was originally released in October 2005 under the title Death Row Defender.
Death Row Defender
won two awards prior to publication, and then won
the 2006 "Eppie" for
BEST MIYSTERY published
in e-book from "EPIC," the organization for authors
About CLEARWATER RUN
IT HAS BEEN five years since Jon Clayton was convicted of the rape and execution-style murder of Donella Nash. Clayton still swears he is innocent, but he had a record of violence and the bullet found in Nash’s head came from his pistol. It is springtime in an election year and, as part of the Governor’s war on crime, Jon Clayton is scheduled to be executed in October.
Attorney Woody Thomas, a former Public Defender, is appointed by the court to pursue Clayton’s final appeal. Woody relives the trial through the transcripts, then locates and questions the witnesses. The case looks solid, but federal agents begin to follow Woody, local police try to frame him, and someone is trying to kill him.
As Woody’s troubles mount, the murder conviction begins to fall apart and the Governor signs Claytons’ death warrant – five months early.
From the novel
Chapter 1 — Florida State Prison
“I DIDN’T RAPE that girl, and I didn’t kill her. In fact, I never even saw that girl before in my life. I know you’ve heard this from every client you’ve represented, but...I’m innocent.” Jon Clayton took a breath, leaned forward and looking me straight in the eye said, “Mr. Thomas...I swear to God...I...didn’t...do it.”
“Well, Jon, you’re wrong. I don’t hear that from every client.” I shrugged and added, “A lot of them, yes, but not every one. So my question is, if you didn’t kill her, how’d you end up here?”
“I don’t know, sir. I went to trial. I got convicted. All I know for sure is I didn’t do it,” he said, shaking his head. His gaze never wavering, he sighed and said, “My attorney said it was the bullet that convicted me. They said the bullet they found in the girl matched the gun I was arrested with.”
“Any ideas how that might’ve happened?” I asked, knowing prisoners have plenty of time to think of answers to such questions.
“Either someone else used the pistol and put it back in my car, or the cops got the pistols mixed up, or maybe they just plain lied about it...I don’t know,” he said, “but I swear to God I didn’t shoot that girl. I didn’t kill her.”
Good stock answers. We criminal lawyers call it the SODDI defense—Some Other Dude Did It. Somehow, it was always someone else. However, innocence is rarely a question after all direct appeals have run, and not after five years on death row. I wrote what Clayton told me on a yellow legal pad, and decided I might as well start with the penalty phase, or why he was sentenced to death.
Just because a person is convicted of a capital crime does not mean he is automatically sentenced to die. The nature of the crime and the prior life of the defendant are considered. Then the jury recommends, and the judge imposes, the sentence. I needed to know about Clayton’s background, his life—the good he had done, the pain he had suffered. Maybe I could at least keep him alive.
I leaned my chair back, hitting the wall before it balanced and said, “Jon, I need to know about you, about your life before your arrest. Tell me about yourself. What do you remember about your childhood?”
“Wait a minute, Mr. Thomas,” he said. “You don’t believe me, do you? You think I killed her.”
“It doesn’t matter what I think. I don’t care if you are guilty or not. What matters to me is that you’re alive, and I’d like to keep you that way. I’ll go over the trial. But what I need from you is not in the trial records. I need to know you from the day you were born.”
“You mean you want to overturn my sentence, but you aren’t interested in overturning my conviction.”
“Listen, I didn’t do it,” he said.
Clayton’s voice had deepened and there was a cold edge to his words. His eyes narrowed. He leaned toward me over the table and said, “I’m innocent, but I’d rather be dead than rot in a cage the rest of my life. Do you understand what I’m saying?”
“Do you have any idea how I feel?”
We sat staring at one another for a moment. I could hear his breathing. I could feel a slight ache in my left arm as my blood pressure rose.
I believed I understood how he felt. I had heard it before and often wondered what I would do were I in his situation. Convicted and waiting to be executed versus life with no chance of release, guilty or innocent. No chance to sail, to walk beaches, to see sunsets. Would I choose to go to my death quietly—perhaps a form of suicide? No…each time I’d considered the question, I had chosen life. But if actually faced with a caged life, with absolutely no hope of freedom, I’m not sure I would make the same choice.
We sat silently a moment more before I sighed and said, “Jon, I think I understand how you feel and what you want. Now you understand this...”
Jon started to interrupt, but I formed a “T” for timeout with my hands.
“Hear me out,” I said loudly. Then more softly, “Please.”
Jon leaned back, sighed, then nodded as I began.
“I intend to talk with everyone you know, everyone who knows you, everyone involved in the case—relatives, friends, cops, enemies, whatever. I’m gonna talk with ’em. Maybe, just maybe, someone has heard something or knows something that can help you. You’re innocent, right?”
