Unintended Consequences - By Marti Green

Chapter

23





“Your Honor,” Dani began as she stood before Judge Smithson, ready with her closing argument, “under the standard set forth in the Supreme Court decision in Strickland, we must show that Robert Wilson’s representation of George Calhoun in his murder trial, and the appeals that followed, fell below an objective standard of reasonableness and that deficiency prejudiced the defendant. There can be no doubt that Mr. Wilson failed utterly in that regard. Strickland required him to make a reasonable investigation into the facts of the crime and his client’s culpability. Instead, he made no investigation at all. This was a death-penalty case—his client’s life was at stake. Yet over and over he accepted at face value the prosecution’s flimsily constructed case. Did he look into Mr. Calhoun’s insistence that the body in the woods wasn’t his daughter? No. Not before his trial and not after he learned from Mr. Calhoun why it couldn’t have been Angelina Calhoun. That alone is sufficient to rule that George Calhoun did not receive effective assistance of counsel, a right guaranteed him by our Constitution, a right especially to be guarded when the penalty upon conviction is death.”

She paused. “Now, why did Mr. Wilson fail to investigate his client’s claim? He says it was because Sallie Calhoun identified the child as theirs. Should her word be enough to contradict her husband’s? No, not when Mr. Calhoun’s life was on the line. A simple test—a blood test—might have ruled out George Calhoun as the father of that little girl. Mr. Wilson never asked for one. He never asked for a psychiatric exam of Mrs. Calhoun. He never even spoke directly to Sallie Calhoun. If he had, maybe he would have come away believing she harbored so much guilt over abandoning her daughter that it seemed to her as though they had murdered her. Maybe he would then have cross-examined her more thoroughly on the witness stand and raised doubt in the jurors’ minds as to what really happened.

“And then, when Mr. Calhoun finally confessed what had happened to Angelina, what did Mr. Wilson do? Nothing! He ignored the letter and never spoke about it to his client. Would a reasonable attorney look into Angelina’s medical records to see if Mr. Calhoun told him the truth? Yes. Would a reasonable attorney ask for a DNA test then? Yes. Not Robert Wilson.

“Your Honor, there are so many more instances in the record of Wilson’s abject failure to even marginally meet a standard of reasonable performance. His apparent belief in his client’s guilt led him to willfully disregard just about every aspect of this case. As a result, Mr. Calhoun never received a fair hearing. He was tarred and feathered by his own attorney before a single witness testified.

“Did Mr. Wilson’s failures prejudice the defendant? Without question. It goes without saying that had a simple blood test been conducted and shown that Mr. Calhoun could not have been the girl’s father, there would not even have been a trial. And if DNA testing were conducted five years ago and had shown definitively that he was not the father, Mr. Calhoun would be a free man right now. Do we know those would be the outcomes of the tests? No, because Mr. Wilson never asked for them. But the defendant doesn’t have to prove that he wouldn’t have been found guilty. He must only show that there’s a reasonable probability that the results of the proceedings would have been different had Mr. Wilson done an effective job. Perhaps if Mr. Wilson had conducted the most basic investigation, which would have revealed Angelina Calhoun’s medical condition, and informed the jurors of her cancer and the stress it placed on her family, the jurors might have imposed a sentence of life, instead of death.

“Robert Wilson’s counsel strayed so far below the range of professional competencies as to be shocking. This court should recognize the travesty that has occurred and rule that George Calhoun’s conviction be set aside. Thank you.”

She sat down and Melanie leaned over to whisper into her ear. “Good job. Smithson seemed really intent on what you were saying.”

Getty was dressed just as smartly today as yesterday, this time in a navy suit with a pink and white striped shirt crisply tucked into her straight skirt. She stood and addressed the judge.

“Good morning, Your Honor. Defendant’s counsel would have you believe that in order for an attorney to be competent, he must be prescient as well. She seems to think that Mr. Wilson should have known that, one day in the future, DNA evidence would be used in criminal proceedings and urged the trial court to undertake the expense. She thinks that despite an outright admission from Mr. Calhoun’s wife that the dead child was theirs, Mr. Wilson should have looked into his crystal ball and known that she lied. It’s absurd. Sallie Calhoun is spending twenty-five years to life in prison because of her role in the death of that child. No reasonable attorney would think that she lied about something that would result in her incarceration for the remainder of her years. Strickland says that an attorney can make a reasonable decision that an investigation is unnecessary. Mr. Wilson did just that in this case.

“The other instances of alleged incompetence that Ms. Trumball references in her brief are all inconsequential. Even if Mr. Wilson erred, which I don’t believe occurred, those errors would have had no impact on the verdict.

“Now, five years or so ago, Mr. Calhoun for the first time offered Mr. Wilson a story that seemed so wild that any attorney would have been suspicious. The letter came as Mr. Wilson prepared Mr. Calhoun’s last appeal. It seemed like a desperate move to him, as it would to most attorneys. Should he have dropped everything and said, ‘Let’s get a DNA test?’ Hardly.

“Defendant’s counsel is trying to convince this court that a DNA test would prove her client’s innocence. But that’s not what you’re being asked to decide. The question before you is whether Mr. Wilson exercised his professional judgment in a manner consistent with other attorneys. The only answer to that is absolutely yes. Thank you.”

“Okay, counselors,” Judge Smithson said. “I understand the urgency of this case, and I’ll do my best to give you a ruling as quickly as possible.”

With that, the matter was finished. Once again all they could do was wait. They left the courtroom and turned their cell phones back on. The phone beeped, alerting Dani to a message. She waited until they’d left the courthouse to retrieve the message. It was Bruce, letting her know that the state court had scheduled a hearing on the appeal of the exhumation case for Thursday. It made no sense to travel back to New York that night only to return the next day. She informed the others and they headed back to the hotel to extend their reservations.

