“Ms. Bernard.” Judge Bonin raised his shoulders, dropped them again, and straightened his back. He leaned forward over the bench, arching his eyebrows. At least ten seconds ticked by. “Ms. Bernard,” he repeated, “you have been the attorney for Mr. Richard for over six months. Are you telling me you have not yet gotten around to talking to your client’s family?”
“Your honor, I have talked with my client’s mother on several occasions.” A quick glance to our table. “I’m not revealing anything to the prosecution when I say she probably will be unable to testify at trial. She is in very poor health.”
Tom leaned a few inches closer to me. “Poor health? Every cell in her brain is pickled past function. Remind me to tell you about when the detectives went a-callin’ on Mommy Dearest.”
“And other members of his family, Ms. Bernard?”
“He has a sister, your honor. Beverly Dubois. My investigator learned of Ms. Dubois only recently, and so far she’s been reluctant to talk with us. My client and his sister are estranged. But if I had more time—”
“Does the sister live within the State of Louisiana, Ms. Bernard?”
“Yes, sir. She actually lives in this judicial district, in St. Martin Parish.”
Judge Bonin put his hand over the little microphone on the bench and looked down to the minute clerk. George, demonstrating his Marine Corps past, snapped to attention and wiped all expression from his face. He handed the judge a thick file, the most recent of the four-volume court record, open to a page near the end.
The judge lowered his reading glasses. “I am looking at the subpoenas you have requested for the trial, Ms. Bernard, and I do not see one for a Beverly Dubois.”
“No, sir. I haven’t yet asked for a subpoena.”
“No? A simple request from you will command her attendance at court.”
“Your honor, I would like to prepare her for the appearance of a uniform at her door.”
“Oh, I see. How very considerate of you.” The judge took a deep breath and glared down at Sarah. “You cannot be serious, counselor. You are asking the court to upset the work of many months so that a possible witness will not be perturbed by a visitor?”
“That’s not all, sir. I need time to talk with Mrs. Dubois, to go over her testimony.”
Judge Bonin’s chin shot up. “Oh, now I understand, Ms. Bernard. You’re telling me you wish to have a continuance so you can woodshed your witness?”
Tom penned an exclamation point on my legal pad. I added a smiley face.
“No, sir.” Sarah wasn’t flustered. “My client has given me details of his childhood that reveal significant mitigation evidence. Adverse Childhood Experience, the psychologists call it, known to them as ACE. My client may or may not take the stand in his defense—the decision is his constitutional prerogative—but his sister is a critical, indispensable witness to bring evidence of his childhood before the jury. A defendant has a right to a defense. I need my client’s sister.”
Judge Bonin’s mouth stretched wide—a smirk.
“And if you have an opportunity to talk to the defendant’s sister, and she tells you about his difficult childhood, you will no doubt file another motion saying you need further time to bring expert witnesses to tell us how these childhood events warped his psyche. Correct?” Judge Bonin slapped down the pen he held in his hand. “There will be no end to your motions. Yes, you would like to speak to your client’s sister before trial, but that, counselor, is your desire, not your right. Unless you point out some power I do not know I have, I cannot force her to speak to the attorney for her brother.”
Judge Bonin leaned back in his chair, freed of the initial irritation that had been rooted in the possibility Sarah might actually have good reason for her motion. An easy call.
“Motion denied. The court will be in recess for fifteen minutes.”
Next to me, Tom smiled. I had no wish to leave the courtroom for a cup of the battery acid coffee they brewed in the lawyers’ lounge.
“So tell me about Richard’s mom, Tom. I saw a reference to a visit near the beginning of Deuce’s investigation notebook. He said the mom didn’t know where her son Remmy might be.”
“Ah, ha! Buddy told me the story. He can ham it up when he gets going.”
I could believe that, and that he could be mean.
“When Richard was released after serving time with us on the drug charge, he listed his mother, Sylvia Tolbert, as next of kin. He gave her address as Rocksy Courts on West Main.”
“I know the place. Circa 1950 yellow brick, detached units that have seen better days.”
