The phone rings. Goddamngoddamngoddamn. Oh, it's just Mike, at the office in D.C., calling with no news from the Supreme Court. "Nothing, no, I got nothing here, either," answers Paul Khoury in frustration. Still waiting to hear from the governor. He hangs up.
Goddammit. How do you sit here, he wonders, stuck in a room at the Holiday Inn, waiting for someone to tell you whether your client--a client you firmly believe to be innocent--will be executed tonight? You don't. You watch TV. You drink water. You pee. Mostly you pace.
Back and forth, back and forth. It's Nov. 7, a day Khoury has known for years might come--the day an anonymous state employee may start a machine that will pump deadly chemicals into both his client's arms. Now it's almost 11 a.m.--10 hours to go--still time, Khoury thinks, but not much. Back and forth, back and forth.
ESPN is on, but there's no game. Just the sports news--Boston College has suspended 13 players for gambling, in two cases for betting against their own team. Khoury chuckles at that--and laughs heartily at the repeated ads for pills promising "Great Sex!"--anything to avoid thinking about Joe Payne's fate.
But like a stubborn child, his mind won't concentrate on anything else. So he finally thinks about Payne, his client since 1987, locked up a few miles away at Virginia's Greensville Correctional Center, near the North Carolina border. Payne was just brought there the previous Friday, to one of the four cells of the Virginia death house; the others are empty. Khoury has resisted learning the dark specifics of what will happen in the death house tonight--but colleagues and reporters have told him anyway. The precise procedures are set forth rigidly in secret state documents, but the outline is clear: The inmate can visit with family members until 3 p.m., clergy until 7 p.m. He eats his last meal at 6 p.m. The injections start at 9 p.m.
The cold time line menaces Khoury: Other lawyers are working on the case, but if Payne dies, lead counsel Khoury knows he will carry the weight forever. Payne's is his first death-penalty case. It will be his last.
The phone again.
"Hello? Hello? Hello! Hello!" No one is there. "Damn," he whispers.
He glances over at the cell phone and down at the pager clipped to his belt. Even though he is a partner in the 12th-largest law firm in Washington, he doesn't usually carry so much communications firepower. His specialty is government contracts--a slow, meticulous business that Khoury has learned to love. Literally billions of dollars can be on the line, but never is time so maddeningly crucial as now--every second moves Payne closer to death, and yet every second is drawn out like a year. Perhaps this is what death row is like.
Over the last few days, Khoury has occasionally caught sight of himself toiling feverishly on this case, and when he does, the road to these agonizing hours at the Holiday Inn seems long and strange indeed. He took Payne's case years ago because it promised to add meaning to the margins of his professional life: Payne's defense would require him not only to brush up on criminal law but to learn to gumshoe his way around a murder investigation. He would be able to file petitions in federal circuit court and the Supreme Court--rarities in his field. It would be a good professional opportunity. It would get him out of the office. He never really expected the fear and crushing uncertainty of Room 509.
The cell phone and pager are silent, blank, taunting. Khoury is a slave to their every blip, and yet he's not even sure how they work. To pass the time, he asks someone to call him on the cell phone. It rings. He answers. It works. He paces.
Khoury guesses and second-guesses: The Republican governor of Virginia will wait for the Supreme Court to issue its (almost certainly negative) decision. The court would only halt the execution if a constitutional issue were at stake in the case, and Khoury knows that none is--especially from the perspective of this conservative court. Statutorily, Gov. George Allen can do whatever he wants. He could grant clemency because no one would ever accuse him of being soft on crime--like Nixon going to China, Khoury thinks.
On the other hand, maybe Allen is as nuts as all the liberals say. He not only supports the death penalty, after all, but coddles it, sings its praises, greases its tendentious path. As governor, he signed a law that truncated the appeals process in capital cases, and he ordered the Department of Corrections to allow victims' families to witness executions. He allowed the execution of a mentally retarded inmate. His administration set one execution date on the killer's mother's birthday. He has never granted clemency in a capital case, Khoury knows, and in 1995 the state tied its record for number of executions in a single year (five).
So maybe Allen wouldn't commute any death sentence--even in a case like this, in which mountains of post-trial evidence point to Payne's innocence. "A reasonable person cannot read the facts of this case and come away thinking, 'Oh, this man did the crime,'" Khoury has been telling reporters for weeks. But maybe Allen isn't a reasonable person.
Too edgy to eat and now achy from his mostly sleepless night, Khoury is trapped by these thoughts, trapped in Room 509, its curtains drawn against the world and the gray sky outside, and the preparations going on at Greensville. "Damn," he says again. "It really doesn't get any more tense than this." He smiles awkwardly and looks down.
Two television crews breeze into his sanctuary, bringing bright lights and big hair. Grateful for the opportunity to feel as if he's actually doing something, Khoury focuses his mind and goes over the case convincingly, reiterates his client's innocence, and says he thinks the governor will consider all the evidence carefully. But when the TV people are gone, he loses his temporary equilibrium, and his mind gyrates recklessly again.
At 12:54 p.m., the phone rings again.
"They did? Did they write anything? No, OK. I'm going to see Joe now."
The Supreme Court has declined to hear Payne's case, by a vote of seven to two. The justices issued no written statements. Though Khoury expected the decision, tears well in his eyes. Now Payne's life rests in George Allen's hands.
What Khoury knew at that moment, but did not fully articulate until later, is that the judicial system--from trial court to Supreme Court--had just failed Joseph Payne Sr. Tragically, the courts had left Payne's fate up to a politician. When Khoury first took this case, he didn't believe the system could collapse as miserably as it did. But of course, when he first took the case, he thought Joe Payne was almost certainly guilty.
That was before he knew anything about the murder Payne was convicted of, or anything about the arcane exegesis that comprises capital-punishment law. In 1987, Payne was just a name Khoury received from the American Bar Association (ABA), and Khoury was just a first-year associate at the young firm of Wiley, Rein & Fielding.
Khoury, then only 26, had registered with an ABA program that connected lawyers with clients on death row who needed representation for their post-trial appeals. By that time, crime-weary juries and judges had sent nearly 2,000 inmates to death row, straining the ragtag network of nonprofits that handle their cases pro bono. Today, in some states, as many as one-quarter of death-row inmates have no lawyers for their appeals, and the national death-row population has grown to more than 3,100.
From the beginning, Khoury knew it was a messy case, both physically and legally. Early on a Sunday morning in 1985, someone in the Powhatan Correctional Center--where Payne was already serving a life sentence for the 1981 slaying of a store clerk--incinerated David Dunford, another inmate. The assailant padlocked Dunford's cell, tossed in a can of paint thinner and a lighted book of matches, and stood back as the can exploded into flying shards of metal and flames.
An inmate in the cell across from Dunford's spilled his coffee after he heard the blast. Startled guards rushed around trying to break the padlock and extinguish the blaze, but the fire burned Dunford over more than two-thirds of his body. During the next nine days, the assailant no doubt dwelled in paranoia as Dunford hung on. And no doubt the killer breathed a heavy sigh when Dunford finally succumbed to his wounds without naming his attacker.
Khoury didn't represent Payne when he was first tried for Dunford's murder. In fact, he didn't get the case until after Payne had lost not only his trial, in April 1986, but also his appeal to the Virginia Supreme Court, in June 1987. The first document from the case that Khoury read was the state Supreme Court's decision, and it wasn't promising. "If you're just to look at that, you think, man, this is a loser--a dog of a case. There's nothing here, nothing to argue," Khoury recalls.
