Motion to Suppress

by Perri O'shaughnessy

  The answer would come in. Nina didn’t bother to object. She squirmed instead.

  "Three hundred dollars an hour."

  "Three hundred dollars an hour! Well, for that you’ll explain away anything, won’t you?"

  "Objection! Move to strike counsel’s comment!"

  "Sustained."

  "You told us all about amnesia in your testimony."

  "I discussed it briefly."

  "You explained that the defendant’s amnesia about the events on April twenty-sixth through twenty-seventh could be a reaction to the trauma she experienced?"

  "Yes."

  "Then let me ask you this. How do you know she has amnesia?"

  Bruno said, "Because ... because she told me."

  "In fact, you’re relying totally on her self-serving statement to you that she has amnesia?"

  "I have to," Bruno said.

  "What if she’s lying about that?"

  "Well, I have to assume—"

  "And for three hundred bucks an hour, you’ll make any assumption, won’t you—"

  "Objection!" Nina said indignantly. "Counsel is trying to—"

  "Sustained."

  Mid-afternoon break. Bruno spent the whole time in the bathroom. Back at the witness stand, his face seemed washed out. The pain pills for his hip must not be working.

  "Now, you’ve tried to explain away this confession — "

  "Objection! Approach the bench?" Nina said. She went to the sidebar with Hallowell.

  "Your Honor," she whispered fiercely, "Mr. Hallowell is making far too many editorial comments in his questioning. I ask that he be admonished."

  "She can dish it out, but she can’t take it, Judge," Hallowell said. He tried to catch her eye. She ignored him.

  "He’s right," Milne said to Nina. "Deal with it."

  Nina returned to the table, her cheeks flaming.

  "Rephrase the question, please, Counsel," Milne said.

  "The defendant said, ’I killed him,’ right?" Hallowell went on.

  "Yes."

  "And that doesn’t indicate to you that she killed her husband?"

  "No. As I explained—"

  "If I tell you under hypnosis, ’The sky is blue,’ does that indicate to you that the sky is not blue?" One of the jurors giggled. Hallowell looked at Nina, his face dark with concentration.

  "No, it is just not evidence either way that the sky is blue."

  "The sky could still be blue?"

  "Yes."

  "Thank goodness," Hallowell said, and the whole courtroom enjoyed a chuckle.

  "As you sit here today, Professor, do you have any idea whether this woman murdered her husband?"

  "No."

  "Now, she said on the tape, ’Hate,’ when you asked her, ’What are you feeling now?’ Doesn’t that indicate that she hated her husband?"

  "Not necessarily."

  "Why would she lie?"

  "I don’t say she was lying."

  "Then what was she doing? She wasn’t telling the truth, and she wasn’t lying? You’re not earning your fee, Professor." More laughter.

  "Objection! Argumentative! Not a question!"

  "Sustained."

  "She confessed to murdering her husband on this tape, didn’t she?"

  "Objection. Calls for a conclusion."

  "Overruled."

  "It wasn’t necessarily a confession, I’m telling you."

  "Okay, now let’s talk about the defendant’s other problems besides this so-called amnesia. She was depressed?"

  "Yes."

  "How did she feel about her husband? When she wasn’t in a trance?"

  "She expressed some fear and some anger," Bruno said.

  "Did you ever figure out why she sleeps around?"

  "Objection! Vague and ambiguous."

  "Rephrase the question, Counsel."

  "Why does she go looking for sex?"

  "It’s probably part of the symptomatology, connected with the original trauma."

  "And why does she get drunk? Excuse me, drink excessively?"

  "My understanding is she no longer drinks alcohol."

  "How long did your evaluation of this young lady last?"

  "If you mean the session in my office, one hour."

  "That cost another three hundred?"

  "Yes."

  "So you’ve known her for one hour, and you’ve read some notes secondhand from some other doctor, and you think you know all about her psyche?"

  "Objection. Argumentative."

  "Overruled."

  "Not at all. That I would never presume. But I have reached some conclusions."

  "Like when she says, ’I killed him,’ she may not really mean it?"

