Counterplay bkamc-18

by Robert K. Tanenbaum

“Yes, digging…from the backyard. My room was above the yard.”

  “Did you get up and go to the window to see who might be digging?”

  “No.”

  “Why not?”

  “I thought my dad might get mad at me if I got out of bed.”

  Guma now waded carefully into the area the defense was sure to attack. “Now, are these memories you’ve had since you were a small child?”

  “Well, in a way, but I had repressed them.”

  “Repressed? How do you mean?”

  “Well, as I understand it, sometimes people repress memories of a traumatic event-things that are too scary or bad-especially if they were children when it happened. You lock them away in a safe place in your mind where they can’t hurt you, at least that’s what Dr. Craig says.”

  “Who is Dr. Craig?”

  “Dr. Craig is my psychologist. I was diagnosed as bipolar-some people call it manic-depressive-to the point where I was cutting myself with razor blades. Some people call that ‘self-mutilation,’ but really it’s more self-injury. It’s almost like releasing the steam from a pressure cooker. I had pretty low self-esteem, hated myself actually…I’d been told most of my life that my mother left me-”

  “Yes, we’ll get to that in a moment,” Guma said. “Did your father suggest that you go to Dr. Craig?”

  “Well, he tried sending me to a lot of different people. He didn’t want to deal with me. But I think a friend of his recommended that I go see Dr. Craig.

  “Anyway, Dr. Craig suggested that he hypnotize me and see if there was anything in my past-repressed memories that might explain some of my psychological problems.”

  “And that’s when you recalled this fight between your mother and father…him choking her?”

  “Yes…and the pops and digging.” Zachary nodded.

  “Do you have a recollection of when this fight occurred?”

  “Well, I know that it was right before my mom-” suddenly in tears again, Zachary blurted out the rest of the sentence, “disappeared. My father told me she’d left us because she didn’t want to be a mother anymore.”

  “Is that another repressed memory…what your father told you?”

  Zachary shook his head. “No. I heard that until I stopped asking what happened to my mother.”

  “After that night, did you ever hear from her again?”

  Again, Zachary shook his head. “Not directly. I received some Christmas and birthday cards…but obviously, they weren’t real.”

  “Objection. The witness is testifying in an area he has no expertise. It has not been established that the cards in question were falsified,” Anderson said.

  “Sustained,” the judge said. “The jury will disregard the statement about whether the cards were real or not.”

  “Did you ever see your mother again?” Guma asked. “Or hear her voice?”

  Zachary bowed his head and sat quietly. It was soon obvious that he was weeping. He shook his head.

  Kindly, Judge Lussman said, “Let the record indicate that the witness replied in the negative to the questions asked by the people.”

  “Thank you, Your Honor,” Guma said taking his seat. “The people have no further questions.”

  Bryce Anderson rose slowly from his chair as his finger traced across the notepad where he’d been writing during Zachary’s testimony. With his tailored suit, handmade ties, and two-hundred-dollar haircuts and hundred-dollar manicures, he almost looked airbrushed. His manner was deliberate, thoughtful as he approached the lectern. He hoped the blonde in the back, who’d finally agreed to dinner at the Tribeca Grill on Friday, was taking note.

  For all of his flourishes, however, Anderson was no slacker as an attorney. He knew that he was going to have to tread lightly around Zachary. He was obviously a sympathetic figure on the witness stand.

  In his opening, he’d portrayed Teresa and Emil Stavros as having once been very much in love-a love that had produced a fine young boy. However, trying to provide for them, Emil Stavros had worked long hours, and, perhaps, failed to provide the emotional support for his beautiful wife and much-adored son…. The marriage became strained…BOTH parties strayed from their vows of fidelity. Mr. Stavros met a young woman who replaced the love that Teresa was giving now to another man-a former convict who’d served time for manslaughter and been hired to attend the family rose garden but tended another man’s wife instead. A man named Jeff Kaplan.

