A Bird in a Hurricane

By Carlton Downey

Louisiana is the per capita prison capital of the world. Its incarceration rates are five times those of Iran and thirteen times that of China. In New Orleans, the epicenter for crime and punishment, one in seven black men is currently on parole, probation, or serving time.

Kenneth Cooper is about to become part of that statistic for the third time, but this is the least of his problems as he is now the prime suspect in the death of Avery Babineaux, the daughter of the local sheriff. Kenny now finds himself back in a corrupt system where prisoners are commodities worth twenty-five dollars a day to rural, “rent-a-cell” prisons.

Fortunately for Kenny, Paul Theriot, a prominent Houston attorney, has broken his vow to never return to the muddy waters of the Atchafalaya Basin to reconcile with his dying father. Soon after he arrives, Paul takes on Kenny’s appeal and becomes a target of those who profit from the system and will protect it at all costs. Is one inmate worth risking his life?

A Bird in a Hurricane is a captivating crime/legal thriller and an enthralling debut.

• Language: English
• Publisher: Carlton Downey
• Release date: May 11, 2018
• ISBN: 9780999793039

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A Bird in a Hurricane

Carlton M. Downey

Copyright © 2018 by Carlton M. Downey

All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system without the written permission of the author, except where permitted by law.

Bayou Press

1305 W 11th Street #3072

Houston, TX 77008

www.bayoupress.net

Email: [e-mail]

Publisher’s Note: This is a work of fiction. Names, characters, events, and incidents are a product of the author’s imagination. Locales and public names are sometimes used for atmospheric purposes. Any resemblance to actual people, living or dead, or to businesses, companies, events, institutions, or locales is completely coincidental.

A Bird in a Hurricane/ Carlton M. Downey. — 1st ed.

ISBN 978-0-9997930-3-9

Dedication

To my wife, Kim, and my daughters, Cassidy and Camille,

for your enduring love and support.

CHAPTER ONE

Dr. Stephens, I didn’t realize you were still on the job, Kyle Wilkerson said as he looked up from his phone.

Dr. McCall is supposed to be back at it in a few weeks, but you’re stuck with me until then, Dr. Donald Stephens said looking at the young woman beside Wilkerson.

We like you better than Dr. McCall. You’re more thorough, Wilkerson said.

Thanks, but I’m supposed to be retired, Dr. Stephens said.

Let me introduce you to your patient, Ms. Avery Babineaux.

I’m sorry we have to meet like this Ms. Babineaux, but I’m hoping you can tell me how and when this happened, Dr. Stephens said bending down and looking into the pool of blood surrounding Avery’s head. Did you call the Sheriff?

He said he didn’t want to be accused of tampering or influencing the investigation. He told me to do my job and hung up the phone before I could get a word in, Wilkerson said.

I would have thought he didn’t want to see his daughter with a bullet through her brain, Dr. Stephens said collecting some of the blood.

This one should be easy for you, Detective Wilkerson said.

Always interesting, never easy. Give me a half hour, and then I’ll have her moved to the hospital to do an autopsy and get a time of death over to you.

Ball park?

More than twelve hours, Dr. Stephens said looking at the body. Did the neighbors hear the shot?

"Out of town. The land lord is also the owner of the store downstairs. We’re questioning her down there now. She saw Avery on Saturday when she closed the store at five, and then this morning she came up to leave Avery a plate of Sunday’s leftover lunch and discovered the body.

She’s already reached ambient temp, Dr. Stephens said as he removed the thermometer from under her arm and looked at it with a measure of disgust.

I’ll take the easy comment back, Wilkerson said.

Now I’ll need toxicology, vitreous potassium levels, her stomach contents and some other tests before I can get an accurate window for you, but my best guess is eighteen to twenty hours, he said examining Avery’s eyes for corneal cloudiness.

A little over a half hour later, Dr. Stephens finished examining the body and looking around the apartment for any scene markers that would help him to determine the time of death. He saw no further need for Avery to remain at the apartment and was filling out forms and checking boxes of items he wanted the lab to test when the ambulance arrived.

