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There are times when even the hottest defense lawyer in town knows his best isn't going to be good enough, a tense moment of clarity accompanied by the sure knowledge that a long winning streak is going to end -- right here, right now, just as soon as the judge's gavel signals the start of the trial.
Terry Niehoff is facing such a moment in St. Louis Circuit Court Judge Michael Calvin's court. One of the city's best young lawyers, Niehoff sits beside his client, James "Squeaky" Herron, a man accused of a horrible murder. As he readies himself for a crucial cross-examination, Niehoff knows two things -- his client is guilty as hell and he holds the only chance of Herron's getting out of prison before his Social Security checks start rolling in.
Not a lot of hope here. Herron's culpability is a given. Left in question is the client's degree of involvement in the crime and the maximum punishment the judge will mete out.
Niehoff knows an innocent client isn't a prerequisite of the job, but at a time like this he wishes he had something to hang his hopes on -- a client who can credibly claim innocence in a way Herron cannot, a client with a cause worthy of a lawyer's trust and best work.
"It's disappointing that I can't get an acquittal," he says. "I like it during a trial when the pressure's on, but the pressure's not on when you know somebody's good for it -- it's just a matter of how much."
Because the state has waived the death penalty in the case, the worst Herron can get is hard life, no possibility of parole. Conversely, the best Niehoff can do is get the Murder One charge argued down to Murder Two -- maybe, just maybe, Herron does thirteen years, the same as two accomplices. Either way, Niehoff's track record gets a black mark, ending a string of acquittals and dismissals that has earned him the reputation of one of the hardest-working street lawyers in town.
At 38, Terry Niehoff is not the lawyer rich white guys call when they catch a cocaine bust. For that, you go to Nick Zotos, Richard Fredman or any of the half-dozen established hired guns in town, lawyers who deftly work the system like Itzhak Perlman plays the violin. Niehoff is in a field by himself -- a guy who loves nothing more than a good murder trial; who gets clients from jailhouse referrals; who's rarely in the office, more often in the courts, in the prisons or out on the street, talking to prosecutors, witnesses, defendants, building defenses for those finding themselves in very deep water with no one else to turn to.
Most criminal cases don't make it to trial. Around 90 percent are disposed of through plea agreements, sometimes at the last minute. Given that statistic, three murders in a calendar year is a fairly significant load for an attorney in private practice. Since the beginning of 2001, Niehoff has tried six murder cases, all of them resulting in acquittals or dismissals -- pretty good, considering the state has a conviction rate in homicide cases of around 70 percent. These notches on his briefcase aren't the result of luck, either. The man is diligent and focused. As one prosecutor says of him, Niehoff "knows what bullshit is and what it isn't. It's always nice to play against someone who knows what they're doing, whether it's poker or tennis or a criminal trial."
He's good, all right, but sometimes the facts of the case get in the way, and no defense, no matter how heartfelt, can assail them. At the end of the day, sometimes good just isn't good enough.
In Division 13, one of the drab criminal courtrooms in the Civil Courts building, Niehoff prepares to cross-examine a state's witness, a former ally of Herron's whose testimony could now put him away for life. He stands, looks Dawn McIntosh in the eye and asks in his most incredulous tone, "You and Melissa attacked Yummy with a knife, and all you did was hold her legs?" McIntosh replies affirmatively from the witness stand.
McIntosh tells Niehoff what she has already told prosecutor Bob Craddick: Herron's girlfriend, Melissa Mozee, hatched the idea to kill Marnett "Yummy" Clayton in order to steal her money and drugs. McIntosh says she initially agreed to go along with the plan but that when it came down to the dirty work, she backed out, only holding the eighteen-year-old victim's feet as she kicked and flailed during a struggle during which 41 stab wounds were inflicted on Clayton with a steak knife, a butter knife and a pair of scissors. Some of the wounds were deep enough to go all the way through the girl's torso. The steak-knife blade, five-and-a-half inches long and serrated, was found in her thorax during autopsy.
These are the kind of grisly details that Niehoff routinely encounters in his practice, the sort that, if undeflected, can stick to his clients, spattering them with the indelible stain of guilt.
Six people were in a crackhouse in the 4400 block of Oakland Avenue at different times that night, February 21, 2001. One died, one almost died and the other four -- Mozee, Herron, McIntosh and her husband, William "Tyrone" McIntosh -- were arrested for murder. Now, eighteen months later, all but Herron have pleaded guilty, having turned state's witnesses in exchange for lighter sentences. As Niehoff puts it, "They've all pled and are now snitching on my client." Dawn McIntosh continues her testimony, describing how Clayton called out for Herron, who was in another room: "Help me, James, she's got a knife!" But, according to McIntosh's testimony, instead of rescuing Clayton, Herron knelt on Yummy's arms, restraining her while Mozee inflicted the killing wounds. She also says that the plastic bag over Clayton's head and the telephone cord around her neck -- found on her body a short time later -- were put there by Herron.
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