by Paul Levine
Charlie shook his head and tamped some tobacco into his pipe. "If that's true, don't you think they would have kept their distance? I doubt Schein would have shown up in the hospital."
"He had to make sure Harry was dead, and if not…"
Charlie lit his pipe, and the scent of cherry tobacco mixed with jasmine from my neighbor's yard. "Do have the slightest thread of evidence that would support such an outrageous theory?"
"Evidence?" I said, as if I'd just discovered a new word. "That's your job. Mine's to spin the tale of the destruction and death of a rich man."
"Like Appointment in Samarra," Charlie said.
"What?"
"A book by John O'Hara. A wealthy man-"
"I know the book, Charlie. I have a college degree that only took five years to earn." I stared off into space before saying aloud, "Appointment."
"What?"
"You're a genius, Charlie."
He grumbled some disclaimer, then said, "What is it, Jake?"
"Harry had an appointment."
"Hmmm?"
"Appointment at Paranoia, Charlie."
You bait different hooks in a trial. And sometimes the lines get tangled. You can say to a jury that dirty cops engaged in an elaborate conspiracy to frame your saintly client, a handsome former running back accused of butchering his wife and her friend. And you can also say that the cops are so woefully incompetent that they can't put the right labels on their little bags of evidence or keep souvenir hunters out of impounded vehicles. It's not my client's blood, but if it is, it was planted, and if it wasn't planted, he cut himself a week earlier when he was carving turkeys for the poor.
To laymen, those poor souls deprived of legal training, the strategy seems contradictory. But to those of us trained in the fine arts of pettifoggery, hairsplitting, and wordplay, it all makes sense. In the first semester of law school, we learn contracts. A man lends a pot to another. When it is returned, it is cracked. The first man sues. The second answers the complaint in the time-honored fashion: I never borrowed the pot, but if I did, it was cracked when I borrowed it.
In Chrissy's case, I wanted to prove that she had been programmed to kill. My Manchurian Candidate defense, Kip called it. Chrissy was the guided missile, programmed by the manipulative shrink, launched by the avaricious half brother. At least, that's how I imagined my closing argument, if only I had the evidence.
At the same time, there were the fainting spells. Instead of a hypnotized zombie, Chrissy was an ill young woman who had been semiconscious, and hence without criminal intent, when she shot her father. Not as sexy a theory, maybe, but probably easier for the jury to swallow. In my lawyerly fashion, however, I tried to have it both ways.
Dr. Robert Rosen was my first witness. He smiled warmly at Chrissy and turned to the jury with professional ease and a bit of charm. Doctors are the best witnesses and the worst. When I had prepared Rosen's testimony, Kip was with me in the conference room. The doctor had been blathering on about "classic neuro-cardiogenic syncope."
"English, please," I told him.
"Yeah, cut the bullshit, Doc," Kip added.
"Kippers!"
"Easy, Uncle Jake. Don't you remember James Mason in The Verdict? He's getting this doctor ready to testify, and the doc, who's a total bogon, says, 'She aspirated vomitus into her mask.' So James Mason says, 'Cut the bullshit, Doc. She threw up, and always use her name. Debbie threw up.' "
"I didn't care for the movie," Dr. Rosen said unhappily. "Stories about medical malpractice make me uneasy. I did like James Mason, though."
"He was the villain," Kip said. "The Prince of Fucking Darkness."
"Kip!"
"That's what Jack Warden called him. I thought lawyers considered it a compliment."
By the time Rosen took the stand, he spoke in plain English, occasionally fiddling with his mustache while he listened to my questions. He explained that Chrissy's fainting was caused by a gradual decline in blood pressure, and that she would grow woozy just before she fainted.
"So there would be a time of semiconsciousness?" I asked.
"Yes. As the blood pressure falls, there could be several seconds that precede the actual fainting where Chrissy blacks out, sees stars, that sort of thing."
"Would she be capable of processing information?"
"Objection, vague," Socolow shouted.
"Sustained," Judge Stanger said.
"In such a state, would she be capable of forming a conscious thought, carrying out an intended task?"
