Capitol Offense

by William Bernhardt

  Just for the sake of courtesy, Ben crossed the aisle and greeted his opponents. He shook hands with both attorneys. He could tell Patterson was staring at his face.

  “Does it show?” Ben asked.

  Patterson almost jumped. “Oh—well—I’m sorry. Didn’t mean to stare.”

  “It’s all right. A scar is a scar.”

  “That was a horrible day for Oklahoma,” Patterson said. “And the nation. But I admired the way you handled yourself afterward.”

  “Well … thank you.” Ben turned his attention to the boss. “David. How have you been? Haven’t seen you for ages.”

  “’Cause you’ve been hiding out in Washington. Glad you’re back home where you belong. Saw your press conference, by the way.” He was a handsome man, dark-haired with just enough gray at the temples, telegenic—which was essential when the district attorney was an elected official. “Very dynamic.”

  “Saw yours, too,” Ben replied. “Guess you’re hoping for an all-redneck jury?”

  “And you’re hoping for the liberal bleeding hearts. The result will be somewhere in the middle.” He pulled Ben a little closer. “I may have a plea offer for you later today.”

  “I’m glad,” Ben said, “but I doubt my client will accept anything.”

  “Ten to twenty on a cop killing. It’s like a Christmas present.”

  “Not if you’re innocent.”

  “Don’t you mean not if you’re insane?” Guillerman smiled, a broad, toothy smile. It was hard not to like him. “And you would have to be to turn this down. Honestly, I’m just trying to save us both a lot of trouble and heartache. You don’t know this, Ben, but I’ve tracked your career for many years. I’m actually a big fan. And I know how surprisingly effective you can be in the courtroom.”

  Ben maintained a straight face. Surprisingly?

  “But this is a loser for you. A dead cop. A family man. And so much evidence of planning and deliberation. Clarence Darrow couldn’t win this one.”

  And you’re no Clarence Darrow. The message was so clear Guillerman didn’t have to say it. “I’ll take any offers to my client. But I don’t think it’s going to happen.”

  Guillerman shook his head. “That’s a shame. We’re both coming up for reelection soon. We really don’t need a messy case like this one. No one wins.”

  “Since you feel so certain you’re going to win, why don’t you let my bail request go unopposed?”

  “Can’t do that.”

  “He’s an English teacher, David. What can he do?”

  “Look what he’s already done.” Guillerman smiled. “Can’t do it, Ben. The press would crucify me. And I’ve got a major fund-raiser tonight.”

  “So long before the election?”

  Guillerman shrugged. “It takes a lot of money to mount a campaign these days.”

  Ben would be appalled at his reducing a criminal trial to politics—if everything he said weren’t so true. “I’ll wait for your call on that plea.”

  He returned to his own table. He could see Christina was looking at him eagerly, wondering what they’d talked about. He shook his head. No news.

  Judge Leland McPartland was one of the senior members of the Tulsa County judiciary, said to be about three years away from retirement. He was generally considered a competent if uninspired jurist. He was known to be old-school in his approach to the law and conservative in his approach to politics. Ben could just imagine what he thought of this purported cop killer. Or what he would think of the idea of temporary insanity.

  The bailiff brought the room to their feet and introduced the judge, who sailed in behind him while he was speaking.

  “You may be seated.”

  The room obliged.

  “Is the defendant present?”

  Ben rose to his feet. “Benjamin Kincaid for the defense, your honor.”

  “A pleasure to see our distinguished senator back in the courtroom,” McPartland said straight-faced. Ben wasn’t sure how to take it. “Are you prepared to proceed?”

  “We are. Waive reading. Enter a plea of not guilty.”

  The judge hesitated for only the tiniest moment. “Not guilty?”

  “Yes, your honor. And we will assert the affirmative defense of temporary insanity.”

  There was an audible reaction from the gallery. The two prosecutors looked at one another with weary eyes.

