“Yes,” Carson allowed in a milder tone. “But I’m not aware of testimony that shows any of that to be untrue. If there is some, I’d appreciate your pointing it out.”
Flynn’s eyes narrowed: despite the seeming innocence of Carson’s response, the psychiatrist was well aware that Flynn’s assertion of a cover-up rested on conjecture and circumstantial evidence. “Nonetheless, Dr. Carson, if the accused invited Captain D’Abruzzo to his apartment, would that affect your opinion?”
“It could. But I’d need to review the evidence. Is there any?”
“I’m asking the questions,” Flynn snapped. “So even if the accused invited the victim, your opinion might not change?”
“That’s a hypothetical, Major Flynn. I can’t answer without knowing more facts.”
Flynn placed his hands on his hips. “Is PTSD consistent with planning and carrying out a premeditated murder?”
“In an extreme case, it could be—where a man decides to kill another man who he believes is planning to kill him.” Carson paused, then added firmly, “But that’s not this case. Based on the facts before the court, no one has asked me to answer the hypothetical you just posed.”
“Did you consider the fact that the accused was sleeping with the victim’s wife?”
“Of course. But one can view that in opposite ways. You can speculate that it’s a reason for Brian McCarran to shoot D’Abruzzo. You can also conclude that it helped drive D’Abruzzo into a violent rage.” Carson leaned slightly forward. “I haven’t been asked to opine on whether D’Abruzzo suffered from PTSD, and I can’t. But I do think that alcoholism, spousal abuse, and quickness to anger are also symptomatic. It’s possible to posit that these attributes contributed to D’Abruzzo’s death.”
Flynn stared at him. “Aren’t these ‘attributes,’ as you called them, based entirely on Mrs. D’Abruzzo’s testimony?”
Carson raised his eyebrows. “Actually, no. According to the toxicology report, Captain D’Abruzzo was extremely intoxicated when he came to Brian’s apartment. That’s pretty unhelpful to judgment or self-control.”
Terry suppressed a smile. By recalibrating his demeanor, Carson had provoked Flynn’s anger, making himself the more likable of the two. As if realizing this, Flynn asked more evenly, “How heavily did you weigh the testimony of the medical examiner, the ballistics expert, and the testimony of the CID?”
Terry had asked Carson the same question, two nights before. As planned, Carson responded in a judicious tone. “I took note of certain facts that aren’t in dispute—Captain D’Abruzzo’s inebriation, the hair trigger on his Luger. But I’m not an expert in these fields, so I set aside any evidence that was ambiguous or subject to multiple interpretations. I focused much more heavily on Brian McCarran’s upbringing, military experience, and behavior before and after Iraq.”
“With respect to that, Dr. Carson, the lieutenant admits that he knew he wasn’t in Iraq, and that D’Abruzzo wasn’t an Iraqi. Did that affect your opinion?”
“In another case, it might have. But it’s clear that Brian saw D’Abruzzo as his enemy, and his orders as literally deadly—an intentional effort to kill him. In my view, that triggered his reaction.”
Stymied, Flynn decided to change subjects. “Prior to your diagnosis, had anyone else concluded that Brian McCarran suffers from PTSD?”
“No. No one had considered it.”
“Despite the debilitating symptoms you mention, had he ever asked for help?”
“No. But part of Brian’s ethic is to conceal them.”
“But none of his superior officers at Fort Bolton—men who worked with him closely—ever referred Brian to a mental health professional.”
“Not that I know about.”
“Are you aware of any prior involvement in acts of violence?”
Carson considered the lawyer. Quietly, he said, “Only in Iraq.”
“Prior to the shooting, did his superiors report that the accused had any difficulty in discharging his administrative duties?”
“Not according to his records.”
“So the only people reporting changes in behavior are his sister and his father.”
“I don’t know who else may have noticed them. But my opinion is that General McCarran and Brian’s sister reported their observations accurately and in good faith.”
This implicit challenge caused Flynn to hesitate. Abruptly, he asked, “How many veterans of Afghanistan and Iraq are stationed at Fort Bolton?”
