Three Classic Thrillers (142 page)

“I’m sorry, Lee. I’m truly sorry.”

“It’s okay. What will you and Sam do today?”

“Talk, primarily. The local federal court ruled against us yesterday, and so we’ll appeal this morning. Sam likes to talk legal strategies.”

“Tell him I’m thinking about him.”

“I will.”

She pushed her plate away and cuddled her cup with both hands. “And ask him if he wants me to come see him.”

“Do you really want to?” Adam asked, unable to conceal his surprise.

“Something tells me I should. I haven’t seen him in many years.”

“I’ll ask him.”

“And don’t mention Joe Lincoln, okay Adam? I never told Daddy what I saw.”

“You and Sam never mentioned the killing?”

“Never. It became well known in the community. Eddie and I grew up with it and carried it as a burden, but, to be honest, Adam, it was not a big deal to the neighbors. My father killed a black man. It was 1950, and it was Mississippi. It was never discussed in our house.”

“So Sam makes it to his grave without being confronted with the killing?”

“What do you accomplish by confronting him? It was forty years ago.”

“I don’t know. Maybe he’ll say he was sorry.”

“To you? He apologizes to you, and that makes everything okay? Come on, Adam, you’re young and you don’t understand. Leave it alone. Don’t hurt the old man anymore. Right now, you’re the only bright spot in his pathetic life.”

“Okay, okay.”

“You have no right to ambush him with the story of Joe Lincoln.”

“You’re right. I won’t. I promise.”

She stared at him with bloodshot eyes until he looked at the television, then she quickly excused herself and disappeared through the den. Adam heard the bathroom door close and lock. He eased across the carpet and stood in the hallway, listening as she heaved and vomited. The toilet flushed, and he ran upstairs to his room to shower and change.

______

By 10 a.m., Adam had perfected the appeal to the Fifth Circuit Court of Appeals in New Orleans. Judge Slattery
had already faxed a copy of his order to the clerk of the Fifth Circuit, and Adam faxed his appeal shortly after arriving at the office. He Fed-Exed the original by overnight.

He also had his first conversation with the Death Clerk, a full-time employee of the United States Supreme Court who does nothing but monitor the final appeals of all death row inmates. The Death Clerk often works around the clock as executions go down to the wire. E. Garner Goodman had briefed Adam on the machinations of the Death Clerk and his office, and it was with some reluctance that Adam placed the first call.

The clerk’s name was Richard Olander, a rather efficient sort who sounded quite tired early Monday morning. “We’ve been expecting this,” he said to Adam, as if the damned thing should’ve been filed some time ago. He asked Adam if this was his first execution.

“Afraid so,” Adam said. “And I hope it’s my last.”

“Well, you’ve certainly picked a loser,” Mr. Olander said, then explained in tedious detail exactly how the Court expected the final appeals to be handled. Every filing from this point forward, until the end, regardless of where it’s filed or what it’s about, must also simultaneously be filed with his office, he stated flatly as if reading from a textbook. In fact, he would immediately fax to Adam a copy of the Court’s rules, all of which had to be meticulously followed up until the very end. His office was on call, around the clock, he repeated more than once, and it was essential that they receive copies of everything. That was, of course, if Adam wanted his client to have a fair hearing with the Court. If Adam didn’t care, then, well, just follow the rules haphazardly and his client would pay for it.

Adam promised to follow the rules. The Supreme
Court had become increasingly weary of the endless claims in death cases, and wanted to have all motions and appeals in hand to expedite matters. Adam’s appeal to the Fifth Circuit would be scrutinized by the justices and their clerks long before the Court actually received the case from New Orleans. The same would be true for all his eleventh-hour filings. The Court would then be able to grant immediate relief, or deny it quickly.

So efficient and speedy was the Death Clerk that the Court had recently been embarrassed by denying an appeal before it was actually filed.

Then Mr. Olander explained that his office had a checklist of every conceivable last minute appeal and motion, and he and his quite able staff monitored each case to see if all possible filings took place. And if a lawyer somewhere missed a potential issue, then they would actually notify the lawyer that he should pursue the forgotten claim. Did Adam desire a copy of their checklist?

No, Adam explained that he already had a copy. E. Garner Goodman had written the book on gangplank appeals.