  Anderson had asked the jury to keep an open mind regarding the skeleton found in the Stavros backyard. Remember there is no proof that Emil Stavros killed or buried anyone. In fact, we will present a witness who will tell you that he knows who killed and buried Teresa Stavros-her lover, Jeff Kaplan. However, the prosecution will attempt to sway you with a pseudoscience…a quackery…called “repressed memory recovery,” using the Stavros’s son, a troubled young man if there ever was one, to “prove” the unprovable. But we will present expert witnesses who will tell you that it is far more likely to actually “plant” false memories than it is to recover real ones. It is not the young man’s fault; he lost his much-loved mother and, due to the cruel hoax perpetrated by Mr. Kaplan, who was anxious to loot Teresa’s bank accounts, he was unfortunately led to believe that she had abandoned him and his father.

  Anderson smiled sympathetically at Zachary, allowing him time to pull himself together. When the young man looked up, the lawyer inquired, “Are you ready to continue, Zachary?”

  “Yes,” the young man answered.

  “Fine. I know this is tough, and I’m not here to try to make you suffer more than you already have,” Anderson said. “But a man’s life, your father’s life, is at stake here, so I must ask my questions.”

  “I understand.”

  “Good. Now, how do we know that what you’ve claimed is a ‘repressed memory’ fourteen years after the fact is the truth?” Anderson asked.

  Zachary shrugged. “How do we know any memory is the truth? Two people remember the same thing two different ways even a day later.”

  “Thank you for that,” Anderson said, “but that doesn’t really answer my question.”

  Zachary sighed. “We don’t. All I can tell you is what I believe to be true.”

  “Thank you,” the lawyer continued. “Now, when you ‘recalled’ this memory, were you aware that your mother had been having an affair with a man named Jeff Kaplan?”

  “I don’t believe that is true,” Zachary said.

  “That wasn’t my question,” Anderson said. “Were you aware she was having an affair?”

  “No.”

  “Do you remember Mr. Kaplan?”

  “I was five years old when my mom disappeared.”

  “I take that to mean, ‘no.’ ”

  “Yes…no.”

  “Thank you,” Anderson said. “Now, Mr. Stavros…Zachary…until you were ‘hypnotized’ by this Dr. Craig, had you ever told anyone about seeing your father choke your mother?”

  “No.”

  “Or about hearing ‘pops’ or the sound of digging in the backyard?”

  “No.”

  “Thank you.” Anderson turned, glanced briefly at the blond reporter, and said, “No further questions.”

  On redirect, Guma asked Zachary if he’d ever been shown any reports regarding the remains found in the backyard of his father’s house.

  “No. I asked, but you said it would have to wait until after the trial.”

  “Yes, I did,” Guma said. “Now, is there anything else you remember from that night? For instance, what your mother was wearing?”

  It sounded like a simple question, but it was one they’d discussed several times, including the offhand way it was asked.

  “I remember that she was wearing a blue dress…or because it was night, I think it might have been a nightshirt. She wore it a lot.”

  “Yes.”

  “Anything else?”

  “No, not really.”

  “And you believe that the ‘repressed memor
ies’ you’ve recalled are true?”

  “Yes.”

  Asked if he wanted to ask any questions for recross, Anderson looked bored and hardly rose out of his seat. “Just a couple, Your Honor,” he said. “Again, Zachary, there is no way of knowing if these ‘repressed memories’ really depict what happened on the night your mother disappeared?”

  “I believe they’re real.”

  “Or, even if they were real-that what you witnessed of your mother and father having a fight occurred on the night your mother disappeared?”

  “I believe they’re real.”

  “If these memories are real, it could well be a memory from a month before, or a year. Isn’t that correct?”

  “I can only tell you that after that night, I never saw my mother again.”

  Zachary stepped down without looking at his father. He wiped at the tears on his face and glanced at Guma, who winked and said quietly, “I’m proud of you.”

  26

  “Your Honor, That Is The People’s case.”

  As Guma announced the end of the prosecution case in chief and sat down, Karp glanced over at the defense table. It was now their turn to proceed. Karp wondered about the worried looks and the agitated confabbing between the lawyers and Stavros.

