by Paul Levine
Several others testified, a blur of South Beach's party crowd. At night, in their club duds, they're a flashy group. Today, under the fluorescent lights, they looked pale and out of place. If they'd taken blood tests the night of the shooting, I'd bet none of them could have operated heavy machinery. Abe had discarded the worst of the Ecstasy-popping, cocaine-sniffing, heroin-smoking folks who thought they'd seen a chorus line of dancing hippos. He barely managed to haul in half a dozen citizens who could simultaneously put one hand on the Bible, another in the air, and say, "I do."
My old antagonist was piling it on thick, and I objected once on the grounds of cumulative testimony, but Judge Stanger overruled me. Abe was clever enough to draw one new fact from each witness. No, the woman didn't seem hysterical. Calm. Just shot the man, pop-pop-pop.
I kept my cross-examinations brief. Michelle Schiff, a makeup artist, had commented on Chrissy's placid demeanor as well as her tasteful use of eyeliner.
"On direct examination, you testified that Christina Bernhardt had no expression on her face when she apparently shot Mr. Bernhardt?" I said.
"That's right."
"I wonder if you could be more precise."
"I don't understand."
"Well, we always have some expression on our face, don't we?"
Socolow bounded out of his chair. "Objection, argumentative." It was a silly objection to a silly question, and I figured Abe just wanted to stretch his legs.
"Overruled," Judge Stanger said. "You may answer the question, if you can."
"I don't think I understand."
"Let's try it this way," I said. "Ms. Bernhardt didn't look excited, did she?"
"No."
"And she didn't look agitated?
"No."
"Or angry?"
"No."
"Happy?"
"No."
One of the trial lawyer's tricks is to eliminate every snippet of evidence that could be harmful, in order to leave the impression that what is left is favorable. Sometimes it is a tedious task.
"Did she look intense?"
"Objection!" Socolow called out. "Calls for speculation."
"Overruled," the judge said. "The witness can testify as to her observations."
I shot Socolow a dirty look. He was just trying to break the staccato rhythm of my cross.
"Did Ms. Bernhardt appear to be intense, to be focused on what she was doing?"
"Not really," Michelle Schiff said.
"Then what was her expression?" I asked.
Michelle Schiff ran a hand through her hair, which was tinted the color of a copper penny. "I don't know. Her eyes seemed blank. Her face was kind of dreamy. Her mouth was just a tiny bit open. I remember she wasn't wearing lip gloss, and in that light-"
"Blank," I repeated, interrupting her before we sped off in another direction. "Blank and dreamy. As if she were in a daze?"
"Yeah, I guess."
"Or a trance?"
"Sort of."
"Or hypnotized?"
"Your Honor!" Socolow stood so quickly he jostled a file, which crashed to the floor. "Unless the witness is an expert on hypnosis-"
"Sustained. Move it along, Mr. Lassiter."
I paused long enough for the jurors to turn and look at me. "So, in summary, Ms. Bernhardt seemed to be in a daze or a trance when she walked by your table?"
"Yes. I said that."
Actually, I had said that. But I wanted the jury to think she had. "Nothing further," I concluded.
24
Flashbacks
There is nothing worth stealing in my little coral-rock house in the South Grove. Oh, there is the dinged sailboard propped on concrete blocks. It doubles as a coffee table, though the rings on the fiberglass come from beer bottles, not coffee cups. There is a table lamp made from a Miami Dolphins helmet. There is a sofa of Haitian cotton that was once off-white and is now a jaundiced shade of yellow. There are two potted palms, a rusted scuba tank, and an old stack of magazines and football programs.
Which is why I don't lock my front door.
Not that you could open it unless you have hit a blocking sled or two. The wood is humidity swollen, so the door stays jammed shut. My friends know how to get in, but few are willing to suffer shoulder separations.
When I came home that night, there was a red Corvette parked under the jacaranda tree. The downstairs smelled of cigars. The sound of a cabinet door closing came from the kitchen. Then a voice. "Where do you keep the single-malt Scotch, old buddy?"
"I don't drink it except when you're paying, Rusty."
