Unintended Consequences (20 page)

“So considering all of the circumstances at that time, would you say that, using an objective standard of reasonableness, it was proper not to seek DNA testing?”

“Objection,” Dani called out. “Calls for a conclusion.”

“He’s an attorney, and this is within his area of expertise,” Getty said.

“Whether or not it was unreasonable to seek DNA testing is the ultimate issue in this case and for the court to adjudicate,” Dani said.

“I’ll allow it,” Judge Smithson said.

“I can’t imagine another attorney back then would have asked for DNA tests, especially given the facts of this case,” Wilson answered.

Getty finished her questioning of Wilson and Dani stood up. “Just a few more questions. Do you know what the situation pertaining to the admittance of DNA evidence was five years ago?”

“Well, by then it was pretty much standard—that is, in cases where it was relevant.”

Dani thanked him and he was excused. He left the courtroom and purposely avoided looking at Dani. She was sure she wouldn’t be seeing him again.

“Do you have any more witnesses?” Judge Smithson asked.

“I do, Your Honor.”

“Well, then, I think we’ll break for lunch now. We’ll reconvene at one o’clock.”

Dani walked over to George. A guard waited nearby to take him back to a cell in the courthouse. “It’s going well. You should keep your hopes up.”

“Thank you,” he said, his voice barely a whisper. He started to say something but stopped himself.

“What is it, George?”

“I wondered—I mean…” He stopped again and stared down at his feet. Dani saw that his hands were shaking.

“It’s okay, George. You can ask me anything.”

“It’s just—I just thought you might have tried to find out what happened to Angelina. After we left her at the hospital?”

Dani put her hand on top of his. “I’m sorry. We did try, but we haven’t been able to find anything.”

George nodded and didn’t say a word. As he left the courtroom, his head was slumped, his shoulders rounded. Before they’d gotten any ruling from this judge, their client was already defeated.

They found a small luncheonette two blocks from the courthouse and settled in for lunch. They got the last open table in the jam-packed restaurant. Determined to be good, Dani ordered salad, dressing on the side, while Tommy and Melanie waited for their hamburgers.

“What do you think?” Melanie asked. “About this morning?”

“We got what we needed from Wilson into the record.”

“Do you think it’ll hurt us that they didn’t use DNA testing much when George was tried?”

“I don’t think it should. I mean, he didn’t even ask for blood-typing tests to be done on the child’s body. For all we know, their blood types were incompatible. He took whatever money George had and then went on autopilot.”

“What happens if you lose this round?” Tommy asked.

Dani shook her head. Normally the next steps would be an appeal to the federal court of appeals and then, if they lost, review by the United States Supreme Court. But they were running out of time. Only two weeks remained before the scheduled date of execution. “I don’t know. Try to get a quick appeal, I guess.”

They ate their meals in silence, each of them aware of the clock running out.

They were back in court ten minutes early. When the judge arrived and all were seated, Dani called Dr. Samson as her next witness. She’d caught one lucky break: He’d been able to locate his medical records for Angelina Calhoun.

“Dr. Samson, are you familiar with the defendant?” Dani asked.

“Yes, that’s George Calhoun. I treated his daughter, Angelina.”

“What did you treat her for?”

“Acute lymphoblastic leukemia, usually referenced as ‘ALL.’ Evaluation showed she was pre-B-cell ALL.”

“Can you tell the court what that means in layman’s terms?”

“It means there are a large number of abnormal white blood cells in the bone marrow. Normal white cells protect the body from disease, but these can’t because they are defective.
Acute
means the onset was rapid, and
lymphoblastic
refers to the type of white blood cells affected—that is, the lymphocytes.
Pre-B-cell
means the leukemia cells began in the B-cells but weren’t yet fully mature.”

“And what is the expected rate of survival for children with this type of cancer?”

“Well, now it’s quite high. Back then, survival was more uncertain.”

“How did you treat Angelina for her leukemia?”

“With chemotherapy. She underwent six months of treatment, after which she went into remission.”

“Did there come a time when that changed?”

“Yes. About a year and a half later she began exhibiting symptoms. I performed a spinal tap and determined that the leukemia had spread through her central nervous system to her brain.”

“What did that mean for her prognosis.”

“It was very poor.”

“Was there treatment available?”

