Justice Delayed (Innocent Prisoners Project) Read online

  Bonnie scanned the room, saw Sasha had been drawn into another group, then nodded.

  He led her outside, then pointed to his car. “Let’s go over to the park,” he said. “It’s quiet there.”

  Bonnie held back. “I don’t know. I’m not really sure it’s safe this time of night.”

  He laughed. “You’re with me. No one’s going to mess with someone my size.”

  He opened the passenger door for her, and she slid into the front seat. He walked around the car and got in, then drove toward the park. He’d scouted it out earlier, knew just where he wanted to take her. It would be isolated now, the joggers and bicyclists and rowers all out partying, or tucked safely in bed. Ten minutes later, he pulled into a parking spot. His was the only car there.

  “Are you sure this is okay?” Bonnie asked again.

  “Look up. Full moon, the sky crowded with stars. It’s a perfect night for a moonlit walk, don’t you think?”

  She exited the car, and he took her hand. They began walking down the path heading toward the lake, talking easily. When they reached the lake, he pointed to a bench, and they sat down. He cradled her face in his large hands. “You’re really nice. I like you.”

  She turned her face up toward him, ready to be kissed. He leaned in, and as his lips touched hers, he slid his hands downward, onto her neck, then squeezed. She tried to push his hands off, but he was too strong for her. Her eyes bulged as she tried to squirm away, until there was no more movement. He dropped her limp body onto the bench and gazed into her eyes, frozen in a horrified stare.

  He didn’t feel anything. No rush of excitement, no jolt of electricity, not even pity for the lifeless girl. Was it because she’d been a stranger to him before tonight? Or because she’d gone willingly with him? He didn’t know. He felt a twinge of disgust toward himself, yet the memory of the surge he’d felt the first time lingered. He wanted to feel that again. Maybe he needed to replicate what he’d done before. Yes, that must be it. That’s what he’d do the next time.

  CHAPTER

  12

  By the time Dani walked in her front door, she was beat. I’m getting too old for this, she thought. Before Ruth was born, she could fly out to a court, argue her motion or appeal, then fly home the same night. Now, traveling took a toll on her. She’d wanted Ruth so badly, and loved her intensely, yet mothering a baby when Dani was in her midforties was so different from when she’d just turned thirty and had given birth to Jonah.

  Thankfully, both children were asleep. She plopped down on the sofa next to Doug and lay her head on his shoulder.

  “Tough trip?” he asked.

  “No more than usual. I’m just getting old.”

  “You’re working too hard. You went back to handling cases from the outset too soon.”

  “I promised Bruce I would.”

  “You have to do what’s right for you.”

  The problem, Dani knew, was that she enjoyed finding a client from the pile of letters on her desk, figuring out whether the person was truly innocent, then fighting with everything she had to prove it to the court. Writing appeals was so much more antiseptic—a coolheaded approach to marshaling the facts that had been handed to her and spinning them into a winning argument. She missed her family when she was away from home, but she missed the challenge when she handled only appeals. She felt tired now after days on the road, but it was a good tired, she decided. She knew she wouldn’t give it up.

  “How were the kids tonight?”

  “Jonah’s working on a new composition—a violin concerto this time. And Ruth walked all the way from the living room to the kitchen.”

  Great, Dani thought, as she slid down and lay her head on Doug’s lap. One more thing I’ve missed.

  Dani arrived at the office the next morning rested and ready to go. Her first priority was preparing for the oral argument before the Supreme Court of Georgia in eleven days. She hunkered down with her research and spent the next several hours making notes and organizing them into something that flowed. When she finished, she put it aside. She’d return to it two days before the court date and look at it fresh, rechecking the cases she wanted to cite and looking for any new cases that had just been reported. Now, there was no more she could do on Osgood’s behalf until Tommy tracked down addresses for Lisa Hicks; Tony Falcone, the handyman, or his daughter, Abigail; and Greg Johnson, Kelly’s former boyfriend.