“What’s your assessment?” Tommy asked as they walked to the Holiday Inn.

Dani shrugged. No matter how well or poorly she thought a hearing had gone, the decision often surprised her.

“I thought Getty’s closing was pretty weak,” Melanie said.

“She made some good points,” Dani said. “But it only matters what Smithson thinks. His reputation is good—smart, fair to both sides instead of a prosecutorial bias. But I’m worried. If he doesn’t rule in our favor, we’ll need to get a petition in to the court of appeals fast. Melanie, we’ll have some time tomorrow. We should get started on that just in case.”

Dani knew they were fighting an uphill battle. The chance of getting a convicted killer freed on grounds of ineffective assistance of counsel was small. Of the one hundred and seven death sentences handed down in Indiana since 1977, when the United States Supreme Court reinstated it as a potential penalty, only two men had been exonerated of their crimes, one of them two weeks before the scheduled execution and the other three days before. Yet she knew that many more on death row lacked the money to pay attorneys proficient in capital cases and lacked the resources to hire experts to refute those put forth by the prosecution. It wasn’t the color of their skin that was the biggest hurdle to obtaining justice; it was the color of money.

They arrived at their hotel and, after arranging to extend their stay, retreated to their separate rooms. Each of them focused on preparing for the next task: getting a court to allow them to exhume the little girl’s body. Hours went by until the ring of her cell phone interrupted Dani, who’d been absorbed in her work.

“Ms. Trumball?” the voice at the other end asked.

“Yes.”

“This is May Collins, Judge Smithson’s secretary. He’d like you to be at his court 10 a.m. tomorrow. He’s going to read his decision from the bench.”

“Thank you. We’ll be there.”

She hung up and wondered what it meant. Had Judge Smithson reached his decision quickly because their case was compelling or because he wanted to give them enough time to appeal? She called Melanie and Tommy to let them know. “Melanie, this means it’s especially important to have our papers ready in case we need to appeal. It goes to the court of appeals in Chicago, so we’ll need to overnight the papers as soon as they’re ready. That is, if we lose tomorrow.”

Melanie was chipper. “I really feel we’re going to win.”

“Well, just in case, get the appeal ready.”

“Gotcha, chief.”

Dani worked through dinner, ordering room service instead of joining Melanie and Tommy, but by 9 o’clock she was bushed. It was just as well; it was honeymoon hour. She called Doug.

“How’s it going?” he asked.

“I’ll find out tomorrow morning. The judge will have his decision then.”

“How are you holding up?”

“I’m exhausted. Not just physically. Emotionally, too.”

“It’ll be over soon.”

“Yes, but how? That’s what’s draining me. I know he’s innocent, I just know it. Only I don’t know if there’s enough time to save him.”

“We have an imperfect system. As long as there’s a death penalty, some innocent men and women will die.”

Suddenly, the combination of her fatigue and worry overwhelmed her and she burst into tears. “It’s wrong, it’s so wrong,” she said through her sobs.

Doug let her cry herself out. “It’s better now than it used to be,” he said after she calmed down. “At least in some cases there’s DNA evidence to clear an innocent person. That wasn’t always the case. Maybe twenty years from now there’ll be some new scientific advance that can conclusively tell when a person is being truthful or lying. Maybe fifty years from now genome mapping will be complete and scientists can figure out whether a person’s genes make him capable of murder. Maybe if those things happen, or others that we can’t even imagine, maybe then there won’t be any innocents sitting on death row. In the meantime, you can only help one prisoner at a time. And for now, that prisoner is George Calhoun.”

Dani dabbed her eyes with the napkin from her dinner tray. “If only we’d been able to find some evidence that Angelina had been left at the Mayo Clinic.”

“And you’re convinced she was?”

“Yes. Absolutely convinced.”

“Then Calhoun is lucky he has a lawyer who believes in him.”

“Now if he only has a judge who feels the same way.”

“Maybe he does. You’ll find out tomorrow.”

By ten o’clock her eyelids started drooping. She said goodnight to Doug and got ready for bed. As she set the alarm, she felt prepared for whatever would happen tomorrow and each of the remaining days until Calhoun’s execution date.


“I’m going to read my decision into the record,” Judge Smithson said after they were all assembled in his courtroom. “Defendant has come before this court on a habeas corpus petition claiming that he received ineffective assistance of counsel in violation of the state and federal constitutions. This proceeding is the first time he has raised such a claim, but it is not unexpected, as his trial and appellate counsel were the same. The burden is on the defendant to show that his lawyer’s performance fell below an objective standard of reasonableness and that there is a reasonable probability that the results of the proceedings would have been different if not for his attorney’s errors. In looking at the reasonableness of the attorney’s conduct, we must view it in light of the circumstances at the time of the proceedings. We may not apply subsequent knowledge or conduct to a prior period. Defendant claims that his attorney failed to perform a proper investigation into the facts during the pretrial stage. Yet defendant’s own conduct led to such failure. Defendant’s wife asserted the dead child was their own, and although defendant denied such was the case, he steadfastly refused to inform his attorney as to the whereabouts of his daughter. Given those facts, it was not unreasonable for his attorney to forgo an investigation. Nor was it unreasonable for him to not seek exhumation of the child’s body twelve years later in order to conduct a DNA test. Once again, the defendant’s conduct over those twelve years would lead a reasonable attorney to believe his claim was ‘grasping at straws.’

“The remaining claims of ineffective assistance do not rise to the level of prejudicial conduct. For these reasons, defendant’s petition is denied and he is to be remanded back to Indiana State Prison.”

Dani’s hands shook. She willed herself not to cry. It wasn’t over yet, she kept telling herself. Not for thirteen more days.