"Flashbacks," I said, mulling it over.
"Yeah, like in
Dolores Claiborne
, only there they weren't black and white, just kinda a different color, and Kathy Bates could remember all this really bad stuff that happened to her."
Granny was looking at me sideways. "What are you thinking, Jake?"
"Just trying to figure how to bring up the music."
We started the day with housekeeping matters, both sides submitting proposed jury instructions, even though we were a week away from finishing the case. Judge Stanger granted my motion to exclude Luciano Faviola and Martin Kent as witnesses, ruling that the pattern of prior acts of violence was not similar enough to meet the
Williams
rule, and in any event, there was no question as to the identity of the shooter.
Abe Socolow's direct examination of Rusty MacLean was short and thankfully lacking in surprises. Rusty told the jury that he had been sitting immediately adjacent to a heavyset man at the bar. No, he didn't recognize the man, never saw him before. Mr. Lassiter was sitting right next to Rusty. The jury seemed puzzled by that. No frame of reference. Johnnie Cochran wasn't with O. J. on June 12, 1994, right?
The defendant, Christina Bernhardt, walked in. Sure, he'd recognized her. At one time, he was her agent, but you know how models are. Jump from agency to agency at the promise of better work. She wasn't more than ten feet away when she pulled out a gun and fired three times at the heavyset man. Hit him with every shot.
"What, if anything, did you do?"
What, if anything . . .?
My profession has its little ritualistic questions. Once, in a lawsuit against a dressmaker for a botched wedding dress, the opposing lawyer asked my client, the bride, "What, if anything, were you wearing during the ceremony?"
"I was frozen," Rusty said, shaking his head. "I mean, I never saw anything like . . ."
He let it hang there.
"Then what happened?" Abe Socolow asked in another time-honored question lawyers use to move the story along.
"Jake, Mr. Lassiter . . ." Rusty looked over at me and gave a half smile. He was a boyish charmer until you got to know him. "Jake jumped up and went for the gun, but Chrissy just fainted dead away into his arms."
"Your witness," Socolow said amiably.
There was no need to cross-examine Rusty. Except my need to inflict some pain, preferably not on my client or myself. I stood and Rusty smiled at me, which caused a red-hot spot in my gut to spread to my limbs. I was sweating.
"Mr. MacLean," I began, as if I'd never seen this fellow in my life, "have you ever been convicted of a crime?"
Rusty's smile froze, and he shot an anxious look at Abe Socolow, who merely shrugged. It's a perfectly legitimate question of any witness, but strangely, under the rules of evidence, if the answer is yes, you can't ask, "What crime?" If the answer is no, and it's a lie, you can put on evidence of the conviction to impeach the witness.
"You oughta know," Rusty said finally.
"Indeed I do, but the jury does not." I opened a file and held up a blue-backed legal document, as if examining it. "I ask again, sir. Have you ever been convicted of a crime?"
"Yeah, you represented me. Next time, I'll get a better lawyer."
That drew some laughs from the gallery, and a few smiles from the jury box, but it didn't bother me one bit. Let the jurors think poor Chrissy had a bumbler while the state was represented by the coolly efficient surgeon named Socolow. I am not above a ploy for sympathy. I returned the blue-backed document to its file folder. It was the deed to my house, not Rusty's conviction for fraud, after overcharging models for their composites while making farfetched promises of employment.
"Mr. MacLean, how much time elapsed from the moment Chrissy Bernhardt took the gun from her purse until the last shot was fired?"
Rusty shook his head. "It was quick. I dunno. Less than ten seconds." He stared into space, thought about it, actually brought his hand up as if holding a gun, pulled an imaginary trigger three times. "Maybe six seconds."
"Six seconds," I repeated. "Now, you just testified that Christina fainted after shooting her father?"
"Yeah. I said that."
"So she lost consciousness?"
"She just collapsed, and you caught her before she hit the floor."
"Precisely when did she lose consciousness?"
"Precisely? I don't know."
"Was it a second before she fell, five seconds, six seconds?"
"Well, it couldn't have been six seconds. That would be about when she started firing, and she was conscious then."