Very well, said Mr. Olander. Mr. Cayhall had sixteen days, and, of course, a lot can happen in sixteen days. But Mr. Cayhall had been ably represented, in his humble opinion, and the matter had been thoroughly litigated. He would be surprised, he ventured, if there were additional delays.

Thanks for nothing, Adam thought.

Mr. Olander and his staff were watching a case in Texas very closely, he explained. The execution was set for a day before Sam’s, but, in his opinion, there was a likely chance for a stay. Florida had one scheduled for two days after Mr. Cayhall’s. Georgia had two set for a week later, but, well, who knows. He or someone on
his staff would be available at all hours, and he himself would personally be by the phone for the twelve-hour period leading up to the execution.

Just call anytime, he said, and ended the conversation with a terse promise to make things as easy as possible for Adam and his client.

Adam slammed the phone down and stalked around his office. His door was locked, as usual, and the hallway was busy with eager Monday morning gossip. His face had been in the paper again yesterday, and he did not want to be seen. He called the Auburn House and asked for Lee Booth, but she was not in. He called her condo, and there was no answer. He called Parchman, and told the officer at the front gate to expect him around one.

He went to his computer and found one of his current projects, a condensed, chronological history of Sam’s case.

______

The Lakehead County jury convicted Sam on February 12, 1981, and two days later handed him a verdict of death. He appealed directly to the Mississippi Supreme Court, claiming all sorts of grievances with the trial and the prosecution but taking particular exception to the fact that the trial occurred almost fourteen years after the bombing. His lawyer, Benjamin Keyes, argued vehemently that Sam was denied a speedy trial, and that he was subjected to double jeopardy, being tried three times for the same crime. Keyes presented a very strong argument. The Mississippi Supreme Court was bitterly divided over these issues, and on July 23, 1982, handed down a split decision affirming Sam’s conviction. Five justices voted to affirm, three to reverse, and one abstained.

Keyes then filed a petition for writ of certiorari with the U.S. Supreme Court, which, in effect, asked that
Court to review Sam’s case. Since the Supreme Court “grants cert” on such a small number of cases, it was somewhat of a surprise when, on March 4, 1983, the Court agreed to review Sam’s conviction.

The U.S. Supreme Court split almost as badly as Mississippi’s on the issue of double jeopardy, but nonetheless reached the same conclusion. Sam’s first two juries had been hopelessly deadlocked, hung up by the shenanigans of Clovis Brazelton, and thus Sam was not protected by the double jeopardy clause of the Fifth Amendment. He was not acquitted by either of the first two juries. Each had been unable to reach a verdict, so reprosecution was quite constitutional. On September 21, 1983, the U.S. Supreme Court ruled six to three that Sam’s conviction should stand. Keyes immediately filed some motions requesting a rehearing, but to no avail.

Sam had hired Keyes to represent him during the trial and on appeal to the Mississippi Supreme Court, if necessary. By the time the U.S. Supreme Court affirmed the conviction, Keyes was working without getting paid. His contract for legal representation had expired, and he wrote Sam a long letter and explained that it was now time for Sam to make other arrangements. Sam understood this.

Keyes also wrote a letter to an ACLU lawyer-friend of his in Washington, who in turn wrote a letter to his pal E. Garner Goodman at Kravitz & Bane in Chicago. The letter landed on Goodman’s desk at precisely the right moment. Sam was running out of time and was desperate. Goodman was looking for a pro bono project. They swapped letters, and on December 18, 1983, Wallace Tyner, a partner in the white-collar criminal defense section of Kravitz & Bane, filed a petition seeking postconviction relief with the Mississippi Supreme Court.

Tyner alleged many errors in Sam’s trial, including the admission into evidence of the gory pictures of the bodies of Josh and John Kramer. He attacked the selection of the jury, and claimed that McAllister systematically picked blacks over whites. He claimed a fair trial was not possible because the social environment was far different in 1981 than in 1967. He maintained the venue selected by the trial judge was unfair. He raised yet again the issues of double jeopardy and speedy trial. In all, Wallace Tyner and Garner Goodman raised eight separate issues in the petition. They did not, however, maintain that Sam had suffered because of ineffective trial counsel, the primary claim of all death row inmates. They had wanted to, but Sam wouldn’t allow it. He initially refused to sign the petition because it attacked Benjamin Keyes, a lawyer Sam was fond of.