“Well, maybe they can help me find who really killed the girl. I don’t know what I can do at this point, but you’ve got to help me first. Okay?”
THAT MORNING, WHEN I arrived at the prison just before my 10:30 a.m. appointment, I found the guards had been up to their old tricks. Jon Clayton had been put in a holding cage at eight a.m. to wait for me, even though the prison knew I would not arrive for two-and-a-half hours. The holding cage was the width of a telephone booth, but only half as deep. It was impossible to sit down, so prisoners were forced to stand during the entire wait, their hands cuffed behind them. Some of the guards did this to get the prisoners agitated, hoping to make them not want to see their attorneys. Often it worked, but not this time, not this prisoner.
When the guard ushered Clayton into the eight-foot by eight-foot conference room where we could talk privately, his presence surprised me. As the guard moved his manacles to the front, Clayton’s eyes were quiet and gentle. There was a serenity about him the guard’s games could not dispel. So he would not be distracted, I had him sit with his back to the door, which had the only window in the room. I sat in the other gray metal chair across the small gray metal table from him, my back against the twelve-foot high, tan concrete wall.
NOW CLAYTON APPEARED to relax. Maybe he believed me, or maybe he simply accepted that he couldn’t change me. It didn’t matter; I could still do my job.
He looked down at his manacled hands, sighed, and said, “Okay.”
Then he looked me in the eye and said, “I’m sorry, it’s just...you’re the last chance I have, and I’m...I’m scared.” He looked gentle and peaceful again, as though the storm of anger I just witnessed had never happened.
“I understand, and I suspect you’ve met some of my former clients.”
“Yes, sir, and they say you’re pretty good, and that you will listen, but...”
“But they’re still here.”
He smiled again as he nodded and said, “Exactly.” Then he leaned back in his chair and said, “Mr. Thomas, I’m sorry...and truly, I do appreciate you taking my case.”
“I’m your attorney now, only if you want me to be,” I said. “Are you willing to work with me?” Before he could answer, I added, “Take a moment to think, and remember, ‘No’ is an answer, even ‘No’ without explanation. Take a deep breath, and think about it.”
I watched quietly as Clayton closed his eyes and took a breath like I had suggested. He was six-feet tall, but eighty pounds lighter than I. In fact, he was downright thin. To me, he did not look like a killer, but killers often look like everyday people. Other than the momentary agitation, he had shown no madness, no anger. He appeared to be just a skinny, blond-haired kid in an orange jumpsuit as he looked up at the ceiling and took another deep breath—almost a sigh.
After he said he was satisfied with my explanation of what I would be doing for him, we made small talk about the conditions at the prison, mainly to get the rhythm started as I ask questions, and he answers them. Finally, I asked him to just tell me what he thought I should know about his life. He started by telling me he had lost both parents when he was nineteen years old.
“My parents died the summer I graduated from high school. Dad wiped out the old station wagon. My brother, Bill, was six years older than me and married. He tried to take care of me, but I was dumb. I forced him to sell Mom and Dad’s house, made him give me half the money, and I went surfin’.”
“I went surfin’. I bought an old Dodge van, threw a mattress in the back, took my surfboard, and headed out along the coast. I worked when I wanted...bummed when I could. Man...I had a blast. Did the Atlantic Coast, then California, Malibu, shot Huntington Pier, the works.”
“And you came back to Florida?”
“I called Bill and his wife every couple of weeks like he got me to promise. I’d been gone a little over two years when I called Bill one night. His wife—her name’s Jean—she answered and said Bill had been shot during a robbery. She told me to come quick if I wanted to see him alive. I sold my board and van for airfare and... flew from San Diego...but I got there too late.” Then his voice cracked. “I didn’t get to tell him I loved him, or even say goodbye.” Clayton looked down at the table and choked back a sob.
I waited for Clayton to regain composure and asked, “What did you do then?”
He took a breath, looked up and said, “Well, sir, Bill and Jean had bought a little bar in Clearwater. They named it Billy Jean’s. That’s where the robbery was. They had a couple of girls working there, and after the robbery, things were pretty tight. I figured Jean probably couldn’t go back in the place for the first couple-a months, so I just kinda moved in and started helping out. Finally, Jean came back to work. She started trying to fill her life with work. You know how some folks are. She was there all the time.”
“So you helped her run the bar?”
“Yeah. Well, actually, I cleaned and cooked more than anything. I moved into the storage room upstairs. So I was there all the time, too, until I got busted.”
“For the murder?”
