by Angela Hunt
A tremor touches the man’s pale lips. “Yes, Senator Tomassi was with his wife. I asked if he wouldn’t be more comfortable in the waiting room, but he insisted on remaining with his wife. He was quite…determined.”
Briley proceeds carefully, not wanting to cast blame on the doctor for not intervening aggressively. She needs to keep him—and the jury—on her side. “After that particular examination, Dr. Sparks, were you able to draw a conclusion as to the cause of the injuries to Erin’s bruised knees, elbows, face, and broken ribs?”
The doctor’s valiant attempt at remaining professional is marred by a sudden thickness in his voice. “I wish I had been able to speak to her alone. I had my suspicions, but that’s all they were—suspicions. On the surface, Erin seemed a lovely, content woman and the senator a devoted husband.”
Briley turns to the jury box and scans the fourteen faces. Are they hearing what she wants them to hear? Do they understand?
“Dr. Sparks—” she softens her tone “—did Erin Tomassi come to see you about six months ago?”
“Yes. She came alone and said she was unable to sleep. I prescribed zolpidem tartrate, commonly sold as Ambien.”
“Did she say why she was having trouble sleeping?”
“I didn’t ask.”
“After you gave her the prescription, did she complain of any side effects from the drug?”
“Not to my knowledge.”
“Are you familiar with published literature in which others have complained of side effects when using Ambien?”
“Yes. Some patients have exhibited parasomnia while taking the drug.”
“For the less medically inclined among us, can you define parasomnia?”
“Literally, the word means ‘outside sleep.’ Parasomnias are odd or unusual activities that occur while an individual is sleeping. These include sleepwalking, sleep talking, nighttime terrors, REM behavior disorders, and nocturnal dissociative disorder.”
“Dr. Sparks—” Briley steps closer to her witness “—are you aware of the prosecutor’s theory that Erin Tomassi intentionally injected her husband with an overdose of insulin while he slept?”
The man tilts his head. “Yes, I read the papers.”
“Hypothetically speaking, if a woman swallowed a double dose of Ambien, went to sleep, woke in the middle of the night, injected her husband, tossed the syringe in the trash can, and went back to bed, would you blame the woman or the drug?”
“Objection.” Bystrowski stands and shakes his head. “Calls for speculation.”
“Objection sustained.”
Briley turns back to her witness. “If a woman behaves in an unpredictable manner after taking a double dose of Ambien, would you consider the drug a possible trigger for her actions?”
The doctor smiles. “I don’t see how you could rule it out.”
“Thank you, sir. The defense has no further questions for this witness.”
Briley moves toward her counsel table, but the prosecutor wastes no time in launching a counterattack.
“Dr. Sparks—” Bystrowski doesn’t even bother to move to the lectern “—how long have you been practicing medicine? Thirty years?”
The doctor nods, sending a sheaf of white hair into his eyes. “That’s correct.”
“In your long practice, Doctor, how many times have you prescribed zolpidem tartrate?”
“Impossible to know without checking every chart in my files.”
Bystrowski takes off his glasses. “More than a dozen times? More than a hundred?”
Dr. Sparks narrows his eyes at the prosecutor. “Since the drug was introduced in 1993, I’ve probably prescribed it at least fifty times per year.”
Bystrowski pauses to crunch the numbers. “Seven-hundred-fifty scripts? Does that number sound plausible?”
“Yes.”
“To seven-hundred-fifty different patients?”
“Well, give or take a hundred. Some of those are refills.”
“All right, then. Of these six-hundred-fifty patients, how many have exhibited signs of odd nightly activities? In other words, how many of your patients have turned into sleepwalkers and sleep talkers?”
Dr. Sparks spreads his hands. “Impossible to tell. Unless a problem is reported to me, I remain unaware of it. Sometimes these events are so mild that no one notices them. Or a wife may become so accustomed to her husband’s wandering around in the dark that she thinks nothing of it.”
