by Paul Levine
“No.”
“Did you do your own research?”
“No.”
“Did you call your uncle and ask his opinion?”
“No.”
“Is it possible you didn’t want to dig too deeply, that you simply chose to believe Max Ringle, rather than learn the truth?”
“Max said no one would ever complain, and it made sense. The parents and kids were happy. The proctors and coaches and universities were all making money. There were no victims.”
“No victim . . . except the law?”
“I don’t know what that means. I think it’s up to the jury to determine that.”
A pretty good answer, kiddo.
“So that there’s no mistake, you admit you did each and every one of the acts laid out in the indictment?”
“Yes.”
“You cheated on Shari Ringle’s exam?”
“Yes.”
“You cheated on Teague and Niles Hallinan’s exams?”
“Yes.”
“You cheated on Craig Kwalick’s exam?”
“Yes.”
This went on for the next fifteen minutes. Every single exam, followed by the amount of money Kip collected. Bolden’s intention was to burn into the jurors’ minds the notion of multiple illicit activities. As if to say, “Hey, if the kid did this once, it was a lark and no big deal. But he’s a racketeer, a serial offender, a one-man crime wave.”
“In one year, you made six hundred thousand dollars as senior vice president of Q.E.D. and president of Personalized Test Enhancement, Inc., correct?”
“Yes, but those were just titles Max came up with. We joked around about them.”
“But the money was no joke, was it?”
“I didn’t do it for the money.”
“Right. You said that on direct. But you lived in a four-thousand-dollar-a-month apartment on Brickell Avenue, didn’t you?”
“Max provided it.”
“And you bought a Tesla SUV that cost in excess of one-hundred and twenty thousand dollars, correct?”
“Max thought I should have nice ride for meeting wealthy Florida clients.”
“And your credit card records show you bought several Italian cashmere sweatshirts for, what was it, over two thousand dollars each?”
“Max encouraged me to dress well.”
“Max. Max. Max. Is Max to blame for your having committed all these crimes?”
“Objection!” I sang out. “Argumentative. Calls for a legal conclusion. Invades the province of the jury.”
“Anything else, Mr. Lassiter?” the judge inquired.
“Also . . . I wanted to stretch my legs.”
“Overruled. The witness may answer.”
“I don’t blame Max. I blame myself for trusting him. I blame myself for not listening to my uncle. I blame myself for being what Granny Lassiter used to call a ‘dang fool.’”
Bolden spent the next ninety-four minutes playing audio recordings of Kip discussing the scheme with Ringle and their clients. She replayed the recording from the day I visited Ringle’s home, just in case the jury had forgotten those excruciating admissions. The one that begins, “I devised two plans . . .”
Having scored all her points, Bolden sat down. Judge Speidel declared that the sun had set on today’s festivities and gave the jury the usual admonitions not to discuss the case or read about it.
I had known that Kip would take a lot of incoming fire today, and he had. I pictured one of those B-17’s in World War II, returning to England after a bombing run over Germany. One engine missing, wings peppered by flak, tail shot to hell, stabilizers shredded, and still, somehow it lands. The crew would live to fly the next day, and we, too, would be back tomorrow. I gathered my files and my nephew, and we headed home for our final War Council, bloodied but unbowed.
CHAPTER SIXTY-THREE
The Dopamine Rush
I watched Kip, who was sprawled in the hammock with his eyes closed. Melissa nudged me in the ribs and whispered, “Who’s that remind you of?”
“What do you mean?”
“The way Kip locks both hands behind his head when he’s resting. That’s you. He’s picked up a lot of your mannerisms without either of you being aware of it.”
We were on the back porch, nursing our margaritas. I watched Kip for a moment, my heart filled with warmth, my mind overflowing with dread.
“You haven’t told me how it went today,” Melissa prompted.
“Pretty much as expected. Kip was very good on direct, and he got dinged on cross. If the trial had ended today, we would have lost. But we have one more day and one more witness.”
Before replying, she took a long sip of her cocktail. “Well, that doesn’t put much pressure on me, does it?”
“Face it, Mel. You have to save two lives. Kip’s and mine. Tell me again about Kip’s brain scan. I don’t understand why you had to do it twice.”
“To double-check the imaging. The first one just didn’t seem right.”
“And . . .?”
“Well, you have to understand. It’s complicated.”
***
The next morning, Melissa wore a double-breasted navy skirt suit on the witness stand. Her fitted jacket had gold buttons, and her skirt fell below the knee. Her reddish-brown hair was pulled back into a half ponytail. Tortoise shell reading glasses were perched on her head in case she needed to review documents. The impression she conveyed was one of quiet stylishness and professionalism.
I spent several minutes qualifying her as an expert witness. Undergrad degree from Columbia. Masters in neuroscience and a doctorate in molecular science from Yale, M.D. from Duke, board certified in neurology and neuropathy. A couple fellowships, a bunch of papers with titles like “Cerebellar Cognitive Affective Syndrome: Implications for Neurology and Psychiatry.” Former Director of the Center for Neuroscience at UCLA, currently head of the Concussion Project at the University of Miami, in contention to be the first director of the brand new C.T.E. research program at the National Institutes of Health.
