Part 28 (2/2)

Nickerson had broken my nose and somehow bruised my ribs. Had he kicked me? I didn't remember that. I never did puke: mind conquered matter.

I checked myself into the emergency unit at County General Hospital. They asked me to undress, because my s.h.i.+rt was wet with blood. A nurse pointed to the wire taped to my chest. ”What's that?” she asked, frowning.

”A wire,” I said.

”You a narc?”

”No, a lawyer.”

It seemed logical at the time, although I could see by the flicker in her eyes that the nurse didn't quite believe me.

I didn't listen to the tape until I was back in my room at the University Motel. And the next time I played it, forty-eight hours later, was for Judge Horace Fleming, in his chambers at the Jacksonville courthouse.

Muriel Suarez was present this time. It was too important a moment for an ex parte conversation, and it was I who had invited the state attorney's office to join us. She didn't argue much as to the legitimacy of the conversation; I'll give her that. The law was clear that both parties did not have to consent to a tape recording; otherwise wiretaps and narcotics informants would quickly be out of business, and no witness in a court proceeding would be allowed to testify as to what he or she had overheard without consent of the speaker.

Muriel frowned and said, ”There is a certain sense of entrapment here, Your Honor. May I suggest that if Mr. Jaffe hadn't goaded him, and very nearly put the words in his mouth, Mr. Nickerson might not have said even what he seems to have said?”

”You may certainly suggest that,” the judge replied.

”And it seems clear that Mr. Nickerson was enraged beyond reason,” Muriel said.

”He sure sounds mad enough to kick the cat,” said the judge.

”If you listen carefully to this tape, as I've done, Your Honor, you realize that Mr. Nickerson failed to confirm a single one of Mr. Jaffe's wild accusations. He threatened Mr. Jaffe, that's clear. He may well have attacked Mr. Jaffe physically, but we only have Mr. Jaffe's word for that, and while I have nothing but respect for opposing counsel, it's my obligation to point out that he is opposing counsel. And so you might say he's a little prejudiced.”

The judge looked me over. It was obvious that under my bandage I had a swollen nose, and I walked like a man who'd lost an argument with a truck. The judge smiled and nodded. ”So you might say, Ms. Suarez. And I'd agree.”

”Mr. Nickerson told Mr. Jaffe candidly that his accusations of suborning perjury and outright perjury were baloney.”

”No, ma'am. I heard what he said. He told Mr. Jaffe they were bulls.h.i.+t.”

”Your Honor, you're absolutely right.”

”I'm going to think on this matter,” Judge Fleming said, ”and play this conversation on my stereo at home. Get my grandson to fiddle with all those k.n.o.bs so it's real clear. I'll get back to you both in a day or so.”

I remembered how he'd rebuked me the last time I reminded him that Darryl was close to the date of execution, and so this time I said nothing. But it wasn't easy.

Three afternoons later, Judge Fleming called us into his chambers. ”You're a persistent fella,” he said to me.

”Yes, Judge.”

”What is it you want?” he asked.

I cleared my throat. ”That's in the motion I filed, Your Honor. Are you asking me to rephrase, or repeat?”

”Don't snap your garters. Just tell me, Mr. Jaffe, in your own simple words, if you can, what you really want.”

”One way or another,” I said, ”I want my client to have his day in court.”

”You want a hearing?”

”At least that, Your Honor.”

He raised a s.h.a.ggy white eyebrow. ”With witnesses?”

”That would be a good idea,” I said. I could barely tell if he was serious.

He turned to Muriel Suarez. ”And ma'am, what is it you want?”

”Your Honor, I can tell you what I don't want. I don't want the state to have to go to the trouble, plus the considerable expense, of a full-scale hearing when there's already been an eight-day jury trial where Darryl Morgan was convicted of first-degree murder.” She raised her voice a notch. ”There is no new evidence.”

”Well, there's this tape,” Judge Fleming said.

”That's not evidence,” Muriel shot back. She wasn't afraid of him at all.

”It's a lot of shouting and threatening, that's what it is,” Judge Fleming said, nodding. ”But if you listen real good, and you use your common sense, you get to thinking. Wouldn't you agree with that, ma'am?”

There wasn't much Muriel could do except shrug and reluctantly say, ”I might agree with that. But it's still not-”

”Evidence,” the judge said. ”Maybe not.” He turned back to me. ”If I give you a day in court, who would you put on?”

”You mean which witnesses?”

He nodded, and I decided to roll the dice double or nothing. Which was an optimistic metaphor, because so far I hadn't won a d.a.m.n thing except some septuagenarian indulgence.

”Judge,” I said, ”have you ever read the full transcript of Florida v. Morgan?”

He looked just a shade fl.u.s.tered, and I believed I had him. Well, you never knew with this man.

”Judge, I'm sure you've at least skimmed that transcript last April, and I'm just as sure that you got a good feeling about the case back then. And so you know that the transcript is interesting, but it's not the word of the Lord. Now, if you grant my motion, you'll of course want to hear from the moving party, which is Morgan. We will have one or two other witnesses. But I believe you'll benefit by hearing and seeing the state witnesses too.”

Muriel jumped forward. ”Judge, watch out: he's just about asking for a new trial!”

”No, ma'am,” I said. ”A hearing with no more than the princ.i.p.al witnesses. Mr. Nickerson is one of them. If you don't put him on, I will. And I don't think we can understand what Mr. Nickerson says unless we hear from Mr. Neil Zide. And if we're going to hear from Neil Zide, why not hear from his mother?”

”Judge-”

”Hang on there, both of you,” Fleming said, and he turned to me. ”Mr. Jaffe, if you're telling me you want to hear the state's princ.i.p.al witnesses, you've got more nerve than a toothache. Is that what you're saying?”

”I'm saying you should hear them, Your Honor, if only for the sake of enlightenment. It would certainly be quicker and simpler than reading that long and tedious trial transcript. We're talking maybe three thousand pages, Judge.”

Fleming stroked his jaw and looked straight into my eyes without blinking. ”You sure have got billy goat in your blood. You wouldn't mind doing a little cross-examination of those folks, would you?”

”Sir, I'm not going to retry the case, but yes, there's something to what you say. I wouldn't mind a little cross.”

”Ms. Suarez?”

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