"She was?" I tried to sound surprised. It isn't difficult because I often am. "Were you monitoring her heart rate?"
"No."
"Or her blood pressure?"
"No."
"Or her brain waves?"
"No, of course not, but she was firing a gun, for God's sake."
"Which you were looking at, correct?"
"What?"
"The gun, Mr. MacLean. When Chrissy Bernhardt was firing the gun, state's exhibit three . . ." I walked to the clerk's table and picked up the little Beretta. "You were looking at it, weren't you? Your eyes were glued to the gun?"
"Yeah, I guess so."
"Just as you are now?"
Rusty's eyes flicked from the gun to the jury and back to me. "Yeah. It kinda draws your attention."
"Therefore, you weren't looking at Chrissy's eyes, were you?"
He paused a moment, irritated with me. "No, I guess not."
I returned the gun to the clerk. "So you couldn't possibly know if Christina's eyes were open or closed at the time of the shooting, could you, sir?"
The purpose of cross-examination is to eliminate a witness's choices, and just now, Rusty had no choice. "No, I couldn't tell if her eyes were open," he admitted.
"You couldn't see her facial expression at all, whether her face was slack or taut?"
"No."
"And consequently you don't know if she was conscious or unconscious or in some in-between state?"
"Objection! Calls for speculation."
"Overruled, but Mr. Lassiter, why don't you rephrase anyway? 'In-between state' is a little vague."
"Do you know if Christina Bernhardt was conscious at the time of the shooting?" I asked.
"I don't understand the question," Rusty said. He was not going to make it easy for me, especially after I humiliated him with the criminal conviction question.
"All right," I said. "Was she alert to her surroundings?"
"She seemed to know where her father was sitting."
Ouch. I went on without blinking or checking for wounds. "Did she appear to notice you sitting at the bar?"
"No."
"And you were right next to Mr. Bernhardt?"
"Yeah."
"And you were a friend of Chrissy's?"
"Like I said, I was her agent once."
"Did she say hello to anyone in the club?"
"Not that I saw."
"Did she move quickly toward Mr. Bernhardt?"
"No. She kinda swayed over, the way models walk."
"Slowly?"
"Yeah."
"In a languid manner?"
"I don't know what that means."
Neither had I until I looked up synonyms for "faint," "feeble," and "weak."
"Did she seem to be in a trance?" I asked.
"I never saw anyone in a trance," he said, "except in the movies. More like she was real sleepy."
"As if she were sleepwalking?"
"In a way."
"Which is sort of a trance, is it not?"
"Objection! Repetitious." Socolow was on his feet.
"Sustained. Mr. Lassiter, I do think you've mined this ground."
"Thank you, Your Honor," I said, bowing slightly, more to loosen up my back than pay homage to the judge. "Now, Mr. MacLean, did Chrissy try to escape or avoid capture?"
"No. She just collapsed."
"Do you know if Chrissy had any history of blacking out or fainting?"
I expected
I don't know
. Rusty paused a moment, thinking about it.
"Yeah, now that you mention it, she did. On a couple of shoots, she fainted. I told her to go see a doctor, but I don't know if she ever did."
That got the jury to thinking, and I did the same.
25
Turning Out the Lights
"Do I remember her?" the doctor asked, smiling. "Did you just walk through my waiting room, Mr. Lassiter?"
"Sure."
"And what did you see?"
"Half a dozen old guys reading magazines."
"Exactly. A cardiology practice is not usually graced with the likes of Ms. Christina Bernhardt."
I was sitting in the office of Dr. Robert Rosen on Northeast 167th Street. He had a freestanding building within a quick jitney ride of the condo canyons of North Miami Beach. Median age of the neighborhood, somewhere between sixty-five and Riverside Chapel. The doctor had a Salvador Dali mustache and a bushy head of hair. He stared through wireless spectacles at Chrissy's file. On the wall behind his desk was an Impressionist painting of a woman in a garden.