But he figured that most death-penalty cases look dismal after the first appeal fails. There was no reason to think the next case in the ABA pipeline would be any different. So he and Chip Yorkgitis, another young associate at Wiley, Rein, went to the firm's top brass and asked permission to take the case, which they quickly received. But when Khoury and Yorkgitis scratched the surface, holes in the government's case against Payne slowly opened.
One of their first steps, of course, was to meet Payne. Khoury had been in a prison before, but he had never met anyone on death row. When the 31-year-old Payne walked into the visiting room of the Mecklenburg Correctional Center, Khoury particularly noticed his long, almost beautiful brown hair and the tattoos that mark his brawny upper body. And when Payne spoke, Khoury was impressed with how articulate and polite this twice-convicted murderer was.
Khoury took the lead in questioning Payne, who said his three-day trial had been a fiasco. Payne said his chief trial counsel, Michael Morchower of Richmond, had more or less phoned in his defense. He didn't even meet Morchower until a day or two before his trial began, Payne said; he had dealt only with Morchower's associates. Payne charged that Morchower then blundered his way through the trial, mostly ignoring his client.
If Morchower did drop the ball, it was an uncharacteristic performance. Before the trial, Payne's chances looked good. Morchower is the biggest fish in Richmond's criminal-defense pond. A former FBI agent and prosecutor, he switched sides with great success: He had never lost a capital case before Payne's, and he had even successfully defended another Virginia inmate accused of burning a man in the state penitentiary two years earlier. Morchower keenly anticipates prosecution weaknesses, and he impresses juries with his 6-foot-3 presence and his shimmering oratory. His license plate proclaims him "MAGIC."
Fighting opposite Morchower was the Commonwealth's Attorney for rural, conservative Powhatan County, west of Richmond. Despite his august title and name, John Latane Lewis III is a friendly, down-to-earth prosecutor who works from a converted colonial-style house down a gravel driveway. The Dunford murder was his first capital case ever--and one of only two in Powhatan in the 20 years Lewis has been prosecutor.
In addition to Lewis' relative inexperience, the jury--11 women and a young man about Payne's age--seemed to hold pretty good odds for Payne. Lewis knew that convictions and death sentences are harder to win from female juries, and he knew Morchower was good. He also knew that the only witnesses in the case were other inmates--convicts whose testimony is always suspect in jurors' (and everyone else's) eyes.
Morchower surveyed the same set of facts and decided, as he says today, "we had this in the bag." But at two critical moments, he made decisions that today look moronic. First, he called only two of the 16 witnesses he had subpoenaed to testify for Payne. At least one of those he neglected to call told Khoury later that he would have testified that he saw another man, Robert Smith, holding a paint can just seconds before the explosion. Two others told Khoury they would have testified that Smith bragged to them about committing the murder shortly afterward, in the chow line. They said Smith--a convicted armed robber known around prison as "Dirty Smitty"--told them he saw Dunford's skin roast onto the bars of his cell as he tried to escape.
Second, of the two witnesses he did bring to the stand, Morchower flubbed his questioning of the more important one. Frank Clements testified that he saw Smith commit the murder while he and Payne were in the shower room nearby. He and the other witness for Payne said Payne had helped plot, with several others, to kill Dunford--but that Payne had dropped out of the conspiracy before the murder. Clements' testimony should have been useful, but Morchower and his co-counsel forgot one devastating detail. At the trial of another inmate involved in the conspiracy, Clements didn't say he saw Smith commit the murder; he merely said Payne was with him in the shower at the time of the murder. Prosecutor Lewis didn't forget that detail, and he crucified Clements for adding to his story.
Despite Morchower's errors, Lewis believed he still had the weaker hand. His only witness claiming to have seen Payne commit the murder was, of all people, Robert Smith--Dirty Smitty himself--who admitted that he was involved in the plot to kill Dunford. Three others testified simply that Payne had been part of the conspiracy, which Payne had conceded--but they, too, admitted their own involvement in it. To make matters worse for the prosecution, Lewis had to disclose that all four of the state's witnesses received 10-year reductions in their sentences in exchange for fingering Payne. Payne's witnesses, of course, got no time off.
Fearing defeat, Lewis offered Morchower two plea bargains during the trial--first, a life sentence and later, 30 years. Asserting his innocence, Payne told Morchower to say no. Months later, he told Khoury that he also urged Morchower to call his other witnesses and that he vehemently objected when Morchower rested the case without doing so.
The jury struggled mightily with its decision. In an affidavit obtained only recently by Khoury's investigative team, one juror said she and the others "did not believe much of what any of [the witnesses] said." A motley bunch of criminals, they told conflicting stories and outlined weird motives: Dunford had defied a white prison gang called the Pagans, some said, while others suggested that Dunford was moving in on another man's lover. Who knew the truth?
Another juror, Shelly Brydie Gray, said later that she lay on the floor of the jury room and cried. She also blasted Morchower: "I remember being surprised that someone with his reputation could do such a poor job. He was arrogant and unconvincing." The charge of arrogance is one Morchower hears a lot and seems to encourage: "I can learn facts in the hallway and off the top of my head spin a defense that is persuasive," he told a Richmond Times-Dispatch reporter in 1994.
If that was his strategy in 1986, it didn't work for Joe Payne; the jury voted to convict. During the sentencing phase, they learned something that had been inadmissible during the trial: Payne had murdered before--in February 1981, in Prince William County. Inhumanly drunk, Payne and his brother robbed a convenience store near Manassas. Payne then walked out, grabbed a shotgun from his truck, and as storekeeper Louise Winslow lay on the floor and tried to shield herself with a chair, fired a blast into her chest. That's why he was doing life at Powhatan Correctional Center.
The jurors were horrified, and many became quickly convinced that they had made the right decision in convicting Payne of a second murder. The judge, however--a judge hearing his first capital case--failed to instruct the jury not to consider Winslow's murder when deciding on Payne's punishment. He should have emphasized that they could only consider the case at hand. Morchower's team didn't object to the judge's omission--another error. In an affidavit--again obtained recently by Khoury's investigators--a juror said the jury gave Payne the death penalty because "we made a finding of vileness based on that first murder." And so Joe Payne was on his way to the death house, courtesy of testimony from a man who many said actually committed the murder.
Morchower says today that he and the two other lawyers handling the case "made a judgment call" not to hear testimony from the other witnesses for Payne. "They had made so many different statements, conflicting statements, that we didn't know what they would say" on the stand, Morchower recalls. "What an affidavit says and what a witness will say in trial, or under cross-examination, are two different things."
Morchower also strongly denies that Payne objected to his tactics regarding the other witnesses. "Joe Payne deferred to us," he says. "If he hadn't, we wouldn't have done it that way. Our client always makes the final decision." And he says he met Payne "eight or 10 times" before the trial--not merely the day before. "Look, the bottom line is, everybody can Monday-morning quarterback this thing....It was a murky case," Morchower says.
Later, however, Morchower called back
to say, "Maybe we made a mistake, you know? You're there, in the trial, at that moment, and you make a call, and sometimes the call turns out wrong." Morchower has not lost a capital case since.
When Khoury read the trial transcript, he couldn't believe his eyes. He had been wrong to think that Payne's defense would be quick work. The case against Payne was Swiss cheese, for God's sake. He knew he could build a case for Payne's innocence. Plus, he could persuasively charge that Morchower was ineffective and that the judge bungled his jury instructions.
