by Angela Hunt
Judge Trask rubs a hand over his face, then lifts a finger. “Objection overruled. I want to hear this.”
Briley repeats the question. “Can you tell us why your husband was wound up?”
Erin winces. “I—Do I have to say?”
Briley steps forward and rests her hands on the railing of the witness box. “Erin,” she says, filling her voice with as much intensity as she can muster, “I know this is painful, but you have to tell the jury the truth.”
Erin shivers, reminding Briley of a puppy that’s been kicked too many times. “Could you repeat the question?”
“Certainly. Will you please tell the jury why your husband was wound up?”
Erin stares into the empty space between the judge’s bench and the attorney’s lectern. “He was wound up…because he’d just beaten me.”
“Beating you…excited him?”
“Objection, leading!” Bystrowski roars this time, accenting his cry with a knock on the table.
But Judge Trask, who hasn’t taken his eyes off Erin in the past several minutes, replies automatically: “Overruled.”
Briley glances at the jury. Like the judge, they are watching Erin, and several of the women have tears in their eyes.
Rather than repeat the question, Briley simply looks at Erin and waits.
Erin nods, her lower lip trembling.
“Let the record show,” Briley says, her own voice breaking, “that the witness has nodded in assent.” She reaches out to squeeze Erin’s arm, then thinks better of the impulsive action and takes a step back. When she is certain her own emotions are under control, she begins again. “After you took the sleeping pills and lay down, did you speak to your husband again?”
“No. I closed my eyes and pretended to sleep. I could hear Jeffrey talking to his brother as I drifted off. The next thing I knew, the sun was up.”
“You didn’t wake until morning?”
“That’s right. I got out of bed and left Jeffrey alone—I didn’t want to bother him. I went into the kitchen and made breakfast, then put his meal on a tray and carried it into the bedroom. Jeffrey still wasn’t awake, so I left the tray on the dresser and went back into the kitchen to eat my breakfast.” She rubs her arms as if she’s caught a sudden chill. “He hates being rudely awakened.”
Briley studies the jurors’ faces. Most of them are wide-eyed and intent upon Erin. Are they imagining themselves in her position? Are they experiencing the horror of that abusive relationship? Juror number four is clutching a handkerchief, as if she expects to burst into tears at any moment, and juror number eight has her hand pressed over her mouth. Two men in the back row, however, have crossed their arms, a sign of defensiveness.
Either the men are not buying this story or they’re guarding against emotional involvement.
“Erin—” Briley turns to face her client “—I know this is painful, but can you tell us what happened next?”
Erin rubs her arms again. “When I heard the clock strike nine, I began to worry. I knew Jeffrey and Jason had a racquetball court reserved for nine-thirty, and Jeffrey was usually up in time to shower and shave before heading to the gym. So I went into the bedroom to wake him up. But when I got there—” her voice quivers, and tears gleam in the depths of her eyes “—I saw that he was gray and his lips were blue. I went over and shook him, but his skin was cold. That’s when I ran for the phone and called 911.”
Briley strides toward the defense table and picks up a copy of a cassette tape. “Your Honor,” she says, delivering the tape to the court clerk, “this is a copy of the 911 call Erin placed that morning.” She looks at the jury. “With the court’s permission, we’d like to play it for you now.”
The judge looks at Bystrowski. “Any objection?”
The prosecutor shakes his head. “We have stipulated that the tape is a copy of the 911 call in question.”
As the clerk prepares to play the tape, Briley leans against the lectern and folds her hands. What is wrong with her? A few moments ago she almost lost control, almost wept in the middle of a direct examination. She couldn’t have made a more egregious mistake if she’d jerked handsome juror number six from the box and launched into an impromptu tango in the middle of Judge Trask’s courtroom.
Professional lawyers remain in control of their cases, their clients, and their emotions. She’s been working too hard, that’s all; she’s been under too much pressure. She’s even been mugged.
Fortunately, as Wills would say, they have entered the home stretch.