  "Yes."

  "And when she says she hates her husband, you can tell after one hour she doesn’t mean that either?"

  "She may not mean it in the sense you imply ..."

  "After this one-hour session, do you think you can tell when this lady’s lying?"

  It was the best question of all. Bruno couldn’t think of a way to field it.

  "As a trained psychiatrist, I can probably tell a lie more easily than a layperson," he said finally.

  "I’m not asking for a generality. I want to know if you can tell if this lady, the one who’s on trial for murder, is a liar or not?"

  "Perhaps not in every instance."

  "How about a yes or no for us laypeople?"

  "No."

  "Nothing further."

  "We will resume with the testimony of Barbara Tengstedt at nine o’clock tomorrow," Milne ordered. They all headed for the doors. Nina went up to Bruno and said, "Can I walk with you to your car?"

  She pushed his chair out into the parking lot. His driver had been waiting, leaning against Bruno’s specially equipped van.

  The cool air sent a chill through Nina. "I hope I didn’t let you down, my dear," Bruno said.

  "You were wonderful."

  "Call me when you have your verdict." They drove away.

  Nina stood there, wishing she could hit the road with them and head out over the mountains.

  30

  ON WEDNESDAY, BARBARA Tengstedt came out of the shadows.

  Michelle had not even spoken to her parents since returning to the shelter in Tahoe. The Tengstedts refused to speak to Nina about Mrs. Tengstedt’s subpoena. They had avoided the trial until required to appear on the day before, and they had not approached Michelle.

  Their estrangement seemed complete. Nina believed Carl Tengstedt would never forgive Michelle for forcing his wife to testify. Up there on the stand, he would not be able to protect her, hush her, direct her. To compel her, in this rude and public way, to speak of matters so private, must seem to the Tengstedts like a betrayal of the most vicious kind.

  Barbara Tengstedt would be a marginal witness. Her contribution would be tangential, even confusing to the jury. At most, she would be able to corroborate Bruno’s theory that a past trauma had led to amnesia, and that when faced with a new trauma, Michelle had used the same psychological defense.

  But Michelle wanted it, and Nina wanted it. She had decided that ultimately it might serve the Kitchen Sink defense well, casting doubts all around. Nina would take that past and see if she couldn’t make it work for Michelle for a change.

  In examining Mrs. Tengstedt, Nina would have to violate her main rule, to know the answer to any question she asked. And at the back of her mind she replayed Bruno’s suggestion over and over.

  Why did Michelle’s father disappear? Was he dead? Her efforts to track down further information about him through Sandy hadn’t netted anything. Maybe he would show up today. Or maybe he couldn’t. Maybe Michelle ... She turned her mind away. They would find out, wouldn’t they?

  The jury filed in, chatting with each other, comfortable at last after a week and a half in this important new role.

  Nina had half expected that Barbara Tengstedt would not appear that morning. If she did not, Nina had decided to tell Michelle she
would do no more. The idea of asking Milne for a bench warrant to chase down the people who had paid her attorney’s fee was just too ludicrous.

  But she had come, a wraith in a black suit, a white blouse, and a brave little scarf that matched perfectly.

  "Call Barbara Tengstedt," Nina said. Michelle’s mother took the stand.

  She was a woman whom others never noticed, the invisible matron who took up no space in the store, the church, or the living room she inhabited. She would never have raised her voice in a public place or quarreled loudly with her husband. She had eluded the attention of others all these years.

  Now the court took her in: the hair a nondescript blond, the features fine once but now blurred by time, the faded blue eyes, anxious and embarrassed. She was a camouflaged creature, put brutally on display outside her habitat. Nina felt a pang of compassion.

  In the back row, Carl Tengstedt seethed.

  "Please state your full name," Nina said from the counsel table.

  "Barbara Tengstedt."

  "Your full name. Including your middle name and maiden name."

  Mrs. Tengstedt said something inaudible. "You have to speak into the microphone," Milne told her.

  "Barbara Elaine Underhill Tengstedt."

  "You are the mother of the defendant?"

