But Chad is frightened these days because the greatest achievement of his lackluster career is about to become his biggest screwup. He is up for reelection next year, not that anybody really wants his job, and if it becomes known that he prosecuted and almost executed Duke Russell for someone else’s murder, then he might lose some votes. So Chad is fighting back, and hard. Instead of pursuing the lofty goal of finding the truth and unraveling an injustice, he attacks me because I’m trying to prove him wrong and exonerate an innocent man.

  To prove his toughness, he convenes a grand jury in Verona and gets an indictment charging me with tampering. He calls Jim Bizko with The Birmingham News and squawks about this major accomplishment. But Bizko despises Chad and asks why he refuses to submit all seven pubic hairs for DNA testing. Bizko does not report the indictment.

  My pal in Alabama is Steve Rosenberg, a radical lawyer from New York who moved south and remains noticeably unassimilated in his strange surroundings. He runs a nonprofit in Birmingham and defends dozens of death penalty cases.

  Rosenberg calls Chad and they engage in an extensive cuss fight, and not for the first time. When the dust settles, it is agreed that I will surrender myself to Chad in his office, get processed, and immediately appear before a judge to discuss bail. There is a chance that I could spend a night or two in jail but this does not worry me. If my clients can endure decades in horrible prisons, I can certainly survive a brief stint in a county joint.

  This is my first indictment and I’m quite proud of it. I have a book on my shelf about noted lawyers who were thrown in jail fighting for their clients, and I would be honored to join them. Rosenberg once spent a week behind bars for contempt in Mississippi. He still laughs about it, says he picked up some new clients.

  We meet in front of the courthouse and embrace. Steve is pushing sixty and looks more radical with age. His thick gray hair is shoulder length and unkempt. He has added an earring and a small tattoo across his carotid artery. He grew up a brawler in Brooklyn and practices law like a street fighter. He’s fearless and likes nothing more than charging into old courthouses in backwater towns throughout the South and mixing it up with the locals.

  “All of this for one lousy pubic hair?” he laughs. “I could’ve loaned you one of mine.”

  “More than likely it would be too gray,” I reply.

  “Ridiculous. Just ridiculous.” We enter the courthouse and walk upstairs to Chad’s office. The sheriff is waiting with two deputies, one of whom is holding a camera. In a show of real hospitality, the locals have agreed to go through the motions in the courthouse and avoid the jail, for now anyway. I sent them a set of my fingerprints two days ago. I pose for my mug shot, thank the sheriff, who seems bored with it all, and wait for Chad. When we are finally shown into his office, no one makes even the slightest effort to shake hands. Rosenberg and I thoroughly loathe this guy and he feels the same toward us. As we struggle with the preliminary chatter, it is obvious that he is preoccupied, even nervous.

  We soon understand why. At 1:00 p.m., we enter the main courtroom and take our seats at the defense table. Chad assumes the other one with a couple of assistants. The courtroom is the domain of the Honorable Leon Raney, a crusty old fossil who presided over Duke’s trial and never gave the kid a break. There are no spectators. No one cares. It’s just a pubic hair taken by an innocence lawyer from Georgia. Chad’s dream of generating a bit of publicity fails again.

  Instead of a grouchy old white man in a black robe, a young and very pretty black lady in a maroon robe appears on the bench, and, with a smile, says good afternoon. Judge Marlowe informs us that Judge Raney has taken a leave of absence because of a stroke last week, and that she will be pinch-hitting until he returns. She is from Birmingham and has been sent in by special orders from the Alabama Supreme Court. We begin to understand why Chad is so nervous. His home-field advantage has been annulled by an honest referee.

  Judge Marlowe’s first order of business is my initial appearance and the issue of my bail. She nods at the court reporter, goes on the record, and begins, pleasantly, with “I’ve read the indictment and frankly, Mr. Falwright, there’s not much to this case. Surely you have better things to do. Mr. Rosenberg, does your client still have possession of the pubic hair that was DNA tested?”

