Judge Stanger seemed startled, perhaps wondering if Socolow really wanted an answer. Then he said, "Let's not argue the case today, gentlemen. This is merely a bond hearing, and under Arthur v. State, the defense has the burden of showing that the proof is not great and that a presumption of guilt is not evident. As I understand the proffered testimony of Dr. Schein and Mr. Lassiter's argument, there's no factual dispute. The defendant shot her father."
The judge nodded toward the defense table, where Chrissy, in a jailhouse smock, sat next to me. We'd get her dressed up prim and proper by the time a jury was called. She seemed dazed, out of place, in the controlled chaos of the courtroom. To those of us who work there, it's a second home. Same for my customers, those recidivists who know as much law as I do. But to someone from east of the highway, as we call those who grew up near the ocean, it's a frightening new world.
The judge waved his giant cigar in my direction and said, "While conceding that the shooting occurred, Mr. Lassiter argues that the defendant may not have had the requisite criminal intent to be charged with premeditated murder. Is that about it?"
"All the elements of the crime having been established, the grand jury indicted her for first-degree murder," Socolow said, raising his hands, as if it were out of his control.
"The grand jury would parade naked down Biscayne Boulevard if Abe asked them to," I piped up.
"Your Honor," Socolow said, shooting me a murderous glance, "even assuming all this psychiatric mumbo-jumbo is true, it's not a defense. Just because criminal behavior is caused doesn't mean it's excused."
I got to my feet and approached the lectern for the second time that morning. "May it please the court," I said, in the lawyer's traditional line of fealty, "Mr. Socolow ignores the fact that we have raised a substantial issue as to one of the elements of the crime. If the state cannot prove intent, it cannot secure a conviction. The court must instruct the jury that, to be found guilty of murder one, my client must have killed the decedent with premeditation, which the law defines in these terms…" I picked up the manual of jury instructions that Judge Stanger would eventually read to the jurors. " 'Killing with premeditation is killing after consciously deciding to do so. The decision must be present in the mind at the time of the killing, and the intent to kill must be formed before the killing.' "
I put down the manual and did a little sidestep toward the defense table, forcing the judge's gaze toward the lovely defendant. She looked as helpless and innocent as an angel without wings. "If Christina Bernhardt was suffering from flashbacks or blackouts which coincided with the shooting, she made no conscious decision to shoot the gun and could not be guilty of murder one. If she's been overcharged, bond should be granted."
"Blackouts," the judge mused. "Flashbacks. Is that your case, Jake?"
Using my given name. A little familiarity, asking me to cut the bullshit and level with the court. What's the trial going to be all about? I had already summarized Dr. Schein's opinion, right down to Sigmund Freud's view of repression as a defense mechanism used to suppress psychic trauma.
"That is the proffer of Dr. Schein's testimony," I said, and out of the corner of my eye, I saw Socolow shoot me a look. He doesn't miss much, and he didn't miss this. I hadn't answered the question.
Just before the bailiff called our case, I had huddled with Chrissy in the jury room, our courthouse being woefully insufficient in meeting space. "I look terrible," she said, fiddling with her hair, which was held back in a ponytail with a simple rubber band.
"You look beautiful," I told her, violating another of my rules, the one about maintaining a professional distance from the clients. I don't go fishing with the guy customers and I don't go to bed with the gals.
"Am I going to testify?" she asked.
"Not today. But before we go in there, I need to tell you something. Dr. Schein is prepared to testify that you may have suffered a blackout before the shooting, that you were in a trancelike state when you shot your father."
She looked at me with those bright green eyes. "You're asking me a question, aren't you? Like, is that the way it happened?"
I held my breath and nodded.
"Do you want the truth?" she asked.
"Yes," I said.
No, I thought. I can't handle the truth.
"I didn't black out. I wasn't in a trance. I saw Daddy sitting there, so pleased with himself. I wanted to hurt him. I wanted to hear his screams. I wanted him to hurt as much as he had hurt me. But did I want to kill him? I don't know. I really don't."
"Doesn't matter. If you understood that your actions created a strong likelihood of death, you're guilty of premeditated murder."
Her eyes opened wider, seemed to ask a pleading question: What are we going to do? I didn't know. I came into the courtroom drowning in my dilemma, the ethical conflict of a lawyer who owes the highest duty of loyalty to his client and a somewhat more vague duty to the legal system.
Now, I was doing a high-wire act, portraying our defense in terms of "if." If there had been a blackout, blah, blah, blah. At trial, it becomes more difficult. I wouldn't be able to put Dr. Schein on the stand to testify to something Chrissy couldn't corroborate. And now that she told me she had known very well what she was doing, I couldn't let her take the stand to say she had blacked out, even if she wanted to. I've never lied to the court or let a client do it. I like to win, but I like to win fair and square. I know it's old-fashioned, but that's the way I am. I like the low-scoring, smash-mouth, frozen-field Big Ten game, not the lah-de-dah, point-a-minute passing of touch football in the SEC. I hate guys who jitterbug in the end zone after scoring a touchdown. Celebration of self, dirty dancing, and taunting opponents have no place in the game I love.
When I was at Penn State, Joe Paterno ordered us to hand the ball to the official should we ever be so fortunate as to cross the goal line while carrying the leather spheroid. "Act as if you've been there before," he said. I hadn't, but in a game against Pitt, I blocked a punt in the end zone, not with my hands, but with my head. The ball stuck in my face mask and gave me a concussion. I thought I should have had a touchdown, but the officials ruled it a safety because I never had possession of the ball… my helmet did. It took two equipment managers to get the ball out of the mask, and I saw double for a week. But I had scored. Two points for my career.
"So, to paraphrase your argument," Judge Stanger said, spitting out a few fibers of Cuban tobacco, "you're seeking bond as if this were a second-degree or manslaughter case."
"That's what they should have charged," I responded, "but let there be no mistake, Your Honor. Our plea is not guilty. We'll be seeking an instruction under 782.03 on excusable homicide."
"That's outrageous!" Socolow thundered. "This wasn't an accident. That's the most absurd argument I've ever heard in a courtroom."
"You've lived a sheltered life," I whispered to Abe, then turned back toward the judge. "Accident is not the only statutory excuse for homicide, Your Honor." Again, I picked up the book. Even when I've memorized the statute, it somehow seems more authentic if I read it to the court. "A killing is excusable and therefore lawful when done by 'accident or misfortune in the heat of passion, upon any sudden and sufficient provocation.' "
"Where's the heat of passion?" Socolow demanded, his face reddening. "Where's the provocation? Harry Bernhardt was sitting at the bar sipping mojitos, for crying out loud."
"The provocation could very well have been the flashback," I said, choosing my words carefully. "A flashback of the decedent raping my client could have been just as real as if it were happening now."