The Guardians, page 17
He stops talking and there is a long pause. When I realize he’s finished with his story, I ease in with “Nothing else?”
“That’s all I have, Post, I swear. Over the years I’ve speculated that Kenny had probably wired the phones around the office. He suspected Pfitzner and his gang were in on the drug loot and wanted the proof. DEA was poking around and there was talk about the Feds coming in. Could we all get busted? Would Pfitzner sing and blame us? I don’t know, just my best guess, but I think Kenny was listening and he heard something.”
“That’s a pretty wild theory.”
“Yes it is.”
“And you have no idea what he may have heard?”
“Nothing, Post. No clue.”
He starts the cart and we continue our tour of the course. Every turn reveals another scenic vista of mountains and valleys. We cross rushing streams on narrow wooden bridges. At the thirteenth tee box he introduces me to his lawyer who asks how things are going. We say all is well and he hurries off with his buddies, much more concerned with his game than any of his client’s business. At the clubhouse, I thank Gilmer for his time and hospitality. We promise to talk in the near future but both know that will not happen.
It’s been a long, interesting trip but not that productive. However, in this business that’s not at all unusual. If Kenny Taft knew something, he took it to his grave.
27
Under Florida law, petitions for post-conviction relief must be filed in the county where the defendant is incarcerated instead of where he was convicted. Since Quincy is staying these days at the Garvin Correctional Institute, which is half an hour away from the small town of Peckham, which is at least an hour from civilization, his case comes under the jurisdiction of a rural circuit court ruled by a judge with a dim view of post-conviction relief. I really can’t blame him. His docket is packed with all manner of junk claims filed by jailhouse lawyers toiling away inside the prison just down the road.
The Poinsett County courthouse is a tacky, modern creation designed by someone who didn’t get paid much. The main courtroom is dark, windowless, and with low ceilings that create a sense of claustrophobia. The worn carpet is a dark maroon. The wood panels and furniture are stained a dark brown. I’ve been in at least a hundred courtrooms in a dozen states, and this is by far the most depressing and dungeon-like.
The State is represented by the Attorney General, a man I’ll never meet because he has about a thousand underlings between him and me. Poor Carmen Hidalgo drew the short straw and got stuck with Quincy’s petition. Five years ago she was in law school at Stetson, ranked in the middle of her class. Our file on her is thin because we don’t need to know much. Her response to our petition was nothing more than a stock answer with some boilerplate and all the names changed.
She fully expects to win, especially given the attitude of the guy on the bench. The Honorable Jerry Plank has been mailing it in for years and dreaming of retirement. He generously set aside one full day for our hearing, but it’s not eight hours of work. Because no one cares about a case that is now twenty-three years old, the courtroom is empty. Even the two clerks look bored.
However, we are watching and waiting. Frankie Tatum sits alone six rows back, behind us, and Vicki Gourley sits alone five rows back, behind the State. Both are wearing tiny video cameras that can be activated with their phones. There is no security at the door. Again, no one in this town or county has ever heard of Quincy Miller. If our efforts are being monitored by the bad guys, whoever “they” may be, this could be their first chance to see us in action. Courtrooms are public areas. Anyone can come and go at will.
My co-counsel is Susan Ashley Gross, the warrior from the Central Florida Innocence Project. Seven years ago, Susan Ashley was with me when we walked Larry Dale Kline out of prison in Miami. He was Guardian’s second exoneree, her first. I would ask Susan Ashley to marry me today but she’s fifteen years younger and happily engaged at the moment.
Last week I filed a motion asking that the defendant be allowed to sit through the hearing. Quincy’s presence is not necessary but I thought he might enjoy a day in the sun. Not surprisingly, Judge Plank said no. He has ruled against us on every pre-hearing matter, and we fully expect him to deny any post-conviction relief. Mazy is already working on our appeal.
