Betrayal dh-12

by John Lescroart

  The old lawyer sat back with his legs crossed-bemused, tolerant, good-natured. "That's correct, Your Honor."

  "So what are we looking at for time?"

  The question was asked of both of them, but Mills spoke up first. "The People's case, Your Honor, maybe four weeks, depending on cross. I've never worked with Mr. Washburn before, so I don't know how long he takes. I'll let him give you the estimate for the defense. I don't know about rebuttal." She paused, decided to hedge her estimate. "A lot will depend," she said, "on what you let in."

  "We'll be getting to that here," Tollson said. "Jury selection?"

  "Probably a couple of weeks, Your Honor. I would suggest a week of hardship, based on the length." She was suggesting that they first screen prospective jurors to see who could be with them, basically without pay, for what looked like a couple of months. The idea was that it was wise to eliminate the vast majority of prospective jurors whose employers would not pay for that length of jury service, or who could not otherwise handle the commitment. Only those who survived the initial screening would undergo the more complex and time-consuming questioning that would decide who would sit on the jury.

  She went on, "So we've got twenty peremptory challenges each, and some hot-button issues such as the Iraq War and maybe some psych stuff, depending on your rulings. We use questionnaires, we should get our hardships done in three days or so, and the regular jury picked a couple days after that, give or take."

  Tollson nodded. "Mr. Washburn? Sound about right to you?"

  "Pretty close," he intoned. "I agree we should hardship first, and have the jury fill out questionnaires." He reached into his inside pocket and extracted a handful of paper, folded the long way. "And I just happen to have a proposed questionnaire for this case with me." Handing a copy to Mills and the judge, he added, "I'll need about a week for the defense, Your Honor."

  Tollson, perusing the questionnaire, didn't look up, but said, "Motions?"

  This time Washburn went first. "Limit the use of autopsy photos, Your Honor. They don't need a bunch of gory photos to prove this guy is dead."

  "Your Honor," Mills said. "This guy, the victim, was in superb health. Somebody beat him to a bloody pulp. Not a robber or a burglar, but someone who hated him. The jury will need to see the savagery of the attack to appreciate that this was a personal killing."

  Washburn shot back, "Too many autopsy photos might unduly prejudice the jury."

  Tollson held up a hand. "Show me the photos you want to have admitted. I'll let you know which ones you can use before we start jury selection. Anything else?"

  This was the moment. Mills produced copies of her 402 motion for Washburn and Tollson and said, "Mr. Washburn has discovered some stuff on PTSD, Your Honor, and has expert witnesses on his list. We would like a full-blown hearing on what you're going to admit before we get near a jury."

  She wanted the judge to require Washburn to call his witnesses outside of the presence of the jury and have them testify under oath. Then the two sides could argue over whether such testimony was admissible, and the Court could rule on it. If the evidence was admitted, the same witnesses would have to give exactly the same testimony later in front of the jury.

  If the Court refused to hold the hearing, testimony got heard for the first time with the jury present. In this case, if the Court then ruled that the testimony should not have been admitted, the only remedy was to instruct the jury to pretend they had never heard it. Popularly known as "unringing the bell," this was a notoriously ineffective way to deal with the problem.

  Mills went into her pitch. "The defendant claims PTSD, Your Honor, but the defense here is that he didn't do it. If he didn't do it, then his state of mind is irrelevant. All this is going to do is put his war record and injuries in front of the jury to excite sympathy."

  Washburn, leaning back with his legs crossed, ran a finger around in his ear. "My client was blacked out during the period where it appears Mr. Nolan was killed, Your Honor. First, evidence of PTSD will support his claim that he can't remember anything about this period. Second, if he did kill someone and there is a doubt about his mental state because he might have been in a PTSD episode, then he is entitled to that doubt. The crime would certainly be less than premeditated murder, maybe voluntary or even involuntary manslaughter."

  This brought the first sign of Tollson's courtroom testiness. "I believe I understand the issues, Counselor." He spent a few more seconds looking over Mills's pages, then squared them and put them down with Washburn's questionnaire. "I'm going to allow two weeks for motions. Until we know what the jury will hear, we can't tell them how long the case will be, so jury selection starts two weeks from today. Sound good?"

