Act of Deceit

by Steven Gore

  The judge then focused on Perkins.

  “Please bear in mind, Ms. Perkins, that I’m allowing you to present background information as context, not to make a current argument.”

  Perkins leaned down toward her cocounsel, Doris Tevenian, who handed her a handwritten note. She read it, then looked up at Dr. William Sherwyn sitting in the witness box.

  “Again, Doctor, what was your impression of Mr. Brown’s demeanor when you interviewed him just after his original arrest?”

  “As I recall, the first time I saw him was in the locked ward of the county hospital.”

  Donnally’s peripheral vision caught the motion of Brown curling forward as though resisting a painful memory. Tevenian squeezed his shoulder, trying to calm him, but Brown pulled away and yelled, “Not true. Not true.”

  Judge Nanston slammed her gavel, then pointed at Tevenian.

  “Counsel, control your client.”

  Sherwyn held up his twenty-year-old report toward the reporters in the gallery and the news cameras in the jury box as if to say, The records don’t lie, then continued.

  “Mr. Brown bore all of the signs of bipolar disorder, what we referred to back then as manic-depression. Racing thoughts. Irritability. Grandiose ideation. Agitation. Delusions.”

  Blaine rose.

  “Your Honor, is he describing all the symptoms of bipolar disorder or just the ones the defendant displayed?”

  Nanston glared at Blaine.

  The prosecutor’s hands clenched. He looked to Donnally like a little boy who’d suffered a reprimand from his mother. But his voice stayed even:

  “I’ll withdraw that. Objection. Nonresponsive.”

  “Objection sustained.” Nanston looked at Dr. Sherwyn. “Please let’s limit yourself to the precise symptoms Mr. Brown displayed when you evaluated him.”

  Sherwyn nodded, then said, “He was in a manic state that we would now call bipolar type one.” He scrunched up his nose and smirked at the prosecutor. “All of the above, combined with psychotic episodes.”

  Perkins scanned her legal pad, then flipped back a few pages.

  “Pardon me, Doctor, I should have asked this earlier. How did it happen that you were chosen to evaluate the defendant?”

  “In addition to my private practice, I had a contract with the county to perform these evaluations. A second psychiatrist would be brought in if my conclusions were contested by one side or the other.”

  “Good afternoon, Dr. Sherwyn.”

  Blaine stood at the podium, his cross examination laid out in front of him.

  The swagger in Blaine’s steps from the counsel table had told Donnally that the prosecutor believed he could win his competency argument through Sherwyn’s testimony alone.

  And Donnally hoped so. He didn’t want to be forced to explain under oath how he’d gotten onto Brown’s trail and feared that Mauricio’s original sin might taint the jury’s view of Anna.

  “As I recall,” Blaine said, “the majority of your practice in those years was the treatment of sexually abused children. Is that correct?”

  Sherwyn smiled at Blaine. “It was the basis of your objection to my qualifications during Mr. Brown’s first competency hearing.”

  “Objection,” Perkins said. “Irrelevant.”

  Judge Nanston cast a disapproving look at Blaine.

  “You already lost that battle, Counselor.” Nanston pointed at his list of questions. “Maybe you should move on.”

  Blaine shrugged and made a checkmark on his pad.

  “Dr. Sherwyn, did you medicate the defendant at any time during the period he was undergoing evaluation?”

  Donnally caught the motion of Brown’s head nodding in quick, precise motions.

  “You mean did I attempt to restore him to competency?”

  “Dr. Sherwyn,” Judge Nanston cut in. “It works better if the attorney asks the questions.”

  Sherwyn reddened. To Donnally, he looked like a scuffling football player a referee had caught throwing the second punch.

  “Yes,” Sherwyn said, “I medicated him.”

  “And what was that medication?”

  “Medications, plural. Lithium and an anticonvulsant to address its side effects.”

  “And did these have the result of restoring him to competence?”

  “As you well know, his attorney obtained an order preventing his further involuntary medication.”

