“The last witness the state will call to the stand will be Officer Glen Matthews. He is the officer who arrested the defendant. Officer Matthews will inform you that he apprehended the defendant roughly forty-five minutes after the original 911 call. The arrest occurred at a local hotel, an approximate ten-minute drive from the murder scene. He will further state that when he arrested the defendant, the defendant had visible scratches on his face and neck. You will see pictures of the defendant taken when he was booked into jail. The pictures will show these marks. Moreover, Officer Matthews will testify the defendant had just showered when they arrested him, which is why the police were unable to find any blood on the defendant.”
“These are the witnesses you will hear from in the state’s case in chief. The defense may call additional witnesses; that is up to them.”
Battel kept his attention on the jury, sparing no glance toward the defendant at this point. “Regardless, ladies and gentlemen of the jury, after you have heard the testimony of all the witnesses and seen all of the evidence, I believe the evidence will show beyond a reasonable doubt that, on August 9, 2008, the defendant, Scottie Pinkerton, attacked his wife with a kitchen knife, slashing and stabbing her over thirty times, resulting in her death! At that point, based on all you have seen and heard, I will ask that you find the defendant, Scottie Pinkerton, guilty of first-degree murder. Thank you.”
***
Steve stared down at the transcript. He was beginning to think it was clear Scottie killed his wife. He was only hoping, at this point, the judge or Battel made some constitutional error egregious enough to require a reversal.
But then, he remembered the challenge Scottie had given him— to find a way to believe Scottie was innocent.
Steve reminded himself that opening statements were not evidence; he needed to read the entire transcript and review all of the evidence before making any decisions. Moreover, he remembered from trial practice class that, sometimes, attorneys made statements in opening that they failed to prove later. Steve reread the prosecution’s entire opening statement again and again. If Battel had said something he later failed to prove, it might give him an argument for prosecutorial misconduct.
Next came the opening statement of court-appointed defense attorney, Jason Hixon.
***
Jason Hixon stood up and buttoned his ill-fitting jacket. His tie was loosely fastened around his neck and the bottom of it peeked out below the edge of his coat. Hixon began his opening statement by thanking the jurors, then said:
“Obviously there is a great deal of evidence against my client at this stage. I just ask you remember the state must prove beyond a reasonable doubt that my client murdered his wife. After you find him guilty, I ask that at the second stage you pay a great deal of attention to the mitigating evidence showing why my client should not be given the death penalty. In all honesty, this case is undoubtedly about the second stage. Thank you.”
***
Finally, Steve thought. A little something for me to argue in the brief. There may be an ineffective assistance of counsel claim here.
Steve knew that it was every attorney’s duty to defend their client, no matter how much evidence may be stacked against them. In his opening statement, Hixon had essentially conceded Scottie was guilty of murdering his wife.
The appellate court might find this to be constitutionally ineffective representation. However, to succeed on a claim of ineffective assistance of counsel, the petitioner must be able to show Scottie would have been acquitted if not for Hixon’s poor representation. Although the issue may not be a winner, he thought it was still worth arguing.
Steve tore off a new sheet of paper from his notepad and labeled it “Claims for Relief.” He then wrote “1. Ineffective assistance.” Steve remembered that most capital habeas briefs at the federal district court level would contain fifteen to twenty claims for relief. He went ahead and numbered to twenty, hoping the empty spots would magically spur him on to decipher more claims.
After the opening statements, as Battel had foretold, came the first two witnesses—Brent Whitmore and Heather Walters. Each fulfilled their role of establishing Scottie as an abuser, and each stated they never trusted Scottie. Next was the tape.
Rather than read the transcript, Steve found the zip drive containing the defense copy of the recording and played it for himself. He wanted to hear what the jury heard.
***
(August 9, 2008, 9:57 a.m.)
911: 911. What is your emergency?
Ashley: (crying) My husband just attacked me. I had to claw his eyes just to get him off of me.
911: What is your address?
Ashley: 5260 E. 420 Road, Claremore.
911: Is your husband still in the house?
Ashley: Yes! Hurry, please!
911: Where are you?
Ashley: After I scratched his face. I ran into our bedroom. I’m in here with the door locked. I need help!
911: Okay, stay where you are. Stay on the line. I am dispatching a Rogers County sheriff to your address.
Ashley: (screaming loudly) OH MY GOD! He kicked in the door. Ple—
(End of call)
***
Steve felt chills run down his spine. How can Scottie think anyone would believe he didn’t kill Ashley after listening to this recording?
He ran through the information he got from the recording. The husband and wife were clearly fighting before the call was made. She was audibly upset during the call, and a little more than five minutes after the call terminated, Sheriff Deputy Blackburn found her lying on the living room floor, bleeding to death from multiple stab wounds all over her body.
However, Steve reminded himself of the first rule of jury trials, the plea every good defense attorney always asked of the jury during voir dire or opening statement. It was a simple request:
Each juror should hold off on making any final decisions until all of the evidence has been submitted. Steve knew the state always started with their best evidence to try and convince the jury of guilt before the defense ever got a chance to present evidence. He was now doing exactly what a juror was not supposed to do—making a decision before he heard both sides of the story.
Steve made himself consider the possibility that Scottie hadn’t been the one who stabbed Ashley Pinkerton thirty-eight times. He listened to the tape again.
He sat forward when he finally heard it; or, rather, when he didn’t. If they were in this huge fight, why isn’t Scottie yelling at her? Why wasn’t there a big noise when he kicked in the door?
Steve opened his copy of the transcripts and began reading what occurred at trial after the jury heard the 911 call. The next witness would be Deputy Blackburn. Steve could tell from the Table of Contents that Deputy Blackburn’s testimony was well over three hundred pages. He looked at the clock on his microwave. It read 2:38 a.m. His eyes suddenly grew heavy. He yawned.
As much as he wanted to relive Deputy Blackburn’s testimony, Steve knew there was no way he could finish the entirety of it that night, and it was not something he wanted to read in parts. He closed the transcript and set his pen down on the notepad. The deputy’s story would have to wait until morning.