“But you have heard reports of sleepwalking?”
“Among my patients?”
“Yes.”
“How many times?”
“A few.”
“I need a number, sir.”
“I couldn’t give you a number.”
“Less than twenty?”
“That sounds about right.”
Bystrowski leans on the lectern and shifts his gaze to the jury. “How many of those less-than-twenty sleepwalkers and sleep talkers have become sleep killers?”
Dr. Sparks gives the prosecutor a glare that should have singed Bystrowski’s eyebrows. “Apparently that number will depend upon the outcome of this trial.”
At the defense table, Briley stirs uneasily. She should have booked an appointment with the doctor and paid for two hours of the man’s time. If she’d known he was going to play into Bystrowski’s hands, she could have manufactured a headache.
The prosecutor gazes at the jury as if perplexed. “If unwanted nocturnal activity is common with people who take Ambien, why is the drug still on the market?”
The doctor’s mouth puckers with annoyance. “Parasomnia is not common among patients who take the drug correctly—people who allow plenty of time for sleep while they avoid alcohol and other prescription medicines.”
Bystrowski crosses to his counsel table and glances at his notes. “When you recited possible side effects for Ms. Lester, you mentioned something called nocturnal dissociative disorder. Can you define that condition for us?”
Dr. Sparks leans an elbow on the witness box. “It’s when the patient disassociates from his true self—sort of a mental disconnect.”
“Really. Are you familiar with published literature that details a case like this?”
The doctor sucks at the inside of his cheeks while his eyes lock with Briley’s. Her uneasy feelings shift to a deeper and more immediate fear: what is he about to say?
“Well,” the doctor begins, “I’ve read case reports of at least two men who killed their wives while in the grip of nocturnal dissociative disorder.”
Briley studies Bystrowski, who, wide-eyed and gaping, is pretending he’s never heard this bit of information. His associate at the counsel table, however, is reading something in a notebook and smiling in self-congratulation.
Bystrowski has done his homework. He has Dr. Sparks on the hook, and all that remains is to reel the old man in….
“Really?” the prosecutor says. “Were these two men convicted and sent to prison?”
“Objection!” Briley rises in a flash, her mouth going dry. For an instant, she’s too stunned to respond, then her brain floods with words. “Assumes facts and circumstances not in evidence, Your Honor. This is prejudicial and irrelevant.”
“The witness is a medical expert,” Bystrowski argues. “And counsel for the defense opened the door to this line of questioning.”
Trask measures the prosecutor with a cool, appraising look, then he nods. “Objection overruled. The witness will answer.”
“I’ll repeat the question,” Bystrowski says. “These two men who killed their wives while experiencing a parasomnia—were they convicted of these crimes?”
“One was.” The doctor looks at the jury. “In 1997, Scott Falater murdered his wife by stabbing her forty-four times and then holding her underwater in the pool. He claimed to have no memory of the event because he was sleepwalking, but police found the murder weapon and Falater’s bloody clothing hidden in the trunk of his car. Furthermore, the man put on gloves before picking
up the knife to kill his wife. Because he showed premeditation and took evasive actions, the jury found him guilty of first-degree murder.”
Briley holds her breath. Maybe this testimony won’t hurt her. Falater’s case is nothing like Erin’s; in fact, Bystrowski may have underscored her point.
The prosecutor glances at Briley, his expression unreadable, then he presses his hands together and turns to the doctor in the witness stand. “We’ve heard testimony that your patient, Erin Tomassi, took a double dose of Ambien in the early morning hours of December 3. Would you say she was taking the drug correctly?”
“Unfortunately, no. I would never advise doubling the dose.”
“Interesting, though, that she’d take a double dose of a drug known to cause problems with sleep on the night she kills her husband.” Bystrowski pauses to wipe his lenses on a handkerchief, then returns his glasses to his nose. “Doesn’t her behavior strike you as a little convenient?”
