Motion to Suppress

by Perri O'shaughnessy

  The court doors opened and the people took their seats. Andrea had taken the day off and sat in the front row near the counsel table. She gave Michelle’s arm an encouraging squeeze as she passed. Nina’s witnesses sat in various parts of the audience, looking uniformly glum.

  The Tengstedts sat in the last row. Mrs. Tengstedt looked like she had been crying. Carl Tengstedt had his arm around her, his angry face turned toward Nina. Al Otis sat right up front, in a plaid sport coat with a white carnation. Today his hair was brown, combed straight back and he wore heavy horn-rims. Must have made a quick stop at the casino on his way over.

  The Clarkes sat together near the main aisle, not touching, Tom Clarke looking as worried as if he were on trial himself. His wife sat stone-faced, her arms folded.

  Steve Rossmoor had come in with Michelle attached to one arm, a laptop computer at the end of the other.

  Early bird arrivees, the Greenspans, flanked by Riesner, had avoided Nina. Ericka Greenspan appeared to be arguing with the lawyer. Maybe she didn’t feel the protective order had gone far enough.

  At last, just before the doors closed, Bruno Cervenka came rolling in in his motorized wheelchair. He was accompanied by a student who must have been his designated driver. His white hair had been neatly pasted down, and his attaché hung off the pushing handle. He parked in a corner in back.

  Nina looked back at him and smiled gratefully. She knew how hard it had been for him to come.

  Today would make or break Michelle. The spectators seemed to sense it. Even the jurors were particularly restive this morning. The emotions in the room created an atmosphere of rushing toward a finish. The trial had become an entity in itself, and it had seized them all.

  "Mr. Hallowell?"

  "The prosecution rests its case-in-chief, subject, of course, to rebuttal, Your Honor."

  "Very well. Ms. Reilly, are you ready to proceed for the defense?"

  "Yes, Your Honor. The defense calls Bruno Cervenka." At this signal Bruno wheeled down the main aisle, letting the jury have a good look at him. Bruno had never been handsome. Now that he was old, the bulbous nose, prominent ears, and shaggy brows had resolved into a quite respectable picture, Jack Klugman mixed with Albert Einstein. He stopped beside the witness box and placed his case in his lap.

  "Good morning, Dr. Cervenka," Nina said, as soon as he was sworn in.

  "Good morning." The deep, rumbling voice she was depending on held out a morsel of comfort to her.

  "You are a medical doctor who is a psychiatrist and a professor of psychiatry at the University of California Medical School in San Francisco, is that correct?"

  "Yes. I received my medical degree from UCLA in 1946. I completed my residency at—"

  "The People will stipulate that Dr. Cervenka qualifies as an expert witness in the field of psychiatry," Hallowell interrupted. This prevented Nina from going into great detail about Bruno’s past, his awards, his writings, his professorships. But the jury seemed adequately impressed.

  "How long have you been practicing psychiatry?"

  "Forty-two years."

  "And during this time have you had an opportunity to diagnose or treat patients with amnesia?"

  "Oh, yes. In my work, I see it often. I have had hundreds of such opportunities."

  "Were you contacted by me at the beginning of May of this year regarding acting as an independent consultant in this case?"

  "Yes."

  "What did I ask you to do?"

  "You asked me to review the medical records of Michelle Patterson, especially the records of her current treating doctor. You asked me to interview Mrs. Patterson and perhaps hynotize her. You asked me to provide you with a diagnosis of her psychiatric problem, and to try to recover lost memories."

  "And did you carry out those requests?"

  "Yes. I did all that. I read the records, and Mrs. Patterson came to San Francisco for evaluation in May."

  "And did you prepare a written report for me at any time regarding this work?"

  "No. You did not request it."

  "You mentioned possible hypnosis. Do you use hypnotherapy in your practice, Professor?"

  "Yes. It has a limited use, however."

  "And how is it limited?"

