The Past Never Ends, page 27
Gardner's shaggy head bobbed up and down in agreement.
Morgan squeezed his hand into a fist. "Then the Open Records Act means nothing. The City's interpretation of the law protects only those public servants who fear truth. Judge Powers, half the judges in this state were under federal indictment for taking kickbacks when you were first appointed to the bench. Your appointment meant neither truth nor justice would be defeated in the open courts of this state. If you do not permit a trial today, you honor the ghosts of those men who took money in dark hallways. Don't you remember?"
Eldridge Powers took off his glasses, rubbed his eyes, and then spoke quietly, "Chester, you have practiced in my court for a long time. I respect your advocacy, but I'll be damned if I have forgotten why I was appointed and why I have been re-elected and re-elected. I don't make the law. Take this case to the Supreme Court and if they tell me the law is what you say it is, your client will have his day in court before a fair and impartial tribunal, and not before. That's why there are appeals."
Morgan picked up the affidavit and held it out in his hand. "Officer Hightower, the supervisor of police records, now has three stories why the incident report regarding Tanya Everly's murder is gone. Police records identify this report with these letters: DAM.cd. That is code for death by accidental means and the case is closed, the police investigation is finished. Officer Hightower told me the report had been lost, but later told Alan Kinman an investigation was pending and that was why it wasn't available to the public. Officer Hightower now tells the Court the report is gone. Which version of the truth is true? That's why there are trials, to determine the truth. If the Court grants the motion for summary judgment, the right to even challenge Hightower's affidavit is lost. The public is entitled to a hearing before a fair and impartial tribunal today, not two or three years from now."
Eldridge Powers leaned forward and squinted. "Do you have any direct evidence this incident report is in existence?"
"No, sir. There is circumstantial evidence, however, and the Oklahoma Evidence Code makes no distinction."
"No direct evidence, though. Correct?"
"That’s correct, your honor. This court's order limiting our investigation precluded direct evidence from ever being located."
Judge Powers picked up a pen, started writing and speaking. "The motion for summary judgment of Kurt Hale in his official capacity as Chief of Police of the City of Vivia is hereby granted for the reason that the uncontroverted evidence establishes as a matter of law that no remedy is available to the plaintiff."
"Your Honor, before you enter that order, I want to point out District Court Rule Thirteen also allows the party opposing a motion for summary judgment fifteen days within which to respond," Morgan said. "The motion was filed today. Mister Kinman is entitled to fifteen days to provide you with additional legal authority to overrule the motion."
"There's no need for that, Counselor. There's no remedy available to Mister Kinman."
"The plaintiff demands a three week continuance of this trial."
"Denied."
"Judge Powers, every party to a lawsuit is entitled to make an offer of proof of the evidence he or she would present if the court's ruling threatens to prevent the presentation of that evidence in trial. With all due respect, your Honor, allowing this offer of proof is not discretionary. If it is requested, you must allow it and Mister Kinman so requests."
Eldridge Powers looked at the clock on the wall, then at Tom W. Gardner and Chester Morgan. "Make your offer of proof, but I'm not going to spend my time listening to it. Present it, have the court reporter transcribe it if you wish, and submit it. Mister Gardner, you should consider the motion for summary judgment sustained after Mister Morgan's offer of proof. All witnesses who are present as a result of being served with subpoenas are released and are free to leave."
"I demand a record of the offer," Morgan said.
The elderly judge spoke to the court reporter. "Maggie write down everything Mister Morgan says--"
"And transcribe it," Morgan said, "so Judge Powers may consider it."
"The Court has made up its mind," the white-haired jurist said as he left the bench and walked through the door to his darkened chambers.