  It sounded good to Mills. She'd gotten her hearing. A good omen.

  Tollson continued. "My staff will have the jury commissioner start to put panels together. Six court days for jury selection, including three days of hardship. Six weeks of trial or so if you get into PTSD, probably four at the outside if you don't. Let's get outside on the record and get to work."

  20

  Everett Washburn stood in the center of the courtroom, addressing his first witness in the hearing on PTSD. Dr. Sandra Overton was a frizzy-haired, earnest psychiatrist in her mid-forties. She wore a dark blue business suit with low heels. She had already recited her credentials and experience as a psychiatrist-i.e., a medical doctor-specializing in veterans returning from active combat. "In your experience with these veterans, Doctor," Washburn asked her, "have you run across a condition known as post-traumatic stress disorder, or PTSD?"

  She almost laughed at the question. "It's pretty much all I work with."

  "Can you tell the Court exactly what it is, then?"

  "Certainly." She looked across at the prosecution table, where Mills sat with her hands folded in front of her, then around and up to where the judge sat on the bench. "It's pretty much what the name says. It's a psychiatric disorder that occurs after an episode of traumatic stress."

  "A psychiatric disorder? Do you mean it's a mental illness?"

  She shook her head. "That's not really a descriptive term. Legally it would qualify as a disease, defect, or disorder. Medically it is more a range of continuing symptoms and reactions experienced by someone who's endured a traumatic event. The key word being continuing."

  "In what way?"

  "Well, almost everyone who experiences a traumatic event has a reaction to it. Shock, or depression, or insomnia. But with PTSD, the reaction first tends to be more serious and second, it persists for a lengthy period of time, sometimes forever. It becomes a disorder, not a reaction."

  "And what is a traumatic event, Doctor?"

  Again, Overton shook her head. "There's no one definition. What's traumatic for one person might be relatively innocuous to another. But certainly traumatic events would tend to include military combat, serious accidents, crimes such as rape, natural disasters, terrorist incidents, and the like."

  "Military combat?"

  "Yes. Very commonly. Although the disorder wasn't much studied until after the Vietnam War. Before then, when people talked about it at all, it was usually called Da Costa's syndrome. But since Vietnam, estimates of soldiers with combat experience suffering from PTSD have run as high as thirty percent."

  "And what are some symptoms commonly associated with PTSD?"

  "One of the main symptoms is a reliving of the original traumatic experience through either flashbacks, or in nightmares. Beyond that, there's insomnia, of course, and a sense of disconnect with life. Then depression, memory and cognition issues, abusive and self-destructive behavior. A huge range of personal and societal problems, actually."

  "Doctor, you referred to abusive and self-destructive behavior. Could this include alcohol abuse?"

  "Yes, of course."

  "And memory issues? Do you mean blackouts?"

  "Yes. Blackouts are not uncommon, especially if coupled with excessive drinking or drug use or both."

  "I
see." Washburn acted as though he were hearing all of this for the very first time in his life. Now he moved a step closer to his witness. "Doctor, is there a physical component to PTSD? Or is it simply what a layman might just call a mental problem?"

  As Washburn intended, this question kept Overton from becoming lulled in her relatively straightforward recounting. This hearing hadn't been his idea, but since he was in it, he was dry-running her to play to the jury's sensibilities when and if she testified at trial. She sat up stiffly, her expression defiant. "Absolutely not! In the first place, a mental problem is a real problem. It's as real as a broken leg. Secondly, with PTSD there is measurable altered brain-wave activity, decreased volume of the hippocampus and abnormal activation of the amygdala, both of the latter having have to do with memory. The thyroid's affected, as is production of epinephrine and cortisol. I could go on, but suffice it to say that there are many, many physical and neurological changes and reactions associated with PTSD."

  "I see, Doctor. Thank you," Washburn said. "Now, have you had an opportunity to interview and examine my client, Evan Scholler, with regard to PTSD?"

  "I have."