It’s almost ten when Judge Plank finally emerges from a hidden door behind the bench and assumes his perch. A bailiff recites his standard admonitions as we stand awkwardly. I glance around and count heads. In addition to Vicki and Frankie, there are four other spectators, and I ask myself how they could possibly care about this hearing. No one in Quincy’s family knows about it. Except for one brother, no family member has contacted Quincy in years. Keith Russo has been dead for twenty-three years, and as far as his family is concerned the killer was locked away a long time ago.
One white male is about fifty and wears an expensive suit. One white male is about forty and wears a black denim shirt. One white male is about seventy and has the look of the bored courthouse regular who’ll sit through anything. The fourth is a white female on the front row behind us and is holding a notepad, as if reporting. We filed our petition weeks ago and have not received a single inquiry from the press. I can’t imagine who would be covering a hearing in a forgotten case in East Nowhere, Florida.
Susan Ashley Gross calls to the stand Dr. Kyle Benderschmidt from VCU. His opinions and findings are memorialized in a thick affidavit we filed with our petition, but we decided to spend the money and produce him live. His credentials are impeccable, and as Susan Ashley is walking him through his résumé, Judge Plank looks at Carmen Hidalgo and says, “Do you have any serious objections to this man’s credentials?”
She stands and says simply, “No.”
“Good. Then he is accepted as an expert in the field of bloodstain analysis. Proceed.”
Using four of the 8x10 color enlargements that were used at trial, Susan Ashley leads our witness through an examination of the flashlight and the tiny specks of red matter on its lens.
Judge Plank interrupts with “And what happened to this flashlight? It was not presented at trial, right?”
The witness shrugs because he can’t testify about it. Susan Ashley says, “Your Honor, according to the trial transcript, the sheriff testified that it was destroyed in a fire about a month after the murder, along with other evidence the police kept in storage.”
“There’s no trace of it?”
“Not to our knowledge, Your Honor. The State’s expert, Mr. Norwood, examined these very photographs and gave the opinion that the lens of the flashlight was spattered with the blood from the victim. By then, the flashlight was long gone.”
“So, if I understand your position, the flashlight was the only real link between Mr. Miller and the crime scene, and when the flashlight was found in the trunk of his car he became the prime suspect. And when the jury was presented with this evidence, it deemed it sufficient for a guilty verdict.”
“That’s correct, Your Honor.”
“Proceed.”
Benderschmidt continues with his criticism of Norwood’s misguided testimony. It was not based on science, because Norwood did not understand the science behind blood spatter. Benderschmidt uses the word “irresponsible” several times to describe what Norwood told the jury. It was irresponsible to suggest the killer held the flashlight with one hand as he fired the 12-gauge shotgun with the other. There was no proof of this. No proof of where Keith was sitting or standing when he was shot. No proof of where the killer was. It was irresponsible to say that the specks were actually blood, given the small amount present. It was irresponsible to even use the flashlight, because it was not taken from the crime scene.
After an hour, Judge Plank is exhausted and needs a break. It’s not clear if he is actually sleepy though he does seem to glaze over. Frankie quietly moves to the back row and sits next to the aisle. As the recess is called, and Plank disappears, the spectators rise and leave the courtroom. As they do, Frankie catches all of them on video.
After a smoke and a pee and probably a quick nap, Judge Plank reluctantly returns for more and Benderschmidt gets back on the stand. During his evaluation, he began to doubt whether the back spatter, the alleged bloody specks on the lens, was really blown backward and away from the victim. Using a diagram of Russo’s office and other photos from the scene, Benderschmidt testifies that based on the location of the door and the likely position of the gunman, and based on the location of Keith’s body and the enormous amount of blood and matter on the walls and shelves behind it, it appears unlikely that the impact of the two shotgun blasts would have blown blood toward the killer. To buttress this opinion, Benderschmidt produces some photos of other crime scenes involving 12-gauge shotgun victims.