“Yes, more chemotherapy and this time radiation as well. Her best chance of survival, though, was a bone-marrow transplant with an acceptable match. I agreed to waive my fee, but the hospital had previously extended credit to the Calhouns and weren’t willing to do so again. He needed to raise funds to pay for the treatment. I never heard from the family after that.”

“Dr. Samson, do you believe George Calhoun capable of murdering his daughter?”

“Objection. Calls for speculation,” Getty called out.

“Your Honor, Dr. Samson has treated thousands of children with cancers. I believe he has expertise in how families react to such a diagnosis.”

“I’ll allow it. Go ahead, Dr. Samson.”

“No. I don’t believe he would have harmed his daughter. When families receive news like this, they become very protective of their child, and that was true of the Calhouns. It was clear to me that they loved their daughter very much.”

“Thank you, Dr. Samson. No further questions.”

Getty stood up. “Dr. Samson, would you describe what would happen to Angelina without treatment?”

“She would certainly die.”

“And can you describe what she would experience in the late stages?”

“There would be loss of appetite with accompanying weight loss, significant bruising over her body, and considerable pain from the enlargement of her organs.”

“So a parent devoted to his child and who couldn’t afford treatment might want to spare his child that agony. Isn’t that possible?”

“I can’t see the Calhouns doing that.”

“But is it possible?”

“I suppose it is.”

“Thank you. No further questions.”

Smithson looked at Dani. “Call your next witness.”

She called George Calhoun.

“Mr. Calhoun, when you were arrested for the murder of the child found in the woods in Orland, Indiana, what did you tell the officers?” she asked.

“I told them it couldn’t be my daughter.”

“Did you tell them why it couldn’t be your daughter?”

“No, ma’am.”

“Did there come a time when you told your attorney, Mr. Wilson, that it wasn’t your daughter found in the woods?”

“Yes, ma’am, the very first time I met with him.”

“Did you tell Mr. Wilson why it couldn’t be your daughter?”

“No, not then.”

“At any time?”

“Yes, ma’am. About five years ago, when my last appeal was coming up, I sent him a letter and told him about Angelina, about her being sick and nobody willing to treat her.”

“Is that all you told him?”

“Well, I also told him that we took her to the Mayo Clinic and left her there with all her records so that someone would have to treat her since she was all alone.”

“Mr. Calhoun, you were on trial for murdering your daughter and burying her body in Orland, Indiana. The state sought the death penalty. Why didn’t you tell your lawyer at that time what you had done with Angelina?”

Calhoun shifted in his seat and looked at the floor. “I was afraid if I told them where we left Angelina, they would take her back home, and then nobody would help her get better.”

“Why did you decide to tell Mr. Wilson the truth about your daughter five years ago?”

“Well, I figured it was safe for her then. You know, if the treatment helped her, she’d have been all better. And if she’d lived, she’d be eighteen then, so she could decide for herself whether she wanted to see me and Sallie again.”

“And if she hadn’t survived?”

“Well, then, if the Mayo Clinic hadn’t been able to help her, then it wouldn’t of mattered anymore if I told the truth.”

“Thank you, Mr. Calhoun. That’s all I have.”

Getty stood and walked to the witness box. “I have a few questions. How many times did you tell Mr. Wilson about your daughter’s illness?”

“Just that once, in the letter.”

“You never pursued it further with him?”

“No.”

“Mr. Calhoun, I find it hard to believe that with your life hanging in the balance, you didn’t try harder to talk to your attorney about that.”

“Is there a question here?” Dani asked.

Getty smiled. “Sorry, I couldn’t restrain myself from making that observation. I’ll move on. Have you ever tried to find your daughter? Or find out what happened to her?”

“How could I do that? I was in prison.”

“Please just answer the question.”

“No.”

“So you’d like us to believe that you left your sick daughter in another state, never told anyone, and never tried to find out whether she lived or died, is that right?”

“A day never passed that I wasn’t thinking about my little girl. Everything I did was so she could have a good life.”

“Very commendable, Mr. Calhoun, assuming your story is true. Her medical bills were very high, weren’t they?”

“Yes, ma’am.

“If Angelina disappeared, then you wouldn’t have to go into debt for her, isn’t that right?”

“It didn’t matter how much debt I’d have. I would have given every penny I had to make her well.”