  “Temporary insanity.” Judge McPartland made tiny notes on a legal pad, despite the fact that the court reporter was taking down every word anyone said. “Will there be anything else?”

  “Yes, your honor. Although it will be tried in another court, you should be aware that there is a parallel civil suit accusing the police department of gross misconduct and seeking damages.”

  “I am already aware of that, counsel.” His voice lowered a notch. “I do read the papers.”

  “Your honor,” Guillerman said, rising, “we all know the police have legal immunity for actions performed in the course of duty.”

  “That doesn’t excuse gross negligence or misconduct,” Ben responded. “Or the intentional infliction of emotional distress.”

  “It’s not misconduct to follow the rules. Detective Sentz—”

  Judge McPartland held up his hands. “All right, gentlemen. We don’t need to have this debate here. Save it for the civil courts. Will there be anything else?”

  “Yes, your honor. We request that bail be set.”

  Guillerman rose again. “Out of the question, your honor. This man killed a police officer. In cold blood.”

  “I’m sorry,” Ben said. “Has a verdict already been rendered? I thought we were just getting started.”

  “I do not believe it is ever the practice of this court to grant bail in capital cases,” Guillerman continued, “and I certainly don’t think this is the time to make a change. There can be no leniency when it comes to the execution of duly appointed officers of the law. Our boys in blue. The heroes of 9/11.”

  Ben was pretty sure Detective Sentz had nothing to do with 9/11, but he let it slide. “I notice, your honor, that the distinguished district attorney has said absolutely nothing relevant to whether my client should be granted bail. The standard is whether he presents a flight risk or any potential harm to society. There is no flight risk. Dennis Thomas has lived in Tulsa all his life except for a few years in college and has no criminal record whatsoever. He has a teaching job at the University of Tulsa and he owns a home in Skiatook. And frankly, his face has been so showcased by the television media that I doubt there’s anywhere he could go without being recognized. He has no desire to run. Only to clear his name and see justice done.”

  “The man is a murderer,” Guillerman said. “Case closed.”

  “Furthermore,” Ben continued, “there is no reason to believe he poses any risk to society. Even if you accept the blather the DA has been peddling, my client acted out of grief in retaliation against the man he believed responsible for his wife’s death. She’s gone now, dead, so there’s no chance of those circumstances arising again.”

  “If a man is dangerous enough to strike once, he can strike again,” Guillerman said.

  “You could use that argument to preclude anyone ever getting bail,” Ben replied.

  “Which would be just fine with me. How do we know this man’s vendetta is over? Maybe he wants to take out the whole police department.”

  “That’s ridiculous.”

  “Says who?” Guillerman turned to face Ben. “You yourself said the man was crazy.”

  “I said we plead the affirmative defense of temporary insanity. Emphasis on the ‘temporary.’ It’s over.”

  “How convenient.” Guillerman turned to face the judge. “You honor, how long are we going to allow this gamesmanship to continue? We all know what happened here. The facts are not in dispute, not to any appreciable degree. This nonsense about temporary insanity is nothing but a cynical attempt to let a man get away with murder.”

  “Excuse me,”
Ben said, taking a step toward the bench, “but I thought we were arguing bail, not making closing arguments. There is nothing cynical about this plea. My client poses no flight risk or danger to society. That is a fact. And not even the distinguished DA can bury the facts, no matter how hard he may try.”

  Ben paused. The reporters were furiously scribbling down his every word.

  Well, Guillerman was playing to the media. He would have to play the same game.

  Ben turned to face the gallery, though still technically addressing the judge. “Here’s a fact they can’t deny—this man’s wife died because the police did nothing. We can argue about whether they woulda coulda shoulda, but that’s the bottom line. They could have saved her and they didn’t. How long did it take them to find her once they finally sprang into action? About three hours. But instead of being rescued in three hours, she suffered for seven days. Suffered in the most excruciating way possible, her bones broken, her leg pierced, her very life force slowly ebbing away. In constant pain.”

