The Insanity Plea (10 page)

This time the physician put away his
frustrations and responded promptly. “Absolutely, I will. Medically, he is
insane. I’ll so testify. But you guys are lawyers. You know how difficult it is
to get someone off on an insanity defense in this state. Medical insanity is
not the same as legal insanity.”

“Yeah, Doc, we damn sure know,” Duke
replied. “But it may be our only choice.”

Wayne and Duke walked in silence back
up 18
^th
toward Duke’s car.

“Dog, we need to go by and talk with
my mother. She doesn’t even know what we’ve been doing. I think we know enough
now to tell her what’s going on and discuss a game plan.”

“No problem, Wayne. I got the whole
afternoon. Since I’m going to be spending time down here, I need a better
understanding of the territory. Why don’t you take me on a little walking tour
of where Dan hung out? Didn’t we pass the Salvation Army on the way over here?”

By then they were in front of the
courthouse, where clusters of people talked in low voices and a couple of winos
slept on park benches, their faces covered with newspapers. Wayne pointed in
the direction they were walking. “Good idea. Two blocks up is Broadway. A couple
of blocks back to the right is the Salvation Army. We’ll start with it since we
know Dan hung out around there a lot.”

As they walked, each man stripped off
his suit coat, flung it over his shoulder and loosened his tie. They turned the
corner on Broadway and could see the Salvation Army on the right. A few street
people were wandering aimlessly as they approached.

When they got to the building, Wayne
opened the door to a second-hand store. They entered a world of junk and
hand-me-down clothes stacked on floor to ceiling shelves. A gray-haired woman
wearing a multi-colored shawl sat in a wheelchair, and asked if she could help
them. Wayne said no thanks. Duke walked over to a shelf full of hats. He picked
out a snap-brim fedora, checked himself out in the mirror and said, “I’ll take
this ma’am. I can always use another good looking hat.”

The woman said it was five dollars. Duke
smiled and gave her a twenty, asking her to donate the rest. When they walked
away, Duke said, “I didn’t really need the hat. Just wanted to leave a little
something.”

Out on the street, Wayne said, “Come
on. We’re close to the Old Galveston Cemetery. You can learn something about
the ancestors of the folks who will serve on our jury.”

“Lead on, my man,” Duke replied as he
adjusted his new hat.

Wayne pulled a handkerchief out of
his pants pocket and wiped his forehead while they walked, then said, “Okay,
Duke, in my three years as a prosecutor down here I never ran across a case
involving the insanity defense, not once. For damn sure, I haven’t even thought
about it since that time. Tell me what we’re in for.”

They picked their way through the
northbound traffic on Broadway to the thirty foot esplanade in the middle of
the street and waited for traffic to clear the southbound lanes.

“The insanity defense is probably the
toughest thing to win in the entire Texas criminal justice system,” Duke began.
“You remember Andrea Yates, the mother who drowned her five babies a while back.
Nobody in their right mind would think that a mama could do that and be found
sane. Still, the state paid a high-priced, smooth-talking forensic psychiatrist
to testify that she was sane and she was convicted. That jury was so convinced
that she probably would have been sent to death row if the shrink wasn’t caught
in a lie while the jury was deliberating her punishment. Turned out he lied, or
as the appellate courts called it, gave false testimony about an episode of
Law and Order.
The jury was apprised of
the change in testimony and just sent her away to life in prison.

“Now, if that decision doesn’t serve
to indict the whole system, not long after that a woman named Deanna Laney in
Tyler stoned her children to death. That same shrink from the Yates case was
hired by Laney’s lawyers to testify that she was insane and the jury agreed. Sent
her to a mental institution.”

The traffic cleared momentarily and
the two men darted between an old green pickup filled with Hispanic workers and
a shiny red Mustang convertible occupied by two blond teenagers with surfboards
sticking out from the back seat. When they stepped on the curb, Wayne said,
“Yeah. I remember reading about both of those cases. No damn way both of those
cases can be reconciled. Doesn’t make our criminal justice system look worth a
shit.”

“You got that right. A lot of states
were beginning to get a better understanding of insanity. Then John Hinckley
came along and screwed everything up. After he shot President Reagan, we went
back to the old test, called the McNaughton Rule.”

“That rings a bell way off in the
distance from my criminal law classes in law school,” Wayne said as they walked
along Broadway and turned between two white columns to enter the cemetery.

 
Duke wanted to finish his lecture and added, “Now,
the defendant has to show that because of severe mental disease, the defendant
did not know his conduct was wrong. The idea that the defendant was so severely
ill that the disease kept him from controlling himself is gone.”

