Norfolk again. The hotel staff was as ingratiating as ever, and by this time they remembered his name. Big-firm clout, thought Mark, spreading his papers on the bed. It brought his insignificance into sharp relief. The might of Morgan Siler. A plush suite at the Meridian, a Camry with newcar smell. Four hundred lawyers, about that many support staff. An annual income that had to reach the hundreds of millions. And Wayne Harper was getting him and a twelve-page habeas petition that hadn’t a chance in hell of working. The state’s response had made that perfectly clear; reading it, Mark had almost heard John Miller’s voice setting out the irrefutable logic of their position. Nothing established that the decision to plead guilty had been objectively unreasonable. Still, Miller was flattering himself if he thought he was fighting it out against a big firm. There could have been fifty associates breathing down his neck, pummeling him with document requests, a parade of expert witnesses, endless motions for change of venue, subtle outreaches to the governor’s office. But instead there was Mark Clayton. I can’t win this, he thought. And no one expected me to. No one even cares.
Walker Eliot paced behind the closed door of his office. “We invented the concept of retroactivity to deal with the problem of what happens when the law changes,” he said, gesturing expansively. “But that concept is itself the source of our difficulties. Eliminating the concept will allow us to achieve intellectual coherence.” A moment’s break allowed for applause. “I will now take questions.” He pointed at an imaginary audience
member. “Am I saying that forty years of Supreme Court decisions are conceptually confused? Yes, I am. Do I expect that my solution will be adopted? Well, not in the near future. Would I like to accept a teaching job as a reward for brilliant and useless scholarship? Why, yes, I would. I believe that concludes the presentation.” He permitted himself a short bow.
What does this do for Wayne Harper?
Walker sat, frowning. It wasn’t really a fair question. He wasn’t, after all, a defense lawyer. Guilty or innocent, that came down to the facts, flotsam and jetsam in the eternal river of the law. And Walker was not a fact guy. Let the river flow, pure and unending, carrying us all to our appointed destinations. He would chart its forks and bends; he would guide it, smooth its path, cabin it within the banks of his mind. What floated and what sank, what bobbed past on its way to the sea—why was that his proper concern? Walker selected his words carefully. “I’m afraid I don’t see how that’s a legal question,” he said.
“Am I interrupting?” Katja asked. “I thought you should see this.”
“No, it’s fine,” Harold said. “What is it?”
“Are you sure? You seem preoccupied.”
“Just thinking some things over,” said Harold, embarrassed. “Wasting time, actually. It’s good you came by. What do you have?”
Katja approached his desk and laid down a sheaf of papers. “These are from the Hubble discovery file, what we brought back from Texas.”
“Okay. What are they?”
“Financing statements. They show that a couple of weeks before the accident Parkwell made a capital contribution to Hubble. About five million dollars.”
“Okay,” said Harold, nodding. “Well, that’s good news for the plaintiffs. Turn them over.”
Katja blinked. “Really?”
“Sure.” He looked at her. “You’re surprised.”
“Well …” said Katja. “Well, I just thought, after what you said in Texas … I mean, we could make an argument that they’re not relevant. They don’t relate to a claim or defense.”
“You thought I was going to tell you to send them to Canada.” Katja was silent. Oh, God, thought Harold, she’s blushing. Don’t do this to me.
He cleared his throat. “You know why they’re relevant. If the plaintiffs’ lawyers think there’s no money in Hubble, they’ll just drop the case. No one sees a dime, and Hubble gets away with it.”
“Isn’t that what you want?”
“What we want,” Harold said. “No. Look, I think I’ve given you the wrong impression. You have to understand what the world is like for corporations. They’re the deep pockets out there, so when something goes wrong, everyone comes after them. Even when what goes wrong isn’t their fault, even when it has nothing to do with them. Juries don’t like corporations. And the plaintiffs’ lawyers have gotten pretty good at making them out to be the bad guys. It’s not that hard. So you get a lot of frivolous suits, people looking for quick settlements because no corporate general counsel wants to risk going in front of a jury. If he pays off a couple of meritless claims, no one cares; if he loses a big case he’s out of a job.