  She opened the packed folder on her desk containing letters from inmates seeking HIPP’s help. Slowly, she went through each one, stopping occasionally to check out some claims on LexisNexis. Eventually, she chose William Dorney. He’d been convicted of the rape and kidnapping of two teenage sisters in their home based solely on their identification of him.

  The two girls had been home alone when a man broke in through a basement window, tied them up, then sexually assaulted each in turn at gunpoint. Although he was in their home for almost two hours, they’d caught a glimpse of his face only before he blindfolded them. Nevertheless, they told the police that their captor looked like a former neighbor—William Dorney. Each girl identified Dorney in a lineup. Although rape kits had been collected, the DNA testing was inconclusive. Even though Dorney had an alibi—his claim that he was at work was corroborated by his employer—he was convicted and sentenced to two consecutive life sentences.

  Dorney had maintained his innocence throughout his trial and his fourteen years in prison. Dani knew that in 75 percent of wrongful convictions, eyewitness misidentification was a primary or contributing factor. She turned to her computer and began a letter to him saying she would take his case.

  At the end of the day, Dani stuffed papers to work on at home into her briefcase, then stopped at Tommy’s desk on the way out. “Anything new?” she asked.

  “You’ll know as soon as I find anyone. Still searching.”

  Dani had expected it would be difficult to find both Lisa and the handyman. If Lisa was married, they didn’t know her new name. And if the police couldn’t locate Tony Falcone twenty-two years ago, it would be even harder now. But she’d thought finding Greg Johnson would have been easy. And it had been easy for Tommy to find him. Thirty-two Greg Johnsons, in fact, all within the right age range. He’d been busy tracking down each one to figure out which had been Kelly’s boyfriend. So far, he’d hit dead ends.

  She left the office, got her car, then started the commute north to her home. The leaves had finally begun to change, and as she drove north on the FDR Drive—the East River to her right, a brightly colored tree-lined walk to her left, tall buildings behind her and the expanse of the Triborough Bridge in front—she suddenly felt awash with gratitude that she lived near such a grand city. There had been times, since the terrorist attacks of September 11, 2001, when she and Doug had worried about working in a city that was a magnet for extremists. There had been times, because of that fear, they’d talked about moving elsewhere. But New York had always been her home. Tommy often talked about retiring to Florida when the last of his five children was in college, but Dani knew she’d never leave. Autumn in New York was just too beautiful to ever give up.

  CHAPTER

  13

  Once again, Dani was back at the Supreme Court of Georgia. When The State v. Osgood was called, both she and Gary Luckman moved to the front. Seven justices sat on the bench, only one a woman. The lack of women jurists at the highest courts in each state wasn’t unique to Georgia. Despite a shift by law schools in the 1980s toward admitting more women, they were still underrepresented at the highest echelons.

  Dani gathered her papers and moved to the lectern. “May it please the court, my name is Dani Trumball, and I represent Jack Osgood, who was convicted of murder in the first degree twenty-two years ago, and sentenced to die. His death warrant has been signed, and he is now scheduled for execution.” Dani went through the facts of his case, and the history of his appeals, then continued. “Although Mr. Osgood has continually maintained his innocence, even assuming his guilt, he i
s ineligible to be put to death because he suffers from an intellectual disability that presented before the age of eighteen and which has resulted in limitations in his functioning. There is no dispute between the defendant’s expert and the prosecutor’s expert that, based upon intelligence tests, Mr. Osgood’s intellectual functioning is significantly subaverage. The experts differ, however, with respect to Mr. Osgood’s limitations in adaptive behavior. The prosecution’s expert bases his determination on two factors: the nature of the crime, and reports of prison guards who come into contact with Mr. Osgood. The first factor should be given no weight. The State of Georgia requires that a claim of mental retardation be backed up by demonstrable impairments in adaptive behavior. This court has never found that the ability to plan a crime is sufficient by itself to show adaptive behavior.”

  One of the judges broke in. “Aren’t there any circumstances in which the planning of a crime can show there’s no impairment in adaptive behavior?”