“Bro, I want to continue this
discussion. Only now let me show you a little history. There’s a reason this is
called the Old City Cemetery. Take a look at some of these headstones.”

They walked down a narrow gravel path
with granite grave markers on either side. Some had fresh flowers. On others,
flowers had died weeks ago and no one bothered to pitch them. Some were covered
only with weeds. Every ten yards or so they would find themselves in front of a
family mausoleum, listing the names of various family members who found their
last resting place inside.

“The island was settled by immigrants
and adventurers. A lot of them were born in Europe and made their way to the
Texas gulf coast, a long way from home and family. “Look here.” Wayne pointed
to a marker:
Robert John Hofsted, Born in
Austria December, 22, 1808, Died December 14, 1885.

“How about this one,” Duke said. “This
woman was born in Yorkshire, England in 1851 and died on the island in 1930.”

“I spent a lot of time in here when I
was a kid. Never was a scary experience. It was always just a history lesson
for me. Look at the size of this mausoleum.” Wayne pointed to one that was at
least twenty feet tall and fifteen feet across with “R. Ruzzuno Family” carved
over the entry.

Duke had stepped over a couple of
graves and stood in front of one headstone that read,
William Van Winckle. He was a gallant soldier under the banner of the
Confederacy, 1829-1912.”

Duke shook his head as he read the
inscription. “I’m sure he was a damn good soldier. Just glad his side lost. Otherwise
I might be picking cotton on some plantation in Louisiana. Let’s get out of
here.”

“One last stop, Duke. Follow me.” They
walked another fifty feet into the cemetery and paused in front of a marker
that looked like so many others, only the name on this one was Little. “My
dad’s there. I stop by and visit with him every chance I get.”

Duke took off his hat, bowed his head
and said a silent prayer. “Sorry, bro.”

“No need, Duke. It was a long time
ago. We’ve got to accept the death of our parents. Okay, now we leave. Next
stop is the Galvez Hotel and the scene of the crime.”

As the two friends walked down 21
^st
Street, it was obvious they had crossed to “the other side of the tracks.” The
houses were old, frame structures in need of paint and new roofs. The cars and
pickups in the driveways and parked along the curb were circa 1990 or older. Many
of the houses were boarded and tagged by gangs. Rap music bombarded the street
from open windows as occupants hoped for any breeze to find its way to the
interior. The smell of cooking gumbo drifted from one open door.

“Good thing you got me helping on
this case, dog. Looks like a lot of the brothers and sisters were born on the
island, too. A little color on our side of the table damn sure won’t hurt,”
Duke said as they walked down the middle of a street with no sidewalks.

“Yeah, that’s the only reason I
wanted your black ass on my team,” Wayne smiled.

“Fortunately, I know you’re shitting
me. I volunteered for this duty. Also damn good you’ve got me by your side on
this street. White man walking alone in this neighborhood might get himself in
a whole pile of trouble. You said that Dan used to walk up and down this
street. You think any of the brothers might remember him?”

Wayne pointed to the next block where
there was a junior high school and several teenagers were playing basketball on
a concrete court with iron rings for baskets. “You want to ask these guys?”

“Sure,” Duke said. “How about you let
me take the lead?”

They crossed the street and stood on
the edge of the court, watching eight young black men engaged in the timeless
battle of the streets. The game was no-holds-barred. One of the young men,
obviously the most athletic, dribbled down the court, stopped as if to pass and
then put a shoulder into the chest of his opponent, shoving around his right side.
When he was almost past his opponent and had an open lane to the basket, a foot
stretched out and caught his ankle. Both players went down and bounced back up,
talking trash and pushing each other as their teammates egged them on. The boys
were surprised when a big black man wearing a white shirt and tie with a fedora
on his head and a coat over his shoulder stepped in the middle of the fray.

“Okay, dudes, let’s cool it down. This
ain’t a hockey game.”

“Fuck you, man,” the athletic one
said. “Nobody invited you to our game. Who’s that honkey with you? You cops or
something?”

“No, dude,” Duke said. “We’re just
out for a little afternoon stroll through the hood. I got twenty bucks, though,
for some information. What’s your name?”

“Just call me Hawk, as in ball hawk,”
the boy said as he picked up the ball and began dribbling it. “What’s your
question?”

Duke knew to hand him the twenty
first and then asked, “You ever seen an old wino on this street, not recently,
maybe a month or two ago? Probably early in the morning, walking between
Broadway and the seawall?”

“Man, we see lots of them wandering
around here. They’re always in our neighborhood asking for a handout. Not like
we have any money to spare.”

