John Gapper - A Fatal Debt

“It’s kind of you to see me, Mr. Solomon.”

“Hell, forget it. Never mind helping out Roger’s son, I’d work pro bono to get on the Shapiro case. Well, on insurance, anyway. It works out much the same. Let me tell you about me. I’m kind of an unusual animal. This firm mostly does civil work, corporate and tax and things like that. Lots of money in it, but no fun. Then they have me. When any of our clients gets imaginative, I do criminal defense. I’m like those guys who advertise on the subways, except a bit more upscale.”

“I’m glad to hear that,” I said, and he giggled and slapped the desk beside his legs as if he and I were already pals.

“It’s quite a story, isn’t it?” he said, looking serious for the first time. “We’ll be seeing quite a bit of each other. Roger told me about what happened. Sounds to me like you’ve got caught up in something serious, but I know it wasn’t your fault. You were doing your best to treat this guy, weren’t you?”

“I was,” I said. He’d put it better than I’d managed myself. It was comforting to have a professional on my side.

“Roger said you got ambushed by the Suffolk County cops. Next time it happens, tell them you need your lawyer present and nothing else. It’s no surprise they’ve got a ninety-seven percent conviction rate. A lot of people confess to all kinds of things in that place before they get to call a lawyer. And you know what? They don’t use any tapes. They write out the confessions and get the poor guys to sign. They don’t stand a chance.”

I thought of the neat confession Pagonis had showed me outside the Riverhead jail, with its reference to me discharging Harry. It hadn’t looked like his handwriting.

“I didn’t tell them anything,” I said.

“Good, that’s always best. So I’ve talked to the DA’s office, who were as helpful as usual-in other words not at all-and to Henry Barber, who’s his attorney. He’s an old friend and he dropped me a couple of hints. I reckon they’ll admit to the killing and plead extreme emotional disturbance. Are you familiar with that?”

“I’ve heard of it.” We were taught mental health law in residency, although I’d just started going out with Rebecca and I wasn’t concentrating very hard. “Maybe you could explain it again.”

“It’s like a weaker version of the insanity defense,” Joe said. “If he was mad, say hallucinating or schizophrenic, he’d be locked up in a state psychiatric hospital instead of a jail. The defendant doesn’t have to be crazy for emotional disturbance. It’s being overcome in the moment and not knowing what you’re doing. Like a man who comes home and finds his wife in bed with another guy and kills him. I’d go for that in their shoes, given that he’s confessed.”

“How does that help?”

“Knocks murder two down to manslaughter if a jury goes for it. I don’t imagine the DA would accept a plea. Shapiro could get ten years instead of life, less maybe. Juries don’t like it. It suggests the defendant wasn’t responsible, and he’s not a sympathetic guy, but it could work. The best thing for them is the discharge from Episcopal. They can say the guy was unstable, was on drugs. He’d been admitted to the hospital to protect him from himself. That’s good for them.”

“Right,” I said grimly.

“So that’s the criminal case, then after that there’ll be a civil suit. Greene’s family can sue the hospital and you for wrongful death. They’ll wait until Shapiro’s been convicted so the cops dig up all the evidence first. They’ll say you were responsible for discharging him negligently. There’s a doctor-patient relationship and harm’s been done, so they just have to show a breach of duty of care and a causal link to the killing. The good news is that it’ll take a long time, so who knows what’s going to happen? The suit could get settled out of court. Insurers are risk-averse. They don’t like to fight.”

I felt pummeled by bad news. I’d expected to be told something like this, but hearing him set it out so matter-of-factly, as if there were very little I could do to change my fate, was shocking. Joe had saved the worst until last, though.

“Finally, there’s professional misconduct,” he said. “Mrs. Greene could complain to the Office of Professional Medical Conduct in New York State that you were negligent, and try to get your license taken away. I don’t think that’ll happen, Ben,” he added, seeing me frown worriedly. “You’re young and perhaps you might have made a small mistake. With the hospital on your side, you’ll survive.”

“I have a question,” I said. “What difference does it make that Episcopal’s president told me I should release Mr. Shapiro?”

I had the small satisfaction of knocking Joe off his guard with that. He removed his feet from where they had been resting on his desk during his peroration and sat upright in his chair.

“Did he?” he said.

“She. Yes, she did. He wanted to be discharged and she emphasized that the Shapiros were big donors to the hospital. She said to use my judgment, but to make sure that I made the right decision.”

“Make sure you made the right decision,” he repeated skeptically, and I realized how hollow it sounded out of context.

“She said ‘but,’ ” I said, feeling stupid. “ ‘But make the right decision.’ It was clear what she meant. She’d called me to her office to make sure I obeyed.”

“Uh-huh,” Joe said slowly, rubbing his chin. “I don’t know. That’s difficult. It might help as mitigation in a misconduct case, but you’d have to prove it, and how likely is it that she’ll admit that under oath?”

“She says she can’t remember it.”

He laughed wryly. “I’ll bet she can’t. Amnesia is a common legal condition. The question is, how much do we want to upset her? We need the hospital to back you up.”

“Isn’t all this privileged anyway? Can’t I just keep quiet?”

“Afraid not. As soon as they present a mental state defense, confidentiality gets waived. Everyone gets to see the hospital records and the notes on the case. If you’re called to give evidence, you’ve got to talk. I’ll have to try to make sure that doesn’t happen. That’s why it’s important you don’t tell them anything. If they don’t know what you’re going to say on the stand, they won’t call you. Anything else you ought to tell me?”

He looked at me as if he knew there probably was. I thought of Anna again, but I didn’t feel brave enough to confess. There was something too personal, too juvenile, about it-falling for a girl in the middle of this debacle. It was embarrassing.

“That’s it so far,” I said.

As Joe walked me out to the elevator, he cleared up the mystery of just what he and my father had done with their nights in Vegas. It was nothing more incriminating than one evening at the craps tables and two nights in a VIP suite drinking bourbon, or at least that’s what he said. The memory seemed to lift his mood.

“Don’t worry. We’ll think of something,” he said, shaking my hand and slapping me on the shoulder before the doors closed. On the ride down, I reflected that people kept on telling me not to worry. That was what worried me.

As I lingered across the street from the Shapiros’ building, I saw Anna emerging along the glass-walled corridor and pausing at the front desk to exchange a couple of words with the uniformed guys-they seemed to stand straighter in her presence, to become more animated. Then she headed into the courtyard, wearing a dark green coat with velvet-trimmed lapels, and I stepped forward to greet her.

“What’s up, Doc?” she said, reaching me. There was a pause as we both considered an embrace and mutually decided against it. Shaking hands was out of the question after the way she’d treated that as a joke when she’d dropped me off by my apartment, so we settled for nothing instead.