Chapter Forty-Six
Erin closes her eyes as the sound of her own panicked voice rips the curtain that has protected her from memories of that cold December morning. The woman on the other end of the line was calm, eerily so, and Erin had to repeat herself before the dispatcher seemed to understand the urgency of the situation.
“He’s cold, he’s blue, he’s not breathing,” Erin had said, pacing in the bedroom.
“Can you feel a pulse?”
Erin halted in midstep. Touch Jeffrey? Wake him up? He always got so angry when she disturbed him….
But this wasn’t sleep, this was something else. Something wrong.
“Just a minute. I’ll check.” Clutching the cordless phone, Erin crept toward her husband’s sleeping form. Jeffrey lay flat on his back, the covers pulled up to his chest. She caught her breath as she leaned forward and pressed two fingers to the side of his neck. The flesh felt like chilled leather. Nothing moved beneath the skin, no pulse, no breath, no life.
Frantically she jabbed at his shoulder, as if she might restore some loose connection and set everything to rights. “There’s nothing,” she told the emergency operator. “No pulse, no breath. He’s cold and blue.”
“Do you know how to do CPR?”
“Maybe, but you have to send someone!” Erin’s voice broke. “He’ll kill me if I mess this up. You need to send someone who knows what they’re doing.”
“I’ve already dispatched the rescue squad, ma’am. But you can help us if you calm down. Can you get him flat on his back?”
“He’s already flat. He’s…stiff.”
The phone slipped from Erin’s fingers as the truth struck with the ferocity of a blow. Her husband, her lover, her tormentor is dead. The center of her life throughout five years of marriage is gone.
And the thought of freedom brings unspeakable relief in its wake.
“Erin?”
Briley Lester’s voice draws her back to the present. She lifts her head and sees the black microphone, the smooth grain of the oak railing, the box filled with more than a dozen sets of curious faces. She sees her lawyer, wide-eyed and alarmed. “Yes?”
Briley inclines her head, her eyes snapping with concern. “You okay?”
“Yes.”
The lawyer seems to doubt this, but she turns toward the judge. “The defense has no further questions at this time, Your Honor.”
Erin grips the armrest of her chair as the tall prosecutor stands. But instead of stepping out from behind the table, Travis Bystrowski simply looks at her with challenge glittering in his eyes. “We have no questions at this time,” he says. “But we reserve the right to recall this witness.”
The judge voices his approval, and Erin is free to step down.
Chapter Forty-Seven
“Your Honor, the defense calls Dr. Pamela Lu to the stand.”
As the petite psychologist enters the courtroom and walks toward the clerk, Briley gives her nervous client a smile.
“How’d I do?” Erin whispers, the corners of her eyes crinkling.
Briley scratches a note on her legal pad. You did fine. Now you can relax for a while.
Briley glances at Bystrowski as the clerk administers the oath. His postponement of Erin’s cross-examination caught her by surprise; she had been braced for a sharp counterpunch. What is he planning?
After Dr. Lu settles in the witness chair, Briley stands and moves to the lectern. “Dr. Pamela Lu, what is your occ
upation?”
“I’m a forensic psychologist. I have earned degrees in forensic psychology and medicine.”
“So you’ve earned two Ph.Ds?”
“One M.D., one Ph.D.”
“And those degrees equip you to do what?”
“Examine suspects and convicted criminals, then offer testimony about their physical and mental states. I am typically engaged to help lawyers determine whether or not a suspect is capable of forming the necessary mens rea for a crime.”
“In other words, you help lawyers determine if defendants have malicious intentions, correct?”
The doctor glances at the jury and smiles. “Yes, that’s right.”
“Do you work for prosecutors, as well as defense attorneys?”
“Absolutely.”
“Are you being paid for your testimony here today?”
“I am being paid for my time. No one has told me what to say.”
“Were you engaged to examine the defendant, Erin Tomassi?”
The doctor glances at the defense table where Erin sits. “Yes, I was.”
