The Confession: A Novel Page 13

  "Donte should not have confessed," he said several times, as if uttering a false confession were grounds enough for a death sentence.

  But Pryor would shadow him throughout Wednesday and Thursday, if necessary. He believed there was still a slight chance, one that increased as the hours went by.

  At 7:00 a.m., the firm gathered in the conference room for the daily briefing. All were present, all bleary-eyed and fatigued and ready for the final push. Dr. Kristi Hinze had worked through the night and finished her report. She summarized it briefly while everyone ate pastries and gulped coffee. The report was forty-five pages long, more than the court would want to read, but maybe enough to get someone's attention. Her findings surprised no one, at least no one within the Flak Law Firm. She described her examination of Donte Drumm. She had reviewed his medical and psychological history while in prison. She had read 260 letters he had written over the eight years he'd been on death row. He was schizophrenic, psychotic, delusional, and depressed and did not understand what was happening to him. She went on to condemn solitary confinement as a means of incarceration and again labeled it as a cruel form of torture.

  Robbie instructed Sammie Thomas to file their petition for relief with Dr. Hinze's report attached in full to the firm's co-counsel in Austin. Throughout the appellate process, all eight years of it, Robbie's firm had been assisted by the Texas Capital Defender Group, commonly referred to as the Defender Group, a nonprofit that represented about 25 percent of the inmates on death row. The Defender Group did nothing but capital appeals, and did so with great expertise and diligence. Sammie would send the petition and report electronically, and at 9:00 a.m. the Defender Group would file hard copies with the Court of Criminal Appeals.

  With an execution looming, the court was on alert and prepared to quickly address the last-minute filings. If they were denied, which they usually were, Robbie and the Defender Group could then run to federal court and fight their way up the mountain, hoping for a miracle at some point.

  He discussed these strategies and made certain everyone knew what was to be done. Carlos would be in charge of the Drumm family the following day, though he would remain in Slone. He was to make sure they arrived at Polunsky on time for their final visit. Robbie would be there to make the final walk with his client and to witness the execution. Sammie Thomas and the other associate would remain at the office and coordinate the filings with the Defender Group. Bonnie, the paralegal, would stay in touch with the offices of the governor and the attorney general.

  The request for a reprieve had been filed with the governor's office, and its denial was being awaited. The Kristi Hinze petition was ready to go. Unless and until Joey Gamble had a change of heart, there was no new evidence to make a fuss about. As the meeting dragged on, it became evident that there was little of substance left to do. The conversation waned. The frenzy was beginning to subside. Everyone was suddenly tired. The waiting had begun.

  ------

  When Vivian Grale was elected to the bench in 1994, her campaign had been about high moral standards, putting the laws of God first, putting criminals in prison for even longer periods of time, and, of course, more efficient use of the death chamber down at Huntsville. She won by thirty votes. She defeated a wise and experienced judge by the name of Elias Henry, and she did so by cherry-picking several criminal cases in which Judge Henry had dared to show compassion for the accused. She splashed these around in ads that made him look like a coddler of pedophiles.

  After her affair with Paul Koffee was exposed, after her divorce, and after she resigned and left Slone in disgrace, the voters repented and returned to Judge Henry. He was reelected without opposition. He was now eighty-one years old and in declining health. There were rumors that he might not be able to finish his term.

  Judge Henry had been a close friend of Robbie's father, who died in 2001. Because of this friendship, he was one of the few judges in East Texas whose blood pressure did not spike when Robbie Flak walked into the courtroom. Elias Henry was about the only judge Robbie trusted. At Judge Henry's invitation, Robbie agreed to meet in his chambers at 9:00 a.m. Wednesday morning. The purpose of the meeting was not discussed on the phone.

  "This case bothers me a great deal," Judge Henry said after a few pleasantries were out of the way. They were alone, in an old office that had changed little in the forty years Robbie had visited it. The courtroom was next door and empty.

  "As well it should." They both had unopened bottles of water in front of them on a worktable. The judge, as always, wore a dark suit with an orange tie. He was having a good day, his eyes fierce and intense. There were no smiles.