  "Hypnosis is not used in classic psychoanalysis at all. Freud found that the improvement in patients using hypnosis was always temporary. He discovered that hypnosis actually prevented the patient from expressing his resistances and working through his problems."

  "How else is it limited?" Bruno was so smooth. His answers meshed effortlessly with the points she was trying to make.

  "At present, reputable practitioners of hypnotherapy use it for only a few purposes. To put it simply, it can help a tense or anxious person relax. It is sometimes helpful in treating some addictions, such as tobacco smoking or compulsive eating. And, occasionally, it is helpful for patients who have amnesia due to some mental or physical trauma."

  "You say it is only sometimes helpful. Why is that, Professor?"

  "You have touched on the main problem with hypnosis, which is its lack of reliability. This is especially true when it is used to attempt to uncover matters that have been repressed, that is, pushed into the unconscious."

  "In what specific respects is hypnosis not reliable for patients with amnesia?"

  Bruno talked to the jury as if they were students in one of his seminars, casual, at ease. "Well, first you have to realize that hypnosis is merely putting the body and mind into a relaxed state in which suggestibility is enhanced. This may affect the accuracy of the memory that is recovered.

  "For example, some patients have a strong desire to please the therapist. This may distort the memory. The patient may add in fictional details, or invent a memory that he cannot uncover. There is a word for this: confabulating.

  "Also, other material from the patient’s unconscious— guilts, fears, other repressed matter from the patient’s childhood—may leak through when the patient is in this state. The patient’s memory may be colored by this material. The result may be a memory of something that never, in the patient’s life, occurred." Bruno was gesticulating as he talked. The jury appeared appropriately mesmerized. Bruno stopped talking, to cement the mood.

  "Let me back up a little now, Professor, and ask you ... what is amnesia?"

  "It is a mental condition in which the patient is unable to bring to his or her conscious mind an event that has been personally experienced."

  "So the phrase loss of memory is a reasonable description?"

  "Yes."

  "What causes amnesia?"

  "Objection. Relevance."

  Milne agreed that Nina was generalizing too much with that question. "Why don’t you ask about the amnesia in this case, if that’s what you’re driving at, Counsel," he said.

  "Certainly, Your Honor. I will return to that in a moment." Nina paused to gather her thoughts now that her rhythm with Bruno had been broken. Her back was to the audience. She felt the pricking of a hundred pairs of eyes.

  "Returning to the work that I asked you to perform, Professor, can you give the jury a summary of the treatment Mrs. Patterson received from Dr. Frederick Greenspan here in Lake Tahoe?"

  Bruno pulled out Greenspan’s notes. They had already been admitted by stipulation, so Nina was able to avoid that group of questions and answers. "He saw her for ten sessions, between January and April of this year. She was hypnotized at all but the first session. She terminated the therapy rather than completing it."

  "And what do you understand were her presenting symptoms, based on the notes?"

  "She came to this doctor primarily due to anxiety and depression. At the first session she also discussed certain compulsions that were bothering her. She compulsively acted out sexually. Dr. Greenspan noted possible alcoholism."

  "Anything else?"

  "She also discussed in the first session that she could not remember her childhood before the tenth year. This was causing her some suffering, as though s
he required a great deal of energy to keep these memories suppressed."

  "Do the notes indicate any diagnosis was made?"

  "No. The doctor was not a psychiatrist, he was a physician with some training in hypnotic techniques."

  Riesner stood up in back and said, "Your Honor..." "You will remember the matters we discussed this morning?" Milne said in a warning tone to Nina.

  "Yes, Your Honor."

  "Continue."

  "Your Honor," Riesner said again.

  "Sit down, Mr. Riesner," Milne said.

  "Please describe the therapy undertaken with Dr. Greenspan, if you would," Nina said. The jury turned its collective head back to Bruno.

  "I really can’t do so. The notes are rather sketchy, and there are no tapes. It appears the doctor would put Mrs. Patterson into a deep hypnotic state to remove anxiety and depression. After a few sessions he apparently made various suggestions to help her cease her compulsive sexual activity. In the ninth and tenth sessions he appears to have been trying a technique called hypnotic regression."

