“Mr. Kincaid, I know why you’re here. Again. Do you recall the last time?”
“I do,” Ben said contritely.
Judge McPartland pointed his gavel. “Then you may recall my telling you that if you brought another motion before this court, without new grounds, I would cite you for contempt and throw you in jail.”
“I recall that distinctly, your honor.”
“It is one thing to be a zealous advocate. One cannot help but admire that. Up to a point. But when the trial is over, it is over. Your remedy, if any, is to appeal to a higher court, not to keep badgering the trial court.”
“Yes, sir. But an appeal takes a year or more. A motion to set aside-”
“I don’t need a lecture on trial procedure, Mr. Kincaid.”
“No, sir.”
“Especially not during your third attempt at the same motion. You are very lucky that I have not already-”
“He’s innocent!” Ben exclaimed.
A hush fell over the packed courtroom. Despite the fact that most of those in attendance were reporters, there was not so much as a cough. Perhaps they were stunned that he had raised his voice. Or perhaps, like Christina, they thought it was long overdue. If dangerous. Especially with an old-school judge. Good thing he’d brought a toothbrush…
“I am aware of your position, Mr. Kincaid. And I do not doubt that you genuinely believe it. But we have rules and procedures in this justice system of ours. Surely you must realize-”
“I’ve been down this road before,” Ben said firmly. “Trying to get someone out of the clutches of the criminal justice system when I knew he was not guilty. Seeing a good man rot away in prison because the wheels of justice turn so slowly.”
“I admit the system is flawed-”
“But no one ever wants to do anything about it. That’s why so many trials go bad. That’s why more than a hundred people have been released from death row because DNA evidence proved the criminal justice system totally screwed up. That’s why-”
Behind him, Ben felt Christina tugging at the back of his coat. He coughed into his hand. “But I digress…”
Since Dennis Thomas’s conviction, Ben had alternated between halfheartedly planning an appeal and mostly wallowing in his own guilt. He should’ve done this, he should’ve done that. Nothing made him feel better. Despite Christina’s best efforts to bring him out of his funk, all he could think about was the fact that there was a man in prison-a man on death row, no less-because he’d let himself be outmaneuvered by a sharp district attorney positioning himself for reelection.
Then he got the call from Loving. Mike, actually, on behalf of Loving. Slowly he was able to put the pieces together. Within twenty-four hours, he was back in front of this court with a motion to set aside judgment based upon newly discovered evidence. Ben presented an affidavit from Loving in which he described in detail everything that Shaw had told him. The intentional killing of Joslyn Thomas. The deliberate refusal to investigate. The drugging of Dennis Thomas. The cesium black market operation that lay behind the whole complex drama.
His motion was denied. The judge took it all into consideration, but he noted that the standard for setting aside a jury verdict was very high, and rightly so. Otherwise there would never be any finality in any case. He noted that the affidavit had been sworn out by someone who worked for the defense attorney, which of course went to its credibility. He also noted that it was all hearsay, a form of evidence disfavored by the courts, and that Loving had recently been drugged and was suffering bouts of memory loss as a result.
A week later, Ben was back with another motion. This time he had an affidavit from Mike detailing the entire police investigation, not only of the death of Christopher Sentz but also of Joslyn Thomas. A subsequent, more intensive investigation at the crime scene revealed evidence that Joslyn’s accident had been engineered, then covered up, by a third party-Christopher Sentz. He also detailed the investigation into the cesium robberies and how they related to the Thomas case, and noted that Peter Shaw had perjured himself at trial and others might have done so as well.
The judge admitted that he was impressed. He admitted that it appeared the whole truth had not come out at trial. But he saw no clear indication of anything that likely would have altered the jury’s verdict. Mike was unable to explain what had happened in that hotel room. Motion denied.
Dennis had sat beside Ben for both hearings. Ben had warned him that this was a difficult business and that he should not get his hopes elevated. But how could he not? He was a human being. How could he help but hope that this would be the time he finally found justice? But it never happened. Ben let him down again, just as he had done at the trial.
And every time, Dennis looked a little older, a little more tired, a little more beaten. It had only been three months, but his hair was already grayer. His eyes sagged. His skin was pale, almost translucent. This was not a man who needed to be in prison. Or who, Ben suspected, would survive long there.
