Unintended Consequences - By Marti Green

Chapter

22





Fifteen Days


The federal courthouse in Fort Wayne, Indiana, was a granite-and-limestone modified Greek Doric edifice with marble floors and walls in its lofty vestibule. Tommy had joined Dani and Melanie for their trip back to Indiana, and they were all settled in the courtroom, ready to go. The assistant U.S. attorney opposing the motion, Jolene Getty, was a mid-thirties woman dressed in a power suit: a black pinstriped pencil skirt with matching jacket and a crisp ivory blouse. Unlike the female attorneys depicted on television who showed up in court with cleavage-revealing sweaters, she evinced professionalism. Introductions had already been made, and they were awaiting the judge. George, hands and feet shackled, dressed in an orange prison jumpsuit, sat in the prisoner’s box, a row of chairs reserved for men and women brought from various jails and prisons to participate in the proceedings.

As in the state court last week, the bailiff preceded the judge and told all to rise. Judge Arnold Smithson entered, seated himself, and indicated with his hands that everyone should be seated.

“Counselor,” he said, nodding in Dani’s direction, “are you ready to proceed?”

“I am, Your Honor.”

“Go ahead.”

Dani stood and pointed to several boxes laid out on a separate table. The boxes contained the complete transcript of each of Calhoun’s trials and hearings as well as all exhibits entered in those proceedings. They also contained copies of all decisions rendered in his case. “I’d like to mark the documents in those boxes as Petitioner’s Exhibit A.”

“Any objections?” Smithson asked the opposing counsel.

“None,” Getty answered.

“So marked.”

The records were key to HIPP’s claim that George had received ineffective counsel both at his trial and at all post-trial appeals. The relevant sections of the transcripts had been included in Dani’s brief—a written argument to the court supporting her claim of ineffective counsel—which had already been submitted to the court. The brief laid out each of the points during the trial where the prior counsel’s performance was deficient. There were a plethora of instances where he failed to object when he should have and where he failed to subject the prosecution’s witnesses, especially Sallie, to meaningful cross-examination. However, the clearest evidence of Wilson’s failure to provide effective assistance of counsel was not in the written record, so Dani needed to introduce those facts at this hearing.

“Do you have any witnesses?” Smithson asked.

“I do.”

“Go ahead and call your first witness.”

“I call Robert Wilson to the stand.”

Wilson lumbered up to the witness box, clearly unhappy to be there. Dani walked over to him. “Mr. Wilson, you represented the defendant”—she pointed to George—“on charges of murder in the first degree, did you not?”

“I certainly did. And at substantially less than my usual fee.”

“Have you represented other defendants in capital cases?”

“Sure have. Plenty of them.”

“So you were familiar with the amount of work involved in a capital case when you accepted Mr. Calhoun as a client.”

“Well, some cases take more work than others. Depends on the circumstances.”

“And when you decided to take Mr. Calhoun’s case, did you have an idea of how much work would be involved?”

“I made my estimate. Not much you can do when your wife confesses and implicates you.”

“And in fact, you expected to enter into a plea bargain with this case, isn’t that so?”

“Objection,” Getty called out. “Leading.”

“Let me rephrase,” Dani said before the judge could rule. “When you agreed to take his case, did you have any expectations of the outcome?”

Wilson hesitated. “Well, I certainly thought it made sense to try and get a plea, take the death penalty off the table.”

“And was an offer made by the prosecution for a plea agreement?”

“They sure as heck made one, but my client insisted he wanted to go to trial. Over my strong counsel to the contrary, I might add.”

“Did he tell you why?”

“Said it wasn’t his daughter they found in the woods.”

“Would you tell the court what you did about his claim?”

“What I did? There wasn’t anything to do. His wife had already said it was their daughter and that George there killed her and left her in the woods, where the police found her.”

“Did you question Mrs. Calhoun as part of your preparation for trial as to whether the girl found was her daughter?”

“I had a copy of her videotaped confession. There wasn’t any need to speak to her.”

“Did you request any psychiatric testing be done on Mrs. Calhoun?”

