6
Ben was astonished by his first glimpse of Dennis Thomas. As soon as he and Christina rounded the corner and peered into the cell, he realized how much Dennis had changed, or had been changed, by a few days in jail. His skin was white and pasty. Of course, he'd had no sunlight since he was arrested, plus the meals served tended toward starch and white bread. Opportunities for exercise were limited. He appeared to have shaved, but not well. And his brain was probably atrophying; he was used to reading and teaching and other forms of mental stimulation.
But if he looked this poorly after a few days, what would he look like by the time the case came to trial? Ben made a mental note. It was imperative to get this case set as quickly as possible. Before he got any worse.
The guard opened the cell door and Ben and Christina stepped inside.
"Thanks, Sam." The guard closed the door behind him. "Dennis, I want you to meet my partner-and wife, Christina McCall."
Dennis rose from his cot and they shook hands. Ben thought Christina's shake seemed particularly frosty.
"So," Dennis said, almost smiling, "you're here to see if I'm really Jack the Ripper?"
Christina made no apologies. "Something like that. Does that bother you?"
"No. As long as you represent me properly, your private thoughts don't matter, do they?"
"How are you doing?" Ben said, cutting in.
"Oh, as well as can be expected. The guards all hate me, but so far, no one has assaulted me, much as they want to. They've been putting stuff in my food. So I haven't eaten much. And I'm certain that guy in the next cell is a plant. A designated snitch."
Probably so, Ben mused. Smart man. "But how are you feeling?"
"As good as can be expected. I still miss my wife. I talk to her. Sometimes I think I hear her talking back…"
Ben and Christina eyed each other. Sounded crazy. Was that the point?
"Do you feel any remorse?" Christina asked.
"Would that be useful?" He didn't blink. "I didn't kill that man, but I could certainly tear up over my wife."
Christina pursed her lips wordlessly.
"Don't stare at me like that just because I'm smart enough to know how to avoid conviction for a crime I didn't commit. Do you think we'll get bail?"
"Unlikely."
"Well, think of an angle. I'm sure two bright people like you can work something out. I have to get bail."
"Why is that?" Christina asked, one arm akimbo.
"Because I don't want the jury to see me looking like I've been in jail for a long period of time. I can see how my appearance has deteriorated. By the time this gets to trial, it will be worse. I also don't want the jury to see me in orange coveralls and a bad haircut."
"I can take care of that, in any case," Ben explained. "We'll have an opportunity to bring you a suit. Get your hair styled."
"That's not enough. I want out. Do you think you could call a press conference?"
Ben felt jolted by the sudden switch of topic. "How would that help anything?"
"They've got television in here, you know. I can see the media frenzy over this case. But no one is presenting my side of the story."
"There's a reason for that," Christina said quietly.
Ben cleared his throat. "We'll have a chance to tell our story at the trial."
"That's not good enough." Dennis looked at him directly. "In the first case, you probably won't call me at trial unless you have to. Even if you do, I'll be cross-examined and the DA will do his best to make me look bad. But at a press conference, I can say anything I want, or you can say it for me, and no one is cross-examined."
"The reporters will want to ask questions."
"You can take questions. From the ones you trust."
"But what good will it do? The press are not the ones who decide the case."
"The jurors do. And there's a very good chance those yet-to-be selected jurors will be watching the coverage of this case. Everyone else seems to be."
Ben had to admit-the man had thought this out carefully. And intelligently. That's what was so scary about him.
"Have you got a psychiatrist lined up yet?"
"Well," Ben said, "I have some possibilities."
"We need a good expert. Someone convincing. My therapist is one of the top in the country. And a very experienced witness."
What a coincidence.
"But you make the call. I've prepared a list of people I've seen in the past, and others I know by reputation."
"Indeed."
"Insanity defenses are more successful when the psychiatric expert knew the defendant before the incident."
"That's true."
"If possible, I think you should go with the name at the top. I think he'll be the most persuasive."
"Do you now."
"We need someone top-notch. Temporary insanity is a tough sell."
"So I've heard…" Ben could see Christina was having a difficult time containing herself.
"But I've read that grief coupled with frustration can often lead to an irresistible impulse, which of course is a form of temporary insanity. And the blackout proves something was going on."
"You know," Ben said, "the prosecution will call witnesses of their own."
"Sure, but the state can't afford anyone good, right? And how are they going to explain the blackout?"
"They'll say you were faking."
"No way. They took me to a hospital. The EMTs tried to revive me-unsuccessfully. Took them two hours to bring me around. No way you can fake that."
Ben made a note on his legal pad. "You know, normally at these pretrial meetings, I set the agenda."
Dennis snapped his fingers. "That reminds me. I think we should file a civil suit as soon as possible. So it captures the headlines. A suit against the police department for official misconduct leading to death."
"That would be very complicated."
"Can't we bring a claim under 42 USC Section 1983?"
Ben's pencil slowed. "Yessss…"
"I think a civil rights suit is the way to go. Otherwise the police have too much immunity. I figure we have excellent claims based upon the Fourth and Fourteenth Amendments to the Constitution. We can claim negligent performance of duty and intentional infliction of emotional distress. I'm sure you can dream up some other causes of action."
