Part 26 (1/2)

”h.e.l.l, you got werewolf tendencies and you broke a prison official's nose. Who's gonna argue with you?”

In a week's time he called me in Sarasota. He had gone down to Bradford County and poked around. Clive Crocker was willing to drop civil charges in return for payment of his medical bills, plus five thousand dollars as compensation for his physical suffering and the emotional humiliation in front of his colleagues. He would sign a waiver of prosecution, meaning he would agree not to testify. Then it was up to the state attorney's office in the county; they could still go forward if they felt they could win the case through other means, with other witnesses.

”Why would they do a s.h.i.+tty thing like that?” I asked.

”Hey, you were a prosecutor,” Gary Oliver said. ”You tell me why they'd do it.”

”To be s.h.i.+tty.”

”And that happens, as we both know. You got to risk it.” He chuckled in my ear. ”You know, if they nolle-pros the case, Ted, they're gonna want you to sign a waiver of liability against the sheriff's office.”

”Anything else?” I asked. ”Would they like me to bend over in front of the courthouse and take it up the culo at five bucks a man for the sheriff's annual picnic?”

But when I got home I closed a tax-free mutual fund, and the next day I had Ruby mail a certified check. I thought of signing it f.u.c.k you. Who reads signatures? But I scrawled my name instead.

In Sarasota County, Toba finished her deposition. She was told by the wolf spider woman's lawyer that a settlement of $75,000 would be acceptable at this early stage of the proceeding. If not, Mrs. Hart was going to court to sue for half a million.

My fork paused in midair over the pasta salad. I looked at Toba across the dinner table. ”This is G.o.d's revenge on me for being a lawyer.”

”What do you want to do?” Toba asked.

”I want to import some Durango scorpions for Mrs. Hart's laundry hamper and some Brazilian piranha fish for her toilet bowl.”

After dinner I began packing. I told Toba that I had to make oral argument before the Supreme Court in Tallaha.s.see in six days. She looked bewildered. ”I thought you'd lost that death penalty case last spring.”

”I lost it then-I want to try and win it now.”

”So you're flying up nearly a week ahead of time?”

”There are things I need to do. People I want to talk to. Judges I have to bribe.”

”Lawyers should marry other lawyers,” Toba said gloomily. ”That's what they deserve.”

The next day I b.u.mped into Harvey Royal in the men's room at Royal, Kelly and told him that I was leaving for the north again.

”Ted, this case has become an obsession.”

”Yes,” I said, ”and you should try it, Harvey. Aside from a few aches and itches in unmentionable places, obsession brings out the best in a man.”

In the Florida Supreme Court, a lawyer is allotted half an hour to persuade the state's seven justices that a human being shouldn't be strapped into the electric chair and burned to death.

The judges looked at me with great interest. I thought: Yes, there's hope. I can do it. They will see.

To my left on the podium was a row of small lights. During my given half hour the lights would change from green to white, to warn me when my time was nearly up. When the lights flashed red, that was the end. You had to finish your sentence and step down.

I opened oral argument by pointing out that throughout the trial twelve years ago Judge Bill Eglin had called Darryl Morgan by his first name, had even called him ”boy,” and in doing so had demeaned the defendant and poisoned the minds of the jury. Defense counsel at the time had not objected.

One of the younger judges raised her hand and said, ”Mr. Jaffe, which tree are you barking up? If you're arguing that the trial judge was wrong in what he did, you're estopped by procedural default, because, as you pointed out, there was no objection made by defense counsel. So we won't listen to that. If you're arguing ineffective a.s.sistance of counsel, I have to remind you that we've been down this road before in Morgan. Has anything changed?”

”I pray that what's changed,” I said, ”is the court's willingness to be swayed by the interests of justice and mercy.” Looking into the judge's ice-blue eyes, I quickly added, ”In addition, there's the new factor of perjured testimony by a state witness back in 1979. You have copies of his affidavit in front of you, Your Honors. I alluded to it in my opening statement.”

The chief judge adjusted his bifocals and glanced at the papers in front of him. ”Counselor, I have a problem here. I'm looking at the trial record, where the state prosecutor is listed as Edward M. Jaffe. Now I'm looking at your supporting affidavit-the appeal attorney is Edward M. Jaffe. Are there two Edward M. Jaffes practicing law in the state of Florida?”

”Not that I know of, Your Honor.”

”Then you were the prosecutor at the original trial?”

”Yes, I was.”

”That's already sufficiently irregular for me to wonder what exactly is going on and why it's been permitted. But added to that, Mr. Jaffe, is the fact that the witness you now claim was perjuring himself at the trial ... why, he was your witness!”

”Yes, that's a fact.”

The judge's eyes narrowed. He spoke into his microphone in a stage whisper. ”Did you suborn perjury, Mr. Jaffe?”

He knows I didn't, I realized, but he's decided to have a little fun and games at an appeal hearing. Why not? Nothing at stake except a few decades of a dumba.s.s n.i.g.g.e.r's life.

I explained the circ.u.mstances of my meeting Jerry Lee Elroy in Sarasota, and Elroy's admission to me. While I was doing that, the light bulbs turned from green to white.

”Five minutes, Counselor,” one of the junior judges said cordially. I made my final plea.

The judges retired.

In ten minutes they were back in their seats at the horseshoe-shaped bench.

The chief judge said, ”We don't intend to draw this matter out and leave the appellant in suspense. This court, more than most others, understands the gravity of a death sentence. This court also understands the desperate wish to take a second bite at the apple, and stresses that it will not tolerate collateral proceedings whose only purpose is to vex, hara.s.s, or delay. We believe it is unseemly for a prosecutor to wear one hat at one trial and, even with more than twelve years having pa.s.sed, don another hat for an appeal hearing. We suspect that the Florida Bar a.s.sociation shares this opinion. It is our view that Mr. Morgan's trial was not perfect few are but neither was it fundamentally unfair. No relief is warranted.”

The judge tapped his gavel on the table. The light bulbs turned red.

My deepest ambition, to argue before a supreme court and save an innocent man's life, had danced before me and slipped away. The state wanted Darryl Morgan to die.

”You've made a serious mistake,” I said.

That was completely out of line. The chief judge said, ”What did you say?”

”I said, Judge-because I know more about this case than you do -that you've made a serious mistake.”

”Mr. Jaffe, we could hold you in contempt for that remark.”

”You could indeed,” I said. And I left the courtroom.

Chapter 23.

I HAD FAILED to save Darryl Morgan's life, and that plunged me into a pit of gloom that threatened to have no bottom. But life goes on. Though I was still focused on Darryl, there were other things I had to deal with.

Toba was having a hard time too. ”The country's depressed,” she said, ”and so am I.” Her office telephone rarely rang; she wasn't making money.