“I asked around her neighbors, where she worked. Nobody thought she was crazy.”

“You didn’t order a DNA test on the body found in the woods, right?”

“Didn’t seem to be any point to do so. Like I said, Mrs. Calhoun had already admitted it was their daughter.”

“DNA tests are expensive, aren’t’ they?”

“A lot more than the Calhouns could afford.”

“Did you apply to the court for funds to pay for a DNA test?”

Wilson sighed. “I keep telling you. There wasn’t any point.”

“What pretrial investigation did you undertake, then?”

“I spoke to his neighbors and his employer. I got them to testify to his good character.”

“That was for the penalty phase, though, right?”

“Well, the trial outcome was pretty obvious. I tried to get some mitigating factors before the jury so they’d sentence him to life in prison, like his wife.”

Dani returned to her table and looked through some papers before walking back to the witness stand. “You said Mr. Calhoun denied that the girl they found was his daughter. Did he tell you what happened to his daughter?”

“That’s the thing. He wouldn’t say a word. You can see how my hands were tied when he wouldn’t explain his daughter’s disappearance. After that, there wasn’t much that any lawyer could do.”

“You represented Mr. Calhoun on all his appeals, didn’t you?”

“Everything up till you folks stepped in last month.”

“And during all that time that you represented Mr. Calhoun, did he ever explain what happened to his daughter?”

“Never.” He caught himself. “Wait. He did say one time, maybe about five years ago—he said something about his daughter being sick. About nobody helping her. I don’t remember the details. It didn’t make much sense. I thought I put the letter in his file, but I guess it got thrown away by mistake.”

Wilson had changed his story to avoid reprimand by the judge. He knew all correspondence from his client should have been placed in his file, not wantonly discarded as he’d admitted to Dani when she first met him in his office. She let it pass. She didn’t want to crucify Wilson.

“Did you ever follow up with Mr. Calhoun about his claim that Angelina had been ill?”

Wilson looked down sheepishly. He’d been told about Tommy’s conversation with Dr. Samson at Meadowbrook Hospital. “I’ve got to admit, I didn’t think it was real, his story. I just let it go.”

She’d gotten what she needed from Wilson, and after a few more questions she turned him over to Getty.

The assistant U.S. attorney walked to the witness box. “Mr. Wilson, on any of your capital cases prior to Mr. Calhoun’s, had you ever sought DNA testing?”

“Not that I can remember.”

“And isn’t that because the science was still in its infancy at that time?”

“I believe that’s true. Wasn’t until years later it began to be used more often, and that was at first by the police. They started using it to tie up their evidence against the alleged perpetrator. It was after the prosecution began introducing it that defense counsel started using it to clear their clients.”

“So considering all of the circumstances at that time, would you say that, using an objective standard of reasonableness, it was proper to not seek DNA testing?”

“Objection,” Dani called out. “Calls for a conclusion.”

“He’s an attorney, and this is within his area of expertise,” Getty said.

“Whether or not it was unreasonable to seek DNA testing is the ultimate issue in this case and for the court to adjudicate,” Dani said.

“I’ll allow it,” Judge Smithson said.

“I can’t imagine another attorney back then would have asked for DNA tests, especially given the facts of this case,” Wilson answered.

Getty finished her questioning of Wilson and Dani stood up. “Just a few more questions. Do you know the state of DNA evidence five years ago?”

“Well, by then it was pretty much standard—that is, in cases where it was relevant.”

Dani thanked him and he was excused. He left the courtroom and purposely avoided looking at Dani. She was sure she wouldn’t be seeing him again.

“Do you have any more witnesses?” Judge Smithson asked.

“I do, Your Honor.”

“Well then, I think we’ll break for lunch now. We’ll reconvene at one o’clock.”

Dani walked over to George. A guard waited nearby to take him back to a cell in the courthouse. “It’s going well. You should keep your hopes up.”

“Thank you,” he said, his voice barely a whisper. He started to say something but stopped himself.

“What is it, George?”

“I wondered—I mean …” He stopped again and stared down at his feet. Dani saw that his hands were shaking.

“It’s okay, George. You can ask me anything.”

