After Deputy Blackburn’s direct testimony was Hixon’s cross-examination. As Steve read through the transcript—still following his client’s directive to believe he was not guilty—Steve’s serious expression deepened into a frown; Hixon’s questioning left a lot to be desired. Steve himself had several questions that were simply not asked, and thus, never answered.
Did Deputy Blackburn see anyone else near the home when he arrived?
Did Ashley say anything before she passed that could have pointed them to someone other than her husband as the killer?
Did she say anything at all?
Where did he find the knife?
Deputy Blackburn was the first officer on the scene; his testimony should have given clues as to who the real killer was if it wasn’t Scottie. Without answers to these questions and many others, that mystery still remained.
Instead of providing new information, Hixon’s questions simply allowed Deputy Blackburn to recite his story a second time for the jury. However, this time, Blackburn took the opportunity to mention the knife, saying that he had to move the knife in order to perform CPR on the victim. At least that question was answered— not in a particularly helpful way, but answered, nonetheless.
As Steve flipped through the next several pages of the cross-examination, he concluded that, although Hixon was not doing a great job, the attorney’s incompetency likely wouldn’t qualify as “ineffective assistance” in accordance with how the United States Supreme Court defined the term.
Steve shot a text to Ackerman: When you have a few minutes, could I run something by you?
Two minutes later, the phone rang.
“How may I be of assistance to you, counselor,” Ackerman said.
“I’m reading through the transcripts in this Scottie case, and Hixon didn’t even cross the detectives and officers except with open questions that just let them repeat their directs. God-awful representation, but I’m not sure it rises to the level of Strickland v. Washington.”
“Well, let’s talk through it,” Ackerman said. “Explain to me the holding in Strickland. In your own words,” he added.
Steve grinned despite the circumstances; he knew this was another quiz by the master. “Well, the Strickland court determined that, in order for representation to be deemed constitutionally ineffective and requiring a new trial, the person raising the issue on appeal must meet a two-pronged test. First, the appellant must show counsel’s performance fell below an objective standard of reasonableness. Second, he or she must also demonstrate that if counsel had performed adequately, the result would have been different. I think there is a solid argument for that first prong. Hixon’s representation was almost nonexistent.”
“I’m not surprised,” Ackerman replied. “And the second?”
“Well, as we discussed before, there is a mountain of evidence against him. I don’t know if any attorney in the state could have gotten him off.”
“No offense taken,” Ackerman said dryly.
Steve chuckled. “Present company excluded,” he acquiesced before continuing. “Anyway, I have a concern, a real strong concern about convincing the district or appellate judges that anyone, even you, could have kept Scottie from being convicted. Which means the appellate courts will have to deny a request for a new trial based on ineffective assistance of counsel because the result would have likely been the same, even with solid representation.”
Steve sighed. The line was quiet for a few seconds while he sat for what seemed like hours and stared into nothingness.
Finally, Ackerman cleared his throat. “Don’t ever forget, if you don’t win this case, your client will be executed. At the end of the day, it might be that you cannot win this case; it certainly is a tough one. I have lost cases and watched clients be put to death. I assure you that it is a feeling to which you will never get accustomed and, despite handling cases with insurmountable odds, if your client dies, you will suffer guilt that will never leave you.” Steve nodded somberly to himself.
“To minimize the time spent lying awake and replaying your every move and decision, which will be inevitable if you continue to take on these cases, you must scrutinize every scrap of evidence, every word in the transcripts, every word not in the transcripts. Every corner of every photograph. If the second prong is out there, you have to find it.”
Steve looked over at the box of photographs. “Understood. I’m on it.”
During his two years working for judges, Steve dreaded this part the most—detailed photographs from all angles and ranges of the surroundings, the murder scenes, the victims.