  “I don’t think they were prepared for us to be done quite so soon,” Karp whispered. “It seems to have thrown them for a loop.”

  “Good,” Guma whispered back. “Anything that’s bad for them is good for us.”

  The night before they’d talked and decided to move as fast as possible to finish. We might be able to finish this before the weekend, Karp said. Maybe even get a jury decision by Friday.

  What? And deprive Emil of one last weekend boinkin’ the former Miss Bliss? Guma laughed.

  Yeah, let’s pick up the pace, and see if we can rattle them a little, Karp said. They had a plan for dealing with the defense’s star witness, Dante Coletta, but it was going to take some finesse and a dash of distraction to spring the trap.

  Beginning at 9:00 A.M. sharp, Guma summoned former detective Bassaline to the stand to testify about his investigation into the disappearance of Teresa Stravros.

  When he began to testify about what the gardener, Jeff Kaplan, had said about the rose garden, Anderson had objected. Mr. Kaplan is deceased, Your Honor, he said. We won’t have the opportunity to cross-examine him. And who knows if this witness’s recollections after fourteen years are accurate or something he may have…dredged up after talking to the prosecution.

  Guma had smiled at the remark and turned to Bassaline. Detective, you wouldn’t have happened to keep any notes of your discussion with Mr. Kaplan, would you?

  Bassaline smiled back and produced a detective’s notepad. As a matter of fact, I’m something of a packrat, he answered. Especially in regard to this kind of case…it sort of eats at me, and I can’t bring myself to throw away my notes, just in case. So I spent a chunk of last week up in the attic until I found this. He held up the notebook.

  The defense objection is overruled, the judge had said. You may continue, Mr. Guma.

  After Bassaline left the stand, Guma called Detective Fairbrother to the stand to testify about the subsequent investigation, including the credit card and bank statement hoax.

  In his opening statement, Anderson had already alluded to the hoax having been perpetrated by Kaplan and his alleged girlfriend, a mystery woman no one seemed able to locate. So there was no need to bring up the handwriting analysis that showed the signatures did not match those of Teresa Stavros. However, Guma went into some detail to demonstrate how elaborate the plan had been while Detective Bassaline’s description of Kaplan as a punch-drunk former fighter was fresh in the jurors’ minds.

  After the detectives, Karp had quickly moved through his witnesses, Swanburg and Gates. Then Fairbrother had been recalled to testify about Stavros’s flight when the grave was discovered.

  When he left the house, did he say anything? Guma had asked innocently.

  He said he had errands to run, Fairbrother replied.

  Did he say those errands were in Canada? Guma asked.

  Objection, Anderson complained. My client was not in Canada when he was arrested.

  Close enough, Guma retorted. But I withdraw the question. He’d then waited until Fairbrother left the courtroom and declared that he had concluded the people’s case.

  “Very well,” Judge Lussman said. “Mr. Anderson, are you prepared to call your first witness?”

  There was still quite a bit of head shaking going on as Anderson rose. “Uh, Your Honor, we’d like to make a motion outside the hearing of the jury.”

  Lussman sent the jury out of the courtroom. “All right, Mr. Anderson, make your motion.”

  “The defense moves for a directed verdict of not guilty,” Anderson said. “The state has not proved its case beyond a reasonable doubt.”

  Guma stood and started to speak, but the judge waved him back to his seat. “No need, Mr. Guma,” he said. “I find that the prosecution has provided enough evidence that a jury could, at this point, find the defendant guilty as charged. Are you ready to call your witness?”

  “Well, Your Honor,” Anderson said, “I’d like the morning to prepare a brief on why we believe that the prosecution has not met its burden…”

  Karp scowled. It was normal for the defense at this point to make the motion to dismiss the case on the ground Anderson cited. However, the “time to prepare a brief” was just a silly attempt to stall.

  “I’ve made my decision, Mr. Anderson,” the judge said. “Now, do you have a witness to call?”