“That’s where we come in. A corporation retains Morgan Siler and the plaintiffs’ lawyers know that we’ll fight. No easy bucks for them. And the general counsel can sleep easy because even if something goes wrong, he’s done his job. He got the best defense possible. So we protect them from intimidation, from extortion. We’re like bodyguards.”
“We’re mercenaries.”
“You’re making it sound worse than it is. You remember the plaintiffs’ lawyers in Texas. You heard what they said. They’re like the Vikings, pulling up in their limos and demanding tribute. Pay up or we’ll burn your town. It’s the Danegeld all over again.”
“The Danegeld,” said Katja.
“Tribute,” Harold explained. “Protection money. And you know what they say. Once you pay the Danegeld, you never get rid of the Dane.”
“As a matter of fact,” said Katja, “I’d never heard that particular saying before.”
“You’re teasing me.”
“Maybe.”
Harold smiled. “All I’m saying is that when you have money concentrated in one place, like a corporation, people want to take it. We stop that from happening.”
“For a modest fee.”
“Yes. But they only pay us if there’s litigation. And if there’s litigation, it means the plaintiffs’ lawyers think they have a good case. Maybe our
client did do something wrong. What we’re there for is stopping the frivolous suits from being filed. Once you get to the real lawsuits, it doesn’t matter so much if we win or lose, as long as we fight the good fight. And we do that within the rules. Like I told you before, not all your clients are meant to win. It doesn’t mean they’re bad guys. It’s easy to think about litigation as good versus evil, especially when you’re on the side of good. But it’s not really like that. Life calls you to make plenty of hard choices. Good versus evil, that’s an easy one. You should be so lucky to encounter evil. Evil lets you be good. To be good in the absence of evil, that’s the challenge. To make yourself by affirming, not rejecting. There’s evil in the world, certainly, but it’s unnecessary. A lagniappe. You get plenty of bad things happening without any evil at all. Law straightens them out. And we help it along.”
Katja nodded.
“Okay?” Harold asked.
“Okay.”
“Good,” said Harold. “Let’s get the discoverable materials together and see if we can get them out by the end of the week. No sense in dragging it out, right?”
“I suppose not,” said Katja, regarding him quizzically. After a moment she turned and left.
I should have told her, Harold thought. She thinks I changed my mind, that I’m speeding it up. And she approves, because it’s what she wants to do, to get everything out in the open instead of holding her shield before anyone the firm picks. He understood the desire; he felt it himself. But he wasn’t sure what he would have done had the Parkwell lawyers not unaccountably instructed him to make a full disclosure, to accelerate discovery. Well, he’d said that life was more complicated than it seemed. And there were lots of things to tell her. Maybe that one could wait. Where was I? he thought. I know this isn’t really appropriate. I try to tell myself that it would be the same with someone else. There are other people in the world. I could fall in love with one of them. But right now …
What would fifty associates be doing? Mark asked himself. Researching the issues exhaustively. Writing a better petition. Conducting lots of interviews. These were beyond him. But they would also certainly be checking out the intersection of State and Oak. There were two hours
before the hearing. Zealous representation, he thought. Might as well give it a shot.
State Street was familiar. Mark knew he’d driven it before. Oak took a little finding, but once he’d figured out which direction to head, it had no chance of eluding him for long. And there on the corner was a pay phone, thankfully unaccompanied by any hopeful face under a red cap. A partner couldn’t have done it better. I know this place, Mark thought. That bookstore, that diner, that building with the little white sign out front.
LAW OFFICES OF F. ANSON HENRY.
What the hell?
Mark hit the steering wheel, sounding the horn; startled pigeons took flight. Something’s really wrong here.
“What do you want?” asked Earl Harper.
