“But we don’t know how reliable it is,” Tolletson protested.
“That’s something he can offer evidence on,” I said. “Besides which, this is medical testimony. Kelly-Frye does not apply to expert medical testimony, as held in People v. Rowland.”
I had done my homework. Judge Wegland, taken aback, reached for a California evidence book and started leafing through the pages.
Almost five minutes went by. People shifted in their seats. One of the male jurors yawned.
Finally, Judge Wegland took off her glasses and said, “I have to agree with Mr. Denney on this one. The objection is overruled.”
For a second I wasn’t sure I heard right. Had I actually won a ruling? When I saw Tolletson’s dark expression, I knew. I really had won, and on a crucial point.
Now I was free to have Dr. Hendrick Brown tell the jury about Howie’s examination, which he proceeded to do. I took my time with it, allowing the full impact to be felt by the jury.
At the end of the testimony, I asked Brown if he had an opinion about Howie’s mental state at the time of the murder.
“I do. It is my opinion that Mr. Patino did not harbor any malice regarding the victim. He was delusional and completely removed mentally from the events that transpired.”
Thanking Dr. Brown, I returned to my seat.
Tolletson wasted no time. “Dr. Brown, as a competent psychiatrist, you have to admit that your field is not one known for scientific precision, don’t you?”
“It is precise in its own way.”
“Well, you don’t have any instruments to measure mental capacity, do you?”
“We can now get a picture of the brain through magnetic resonance imaging, if that’s what you mean.”
Impatience was evident in Tolletson’s voice. “Did you use an MRI to examine the defendant, Dr. Brown?”
“No, I did not.”
“So you didn’t measure his brain in any way, did you?”
“No, sir.”
“In fact, you have no instruments, even including an MRI, that give you measurable data about mental state. Isn’t that true?”
“Psychiatry is a distinct science.”
“Please answer my question, Doctor. You cannot measure mental state with any instrument, can you?”
“That is correct.”
“You can’t observe a mental disorder in the same way you can observe, say, a cut or scratch, can you?”
“No, you cannot.”
“It’s all opinion, isn’t it?”
Sitting up a little, Brown said, “Opinion based on training and experience.”
“But isn’t it also true, Dr. Brown, that opinions differ widely in the field of psychiatry?”
“I don’t think I’d agree with your use of the word ‘widely.’”
At that, Tolletson spun around like he’d been slapped on the back of the head. “Then you’re telling the jury that everybody in psychiatry agrees?”
“No, that’s not what I’m saying.” Brown was growing defiant.
“Then what are you saying, Doctor?”
“All I’m saying, Mr. Tolletson, is that psychiatry is like any other discipline. The more experience one has, the better one is able to make a diagnosis.”
“I see.” Tolletson walked to his counsel table and picked up a book. He held it in his hand for a moment, so the jury could see it, then placed it back on the table. “You do recognize, do you not, that there is quite a body of respectable authority in this country that would not agree with your conclusion?”
“I recognize there is some room for disagreement, yes.”
“And do you recognize, sir, that there are some experts out there who would say you were wrong?”
“Perhaps.”
“In fact, some would say you were way off base?”
“That would be their opinion.”
“As experts.”
“Perhaps.”
My witness was hedging now, not a good thing. Tolletson was doing a masterful job in this area of expert cross-examination. He swung a mean ax. I could only hope that after he was finished, Dr. Hendrick Brown wouldn’t be chopped to pieces.
“Let’s talk about this, Doctor,” Tolletson continued. “Are you aware that there are at least eight experts who have criticized, in books or articles, the very standards you relied upon in this case?”
“Well, there are also others who agree with it.”
“That’s not my question. I’m talking about eight, at least eight, highly respected authorities in the field who would call you wrong on this.”
“I don’t know the number.”
“Let me help you. Are you familiar with Dr. Elizabeth Trevisano?”
“Yes, I am.”
“Would you agree that Dr. Trevisano has abundant experience in the field of psychiatry?”
“Yes.”
“She would be considered one of the leaders in the field of mental disorders, would she not?”
Brown nodded. “I would agree with that.”
Tolletson again picked up the book that had been on his table. “And are you familiar with her book Diminished Capacity and Mental Defenses?”
“I’ve heard of the book.”
“Ever read it?”
“No, I can’t say I have.”
“Would it shock you to learn that Dr. Trevisano disapproves of the very method you used to examine the defendant in this case?”
“Nothing shocks me anymore, Mr. Tolletson.”
“If she called the method ‘quackery,’ would that shock you?”
“That would be her opinion.”
“Ever heard of Dr. John Carlino?”
“Yes.”
“Ever read any of his articles?”
“Some, I think.”
“He disagrees with you, doesn’t he?”
“He may, I don’t know for sure.”
“He’s an expert, isn’t he?”
“Certainly.”
“Dr. David Caldicott?”
“I know of him.”
“Dr. Helen Meyer?”
“Yes.”
“Both disagree with you, don’t they?”
