Playing Hardball

The Feds pitch a shutout in the area's first 'three strikes' case

That evidence, combined with physical descriptions from Eckerd manager Thompson and a Holiday Inn desk clerk, helped McCrary draw a near-instant connection: Hays.

For the next six months, the pressure to find Hays was intense. His face was emblazoned on wanted posters in federal buildings and in newspapers. A melodramatic re-enactment of the crime showed up on the television series America's Most Wanted, and to the FBI's great delight, a tipster responding to the show squealed on Hays. He was apprehended late last year in Atlanta, where he had been living with his mother, and extradited to Dallas to stand trial.

Government prosecutors, Mills soon learned, would spare no expense nailing Hays once and for all. He would be their shining example of a habitual criminal--the kind of guy who has had his second chances but shows no hope of rehabilitation.

Not only were they seeking a conviction, but they had also filed papers with the court "offering notice of intent to seek enhanced punishment." In plain English, Coggins and Finn were asking permission to use Hays' previous "two strikes"--burglary and armed robbery-- against him at the sentencing they hoped eventually to attend.

Amassing the evidence was costly. The government was paying for expensive DNA tests, hoping to match blood found on the gun butt to Thompson's blood. The prosecutors hired Dallas County and FBI forensics experts to analyze head hair found in the ski cap and a pubic hair found in the coveralls. And they had flown in police and FBI agents from Atlanta, Indianapolis, and California just in case they needed to testify.

For the sum of $45 an hour for out-of-court costs and $65 an hour during the trial, Mills--whose greatest current fame comes from representing former Dallas Independent School District trustee Dan Peavy on insurance fraud and a multitude of related federal charges--was to zealously represent Mark Hays. And facing the overwhelming evidence against his client, he did what he could.

Mills, for instance, tried to have the evidence from the hotel room thrown out, arguing that police seized it illegally. He made several motions for a mistrial, based on what he perceived were prejudicial statements from witnesses or juror bias. Judge Fitzwater denied them all.

But the defense attorney's heaviest burden came in the form of his sullen client, whose petulant antics had already provoked his first court-appointed lawyer to withdraw from the case. Hays insisted that Mills and the government were somehow in partnership to destroy him.

On the first day of trial, after a jury had been chosen, the judge called a recess. Hays suddenly began railing against the U.S. legal system, blurting out something barely distinguishable to the judge like "I do not answer to your jurisdiction."

Mills, composed but obviously angry, leaned over to his client, who barked out, "I'm not gonna let them violate my rights like this. You do something. You're supposed to be representing me!" Said Mills: "I'm doing the best I can, but you're making that very difficult."

Fitzwater often appeared exasperated with Hays' protests, but gave him wide latitude. On June 20, after the government rested its case and Mills was set to present his defense witnesses, Hays balked at the way his wife, Lawanna, would appear to the jury during her testimony. Serving a federal prison sentence in Louisiana for credit-card fraud, Lawanna Hays showed up in her orange coveralls. Hays wanted Fitzwater to allow her to wear street clothes.

The judge ruled that although the defendant has the right to wear "civilian" clothes to court, the same standard does not apply to witnesses.

Lawanna Hays was the only witness to appear for the defense, but it wasn't for Mills' lack of trying. Before calling Lawanna to the stand, Mills asked Fitzwater for a continuance, hoping to buy more time to track down Hays' son and daughter and other acquaintances Hays had promised could offer an alibi for him on the day of the robbery. But Mills got no help from his client in finding any other witnesses.

The tension between Mills and his client was so thick, in fact, that Fitzwater took the unusual step of swearing Hays in to discuss why his witnesses were no-shows. "There seems to be some problem with my defense," Hays testified. "For him to continuously treat me like a child is an insult. I have worked with doctors and lawyers for many years. I know some of the wicked things that they do. And I know some of the good things they do...I thought I had [Mills'] trust, but things have come out that are just inappropriate."

Fitzwater took mere minutes to overrule Mills' motion for a continuance. Lawanna Hays, 34, took the stand in her prison garb and said she had "pretty much" been with Hays in Denver from late March to early May. They celebrated their 13th wedding anniversary on March 28, 1995, she testified. And indeed, the search of the Holiday Inn had turned up an anniversary card with her signature on it. It was a deep-red color, with flowery gold script. "To my husband, my very special someone," it read.

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