  “I suppose there might be, if all the different areas that make up adaptive behavior are implicated. But that wasn’t the case here.”

  “Give me an example where it might be the case.”

  “Well, if he were the ringleader of a group and planned a complex crime, assigning jobs to each member, obtaining the weapons and material needed to execute the crime.”

  The justices were quiet, so Dani continued. “The second factor—the reports of prison guards—is also insufficient. First, prison is a contained environment, and especially so on death row. Mr. Osgood is not required to perform any jobs, and his social interaction is limited. He does not need to care for himself, because the state cares for him by providing and laundering his clothing and preparing his meals. Furthermore, the United States Supreme Court decision in Atkins v. Virginia makes clear that the question is not whether Mr. Osgood now has limitations in adaptive functioning, but whether he had such limitations at the time of his incarceration. Defendant provided testimony from school officials and his employer that he had impairments in communication, social skills, self-direction, and functional academic skills. None of that testimony was contradicted by the prosecution. For these reasons, the defendant has shown beyond a reasonable doubt that, under the definition utilized by the State of Georgia, he is mentally retarded and may not have a death sentence imposed.”

  As Dani sat down, she saw Luckman stare at a handful of cards in front of him, then slowly stand and walk to the lectern, leaving the cards behind. Dani suspected he’d been caught off guard by her argument. He probably expected to contend that where there is a battle of experts, as there was here, the defendant didn’t meet his burden of proving, beyond a reasonable doubt, that he had an intellectual disability. Now, he was forced to address Dani’s claim that only Osgood’s capabilities at the time of the conviction mattered.

  “Your Honors,” Luckman began, “Ms. Trumball would like this court to ignore all that is known about the defendant presently and hark back to a time when there is little known about his adaptive skills. His principal hadn’t had contact with the defendant for six years. And his employer, who admitted that he’d been close to the defendant’s mother and therefore possibly biased, was not privy to any behaviors outside the supermarket. Only Mrs. Osgood could give a full picture of his capabilities, and she is deceased. Given that, it is entirely appropriate for the court to rely on the assessment of the guards who monitor him twenty-four hours each day.”

  “But isn’t it true that a death-row environment can’t provide a true picture of his capabilities?” asked the woman justice.

  “Perhaps. But the burden is on the defendant to prove he is mentally retarded. He simply hasn’t done so.”

  Luckman finished the rest of his argument—more about the burden of proof—then he and Dani left the courtroom. Once again, Dani couldn’t predict the outcome. And, once again, she’d already prepared a writ of certiorari to be filed with the US Supreme Court. This time, though, she wouldn’t wait in Georgia for the court’s decision. She flew back to New York, pessimistic about the outcome.

  By the time Dani arrived home, her family had finished dinner. Jonah was entertaining Ruth in the living room, chasing her around the couch, pretending he couldn’t catch her, then finally grabbing her and swinging her in the air. She laughed the joyous, high-pitched giggles that only a baby could make. As Dani watched them in the doorway, she marveled once again at how unpredictable life could be. For more than a decade, she’d believed her family was complete, never expecting she’d have another child. She and Doug had made the decision to stop with Jonah. Now, life without Ruth seemed unimaginable.

  For the Braden family, life without Kelly also must have seemed unimaginable. Dani had seen pictures of the sixteen-year-old in the files—a beautiful, smiling girl with soft blue eyes and honey-blonde hair that fell in waves to her shoulders. They’d had to deal with the worst any parent could endure—burying a child.

  Dani turned from the living room and joined Doug in the kitchen, watching as he loaded the dishwasher with the dinner plates and utensils. Once again, as so often before, she realized how lucky she was. So much of life seemed to be a matter of luck. Sure, she and Doug had worked hard, first in school and then at their jobs. But she’d been lucky to find a man who was such a perfect match for her. She’d been lucky that no tragedy had befallen her family, as had happened to the Bradens. She was lucky that she’d been born into a family that loved and nurtured her, unlike so many of her clients. She never took that luck for granted. She’d learned over the years that luck could disappear in an instant. Like losing a child. Or being convicted of a crime you hadn’t committed.

