"I didn't lie. I just don't remember her. I don't remember anything from that day. I got the concussion."
While probably medically true, it would be a tough sell to a jury. William felt well enough to go partying that night, but he didn't remember anything? The D.A. would exploit that at trial, ask him a hundred questions that would require an "I don't remember" answer. If, that is, William testified. He could decline to testify, but it's a risky strategy. Juries want to hear the defendant tell his side of the story. And juries don't trust a defendant who can't recall his side of the story.
"I just can't remember."
The next morning, Frank and Billie Jean sat in front of William in the interview room. Frank put the phone with Dee Dee's image on the screen to the Plexiglas.
"You don't remember taking this photo?"
"I didn't take it."
"What'd he say?" Billie Jean said.
She sat next to Frank, but could not hear William.
"Said he didn't take the photo."
"Ask him who did."
Back to William: "Who did?"
"She did."
Frank turned the screen back and studied the girl's image.
"He said she took it herself."
Billie Jean looked closely at the image.
"Could be a selfie."
"A selfie?"
"Self-photo. Kids take their own photos, post them on Facebook and Twitter."
"Why?
"I don't know."
Back to William: "Why would she do that?"
"So I'd remember her. So I'd text her."
Frank felt a sense of sadness. College thirty-five years ago was simpler; boys dreaming of sex but not getting much sex. College years filled with random sex with complete strangers did not seem all that wonderful. William shook his head.
"Her phone number, her photo, my blood …"
Frank hadn't had alcohol in thirteen days. His hands trembled. His son's hands trembled too, but not from alcohol withdrawal. From fear.
"Do the police know about her photo?"
"I think they do."
William looked noticeably thinner. Almost gaunt, if a man his size could look gaunt. His blue eyes floated in dark circles.
"Are you sleeping?"
"Not much."
"Eating?"
"Not much."
"Exercising?"
"Why? My season's over—did you see the game yesterday? Two losses in a row. No Heisman, no championship. My career's over. My life's over."
Frank regarded his son. Trial was four weeks away. Would he make it four more weeks in jail?
"Dwayne went to Lubbock, talked to the girl's roommate named Cissy. She was at the bar that night, too. She said you and Dee Dee disappeared, she figured you two had hooked up."
"We did?"
"You don't remember that either?"
"No."
Frank again put his palm to the glass, but his son put his face in his hands.
"I'm gonna die in prison."
A few blocks away at the Austin Police Department headquarters, Dwayne Gentry sat next to Detective Herman Jones's desk. Herman seemed pained.
"You need to know about your boy," he said.
"What?"
"He killed the girl."
"He said he never met her."
"But he did. Her phone number's on his phone."
"And her photo."
Herman smiled. "You found it? I told the D.A. you would. But he figures he's the smartest guy in the room. Likes to play games."
"But that's explainable. That's how kids roll these days, texting and sexting. Wish to hell I was a kid today."
"Amen, brother."
The two men smiled at the thought. As they say, youth is wasted on the young.
"And he got back to his dorm before the time of death," Dwayne said.
Herman's smiled turned into a frown.
"That's why I said you should come see me," he said. "The boy lied."
Herman inserted a CD into his laptop and tapped the keyboard. He turned the screen so Dwayne could see. A video clip played. It showed William Tucker and Ty Walker, aka Cowboy, entering the Jester dormitory's front door.
"Check the time stamp," Herman said.
"One-thirty-eight A.M. Eleven-thirteen-eleven. November thirteenth, two thousand eleven." Dwayne blew out a breath. "Well, shit."
"The law says I have to disclose exculpatory evidence. It doesn't say that I have to disclose incriminating evidence or that I have to lead you through the evidence and point out the good stuff. You've got to do some of the work yourself, Frank."
"You want the death penalty that badly, hiding the victim's photo and phone number in plain sight. You're an asshole, Dick."
Dick Dorkin shrugged. "I can live with that. But can your son live with a death sentence?" He exhaled. "You know, Frank, I liked you better drunk. You're so intense sober."
He grinned. Frank did not.
"Well," Dick said, "so now you know and you know it's bad."
"Did you subpoena his phone records from back then?"
"Yep."
"Any texts or calls from him to her?"
"Nope."