Wilkerson continued his analysis of the scene and took pictures of everything in the room. Three hours later, he was done taking pictures and gathering evidence. He walked down the stairs and crossed the street over to the coffee shop and thought about renting the apartment for him and his wife. Avery Babineaux’s apartment was in a newer part of town and was close to work and restaurants. Although he felt bad for the Sheriff losing his daughter, Wilkerson thought Avery’s murder just might bring the once untouchable apartment back into his budget. Crossing that hurdle didn’t mean he should get a U-Haul just yet. Kyle Wilkerson was already trying to anticipate his wife’s objections and formulate a rebuttal when a waiting deputy motioned him over to a table.

I’ll get the Cooper kid and bring him in for questioning, the deputy said.

What? It’s a little early to narrow it down to one suspect, said Wilkerson.

He has a criminal history, and he’s been hanging out with the Sheriff’s daughter. That makes him the best suspect we’ve got right now. If it was that Cooper kid, then it’s her own damn fault. She should not have gotten mixed up with a black boy, the deputy said as he got up from the table. I’m going to a garage over on the other side of town to arrest him.

We don’t have the autopsy report back, we have tons of evidence to process and review, and we don’t even have anything close to motive or a murder weapon. All we have is a body at this point, Wilkerson said. Don’t jump the gun and screw this up. The evidence will tell us who did this.

We don’t want our lead suspect to run on us, and I’ve got him on other shit. He’s working at a chop shop. It’ll be his third strike, so we can keep him for a long time. The Sheriff will want the kid dead, so make sure you take your time lining it all up so he can take the stainless-steel ride in the death chamber when his appeals dry up sometime in the next decade. Lethal injection is bullshit; we should still fry em’ if you ask me.

I’m going to grab another cup before I head back and start looking at some of what I have. Take it easy, Wilkerson said staring at the bottom of his cup.

You too.

The officer went over to the shop Kenny Cooper worked in and arrested he and four other employees for repairing cars with stolen parts. Since it was their first encounter with the law, the four other men picked up with Kenny were released after pleading guilty to a misdemeanor and paying a fine.

A month after his arrest, Kenneth M. Cooper went to court with his public defender and reluctantly took a plea bargain that put him away for thirty years. The police continued to investigate Avery Babineaux’s murder and were currently waiting for the state crime lab to come back with ballistics on the bullet found at the scene. After a week in St. Anthony Parish Prison, Kenny was given what the prisoners called diesel therapy where troublesome inmates were bussed to other facilities as a form of punishment. Unlike many who were transferred, he actually welcomed the change.

CHAPTER TWO

The cracking paint on the dilapidated shot gun house and the high-pitched noise from the struggling a/c unit in the window confirmed this was a pro bono case. The house showed more signs of neglect than age, and the porch creaked under my feet as I swatted another mosquito away. My fixer, André, knocked on the door and waited for Mable Cooper to answer it.

Paul, thanks for doing this. I’m sorry for this afternoon, Dré said as he knocked on the door again.

A few hours earlier Dré accused me of being a racist, soulless suit afraid to get my hands dirty by taking on a real case. As a corporate lawyer who deals with mergers, contracts, leases, and whatever my wealthy clients need, I’ve been called worse than the words used to describe me earlier. Still, some of what he said was true. I have not tried a real criminal case in years, and despite Dré’s idealism, I’m not about to try one now either.

I don’t know if I can help her, I said setting up my exit as we waited.

Dré had been visiting his cousin in prison when he met Mable Cooper as they were leaving. He carried a box of files to her car for her and fell for her sob story about her son, Kenny, being wrongfully convicted. Like most of the incarcerated population, I’m sure her son is another good kid who was on his way to church when he took a wrong turn. If he is innocent, that’s worse. It means he still might believe the system works and will eventually let him walk. I don’t know how to tell Ms. Cooper or Dré that Louisiana jails are full of black men and Kenneth Cooper is just another one of them without sounding racist. The fact that I’ve accepted it as a way of life here makes me either complicit or a cynic, but I prefer to be labeled a pragmatist who understands what I’m up against. I’ll end up referring her to one of my former professors at Tulane who handles freebies for the less fortunate; I owe Dré that much.

