Steven Gore - Act of Deceit

“I don’t want no public defender. I want a real lawyer.”

Judge Nanston smiled, then looked at Blaine. “May I take that as a yes?”

“W hat the hell is SSB doing in this case?” Blaine asked Donnally as they walked down the ninth floor hallway toward his office.

“Does it make a difference?”

“No. But I’ll tell you something that will.” Blaine stopped and turned toward Donnally. “The jailhouse informant that we were going to use in Brown’s original trial died of a heroin overdose ten years ago. He was the only one who heard Brown confess.”

“Did he testify in any pretrial hearings?”

“Nope. So we’ve got no testimony that would be admissible now.”

They walked a few more steps, then Donnally realized that Blaine’s complaint was a setup.

Donnally stopped. “What are you saying?”

“Maybe we should…” Blaine let his voice trail off.

Donnally’s fists clenched. “Let him be found incompetent again?”

“But we’ll keep an eye on him.”

“Like you did for the last two decades?”

“At least we’re sure to keep him locked up for another ten years-”

“And then he falls through the cracks again and walks out the door?”

Blaine folded his arms across his chest. “The risk of going to trial is that he walks out sooner, either on a not guilty by reason of insanity or on a lesser offense.”

“You mean a manslaughter?”

“Exactly. Say Brown gets up there and says it wasn’t premeditated. It was just an accident or heat of passion or some kind of sex play that went bad. Nobody remembers what a gem Anna Keenan was. Most jurors will think she was just a Berkeley weirdo and will be prepared to believe anything.”

Donnally pointed a finger at Blaine’s chest. “It’s your job to make sure they don’t.”

“Not mine alone, pal. If you want to bury Brown, then you’ll have to be my first witness at the competency hearing.”

“And testify to what? I’m not a shrink.”

“You’ll testify that even with you catching him by surprise, he was able to articulate that he’d been accused of murder and that he was thinking clearly and quickly enough to come up with a fake manslaughter defense that would cut his jail time in half.”

Blaine spread his arms to encompass the courthouse.

“That alone makes him more competent than ninety percent of the crooks that come through here.”

Blaine chuckled, but Donnally didn’t laugh with him.

“Most of them don’t figure out how they’re going to fight their cases until halfway through trial.”

D onnally watched Thomas Blaine jump to his feet and shoot his hand out toward Margaret Perkins.

“That’s not the issue, Your Honor. The question isn’t whether the defendant is mentally ill or even developmentally disabled. It’s whether he’s competent to stand trial. Now. Right now. Not twenty years ago.”

Judge Julia Nanston glared down at the prosecutor.

“For the third time I’m telling you. No… speaking… objections. The only words I want to hear out of you are ‘objection’ and ‘relevance.’ If the basis of your objection isn’t obvious, I’ll ask for an explanation.”

Nanston made a note on the yellow legal pad before her. The flourish of her pen stroke gave Donnally an edgy feeling, as though she viewed the evidentiary battle as just a game and she was keeping score.

The judge looked back at Blaine and said, “Please don’t try to tell the court something it already knows. Denied.”

Blaine sat down and glanced at Donnally sitting behind him, who acknowledged the prosecutor’s frustration with a shrug.

The judge then focused on Perkins.

“Please bear in mind, Ms. Perkins, that I’m allowing you to present background information as context, not to make a current argument.”

Perkins leaned down toward her cocounsel, Doris Tevenian, who handed her a handwritten note. She read it, then looked up at Dr. William Sherwyn sitting in the witness box.

“Again, Doctor, what was your impression of Mr. Brown’s demeanor when you interviewed him just after his original arrest?”

“As I recall, the first time I saw him was in the locked ward of the county hospital.”

Donnally’s peripheral vision caught the motion of Brown curling forward as though resisting a painful memory. Tevenian squeezed his shoulder, trying to calm him, but Brown pulled away and yelled, “Not true. Not true.”

Judge Nanston slammed her gavel, then pointed at Tevenian.

“Counsel, control your client.”

Sherwyn held up his twenty-year-old report toward the reporters in the gallery and the news cameras in the jury box as if to say, The records don’t lie, then continued.

“Mr. Brown bore all of the signs of bipolar disorder, what we referred to back then as manic-depression. Racing thoughts. Irritability. Grandiose ideation. Agitation. Delusions.”

Blaine rose.

“Your Honor, is he describing all the symptoms of bipolar disorder or just the ones the defendant displayed?”

Nanston glared at Blaine.

The prosecutor’s hands clenched. He looked to Donnally like a little boy who’d suffered a reprimand from his mother. But his voice stayed even:

“I’ll withdraw that. Objection. Nonresponsive.”

“Objection sustained.” Nanston looked at Dr. Sherwyn. “Please let’s limit yourself to the precise symptoms Mr. Brown displayed when you evaluated him.”

Sherwyn nodded, then said, “He was in a manic state that we would now call bipolar type one.” He scrunched up his nose and smirked at the prosecutor. “All of the above, combined with psychotic episodes.”

Perkins scanned her legal pad, then flipped back a few pages.

“Pardon me, Doctor, I should have asked this earlier. How did it happen that you were chosen to evaluate the defendant?”

“In addition to my private practice, I had a contract with the county to perform these evaluations. A second psychiatrist would be brought in if my conclusions were contested by one side or the other.”

“G ood afternoon, Dr. Sherwyn.”

Blaine stood at the podium, his cross examination laid out in front of him.

The swagger in Blaine’s steps from the counsel table had told Donnally that the prosecutor believed he could win his competency argument through Sherwyn’s testimony alone.

And Donnally hoped so. He didn’t want to be forced to explain under oath how he’d gotten onto Brown’s trail and feared that Mauricio’s original sin might taint the jury’s view of Anna.

“As I recall,” Blaine said, “the majority of your practice in those years was the treatment of sexually abused children. Is that correct?”

Sherwyn smiled at Blaine. “It was the basis of your objection to my qualifications during Mr. Brown’s first competency hearing.”

“Objection,” Perkins said. “Irrelevant.”

Judge Nanston cast a disapproving look at Blaine.

“You already lost that battle, Counselor.” Nanston pointed at his list of questions. “Maybe you should move on.”

Blaine shrugged and made a checkmark on his pad.

“Dr. Sherwyn, did you medicate the defendant at any time during the period he was undergoing evaluation?”

Donnally caught the motion of Brown’s head nodding in quick, precise motions.

“You mean did I attempt to restore him to competency?”

“Dr. Sherwyn,” Judge Nanston cut in. “It works better if the attorney asks the questions.”

Sherwyn reddened. To Donnally, he looked like a scuffling football player a referee had caught throwing the second punch.

“Yes,” Sherwyn said, “I medicated him.”

“And what was that medication?”

“Medications, plural. Lithium and an anticonvulsant to address its side effects.”