On June 1, 1985, the Mississippi Supreme Court denied all of the postconviction relief requested. Tyner again appealed to the U.S. Supreme Court, but cert was denied. He then filed Sam’s first petition for writ of habeas corpus and request for a stay of execution in federal court in Mississippi. Typically, the petition was quite thick, and contained every issue already raised in state court.

Two years later, on May 3, 1987, the district court denied all relief, and Tyner appealed to the Fifth Circuit in New Orleans, which in due course affirmed the lower court’s denial. On March 20, 1988, Tyner filed a petition for a rehearing with the Fifth Circuit, which was also denied. On September 3, 1988, Tyner and Goodman again trekked to the Supreme Court and asked for cert. A week later, Sam wrote the first of many letters to Goodman and Tyner threatening to fire them.

The U.S. Supreme Court granted Sam his last stay on May 14, 1989, pursuant to a grant of certiorari being
granted in a Florida case the Court had decided to hear. Tyner argued successfully that the Florida case raised similar issues, and the Supreme Court granted stays in several dozen death cases around the country.

Nothing was filed in Sam’s case while the Supreme Court delayed and debated the Florida case. Sam, however, had begun his own efforts to rid himself of Kravitz & Bane. He filed a few clumsy motions himself, all of which were quickly denied. He did succeed, however, in obtaining an order from the Fifth Circuit which effectively terminated the pro bono services of his lawyers. On June 29, 1990, the Fifth Circuit allowed him to represent himself, and Garner Goodman closed the file on Sam Cayhall. It wasn’t closed for long.

On July 9, 1990, the Supreme Court vacated Sam’s stay. On July 10, the Fifth Circuit vacated Sam’s stay, and on the same day the Mississippi Supreme Court set his execution date for August 8, four weeks away.

After nine years of appellate warfare, Sam now had sixteen days to live.

T
he row was quiet and still as another day dragged itself toward noon. The diverse collection of fans buzzed and rattled in the tiny cells, trying valiantly to push around air that grew stickier by the moment.

The early television news had been filled with excited reports that Sam Cayhall had lost his latest legal battle. Slattery’s decision was trumpeted around the state as if it were indeed the final nail in the coffin. A Jackson station continued its countdown, only sixteen days to go. Day Sixteen! it said in bold letters under the same old photo of Sam. Bright-eyed reporters with heavy makeup and no knowledge of the law spouted at the cameras with fearless predictions: “According to our sources, Sam Cayhall’s legal options are virtually gone. Many people believe that his execution will take place, as scheduled, on August 8.” Then on to sports and weather.

There was much less talk on the Row, less yelling back and forth, fewer kites being floated along the cells. There was about to be an execution.

Sergeant Packer smiled to himself as he shuffled along Tier A. The bitching and griping that was so much a part of his daily work had almost disappeared. Now, the inmates were concerned with appeals and their lawyers. The most common request in the past two weeks had been to use the phone to call a lawyer.

Packer did not look forward to another execution, but he did enjoy the quiet. And he knew it was only
temporary. If Sam got a stay tomorrow, the noise would increase immediately.

He stopped in front of Sam’s cell. “Hour out, Sam.”

Sam was sitting on his bed, typing and smoking as usual. “What time is it?” he asked, placing the typewriter to his side and standing.

“Eleven.”

Sam turned his back to Packer and stuck his wrists through the opening in his door. Packer carefully cuffed them together. “You out by yourself?” he asked.

Sam turned with his hands behind him. “No. Henshaw wants to come out too.”

“I’ll get him,” Packer said, nodding at Sam then nodding at the end of the tier. The door opened, and Sam slowly followed him past the other cells. Each inmate was leaning on the bars with hands and arms dangling through, each watching Sam closely as he walked by.

They made their way through more bars and more hallways, and Packer unlocked an unpainted metal door. It opened to the outside, and the sunlight burst through. Sam hated this part of his hour out. He stepped onto the grass and closed his eyes tightly as Packer uncuffed him, then opened them slowly as they focused and adjusted to the painful glow of the sun.