Tom Gardner looked across the heavy counsel tables at Morgan, shrugged and began putting his papers away. The bailiff and minute clerk glanced at each other and then marched out of the courtroom. The witnesses began to leave: Officer Maroney, the young police records clerk; Erma McIntosh, the Bunkhouse Lodge housekeeper who had discovered Tanya's tortured body; Frank Carlile, the motel manager the police never interviewed; Mario Pacetti, the former YMCA locker room attendant who pulled William Harrison's body from the pool; and the Reverend Don Hubbard, the street preacher who ran the Corpus Christi project and knew of Tanya Everly's life. Murle Mueller grumped out a sigh and swatted Marylin on the shoulder before stomping to the glass double doors of the courtroom. Althea Willis, the former housekeeper at the Harrison home, waited and looked at Morgan. He nodded and she left.
Chester Morgan had persuaded these people to do their duty and to speak truth. He had assured them no harm, not with Eldridge Powers presiding over the case. Would these people be willing to witness again to truth or would fear dominate feeble human courage and memory into silence? What would happen to his witnesses now? Official vengeance? Would they believe Alan Kinman's attorney again? A noise snapped from the front of the room as the court reporter began to disassemble her stenographic machine. Morgan walked to her desk.
"Maggie, the judge didn't adjourn court. Please keep recording the proceedings. I want the entire hearing transcribed, but this offer of proof I want typed tonight and on Eldridge Powers' pillow before he goes to bed and, if not then, on his desk no later than when he walks in tomorrow morning. My secretary will give you a check before we leave today for an expedited transcript. Whatever you want. Here are the exhibits for the offer of proof and a list of the witnesses who would testify to the facts."
The court reporter nodded and clicked her machine back together. Tom W. Gardner exited the courtroom on rubber-soled shoes. Alan Kinman stared into nothingness. Wally Jackson, the newspaper reporter, fidgeted in the corner, but remained. Marylin tried to smile, but failed, and Shawn rolled her eyes. Maria waited on the back row, her sterling silver earrings sparkling against her hair like stars in the black night.
Morgan returned to his counsel table, sat for a moment and then stood. To the vacant bench, Morgan spoke, his voice echoing: "May it please the Court.
"Tanya Everly, a twenty-four year old dancer and sometimes hooker, was murdered the late night of September Third or the early morning of September Fourth in Room L-8 of the Bunkhouse Lodge in Kiowa Heights.
"The official police record does not suggest murder. The report is identified as 90403918DBAM.CD. Death by accidental means, case closed. The official death certificate, dated September Fifth and signed by the now affluently retired state medical examiner Marcia Nelson, M.D., states the cause of death was asphyxiation. The autopsy itself remains shrouded; the result of this court's well-intentioned but misguided orders.
"Another Kiowa Heights hooker, so what? Except for Alan Kinman's quest, Tanya Everly's death would have passed unnoticed. Not even her mother cared. Oh, perhaps her mother did. Tamar White abused the gift of her daughter, prospering from her daughter's looks and dependence instead of her own abilities and efforts. This mother brokered and arranged meetings with the men Tanya Everly performed sex with for money. Kept the money for herself mostly, this mother did.
"On September Third -- the late afternoon, Tamar White called her daughter, threatened and ordered her to go that evening to the Bunk House Lodge, the usual place of the daughter's assignations and the mother's observation. Perhaps Tamar White cared that Tanya's death go by unobserved because the prospect offered and accepted by Tamar White was too lucrative to pass, even if it meant her own daughter's demise -- a daughter who otherwise would soon be free of seedy motels, strip joints, and a woman called 'mother' only by biological accident. Tamar White knew the time approached soon when her threats would be meaningless and her brokered arrangements futile. Tamar White cared all right. She cared that the truth and her pay-off not ever be discovered.
"She refuses to tell you otherwise today. She ignored your subpoena. Where is she? Look for the new white Lincoln Towncar parked in front of the dives of Kiowa Heights. Look for her in a faraway state with a changed name, dyed hair, and no one here in Vivia mourning her departure.
"Erma McIntosh discovered Tanya's wounded body, stripped and sailored-tied to a double bed in room L-8 of the Bunkhouse Lodge that September morning. Erma immediately told Frank Carlile, the motel manager. Mister Carlile called the police. A marked police car arrived, officers entered the room, and left. A short time later, an unmarked car and a vehicle to carry away the body arrived. Less than two hours later, they were gone, leaving no evidence, no indication a crime had been committed in that room. To this day, the police have not interviewed Erma McIntosh or Frank Carlile and likely no one else either.