“Why were you hired to examine her?”
“Such exams are standard for a murder case. A conviction of first-degree murder requires that the killer form an intention to commit the crime. Because of several factors—Mrs. Tomassi’s status as an abused wife, the involvement of sleeping pills, the possibility that the death was an accidental overdose—the defense wisely questioned whether Mrs. Tomassi was able to form the necessary intent to kill. Furthermore, after a brief interview with Mrs. Tomassi, I thought it might be possible that she suffers from a delusion.”
“Delusion?” Briley glances at the jury to make sure they’re following the testimony. “What do you mean by delusion, and why should Erin Tomassi suffer from one?”
Dr. Lu steeples her fingers. “In psychological terms, a delusion is a strongly held belief that contradicts demonstrable reality…and, after further investigation, I don’t believe Mrs. Tomassi clings to any delusions. Her grip on reality is quite firm.”
“So you believe she’s mentally competent?”
“I do.”
“What made you think she might suffer from a delusion?”
The psychologist smiles, obviously understanding that these things must be painstakingly explained to the jury. “Mrs. Tomassi,” she says, her voice calm and soothing, “was a solitary child and an unhappy wife. It’d be perfectly natural for her to seek an outlet for her innermost thoughts. In childhood she entertained herself by talking to an imaginary friend. In adulthood, Mrs. Tomassi occasionally finds comfort by talking to that same friend. But she knows she’s not talking to an actual person.”
Briley looks at the jury and feigns surprise. “Isn’t that sort of thing—well, isn’t it crazy?”
“I don’t think it’s much different from a man or woman who talks to the family dog. We humans are social creatures—we yearn to project our emotions and feelings onto whatever is around to hear us. Remember the Tom Hanks character’s attachment to Wilson, the volleyball, in Cast Away? Unfortunately, as a child, Erin Tomassi had no pets, no close friends, and her only sibling, a brother, was moved to a facility for special-needs children. To ease her loneliness, she invented an imaginary friend.”
“Did you examine the defendant to ascertain whether or not this so-called attachment was a symptom of something more serious? After all, most of us have seen movies about people with multiple personalities….”
“What used to be called multiple personality syndrome is now referred to as dissociative identity disorder, and no, Erin Tomassi does not suffer from DID. This condition is found in people who have endured terrible trauma as children, usually sexual abuse. As a child, Mrs. Tomassi was neglected, not abused. I found her to be a pleasant, unassuming woman suffering from grief and confusion as a result of her husband’s sudden death and her own incarceration.”
Briley locks her hands behind her back and studies the jury. Most of them are wearing confused expressions that clear somewhat as each juror reaches a level of understanding. When she is reasonably certain the jurors believe that Erin is neither irrational nor insane, she faces the psychologist again. “Dr. Lu, are you aware of the prosecution’s theory claiming that Erin Tomassi killed her husband with a massive injection of insulin and then calmly tossed the syringe into a nearby wastebasket?”
“I am.”
“Based on your examination of my client, are you able to support this scenario?”
The doctor’s mouth twists in a smirk. “No. After suffering at her husband’s hands, Erin took a double dose of Ambien that night. Under normal conditions, it’s highly improbable that she’d be able to rouse herself at all.”
“But her fingerprints are on the syringe. Can you think of a way to explain that?”
Dr. Lu’s eyes narrow. “Frankly, I can only think of one.”
Briley shifts her position to keep an eye on the jury, because they must understand this element of her defense. “What is your explanation for a locked house, a sleeping wife, and a dead husband?”
The doctor scans the jury box before replying. “Medical literature documents several cases in which the prescription drug Ambien caused irrational episodes in patients—many have climbed out of bed and strolled to the kitchen for a snack, some have walked outside, others have even unlocked their cars and gone for a drive. While under the influence of the drug, it’s entirely possible that Erin Tomassi got out of bed, filled a syringe with insulin, and gave her husband an injection. Under the control of her subconscious, she may have even acted out of an impulse to assist him. While we cannot be sure of her unconscious motivation, there is no evidence to suggest or support malicious intention.”
