The Confession: A Novel Read online

  The trial judge expressed grave concerns about the confession, but not grave enough to exclude it from the trial. She refused to suppress it, and it was later shown to the jury. Donte watched it as if he were watching a different person. No one has ever seriously questioned the fact that it guaranteed his conviction.

  The confession was attacked again on appeal, but the Texas Court of Criminal Appeals unanimously affirmed the conviction and death sentence.

  When Keith was finished, he left the table and went to the bathroom. He had the feeling that he had just been interrogated. It was well after midnight. Sleep would be impossible.

  CHAPTER 8

  By 7:00 on Tuesday morning, the Flak Law Firm was bustling with a frantic, nervous energy one might expect from a group of people fighting both the clock and some very long odds to save a man's life. Tension was palpable. There were no smiles, none of the usual smart-ass remarks from people who worked together each day with the absolute freedom of saying anything to anyone at any time. Most of those present had been around six years earlier when Lamar Billups got the needle at Huntsville, and the finality of his death had been a shock. And Billups had been a nasty character. His favorite pastime had been beating up people in bar fights, preferably with pool cue sticks and broken bottles, and the state finally got fed up with him. On his deathbed, his last words were "See you in hell" and away he went. He was guilty, and never made a serious claim otherwise. His murder had been in a small town sixty miles away, hardly noticed by the citizens of Slone. He had no family, no one for the firm to be acquainted with. Robbie disliked him immensely, but clung rigidly to the belief that the state had no right to kill him.

  The State of Texas versus Donte Drumm was a far different matter. Now they were fighting for an innocent man, and his family was their family.

  The long table in the main conference room was the center of the storm. Fred Pryor, who was still in Houston, was on the speakerphone, giving a quick update on his efforts to flip Joey Gamble. The two had spoken by phone late Monday night, and Gamble was even less cooperative.

  "He kept asking about perjury and how serious a crime it is," Pryor said, his voice at full volume.

  "Koffee's threatening him," Robbie said, as if he knew it to be true. "Did you ask him if he's talking to the district attorney?"

  "No, but I thought about it," Pryor replied. "I didn't, because I figured he would not divulge that."

  "Koffee knows he lied at trial, and he's told the kid that we'll make a last-minute run at him," Robbie said. "He's threatened him with a prosecution for perjury if he changes his story now. Wanna bet on that, Fred?"

  "No. Sounds about right."

  "Tell Joey the statute of limitations has run on perjury. Koffee can't touch him."

  "You got it."

  The speakerphone was switched off. A platter of pastries hit the table and attracted a crowd. Robbie's two associates, both women, were reviewing a request for a reprieve from the governor. Martha Handler sat at one end of the table, lost in the world of trial transcripts. Aaron Rey, with his jacket off and both pistols visible and strapped to his shirt, sipped coffee from a paper cup as he scanned the morning newspaper. Bonnie, a paralegal, worked at a laptop.

  "Let's assume Gamble comes through," Robbie said to his senior associate, a prim lady of undetermined age. Robbie had sued her first plastic surgeon twenty years earlier when a face-lift produced a result that was less than desirable. But she had not given up on the corrective work; she had simply changed surgeons. Her name was Samantha Thomas, or Sammie, and when she wasn't working on Robbie's cases, she was suing doctors for malpractice and employers for age and race discrimination. "Get the petition ready, just in case," he said.

  "I'm almost finished with it," Sammie said.

  The receptionist, Fanta, a tall, slender black woman who had starred in basketball at Slone High and would have graduated, under different circumstances, with both Nicole Yarber and Donte Drumm, entered the room with a handful of phone messages. "A reporter from the Washington Post called and wants to talk," she said to Robbie, who immediately focused on her legs.

  "Is it someone we know?"

  "Never seen the name before."

  "Then ignore."

  "A reporter from the Houston Chronicle left a message at 10:30 last night."

  "It's not Spinney is it?"

  "It is."

  "Tell him to go to hell."

  "I don't use that language."

  "Then ignore."

  "Greta has called three times."

  "Is she still in Germany?"

  "Yes, she can't afford a plane ticket. She wants to know if she and Donte can get married through the Internet?"

  "And what did you tell her?"

  "I said no, it's not possible."

  "Did you explain that Donte has become one of the most eligible bachelors in the world? That he's had at least five marriage proposals in the past week, all from Europe? All kinds of women, young, old, fat, skinny, the only trait they share is that they are ugly? And stupid? Did you explain that Donte is rather particular about whom he marries and so he's taking his time?"

  "I didn't talk to her. She left a voice mail."

  "Good. Ignore."

  "The last one is from a minister from a Lutheran church in Topeka, Kansas. Called ten minutes ago. Said he might have information about who killed Nicole, but is not sure what to do about it."

  "Great, another nut. How many of those did we have last week?"

  "I've lost count."

  "Ignore. It's amazing how many fruitcakes show up at the last minute."

  She placed the messages amid the pile of debris in front of Robbie and left the room. Robbie watched every step of her exit, but did not gawk as usual.

  Martha Handler said, "I don't mind calling the fruitcakes."

  "You're just looking for material," Robbie shot back. "It's a waste of valuable time."

