Lethal Defense

by Michael Stagg

  Another connection clicked into place. “I also had a toxicologist testify this morning that the dealer was cutting their product in half.”

  “Also not good for business.”

  I sighed. “Any chance the prosecutor knows this?”

  “No. It hasn't really hit the wires yet. You just hire the best.”

  “I do. So it was a legit offer then.”

  “What are you talking about?”

  I told Olivia how Jeff had called earlier in the afternoon and dropped the attempted murder charge on Aaron.

  “There’s no way he knew then. The accident happened about three p.m.”

  “That’s after Jeff called. I owe you, Olivia.”

  “Of course you do. Just make sure you get your ass in for early morning workouts after this trial nonsense is over.”

  “How about after work?”

  “Before, my distractible friend.”

  I sighed. “Fine. Thanks. And thanks to Cade. You two have really helped with this thing. I appreciate it.”

  “We know. Peace, brother.”

  I hung up and thought. There was no way around it.

  No more testimony was coming. I had no more evidence to give to the jury, no more exhibits or baggies or syringes.

  I was going to have to argue Hank out of life in prison.

  Knowing I didn't have to examine Aaron, I focused on my closing. Putting together your final argument makes you see all the flaws in your case, makes you see where the evidence doesn't support your side, and makes you see what the evidence says is true and what isn’t. Hank had killed Dillon Chase. He had beaten the living shit out of him and then mangled his corpse beyond recognition. I had to convince the jury that was okay, that Lizzy Saint would've done the same thing if she’d had the strength, and the consciousness, to do it. That each one of them would do it to protect someone they loved.

  And then, alone in my office in the dark of the last night of trial, I realized I’d been arguing it all wrong, that I’d accepted the battlefield that the prosecution had chosen instead of forcing them on to one of my own. I needed to be like Hank’s Home Guard and fight the prosecution on different terrain,

  I went back through the evidence, quickly, found what I needed, and changed the PowerPoint slides. It wasn’t a change in the evidence, it was a change of focus. It was one fact that I hoped would make the jury view the whole case through a different lens.

  I didn't know if it was going to be enough.

  I eventually finished preparing my closing and went home a little before eleven o'clock that night. I was still thinking about the change in my closing argument when I walked through the door.

  People call lawyers sharks as an insult. It’s true, but not in the way they mean it. Most lawyers are conscientious people who care about their clients and immerse themselves in the smallest details of their clients’ lives so that they can help. They spend hours, that stack up into weeks and months and even years, to get their clients what they need. They’re always putting things in their own lives aside to focus on their client or their deal or their trial and when that’s finally done, they swim right on to the next one just like their single-minded aquatic counterpart.

  As I went to the kitchen for some food, the hole in my kitchen wall hit me square in the eyes, just like the hammer they use to stun a shark before the fishermen pull it into the boat. Everything Dr. Beckman had said that day, everything that helped our case, every tiny detail about heroin and fentanyl and overdose and death, flooded over me at once.

  I wobbled for a second and caught my balance on the kitchen table. Then I yelled and punched the table one, two, three, times before I collapsed into a chair and wept. I wept like my heart was breaking. Which it was.

  For about ten minutes. And then I started swimming again.

  I got up and pulled a bottle of water out of the fridge, winced, and switched the bottle to my left hand. I made rice noodles whose primary benefits were speed of preparation and calories. Then I went to the couch and slurped up noodles and hot sauce as Scott Van Pelt told me why NBA free agency was going to be off the chain this summer.

  When I finished, I fell asleep.

  35

  Judge Gallon had us in chambers the next morning before the jury was brought in. “You have something to tell me, Mr. Hanson?”

  “Yes, Your Honor. We’ll be dropping the attempted murder charge.”

  “I see. You know that eliminates the aggravating factor for the death penalty?”

  “We do. I informed Mr. Shepherd and both parties submitted new jury instructions last night.”

  “Very well. We’ll go over objections before we charge the jury. Any more witnesses, Mr. Shepherd?”

  “No, Your Honor. We’d planned to call Aaron Whitsel but that’s no longer possible.”

