Wofford swallowed hard before answering. It wasn’t easy for a sitting judge to admit incompetence on the record. “Yes, I do,” he said.
“It’s my understanding that you have been a circuit judge for about ten years, is that correct?”
“Yes.”
“And I assume that during that time you have had to sit and decide cases just like this one, is that correct?”
“Yes.”
“Many, many times?”
“Yes.”
“And you have had to decide this very issue-incompetence of counsel-haven’t you?”
“Yes.”
“So you are thoroughly familiar with the case law?”
“Yes.”
“Let me ask you this question, then. Even though you feel your mistake in Henry Wilson’s case constituted incompetence, does it satisfy the legal standard for incompetence?”
It was Jack’s turn to jump to his feet. “Your honor, he’s asking the witness to make a legal evaluation of his own behavior.”
“No, Judge,” Scott responded. “I’m just asking him for an opinion on one of the ultimate issues-the same thing Mr. Tobin has been asking for the last hour or so.”
Scott Tremaine had deftly turned the tables.
“Overruled,” the judge declared. “The witness will answer the question.”
“It should constitute incompetence,” Wofford said.
Scott Tremaine looked right at Judge Fletcher. “Your honor, I request that you instruct the witness to answer the question posed.”
“Answer the question, Wofford,” Judge Fletcher said.
Wofford continued to hesitate. Scott Tremaine waited patiently. Finally, Wofford answered.
“I don’t believe the incompetence satisfies the test of Strickland v. Washington. As this court knows, it’s a very high standard. The level of incompetence must be such that the accused is, in effect, denied counsel.”
“Thank you, Judge. Just to be a little clearer, is it your opinion that your representation and the errors that you made did not constitute incompetence as a matter of law?”
“That’s correct,” Wofford admitted.
Jack could now see how the rest of the cross-examination was going to go. Tremaine had succeeded in turning Wofford into his own expert. Through Wofford, he was going to try to prove that Henry had not met any of the legal criteria for a new trial. It was a brilliant tactic. Just hang in there, Wofford, Jack thought. You’ve been here before.
Meanwhile, Scott Tremaine continued his assault on Henry’s case.
“Is it accurate that besides not having Mr. Griffin available for trial, you never spoke to Mr. Griffin after interviewing Mr. Vernon?”
“That’s correct.”
“And if you had talked to Mr. Griffin back then, if you had done your job, you would have learned that James Vernon had also spoken to Mr. Webster, the prosecution’s investigator, and told Mr. Webster he was at the crime scene at the time of the murder, correct?”
“Possibly.”
“Possibly? I don’t understand.”
“He could have refused to talk to me based on the attorney-client privilege.”
“In any event, you didn’t bring Ted Griffin into court back then and ask the question and test the privilege issue before a judge, did you?”
“No.”
“As a circuit judge, you are familiar with the law on newly discovered evidence, correct?”
“Yes, I am.”
“And you have had to decide what constitutes newly discovered evidence in cases just like this?”
“That’s correct.”
“What James Vernon told Ted Griffin seventeen years ago cannot be considered newly discovered evidence, can it?”
Jack was on his feet. “Objection, your honor.”
“Overruled.”
“No,” Wofford answered.
“And that’s because you knew about the conversation seventeen years ago, even though you never asked Ted Griffin what was said, correct?”
“That’s correct.”
“And even if what James Vernon told Ted Griffin was privileged, the privilege died with Mr. Vernon five years ago, correct?”
“That’s correct.”
“How long do you have to file a motion for new trial when you learn, or should have learned, of newly discovered evidence?”
“One year.”
“So even if what James Vernon told Ted Griffin was privileged, this motion is still four years too late, correct?”
“Objection.”
“Overruled.”
“That’s correct,” Wofford answered.
“And since the information about Anthony Webster’s interview with James Vernon came from Mr. Griffin, that’s something that could have and should have been discovered at least four years ago as well, correct?”
“That’s correct.”
“So that’s not newly discovered evidence either?”
“It may not be newly discovered evidence, but it still may provide a basis for a new trial.” It was the answer Jack had hoped to hear. “I believe that a prosecutor has an affirmative duty to disclose exculpatory evidence under Brady v. Maryland. If the prosecution does not disclose that evidence, it cannot hide behind the argument that the defendant’s counsel could have and should have found out anyway.”
“Do you have any case law to support that opinion?”
“No, but that is my interpretation of Brady.”
Yes! Jack was saying to himself. Hang tough, Wofford.
“But you do agree that you could have learned about Anthony Webster if you had talked to Mr. Griffin seventeen years ago or four years ago?”
“Yes.”
“And would it be fair to say that if David Hawke and his cousin Delbert Falcon were not prosecuted for two years after Henry Wilson’s conviction, that was enough time to put you on notice that they weren’t going to be prosecuted, correct?”
“Yes.”
Scott Tremaine should have stopped there, but he didn’t.
“So the fact that they were not prosecuted is not a basis for a new trial, is it?”
“If the prosecutor affirmatively kept this information from the defense at the trial, I think that too is a Brady violation and could form the basis for a new trial.”
Jack looked at Henry, who was taking it all in. He saw Henry mouth the word yes when Wofford gave his last answer. Jack had two more witnesses to put on, but he and Henry and probably Scott Tremaine all knew that it now came down to Judge Fletcher’s interpretation of Brady v. Maryland.
Scott Tremaine did not want to end his cross-examination on such a sour note, but he had nothing else to ask, and he knew that any further questions of this witness about the Brady decision would get him nowhere but into further trouble. “I have no further questions, your honor,” he said and sat down.
It had been a long day, so the judge decided to wrap it up at that point. Jack had a few words with Henry before his personal army took him back to jail. Jack met with Wofford in the hallway outside the courtroom. The man was beside himself.
“I’m sorry, Jack. I didn’t realize that I was going to hurt Henry.”
“How do you think you hurt him, Wofford?”
“Hell, I gave opinions against your case.”
“Look, Wofford, we all knew this was a Brady case going in. We knew we couldn’t win on those other arguments. Your truthfulness and the way Scott had to pull the opinions out of you are going to work in our favor. You have narrowed the issue and framed it just the way we want it.”
“It’s funny. I’ve been doing this for so many years as an attorney and a judge. It was a totally different experience being a witness. I thought he blew me away.”
“He almost did. It was a very effective cross, but you hung tough. I think we are exactly where we want to be.”
“Thanks, Jack. I don’t know if you’re telling me the truth, but I feel better.”
“The truth will be in the decision. I’m going to be done tomorrow, in case you want to stick around.”