"Listen to what the motel manager saw that morning and no conclusion can be made other than Tanya Everly's death resulted from an intentional killing, probably by two men with one posing as her customer and the other pushing his way through the jimmied door from the adjoining room, a fact well-known to Tamar White.
"The death of a Kiowa Heights hooker and dancer." Morgan paused. "Our school children are taught that no human life is of such meager value that it is not entitled to the protection of the law. Why wasn't Tanya Everly's murder investigated? A crusading police chief who seeks to eliminate vice in Kiowa Heights by any means? A factor perhaps, but not the reason. Why wasn't Tanya Everly's murder investigated?"
Morgan stopped, then, "Money and two family members who feared the truth of their own inadequacy and who believed what belonged to others belonged to them.
"Nine months before Tanya's death, William Harrison, as was his practice, went to a Key Petroleum gas station slated to be closed to make sure his soon to be ex-employees had other work and were provided for. The station was directly across the street from Vixen's, the nightclub where the young woman, Tanya Everly, danced unclothed for money. For some reason, Mister Harrison decided to step into the club. To have a beer with the station's employees? Curiosity? Loneliness? We don't know for sure, but he did. There in the flashing light, loud music, and smoke he met 'Star,' also known as Tanya Everly, the spot's most popular entertainer."
Morgan turned and looked to the back of the courtroom. He saw Maria, the woman with white satin skin and the soul that reminded him of life. He bit his lip, then continued speaking: "William Harrison and Tanya Everly became compatriots, friends, then lovers. Harrison listened to Star's music and separated her from her mother. She found a home where she was free and protected. William Harrison provided her with the money to rent it from Murle Mueller. The young woman called him 'Billy.' Tanya's Billy didn't ridicule her dream to become a country music star. Instead, he recognized her talent as perhaps legendary and financed the recording of a demo, proof that even in the dark Kiowa Height night hope is not always futile. He intended to take her to Nashville and make her a real star.
"The wealthy, respected oilman and compassionate young woman who traded her body for money became emblems of each other's freedom. He represented release from the mother who controlled Star's life, and she, release from the strictures of responsibility and the lonely ways of an honorable man.
"Last summer, William Harrison engaged the law firm of Evans, Shell and Bradford to develop a plan for the transfer of his assets at his death. What he specifically intended is not known. Had this court allowed a reasonable investigation in this case, Eldridge Powers, the probate judge of Vivia County, would now know the lost will the court admitted into probate last fall wasn't Mister Harrison's last will and didn't state his intentions at all. You remember two men -- Kenneth Duckworth and Robert Fulcher -- testified they worked at William Harrison's home and they witnessed the signing of his last will there last summer. Based on the sworn testimony of these two men, the court had no choice but to admit this 'lost' will into probate leaving William Harrison's fortune to his son, Randolph. The will had been drafted, so you were told, by Massey, James and Peterson, a law firm with no prior history of representing the elder Harrison, but known to be the long-time attorneys of the son.
"You remember Duckworth and Fulcher got confused. Were they maintenance men or gardeners? They didn't know. They contradicted each other, but they knew exactly what to say to prove the supposedly 'lost' will had been signed and witnessed as required by Oklahoma law. Memorized, perhaps? Coached by an attorney from a prestigious law firm? One of the men, incidentally, was a former sailor. A significant reference perhaps, but neither man had been hired by Harrison -- William Harrison, that is. Althea Willis, the family housekeeper for the last thirty-five years, was the only person employed in the Harrison home last summer. No gardener. No maintenance man. No assistant. No Duckworth. No Fulcher. And, no lost will.
"On November Seventh of last year, Marylin Jenkins and Alan Kinman witnessed two men breaking into Murle Mueller's garage apartment where Tanya Everly's remaining possessions had been stored. The burglary was directed by a third man, one not present that day. The thieves took only that which had belonged to the exotic dancer, although other items of more value in Mueller's home and garage apartment were easily accessible. Had this court forced the testimony of Kenneth Duckworth and Robert Fulcher today, the court would have seen not only the two men who falsely testified they witnessed William Harrison's will but also the two men who broke into Murle Mueller's apartment to steal the remaining physical evidence of Tanya's existence. At whose direction?
