Richard Davidson calls, having just heard the news but not wanting to believe it until I have confirmed it for him. I do so and honestly say that there is a chance, but only a chance, that Jeremy will be set free. Either way, I tell him, Eddie’s bad news appears to be very good news for Jeremy.
I call the court clerk first thing in the morning, asking her to inform Judge Morrison that I am requesting an urgent meeting with him and Lester. The judge is attending to personal business early this morning, but a callback tells me that I should be in his chambers at noon. The speed of the response means that it’s likely the judge has also seen the news.
Kevin and I stop at the jail so that we can bring Jeremy up-to-date on what is going on. Unfortunately, his father has spoken to him already, and based on Jeremy’s euphoria, Richard must have substantially overstated our prospects for success. I think if I were to hand him a cell phone, Jeremy would use it to try to get a date for Saturday night.
The only slight glimmer of worry that I see is when he says, “So this guy Eddie was her boyfriend?”
“Apparently so,” I say.
“And he admitted he did it? His letter says he killed Liz?”
“Yes.”
“If he lied for some reason, if he didn’t do it, what’ll happen then?” he asks.
I detect doubt in Jeremy’s voice, so I call him on it. “Do you have reason to think he lied about it?”
“I don’t know… I mean, I never met the guy. It’s just hard to imagine that anybody who knew Liz could have killed her like that.”
Jeremy’s statement moves him up a major notch in my mind and increases the pressure on me to use these recent events to get a dismissal.
When Kevin and I get to the courthouse, Lester and his staff are already there, attempting unsuccessfully to look confident and unconcerned. This case was going to make Lester a star, and there’s a decent chance that it is suddenly going to cease to exist.
Judge Morrison calls us into his chambers precisely at noon and basically turns the floor over to me. I relate in substantial detail the events that led to our finding Eddie in the motel bathroom yesterday, and I describe the note as I read it.
After I do so, I state my modest goal for this meeting. “At the very least, Your Honor, these are events which can have an enormous impact on this case. I would request that this court instruct the state police to turn over all relevant information and that a hearing then be held to consider it.”
It’s a simple request, and perfectly logical, but Lester has brought some verbal ammunition with him, and he lets fire. “Your Honor, we are dealing with an uncorroborated confession, and a hearsay one at that. This case has received substantial media coverage, and as I’m sure you are aware, confessions in such situations are frequent and notoriously unreliable.”
Morrison offers me the opportunity to respond, and I say, “That would be the main purpose of the hearing, Your Honor. We could collectively examine the events of yesterday, including the veracity of the confession.”
“It is for our jury to examine those facts, should they be ruled admissible at trial. I am sure that we will choose a jury quite capable of doing so,” Lester says.
I let my annoyance into my voice. “If Eddie Carson killed these two young women, we shouldn’t be choosing a jury. We should be setting Jeremy Davidson free, so that he can go back to college and get on with his young life.”
Judge Morrison comes down on our side, which is really the only thing he could do. He instructs Lester to deal with the state police and secure all current investigative information about Eddie’s death, including independent handwriting analysis. He tentatively schedules a hearing for next week and moves jury selection back to a time to be determined.
Jeremy Davidson won’t be going out on a date this Saturday night, but his future just got a whole lot brighter.
• • • • •
FINDLAY HAS NEVER seen anything like this. The national media have descended on the small community for today’s hearing in numbers dwarfing those here at any time before. Eddie’s suicide and confession have in a bizarre way added a cachet to the case that has made it even more appealing to those who report on the human condition.
I would imagine that the assembled reporters have mixed emotions about today’s hearing. If it goes our way, Jeremy is released and the story is over. If it goes against us, they will have to spend the winter on the frozen tundra covering the trial in long underwear.
The state police have cooperated in turning over whatever they have on the case, and we have promptly received the documents in discovery. The investigation is far from complete, but a substantial amount of work has already been done. The bottom line is that the state police have found nothing inconsistent with suicide, and their handwriting expert has no doubt that it is Eddie’s handwriting.
My goal is a simple one: It is to say that this evidence should be admissible if Jeremy goes to trial, and that its very admissibility should preclude Jeremy from having to go to trial at all.
The gallery is packed as Judge Morrison takes his seat at the bench. Both Lester and I have submitted briefs in support of our respective positions, but if the judge has not already formed an opinion, then it is the oral arguments that will sway him.
My only witness at the hearing is Detective Woisheski, and I take him through the entire investigation into Eddie’s apparent suicide. He is an excellent, experienced witness; his answers are concise and exactly on point. My questions merely provide the road map; he’s driving the car.
There is little that Lester can do with him on cross-examination, other than to repeatedly make the point that the investigation is not concluded and that it is certainly possible that information might still turn up that could lead Woisheski to believe that Eddie was murdered.
Lester then calls Laurie to the stand, in order that she can report on the Findlay side of the “Eddie investigation.” His hope is that she will be able to learn that Eddie could not have committed the murders of Liz and Sheryl and that therefore his confession in the note was either fabricated or coerced.
Lester knows that Laurie is not about to do that at this point, and she does not. But she does at least slightly bolster Lester by saying that she has uncovered no independent evidence of Eddie’s involvement in the murders. I cross-examine her briefly, only to get the alternative truth that she has not found anything to exonerate him either.