So Khoury started from scratch. He would interview everyone--from guards to witnesses (both those who testified and those who didn't) to corrections officers to friends, relatives, whomever he could find. In other words, he would investigate the case all over again, digging punctiliously for information that prosecutors and corrections officers hadn't found in their own months of digging. And he would become convinced that Payne was sentenced to die for a murder he did not commit.
Paul F. Khoury's K Street office is bland in the way that wealthy, conservative law offices always are. His window looks out from the 10th floor at other law offices across the street, and to other lawyers hurrying along below. The work of two banal artists hangs on the wall--a colorful painting of Georgetown's M Street strip, and a crisp photo of the monumental core. Paul, his wife Jane, and their two daughters smile from other photos.
Khoury (pronounced coor-y) dances a little awkwardly in the spotlight. Now 35, he grew up in the District and went to the tony St. Albans School for Boys, but he hasn't become a power broker or political confidant. He isn't even especially interested in politics. Despite his Egyptian heritage and urban upbringing, he has managed to develop a slight Southern drawl, which he can't really explain ("D.C. is sort of a Southern city," he offers). His waistline suggests he eats too many fast-food meals.
Like any skilled litigator, Khoury is sharp on his feet, and he does his homework. But he's not particularly eggheaded: Ask him about Dartmouth, and he remembers playing beer pong with his frat buddies. In 1986, after law school at George Washington, he landed at Wiley, Rein & Fielding, then a 3-year-old firm started by former Nixon and Reagan administration officials. Khoury, who specializes in representing companies that sell their wares to the government, would become the first lawyer there to go from associate to partner.
Wiley, Rein grew dramatically during "the go-go '80s," as Khoury puts it. (Today the firm has approximately 200 lawyers, of whom about 80 are partners.) Its main practice is communications law, but its Republican roots have led it to legal work for George Bush's presidential campaign and, more recently, for House Speaker Newt Gingrich.
Khoury acknowledges--though only after much prodding--the irony of his death-penalty work at Wiley, Rein, since such cases are usually the province of liberal lawyer-activists. Payne's case is not part of any personal war against the death penalty, which Khoury more or less supports: "I am not philosophically opposed to the death penalty. My concern is precisely this type of case."
Colleagues at the silk-stocking firm would occasionally rib him about the case over the years. "Hey, can't we take a pro bono case for the prosecutor some time?" they would ask. But the firm never wavered in its commitment to Payne. Khoury estimates that if the firm had billed Payne for legal services, he would have had to muster at least $1.5 million, and at least another $100,000 in expenses. (It might as well have been a trillion as far as Payne was concerned.)
But Wiley, Rein paid for everything--travel, hotel stays, a five-member investigation team, and, among other things, a host of Wiley, Rein summer associates, paralegals, and lawyers. Over the years, perhaps 50 people in all at the firm worked on the case, Khoury estimates. A top-flight capital defense costs major bucks, and Joe Payne--one of the incredibly lucky few on America's death rows--got one of the best ever.
Of course, Khoury didn't focus solely on Payne's case for nine years. There were spates of work on Payne's behalf every year or so, as the case wended its way from state appeals to the first federal appeal to the 4th U.S. Circuit Court of Appeals and, finally, to the U.S. Supreme Court and Gov. Allen. Even the day before Payne's scheduled execution, Khoury spent a few minutes on a NASA contract for Russian translation services. Indeed, he mostly works on money-making cases--and sometimes big money.
In one case, Khoury helped represent a company that ran operations at NASA's Kennedy Space Center--a $2-billion contract. A few years ago, the company lost the contract and protested. Because he was just an associate at the time, Khoury was one of the last lawyers to depose the evaluators who had decided to award the contract to another company. But one evaluator revealed to Khoury--and no one else--that a major impropriety had occurred in the evaluating process. Subsequently, NASA was forced to settle the case, and Khoury's client won the contract back. It was a great day for Wiley, Rein, and not a bad day for Paul Khoury, either.
"The guy wanted to tell the truth, but he didn't want to give me any names," Khoury says. So he spent hours with him, winning his trust, edging him along, pushing a tiny
bit further with every question. And
Interrogation was a skill he had learned in his first legal job, working for D.C.'s Public Defender Service (PDS) during a college break. Though young, Khoury did well as a PDS investigator, mostly because he didn't mind asking questions. In fact, he enjoyed it, since he was always startled at how much people would reveal--perverse secrets, patently criminal behavior, disgusting personal details, whatever. Build even a smidgen of trust with most people, and they'll tell you anything, Khoury believes.
"It was amazing to me how, you know, if you show support, show concern, and show interest, people want to talk to you," he says. So a kid in a halfway house tells Khoury crucial information in a murder case. Years later, a contract evaluator tells Khoury that someone made a $2-billion error. Later still, convicts would tell him what really happened on the day David Dunford died.
"It's human nature to want to tell your story. And I think what we do as lawyers is that--we elicit information from people, and we try to tell a story in as persuasive and interesting a way as we can," Khoury says.
Law school was useful but, to some extent, beside the point. Khoury became a lawyer in order to ask questions and tell stories, not write briefs and grapple with legal knots. Hence government contracts become an expression of human nature, not stultifying legalese. Khoury's work may look boring, but he sees it as his own quirky window on humanity.
It was not so odd, then, that this dour-seeming contracts lawyer took on a whodunit death-penalty case. PDS and the seedy streets of late 1970s D.C. had ignited his interest in criminal law, and any ambitious young lawyer knows that capital cases almost always lead to arguments before the top courts and judges in the country.
"I had done other kinds of evidentiary hearings and so forth prior to that, but [Payne's] was a 25-witness case where you're lead trial counsel, involving the death penalty, where you've got, you know, characters like Dirty Smitty," Khoury recalls. "It's pretty heady stuff."
But something more personal occurred, too. In most criminal cases, like Payne's, the truth is only a subtext to the main plot line--evidence. Prosecutors want enough evidence to convict; defense attorneys want to leave a shadow of doubt. And that's it; the truth, perversely, is irrelevant. "I don't tend to get involved with the claims of truth, certain guilt, believing one thing or another to be certain," says Morchower. "I think most criminal lawyers agree with me on that. What does Mr. What's-His-Name do?" he asks, referring to Khoury.
Khoury, bless his idealistic heart, came to care about the truth. He came to believe, with conviction, that Payne did not kill Dunford and that Smith probably did. And once he did that, Khoury was implicitly--and sometimes explicitly--accusing the prosecution not only of having a weak case, but of lying. Khoury came to believe that truth was not beside the point. It was the only point.
Khoury's initial skepticism about Payne was worn down over a period of weeks and months. In 1987 and 1988, he and Yorkgitis interviewed as many as 40 inmates who knew something about the case--often just rumors and half-truths, the intellectual flotsam of men with too much time on
But consistencies began to emerge, even among inmates dispersed throughout the Virginia prison system. "We realized, because we were hearing the same thing--and hearing things that could not possibly have been contrived or talked about after the fact, because people were [in] different places. We were sort of like, 'He really, he really, he really didn't do this,'" Khoury says.
Khoury began to organize all his findings and eventually came up with a list of the most important evidence the jury hadn't seen. Critically, he obtained affidavits from two inmates who hadn't come forward before Payne's trial. Now they both said they saw Smith kill Dunford; in essence, they corroborated Clements' account: Payne was in the shower when Smith ignited the paint can.
Khoury describes one of them, Eddie Phillips, as a Morgan Freeman type (think The Shawshank Redemption)--an older black man who radiates honesty amid thugs. Eventually, Phillips would arm Khoury with a dynamite quote, which Khoury would use both in court documents and media interviews repeatedly.