  "What were your findings?"

  "I found that Mr. Scholler clearly suffers from the disorder. His memory, particularly, seems to be compromised, and this symptom has been aggravated by a traumatic brain injury he suffered in Iraq in August of two thousand three. He suffers from frequent migraine headaches. Beyond that, he has reported the experience of blackouts and episodes of rage, shame, guilt, and depression. Sleeping has been a consistent problem. Finally, he has spoken to me about a tendency to abuse alcohol and other painkilling drugs, such as Vicodin. All of these symptoms are not only consistent with PTSD, they are diagnostic of it."

  "And what about the physical changes you've described-to the amygdala and hippocampus and so forth? Did you test Mr. Scholler for these?"

  "Yes, I did."

  "What were your findings?"

  "I found decreased cortisol with increased epinephrine and norepinephrine levels. Together, these hormone levels impact the body's fear response and the startle reflex, both of which I found to be in the abnormal range with Mr. Scholler."

  "And your conclusions as a medical professional? Does Mr. Scholler suffer from PTSD?"

  Dr. Overton looked over at the defense table where Evan sat. "Yes. Unremitting and severe PTSD. Without a doubt, in my professional opinion."

  "Without a doubt. Thank you, Doctor." Washburn inclined his head in a courteous bow. Facing Mills, he turned his palm up. "Your witness, Counsel."

  "Dr. Overton," the assistant district attorney began, "you've testified that blackouts were not uncommon among people with PTSD. Were you saying that PTSD causes blackouts?"

  "Not exactly. I believe I said that blackouts were common, especially when drugs or alcohol were part of the picture."

  "Oh, so PTSD does not in itself cause these blackouts, is that true?"

  "Well, in a sense you can say that-"

  "Doctor, I'm sorry. It's a yes or no question. Does PTSD cause blackouts?"

  Overton frowned, glanced over at Washburn. "They are commonly associated with PTSD, yes."

  "Again, Doctor, not my question. Does PTSD cause blackouts?"

  Washburn cleared his throat and spoke from his table. "Objection. Badgering."

  Tollson didn't take two seconds to make up his mind. "Overruled." He leaned over to speak to the witness. "Please answer the question, Doctor."

  Mills jumped right in. "Would you like me to repeat it?"

  Tollson transferred his scowl down to her. "Can the sarcasm, Counselor. Doctor, answer the question, does PTSD cause blackouts?"

  "Yes, there are some reports of that."

  "Some? How many of these reports are you personally familiar with?"

  "I'm not sure. To the best of my recollection, a few."

  "A few. All right. And do any of these few reports with which you're familiar speak to the duration of any of these rare PTSD blackouts?"

  From behind her, Everett Washburn rumbled forth again. "Objection. Assumes facts not in evidence. The doctor's awareness of only a few reports on blackouts doesn't mean that the blackouts themselves are rare."

  "Sustained."

  But Mills came right back at Overton. "Doctor," she said, "do any of these few reports with which you're familiar speak to the duration of any of these PTSD blackouts?"

  "Yes, they do."

  Mills had her own expert witness on this topic, although she wasn't sure she was going to use him. In any event, she'd done her homework and knew her facts. "Doctor," she said, "isn't it true that these PTSD blackouts tend to be of very short duration?"

  "Yes."

  "Along the line of forgetting where you put your keys, for example?"

  "I'm not sure I understand what you mean."

  "You put your keys on your kitchen counter, for example, then are struck with a vivid post-traumatic flashback. When it's over, you can't remember where you placed your keys. That's the kind of PTSD blackout discussed in the literature, is it not? In other words, a memory lapse of relatively short duration?"

  "I think so. Yes."

  Mills walked back to her table, took a drink of water. Turning around to the witness, she asked, "Doctor, are you aware of any PTSD blackouts that extended for more than a day?"

  "No. I've never heard of that."

  "How about an hour?"

  "No, I don't think so."

  "Ten minutes?"

  "Somewhere in that realm, I believe. The flashback, usually, tends to be intense but short-lived."

