Three Bodies by the River

Author’s Note: As I discuss in my blog, when I thought up the idea for Three Bodies by the River, I was intrigued by the idea of lawyers falling asleep. After doing a little research, I was surprised to find that this was an issue that had actually been the subject of debate in numerous cases.  One case in particular captured my interest, and originally wrote an afterword for the novel discussing it. From the cutting room floor, here it is.

Afterword: Do Lawyers Dream?

On January 30, 1984, in the 183^rd District Court, in Houston, Texas, a jury convicted Calvin Jerold Burdine of the murder of his former roommate and fellow security guard, W.T. “Dub” Wise.

Dub died of two knife wounds in the back. In a confession, Calvin admitted that he and his new friend, Douglas McCreight, tied up Dub with the cord from a clock radio, stuffed a sock in his mouth and hit him over the head with a lead-filled police sap. They tried, unsuccessfully, to smother Dub to death, but Dub fought back, and managed to sit up, whimpering through the sock.  Douglas made the sign of the cross and stabbed Dub in the back.  After that, according to Douglas, Calvin said, “What the hell, hand me the knife,” and took his turn making sure that Dub was dead.

Calvin and Douglas took Dub’s best stuff, including his television and his Smith and Wesson, chrome-plated revolver with a silver-colored trigger and mother of pearl grips, and left Houston.  A couple days later, Calvin and Douglas were arrested in Eureka, California, where Calvin had pawned the gun for thirty dollars. Douglas pled guilty.  He was released from prison in 1995.  Calvin decided to go to trial.  He was convicted and sentenced to death.

While arguing that Calvin should be executed by lethal injection, the prosecutor, Ned Morris, told the jury that “Sending a homosexual to the penitentiary certainly isn’t a very bad punishment [I presume he paused here, for effect] for a homosexual. . . .” Presumably, Calvin was a homosexual. Developing this theme, Prosecutor Morris used Calvin’s 1971 sodomy conviction to prove that Calvin represented “a continuing threat to society.”  Being that kind of threat was one of the legal requirements for the decision that Calvin should die instead of living his life out in prison.

Calvin’s lawyer did not object to the prosecutor’s statement about Calvin’s presumed enjoyment of the penitentiary environment.  Neither had he objected when the Morris asked whether he remained in the homosexual lifestyle voluntarily, and whether he played the role of a man or a woman during sex.  Actually, the record reflects that Calvin’s lawyer seldom interrupted the proceedings for any reason. Calvin’s lawyer was Joe Frank Cannon, a former judge in the Texas Municipal Courts with considerable experience in defending death penalty cases.  Apparently he had learned not to object too much.

At the conclusion of the trial, the trial judge asked Calvin if he wanted a new lawyer for the appeal.  Calvin replied:  “Your Honor, with the court’s permission, I would like to have Mr. Joe Cannon represent me.”

So Joe Cannon argued Calvin’s appeal, which raised seventeen points of error, but did not mention Prosecutor Morris’ remark to the jury about the threat Calvin’s sexuality represented to society.  On October 15, 1986, the Texas Supreme Court upheld Calvin’s conviction and death penalty. 

A Houston judge, Jay Burnett, stayed Calvin’s execution in July 1987.  Nevertheless, on the morning of August 3, 1987, the guards on death row told Calvin to prepare for his execution that night.  Calvin wrote his will, took a final shower and ordered his last meal.  He was not permitted to telephone his attorney, and the guards did not accept the authenticity of the Calvin’s copy of the stay order. Prison officials found their copy of Judge Burnett’s order a few hours prior to the scheduled execution and returned Calvin to his cell on death row.

In 1995, eleven years after the conviction, Judge Burnett held new hearings because of Calvin’s surprising new claim that his attorney Joe Cannon had been sleeping during his initial trial. A new lawyer presented the testimony of three jurors and the clerk of court, who all said they had seen Cannon sleeping while prosecutor Morris presented his witnesses. Juror Myra Davis said “As soon as the prosecutor would get on maybe a long spiel of talk for a while, it would start.”  Rose Marie Straight, the head clerk of the 183^rd District Court testified “He fell asleep and was asleep for long periods of time during the questioning of witnesses.”

