42

When Assistant Attorney General Andrew Thornton stood behind the podium, the courtroom seemed to expand. He was slender, with a head that appeared too big for his body. He peered over reading glasses as he spoke. Unlike Professor James, he carried a thick black notebook to the podium and even read his introductory remarks from it, setting forth the procedural background for the case. He started slowly; the justices appeared bored, and I wanted to stand up and deliver the argument myself.

“We’ve read your brief,” the chief interrupted. “We know how the case got here. Let’s get to the point.”

I cringed. Why did my mother’s case have to end up in the hands of this guy?

Undeterred, Thornton reached down and held up a three-page document. “I have here a second affidavit from Mr. Cooper,” he said.

I glanced at Mace James, who had been calmly taking notes. His head jerked up.

“In this affidavit, he recants his prior recantation. I would have filed this with our briefs, but we just found Mr. Cooper yesterday. I would instead like to file this with the court and provide Mr. James with a copy.”

James stood, his neck red. “At the very least, Mr. Thornton could have provided me a copy before the hearing started. This is the kind of prosecutorial misconduct that landed us here in the first place—”

The chief justice banged her gavel. “Mr. James, this is not a trial. Have a seat.” She scowled and turned back to Thornton. “And, Mr. Thornton, defense counsel is right. You could have provided him a copy before court started.”

Thornton mumbled an apology, his theatrics backfiring. “May I proceed?” he asked.

He was answered not by the chief but by the man seated to her right—sixty-seven-year-old Christopher Wright, the court’s most liberal member. “This affidavit is not timely filed,” Wright said, “and frankly, it can only hurt your case. This is not a trial court. If you believe this court needs to decide the veracity of Mr. Cooper’s testimony in order to determine the outcome of the case, why shouldn’t we send it back for a new trial?”

Thornton didn’t flinch. “If I could submit the affidavit and have Your Honor read it, you will see that it’s more than just a question of Mr. Cooper’s credibility. He swears in the affidavit that he was bullied into recanting his testimony by Professor James. That Professor James forcibly kidnapped him from a bar in Nashville, Tennessee, and threatened to falsely turn him in for drug possession if he didn’t recant.”

Mace James was on his feet, arms spread wide.

“Sit down, Mr. James,” the chief justice said.

Thornton took it as a cue to continue. “In light of this information, which the state could not have discovered by due diligence before this hearing, I’m asking for leave to file a supplemental brief.”

“Let Mr. James see a copy of the affidavit, and provide the clerk with copies for the court,” the chief justice said.

Thornton did as he was told, and the clerk passed out copies to each of the justices. I could see the tops of all seven heads as they quickly read through the affidavit. Mace James showed his disgust while he flipped from page one to page two. I wished someone would have given me a copy.

“Continue,” the chief justice said after she had finished reading.

“Your Honors have seen the video of Mr. Cooper that was filed with the defendant’s original petition,” Thornton continued. He no longer seemed so small and frail. “That video shows that Mr. Cooper had recently been in a fight. Now we know the rest of the story. The swollen left eye came from Mr. James. The video was recorded in a hotel room where Mr. Cooper was being held captive by Mr. James and his investigator. The recantation was coerced. At the end of the affidavit we just provided, Mr. Cooper reaffirms his original testimony.”

Reporters in the courtroom were tapping on their laptops, fingers flying. Now this was a story! Because Supreme Court arguments were generally dull affairs, only a few diehards had even shown up for today. Just two Atlanta stations had sent camera crews, as permitted by the court rules, to film from the alcove of the courtroom. But their glee was nearly palpable. And I could envision the headline in the Atlanta Times: Law School Professor Accused of Beating Up Witness!

The motto of the Georgia Supreme Court was coming to life. Justice was prevailing.

When Thornton finished his argument, the chief justice granted Mace James five minutes for rebuttal. James took his place behind the podium, grabbed the sides, and stared at Thornton for a moment before addressing the court.

“That affidavit is patently false,” he said, his words seething with anger. “I’d like to know what the state promised Mr. Cooper to get it.”

“Counsel,” the chief justice said sharply, “leave the personal attacks out of it.”

“But, Your Honor, that’s what this entire affidavit is. The state’s using a three-time convicted felon to personally attack me. He lied in his trial testimony and now he’s lying again.”

“Did you pull him out of a Nashville bar and threaten him?” Justice Sherman asked. The former prosecutor had probably seen his share of defense-lawyer shenanigans.

“Before the bar incident, one of my investigators recorded an admission by Mr. Cooper that he had lied at trial. Because the quality of that recording was not good, we did pull him out of a Nashville bar on the night before my client’s scheduled execution to get him sober enough to do another recording and sign an affidavit.”

“Did you threaten to turn him in on drug charges if he didn’t cooperate?” Sherman asked, the exasperation evident in his voice.

James hesitated, and I knew the justices had him.

“He had drugs in his possession, Your Honor. I told him that if he didn’t come clean, I would turn him in. But he had already admitted that his trial testimony was false before this.”

“Did you tell the authorities that Mr. Cooper was in possession of drugs?”

There was more hesitation, crimson crawling up Mace James’s neck, swallowing his tattoo and coloring his bald head. “No. I didn’t believe I had an obligation to do so.”

“But you would have if he had not signed your affidavit?”

“I don’t know.”

Sherman leaned forward. “Did you tell him that you would turn him in for possession of drugs if he didn’t give you an affidavit recanting his prior testimony—yes or no?”

“Yes. But that doesn’t mean the affidavit is untrue.”

“We’ll be the judges of that.”