It’s gory stuff, and after a few minutes His Honor has had enough. “Let’s move on, Ms. Gross. I’m not sure photos from other crimes are beneficial here.”
He’s probably right. On cross-examination, Carmen Hidalgo goes through the motions and scores only when she gets Benderschmidt to admit that bloodstain experts often disagree, as do all experts.
As the witness leaves the stand, Judge Plank looks at his watch as if he’s had a long, hard morning, and he says, “Let’s break for lunch. Back at two, and hopefully you will have something new, Ms. Gross.” He raps his gavel and disappears, and I suspect he has already reached his conclusion.
In Florida, as in almost all states, post-conviction relief is considered only when new evidence is found. Not better evidence. Not more credible evidence. Quincy’s jury heard from Norwood, an alleged expert on bloodstains, and though his qualifications and his opinions were viciously attacked by young Tyler Townsend, the jury unanimously believed him.
With Kyle Benderschmidt and Tobias Black, our second bloodstain expert, we are in effect presenting evidence that is only better—but not new. Judge Plank’s comment is quite revealing.
* * *
—
AS THE MAN in the nice suit and the man in the black denim shirt leave the courthouse, separately, they are being watched. We hired two private detectives to help monitor things. Frankie has already briefed them and is talking on the phone. Vicki is sitting in one of only two diners close to the courthouse, waiting. I go to the other diner and sit at the counter. Frankie emerges from the courthouse and walks to his car in a nearby parking lot. Mr. Nice Suit gets into a slick black Mercedes sedan with Florida tags. Mr. Black Denim gets into a green BMW with Florida tags. They leave downtown two minutes apart and both pull into the parking lot at a shopping center on the main highway. Black Denim gets into the Mercedes and away they go, leaving bright red flags everywhere. Sloppy.
When I get word, I hustle over to the other diner where Vicki is camped out in a booth with an untouched order of fries in a basket. She’s on the phone to Frankie. The Mercedes is headed south on Highway 19 and our tail has eased in behind it. Our man calls back with the tag number, and Vicki goes to work. We order iced tea and salads. Frankie arrives a few minutes later.
We have seen the enemy.
The Mercedes is registered to a Mr. Nash Cooley, of Miami. Vicki e-mails this info to Mazy at home and both women are burning up their keyboards. Within minutes we know that Cooley is a partner in a firm that specializes in criminal defense. I call two lawyers I know in Miami. Susan Ashley Gross, who’s eating a sandwich in the courtroom, calls her contacts. Mazy calls a lawyer she knows in Miami. Vicki pecks away. Frankie enjoys his tuna melt and fries.
Cooley and Black Denim park at a fast-food place in the town of Eustis, population 18,000 and twenty minutes away. What is obvious becomes even more so. The two men eased into town to watch the hearing, did not want to be seen together or recognized in any way, and sneaked off for a bite. As they dine, our tail exchanges cars with his colleague. When Cooley leaves Eustis and heads our way, he is being followed at a distance by another car.
Cooley is a partner in a twelve-member firm with a long history of representing drug dealers. Not surprisingly, it is a low-profile firm with a sparse website. They don’t advertise because they don’t need to. Cooley is fifty-two, law school at Miami, a clean record with no bar complaints. His photo online needs to be updated because he appears at least ten years younger, but this is not unusual. After our first cursory round of research, we find only one interesting story about the firm. In 1991, the guy who founded the firm was found dead in his pool with his throat slashed. The murder remains unsolved. Probably just another disgruntled client.
* * *
—
TWO P.M. COMES and goes with no sign of Judge Plank. Perhaps we should ask one of the clerks to check and see if he is (1) alive, or (2) just napping again. Nash Cooley enters and sits near the back, oblivious to the fact that we know the names of his children and where they go to college. Black Denim enters a moment later and sits far away from Cooley. So amateurish.
