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A big man with shaved head and wire-rim glasses, attired in pressed slacks and a sport shirt, Herron watches the proceedings intently, every so often glancing at Niehoff, who is scribbling on a legal pad. His mother, brother and other family members sit ten feet away, up front, in the first bench.
During the day-and-a-half-long trial, whenever there is a recess, Niehoff walks over to fill the family in on what is happening, the significance of some portion of testimony or a preview of coming attractions. His humanity comes out as he joshes with them -- none of them feeling especially jocular -- trying to relieve tension with the balm of words and light banter.
To hear Niehoff talk, most of his clients are basically decent people who took a wrong turn somewhere. True enough, the clean-and-sober James Herron looks like a regular guy -- no apparent jailhouse tattoos, no wiseguy demeanor; the kind of guy you'd stop on the street and ask for directions. Likewise, says Niehoff, "It always amazes me how nice the families are. These folks," he says, nodding toward the Herrons, "are just the sweetest, nicest people. The mother is a school principal. This is breaking her heart. The entire family is fasting and praying for good results."
Clayton's mother is there as well, and she listens intently to the gory details of her daughter's death, including the assistant medical examiner's clinical yet chilling description of the postmortem findings. Niehoff listens, too. Even though he has sympathy for the dead girl's mother, he listens with a purpose -- for weak points, inconsistencies, anything he can use to punch holes in the opposing counsel's armor. He's looking out for his client, a guy with five priors who could never rise above his drug habit.
By Dawn McIntosh's account, the boyfriend-girlfriend team of Mozee and Herron committed the murder. Dawn's husband, however, will later testify that it was all Mozee's doing. This is a feather in the defense's cap.
According to trial testimony, the four of them, including Herron, put Clayton's body in a duffel bag and set it on the tenement stoop like yesterday's garbage -- but not before smoking the four rocks of crack they took from her. Then they waited for Craig Young, who had gone to White Castle to get food for Clayton. When Young walked in the apartment, he was jumped, bound with duct tape, stabbed three times in the neck and throat and then robbed. Young, bleeding badly, was left for dead. Yet somehow he was able to get downstairs to the entrance of the building. The door was deadbolted, but he kicked out a window and got away. Young survived and later testified that he was attacked by Herron.
Niehoff pursues his goal during cross-examination, laying the basis for doubt. He nails down testimony from the assistant medical examiner that Clayton's fingernails were broken as she attempted to defend herself. "My guy had no scratches when he was arrested," Niehoff says.
Likewise, he establishes that there were no bruises on Clayton's body, only multiple stab wounds. "My guy is a big man," Niehoff asserts. "If he knelt on Yummy to pin her down, he would have left bruises."
Maybe it wasn't Clayton who called for help during the attack. Niehoff believes it was Mozee. "That's my defense," he says. "James is in the bedroom, playing cards with Tyrone, getting high. James hears Melissa call for help; he runs in the room, sees them fighting -- his girlfriend in trouble! -- and he jumps in. Before he knows it, [Clayton's] dead and it's murder."
Through a plea agreement with the St. Louis circuit attorney's office, the McIntoshes get thirteen years each and Mozee gets "soft life" -- 30 years, with a mandatory 85 percent to be served in prison. Herron, charged with first-degree murder, has the death penalty hanging over his head. But the state waives the death penalty and offers him the same deal as Mozee. After talking with Niehoff, Herron declines the prosecution's offer. Niehoff believes there is a pretty good chance that Herron will get the same sentence the McIntoshes have received. They will chance a trial, and a bench trial at that.
It is a tactical move. Niehoff explains: "True, juries in city courts are more likely to find not guilty, but we're not contesting James' innocence, only his degree of involvement. And in this case, the jury doesn't decide the punishment anyway -- the judge still gets the sentencing."
It's a gamble, not taking the state's deal. A conviction on Murder One is automatic hard life. However, one could be charged with first-degree murder but convicted of the lesser second-degree charge. Niehoff hopes to persuade Judge Calvin to choose the lesser charge. "First-degree requires evidence of planning, forethought," says Niehoff. "These people were all high on crack and liquor. There was yelling, all sorts of commotion -- my guy didn't plan this!"
At 12:30 p.m. on a Wednesday, after closing arguments, Judge Calvin announces that he will make his ruling at 9:30 a.m. the following Friday. It will be the longest 45 hours of James Herron's life.
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