  Blaine glanced at Donnally, then at Perkins, and finally back at Sherwyn.

  “Doesn’t that suggest that the defense wanted to ensure that Mr. Brown would remain incompetent so he’d never have to face trial for the murder of Anna Keenan?”

  “Objection!”

  Chapter 16

  “I’m reminding you again, Ms. Perkins, please stop trying to bootstrap his mental history into an argument for his current competency.”

  Studying Perkins from where he sat behind Blaine, Donnally realized that she’d been quicker than the judge and she already had. But he wasn’t sure why.

  “I gave you a great deal of latitude in examining Dr. Sherwyn,” Nanston continued, “but they’re separate issues.”

  Perkins glanced down at Charles Brown sitting next to her at the counsel table, then back up at Nanston.

  “The problem we’re facing is that my client has refused to cooperate with the psychiatrist we hired to evaluate him. We’re in a Catch-22. She can’t even determine whether his refusal to speak to her is an indication of his incompetence.”

  Judge Nanston paused for a moment, then said, “If the only evidence you have is historical, then you may need to forgo this competency hearing altogether, proceed to trial, and put on an insanity defense.”

  Blaine reached his hand behind his back and flashed Donnally a thumbs-up. It seemed to Donnally that it was too soon to celebrate. Perkins hadn’t made partner at SSB by failing to get what she wanted.

  Perkins shook her head. “That’s impossible at this point.”

  “Why?”

  “There’s no way to recreate the defendant’s mental state leading up to the time of the homicide. Very few of his psych records prior to that date still exist.”

  Nanston leaned forward. “Excuse me, Counsel?”

  “The county hospital records have long been purged and just a few moldy fragments remain of the file that traveled with him from Atascadero to the various developmental centers. The only complete report that exists is Dr. Sherwyn’s and it contains almost no history.”

  Nanston looked toward the prosecutor, brows furrowed, eyes accusing.

  “Did you know about this, Mr. Blaine?”

  Blaine rose.

  “We informed the defense as soon as we discovered the records were missing.” He looked at the defense table, then smiled. “At this point I believe that the most complete record of the defendant’s mental history is contained in the public defender’s file Ms. Perkins received when she entered the case.”

  Perkins glared at Blaine, then held up a few handwritten pages and almost unreadable fragments from the Elsa’s Home for Men file Donnally had passed on to Blaine.

  “This is all we have, Counselor.”

  Nanston’s voice turned harsh. “Ms. Perkins, please direct your comments to the court.”

  Perkins looked up at the bench.

  “I’m sorry, Your Honor. But I resent the district attorney’s implication that this burden falls to the defense. After all, it was his office that didn’t bother to preserve these records.”

  “Your Honor,” Blaine said, “I hardly—”

  Nanston held up her palm. “Just a moment, Mr. Blaine.”

  The judge turned her gaze toward her law clerk sitting in the jury box taking notes. He didn’t look up, unaware that all eyes in the courtroom bored down on him.

  “Let’s take a ten-minute recess.”

  Nanston rose and walked down the two steps from the bench and into her chambers, followed by her staff.

  Blaine stepped toward the low barr
ier behind which Donnally stood.

  “What’s she doing?” Donnally asked.

  “I don’t know, but I sure hate it when judges get ideas on their own. They just screw things up and make unnecessary work for both sides.”

  They looked over at Perkins to gauge whether she’d divined what the judge was thinking. She rolled her eyes and walked over.

  “What wheel is the judge trying to reinvent this time?” Perkins asked.

  “I haven’t the slightest idea,” Blaine said, then looked back and forth between Perkins and Donnally. “You two know each other?”

  “No,” Donnally said, reaching out his hand. It annoyed him that she seemed so likable.

  Perkins gave it a firm shake, then asked, “What brought you into this?”

  Donnally shrugged and flipped the question back. “I was wondering the same thing about you.”

