PART ONE The Attorney-Client Privilege
CHAPTER ONE
1990
In order for an Oregon Circuit Court judge to sentence a defendant charged with aggravated murder to death, all twelve members of a defendant’s jury had to answer yes to several questions. Those questions asked whether the defendant deliberately killed the victim without justifiable provocation, whether there was a probability that the defendant would commit acts of violence in the future, and whether, given all the circumstances in the case, the jurors thought the defendant should be sentenced to death.
As soon as the foreperson of the jury in the sentencing phase of Jose Alvarez’s capital murder case told Judge Muriel Jacobs that the jurors had unanimously found against Jose Alvarez, Judge Jacobs took a deep breath. Facing her with a stunned expression was a twenty-four-year-old college student whose bright future had turned to ashes.
Judge Jacobs took a sip of water before speaking. When she did speak, it took an effort to appear calm. This was the first time she had to impose a sentence of death, and she felt sick.
“Mr. Alvarez, you have just heard that the jurors have unanimously decided that the punishment in your case should be a sentence of death. Since they have reached this verdict, the law gives me no choice but to remand you to the custody of the Department of Corrections, where you will remain until a sentence of death has been carried out. Your attorney will advise you about your recourse at law.”
Jose stared at the judge. His legs shook, and he had to brace himself on the counsel table to stay upright.
“Please, Judge. I would never hurt Margo. Don’t do this.”
“I have no choice, Mr. Alvarez. Once your jurors reached its decision my hands were tied. I’m sorry.”
And the judge was genuinely sorry. Even though she was convinced that Alvarez had murdered his girlfriend, she would not have condemned the young man to death.
Jose collapsed onto his seat. In the spectators’ section, Jose’s parents began to cry. They were immigrants who had dedicated their lives to giving their brilliant son an education. He had repaid them by graduating near the top of his high school class and maintaining a straight-A average in engineering at an elite college. Now the object of all their energy would rot on death row until he was put down with a lethal injection.
Frank Melville watched Jose’s attorney lay a comforting hand on his client’s shoulder. The deputy district attorney knew that Jose’s lawyer was telling Jose that they would appeal, that his death at the hands of the State was not a foregone conclusion. Frank knew that Jose’s life would not be saved by the Oregon Supreme Court. The trial had been very clean, and there were no errors in the record that would lead to a new trial.
Frank put the file on the Alvarez case in his attaché case. He was relieved that his role in this tragedy was over. When the young district attorney had won his other capital cases, he had felt proud that he had avenged a killer’s victim, but he wasn’t experiencing the same jolt of electricity now.
Frank hefted his attaché case and walked through the bar of the court. He had taken a few steps up the aisle when Jose’s parents blocked his way. They didn’t look angry. They looked bewildered. Frank knew from the police reports that Pablo and Maria Alvarez were in their midfifties, but they looked frail and much older. Frank had no idea how they had looked before Jose’s arrest, but he was certain that Jose’s ordeal had aged them.
“Please,” Maria begged, “do not do this to our son.”
The court guards saw what was happening and walked between Frank and Jose’s parents.
Frank wanted to say something, but the finest orator in the district attorney’s office was lost. Frank mumbled, “I’m sorry,” and walked toward the courtroom door, fighting the impulse to race into the corridor.
Several deputy district attorneys had been in the spectator section to hear the verdict. As soon as the foreperson delivered it, most of them went upstairs to tell everyone about Frank’s latest victory. When Frank walked toward his office, everyone stood up and clapped. Melville ducked his head and raised his hand halfway to acknowledge the applause before closing his office door and dropping onto the chair behind his desk.
Frank appreciated the applause, but he had mixed emotions about the sentence the judge had imposed. Jose Alvarez had proclaimed his innocence when he testified, but Melville had no doubts, reasonable or otherwise, that Alvarez had bludgeoned Margo Prescott to death in her dorm room at Randolph College, where they were students. Several witnesses had seen the couple quarreling shortly before the murder. Archie Stallings had testified that he had seen Jose run from the scene with blood on his clothes. Jose’s bloody handprint had been discovered on Prescott’s body, and the victim’s blood was found on Alvarez’s clothing.