  "Yes."

  "And you live in Fresno with your husband, Carl Tengstedt?"

  "Yes."

  "Do you work outside the home?"

  "No."

  "Does Mrs. Patterson still live with you?"

  "No."

  "When did she cease living with you?"

  "Three years ago."

  "When she married Anthony Patterson and moved to Lake Tahoe?"

  "Yes."

  "Prior to that time, had she always lived with you?"

  "Yes."

  "Where did she live from infancy to age ten?" Nina could see Hallowell at his table. Jump right in and hang yourself, his grim mouth said.

  "In the Philippines."

  "Where in the Philippines?"

  "At the naval air base at Subic Bay."

  So far, so good.

  "Who is Mrs. Patterson’s father?"

  "Carl Tengstedt."

  "Is Mr. Tengstedt her natural father?"

  A long pause. "I don’t care to discuss that."

  "Please answer the question."

  "Do I have to?" Mrs. Tengstedt said, tilting her head up to Milne, who was jerked out of his reverie.

  "Yes, you do," Milne said.

  "What will happen to me if I don’t?"

  "I will have to order you to answer. If you don’t answer then, you will be in contempt of the court."

  "What would happen then?"

  "I would have to jail you," Milne said shortly.

  "All right, send me to jail."

  "Barbara!" Carl Tengstedt cried despairingly from in back.

  "Bailiff, make that man sit down," Milne said.

  Nina thought, this was definitely not a good direction. "Your Honor, if I may ... I am willing to withdraw the question at this time," she said.

  Milne looked relieved. "Proceed," he said.

  "Mrs. Tengstedt, do you love your daughter?"

  "Yes."

  "You are not here today of your own free will, is that right?"

  "Yes."

  "But you understand you must answer my questions truthfully?"

  "Yes. Or go to jail."

  "You were in court yesterday?"

  "Yes."

  "Do you remember Dr. Cervenka’s testimony that your daughter may have suffered an episode of amnesia on the night of her husband’s death?"

  "I remember."

  "And that he based his conclusion primarily on your daughter’s statements to him and Dr. Greenspan that she suffered from amnesia about her childhood?"

  "Yes."

  "Did she, in fact, tell you that she could remember nothing about her past to the age of ten?"

  "Objection. Hearsay."

  "Sustained."

  "Did you observe any memory problem with your daughter during her years with you in Fresno?"

  "Objection. Vague and ambiguous."

  "Approach the bench?" Nina said.

  Milne was not in a good mood. Hallowell lounged to the side as Nina argued.

  "The answers to this line of questions are relevant to our defense, Your Honor. They explain the tape and they explain the memory lapse. I didn’t just drag this lady up here for laughs."

  "Keep your voice down. I don’t want the jury hearing this. You’re asking for hearsay."

  "I’ve put the defendant’s mental state in issue. The answers aren’t offered for the truth of the matters stated. They are offered to show her mental condition, and therefore they fall under an exception to the hearsay rule."

  "Well, Collier?" Milne said, looking at his watch.

  "Sure, there’s an exception to show mental state. But we have a unique situation here. Nina’s trying to show the defendant’s mental state thirteen years or more ago, not her mental state the night of the murder. She’s going too far afield, and the exception can’t apply with that lapse of time."

  "Does anybody around here have any legal authority?" Milne said. "I’m not interested in making new law."

  "You’re going to have to, Your Honor," Nina said. "Look. She was undergoing hypnotic-regression therapy when she made this so-called confession. She was in the present physically, but she was in the past mentally. Her mental state at the time she spoke those words is clearly relevant. Furthermore, on the night in question, it is our contention that the defendant experienced the same psychiatric problem. That’s why she can’t remember—"

  "I don’t even want to think about this," Milne said. "You’re the defense, you have wide latitude; I’ll let it in. But I’m not here to act as a foil for your creative lawyering, Ms. Reilly. Don’t do this to me again."

  After Nina and Hallowell had sat down again, Milne said, "Objection overruled."