  “I’m surprised to be here.” Perkins smiled. “The Albert Hale Foundation’s choice in causes is sometimes rather bizarre.”

  Donnally smiled back. “I take it you got your fee up front?”

  “We gave them a discount rate. Half price. A case this big fulfills most of the firm’s pro bono obligations for the year.” She glanced over at her two legal assistants sitting at the defense table. “And it gives the kids some experience.”

  “I don’t understand why Albert Hale picked Brown,” Donnally said. “I did some research. On crime issues, the foundation is usually on the other side.”

  “I think you may be looking at this backwards. It may not be about Brown being some kind of victim, but”—Perkins glanced at Blaine—“more about embarrassing the prosecution. The theme that runs through most of their causes is government incompetence and weakness.”

  Blaine smirked. “So they try to prove their point by helping a murderer go free? Hale must be nuts.”

  “I know it’s crazy,” Perkins said. “We tried to explain it to him—”

  “To Hale personally?” Blaine asked.

  Perkins shook her head. “I’m not sure anyone has actually seen Hale in years. He put millions of dollars into the foundation, then disappeared from public view.”

  “But you think he remains the invisible hand?”

  Perkins nodded. “The president of the foundation says Hale is on a mission he’s not sure even Hale comprehends.” She looked at Donnally. “Did you see that environmentalist on television the other day, the idiot who said he’d give his life to save a damn tree frog?” She didn’t wait for an answer. “That’s Hale, except his tree frog today is a lunatic.”

  Donnally rotated his thumb toward Brown sitting hunched over and rocking back and forth at the defense table.

  “You sure you want to refer to your client as a lunatic?”

  Perkins smiled again. “As often as I can.” She winked. “Maybe I’ll even convince myself.”

  The bailiff’s “All rise” stifled the courtroom conversations.

  Donnally returned to his seat while Blaine and Perkins walked back to the counsel tables.

  Judge Nanston was on the bench when Donnally looked up.

  Nanston’s gaze shifted back and forth between Perkins and Blaine, then she took off her reading glasses.

  “Ms. Perkins, would you outline for me the materials the prosecutor has given to you in discovery?”

  Perkins squinted up at Nanston. “I’m not sure why you want—”

  “You don’t have to be sure why I want to know.”

  Perkins turned to her cocounsel, Doris Tevenian, who searched through a banker’s box, then handed her a list. Perkins showed it to Blaine, then read off the items.

  “We have the original crime scene reports, witness statements, and forensic analyses. A two-page psych report from Dr. Sherwyn when the defendant was taken for the evaluation on the day of his arrest. We have the reports of the psychiatrists from his first competency hearing—”

  “Do those address his mental history?” Nanston asked.

  “Only tangentially, Your Honor.”

  “Have you contacted the doctors to determine whether they retained the defendant’s records?”

  Perkins looked at Blaine.

  “Both are deceased and their files have been destroyed,” Blaine said.

  “Anything else, Ms. Perkins?”

  Perkins leaned down close to Tevenian and whispered a few words. Tevenian pointed toward the bench. Perkins glanced at Blaine, then straightened up.

  “May we approach, Your Honor?”

  “Maybe we better do this in chambers.”

  Chapter 17

  “What do you mean the public defender lost the rest of their file?” Nanston’s voice rose in anger. “I worked in that office for fourteen years. I know exactly what their procedures are. Files don’t get lost.”

  Blaine had asked Donnally to come along and no one had objected. He leaned against the wall by the door, understanding that he had no more status in the meeting than the coatrack in the corner.

  Perkins shrugged. “That’s what they’re telling me.”

  Nanston searched the county directory on her computer, then reached for the telephone.

  Five minutes later the chief public defender, Izel McAdam, stood before her, alternating between fidgeting with the pendant hanging from a chain around her neck and brushing away strands of gray hair from in front of her eyes.

  Behind her lurked the chief assistant, bearing what Donnally had come to recognize during his years in the criminal justice system as the cowering countenance of a bureaucrat who’d been promoted far beyond his competence.

