Final Argument: A Legal Thriller Part 28

Nickerson was out from behind the wheel quickly, and so was another man, who'd been in the pa.s.senger seat. Tonight he was in sports clothes rather than gun-metal gray with epaulets. He stayed by the pa.s.senger door of the Volvo, unlike Nickerson, who in a few strides was wrenching at the door handle of my Toyota. It wasn't t locked.

"Come out of there, Jaffe."

He didn't seem to be armed, which gave me more courage than was reasonable under the circ.u.mstances. He was a cop, a man practiced in violence, burly and thick through the chest. And he had a backup.

"What the h.e.l.l do you want? What are you b.u.t.ting into my life for?"

He wore khakis, his usual golf s.h.i.+rt, and, because the night was cool, a poplin windbreaker. There wasn't much light in that part of the street, so I couldn't see the expression on his face. But I expected he was more livid than red-faced. He kept clenching and unclenching his fists. He wanted to harm me. I believe he was frightened.

He obviously hated my silence.

"You follow me to the supermarket," he said shrilly. "You hara.s.s my friends. You're looking for big trouble, friend."

"Let's talk, Nick."

"There's nothing to talk about."

"How about the good old days? Before you were on the take."

"f.u.c.k you," he murmured.

I heard his rapid breathing. No, he didn't want to harm me. He wanted to kill me.

I had thought for a while that I might try to move him by appealing to his humanity. He had to have some humanity. He was a man who had done terrible things, and maybe they kept him awake sometimes at night. Maybe in some part of him he wanted to be decent and make amends.

Yet I doubted it.

"I have an affidavit," I said, "from Jerry Lee Elroy. You remember him?"

"No," he said, and that was probably the truth.

"Darryl Morgan's cellmate in Duval County Jail twelve years ago. You got a battery charge dismissed for him. He was the guy you set up to lie on the witness stand that he heard Morgan confess to killing Solly Zide."

He took a step backward.

"He'll testify to that, Nick. And you'll go to prison."

He didn't know that Elroy had been stabbed to death at the dog track. He turned toward the Volvo and said, "Patrick, this gentleman and I are going for a little walk on the course. Stay here and keep your eye on his car, okay?"

Patrick's voice came out of the darkness. "Yes, sir."

Before Nickerson finally made up his mind what to do about me, he wanted to know what I knew. And he didn't want to be overheard.

With hard fingers he grasped my arm. "You play golf? This is a champions.h.i.+p course. The fifth hole is right opposite where I live. ..." He guided me past an oak tree, up a slope, onto the rolling fairway. In the gloom I could see a dogleg to the left, and two broad sand traps, and a pond.

A humid night breeze blew from the pond. An owl hooted. When we got to the edge of the first trap, about ten yards from the green, Nickerson halted. He placed his hands on his hips, probably to keep them from strangling me.

"I remember Elroy," he said. "But your story, that's all bulls.h.i.+t."

"You lied in court too, Nick. You testified that Morgan confessed to you. That was bulls.h.i.+t."

He snickered, but he didn't say any more.

"Carmen Tanagra will testify to that," I said.

"If she did, she'd be lying."

"A judge will decide. And not Bill Eglin."

"All c.r.a.p."

From behind the clouds a thin crescent of moon appeared, and I breathed deeply.

"Nick, I'm trying to give you a break. You've got a new life, a new girlfriend. You want it all to go up in smoke? Your bank accounts at the Barnett Bank can be subpoenaed. You flew to the Bahamas in March of 1980 with your wife for a little holiday. The cash that Neil Zide gave you went with you, and later it paid off your mortgage in Jacksonville. You got a sweetheart contract here at Orange Meadow. You want to tell me it was a reward for catching Morgan and shooting William Smith? No, Nick, it was a payoff from Neil Zide."

In the past three weeks Gary Oliver had done some good sleuthing. Nickerson was silent for a few moments. Then he said, "The big black kid shot and killed Solly Zide, and that's a fact."

"No, it isn't, Nick."

"If he didn't kill him," Nickerson asked, "who did?"

He was trying to sound sincere, but I knew too much to believe in it.

"Maybe you did," I said.

He laughed heartily.

"Right," I said. "It's funny. I know you didn't do it."

"Good," he said, still chuckling.