"Objection, calls for speculation."
Before the judge could sustain the objection, I offered to rephrase the question. "Dr. Rosen, assuming a person with the classic neurocardiogenic syncope is in the preliminary phase of an episode-that is, the person's heart rate and blood pressure are falling and the person is woozy and seconds away from fainting- could that person consciously carry out an intended task?"
"Objection, assumes facts not in evidence."
"I'll overrule it," Judge Stanger said. "It's admissible as a hypothetical question to an expert."
Sometimes judges get tired of sustaining objections and, like everybody else, just want to hear the answers.
"It's a gray area," Dr. Rosen said. "And there's a continuum during which the person loses consciousness. At a certain point just prior to actually fainting, the person clearly would be incapable of performing most tasks."
"Such as aiming a gun and pulling a trigger?"
"Yes. The combination of neural, mental, and motor skills required would not be possible in such a state."
I thanked the doctor and glanced at the jury. I caught a nod or two and nodded right back.
28
Playing the Sap
Sometimes I am so confused, I have to write everything on a legal pad. I draw a line down the middle of the page, scribble what I know on the left side and what I don't know on the right.
Chrissy believed she had been sexually abused by her father. But was it true? I didn't know.
Rusty bearded me for Guy Bernhardt. Why? For money, I was certain.
Guy masterminded Chrissy's mind fuck. He had Schein program her to kill Harry Bernhardt. But why? Cui bono? Guy stood to gain. But he would inherit half his father's estate eventually. Why be so greedy, so inhumane, as to want it all now? Why kill your father and frame your half sister? There had to be something more than the estate, but all I had was a question mark on the right side of my pad.
Schein tricked Chrissy into confessing on tape, recording evidence of her premeditation. Or did he? Was Chrissy involved in some double-fake, the legal equivalent of a reverse with a flea-flicker at the end of the play? Was I the patsy for Chrissy, too? Only yesterday, Kip had been watching The Maltese Falcon on cable, and I'd heard Humphrey Bogart telling Mary Astor, "I won't play the sap for you."
After I put it all down on paper, I started again, this time ignoring what really happened and trying to figure what made the best story. They don't teach you this in law school; you pick it up in the courtrooms, corridors, and conference rooms along the way.
Okay, take it from the top. Chrissy believed she had been sexually abused by her father. That gave her the motive-but not the lawful excuse-for killing him. Although some jurors might be sympathetic if they believed the abuse actually happened, they would be bound to follow the law. She had not been acting in self-defense or the defense of another, and she was not insane. My argument that Chrissy's fainting amounted to a lack of conscious intent was smoke and mirrors. In other words, no defense, and once Schein hammered me with the missing tape, as he threatened to do if I called him to testify, the element of premeditation would be proved.
So, weirdly, according to my legal pad, we were better off if Chrissy had not been sexually abused by her father. If she had no motive for killing Harry, it lessened her blame; it made her programming by Schein all the more necessary to get the job done. If the half brother and the shrink had fabricated everything, it helped me shift the focus to
them. They pulled the trigger, not this poor, confused young woman.
But was that true? I didn't know. And at the moment, it didn't matter. All that mattered was Chrissy. Which was why I decided to bet the farm on the destruction of Dr. Lawrence Schein.
Lawrence Schein, graduate of Tulane University and the University of Miami Medical School, with an internship at Jackson Memorial Hospital and residency at Massachusetts General, with specialized training in psychiatry, and the author of a few undistinguished papers, did not know where I was going. He didn't know how many cards I held or if I was bluffing.
Charlie Riggs taught me the three essentials of proving that John Doe committed a crime: motive, opportunity, and means. That's also the order of proof. Which is why I started with what Charlie Riggs would call causa or ratio, the reason or motivation for the crime.
"Harry Bernhardt was a friend of yours, wasn't he, Doctor?"
"Yes, for a long time."
Schein smiled as if fondly remembering their get-togethers. He liked the question, was pleased with the answer. After all, you don't go about setting up the murder of a friend.
"When's the last time you had dinner with Harry Bernhardt?"
