by Paul Levine
"He hits her. He hits her a lot and calls her names. Mommy got sick, so she stays in her room. Daddy moved down the hall, next to my room."
"Does your father ever hit you?"
"No. Never. Not even when I'm bad."
"When are you bad, Christina?"
"When I don't do what Daddy says."
"Does he ever touch you in ways that frighten you?"
"No."
"Does he ever come into your bedroom and do things to you?"
"No. I don't remember anything like that at all."
I pushed the Stop button. "Now, Dr. Schein, correct me if I'm wrong, but didn't Chrissy just deny having been abused by her father?"
"Yes."
"After many hours of preliminary questioning?"
"Yes."
"Under hypnosis?"
"Yes."
"Injected with sodium amytal to enhance memory?"
Sure, I knew Millie Santiago thought it didn't work, but I'm a lawyer. I can go the other way if it helps the case, and Schein could hardly disagree after he had used it.
"Yes, I'd given her sodium amytal."
"But despite all of that—the questioning, the hypnosis, the truth serum—you wouldn't take no for an answer."
"I wouldn't accept at face value answers that clearly came from the surface of Christina's consciousness."
"The surface of her consciousness?" I mused, arching my eyebrows. "And where is that located, the cerebellum, the cerebrum, the isthmus of Panama?"
When I've exhausted logic and inductive reasoning, I resort to mockery and ridicule.
" 'Surface' is just an expression," he said through narrowed lips, "but if you must know, the regulator of explicit memory is the hippocampus. Studies show that survivors of childhood abuse often have a smaller hippocampus than normal. The belief is that these memories are stored implicitly in the amygdala, completely independent of the hippocampus."
"Can you prove that? Can we look into Chrissy Bernhardt's brain and find these memories in her—what'd you call it—her hippopotamus?"
One juror snickered. Good.
"Of course not," he bristled. "These are scientific theories about the workings of the brain."
"Theories," I repeated. "The earth is flat. That was a theory, too."
"Objection," Socolow said. "Argumentative and . . . archaic."
"Sustained," the judge said. "Let's get back on track, Mr. Lassiter."
"Wherever these events might have resided in her brain, Chrissy couldn't remember them, correct, Doctor?"
"Yes, but it would have been negligent for me to stop there. Remember, I had tested her. I knew her symptoms, the difficulty she had in relationships and knowing what she wanted, the fear of new experiences, the promiscuity, the sleeping and eating disorders, and several other classic symptoms."
"And these proved to you that she was the victim of sex abuse?"
"They were consistent with childhood sexual abuse. Indeed, they were extremely strong indications of such abuse."
"But why her father? Even if you're right, why not an uncle, a teacher, the gardener?"
He didn't have a ready answer, but he covered up by appearing to weigh the question with utter seriousness rather than terror. He was a good witness, and I hated him. After a moment, he said, "The father is a prime abuser in our society. Parental incest is rampant."
"So, you relied on statistics?"
"Not entirely. I relied on my experience and training."
"And the fact that you knew Harry Bernhardt?"
He nodded before answering. "Yes. I knew Harry. It added a dimension not usually available to a therapist."
"Let's explore that. At the time Chrissy was eleven years old, you were visiting her mother four or five times a week in her home, isn't that correct?"
"Yes."
"And Chrissy was there during those visits?"
"Yes."
"And her father was there, too?"
"Yes."
"Did she run away from her father or seem frightened of him?"
"No."
"Did Harry ever touch his daughter in an inappropriate manner?"
The jurors were all looking at Schein. He had to answer no. If it had been yes, he wouldn't have needed the great, climactic hypnotic therapy to solve the mystery of Chrissy's misspent life.
"No. He was affectionate to his daughter, but there were no overt manifestations of incest."
"Did Chrissy ever display any of the signs of sexual abuse when she was eleven or twelve years old?"
He thought before answering, and I could read his thoughts. That happens sometimes on cross-examination. You know where you're going, and so does a smart witness. Again, Schein was in a bind. If he answered yes, I'd ask what he'd done about the suspected abuse. The answer, of course, would be nothing, and then I'd question both his competence and his credibility. Cross-examination is like chess. You're always thinking three moves in advance.
"No, not that I noticed."
"But this extra dimension of knowing Harry Bernhardt somehow led you to conclude that he had raped his daughter?"
"It was just one factor," he said quickly.
"What else did you rely on, Dr. Schein—the factor that you hated him?"
He ran a hand over his shaved head, then crossed his legs, knee over knee. He turned his body away from the jury box at a forty-five-degree angle.
Body language.
Dr. Les Weiner had taught me all about it for three hundred bucks an hour. The jurors had never taken any lessons, but they knew. Unconsciously, we all notice the signs. Preening, clenched fists, tightly crossed legs, unnatural gestures are all products of tension. A jerky motion with the hand reveals that the person is trying not to extend too far, and rapid hand movement may mean that the witness is trying to make a point and get it out of the way. Covering the mouth with a hand—psychologically covering up the words—is a giveaway, too.