“You got it. Buddy said they found the manager in a lawn chair facing the traffic on West Main, sunning his bare chest, chewing tobacco, aiming his spittle into the gutter.”
“Yuk!”
“The guy told the detectives the lady had moved into the Housing Authority complex across the tracks. Buddy told Deuce to take off his starched white shirt, the T-shirt he had on underneath being more appropriate garb for a visit to the projects. I guess Buddy was already properly dressed for the call.”
Always.
“The detectives parked their unit close to the building marked Office and set a club on the wheel. They flashed their ID, and the manager said Sylvia Tolbert lived in Unit 54, on the ground floor, over on the left. They knocked; no answer. They knocked louder and heard scuffling. The rubber tip of a walking stick parted a tattered curtain hanging in a window. Buddy identified himself to the pale rheumy eye peeking through the dirty glass. More scuffling and the sound of a bolt sliding across the door. The door opened in, revealing a small grey-headed figure hunched in a wheelchair, one spindly leg in a cotton stocking protruding from below the hem of a flowery housedress. Just one leg, Buddy said, demonstrating by imitating a flamingo. Wisps of greasy grey hair sprang from the bare spot on top of her head, ‘looking like they didn’t want to stay any longer than they had to on that speckled brown egg,’ as he put it. They stepped into ripe air.”
“Yuk,” I said again.
“Buddy explained they were trying to locate her son, Remmy. The woman raised her eyes; her blue-white lips stretched wide. ‘Remmy, Remmy, I remember Remmy. I haven’t seen him in ages. How’s he doin’? You didn’t happen to bring me any cigarettes, did you?’ The old lady wheezed her question without the usual pause that comes with a change of topic. ‘The doctor says I can’t have no more, but what the hell do I care.’”
Tom found this story hilariously funny. I didn’t. Poor woman.
“Since an ashtray overflowing with butts sat on a table next to the greasy plaid sofa, Buddy figured he wouldn’t be leading the woman into any bad habits she didn’t have already. He took a pack from his rolled sleeve, pulled out a cigarette, and gave it to her. With the lit cigarette quivering in her bony fingers, Mrs. Tolbert said she hadn’t seen Remmy in ages. When asked about his friends or other family, the old lady just shook her head. Buddy asked about Remmy’s father. The old lady gazed off into the middle distance before answering. ‘Maybe that was Tolbert. I’m not too sure. No, Tuffy. Tuffy Johnson. Tuffy was Remmy’s father. He’s dead now.’”
Adverse Childhood Experience for sure. Mom wasn’t even sure who fathered her son.
“Buddy asked where the family had lived, but she wouldn’t answer until she’d dragged the cigarette down to a stub. Belle River, she said. On the water. Other children? Yeah. A daughter Bev. She took care of the paperwork so the front office probably knew how to get hold of her. ‘I once had some more kids, but the State took ‘em away long ago,’ she said.”
Remmy didn’t get much of a start in life.
“Without any warning, Buddy said, she dropped her head, slipped low in her wheelchair, and curved her spine into a question mark, her one leg poking out until it touched his shoe. Her chin hit her chest and bounced, startling her awake. ‘Holy shit!’ she cried. She raised one hand and flipped them the middle finger. ‘Guys,’ she said, ‘the big nurse’ll be comin’ to make me
breathe into the fuckin’ machine. I gotta get rest.’ Her head dropped again. Down for the count.
“Buddy said Deuce totally panicked. He thought they’d killed her with the cigarette! ‘Are you OK?’ he shouted. Face close, he just about choked on her stink. The old lady opened one eye and cackled like the Wicked Witch of the West. ‘Shee-it, man. I’m just fuckin’ wonderful. Fuck off, nigger.’ She turned to Buddy and told him he could come back sometime with more cigarettes, and she passed out again.”