  Rosenberg is on his feet. “Sure does, Judge. It’s right here on the table and we would like to return it to Mr. Falwright, or whoever has the evidence file these days. My client didn’t tamper with or steal anything. He simply borrowed one of the pubic hairs. He was forced to, Your Honor, because Mr. Falwright refuses to do DNA testing.”

  “Let me see it,” she says.

  Rosenberg picks up a small plastic bag and hands it to her. Without opening it, she looks, strains, finally sees something, and puts it down. She frowns and shakes her head and says to Falwright, “You gotta be kidding.”

  Chad stumbles to his feet and begins stuttering. He’s been the DA here for twenty years, and for his entire career he’s had the protection of a like-minded right-winger with little sympathy for those accused of crimes. Leon Raney was his predecessor in the DA’s office. Suddenly, Chad is forced to play on a level field and he does not know the rules.

  “This is a serious matter, Your Honor,” he wails with fake indignation. “The defendant, Mr. Post, admits he stole the evidence from the files, files that are protected, files that are sacrosanct.” Chad loves big words and often tries to impress juries with them, but, reading the trial transcript, he often gets them wrong.

  She replies, “Well, if I read the record correctly, the pubic hair in question was gone for over a year before you or anyone else realized it was missing, and it came to your attention only when Mr. Post told you about it.”

  “We can’t guard all of the old files, Your Honor—”

  She raises a hand and cuts him off. “Mr. Rosenberg, do you have a motion?”

  “Yes ma’am. I move to dismiss this charge against Mr. Post.”

  “So ordered,” she says immediately.

  Chad’s mouth falls open and he manages to grunt before falling, loudly, into his chair. She glares at him with a look that frightens me, and I’ve just been cleared.

  She picks up another stack of papers and says, “Now, Mr. Rosenberg, I have before me your petition for post-conviction relief filed two months ago on behalf of Duke Russell. Since I am the presiding judge, and will be for an unknown period of time, I am inclined to proceed with this petition. Are you prepared to do so?”

  Rosenberg and I are on the verge of some serious laughter. “Yes ma’am,” he replies at full throttle.

  Chad has turned pale and is once again struggling to get to his feet. “Mr. Falwright?” she asks.

  “No way, Judge. Come on. The State has not even filed a response. How can we proceed?”

  “You’ll proceed if I tell you to proceed. The State has had two months to respond, so what’s taking so long? These delays are unfair and unconscionable. Have a seat, please.” She nods at Rosenberg and both lawyers sit down. Everyone takes a deep breath.

  She clears her throat and says, “At issue here is a simple request by the defense to DNA test all seven pubic hairs taken from the crime scene. The defense is willing to bear the expense of the testing. DNA is now used every day to both include and exclude suspects and defendants. Yet, as I understand it, the State, through your office, Mr. Falwright, is refusing to allow testing. Why? What are you afraid of? If the testing excludes Duke Russell, then we’re looking at a wrongful conviction. If it nails Mr. Russell, you will have plenty of ammunition to argue he received a fair trial. I’ve read the file, Mr. Falwright, all fourteen hundred pages of the trial transcript and everything else. The conviction of Mr. Russell was based on bite-mark and hair analysis, both of which have been proven, time and again, to be wildly unreliable. I have doubts about this conviction, Mr. Falwright, and I’m ordering DNA testing for all seven hairs.”

  “I’ll appeal that order,” Chad says without bothering to stand.

  “I’m sorry. Are you trying to address the court?”

  Chad stands again and says, “I will appeal such an order.”

  “Of course you will. Why are you so opposed to DNA testing, Mr. Falwright?”

  Rosenberg and I exchange looks of sheer disbelief, with no small amount of humor thrown in. In our business, we rarely have the upper hand and almost never see a judge peel skin off a prosecutor. Our astonishment is hard to conceal.

  Chad, still standing, manages to say, “It’s just not necessary, Your Honor. Duke Russell was convicted in a fair trial by fair-minded jurors in this very courtroom. We’re just wasting time.”

  “I’m not wasting time, Mr. Falwright. But I believe you are. You’re stalling and trying to avoid the inevitable. This tampering charge is further proof of that. I’ve ordered the testing, and if you appeal my order you will only waste more time. I suggest you cooperate and let’s get it done.”