  CHAPTER

  14

  Three days after her return to New York, Dani had something to smile over. She’d just hung up with the prosecutor in the William Dorney case. He’d agreed to retest the DNA, and it now conclusively excluded Dorney as the rapist. Even better, it turned up a match with another man who had been convicted of rape in a later case. Her client would go free.

  A half hour later, her good mood vanished. The decision of the Supreme Court of Georgia had just come over the fax. It turned out Dani’s pessimism had been warranted. The court upheld the lower court’s finding. The majority wrote, “As we’ve previously ruled, the state identifies as mentally retarded those whose deficits are so clear as to be demonstrated beyond a reasonable doubt. In the current case, defendant has failed to overcome that burden.” The sole dissenting opinion, written by Justice Mary Blackwell, said, “Georgia’s requirement that defendants sentenced to death prove mental retardation beyond a reasonable doubt creates a risk that persons with such a disability will be executed. Such a circumstance should not be countenanced.”

  To compound Dani’s distress, a letter arrived over the fax informing her that Osgood’s execution had been rescheduled. It would take place in one week.

  Within an hour, Dani filed her papers with the US Supreme Court, once again asking for a stay pending a ruling. There was nothing more she could do at the moment for Jack Osgood, so she began working on the cases of her other clients.

  She looked up when she heard a knock on her open door and saw Tommy standing there.

  “Hi, gorgeous.”

  “Hi, yourself. What’s up?”

  “Two things. First, I’ve tracked down Derek Whitman.”

  “Greg Johnson’s roommate?”

  “Yeah. Want me to interview him?”

  Dani scrunched up her face. “Still no luck finding Greg?”

  “Not yet.”

  “Let’s hold off with Whitman. I’d prefer to interview Greg first. See if we can catch him with any inconsistencies. If you can’t find him, then visit Whitman. What’s the second?”

  “Turns out the Bradens have a son. Adam Braden. Two years older than Kelly, and he, too, went to University of Georgia.”

  “That’s interesting. There was nothing in the file about him. And neither the Bradens nor the Hickses mentioned him.”

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nbsp; “Well, he probably didn’t need to testify at the trial because he was away when his sister was killed. And I suspect the parents wanted to keep him out of the limelight. And still do.”

  “Do you have contact info for him?”

  “Yep. Phone number and address. He lives in Atlanta.”

  “Why don’t you fly out and meet with him? Maybe he can lead us to Lisa, since she’s his cousin. Or even Greg.”

  Tommy nodded. “My schedule’s flexible right now. I can go tomorrow.”

  “Good.” Dani knew that tracking down proof of a client’s innocence was like working a puzzle. Each piece that fit could lead to another piece. Step-by-step they’d work the puzzle, until a clear picture emerged.

  When Tommy left, she returned to the case at hand: a nineteen-year-old man—really, still a boy—who’d been in jail in New Jersey for eighteen months on a possession-of-cocaine conviction. Although Dani hadn’t met the young man yet, she had no doubt he was black. Among the wealthy titans of business in New York and the glitterati of California, cocaine was rampant, yet rarely did those mostly white men and women get arrested. Eddie Coleman had pled guilty and received a sentence of four to six years. Before he’d pleaded guilty, he’d already spent nine months in jail, unable to make bail. When a plea was offered, and his legal-aid attorney explained that he was facing ten to fifteen, he accepted. Normally, a guilty plea precluded reopening the case. But Eddie insisted to Dani that the white powder found in his pocket was benzocaine that he carried with him at all times because his seven-month-old son was teething, and it helped relieve his pain. Despite Eddie imploring his attorney to have the substance tested, neither the attorney nor the police ever did. And so, Eddie, if he was to be believed, was serving time when his only crime was being too poor to post bail, and having an overworked attorney who was too busy to push the police to test the powder. Now, Dani worked on papers to force the police to do just that.