by Paul Levine
"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."
"Do you know if Christina Bernhardt was conscious at the time of the shooting?" I asked.
"I don't understand the question," Rusty said. He was not going to make it easy for me, especially after I humiliated him with the criminal conviction question.
"All right," I said. "Was she alert to her surroundings?"
"She seemed to know where her father was sitting."
Ouch. I went on without blinking or checking for wounds. "Did she appear to notice you sitting at the bar?"
"No."
"And you were right next to Mr. Bernhardt?"
"Yeah."
"And you were a friend of Chrissy's?"
"Like I said, I was her agent once."
"Did she say hello to anyone in the club?"
"Not that I saw."
"Did she move quickly toward Mr. Bernhardt?"
"No. She kinda swayed over, the way models walk."
"Slowly?"
"Yeah."
"In a languid manner?"
"I don't know what that means."
Neither had I until I looked up synonyms for "faint," "feeble," and "weak."
"Did she seem to be in a trance?" I asked.
"I never saw anyone in a trance," he said, "except in the movies. More like she was real sleepy."
"As if she were sleepwalking?"
"In a way."
"Which is sort of a trance, is it not?"
"Objection! Repetitious." Socolow was on his feet.
"Sustained. Mr. Lassiter, I do think you've mined this ground."
"Thank you, Your Honor," I said, bowing slightly, more to loosen up my back than pay homage to the judge. "Now, Mr. MacLean, did Chrissy try to escape or avoid capture?"
"No. She just collapsed."
"Do you know if Chrissy had any history of blacking out or fainting?"
I expected I don't know. Rusty paused a moment, thinking about it.
"Yeah, now that you mention it, she did. On a couple of shoots, she fainted. I told her to go see a doctor, but I don't know if she ever did."
That got the jury to thinking, and I did the same.
25
Turning Out the Lights
"Do I remember her?" the doctor asked, smiling. "Did you just walk through my waiting room, Mr. Lassiter?"
"Sure."
"And what did you see?"
"Half a dozen old guys reading magazines."
"Exactly. A cardiology practice is not usually graced with the likes of Ms. Christina Bernhardt."
I was sitting in the office of Dr. Robert Rosen on Northeast 167th Street. He had a freestanding building within a quick jitney ride of the condo canyons of North Miami Beach. Median age of the neighborhood, somewhere between sixty-five and Riverside Chapel. The doctor had a Salvador Dali mustache and a bushy head of hair. He stared through wireless spectacles at Chrissy's file. On the wall behind his desk was an Impressionist painting of a woman in a garden.
"A lovely girl, Christina," he said, looking at an open folder containing medical records. "Referred to me by her GP for unexplained fainting spells. She admitted to occasional cocaine use, though not within the previous twelve months. We checked for inflammation of the heart, which proved negative. The fear, of course, is transient cardiac rhythm disturbance. That's what killed the young basketball player."
"Reggie Lewis," I said.
"That's him. Never should have played with his history of fainting. In his case, the heart went into ven fib; he lost consciousness instantly, like turning out the lights. No pulse, no blood pressure. Sometimes the heart goes back on track. Sometimes it doesn't, and the person dies."
"But that's not what Chrissy has."
"No. We did the tilt-table test. Raised her upright to eighty degrees. She passed out in . . ." He thumbed through the file. "Thirty-eight minutes. Classic neurocardiogenic syncope, not fatal. But you can get a pretty good bump on the head, depending where you fall."
"When she passes out, is it sudden, like with the rhythm disturbance?"
"No. It's more gradual, as the blood pressure and heart rate fall. She'd get woozy."
"And be semiconscious for several seconds?" I said. Leading my witness, or the guy who would soon be my witness.
"Yes, I suppose she would."
I thanked the doctor, who told me to forget his usual three-hundred-dollar consultation fee. I thanked him again, and he said to tell Christina it was just about time for a follow-up visit.
The second day of testimony started with the paramedic, a former Miami Beach lifeguard, who had transported Harry Bernhardt to the hospital. The subject—he used the police term—was bleeding from at least three gunshot wounds and rapidly going into shock. They took his blood pressure, ninety over sixty
and falling; gave him an injection of ephedrine to stabilize him; put pressure bandages on the wounds; inserted an IV of Ringer's lactate, a salt solution; took an EKG, then transmitted the strip to the ER at Mount Sinai by portable fax; talked by radio to the trauma surgeon at the hospital; then administered oxygen. Yes, the subject was conscious.