"A lovely girl, Christina," he said, looking at an open folder containing medical records. "Referred to me by her GP for unexplained fainting spells. She admitted to occasional cocaine use, though not within the previous twelve months. We checked for inflammation of the heart, which proved negative. The fear, of course, is transient cardiac rhythm disturbance. That's what killed the young basketball player."
"Reggie Lewis," I said.
"That's him. Never should have played with his history of fainting. In his case, the heart went into ven fib; he lost consciousness instantly, like turning out the lights. No pulse, no blood pressure. Sometimes the heart goes back on track. Sometimes it doesn't, and the person dies."
"But that's not what Chrissy has."
"No. We did the tilt-table test. Raised her upright to eighty degrees. She passed out in . . ." He thumbed through the file. "Thirty-eight minutes. Classic neurocardiogenic syncope, not fatal. But you can get a pretty good bump on the head, depending where you fall."
"When she passes out, is it sudden, like with the rhythm disturbance?"
"No. It's more gradual, as the blood pressure and heart rate fall. She'd get woozy."
"And be semiconscious for several seconds?" I said. Leading my witness, or the guy who would soon be my witness.
"Yes, I suppose she would."
I thanked the doctor, who told me to forget his usual three-hundred-dollar consultation fee. I thanked him again, and he said to tell Christina it was just about time for a follow-up visit.
The second day of testimony started with the paramedic, a former Miami Beach lifeguard, who had transported Harry Bernhardt to the hospital. The subject—he used the police term—was bleeding from at least three gunshot wounds and rapidly going into shock. They took his blood pressure, ninety over sixty and falling; gave him an injection of ephedrine to stabilize him; put pressure bandages on the wounds; inserted an IV of Ringer's lactate, a salt solution; took an EKG, then transmitted the strip to the ER at Mount Sinai by portable fax; talked by radio to the trauma surgeon at the hospital; then administered oxygen. Yes, the subject was conscious.
"Did Mr. Bernhardt say anything?" I asked on cross. Which I wouldn't have done unless I knew the answer. Unlike the federal courts and many other states, Florida permits defendants to depose all prosecution witnesses before trial. So I knew the paramedic wouldn't blindside me:
Yeah, the old guy said, "Christina, why did you do this? Why, after everything I've done for you?"
"He responded to my questions as to the location of his injuries and the medication he was taking," the paramedic said.
"Anything else?"
"He mumbled something."
"And what was that?" Sometimes prosecution witnesses take their instructions not to volunteer anything way too seriously.
" 'Emily.' He kept saying, 'Emily, I'm sorry.' Then I put the oxygen mask on him."
Yeah, I would have preferred him to say,
Christina, I'm sorry. I'm sorry I raped you when you were a girl, and you have every right to shoot me, and if you hadn't done it, I would have done it myself
. But you take what they give you. You plant little seeds, fertilize them if you can, and hope they grow.
"That's all he said?" I asked. " 'Emily'?"
"That's all I heard."
"And Emily was Mr. Bernhardt's late wife?"
"I wouldn't know that."
But now the jury would.
After the paramedic came Dr. Nubia Quintana, the surgeon who had debrided the wounds, inserted a tube through the chest wall to release blood and air from the chest cavity, stanched the internal bleeding, removed the two bullets that had not exited, and given Harry a good dose of antibiotics. She used fancy terms like "tension hemopneumothorax" but clearly gave the impression, which I liked, that the surgery had been no big deal.
"These bullets were twenty-two shorts, were they not?" I asked on cross-examination.
"I'd have to look at the police report," Dr. Quintana said. "They were small-caliber bullets, but whether they were twenty-twos or twenty-fives, I couldn't say." She had done her residency at Jackson Memorial, the public hospital, where the Saturday Night Gun and Knife Club produced significantly greater wounds on an hourly basis.
"And none of the wounds severed an artery?"
"No."
"Or caused extensive blood flow?"
"No."
"In fact, only the chest wound gave you any concern?"
The doctor smiled, a bit condescendingly. "I was concerned about all the wounds. The bullet that pierced the lung was the most serious."
"A bad choice of words on my part," I said humbly. Always admit your mistakes. The jury will like you for your semihonesty. "None of the wounds was life threatening, correct?"