Now I laughed along with Tom. I couldn’t help it. I could just imagine Deuce in a cold sweat, sweetheart that he seemed to be, scared to death they’d killed the woman. Sarah would have a hell of a problem putting this witness on the stand. Maybe they could roll her wheelchair into the courtroom to show Remmy had one relative willing to claim him, and hope to hell she didn’t open her mouth.
“Buddy said they got Bev’s address from the super—a trailer park in Anse Noire, in the Basin—but no one came to the door. At this point in the investigation they got the anonymous phone call telling them Richard was in Birmingham. They took off.”
* * *
I stayed at Tom’s side in the courtroom for the rest of the day. At one point he leaned toward me and pointed out Mr. Strait sitting in the back. The big DA, our boss, had come to watch.
The next rulings went better for Sarah. Judge Bonin agreed with her that requiring a “stun belt” under the defendant’s shirt to control his behavior during trial wouldn’t be warranted. He had no criminal history of violence and had given no trouble during his incarceration. And Sarah persuaded Judge Bonin to exclude from the jury’s view both a poster-sized photograph of PawPaw’s body on the Delcambre dock and a grossly enlarged picture of Mrs. Falgout’s face taken in the emergency room the day of the attack. Unduly gruesome, the judge ruled. Not a major defeat for the prosecution. The jury would get to hold and examine smaller photographs, and these would give them an up-close-and-personal look at the lopsided reconstruction of her face, including the flap of withered skin covering her left eye socket.
Then came the Daubert hearings, the pretrial screening of expert witnesses required to protect a jury from being unduly influenced by so-called junk science presented just to hoodwink lay jurors. I’d done a lot of work studying the reports Sarah had to give us before trial. Now she succeeded in getting the judge to accept a couple of her proposed expert witnesses—a clinical psychologist and a sociologist. The Judge also ruled that expert testimony about post-traumatic stress disorder and the after-effects of head trauma would be permitted. He was persuaded by a faded newspaper clipping about a car-train collision in which Tuffy Johnson, the man Remmy’s mother thought was his father, had been killed, and the testimony of a neighbor from Belle River who had visited three-year-old Remmy in the hospital after the accident. Remmy might well have suffered PTSD from the experience, he ruled.
“No sweat, Mandy,” Tom said. “The defense has to be allowed some expert testimony. I’m saving up to go after the pharmacologist. Anyway, Mrs. Falgout on the stand will knock all this out of the jurors’ minds.”
I thought better of once more telling Tom about my concern. Lydia Falgout couldn’t help us one bit until the penalty phase.
After lunch, Sarah put on Dr. Jesus Martino, the expert Tom had in his sights. Dark hair streaked with gray, a ready smile, strong features, and enough lines in his face for maturity without looking like an old geezer. He had jury appeal. Sarah took him through his education and his present positions. Just hearing the titles of his publications impressed me.
Tom stood to begin the cross-examination.
“Dr. Martino, defense counsel has introduced you to this court as an expert on the effects of the use of cocaine in combination with consumption of alcohol. Correct?”
“Yes, sir.”
“In particular, the effects of cocaethylene, which you say is a third compound formed by use of the two drugs together, more lethal than either one of them individually. Right?”
“Yes, sir.”
“And I understand you are asking the judge to accept you as an expert qualified to give opinion evidence during the penalty phase of the trial, after they have found the defendant guilty of first degree murder of Pierre Boudreaux in the first or guilt phase. Right?”
“Perhaps the better way to phrase that, sir, is if they have found him guilty.”
Score one for the expert. Tom had an experienced witness on his hands.
“You propose to opine to the jury that alcohol and cocaine, in combination, induced Mr. Richard to acts of violence. Correct?”
“Yes.”
“I have several questions to ask you because, of course, I do not believe the judge should allow you to do so. Do you understand?”
“Of course I do. You do your job and I do mine.”
Tom stood at the podium holding my outline of the topics he needed to cover. I hadn’t written out every question word for word but made a list of just a few on each of the requirements for qualification of an expert. Once Tom heard the response given by the witness, he’d follow his instincts.
“Dr. Martino, are you a medical doctor?” Tom asked.
“No, sir. I am not.”