Dré was about to say something else when the door opened. Mable invited us in and apologized for the temperatures and explained that the a/c could not keep up when she cooked a big meal. The inside of the house further confirmed my neglect theory, but everything was clean. The neglect in not making necessary repairs was forced on Ms. Cooper by a lack of money rather than desire. Having grown up in a similar house ten minutes from here, I understood this way of life more than most people in my current situation.

You boys come back here and eat. I got pork chops, cornbread, okra and tomatoes, and sweet potato casserole ready for us. Mr. Theriot, you eat that?

Yes Ma’am, I grew up on it, I said, and please call me Paul.

During the meal, I noticed Mable’s severely arthritic hand shaking as she served the food. The stress of her son’s incarceration and the arthritis had aged her more than her years, and as she spoke of her son, she proved the axiom that no one loves you more than your mother. We talked about who I was and where I lived and how the town had changed since I left. Somewhere in the conversation I started to like Mable; I realized I needed a moment away from her to talk myself out of taking her son’s case. I wanted to find the right words to delicately refer her to the Tulane Legal Assistance Program, so I excused myself to the bathroom to wash my hands. When I closed the door, I heard Mable talking to Dré.

I thought you worked for a black lawyer, she said.

Because I’m black, I have to work for a black lawyer? I didn’t think it mattered.

The white man put my son in jail, Mable said.

Then let the white man get him out, Dré replied.

I trusted you because I thought you knew what I was looking for, she said.

I know exactly what you are looking for, he said. Your son had a black public defender at the last trial. How did that work out for you?

He did the best he could. The prosecutor and judge were white.

I put my neck out for Paul to be here tonight. You think a man who charges fifteen hundred dollars an hour doesn’t have other stuff to do. Get the files.

Why should I?

Because we’re the best, last shot you’ve got; now go get the files for Mr. Theriot. I’m not going to ask again, Dré said.

He seems nice, but you don’t dress like that for nothing. He ain’t gonna take my case, at least not for free, she said.

He doesn’t need the money. He’s going to take the case because he’s one of you. Now go get the damn files.

He might be from here, but he ain’t one of us, she said as I walked into the room.

Mable saw my face and immediately looked down knowing I had heard everything. She had given me my out, and I surprised myself by getting defensive rather than making the exit I had rehearsed while I was literally and figuratively washing my hands down the hall.

Ms. Mable, we weren’t tripping over a line of lawyers to get in the front door, and I won’t apologize for being white because I can’t change it. I understand your reluctance to trust me, but if you don’t trust me, then I can’t help you. I didn’t put Kenny in jail, and I don’t know if he belongs there or not. What I do know is that Dré believes he doesn’t, and I do trust him. Why don’t you get the files so we can see what we are up against?

Surprised by my candor or embarrassed by her own words, Mable came over with her box filled with sixty or so manila folders. Innocent people rarely had this many files packed with evidence against them, but since I was the one who told her to get them, I now had an obligation to find out what had happened. I decided to ask her to give me a synopsis of what the files contained.

Ms. Mable, this is a lot of paperwork, and I’ll look at it, but you know more about this case than those files. Why don’t you tell me what happened and why Kenny should not be in jail?

When Kenny was fourteen, he stole a purse that was sitting on a bench in the park. Kenny and I never had any money, and it was tempting just sitting there. What he did was wrong, and Kenny served two years for that since he was a juvenile. He got out, and since they told him he couldn’t get a job having a felony on his record, he got his GED and went to the trade school to be a mechanic hoping that would help him get a decent job. The only place that would hire Kenny was a chop shop. When he was seventeen, police picked him up with a stolen navigation unit for a car. He did not steal it, but it was in his possession. He got charged with another felony, and he served another year since the other kid admitted he stole the radio. The big one came when the police raided the shop Kenny worked in, and he was using stolen parts to fix another car. They got everyone in the shop, and even though Kenny did not steal the car in question, he knew it was stolen, and they said that was just as bad. The prosecutor told Kenny that he was going to serve life without parole for being a three-time offender, but Kenny and his public defender cut a deal where he would serve thirty years without parole for what he did.