"All you did was destroy evidence. Keep other witnesses from testifying. I don't think they'll give you more than ten years in Raiford for that."

He stopped laughing. I saw his hands begin to clench and unclench again.

"Of course if you killed Gambrel, and they can prove it, then you'll swap places with Morgan. Where'd you put the payoff money, Nick? Bank of Nova Scotia in Na.s.sau? Fidelity Magellan and Dreyfus? How about a junk bond fund with Vanguard-a nice little offsh.o.r.e annuity. The IRS know about that? You ever pay any bills -like your MasterCard and American Express-with that Vanguard checkbook?"

I'm not even sure what he did. I heard him grunt and I smelled his sour breath and felt a combination of pain and nausea all at the same time. He was big and quick. I think he did a karate step to the side and struck me in the groin with the toe of his shoe. And it was not a canvas Adidas or a leather Reebok; it was a real shoe, a brogan with a steel toe plate.

Dirt filled my mouth. I don't know if I fell into the sand trap or was borne there under the weight of his body. But I still smelled his meaty breath, because he was leaning over me and pressing his fingers into my temples.

Darryl had nearly choked me to death. I'd spent a night in a county jail with p.i.s.s-soaked feet. And now Floyd Nickerson was doing something horrible to my nerve endings. This was the part of the legal profession they hadn't told me about in law school.

He was so enraged he could hardly speak. He didn't let up on my temples, so that his voice seemed to rasp at me from a watery distance, as if a killer whale had found a tongue. I couldn't understand most of what he said.

"... to lose, so f.u.c.k with me, I'll kill you. f.u.c.k with my bank accounts, talk to the IRS, anything happens to me, you're dead."

He raised his hand then and brought the edge of it down on the bridge of my nose. I heard the crack and immediately tasted salty blood. I'm sure he would have beaten me to death right then and there, but some worry must have nagged at him as to whether I'd come to Gainesville alone or told anyone where I was going and who I'd be seeing. Nothing else would have stopped him.

I think he called for help, because Patrick came up out of the darkness over the fairway. They dragged me down the hill to my car, and I felt myself shoved into the pa.s.senger seat. I was bleeding, my head hurt, my ribs hurt, and I wanted to puke. Patrick drove me out of Orange Meadow Estates and perhaps five minutes later-I was dizzy, and I couldn't see my watch-pulled over into the parking area behind a gas station on the highway. He never said a word; neither did I. Patrick got out of the car, and I never saw him again.

Nickerson had broken my nose and somehow bruised my ribs. Had he kicked me? I didn't remember that. I never did puke: mind conquered matter.

I checked myself into the emergency unit at County General Hospital. They asked me to undress, because my s.h.i.+rt was wet with blood. A nurse pointed to the wire taped to my chest. "What's that?" she asked, frowning.

"A wire," I said.

"You a narc?"

"No, a lawyer."

It seemed logical at the time, although I could see by the flicker in her eyes that the nurse didn't quite believe me.

I didn't listen to the tape until I was back in my room at the University Motel. And the next time I played it, forty-eight hours later, was for Judge Horace Fleming, in his chambers at the Jacksonville courthouse.

Muriel Suarez was present this time. It was too important a moment for an ex parte conversation, and it was I who had invited the state attorney's office to join us. She didn't argue much as to the legitimacy of the conversation; I'll give her that. The law was clear that both parties did not have to consent to a tape recording; otherwise wiretaps and narcotics informants would quickly be out of business, and no witness in a court proceeding would be allowed to testify as to what he or she had overheard without consent of the speaker.

Muriel frowned and said, "There is a certain sense of entrapment here, Your Honor. May I suggest that if Mr. Jaffe hadn't goaded him, and very nearly put the words in his mouth, Mr. Nickerson might not have said even what he seems to have said?"

"You may certainly suggest that," the judge replied.

"And it seems clear that Mr. Nickerson was enraged beyond reason," Muriel said.

"He sure sounds mad enough to kick the cat," said the judge.

"If you listen carefully to this tape, as I've done, Your Honor, you realize that Mr. Nickerson failed to confirm a single one of Mr. Jaffe's wild accusations. He threatened Mr. Jaffe, that's clear. He may well have attacked Mr. Jaffe physically, but we only have Mr. Jaffe's word for that, and while I have nothing but respect for opposing counsel, it's my obligation to point out that he is opposing counsel. And so you might say he's a little prejudiced."

