The Black Rabbit: A Novel About the Trial and Hanging of Saddam Hussein

Hamlet.

Chapter 1

October 2005—Arlington, VA

All Rise!

The Honorable Leon Culpepper emerged from the old wooden doors behind the bench. Because of my friend Buzz, who capitalizes on every conversational opportunity for a sex-related knee-slapper, I share a nervous laugh with myself whenever a judge enters the courtroom, imagining Buzz sitting in front of an episode of Law and Order and smirking at me when the bailiff calls out All Rise. On that day, though, the announcement did not disturb my grim demeanor. My client, Martino Navarro, was about to be sentenced for having sex with his twelve-year-old stepdaughter.

He was innocent, but the DNA lab, and the jury, had disagreed. Martino’s case presented a uniquely bad set of circumstances for him, and by extension for me, because Martino found it quite impossible to show a shred of remorse for a crime he hadn’t committed. So I was stuck with one of the worst sentencing arguments an attorney can have: my client, having been convicted by a jury, should be given a light sentence because he’s innocent.

The good arguments are well known and well worn. The client was abused as a child, the client had shown extraordinary remorse and saved the victim the pain of going through a trial, the client is ready and willing to engage in years of counseling, the client has lived an otherwise successful life. These are the arguments the judge and the victim’s family hear again and again. But Martino had testified at his own trial, quite angrily, that he’d never touched his stepdaughter. The semen found in his stepdaughter’s vagina after she reported the crime, which DNA tests proved one in six billion times more likely to have come from Martino Navarro than any other person on the planet, convinced the jury differently. As the judge sat down, I mulled over my remarks one more time. Martino stood next to me. His bearing suggested clueless anger mixed with a remaining self-righteous hope that this hearing would exonerate him.

I knew I had not served Martino well as his attorney, having failed to convince him to plead guilty in the face of overwhelming evidence, and allowing him to provide an objectively ridiculous story to the jury. These decisions were his, but I knew that other lawyers watching the case, as well as Judge Culpepper, would likely believe that I’d let my client down by not being strong enough with him. Client Control, they would call it. And because I lacked it with Martino, he would likely be sentenced to the penitentiary for a very long time.

The thing was, despite appearances, my problem with Martino’s case was not one of client control alone. Perhaps I should have leaned on him harder to plead guilty, considering the strength of the evidence, but I believed him. You just get a feeling, and though there was nothing I could do to shake the fact that Martino’s semen was inside that girl, I felt deep down he didn’t rape her. Call it naïve that I would take a man’s word over scientific evidence, especially since I’d represented thousands of clients and was well aware that most of them were guilty. I’d heard it all, but with Martino, something inside me would never accept the fact that he did it.

Therefore, instead of the path of least resistance, Martino and I took the evidence head on, suggesting every possible theory for how his semen could have been planted where it wasn’t supposed to be. We had failed. And so, as the judge took the bench, I prepared to join my client in the honorable choice of maintaining his innocence instead of begging for mercy for a crime he didn’t commit. I could feel the courtroom behind me and read its mind—What the hell is he doing, trying to get his client life in prison??

You may be seated, Culpepper said to the courtroom.

I looked over at Martino, with his messy hair and the rumpled collar of his jail jumpsuit. He clenched his face in deadly determination, his stern grimace contrasting with his mussed appearance. He nodded to me expectantly.

Mr. Heinlein, have you had an opportunity to review the pre-sentence report with your client? He referred to a report prepared by a probation officer for every defendant facing a sentencing hearing.

Yes, Judge.

Do you have any corrections you wish me to make to the report?

I do, your honor. I stood. If you’ll turn to page eleven, the section entitled ‘defendant’s version of events.’ The probation officer has included a narrative of what Mr. Navarro said to him about the case. Our position is that this is not a complete and accurate version of what Mr. Navarro said to the probation officer about the case.

Which part do you contest?

In the second paragraph, the probation officer noted that Mr. Navarro said that he was, quote, falsely convicted by this kangaroo court and that lying little bitch, end quote. My position is that the narrative is incomplete because it does not note that Mr. Navarro was under extreme stress when he made the statement. He had just seen the psychiatrist for depression and anxiety, and had threatened suicide only the day before. Now, on the proper medication, he deeply regrets his insults. The probation officer knew all of this, and did not include it in the report.