"Did Mr. Bernhardt say anything?" I asked on cross. Which I wouldn't have done unless I knew the answer. Unlike the federal courts and many other states, Florida permits defendants to depose all prosecution witnesses before trial. So I knew the paramedic wouldn't blindside me: Yeah, the old guy said, "Christina, why did you do this? Why, after everything I've done for you?"
"He responded to my questions as to the location of his injuries and the medication he was taking," the paramedic said.
"Anything else?"
"He mumbled something."
"And what was that?" Sometimes prosecution witnesses take their instructions not to volunteer anything way too seriously.
" 'Emily.' He kept saying, 'Emily, I'm sorry.' Then I put the oxygen mask on him."
Yeah, I would have preferred him to say, Christina, I'm sorry. I'm sorry I raped you when you were a girl, and you have every right to shoot me, and if you hadn't done it, I would have done it myself. But you take what they give you. You plant little seeds, fertilize them if you can, and hope they grow.
"That's all he said?" I asked. " 'Emily'?"
"That's all I heard."
"And Emily was Mr. Bernhardt's late wife?"
"I wouldn't know that."
But now the jury would.
After the paramedic came Dr. Nubia Quintana, the surgeon who had debrided the wounds, inserted a tube through the chest wall to release blood and air from the chest cavity, stanched the internal bleeding, removed the two bullets that had not exited, and given Harry a good dose of antibiotics. She used fancy terms like "tension hemopneumothorax" but clearly gave the impression, which I liked, that the surgery had been no big deal.
"These bullets were twenty-two shorts, were they not?" I asked on cross-examination.
"I'd have to look at the police report," Dr. Quintana said. "They were small-caliber bullets, but whether they were twenty-twos or twenty-fives, I couldn't say." She had done her residency at Jackson Memorial, the public hospital, where the Saturday Night Gun and Knife Club produced significantly greater wounds on an hourly basis.
"And none of the wounds severed an artery?"
"No."
"Or caused extensive blood flow?"
"No."
"In fact, only the chest wound gave you any concern?"
The doctor smiled, a bit condescendingly. "I was concerned about all the wounds. The bullet that pierced the lung was the most serious."
"A bad choice of words on my part," I said humbly. Always admit your mistakes. The jury will like you for your semihonesty. "None of the wounds was life threatening, correct?"
"Not directly, not if treated correctly and promptly."
"Which was done here?"
"Yes."
"And after surgery, what was Mr. Bernhardt's condition?"
"Guarded condition."
"Life signs stable?"
"Yes."
"Heart rate and blood pressure normal?"
"Within normal ranges, yes."
"When Harry Bernhardt was wheeled out of surgery, you didn't expect him to die two hours later, did you?"
"Objection," Socolow called out. "The doctor's expectations are irrelevant."
"Not to me," I fired back. I was hoping the jury would disregard the judge's preliminary instruction and be pissed off at Abe for cutting off the flow of information.
"Overruled. Doctor, you may answer."
"No, I did not expect him to die."
"No further questions."
Abe Socolow popped back up. He knew where I was going. The element of causation. Doc Charlie Riggs never thought much of my argument, but you never know what will move a jury.
"Dr. Quintana," Abe began, "when you said that the wounds were not directly life threatening, what did you mean?"
"Objection, leading." Now I was doing it, because I knew where Abe was going.
"It's not leading," Socolow shot back. "I'm simply asking for an explanation as to when an injury is directly life threatening versus indirectly life threatening. A man doesn't have to be shot through the heart to die as a consequence of the bullet."
"Now he's leading!" My pitch was a notch higher than normal.
The judge motioned to us. "Come up here. Both of you."
Abe and I circled around the far side of the bench, away from the jury. "Now, Jake, there was nothing wrong with Abe's question. It wasn't leading, and you know it. He's got a right to have her explain the answer she gave you. But, Abe, don't be making speeches in front of the jury, at least not 'til closing argument. The objection is overruled, so get back where you belong."
We retreated to our places, and the judge told Dr. Quintana that she could answer the question.
"None of these injuries individually would likely have killed Mr. Bernhardt. Even together, they might not have killed a younger man or a man with a healthier heart. But the stress of the injuries nonetheless killed him by ultimately causing the spontaneous ventricular fibrillations."
"Nothing further," Abe said, having repaired the damage and then some.
I stood up again for recross. "Mr. Bernhardt had a seriously diseased heart, did he not?"
