Linda Fairstein - The DeadHouse

"I'm afraid she went back home to Montana for Christmas."

"What's Chester's ability to understand right from wrong?"

"He certainly knows the difference, and he knows that what he did with Tina was wrong. His psychiatrist can give you all that. His problem has to do with control of his temper and the explosive outbursts from which he suffers. Chester's twenty years old. He's been in and out of hospitals for most of his life, but was homeless at the time of his last arrest."

"What was the charge?"

"He beat up an old man who tried to stop him from getting on a bus without paying."

I continued to prepare Tina for the preliminary hearing, which had to be held before the end of the week in order to keep Chester in on bail. The hospital authorities wanted him removed from their facility, while our purpose would be to have him hospitalized in a prison psych ward during the pretrial period. I did not want to see him released, on the street, with no home to go to and no one to supervise the taking of his antipsychotic medication.

"Excuse me, Dr. Herron?" We all looked up as another nurse entered the room. "There's a call from a judge's clerk who's downstairs. He wants to know when this hearing is going to start."

It was after twelve. "I need another half hour, at least. Why don't we say one o'clock?"

"That's good for me, too, Alex. Tell them where we're setting up, and that we'll be ready at one. And let's be sure Tina has some lunch before you get going. She really slows down with all those meds unless she eats at regular intervals."

"There's a message for you, Ms. Cooper. Detective Chapman said he can meet you after the hearing, unless you call to tell him otherwise."

An hour later, I entered the arts-and-crafts center of the psych ward. Much like the walls of a kindergarten class, this room was lined with pictures, crayoned and painted by the patients, all of whom were adults. A makeshift judicial bench had been fashioned out of several of the tables, and the stark black of the judge's robes was in sharp contrast to the brightly colored, childlike illustrations that would be our background for this sad proceeding.

"Ms. Cooper? I was expecting Assistant District Attorney Dashfer to be here today."

"And I was expecting Judge Hayes, Your Honor." We each forced a smile.

The judge was probably as crestfallen as I appeared to be. I had mistakenly relied on the tentative schedule distributed earlier for the week's arraignment part, not figuring on holiday substitutions. Instead of Roger Hayes, one of the smartest and most sensitive jurists in our jurisdiction, I had been saddled with Bentley Vexter. I knew this would prove to be a more difficult experience for Tina, with a judge not long on patience or understanding.

My adversary was a young lawyer from the Legal Aid Society. He had met his client for the first time just minutes ago, when he arrived at the hospital. They conferred briefly while we waited for Sandie Herron to come to the room.

"Are the People ready to proceed?"

"Yes, Your Honor."

"Call your first witness." He held the criminal court complaint up to his nose and lifted his glasses to examine the typed accusation.

"I would like to make an application to the court before I do that."

The judge put the glasses back in place and met my statement with a frown. "We've wasted half a day out here while you got your witness ready for this. What is it now?"

I launched into a description of Tina's condition, both physical and mental, while she and Dr. Herron waited in the corridor. "The request I'm making is that the court allow the victim's physician to appear with her in the courtroom, to serve as a facilitator, should that become necessary during the taking of testimony."

"I'm going to have to object to that, Your Honor."

"Hold it a minute, Mr. Shirker. What, this woman doesn't speak the language? What kind of interpreter do you need? Nobody told my clerk we-"

"Not a foreign language interpreter, sir." I repeated the nature of Tina's difficulties and explained Dr. Herron's relationship with her.

"Objection."

"On what grounds, Counselor?" It was clear the judge had no idea whether he should grant my somewhat unusual request, so he was hoping the defense attorney would provide him with a legal basis to make Tina's task more arduous.

Mr. Shirker had nothing more than a gut feeling and a knee-jerk reaction. "Urn, uh-due process, Your Honor."

"He's right, Ms. Cooper. This is a very peculiar step you're asking me to take."

"The fact that it is unconventional doesn't mean that it doesn't have a valid purpose in a legal proceeding. Our courts are supposed to be accessible to everyone. The fact that this witness has a severe impairment should not deprive her of her day in-"

The judge held his arm straight out in front of him to stop me. Then he lowered it, pointing his finger at the official stenographer. "We're off-the-record here, understand?"

I stood up to object. Vexter was most pernicious when he could clean up the official language of his hearings. His finger pointed back at me, telling me not to dare to stop him. "Look, Alex. You got a retard here who doesn't mind a roll in the hay. She hops into bed with Jose, so who's to say Chester can't have a date, too?"

"I'd like all of this to be on the record, Judge. I'd like the opportunity to respond to it." I wanted an official transcript reflecting his ignorance in black-and-white print that an appellate court and a judiciary committee could examine. Vexter's views were as limited as his intelligence.

The stenographer's hands were poised over her machine. She was waiting for the judge to give her the signal to resume working, while glancing back at me with a shrug of her shoulders, knowing that she was helpless to do as I asked. Vexter was in charge of the courtroom.

Vexter put his glasses on the tip of his nose and motioned to me and my adversary with his forefinger. "Why don't you approach the bench?"

"No, thank you, sir. I want all of this on the record. My witness is developmentally disabled, with severe mental and physical handicaps. But she knows what happened to her and she is entitled to tell her story in this forum."

Chester Rubiera was digging his fingers into the palm of his hand as he watched the goings-on around him. I expected him to draw blood at any moment.

"And I'm telling you that this whole thing is a waste of the court's goddamn time."

"Is that what you and Mr. Shirker mean by due process, Your Honor? Would you like me to talk about the law on this issue, or doesn't that particularly interest you?" Vexter knew as much about rules of evidence as I knew about NASA.

"You got cases on this?"

Catherine had sent the file on the matter to Jake's apartment. She had researched the issue and I had read the opinions last night. I nodded to the judge and started to cite opinions. "There's a Second Department case, In the Matter of Luz P." I handed copies of the decision to the court officer to give to the judge and my adversary. "And the People Against Dorothy Miller." I described the facts and holdings as the stenographer urged me to slow down.

"Yeah, I knew that," Vexter said, tossing the pages aside without reading them.

"The unaided testimony of this witness is likely to be meaningless without our ability to have Dr. Herron interpret her responses. Counsel is welcome to cross-examine and ask whatever appropriate questions he chooses. As previous courts have ruled, this is simply a pragmatic question, not a legal or scientific one."

The three of us continued to argue while the defendant became more irritated, and my witness no doubt grew more anxious out in the hallway. When the judge finally reversed himself and let us go forward, Dr. Herron guided Tina in and sat beside her. The patient's pleasant smile faded when she saw Chester sitting on the opposite side of the long worktable. She clung to Herron's hand and wriggled in her seat.