  “Because of the dropped charge? Makes sense.”

  “No, Your Honor. Because he’s dead.”

  Judge Gallon put her pen down, slowly, and folded her hands. “What are you talking about?”

  I told her about the accident.

  “Did you know about this?” she said to Jeff.

  “I found out this morning when Nate told me, Your Honor.”

  “Was it under suspicious circumstances?”

  “Only if you think it’s suspicious that a drug dealer to a rock star died in an unwitnessed single-car accident on a sunny, clear day as he was fleeing to avoid testifying in a murder trial, Your Honor.” I said.

  She wasn’t amused. “It could be argued that it’s convenient for you too, Mr. Shepherd.”

  “It’s not. I was putting him on the stand today. My investigator found out about it.”

  Judge Gallon picked up her pen and tapped it repeatedly against her desk until she said, “His death, and the circumstances of it are not in evidence here. There will be no mention of it in closing, do you both understand?”

  We both nodded. “His evasion of the state’s subpoena is fair game though, right?” I said.

  “It is,” said Judge Gallon. “And that’s as far as you’ll go—a subpoena was issued by the state and not complied with. Understood?”

  “Yes, Your Honor.”

  “So are we closing this morning?”

  “I have no more witnesses.”

  “Not putting Mr. Braggi on?” said Jeff.

  I smiled. “No.”

  “Too bad. Seems like his story deserves to be told.”

  “That doesn’t actually work on people, does it?”

  Now Jeff smiled. “You’d be surprised.”

  Judge Gallon tapped her pen harder. “Gentleman. There’s another matter we won’t be addressing in closing.”

  She turned her computer screen around in a gesture I’d come to dread. Another headline.

  ATTORNEY’S WIFE DIED IN MASS OVERDOSE.

  “Have you seen this, Mr. Shepherd?”

  I kept my eyes off my wife’s picture in the lower right corner. “No, Your Honor. I haven’t had the time.”

  “Let me summarize it for you then. This Maggie Smith has drawn a comparison between the toxicologist’s testimony yesterday and the way your wife died. There will be no mention of that, Mr. Shepherd.”

  I lifted my chin. “There hasn’t been, Your Honor. And there won’t be. But I have a right to talk about heroin.”

  “You do, Mr. Shepherd, as it relates to this case.”

  “That’s what I’ve done.”

  “I know. That’s why I’m telling you again now.”

  “I understand.”

  She nodded. “We’ll go through the jury instructions now then.”

  We did. It took about half an hour. As we rose to leave, Judge Gallon said, “What did you do to your hand, Nate?”

  I put my hand in my pocket. “Nothing,” I said. Then we went out into the courtroom to give our closing arguments to the jury.

  Jeff Hanson stood there in front of the jury, silent for a good thirty seconds, adjusting the backs of his five-foot-tall photos
. He was making a point of straightening them even though they were lined up perfectly. The jury had seen them enough now that they shifted in their seats, visibly uncomfortable anticipating that he was about to turn the pictures toward them again. But he was masterful and he left them blank side out, letting the anticipation of their awfulness eat away at the jury.

  When he was done, he ambled over to the center of the courtroom, right in front of them, and flicked a hand at my client.

  “Hank Braggi killed Dillon Chase. Mr. Shepherd and I may disagree on some things related to this case but that isn't one of them. From the moment he did it, Hank Braggi admitted that he killed Dillon Chase. He just thinks he was justified in doing it. He was not.”

  Jeff began to pace a little bit. “Let's leave aside the brutal awfulness of this killing. Let's leave aside the shattered skull and the broken ribs and the pierced lungs and the smashed arms. Let's just start with the fundamental question: was Hank Braggi allowed to kill Dillon Chase? The Court is going to talk to you about self-defense and about the defense of others and I want you to listen carefully to the Court's instructions, which will tell you when someone can defend themselves with deadly force. Basically, a person can defend themselves with deadly force if they believe they are in imminent danger of death or great bodily harm, and the only reasonable means to escape that harm is through the use of deadly force. Then, and only then, a person can use deadly force to defend themselves.”