Ben tapped the pencil eraser on his pad. "The police have qualified immunity, even against civil rights claims. They're protected from charges based upon anything other than plain incompetence or knowing violations of law. You have to prove they acted in an objectively unreasonable manner to prevail."
Dennis looked at him squarely. "The man directly caused the death of my wife by failing to act in a reasonable manner, Mr. Kincaid. If he had initiated an investigation, she would've been found in three hours. Instead, she suffered for seven days. And died."
"Okay. Civil suit." Ben averted his eyes. "I'll get right on it."
"You seem to have this all worked out," Christina interrupted. "Did you go to law school?"
"No, but I've read a lot of John Grisham novels."
"Oh. Well then, you can't lose."
Dennis folded his arms. "Forgive me for saying so, Mrs. Kincaid-"
"Ms. McCall."
"— but you seem somewhat hostile toward me. Have I done something to offend?"
Ben hoped she'd able to resist giving the obvious answer.
"No," she said instead. "But you do seem… preternaturally prepared to contribute to your defense."
"Is it wrong for me to participate in my defense? I thought that was my constitutional right."
"It is, but-"
"Let me save you some time, Ms. McCall. I did not kill that man. But I know there's some stiff evidence against me, so I think temporary insanity is my best shot. I don't plan to go to prison, whether you believe me or not. So if you think the desire to avoid incarceration makes me look guilty, we may have a problem."
"It's not that," Christina replied. "Bu
t since we're being blunt-your cold, level-headed logic is not what I would expect from someone who has just been accused of murder. And is innocent."
Ben suddenly wished this cell were not so pathetically small. There was nowhere to go-not even a way to make the fighters return to their corners.
"And is that what's most important to you, Ms. McCall? Knowing that I'm innocent? Because you would never stoop to representing someone who might be guilty?"
"I wouldn't say that exactly."
"Or perhaps what you're really concerned about is your firm's reputation. Particularly the reputation of your husband, who I understand is currently mounting a reelection campaign. Are you really concerned about my innocence, or that the negative 'presumed guilty' attitude of the self-righteous might tarnish your favorite senator's chances?"
Christina did not answer.
Dennis stepped closer to her, a solemn expression on his face. "Sentz killed my wife, Ms. McCall. He left her to die. Slowly. Painfully. That's what you should keep uppermost in your mind."
He gathered a stack of notes together and passed them to Ben. "Now go set up the press conference. Please. Then get me bail. These coveralls are starting to chafe."
7
The courthouse elevator doors opened and there they were: the stalwart minions of the fourth estate. Dozens of them, more than could possibly be native to the state of Oklahoma. Which was a bad sign. It meant that this case had already attracted national attention, which was the last thing they needed.
Ben took Dennis-freshly decked out in a new suit, haircut, and shave-and led him down the gauntlet of reporters. He wondered how long the world could go on calling them investigative reporters when so few of them did any investigating. He saw a few old-timers who still worked with pen and paper, but for the most part, they were faces he recognized from television: broadcasters, news readers, people who held microphones in front of cameras and repeated what they had been told, possibly lining up video clips from talking heads to spice up a story that went longer than twenty seconds. They were repeaters, not reporters.
"I think the press conference worked," Dennis muttered under his breath. "They're very interested in me."
"Shhh," Ben whispered. "Say nothing. And never assume they like you."
"They're not all hacks."
"Of course not, but they are all employed by large corporations that like to make money. They're using you to get ratings and they'll turn on you in a heartbeat if that's where the money lies."
Dennis buttoned his lips. The reporters did not. As they made their way to the courtroom, Ben heard a dozen questions tossed out at once.
"Is it true your client shot Detective Sentz seven times-one for each day his wife suffered?"
"How about these rumors that your client drove his wife off the side of the road?"
"Was he angry because his wife made more money?"
"Was she having an affair with his psychiatrist?"
"Is this a vendetta against the police department?"
"Is it true you've accepted a plea from the prosecutor?"
Ben tried not to smile as he opened the courtroom doors. "Is it true" in this case was a cheesy way of suggesting they'd heard something they obviously hadn't, to persuade him to tell them what they wanted to know. It was almost as good as "Some people say," another catchphrase they used to introduce an ugly rumor or innuendo while simultaneously suggesting someone else was to blame.
Ben took his seat at the defendant's table, placing Dennis just beside him. Christina sat on the other side. Ben slowly scanned the room. The courtroom gallery was already packed, mostly by the press. He was not used to seeing this kind of attendance at a mere bail hearing. This case was hot.
Across the aisle, Ben spotted the prosecutors. David Guillerman, the DA himself, was taking the lead. His presence was probably mandated by the enormous press interest. He was being assisted by Greg Patterson, who Ben knew to be hardworking and capable. He would be doing most of the hard stuff, while Guillerman took the limelight. But Ben did not discount Guillerman. He knew Guillerman had started as a trial attorney who somehow managed to make a solo practice not only successful but successful enough to launch a campaign for the district attorney's office. He had graduated from TU law school top of his class and a moot court champion as well. He was single, handsome, and often topped the "Sexiest" and "Most Eligible" lists in local publications like Oklahoma Magazine. He would be a formidable opponent and Ben knew it.
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."
T
he 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."
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