The judge looked me over. It was obvious that under my bandage I had a swollen nose, and I walked like a man who'd lost an argument with a truck. The judge smiled and nodded. "So you might say, Ms. Suarez. And I'd agree."

"Mr. Nickerson told Mr. Jaffe candidly that his accusations of suborning perjury and outright perjury were baloney."

"No, ma'am. I heard what he said. He told Mr. Jaffe they were bulls.h.i.+t."

"Your Honor, you're absolutely right."

"I'm going to think on this matter," Judge Fleming said, "and play this conversation on my stereo at home. Get my grandson to fiddle with all those k.n.o.bs so it's real clear. I'll get back to you both in a day or so."

I remembered how he'd rebuked me the last time I reminded him that Darryl was close to the date of execution, and so this time I said nothing. But it wasn't easy.

Three afternoons later, Judge Fleming called us into his chambers. "You're a persistent fella," he said to me.

"Yes, Judge."

"What is it you want?" he asked.

I cleared my throat. "That's in the motion I filed, Your Honor. Are you asking me to rephrase, or repeat?"

"Don't snap your garters. Just tell me, Mr. Jaffe, in your own simple words, if you can, what you really want."

"One way or another," I said, "I want my client to have his day in court."

"You want a hearing?"

"At least that, Your Honor."

He raised a s.h.a.ggy white eyebrow. "With witnesses?"

"That would be a good idea," I said. I could barely tell if he was serious.

He turned to Muriel Suarez. "And ma'am, what is it you want?"

"Your Honor, I can tell you what I don't want. I don't want the state to have to go to the trouble, plus the considerable expense, of a full-scale hearing when there's already been an eight-day jury trial where Darryl Morgan was convicted of first-degree murder." She raised her voice a notch. "There is no new evidence."

"Well, there's this tape," Judge Fleming said.

"That's not evidence," Muriel shot back. She wasn't afraid of him at all.

"It's a lot of shouting and threatening, that's what it is," Judge Fleming said, nodding. "But if you listen real good, and you use your common sense, you get to thinking. Wouldn't you agree with that, ma'am?"

There wasn't much Muriel could do except shrug and reluctantly say, "I might agree with that. But it's still not-"

"Evidence," the judge said. "Maybe not." He turned back to me. "If I give you a day in court, who would you put on?"

"You mean which witnesses?"

He nodded, and I decided to roll the dice double or nothing. Which was an optimistic metaphor, because so far I hadn't won a d.a.m.n thing except some septuagenarian indulgence.

"Judge," I said, "have you ever read the full transcript of Florida v. Morgan?"

He looked just a shade fl.u.s.tered, and I believed I had him. Well, you never knew with this man.

"Judge, I'm sure you've at least skimmed that transcript last April, and I'm just as sure that you got a good feeling about the case back then. And so you know that the transcript is interesting, but it's not the word of the Lord. Now, if you grant my motion, you'll of course want to hear from the moving party, which is Morgan. We will have one or two other witnesses. But I believe you'll benefit by hearing and seeing the state witnesses too."

Muriel jumped forward. "Judge, watch out: he's just about asking for a new trial!"

"No, ma'am," I said. "A hearing with no more than the princ.i.p.al witnesses. Mr. Nickerson is one of them. If you don't put him on, I will. And I don't think we can understand what Mr. Nickerson says unless we hear from Mr. Neil Zide. And if we're going to hear from Neil Zide, why not hear from his mother?"

"Judge-"

"Hang on there, both of you," Fleming said, and he turned to me. "Mr. Jaffe, if you're telling me you want to hear the state's princ.i.p.al witnesses, you've got more nerve than a toothache. Is that what you're saying?"

"I'm saying you should hear them, Your Honor, if only for the sake of enlightenment. It would certainly be quicker and simpler than reading that long and tedious trial transcript. We're talking maybe three thousand pages, Judge."

Fleming stroked his jaw and looked straight into my eyes without blinking. "You sure have got billy goat in your blood. You wouldn't mind doing a little cross-examination of those folks, would you?"

"Sir, I'm not going to retry the case, but yes, there's something to what you say. I wouldn't mind a little cross."

"Ms. Suarez?"