“How can you say that with such certainty?”
“Because she made no effort to conceal her activity. She did not wipe her fingerprints from the syringe or the bottle. She made no effort to hide the syringe. She simply got back into bed, pulled up the covers, and went to sleep.”
“Must a person possess malicious intent in order to be convicted of first-degree murder?”
A hush falls over the courtroom, the almost palpable silence of waiting.
“In this country, yes.”
Briley smiles. No matter what happens in this trial, that statement should be enough to prevent Erin from being sentenced to death by lethal injection.
“Thank you, Doctor. We have no further questions for this witness.” She lifts her chin as she returns to the defense table. Let Bystrowski grill Dr. Lu during the cross. He may leave the jurors wondering if Dr. Lu is qualified to question a cat, but he’ll never convince them that Erin deserves to die.
“Miss Lester?”
During the midafternoon recess, Briley turns and sees a tall, thin man standing in the aisle of the gallery. A tuft of thinning white hair spills onto his forehead as he smiles and extends his hand. “Kenneth Sparks, M.D. You asked me to testify on behalf of the defense.”
“Thank you for coming…and for working with Kate.” She steps forward, grateful that he remembered to show up. She called his office over a dozen times, begging for an hour in which she could help him prepare his testimony, but the doctor insisted he was too busy. Finally she sent Kate, who booked a patient appointment and reviewed the doctor’s testimony in one of his exam rooms.
“I’m so sorry I wasn’t able to meet with you,” he says, shaking her hand, “but your assistant apprised me of the issues involved. I’ve testified in court many times.”
“But not in this case.” The words slip from Briley’s tongue, a spillover of her frustration.
He waves her concerns away. “Don’t worry. I reviewed Mrs. Tomassi’s chart before coming over.”
She is about to tell him he’ll be free to leave after his testimony when a door at the front of the courtroom opens, revealing Erin and her escort. “Excuse me,” Briley says, turning. She meets Erin at the defense table, then leans down to whisper in her ear. “Your doctor’s arrived.
”
Erin turns toward the gallery. “Which doctor?”
“Dr. Sparks.”
The bailiff barks a command: “Be seated and come to order.”
Briley opens her trial notebook as Judge Trask assumes his place on the bench and waits for the shuffling to cease. After the bailiff brings the jury back in, Briley rises and moves to the lectern. “The defense calls Dr. Kenneth Sparks to the stand.”
The doctor strides forward, offering a brief nod of acknowledgment to the watchful jury. After being sworn in, he folds his hands and adopts an almost paternal pose. The effect is a good one. Without saying a word, his demeanor and confidence have done a lot to establish his testimony as trustworthy and credible.
“Dr. Kenneth Sparks,” Briley begins, “you are a family physician in Chicago, correct?”
“My office is in Lincoln Park,” he says, looking every inch the kindly grandfather. “I’ve been practicing medicine in that community for thirty years.”
“Are you acquainted with the defendant, Erin Tomassi?”
“She’s one of my patients.”
“Have you treated her often?”
“I’ve seen her on several occasions. Annual checkups, that sort of thing.”
“Do you ever recall seeing Mrs. Tomassi when she came to your office for something other than a checkup?”
His mouth spreads into a thin-lipped smile. “I remember one specific occasion. Mrs. Tomassi presented with pain in her side and difficulty breathing. An X-ray revealed two broken ribs.”
“Did she mention how she obtained those broken ribs?”
“She told me she fell down the stairs.”
“Did this seem strange to you?”
The doctor shrugs. “She had other contusions which seemed to support her story—bruised knees, elbows, and a large bruise at her jawline. I asked how she came to fall down the stairs, and she said something about having two left feet. I specifically remember sitting beside her and asking if there was anything else I should know. She insisted that all was well.”
Briley studies the jury. “I have to ask, Doctor—was Erin Tomassi’s husband with her during that visit?”