Using the services of a high-tech security firm in Fort Lauderdale, we sent a video frame of Black Denim and paid for turnaround service. The firm’s facial recognition technology was primed to run the frame through the firm’s many data banks, but that was unnecessary. The first data bank was the Florida Department of Corrections, and the search lasted for all of eleven minutes. Black Denim is Mickey Mercado, age 43, address in Coral Gables, a convicted felon with dual citizenship—Mexican and American. When Mercado was nineteen he got shipped away for six years for, of course, trafficking. In 1994, he was arrested and tried for murder. The jury hung and he walked.
As we wait for Judge Plank, Vicki is still in the diner, ordering coffee and raging through the Internet. She will tell us later that Mercado is a self-employed private security consultant. Whatever that means.
Their identifications are stunning, and as we sit peacefully in the courtroom it’s hard not to turn around, call them by name, and say something like “What the hell are you doing here?” But we are much too seasoned for anything like that. When possible, never let the enemy know what you know. Right now, Cooley and Mickey have no idea that we have their names, home addresses, license plate and Social Security numbers, and places of employment, and we are still digging. Of course, we assume that they have a file on me and Guardian and its meager staff. Frankie is nothing but a shadow and will never be caught. He’s in the hallway outside the courtroom, watching and moving. There are few blacks in this town and he is always conscious of getting looks.
When Judge Plank appears at 2:17, he instructs Susan Ashley to call our next witness. There are no surprises in these hearings so everyone knows Zeke Huffey is back in Florida. The surprise was that he agreed to testify live if we would pay his airfare. That, and I had to swear in writing that the statute of limitations has run on perjury so he cannot be prosecuted.
These days Zeke is just happy to be free. It won’t last long and we know it, but at least he’s saying all the right things about going straight. Taking the oath, he swears to tell the truth, something he’s done many times in courtrooms before commencing to lie like a polished jailhouse snitch. He tells his story about chatting with his cellie Quincy Miller, who bragged about blowing off the head of his lawyer and tossing the 12-gauge in the Gulf. Zeke says that in return for his bogus testimony his drug charges were greatly reduced and he was sentenced to time served. Yes, he feels bad about what he did to Quincy and has always wanted to make amends.
Zeke makes a decent witness but his problem is obvious. He’s lied so many times that no one can be certain, especially His Honor, if he’s telling the truth now. Nonetheless, his testimony is crucial to our efforts because the recantations of witnesses do constitute new evidence. With Zeke’s live testimony and Carrie Holland’s affidavit, we have enough ammo to argue long and hard that Quincy’s trial was not fair. If we are successful in getting a new trial, we can then present much better scientific evidence to the jury. Neither Norwood nor anyone like him will get near the courtroom. Our dream is getting the facts before a new jury.
On cross, Carmen Hidalgo has far too much fun leading Zeke through his long and colorful career as a jailhouse informant. She has certified court records from five trials over the past twenty-six years in which Zeke lied to juries so he could walk. He admits to lying in that one but not the other one. He gets confused and can’t remember which lie he told in that case. It’s painful to sit through and His Honor is quickly tiring, but the bloodletting continues. Ms. Hidalgo hits her stride and surprises us with her courtroom presence.
By 3:30, Judge Plank is yawning and squinting and obviously checking out. He’s exhausted and trying desperately to stay awake. I whisper to Susan Ashley to wrap things up and let’s get out of here.
28
The day after Vicki and I return to Savannah, we gather in the conference room with Mazy to assess the case. Florida, like Alabama, does not impose a deadline on judges in post-conviction matters, so old Plank might die before he decides anything. We suspect he’s already made up his mind, but he’ll take plenty of time before he rules. There’s nothing we can do to prod him along, and it would be counterproductive to try to do so.
We are assuming that we are being watched at some level and this provokes a spirited discussion. We agree that all digital files and communications must be upgraded and heavily secured. This will cost about $30,000, cash that’s not in our beleaguered budget. The bad guys have unlimited money and can buy the best surveillance.
