by D. W. Buffa
I tried to save it. “That is the definition of murder. Thank you, Dr. Fox,” I said as I sat down.
Fox had been on the stand answering my questions for three hours; in fifteen minutes Loescher managed to undo much of what I had managed to accomplish. Her first question played off my last.
“In other words, Dr. Fox, there are circumstances in which the defendant would be capable of an act of violence, correct?”
Fox raised his eyebrows the way he did at the end of every question, a signal that he was about to answer. “There are circumstances in which all of us are capable of acts of violence.”
With her arms folded in front of her, Loescher moved closer to the witness stand, a slightly amused expression on her mouth.
“Self-defense, for example? To protect himself from harm—or what he perceived to be a threat of harm?”
The eyebrows went up again. “Yes, of course. As I say—”
“So it would be your opinion, would it not, that if the defendant was somewhere he should not have been—a parking structure, for example—and were surprised there, thought that someone was going to harm him, he could in those circumstances commit an act of violence?”
“It’s possible, but—”
“According to your testimony,” she went on before he could finish, “the defendant was subjected to physical torture, sexual abuse, things worse than any of us have ever had to imagine, isn’t that correct?”
“Yes, there is no question—”
“And isn’t it also true, Dr. Fox, that people who are abused as children frequently engage in acts of abuse themselves? And isn’t it also true, Dr. Fox, that children who are subjected to the kind of violence you’ve described here today become not only capable of violence but turn out to be almost incapable of anything else?”
Fox held his ground. “Not this kind of violence,” he replied, sitting straight up. He shuddered with disgust. “No, that isn’t the way someone reacts to that kind of torture. Besides, you forget—”
“Dr. Fox, let me ask you—”
“Objection, your honor.” I was on my feet, pointing angrily at Loescher. “She didn’t let the witness finish his answer.”
Bingham looked at Loescher. Loescher looked at the witness.
The witness looked at Bingham. “You may finish what you started to say,” said the judge.
“I was going to say two things. First, the reaction to the kind of long-term, systematic torture to which the defendant was subjected is fear, not aggression. Second, his feelings of weakness and vulnerability were intensified by his isolation. You have to remember: This is someone who has never been to school, never been around other children, around other people except the ones who abused him.”
Cardinal Richelieu said that give him any seven sentences a man had ever uttered and he could have him condemned; Loescher could have done it with five. She took Fox’s answer as if it was what she had wanted to hear all along.
“I see,” she said, raising her eyebrows in turn. “He was isolated, ignorant and vulnerable and afraid. Correct?”
“Yes,” he replied without hesitation. “Exactly.”
Peering down at her midnight blue high heel shoes, that same irritating amused expression returned to her mouth. “Exactly,” she repeated, savoring the word as if it had a value only she understood. “And when you say vulnerable, you mean, don’t you, someone easily taken advantage of, someone without the ability to distinguish between those who mean him well and those who mean him ill?”
“Yes, absolutely.”
She looked down again and repeated this word as well. “And because he was never around other children, because he’s never been around other people, he would be more eager to please someone he thought might be a friend, someone he thought he could trust, someone he thought wouldn’t hurt him?”
“Yes, without question.”
“Without question,” she repeated, moving one shoe slightly ahead of the other. “So, if Mr. Antonelli is right—if there is someone behind both the murder of Judge Jeffries and Judge Griswald, someone able to convince others to do the killing for him—someone as vulnerable, as susceptible to suggestion as the defendant would be the perfect candidate, would he not?”
“No, you don’t—”
Whirling away, she jabbed her finger toward the defendant and talked right over the witness. “He could have killed Judge Griswald because he was caught doing something he shouldn’t have done, or he could have killed him because someone told him to, or he could have killed him for a thousand other strange reasons and there is nothing in your training, your experience, or your psy-chological evaluation of the defendant that can tell us otherwise, is there?” she demanded.
Fox waited until he was sure she was done. “I’m not sure Danny could kill anyone, even in self-defense.”
She rounded on him, staring hard as she drew herself up to her full height. “You didn’t say that at the beginning. Would you like to have the court reporter read back your testimony—the part where you said there were circumstances in which everyone is capable of violence?”
” ‘Acts of violence,’ ” I corrected without rising from my chair.
Loescher looked at me, a blank expression on her face, then looked up at the bench.
“An ‘act of violence’ suggests a single, perhaps unique, event;
‘capable of violence’ suggests a disposition. Dr. Fox said ‘acts of violence,’ your honor. Perhaps Ms. Loescher would like the court reporter to read it back to her,” I said, parrying her false smile with one of my own.
She had made her point, and I had made mine; she moved immediately to something else. “You never saw John Smith—the defendant—until some time after he was brought into custody, correct?”
“Yes, that’s correct.”
“When you first saw him, he was clean-shaven, with short hair like he has now, wearing clean clothing, correct?”
“Yes.”
