm him once more—at least for a while. But when they were home and in bed she watched him toss and turn all night. Time was running out and the pressure was becoming overwhelming. At one point, she heard him mumbling in his sleep and leaned over to listen to the words: