Sometimes I bluff, and sometimes I really hold the aces. "Your Honor, may I approach the witness?"
The judge waved me forward. On the way, I dropped a copy on Socolow's table, then handed the little rectangular form to Schein. He grabbed for it. "Can you identify that?" I asked.
He nodded.
"You'll have to answer audibly."
"It appears to be a prescription form from the Beach Mart Pharmacy."
"And that's your signature, isn't it?"
He studied it, as if trying to decipher the Axis war code. No answer. Wondering if he could deny it. Hoping for a miracle that would keep the sky from falling.
"Perhaps you remember the pharmacist as well as he remembers you," I prompted. Bluffing now. The pharmacist was on vacation in Barbados, not in the corridor waiting to testify. I hadn't been able to reach him.
"That's my signature," he said at last.
"KC1," I said. "What's that?"
"Potassium chloride." His voice was a whisper.
"What's it used for?"
"Many things. Making fertilizer, for one."
"You weren't doing some gardening that night, were you. Doctor?"
"It's a harmless substance," he blurted out. "Potassium and chloride. Both are found naturally in the body."
"Really? Then I suppose if someone was injected with potassium chloride, it wouldn't show up in a toxicology test?"
"I don't know anything about that."
"What's potassium chloride used for, Doctor, besides making fertilizer?"
"It's used in heart surgery."
"And what does it do?"
His eyes darted to Jonas Blackwell and back to me again. "I'm not an expert. I mean, I'm not a surgeon."
"Oh, don't be so modest. The drug is injected into the heart to stop it during open-heart surgery, isn't it?"
"I'm not sure."
"You weren't performing open-heart surgery that night, were you?"
"No, of course not."
"But you wrote a prescription for one hundred milliliters of potassium chloride, which you picked up at eleven-twenty-seven P.M. on your way to the hospital, didn't you?"
He didn't answer.
"Doctor?"
"Yes."
"Thank you," I said. I returned to the defense table and let him hold on to the prescription slip. He looked like he wanted to swallow it. "Dr. Schein, do you remember, the other day, I asked if you blamed Harry for Emily Bernhardt's death?"
"I remember."
"And do you recall your answer?"
"Not verbatim."
"Well, it struck me as a little odd, so let's just take a look at it." The jurors leaned forward in their seats. I had them. I had Schein. I had the whole damn world just where I wanted it. Cindy handed me the daily transcript, provided efficiently by the stenographer for a sum equal to the gross national product of a small Caribbean nation.
"I asked you this question: 'So you blamed Harry for Emily Bernhardt's death?' And you answered, 'Yes. Not with a gun or a needle, but by stripping her of her dignity, keeping her prisoner in the home,' et cetera, et cetera. Now, what did that mean, 'Not with a gun or a needle'?"
"It's just an expression. It means, not with a weapon."
"Then wouldn't the expression be 'a gun or a knife'? Where does a needle fit into this?"
"Knife, needle . . . They sound alike."
"But you were thinking of a needle. So it made me wonder, Doctor, what would Freud say? Why were you thinking of a needle? What memories were lurking in your subconscious?"
"I have no idea."
"Going back to the night of June sixteenth at the Beach Mart Pharmacy, you also purchased a fifteen-gauge hypodermic needle, didn't you? If you like, I'll show you the store's cash register receipt."
A vein in his shaved scalp seemed to throb, but it could have been my imagination. He stretched his neck out of his shirt collar, then answered. "Yes, I sometimes inject tranquilizers into patients, and of course sodium amytal during hypnosis, as you know. I was out of syringes, so I . . ."
He drifted off.
"On the way to see Harry Bernhardt, who had just been shot and operated on, who was in the ICU, you stopped off to do some shopping—is that your testimony, Doctor?"
"Well, yes."
"Now you don't inject potassium chloride into any of your patients, do you, Doctor?"
"Of course not."
"What would happen if you were to inject potassium chloride into someone not undergoing surgery, someone not on a heart pump?"
"It would short-circuit the electrical activity of the heart."
"There'd be a rhythm disturbance, wouldn't there. Doctor?"
"Yes, I believe so."
"And the heart would go into ventricular fibrillation, then stop, indicating to all the world that the person died of cardiac arrest?"
"I didn't do that!"
"I didn't say you had."
"I've seen the autopsy report," Schein said, though no question was pending. Good. Let him run his mouth. "There's no indication of anything like that."
"No, there aren't even any unexplained puncture marks on the body, are there?"
"That's right."
"But if the potassium chloride had been injected directly into Harry Bernhardt's IV tube, it wouldn't leave any unexplained marks on the body, would it?"
"I suppose not."
"Is that how you did it, Dr. Schein? Did you pop a dose of KC1 right into the IV?"
"What are you saying! No!"
"Doctor, when the man you hated . . ."
Motive
.
". . . was lying flat on his back, semiconscious and sedated . . ."
Opportunity
.
". . . you took that fifteen-gauge hypodermic needle and injected his IV tube with a massive dose of potassium chloride, didn't you?"
Means
.
"No!" He looked toward the judge for help but didn't get any.
"When the potassium chloride hit his arm, he started thrashing. Even coming out of the anesthesia, he could feel the sting of the KC1, couldn't he?"
"No! I don't know."
"Doctor, if I told you that the ocular fluids removed from Harry Bernhardt's eyes showed elevated levels of potassium, would that surprise you?"
"Not at all," he said, licking a bead of perspiration from his upper lip and calming down. He relished the question, had a ready answer. "Potassium levels increase after death. It's not an indication of hyperkalemia."
"To what level would they increase?"
"I don't know exactly, but they could easily double or more, say from five milliequivalents per liter to ten or fifteen."
"So if the test showed two hundred milliequivalents per liter, what would that suggest, Doctor?"
Good old Charlie Riggs.
"I'm not sure. But you can't prove . . ."
He let it hang there.
"And if a cardiologist with special expertise in heart rhythm disturbance comes into this courtroom after examining the EKG of Harry Bernhardt and identifies a widened QRS duration and subsequent ventricular fibrillation, indicating probable potassium poisoning, what then, Doctor? What do you say then?"
The swinging gate in the bar squeaked open, and Jonas Blackwell rushed through. "Your Honor, I request a brief recess."
"Denied!" the judge shouted. "And sit down."
The lawyer stopped in his tracks, looked around, and took a chair next to Cindy. Judge Stanger turned toward the witness. "Dr. Schein, there's a question pending. If you wish, the stenographer can read it back."
"I've made a ter . . ." Schein mumbled, his voice trailing off.
"What's that, Doctor?" the judge asked.
"I've made a terrible mistake," he said, his voice barely audible. "I believed Guy. I never would have done it had I known. I swear . . ."
Jonas Blackwell was on his feet. "Your Honor, my client invokes his Fifth Amendment rights. I request that the questioning be terminated."
"I said, sit down!" the judge thundered. He leaned close to the witness stand. "Doctor, your counsel suggests that you rely on your right against self-incrimination. Do you wish—"
"No!" Schein waved off the judge with a stiff gesture that reminded me of Richard Nixon on the day he quit. "Harry Bernhardt was an evil man. Maybe he didn't abuse Christina, but what he did to Emily was a crime. He knew we were in love. He could have let her go, but he was so cruel, so inhumane. And Emily was so beautiful and frail. She lost the will to live. It's Harry's fault she died, not mine."
That puzzled me. "No one said it was your fault."
"He killed her," Schein said, "maybe not with a gun or a needle."
There it was again. What was he saying? We weren't here to talk about Emily. Or were we?
"How did Emily die?" I asked.
Socolow stood up, seemed to think about objecting, and sat down again.
"I begged her to leave him." Not exactly responsive, but why not let him ramble? "I told her how I'd take care of her, protect her, but she couldn't do it. She wasn't strong enough. He snuffed the life out of her. She begged me to do it. . . ."