Brown scowled now, and that was in stark contrast to the easy-going demeanor he had exhibited before. Part of Tolletson strategy, I’m sure, was to get Brown’s goat, make him lose his cool, the better to show him as biased. It was about to work.
“Mr. Tolletson,” Brown said, “perhaps I can save us some time. You can go out and find people who disagree with anybody on anything. Eventually a consensus emerges. I maintain I’m perfectly in line with the accepted wisdom in this field.”
“Is that right?”
“Yes.”
“And how many books have you written, Dr. Brown?”
Brown paused and glared at Tolletson. I could see in the doctor’s eyes a glint of the young street fighter he had been in his youth. “I work in the field with people. I’m not an academic.”
“So your answer is, none?”
“That’s correct.”
“Have you written any articles in any leading psychiatric -journals?”
“No, sir. But that is not my focus.”
“Well, my focus is the truth, Doctor.”
“Objection!” I virtually shouted.
“Sustained,” said the judge, with little enthusiasm.
There was more Tolletson could have done with Dr. Brown, but one of the best things a good cross-examiner can do is quit while he’s ahead. Apparently feeling he had done adequate damage, Tolletson sat down.
I did my best to rehabilitate my witness. I threw him some softball questions, which gave him the opportunity to explain again how and why he had reached his conclusion. Actually, considering the harm Tolletson had done, I thought I did a pretty good job.
But not good enough to win the case. If Brown had been a knock-out punch for me, maybe I could have rested. Not now.
Now there was only one way to save Howie.He would have to take the stand.
COURT BROKE FOR the weekend, giving me a chance to think things over. Only I couldn’t think about them. My mind was split into too many segments.
Largest segment—my daughter. I couldn’t believe how much it hurt not to see her. I thought I would be able to stand it for awhile, at least until after the trial, when I could go and fight for custody. I figured I could wait that long. But I couldn’t. It was torture.
On Saturday I went into the office. It was usually deserted there on the weekends, and I could at least pretend I was doing some legal work. I could also drink in peace.
My office was too cramped, so I spread out my stuff on the conference table in the library. Gil Lee kept a pretty good stock of legal books there. He even had a computer set up for his tenants, and for a small fee, we could do online research.
In about two minutes the conference table was covered with legal papers, notepads, transcripts, and discovery items. There was no order to the material, fitting perfectly with my state of mind. A man’s desk, someone once told me, reflects his inner life. At this moment, I had to agree.
Was there anything in this jumble that could possibly help me? Something I hadn’t seen before?
I remembered the supplementary medical report, the one that concluded Rae Patino had been three months pregnant when she died. Where was that? I couldn’t remember ever seeing it. Surely I would have remembered something that important.
I found a copy of the report. It was two pages long. And there, in the middle of the second page, was the information that had surprised me at trial.
The report was signed by Chester A. Riordan.
For five minutes I looked at that thing and tried to recall when I’d received it. I could not. No memory. Blank screen.
Could I have seen it and not remembered? A scary thought hit me. Maybe my short-term memory was damaged in some way. Worse, maybe I hadn’t registered this in my memory at all, being juiced at the time I first got it.
Alone and lost in the library, I shook. If there had been another L.A. earthquake, I probably wouldn’t have noticed.
To calm myself, I took a swig from the bottle I’d brought with me. It was warm and soothing, like always. I knew I would be comforted soon.
Next thing I knew I was being jostled awake by a hand on my shoulder and a voice repeating my name. Slowly, like a boat being dragged out of mud, my mind came back into reality.
“You sleeping on the job?” Triple C said. “That why you don’t answer your phone?”
I rubbed my eyes and looked at my watch. I’d been out for forty-five minutes. “I must have dozed off.”
“Yeah, right,” Trip said, holding up my half-empty bottle. “I got a mind to smash you over the head with this.”
“Maybe it’d do me some good.” My temples were pounding, and my neck was sore.
“You’re losing it.”
“Is that why you tracked me down?”
“No, I was actually doing some work for you, though for the life of me I don’t know why.”
Trip took off his shoulder bag and sat in a chair on the other side of the conference table. He was wearing his signature Hawaiian shirt. “My dad was a drinker,” he said. “He ended up on a slab at sixty, with no liver and a heart like Kleenex.”
“Don’t lecture me.”
“Don’t do this to yourself.”
“Do we have a chance?”
“For what?”
“To win.”
Trip took a long time before answering, watching me from behind his sunglasses. “All you need is one,” he said, referring to the possibility of a hung jury.
“Have I got that?”
“Probably not.”
I couldn’t disagree.
“You putting Howie on the stand?” Trip asked.
“I don’t see as I have a choice.”
“That’s tough. Tolletson might take him apart.”
“That’s what I’m hoping.”
Tapping his sunglasses with a finger, Trip said, “You’re hoping? What’s that all about?”