  Anderson twisted his lips as if trying to weigh how far he could push the judge. “Well, we were expecting the prosecution to take up all of the morning, as well as most if not all of the afternoon. I’m not sure-”

  “He’s stalling,” Karp said under his breath to Guma. “In fact, seems a little desperate.”

  “Yeah, wonder why,” Guma agreed. “Maybe our theory about wanting one more weekend with Amarie was on the money.”

  “I believe, Mr. Anderson, that I requested that you have your witnesses ready to go this morning,” Lussman said. “I believe you’ve tried cases before me in the past and should know that I don’t like delays. We have asked the jurors to put aside their lives and should respect their time. Not to mention, but I will, we have an enormous backlog of cases before this court-you were the one who insisted that an expedited trial take place on this particular week because of your busy schedule-and there’s no time to waste.”

  One of the other lawyers tugged at Anderson’s sleeve and said something. “Yes, Your Honor,” Anderson said. “I was just caught a little off guard is all.”

  “Good, then we’ll proceed,” Lussman said. “I’ll ask the jury to return, and you may call your first witness.”

  A minute later, Dr. Peter Oatman, a psychologist who taught at the University of California-Santa Barbara, was on the stand to testify about the pitfalls of “repressed memory.” With his bleach-blond-and probably dyed, Karp thought-hair, perfect tan, and heavy gold chain around his neck, the middle-aged psychologist was the stereotypical California beach boy, which gave Karp an idea as he listened to the man testify.

  Having noted that he’d been an expert witness at more than three hundred trials, Oatman knew his role. He listened carefully to each question from the defense as if he were hearing them for the first time. Then looking thoughtfully first at the ceiling, he’d drop his gaze to the jurors and give his answer.

  “Dr. Oatman, is there any such thing as repressed memory?” Anderson asked.

  Oatman allowed himself a small chuckle and shook his head as if he’d been asked if he believed in Santa Claus. “If you’re talking about the sort of small things we all ‘forget’ in the course of our daily lives, then something ‘jogs’ our memory, then yes,” he said. “Our brains can be very selective about ordering up which memories are necessary to get us through the day, such as how to drive a car. W
e might head out one morning, not quite sure of where to turn, but we see something that reminds us-a street sign or a building-then ‘poof,’ we recall the memory of how to get where we’re going.”

  “Do you recall reading about the supposed ‘recovery’ of repressed memory of the prosecution’s witness, Zachary Stavros, such as it applies to my client Emil Stavros and the crime with which he’s been charged?” Anderson asked.

  “I have.”

  “Is that the sort of ‘jogging’ of the memory you were talking about?”

  Oatman rolled his eyes and again shook his head. “No. This quasi science that some of my colleagues in the psychology business profess is very unreliable. It’s more likely, in this case, that the ‘memory’ is a combination of the boy’s imagination-a way for him to deal with the sad loss of his mother and the idea that she might have abandoned him-and, perhaps, something his therapist may have suggested accidentally…or not.”

  “Are you saying this ‘memory’ could have been planted, Dr. Oatman?” Anderson asked as if the idea had never occurred to him.

  “Yes. When someone is under hypnosis, they are very suggestible. It’s sort of like having a dream where you wake up and wonder if it really happened. Of course, with a dream, we quickly realize that it wasn’t real. But it’s not as easy with a memory we pick up while under hypnosis. It may continue to be viewed as ‘real’ unless we are disabused of the notion.”

  Anderson turned over his witness to Karp, who noted that while Oatman had the same superficial smile plastered on his face, he had difficulty looking him in the eyes. Nervous, he thought, with good cause.

  “Good morning, Dr. Oatman,” Karp said. “If I may say so, you look like you spend a lot of time in the sun.”

  “I’ll take that as a compliment, Mr. Karp. But don’t worry,” Oatman replied, turning to the jury with a smile, “it hasn’t addled my brains.”

  Karp laughed with the rest of the courtroom. Smarmy bastard, he thought, but that ought to help. “I suppose not. Are you a surfer?”

  Oatman looked surprised and glanced at Anderson, who was smiling but looked as if his brain was grinding trying to decide if he ought to object.