by Kenneth Eade
“Brent, you have to get me out of here. There’s nothing to do and the food is terrible.”
“That ought to convince them to release you.”
“Really: if I stay here one more day, I’m going to go nuts. Bring me up to date on the Thomas case.”
“William had a breakthrough today.”
“He remembered?”
“Everything. Right on the witness stand. And right after Daisy Mc Govern ripped Taylor a new one during his cross-examination. It was like a chapter out of Perry Mason.”
“No!”
“Yes. I finally think it’s turned around. But, you never know with juries. I’d take a judge every time, unless of course I’m guilty.”
“You’ll kill it in final argument,” Jack said, confidently.
“Brent?”
“Yeah?”
“I’m sorry I couldn’t finish the investigation.”
“You did, Jack. We got what we needed: we got Daisy.”
* * *
Brent expected cross-examination to take about half a day, maybe longer. Then he would rest his case and, if Taylor had no rebuttal, they would move on to final argument. This was perhaps the most important part of a trial. The jury would be cautioned not to regard it as evidence, but all they had heard up to this point were two exactly opposite versions of the same story and a bunch of technical stuff.
The judge would read them a collection of instructions summarizing the law to apply to whatever disjointed facts they were able to remember. The instructions had been written in layman’s legalese by a gaggle of lawyers and judges and they would be as familiar to the jury as the geography of Mars. Someone had to make sense out of it and give them an easy solution to the puzzle, and that would be Taylor. Brent’s function would be to point out everything that was confusing and didn’t make sense and then, for the home run, lay out the only conclusion that they could logically follow.
Brent grabbed his gym bag and headed for 24 Hour Fitness, hoping that a good workout would clear his mind. His closing statement was outlined, but he had to nail it in the delivery. As he jogged on the treadmill, he argued to himself, making his presentation as his body went through his routine.
CHAPTER FORTY TWO
William retook the witness stand, as prepared as he could be for the onslaught to come. Taylor perched at the side of counsel table, looked at William with distrust and suspicion, then looked back at the jury to make sure they had registered it.
“Mr. Thomas, you’ve spent several weeks in the County Hospital before this trial, haven’t you?”
“Yes.”
“Where you were under psychiatric care?”
“I was undergoing therapy.”
“Memory therapy, isn’t that correct?”
“Objection, Your Honor: privilege.”
“Counsel, approach the bench.”
Once at the bar with the court reporter, the judge said, “Your objection is premature, Mr. Marks. The psychotherapist-patient privilege applies to communications between the therapist and patient. I will take up your objection when and if the need arises. For now, it will be overruled.”
Taylor brimmed with fortitude on his way back to the counsel table, then turned and faced William confidently.
“You were undergoing memory therapy, isn’t that correct?”
“It was therapy for post-traumatic stress. Memory recovery was part of it.”
“And the therapy was administered by Dr. Lucille Reading, correct?”
“Yes.”
“And the reason you were undergoing memory therapy was that you couldn’t remember anything that happened the night Officer Shermer was shot, isn’t that correct?”
“I couldn’t remember all of it.”
Taking a further risky step, Taylor ventured into the unknown.
“You had hypnosis therapy, didn’t you?”
“Among other things, yes.”
“And you were administered hypnotic drugs, weren’t you?”
“Yes.”
“You couldn’t remember anything about the gun, could you?”
“Before?”
“Yes, before your therapy.”
“Just bits and pieces.”
“Just bits and pieces,” Taylor repeated, as he regarded the jurors. Then, he surged forward into the darkness. “In fact, originally, in those bits and pieces of your memory, Mr. Thomas, you thought you shot Officer Shermer, didn’t you?”
“Not exactly.”
“Not exactly. Most of us would know exactly if we killed someone or not…”
“Objection. Argumentative!”
“Sustained. The jury will disregard counsel’s comment and make no inference from it.”
Taylor looked at the jury, then at William.
“One of those bits and pieces of your memory was that you shot Officer Shermer, wasn’t it?”
“That’s not what happened.”
“But, before your memory therapy, that’s what you thought happened, wasn’t it?”
“I thought it could have happened. But now I know that it didn’t.”
“That’s very convenient, Mr. Thomas, but what I would like to ask is…”
“Objection! Argumentative!”
“Sustained. The jury will disregard the question.”
“You thought it could have happened.” Taylor regarded the jury with a look of affirmation. “And when you were lying on the ground that night, you grabbed Officer Albright’s weapon, didn’t you?”
“I pushed it.”
“You weren’t going to let him arrest you, were you Mr. Thomas?”
“He was trying to kill me!”
“Move to strike: non-responsive and speculative, Your Honor.”
“Counsel approach.”
“The defendant has asserted self-defense, Your Honor,” said Brent. "And his state of mind is relevant to that claim of self-defense.”
“Your Honor, it is clearly outside the scope of the question, which called only for a yes or no answer.”
“The defendant’s perception is relevant to self-defense. I’m going to let the answer stand.”
