Blind Justice (20 page)

TOLLETSON FINISHED AFTER three days of testimony. His presentation had been crisp, clean, and deadly. Grudgingly, I had to admire his work, though in much the same way as a condemned man admires the way the executioner swings his ax.

Now it was my turn. My case would rise or fall with the jury’s understanding of Howie’s mental state. I had to prove that he did not have the mental state necessary for murder, namely, malice aforethought. That meant the jury had to get to know Howie.

That’s why my first witness was Janet Patino. I knew the jury would listen carefully to her. She was his mother, and she was credible.

In a calm voice, broken only occasionally by a short sob, she told the jury about Howie’s childhood, about his struggles in school, and how he was always “just a little slower” than the other kids. Tolletson let her testify without objection up to the point where Janet met Rae for the first time.

“He called you and told you he wanted you to meet her. Is that right?” I asked.

“Yes,” Mrs. Patino answered, “and we decided to have them over for dinner.”

“When was that?”

“I don’t remember exactly, but it was in the summer.”

“And did they come over for dinner?”

“Yes, they did.”

“What was your impression of Rae when you first met her?”

“Objection,” Tolletson said. “Relevance. The witness’s impression doesn’t go to anything at issue here.”

“It does, Your Honor,” I said.

“I don’t see it, Mr. Denney,” Judge Wegland said. “The character of the victim is not relevant. Nor is the state of mind of the witness. What other issue does it go to?”

“It just gives a fuller picture to the jury, Your Honor.”

“I’m bound by the rules of evidence, Mr. Denney. Only relevant evidence is admissible. The objection is sustained.”

So the jury was not going to know anything about what kind of person Rae Patino was unless Howie took the stand and testified about it. And that was a gamble I wasn’t prepared to take. Yet.

Tolletson asked only a few questions of Janet Patino. He was all charm and deference with her.

“Mrs. Patino, you love your son, don’t you?”

“Oh, yes.”

“You’d like to see him walk out of this courtroom a free man, wouldn’t you?”

“Of course I would.” She wiped away a small tear from her left eye.

“But you also would want him to be held accountable for any wrongdoing on his part, wouldn’t you?”

A brilliant question. There was no way she could answer it so that it wouldn’t be helpful to Tolletson. If she said no, the jury would discount her testimony as biased. If she said yes, Howie would stand condemned by the words of his own mother. So it was, from a trial lawyer’s standpoint, a great move. But I hated Tolletson for asking it.

The tears started flowing freely down Janet Patino’s cheeks. She trembled visibly. Her mental strain was obvious as she attempted to formulate an answer. At one point she looked at Howie as only a mother in torment could.

Tolletson said, “That’s all right, Mrs. Patino. I withdraw the question. That’s all I have.”

As Janet Patino stepped off the witness stand, I tried to read the jurors’ faces. Most of them were looking down, as if they couldn’t stand to look at poor Janet because they knew what anguish she was suffering—the agony of a mother with a guilty son.

Next up was Dr. Hendrick Brown.

As he took the oath from the clerk, I could sense the tension in the courtroom. Everyone seemed to know this was a crucial moment. The defense expert was about to take his shot. From both Brown and myself, it would have to be the performance of a lifetime.

I spent a good fifteen minutes having Dr. Brown go over his education and credentials. I wanted a solid, credible foundation for his testimony. Another reason for the
bona fides
was that he didn’t look the part of the traditional psychiatrist. He did not dress sharply or speak with an Ivy League accent. If seen on the street, most people would not even think of him as a professional. He seemed more like somebody’s neighbor, one who liked to work in his rose garden. That impression was magnified by what he wore to court—a sweater over his shirt and tie. So I made sure the jury knew of his extensive education, writings, and work with patients.

Then I turned to his examination of Howie at the Hinton County Jail. “Can you describe for us, please, the procedure you used to examine my client?”

“Certainly,” said Dr. Brown as he expertly turned toward the jury box. “I injected Mr. Patino with sodium pentathol, which is commonly called truth serum. It’s a medical device that is often used to help patients recall traumatic events. In this case, I thought it necessary to break through the mental wall Mr. Patino had -understandably erected concerning the death of his wife. After the injection, Mr. Patino went into a mild, trancelike state, and I proceeded to ask him questions.”

“And did he answer those questions?”

“Yes, he did.”

“Was a transcript made of those questions and answers?”

“Yes.”

I fetched a copy of the transcript from my briefcase, but before I could hand it to Brown, Tolletson spoke. “At this point, Your Honor, I’m going to object on
Kelly-Frye
grounds.”

Tolletson was referring to two cases governing the admissibility of certain scientific evidence. I had expected that and was ready. “Your Honor, I don’t think we’ll have to dismiss the jury for a hearing. If we may approach?”

Wegland waved us up. For once, Tolletson seemed caught off guard. It was like fresh air blowing through a stuffy basement.

“This is not a
Kelly-Frye
issue,” I said. “We’re not talking about a new scientific method here at all. Sodium pentathol has been used for decades.”

“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.