Phillips said that he had not come forward at first because he wanted to "stay out of white folks' problems"--especially when the white folks are associated with a white gang. Moreover, he knew that Payne--already serving a life sentence--wouldn't be affected by another life sentence. Then, of course, Payne got death. "Later on, to me, it wasn't no white or black problem, because they condemned the wrong man. So to me, it [became] a human problem," Phillips said.
Khoury also found and interviewed the witnesses Morchower had neglected to call, three of whom signed affidavits with damning evidence against Smith. And he found a former inmate and friend of Smith's who said Smith told him he was lying at Payne's trial because "I'd testify against my grandmother...to get the hell out of jail."
In December 1987, Khoury achieved his biggest breakthrough. He traveled to a prison in Augusta County to interview Smith himself. He used classic PDS technique. "You go and you talk to the guy. You don't take a note for a couple hours--you know, you build a rapport, and [say], 'Man, I gotta start writing this down.'"
Witnessing the interview was Marie Deans, the secular, chain-smoking version of Sister Helen Prejean (think Susan Sarandon in Dead Man Walking). As the founder of a nonprofit and a passionate opponent of the death penalty, she would earn the moniker "angel of the death house." She connected inmates with lawyers (and had helped Payne find Khoury, through the ABA), drummed up publicity, and visited inmates, right up to their executions.
What Smith said in the interview shocked both Khoury and Deans. Under Khoury's questioning, Dirty Smitty recanted everything. He admitted lying from the beginning--to the corrections investigators and all the way through Payne's trial. "When I walked in the shower on the day this happened, before the explosion, Joe Payne was already in the shower," Smith said. "Then we heard an explosion and heard somebody yell, 'Fire, fire.'" Khoury wrote out, by hand, a 16-page affidavit for Smith, who signed each page.
Khoury says Smith also came close to admitting his guilt during that interview. "At one point he stopped, and he said to me, he asked, 'If I say in this recantation that I did it, could I get a murder charge put on me?'" Khoury recalls. His heart skipped a beat, and he answered carefully.
"Well, you know, you were their star witness--it would be crazy for them to--"
Deans, who thought Smith needed a more straightforward response, broke in: "Yes, yes, you could get a murder charge."
Smith sat quietly for a few seconds. "If I said I did this, could I get the death penalty?"
With some emphasis in his voice, Khoury replied, "You just put somebody else on death row. They're not going to turn around--"
Deans again: "Yes, yes, you could get the death penalty."
Smith sat in silence again. Then: "Guess I can't say that."
So Khoury didn't quite get a confession from Smith, but the recantation was extensive. And Smith made other startling allegations that would help Payne. He said the corrections investigators had told him what to say and allowed him to coach other witnesses. He said the investigators used a combination of threats and inducements to get him to implicate Payne. Crucially, he said he had received an additional five-year sentence reduction in exchange for his testimony (adding up to 15 years in total cuts) and that the state dropped a forcible-sodomy charge against him. These additional inducements had not been disclosed at Payne's trial.
Khoury and Deans were thrilled. "I was so pumped," Khoury recalls. "When do you ever get an affidavit like that?" Though not a smoker, after the interview he was so jazzed up he took one of the Marlboros that Deans offered, then another and another. And they sat in his 1976 Plymouth Duster, puffing away until 2 or 3 in the morning, relishing a rare moment of clear victory.
There would be others. Khoury found Department of Corrections and court records confirming that Smith received the additional five-year reduction and a bye on the sodomy charge. Other records confirmed that Smith was allowed contact with two prosecution witnesses prior to their court testimony.
And Khoury came across a curious letter. A month after Dunford's murder, before prosecutors had charged anyone, the warden at Powhatan Correctional Center, where the murder occurred, wrote to a corrections administrator. "It is very critical to send a signal to others that this type of action will not be tolerated," the warden wrote. "I cannot think of a better signal to send than someone being convicted of capital murder."
The letter was no smoking gun, but it suggested a motive behind Smith's allegations of threats and special inducements to get a conviction. Morchower had won the similar inmate-burning case just two years earlier, and the department didn't want to get clobbered again: Another defeat might prompt inmates to think they could get away with murder. When Smith was willing to tag Payne with the murder--and others would testify that Payne had at least helped plan it--that was good enough for prison officials. Payne, on the other hand, said he couldn't see who committed the murder (though he did say that Smith more or less admitted his guilt to him moments after it).
Khoury would not be able to present all this evidence in a court until October 1991, more than five years after Payne's trial. The occasion was a hearing ordered by a state court to address Payne's new evidence.
This time, seven witnesses testified on Payne's behalf, all of them implicating Smith to one degree or another. Khoury also introduced Smith's recantation, including its sizzling allegations that he had had his sentence shortened and been pushed into fingering Payne--sizzling because they accused state investigators of bribing and threatening Smith, and because they implied that Commonwealth's Attorney Lewis might have had some role in conjuring Smith's testimony. At the very least, Smith's affidavit implied that Lewis had known about the threats and inducements. (Smith was Lewis' star witness, after all, and if he was reluctant to testify, the prosecutor would likely have known.)
Khoury further claimed both that Morchower had performed shoddily and that the judge had goofed on the jury instructions. These were strong claims, and presenting them was the best and most obvious approach.
But in the small world of Powhatan County criminal law, it was also a rather parlous strategy. The judge who would rule at the hearing, Powhatan Circuit Court Judge Thomas Warren, was the same man who had presided at Payne's trial--the man Khoury was calling incompetent. And Lewis had been a prosecutor in Warren's court for years. He had argued many cases before the judge, and now Khoury was saying he either knew about--or should have known about--the perjury of his No. 1 witness. Finally, the judge knew Morchower, too, and had asked him to take Payne's case as a personal favor. Now Khoury was saying that Morchower had also screwed up.
"Here I am, I'm this young punk K Street lawyer, walking into the Powhatan County courthouse, where all these guys had known each other for years," Khoury says. He didn't get far. Even before the hearing, Warren dismissed the claims that Morchower was ineffective and that Warren himself had misdirected the jury.
And Khoury got beat in the hearing itself. Government lawyers argued at the hearing that Payne's seven witnesses couldn't agree on certain details of their testimony--though they were rather inconsequential details, such as what Payne and Smith were wearing that morning six years earlier.
But the hearing's most dramatic moments turned on Smith. Smitty took the stand and, of all things, recanted his recantation. He said Khoury had coerced him, somehow, into signing the affidavit. The judge refused to allow Deans to testify that she was present and saw no coercion, and eventually he refused even to admit Smith's affidavit into evidence.
The judge probably thought anything Smith said was unbelievable: Under Khoury's questioning, the corrections investigators admitted that Smith had a reputation for being "a manipulative con man," in the words of one. Lewis also admitted in the hearing that he knew Smith had a reputation for dishonesty--but that without Smith's testimony he could never have convicted Payne.
Smith himself said on the stand that he acquired the nickname Dirty Smitty "because if I went and borrowed $5 from you and all of a sudden it came time to pay and I didn't have it, why I'd be out to give you a song and dance."
The corrections investigators denied that they had promised Smith incentives that weren't disclosed at trial. Instead, they implausibly said the department had merely decided to reward Smith after the trial--just for being a good inmate.
Judge Warren believed these claims and ruled against Payne. In his decision, issued three months after the hearing, he said the testimony he heard from Payne's seven witnesses "is in hopeless conflict"--though he didn't specify the conflict. More egregiously, Warren simply asserted--without mentioning a single fact from the hearing--that "Smith was never threatened by the Commonwealth or her agents and at no time was Smith offered or promised inducements by the Commonwealth that were not disclosed to the defense and revealed at trial." The judge didn't elaborate.
