Executive Privilege

Neither Brad nor his client spoke while the guards were present. As soon as they closed the door behind them Little pulled his folding chair close to the phone and sat down. He placed the file on the ledge in front of him and picked up the receiver. Brad’s stomach tightened.

“Mr. Little, my name is Brad Miller,” he said, hoping that his client wouldn’t notice the slight tremor in his voice. “I’m an associate at Reed, Briggs, Stephens, Stottlemeyer and Compton in Portland. The firm was asked to handle your habeas corpus suit in the United States Court of Appeals for the Ninth Circuit.”

Little smiled. “Your firm has an excellent reputation for doing quality work, Mr. Miller. I’m flattered that the court appointed Reed, Briggs to represent me. And I appreciate the fact that you’ve taken time from your busy day to visit me.”

Brad was relieved that Little was so gracious.

“You’re our client,” he said magnanimously, “and you couldn’t really come to our office, could you?” Brad asked with a smile, hoping that a little humor would lighten the depressing surroundings.

Little gri

Brad began to relax. Maybe this wouldn’t be so bad after all. Then he remembered that he hadn’t given the bad news to the mass murderer sitting on the other side of the glass.

“I came to Salem to discuss some problems I’m having with your case,” Brad started diplomatically.

“What problems?”

“Well, the writ of habeas corpus that you filed alleged incompetence of counsel.”

Little nodded in agreement.

“And the judge who conducted the hearing disagreed with you about the quality of your representation at trial.”

“He was wrong.”

“Uh, yes, I know that’s your position, but we have a problem. The United States Supreme Court wrote an opinion in a case called Strickland versus Washington. In that case they said that-and I’ll quote this”-Brad said, pulling a copy of the opinion out of his file-“‘a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in the light of all the circumstances, the identified acts or omissions were outside the range of professionally competent assistance…’”

“I’ve read Strickland,” Little said.

“Good. Then you understand that you can’t just accuse your lawyer of screwing up. You have to tell the court very specifically what he did that constituted ineffective assistance.”

“I did. I told my lawyer that I had an alibi for the time that I was accused of kidnapping and murdering Laurie Erickson and he didn’t investigate my claim.”

“Okay, that’s the problem. There’s no question that your lawyer had an absolute duty to make a reasonable investigation of facts in your case that could establish an alibi-and he testified that you said you had an alibi-but he said that you didn’t give him any facts he could investigate. I’ve read the transcript of your habeas corpus hearing. The judge asked you where you were and you avoided answering the question. So, I guess the bottom line is that I don’t see any way we can win your case on appeal because the Ninth Circuit is just going to say that you didn’t make an adequate record to show your lawyer did anything wrong.”

“I still want to appeal.”

“Maybe I didn’t make myself clear, Mr. Little. I read the transcript of your case. Then I did a lot of research on this issue. After that I conferred with other attorneys in the firm. No one thinks you can win. It would be a waste of time to pursue your appeal.”

Little wasn’t smiling now. “How long have you been out of law school, Mr. Miller?”

“Uh, not that long.”

“And how many criminal cases have you handled?”

“Well, actually, this is my first.”

Little nodded. “I thought so. Tell me, are you still new enough to your chosen profession to believe in the pursuit of Justice?”

“Sure, of course.”

“And I take it that you wouldn’t approve of an i

“Of course not.”

“And you wouldn’t want an i

“No one would want that.”

“The person who murdered Laurie Erickson might.”

Brad frowned. “Are you saying you didn’t kill Miss Erickson?”

Little kept his eyes locked on Brad’s and nodded slowly.

“So you really have an alibi for the time she disappeared?” Brad said even though he didn’t believe a word of his client’s assertion.

“Yes, I do.”

“Why the big secret? If you had evidence that would have led to your acquittal why didn’t you tell your lawyer at trial or explain it to the judge at the hearing?”

“That’s a little tricky.”

“Look, I don’t want to sound judgmental but you seem to be evading my questions about your alibi in the same way you avoided answering the judge’s questions at your hearing. If you’re not honest with me I can’t help you.”

“Here’s my problem, Mr. Miller. There was a witness who could clear me completely, but my involvement with her would implicate me in another crime.”

“Mr. Little, what do you have to lose? You’re on death row not only for the murder of Laurie Erickson. You were sentenced to death for two other murders. The Supreme Court affirmed those convictions a week after your habeas corpus hearing. Even if I win this case, you’ll still be executed.”

“But not for something I didn’t do. It’s a matter of honor, Mr. Miller.”

“Okay, I can see where you wouldn’t want to let someone get away with framing you. What I don’t understand is why you didn’t tell your lawyer your alibi if you feel so strongly about this. Anything you told him would have been confidential, even if you confessed to another crime.”

“I assume that would hold for you, too?”

“Yes. I’m your attorney, so everything you tell me is confidential. If you tell me about a crime you’ve committed I’m forbidden by law to reveal that confidence to anyone. And I’m sure your trial attorney told you the same thing. So, why didn’t you tell him the name of the witness?”

“Because he’s an idiot. The court stuck me with a complete incompetent. I had no faith that he would follow up properly if I confided in him. And my other cases were on appeal, so I didn’t want to incriminate myself in another crime until I knew what was going to happen in those cases.”

Little hesitated. Brad could see he was going through some kind of internal struggle.

“There’s another thing,” Little said. “In order to prove my i

“You’ve just met me, Mr. Little. Why do you think I’m any smarter than your trial attorney?”

“Because the firm of Reed, Briggs, Stephens, Stottlemeyer and Compton saw fit to hire you, and they don’t employ idiots.”

Brad sighed. “I appreciate the vote of confidence, but it may be too late for me to help you. I’m handling your appeal. An appeal is based on the record of the court below. We can’t introduce new evidence in the Ninth Circuit.”

“What if you could prove that I’m i

“I really don’t know. I’m good at research, which is why I was assigned your case, but I’m not really up on criminal law or procedure. There probably is some way to help you if you can give me a way to prove you didn’t commit the murder.”