“I’ve got to talk to you,” said Mark. “It’s about your son.” Earl looked at him suspiciously. Mark pushed the door wider, forgetting even to marvel at his boldness. “Let me come in for a minute. It won’t take long.”
The living room had reverted to what seemed its usual disorder. Earl fell back on the couch and indicated a chair; Mark removed a beer can and sat. “You figure something out?”
“I don’t know,” said Mark. “But listen to this. I talked to the police. I got the number that called in the anonymous tip. I ran it down and it’s a pay phone outside Anson Henry’s office. Something very strange is going on with this case.”
“Huh,” said Earl. He rubbed a hand across his chin. “Pay phone outside Anson’s office. Well, that’s something I didn’t know. Figured them cops started looking this way on their own.” He shook his head and laughed. “Always used to say Wayne was good for nothing. Guess she changed her mind. Pay phone outside the lawyer’s office. Don’t that beat all.”
“Do you know what’s going on? If there’s anything you can tell me, it’s got to be now. I’m going into court in an hour and a half, and if I lose it’s all over.”
“Beth’s not one to leave much to chance, is she? Two birds with one stone, she must have been thinking. That’s a smart girl I married. Above my station, her folks said.”
“What do you mean? Do you know who called in that tip?”
Earl’s head drooped. “Hell,” he said. “You understand, we none of us thought he’d get the death penalty. Anson was talking up this institution they got, made it seem like a real nice place. Better than anything we could give him.”
“Did Beth make the call?” Mark asked. “I don’t know what you were thinking, but right now Wayne’s going to die. I think there’s real doubt about his guilt, but the way things stand, there’s not much I can do.”
“Real doubt,” said Earl. “That’s a good one.”
“Do you think he did it?”
“You say you went to law school?” Earl asked scornfully. “Of course he didn’t do it. He was here at home. He don’t go out much. Not really one for the nightlife. You talked to him; I’d have thought you figured that out.”
“So you can give him an alibi? I need you to sign an affidavit. I can write it out right now.” Mark fumbled in his pockets, looked around the room. “Just give me a piece of paper. Anything.”
Earl shook his head. “’Fraid I can’t do that.”
“But why not? Surely Beth realizes Wayne’s not going to end up in an institution now. I can’t get you that. If we don’t withdraw the plea, he’s going to die. Why wouldn’t she want you to save his life?”
“Why wouldn’t she? You still don’t get it, do you?”
“What don’t I get?”
“I can’t help you,” Earl said. “Beth’ll be back soon. You’d best be going.”
“I’m not going anywhere until you tell me what’s going on.”
Earl’s expression darkened. “You ain’t in your office now, son. When a man tells you get out his house, you get.” Mark stared at him. “Get!” said Earl loudly. Mark flinched. He looked at Earl a moment longer, then rose from the chair.
“I have a duty to your son,” he said. “To do everything I can to save his life. I’m going to go into court and tell the judge exactly what you just said. I don’t think it’s enough, but I’ll do it. Because I’m his lawyer. And you—you’re his father, and you won’t sign a piece of paper.”
Earl nodded approvingly. “You got some spine. You’re a good man, and I mean that. There’s the door.”
Earl barely had time to open a beer and resume his place on the couch before his wife returned. “That lawyer boy came by,” he said.
“What did he say?”
“He had some doubts that Wayne was the right guy. Said there was something strange about this case.”
Beth’s eyes narrowed in suspicion. “What did you tell him, Earl?”
Earl took a drink. “Turns out whoever told the police Wayne did it was calling from outside Anson Henry’s office. What do you make of that?”
“That’s over and done,” Beth said. “Now what did you tell him?”
“I told him Wayne didn’t go out too much.”
“What are you thinking, Earl? We talked about this.” Beth’s voice was rising, and Earl shrank inside himself.
“Don’t worry,” he said. “I didn’t sign anything. He wanted me to.” Beth looked at him coldly. “It’s not right,” Earl protested. “You know it ain’t.”