“I’m not sure. But over a thousand.”
“Have any of those combat veterans shot people since returning?”
“Not to my knowledge.”
Flynn paused. “So let me reprise, Dr. Carson. Your opinion rests not only on the accused’s military service but on the truthfulness of his and Mrs. D’Abruzzo’s account of the events leading up to the shooting.”
“Yes.”
“As well as Lieutenant McCarran’s description of the shooting itself.”
“As I explained,” Carson responded, “not entirely. What I did assume is that the lieutenant wasn’t planning to shoot Captain D’Abruzzo until he perceived a threat.”
For the moment, this was the best Flynn could do. With an air of satisfaction manufactured for the members of the court, he said, “I have nothing more, Dr. Carson.”
Thinking swiftly, Terry decided to press his advantage to the limit. “And I have only one question,” he said. “Assume for the moment that Captain D’Abruzzo was not an imminent threat to Brian McCarran’s life. But if Brian believed that he was acting in self-defense, would he also believe that shooting Captain D’Abruzzo was not ‘wrong’?”
“Objection,” Flynn said promptly. “Captain Terry has deliberately framed his question to paraphrase the legal test for insanity. In the guise of further advancing his PTSD defense, he asks Dr. Carson to resolve an ultimate question of law and fact reserved for the members of this court: Was the defendant legally insane when he shot Captain D’Abruzzo? Aside from the fact that no court has ever permitted such a defense, asking this witness for a legal conclusion is improper in itself.”
Hollis gave a decisive nod. Turning to Terry, he said sternly, “Save it for your argument opposing trial counsel’s motion to preclude this defense. We’ll reconvene for that purpose tomorrow at nine o’clock.”
As Hollis left the bench, the court began to empty. “Nice try,” Meg murmured dryly.
Terry shrugged. “Blake was good. We pushed this as far as it can go.”
Brian said nothing at all.
eleven
RISING TO ARGUE HIS MOTION TO STRIKE, MIKE FLYNN PAUSED, signaling his awareness that the outcome might determine the verdict rendered by the members of the court.
The members themselves were absent. But the full complement of reporters suggested that they, too, understood how critical this was. Sitting between Brian and Meg, Terry watched Hollis for clues.
They were not long in coming. Before Flynn could speak, Hollis said, “I understand that you want me to preclude any defense based on PTSD. But precisely what testimony are you requesting me to strike?”
Flynn was prompt to answer: “All testimony related to supposed changes in Lieutenant McCarran’s behavior, his service in Iraq, or whether he suffered from PTSD at the time he shot Captain D’Abruzzo. That includes the testimony of Dr. Carson, Sergeant Whalen, Father Byrne, General McCarran, Meg McCarran, and substantial portions of the lieutenant’s own testimony—”
“So what’s left?” Hollis interrupted.
“The testimony of Mrs. D’Abruzzo, Mr. Lee, and the lieutenant’s testimony with respect to his relationship with both D’Abruzzos through the day of the shooting.”
Hollis rested his chin on the palm of his hand, peering down at Flynn. “Then you’ve pretty well gutted the defense case.”
Equably, Flynn responded, “Captain Terry could have addressed the facts of the case. Instead, he advanced a theory that this court warned it might not recogniz
e—”
Hollis held up his hand. “The defense gambled, I agree. But you’ve eliminated any reference to how Lieutenant McCarran’s service might have affected him. Are you arguing that PTSD is not a recognized psychological condition?”
“No, Your Honor. What I’m saying is that no military court has ever accepted it as the basis for an acquittal, or even a reduction from murder to manslaughter.”
“Why not?” Hollis asked sharply. “The psychiatric profession accepts it as a diagnosis. Shouldn’t the law acknowledge its potential to affect behavior?”
“Yes. But only as a mitigating factor in sentencing, should the accused be convicted.”
Hollis arched his eyebrows. “How does that work? Suppose he’s convicted of intentional murder, in part because I precluded all the testimony to which you object. Do I then tell the members that they should consider the possibility—in sentencing—that Lieutenant McCarran thought Captain D’Abruzzo intended to kill him? You can’t ‘mitigate’ a verdict of guilty by deciding after the fact it was a mistake. So let’s get back to the law.