“You just have a PhD.” Tom gave the word just a tad of emphasis. “Pharmacology, I understand.”
“Yes, sir.”
“And from a prestigious university, it appears?”
“I think so. The University of Miami.”
“And you have completed the many detailed drug studies that Ms. Bernard has so carefully recited to the court?”
“Yes, sir.”
Good job, Tom. Begin with a compliment to give the witness a false feeling of comfort, then go in for the kill. I remembered learning the strategy in Trial Advocacy.
“Have you been admitted as an expert in courts of law, sir?”
“Yes, I have.”
“In what field have you been admitted as an expert?”
“In pharmacology.”
“The study of drugs?”
“Yes, sir.”
“But you are not a neurologist, nor a medical doctor in any specialty that deals with the effects of alcohol, cocaine or other drugs on the human brain, correct?”
“I am not a medical doctor.”
“So all of your conclusions are based upon the qualities of known drugs and observations of behaviors that result from the use of these drugs rather than medical studies of the brain itself. Correct?”
“I wouldn’t say that, sir. The scientific knowledge of a pharmacologist is gained from knowledge about the drugs themselves and their effects, including their effects on the brain.”
“But you determine those effects by looking at human behaviors, not from studies of the brain itself. Not from medical studies. Correct?”
“I wouldn’t say that. I am familiar with the studies.”
“Ah. Familiar with the studies of others, but not yours. You are not presenting yourself to this court as an expert in that field. You are not attempting to be qualified in neurology. Correct?
“Right, sir. You could say that.”
“So we are in agreement that you are an expert in drugs. Is cocaethylene generally recognized as a distinct drug that has certain effects on the human brain?”
“Cocaethylene is the compound formed by cocaine and alcohol taken together and this compound has effects on the human brain. Cocaethylene is not itself a drug.”
“So-o, the answer to the question is no?”
“You could say that.”
“I do.”
Sarah started to rise to make an objection, but she sat back down.
Tom looked at my memo before asking his next question. Good. He was making use of my outline.
“Let me ask you, sir, is your opinion about the properties and effects of cocaethylene a generally recognized scientific finding that has been reviewed in the scholarly journals, tested by peer review, presented and accepted in courts of law?”
“I wo
uld have to answer that question by saying my group has been conducting the cutting edge research in the field. We are the pioneers in this area of study.”
“Ah, yes. Again, your answer is no. Cocaethylene has not been the subject of peer-reviewed scholarly studies. This is a new science.”
“You could say that.”
“I do. And one not yet universally accepted in courts of law.”
Tom looked up at Judge Bonin for perhaps only the second time in his examination of the witness. Knowing his judge, he had moved quickly through his questions.
“Turning to another area of your qualifications, Dr. Martino, your report describes the quantities of alcohol and cocaine you say were consumed by the defendant prior to the events that bring us to his trial for the murder of Pierre Boudreaux. How did you come by this information, sir? About the quantities of drugs the defendant consumed?”
“From the defendant himself.”
“So all you know about what the defendant consumed you learned from him?”
“Yes, sir. I can’t think of a better source. The defendant is in the best position to know what he consumed that day.”
“Ah. Unless it was in his interests to shade the information to his benefit. Wouldn’t you agree with me that the information did not come from what we might call an unbiased and impartial source?”
“Objection.” Sarah stood. “Your honor, counsel is arguing with the witness.”
“Overruled. Continue, Mr. Barnett.”
We had the judge with us.
“Thank you, your honor. Dr. Martino, let me ask you this. If the defendant’s brain was so impaired by this special compound—cocaethylene you call it—would he still be an accurate reporter of his consumption of alcohol and drugs during that period? Or, in view of what you consider considerable impairment, would he be somewhat confused about such details?”
“I think Mr. Richard was an accurate reporter of his condition.”
“You do? And on what do you base that opinion, Dr. Martino?”
“Mr. Richard was cooperative throughout my examination. He appeared to be giving full effort. As a check on my observations, I administered Green’s Word Memory Test.”
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