  “The same rule applies if a person is defending someone else. If the person being attacked could use deadly force to defend herself, a person who intervenes to defend her can use deadly force too.”

  Jeff pointed at me. “Hank Braggi claims that Dillon Chase was injecting Lizzy Saint with a syringe. He claims that he stopped Chase and that a fight ensued that resulted in Dillon Chase's death. I want you to ask yourself a couple of questions. Was that a deadly situation for Lizzy Saint? Would she have needed to resort to deadly force to stop Dillon Chase if that's indeed what he was doing? Or could she have just said ‘no?’ Could she have just smacked him in the face? Would standing up, backing away, and yelling at him to get off her have been enough? Or was killing Dillon Chase the only way that Lizzy Saint could have stopped him? Did Lizzy Saint have to break Dillon Chase’s skull, break his ribs, and break his arms to make him stop?”

  “I don't think so.”

  Jeff shook his head. “I don't think she would've had to resort to violence at all, let alone deadly force. I think, even if what Mr. Braggi said is true, she could've told Dillon Chase to stop and he would have. Now we don't know for sure of course because Dillon Chase is dead. He can't tell us what he was thinking or why he did whatever it is that he did. And the Court will tell you that Hank Braggi is allowed to be mistaken, he doesn't have to be absolutely correct about whether the situation was exactly as he perceived it to be. The question is whether a reasonable person would have thought that Dillon Chase needed to be killed in order to protect Ms. Saint. We think, members of the jury, that the answer is unequivocally no.”

  “And that's just the question of whether force was required. We’re presented with a case where deadly force was used over and over and over again, where Hank Braggi kept beating Dillon Chase enough to kill him several times over. Ladies and gentlemen, that force was cruel and it was not justified all.”

  Jeff went over and stood by his pictures. “It wasn't necessary to shatter Dillon Chase’s skull.” He put a picture of Dillon Chase's unrecognizable face on the easel. “It wasn’t necessary to break his right arm.” A picture. “It wasn’t necessary to break his left arm.” A picture. “It wasn’t necessary to break his ribs.” A picture. “It wasn’t necessary to kick the nose right off of Dillon Chase's face.” The picture of the gap where the nose used to be was the last one up. “It wasn’t necessary to splash the room up and down with Dillon Chase’s blood as Hank Braggi pounded his body from dresser to wall to desk to chair to floor. None of that needed to be done.”

  Jeff walked away from the easel shaking his head. “None of it.”

  “If Hank Braggi tackles Dillon Chase and he accidentally hits his head on the floor, we are not having this trial. If Hank Braggi hits Dillon Chase once with a little too much force and Dillon dies, we're not having this trial. If Hank Braggi elbows Dillon Chase out of the way, elbows him in the jaw, we are not having this trial.”

  “We are having this trial because Hank Braggi brutally beat Dillon Chase to death in a way that exceeded all reasonable behavior and that was utterly excessive to the situation. Hank Braggi, for whatever reason, beat Dillon Chase to death and then beat him some more. I don't know the reason. Jared Smoke testified that he'd taken Hank's place as Lizzy Saint’s cowriter. So was it jealousy? Overprotectiveness? Madness? I don't know. But this act,” he pointed at the picture, “this act is not a lawful one and it's not one that you should allow. Hank Braggi committed murder. He killed Dillon Chase when he didn't have to. And no reason Mr. Shepherd can offer could justifies it.”

  Jeff shook his head. “I've heard some of Mr. Shepherd's reasons. He implied it pretty clearly in his questioning and he's talked to a lot of the witnesses about it. He's going to tell you that Dillon Chase was injecting Lizzy Saint with heroin and that the heroin might very well have been a lethal dose, although I think even Mr. Shepherd will admit that he can't tell you that with one hundred percent certainty. But ladies and gentlemen, that's not enough. Even if every word of that is true, it's not enough.” He pointed at the picture. The hole where Dillon Chase's nose used to be gaped like an abyss. “Not enough to justify this.”