"Dinner? Well, I don't know. I don't remember."
"When's the last time you were in his home?"
He fiddled with the knot of his club tie. He wore a navy cashmere sport jacket and gray slacks. His shaved head gleamed under the fluorescent lighting. "It's been some time."
"Were you ever in his home after his wife, Emily, died?"
"Not that I recall." Looking puzzled, wondering where I was going.
"And that's been, what, almost fifteen years?"
"Yes."
"Subsequent to Emily's death, did you ever have dinner with Harry Bernhardt?"
"Not that I recall."
"Ever invite him to your home?"
"No."
"Ever go to a Dolphins game with him?"
"No."
"Did you ever pick up the phone and call him? 'Harry, how you doing?' Anything like that?"
He pulled at his goatee. "Harry Bernhardt was not a chatty person."
"So the answer is no. You never called Harry Bernhardt."
"No, I didn't."
"Then I wonder. Doctor, just how you could call Harry Bernhardt a friend."
"Objection, argumentative." Socolow sounded bored, but he was right.
"Sustained," Judge Stanger said.
"Isn't it true, Dr. Schein, that you were Emily Bernhardt's friend, not Harry's?"
"Objection," Socolow sang out. "Dr. Schein is Mr. Lassiter's witness."
"He's a hostile witness," I responded. At the word "hostile," Schein's left eye twitched.
"Come up here, both of you," the judge said, waving us toward the bench. When we got there, he pointed a bony finger at me. "Jake, if I understood your proffer, way back at the bond hearing, Dr. Schein was the treating psychiatrist."
"That's right."
"And he's gonna testify that your client was sexually abused as a child, causing her to lose control or some such thing and plug the decedent three times with a little pistol."
"That's about it."
"So how the hell is he hostile?"
"He's wrong. He's going to insist it happened that way in order to cover up his own wrongdoing. He's hostile now, and by the end of the day, he's going to be downright belligerent."
The judge looked at Socolow, who concealed his glee with a judicious semismile. "If Jake wants to impeach the only witness who can give him a defense, who am I to object?"
"Jake, I hope you know what you're doing."
"Do any of us, Your Honor? I mean, in the cosmic sense?"
"I'm not fooling around, Jake," the judge said, sending a clear warning. "If you're setting up some incompetency-of-counsel defense, I'll pin your license to the ass of a horse that's leaving town."
Trying to sound folksy, some judges end up with a bushel basket of messy metaphors.
"Judge Stanger, I assure you, if I'm incompetent, it's purely unintentional."
"All right, impeach to your heart's content." He sent us back to our tables, then turned toward the reporter. "Margie, please read back the last question."
The reporter thumbed through her pages, then read in a monotone that didn't do me justice,
" 'Isn't it true, Dr. Schein, that you were Emily Bernhardt's friend, not Harry's?' "
The doctor cleared his throat and glanced toward Chrissy. She sat at the defense table in a three-piece burgundy outfit: a banded turtleneck, a belted cardigan, and a matching pleated skirt that nearly reached her ankles. Tasteful and refined, but the wrong color. I had forgotten my lecture banning anything that resembled dried blood. "Yes and no," Schein said. "I mean, Emily was my patient. Her husband was… there, in the house. We knew each other, all of us."
"Cutting to the heart of it, Emily Bernhardt was more than a patient, wasn't she?"
"I'm not sure I understand the question."
I raised my eyebrows at Dr. Schein, but the gesture was intended for the jury. Then I waited. Sometimes the pause will do it. The silence fills the courtroom. The witness becomes nervous, aware the jury is waiting. A spectator coughs, the courtroom door squeaks open, feet shuffle. A witness in control will wait out the lawyer. After all, Schein just said he didn't understand. I could have rephrased, but I chose to wait. Ten seconds, fifteen, it seemed like an hour.
"Well, I have become close to a number of patients over the years," Schein said finally. Defensive, worried, shifty.
" I'm not concerned about other patients. Would you please answer the question? Was Emily Bernhardt more than a patient?"
After a pause. "Yes, she was."