  "I've read the transcript, Robbie," he said. "I started last week and I've read it all, and most of the appellate briefs as well. Taking a view from the bench, I can't believe Judge Grale allowed that confession into evidence. It was coerced and blatantly unconstitutional."

  "It was, Judge, and it is. I won't defend her, but she had little choice. There was no other credible evidence. If she tossed the confession, then Koffee had nowhere to go. No conviction, no defendant, no suspect, no dead body. Donte would have walked out of jail, which would have been front-page news. As you well know, Judge Grale had to face the voters, and judges don't get reelected in East Texas if they keep the law above politics."

  "Tell me about it."

  "Once he knew the confession would go to the jury, Koffee was able to piece together other evidence. He stomped and strutted and convinced the jury that Donte was the killer. He pointed fingers at him, and then he cried at the very mention of Nicole's name. Quite a performance. What's the old saying, Judge? 'If you don't have the facts, yell'--and he did a lot of yelling. The jury was more than willing to believe him. He won."

  "You fought like hell, Robbie."

  "Should've fought harder."

  "And you're convinced he's innocent? No doubt in your mind?"

  "Why are we having this discussion, Judge? It seems rather moot at this point."

  "Because I'm going to call the governor and ask for a reprieve. Maybe he'll listen, I don't know. I wasn't the trial judge. I was, as we know, retired at the time. But I have a cousin in Texarkana who gave the governor a ton of money. It's a long shot, but what's there to lose? What's wrong with delaying things another thirty days?"

  "Nothing. You're having doubts about his guilt, Judge?"

  "Serious doubts. I would not have admitted the confession. I would have thrown the snitch in jail for lying. I would have excluded that clown with his bloodhounds. And the boy, what's his name--"

  "Joey Gamble."

  "Right, the white boyfriend. His testimony would probably go to the jury, but it was too inconsistent to carry weight. You said it best in one of your briefs, Robbie. This conviction is based on a bogus confession, a dog named Yogi, a lying snitch who later recanted, and a jilted lover bent on revenge. We can't convict people with garbage such as this. Judge Grale was biased--I guess we know why. Paul Koffee was blinded by his own tunnel vision and the fear he might be wrong. It's a terrible case, Robbie."

  "Thank you, Judge. I've lived it for nine years."

  "And it's dangerous. I met with two black lawyers yesterday, good guys, you know them. They're angry with the system, but they're also afraid of the backlash. They expect trouble if Drumm is executed."

  "That's what I hear."

  "What can be done, Robbie? Is there a way to stop this? I'm not a death-penalty lawyer, and I don't know where your appeals are right now."

  "The tank is almost empty, Judge. We're filing an insanity petition now."

  "And your chances?"

  "Slim. Donte has no record of mental illness until now. We're alleging that eight years on death row have driven him insane. As you know, the appeals courts usually frown on theories that are hatched at the last minute."

  "Is the boy crazy?"

  "He has severe problems, but I suspect he knows what's happening."

  "So you're not optimistic."

&n
bsp; "I'm a criminal defense lawyer, Judge. Optimism is not in my DNA."

  Judge Henry finally unscrewed the cap off the plastic bottle of water and took a sip. His eyes never left Robbie. "Very well, I'll call the governor," he said, as if his phone call would save the day. It would not. The governor was getting lots of calls right now. Robbie and his team were generating plenty.

  "Thanks, Judge, but don't expect much. This governor has never stopped an execution. In fact, he wants to speed them up. He has his eye on a Senate seat, and he counts votes before he chooses what to eat for breakfast. He's a two-faced, cutthroat, dirt-dumb, chickenshit, slimy little bastard with a bright future in politics."

  "So you didn't vote for him?"

  "I did not. But please give him a call."

  "I will. I'm meeting with Paul Koffee in half an hour to discuss this with him. I don't want him to be surprised. I'll also chat with the fellow over at the newspaper. I want to be on record in opposition to this execution."

  "Thanks, Judge, but why now? We could've had this conversation a year ago, or five. It's awfully late to get involved."

  "A year ago, few people were thinking about Donte Drumm. There was no execution looming. There was a chance he would find relief in a federal court. Maybe a reversal, a new trial. I don't know, Robbie. Maybe I should've been more involved, but this is not my case. I was busy with my own matters."