Most nettlesome was Warren's deferring to the jury on the matter of Smith's credibility. He said the jurors had chosen to believe Smith, and that was that. "Importantly, the jury thought Smith was a credible witness," Warren wrote in his seven-page opinion. Who was he to argue?
But the jurors had not heard a great deal of the evidence Warren now had before him. Indeed, the whole point of the hearing was to hear new evidence--from eyewitnesses like Phillips, from the guys in the chow line who heard Smith brag about the murder, and from Smith's own recantation. It was Warren's explicit responsibility to weigh this new evidence--and not defer to the jury. But Warren punted, and Payne lost the most critical appeal in the process.
"That really is about as devastating a thing [as] can happen to you," says Khoury. "Because, from then on, the federal courts say, 'Well, our hands our tied--the state judge made these findings. We have to defer to them. Sorry.'" Khoury tried in federal courts to argue that Warren had made no findings at all with respect to Smith's credibility--that he had merely deferred to the jurors. But the federal judges considered that deferral to be a finding in itself.
And their hands were, indeed, bound by case law: By the terms of a 1960s law, federal judges must presume that any factual findings made in such hearings are correct--unless they are utterly ridiculous. And federal judges rarely say their state counterparts have made ridiculous decisions.
Over the next five years, though Khoury would go through the federal-court motions, he didn't really expect to win. Sure, he could have found a sympathetic federal judge--but probably not in Virginia. And the 4th U.S. Circuit Court of Appeals is generally acknowledged as one of the most conservative courts in the country.
But it wasn't just the conservatism of most federal court judges in Virginia that cornered Payne legally. In 1993, the Supreme Court had ruled in Herrera v. Collins that federal courts don't even have to consider evidence that death-row inmates are innocent. The court said that the Constitution only requires federal courts to decide whether the inmates received a fair trial. And Payne, they all said, had received a fair trial. Whether he was innocent was simply irrelevant.
The federal decisions on Payne came down slowly but surely. In 1994, a Richmond federal district court denied his motion for a federal hearing. In 1995, the same court denied a motion to reconsider. And last summer, Khoury filed an appeal in the 4th Circuit. On Aug. 19, that appeal too was denied. The Supreme Court was next, but it would be a mere formality. The high court almost never takes death-penalty cases. When it does, the court must mediate some compelling constitutional disagreement among the lower courts. There was no such disagreement in this case and, in fact, precious little disagreement at all.
Why had Payne slipped so easily from one court to the next? The simplest explanation is that in the United States, we like our juries. Appeals courts are reluctant to overturn the judgment of 12 of our peers, flawed as their judgments may be. It's right there in the Constitution: "The trial of all crimes, except in cases of impeachment, shall be by jury." Appellate judges must meet extremely high standards to question juries, and most of them--especially conservatives--never overrule them.
And of course, Herrera v. Collins had said that federal appellate courts don't even have to listen to claims of innocence. Governors, the court said, had to listen to those claims. Governors like George Allen, rock-ribbed conservative.
Thus when the 4th Circuit rebuffed him, Khoury realized that Payne really might die. The realization scared the shit out of him, and beginning in August he spent more and more time on the case, until, by October,
it consumed nearly every hour of Khoury's 65-hour work weeks.
In late summer, Khoury began to harness the considerable financial and political power of Wiley, Rein. His client had lost in all the courts, and the Supreme Court was beyond a long shot. It was time to go beyond the judicial system and think about ways to influence Allen. It was time for the outside play: If the law couldn't save Joe Payne, Khoury thought, politics and the media just might.
They don't teach political and media relations at law school, and you don't learn them by poring over government contracts. Khoury needed help.
He had a good start at the firm itself. Yorkgitis had moved on, but another young lawyer, Michael Rotker, was assisting him with the case. Khoury would find Rotker's help invaluable, and he consulted with him on every decision. Rotker would handle things in D.C. when Khoury was traveling. Khoury also had the assistance of lawyers with the Virginia Capital Representation Resource Center (VCRRC), a group that provides legal help to death-row inmates.
Khoury and Rotker began talking to other lawyers--mostly outside the firm--who knew about clemency proceedings, Supreme Court petitions, media management--all the elements of a modern death-penalty case nearing its climax. Others at the firm helped by calling friends who had handled capital cases and asking them to phone Khoury with suggestions.
The experts all offered the same basic advice: Get the media on your side--that could put pressure on Allen to grant clemency--and try to get to the governor through like-minded conservatives. Finally, get as much help as you can, because the case will consume your life until execution day. These suggestions made sense, but other death-penalty veterans offered more personal advice, like how to prepare emotionally for what could well be a negative outcome. Khoury didn't really listen: Nov. 7 was still two months away, and he wanted to focus on the job.
Khoury started writing letters to reporters about the case and drafting a pair of petitions--one for the governor and one for the Supreme Court. He also hired a consultant recommended to him by one of the death-penalty experts--Virginia Sloan. She was perfect. Sloan had been counsel to the House Judiciary Committee from 1980 to 1994; there she had often worked on death-penalty issues. Plus, she was all Washington. She had media contacts all across the city and political contacts, including conservatives, across the country. Sloan joined Khoury's team the first week of October.
Khoury had written to reporters in the past without much success. But this time he decided to include with his letters the 4th Circuit's opinion on the Payne case. Khoury thought the 4th Circuit judges--even while ruling against Payne--had written an opinion favorable to his client. All the facts were there--the state's dependency on Smith, Smith's double recantation, Payne's "copious" new evidence at the state hearing, and so on. But the judges didn't just recount the facts. They couched them in sympathetic language. For instance, they wrote that "Payne...offered a wealth of evidence demonstrating that Smith was an appalling and known prevaricator."
Those were strident words for judges who were allowing the execution to proceed on Smith's testimony, and Khoury thought the disparity between rhetoric and outcome would jar reporters. He was right. Legal journalist Stuart Taylor Jr. of D.C.'s weekly Legal Times first took up the cause in a Sept. 30 column that powerfully defended Payne. It was headlined "Innocent? Execute Anyway."
"One wonders whether these passages [in the 4th Circuit opinion] were drafted by a law clerk who was trying--without success--to tell the judges something they didn't want to hear," Taylor wrote. (Khoury had another hunch: Maybe the judges, who legally were forced to afford a presumption of correctness to Judge Warren's factual findings, were sending a message to Allen, who was bound by no such legal requirements.)
Whatever the case, the Legal Times column would attract more media attention. Meanwhile, Sloan was also having success: She called an acquaintance on the Washington Post editorial board, Patricia Shakow, and convinced Shakow to write an unsigned editorial asking Allen to grant clemency. A 15-year Post veteran and lawyer herself, Shakow had written dozens of editorials about the death penalty, which she opposes in all cases. Her liberal views probably didn't persuade Allen much, but they probably did alert more reporters to the case.
Indeed, by Payne's execution day, in November, Khoury was astonished at the amount of press coverage--and its favorability. A top Post Metro reporter was assigned to the case. A longtime Richmond Times-Dispatch reporter also began writing stories--he would eventually write 10 in all. Time magazine did a story (which Sloan helped arrange). And Court TV and the Washington and Richmond local TV stations came calling. The cable news station MSNBC interviewed Khoury and Payne. Eventually, even the New York Times would weigh in.