  The gallery might not have understood exactly what Mills was getting at with this questioning, but the doctor's answer of ten minutes sent a buzz through the room. Galvanized by it, the prosecutor moved in closer to the witness. "Doctor, you've also testified about blackouts that are coupled with excessive alcohol and drug use, or both. Would you characterize these blackouts as caused by PTSD, or by the alcohol and/or drug use?"

  "Well, they're related. The PTSD exacerbates the abusive behavior."

  "But it is the drinking or the drug use that causes the actual blackouts, is it not?"

  "I don't think we can say that."

  "Well, Doctor, alcohol and drug use by themselves can cause blackouts, correct?"

  "Yes."

  "And this is a fairly common and well-documented phenomenon, is it not?"

  "Yes."

  "But blackouts associated with PTSD are both rare and of short duration, isn't that true?"

  Washburn knew that this was a compound question, and hence objectionable, but saw nothing to gain by further interruption.

  "Yes."

  "So," Mills continued, "if you had a blackout for an extended period of time, Doctor, say a couple of days, there is scientific evidence that it could have been caused by alcohol, and no scientific support for the suggestion that it was caused by PTSD alone, correct?"

  "Yes."

  "Thank you, Doctor. Now, you've said that Mr. Scholler told you that he had abused both alcohol and Vicodin, isn't that so?"

  Clearly frustrated now, Overton had come forward in the witness chair, her hands on the balustrade of the box. "That's right."

  "Did he also tell you, Doctor, that he had abused alcohol in Iraq before one of these so-called traumatic experiences?"

  "Your Honor!" Finally Washburn was moved to rise to his feet in outrage. "I object to Counsel's characterization. Most of us humans would consider sustaining a severe head wound during a rifle and grenade attack on foreign soil in defense of our country a traumatic event. There is nothing spurious or so-called about it."

  This brought the gallery noise now to a full hum, and Tollson dropped his gavel for the first time. Without a word, he glared around the room until all the noise had ceased.

  Mills broke the silence. "I'll withdraw the word so-called, Your Honor." But she wasn't backing down. "Perhaps the court reporter can reread my question without the offending word."
>
  Tollson looked down over the bench at his reporter and nodded.

  The woman pulled the tape up and read, "Did he also tell you, Doctor, that he had abused alcohol in Iraq before one of these"-a pause-"traumatic experiences?"

  Overton, her mouth set, shot a glance at Washburn, then came back to her tormentor. "Yes, he did."

  "In other words, Mr. Scholler's alcohol abuse preceded his PTSD, and by itself was capable of producing extended periods of memory blackout, isn't that so?"

  "Apparently," Overton snipped out.

  "That would be a 'yes,' then, is that correct?"

  Through all but gritted teeth now. "Yes."

  "And Mr. Scholler told you that the particular blackout after the death of the victim, Ron Nolan, lasted approximately four days, isn't that true?"

  "Yes."

  "Thank you, Doctor," Mills said. "No further questions."

  Lawyer and client sat knee to knee in a holding cell behind the courtroom during the lunch recess. Outside their two small wired windows, it was a bright and sunny day. Their view included a small city of media vans that had set up out in the parking lot. Washburn's mouth was full of liverwurst on rye, but it didn't shut him up. "It doesn't matter," he said. "What's important is she established the PTSD. Now we've just got to make sure we get Tollson to let it in. You gonna eat your pickle?"

  "No. I'm not holding anything down. You go ahead."

  Washburn stopped chewing. "You nervous?"

  "Why would I be nervous? On trial for murder and all."

  "You've got to keep your strength up." Washburn grabbed the pickle and took a bite of it. After he finally swallowed, he sipped from his bottled water and cleared his throat. "But we need to talk about what we do if he doesn't allow it."

  "You mean Tollson?"

  A nod. "And the PTSD. We get that, we're going to have the jury on our side. They're going to see what happened in Iraq, what you've been through…it's decent odds they don't convict. On the other hand, this morning I was hoping Ted would rule to let the PTSD in without a hearing, but he didn't do that. Which means he's thinking about it, maybe he thinks it's bogus."