“It’s just—I just thought you might have tried to find out what happened to Angelina? After we left her at the hospital?”

Dani put her hand on top of his. “I’m sorry. We did try, but we haven’t been able to find anything.”

George nodded and didn’t say a word. As he left the courtroom, his head was slumped, his shoulders rounded. Before they’d gotten any ruling from this judge, their client was already defeated.


They found a small luncheonette two blocks from the courthouse and settled in for lunch. They got the last open table in the jampacked restaurant. Determined to be good, Dani ordered salad, dressing on the side, while Tommy and Melanie waited for their hamburgers.

“What do you think?” Melanie asked. “About this morning?”

“We got what we needed from Wilson into the record.”

“Do you think it’ll hurt us that they didn’t use DNA testing much when George was tried?”

“I don’t think it should. I mean, he didn’t even ask for blood-typing tests to be done on the child’s body. For all we know, their blood types were incompatible. He took whatever money George had and then went on autopilot.”

“What happens if you lose this round?” Tommy asked.

Dani shook her head. Normally the next steps would be an appeal to the federal court of appeals and then, if they lost, review by the United States Supreme Court. But they were running out of time. Only two weeks remained before the scheduled date of execution. “I don’t know. Try to get a quick appeal, I guess.”

They ate their meals in silence, each of them aware of the clock running out.


They were back in court ten minutes early. When the judge arrived and all were seated, Dani called Dr. Samson as her next witness. She’d caught one lucky break: He’d been able to locate his medical records for Angelina Calhoun.

“Dr. Samson, are you familiar with the defendant?” Dani asked.

“Yes, that’s George Calhoun. I treated his daughter, Angelina.”

“What did you treat her for?”

“Acute lymphoblastic leukemia, usually referenced as ‘ALL.’ Evaluation showed she was pre-B-cell ALL.”

“Can you tell the court what that means in laymen’s terms?”

“It means there are a large number of abnormal white blood cells in the bone marrow. Normal white cells protect the body from disease, but these can’t because they are defective. Acute means the onset was rapid, and lymphoblastic refers to the type of white blood cells affected—that is, the lymphocytes. Pre-B-cell means the leukemia cells began in the B-cells but weren’t yet fully mature.”

“And what is the expected rate of survival for children with this type of cancer?”

“Well, now it’s quite high. Back then, survival was more uncertain.”

“How did you treat Angelina for her leukemia?”

“With chemotherapy. She underwent six months of treatment, after which she went into remission.”

“Did there come a time when that changed?”

“Yes. About a year and a half later she began exhibiting symptoms. I performed a spinal tap and determined that the leukemia had spread through her central nervous system to her brain.”

“What did that mean for her prognosis.”

“It was very poor.”

“Was there treatment available?”

“Yes, more chemotherapy and this time radiation as well. Her best chance of survival, though, was a bone-marrow transplant with an acceptable match. I agreed to waive my fee, but the hospital had previously extended credit to the Calhouns and weren’t willing to do so again. He needed to raise funds to pay for the treatment. I never heard from the family after that.”

“Dr. Samson, do you believe George Calhoun capable of murdering his daughter?”

“Objection. Calls for speculation,” Getty called out.

“Your Honor, Dr. Samson has treated thousands of children with cancers. I believe he has expertise in how families react to such a diagnosis.”

“I’ll allow it. Go ahead, Dr. Samson.”

“No. I don’t believe he would have harmed his daughter. When families receive news like this, they become very protective of their child, and that was true of the Calhouns. It was clear to me that they loved their daughter very much.”

“Thank you, Dr. Samson. No further questions.”

Getty stood up. “Dr. Samson, would you describe what would happen to Angelina without treatment?”

“She would certainly die.”

“And can you describe what she would experience in the late stages?”

“There would be loss of appetite with accompanying weight loss, significant bruising over her body and considerable pain from the enlargement of her organs.”

“So a parent devoted to his child who couldn’t afford treatment might want to spare his child that agony. Isn’t that possible?”

“I can’t see the Calhouns doing that.”

“But is it possible?”

