Injustice (17 page)

The hearing in the Kyle Runion/Daryl Devaney case was a small thing, just a routine step in the process, but it attracted attention, since it was the first public event of any kind in the case in years.

Daryl Devaney's sister, the person who had pestered Tina and the Innocence Project to take a look at the case, was driving in from her farm outside of Orchard City, several hours away. Tina invited me to join the two of them for lunch. They'd never met in person, and Tina said she wanted my read on the woman. “We're meeting her at Denny's,” Tina said.

“Why Denny's?”

“I don't know. I just thought she might be most comfortable there.”

“You mean you thought she might be too lowbrow for the Rain Tree?”

“Ouch. That's kind of aggressive, Nick.”

“Just saying.”

The woman's name was Peggy Devaney. When we got to Denny's, she was seated in a booth, paging through a copy of
Better Homes
. She seemed nervous. “After all these years,” she said. “And now, finally, something.”

Peggy's eyes were watery. She ducked her head, pulling it down between her shoulders in a submissive gesture. Tina reached across and took her hand. “Peggy, let's not get our hopes up. The obstacles are huge, both legal obstacles and factual obstacles.”

“Factual? What do you mean, factual?” Peggy Devaney snapped, her voice suddenly contemptuous, the submissiveness gone.

“No, no, no,” Tina said. “I wasn't meaning he might really have done it; I just meant that even if we get access to some evidence, there might not be anything testable.”

“Sorry,” Peggy Devaney said. She shrank back between her shoulders. This woman was clearly one who would never believe her brother was guilty no matter what the evidence. I worried that Tina and the Innocence Project had been duped. I wanted to see clearheaded objectivity, not emotional volatility.

“Of course. Of course,” Tina said. “It's an emotional day. I get that.”

Peggy Devaney propped her forehead in her hand and cried for a few seconds, then sat up and wiped her eyes with a napkin. “I'm not really like this,” she said.

Tina nodded.

“If you knew . . . I mean . . . I'm three years older than Daryl. And look at me.” Peggy Devaney waved her fingers at her body. She was a leather-skinned woman in a Carhartt jacket. She had graying hair in a ponytail. She wasn't fat and wasn't unattractive. She was just solid and strong. “I could knock some heads,” she said, “and believe me, I've knocked a few. Daryl always needed watching out for. You grow up the sister of a boy like Daryl, and you get a pretty shitty perspective of other children. They think they're clever. It's a game to them. You know, there's all this talk about bullying now. That's good. Because believe me, what Daryl endured . . . And he was such a pure soul. A beautiful soul. He wouldn't hurt a flea.”

Tina reached across and took Peggy's hand again. “We'll do our best.”

“I tried to protect him,” Peggy said. “But bullies aren't only in the schoolyard. Do you know that? Some of them are in suits and ties. Some of them put innocent boys in jail just because they can. And I couldn't do anything, Tina. I tried, but nobody listened. Not the DA, not even his lawyer.”

She cried some more. Tina let her. “How embarrassing,” Peggy said. “It's been building up for eight years. I know I shouldn't hope too much.”

There was a small crowd outside the courtroom. Tina and Peggy Devaney went into a conference room to talk. I waited in the hallway in the midst of everyone who had come to silently oppose Daryl Devaney—people who probably considered the hearing a further insult to the memory of Kyle Runion. Tina and Peggy might be the
only ones there in support of the convict. I still considered myself neutral.

I spotted a couple I assumed were Kyle's parents. They were with a small group.

Chip came over to me. I hadn't noticed him. “I came to hear Tina argue,” he said. “I thought she could use another friendly face in the room.”

Henry showed up, too. He went over to one of the benches along the wall and sat down near a guy who looked familiar to me. The guy said something to Henry. Henry looked at his watch and replied.

I sat down on the other side of Henry. The guy looked over at me and said, “Hi, Mr. Davis.”

Of course. It was Arthur Cunningham, the man who had found the body. I wasn't surprised he'd come; I bet the neighbors who had spotted and reported the suspicious red pickup had come, too. And maybe a teacher of Kyle's, and business associates of his father. And if his parents had joined a support group, some of those members were here as well. Perhaps detectives who had worked the case and any clergy who had counseled the grief-stricken family. The impact of a crime like this is so immense that it spreads out through the community in traumatizing waves. Kyle's abduction fractured the peace and undermined the simple assumptions held by neighbors and friends and witnesses and teachers. They had all come to watch Tina try and disrupt their private sorrow, to rip off the scab that had taken the past eight years to form.

The courtroom door opened, and people exited from the previous case.

The crowd in the hallway filed in.

This was state court; I didn't know the people over here. Judge Matsuko was presiding. I'd heard he was smart. But he'd been a state prosecutor before being nominated to the bench, and I worried that would work against Tina.

Matsuko read the details into the record: “. . . petitioner is a convicted felon . . . incarcerated in the state penitentiary . . . not present in the courtroom . . . Mr. Devaney, through counsel, petitions to
have the state itemize any and all physical evidence in its custody, and to make such evidence available for testing.”

Tina stood at the lectern. “May it please the court,” she said. Then she delivered her argument: “A defendant's right to examine evidence is established in state and federal law.” She spoke confidently. She quoted cases.

The judge stopped her. He sounded inconvenienced. “Daryl Devaney is not a defendant,” he said, his Asian accent rounding out the “r
 
” in Daryl. “Mr. Devaney is a convicted murderer. So aren't you eight years too late, Ms. Trevor? Daryl Devaney confessed to his crime and pleaded guilty. I'd say that settles the matter.”