In the nearly silent courtroom, I heard Schein's feet shuffle. The witness stand was closed in the front, so I couldn't see inside, but I'd give you two to one that he crossed his feet at the ankles beneath, not in front of, his chair. It's a sign of closing down, and I hoped the jurors noticed through the open side of the witness stand.
"No," Schein said finally. "As I told you earlier, I didn't hate him."
"Forgive me. At first you said you were Harry's 'friend,' but no, you then said you misspoke about that. You admit being in love with Harry's wife, writing her romantic poetry, and spending several days a week by her side. You blame Harry for her early death, and now you conclude fifteen years later that he must have sexually abused his daughter, because she was a skinny, unhappy model who slept with a lot of men in Paris and Milan. Is that about it?"
At the defense table, Chrissy sobbed quietly. Schein's mouth moved but nothing came out. He reached for the pitcher, and his hand shook as he poured water into a glass. It took another moment for him to have a sip, then say, "No. My personal feelings had nothing whatsoever to do with my diagnosis."
"Then why, Doctor, even after Chrissy denied that her father abused her, did you suggest that he had?"
"I didn't suggest anything. I continued the inquiry."
"So you did," I said, hitting the Play button.
"Christina, memory is a funny thing. There are memories we recall and some we just feel. What do you feel?"
''I don't know. Strange things.''
"Ah, that may be the beginning. Do you know what sex is?"
"Yes."
"Did you ever have sex with your father?"
A sob. Then, "I don't remember that."
''But you 're crying. Why are you crying?"
''I don't know.''
"Christina, have you ever seen the tracks of a wild animal in the woods?"
"Not in the woods, but I've seen turtle tracks on the beach."
"And did you see the turtle, too?"
"Not always. Sometimes just the tracks."
"But you knew the turtle h
ad been there."
"Yes."
"I can see the tracks of the animal all through your life. The monster has been there. I think you see it, too, but you've covered it with layers of dirt. Can we scrape through that dirt, can we uncover the monster?"
''I don't know.''
Click.
"What was that, Doctor?"
"What?"
"Didn't you just hit the Stop button before asking more questions?"
He crossed his arms in front of his chest. "No, I wouldn't do that."
I stopped the tape and gestured toward Margie, the court reporter, huddled over her stenograph. "Because that would be the equivalent of the reporter failing to take down some of these proceedings, correct?"
"I suppose."
"Which would create a false record, isn't that right?"
"I don't know if I'd say false, but at least an incomplete record," Schein said.
"And therefore a misleading record?" I do not give up easily.
Exasperated now. "Yes, it could be."
Sometimes the truth comes hard, but as Charlie would say, magna est veritas.
Again, I hit the Play button, and after a few seconds, we heard Schein's voice.
"Let's talk about your father."
"I always loved my daddy. Always."
"Good Chrissy. That's a good girl."
"And my daddy always loved me."
"Did he?"
"Daddy told me I was his best girl, and now that Mommy's sick, I . . ."
"What, Christina?"
"I remember now. I remember."
"Very good, Christina. Very good. What do you remember?"
"I make Daddy happy. I pretend I'm Mommy."
"Does he come to your bedroom?"
"Yes."
"Do you have sex with your daddy?"
"Of course I do, silly. I'm his wife."
I shot a look at the jury. Appalled. Disgusted. Compassion for little Chrissy. Which I needed to convert into compassion for big Chrissy, and to do that, I had to prove that something worse had happened to Chrissy than being abused by her father. I had to prove she had been tricked into killing the innocent father she loved by a devious shrink who had implanted false memories in her.
"Now, Dr. Schein, what happened when the recorder was turned off?"
"I have no recollection. I don't know. I could have made a phone call. It could have been anything."
"Anything? Including suggesting to Chrissy—your hypnotized, drugged, anxiety-ridden patient—that her father committed unspeakable acts though she could not remember them?"
"No! I didn't do that."
And I couldn't prove it. But I sure as hell could suggest it.
I played three more tapes, each more graphic than the last. From the anguish in Chrissy's voice, there was no doubt she believed her father had abused her. That was the tightrope I had to walk. She might have shot an innocent man, but she sure as hell believed he was guilty. At the defense table, Chrissy sat looking straight ahead. The jury could see that magnificent profile, a single tear tracking down a cheekbone.
I thumbed through my notes and took a deep breath. All I had to do now was take the damning evidence against my client and turn it around. Finally, I announced, "Your Honor, we'd like to play the last tape, number twenty-seven."
I waited for Socolow, and it didn't take long. "Judge, there's no such tape on the exhibit list," he said. "It stops at twenty-six."
I walked toward the prosecution table and handed Abe a transcript of the final tape. "It's newly discovered evidence," I said placidly, "and there's no prejudice to the state."
"No prejudice!" Abe seemed happy to be angry. "There's always prejudice in surprise. Unless there's a good reason for the failure to discover . . ."
Abe stopped. He was reading the transcript. Then he looked up at me and whispered, "Are you crazy, Jake? You'll be disbarred for incompetence."
"If that were an offense, half our brethren would be selling whole life," I whispered back.
"Gentlemen," the judge interrupted, "would you care to include me in your colloquy?"
"The state withdraws its objection," Socolow said, trying to stifle his smile.