“The test for insanity is that a mental disease or defect prevents the accused from knowing that his actions are wrong. Captain Terry’s argument is this: Maybe the lieutenant was not in mortal danger. But because his perceptions were distorted by combat stress, he thought that it was necessary to shoot Captain D’Abruzzo in self-defense. Why doesn’t that fit the legal standard?”
Flynn’s demeanor became rigid. “Because it’s wholly subjective. Captain Terry argues that—no matter what the physical evidence—the accused should be acquitted based on what he claims to have thought. If this defense is allowed, it will become the refuge of every veteran who kills someone—”
“You’re pushing this too far,” Hollis objected. “If the accused had come to D’Abruzzo’s home for the purpose of killing him, that would be one thing. But you’re asking me to preclude the members from considering the actual facts of this case, in order to stave off an imaginary wave of acquittals in cases where the defense would have no basis in fact. I have more respect for juries than that.”
“No one respects juries more than I, Your Honor. But lay members of the court need clarity in applying the law.” Flynn squared his shoulders. “No doubt the accused had harrowing combat experiences. But that’s irrelevant unless they caused a mental condition that negated his intention to commit a crime.
“Who claims that his behavior changed? Only the lieutenant and his family. What’s the evidence that it affected his perceptions when he shot Captain D’Abruzzo? None. The lieutenant’s own testimony contradicts that. He asserts that he knew that D’Abruzzo was D’Abruzzo, and that they were at Fort Bolton rather than in Sadr City. He asserts that D’Abruzzo was only four to five feet away when he fired the first shot. And he claims not to remember the last three shots—including a shot in the back.
“In sum, there is insufficient evidence that Lieutenant McCarran suffers from PTSD at all, let alone that it governed his reaction to the ‘threat’ posed by Captain D’Abruzzo.” Flynn lowered his voice. “It’s not insane to hate someone, Your Honor. Hatred is a motive for murder, not grounds for an insanity plea.”
That this argument adduced in Hollis a reflective silence troubled Terry. After a belated nod to Flynn, Hollis said, “You’re up, Captain Terry.”
Standing, Terry instinctively tossed aside his carefully wrought legal argument. “After listening to Major Flynn, I believe the central question is this: Will the members judge Brian McCarran as he is or as the stick figure the major asks the court to give them? Trial counsel wants to eliminate everything but the testimony relating to the lieutenant’s relationship with Mrs. D’Abruzzo, his removal of the gun, and the shooting itself. But who, then, is Brian McCarran? He has no life—no childhood, no service record, no year in Iraq filled with horror and carnage, no family to observe the changes in his behavior, no trauma whatsoever. In Major Flynn’s version, the only thing he ever did was shoot Captain D’Abruzzo after sleeping with his wife—”
“Are you disputing either?” Hollis inquired.
“No, Your Honor. But there’s a man sitting next to me, and Major Flynn proposes to erase him. If nothing else, the testimony Major Flynn would discard shows a man who fought honorably and bravely, who looked out for his soldiers, and who—when he had finished doing everything his country asked of him—fought to keep himself together so he could keep on doing his job. The fact that this man also responded, however inappropriately, to the plight of a woman he had always cared for does not define him as a person, or obliterate all that is admirable in his character—”
“Perhaps not,” Hollis said pointedly. “But it does provide a potential motive for murder. Whereas his honorable service, in itself, seems more relevant to the severity of his sentence. Here I’m inclined to agree with Major Flynn.”
Worried, Terry mustered a smile. “And I’m inclined to agree with the court’s prior observations. Dr. Carson specified how PTSD could have affected Lieutenant McCarran’s state of mind when D’Abruzzo came to his apartment—”
“But the accused, as Major Flynn points out, claims actual self-defense. Specifically, that Captain D’Abruzzo was four to five feet away.”