Melville had given Alvarez a way out. He’d offered to drop the possibility of a death sentence if Alvarez pled to life with the possibility of parole. Alvarez had rejected the offer, so he’d made his choice. Why, then, did Frank feel deflated instead of ecstatic? Was he worried that subconscious bias had played a part in the jury’s decision to execute a poor Hispanic who was dating a rich, white coed? Would the jury have spared Alvarez if he had been an upper-class WASP like Archie Stallings and his victim had been a poor Mexican?
Frank had used his exceptional oratorical skills to convince the jurors to vote for death, but now that he’d done his duty, he wondered if he’d done the right thing. Frank sighed. There was no profit in second-guessing. What was done, was done. The odds were against the death sentence being carried out, anyway. Alvarez would have an automatic appeal to the Oregon Supreme Court. Post-conviction review would follow. Then there would be federal appeals and on and on. There were even rumors that the governor was going to order a moratorium on death sentences. Hell, it was almost impossible to get executed in Oregon. There were convicts who had been on death row for decades.
Melville closed his eyes and massaged his eyelids. He was exhausted. Trying a death penalty case took everything out of you. When he opened his eyes, he looked at his watch. It was four o’clock, and there was no way he would be able to concentrate on his other cases. He needed to go home, hug his wife, and slug down a stiff drink.
The young DA put the Alvarez files and trial book on the center of his desk, turned out the lights, and left for home.
* * *
The house in Portland’s West Hills where Frank Melville lived was not one that Frank could have afforded on a deputy district attorney’s salary. The four-thousand-square-foot Tudor home had been a wedding gift from his wife’s parents.
During his second year in law school, Larry Trent, Frank’s best friend, had fixed him up with Katherine Whitlow and they had fallen madly in love. Frank knew that Katherine had just returned from a year in England, where she had studied European History at Oxford. He didn’t know that she was the sole heir to a fortune until they had been dating for nine months and she finally invited him to her parents’ thirty-million-dollar estate in California. Frank’s parents were middle-class and he had worked to pay for college and law school. He’d never seen anything like the estate, which wasn’t even the Whitlows’ primary residence. The Melvilles’ “summer home” had been a cabin they rented one week a year on a lake outside of Bend in Central Oregon.
Katherine’s father was a self-made man whose fortune had been made when logging was the main industry in Oregon, and he’d taken to Frank right away. Katherine had never made the difference in their net worth an issue and the couple were as much in love now as they had been during their courtship.
Katherine knew that the jury was going to deliver its verdict in the sentencing phase of the Alvarez trial and she met Frank at the front door.
“What happened?” she asked when she saw that her husband was not smiling.
“The jury voted for death.”
Katherine frowned. “Why aren’t you happy?”
Frank shook his head. “I’m not sure I did the right thing when I argued for the death penalty.”
“You told me that you thought he was guilty.”
“Oh, he killed Prescott. It’s just…”
Frank shook his head again. Katherine wrapped her arms around him and he laid his cheek against hers.
“I love you,” Frank said.
“Ditto,” Katherine answered as she hugged him tighter.
Frank pulled back. “Hey, watch out. You’re squashing Frank Junior.”
“You mean Nelly Melville.”
Frank patted Katherine’s stomach, where her baby bump had just started to show.
“That’s definitely a boy.”
“You wish,” Katherine said. Then they kissed again and Katherine steered Frank toward the stairs that led to their bedroom.
“Get changed and I’ll get dinner.”
“Okay,” Frank said, smiling because he knew that he was the luckiest man in the whole wide world.
By the time Frank came down to dinner, the fate of Jose Alvarez was only a faint source of discomfort. By the end of the next week, he was deep into the prosecution of a gangbanger who had murdered a rival gang member and Jose was a distant memory.
CHAPTER TWO
1997
After the Alvarez case, Frank started losing enthusiasm for his work, and two years after Jose Alvarez was sentenced to death, Frank Melville left his job at the Multnomah County district attorney’s office for a partnership in the law firm of his old friend Lawrence Trent.
Frank found that he had a knack for personal injury work and he felt good every time he got a judgment for someone who needed the money to help them on the road to recovery from an accident.
Frank also took on the occasional criminal case. The reputation for excellence he had earned as the top prosecutor in the DA’s office brought many potential criminal clients to Trent and Melville, and the money he was making allowed him the luxury of being able to pick and choose who he would represent.