“Dr. Gold, how are you and I acquainted?”
She smiled. “You took my deposition in a civil case. At dinner that night—lamb shank for you, gnocchi with Dungeness crab for me—you stood up, recited the names of several deceased football players and collapsed. That night, I became your treating physician for your traumatic brain injury.”
“Excellent memory. And besides being my doctor . . .?”
“I am your fiancée. We are engaged to be married.”
A murmur swept through the gallery, and several jurors smiled. Everyone likes to see love in bloom.
“Do you know my client, Kip Lassiter?”
She looked at Kip with care in those pale green eyes. “I’ve known him for three years. For two of those years, we all lived in the same house.”
“Are you an impartial observer when it comes to Kip?”
“No, but I’m a medical professional. I can render objective medical opinions, just as I do when treating you. The fact that I love you, that we are to be married, does not interfere with my medical judgments.”
“Then let’s get to it. What’s the first thing you noticed about Kip when you met him three years ago?”
“Several memories coincide. How bright and inquisitive he was. How warm and caring he was with you.” A cloud crossed her face and her words became more reluctant. “And then some things off-key. I remember trying to read a note he left for me on the refrigerator. He had a child’s messy handwriting. Then, I noticed he had difficulty buttoning the sleeves on a shirt, and, finally, that he was somewhat clumsy with scissors when opening one of those sealed plastic packages. Batteries, I think.”
“Leading you to conclude . . .?”
“A deficit in fine motors skills. Not a huge deficit, but enough to be noticed.”
“Anything else stand out?”
“In social situations, I noticed he had difficulty processing nonverbal cues. Body language and facial
expressions. Sometimes, he didn’t know when someone was joking because he missed those cues and took everything literally.”
“In preparing for your testimony, did you give Kip any written tests?”
“Yes, the Grossman Learning Assessment.”
“And what did you find?”
“Considering both my observations of Kip and the written test, I diagnosed him with the brain affliction known as Nonverbal Learning Disorder.”
“What are the major characteristics of this disorder?”
“Generally, a weakness in personality judgment, assessing another person’s behavioral characteristics. Missing the nuances and subtleties of conversation. Specifically, in Kip’s case, an overly trusting nature stemming from an inability to tell when someone is lying.”
“How do the rest of us make those judgments?”
“We constantly use nonverbal cues to assess other people. If someone avoids eye contact or sweats profusely or bites their lower lip when speaking to us, we might conclude they’re lying. Kip would not. Call it a childlike naivete.”
At the defense table, Kip frowned and shifted uncomfortably. He seemed more upset being called naive than a master criminal.
“If Max Ringle told Kip there was nothing illegal about taking tests for other people . . .?”
“Kip would be more likely than most people to believe him.”
“Are there hallmarks of N.L.D. we’d consider positive?”
“Several.” She glanced at Kip, gave him a small smile. “Excellent vocabulary, exceptional memory and auditory retention, extremely high intelligence.”
“Good traits for taking standardized tests?”
“Obviously.”
“As you know, Kip had a problem with video games beginning in his early adolescence. What do you make of that?”
“An overindulgence or even addiction to video games is consistent with the personalities of many young people who suffer from N.L.D.”
“Do you have any special expertise on the effect of excessive gaming on the young brain?”
She nodded. “At UCLA, my department led a study in changes in brain patterns and long-lasting effects of overindulgence in gaming. We established a gaming detox center because the addiction is as real as drug, alcohol, or gambling addictions. We treated teenagers who wore diapers when they played so they would never have to leave their games.”
A couple jurors appeared appalled at that. They were watching and listening, and they liked Melissa. Well, what’s not to like?
“What are the effects on the brain of excessive gaming?”
“Surges in the release of dopamine, a neurotransmitter.”
“And the effect of those surges?”
“It’s quite profound. The brain binges on those surges and elevates dopamine to the same levels experienced by drug users on ecstasy.”
I paused a moment to let that sink in. The courtroom was quiet as a tomb, Melissa holding everyone spellbound.
“And what’s the effect of repeated elevations of dopamine in the brain?”
“Addiction, because the surges create a craving for even more dopamine.”
“And if someone who’s addicted to gaming gets cut off from playing?”
“He’ll crave it even more. This is particularly true in adolescents whose brains are not fully formed.”
“Kip has testified that he feels a rush playing the games, that he gets ‘juiced.’”
“Yes, of course. That’s the dopamine surge.”
“And the effects long-term?”
“A hyper-reactivity to gaming that numbs the pleasure response for virtually everything else. It’s either gaming or a new substitute. There can be positive substitutes, like exercise or satisfying work, or negative substitutes.”
“Kip testified he got juiced taking other people’s tests. How does that fit the equation?”
“The test taking, unfortunately, was a negative substitute. The risk-reward of the tests replaced the risk-reward of the games. If he aimed for a 1500 on the SAT and got it, the effect on the brain is identical to winning in eGames.”
“Is it your medical opinion that Kip’s addiction to the dopamine rush of gaming primed him for the rush of the fraudulent test taking?”