  Ben paused, and he was gratified to notice that no one interrupted to fill the gap. He had their attention. “Now imagine being that woman’s husband. The man who loves her more than anything else in the world. The man who worships her. The man she doesn’t come home to. You search everywhere, with no luck. You ask the police for help, but they can’t be budged. You try everything you know—and none of it works. Finally, after seven days, you find her. And it’s too late. She dies, right before your eyes. After enduring the most hideous torture imaginable.”

  Ben paused again, letting the words sink in. “Do you think that might possibly have an effect on a man’s mental stability? His rationality? His ability to distinguish right from wrong?” He turned around to face the bench. “This is not a frivolous plea, your honor, and we will prove that at trial. But the point I make now is that, regardless of the outcome of the trial, this man deserves our sympathy. Perhaps even our pity. He does not deserve to be locked away for weeks until this case comes to trial. In the name of humanity, your honor, I beg you to set bail for this defendant!”

  Ben sat down. The courtroom remained silent for a long time. Guillerman did not attempt a rebuttal.

  “Very well,” Judge McPartland said, clearing his throat. “I can see that this is going to be a very interesting case. You are correct, Mr. Guillerman, in your statement that the court does not normally award bail in capital cases. But I think we can all agree that this is far from a typical case. I see no likelihood whatsoever that the defendant will flee, nor do I think it likely that he will cause harm to other persons. And I must say that I think it altogether appropriate that the court give some consideration to the ordeal this man has already suffered. I have been married to the same woman for thirty-seven years now, and … well, there but for the grace of God go I. No one should have to endure such an experience, and I will not make it worse.”

  Guillerman rose but spoke quietly. “The State opposes the setting of any bail in this case.”

  “Understood,” the judge continued. “Objection noted. And I will set bail quite high—a million dollars. But I will make it available. Not intending to set any new precedent, but simply acknowledging that these are most unusual circumstances.”

  Ben liked the result the judge was rambling toward, but was concerned by McPartland’s lack of focus. He seemed to be shuffling about, not really making his point. Ben began to wonder if he was up to a trial of this magnitude.

  The judge slammed his gavel. “Bail is set in the amount of one million dollars. When you have your bond together, make the proper arrangements with the officer on the second floor. Now about the trial—”

  “As soon as possible,” Ben said, rising. “We’re ready. There are few facts in question.” And not much evidence that could help them, since they were planning a defense based upon Dennis’s mental state, not on the evidence. A long wait till trial would only give the prosecution more time to turn up evidence that might be used against them.

  Guillerman looked at Ben, obviously surprised. He shrugged. “If the defense is ready, so are we.”

  “Very well. I’ll plug this into the first available slot. Thank you, gentlemen. This hearing is dismissed.”

  The tumult rose with such suddenness it was as if a door had suddenly been opened onto an elementary school playground. It was almost deafening. Many people—not all of them reporters—hurled questions at Ben, which he pointedly ignored.

  Guillerman pulled Ben to one side. “I’m only saying this because I really am a fan. You’ll never win on temporary insanity.”

  “I guess we’ll see.”

  “I don’t blame you for trying. But I know more about the facts of this case than you do, and I’m telling you—you cannot make that stick.”

  “I appreciate your concern.” Sort of. “But I’m not thinking on my feet. I would never advance a theory I didn’t believe was viable.”

  “And if you’re contemplating jury nullification, put that out of your head right now. Judge McPartland won’t let it happen. No matter how you dress it up. He’ll shoot it down.”

  “Well, you never know. I’m full of surprises.”

  “I know that. But I think this time you’ve gone one surprise too far.”

  “Time will tell, right?”

  Guillerman shook his head, then smiled. “Fine. Play it your way. Can’t say I didn’t warn you.”

  Ben returned to his own table.

  “Nice job,” Christina said, but Ben could see she was not altogether pleased.