  "Did your daughter tell you she couldn’t remember anything about her childhood before the age of ten years?" Nina asked Barbara Tengstedt, rephrasing the question they had all forgotten by then.

  "The jury is instructed that this testimony is offered to show the mental state of the defendant at the time of the tape you have heard and on the night of April twenty-sixth and morning of April twenty-seventh. It is not offered to show the truth of the matter stated," Milne said. Several of the jury members were waiting for more, but Milne apparently had decided not to wade into deeper waters with more comments.

  "You may answer the question," Nina said.

  "Yes, she talked about it," Barbara Tengstedt said.

  "Did you refuse to discuss her past with her?"

  "There was nothing to discuss."

  "Request this witness be considered an adverse witness, pursuant to Evidence Code section 776," Nina said. As an adverse witness, Barbara Tengstedt could be impeached, even though technically she was Nina’s witness.

  "No objection," Hallowell said.

  "I show you now this certified form entitled Notification of Change of Beneficiary, stamped United States Naval Station, Subic Bay, the Philippines, marked for identification as Defendant’s Exhibit 36. The form is a summary of benefits provided to Major Carl Tengstedt." She handed it to Mrs. Tengstedt, who almost dropped it.

  "Yes."

  "That form indicates that Mr. Tengstedt’s marital status changed on the date given, and that two dependants were added for benefits purposes on the same date. Will you please read for the jury the names of those new dependants?"

  "Barbara Tengstedt and Michelle Tengstedt."

  "And your daughter’s age is stated to be what?"

  "Age ten."

  "Now, Mrs. Tengstedt, why didn’t you discuss with your daughter that you married Mr. Tengstedt when she was ten years old?"

  "I ... I ..."

  "Mrs. Tengstedt?"

  "Leave me alone!" Mrs. Tengstedt cried.

  Nina re
adied her next sally, but Milne had had enough. "We’ll take the mid-morning recess," he announced.

  Out in the hall, Nina hurried after Carl Tengstedt. "Please let me talk with you for a minute," she said. He turned pink eyes on her and fiddled with a mangled necktie. "Please," she said. "It can’t hurt."

  He did not reply, but followed her down the hall to a quiet corner near the wall. "I’m sorry to put your wife through this."

  "It’s my daughter, not you, doing this. But you have the power to let my wife go." Up close, Tengstedt looked close to collapse, a fine stubble of beard rimming his round face, his scanty reddish hair uncombed, his tie knotted crookedly.

  "I can’t do that. I’m going to press her and press her, Mr. Tengstedt, until she answers."

  "God knows we made a mistake paying you to hurt us."

  "You’re so busy protecting your wife and yourself. Don’t you see your daughter’s liberty is in danger? Don’t you see she has to know? Can’t you think about her for once?"

  "You are a kind of slaughterhouse technician, aren’t you, Miss Reilly? You smile, you keep your hands clean, you dismember people without a thought. What does making my wife suffer have to do with Michelle and Anthony? Nothing, except to help you to confuse those people out there who have been called to judge my daughter."

  "Mr. Tengstedt—"

  "After this is over you hang up your bloody apron and go home. What about us?"

  "I don’t like you, either, Mr. Tengstedt," Nina said. "You think you have the right to keep your daughter ignorant and suffering. You aren’t sparing her, you’re torturing her."

  Tengstedt covered his face in his hands. "You don’t know what you’re asking!" he said, his voice muffled.

  "Whatever it is, it happened a long time ago. Please ... ask your wife to answer my questions."

  "I’ll talk to her," Carl Tengstedt said wearily.

  "Michelle ..." Nina whispered. Michelle turned her head. Her eyes were the summer sky her mother’s must have been, once long ago. Paul sat at her left at the counsel table, listening.

  "I’m not afraid," the girl said. She squeezed Nina’s hand. Barbara Tengstedt had mounted the witness stand without looking at her. She sat waiting for court to resume, while the public eye she detested came back to rest upon her.

  "Remain seated," Deputy Kimura said.

  Nina got up and walked around the table. Her feet felt encased in concrete. She faced the witness.