He poked his head out of the kitchen, and I dropped my briefcase on the floor. He was wearing pleated Italian slacks that billowed at the hips and a black silk shirt with an open-mouthed shark crawling up the front. His long red hair was tied back in a ponytail. To my unbiased eye, he looked like a trainee in an executive program for drug dealers.
"And you got shit in your refrigerator," he complained. "Salami and beer."
"The building blocks of life," I said. "As essential to civilization as Monday Night Football."
"Nobody eats salami anymore."
"That's why I like it."
"Tofu is in, Jake. Bean sprouts are in. Sushi is in. Salami is so far out, it may come back in."
"When it does, I'll stop eating it."
I sat down on the sofa, kicking off my black oxfords. I hate those shoes. Lace them up tight, feel uptight. Of all my shoes, my favorites were those old black hightops from Penn State. Loved the feel of spikes biting into solid ground, a satisfying thwomp you both heard and felt.
Rusty emerged from the kitchen carrying two 16-ounce Grolsches. "Can I buy you a beer?"
"You can tell me why you lied to me."
"Jake!" Sounding wounded.
"You set me up because Guy Bernhardt paid you to. Then you lied to me about it. Now you're going to testify for the state." I took the beer but didn't open it. "Old buddy."
"I'm sorry, Jake. Guy asked me a lot of questions about you, and yeah, he got me to bring you to Paranoia that night. But I didn't know Chrissy was gonna off her old man, and that's the truth."
"Then what did you think was going on?"
He sat down in a chair within a short left hook of the sofa. "I just believed what Guy said. He told me he'd be coming by to see his pop. Chrissy, too. There was some family dispute. Maybe my old friend Jake could help out, be the family lawyer, but I wasn't to say a word to you. Look, if it helps, I'll testify to that."
"It doesn't help. Your conversations with Guy are hearsay. Besides, Guy could say, 'Sure, I wanted to bring Pop together with Chrissy, but she spoiled everything by killing him.' "
"It freaked me out, Jake, when she came in and started shooting. But I never figured Guy had a hand in it."
"And now you do?"
"No. You do. If Guy was gonna kill his pop, there'd be easier ways."
I popped the porcelain stopper on the bottle. "Not that would get Chrissy out of the way at the same time."
Rusty swallowed a few glugs of his beer but didn't answer me. I was still wondering why he'd shown up. The offer to testify didn't impress me one bit.
"Here's how I see it, Rusty. You got in over your head, and now you're scared. I figure you're part of some conspiracy without really knowing it. You're not really a bad guy. Dishonest, sleazy, and disloyal to your friends, but in the scheme of things, you're just another guy on the make."
He looked as if I'd just peed on his shoes. "Jake, I'm willing to make it right. I'll do anything you want."
"What do you suggest?"
"Put me on the stand."
That was the second time he had offered his services. "What for?"
"I'll tell how Guy paid me to go the club, told me Chrissy was coming, and wanted you there. I'll tell-"
"No, you won't! Guy would say Chrissy had been making threats against their father. That's an admission by a party, admissible at trial. He'd say he feared for his pop's life and wanted two big ol
e football players there, but we let him down. Because she planned the killing, it's first-degree murder all the way. So you see, Rusty, there's nothing you can do to help. Every time you open your mouth, you hurt us. Guy knows that. In fact…"
Sometimes I have to think out loud. I'm not one of the smart guys who can get from A to Z without mouthing all the letters in between. But give me enough time and I'll get there.
"Rusty, you son of a bitch!"
"What?"
"He sent you here. He wanted to sucker me into using you."
"No. I swear."
"You're lying through your teeth," I said, using my granny's expression.
Rusty's shoulders seemed to slump. "Okay, okay. Guy told me to try and make amends with you. He didn't say why."
"You're dumber than you look, Rusty."
"All right, I made a mistake, but Jesus, Jake, I'm telling you the truth now. I didn't know what Guy and that bald shrink were up to."
"But you do now."
"Yeah, I think they fucked around with Chrissy's head. After the drugs and what her old man did to her, it was probably pretty easy. But there's nothing you or I can do about it. Guy Bernhardt's smart, Jake. Real smart. He plays that country farmer shtick, but he's no bumpkin."
