Part 1 (1/2)

Con Law.

Mark Gimenez.

To Laurence J. (”Larry”) Rice Jr. (19542009), devoted husband, father, son, brother, friend, and lawyer.

Acknowledgments.

My sincere thanks and appreciation to David Sh.e.l.ley, Jade Chandler, Iain Hunt, and everyone else at Sphere/Little, Brown Book Group in London; Professor Emeritus of Law Charles E. Rice at the Notre Dame Law School, a scholar and a gentleman, for teaching me const.i.tutional law (again); Barbara Hautanen for the Spanish translations; Joel Tarver at T Squared Design in Houston for my website and email blasts to my readers; and all of you who have emailed me. I hope to hear from you again.

The layman's const.i.tutional view is that what he likes is const.i.tutional and that which he doesn't like is unconst.i.tutional.

-Supreme Court Justice Hugo L. Black, 1971.

Prologue.

'Professor-he's got a gun!'

'Get down, Renee.'

His young intern ducked down behind Book.

'G.o.dd.a.m.n outsider,' the man holding the gun said, 'coming to our town and stirring up trouble.'

The three young men reeked of beer and sweat and testosterone. They sat on the tailgate of an old pickup truck; crushed beer cans littered the bed behind them. The gunman sat in the middle; he was unshaven and wore a cap on backwards and overalls over a bare chest that revealed a KKK tattoo on his right biceps. He held the gun with his right hand; that would be his strong side. The second man held a three-foot length of pipe with his left hand, slapping it into his right palm like a princ.i.p.al about to render corporal punishment to the cla.s.s bully; he was a southpaw. He sat to the gunman's right and wore a camo cap and a wife-beater muscle s.h.i.+rt. The third man was empty-handed; he sat to the gunman's left. He wore a straw cowboy hat and a Don't Mess with Texas T-s.h.i.+rt. He shuffled his boots in the dirt of the parking lot.

Book took a small step to his left.

He and Renee had just eaten lunch with Ronald and his sister at a cafe situated hard against the railroad tracks on the black side of town. It was all laughs and good times as they walked out back to say their goodbyes and to ride home on the Harley. But they found these three hillbillies waiting for them; their truck blocked access to the motorcycle. A Confederate flag adorned the back window. Some folks simply refused to evolve. The Klan lived on in East Texas; these young men were the progeny of the three Klansmen who had made East Texas infamous by dragging a black man to his death behind their pickup in 1998. Book could imagine the same fate for Ronald. The man waved the gun at Book.

'You and your gal there, get on that motorbike and get the h.e.l.l out of our town. Me and the boys, we're gonna take Ronnie for a ride out to the piney woods, remind him about the facts of life: black boys don't mess with white women.'

'I take it you boys aren't NBA fans.'

'You a funny G.o.dd.a.m.ned Injun, ain't you?'

Book's coloring and coa.r.s.e black hair often made people think he was at least part Native American; perhaps he was. As a boy, he would paint his face and pretend to be a great Comanche war chief. The moment did have a cowboys-and-Indians feel to it. But Book did not wear war paint that day; he did wear his hair too long for someone in his profession, jeans, boots, and a black Tommy Bahama T-s.h.i.+rt. These boys' fuses were already lit and fueled by alcohol and inbred racism, but he still tried to defuse the situation.

'Well, it's possible I have some Comanche blood in me, but-'

'You fixin' to have blood on you, you don't get on that bike, you G.o.dd.a.m.ned skinny-a.s.s Injun.'

Book stood six-one but weighed only one-seventy-five, so he was a bit on the lean side, especially compared to these three sides of beef. They were big and muscular twenty-somethings, and they had too much alcohol on board to succ.u.mb to reason or mild physical persuasion. He was thirty-five and skinny. But he did have skills.

'Ronald,' Book said without breaking eye contact with the gunman, 'you and Darlene take off.'

Ronald stepped in front of his sister.

'No way, Professor.'

'You just got out of prison. You don't need this.'

'I survived seventeen years in that prison. I know how to fight. You're a law professor.'

Ronald Westbrook had been incarcerated for the last seventeen years for a crime he did not commit: aggravated rape. Of a white woman. In East Texas. No DNA or other physical evidence of any kind had been collected or introduced at trial. But he was convicted nonetheless, guilty only of being a black man in his late twenties with tattoos covering his upper body, the same as the perpetrator. In his youth, Ronald had been a high school football star whose dream of a pro career ended with a knee injury; he had always lived on the right side of the law, but the law said he would live the rest of his life as an inmate in the state penitentiary.

He was not alone.

In the last decade, fifty innocent black men had been released from prison in Texas after being exonerated by DNA evidence. Ronald was not one of them. DNA testing was not standard police procedure seventeen years before in that small East Texas county. Ronald was convicted solely on the victim's testimony; she pointed him out in the courtroom before the jury, as certain as a witness could be. Studies have shown that eyewitness testimony is almost always unreliable; a terrified person with a gun stuck in her face remembers almost nothing with evidentiary clarity. Fear blinds a human being. But the local district attorney sent another black man to prison and earned another term in office. Ronald Westbrook resigned himself to dying in prison.

Until his sister wrote a letter to Professor John Bookman.

Book and Renee rode the Harley to East Texas. They discovered that Ronald had in fact had s.e.x with a white woman that night, but not with the victim; at the time of the alleged rape, he was in bed with Louise Parker, a respected widow in town who had met Ronald at the church where she worked. She was lonely; he was the janitor. They shared a love of the Bible and each other. But Louise could not face the social stigma she would have to endure in her small hometown if she testified to having s.e.x with a black man. So she watched in silence as Ronald was convicted and sentenced to life.

Now it was her life that was ending.

She had terminal breast cancer. For seventeen years, she had kept her secret; and Ronald had never betrayed her. 'Professor, I grew up in this town. I know how it is. I would've been sentencing her to a place worse than prison,' he said when Book had asked, 'Why?' His sister knew there had been a woman, but not her color or her name; so Book and Renee played detective. They tracked Ronald's life from the football field to the church; they learned of Louise. They went to her home, but her son, now a respected lawyer in town, refused to talk to them or allow them to talk to his mother.

They found her in the hospital.

She too refused to talk. The nurse called her son, and he called the sheriff. Book's mind raced, trying to think of something that would get Louise to tell the truth. But the sheriff arrived and handcuffed them. Just as he pulled them to the door, Renee broke into tears and cried out to Louise.

'My mother died without saying she was sorry!'

Louise turned her eyes to Renee and held up a weak hand to the sheriff.

'What did she do?'

'She cheated on my father! She cheated on us!'

Tears came to Louise. She gestured the sheriff away and Renee close.

'I'm sorry,' she said. 'For what I did to Ronald.'

Louise Parker made amends before meeting her Maker. She revealed her secret on videotape. Two weeks later, Ronald Westbrook came home. His hair had turned gray, and his body had aged, but his handshake remained firm. He thanked Book, payment in full. His sister hugged Book and cried until his s.h.i.+rt was wet. Ronald forgave Louise before she died. They were the only witnesses to her burial; her son did not attend. There was no celebration in town upon Ronald's return. Book had learned that most people, even good people and especially people in small towns, preferred that their past acts of injustice remain in the past. And others were just one generation removed from white hoods. Like these three men. Book addressed the gunman.

'Ronald and Darlene are going home now.'

The gunman spat tobacco juice then stood; he was at least six-four.

'The h.e.l.l you say. See, I don't figure you making any decisions, Injun. I believe this three-fifty-seven Magnum's making the decisions today.'