Khoury never expected so much media interest, but he shouldn't have been surprised, for two reasons. First, Payne really looked innocent. "These cases don't come along so often, when there's some compelling evidence for innocence," says Richard Dieter, director of the Death Penalty Information Center and a frequent source for reporters.
And second, Payne's case demonstrated the hazards of the recent national push to hurry death-penalty judicial proceedings. The Supreme Court's Herrera decision had been only the beginning: State legislatures, including Virginia's, had also tried to shorten the time between convictions and executions. A Virginia law that took effect last year set tighter deadlines for appeals and required courts to set execution dates within 70 days after an inmate's petition had been rejected by state or federal appeals courts.
Moreover, the Republican Congress had moved to strengthen the law that required federal judges to defer to state judges. The Anti-Terrorism and Effective Death Penalty Act, signed by the president in April, limited the time in which death-row inmates can file federal appeals. Congress had also nixed funding for the network of capital-representation resource centers--like the one in Richmond that was assisting Khoury.
Reporters lighted on all these developments and used Payne's case as a point of entry to write analytical trend pieces--the bread and butter of today's print journalism. And Payne's execution promised to underline--in stark terms--the trouble with the trend. In short, Khoury had won the media battle. Reporters kicked out a string of stories that raised fundamental questions about whether Payne deserved to die. The buzz was there, but would Allen care?
Probably not a whole lot, considering the media's much-discussed liberal bent. Indeed, some reporters in this case seemed clearly sympathetic to Payne: The Times-Dispatch reporter, for instance, didn't even interview Commonwealth's Attorney Lewis until the day before Payne's scheduled execution--after the reporter had written six stories on the case.
If Khoury was going to reach the governor, he would have to work through people who spoke his language--and distance himself from those who didn't. Khoury quickly decided not to work with the groups that oppose the death penalty--and highlighted his rejection of these groups to the governor's chief legal counsel, Mark Christie.
"Hey," he told Christie on Oct. 17, "I've had these people call me up, and I've told them I don't want them to do this....So if you get letters, just know it's not coming from me." It's not as though the letters would have mattered a great deal. These groups oppose every execution, even the executions of the worst sickos, and they have little sway in Virginia. (The Amnesty International "Urgent Action" notice on Payne was written in London, for God's sake.)
Khoury then contacted Republicans to see who would help. Sloan began arranging meetings and phone conversations between Khoury and Republican politicians in Virginia who might make a call to the governor's office. Jim Slattery, a former Kansas congressman now at Wiley, Rein, also helped connect Khoury with former colleagues after Khoury told him about the case during an airplane flight.
Khoury also called Thomas Griffith, a former Wiley, Rein lawyer who now serves as legal counsel to the U.S. Senate. Griffith had worked on the Payne case years before, and he was eager to help now that it was down to the wire. Griffith contacted a Republican acquaintance in Virginia, conservative home-schooling advocate Michael Farris (Sloan also spoke with Farris). An unsuccessful candidate for lieutenant governor in 1993 (on Allen's ticket), Farris is a darling of the Christian right in Virginia and a friend to his former running mate.
Farris instantly took an interest in Payne's case and offered to help in any way he could. Conservative supporters of the death penalty fear nothing more than a demonstrably innocent man being executed; such an execution would crush national support for capital punishment. Farris eventually made public a letter he had written to Allen calling for clemency. "There is more than a reasonable doubt here," Farris told reporters. "I have great confidence in the governor."
Khoury was also re-interviewing the witnesses in the case, to make sure everyone's stories were consistent and to see whether he might uncover yet more evidence supporting Payne. Khoury couldn't do all this himself, so he sent a team of investigators--four of them, plus a notary public who could instantly notarize affidavits--to do the legwork. He also quietly asked the investigators to find Payne's jurors and tell them about the new evidence. The investigators also searched for Robert Smith--who, because of his generous sentence reductions, was on parole.
In the two weeks before the Nov. 7 execution date, the investigators struck gold with four of the jurors, plus the alternate. In dramatic affidavits released to reporters, the jurors said they would not have voted to convict Payne if they had heard the testimony of the other witnesses. The jurors seemed genuinely anguished, and they all pleaded for clemency.
One of the investigators also located Reba Dunford, David Dunford's mother. The investigator showed Dunford, who now lives in a Loudoun County retirement home, an article about Payne in the Post. The elderly woman then agreed to sign an affidavit asking for clemency: "I have doubts that Joe Payne killed my son," she said in the affidavit. "Please do not let this happen, Governor Allen."
The investigators couldn't find Smith, however. He was supposedly living in a trailer park in the Newport News area with his 24-year-old wife, but Smith wasn't there. The trailer-park manager said that in September Smith and his wife had packed their belongings into a truck and disappeared. A local car salesman then said Smith had pulled a gun on him. Both the disappearance and the gun incident were parole violations, and the state had issued a warrant for his arrest.
Khoury was thrilled. The media attention, the political successes, Farris' letter, the jurors' affidavits, Reba Dunford's affidavit--and now this: The state's star witness had violated parole and fled. Khoury was giddy. "Shit is breaking every day in this case," he gurgled during the last week of October. "I mean, now that's good stuff!" He called reporters and read them entire affidavits over the phone. He was talking with Payne every morning at 10 a.m., and he cautiously detailed every bit of good news. Khoury didn't want to utter the word "victory" aloud--certainly not to his client. But the case was going very well.
Still, doubts lingered. Khoury wasn't forgetting that Allen had never granted clemency to a death-row inmate. Khoury still hadn't met with the governor's legal staff--that meeting wasn't scheduled until Nov. 4, just three days before the execution. Khoury feared he might screw up in the meeting. He worried the governor's advisers might not have read the material carefully. He worried that three days wouldn't leave enough time to find any additional information the governor's people might need. A witness might change his story and go public at the 11th hour. Had he included everything in the clemency petition?
These thoughts began to keep Khoury up at night. He would pace around his upper Northwest home, unable to sleep without dreaming bizarre, hazy nightmares. One night--it was maybe 1 a.m.--he caught All the President's Men on the tube and fell asleep as Woodward and Bernstein tried to convince the world that they were right.
It turned out that Khoury had been, in a way, too successful. When he met with the governor's legal staffers at the state capitol, in a third-floor conference room directly across from the ornate governor's office, they savaged him for contacting the jurors.
They called it "jury tampering" and said the governor wouldn't consider any of the jurors' affidavits. The governor's spokesperson told reporters after the meeting that the governor would consider the clemency petition carefully, but that Allen was concerned Khoury was retrying the case in public. The governor himself told the Post that contacting the jurors was "a very poor and wrong approach."
Khoury was a little surprised at this reaction, since contacting jurors is a common practice in clemency proceedings. (To make matters worse, over the next two days the Richmond Times-Dispatch found two jurors who publicly said they still believed Payne should die. And Keith Dunford, Reba Dunford's grandson and the victim's nephew, told the Post that his grandmother was a frail woman whom the investigators had taken advantage of. He, too, believed Payne should die--as did the relatives of Payne's first murder victim, who also spoke to reporters.)
Khoury left the meeting with the governor's legal staff dejected. During the meeting, which lasted just over two hours, Christie and the other legal advisers had questioned Khoury more confrontationally than he had expected. But they had also laid one fear to rest: They had clearly read the record thoroughly. They asked all the right questions--the questions he would have asked had he been on their side.
Afterwards, Khoury and the others working on the case retreated to the downtown Richmond offices of VCRRC. He loosened his tie, unbuttoned his shirt, and got a cup of water. They had to decide what to tell reporters now. And he had to decide what to tell Payne. Khoury's public posture didn't reflect his gut feeling: Payne was now closer to death than ever.