“Are you aware of what he looked like when he was first brought in? Are you aware that he had long greasy hair, a long, filthy beard, with rags for clothing and cardboard stuffed into his shoes because the soles were falling off?”
“That’s my understanding.”
“Is it also your understanding that his body was covered with vermin, that there was lice in his hair, as well as other places; that he was so infested, so filthy, that his clothes had to be cut off and he had to be deloused—fumigated? Isn’t it true, Dr. Fox, that the defendant—who sits here today in a navy blue suit and tie, looking like a young professional—was living like an animal?”
Fox nodded sadly. “That’s my understanding, yes.”
“Like an animal,” she repeated, casting a sidelong glance toward the jury as she returned to her place at the counsel table.
It was one of the most effective cross-examinations I had ever seen, and it changed everything. I had planned to call the defendant as the next witness for the defense. It was all supposed to be very straightforward. The psychologist would provide a sketch of what Danny’s life had been like, and then, with Danny on the stand, the jurors could see for themselves how timid and harmless he really was and how eager to please. But Loescher had used the words of my own witness to show that precisely that vulnerability, that eagerness to please, could have led him to kill in exactly the way I had suggested. She had done to me what I had tried to do to her: taken the strength of my case and turned it into what now seemed a weakness. She was good—far better than I had imagined—and I was in trouble, serious trouble. The only thing I was sure of was that I could not afford to let her subject Danny to that kind of withering cross-examination. If I called him at all, it would be at the very end, the last witness for the defense, and only then if I had no other choice.
“Your honor,” I said, rising from my chair as I weighed all this in my mind, “the defense calls Asa Bartram.”
Wearing an expensively tailored double-breasted gray pin-stripe suit, Jonah Micronitis stepped inside t
he courtroom, took a careful look around, and then went back outside. A moment later, the doors opened again and with Micronitis right behind him, Asa Bartram started up the aisle. Micronitis caught my eye, nodded, and pushed his way into a seat in the first row. He turned around and faced the back, his small head moving from side to side, keeping a watch on everyone, ready for the first sign of trouble.
“Mr. Bartram,” I began, “you’ve been a lawyer for how many years?”
He cocked his head and tugged on a shank of his snow white hair. A good-natured smile creased his craggy face and his pale blue eyes twinkled. “More years than I want to remember.”
“More than forty?”
“Yes.”
“What kind of law have you practiced during that time: civil or criminal?”
“Mainly civil.”
“When you say civil, do you mean civil litigation, personal injury cases, that sort of thing?” I asked as I stood behind the counsel table.
“No, not really. I did some of that early on, but my practice is more of what you might call business law: real estate, com-mercial transactions.”
“And when you said ‘mainly civil’ did you mean to imply that you also did some criminal work?”
“Only at the very beginning. When you’re just starting out,”
he said with a nostalgic smile, “you pretty much do everything.”
I edged my way toward the front of the table. “When is the last time you took a case—civil or criminal—to trial?”
“As I say, my practice is largely a business—”
“The last time?” I insisted.
He really did not know. “Thirty years or so, I guess.”
“When was the last time you handled a criminal case—not whether you took it to trial, Mr. Bartram—the last time you represented someone charged with a crime?”
He shrugged. “I suppose about the same: thirty years or so.”
I took a step toward him. “But didn’t you represent Elliott Winston twelve years ago on a charge of attempted murder?”
He planted both feet on the floor, wrapped each of his large, heavily veined hands around the ends of the arms of the chair, and wagged his head. “No, that’s not exactly right. I only agreed to represent him for the purpose of a hearing. I never agreed to be his lawyer.”
I took another step closer. “I don’t think I understand. You represented him at a hearing, but you did not agree to be his lawyer?”
Bending forward, he laced his fingers together and pressed his thumbs. “There wasn’t going to be anything else, just the hearing. Everybody knew he was going to be sent to the state hospital. The hearing was just a formality, but there had to be one and he had to have a lawyer. I did it as a favor.”
“A favor to Elliott Winston?”
“No,” he replied, shaking his head.
“A favor to his wife?”
He looked at me, beginning for the first time to suspect that I was after something beyond the mere fact that Elliott Winston had been declared insane in a duly constituted judicial proceeding.
“No, not his wife.”
“A favor to Calvin Jeffries?” I asked, one foot on the step below the witness stand. “You did it as a favor to the judge—because he asked you to—isn’t that true?”
“Yes. Calvin—I mean Judge Jeffries—asked me to.”
“He wasn’t the judge in the case though, was he?”
“No, he wasn’t.”
“Do you remember who the judge was in that case?”
“Yes. Quincy Griswald.”
“At the time this happened, Calvin Jeffries was the presiding circuit court judge, wasn’t he?”
“Yes.”
“And in those days, the office of the presiding circuit court judge was in charge of assigning cases, wasn’t it?”
“Yes, I believe that was how it was done then.”
“In other words, the fact that Judge Griswald and not some other judge had the case was no accident, was it?”
He looked at me, wondering how far I was going to go.
