William Bernhardt - Capitol offence

"I noticed you used the word probably, Doctor. Is there some uncertainty about it?"

He spread his hands wide. "In a case such as this, when there are so many factors at play that could have caused death, it is virtually impossible to know which one delivered the final killing stroke." He paused, then his voice dropped a notch. "And I don't really see that it matters much."

"Indeed." Ben flipped a page in his outline. This was where the examination got tricky. "Dr. Hayes, this is a delicate matter I'm about to raise, and I apologize in advance, but it's something the jury needs to know. During this time that Joslyn Thomas was trapped in her car… would she have felt any pain?"

"Objection!" Guillerman said. "I must raise the same argument again, your honor. This is entirely inappropriate. This testimony is not relevant to any matter at issue in this trial."

"I'm going to allow it," Judge McPartland said, "just as I told you all the previous times you made this same argument. And if you make it again, your associate will have to take over the prosecution, because you will no longer be at liberty."

Guillerman sat down, not pleased.

"You may answer the question," Ben said, urging the witness onward.

"Oh my, yes," he said. He seemed genuinely distressed. "Almost nothing on earth hurts as badly as a broken rib. She had two. Plus a broken arm. Plus a sharp piece of metal jabbed into her leg. The pain would have been… well, unimaginable. Indescribable."

"I don't doubt it," Ben said, "but just so the jury can understand, I'm going to ask you to try."

"In the medical profession, we have what is known as the pain scale. There are many different factors involved in measuring and evaluating pain, but for the purposes of this trial, all you need to know is that basically it's a one-to-ten scale. One is relatively minor pain, and ten is the maximum it is possible for human beings to endure."

"And where on the scale would you place the pain that Joslyn Thomas experienced, Doctor?"

"Ten," he said, his face set and grim. "And if there were any higher numbers, I would say that."

"I see. And she would have felt this pain throughout the period she was trapped in the car?"

"Of course. Her concussion did not induce unconsciousness. There was nothing to alleviate the pain. She was still conscious, albeit only barely, when her rescuers arrived." He squirmed uncomfortably in his seat. "She would have felt the pain."

"For seven days."

"Yes," the doctor said. "Day and night."

Ben remained silent for a few moments, appearing to search through his outline for his next question. He wanted to let that horror linger in the juror minds before he dropped the next bomb.

"Doctor," Ben continued, "you've described Joslyn Thomas's injuries as being ultimately fatal. Could she have been saved had help come sooner?"

Guillerman was halfway to his feet before he stopped himself. Ben could see he desperately wanted to object, but apparently not desperately enough to get himself locked up on a contempt-of-court charge. The image of the DA sitting behind bars was not one likely to win votes.

"Almost certainly so," Dr. Hayes answered. "Although she had many injuries, no one of them was so catastrophic as to guarantee death. What ultimately killed her was time."

"Can you explain what you mean, Doctor?"

"I mean injuries of this sort will only get worse if they are not treated. She bled more. The poison spread. The toxins multiplied. And perhaps most critically, she remained dehydrated and without nourishment. The more time passed, the worse she got. Until finally it was too late and she could not be saved, not even by the best team of medics imaginable."

"Can you give us an estimate of when she would have reached the point of no return?"

He leaned forward, nodding his head. "Of course it's impossible for me to set out a precise timetable, because no one was there collecting data. But based upon my analysis of the records, I see no reason why she couldn't have been saved, had she been found, after several days. In fact, I would go so far as to say she could have been saved had she been found a day earlier. Possibly even a few hours earlier."

"So if the police had launched their investigation sooner, as Dennis Thomas had been urging them to do for days, she might have lived?"

Out the corner of his eye, Ben could see Guillerman gnashing his teeth. But he kept his mouth closed.

"Almost certainly," Dr. Hayes said. "I'd stake my reputation on it. They could have saved that young doctor's life. If they had just moved sooner."

"Thank you," Ben said. "Pass the witness."

"Permission to approach the bench," Guillerman said. He appeared near the smoldering point. The judge nodded and waved his fingers. Ben followed Guillerman up to the front.

"Your honor, I renew my objection, and I further formally protest the scurrilous tactics being used in this trial."

"One thing at a time, counsel." McPartland appeared underwhelmed. "What's the basis for the objection?"

"This testimony is irrelevant. What difference does it make if the poor woman suffered pain? What difference does it make if she could have been saved? None of that is relevant to whether Christopher Sentz was murdered."

"The testimony goes to our affirmative defense," Ben said quietly.

"That was my understanding," the judge added. "It goes to the state of mind of the defendant at the time the killing occurred."

"What is he saying?" Guillerman asked. He was visibly angered, and Ben didn't doubt it was genuine. "That this guy's wife died in pain, so it was okay for him to take out a cop?"

"I doubt if that's how he'll put it in closing argument," the judge said dryly.

"Probably not," Guillerman barked, "because that would be too honest!"

The judge put his hand over the microphone. "Counsel…"

"This is the most offensive defense I've encountered in my entire career!" Guillerman continued. "Who are we kidding? This defendant killed a police officer. A senior detective. He planned it, then he consulted with his attorney on how to construct a good defense, and then he put the plan in action. He killed Detective Sentz in cold blood and faked a blackout so that he would look-" He pointed a finger to his temple and drew circles in the air. "-craaaaaazy!"

"None of this alleged premeditation has been proven," Ben felt obliged to point out. "I'm simply presenting a textbook, by-the-numbers case of temporary insanity."

Judge McPartland gave him a long look. "Well now, let's not push it too far, Mr. Kincaid."

"That's not what he's arguing at all," Guillerman said, "and you know it as well as I do, Judge. What he's asking for is jury nullification."

"That's not true!" Ben insisted.

Guillerman continued. "No one believes his client was insane, even temporarily, and he's not really asking them to. What he's saying is, his wife died a horrible death and it was all the police department's fault, so forget about the law and let my man walk."

"That is not correct. But what's wrong with asking for justice? When the application of the law would produce an unjust result, don't jurors have the right to use their own judgment?"

"That's jury nullification, and it's unethical and grounds for disbarment."

Judge McPartland did not respond nearly as quickly as Ben would have liked. "I will admit that this aspect of the defense case troubles me."

"Your honor," Ben said firmly, "all I'm trying to do is show the jury what could cause a perfectly ordinary and harmless man to contemplate the most extreme actions. He didn't just lose his wife-he lost her in the most horrible way imaginable. It wasn't an unavoidable accident. The police had the power to find her a few hours after she disappeared. They chose not to. I am not in any way saying that made it okay to kill Detective Sentz. But I am saying that such dramatic and catastrophic events can render the most healthy brain temporarily unhinged. And this theory will be reinforced by my psychiatric witness."