Tina was prepared and was answering before he finished the question. She talked about Daryl's cognitive impairment. She talked about how his guilty plea was irrelevant to his actual innocence. She talked about how small a burden it was for the state to allow the testing, and how immense a burden for an innocent man to live and die in prison. I was proud of her. She stood gripping the lectern, speaking with force and passion. I was sure the judge would be moved.

Tina wrapped up her argument: “Daryl Devaney faced an impossible choice eight years ago: Plead guilty or face death by lethal injection. He pleaded guilty so he could live to fight another day. This is that day.” Tina's voice was deep with emotion.

She sat down. Nobody said anything. I cleared my throat, hoping Tina would turn around so I could give her a thumbs-up. But she didn't turn, and I was left looking at the back of her head. I saw that she'd gotten her hair trimmed recently; strange that I hadn't noticed till this moment. It made a tidy line across the back of her blouse and was somehow girlish and endearing. It made me think of July 4, the last few hours of Lydia's life, when we had that informal barbecue at our house and I went into the kitchen for more beer and looked out the window at Tina and Lydia sitting side by side, their backs toward me. I still had that photo of them in my phone.

G
regory Nations walked to the lectern.

Spectators shifted in their seats. They sat more erect, slid forward on the benches. Nations is the district attorney. The spectators probably wanted to break into applause for him, just as they probably wanted to boo at Tina.

I wasn't used to being in the defendant's camp. And though I professed neutrality, I'm sure I was seen as being there in support of Tina and Peggy's cause.

Through a thousand trials, I have been the one to do battle against violence and lawlessness—the one thrust into the arena to slay the many-headed beast of chaos and criminality. Even when the crowd has been against me, when a defendant's friends and family have packed the benches, I've still felt society's approval. It exists everywhere: My office is in the courthouse building; the government writes my paycheck; newspaper articles, either overtly or in subtext, laud my mission of excising moral disease from the population of free citizens. I am used to hearing the subtle stirring in the crowd when I stand to speak after the defense attorney has argued.
Now let's hear some truth!
the crowd seems to say.

But sitting in the gallery at that moment, and seeing the crowd through Tina's eyes as she took her seat and Gregory Nations stood, I caught a glimpse from the other side.

“May it please the court,” Nations said.

I know Gregory Nations fairly well. Though he is a state prosecutor and I'm federal, we are frequently invited to appear together and to serve on task forces and joint commissions. We get along, though we've never been friends.

“I can make this short and simple,” Gregory said. “It is the goal
of the justice system to create finality in criminal prosecutions, and toward that end—”

“I thought the goal was to create fairness,” the judge said.

“Naturally,” Gregory said. “But this convict had every opportunity . . .”

It went on like this for a few minutes. Gregory had something he wanted very badly to say, but the judge kept heading him off, preferring a theoretical debate on the finality of conviction over whatever Gregory was itching to get to. Finally, Gregory threw his hands out to either side and blurted, “Your Honor, it's moot.”

The judge stopped. Tina put a hand against her mouth.

“Go on,” the judge said.

“I was informed just an hour ago,” Gregory said. “The physical evidence in this case has been purged.”

“Informed by whom?”

“The commissioner.”

“So there's no physical evidence to test?”

“That's correct.”

Matsuko thought about this a few seconds.

Peggy Devaney was sitting a row in front of me. She had her hands pressed against either side of her face.

“Mr. Nations,” the judge said, “if any evidence was destroyed or discarded in response to Mr. Devaney's petition, then that is a criminal act, and I will personally order an investigation—”

“No, Judge. It was discarded over a year ago in a routine housecleaning. I'm told the department has limited space for the storage of—”

“Yeah, yeah, yeah,” the judge said. He was paging through the file. “I'll just note here for the record that while the current petition was filed only a few weeks ago, I see this whole argument began several years ago. It went to federal court . . . got kicked back to us.”

The judge closed his file and took off his glasses and looked at Peggy Devaney. “I'm sorry, ma'am. If, as the district attorney claims, the evidence has been disposed of, then it does appear to be moot.” He looked at Gregory. “And, Mr. Nations, perhaps this was an innocent
error by the department, or maybe it was intentional. I intend to find out—”

The judge was interrupted by a high-pitched note that, for a split second, sounded like an electronic warning of some kind. But it was quickly identifiable as the uncontrolled overflow of poor Peggy Devaney's grief. She had been in this battle long enough, and she knew enough about the process, to realize that this wasn't just one more setback. She had been clinging to the hope of finding DNA evidence proving that Daryl was not the perpetrator. But the absence of evidence meant her road had reached its end. She had nothing more to hope for.

Behind me, a familiar voice said, “If I may, Your Honor?”

It was Chip, with his cell phone at his ear.

“Bailiff,” the judge said, flicking his head toward Chip. Cell phones are strictly prohibited in the courtroom, and in a hearing of this kind—oral argument on a petition—the only people speaking should be the two lawyers and the judge.

The bailiff started toward Chip, and Chip audaciously held up a hand to stop the man, and in the hand was his FBI badge. Chip spoke a few more words into the phone. Then he said to the judge: “Special Agent d'Villafranca, Federal Bureau of Investigation.”

It worked its magic. The bailiff stopped and looked at Matsuko for guidance.

“I may have information,” Chip said. “I don't know anything about evidence in this particular case, but I do know that a few years ago, the Bureau tried to close several child abduction cases by linking unsolved cases to ones where a perpetrator had been identified. We collected evidence in cases of this sort from several jurisdictions.”