"What's that tell you?"
"Nothing. She died that same night. He wouldn't call a dead girl."
"Doesn't mean he killed her."
"Means he met her that same night in that same bar. Frank, the evidence proves they were together inside the bar the same night she died outside the bar. According to the eyewitness, Cissy Dupre, they kissed and groped. She saw them heading to the back of the bar where there's a door leading to the alley outside, the same alley where she was found—with his blood on her body. The witness saw William again that night, but not Dee Dee. All that adds up to murder, conviction, and a death sentence."
"Circumstantial evidence."
"Most evidence is, you know that. One question you've got to answer, Frank: how did his blood get on her body? Explain that. You can't. Because there's only one explanation: his blood got on her when he raped and strangled her."
"He wasn't even there when she was killed. Autopsy report says time of death was midnight to two A.M. He said he was back in his dorm before the time of death."
"He lied."
"How do you know?"
"Right now, Detective Herman Jones is giving your man a CD of the dorm surveillance tape from that night which shows your son entering the dorm at one-thirty-eight A.M. He was out when she was killed. Frank, your son's another Bradley Todd."
Frank Tucker looked as if Dick had just kicked him in the balls. It was fun holding all the aces in the deck. It rarely happens in a criminal case; the defense usually holds an ace, sometimes two. Or three. That's when prosecutors often venture into that murky realm known as "prosecutorial misconduct." When they inadvertently misplace a piece of exculpatory evidence or forget to file a contradictory witness account or, if necessary for a conviction, simply destroy a document that might make the jury question the defendant's guilt. Many prosecutors figure it's best not to confuse the jurors with the facts. Frank was still squirming in his chair, so Dick turned to the PD named Billie Jean. She was a sexy broad. Word of her past had spread through the Travis County criminal justice system faster than two cops through a box of donuts.
"You're the stripper?"
"I was the stripper."
Dick grunted. "One of my assistant D.A.'s, he's getting married, the boys are holding a bachelor's party for him, if you want to make some extra cash."
The stripper smiled and held up a middle finger.
"That's a no?"
Dick chuckled and turned back to Frank.
"Hey, did you catch the ESPN segment on the case?" He picked up a remote and pointed it at the screen on the wall. "I TiVo'ed it."
The segment began with the UT-Texas Tech game from two years before. Dee Dee Dunston cheering … William Tucker playing … and Frank Tucker stumbling over equipment on the sideline. Dick chuckled at Frank Tucker's expense.
"There's a memory."
He froze the image on the screen and turned to Frank.
"So the great Frank Tucker's famous trial strategy backfired this time, didn't it? Thought you'd push me to trial, gain the upper hand. I'm ready for trial, Frank—I take it you're not?"
"I'm gonna punch you before this is over, Dick."
"You'll have to get in line," Billie Jean said.
Dick grinned. He was having the best time imaginable.
"Get him to plead, Frank, I'll agree to life without parole. At least your son will still have his life."
"Life in prison isn't much of a life."
"They said all my clients would claim innocence but be guilty," Billie Jean said. "They said we're just a Sixth Amendment right to counsel formality."
Frank and Billie Jean sat outside on a bench in the plaza between the Justice Center and the jail. All the evidence said his son was guilty, but Frank knew he was innocent. He knew it. He just had to prove it. The burden was no longer on the state to prove the defendant guilty; it was on the defendant to prove himself innocent. The American criminal justice system had long been predicated on a simple belief: "It's better to let a hundred guilty people go free than to convict one innocent person." But not anymore. Now the prevailing philosophy was, "It's better to convict a hundred innocent people than to let one guilty person go free." Crime had changed America. Americans. They feared criminals, and they wanted to be safe. So they elected district attorneys and judges who put people in prison, and they criticized juries that didn't. But they didn't know that one day all that might stand between them and a prison cell is a district attorney or judge who put justice ahead of reelection or twelve citizens doing their legal duty and requiring the prosecutor to prove their guilt beyond a reasonable doubt. But they never think it will happen to them. Or to their sons or daughters.
Until it does.
"What if they're wrong? What if one of your clients is in fact innocent? What if you let an innocent person go to prison? That would haunt you forever."
"Like getting a guilty person off only to see him kill again?"
"Like that."