“Regardless of the distance,” Terry responded, “D’Abruzzo felt like a threat to his life. There are a multiplicity of reasons: Lieutenant McCarran’s combat experiences in Sadr City; a history with Captain D’Abruzzo which suggested that D’Abruzzo wanted him dead; D’Abruzzo’s violent actions after he returned; and his lethal abilities in martial arts. All of this illuminates the lieutenant’s state of mind, and the members of the court should be allowed to weigh it.
“We don’t ask this court to change the law. Rather, we ask it to incorporate within the law our current understanding of combat-related stress.” Terry paused, then finished in a calm, clear voice: “We send men to war. We know that they may suffer PTSD as a result. But when they come back, all too often we tell them to suck it up, or put them on a waiting list for treatment. In this court-martial, Brian McCarran can’t wait around for the army to grasp the damage war has done to him. The law should see him whole.”
Solemn, Colonel Hollis checked the papers in front of him. Then he said, “The court is prepared to rule.”
Terry heard a stirring, reporters preparing to take notes. “This motion,” Hollis continued, “presents difficult questions of law and fact. There is little precedent for reducing a murder charge to manslaughter on the basis of PTSD, and none at all for recognizing an insanity defense. But the law should reflect our knowledge of psychology as it broadens.” Hollis paused, then said decisively, “Accordingly, I’m persuaded that the members of the court should consider all the evidence offered by the accused, with appropriate instructions from the court.”
The reality of this statement stunned Terry: as Flynn’s flicker of astonishment suggested, Hollis had transformed military law in an instant. Aware of this, the judge added wryly, “If my ruling is wrong, I suppose I can live with that. What I can’t live with is a system of military justice that is literally blind.
“The motion to strike is denied. Defense counsel may argue that PTSD supports a finding of not guilty by reason of insanity, or a reduction of the charge of murder to manslaughter.” Looking from Terry to Flynn, Hollis inquired, “Is there anything else, counsel?”
Poised again, Flynn responded. “Yes, Your Honor. In light of the court’s ruling, we would like to call a rebuttal witness: Colonel David Northrop.”
Terry was not surprised. “Any objections?” Hollis asked him.
“None, Your Honor.”
“In that case, we will reconvene at nine A.M. tomorrow for the purpose of hearing Colonel Northrop’s testimony.”
“All rise,” the bailiff said, and Hollis’s disappearance was followed by a hum of voices among the spectators that, to Terry’s mind, sounded like an exhalation of breath. Beneath the sound, Brian murmured, “I appreciate what you’ve done
. But I can’t tell you how it feels to be crazy.”
Terry looked into his client’s somber blue-gray eyes. Softly, he said, “Then you need to get over it, Brian. Literally.”
Brian smiled a little. “Take my sis to dinner, Paul. I’m okay on my own.”
WHEN TERRY AND MEG got in the car, he listened to a message on his cell phone. “It’s not Colonel MacDonald’s day,” he told her. “My friend reports he’s being passed over for promotion. That’s at least one member of the court who’s very unhappy with the army.”
Meg turned her head, face resting against the car seat. “Remember the first day we met, when I questioned whether you could handle this?”
Terry smiled. “Not a good day for me. You were tough.”
“And now I’m embarrassed,” she said gravely. “In fact, I’m deeply ashamed. There must be some way to make it up to you.”
“A written retraction?”
“Not good enough. Ever make love in a car?”
Terry looked around them, as though considering the logistics. “Not since high school,” he said. “And she didn’t look like you. The only drawbacks I can see are that it’s eleven-thirty in the morning, I’m in full dress uniform, and we’re surrounded by reporters and guys with video cameras. You’d be a smash on YouTube.”
Meg’s throaty chuckle came with a grin. “How sincere can an apology be if it isn’t public?”
Terry gazed at her in pretended shock. “You have a dirty laugh, I just discovered. I’ve never heard that laugh before.”
“You never sold an insanity defense before.”
“Certainly not this one.” Terry put the key in the ignition. “Think this can wait five minutes?”
“Yeah. But not six.” By the time they parked in front of his apartment, Meg had wrapped her panty hose around the stick shift of his car.
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