Little nodded in agreement.
“And the judge who conducted the hearing disagreed with you about the quality of your representation at trial.”
“He was wrong.”
“Uh, yes, I know that’s your position, but we have a problem. The United States Supreme Court wrote an opinion in a case called Strickland versus Washington. In that case they said that-and I’ll quote this”-Brad said, pulling a copy of the opinion out of his file-“‘a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in the light of all the circumstances, the identified acts or omissions were outside the range of professionally competent assistance…’”
“I’ve read Strickland,” Little said.
“Good. Then you understand that you can’t just accuse your lawyer of screwing up. You have to tell the court very specifically what he did that constituted ineffective assistance.”
“I did. I told my lawyer that I had an alibi for the time that I was accused of kidnapping and murdering Laurie Erickson and he didn’t investigate my claim.”
“Okay, that’s the problem. There’s no question that your lawyer had an absolute duty to make a reasonable investigation of facts in your case that could establish an alibi-and he testified that you said you had an alibi-but he said that you didn’t give him any facts he could investigate. I’ve read the transcript of your habeas corpus hearing. The judge asked you where you were and you avoided answering the question. So, I guess the bottom line is that I don’t see any way we can win your case on appeal because the Ninth Circuit is just going to say that you didn’t make an adequate record to show your lawyer did anything wrong.”
“I still want to appeal.”
“Maybe I didn’t make myself clear, Mr. Little. I read the transcript of your case. Then I did a lot of research on this issue. After that I conferred with other attorneys in the firm. No one thinks you can win. It would be a waste of time to pursue your appeal.”
Little wasn’t smiling now. “How long have you been out of law school, Mr. Miller?”
“Uh, not that long.”
“And how many criminal cases have you handled?”
“Well, actually, this is my first.”
Little nodded. “I thought so. Tell me, are you still new enough to your chosen profession to believe in the pursuit of Justice?”
“Sure, of course.”
“And I take it that you wouldn’t approve of an innocent man being framed for something he didn’t do?”
“Of course not.”
“And you wouldn’t want an innocent man to be executed for a crime he didn’t commit.”
“No one would want that.”
“The person who murdered Laurie Erickson might.”
Brad frowned. “Are you saying you didn’t kill Miss Erickson?”
Little kept his eyes locked on Brad’s and nodded slowly.
“So you really have an alibi for the time she disappeared?” Brad said even though he didn’t believe a word of his client’s assertion.
“Yes, I do.”
“Why the big secret? If you had evidence that would have led to your acquittal why didn’t you tell your lawyer at trial or explain it to the judge at the hearing?”
“That’s a little tricky.”
“Look, I don’t want to sound judgmental but you seem to be evading my questions about your alibi in the same way you avoided answering the judge’s questions at your hearing. If you’re not honest with me I can’t help you.”
“Here’s my problem, Mr. Miller. There was a witness who could clear me completely, but my involvement with her would implicate me in another crime.”
“Mr. Little, what do you have to lose? You’re on death row not only for the murder of Laurie Erickson. You were sentenced to death for two other murders. The Supreme Court affirmed those convictions a week after your habeas corpus hearing. Even if I win this case, you’ll still be executed.”
“But not for something I didn’t do. It’s a matter of honor, Mr. Miller.”
“Okay, I can see where you wouldn’t want to let someone get away with framing you. What I don’t understand is why you didn’t tell your lawyer your alibi if you feel so strongly about this. Anything you told him would have been confidential, even if you confessed to another crime.”
“I assume that would hold for you, too?”
“Yes. I’m your attorney, so everything you tell me is confidential. If you tell me about a crime you’ve committed I’m forbidden by law to reveal that confidence to anyone. And I’m sure your trial attorney told you the same thing. So, why didn’t you tell him the name of the witness?”
“Because he’s an idiot. The court stuck me with a complete incompetent. I had no faith that he would follow up properly if I confided in him. And my other cases were on appeal, so I didn’t want to incriminate myself in another crime until I knew what was going to happen in those cases.”
Little hesitated. Brad could see he was going through some kind of internal struggle.
“There’s another thing,” Little said. “In order to prove my innocence I’m going to have to part with some cherished keepsakes. I just couldn’t give them up to that moron. Now there doesn’t appear to be a chance I’ll ever see them again unless it’s in court and they’re introduced as evidence. So I have nothing to lose by telling you about them.”
“You’ve just met me, Mr. Little. Why do you think I’m any smarter than your trial attorney?”
“Because the firm of Reed, Briggs, Stephens, Stottlemeyer and Compton saw fit to hire you, and they don’t employ idiots.”
Brad sighed. “I appreciate the vote of confidence, but it may be too late for me to help you. I’m handling your appeal. An appeal is based on the record of the court below. We can’t introduce new evidence in the Ninth Circuit.”
“What if you could prove that I’m innocent? The authorities would listen to a lawyer from Reed, Briggs. If the police were convinced that I didn’t kill Laurie Erickson the governor would pardon me, wouldn’t he?”
“I really don’t know. I’m good at research, which is why I was assigned your case, but I’m not really up on criminal law or procedure. There probably is some way to help you if you can give me a way to prove you didn’t commit the murder.”
Little was quiet for a moment. Brad could almost hear him weighing the pros and cons of confiding in his new attorney.
“All right, I’ll take a chance. At this point, as you so aptly pointed out, I’ve got nothing to lose.” Little leaned forward. “On the night Laurie Erickson was kidnapped and murdered I was with somebody.”
“So you’ve said, but I need a name and a way to contact the witness.”
“Her name is Peggy Farmer.”
Brad wrote the name down on his legal pad. “Do you know how I can find her?” he asked.
“Yes, I do. She’s in the Deschutes National Forest about five miles from the parking lot of the Reynolds Campgound. On the evening the police insist I was kidnapping Laurie Erickson I was disemboweling Peggy.”
Brad’s stomach shifted and he felt like he might throw up. Little noticed his discomfort and smiled.
“She was camping with her boyfriend. They were deep in the woods; a very athletic couple. I followed them, eliminated her friend while he was sleeping, and played with Peggy until I grew bored. The confusion arises because no one has discovered the bodies. They’re listed as missing. There have been search parties, but I did a very good job of hiding them.”
“Mr. Little,” Brad said, trying very hard to keep his voice steady, “if Miss Farmer is dead how can she help your alibi defense?”
“You know about my pinkie collection?”