"Randolph Harrison becomes a powerful, wealthy man if truth remains shrouded, if the public record remains secret. Judge Powers, you asked Randolph Harrison's attorney if his sister had been provided written notice of her right to object to the admission of William Harrison's lost will. The Massey, James and Peterson lawyer told you the notice had been mailed to the sister's last known address. It wasn't. It was sent to an address that doesn't exist, even though her whereabouts could easily have been ascertained. This 'lost' will, incidentally, had another beneficiary: United Oklahomans for American Values, a non-profit corporation whose mailing address is the same as our police chief, Kurt Hale.
"The morning of September Fourth -- the same day Tanya Everly's body was discovered in Kiowa Heights -- William Harrison drowned at the Downtown YMCA swimming pool. His death certificate is dated September Fifth, the same date and in the same handwriting as Tanya Everly's, and signed by the same newly affluent retired state medical examiner. William Harrison's cause of death? Asphyxiation, not a fortune imagined for a good and safe swimmer. Mario Pacetti, the locker room attendant who pulled William Harrison's lifeless body from the water heard footsteps that morning. I did, too.
"The lives of William Harrison and Tanya Everly demand compassion. The past and the future demand truth. This is our offer of proof. The motion for summary judgment should be overruled and the trial of Kinman versus Hale should proceed."
Morgan sat down at his counsel table. The image did not appear, not at all and never again.
CHAPTER FORTY-FOUR
Chester Morgan hadn't stopped to change out of his suit. After the failed trial of Kinman versus Hale, he had gone to his office to check his messages and mail, then drove with, ahead, and away from the threatening winter storm to the Cherokee mountains of Keetoowah County.
He hadn't stopped to get his fishing gear or to persuade Jack Middlebrooks to come with him. Morgan got out of his car by the creek and felt the ancient flint stones beneath his feet.
He could and intended to seek reversal of Eldridge Powers' ruling but an appeal threatened years. Powers had committed gross error, but Morgan had told himself that before in other cases only to have the Oklahoma Supreme Court tell him otherwise. If reversed, Powers would follow the directions of the appellate court, but would likely reach the same conclusion -- Powers simply would be more careful making his rulings next time.
Morgan felt the cold wind on his face. He cursed Eldridge Powers; he cursed the law; he cursed all the stupid little rules that hid truth and minimized people. Morgan wondered whether the judge had taken money, too. Not Eldridge Powers whose appointment had been the symbol of integrity in corrupt days. Not Eldridge Powers who always judged by the rules, but who just never quite ever understood the purpose behind them. Not Eldridge Powers who had never been intimidated by anyone.
The dusty smell of fallen leaves, the feel of uneven rocks and stones beneath his leather-soled shoes, and the bitter cold air against his skin reminded Morgan he lived. From a tree overhead, a crow squawked.
The best trial attorney Morgan had ever known had cautioned him that it was more important to learn how to lose a case than how to win one. Those words taunted Chester now. He walked to the bank of Nathan's Creek and stared at the clean, clear water flowing, flowing away.
The next morning Chester Morgan got out of bed early to swim once more at the YMCA. He poured himself a cup of coffee and looked at the morning edition of "The Vivia Daily Sentinel." On the City-State page, he saw this headline:
JUDGE SLAMS DOOR ON OPEN RECORDS
Attorney Claims Police Cover-up in Deaths of Oilman, Stripper.
CHAPTER FORTY-FIVE
Eldridge Powers did not change his mind after reading Chester Morgan's offer of proof and the following day's story in "The Vivia Daily Sentinel." He did, however, personally walk a copy of the transcript to the District Attorney's office and laid it on his desk. After his trip to the District Attorney's office, Judge Powers appointed Chester Morgan to represent the unknown and unrepresented beneficiaries and heirs of William Harrison.