"He had atherosclerosis, yes. The medical examiner who did the autopsy would be better able to describe the extent of it."
"Can you state with total certainty that Harry Bernhardt wouldn't have died of a heart attack on the night of June sixteenth even if he hadn't been shot?"
The doctor gave me a puzzled look, and I said, "Let me rephrase that one without the double negative. In Harry Bernhardt's condition, he could have suffered a heart attack on June sixteenth or the day after that, or any other day, even without having been shot or undergoing surgery, true?"
"Yes, that's true. He was a candidate for a heart attack at any time."
"Nothing further."
Next came the nurse who had tended to Harry Bernhardt in the recovery room, and then a second nurse who had accompanied him to a private room inside the ICU. Sort of the equivalent of chain-of-custody evidence, as Harry got passed along from Tinker to Evans to Chance.
Harry Bernhardt's life signs were strong when Sylvia Gettis, RN, checked on him at eleven P.M. She'd pulled the graveyard shift and was at the nurses' station when the EKG monitor went off at 11:51 P.M. She raced twenty paces from her station to Harry's room, which was more like a suite for VIPs who were fortunate enough to find themselves in Intensive Care at the plush hospital instead of the county facility. Harry Bernhardt was thrashing in the bed, yelling, in obvious pain. The emergency team—an intern, a resident, an ER physician, an anesthesiologist, a respiratory therapist, and an EKG specialist—flew into the room.
They intubated Harry and forced oxygen into his lungs. They injected him with epinephrine, an adrenaline-like drug, and they started CPR. They checked his blood gases. In the rapid-fire shorthand of physicians, they shouted, debating possible causes of the ventricular fibrillation. Internal bleeding. A collapsed lung. An unseen bullet wound.
Harry's heart was on fire, the muscles contracting fiercely, the organ quivering, shaking itself to death. Then the heart slowed.
"Mr. Bernhardt coded," the nurse told the jury.
"Which means what, Ms. Gettis?" Abe Socolow prompted.
"He flatlined. His heart stopped."
They tried the paddles, jolting Harry's heart with 250 joules of current. Ka-boom. Ka-boom. Again and again. Nothing. He was pronounced dead thirty minutes later.
"Did you speak to Mr. Bernhardt before he died?" I asked on cross, realizing she wouldn't have spoken to him after he died.
"No. He was still groggy from the anesthesia."
"And when you responded to the Code Blue, did you
speak to him then?"
"I'm sure I asked him questions. He was conscious but in considerable pain. He was not really coherent."
"So he didn't say anything to you?"
"Nothing except sounds, painful cries, that sort of thing."
"Did he have any visitors before the monitor sounded at eleven-fifty-one?"
"Dr. Quintana stopped by. A detective looked in, then left. I told him the patient was in no condition to give a statement. And of course, the family physician."
I was already sitting down, about to say, "Nothing further," when I realized what she had said.
"The family physician," I repeated.
"Yes. Dr. Schein."
How could I not know that?
I had taken discovery. I had a copy of the ICU log. No mention of Dr. Schein. Of course, he wasn't a treating physician or an investigating cop. Just what the hell was he, anyway?
"What was Dr. Schein doing there?" I asked evenly.
"I believe he said he was a longtime friend of the Bernhardts as well as their physician. As I recall, he said he was practically a member of the family, something like that."
Right. This family needed a shrink on retainer.
"When did he arrive?"
She thought about it a moment. "Just as I was getting back from my break, eleven-forty P.M."
"You're sure of the time?"
"I was carrying my coffee, and I remember the doctor commenting on the battery acid they serve in the cafeteria downstairs. I always take my break between eleven-twenty and eleven-forty, so that's when it was."
"Eleven-forty," I repeated. "Which was how long before the patient coded?"
She looked at her notes. "The monitor sounded at eleven-fifty-one P.M., so it'd be eleven minutes."
"How long did Dr. Schein stay?"
"I don't know. I was attending to paperwork and I didn't see him leave, but it would have to be sometime between eleven-forty and eleven-fifty-one, because he wasn't in the room when I got there."
I thought it over. Harry Bernhardt hadn't died of the gunshot wounds. He'd died of a heart attack. What had Lawrence Schein said to him, done to him, in those precious minutes? I didn't know, and I probably never would. But I could use the trial lawyer's best friend, scurrilous innuendo. In a murder case, it's not a bad idea to imply that someone else might have done the killing. Possible suspects can include God with a lightning bolt or vengeful Colombian drug dealers stalking Faye Resnick.