  "I understand, Judge."

  They shook hands and offered their farewells. Robbie took the back stairs so he wouldn't bump into some lawyer or clerk who wanted to chat. As he hurried along the empty corridor, he tried to think of another elected official in Slone or in Chester County who had voiced support for Donte Drumm. One came to mind, the only black city councilman in Slone.

  For nine years, he had fought a long and lonely battle. And he was about to lose. A phone call from the cousin of a big donor would never be enough to stop an execution in Texas. The machinery was well-oiled and efficient. It was in motion, and there was no way to stop it.

  On the front lawn of the courthouse, city workers were assembling a makeshift podium. A few policemen loitered about, chatting nervously as they watched the first church bus unload. A dozen or so black folks got off and made their way across the lawn and past the war memorials. They found their spot, unfolded chairs, and began to wait. The rally, or protest, or whatever it was to be called, was scheduled for noon.

  Robbie had been asked to speak, but declined. He couldn't think of anything to say that would not be inflammatory, and he did not want to be accused of inciting the crowd. There would be enough troublemakers.

  According to Carlos, who was charged with monitoring the Web site, the comments, and the blogs, the traffic was increasing dramatically. Protests were being planned for Thursday in Austin, Huntsville, and Slone and on the campuses of at least two of the black universities in Texas.

  Give 'em hell, Robbie thought as he drove away.

  CHAPTER 13

  Keith arrived early at the hospital and made his rounds. St. Mark's Lutheran currently had half a dozen members in various stages of treatment or recuperation. He said hello to all six, shared a quick word of comfort, held their hands in prayer, then was off to get Mr. Boyette for what promised to be an eventful day.

  Eventful in unexpected ways. Mr. Boyette was already gone. According to a nurse, when they checked on him at 6:00 a.m., they found his bed empty and neatly made up, his hospital gown folded next to his pillow, and the IV wrapped carefully around the portable stand next to his bed. An hour later, someone from Anchor House called with the message that Travis Boyette was back home and wanted his doctor to know all was well. Keith drove to Anchor House, but Boyette was not there. According to a supervisor, he was not scheduled to work on Wednesdays. No one had any idea where he was or when he might return. As Keith was driving to St. Mark's, he told himself not to worry, not to panic, Boyette would show. Then he called himself an idiot for placing even the remotest bit of confidence in a confessed murderer, a serial rapist, and a compulsive liar. Because he habitually tried to see the good in every person he knew and met, he realized, as he began to panic, that he had been much too gentle with Boyette. He had tried too hard to be understanding, even compassionate. Hell, the man had murdered a seventeen-year-old girl just to satisfy his lust and was now seemingly content to watch another man die for the crime. God only knew how many other women he'd raped.

  Keith was angry when he entered the church office. Charlotte Junger, back from the flu, greeted him with a cheery "Good morning, Pastor," and Keith was barely civil.

  "I'm locked in my office, okay? No calls, unless it's a man named Travis Boyette."

  "Yes, sir."

  He closed his door, ripped off his coat, and called Dana with the latest news. "He's loose on the streets?" she asked.

  "Well, yes, he's in the process of getting paroled. He's served his time, and he's about to be a free man. I guess you could say he's loose."

  "Thank God for the tumor."

  "I can't believe you said that."

  "Sorry. I can't either. What's the plan?"

  "There's nothing to do but wait. Maybe he'll show up."

  "Keep me posted."

  Keith called Matthew Burns in the prosecutor's office and told him there was a delay. Matthew had first been cool to the idea of meeting Boyette and videoing his statement, but he came around. He had agreed to make a call or two to Texas after he heard Boyette's story, if, in fact, he believed what he heard. He was disappointed to hear the man was missing.

  Keith checked the Drumm Web site for an update, something he'd done almost every waking hour since Monday morning. He went to the filing cabinets and pulled out folders with old sermons. He called Dana again, but she was having coffee with the girls.

  At exactly 10:30 a.m., he called the law office of Robbie Flak. The young lady who answered the phone explained that Mr. Flak was unavailable. Keith said he understood this and said that he'd called yesterday, Tuesday, left his phone numbers, but had not heard from anyone. "I have information about the murder of Nicole Yarber," he said.