Amazingly, I had thought through this part of my case pretty clearly. “I want Howie to be taken apart,” I explained, “because I want him to crack up in front of the jury. I want them to see just how much of a fruitcake he is. I want him babbling away about God’s will, so the jury can see this is not the kind of guy who would plan and then carry out a murder. And this is the one way I’m going to get in some of Rae Patino’s background. Since Howie’s state of mind is an issue, he can tell the jury just what he thought about Rae.”
After a pause to reflect, Triple C nodded. “You really can think when you give yourself a chance.”
“Yeah, maybe. Anyway, this is my last chance.”
“Why?”
“I’m through after this.” Until I said those words, I had not made any decision like that. I was almost surprised to hear this coming out of my mouth. But it made perfect sense to me. “This is my last trial.”
“What are you talking about?” Trip said. “What else could a washed-up hack like you do besides practice law?”
“I don’t know. I haven’t thought that far ahead. I only know I haven’t got anything to hold me here anymore. I can’t see my own daughter. I owe my landlord money. I’m getting my butt kicked in a little podunk town. Why should I hang around?”
“Don’t ask me. I’m no doctor. But I have tracked down my share of skips in my time, and I can tell you this. You don’t find the answers by running.”
“Ah.” I waved my hand in the air in the universal sign of dismissal.
“Let’s forget about that for the moment,” Trip said. “I just thought you’d like to know something.”
“How generous.”
“Not. I’ll bill you for the time.”
“So, what is it?”
“It’s that podunk town. You remember I told you I felt weird about it?”
“Yeah.”
“I think I know why.” Trip finally took off his shades and threw them on the table. “You have any idea how the little town of Hinton got its start?”
I shook my head.
“I spent yesterday afternoon in the Hinton Municipal Library.”
“They have any books?”
Snorting, Trip said, “Several. Anyway, I asked the librarian for a history of the place. She got me one. The Chamber of Commerce actually published a history of Hinton on its centennial, back in 1990. The official version of the story is that the land that is now Hinton County was won in a poker game in San Francisco. The man who won it was a ne’er-do-well who’d been chased out of polite society in the East. You know what his name was?”
“Gandhi,” I said.
Trip shook his head. “Come on, man. You need to hear this.”
“Sorry.”
“The man’s name was Solomon Hazelton.”
“Hazelton Winery?”
“Not then. Not yet.”
Now Trip had my attention. One thing he knew how to do was tell a story. He’d baited the hook, and I was biting.
“The unofficial version,” Trip continued, “is that Solomon Hazelton killed a man to get that land. Whatever happened, he moved down here and started building a town. By the twenties the place was thriving, and Solomon Hazelton was a very rich man. He owned most of the land in the county, and everything was great up until 1929 and the crash. Solomon Hazelton died, and his son took over the crumbling family holdings. The son’s name was Victor. Victor is the father of Warren, better known as Captain Warren.”
“The winery guy.”
“The very same.”
“Who looks to have revived the family fortune.”
“He’s done well.”
I shrugged. “Sounds like a typical American success story.”
“That ain’t all.” Trip smiled mysteriously, the way he did when he was about to tell something he’d uncovered through dogged detective work. “As I was reading this book, an old guy comes up to me. He’
s not smelling too good, and his clothes are from the Salvation Army. I figure him for one of these guys on Social Security who hangs out in the library because it’s cool inside. He says to me, ‘I heard you ask about the history of Hinton. You want the real story?’ Well, I’m a PI. I don’t turn down any offer of information. I say, ‘Sure,’ and he takes me outside. . . .”
The old gentleman, whose name was Morris, asked Trip for a cigarette. Trip told him he didn’t smoke. Morris said he would not reveal what he had unless he got a nail. So Trip walked him around the corner to a liquor store and bought him a pack of Camels. That was all it took for Morris to get started.
He told Trip he had once been a city councilman, back in the sixties, which was the heyday of Hinton. He also owned a restaurant downtown, a place frequented by the power players of the time.
The most powerful of the bunch was Captain Warren Hazelton. He was called Captain because of his fondness for racing yachts, two of which he had docked in the Ventura Marina. The appellation had a dual significance. He was a man who not only liked sailing the ocean but was used to giving orders.
His other passion was wine, and he had built Hazelton into the best winery in the region. Naturally, he expected the local establishments to carry a full stock of Hazelton wines.
“But I wouldn’t do it,” Morris told Trip, “because he wanted to overcharge me. Told him I’d run my place my way. He didn’t like that. He said he’d ruin me. And he did.”
Morris took a deep drag on his cigarette and looked at the hills above Hinton. “I could have been up on that mountain instead of him, but he unloosed the powers on me.”
“What powers?” Trip asked.
Squinting through the languid smoke, old man Morris said, “The powers of darkness.”
Thinking he’d been conned out of a pack of Camels by some homeless nut, Trip was about to leave. But there was something in the old man’s eyes that made him stop—a depth of feeling that told Trip either the guy was telling the absolute truth or else believed absolutely that he was.
“They practice the magic arts,” Morris said. “They call on the powers of darkness.”
Trip thought immediately of the Scottish play. “You mean like witchcraft?”
Morris nodded with a wry smile. “You want to see?”
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