Joe Cannon claimed he had not been sleeping, but he allowed he had a tendency to close his eyes when thinking, and to nod his head during periods of deep concentration.

Head Clerk Rose Marie Straight returned to the witness stand to rebut Cannon’s testimony, and said “I sat there and I watched him for a while and that’s when I knew that he was actually asleep.”  She added: “I know Joe Cannon.  I had seen him before.  I knew that he had this problem.”

Philip Scardino, an attorney who had been Cannon’s co-counsel during the 1979 murder trial of another defendant, Carl Johnson, testified that Cannon repeatedly fell asleep during the questioning of jurors in Johnson’s trial.  (The State of Texas executed Carl Johnson on September 19, 1995.)

Prosecutor Ned Morris said he did not see Cannon sleeping during trial, but apparently he was beginning to feel that the game was too easy. James Pillow, the Court Coordinator for the 183^rd District Court, testified that Prosecutor Morris had come to him in private after Calvin’s trial to ask that Joe Cannon not be appointed to any more capital cases.

Cannon brushed off reporters outside the hearing about his consciousness.  “I’ve had a rough day and I’m tired, and that’s all I’m going to say about it,” he said.

 On April 3, 1995 Judge Burnett ruled that Cannon had been sleeping during Calvin’s trial, and recommended to the Texas Court of Criminal Appeals that an order be issued setting Calvin free for a new trial. On April 11, 1995, Calvin came within 13 hours of receiving a lethal injection, but Judge Burnett issued another stay order.

The Texas Court of Criminal Appeals agreed that Joe Cannon had been sleeping, but declined to order a new trial.  They felt that the result would have been the same if Cannon been awake.

In 1999, Judge David Hittner, a federal court judge in Houston, considered Calvin’s claims about Cannon.  His opinion reflects his worry that overturning the trial for mere sleepiness would result in too many verdicts being thrown out:

“It is true that there is no bright line that distinguishes unconsciousness from sleep. Certain stages of drowsiness overcome many individuals, and may or may not affect their capabilities at the given moment, depending on the depth of the lethargy.”

Judge Hittner carefully reviewed the two-pronged tests and three-step analyses developed in numerous previous sleeping counsel cases.  After reciting the facts, however, he decided that “Cannon was actually unconscious,” and that “a sleeping counsel is equivalent to no counsel at all.”  Hittner issued a writ of habeus corpus on September 29, 1999.

Asked about Calvin’s case during a March 2000 presidential debate, George W. Bush, then the governor of Texas, stated that Calvin’s case showed that “the system worked.”

  Prosecutor Ned Morris had retired, but the Texas Attorney General stepped in, and would not let Judge Hittner’s writ of habeus corpus stand.  The Attorney General appealed to the Fifth Circuit Court of Appeals, continuing to argue that Cannon’s sleeping really didn’t matter.

Initially, the Fifth Circuit agreed with the Attorney General, and in 2000 it reinstated the conviction, finding that “a determination of precisely when counsel slept has been rendered impossible due to the passage of time and the lack of any indication in the trial transcript . . . as to when the conduct occurred.”

In 2001, a larger panel of the Fifth Circuit took over the case and batted it about for 41 pages.  A group of the judges was especially bothered by Calvin’s media interviews, including one with Good Morning America where he explained how he had been trying to wake Joe Cannon up during trial.  If that was true, then why had he waited until eleven years after his conviction to bring this up? Why had he asked Joe Cannon to represent him on appeal?

Ultimately, however, what one judge called his “abhorrence at the spectacle of Cannon sleeping during a capital murder trial” became too great to be further condoned. A majority of the panel decided there was enough substantiation that Cannon had been sleeping during the trial, and when your lawyer is sleeping you are effectively denied your right to counsel. This became the law of the land on June 3, 2002, when the Supreme Court declined to intervene.