Why was Kenny a felon for the first offense? How much cash was in the purse?

A hundred and ten bucks, but it also had a cell phone and three packs of cigarettes in it, so the value was over three hundred dollars. The cell phone did him in, Mable said.

Why didn’t they charge him with petty theft? Dré asked.

I had to think back to when I worked hundreds of hours in the Legal Assistance office about parameters of the law. In Louisiana, theft over three hundred dollars is a felony, and they can sentence you to jail time for it, but for this amount, they usually have you do a diversion program or probation. Kenny got jail time for that? Was he offered anything for being a first-time offender?

I told you, he got two years in jail, and served every day of the sentence in a prison for boys, Mable said. Well, it wasn’t really jail. They called it a training institute so the boys would have a skill when they got out of jail. He worked on a sewing machine for ten hours a day making clothes.

But the first felony was when he was a juvenile, so it should have been expunged, I said thinking out loud again.

The second crime happened when he was seventeen. Wouldn’t he have been a juvenile then as well? Dré asked.

Louisiana is one of ten states where all seventeen-year-olds are charged as adults. I’m going to have to read the files and see what papers were filed on his behalf. I think most of his records are going to be stored electronically with the state, and I am going to talk to him. How far is the state prison from here?

Kenny and my cousin are in a Parish prison next to the Sheriff’s office, Dré said.

Why? They committed crimes against the state.

I don’t know, but that’s where they are. Kenny just got transferred from a prison in St. Anthony Parish to over here, Dré said.

Ok, I need to talk with Kenny, I said as I was thinking.

Does this mean you are taking the case, Mr. Theriot? Mable asked.

I’m not going to promise you anything, but I am going to try to help him out, I said trying to leave myself an opening for when I eventually came to my senses.

We got up to leave, and Mable stopped us as we were heading out of the kitchen, Mr. Theriot, here, you take the box, Mable said. You’re going to need it.

You sure? There might be some stuff that may not be able to be replaced if anything were to happen.

Mable looked me in the eyes and began crying and hugged me with more force than I expected, You’re the first lawyer to listen to me. I mean really listen. Then, your first thoughts were what went wrong and how you might be able to help instead of thinking he belongs in there. I can see you are the man I was prayin’ for, Mr. Theriot.

I’ve never been the answer to anyone’s prayer, Mable. I’ll look at this, but don’t get your hopes up. Criminal appeals are rarely successful, and I don’t know if we even have any grounds for an appeal.

Well, you’re the answer to my prayer. I told André I can’t afford much, but I will pay you.

I hesitated for a moment and then gave in. No ma’am. I have to help people out to keep my license. I usually get to pick the case, but it looks like Dré did this one for me. Are you sure about me taking the files?

Yes sir. Take them and let me know what you think, Mable was smiling as she wiped her tears away.

I’ll go see Kenny and get him to sign a representation agreement, I said gathering the files.

As we drove away, Dré thanked me for taking the case.

I’m sorry I protested, I said indirectly apologizing for our fight that afternoon.

I didn’t think she would fight me, Dré said. Thanks for turning that around. She and her son need you.

They need us. You got me into this, so start finding out what you can about his last lawyer and the prosecutor. I’ll start looking at the transcripts of the last hearing. At least we have something to do while we’re stuck in this ant hill of a town, I said looking out the window.

CHAPTER THREE

My plan to never return to this part of Louisiana had come undone when a father I had not spoken to in twenty-three years received his death sentence. After staying with me in Houston while undergoing six weeks of palliative chemo at M.D. Anderson for pancreatic cancer, my father asked me if I could bring him back to the bayous and swamps he called home.