“No, before that.” Clayton shrugged. “I got in a fight with a customer, some biker dude. He was bigger than me, so I kinda cut him down to size with a two-by-four.”
“Cut him down to size?” I asked.
“Yes, sir. I busted his nuts and broke his legs. I got arrested and had to plea out ’cause I couldn’t afford to go to trial.”
This is a normal problem faced by the poor, and seen at the PD office every week. Even if innocent, they can’t afford to go to trial because they’re living from paycheck to pay check. So they plead out in exchange for probation. “What did you get on the plea?”
“It was a good deal—six months in jail, suspended if I could complete five years’ probation. Bummer was...I was on probation when they accused me of the murder. They used the biker thing against me to get the jury to sentence me to death. Said I’d committed a prior violent felony.”
Great, just great, I thought. Probably aggravated assault with a deadly weapon, and on probation for it at the time of the murder. I decided that he might look gentle, but Jon Clayton was trouble.
“I hear you had an alibi at the time of the murder. Tell me about it,” I said, flipping to a fresh page on the yellow tablet. “Where were you when the murder occurred?”
Jon looked away as he spoke. “I spent the night with a lady friend. She testified at trial, but really couldn’t say what she wanted to.”
“What did she want to say?”
“That I couldn’t have raped the girl.”
I noticed a little red in his pale cheeks.
“Why is that?” I asked. “Why couldn’t she say what she wanted to say?”
His eyes met mine again as he said, “I think you need to ask Fawn about that. I would rather you hear it from her. She’ll tell you. Hatfield said it wouldn’t have helped me, but I think it might have.”
“Jake Hatfield was your trial attorney?”
I already knew that Jake Hatfield, a private attorney, had been appointed by the court to represent Clayton because the Public Defender had a conflict of some kind. I knew enough about Hatfield to know there was a good chance he had made serious mistakes; he was lazy and a drunk. We could discuss Hatfield later. For now, I wanted Jon to continue telling me his story.
“Fawn. Is that her real name? Fawn what? Do you know the rest of her name or how I can get up with her?”
“I only knew her by Fawn,” said Clayton. “Her last name was Lee, I think. She used to dance at a place called Delicto’s. It’s a show bar in Clearwater. I hear she left there a while back. The head bouncer was a biker named Tiny. Huge, hairy dude. Kinda scary, but real friendly. He ran the place. I hear he’s still there and he’ll probably be able to put you in touch with her. Talk to her. Fawn’ll tell you I couldn’t do it, ’cause I was with her all night.”
“Okay, so you were convicted of a felony for the assault at Billy Jean’s, right?”
“Then you were arrested with a pistol in your possession, the one linked to the murder. I think you also pled to possession of a firearm by a convicted felon for that. Right?”
“Yeah. The prosecutor offered me a good deal—two years’ jail time for the plea or else he’d ask for five straight time.” He shrugged his shoulders and said, “Heck, I had the pistol, no doubt about it. They caught me fair and square.”
“Had you been charged with the murder when you pled on that?”
“No. They’d asked me about it, but I didn’t know anything. Hatfield said it was a good deal. And it was at least a week before they filed charges on the murder.”
“Hatfield was your attorney for this also?”
“Yeah, he handled all my problems.”
I realized the prosecutor had most likely decided to charge the murder before he negotiated the plea. With the second felony conviction on a weapons charge, he knew he’d have a better chance at getting the death penalty on the murder.
“Why were you carrying the pistol?”
“I wasn’t carrying it. I just had it in the car.”
“I was afraid. That guy I busted up was one mean biker and his friends said they’d get me.���
“Where’d you get it?”
“Tiny gave it to me. He knew the bikers. Said they might try something, so he gave me the pistol.”
“Yes, sir. It was free. He said he found it...someone had left it at Delicto’s a few weeks before. He said it was a good one, but he wouldn’t take any money for it.”
The only stupid question is the one not asked, I thought. So I asked, “Did he give you the pistol before or after the murder happened?”
“I think it was the last weekend in April, a week or so before I went to court and pled out to the assault.”
“So you weren’t convicted on the biker thing when you got the pistol, but you did have it when the murder was committed, right?”
“Yeah, ’fraid so,” he replied. “But I never fired the damn thing. I’d never even held a pistol before. I don’t even know for sure if it worked. I was just going to wave it around...try and scare the bikers if they came after me. I didn’t know it was illegal for me to have it.”
“It wasn’t when you first got it, but it became illegal after you were convicted.”
Okay, I thought, so I need to find a biker who was a bouncer five years ago. Worse yet, a biker who gave my client a murder weapon. I was getting a bad feeling about this case. Jon’s execution would probably happen as scheduled.
Continued between the covers of CLEARWATER RUN