"What are you saying?"
"That you're going to lose, Jake. Don't make it any harder on yourself. Just lay down. It's not like Chrissy didn't pull the trigger. I mean, she's a killer, right?"
"You can rationalize just about anything, can't you?"
"You don't know what you're up against."
"Get the hell out of here!"
Rusty stood and started for the door. "I'm sorry, Jake. I was just trying to help."
"Bullshit! You've never tried to help anyone your whole life. You were a chickenshit wideout who wouldn't throw a block on a corner 'cause it would muss your hair."
He stopped and turned. "Jake!"
"Oh, did I insult you? Pity. Maybe Guy will pay a bonus for your wounded feelings."
He left carrying his beer, and a moment later his Corvette kicked up a spray of pebbles from the driveway and tore off down the street. I resented the noise almost as much as the man who made it.
For once, I knew more than the prosecution. Not that it would do me any good.
Abe Socolow was Sergeant Joe Friday in the courtroom. Just the facts, ma'am. He didn't need to know, didn't want to know, every twist and turn in the lives of Chrissy and Guy Bernhardt and their father. I needed to know, but wherever I turned, the answers came out wrong.
"So did that tall glass of gin kill her daddy or what?" Granny asked me. She had driven up from Islamorada, toting a wicker basket containing conch chowder, white lightning, and jerk chicken. Kip carried a brown paper sack filled with Key lime marmalade, fruit chili, and other preserves Granny had put up.
"Chrissy pulled the trigger," I said, sorting through the goodies that now lay scattered across my kitchen counter. "But she was manipulated by her brother and programmed by the shrink."
"Just like Laurence Harvey," Kip said.
"Huh?"
"In The Manchurian Candidate. Brainwashed and trained to kill."
"Yeah, something like that."
"Can you prove it?" Granny asked.
"No," I admitted.
"Then what are you gonna do?"
I opened a mason jar and sniffed at the rye liquor. "Play soft defense. Bend but not break. Maybe Guy Bernhardt makes a mistake, and I get lucky."
Granny gave me her puzzled look. "You mean Socolow, don't you, Jake?"
"No. Abe's not the enemy. He doesn't even know what really happened. Guy Bernhardt does, and he's the opposition."
"Chrissy knows," Kip said.
"What?" I was taking a sip of the liquor, but my hand stopped in midtrack.
"I mean, if they programmed her, it's got to be in her head somewhere, doesn't it? Like flashbacks in the movies, where all you need is something to bring them back. I can always tell when someone's going to get one, 'cause there's a close-up of the person's eyes, and the music comes in a rush, and then everything goes to black and white."
"Flashbacks," I said, mulling it over.
"Yeah, like in Dolores Claiborne, only there they weren't black and white, just kinda a different color, and Kathy Bates could remember all this really bad stuff that happened to her."
Granny was looking at me sideways. "What are you thinking, Jake?"
"Just trying to figure how to bring up the music."
We started the day with housekeeping matters, both sides submitting proposed jury instructions, even though we were a week away from finishing the case. Judge Stanger granted my motion to exclude Luciano Faviola and Martin Kent as witnesses, ruling that the pattern of prior acts of violence was not similar enough to meet the Williams rule, and in any event, there was no question as to the identity of the shooter.
Abe Socolow's direct examination of Rusty MacLean was short and thankfully lacking in surprises. Rusty told the jury that he had been sitting immediately adjacent to a heavyset man at the bar. No, he didn't recognize the man, never saw him before. Mr. Lassiter was sitting right next to Rusty. The jury seemed puzzled by that. No frame of reference. Johnnie Cochran wasn't with O. J. on June 12, 1994, right?
The defendant, Christina Bernhardt, walked in. Sure, he'd recognized her. At one time, he was her agent, but you know how models are. Jump from agency to agency at the promise of better work. She wasn't more than ten feet away when she pulled out a gun and fired three times at the heavyset man. Hit him with every shot.
"What, if anything, did you do?"
