Capitol Offense

by William Bernhardt

  “He says he didn’t do it.”

  “I thought he said he blacked out.”

  Ben hesitated. “Well … yes.”

  “If he blacked out and can’t remember anything, how can he know whether he did it or not?”

  “I think a murder would probably stick in his mind.”

  “No, Ben, that’s exactly the sort of thing that wouldn’t stick in his mind. The human psyche has great built-in defense mechanisms. When a memory becomes too unpleasant, the brain shuts it out. That could be the whole cause for this alleged blackout and memory loss. Selective amnesia.”

  This was a possibility that had not yet occurred to him. A very disturbing possibility. “You need to meet him, Christina. He’s very sincere.”

  “I don’t doubt it. He’s probably a wonderful guy, when he’s not shooting people.”

  “Christina …”

  “But the traumatic death of his wife has caused some sort of personality break. And unfortunately, that’s not insanity, temporary or otherwise. That’s just a sad case of the right buttons being pushed to turn someone into a murderer.”

  “In any case, he needs representation.”

  “Right. And since you couldn’t come up with a pardon—”

  “Christina …”

  She flung her arms over her head. “Ben, can you not see how this man is manipulating you? First he wants a pardon. Then he wants to trump up some temporary insanity defense, so he can get away with murder and not even have to do time in the asylum. Then, what do you know, he kills someone and provides a blackout and other circumstances to support a claim of temporary insanity. You’re not his lawyer. You’re his get-out-of-jail-free card!”

  Ben reached forward and took her hand. “Christina, I know you’re trying to protect me.”

  “You’re darn tootin’! Someone’s got to do it! Do you know I’ve just come from a two-hour planning session with Harvey? We’re supposedly working out your reelection campaign. But if you take this case, you can forget about it. Your candidacy is toast.”

  “I don’t believe that. People understand that everyone is entitled to a defense.”

  “Excuse me?” She grabbed him by the lapels. “Have you forgotten where you live? This is the land of capital punishment and everyone-should-be-tried-as-an-adult.”

  “You’re being unduly cynical.”

  “Wait till Channel Six gets wind of this. You’ll be the lead story for a week. ‘Senator Aids Alleged Cop Slayer!’ Do you know what that will do to your approval ratings?”

  “I didn’t get into this profession for approval ratings.”

  Christina threw her arms around him and hugged him tight. “I know that, Ben.” Ben could feel her pulse, feel her heart throbbing. He knew she was worried about him. “And frankly, I couldn’t care less if you run for reelection. I’d probably rather you didn’t. But if you’re going to take a hit of this magnitude, I want it to be for a good reason. Not because some bitter, scheming murderer is using you.”

  “Christina.” He gave her a little squeeze. “I know you don’t think much of my ability to size up people. But I genuinely believe Dennis is sincere. He’s not an evil person. I think the loss of his wife has devastated him—as it would me. He’s just trying to cope.”

  “That’s not the impression I’m getting.”

  “I talked to Mike and got some of the paperwork on the case. Dennis did go to the police department every day for a week. Sometimes twice a day. Trying to get them to open a missing persons file. To investigate his wife’s disappearance. And this Detective Sentz refused. Even after she had been gone a week! Doesn’t that seem strange to you?”

  “I think it’s appalling. But I don’t think it justifies murder. Neither will the jury.”

  “Sentz claimed there was no crime, no evidence of foul play, and Mike tells me that technically he’s right. They have strong criteria that have to be met before they investigate missing persons because it happens so frequently. Plus, she had disappeared once before, many years before, of her own volition. But still … how could any detective resist such a desperate husband? The disappearance of a prominent physician. Someone who worked with cancer patients. Don’t you think most people would break a few rules? I know I would.”

  “You break rules for every sad sack who walks through your doorway, Ben. You can’t use yourself as a benchmark. Maybe Detective Sentz was rigid. Maybe even a little heartless. But at the end of the day, it doesn’t justify murder.”

  “I’m not saying it does. I’m just saying I think it’s odd. Worth investigating. I want you to ask Loving to look into this. He has a lot of cop buddies. See what he can find out about Sentz. And this whole situation.”

  “I think you’re wasting your time. And Loving’s. And mine.”

  “But you haven’t talked to Dennis. Will you at least meet him first? And then if you still don’t believe him …”

  She looked at him expectantly, arms folded. “Yes?” He smiled. “I will seriously consider listening to you.” Christina grabbed her coat and headed toward the door. “I am not amused, Mr. Kincaid. Or comforted. Not a bit.”

  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. “But 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.