The pictures of Ashley Pinkerton’s dead body covered in blood were as gruesome as Steve had imagined, and the blackish-red stains splattered throughout the living room made the room look like a bad Jackson Pollock forgery. Steve thought back to all of the pictures of dead bodies he had looked at over those two years—exactly twenty-four cases, with two of them including separate murder scenes, for a total of twenty-six murder scenes and thirty-two dead bodies. Scenes where it appeared that the perpetrators had rushed away quickly. Scenes where he could tell the murderer had lingered after their victim’s death. Some with lots of blood, some with none, but always with a body and a face contorted with death.
The images had looked eerily fake to him, almost like a Hollywood movie scene, as if the body and blood had been staged to lay in just the right manner, yet at the same time they were unmistakably real because the cold reality was that they weren’t fake. The pictures Steve had seen were of real people.
As much as a part of his mind wanted him to think the scenes were staged, the visceral truth of the pictures always surfaced. The reality often hit him in the middle of the night when, for one reason or another, Steve just couldn’t sleep. Now, he wondered if Ackerman would also lie awake at the same time, for the same reason, and if, despite their best efforts, the two of them were merely two legal ships struggling to stay afloat in unforgiving seas.
Despite his apprehension, Steve knew he had to look closely at every detail in every picture. He had to study each one to see if something stuck out to him which would even hint that his client was not the murderer. Any chance of winning this case depended upon it.
Steve had been trying to persuade himself to believe Scottie’s words, but the truth was, deep down, Steve was nearly convinced his client had killed his wife that summer day. The evidence was overwhelming. The 911 call proving there was an altercation minutes before the police arrived, the scratches on Scottie’s body, particles of his skin and blood found under Ashley’s fingernails, even the fact Scottie had showered before police arrived. Additionally, the pictures showed the bloody footprints on the floor matching the pair of bloody shoes that Scottie owned and that were found near the crime scene. It all added up to Scottie Pinkerton being the killer. There was nothing tangible to support his client’s claim of innocence, except his word.
Then, Steve saw it! He wondered how no one had noticed it before, but then he realized that he was probably the first person to truly look for something other than proof of Scottie’s guilt. He knew perspective often replaced reality in these investigations. He turned to his computer and excitedly pounded on the keys.
First, he prepared a motion asking the court to appoint him an investigator to assist him on the case. If Scottie had not committed the crime, then he needed to find out who did. Although Steve felt confident in his knowledge of death penalty law, he had no investigative training whatsoever. Moreover, as much as he preferred to work alone, in this instance he knew that he needed help.
Second, he typed a letter to the prison requesting a barrier-free and restraint-free visit with Scottie as soon as possible. Steve knew that, with this evidence, he could convince Scottie he believed in his innocence, and Scottie would tell him everything he knew about that day and the events leading up to it.
CHAPTER 14
As Steve finished typing his request to the court to appoint an investigator, he realized that, just like how all attorney appointments were not equal, investigator appointments were not equal either. He wondered if Ackerman had any advice on this front.
Too fired up to text and wait, Steve picked up the phone and called Ackerman. “Hello, Frank, this is Steve again. How have you been? I know it’s been ages since we last spoke.”
Ackerman chuckled. “I’m great, just sitting here in my great room, in front of a roaring fire, playing board games with a few of the grandkids. You know how much I love getting to spend time with them.”
“Yes, very sorry to bother you again on a Saturday, especially since you have your favorite little visitors,” Steve said. “I won’t keep you long. I just have one quick question.”
“Don’t be foolish, as I’ve told you before, I’m always willing to help a fellow lawyer in his attempt to find a little justice in this damn state. You sound better than you did on the last call, fire away?”
“I think I might have something on the second prong of Strickland. Going back through the photos, I honestly think there is a good chance he is innoce—”
“You mean you didn’t get scared off by the DNA, 911 call, bloody shoes, and all the other evidence the state presented?” Ackerman asked, sounding more amused than confused.
“Well, it certainly scared me, but not off. There is a ton of evidence pointing to him, but I honestly believe he didn’t do it,” Steve continued. “Based on what I have found so far, I plan on asking the court to appoint me an investigator. I need someone