“Let’s save ourselves some time, Mr. Bartram. This case—this hearing on the question of whether Elliott Winston was insane so a plea of guilty but insane could be admitted—this case was fixed, wasn’t it?”
“Fixed?” he blustered. “No, of course not! What do you mean—
fixed?”
“You say you did this as a favor to Calvin Jeffries. Why did he ask you, instead of any one of a hundred other attorneys, any one of whom by your own admission was far more experienced in the criminal law? Why do you think he did that? Because he knew he could always trust you—his former law partner and the man who continued to take care of his financial dealings—to do what you were asked without asking any questions?”
Before he could answer, Loescher objected: “Your honor, he’s attacking his own witness.”
“Let me rephrase the question,” I said without taking my eyes off the witness. “When you were asked to do this, what reason were you given?”
“Calvin—Judge Jeffries—told me that there was no question Winston had gone out of his mind, and that he needed to be in the hospital where he could get help.”
“And just why was he so concerned with what might happen to Elliott Winston as opposed to any other defendant?”
“Winston was a young lawyer, and Judge Jeffries had become quite fond of him.”
“Fond of his wife, too, wasn’t he?”
“Fond of both of them,” he replied.
Taking a step back, I looked over at the jury. “She eventually divorced Elliott Winston and married him, didn’t she?”
“Yes.”
“As a matter of fact, she and Judge Jeffries had been having an affair for some time before Elliott Winston was accused of a crime, weren’t they?”
“I don’t know,” he replied with a lawyer’s caution.
“As a matter of fact, they—Judge Jeffries and Elliott Winston’s wife—gave him every reason to suspect she was having an affair, but having it with someone else, didn’t they?”
“I don’t know anything about that,” he insisted.
“As a matter of fact,” I went on, my eyes still on the jury, “they made him so convinced of it—drove him so crazy with the thought of it—that he was charged with attempting to murder the man they made him think she was sleeping with, didn’t they?”
“I don’t know why he thought what he did.”
I stopped and turned around until we were face-to-face. “But you must have some idea. There must have been something about it in the psychiatric report, some explanation of why he did what he did?”
Asa wearily shook his head. “It was a long time ago.”
“So long ago that you’ve forgotten the name of the victim?
That certainly must have been mentioned in the report.”
“No,” he replied with a faint smile. “I certainly remember that.”
“Tell us who it was,” I said, turning back to the jury. “Who did Elliott Winston think was sleeping with his wife? Who did Elliott Winston attempt to murder?”
“You. Joseph Antonelli. You’re the one he tried to kill.”
“Yes,” I said, wheeling around. “That’s what he was accused of: attempted murder. Would it surprise you to know I never thought he really intended to kill me? I don’t think he would have fired the gun if I hadn’t tried to take it away from him. But tell us, Mr. Bartram—because you read it—what did the psychiatric report say about that? What did it say about what he thought he was doing, what he really intended to do?”
Asa turned up the palms of his hands. “As I told you: It was such a long time ago. I’m sorry, but I just don’t remember now.”
I walked quickly to the counsel table, opened a file folder, and ran my finger down a typed list.
“Would the clerk please hand the witness what has been marked defense exhibit 109?”
The clerk found the exhibit, a large manila envelope, and brought it to t
he witness.
“Would you please open that and remove the file folder inside.” When he had done what I asked, he looked up. “Now would you open the file and tell us what it is.”
It was the court file in the case of State v. Elliott Winston, the file that contained the official record of the proceedings that led to the official determination that Elliott Winston was insane and should be committed to the state hospital for a period not to exceed the maximum sentence which he could have been made to serve in the state prison.
“Would you please take out of the file the psychiatric report which formed the basis for the court’s finding.”
Asa fumbled through the documents until he found it. He held up another, smaller, manila envelope. “It’s under seal.”
“Open it.”
“Your honor!” Loescher protested. “It’s under seal. It can’t be opened.”
“It can be opened if the court so orders, your honor. And there is no reason not to. This is a murder trial, and whether or not that report should have been under seal in the first place, keeping it there doesn’t serve to protect the vital interests of anyone.”
Bingham considered it for a moment and then agreed.
“Go ahead,” I told Asa. “Open it.”
He hesitated, and he kept hesitating. “Here,” I said, ripping it out of his hand. I tore it open and pulled out a typed document, stapled at the corner. I shoved it in front of his face. “Read it.
Read it out loud. Read the report that was used to find Elliott Winston insane.”
He would not look at it, and I read it for him. It was the daily court docket, dated the day Elliott Winston had his hearing. There had never been a psychiatric report. There had never been a psychiatric evaluation. Elliott Winston had been adjudicated insane for no other reason than because Calvin Jeffries had wanted it that way.
Twenty-nine
_______
What would you have done if there had been a psychiatric evaluation?” Howard Flynn wanted to know, surprised and a little troubled by the chance I had taken. “You couldn’t have known they never did one.”