John Katzenbach: Just Cause

The events that had landed Robert Earl Ferguson on Death Row began to take on form and shape as Cowart read through the news stories. The library's offering had been minimal, but enough to create a portrait in his imagination. He learned that the victim in the case was an eleven-year-old girl, and that her body had been discovered concealed in scrub brush at the edge of a swamp.

It was easy for him to envision the murky green and brown foliage concealing the body. It would have had a sucking, oozing quality of sickness, an appropriate place to find death.

He read on. The victim was the child of a local city-council member, and she had last been seen walking home from school. Cowart saw a wide, single-story cinder-block building standing alone in a rural, dusty field. It would be painted a faded pink or institutional green, colors that could barely be brightened by children's excited voices greeting the end of the school day. That was when one of the teachers in the elementary grades had seen her getting into a green Ford with out-of-state plates. Why? What would make her get into a stranger's car? The thought made him shiver and feel an instant flush of fear for his own daughter. She wouldn't do that, he told himself abruptly. When the little girl failed to arrive home, an alarm had gone out. Cowart knew that the local television stations would have shown a picture on the evening news that night. It would have been of a ponytailed youngster, smiling, showing braces on her teeth. A family photo, taken in hope and promise, used obscenely to fill the airwaves with despair.

More than twenty-four hours later, deputies searching the area had uncovered her remains. The news story had been filled with euphemisms: 'brutal assault,' 'savage attack,' 'torn and ripped body,' which Cowart recognized as the shorthand of journalism; unwilling to describe in great detail the actual horror that the child had faced, the writer had resorted to a comfortable series of cliches.

It must have been a terrible death, he thought. People wanted to know what happened but not really, because if they did they would not sleep either.

He read on. As best he could tell, Ferguson had been the first and only suspect. Police had picked him up shortly after the victim's body had been discovered, because of the similarity with his car. He'd been questioned – there was nothing in any of the stories about being held incommunicado or beaten – and confessed. The confession, followed by a blood-type matchup and the vehicle identifiction, appeared to have been the only evidence against him, but Cowart was circumspect. Trials took on a certain momentum of their own, like great theater. A detail which seemed small or questionable when mentioned in a news story could become immense in a juror's eyes.

Ferguson had been correct about the judge's sentencing. The quote '… an animal that ought to be taken outside and shot' appeared prominently in the story. The judge had probably been up for reelection that year, he thought.

The other library entries had provided some additional information: primarily that Ferguson's initial appeal, based upon the insufficiency of evidence against him, had been rejected by the first district court of appeal. That was to be expected. It was still pending before the Florida Supreme Court. It was clear to Cowart that Ferguson had not yet really begun to gnaw away at the courts. He had numerous avenues of appeal and had yet to travel them.

Cowart sat back at his desk and tried to picture what had happened.

He saw a rural county in the backwoods of Florida. He knew this was a part of the state that had absolutely nothing in common with the popular images of Florida, nor the well-scrubbed, smiling faces of the middle class that flocked to Orlando and Disney World, nor the beered-up frat boys who headed to the beaches during their spring breaks, nor the tourists who drove their mobile homes to Cape Canaveral for space shots. Certainly, this Florida had nothing to do with the cosmopolitan, loose-fitting image of Miami, which styled itself as some sort of American Casablanca.

But in Pachoula, he thought, even in the eighties, when a little white girl is raped and murdered and the man that did it is black, a more primal America takes over. An America that people would prefer not to remember.

Is that what happened to Ferguson? It was certainly possible.

Cowart picked up the telephone to call the attorney handling Ferguson's appeal.

It took most of the remainder of the morning to get through to the lawyer. When Cowart finally did connect with the man, he was immediately struck by the lawyer's licorice-sweet southern accent.

'Mr. Cowart, this is Roy Black. What's got a Miami newspaper man interested in things up here in Escambia County?' He pronounced the word 'here' he-yah.

'Thanks for calling back, Mr. Black. I'm curious about one of your clients. A Robert Earl Ferguson.'

The lawyer laughed briefly. 'Well, I sorta figured it would be Mr. Ferguson's case that you were calling about when my gal here handed me your phone message. Whatcha wanna know?'

'First tell me about his case.'

'Well, State Supreme Court has the package right now. We contend that the evidence against Mr. Ferguson was hardly sufficient to convict him. And we're saying right out that the trial judge shoulda suppressed that confession of his'n. You oughta read it. Probably the most convenient document of its sort I ever saw. Just like the police wrote it up in the sheriff's department up here. And, without that confession, they got no case at all. If Robert Earl doesn't say what they want him to say, they don't even get two minutes in court. Not even in the worst redneck, racist court in the world.'

'What about the blood evidence?'

'Crime lab in Escambia County is pretty primitive, not like what y'all are used to down there in Miami. They only typed it down to its major group. Type O positive. That's what the semen they found in the deceased was, that's what Robert Earl is. Of course, the same is true of maybe a couple thousand men in that county. But his trial attorney failed to cross-examine the medical folks on that score.'

'And the car?'

'Green Ford with out-of-state plates. Nobody identified Robert Earl, and nobody said for sure that it was his car that little gal got into. This wasn't what you call circumstantial evidence, hell, it was coincidental. Shoulda been laughed out of the trial.'

'You weren't his trial attorney, were you?'

'No, sir. That honour went to another.'

'Have you attacked the competency of the representation?'

'Not yet. But we will. A third-year fella at the University of Florida law school coulda done better. A high school senior coulda done better. Makes me angry. I can hardly wait until I write that brief up. But I don't want to shoot off all the cannons right at the start.'

'What do you mean?'

'Mr. Cowart,' the attorney said slowly, 'do y'all understand the nature of appellate work in death cases? The idea is to keep taking little old bites at the apple. That way you can drag that sucker out for years and years. Make people forget. Give time a bit of a chance to do some good. You don't take your best shot first, because that'll put your boy right in the old hot seat, if you catch my drift.'

I understand that,' Cowart said. 'But suppose you've got an innocent man sitting up there?'

'That what Robert Earl told you?'

'Yes.'

'Told me that, too.'

'Well, Mr. Black, do you believe him?'

'Hmmm, maybe. Maybe more'n most of the times I hear that from someone enjoying the hospitality of the state of Florida. But you understand, Mr. Cowart, I don't really indulge in the luxury of allowing myself to subscribe to the guilt or innocence of my clients. I have to concern myself with the simple fact that they been convicted in a court of law and I got to undo that in a court of law. If I can undo a wrong, well, then when I die and go to heaven I trust they will welcome me with angels playing trumpets. Of course, I also maybe sometimes undo some rights and replace them with wrongs, so there's the very real possibility that I may be met at that other place with folks carrying pitchforks and wearing little pointy tails. That's the nature of the law, sir. But you work for a newspaper. Newspapers are a helluva lot more concerned with the public's impression of right and wrong, truth and justice, than I am. Newspaper also has a helluva lot more influence with the trial judge who could order up a new trial, or the governor and the state Board of Pardons, if you catch my drift, sir. Perhaps you could do a little something for Robert Earl?'