  "Morning news," Carlos, the paralegal, said loudly and reached for the remote control. He aimed it at a wide-screen television hanging in a corner, and the chatter stopped. The reporter was standing in front of the Chester County Courthouse, as if something dramatic might happen there at any minute. He gushed:

  "City officials are mum on their plans to deal with potential unrest here in Slone in the wake of the scheduled execution of Donte Drumm. Drumm, as you know, was convicted in 1999 of the aggravated rape and murder of Nicole Yarber and, pending a last-minute stay or reprieve, will be executed at the prison in Huntsville at 6:00 Thursday evening. Drumm has maintained his innocence, and many here in Slone do not believe he is guilty. From the beginning, the case has had racial overtones, and to say the town is divided is quite an understatement. I'm here with Police Chief Joe Radford."

  The camera pulled back to reveal the rotund figure of the chief, in uniform.

  "Chief, what can we expect if the execution is carried out?"

  "Well, I guess we can expect justice to be served."

  "Do you anticipate trouble?"

  "Not at all. Folks have got to understand that the judicial system works and that the verdict of the jury must be carried out."

  "So, you don't foresee any problems Thursday night?"

  "No, but we'll be out in full force. We'll be ready."

  "Thanks for your time."

  The camera zoomed in, cutting out the chief.

  "Organizers are planning a protest tomorrow at noon, right here in front of the courthouse. Sources confirmed that a permit for a rally has been issued by city hall. More on that later."

  The reporter signed off and the paralegal pushed the mute button. No comment from Robbie, and everybody went back to work.

  ------

  The Texas Board of Pardons and Paroles has seven members, all appointed by the governor. An inmate desiring clemency must petition the board for relief. A petition may be as simple as a one-page request, or as thorough as a voluminous filing with exhibits, affidavits, and letters from around the world. The one filed
by Robbie Flak on behalf of Donte Drumm was one of the most exhaustive in the board's history. Clemency is rarely granted. If denied, an appeal can be made to the governor, who cannot grant clemency on his own initiative but is allowed to issue one thirty-day reprieve. On those rare occasions when the board grants clemency, the governor has the right to overrule it and the state proceeds with the execution.

  For a condemned prisoner facing death, the board usually makes its decision two days before the execution. The board doesn't actually meet to take a vote, but instead circulates a ballot by fax. Death by Fax, as it is known.

  For Donte Drumm, news of his Death by Fax came at 8:15 on Tuesday morning. Robbie read the decision aloud to his team. No one was remotely surprised. They had lost so many rounds by now that a victory was not something they expected.

  "So, let's ask the governor for a reprieve," Robbie said with a smile. "I'm sure he'll be happy to hear from us again." Of the truckload of motions and petitions and requests that his firm had filed in the last month, and would continue to churn out until his client was dead, a request for a reprieve from the governor of Texas was undoubtedly the biggest waste of paper. Twice in the past year the governor had ignored clemency approvals from his parole board and allowed the executions. He loved the death penalty, especially when seeking votes. One of his campaigns featured the slogan "Tough Texas Justice" and included his promise to "empty death row." And he was not talking about early parole.

  "Let's go see Donte," Robbie announced.

  ------

  The drive from Slone to the Polunsky Unit near Livingston, Texas, was a hard three-hour grind on two-lane roads. Robbie had made it a hundred times. A few years earlier, when he had three clients on death row--Donte, Lamar Billups, and a man named Cole Taylor--he grew weary of speeding tickets and rural drivers and near misses because he was on the phone. He bought a van, a long, heavy one with plenty of room, and he took it to a high-end custom shop in Fort Worth where they installed phones, televisions, and every gadget on the market, along with plush carpet, fine leather captain's chairs that both swiveled and reclined, a sofa in the rear, if Robbie needed a nap, and a bar in case he became thirsty. Aaron Rey was named the designated driver. Bonnie, the other paralegal, usually sat in the front passenger's seat, ready to jump when Mr. Flak barked. The trips became much more productive as Robbie worked the phone and laptop or read briefs on the way to Polunsky and back, traveling comfortably in the portable office.

  His chair was directly behind the driver's. Next to him was Martha Handler. Up front with Aaron was Bonnie. They left Slone at 8:30 a.m. and were soon winding through the hills of East Texas.

  The fifth member of the team was a new one. Her name was Dr. Kristina Hinze, or Kristi, as she was called around the Flak office, where no one was presumptuous enough to wear a title and most first names were shortened. She was the latest in a series of experts Robbie had burned cash on in his efforts to save Donte. She was a clinical psychiatrist who'd studied prisoners and prison conditions, and she'd written a book that argued, among other things, solitary confinement is one of the worst forms of torture. For $10,000, she was expected to meet with Donte, evaluate him, then prepare (quickly) a report in which she would describe his deteriorated mental condition and declare that (1) he had been driven crazy by eight years of solitary and (2) such confinement constitutes cruel and unusual punishment.

  In 1986, the U.S. Supreme Court stopped the execution of insane people. Robbie's final thrust would be to portray Donte as a psychotic schizoid who understood nothing.