I will make your addition, Mr. Heinlein, but it’s no secret that this defendant has disdain for this court as well as for the girl he raped. He said the same during his own sworn testimony. Anything else?

No, your honor.

Does the government have any evidence to present for sentencing?

Yes, Judge. The prosecutor, John Welch, stood and looked towards the back of the courtroom, nodding to a deputy by the entrance. We call Ernestine Jenkins, the mother of the victim in this case, Tammy Jenkins. Welch was six foot five and a mountain of muscle. He’d spent several years as a cop before law school, a fact that earned him a special kind of respect. Unlike some prosecutors, he dealt reasonably with most defendants, which gave him an extraordinary air of credibility on the rare occasion when he decided to blast somebody.

Welch, as he’d explained to me many times, put criminal defendants into two basic categories. The largest category was what Welch termed the knuckleheads, basically good people who got into trouble because they’d done something stupid. Car thieves, drug addicts, and all forms of petty criminals easily fit into the knucklehead category, which saved them from Welch’s wrath. He never tried to pull the trigger on a knucklehead. Short jail sentences and probation. The second category was bad actors, irredeemably bad persons who preyed on society. Big drug dealers, recidivist wife beaters, cold-blooded murderers, and, naturally, child molesters like Martino Navarro were bad actors. So Welch turned his massive frame back to face the court, and with a look of anticipation, watched little Tammy’s mother approach the witness stand to be sworn in. I leaned to Martino and reminded him not to say a word and to wipe away his angry scowl. The effort only made him look kind of crazy.

State your name for the court. Welch walked to the witness stand with a box of Kleenex as Ms. Jenkins began to cry.

Ernestine Jenkins.

What relation are you to Tammy Jenkins?

Her mother.

What relation are you to the defendant?

Unfortunately, he’s still my husband, but not for long. She sobbed.

When did you first meet the defendant?

About three years ago at my church.

How long after meeting him did you marry him?

About six months.

Can you tell the court, in your own words, what initially drew you to the defendant?

Through her tears, she glared at Martino with such contempt that he looked away with a jerk of his head. He was crying too.

He was such a nice man. He had a good job at a pharmacy and spent so much of his time working with the youth group at the church. I believed he was one of the kindest men I’d ever met.

During the time you dated the defendant, but before you married him, did he ever tell you that he had been convicted of aggravated sexual battery?

Objection, your honor. I jumped to the podium. We should have some context. The aggravated sexual battery conviction was more than thirty years ago, when Mr. Navarro was seventeen years old. It doesn’t even show up on his record because he was a juvenile at the time.

Objection overruled, you can argue that later if you want to. Ms. Jenkins, you may answer the question.

Never. I never dreamed he was a sex criminal.

Did he ever tell you, during this time period, that he was medicated for depression?

Never.

Did he ever tell you, during this time period, that he had been committed to a mental hospital only five years before you were married?

I rose again. Objection. That’s misleading. He voluntarily entered a hospital because of a bona fide mental health problem. He got the attention he needed and came out.

Overruled. You’ll have your turn.

I thought he was sane. Ms. Jenkins, still crying, now looked down.

Would any of these things have affected your decision about whether to marry him?

Ms. Jenkins hesitated. I don’t know. I’ve always been a very trusting person. Until now. The answer had the perfect effect. She blamed herself, and was, like her daughter, a victim of Martino’s crime.

Ms. Jenkins, when did your daughter first tell you that the defendant was forcing her to have sex with him?

About nine months ago.

And what was your initial reaction?

Ms. Jenkins cried hard now. She shook with sadness and let out a miserably soft wail before answering. I didn’t believe her. Martino was such a wonderful man and loved children. I never believed it possible. And I know how preteens can act out. She lowered her head all the way to the rail of the witness stand for a moment, and then sat up. I’ll never forgive myself.

That’s all the questions I have, Ms. Jenkins. Please answer Mr. Heinlein’s questions.

No questions, I said.

I presented letters from family and friends who believed Martino had lived an honorable life. I called a minister from the church to testify that he had never received or heard of a complaint from any children in the youth group about Martino’s conduct. I called a witness named Emily Tolfus, who testified that thirty-odd years ago she’d made a complaint of sexual assault against Martino while they were classmates at Madison High School. Martino had groped her behind the gym at a dance while he was drunk. He’d apologized the next day, but the charges had already been filed. He’d pled guilty in juvenile court and received six months probation. Years later, Martino had sought out Tolfus and apologized. She didn’t associate with him regularly, but considered him forgiven. She’d been drunk when it happened and, she added with unexpected heroism, she’d probably played some part in what happened.