“I suppose it is.”

“Thank you. No further questions.”

Smithson looked at Dani. “Call your next witness.”

She called George Calhoun.

“Mr. Calhoun, when you were arrested for the murder of the child found in the woods in Orland, Indiana, what did you tell the officers?” she asked.

“I told them it couldn’t be my daughter.”

“Did you tell them why it couldn’t be your daughter?”

“No, ma’am.”

“Did there come a time when you told your attorney, Mr. Wilson, that it wasn’t your daughter found in the woods?”

“Yes, ma’am, the very first time I met with him.”

“Did you tell Mr. Wilson why it couldn’t be your daughter?”

“No, not then.”

“At any time?”

“Yes, ma’am. About five years ago, when my last appeal was coming up, I sent him a letter and told him about Angelina, about her being sick and nobody willing to treat her.”

“Is that all you told him?”

“Well, I also told him that we took her to the Mayo Clinic and left her there with all her records so that someone would have to treat her since she was all alone.”

“Mr. Calhoun, you were on trial for murdering your daughter and burying her body in Orland, Indiana. The state sought the death penalty. Why didn’t you tell your lawyer at that time what you had done with Angelina?”

Calhoun shifted in his seat and looked at the floor. “I was afraid if I told them where we left Angelina, they would have taken her back home and then nobody would’ve helped her get better.”

“Why did you decide to tell Mr. Wilson the truth about your daughter five years ago?”

“Well, I figured it was safe for her then. You know, if the treatment helped her, she’d have been all better. And if she’d lived, she’d be 18 then, so she could decide for herself whether she wanted to see me and Sallie again.”

“And if she hadn’t survived?”

“Well, then, if the Mayo Clinic hadn’t been able to help her, then it wouldn’t of mattered anymore if I told the truth.”

“Thank you, Mr. Calhoun. That’s all I have.”

Getty stood and walked to the witness box. “I have a few questions. How many times did you tell Mr. Wilson about your daughter’s illness?”

“Just that once, in the letter.”

“You never pursued it further with him?”

“No.”

“Mr. Calhoun, I find it hard to believe that with your life hanging in the balance, you didn’t try harder to talk to your attorney about that.”

“Is there a question here?” Dani asked.

Getty smiled. “Sorry, I couldn’t restrain myself from making that observation. I’ll move on. Have you ever tried to find your daughter? Or find out what happened to her?”

“How could I do that? I was in prison.”

“Please just answer the question.”

“No.”

“So you’d like us to believe that you left your sick daughter in another state, never told anyone and never tried to find out whether she lived or died, is that right?”

“A day never passed that I wasn’t thinking about my little girl. Everything I did was so she could have a good life.”

“Very commendable, Mr. Calhoun, assuming your story is true. Her medical bills were very high, weren’t they?”

“Yes, ma’am.

“If Angelina disappeared, then you wouldn’t have to go into debt for her, isn’t that right?”

“It didn’t matter how much debt I’d have. I would have given every penny I had to make her well.”

“But in fact you had no more money to pay for her treatment, isn’t that right?”

George’s eyes became misty. When he spoke, his voice was choked. “I tried everything I could. I begged for loans from every bank. I begged my boss for an advance. He would have, too, but it was just too much money.”

“Did you know how much your daughter would suffer as the disease progressed?”

George shook his head.

“You need to speak your answer, Mr. Calhoun.”

“I could see how she suffered.”

“Murdering Angelina would end her suffering, wouldn’t it?”

“I would never have done that. Never.”

“So you say. Seventeen years later and two weeks before your execution. Very convenient.”

Dani jumped to her feet, outraged. “Objection,” she shouted.

“No further questions,” Getty said before the judge could rule.

“I have no more witnesses,” Dani informed the judge.

“Ms. Getty, do you have any witnesses?”

“No, Your Honor.”

“Okay, then. Let’s have closing arguments tomorrow morning at 10 a.m.”

Dani thanked the judge, gathered her files and, with Tommy and Melanie, headed to their hotel. She felt cautiously optimistic. She wouldn’t allow herself to think of the alternative.