  "And that is?"

  "Trying to access the lost childhood memories."

  "And was he successful in this regard?"

  "Not that I could tell."

  "Let’s turn now to the evaluation of Mrs. Patterson you made in San Francisco." Nina was feeling nervous. She missed Hallowell’s objections. He was biding his time.

  "Yes. I talked with Mrs. Patterson for some time. Then I put her under."

  "You hypnotized her?"

  "Yes. An excellent subject, she was extremely receptive."

  "What happened next?"

  "I had two objectives. The first was to try to evaluate the extent of resistance of her unconscious to releasing her childhood memories."

  "By using the technique of hypnotic regression?"

  "Precisely. My second objective was to try to evaluate her more recent loss of memory."

  "Referring now to a memory loss on the night her husband was killed?"

  "Yes, her inability to remember what occurred after she struck her husband the single time."

  "All right. You made a tape of the entire session, is that correct, Professor?"

  "Yes."

  "Do you have it with you today?"

  "No. It was taken from my office by the police."

  "Showing you this tape now, which has been in the custody of the Lake Tahoe Police Department since its transfer by the San Francisco authorities ..." She handed the tape to Bruno. At her counsel table, the clerk was setting up a tape recorder.

  "I can tell if it’s the same tape that I made, if I can hear the first sentence or two," Bruno said.

  Nina turned on the tape. Bruno and Michelle talked, her voice floating above his. The jury was hearing Michelle for the first time.

  "Yes, that’s the tape," Bruno said.

  "All right, let’s listen to the section regarding Mrs. Patterson’s childhood loss of memory. Unless you have some objection, Counsel?"

  "Be my guest," Hallowell said.

  The courtroom hushed. Breathing fast, Nina turned on the tape again.

  And they all heard Michelle, talking about the Philippines, then seeming to go back in time, her voice higher, her speech immature. There was foreboding in the voice, then quickly came the explosion of fear and horror, her thin voice crying "Daddy!" They heard wild weeping and sobbing, then Bruno’s soothing words, pulling Michelle into another place. Nina turned off the tape.

  The Tengstedts left the room, Barbara Tengstedt’s face buried in her husband’s shoulder, their departure followed by curious glances.

  Silence. Michelle’s hand covered her mouth, and her head was down. Paul whispered, "Are you all right?" and she nodded, looking back at where her parents had sat.

  Nina said in a quiet voice, "Did this portion of the hypnotic session, along with your review of Dr. Greenspan’s notes and your interview with the defendant, allow you to arrive at any conclusions regarding the childhood amnesia?"

  "Oh, yes."

  "What were those conclusions?"

  "First, I would say there is obviously a traumatic memory locked up in this lady’s brain, a single devastating event with great emotional content. It is buried so deeply that even after the session was over she could not remember even saying these things. In other words, she still could not access the memory consciously. Second, I would say this memory blocks all the other childhood memories, and they could easily be brought back if she consciously remembered this thing on the tape.

  "Third, the regression itself is suspect. You can hear on the tape that it is piecemeal, incomprehensible to the child experiencing it. It is impossible to tell what is actually occurring. It is only a beginning. Mrs. Patterson would need several more sessions to try to bring this memory into a place where she herself could explain it."

  Bruno was performing brilliantly. The jury remained in thrall.

  "All right, Professor, let me ask you this: Is there a tendency for such an amnesia to recur if another traumatic event occurs later in life?"

  "Exactly. Each person has his or her own way of reacting to overwhelming emotion. The brain follows the path of least resistance. If the brain has managed to contain the first event by amnesia, it will tend to take the same defensive action when a second traumatic event occurs."

  His statement sounded dry, not as significant as some of the other things he had been saying, but Hallowell was sure to understand the impact of what Bruno had just said. He had presented the jury with a bona fide explanation for Michelle’s amnesia on the night of the killing. Nina glanced over and saw that Hallowell was writing notes frantically.