The first voice was Chrissy's.
"I've thought more about what we discussed yesterday."
"The need for goals?" Schein.
"No. What we talked about afterward."
"Oh, that."
"I've made a decision that you're not going to like."
''Maybe you shouldn't tell me.''
"But I've told you everything else. I can't imagine not telling you first.''
"All right then. But first, let me . . ."
The familiar sound of papers rustling and a chair squeaking and a click. Not the internal sound of the recorder being turned off, but the tape picking up the sound of a button being pushed on a different recorder. I hit the Stop button.
"What was that sound?" I asked.
"I must have turned off the recorder."
"So you were mistaken a few minutes ago about never turning off the recorder in the middle of a session?"
He threaded his hands together and twisted them at his knuckles. "Yes, but . . . well, there was the auxiliary recorder, so there was really no loss of information. I mean, the tape we're hearing is from the auxiliary recorder."
"But you didn't turn over this tape to the state, did you?"
"No, it must have been . . . overlooked."
"And you didn't give it to me until the eve of trial?"
He reddened. He had never thought I'd use it. Why would I? It proved the state's case of premeditation.
"No, as I say, I had forgotten all about it."
"And you never told Chrissy about it?"
"No."
I hit Play.
"Is it off?" Chrissy.
"It's off." Schein.
"Well, like I said, I was thinking . . ."
"Yes?"
"I've bought a gun."
"I thought you were just going to visualize it."
"No. That's not enough. I've got to kill him."
"Figuratively? As part of therapy?"
"C'mon, Larry. That isn't what you meant. It couldn't be."
"I didn't mean anything. I raised certain hypothetical actions, all intended to be therapeutic.
"I decided last night. I couldn't sleep. I haven't slept through the night in weeks. I'm having nightmares and migraines.''
"It's all part of the process. The pain is coming out. "
"No, it's not. May it will after . . ."
"After?"
"I'm going to kill my father for raping me. I'm going to kill him for ruining my life and for ruining Mom's. "
"What would that solve?"
"I don't know. But I'm going to do it. You've shown me what the bastard did to me. Now I know why everything in my life has been so—''
"You'll be caught."
"I saw on Oprah, the other day, a woman who shot her husband after he'd beaten her. She got off."
"I don't know.''
"Oh, Larry, don't look so depressed. That's funny, isn't it? I mean, you're treating me, and I say you're depressed.''
"You know I can't endorse what you're planning."
"You can't stop me either. "
"I'm not even sure you're serious. Most people never act on their revenge fantasies.''
"You've helped me so much. I'll just be so glad when it's over."
"What, therapy?"
"No, Larry, when the bastard is dead."
The tape ran out, and the jurors exchanged glances. Why's the shyster trashing his case? Just hold on, ladies and gentlemen. There's still a rabbit in the hat.
"Dr. Schein, you knew you were being recorded, didn't you?"
"Yes."
"And my client didn't?"
"That's correct."
"Which is a crime in this state," I said in my best accusing tone.
"I didn't know that," Schein replied.
I moved back be
hind the jury box. I wanted them to watch the witness. "And this was the fourth therapy session after you suggested to my client that her father had raped her as a child?"
"It was the fourth session after Chrissy recovered her repressed memories of having been raped."
"And this was the last session you would ever have with my client?"
"Yes. Two days later, Christina killed her father."
"If you don't mind, Dr. Schein, we'll let the jury determine just who killed her father." His head snapped back as if I'd hit him with a quick jab. I walked back toward the defense table. Chrissy looked up at me, her eyes misty. I examined a legal pad filled with doodling. I knew the jury was watching, so I wrinkled my brow and studied the pad as if it contained the secret of cold fusion, then resumed my position at the rear of the jury box. Like sex, good cross-examination requires pacing. Start with a little foreplay, build slowly to a crescendo, and wham! Take a few breaths, then start all over again, preferably from a different angle.
"Correct me if I'm wrong. Doctor, but it would appear that on June fourteenth, at approximately four-thirty P.M., Chrissy Bernhardt told you in no uncertain terms that she had bought a gun and planned to kill her father."
"Yes. She said those things."
"You're a close friend of Guy Bernhardt's, correct?"
"Yes."
"Once Chrissy told you of her plan to kill her father, you must have picked up the phone and called Guy Bernhardt."
"No. I didn't do that."
"Then you must have called Harry Bernhardt to tell him that his life was in danger."
"No."
My face reflecting my rehearsed astonishment, I asked, "Did you call the police to warn them of your dangerous client?"
"No. I didn't consider her dangerous."
"Even though you diagnosed her as suffering from posttraumatic stress disorder, the same malady as Vietnam syndrome, in which combat veterans sometimes go berserk?"
"That's relatively rare."
"So you're telling this jury that you didn't warn Harry, you didn't warn Guy, and you didn't alert the police, correct?"
"Correct."
"Then let's see what you did do. Did you seek a court order that would require her hospitalization and testing?"
"No. I tried to talk her out of killing her father."
"How? By saying, 'I can't endorse what you're planning'? Pretty tough language, Doctor."
The judge cleared his throat. "Mr. Lassiter, please refrain from sarcasm."