“You think Wayne’s going to take care of us when we get old?” Beth asked. “You think he’ll provide?”
“You think anyone else will?”
“You shut your mouth,” Beth told him. “You do one damn thing for this family and maybe then you can talk to me about what’s right. He’s your goddamn son. If you’d been more of a father maybe he wouldn’t have done it.”
“My son,” said Earl. “Got my name, anyhow. Sometimes I think he looks like a lawyer I know.”
Beth’s smile showed malice. “I would have thought the DNA test set your mind at ease.”
“Yeah,” said Earl speculatively. “You were always wondering why they couldn’t be more alike. Like enough, it turns out. ‘Cept Wayne’s no killer.”
“It’s done,” said Beth. She forced a warmer tone. “That Mr. Clayton seemed like a bright young man. I’m sure he’s got some good ideas.”
Forty-five minutes to the hearing. Stretched on the hotel bed, Mark scribbled desperately. Mr. Harper stated that Wayne Harper was at home at the time the murders occurred. Got to dress this up somehow. Mr. Harper testified. No, he wasn’t sworn. Mr. Harper stated on the basis of personal
knowledge that Wayne Harper was at home at the time the murders were committed. That’s better. He further stated on the basis of personal knowledge that Wayne Harper did not commit the murders and is factually innocent of the charges against him. What else is there to say? Mr. Harper refused without explanation to sign an affidavit. Should that go in? Lyttle seems like a decent man. It’ll have to do.
But of course it wouldn’t. There must be something else, Mark thought. Something more to say. Earl all but told him that Beth had made the anonymous call. Why didn’t I at least ask the cops if it was a woman or a man? Maybe they taped it. But did the prosecution rely on the call? He consulted the papers on the bed, looking for the Virginia Supreme Court’s opinion. He rummaged inside his bag, then threw it across the room in frustration. Why can’t I just be halfway competent for once in my life?
Mark looked around the room. High-speed Internet access, he thought, and picked up the phone.
“Room service.”
“I need a computer.”
“I’ll transfer you to the business center.” The voice was amused; Mark was not.
“Business center.”
“I need a computer. Right now.”
“We have a number of computers available for our guests.”
“Can you send one up to my room?”
“Are you one of our corporate guests?”
“I’m with Morgan Siler,” said Mark emphatically. “I need a laptop and Internet access in the next five minutes. It’s extremely urgent.”
“Of course, we’d be happy to accommodate you.”
“Here you go,” said the bellhop two minutes later. “Just plug it in.”
“Thanks,” said Mark. He extracted a bill from his wallet without looking and pressed it into the man’s hand.
“Are you working on a big case?”
“No,” Mark said absently. “Small case. Death penalty.”
“Just asking,” the bellhop protested. “Don’t have to be rude about it,” he continued, but Mark didn’t hear.
The Westlaw.com site didn’t run quite as fast as it did from the Morgan Siler computers, but Mark’s watch promised him half an hour. More than enough time to pull up the case, if he knew the citation, which of course he didn’t. It’s okay, he told himself. Search the database of Virginia cases. Title=Harper, he typed. Seventy-five hits, far too many. What narrows it? Something about the facts, something distinctive. They found something at the crime scene. Title=Harper and “handkerchief.” Three hits, all Harper v. Commonwealth. That’s it, Mark thought. One of these is the direct review. One is the review of his state post-conviction proceedings. And the third …
Mark looked more closely. Harper v. Commonwealth. It was dated 1993. He clicked the file open. Earl Harper, Jr., v. Commonwealth of Virginia. Appellant was convicted of forcible sodomy and second degree sexual assault, he read. He skipped to the search term. The intruder left a handkerchief at the scene. Tests on the handkerchief revealed the presence of … What is this? Earl Harper? But why would he tell me those things? No, Earl Junior.
Mark fell back in his chair. What did Earl say that first time? My son did it. That’s it. My God, that’s it. They weren’t just trying to get Wayne into an institution. He’s got a brother.