“This guy had long gray hair, greasy
beard, talked to himself, probably waved his arms a lot and shook or nodded his
head.”

“I know who you’re talking about,”
another of the players spoke up. “I’ve got a paper route in the morning. He was
always talking about the sun. Hadn’t seen him in a while.”

“Yeah,” Duke said. “He’s in jail. You
guys ever see him do anything violent?”

“Naw, man,” Hawk replied. “Now I know
the guy you’re talking about. He’s crazy. We just left him alone. We’re gonna
get back to our game. We earned our twenty bucks.”

Duke and Wayne started to walk off
when Hawk stopped them. “You ever shoot any hoops, big guy?”

“Yeah. I could hold my own twenty
years ago. I’m an old man now. Got bad knees.”

“For another twenty I’ll go one on
one with you. You got a good ten inches on me. You’ll take me easy.”

Hawk didn’t know it, but Duke was
about to throw out a hook and set it. “Naw, man. Look, I’ve got on dress shoes.
I saw your moves. Gimme five points, first one to twenty wins.”

“No deal, man.”

“All right, how ‘bout me and my
friend here take on any four of you for that twenty bucks.”

Hawk looked around the group, picked
three of his buddies and said, “You’re on, dude. We’ll even give you the ball
first.”

Duke and Wayne dropped their coats on
the edge of the concrete. Wayne smiled as he took the ball and crossed
mid-court. Hawk challenged him. Wayne spun to his left, then to his right and
arced a three pointer. Nothing but net, if there had been one.

Within seconds it was three to two,
then five to two as Wayne launched a pass high toward the backboard where Duke
leaped to meet the ball and dunked it all in one motion. Hawk began to realize
they were in trouble.

Fifteen minutes later Duke scored the
twentieth point to twelve for Hawk’s team.

“Nice game, boys.” Duke said as he
wiped the sweat from his face with his shirttail. “We won, but here’s another
twenty for the good time. Go buy yourselves some sodas and ice cream. No beer. You
understand.”

Hawk took the twenty and asked,
“Where’d you learn to play like that? You should be in the NBA.”

Duke smiled. “I was, kid. Name’s Duke
Romack.”

“You’re shitting me. Duke Romack. Hell,
you even made the all-star team one year. Wait until I tell my dad.”

High fives and fist bumps went around
the court and the two men continued their stroll up 21
^st
, this time
complaining about the heat and humidity.

“Okay, Duke, that was fun but what
did we accomplish?”

“My man, it was worth the price of
the game. We learned that most everyone on this side of Broadway has seen Dan
at one time or another. Seems to have been his home turf. When we start picking
a jury, we’ll be looking for people from this neighborhood. They all know he’s
crazy.”

Wayne nodded in understanding. As
they approached the Galvez Hotel, he said, “Let’s go back to the insanity
defense for just a minute. Isn’t it still the law that we only have to prove
insanity by a preponderance of the evidence, not beyond a reasonable doubt?”

“Still the same burden, bro. Hasn’t
changed.”

“Well, hells bells, I’ve spent nearly
ten years dealing with that burden and I’ve been able to convince a jury about
almost anything when I’ve just got to show them that it’s more likely than not
that something is true. I can do it here.”

“I don’t want to rain on your parade
and I’ll be right there with you, only it’s a helluva lot tougher when there’s
a serious crime than in one of your civil cases. And the more serious the
crime, the harder it is to overcome the horror in the minds of the jury and
their desire to make sure it doesn’t happen again. Look at Andrea Yates.
Statistically, fewer than one percent of defendants even attempt an insanity
defense and out of those only fifteen percent succeed. Do the math.

“One last thing. The reason we see so
few insanity pleas is because the deck is stacked against the defendant right
from the start. I could take you on a tour of the Harris County Criminal
Justice Center. We could poll every criminal judge there, some of them on the
bench for twenty, thirty years, and you’d find only a handful who have ever
tried a case involving the insanity defense. Won’t change before Dan’s trial. You
just gotta know those are the cards we’re dealt. There won’t be any aces or
kings on our side of the table.”

They crossed Seawall Boulevard in
front of the Galvez and stood at the scene of the crime. “Down there, Duke,”
Wayne pointed to the rocks below. “That’s where they found her body. Out at the
end of the jetty is where Dan sat every morning. You want to walk out there?”

“Let’s go a little ways. I want to
check how far out you can hear voices, screams for example.”

Wayne and Duke walked out no more
than twenty yards and turned. With the pounding surf, they watched a Harley
Davidson go by on the street and heard nothing. Both concluded that Dan could
have been at the end of the jetty, oblivious to anything on the seawall,
including a murderer and his victim.