“The point of this third appearance, your honor, is that we have even more newly discovered evidence. And this time it’s being provided by the district attorney’s office.”
Judge McPartland raised an eyebrow. He looked over at the prosecution table. “Is this true?”
Guillerman nodded. He didn’t look happy about it. Truth was, Mike had orchestrated the whole thing, and it had taken a long time. He had to get the cooperation of a host of law enforcement officials, both state and federal. Eventually he brokered a deal. Shaw received a reduced sentence-and his sister was guaranteed medical treatment. In exchange, he agreed to testify at this hearing. Once Mike had the whole matter arranged, Guillerman had little choice but to go along with it.
“Very well then. Mr. Kincaid, please call your witness.”
“I see now that my head was all messed up. I couldn’t think straight. I wasn’t sleeping well. Drinking too much. Taking pills to help me stay calm. You got to understand-I’ve never been married. I have no children. My sister is my whole world. The one who was always there for me. The one who stood beside me when the rest of the world couldn’t care less. I could not watch her die because we couldn’t afford the health care she needed!”
Shaw, like Dennis, had also changed much in the three months since the trial. He’d lost a good deal of weight. He’d shaved his goatee. His skull was stubbly. Ben knew he had spent most of that time incarcerated at the Tulsa County Jail. Perhaps he did not have access to the usual grooming tools.
But Ben also sensed a certain calm about him. A rectitude, perhaps. As if, now that all the secrets were out, he didn’t have to hide anymore, and he was relieved about it. Better to bask in a harsh sun than to cower in shadows.
“I was horrified when I heard what Chris had done. Driving that poor woman off the road like that. Covering it up. She never did anything to anyone. She spent her days trying to help the sick and dying. And this was her reward? Just because Dr. Sentz was sloppy? It wasn’t right.”
Ben felt Dennis flinch each time Shaw talked about the horrors that had been visited upon his wife, but somehow he managed to keep it together. Ben didn’t know how. Perhaps Dennis had also acquired some strength during the intervening months.
“I knew Chris was stonewalling the investigation. I thought it was a mistake. Better to seem to cooperate than to create suspicion. But he didn’t see it that way. He was afraid she might still be alive-which was correct, as it turned out-and he didn’t want her found anytime soon. That’s why he was so upset when he found out what Officer Torres had done. He was afraid he would be found out. Didn’t happen. He overreacted. And his overreaction set the whole drama into motion.
“After the body of Parsons was discovered, dead from radiation poisoning, the Tulsa police began an investigation into the murder, and then later into the cesium smuggling operation. Unfortunately, since Sentz was in charge of that one, too, it never got anywhere. He figured the safest way to make sure the cops never got close to him was to run the investigation himself. The stakeout at the Marriott was a big smokescreen based upon faked nonevidence. The irony was, we were the smugglers we were supposedly hunting.”
Behind him, Ben saw reporters scribbling furiously. The clickety-clack of laptops had been deemed too distracting, so they were forced to resort to pen and paper, which for many of them, Ben suspected, was a new and strange experience.
“I totally used Dennis Thomas. Dr. Sentz knew his stupid guilt-ridden brother had to be eliminated, but he was too weak to do it himself. He just made little hints, you know? Basically hoping someone else would do it, so he wouldn’t have to come face-to-face with what he was-the kind of monster who could contemplate killing his own brother. So I drugged Dennis Thomas. He was our patsy. He took the fall, and covered up our whole operation in the process.”
Beside him, Ben felt Dennis’s arms shaking. Seething with anger? Furious about the great injustice that had been done to him? Or trembling with anticipation? Perhaps he was beginning to feel, as Ben did, that this time the result might be different. This time the evidence went into the hotel room.
“Mr. Guillerman, would you like to cross-examine?”
“No,” he answered succinctly. “I have no reason to doubt anything the witness has said.”
Ben’s eyes widened a bit. He was not only not challenging but implicitly endorsing the witness. A brave move from the district attorney who had fought to put Dennis away. He was signaling the judge that even if his office did not allow him to support this motion, he certainly did not oppose it.
After Shaw finished testifying, he was taken by two marshals and escorted back to the jail. Eventually he would be moved to prison, where he would serve several years. Given all that he had done, the deal let him off easy. But it would be worth it if it got Dennis out of the coveralls.
“Is there anything else?”