Without some major-league ploy, Martino was obviously about to get hammered. I was ready to play the only card we’d ever really had, at least since the DNA certificate had proven that Martino’s semen had been inside Tammy Jenkins.

I call Mr. Jack Glick. Mr. Glick entered the courtroom and approached the witness stand.

Objection, your honor, Welch said. I have no idea who this witness is or what he’s going to say. Is this expert testimony? A friend? I’m not trying to limit this defendant’s right to call witnesses but can we have some kind of proffer of what he’ll be testifying about? Welch stood right next to me now and, since he was nine inches taller than me and more than a hundred pounds heavier, I felt as I had throughout Martino’s case. Small.

What will this witness testify about, Mr. Heinlein? Culpepper asked.

This was the tricky part. I hadn’t been sure that Welch would object before Glick even took the stand, so I’d hoped to weasel in some of his testimony before having to explain myself. Your honor, Mr. Glick is a private investigator and possesses evidence of my client’s innocence that should be considered by the court.

Welch’s head shot towards me. Judge, the trial is over. Evidence of innocence should have been presented then. And besides, this was a DNA match with a twelve-year-old girl. Further evidence, especially at this point, is, frankly, an insult to the court, to the jury, and to the victims.

Culpepper thought for a second, and then, as I’d expected, took the no-nonsense approach. What’s he gonna say?

Mr. Glick is a former police officer in Washington, DC and a licensed polygraph examiner. He’ll testify that Mr. Navarro passed a polygraph exam regarding his guilt in this case.

Welch jumped to his feet again. Objection! Evidence of polygraph results is never admissible and isn’t reliable and Mr. Heinlein knows it. How many times do we have to point out that this defendant’s guilt is a certainty? If I didn’t have the utmost trust in this court to ignore what Mr. Heinlein just said, I’d have to ask for a mistrial as to sentencing. Because I do think that the court will properly ignore this issue, I ask only that Mr. Glick not testify. Welch shot me a nasty look before sitting down.

Mr. Heinlein, I’m not going to listen to evidence about a polygraph. That evidence wouldn’t be compelling anyway in view of the overwhelming evidence of guilt in this case. Objection sustained.

My last bit of evidence was a small binder containing a documentary history of Martino’s life, prepared by my friend and supervisor in the public defender’s office, Sophia. Martino’s diplomas. His awards. Photographs of Martino at church events and community functions. At the end, the binder contained a photograph of a ten-year-old Martino smiling. It was a remarkable photograph in the respect that the child’s face—the jaw line, the nose, the soft, innocent eyes—were the same face one saw on the middle- aged man. Some people’s essential look never changed with age, and I could even see the clueless confidence of the adult Martino in the little boy’s eyes, the unwillingness to believe that the world could go so wrong. Judge Culpepper flopped his way through the binder hastily. His eyes glanced up at the clock before he invited Welch to begin the government’s side of the sentencing argument.

Welch argued to the court about the magnitude of Martino’s crime. The loss of trust and innocence, and the lifelong baggage he had selfishly handed to Tammy and Ernestine Jenkins. With subtle perfection, he didn’t suggest a specific sentence but made it clear that no sentence would be enough. To end things off, he pointed out that Martino had compounded his crime by perjuring himself and daring to assail the credibility of Tammy Jenkins, not to mention the forensic scientist and nurse who had collected the vaginal swabs from Tammy Jenkins. Even today, Welch concluded, this defendant makes matters worse with a final ridiculous attempt to declare his innocence.

In my argument, I talked about lingering (as opposed to reasonable) doubt. I talked about the fact that Tammy Welch had initially reported to the police that Martino had forced sex on her in his bedroom and later testified that incidents had happened only in her bedroom. I talked about her prior complaint of child abuse against her own mother, a complaint Tammy herself had later admitted she fabricated because her mother had grounded her for a month for smoking marijuana. I mentioned how Ernestine Jenkins would gain ownership of Martino’s almost-paid-for $400,000 home when he went to prison. I mentioned a trial witness, Ernestine’s cousin, who’d testified that Ernestine had the house appraised two days after Martino’s arrest.

Ernestine called out from the gallery behind me. Liar!

