Paul Levine - Flesh and bones

"Yes."

"Did she run away from her father or seem frightened of him?"

"No."

"Did Harry ever touch his daughter in an inappropriate manner?"

The jurors were all looking at Schein. He had to answer no. If it had been yes, he wouldn't have needed the great, climactic hypnotic therapy to solve the mystery of Chrissy's misspent life.

"No. He was affectionate to his daughter, but there were no overt manifestations of incest."

"Did Chrissy ever display any of the signs of sexual abuse when she was eleven or twelve years old?"

He thought before answering, and I could read his thoughts. That happens sometimes on cross-examination. You know where you're going, and so does a smart witness. Again, Schein was in a bind. If he answered yes, I'd ask what he'd done about the suspected abuse. The answer, of course, would be nothing, and then I'd question both his competence and his credibility. Cross-examination is like chess. You're always thinking three moves in advance.

"No, not that I noticed."

"But this extra dimension of knowing Harry Bernhardt somehow led you to conclude that he had raped his daughter?"

"It was just one factor," he said quickly.

"What else did you rely on, Dr. Schein-the factor that you hated him?"

He ran a hand over his shaved head, then crossed his legs, knee over knee. He turned his body away from the jury box at a forty-five-degree angle.

Body language.

Dr. Les Weiner had taught me all about it for three hundred bucks an hour. The jurors had never taken any lessons, but they knew. Unconsciously, we all notice the signs. Preening, clenched fists, tightly crossed legs, unnatural gestures are all products of tension. A jerky motion with the hand reveals that the person is trying not to extend too far, and rapid hand movement may mean that the witness is trying to make a point and get it out of the way. Covering the mouth with a hand-psychologically covering up the words-is a giveaway, too.

In the nearly silent courtroom, I heard Schein's feet shuffle. The witness stand was closed in the front, so I couldn't see inside, but I'd give you two to one that he crossed his feet at the ankles beneath, not in front of, his chair. It's a sign of closing down, and I hoped the jurors noticed through the open side of the witness stand.

"No," Schein said finally. "As I told you earlier, I didn't hate him."

"Forgive me. At first you said you were Harry's 'friend,' but no, you then said you misspoke about that. You admit being in love with Harry's wife, writing her romantic poetry, and spending several days a week by her side. You blame Harry for her early death, and now you conclude fifteen years later that he must have sexually abused his daughter, because she was a skinny, unhappy model who slept with a lot of men in Paris and Milan. Is that about it?"

At the defense table, Chrissy sobbed quietly. Schein's mouth moved but nothing came out. He reached for the pitcher, and his hand shook as he poured water into a glass. It took another moment for him to have a sip, then say, "No. My personal feelings had nothing whatsoever to do with my diagnosis."

"Then why, Doctor, even after Chrissy denied that her father abused her, did you suggest that he had?"

"I didn't suggest anything. I continued the inquiry."

"So you did," I said, hitting the Play button.

"Christina, memory is a funny thing. There are memories we recall and some we just feel. What do you feel?"

''I don't know. Strange things.''

"Ah, that may be the beginning. Do you know what sex is?"

"Yes."

"Did you ever have sex with your father?"

A sob. Then, "I don't remember that."

''But you 're crying. Why are you crying?"

''I don't know.''

"Christina, have you ever seen the tracks of a wild animal in the woods?"

"Not in the woods, but I've seen turtle tracks on the beach."

"And did you see the turtle, too?"

"Not always. Sometimes just the tracks."

"But you knew the turtle had been there."

"Yes."

"I can see the tracks of the animal all through your life. The monster has been there. I think you see it, too, but you've covered it with layers of dirt. Can we scrape through that dirt, can we uncover the monster?"

''I don't know.''

Click.

"What was that, Doctor?"

"What?"

"Didn't you just hit the Stop button before asking more questions?"

He crossed his arms in front of his chest. "No, I wouldn't do that."

I stopped the tape and gestured toward Margie, the court reporter, huddled over her stenograph. "Because that would be the equivalent of the reporter failing to take down some of these proceedings, correct?"

"I suppose."

"Which would create a false record, isn't that right?"

"I don't know if I'd say false, but at least an incomplete record," Schein said.

"And therefore a misleading record?" I do not give up easily.

Exasperated now. "Yes, it could be."

Sometimes the truth comes hard, but as Charlie would say, magna est veritas.

Again, I hit the Play button, and after a few seconds, we heard Schein's voice.

"Let's talk about your father."

"I always loved my daddy. Always."

"Good Chrissy. That's a good girl."

"And my daddy always loved me."

"Did he?"

"Daddy told me I was his best girl, and now that Mommy's sick, I.."

"What, Christina?"

"I remember now. I remember."

"Very good, Christina. Very good. What do you remember?"

"I make Daddy happy. I pretend I'm Mommy."

"Does he come to your bedroom?"

"Yes."

"Do you have sex with your daddy?"

"Of course I do, silly. I'm his wife."

I shot a look at the jury. Appalled. Disgusted. Compassion for little Chrissy. Which I needed to convert into compassion for big Chrissy, and to do that, I had to prove that something worse had happened to Chrissy than being abused by her father. I had to prove she had been tricked into killing the innocent father she loved by a devious shrink who had implanted false memories in her.

"Now, Dr. Schein, what happened when the recorder was turned off?"

"I have no recollection. I don't know. I could have made a phone call. It could have been anything."

"Anything? Including suggesting to Chrissy-your hypnotized, drugged, anxiety-ridden patient-that her father committed unspeakable acts though she could not remember them?"

"No! I didn't do that."

And I couldn't prove it. But I sure as hell could suggest it.

I played three more tapes, each more graphic than the last. From the anguish in Chrissy's voice, there was no doubt she believed her father had abused her. That was the tightrope I had to walk. She might have shot an innocent man, but she sure as hell believed he was guilty. At the defense table, Chrissy sat looking straight ahead. The jury could see that magnificent profile, a single tear tracking down a cheekbone.

I thumbed through my notes and took a deep breath. All I had to do now was take the damning evidence against my client and turn it around. Finally, I announced, "Your Honor, we'd like to play the last tape, number twenty-seven."

I waited for Socolow, and it didn't take long. "Judge, there's no such tape on the exhibit list," he said. "It stops at twenty-six."

I walked toward the prosecution table and handed Abe a transcript of the final tape. "It's newly discovered evidence," I said placidly, "and there's no prejudice to the state."

"No prejudice!" Abe seemed happy to be angry. "There's always prejudice in surprise. Unless there's a good reason for the failure to discover…"

Abe stopped. He was reading the transcript. Then he looked up at me and whispered, "Are you crazy, Jake? You'll be disbarred for incompetence."

"If that were an offense, half our brethren would be selling whole life," I whispered back.