Both attorneys shook their heads.
“Very well, then. I want to check a few precedents and gather my thoughts. Please do not leave the premises. I will render a judgment before the close of business today.”
Christina and Ben looked at each other. They weren’t even going to say what was in their heads, as if voicing any hopes might jinx them.
Dennis did not have the same control. “He’s thinking about it, right? We know he’s at least thinking about it?”
“We do know that.”
“But what if he denies your motion again?”
“Then we take it to the Court of Criminal Appeals. Justice Johnson and that lot. At least now we’ve got some real issues.”
“But no sure thing.”
“That doesn’t exist in the legal world.”
“And that will take a year to be heard?”
“At least.”
Dennis fell silent. Ben took his hand and squeezed it tightly.
That wasn’t much. But at the moment, it was all the attorney had to offer his client.
Like all breaks, this one gave Ben a chance to contemplate everything that could possibly go wrong. It was still possible that the judge could dismiss the testimony as lacking credibility, since Shaw was a known perjurer and he had basically sold his testimony to get a lighter sentence. It was possible he could find any of a thousand other flaws as well. And Ben contemplated each and every one.
He was greatly relieved when the judge finally returned to the courtroom.
“It may well be that we will never know everything that happened in this case. I for one would like to know who masterminded this sale of radioactive materials, and the identities of the intended buyers. I would sleep better tonight if I had that information. But my job here is to analyze the new evidence that has been presented in terms of the case tried. Specifically, my job is to determine whether the new evidence justifies setting aside the jury’s verdict.”
He took a deep breath before answering. It seemed it was not only jurors who instinctively drew out the big moment of revelation.
“Most motions for new trial can be dismissed out of hand. Most newly discovered evidence is neither new nor evidence of much. But this is different. Here we have a confession from a key player in a criminal operation. To use his own words, Dennis Thomas was their patsy. And I for one am ashamed that both law enforcement and the justice system played a part in this ongoing misuse of a grieving husband.”
McPartland drew himself up to his full height. “It is with this in mind that I announce that the defendant’s motion is hereby granted. The court will entertain any writ for relief the defense may care to subsequently submit and my ruling will be forwarded to the court of the pending civil action. The judgment against Dennis Thomas is hereby set aside and double jeopardy has attached. Therefore, Mr. Thomas, as of this moment, you are a free man. Marshals, remove those shackles.”
Dennis jumped up into the air. Most of the reporters in the gallery did the same. He heard a cry from the back row, then another. A few moments later, a spontaneous round of applause broke out.
The judge hammered down his gavel. “This court is still in session!” he barked. “Therefore, there will be order in this court!” His stony glare melted into a smile. “However, what you do afterward is your own business.” He brought down the gavel again. “This court is in recess.”
The crowd once again burst into applause. The back doors slammed repeatedly as people raced in and out.
Before Ben even knew what was happening, he felt Dennis’s arms wrap around him. “Thank you,” he said quietly. Ben could tell he was weeping. “Thank you so very much. From both of us.”
Ben didn’t have to ask what that meant.
Over his shoulder, Ben saw Guillerman approaching.
“I know you might not want to hear from me,” Guillerman said, speaking to Dennis, “but I am genuinely sorry about what happened.”
Dennis reached out his hand. “I don’t blame you.”
“Thank you. But I won’t stop blaming myself.” He looked past to Ben. “Congratulations, counselor.”
“Thank you for not opposing the use of the Shaw evidence.”
Guillerman shook his head. “I’m not a total jerk, you know. Honest.” He reached out his hand to Ben. “Thank you for your damned tenacity. You are a testament to this profession. What it should be.”
Ben didn’t know what to say. So he simply took the man’s hand and shook it.
“Hey, do I get in on this celebration?” Christina was standing on her tiptoes, trying to break into the circle.
“If you insist.” Ben turned around and gave her a big hug.
“I always have to beg for it.” She hugged him back. “Way to go, slugger. I’m proud of you.”
“Thank you, my dear.”
“But if you think this means I’m going easy on you tonight on the Scrabble board…”
“Don’t be ridiculous.” He wrapped an arm around both his wife and his client. “Dennis, how long has it been since you had a really good New York-style pizza?”
“Ben, I’ve been in prison.”
“Right. Well, as it happens, Mario’s is still open…”