Taylor moved back to counsel table, still standing and still resolute, and then he violated the principal law of cross-examination. He asked a question to which he did not know the answer. It was a gamble – black or red, point or craps – and Taylor knew it.
“When did you have your sudden recovery of memory, Mr. Thomas?”
“Yesterday,” said William, humbly.
“Yesterday,” repeated Taylor, looking at the jury with disbelief. “Yesterday, here in court, during your testimony?” he asked, as if it were a surprise.
“Yes.”
“So, yesterday, here in court, while you were on the witness stand, your memory suddenly reappeared, is that correct?”
“Objection: argumentative!”
“It’s cross-examination, Your Honor.”
“Overruled.”
“Answer the question, Mr. Thomas. Did your sudden reappearance of memory occur while you were on the witness stand?”
“Yes.”
“And immediately before that, it was just bits and pieces, correct?”
“Yes.”
“So, yesterday, when testifying on your own behalf, you suddenly remembered every detail of what happened that night that Officer Shermer was shot?”
“Objection: asked and answered!”
“Overruled.”
“Yesterday,” Taylor repeated, "when testifying on your own behalf, you suddenly remembered every detail of what happened that night that Officer Shermer was shot; isn’t that correct?”
“Yes.”
“I’m going to ask about some things you do remember.”
“Objection: argumentative.”
“Sustained.
“Withdraw the question, Your Honor. When Officer Albright first approached you in your car that night, didn’t you tell him to turn off his flashlight?”
“No. I asked him if h
e had to shine it in my face.”
“You initially refused to exit the vehicle, correct?”
“No, he asked me to step out of the car and I asked him ‘what for?’”
“So you resisted stepping out of the vehicle, correct?”
“I got out of the vehicle. I just asked him why he was making me get out.”
“And you resisted when he asked you to turn around and put your hands on the vehicle, isn’t that correct?”
“No, I didn’t resist. I protested, but I didn’t resist.”
“And you denied having an open container of alcohol in your car, isn’t that correct?”
“I expressed surprise. I didn’t know about it.”
“Then, when the officer questioned you about whether you had been drinking, you became belligerent.”
William remained steadfast, faced Taylor and then looked at the jury.
“He called me a nigger. I’m no nigger.”
“Move to strike as non-responsive, Your Honor.”
“Denied.”
“You interfered with the field sobriety tests, didn’t you?”
“I didn’t.”
“You kept repeating to Officer Albright that you were not drunk, is that correct?”
“Yes.”
“And you denied having an open container of alcohol, didn’t you?”
“I didn’t know about it.”
“You refused to perform the walk and turn test, didn’t you?”
“No.”
“During the test, you reached for Officer Albright’s baton, didn’t you?”
“He was shoving me with it.”
“Move to strike as non-responsive.”
“Granted: answer the question please.”
“You reached for his baton, correct?”
“I pushed it away.”
“So you touched his baton, correct?’
“Yes.”
“And you pushed it back at him, correct?”
“Yes.”
Taylor checked the jury to make sure they were paying attention. All eyes were on him. He moved closer to the witness stand in an accusatory fashion.
“And, after Officer Albright applied bodily force to pin you down, you grabbed his gun, didn’t you?”
“I pushed it out of the way.”
“You touched his gun, correct?”
“Yes. I had to!”
“And you tried to take it away from him?”
“I pushed it away.”
“You wanted to shoot Officer Albright didn’t you?”
“He was trying to kill me.”
“Move to strike as non-responsive.”
“Granted. The jury will disregard the answer.”
Taylor was face to face with William now, continuing the standoff, compelling the outcome.
“You intended to shoot him, didn’t you?”
“He had the gun in my face! He was going to shoot me! If one of us was getting shot, it was going to be him!”
“No further questions.” Taylor kept a lid on his happiness, but Brent could see him hiding behind a curtain of smug.
CHAPTER FORTY THREE
Dr. Reading was on Brent’s witness list, but he hadn't intended to call her unless he absolutely had to. Taylor’s casting doubt on William’s memory on cross-examination had made it a necessity.
Brent elicited Dr. Reading’s qualifications: her PhD in psychology from Berkeley, her juris doctor in law from Berkeley, her M.D. from UC San Francisco School of Medicine, her 25 plus years’ experience as a board certified psychiatrist, and her numerous articles in medical journals about the subject of memory therapy. Taylor chose not to voir dire her, and accepted her qualifications. He has to have something up his sleeve, thought Brent. Dr. Reading was dressed conservatively, like a doctor, but she had a look that drew men’s attention. Her auburn hair had a shine to it, even under the fluorescent light. The men on the jury could not take their eyes off her. The women on the jury were asking themselves how she looked so good for her age, and who did her hair?
“Dr. Reading, during Mr. Thomas’s incarceration, did you diagnose him with any type of medical condition?”
“I diagnosed him with post-traumatic stress disorder following the shooting of Officer Shermer.”
“What symptoms led you to this diagnosis?”