  "Could a violent struggle with her husband have provoked another attack of amnesia?"

  "If there was sufficient emotional content," Bruno said.

  "All right, Professor ..."

  "Let’s take the mid-morning break," Milne said.

  When the jurors returned, Nina thought she saw a new openness in their faces, as if they were now willing to consider the possibility that there was indeed a doubt that Michelle had committed the murder. She had her chance.

  "Professor, I am now going to play the remainder of the tape, the portion in which you have said you were trying to determine what happened on the night of Anthony Patterson’s death, and then I will ask you some questions."

  She pushed Play and the tape turned.

  When Michelle said, "I killed him," there was a general gasp. And then Bruno asked, "What are you feeling now?" and she said, "Hate."

  The tape ended. Nina stole a look at the jury. They all looked appalled.

  She hadn’t realized how damning the tape would sound, no matter what background she provided. Michelle had confessed. The words, indelibly etched on the minds of the jury, hung there. She felt the shaky structure she had worked so hard to build wobbling.

  "Uh, Professor. You, uh ..."

  "Ms. Reilly?" Milne said.

  She took a long breath. "Professor, can you conclude from this tape whether or not Michelle Patterson killed her husband?"

  "No," Bruno said equably. He seemed the only one unaffected by hearing the tape.

  "How can you say that, when the defendant uses the words, I killed him, and apparently says she hated her husband?"

  "I simply don’t draw that connection. Let me explain. These statements are not reliable. It is more than possible that the previous trauma has leaked into these statements. The statement, ’I killed him,’ may be more metaphorical than real."

  The jury seemed to be lost. What Bruno was saying went against the evidence of their own ears.

  Bruno said, "A few years ago another patient said that to me, a charming lady whose elderly mother was dying of Alzheimer’s disease in a nursing home. When she died, this lady came to me and told me under hypnosis that she had killed her mother. She said the same thing. ’I killed her.’ She had great guilt from her inability to keep her mother at home. She truly believed she had murdered her mother, though all she ha
d really done was put her in a nursing home."

  "Why do you say that the previous trauma may have somehow distorted this confession?"

  "Ten minutes before, I had seen Mrs. Patterson go through a powerful emotional experience. Those emotions may have still been alive. In my opinion, the second portion of the tape was tainted by the first."

  "Thank you, Professor. Your witness," Nina said. She had done her best.

  They broke for lunch before Hallowell’s cross-examination. Paul, Nina, and Michelle took their usual cramped table in the coffee shop. Paul was the only one who could eat anything. He shoveled down two tuna sandwiches and a pint of orange juice while Nina and Michelle sat there, not talking.

  "That’s what I call proactive lawyering," Paul said. "You took control of the tape and dressed it up before and after with all the reasons why it shouldn’t be believed. You showed you weren’t afraid of it. You took it away from Hallowell. Nice going!"

  When Nina did not reply, Paul asked what the matter was, but Nina couldn’t explain. She was numb. There were no words for what she was feeling. "Don’t lose it now," Paul said as Nina got up and trailed after them into the courtroom.

  Now Hallowell had his turn. He was ready.

  Nina could see Bruno was tiring, but he still looked game. She wondered how long he would last.

  "Professor Cervenka, how many times have you testified for the defense in a criminal case?" It was a marvelous opening question, zeroing in on Bruno’s weakness as a witness.

  "I couldn’t count."

  "More than a hundred times?"

  "Possibly."

  Hallowell turned and faced the jury as he asked the next question.

  "And how many times have you testified for the prosecution?"

  "That hasn’t come up."

  "Never?"

  "Never."

  "You’re not a neutral witness at all, are you?"

  "What do you mean?"

  "Isn’t it true that you have a strong bias against the prosecution?"

  Bruno hesitated. In view of his record, if he said no, he would lose all credibility.

  "My consulting work—"

  "You’re a defense consultant, aren’t you?"

  "You might say that."

  "A paid consultant, at that. How much are you being paid to be here today?"