  The argument was a long shot. Kristi Hinze was only thirty-two years old, not far removed from the classroom, with a resume that included no experience in court. Robbie was not concerned. He only hoped she got the chance to testify in a hearing on mental competency, months down the road. She had the rear sofa, papers spread everywhere, hard at work like everyone else.

  When Robbie finished a phone call, Martha Handler said, "Can we talk?" This had become her standard opening when she had questions.

  "Sure," he said.

  She clicked on one of her many tape recorders and slid it in front of him. "On the subject of money, you were appointed by the judge to represent Donte, who qualified as an indigent defendant, but--"

  "Yep, Texas has no public defender system to speak of," he interrupted. After months together, Martha had learned that she should never expect to finish a sentence. He went on, "So the local judges appoint their buddies or drag in some poor schmuck when the case is so bad no one wants it. Me, I went to the judge and volunteered. She was happy to give it to me. No other lawyer in town would get near it."

  "But the Drumms are not exactly poor. They both--?"

  "Sure, but here's how it works. Only a rich person can afford to pay a lawyer for a capital defense, and there are no rich people on death row. I could've squeezed five or ten thousand bucks out of the family, made 'em mortgage their house again, something like that. But why bother? The fine folks of Chester County would pay. This is one of the great ironies of the death penalty. The people want the death penalty--something like 70 percent in this state--yet they have no idea how much they're paying for it."

  "How much have they paid?" she asked, deftly inserting the question before he could start talking again.

  "Oh, I don't know. A lot. Bonnie, how much have we been paid so far?"

  With no hesitation and hardly a glance over her shoulder, Bonnie said, "Almost $400,000."

  Robbie went on, barely skipping a beat, "That includes attorney's fees, at the rate of $125 an hour, plus expenses, primarily for investigators, and then a nice chunk for expert witnesses."

  "That's a lot of money," Martha said.

  "It is and it isn't. When a law firm is working for $125 an hour, it's losing serious money. I'll never do it again. I can't afford it. Neither can the taxpayers, but at least I know I'm losing my ass. They do not. Ask the average Joe on Main Street in Slone how much he and his fellow citizens have paid to prosecute Donte Drumm, and you know what he'll say?"

  "How am I supposed to--"

  "He'll say he doesn't have a clue. Have you heard about the Tooley boys in West Texas? It's a famous case."

  "I'm sorry, I must've missed--"

  "These two brothers, the Tooleys, a couple of idiots, somewhere out in West Texas. What county, Bonnie?"

  "Mingo."

  "Mingo County. Very rural. A great story, listen. These two thugs are robbing convenience stores and gas stations. Very sophisticated stuff. One night, something goes wrong, and a young female clerk gets shot. Sawed-off shotgun, really nasty. They catch the Tooley brothers because the boys forgot about all of the video cameras. The town is outraged. The police are strutting. The prosecutor is promising swift justice. Everybody wants a quick trial and quick execution. There's not much crime in Mingo County, and no jury there has ever sent a man to death row. Now, there are many ways to feel neglected in Texas, but living in a community that's been left out of the execution business is downright embarrassing. What do the kinfolks in Houston think? These Mingo people see their opportunity. They want blood. The boys refuse to plea-bargain because the prosecutor insists on death. Why plead to death? So they try them, together. Quick convictions and, finally, death. On appeal, the court finds all manner of error. The prosecutor really butchered the case. The convictions are thrown out. The case is sent back for separate trials. Two trials, not one. Are you taking notes?"

  "No, I'm searching for some relevance here."

  "It's a great story."

  "That's all that matters."

  "A year or so passes. The boys are tried separately. Two new guilty verdicts, two more trips to death row. The appeals court sees more problems. I mean, glaring problems. The prosecutor was a moron. Reversals, sent back for two new trials. The third time, one jury convicts the gunman of murder and he gets life. The other jury convicts the one who didn't fire the gun of murder and he gets death. Go figure. It's Texas. So one brother is serving life. The other w
ent to death row, where he committed suicide a few months later. Somehow he got a razor and slashed himself."

  "And your point is?"

  "Here's the point. From start to finish, the case cost Mingo County $3 million. They were forced to raise property taxes several times, and this led to an uprising. There were drastic budget cuts in schools, road maintenance, and health services. They closed their only library. The county was near bankruptcy for years. And all of it could have been prevented if the prosecutor had allowed the boys to plead guilty and take life without parole. I've heard that the death penalty is not that popular in Mingo County now."

  "I was more interested in--"

  "From soup to nuts, it takes about two million bucks to legally kill a man in Texas. Compare that with the $30,000 it costs per year to keep one on death row."

  "I've heard this before," Martha said, and indeed she had. Robbie never shied away from his soapbox, especially when the subject was the death penalty, one of his many favorites.

  "But what the hell. We have plenty of money in Texas."

  "Can we talk about Donte Drumm's case?"

  "Oh, why not?"

  "The defense fund. You--"

  "Established a few years back, a certified nonprofit governed by all relevant code sections set forth by the Internal Revenue Service. Administered jointly by my office and Andrea Bolton, younger sister of Donte Drumm. Receipts so far total how much, Bonnie?"