By the time Calvin’s case returned to Houston later in 2002, nearly twenty years after his original conviction, public interest lawyers rallied to represent him at the new trial that had been ordered.  Now, however, he needed to confront an uncomfortable fact that had become lost in the furor over whether Joe Cannon had been sleeping at trial:  the evidence regarding Dub Wise’s death.  Initially Calvin had confessed to the killing, and Joe Cannon’s motion to suppress the confession had been denied.  It seemed unlikely there would be a different outcome to that motion at the new trial. While Calvin had claimed at trial that he did not stab Dub, he did admit on cross-examination that it was he who told his accomplice Douglas the location of Dub’s gun.  Moreover, he admitted he had warned Douglas to take Dub to the back of the trailer if he was going to do anything because Dub was likely to “scream like a stuck hog.”  At least some of that testimony would probably end up before a new jury.

Rather than face the possibility of a second death sentence, Calvin pled guilty and agreed to serve a life sentence.

Whether Joe Cannon was sleeping or just concentrating will never be absolutely determined, but the evidence certainly points in that direction.

Joe Cannon is long dead now.

But as we know now, there are other lawyers who practice law in the risky regions between unconsciousness and sleep.

 Author’s Note: Originally, Three Bodies by the River had many points of view.  Eventually these were all abandoned in favor of a first-person, present-tense narrator. Such choices must be made. But I was sad to lose the voice and point of view of JD, who is, for me, one of the book’s best characters. Even this deleted scene, as presented here, has some deletions, and in presenting this, I hated to make those cuts. Maybe someday there will be a longer version of the book. Or one just about JD.

The one man who knows better than anyone else how Oddyssey.com really makes its money moves his arm around the bare skin a woman whose real first name is Amanda.  

Although he holds much of her naked body in his arms, he does not know Amanda’s name. The name Amanda represents an identity she no longer claims. The man doesn’t worry much about this.  He has a tendency to call the people he cares for on the River by generic animal names that match their looks.  He calls Amanda “Sparrow.” Her bones have folded in his arms like those of a wounded little bird.

The man who cradles Sparrow doesn’t give out his real name either.  Out here on the River, the only name he gives out is a partial list of his initials, which are J.C.D. His middle name is Christopher, but he wants nothing to do with baby Jesus apparitions or with any God for that matter.  So he tells people on the River to just call him “JD.”

Sparrow lays by JD inside two sleeping bags, one laid across the ground, the other on top.  Their embrace is further concealed within one of the special tents JD has designed and engineered to fit into the underpasses beneath the roads and freeways that cross the L.A. River. JD is the kind of genius who can learn what he needs of any discipline to accomplish the needs of his quirky and rebellious desires.

There are little wedges beneath the roads that pass over it, with concrete sloping down to a bike path set up by the politicians who periodically think the River should have a higher purpose. JD has constructed neat little tents that fit into these wedges of the underpasses. The secret tents provide shelter during the night, then fold and disappear into nothingness before the police come by with their bicycle or horseback patrols in the morning.

When he needs to, J.D. disappears into his tents on the River.  He has learned the art of disappearing into L.A., instead of escaping out of it.

JD understands the people who live on this River. He has the kind of genius that can sympathize with the simplicity of lawlessness, so he gives away his tents to the migrant kindred souls who live out here. His tents are his defiant form of philanthropy.  He knows these wretches want to disappear, and he has taught them how to dissolve with him. He knows that the River is the only home in which they can feel content, because it has often been the only place where he can be truly at peace.

JD’s genius has given him other homes, but the River is the home he loves best.  Here, he is the king of a small army of meth-addicts, schizophrenics and the defiantly homeless who embrace the anarchy of the River.  JD holds this army together with the gift of his tents, and with his capacity to care for and protect those who have shed the identities they hold in the world outside the River.

Sometimes he loves one of them more than the others.

He had so loved Sparrow last night.  Sparrow’s body is gaunt.  She is probably in her late 20’s, but she looks nearly 40.  In the darkness and isolation of his tent, she had been young again.  Now JD turns over the loose skin near her waistline, where she once had just the right amount of body fat to make her perfect for the photographers who had found the internet’s new market for young flesh. She had lost even that income, and everything else, to the meth she loved more than life itself. There had been no time to make money some other way.  She had drifted to the River, and now lay in JD’s arms.