  "What type of information?" she asked.

  "I need to speak to Mr. Flak," Keith said firmly.

  "I will give him the message," she said, just as firmly.

  "Please, I'm not some wacko. This is very important."

  "Yes, sir. Thank you."

  He decided to violate the vow of confidentiality. There were two possible consequences. First, Boyette could sue him for damages, but Keith was no longer worried about this. The brain tumor would take care of any future litigation. And if for some reason Boyette survived, he would be required to prove that Keith's breach of confidence had caused him damages. Though Keith knew little about the law, he found it difficult to believe that a judge or jury anywhere would have sympathy for such a miserable person.

  The second consequence was that of a possible disciplinary action by the church. But in light of the facts, and especially in light of the liberal leanings of the synod, he could not imagine anything more than a slap on the wrist.

  Screw it, he said to himself. I'm talking.

  He typed an e-mail for Robbie Flak. He described himself, leaving all possible phone numbers and addresses along the way. He described his encounter with an unnamed parolee who once lived in Slone, and did so at the time Nicole disappeared. This parolee has a lengthy criminal record, a violent one, and was once arrested and jailed in Slone. Keith had verified this. The man confessed to the rape and murder of Nicole Yarber and gave plenty of details. Her body was buried deep in the hills south of Joplin, Missouri, where this parolee grew up. The only person who can find the body is the parolee himself. Please call. Keith Schroeder.

  An hour later, Keith left his office and drove back to Anchor House. No one had seen Boyette. He drove downtown and had another quick lunch with Matthew Burns. After some debate, and a bit of cajoling, Matthew pulled out his cell phone and called Flak's office. Keith heard him say, "Yes, hello, my name is Mat
thew Burns, and I am a prosecutor in Topeka, Kansas. I would like to speak to Mr. Robbie Flak." Mr. Flak was unavailable.

  "I have some information about the Donte Drumm case, specifically the identity of the real killer." Mr. Flak was still unavailable. Matthew then gave his phone numbers, cell and office, and invited the receptionist to visit the Web site for the City of Topeka, Office of the City Attorney, to verify his legitimacy. She said she would do this.

  "I'm not some nut, okay? Please have Mr. Flak call me as soon as possible. Thank you."

  They finished lunch and agreed to alert each other if a call came from Texas. Driving back to the office, Keith was relieved to have a friend, an attorney at that, willing to lend a hand.

  ------

  By noon, the streets of downtown Slone had been blocked and barricaded, and routine traffic had been diverted elsewhere. Dozens of church buses and vans were double-parked around the courthouse, but the police were not writing tickets. Their orders were to maintain a presence, keep the peace, and, by all means, do nothing to provoke anyone. Emotions were high. The situation was tense. Most of the merchants closed their shops, and most of the white folks disappeared.

  The crowd, all black, continued to grow. Hundreds of students from Slone High School skipped out and arrived in packs, already rowdy and anxious to be heard. Factory workers brought their lunch boxes and ate while they milled around the courthouse lawn. Reporters took photos and scribbled notes. Camera crews from Slone and Tyler bunched together near the podium on the front steps of the courthouse. At 12:15 p.m., Mr. Oscar Betts, president of the local NAACP chapter, stepped to the microphones, thanked everyone for coming, and quickly got down to business. He proclaimed the innocence of Donte Drumm and said his execution was nothing more than a legal lynching. He blistered the police in a scathing condemnation, calling them "racist" and "determined to kill an innocent man." He ridiculed a judicial system that would allow an all-white jury to pass judgment on an innocent black man. Unable to resist, he asked the crowd: "How you supposed to get a fair trial when the prosecutor is sleeping with the judge?" "And the appeals courts said it was okay?" "Only in Texas!" He described the death penalty as a disgrace--an outdated tool of revenge that does not deter crime, is not used fairly, and has been abandoned by all civilized countries. Almost every sentence was followed with applause and shouting as the crowd grew louder. He called on the court system to stop the madness. He mocked the Texas Board of Pardons and Paroles. He called the governor a coward for not stopping the execution. He warned of unrest in Slone and East Texas and perhaps even the entire nation if the state went forward with the execution of an innocent black man.