Martino spoke last. He read from a piece of paper in slightly broken English and barely controlled rage. Your honor, I respect you and this court. I tell you, man to man, and before God, that I’m innocent of this crime and have been framed in a way I don’t understand. My entire life has been destroyed and my reputation ruined. I now will go to prison where I’ll suffer unimaginable horrors despite my innocence. My last hope is that somehow, someday, the truth of these matters will come to light. If not, I’m left with nothing but the hope that in the next world justice will be done. Thank you.

Ernestine punctuated Martino’s speech too. Liar!

Culpepper paused. Mr. Navarro, I have absolutely no doubt that you’re guilty, based on the scientific evidence presented at your trial, and nothing I’ve heard today changes my mind. I also believe you have no remorse for what you’ve done and your strategy today, again to attack the credibility of this little girl, shows me that you’re truly a dangerous man. I sentence you to life. Call the next case.

Hatred puckered Martino’s face as he looked back at Ernestine, who, along with a dozen others in the courtroom, jeered at him. While the deputies led Martino away, I gathered my papers. I looked back and saw my colleague Sophia at the rear of the courtroom. She smiled sweetly and shrugged. I waited for the courtroom to clear and was happy to find Sophia waiting for me outside.

Tough one. She put her arm around me and led me out of the courthouse. Still worried about whether Martino did it or not?

I didn’t respond.

Let’s get a drink, she said. As we walked down the courthouse steps, she turned away from the office and towards the bar, bouncing ahead of me, her long black ponytail dancing from side to side in the early afternoon sun.

Sophia believed that the key to winning a jury trial was to identify and articulate the interests, as she called them. People needed to know why your client was being falsely accused. It wasn’t enough to convince the jury that the government had a disorganized, shoddy, or even a weak case. With a violent crime, she’d said, "they need to know why before they’ll acquit. Who gains?"

I thought I had accomplished that goal successfully with Martino. His wife had a motive to lie.

It’s okay. Sophia opened the door to the bar. You were up against a fucking DNA result.

Chapter 2

Two whiskeys, Sophia said.

Dave, the Vietnamese owner of the Leprechaun, set them in front of us. You look like shit, Mal.

Sophia lifted her glass. He is like shit.

Dave placed his hands on the bar and gave me the little smile he always did. The place was dead, the lull between lunch and happy hour. I could tell he was about to enlighten me with a piece of Eastern philosophy, a dumbed-down analogy, a Buddhist teaching tool for meatheads. I usually liked Dave’s unlimited supply of life lessons but didn’t feel like hearing one that day.

I know a guy, he said, a tennis pro, who played and studied tennis for years before he finally noticed the most important lesson about tennis while watching Andre Agassi play Michael Chang at the Sovran Bank Classic back in 1991.

Didn’t you used to be a tennis pro, Dave? Sophia sipped from her shot glass.

So he’s watching the match and sees these two guys are pretty evenly matched. Long points, long sets, lots of deuces and close calls. And he had great seats, right on the court. After each point, you just see it—the elation on the face of the winner, anguish for the loser. At one point, Agassi dives for a ball, misses, pushes himself up and makes just one second of eye contact with this tennis pro, who kind of knows Andre. Andre’s eyes are so full of intense, burning defiance that the guy literally flinches backwards. Minutes later, Andre nails the ball right into Michael at the net and turns around, pumping his racket in the air. But now this guy starts noticing the umpire, sitting calmly in his chair, just watching the rallies and ruling on each one. Only the art of observation matters, not where the ball lands.

Dave walked off to serve a Guinness to the only other customer in the bar.

What’s the point of this story and when’s he gonna get to it? I asked Sophia.

It’s over, thank God, she said.

Hey, Dave, I said when he got back, what’s the fucking point?

The point is, Malcolm, you wanna be more like the umpire.

Sophia blew cigarette smoke toward the ceiling. She always held her hand slightly above her head while she smoked, as if she didn’t want to get the smoke on herself or anyone else. It made her look like someone from an Egyptian painting. The point is, Dave, Malcolm’s a fucking American; he’s infatuated with the players.

Sophia’s phone rang. She listened briefly and hung up. Marilyn needs you.

The Director of the Public Defender’s Office for Arlington County, Virginia. A great lawyer, a great boss, and person whose calls were answered without hesitation by lawyers like me—those at the bottom of an already low totem pole.

What happened to the rest of the day off, I said.

"I’m gonna wait here while you go see what she wants.