“Objection.” With an effort, Briley pushes herself up from the table. “How this behavior strikes the doctor is irrelevant.”
The judge swivels his chair toward the witness stand. “I see your point, Ms. Lester, but I’m going to allow the witness to answer.”
The doctor glances at Briley, then stares at the prosecutor. “I’m afraid I don’t understand what you mean.”
“It’s not a difficult question. I’m only saying the scenario is terrifically tidy. Our long-suffering battered wife just happens to take a notorious sleep aid—incorrectly—on the night she kills her husband.”
“Objection!” Briley stands again. “The prosecutor is assuming facts not in evidence.”
When an indignant buzz rises from the gallery, Trask waits, his heavy cheeks falling over his collar, until the room has quieted. “Objection sustained. Mr. Bystrowski, you know better.” He turns to the jury. “Ladies and gentlemen, you should disregard that last remark. And let me remind you that comments from counsel are not evidence. Evidence is what you hear from witnesses under oath.”
“I’ll withdraw the question.” Bystrowski backs away. “I have nothing else for this witness.”
Briley steps out from behind her table. “Redirect, Your Honor?”
When the judge nods, Briley walks toward the doctor with a confident smile. “You mentioned two men who killed their spouses while allegedly in the grips of a sleeping disorder. The first man was convicted because he attempted to cover up his crime. Do you recall what happened to the second man?”
The doctor’s eyes are more focused now, as if he’s realized the harm he’s done and is willing to make things right. “I do.”
“Would you share that result with the jury?”
One corner of Dr. Sparks’s mouth twists upward. “In 1981, a man named Steven Steinberg stabbed his wife twenty-six times with no memory of the event. But because the prosecution could find no evidence of premeditation or defensive evasion, the jury acquitted the man.”
“Thank you, Dr. Sparks.”
Briley returns to her counsel table and studies the jurors as the doctor descends from the witness box. She had them, all fourteen of them, when she finished direct examination, but the state’s attorney’s snide summation may have wrested them from her grasp. A single believer in Erin’s innocence can keep her client out of prison, but as her gaze roves over the jury box, Briley can’t find a single juror who will look her in the eye.
While Judge Trask prepares to adjourn for the day, Briley pushes away from the defense table and digs in her purse for her car keys. She is not lingering in the courtroom tonight; she is not taking the rarely used staircase. She may have to run a gauntlet of reporters, but anything is better than facing another man in a ski mask. She is planning to meet Kate and William at a restaurant for an over-dinner postmortem, then she needs to get home so she can review her notes and work on her closing remarks.
As she pulls out her wallet and sunglasses case, a small slip of pink paper flutters to the floor. Erin bends to pick it up.
Briley waits until Judge Trask stands to leave, then she sets her keys on the table and stuffs her wallet back into her purse. “Okay, I’ll see you tomorrow morning—”
“Please.” As the bailiff approaches, Erin presses the pink paper into Briley’s palm. “You promised to call for me.”
Briley glances at the handwritten phone message and recognizes the geneticist’s name. How can Erin be worried about her ovaries while Briley is struggling to save her life?
“Listen—” she hurries, aware that the bailiff has pulled handcuffs from his belt “—I know having a baby once meant a lot to you, but I really don’t think we need to be distracted right now.”
“Briley.” Erin’s blue eyes brim with tears. “I know you’re trying to focus, and I appreciate it, but when I get out of jail—if I get out of jail—I want to move forward with my life. And to do that, I need to know what’s wrong with me.”
“Who said something was wrong?”
“Dr. Phillips. He said it was important that I call him. Why would he say that if something weren’t wrong?”
Erin stands and extends her wrists. Briley studies the name and number as the bailiff fastens the handcuffs. She’s had her fill of doctors today, but if she calls tonight, maybe this Dr. Phillips won’t be in his office. She can leave a message, meet her obligation, and be off the hook.
“All right, I’ll phone him for you.” She slips the message into her suit pocket. “But I can’t promise anything. He may not be at his desk.”