"And more than a friend?"
"I don't know what you're implying."
"Yes, you do."
"Objection, argumentative." Socolow was starting to wake up.
Judge Stanger cocked his head. "Actually, there was no question at all. Next question, Mr. Lassiter."
"Dr. Schein, were you and Emily Bernhardt lovers?"
"Objection, irrelevant!" Now, Socolow was on his feet. Caught off guard, pissing off the jury by objecting to a juicy question.
"Denied. This is a murder trial, and I'll give the defense some latitude."
"Were you and Emily Bernhardt lovers?" I repeated.
"No."
I reached into a file and pulled out a faded sheet of paper. "Did you write her love poems?"
His face froze. His eyes were wide. What did I know?
"No."
This time I didn't have my laundry list or my old college letter-of-intent signed by Joe Paterno. What I had was the personal stationery of Lawrence B. Schein and a faded, handwritten note to "My Dearest Emily." I read aloud:
Wild Nights-Wild Nights!
Were I with thee
Wild Nights should be
Our luxury!
I paused a moment, then asked, "Did you write that?"
"No-I mean, yes. I didn't write it, but I copied it, out of a book."
"All right. You borrowed it. After painstakingly copying these breathless words of Emily Dickinson, did you give the poem to your Emily, Mrs. Emily Bernhardt?"
He reddened. "Yes."
" 'Wild Nights should be our luxury!' " I repeated. "Were they?"
"I resent your implication. You can't examine poetry as if it were an X ray. Ours was a cerebral relationship, not a physical one."
"Ce-re-bral," I said, as if it were a dirty word. Angling toward the jury, I let my voice fall into a whisper. If you really want them to listen, speak softly.
Rowing in Eden-
Ah, the Sea!
Might I but moor-Tonight-
In Thee!
Two jurors tittered.
"You were Emily Bernhardt's lover, weren't you, Dr. Schein?"
"No! Not the way you mean. No."
"Were you in love with Emily Bernhardt?"
He stared off into space. A vein throbbed i
n his forehead. "She was the finest woman I've ever known."
"Were you in love with her?" I repeated. Demanding now.
He mumbled something.
"Doctor?"
"Yes, I was in love with her."
"And she with you?"
"Yes."
"To your knowledge, did Harry Bernhardt know of your feelings for his wife?"
"She told him. She didn't love him, hadn't for years. But she wouldn't divorce him. Christina was just a child. Emily didn't want to break up the family, and she wasn't strong enough to fight him." The words came tumbling out now. Maybe he wanted to talk about her. All these years, and no one to tell, to feel his pain, the great unconsummated love of his life. "No one had ever been divorced in the Castleberry family, and Emily was so… so prudent in matters like that. She wouldn't pursue her own happiness. Besides, Harry, wouldn't let her go. She was his claim to respectability, his entree to society. And there was something else, too. A mean, sadistic side to him. He liked punishing her."
"You hated him, didn't you?"
"She was so frail," Schein answered, as if he hadn't heard the question. "No strength at all. Like rose petals, an elegant flower of a woman."
"Did you hate him, Doctor?"
"I didn't respect him."
"This man you previously told the jury was your friend."
Softly, "I misspoke."
"And Harry Bernhardt despised you, didn't he?"
"Objection!" Socolow boomed. "The witness isn't a mind reader."
"To the contrary," I protested. "That's exactly what he claims to be where my client is concerned."
Bang! Judge Stanger slammed his gavel down and shot me a look that said I'd better bring my toothbrush to court the next time I made a crack like that. "Mr. Lassiter, please refrain from addressing the jury instead of the court."
"I'm sorry. Your Honor," I said meekly, "but implicit in my question is the notion 'do you know?' "
The judge turned toward the witness stand. "Doctor, do you know if Mr. Bernhardt despised you?"
Schein's head twisted at an awkward angle, toward the judge above him. Then he swung back toward the jury, unable to decide where he should be looking. "If he did, he never said so to my face. But then he wasn't a man to express his feelings. Subconsciously, who knows? So much lurks there that we can neither control nor explain."