The doctors said the chemo would give him a year, maybe a couple of months beyond that if he was lucky. Gus agreed to the chemo because he said we had to make up for lost time. Initially, I was fine with the three-month prognosis and advised him against the chemo given the side effects, but the will to forgive and the desire to do so had finally intersected, and we both agreed we wanted more time. I have not known my father without drugs or alcohol in his system, but now that he’s clean and sober, I can see why my mother loved and forgave him before she passed away.

Eventually, I’m going to bury my father, the last living person in my family besides myself. I have more money and power than most, but that can’t keep Gus alive, and I’m starting to accept the futility of my position. I’m here to get him settled in before I go argue a case back home in Texas and come back over and make arrangements for him to be cared for during the week while I’m at work. To be honest, it’s entirely possible I took Mable Cooper’s case so I have more here to do than watch my father slowly die.

We walked in through the back door, and Dré saw the note on the table and handed it to me.

Paul, Mass at ten, I read as Dré started laughing.

Why are you laughing? You have to come with us, I said.

Went this afternoon to the black people’s Saturday service while you were throwing your fit about meeting Mable Cooper, he said. I’m going to head over to my mother’s house in New Orleans and stay with her a couple of days. I’ll look at the Cooper case and then get back up here to watch Gus when you go back to Texas.

Dré, I’m going to find a way to get that kid out, I said as he was about to walk out the door.

I know, and I’m going to help you do it. Call if you need anything, he said.

I began to look over the files, and I found basis for an appeal for ineffective counsel rather quickly. Kenneth Michael Cooper went to court with his public defender and took a plea bargain that put him away for thirty years for his third offense for theft.

He had a shitty lawyer, but it was not ineffective counsel. In Louisiana, the per capita prison capital of the world, third time offenders could be given life with no realistic chance at parole, so Kenny’s lawyer was right to tell him to take the deal. With any luck and some overcrowding, Kenny could be out by the time he was forty and still have a chance at something that could resemble a life.

The ineffective part was when his lawyer, Bruce Clayton, started coughing and then stepped out of the courtroom while Kenny was left with a third-year law student from LSU to advise him as the judge was explaining his sentence. Kenny did not have ineffective counsel, he had none at all. This alone could get the case in front of the court again, and I needed to start looking into and putting together other possible reasons and errors as to why his sentence should be reduced or dismissed. The appeals court would remand it back to the lower court to review whether or not the result of the plea bargain might have been different if counsel was present.

It was half past six in the morning, and I decided to get a couple hours sleep before Gus dragged me to Mass.

I was exceeding the speed limit by fifteen miles following the Mississippi River along the winding turns of River Road. I shot around one of the curves, and Gus gave me a warning.

Slow down or you’re going to get a ticket. This isn’t Houston; our cops are assholes over here, Gus said.

I can afford it, I said pushing the Maserati a bit more. You haven’t said anything since we crossed the bridge a few miles back.

I’ve been thinking. I know you have tons of money, but I don’t want no damn expensive funeral, Paul.

Just tell me what you want, and I can send it to my office when we get back to your house.

You know it’s your house, too?

Dad, I’m never coming back to St. Mark again. You need to think about who you want to leave everything to when you go.

I know you never planned on coming back, but I’m glad you’re here now. It means a lot to me, Gus said.

I’m glad we finally got this right, I said as we pulled in front of the church.

Sunday Mass here was like all the ones I sat through as a child. The priest had a thick Cajun accent, and the people wore their nicest clothes to the Sunday morning service. I looked around and was able to substantiate Dré’s claim regarding different services for white and black people. Afterword, my father and I shook hands with the priest. My father introduced me as T-Paul and then saw his AA sponsor as we walked down the steps in front of the church. Gus asked me to wait a minute so he could go and let him know he was doing well.

As I waited for Gus, I was thinking about the name of my youth. In the basin, the ‘T’ was short for petite, or little. It was used when a younger family member shared a name with an older one. My uncle was the older Paul in our family, and despite him dying when I was a teenager, I was stuck with the T being part of my name, at least with the older people in town.

While waiting on