  The judge looked at the two, her lips thin, her expression communicating bewilderment at how an office in which she’d worked for over a decade and had come to love had fallen into the hands of buffoons.

  “Your Honor,” McAdam said, “our office handles sixty thousand cases a year. More than a million since Mr. Brown was arrested. One case among all of those—”

  “This isn’t a lottery, Izel. This is a homicide.”

  McAdam reddened. “But—”

  Nanston held up her finger, then looked at Blaine.

  “Our file is intact,” Blaine said. “And we’ve turned over everything except our work product.”

  Blaine then glanced over at Donnally as if for confirmation, but he didn’t react. He had no way of knowing what Blaine had handed over to the defense. He only knew what he had given Blaine.

  “I’ll need your assurance that you aren’t using an overly broad definition of what that is,” Nanston said.

  “The only thing we didn’t turn over is some legal research and my own handwritten notes.”

  “What about psych records you collected?”

  “The burden wasn’t on us. It was on the public defender, so we didn’t subpoena any. If the defendant had been found competent to stand trial and had put on an insanity defense then, of course, we would’ve gathered a war chest of them.”

  Nanston looked at McAdam. “When was the last time you’re certain the file was in your possession?”

  McAdam glanced at her chief assistant. It seemed to Donnally as though she was trying to slough off the responsibility onto someone who didn’t seem capable of even serving as a fall guy.

  When he didn’t respond to the judge’s question, McAdam said, “About fifteen years ago. That’s when the defendant was transferred into the civil system and we withdrew from the case.”

  Nanston turned to Blaine. “When was the last time the developmental center submitted a report regarding Mr. Brown’s progress toward the restoration of his competency?”

  “I haven’t looked at the court file,” Blaine said, “but the last report our office received was twelve years ago.”

  Nanston glanced back and forth between Blaine and McAdam, her eyebrows furrowed.

  “You mean no one in your office or in the public defender’s office has paid any attention at all to this case in over a decade?”

  Blaine and McAdam answered with silence.

  N
anston leaned back in her oversized leather chair and gazed out of her window toward the glass and concrete County Administration Building across the street.

  After a long moment, she pointed at her law clerk.

  “Get me Louis Craft v. Superior Court of Orange County and People v. Simpson. It’s a Fourth Appellate District case from the 1970s.”

  She then pushed herself to her feet.

  “Let’s go back.”

  Donnally followed Blaine into the courtroom. The DA was shaking his head and biting his lower lip as he walked Donnally to his seat, then faced him across the low barrier.

  “We’re in big trouble,” Blaine said in a tense whisper.

  “How do you figure?”

  The bailiff again. “The court will come to order.”

  Blaine turned around and took two steps, stopping behind his chair, his shoulders slumping, his head lowered as if facing his executioner.

  Nanston scanned the reporters in the gallery and the news video cameras in the jury box as if to say, You folks will want to get this down. Her eyes then bored down on Blaine.

  “As the loss of evidence over the years may have impaired the ability of the defendant to put on a defense, the court is willing to entertain a defense motion to dismiss People v. Brown on speedy trial grounds.”

  Donnally felt his body rock backward.

  Blaine raised his hands in front of his chest as if to block a blow.

  “Just a second, Your Honor—”

  Donnally leaned forward, trying to hear the rest of the prosecutor’s complaint, but he couldn’t make it out over the gasps and confused chatter among reporters, each asking the other if the judge had said what they thought she had.

  Nanston struck her gavel once and the room fell silent.

  “This is not the time, Mr. Blaine.” She looked back and forth between him and Perkins. “And this isn’t brain surgery. I want all the briefing done in a week. Work out the schedule between you. Court is adjourned.”

  Chapter 18

  Blaine threw his file down on his desk and kicked his trash can across the room, smashing it into a bookcase. It bounced, then rolled in a semicircle on the linoleum floor.