“Yes, that is consistent with my findings.”
I had one more issue, the big one. The brain scan, our only objective evidence supporting Melissa’s diagnosis. I felt confident it would make an impact with the jury. But if I dared leave it out and baited Bolden into asking the question on cross, well, the impact might be a hundred megatons greater.
Will Bolden take the bait?
If I didn’t present the brain scan on direct, would she wander into my trap by hammering Melissa for her purely subjective findings? If so, ka-boom! Melissa would haul out the scan. The risk was that Bolden wouldn’t venture into that area, and I would then be foreclosed from getting into it because re-direct cannot exceed the scope of cross-examination.
I weighed the probabilities, realizing this would be my most important decision of the trial. The cautious choice would be to present the evidence myself. And if I thought we were winning, that’s what I would do. As it was, I thought we were getting close to having a couple jurors on our cheerleading squad. Just not quite there yet.
One last thought went into my decision. A trial is part legal proceeding and part theater. In Phantom of the Opera, they could have just turned out the lights on the chandelier, but crashing it to the stage in an explosion of glass and flames packed a far more powerful punch.
Hell yes! I’ll take the risk. If it blows up in my face and Kip is convicted, his best bet would be claiming ineffective assistance of counsel.
“Your witness, Ms. Bolden,” I said, cordially, masking my fears with an amiable smile.
CHAPTER SIXTY-FOUR
In the Eye of the Beholder
Margaret Bolden gave me a sideways glance as she strode to the podium. I could read her face, too. Happy, confident, maybe even a little relieved. She knew, absolutely knew, that she could neutralize any points we’d scored on direct.
“Dr, Gold, I didn’t know that you and defense counsel were engaged and living together,” Bolden said, and miraculously, her nose didn’t grow a foot.
Hah! She probably knows what we ate for dinner last night.
“Congratulations,” Bolden continued, and I sensed just a hint of sarcasm.
“Thank you, Ms. Bolden,” Melissa replied evenly.
“So, would it be correct to say that you are the defendant’s de facto stepmother?”
“That sounds a little legalistic, but I suppose you could say that.”
“Let me ask it this way,” Bolden said. “You admit that you’re not objective, correct?”
“I admit that I have feelings for Kip, but I can still exercise independent medical judgment.”
“Subjective judgments?”
“Some are subjective, and some are objective.”
“We’ll get to that . . .”
Jeez, don’t forget. That’s our ball game.
“But first, Dr. Gold, you testified that adolescent brains aren’t fully formed.”
“That’s correct.”
“And yet the defendant at age seventeen was able to score a 1600 on the SAT, correct?”
“Yes, competing against other teenagers.”
“Still, compared to other teens, he was quite advanced when he first took the exam and also when he was paid to take it for others, correct?”
“I believe you’re confusing his intelligence with his maturity, or lack of it,” Melissa said, shielding her criticism with a polite tone. “You must know the Miller case, where the Supreme Court struck down mandatory life imprisonment sentences for juveniles.”
“I do, but we’re talking about—”
“The court found that adolescence is marked by ‘immaturity, impetuosity, and failure to appreciate risks and consequences,’” Melissa stormed ahead. “That takes on greater meaning, given K
ip’s Nonverbal Learning Disorder.”
Touché. Oh, she’s good!
I wanted to cheer. Last night, I’d told her about Miller vs. Alabama, and now Melissa had found a way to shoehorn the court’s quotation into her testimony.
Bolden’s shoulders stiffened, but her face gave away nothing to the jury. She was pissed and would sharpen her knives for the remainder of cross. I knew Melissa could handle herself, so that wasn’t my worry. I just didn’t want Bolden to change her plan. I needed her to stay on that two-lane highway of subjectivity versus objectivity.
“Part of the reason you concluded that the defendant suffers from a learning disorder is that he’s clumsy with scissors and buttoning his shirt, correct?”
“A small part, yes.”
“That’s a subjective conclusion on your part, isn’t it?”
“Yes.”
That’s it. Go, baby, go!
“Someone else might conclude differently?”
“It’s possible, of course.”
“How about your conclusion that the defendant fails to pick up body language, facial expressions, and the nuances of conversation? Also, subjective conclusions?”
“Yes.”
“His weakness in making what you called ‘personality judgments.’ Also, subjective?”
“Yes.”
Keep on trucking. Bolden couldn’t know it, but this is just where I wanted her headed. But she wasn’t there yet.
“The Grossman Learning Assessment is a self-reporting test, isn’t it?”
“Yes.”
“Dr. Gold, what’s ‘self-reporting bias?’”
“It refers to people’s tendency to try to present themselves in the best light.”
“So that, when asked for their heights and weights, people tend to exaggerate their height and minimize their weight, correct?”
“Yes, the classic example. But when I administered the test, Kip didn’t know I was testing for N.L.D.”
“Really?” Bolden grabbed a folder passed to her by one of her army of assistants. “Here’s one of the questions. ‘Do you have difficulty holding a pen, tying your shoes, or holding small objects?’ Now, Dr. Gold, don’t you think that this brilliant young man knew exactly what you were looking for?”