Playing Hardball

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

From his chair at the defense table, Hays periodically nodded his head and mouthed words to his wife, who cast fleeting glances at him. The show did not go unnoticed by prosecutor Finn, who jumped to his feet and asked Fitzwater "to admonish Mr. Hays to stop mouthing messages to the witness."

In a fit of pique, Hays rolled his eyes and clamped his arms across his chest. He stared coldly at Finn. As Coggins cross-examined Lawanna, Finn and Hays locked their eyes on each other in a kind of macho courtroom showdown.

Minutes later, as lawyers for both sides approached the bench for a private discussion with the judge, Hays glared at Finn and puckered his lips in a pantomime kiss.

Paul Coggins cut a friendly figure in court, like the eternally patient dad who helps you with your homework. His deep, melodious voice seemed to put the jury at ease from the first day of trial, when he delivered a lilting, chronological account of the conspiracy and armed robbery of which Hays stood accused.

Coggins, 44, has been a darling of the local press--often portrayed as a Renaissance man. Schooled at Yale and Harvard and, like his friend Bill Clinton, a Rhodes Scholar, Coggins has worked both sides of the courtroom aisle--defending suspects in federal crimes and now prosecuting them. In his spare time, Coggins writes novels and hopes someday to write a screenplay.

So the fact that the U.S. attorney for Northern Texas made ample use of metaphor in his opening statement wasn't surprising. It was just that the lengths to which he stretched them got a bit painful.

"An opening statement is like a road map," Coggins told jurors. And their destination, he said, would be a "just verdict." Along the way, there would be "warning signs" offered by the judge and lawyers. But it was up to them to stay on track--and bring in a guilty verdict on all four counts.

The jurors evidently felt comfortable in the driver's seat. They were engaged by Coggins' show, and he moved through the trial with little hint that he hadn't tried a case himself since before his 1993 appointment to the U.S. Attorney's office. One by one he moved through the government's witnesses, never rattled by Mills' attempts to plant a tiny seed of reasonable doubt.

Mills' defense strategy was to suggest a case of mistaken identity--that Hays was never even near Dallas on the day of the robbery. Mills contended that prosecutors never adequately established Hays' identity through physical descriptions offered by their witnesses.

In the end, however, the little wrinkles in Coggins'road map mattered not. The jury broke for deliberations at 1:30 p.m. on Thursday, June 20, and returned with a verdict exactly three hours later: Mark Linnear Hays was guilty on all four counts.

The jury exited quickly. Federal marshals surrounded Hays to accompany him back to jail. Fitzwater set sentencing for September.

As the defendant shuffled, head down, toward a side door in the courtroom, a row of police officers from Dallas, Los Angeles, and Atlanta stood. Their joy was palpable. It couldn't, in fact, be contained.

"Good luck, Mark," razzed FBI agent McCrary.
"Yeah, good luck," others chimed in.
Hays, ever defiant, turned and shot them an icy stare, then shouted, "Go to hell, you white devils!"

When Hays comes up for sentencing, the government will argue for life in prison--no good time, no parole. "We're going to try to put him away for a long, long time," Finn said after the verdict.

There is, however, one potential hitch to the Feds' case. Though he was convicted of a "second strike" in California in 1993, Hays slipped away before the court could actually sentence him. The question is whether that unfinished business will count as a qualifying felony under guidelines for the three-strikes rule. As far as prosecutors know, a precedent on such a situation has never been set. So getting a life sentence for Hays will take a little creativity.

"I'm sure we'll focus on the idea that flight should not work to the benefit of the defendant," Finn says. "Hays got on the stand in that California trial and told the jury he had turned his life around--that he was going to change. And the next day he flees. It's pretty logical that running like that shouldn't work to his advantage."

For his part, Mills had expected to spend the months prior to sentencing with his client by telephone, seeing how the one-on-one visits had become more than a little taxing. But Hays took care of that problem. Three days after his conviction, Hays called Mills collect to tell him he would be representing himself from now on.

"I don't know what he's doing," Mills says with a deep sigh. "He needs an attorney now more than ever. This three-strikes thing will be complicated. I don't think he knows what he's in for."

Hays was one of Mills' toughest clients, harder to deal with, in some ways, he says, than the defendant in a capital murder case who set his hair on fire in the courtroom, or the rape suspect who cut off one of his testicles and flushed it down the jail commode. "I really busted my ass for this guy," Mills says. "It's a very strange situation when you're getting paid a fourth or fifth of your normal hourly rate, and you're sincerely trying to represent a guy you believe in. And all the while he's sitting beside you smirking and making it very, very difficult."

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