  She glares at Chad with a withering look that rattles him. When he can’t think of anything to say, she wraps up the hearing with “I want all seven pubic hairs on this desk within the hour. It would be awfully convenient for them to simply disappear.”

  “Judge, please,” Chad tries to protest. She raps the gavel and says, “Court’s adjourned.”

  * * *

  —

  CHAD, OF COURSE, does not cooperate. He waits until the last possible moment to appeal her order, and the issue is sent to the state supreme court where it could languish for a year or so. Up there the Supremes have no deadline forcing them to rule on such matters and they are notoriously slow, especially in post-conviction relief cases. Years ago they affirmed Duke’s conviction after his trial and set a date for his execution, then they denied his first effort at relief. Most appellate judges, state and federal, despise these cases because they drag on for decades. And once they decide that a defendant is guilty, they rarely change their minds, regardless of new evidence.

  And so we wait. Rosenberg and I discuss the strategy of pushing hard for a hearing before Judge Marlowe. Our fear is that old Judge Raney might recover and take his job back, though this is unlikely. He’s in his early eighties, golden years for a federal judge but a bit long in the tooth for an elected one. However, we are faced with the obvious reality that without DNA testing we cannot prevail.

  I return to Holman and death row to visit with Duke. It’s been over three months since I last saw him and delivered the news that we had found the real killer. That euphoric moment has long since passed. These days his moods swing from raw anger to deep depression. Our phone conversations have not been pleasant.

  Prison is a nightmare for those who deserve it. For those who don’t, it is a daily struggle to maintain some level of sanity. For those who suddenly learn that there is proof of their innocence yet they remain locked up, the situation is literally maddening.

  25

  I’m driving on a two-lane highway, headed east in either Mississippi or Alabama, it’s hard to say because these pine forests all look the same. Savannah is the destination in general. I haven’t been home in three weeks and I need a break. My cell buzzes and the ID says it’s Glenn Colacurci, the old lawyer in Seabrook.

  It’s not him but rather his comely little secretary, Bea, and she wants to know when I’ll be back in the area. Glenn wants to talk but would rather meet somewhere other than Seabrook.

  Three days later, I walk into The Bull, a popular bar in Gainesville. In a booth near the back, I see Bea as she waves and begins scooting out. Seated across from her and spiffed up nicely is Attorney Colacurci. Blue seersucker suit, starched white shirt, striped bow tie, suspenders.

  Bea excuses herself and I take her seat. The waitress informs us that the bartender just happens to be concocting his own special recipe of sangria and we really should try it. We order two glasses.

  “I love Gainesville,” Glenn says. “I spent seven years here in another lifetime. Great town. Great university. What’s your school, Post? Can’t remember.”

  I don’t recall mentioning it to him. “Tennessee, undergrad. Good ole Rocky Top.”

  He offers a slight grimace at this, says, “Not my favorite song.”

  “And I’m not much of a Gator fan either.”

  “Of course not.” We’ve managed to skip the weather, which in the South consumes at least the first five minutes of every casual conversation between two men before the subject turns to football, which goes on for an average of fifteen minutes. I am often almost rude in my desire to avoid wasting all this time.

  “Let’s skip the football, Glenn. That’s not why we’re here.”

  The waitress delivers two impressive glasses of pinkish sangria on ice.

  When she’s gone he says, “No, it’s not. My girl found your petition online and printed me a copy. Not much of a computer man myself. Interesting reading. Well reasoned, well argued, very convincing.”

  “Thank you. That’s what we do.”

  “Got me to thinking back some twenty years ago. After Kenny Taft got murdered, there was some speculation that that episode did not go down like Pfitzner said. A lot of rumors that Taft got ambushed by his own men, Pfitzner’s boys. Perhaps our fine sheriff was involved in the drug trade, as you suspect. Perhaps Taft knew too much. At any rate, that case has been cold for twenty years. No sign of the killers, no evidence at all.”

  I nod politely as he warms up. I hit my straw and he follows my lead.