During quiet moments over the previous few weeks, Khoury had thought more and more about Joe Payne. Over nine years, his client's calm demeanor and knowledge of the law had always impressed him. The two couldn't be more different--one an eighth-grade dropout, the other a well-educated, wealthy lawyer--but they talked and laughed easily.
One day, just 15 days before his execution date, Payne told Khoury over the phone that prison officials had come to his cell that day to read him the death warrant. Then they gave him a choice of execution methods: electric chair or lethal injection. (Virginia allowed inmates to choose for the first time in 1994; since then, no one has chosen the brutal chair.)
"I told them, 'I don't really want either one of them,'" a laughing Payne told Khoury. "But of course I picked injection." Then the prison officials creepily waited outside his cell for two hours to see whether he'd change his mind. He didn't.
That was classic Joe, Khoury thought. The lawyer sensed a fair amount of resignation in his client's voice, but even now Payne was calm enough to joke. Khoury thought Payne was handling all this much better than he would.
Khoury knew Payne had committed a gruesome murder in 1981, but he also knew that Payne regretted that murder every day of his life. He knew Payne had attempted suicide at least twice in the weeks after the murder. In and out of foster homes since his mother abandoned him at age 5, Payne had never known a normal life. He had begun drinking as a kid and graduated to speed and PCP by his 20s.
Two psychiatrists wrote in 1982 that while Payne didn't have a mental disorder, he "was under substantial emotional distress at the time of the crime." And under the influence. Payne's lawyers in the 1981 case listed what their client and his brother (who was also involved in the crime) had consumed the day of the murder: a fifth of Mad Dog, two fifths of Jack Daniel's, a pint of Rebel Yell, and perhaps beer as well. They started their bender at 9 a.m.; Payne murdered Louise Winslow between 7 and 8 p.m.
After the murder, Payne's wife left him, and their 4-year-old son (who had been sitting in the truck when Payne slaughtered Winslow) would eventually turn to crime as well. Joe Jr. is in prison today.
The judge took Payne's circumstances into account. "Mercy" Percy Thornton, as the late judge was known, refused to allow the jury to consider the death penalty in that case, in part because Payne had fired only one shot to kill Winslow. Had Payne not been implicated in the Dunford murder, he would have been eligible for parole this year.
Over the years, lawyer and client got to know and like each other as well as they could. Payne was obviously grateful for Khoury's efforts on his behalf, and Khoury had come to respect Payne's grasp of the case. Payne believed he had been convicted of Dunford's murder in large part because Morchower hadn't listened to him. Khoury promised Payne that he wouldn't take any steps that Payne opposed.
That was never a problem. Khoury was following all the leads Payne suggested--the new witnesses, Smith's dishonest reputation, and so on. But when it came time to draft the Supreme Court petition, lawyer and client parted ways.
Khoury knew that they didn't have much material that would interest the court, but he could make a technical argument that the state prosecutor had used certain evidence improperly when arguing for the death penalty.
Payne, a death-penalty supporter, said no. "Look," he told Khoury, "I didn't do this crime. That's what I want to focus on. If people actually think I did this crime, arguing that I shouldn't get the death penalty for it doesn't make a whole lot of sense to me."
For a while, Khoury made no decision. The death-penalty veterans thought he was crazy to follow Payne's argument on this. "Ignore your client," several of them said. The sentencing issue is all you've got, they added.
But when it came time to draft the petition, Khoury did as Payne had asked: Nothing about the sentence. It was perhaps the most agonizing decision he had ever made. "I don't know," Khoury said the day after he finished the petition. "The reason he's on death row, I think, is that his lawyer didn't do what he wanted done, and I'm not going to be in a position where I'm going to go against
his wishes on this....I feel strongly that I want to do what he wants to do on this, because that's the way he wants to go out if he's going to go out."
On Nov. 6, at 7:30 p.m., Khoury retrieved his champagne-colored Toyota Camry from the parking guys next door to the firm and began the drive to Jarratt, Va., home of the Virginia death house at the Greensville Correctional Center. His client was set to die there the next day at 9 p.m.
It's actually still called the death house--a residual gothic element in what has become a routine procedure. Since its invention in the late 1970s, lethal injection has done more to bureaucratize and medicalize executions than anything else. Payne's execution would be Virginia's 33rd since the Supreme Court decision reauthorizing capital punishment. (Virginia has executed more inmates than any state except Texas and Florida.) It promised to be bloodless and painless.
A huge dose of an anesthetic drug would put him to sleep. A second drug would stop his breathing, and a third would stop his heart. (State officials won't reveal the precise chemicals used.) Barring any problems--the chief problem with lethal injection is finding veins--Payne would die in his sleep after about seven minutes. The body would then be taken to the state medical examiner's office, where state officials would perform an autopsy, as required after every "involuntary death" in the state. Since Virginia first used lethal injection two years ago, all the executions have gone smoothly.
And that's just how the state government likes them--smooth, routine, just like any other element of the corrections process. Death is, of course, the ultimate "correction," but the state treats it without much hoopla. In the past, inmates had 15 days in the death house to say goodbye to family and friends and meet with lawyers and clergy members. Now they have just four days.
Allen's department of corrections also prevents reporters from seeing death-row inmates--or any inmates, for that matter. No reporter has been inside a Virginia prison in more than a year (except to witness executions), though no media organization has yet challenged this policy in court.
The Allen administration also scuttled the "last meal" tradition allowing inmates to choose whatever they wanted to eat. Now they can choose any meal from the prison system's 28-day rotating menu. ("The days of lobster, filet, and champagne are over in Virginia," says Department of Corrections spokesman David Botkins. "A lot of states are a little more liberal in terms of how they interpret the last meal.")
A lot of states are a little more liberal, period. Khoury thought about Allen and his conservative politics as he drove south along I-95 in the darkness. He had emphasized to the governor's advisers that Payne's is not an anti-death penalty case. Khoury believed he could appeal to Allen's conservative side: "What you've got to do in order to keep the death penalty a vital part of the commonwealth's arsenal is to assure the public that you're a fail-safe for that rare case, like this one, where an innocent man may be executed," Khoury says. "And if you can do that, you show strength, you show fairness, you show integrity--and you get rid of that one nagging concern about the death penalty."
Surely the governor would listen to that argument, Khoury thought as he drove. But who knew? He tried to relax and put on a tape of the Fine Young Cannibals. Three-and-a-half hours and a double cheeseburger later, he pulled into the quiet parking lot of the Holiday Inn in Emporia, a few miles south of Jarratt. Worrying that it would keep him up all night, Khoury hadn't drunk any coffee while driving, and he was beat. He had a couple of beers and went to sleep.
At 6:30 a.m., after a few hours of tossing and turning, Khoury finally rose and put on a navy pinstripe suit. He ate breakfast and returned to the room, which he wouldn't leave again for eight hours. What could be Joe Payne's final day on earth had dawned slate-gray but unseasonably warm. A TV weatherman spoke of the "fozzle" outside--fog plus drizzle.
Khoury made phone calls and talked to reporters all day, though he had little news to report. He felt tired and nervous--particularly after one person called and said she had heard that the governor's people had learned of another murder Payne apparently committed. For a few seconds, Khoury's mind reeled uncontrollably, but it was only a panic reaction: Of course there was no third murder; the person on the phone must simply have forgotten about the 1981 murder.
Other calls made him feel more hopeful. Oliver North, for instance, called to interview Khoury for his radio show that day. North asked good questions and seemed sympathetic to Payne. That was a good sign.
