the new version, and he agrees to arrange for Randy to tell his story. We schedule it for Monday morning, and Richard promises to set it up with the prison authorities.
Just before he gets up to leave, he says, “You know, the evidence was there, and I believe he was guilty, but the Clemens conviction never felt completely right. You know?”
“I know. Believe me, I know.”
• • • • •
JUDGE CALVIN NEWHOUSE is assigned to preside over
Calvin’s reputation is as a prosecution judge, which doesn’t exactly put him in select company. I’ve tried one case before him, which I won when he agreed to my motion for an order to dismiss. I found him to be highly intelligent and reasonably evenhanded, so all in all I’m not unhappy with the selection. It could be better, but it could be a hell of a lot worse.
One major plus is that Calvin is unlikely to be swayed by the media coverage and public pressure surrounding the case. He’s sixty-four years old, due to retire anyway, and fiercely proud of his independence. He won’t fold before Tucker, but neither will he do us any great favors.
The hearing today is mostly a formality; a get-acquainted session with the judge, during which he will set the trial date and hear a few ordinary motions. Despite that fact, I don’t know that I’ve ever seen this many members of the press in one place. Clearly, there is nothing else going on in the world.
Vince has gone to Daniel’s house to get him a suit to wear, and when I see him in the suit, I’m glad there’s no jury present. If Calvin were inclined to grant bail, which he won’t be, the value of the suit would cover it. When there is a jury, I will not have Daniel looking so regal. He should look like a man of the people, a little tattered, with no sense of fashion. It’ll be easy to pull off; I’ll just send Vince to my closet instead.
Tucker has three lawyers from his office with him, all of whom I know to be quite competent. As a group they represent considerable overkill for the task at hand, unless Tucker is planning to use them to haul in the boxes of convincing evidence.
Tucker suggests a trial date in the prescribed two months and is shocked when I agree. I would much prefer a longer period of time, but Daniel has insisted we move forward quickly. He seems to have the notion that the trial will result in his being let out of prison, a concept not currently supported by any facts that I am aware of.
Calvin asks us whether discovery is proceeding smoothly, which to a degree it is. Boxes are arriving at my office every day, and they don’t even yet include the DNA tests, which will take a few more weeks. I’m not waiting for them with bated breath; I have no doubt the blood and hair on the scarves found in Daniel’s house will match those of the victims. My task is to convince the jury that Daniel did not put them there.
“Your Honor,” I say, “discovery has to this point been limited to the documents and reports relating to Mr. Cummings as a suspect. They indicate he wasn’t viewed this way until late in the investigation. I would request that the defense be given all reports from the investigation, whether or not they relate to him as a suspect.”
Tucker confers briefly with one of his colleagues, then stands. “Your Honor, the rules of discovery are very clear on this point, and they do not support the defense’s request. All relevant discovery is being turned over. Defense is on a fishing expedition.”
I shake my head. “Your Honor, my client was a conduit between the actual killer and the police. The police used him as such; they directed him in his dealings with the real killer. This all took place before he was a suspect. He was an integral part of their investigation, and as such we should be privy to all aspects of that investigation.”
Tucker objects again; he is on fairly solid legal ground, and it would take a surprise ruling by Calvin for us to prevail. My hope is that he will bend over backward to give us every chance, knowing that if we lose this death penalty case, appeals courts will be scrutinizing his rulings for years.
“I’m inclined to grant the defense motion,” Calvin says as Tucker does a double take. “If there are cases where the prosecution contends that innocent third parties will be injured by these documents being turned over to the defense, then I will review them
I never expected to win this motion, so I might as well press my luck. “Thank you, Your Honor. We also request that we be provided with any prior police investigative reports concerning Ms. Linda Padilla, beyond those relating to her murder. We believe they may reveal others with a possible motive to have caused her death.”
This possible linkage of Linda Padilla to unsavory characters gets the press mumbling and Tucker jumping to his feet. His frustration is obvious. “Your Honor, there is no foundation for this. There is nothing in those reports relating to this case.”
Calvin nails him. “You’ve read those reports, have you?” He knows Tucker would have had no reason or occasion to read old, unrelated police investigative reports on Linda Padilla, yet Tucker has just said there’s nothing relevant in them.
“I’m sorry, I misspoke, Your Honor. I actually don’t even know if such reports exist. But unless they contain information about Mr. Cummings, they certainly could have nothing to do with this trial and therefore are not covered by discovery rules in this state.”
Calvin gives us another win, albeit a smaller one. He will look at those reports
I once again bring up the question of bail, though I’m aware it’s always a nonstarter in a capital case. “Are you trying to waste the court’s time, Mr. Carpenter?” Calvin asks.
“No, Your Honor, I am trying to prevent a man who has never previously been charged with a crime, who is not a flight risk, and who has always been a distinguished member of the community from sitting in a jail cell while we get around to finding him not guilty.”
Tucker stands. “Your Honor, the state-”
Calvin cuts him off. “Request for bail is denied. What’s next?”
I stand. “Your Honor, we have filed a motion for change of venue with the court. We feel strongly that the already strong public awareness and reaction, which has been further inflamed by Mr. Zachry’s self-serving press conferences, has made it impossible to empanel an impartial jury. We-”
He cuts me off. “I read the motion, as well as the prosecution’s response. It may take a little longer than usual, but we’ll get our jury. Motion denied. We finished here, gentlemen?”
We’re not quite finished, though my last issue is sure to be a loser. “Your Honor, Mr. Zachry has been telling the press that his case is airtight on all four murders, yet he’s held back charging my client for the first three. He’s obviously concerned that his airtight case might spring a leak, and he might need a second chance if he loses this one. I would therefore request that he not be allowed to use evidence from those other murders unless he includes them in the charges for this trial.”
Tucker states his position directly from the statute, which is that the other evidence is “proof of motive, opportunity, intent and preparation.” I know I’m not going to win; I’m simply creating an issue for appeal.
Calvin rules against us, and I head back to the office to brief Kevin and Laurie on my conversation with Randy Clemens. They’re more hopeful about it than I am, probably because they don’t understand Randy’s desperation to find something that will free him.
“So he said it was all about Linda Padilla?” Laurie asks.
“He didn’t mention her name; I think he was afraid we’d be overheard. But he referred to the ‘rich’ victim, and I don’t see how the others qualify.”
Marcus calls from Cleveland to fill us in on his progress, and we put him on the speakerphone. Talking to most people on the phone is not quite the same as talking in person; there are facial expressions and body language that can be almost as important as the spoken words. Marcus is a notable exception. The inanimate phone captures his expression and mannerisms quite well, is just as bald, and contains the same percentage of body fat.
Marcus has talked to the detective that was assigned to the murder of Margaret Cummings, Daniel’s wife. He