What, if anything…? My profession has its little ritualistic questions. Once, in a lawsuit against a dressmaker for a botched wedding dress, the opposing lawyer asked my client, the bride, "What, if anything, were you wearing during the ceremony?"
"I was frozen," Rusty said, shaking his head. "I mean, I never saw anything like…"
He let it hang there.
"Then what happened?" Abe Socolow asked in another time-honored question lawyers use to move the story along.
"Jake, Mr. Lassiter…" Rusty looked over at me and gave a half smile. He was a boyish charmer until you got to know him. "Jake jumped up and went for the gun, but Chrissy just fainted dead away into his arms."
"Your witness," Socolow said amiably.
There was no need to cross-examine Rusty. Except my need to inflict some pain, preferably not on my client or myself. I stood and Rusty smiled at me, which caused a red-hot spot in my gut to spread to my limbs. I was sweating.
"Mr. MacLean," I began, as if I'd never seen this fellow in my life, "have you ever been convicted of a crime?"
Rusty's smile froze, and he shot an anxious look at Abe Socolow, who merely shrugged. It's a perfectly legitimate question of any witness, but strangely, under the rules of evidence, if the answer is yes, you can't ask, "What crime?" If the answer is no, and it's a lie, you can put on evidence of the conviction to impeach the witness.
"You oughta know," Rusty said finally.
"Indeed I do, but the jury does not." I opened a file and held up a blue-backed legal document, as if examining it. "I ask again, sir. Have you ever been convicted of a crime?"
"Yeah, you represented me. Next time, I'll get a better lawyer."
That drew some laughs from the gallery, and a few smiles from the jury box, but it didn't bother me one bit. Let the jurors think poor Chrissy had a bumbler while the state was represented by the coolly efficient surgeon named Socolow. I am not above a ploy for sympathy. I returned the blue-backed document to its file folder. It was the deed to my house, not Rusty's conviction for fraud, after overcharging models for their composites while making farfetched promises of employment.
"Mr. MacLean, how much time elapsed from the moment Chrissy Bernhardt took the gun from her purse until the last shot was fired?"
Rusty shook his head. "It was quick. I dunno. Less than ten seconds." He stared into space, thought about it, actually brought
his hand up as if holding a gun, pulled an imaginary trigger three times. "Maybe six seconds."
"Six seconds," I repeated. "Now, you just testified that Christina fainted after shooting her father?"
"Yeah. I said that."
"So she lost consciousness?"
"She just collapsed, and you caught her before she hit the floor."
"Precisely when did she lose consciousness?"
"Precisely? I don't know."
"Was it a second before she fell, five seconds, six seconds?"
"Well, it couldn't have been six seconds. That would be about when she started firing, and she was conscious then."
"She was?" I tried to sound surprised. It isn't difficult because I often am. "Were you monitoring her heart rate?"
"No."
"Or her blood pressure?"
"No."
"Or her brain waves?"
"No, of course not, but she was firing a gun, for God's sake."
"Which you were looking at, correct?"
"What?"
"The gun, Mr. MacLean. When Chrissy Bernhardt was firing the gun, state's exhibit three…" I walked to the clerk's table and picked up the little Beretta. "You were looking at it, weren't you? Your eyes were glued to the gun?"
"Yeah, I guess so."
"Just as you are now?"
Rusty's eyes flicked from the gun to the jury and back to me. "Yeah. It kinda draws your attention."
"Therefore, you weren't looking at Chrissy's eyes, were you?"
He paused a moment, irritated with me. "No, I guess not."
I returned the gun to the clerk. "So you couldn't possibly know if Christina's eyes were open or closed at the time of the shooting, could you, sir?"
The purpose of cross-examination is to eliminate a witness's choices, and just now, Rusty had no choice. "No, I couldn't tell if her eyes were open," he admitted.
"You couldn't see her facial expression at all, whether her face was slack or taut?"
"No."
"And consequently you don't know if she was conscious or unconscious or in some in-between state?"
"Objection! Calls for speculation."
"Overruled, but Mr. Lassiter, why don't you rephrase anyway? 'In-between state' is a little vague."