  Jeff resumed his place in the center of the jury box and stood there. He shook his head. “Hank Braggi killed Dillon Chase. It wasn’t in self-defense and it wasn't the defense of another. It was murder. And that's what we're going to ask you to find, that Hank Braggi is guilty of first-degree murder. Thank you for your time and attention this week.”

  He sat back down. A lot of times the jury will look to me right away. This time, half of them were still looking at the picture.

  “I don't have a picture like this to use,” I said as I walked over to the easel. “Nobody took one because at the time Dillon Chase was injecting Lizzy Saint, there were only two of them in the room. Lizzy was unconscious so she couldn't take the picture, and Dillon Chase was preparing to inject her with a lethal dose of heroin and fentanyl, so his hands were too full.” I turned the blow-up around so that its blank, white side faced the jury.

  “We can picture it though, can't we? You saw Lizzy Saint. She came in here and told you she doesn't remember anything from that night. She doesn't remember because she was too drunk. Which she should be allowed to be. She's been working hard, touring the country, and finds out she has a day off the next day where she doesn't have to travel before noon. She does drink too much. Why? Because she believes she's with people she can trust. She's with her boyfriend and his friends in the privacy of their own suite. There's no fans and there's no management and there’s no crowd. She can relax and be herself knowing that she can trust the people she's with.”

  I tapped the blank white space. “Can you see that picture? Can you see Lizzy laughing and talking and drinking and then becoming more drowsy and becoming drunk, and, not surprisingly after singing her lungs out for two and a half hours, she begins to drift off. And her boyfriend leaves her, for whatever reason, to go to the bathroom or to talk to the manager or to do whatever he says he was doing. But it doesn't matter why, what matters is that he left. He left her there with a stranger.”

  I pointed at the blank back of the picture. “Can you see that? Can you see that young woman drifting off, not knowing what's happening, not being able to say ‘stop’? Can you see Dillon Chase pulling out a bag, boiling down the heroin, then tying a rubber tube around an unconscious woman’s arm, careful not to wake her up? Can you see him pulling the drug up into the syringe and preparing to plunge it into Lizzy’s arm?”

  “Can you picture it? Can you pic
ture the planning and the evil that entails? Because make no mistake.” I walked over to the exhibit table and picked up the baggie with the syringe of heroin in it. “One of them brought the heroin with them. I don't know who it was and neither does the prosecutor. We've heard that Lizzy doesn't use and Smoke’s claim that he doesn’t use today. We’ve heard from Blake Purcell that he didn’t bring it with him. We haven't heard from Dillon Chase for obvious reasons and we haven’t heard from Aaron Whitsel because he avoided the government’s subpoena and refused to testify in this case. Why? I don’t know. So no one can nail down who brought the heroin that night.”

  “But you know what? The police could have figured it out if they’d wanted too. Chief Detective Pearson, the man in charge of serious crimes for all of Carrefour, Ohio, could have investigated it he’d wanted to. But you know what is obvious? The police didn't want to know who brought it in. And how do we know that? Because they didn't bother to take the fingerprints on the syringe.”

  I shook the bag so that the syringe rattled against the plastic. “They had it right here. The plunger which everyone who's seen any movies knows is going to have a thumbprint right on it. And did they take one? No. Why? Because they had an easy answer. Because Hank Braggi told them the minute they walked in the door that he had killed Dillon Chase. And Chief Detective Pearson didn't want to know anything that interfered with that narrative, didn’t want to know anything that might interfere with closing his case.”

  I picked up the bag of heroin with my other hand. “You heard from the toxicologist, Dr. Matthew Beckman. You heard what was in this bag. Fifty percent heroin and fifty percent fentanyl. A lethal concoction that would've killed Lizzy Saint.”

  “Now Mr. Hanson has argued that it was possible that the dosage might not have killed Lizzy, that she might not have experienced a fatal overdose. But you heard Dr. Beckman say that it would've killed her. To a reasonable degree of medical probability, this mix of heroin and fentanyl would have killed her. That means it is more likely than not that what was in this syringe was going to kill Lizzy Saint if it was injected into her veins. That means at least fifty-one percent of the time, pushing this plunger kills her.”