“That’s okay, at least he’ll know I’m still around.”
Briley watches, her heart sinking, as Erin submits to the shackles and shuffles away.
It’s a small thing, this favor. Taking a few minutes for a phone call doesn’t mean she’s violating her boundaries and becoming personally involved.
She grabs her briefcase and stands as an inner voice hoots at her rationalization. Despite her best intentions, she’s becoming more like her father every day.
Chapter Forty-Eight
The skirling wind skitters past Briley, tossing hair into her face and whipping her skirt tight around her legs. Wishing she’d taken the time to fasten the buttons, she clutches at the edges of her coat and rushes toward the warmth of the restaurant.
The door jingles as it slams behind her. She looks up to find herself in a dimly lit diner, one that has probably prospered more on account of its proximity to the courthouse than on the merits of its food. Ignoring the overburdened coatrack by the cashier’s stand, she thrusts her cold hands into her pockets and strides toward the booth where her volunteer staff is waiting.
Kate has both hands wrapped around a cup of coffee. “Hey,” she says, pausing before she takes a sip. “Have a seat and let’s dish.”
“Food first.” William waves for the waitress’s attention. “I’m starving.”
While Kate and William huddle over their menus, Briley pulls out her cell phone. She punches in the geneticist’s number, then crosses one arm to wait for an answer. The waitress hands her a coffee mug; Briley thanks her with a smile and points to her companions. Let them order first.
“Hello?”
Briley startles when a voice rasps in her ear. “Dr. Phillips?”
“Speaking.”
She covers her free ear to block some of the noise. “I’m Briley Lester, calling on behalf of Erin Tomassi. Apparently you’ve been trying to reach her for several days.”
She expects him to hesitate—after all, how many patients must this doctor have?—but he responds immediately. “Yes, it’s important that I speak to Mrs. Tomassi as soon as possible.”
“I’m sorry, but that’s going to be difficult. Mrs. Tomassi is unavailable. I am her lawyer, however, and I could carry a message to her.”
“Is she…?”
“She’s incarcerated.”
“Oh, my.” The man’s shock and horror roll over the phone line. “I’m so sorry to hear about her trouble. I had no idea she was that Tomassi…
”
“You understand why it’s been difficult for her to return your call. You can, however, speak to me and I’ll relay the message.”
“It’s just—Well, we usually discuss this sort of information only with the patient. The privacy laws. You understand.”
“I do.”
“But this is so unusual, and I want to publish this information in an article I’m preparing. I won’t use her name, of course. I wonder…is there any way you could obtain Mrs. Tomassi’s permission for me? Then I could relay the information to you, and you could pass it on and get her approval.”
Briley turns sideways to shield her face from Kate and William, who are watching from across the table. “My client is concerned that there’s something wrong with her DNA,” she says, lowering her voice. “Is that a correct assumption?”
“I really shouldn’t give the information over the phone,” the doctor hedges. “But if you can come to my lab at the hospital—”
“I’m in court all week. I’m sure your project is important, but I’m fighting for my client’s life.”
“How about this evening? I can meet you anytime.”
She glances at Kate, who is pointing to the waitress. “A bowl of soup,” Briley whispers, her hand over the phone. “Whatever they have will be fine.”
“Ms. Lester?”
“Still here, Doctor.” She shakes her head at William, who is mouthing Anything wrong?
What’s not wrong? In the middle of her first murder case, a trial that could go either way, her client has asked her to track down an eager-to-publish geneticist who probably sleeps in his lab coat and eats peanut butter crackers for dinner. And because Erin looked so pitiful with her bruised cheek and scratched face, Briley has decided to go out on a freezing winter night when she could be practicing her closing in a luxurious bubble bath at home….
“All right.” She returns her attention to the phone. “If you’ll give me your address, I’ll come by tonight. First I’ll have to swing by the jail and get an authorization form signed by Mrs. Tomassi, so look for me around eight.”