Lawrence Schein stared into space. Abe Socolow and I exchanged looks. He shrugged his shoulders, telling me it was my ball, run with it. At the defense table, Chrissy's eyes were filled with tears.
"Do what?" I asked.
"End it. We made a pact. I'd poison her while she was sedated. Then I'd kill myself."
Omigod.
A rumble of astonished voices swept through the courtroom.
Judge Stanger lifted his gavel, but never brought it down. Miraculously, the noise stopped, no one wanting to miss a word.
"With potassium chloride," I said, all the gaps filling in. "The
needle
. You injected Emily Bernhardt, but then you chickened out. You killed her but not yourself. You're a killer and a coward."
His head bobbed up and down. "At her first spasm, I knew what I did was wrong. All these years, and I still see her pain, even with the sedatives. I've carried it with me all this time. That's why I had to do something."
"Why?"
It's a question you're never supposed to ask on cross, but this time I knew the answer.
"Because I'd killed the wrong Bernhardt. I'd carried the guilt and shame for so long, it had nearly driven me insane. I had to kill Harry Bernhardt. I had to heal myself. It was
my
therapy."
34
The Defense Rests
Judge Myron Stanger shed his black robe and tossed it across the sofa. He loosened his tie, opened a door of leaded glass on his credenza, and grabbed a bottle of Jack Daniel's.
"Let the record reflect that we have reconvened in chambers," he said. "Counsel for the state and defense are present, as well as the defendant."
And the court stenographer. She never gets mentioned, but there she was, banging away at her little machine. I could hear the commotion on the other side of the door, the judge's secretary fending off reporters like a blocker picking up the blitz. Britt Montero's angry voice came through the door, something about the First Amendment and access to the courts. Chrissy and I sat next to each other in chairs facing the judge's desk. She looked confused and frightened. I patted her hand and winked at her.
"Let's go off the record, Margie," the judge said, and the stenographer straightened up and cracked her knuckles. "God-damnedest thing I've ever seen in a courtroom, and I've tried more cases than the two of you put together. What the hell do we do now, boys?"
The judge hadn't opened the bottle, wouldn't until the hearing was over. He pulled a Cuban cigar out of his desk drawer, a stubby four-inch Entreacto that would have looked good on Edward G. Robinson.
"I'd like to make a motion," I said.
The judge simultaneously lit his cigar and nodded to Margie, whose fingers were poised over her keys the next instant.
"But first, the defense rests," I said.
The judge exhaled a pungent puff of white smoke and turned to Socolow. "Any rebuttal?"
Socolow said, "The state waives rebuttal."
"The defense moves for a judgment of acquittal," I said, opening the rule book. "Under 3.380, no view which the jury may take of the evidence favorable to the state can lawfully support a conviction. The undisputed evidence is that my client simply did not kill her father. A third party did, and hence . . ."
Did I really say "hence"?
". . . there is no basis on which a jury could find her guilty of murder of any degree or of manslaughter."
"What about aggravated assault, Jake?" the judge interrupted, while studying the red-hot tip of his cigar. "If Abe here asked for it, I could charge the jury on ag assault or maybe attempted murder."
"Respectfully not, Your Honor," I said. "She hasn't been charged with aggravated assault, and under
Perry
v.
State
, the charging document can't be amended now because of a variance in proof. Additionally, attempted murder is not a lesser included offense, because it's possible to commit each offense without committing the other, and each contains elements the other does not. Therefore, under the rule, the court has no choice but to render a judgment of acquittal."
There are occasions—not many, I grant you—when I almost sound like a lawyer.
The judge puffed on his stogie, if a thirty-dollar cigar can be called a stogie. "Abe, sounds like your buddy's done his research. You got anything to say?"
"Jake's wrong about one thing," Abe said, looking at me with a tight smile. "The evidence isn't undisputed. The medical examiner testified that the cardiac arrest stemmed from the shooting. Dr. Schein seems to think he killed Harry Bernhardt. Technically, therefore, it's a jury question. It's—"
"Judge, the EKG and the electrolyte test make it clear what killed—"