The day Frank’s life began its descent into hell started on a high note. Frank dropped Nelly Melville off at her school on her second week in first grade. He beamed as he saw her two best friends race up to her and escort his daughter inside, and he smiled all the way to his office.
After spending his time in the trenches at the DA’s office, where the horrible and the bizarre were commonplace, it took a lot to surprise Frank, but he was genuinely surprised when his receptionist told him that Archie Stallings was in the waiting room. Frank had not seen Stallings since thanking him after his testimony in the guilt phase of Jose Alvarez’s trial, and he wondered why his star witness wanted to see him.
When Frank walked into reception, he almost didn’t recognize Stallings. In college, Archie had been on the tennis team and looked like an athlete. His thick chestnut-brown hair would often fall across his brow; there had been a twinkle in his eye, and he projected a look of boyish charm.
Seven years later, Archie didn’t look so good. He’d put on weight around his middle, his face was fleshy, and he was going prematurely bald. But the grin was still in place, and he stood and flashed it when Frank walked over.
“Hi, Mr. Melville.”
“Hello, Archie. What’s up?”
The grin faded. “I’d rather not talk about it here.”
“Of course. Follow me back to my office.”
Frank settled behind his desk, and Stallings took a client chair. He looked uncomfortable.
“What are you doing now?” Frank asked to break the ice.
“I’m a financial advisor with the Macklin Fund. I’ve been there two years.” Stallings forced a smile. “I’m doing okay business wise, but not so good otherwise.”
“Oh?”
“Yeah, well, I got married my senior year. I met Audrey at the Westmont,” he said.
The Westmont was Oregon’s most exclusive country club, and Frank and Katherine were members.
“Audrey filed for divorce six months ago. Then this bitch…” Stallings caught himself. “I guess I shouldn’t call her that. Her name is Jane Emery. She’s another analyst. She’d been coming on to me, and we went out a few times. Now she’s gotten me in big trouble.” Stallings shook his head. “My boss told me that they’d have to let me go if I didn’t straighten out this mess.”
Melville frowned. “I’m not following you.”
Stallings leaned forward and looked Frank in the eye.
“We had consensual sex. It was in her place. She invited me up. Now, she’s saying I raped her. They arrested me at my office. It was humiliating. My dad got his lawyer on it pronto, and I’m out on bail, but my dad’s lawyer doesn’t do criminal, and you’re the best.”
“Tell me what happened after you were arrested.”
“The detective was a real asshole. He kept calling me a spoiled rich kid, as if Jane’s family didn’t have big bucks. And he made the cuffs tight, and he threatened me. Said he thought guys who raped women were pieces of shit. He kept on telling me I’d find out how rape felt when I was in the penitentiary. I’ve never been so scared.”
“What did you say?”
“I watch a lot of law shows on TV, so I knew I had to keep my cool and my mouth shut. You don’t have to worry about me. I didn’t rape Jane, and I didn’t say anything that could be used against me.”
“That’s good.”
“So, Mr. Melville, will you take my case, because I really need the best.”
“Let’s talk business before we go any further. Defending a case like this could be very expensive.”
Frank told Stallings what he’d need as a retainer and how much more expensive things could get if they had to go to trial.
“The money’s no problem. Dad’s good for it. You give me a figure, and I’ll have a check to you tomorrow.”
“Okay,” Frank said. Then he took a legal pad out of his desk. “Let’s get going.”
CHAPTER THREE
Archie Stallings was convinced that hiring Frank Melville was one of the smartest things he had ever done. Archie knew that he had been great on the stand and might have won the case on his own, but it was Frank’s cross-examination that closed the deal. By the time Frank finished his cross of Jane Emery there wasn’t a single juror who wasn’t on Archie’s side. Frank had convinced every one of them that Emery had seduced Archie, then lied about the rape so she could take over his accounts at his firm. Archie’s employer must have been convinced too, because Jane was fired a week after the not-guilty verdict, and Archie received apologies and a promotion.
When Frank heard what happened to Archie’s accuser, he was so upset that he stayed home from work for a week. He told the office that he had the flu, but the truth was that he was heartbroken, and he couldn’t tell anyone why.
Archie had hugged Frank when the verdict was announced, and Archie’s father had shaken his hand. Frank noticed that Archie’s mother didn’t seem happy, but he was too busy to give that much thought.