“Depression, irritability, suppressed memories, nightmares. And I confirmed the diagnosis with a blood test.”
“Can you describe this blood test?”
“It’s a brand new test, still in its testing stages. It’s based on a blood marker associated with PTSD that Doctors from Icahn School of Medicine discovered.
“The test is designed to identify the marker, and it was found to be present in William’s blood.”
“Did you prescribe a treatment program of therapy for Mr. Thomas?”
“I prescribed a plan to treat his PTSD and attendant declarative memory dysfunction.”
“Could you explain declarative memory dysfunction?”
Dr. Reading faced the jury. Just her demeanor and appearance seemed to set them at ease. It was if they had all taken a place on the couch in her office. She described declarative memory dysfunction as a very common condition in cases of post-traumatic stress disorder. In PTSD, memories associated with the stress trigger, a horrendous trauma, often make the patient feel like he is experiencing the trauma all over again.
“The condition is very common in cases of rape, child abuse, combat, and with victims of violent crime. The brain, in order to protect itself, avoids recollection. Think of it like putting something away that gives you bad feelings to look at.”
“Could you please describe the treatment plan?”
“Yes. The idea is to train the brain to recall the memories without triggering the trauma. It involved very simple behavioral therapies, such as prolonged exposure, which consisted of having William repeat all he could remember from the incident, over and over, in every detail he could recall. This helped to ease his anxiety and depression.”
Dr. Reading outlined the therapies she used with William, including eye movement desensitization, exposure therapy, and hypnosis.
“Was any of this therapy effective?”
“Not when I was treating him, but I understand he did have a breakthrough and spontaneous recall.”
“Is that unusual in cases of PTSD?”
“Not at all. Often patients recall their painful memories spontaneously as a result of encountering reminders outside of therapy.”
“Knowing what you do about Mr. Thomas’ recall in court, have you formed an opinion within a reasonable degree of medical certainty on the reason for his spontaneous recall?”
“Yes I have.”
“Please tell the jury your opinion, doctor.”
“It’s my opinion that William experienced stressors during his incarceration that equaled or exceeded those which he experienced during that night, and, hearing the reminders of the event during the trial, and especially examination under oath, he had a full spontaneous recovery. I would rate the PTSD therapy as a success.”
“Thank you, doctor.”
Taylor looked as if he was holding back a surprise that would make him explode, as he went into his cross-examination.
“Dr. Reading, are you aware of the criticism of memory therapy and fabricated memories in the medical community?”
“Yes, I am aware that studies have been conducted that accuse memory therapists of planting or fabricating memories in cases of child abuse.”
“Are these peer-reviewed studies?”
“As far as I know, yes.”
“Dr. Reading, you were hired by the defense in this case, were you not?”
“I was not. Brent Marks referred me to Mr. Thomas, but it was he and he alone who hired me.”
“To reconstruct his memories of the event?”
Dr. Reading’s face reddened, and her brows furrowed at the implication that she had manufactured William’s memories.
“Not at all! I was hired to diagnose and treat William for his PTSD. His recovered memory was a bi-product of that treatment, not the point of it.”
“But your primary objective was to restore his memory of the event, is that correct?”
“No, it was not. My primary objective was to treat his disorder. The dysfunctional memory was a symptom of it and, if William could regain his memory, it would be part of his recovery. William regained his memory on his own.”
“Or made it up,” Taylor said, looking in the direction of the jury.
“Objection: argumentative!”
“Sustained. The jury will disregard Mr. Taylor’s comments.”
“Doctor, this blood test you used to confirm your diagnosis of PTSD: it’s not accepted in the medical community, is it?”
“No, not yet. I said it was still in the process of being tested. But I made the diagnosis before doing the blood test.”
“Do you often use methods not accepted in the medical community, doctor?”
“I resent the implication!” Dr. Reading was boiling. Her lips turned down at the corners and her eyebrows puckered. “I always keep in touch with the latest tests and methods of therapy. It doesn’t mean that I use unreliable methods.”
Brent took some time to re-examine Dr. Reading on redirect, mostly so the jury could re-establish those warm and cozy feelings that she had instilled in them from the beginning. And these were the emotions that Brent hoped the jurors would tuck themselves into bed with, as Court conveniently adjourned for the day at this point.
CHAPTER FORTY FOUR
The trial had overshot its two week estimate, but Brent was fairly confident that they would present their closing summations the next day, so he went home: the nicest place he could think of to rest and prepare for the argument of his life (and William’s).
The evening was crisp but not too cold, and the traffic was light as William made his way up the 101 freeway. He dreamed of a vacation after the trial; but not some faraway place. No, the balcony of his Harbor Hills home was where he had set his sights. He avoided the office, where there could be nothing good waiting for him, and remembered his immigrant client from Yugoslavia, Dusan. Dusan had told him that the most important thing he learned about living in the States was to avoid the mailbox: you never found any good news in there. So he took old Dusan’s advice and went straight to the house where, instead of finding bad news, he found a not-so-hungry cat and her caretaker.