“Okay, we’ve seen enough,” Wayne
said. “Let’s go visit my mother and bring her up to speed.”

“Just remember we can’t get her hopes
up. We’re being swept down a raging river with nothing but a broke paddle.”

Sarah lived on Ball Street, only two
blocks from the old courthouse/jail complex. The houses had been there long
before the courthouse. Most of them were built in the late 1800s. They
sustained damage in the 1900 hurricane but could be restored. The early
twentieth century engineers also found a way to jack them up when the island
was raised and the seawall constructed. That helped them survive Hurricane Ike
in 2008. The street remained a sightseer’s dream. Victorian houses lined both
sides from 18th Street almost to the gulf. Nearly all were maintained in mint
condition. Some had two stories, some three, with stairways leading to a
veranda and second story entry. Most had enclosed first stories with only dens
or bedrooms, nothing that could not be replaced if another hurricane breached
the wall. The colors were from a rainbow, light blue, yellow, pink, green, even
red. The fragrance of spring flowers, planted in front of most of the houses,
filled the street.

Sarah’s was one of the larger houses
on the block, freshly painted white with red shutters and trim. As they
approached, Wayne spotted the widow’s walk at the very top and thought back to
the days when he would sit up there in the sun and sea breeze, trying to study
and instead gazing out to the water, watching for a sailboat or freighter to
glide across the horizon, allowing his mind to drift to faraway places.

They found Sarah kneeling on the
ground, a giant straw hat covering her gray hair, wearing a long sleeve shirt
to avoid the sun’s rays, digging weeds out of one of her flower beds. Wayne
knew, of course, that she considered weeds to be her mortal enemies not
destined to survive more than a day or two after they popped out of the ground.

“Hi, Mom.”

“Well, it’s about damn time you got
here, Wayne Little,” Sarah said as she got to her feet with the agility of a
woman twenty years younger. She turned to hug Wayne and saw Duke.

“Duke, I’ll swear,” she said as she
pulled a red bandana out of her pocket and wiped her brow, “Most people stop
growing by their early twenties. Looks to me like you forgot that rule.”

Sarah gave Duke a hug and turned to
start up the stairs. “You boys have a seat out here on the veranda. I’ll bring
some sweet tea.” Without waiting for a reply, she opened the screen door and
was gone.

Wayne and Duke settled into rocking
chairs. Duke propped his feet up on the porch rail. “Your mother hasn’t changed
a lick. Reminds me of my mom over in Louisiana. Still full of piss and vinegar
and expecting everyone to do exactly as she says.”

“Yeah, Duke. She has more energy than
you and me put together. And you better get your feet off her rail before she
gets out here or she’ll climb your ass.”

Duke grinned, recalling his own
mother, undid his size fourteen shoes, removed them and his socks, then put his
feet back up on the rail. “Maybe she’ll let me get away with this. Man wasn’t
born to wear shoes, anyway,” he said as he wiggled his toes.

Sarah pushed the screen door open
with her butt and walked over to a small table behind the rocking chairs where
she sat down a tray with a pitcher of sweet tea and three tall glasses. “Duke,
you get your feet off my, oh, you’re barefooted. I guess that’s all right. Not
very often I have a giant man, barefooted on my front porch,” she grinned. “Nice
looking hat, too.”

“Thanks, Sarah. This hat’s the finest
the Salvation Army had to offer.”

Sarah filled the three glasses and
sat in a third rocker beside her son. “Now, tell me. How’s Dan doing?”

Wayne took a long drink before
setting his glass on the rail. He leaned back in the rocker and said, “Not very
good, Mom. In fact, not good at all. They cleaned him up and trimmed his hair
and beard, but he’s skinny and, at first, didn’t even know me. They’ve got him
on a bunch of medications. He’s pretty much like a zombie.”

“Is he okay after that fight?”

“I asked and he downplayed any
injuries. That seems to be the least of his problems.”

“Does he know he’s charged with murder?”

“I think he does, Mom. I’m not
positive, though. His brain’s not wired like yours and mine. In fact, what he
understands today he may not even remember tomorrow. Duke and I went down to
Sealy and visited with his psychiatrist and got a pretty good read on his life
for the past several years. It’s not pleasant.”

“Pleasant or not, I want to hear
about it.” Sarah moved to the edge of her chair, took off her straw hat and
stared into Wayne’s eyes. For the next thirty minutes Wayne summarized what he
and Duke had learned from Dr. Adashek and then summarized his meeting with
Harry Klein. “I’m sorry, Mom. They’ve got an open and shut case against Dan.”