  “Taft’s partner was a boy named Brace Gilmer, who walked away with minor injuries, seems like he may have been nicked by a bullet, but nothing serious. I knew his mother, an old client from an old lawsuit. Gilmer left town not long after the killing and never came back. Years ago I bumped into his mother and we had a nice chat. She told me then, must’ve been fifteen years ago, that Brace believed that he was also a target that night and just got lucky. He and Taft were the same age, twenty-seven, and got on well. Taft was the only black deputy and didn’t have many friends. He also knew something about the Russo murder, at least according to Gilmer. Have you talked to him by chance?”

  “We have not.” We can’t find him. Vicki can usually track down anyone in twenty-four hours, but so far Brace Gilmer has eluded us.

  “Didn’t think so. His mother moved away sometime back. I found her last week in a retirement home near Winter Haven. She’s older than me and in bad health, but we had a nice chat on the phone. You want to talk to Gilmer.”

  “Probably,” I say with restraint. Gilmer is at the top of my list these days.

  Glenn slides over one of his business cards. On the back is scribbled the name: Bruce Gilmer. The address is in Sun Valley.

  “Idaho?” I ask.

  “He was in the Marines and met a girl from there. His mother thinks he may not be too talkative. He got scared and left town a long time ago.”

  “And changed his name.”

  “Looks like it.”

  “Why would the guy’s mother give out his address if he doesn’t want to talk?” I ask.

  He circles an index finger around his ear to indicate she’s crazy. “I suppose I caught her on a good day.” He laughs like he’s really clever and pulls long and hard on his straw. I take a sip. His big nose is red and his eyes leak like a drinker’s. I start to feel the alcohol.

  He continues, “And so a few weeks ago I was having drinks with another old-fart lawyer in Seabrook, guy you don’t know. We used to be partners back in the day but he quit after his wife died and left him some money. I told him about meeting you and about your theories and such, and I gave him a copy of your petition. He says he always suspected Pfitzner got the wrong man because Pfitzner wanted the wrong man. Keith knew too much and had to be disposed of. Frankly though, Post, I just don’t remember conversations like that at the time of the murder.”

  This old gossip is of no benefit at all. After a town rushes to judgment, it’s only natural that some people take the time to reflect as the years pass. Most folks, though, are just relieved that somebody got convicted and the case is closed.

  I have what I need and am unlikely to gather any more useful information. As he drains his glass, his eyelids begin to droop. He probably drinks his lunch most days and naps throughout the afternoon.

  We shake hands and say goodbye like old friends. I offer to get the check, but he’s decided to have some more sangria. As I’m walking away, Bea appears out of nowhere, and with a big smile says she’ll see me later.

  * * *

  —

  KENNY TAFT LEFT behind a pregnant wife, Sybil, and a two-year-old child. After his death, Sybil returned to her hometown of Ocala, became a schoolteacher, remarried, and had another child.

  Like nightfall, Frankie eases into town and finds her home, a nice split-level in the suburbs. Vicki has done her research and we know that Sybil is married to a high school principal. Their home is assessed at $170,000 and taxes last year were $18,000. There is one mortgage that is eight years old. Both vehicles have bank loans. Evidently, she and her husband live a quiet life in a nice section of town.

  And Sybil does not wish to disturb her life. On the phone, she tells Frankie that she does not want to talk about her deceased husband. The tragedy of Kenny’s murder was twenty-plus years ago and it took her a long time to get over it. The fact that the killers have never been found only makes it worse. No, she knows nothing that was not known back then. Frankie presses a little and she gets upset. The line goes dead. He reports to me and we decide to back off, for now.

  * * *

  —

  DRIVING NONSTOP FOR three days from Savannah to Boise would have been easier than flying there. Because of weather somewhere in between, I sit in the Atlanta airport for thirteen hours as flights fall like dominoes. I camp out near a bar and watch the stranded walk in and, hours later, stagger out. Once again, I am thankful that alcohol is not my temptation. I eventually make it to Minneapolis where I am informed that my flight to Boise is overbooked. I stand by and stand by and am finally awarded the last seat. We arrive in Boise at 2:30 a.m. and, of course, the rental car I reserved is not available because the rental desk is closed.