Then, as Khoury chewed on a chicken sandwich in the late afternoon--a couple of hours after he heard about the Supreme Court's rejection--the phone rang again. It was Rotker, his colleague at the firm. He had just talked to Laura Lafay, a staff writer for the Virginian-Pilot, a Tidewater newspaper. Lafay had learned the best news yet: While on an environmental walk, the governor had been asked about Payne. "The question is whether Smith did it," Allen had answered, according to Lafay. "It comes down to the credibility of Smith."
"That's great!" Khoury shouted when he heard. "So he said this on his damn nature walk?"
Yep. The governor appeared to be laying the groundwork for clemency, Khoury thought, since everyone knew Smith's credibility was for shit. Rotker then said he was going to call Payne. "Should I mention this to him?" Rotker asked.
"Don't bother," Khoury answered. No point in getting the man's hopes up right now.
At 4:10 in the afternoon, Khoury drove over to the prison. The sun had come out, and Khoury rolled the window down. He felt much better, but he was still apprehensive. A line of 10 cars stretched back from the entrance. Three uniformed corrections officers were checking IDs and directing traffic.
They take these special security measures for every execution, but Payne's had attracted more attention than most. (Botkins, the corrections spokesman and a former Allen press secretary, says he had never seen the level of attention Payne's case received.) For a while, many reporters had simply stopped covering executions. As one Richmond TV reporter put it that day, "They just got so boring. You know, another day, another execution." The Virginia Association of Broadcasters, which has a regular seat in the pool of reporters assigned to witness executions, had not been able to fill its seat for the last 10 or so deaths.
But when Khoury pulled into the parking lot, four TV trailers had already set up their satellite dishes, and more reporters were on the way. When he stepped out of his car, a group of reporters and cameras immediately surrounded him. Khoury made a few quick remarks and disappeared inside.
Once inside, he took a van from the main building to the heart of the prison complex, to the death house. It was nearing 5 p.m., and for the next hour he would talk to Payne a bit, but mostly wait as Payne huddled with several priests he had gotten to know. He would die in less than four hours.
Outside, media folks smoked cigarettes and talked about the waiting game. How long would Allen take? Just before the last execution, in July, he had issued a stay for two hours--from 9 p.m. to 11 p.m.--only to allow the death to proceed. Payne's British wife, Ann--a third wife, whom he had met through correspondence while on death row--had waved off reporters earlier in the parking lot. Now there was little to do. The lights in the parking lot flickered on as the sun set.
Suddenly, the TV people were stirring. Cigarettes were thrown away hastily and cell phones buzzed with conversation. At 5:45, the Richmond Channel 12 reporter quietly told a print colleague that the execution had been stayed temporarily. "But don't tell the other TV reporters, OK?"
By 6, Channel 12 had learned more: Gov. Allen was staying the execution. Permanently. He had granted clemency. Another TV reporter--ignorant of the news--went on at 6 to say that Payne would die in three hours. Three minutes later, she came back again to correct her error. It was over, she said.
Inside, Khoury didn't know what was happening. He had talked to Payne only briefly, but they hadn't had much to say. Khoury told Payne that the governor had said some promising things, but nothing was certain. Khoury's face flashed on the TV facing Payne's cell. "You take a pretty good shot," Payne joked.
But there wasn't much Khoury could do, and Payne needed to be with the priests--only three people could see him at once. So Khoury left. Just before 6, as Khoury waited, a prison deputy retrieved him and told him to call the governor's office immediately. The deputy dialed: "Hello, this is George Allen!" the voice-mail greeting said. "Thank you for calling my office."
The deputy dialed another number and was put on hold. Infinitely, it seemed. Finally, more than 10 minutes later, Allen legal counsel Christie told Khoury the news: The governor had granted clemency, but Payne would remain in prison until he died. No parole.
Later, Khoury learned in more detail what he was told only in fragments at the time. State officials had found Smith out of state, brought him to Richmond, and attached him to a polygraph machine. The results were mixed, but they suggested that while Payne had a role in the Dunford murder conspiracy, he did not actually kill Dunford.
Khoury took the van from the main prison back to the death house. Inside, he shook hands with Payne through the bars and smiled broadly. "Thank you for your good work," Payne said. Payne wasn't giddy--he had been stoic in the face of death, and he was stoic in the face of life--but he was clearly relieved. "I guess communion won't be necessary now," he said. Payne desperately wanted to call his wife and tell her the good news.
Still, Payne already felt mixed emotions. Was he innocent or guilty? He believed he had been put on death row for a crime he didn't commit. One of his priests would tell reporters outside that clemency was "bittersweet."
At 6:37 p.m., Khoury emerged from the prison to talk to reporters, who asked him to wait until the cameras were rolling. His green eyes were shining brightly from fatigue and tears. "I think the thing that I feel most and I think the thing that Joe feels most is relief," Khoury finally began. "And I want to thank Gov. Allen."
Khoury said he didn't know what Allen had said in his statement accompanying the stay, but he presumed the governor had seen all the evidence pointing toward innocence. "I think this is a decision that upholds law and order," Khoury said. "I think the courts let [Payne] down. I do. But the governor acted as a fail-safe."
Reporters asked Khoury what he felt, as a lawyer. "It's quite something for me. I mean, it's not often that someone can say that they've helped to save a person's life. It's really awe-inspiring to me, and I don't think I've fully realized it yet...
"I can't even imagine anything that I've ever done or maybe ever will do that involves more tension than not knowing whether your client is going to live or die. I'm a government-contracts lawyer. I usually don't have to deal with those kinds of issues. So it's been a very tense time." After 20 minutes, the TV reporters had done their final "on the scene" broadcasts, and people began to melt away.
Alone, Khoury drove back to the Holiday Inn. His first call was to Michael Farris. Then he called his wife, Rotker, and perhaps 15 other family members, friends, and colleagues.
He had planned to stay in Emporia that night, no matter what the result, but he was too fidgety. Instead, he drove to Richmond, where VCRRC was celebrating a rare victory with a party. (Clemency had been granted just three times before in Virginia capital cases--all by Democratic Gov. Douglas Wilder; nationally, there is only about one clemency each year. In 1992, one study found that 23 innocent men had been executed since 1900.) The next day, Khoury drove home.
The news of the governor's act of mercy was more complicated than it first appeared. Allen had initially only stayed Payne's execution, pending Payne's signature on an agreement that he would not try to begin another court challenge to his conviction. (Payne also agreed not to profit from his story.) Khoury knew it gnawed at Payne to promise not to seek a new trial--something his client had wanted since 1987. But with the governor holding a gun to his head, what choice did Payne have?
Over the next several days, Khoury would find himself the center of great attention and appreciation. Firm founder Richard Wiley would say some kind words at a partners' meeting, where all Khoury's colleagues applauded loudly. Later, the firm threw a party for Payne's entire team, and Khoury recounted the final hours as the other lawyers sat in rapt silence. The firm gave Khoury a huge jar of Life Savers, which he keeps on his desk. At home, his daughters Nina, 4, and Christine, 2, were happy to have seen Daddy on TV. They asked to play the "Daddy tape" when he got home. Paul and Jane would disappear the next week for a much-needed three-day vacation.
But for now, Khoury simply drove up 95. He used the cell phone to call his voice mail, and there were 51 messages. Almost all of them began with a hearty congratulations. And there, on the highway back to Washington, Khoury bawled his eyes out.CP
Art accompanying story in the printed newspaper is not available in this archive: Darrow Montgomery.