Sparrow twitches in her sleep.  She has high cheek bones, as beautifully drawn as those of any of the young actresses.  The skin of her cheeks rises with the tension of her dream, and JD sees the wave of age lines that have come too early.  There it is, brown and encrusted, the first dark spot on her cheek.  She had covered it last night with cheap makeup.

I love her, he thinks, God knows I do.  Course where the fuck is he? Apparition of the little baby Jesus, speak to me now.  You know what, don’t speak at all.  Just heal this poor sick thing.  How’s that for a prayer?

When the meth has you there can be no healing.  He had tried it once himself, but had given it up when he realized it was the kind of high you can embrace only after you stop wanting to live. He had left what was left in a little cupboard in his closet in the real world, with his guns.  He was going to finish it someday.

He had known it wasn’t safe to sleep with Sparrow last night. She had been in the tent, and they had been talking. He had been explaining his latest fight with God to her when he realized she had stopped following what he was saying. He had tried to figure out what she was thinking and he realized that she wanted him to kiss her.  So he did.  Then she wrapped her bony arms around his head.

Even as Sparrow had taken him in ways that debased her, she told him how much she loved it. She told him over and over. He supposed it was her routine now, a routine she had been practicing and perfecting with the men who give her the meth.  For the meth would come only after they came, and they would only come that way. JD knew all this, but he let her do it anyway.  It was not the first time.

He had slept with Sparrow despite his contempt for himself, and it left him with even more contempt.  This morning he had contempt for the God who had failed to protect her last night, and the nights before that.  This must be the last time, he thinks now. I need to free her. Her sex is all she has left to sell to keep herself alive.

JD withdraws from Sparrow’s body.  He pulls the tent switch.  The front of the tent opens up as the canvas drops down. The tents were long triangles, with three bendable poles, perfectly measured to fit into the shape of the slope down and away from the freeway.  The entire front comes running down, and it was as if the tent wasn’t there at all.  JD decides not to wake her. Sparrow will sleep, safe and invisible.

JD walks out and down the slope of the concrete to the River. He has brought only a gun, a .38, affixed by a holster over his shoulder.  A sheer Façonnable jacket drapes over the shoulder.  Façonnable is a line of Beverly Hills clothes, from France.  JD finds the whole notion of wearing clothing from France to be hopelessly effete, but he also thinks he likes the clothes anyway, and for that reason, dammit, he’s going to wear them.

JD has a whole closetful of Façonnable shirts and slacks back at his loft condo in the central L.A. art district. He shares the condo with Peace, his contented girlfriend, who sits there painting in the studio day after day.

Peace is JD’s lifelong love.  Lifelong—it has been five years, but that is pretty god damn long for someone like JD.  Five years is a lifetime in L.A., long enough to know whether your fortune will be made or whether you will just be one of the people who fill the freeways up each day.

Peace never complains.  She is perfectly happy painting in the condo, but she is only learning to live with the fact a life with her will never be enough for JD.

JD likes thinking of Peace back at the condo, but he never feels truly alive except out on this River, with his adoring army of River people. Here, he feels real power.  He feels the River and his people like they are part of his body. Whenever there is a disturbance anywhere on the River, his people get word to him, swiftly and in person. Sure, there are a few cellphones in his army. These are “borrowed” from the off-River folk when needed, and discarded after a day or two.  But in the end, the River people know that nothing of any substance is to be passed over any form of electronic communication.  Nothing of substance should pass, except between two people, completely alone.

The River People know this, for JD has taught it to them. It is written nowhere because nothing is written down.

Looking north for the first time this morning, JD knows instantly that something is wrong on the River.  He had felt it while lying next to Sparrow.  He looks briefly at the full moon as it stares down at the slowly moving sludge of brown water moving through the tules.  The River stinks here, but that is why it is the safest spot.

He waits.  He knows there will be word soon.  Looking north, he sees it.  The bicycle surges up from under the next overpass to the north, jumping from the path briefly as it rises over the hump that shows where the dip in the path at the overpass ends.  The bike regains the level portion of the path.  The rider is pedaling hard.  There is news along the River, and it is coming to him fast and in person, just as it should.