“But in fact you had no more money to pay for her treatment, isn’t that right?”

George’s eyes became misty. When he spoke, his voice was choked. “I tried everything I could. I begged for loans from every bank. I begged my boss for an advance. He would have too, but it was just too much money.”

“Did you know how much your daughter would suffer as the disease progressed?”

George shook his head.

“You need to speak your answer, Mr. Calhoun.”

“I could see how she suffered.”

“Murdering Angelina would end her suffering, wouldn’t it?”

“I would never have done that. Never.”

“So you say. Seventeen years later and two weeks before your execution. Very convenient.”

Dani jumped to her feet, outraged. “Objection,” she shouted.

“No further questions,” Getty said before the judge could rule.

“I have no more witnesses,” Dani informed the judge.

“Ms. Getty, do you have any witnesses?”

“No, Your Honor.”

“Okay, then. Let’s have closing arguments tomorrow morning at 10:00 a.m.”

Dani thanked the judge, gathered her files and, with Tommy and Melanie, headed to their hotel. She felt cautiously optimistic. She wouldn’t allow herself to think of the alternative.

C
HAPTER

23

“Y
our Honor,” Dani began as she stood before Judge Smithson, ready with her closing argument, “under the standard set forth in the Supreme Court decision in
Strickland
, we must show that Robert Wilson’s representation of George Calhoun in his murder trial, and the appeals that followed, fell below an objective standard of reasonableness and that deficiency prejudiced the defendant. There can be no doubt that Mr. Wilson failed utterly in that regard.
Strickland
required him to make a reasonable investigation into the facts of the crime and his client’s culpability. Instead, he made no investigation at all. This was a death-penalty case—his client’s life was at stake. Yet over and over he accepted at face value the prosecution’s flimsily constructed case. Did he look into Mr. Calhoun’s insistence that the body in the woods wasn’t his daughter? No. Not before his trial and not after he learned from Mr. Calhoun why it couldn’t have been Angelina Calhoun. That alone is sufficient to rule that George Calhoun did not receive effective assistance of counsel, a right guaranteed him by our Constitution, a right especially to be guarded when the penalty upon conviction is death.”

She paused. “Now, why did Mr. Wilson fail to investigate his client’s claim? He says it was because Sallie Calhoun identified the child as theirs. Should her word be enough to contradict her husband’s? No, not when Mr. Calhoun’s life was on the line. A simple test—a blood test—might have ruled out George Calhoun as the father of that little girl. Mr. Wilson never asked for one. He never asked for a psychiatric exam of Mrs. Calhoun. He never even spoke directly to Sallie Calhoun. If he had, maybe he would have come away believing she harbored so much guilt over abandoning her daughter that it seemed to her that they had murdered her. Maybe he would then have cross-examined her more thoroughly on the witness stand and raised doubt in the jurors’ minds as to what really happened.

“And then, when Mr. Calhoun finally confessed what had happened to Angelina, what did Mr. Wilson do? Nothing! He ignored the letter and never spoke about it to his client. Would a reasonable attorney look into Angelina’s medical records to see if Mr. Calhoun told him the truth? Yes. Would a reasonable attorney ask for a DNA test then? Yes. Not Robert Wilson.

“Your Honor, there are so many more instances in the record of Wilson’s abject failure to even marginally meet a standard of reasonable performance. His apparent belief in his client’s guilt led him to willfully disregard just about every aspect of this case. As a result, Mr. Calhoun never received a fair hearing. He was tarred and feathered by his own attorney before a single witness testified.

“Did Mr. Wilson’s failures prejudice the defendant? Without question. It goes without saying that had a simple blood test been conducted and shown that Mr. Calhoun could not have been the girl’s father, there would not even have been a trial. And if DNA testing had been conducted five years ago and had shown definitively that he was not the father, Mr. Calhoun would be a free man right now. Do we know those would be the outcomes of the tests? No, because Mr. Wilson never asked for them. But the defendant doesn’t have to prove that he wouldn’t have been found guilty. He must only show that there’s a reasonable probability that the results of the proceedings would have been different had Mr. Wilson done an effective job. Perhaps if Mr. Wilson had conducted the most basic investigation, which would have revealed Angelina Calhoun’s medical condition, and informed the jurors of her cancer and the stress it placed on her family, the jurors might have imposed a sentence of life, instead of death.