Once Laurie leaves the stand, the main event begins: the oral arguments. Judge Morrison decides to address the admissibility question first, and Lester states his position that the only reason Eddie’s death has any bearing on our case at all is the note. And the note, continues Lester, is hearsay and therefore not admissible. Should Judge Morrison issue such a ruling, reasons Lester, then our case is unaffected. Our jury could not be influenced by a note that they are never permitted to see.
“Your Honor,” I say, “the prosecution knows full well that the note represents a ‘dying declaration’ and is an exception to the hearsay rule.” The law makes this exception in the belief that a person about to die is likely to be truthful, as well as the obvious fact that since the person is dead at the time of trial, hearsay is the only way his views can be introduced.
Lester interrupts with the expected counterargument that a dying declaration, under Wisconsin law, is only an exception to the hearsay rule to show how the declarant died. For example, a person who is in the process of dying from a gunshot can identify the shooter, and that statement would be admissible. But that’s all.
I rebut, “I can only assume the prosecutor is not familiar with the law, Your Honor. He should know that the statement is in fact admissible, since it is a ‘statement against interest.’ Were Mr. Carson to have been unsuccessful in his suicide attempt, the statement that the note represents could have exposed him to a criminal prosecution and is therefore legally considered against his interest.”
My belief is that the only area in which the law is ambiguous and not totally favoring our position is the question of whether the dying declaration can be in writing, and not spoken. There is insufficient case law on this, and it will be up to Judge Morrison to decide.
We go on to my basic premise, which is that the facts behind Eddie’s demise create so much reasonable doubt about Jeremy’s guilt that had it been known two months ago, Jeremy would not have even been arrested, no less brought to trial.
“There may have been probable cause at the time of the indictment,” I argue, “but it effectively has ceased to exist. And based on Detective Woisheski’s testimony, it is reasonable to believe that Eddie Carson made this confession of his own free will. How, then, could a jury find Jeremy Davidson guilty beyond a reasonable doubt of the same murders that Eddie Carson credibly confessed to?”
Lester responds by repeating his argument that bogus confessions are very common in high-profile murder cases and that if the actual defendant were released every time someone else confessed to the same crime, no one would ever get convicted. It’s a decent point; I just have to hope Judge Morrison doesn’t feel it carries the day.
Judge Morrison promises to rule quickly on the matter and adjourns the hearing. Before the guards take Jeremy away, he asks me how I think it will turn out, and I tell him truthfully that I just can’t predict.
As a defense attorney I’m single-minded of purpose: I want to get my client off. As a thinking human being I’m troubled by what I see.
Basically, I don’t believe that Eddie committed suicide; nor did he kill Liz Barlow and Sheryl Hendricks. He ran away the first time we came for him, and that is not the act of a person who has lost his desire to live. Additionally, he told me on the phone that he ran because he was afraid I was sent by Drummond. If this were as straightforward as the suicide note makes it seem, why would Eddie fear Drummond?
Add to this the fact that Janet Carlson was convinced Calvin’s neck was broken by a powerful man. I simply cannot see Eddie fitting that description, nor can I imagine him luring Calvin to his death. Eddie strikes me as a guy who had information, information that he realized it was dangerous to have. He may even have tried to convey that information to Calvin, then watched as Calvin was himself killed.
If I’m right, then Eddie took off and ran, until he was tired of running and saw contacting me as a possible way out. But one of the problems with this scenario is why he didn’t contact the police instead.
And hovering over all this is a strong feeling of guilt that I have over Eddie’s death. I believe that had I not been searching for him, he would not have been killed. I can’t prove it; I just think it, and it bugs the hell out of me.
I consent to three evening interviews on the various cable news networks. They are all done from the house, and I do them in case Judge Morrison rules against us. Should he rule for us, Jeremy will be free and there will be no need to sway public opinion. But if Jeremy faces trial, I want the public, including our future jurors, to know how significant I consider Eddie’s confession to be.
I wake up in the morning to two pieces of good news. First, the court clerk calls to say that Judge Morrison will issue his ruling from the bench tomorrow morning. This is amazingly fast compared to larger jurisdictions, but it fits in with what I have come to expect in this case.
Even better, Laurie calls to tell me that she has today off, and asks if I’d like to go for a drive out to the lake. It’s the perfect solution for a day in which I would otherwise do nothing but obsess about the case. And if we actually walk outside near a lake in this weather, I’ll freeze to death and be able to forget about the case permanently.
Laurie asks that I drive, and she sits in the passenger seat. Even though it seems that Wisconsin has more lakes than people, the one we are driving to turns out to be about two hours away. This is fine with me; I’m feeling so comfortable we could be driving to Anchorage for all I care. Besides, it’s got to be warmer there.
Fortunately, the only time we spend outside is walking from the car to the restaurant we arrive at for lunch. We are brought to our table along the glass wall at the far end of the restaurant. We are overlooking Lake Netcong, which is as beautiful a place as any I have ever seen. The air is so clear that it feels like I’m wearing magnifying lenses on my eyes.