  “Excellent,” Dennis said, grabbing his hand and shaking it. “You had me a little worried back in the jail cell. But that was fantastic. You can really pour on the fire when you get worked up, huh?”

  “I was doing my job.”

  “And doing it darn well. The most important thing is that you seemed like you really believed it. That’s what sells a jury.”

  “That, plus evidence. And truth.”

  “It’s important for the jury to believe that the lawyer likes his client. Gives credibility to the claims of innocence.”

  “We don’t have to prove innocence,” Ben said. “Only not proven guilty.” And he added to himself: Thank goodness.

  “Well, anyway, I’m pleased, Ben. I guess everything I heard about you was true. But I don’t have a million dollars. I do have a trust fund I could use toward bail, but it’s not enough.”

  Ben nodded. “We’ll get a bond. It still won’t be cheap, but we’ll find a way. You may have to take out a loan. It’ll be worth it. You don’t need to spend more time in jail.”

  “You need to spend it in our office,” Christina said, packing her materials away. “Now that Ben has so brilliantly put this case on the fast track, we’re going to have to work night and day to get ready.”

  “That’s fine,” Dennis said. “I’m willing. Whatever you want.” He rubbed his hands together. “This is very encouraging.”

  Ben saw Christina’s eyes narrow.

  “I’ve read that people who don’t get bail are found guilty nine times out of ten. And the judge’s reaction suggests that we’ve done a decent job of spinning public opinion. I think we need another press conference, Ben. Soon, on the courthouse steps. If the psychiatrist is available, maybe he should come, too. Those potential jurors will be watching.”

  He moved toward the door, where a dozen reporters eagerly waited to get their hands on him.

  Christina gave her husband a fierce look. “Ben …”

  “I know, Christina. I know.”

  8

  Ben stood shoulder to shoulder with his newly sprung and spruced-up client, staring at the vast array of microphones and minicams assembled on the plaza outside the Tulsa County courthouse. It was important that Dennis be present and that they all see him as he was, a good, intelligent, clean-cut professional who had recently lost his wife. Not a monster, not a violent man.

  Just the same, Ben planned to do all the talking.

  “We applaud Judge
McPartland’s actions. It would have been much easier to take the usual path and avoid controversy. But instead of jumping on the media bandwagon, he saw the facts and circumstances clearly and realized that Dennis Thomas is no threat to anyone. He does not deserve to be incarcerated, not now or at any time in the future.

  “It is all too easy in this reactionary age to heighten the drama and act as if each and every crime is of equal horror, but that is simply not the case. Not every youth should be tried as an adult. Not every defendant should receive the maximum sentence. We can rise above the visceral need for retribution. We are better than that. Those old attitudes have produced the current mess in the criminal justice system—over 2.2 million people in prison, the highest incarceration rate of any nation, more than four times the world average.”

  Ben scanned his audience. So far they all seemed attentive. He suspected he was not swaying the reporter from Fox News, and several others as well, but at least no one was heckling. “The reality, which Judge McPartland recognized, is that Dennis was subjected to circumstances that would tax the mental stability of even the most solid citizen. Who could live knowing that the police department could have saved his wife—and chose not to do so? Who would not be tormented by that knowledge? Temporary insanity is not a gimmick dreamed up by lawyers; it is a very real and debilitating mental state, one that all of us could experience given the right circumstances. It is time that we as a nation recognize that fact and stop acting as if harsh punishment will solve all our problems. Dennis Thomas presents no threat to society. He should not be incarcerated.”

  Ben never directly said he should be found not guilty, but of course, that was the implicit message. Prospective jurors didn’t have to wrestle with whether they genuinely believed in the concept of temporary insanity. That was the tool they would use. The goal was to convince the jury that this man should not go to prison, regardless of whether you think he committed the crime. So, ladies and gentlemen of the jury, make whatever finding you must to make sure he doesn’t end up behind bars.