John Katzenbach - Just Cause

'I understand,' the judge replied, holding up a hand to cut off any further talk by the defense lawyer. 'Mr. Boylan?'

'Your honor, the state contends this is a matter for the appellate courts. As far as new evidence is concerned, sir, statements in a newspaper do not constitute bona fide evidence that a court of law should consider.'

'Why not?' asked the judge abruptly, scowling at the prosecutor. 'What makes those statements any less relevant, if the defense can prove they took place? I don't know how they are going to do that, of course, but why shouldn't they have the opportunity?'

'We contend they are hearsay, your honor, and should be excluded.'

The judge shook his head. 'There are all sorts of exceptions to the hearsay rules, Mr. Boylan. You know that. You were in this court a week ago arguing the opposite.' The judge looked out at the audience. I'll hear the matter, he said abruptly. 'Call your first witness.'

That's it,' Cowart whispered to the photographer.

'What?'

'If he hears it, he's made up his mind.'

The photographer shrugged his shoulders. The court bailiff rose and intoned, 'Detective Bruce Wilcox.'

As Wilcox was being sworn in, the assistant state attorney rose and said, 'Your honor, I see several witnesses present in the courtroom. I believe the witness rule should be invoked.'

The judge nodded and said, 'All witnesses to wait outside.'

Cowart saw Tanny Brown rise and exit the courtroom. His eyes followed the slow path the detective made as he paced down the courtroom. He was followed by a smaller man Cowart recognized as an assistant medical examiner. He spotted, to his surprise, an official from the state prison as well, a man he'd seen on visits to Death Row. When he turned back, he saw the prosecutor pointing at him.

'Isn't Mr. Cowart a witness?'

'Not at this time,' Roy Black replied with a slight smile.

The prosecutor started to say something, then stopped.

The judge leaned forward, his tone brisk and slightly disbelieving. 'You don't intend to call Mr. Cowart to the stand?'

'Not at this time, your honor. Nor do we intend to call Mr. and Mrs. Shriver.'

He gestured toward the front row where the murdered girl's parents sat stoically, trying to look straight ahead, trying to ignore the television cameras that swept in their direction, along with the eyes of each spectator.

The judge shrugged. 'Proceed,' he said.

The defense lawyer walked to a speaking podium and paused before addressing Detective Wilcox, who had settled into the witness chair, pitching forward slightly, hands on the railing, like a man waiting for the start of a stakes race.

For the first few moments, the lawyer merely set the scene. He made the detective describe the circumstances surrounding the arrest of Ferguson. He made the detective concede that Ferguson had gone along without a whimper. He made the detective acknowledge that the only link, initially, to Ferguson was the similarity of the automobile. Then, he finally asked, 'So, he was arrested because of the car?'

'No, sir. He wasn't actually placed under arrest until he confessed to the crime.'

'But that was some time after he was taken into custody? More than twenty-four hours, right?'

'Right.'

'And do you think he thought he could leave at any time during that interrogation?'

'He never asked to leave.'

'Do you think he thought he could?'

I don't know what he was thinking.'

'Let's talk about that interrogation. Do you remember testifying in this courtroom in a hearing such as this three years ago?'

'I do.'

'Do you remember being asked by Mr. Burns: Question: "Did you strike Mr. Ferguson at the time of the confession?" and your reply, "I did not." Now, is that a truthful statement, sir?'

'It is.'

'Are you familiar with a series of articles which appeared in the Miami Journal some weeks back pertaining to this case?'

'I am.'

'Let me read you a paragraph. Quote: "Detectives denied that. Ferguson was beaten in order to obtain a confession. But they did concede that he was 'slapped' by Detective Wilcox at the beginning of the questioning." Are you familiar with that statement, sir, in the newspaper?'

'I am.'

'And is it truthful?'

'It is.'

Roy Black paced about the podium in sudden exasperation. 'Well, which is true?'

Detective Wilcox leaned back, allowing the smallest of grins to penetrate his lips. 'Both statements are true, sir. It is true that at the outset of the interview, I slapped Mr. Ferguson twice. With an open hand. Not hard. It was after he called me a name, and I couldn't control my temper for that one moment, sir. But hours passed before he confessed, sir. Almost an entire day. During that time we made jokes and spoke in friendly fashion. He was given food and rest. He never requested an attorney, nor did he ask to go home. It was my impression, sir, that when he confessed it made him feel much better about what he'd done.'

Detective Wilcox shot a glance at Ferguson, who was scowling, shaking his head, and scribbling on his legal pad. His eyes caught Cowart's for an instant, and he smiled.

Roy Black let fury ride the edges of his questions. 'Now, after you slapped him, Detective, what do you think he thought? Do you think he thought he wasn't under arrest? That he was free to go? Or do you think he thought you were going to beat on him some more?'

'I don't know.'

'Well, how did he act after you slapped him?'

'He grew more respectful. It didn't seem like Ferguson thought it was any big deal.'

'And?'

'And I apologized at the request of my superior officer.'

'Well, I'm sure that looking back from Death Row, that apology made all the difference in the world,' the lawyer said sarcastically.

'Objection!' Boylan stood slowly.

'I'll withdraw the remark,' Black replied.

'Right,' said the judge. 'Precisely.' He glared at the defense attorney.

'No more questions.'

'The state?'

'Yes, your honor. Just one or two. Detective Wilcox, have you had occasion to take other statements from people confessing to crimes?'

'Yes. Many times.'

'How many have been suppressed?'

'None.'

'Objection! Irrelevant!'

'Objection sustained and stricken. Continue, please.'

'Now, just so I can be certain, you say Mr. Ferguson finally confessed some twenty-four hours after being asked to give a statement?'

'Correct.'

'And the alleged slapping, that took place in…'

'Maybe the first five minutes.'

'And were there any other physical threats directed toward Mr. Ferguson?'

'None.'

'Verbal threats?'

'None.'

'Any type of threats?'

'No.'

'Thank you.' The prosecutor sat down. Wilcox rose and walked across the courtroom, adopting a fierce look until he maneuvered past the camera, when he broke into a grin.

Tanny Brown was next to the stand. He sat in the seat quietly, relaxed, with the calm exterior of someone who'd been in the position he occupied many times. Cowart listened carefully as the lieutenant explained the difficulty surrounding the case, and told the judge that the car was the first, and really the only, piece of evidence they had to go on. He described Ferguson as nervous, anxious, evasive when they arrived at his grandmother's shack. He said that Ferguson's movements had been abrupt, furtive, and that he had refused to explain why he was so busy washing out his car, or to explain satisfactorily where the missing section of car rug was. He said that this physical nervousness led him to suspect that Ferguson was concealing information. He then conceded that Ferguson was slapped twice. Nothing more.

His words echoed his partner's. 'Detective Wilcox struck the subject twice, with an open hand. Not hard. He was more respectful afterwards. But I personally apologized to the suspect, and I insisted that Detective Wilcox do the same.'