Frank and Archie had gone back to his office to wrap up a few matters, and that’s when Frank’s nightmare began.
“That cross was so beautiful,” Archie said when they were in the office with the door closed. “The bitch didn’t know what hit her.”
Frank didn’t like Archie using that term, but he realized that his client was hyped up after his victory.
“I was disappointed when she didn’t cry. The cunt sure shed plenty of tears when I smacked her.”
“What?”
Stallings smiled. “You know, I wasn’t surprised that I had the jury fooled, but I am really surprised that you believed me. I thought you were smarter than that.”
“You raped Emery?”
Stallings flashed a wolfish grin. “Most definitely. And she wasn’t my first.” Stallings shook his head. “I don’t regret much in my life, but you’ll be shocked when you hear my biggest regret.”
Frank was too stunned to speak.
“Remember Margo Prescott? I sure do.” Stallings shook his head. “I’d been trying to get in her pants for half a semester, but Alvarez beat me to it. The night she bought it I saw her headed for her dorm. She was crying. I pretended to be sympathetic, and I gave her a shoulder to cry on.
“Poor Margo. Her folks didn’t like her dating a wetback, so they put a lot of pressure on her, and she caved and broke up with Jose. Now she was regretting it.
“I saw my chance, and I escorted her to her room. When I thought the time was right, I made my move, but I miscalculated, and she started to scream.” Stallings shrugged. “I couldn’t have that so I slugged her. That’s when she threatened to tell the cops. There was a picture of Mount Hood she was going to hang on her wall. There were nails and a hammer next to it. I grabbed the hammer and … Well, you know what happened next, because you read the medical examiner’s report.
“Then my luck almost ran out. I took off and got out of the room seconds before Alvarez came in. Those barrio boys can fight, and he probably would have kicked my ass if he’d caught me standing over his sweetie with that hammer in my hand.”
Stallings paused and considered that ancient situation. “The hammer might have evened things up, and I’d have had the element of surprise, but who knows.”
Stallings laughed. “Everything did come out okay, though. I’m living the good life, and Alvarez is on death row.”
Frank stared at his client. “Jose was innocent?”
“As the driven snow.”
“You’ve got to tell the authorities.”
Stallings threw his head back and laughed. “You’re kidding, right? I mean, why would I do that?”
The color drained from Frank’s face. “What kind of man are you?”
Stallings didn’t look offended. “I’m a superior man. If you need proof, consider the fact that I have done many things most people would consider to be very, very bad. And yet I have never been punished. That’s because I am so much smarter than most people. If I want something, I don’t worry. I don’t look at the pros and cons, I take it. Let’s face it, Frank, there are shepherds and sheep, mutts and alpha dogs.” Stallings shrugged. “God made me what I am, and I enjoy every minute.”
“I’m going to the DA.”
Stallings smiled and shook his head.
“No, you’re not. Do you think I would have made this little speech if I was worried that you’d tattle? You took a course in evidence in law school, right? I bet you got an A. Do you remember the lesson on the attorney-client privilege? In order to assure a client that he can be completely honest with his attorney, whatever a client tells his mouthpiece is confidential, and the lawyer is forbidden to tell anyone what his client told him; not the DA, not his wife, not his bridge partners, nobody.
“And, if you try anything, I’ll deny I confessed, and I’ll see that you are disbarred. Capisce?”
“Why are you telling me this?”
Stallings shrugged. Then he smiled. “I bet you think I’m a real jerk for making you feel guilty about Mr. Alvarez, and you’re probably right. I probably should have kept my mouth shut and not given you something to worry about. Especially after you won my trial. But I act without thinking sometimes, and this is one of them.” Stallings grinned. “My bad.”
Then he looked at his watch. “Oops, time flies. I’ve got to meet my folks at a very nice French restaurant. We’re celebrating your brilliant win. I was supposed to invite you, but something tells me you’d turn me down. I guess that right about now, you don’t have much of an appetite.”
Stallings left, and Frank stared at the wall. He felt as if he might throw up. He had to tell somebody that Jose Alvarez was innocent, but he had no way to prove it unless Archie Stallings confessed, and he knew that would never happen. Stallings was a monster, and Frank was going to have to spend the rest of his life knowing that a decent young man was rotting away on death row.
Copyright © 2022 by Phillip Margolin
