The Guardians(58)
Late Wednesday morning, Duke Russell is lying on his bunk, the same one he’s had for the past ten years, reading a paperback and minding his own business when a guard looks through the bars and says, “Hey Duke. Time to go, man.”
“Go where?”
“Goin’ home. A judge wants to see you in Verona. Leavin’ in twenty minutes. Get packed.” The guard shoves a cheap duffel through the bars and Duke begins stuffing in his assets: socks, T-shirts, boxers, two pairs of sneakers, toiletries. He owns eight paperbacks, and since he’s read each at least five times he decides to leave them for the next guy. Same for his small black-and-white TV and rotating fan. By the time he walks out of his cell, in handcuffs but no leg irons, his comrades are cheering and clapping. Near the front door the other guards have gathered to slap him on the back and wish him well. Several walk him outside where a white prison van is waiting. As he leaves death row he refuses to look back. At Holman’s administration building, he is transferred to a county patrol car and whisked away. Once outside the prison, the car stops and the deputy in the front passenger’s seat gets out. He opens a rear door, unlocks the handcuffs, and asks Duke if he would like something to eat. Duke thanks him but declines. His emotions are overwhelming his appetite.
Four hours later, he arrives at the county jail where I’m waiting with Steve Rosenberg and a lawyer from Atlanta. We’ve convinced the sheriff that Duke is about to be released because he is in fact innocent, so the sheriff is cooperating. He allows us to use his cramped office for our little meeting. I explain what I know to my client, which is not everything. Tomorrow, Judge Marlowe plans to vacate his conviction and order his release from custody. Idiot Chad is threatening to re-file charges against not only Duke but Mark Carter as well. His bizarre new theory is that the two of them tag-teamed the rape and murder of Emily Broone.
The two of them have never met. As outrageous as this sounds, it is not surprising. When boxed-in and bleeding, prosecutors often become wildly creative with new theories of guilt. The fact that Mark Carter’s name was never mentioned at Duke’s trial ten years ago will kill this nonsense. Judge Marlowe is on the warpath and will not listen to it. And, the Alabama Attorney General is putting pressure on Chad to back off.
Nonetheless, he has the power to re-file charges and it is something to worry about. He could have Duke arrested not long after he’s released. As I try to explain these legal vagaries to my client, he becomes too emotional to talk. We leave him with the sheriff, who takes him to the nicest cell for his last night in captivity.
Steve and I drive to Birmingham and have drinks with Jim Bizko of The Birmingham News. He’s rabid with the story and has circulated the gossip among his colleagues. Tomorrow, he promises us, will be a circus.
We have a late dinner and find a cheap motel, one far away from Verona. We do not feel safe staying there. The victim’s family is large and has many friends, and we’ve had anonymous phone threats. They too are part of the business.
Before dawn, Mark Carter is arrested by the state police and taken to a jail in a county next door. The sheriff tells us this as we enter the courtroom and prepare for the hearing. As we wait, and as a crowd gathers, I look out a window and notice brightly painted television vans in front of the courthouse. At 8:30, Chad Falwright arrives with his little gang and says good morning. I ask him if he still plans to re-indict my client. He smiles smugly and says no. He is thoroughly beaten, and at some point during the night, probably after a tense phone chat with the Attorney General, he decided to call it quits.
Duke arrives with his uniformed escorts and he’s all smiles. He’s wearing an oversized navy jacket, a white shirt, and a tie with a knot as big as a fist. He looks splendid and is already savoring the moment. His mother is on the front row behind us, along with at least a dozen relatives. Across the aisle is Jim Bizko and several reporters. Judge Marlowe is allowing still photography, and cameras are clicking.
She assumes the bench promptly at nine and says good morning. “Before we get started, I have been asked by Sheriff Pilley to inform the public and the press that a resident of this county, a man named Mark Carter, was arrested this morning at his home in Bayliss and charged with the rape and murder of Emily Broone. He remains in custody and will appear in this courtroom in about an hour. Mr. Post, I believe you have a motion.”
I rise with a smile and say, “Yes, Your Honor. On behalf of my client, Duke Russell, I ask that his conviction entered in this case be vacated and that he be released immediately.”
“And what is the basis of this motion?”
“DNA testing, Your Honor. We have obtained DNA testing on the seven pubic hairs found at the crime scene. Mr. Russell is excluded. All seven originated from Mr. Carter.”
“And as I understand the facts, Mr. Carter was the last person seen with the victim while she was still alive, is that so?” She asks this as she glares at Chad.
“That is correct, Your Honor,” I say with suppressed glee. “And Mr. Carter was never considered a serious suspect by the police or the prosecutor.”
“Thank you. Mr. Falwright, do you oppose this motion?”
He rises quickly and almost whispers, “The State does not.”
She reshuffles some papers and takes her time. Finally, she says, “Mr. Russell, would you please stand?”
He gets to his feet and looks at her as if bewildered. She clears her throat and says, “Mr. Russell, your convictions for rape and capital murder are hereby vacated and dismissed. Forever, and they cannot be brought back. I was not involved in your trial, obviously, but I do consider it a privilege to be involved here today with your exoneration. A grave miscarriage of justice has occurred and you have paid a dear price. You were wrongfully convicted by the State of Alabama and incarcerated for a decade. Years that can never be replaced. On behalf of the State, I say that I’m sorry, and I realize my apology does not even begin to heal your wounds. However, it is my hope that one day soon you will remember the apology and take some small measure of comfort in it. I wish you a long happy life with this nightmare behind you. Mr. Russell, you are free to go.”