The Insanity Plea (16 page)

Judge Fernandez had reserved the
entire morning for the Little hearings. The defense team was there at
eight-thirty and took seats at one of the tables. Ten minutes later Katherine
Rasmussen bustled in, unloaded her briefcase and stacked papers and several law
books in front of her. She then took a seat, folded her hands on the counsel
table and stared at the American flag to the right of the judge’s bench.

Promptly at nine the door to his
chambers opened and Judge Fernandez walked out in a business suit. No robe
today. Wayne noted the bulge of his pistol under his left arm. A court reporter
joined them. They rose.

“Okay, it’s just lawyers today. No
formalities necessary. You all have a seat.”

Instead of taking the bench, the
judge pulled up a chair and joined them, sitting across the table from Wayne,
Duke and Claudia. Kate continued to sit alone.

“Wayne, looks to me like you brought
out the heavy artillery today. I’ve read the briefs. Saw they were signed by
Claudia St. John Jackson. Is this the lady that wrote the motions and briefs?”

“Yes, sir, Judge. She’s the brains of
the outfit. If she says it’s the law, you can take it to the bank.”

 
“Last time I checked, banks didn’t second
guess my decisions. It’s whether the appellate courts will agree or not. Ms.
Jackson, I may or may not agree with your position; but I must say your motions
are well written and logical. Kate, you ready?”

“Yes, Judge Fernandez. I might add
that my reply briefs completely refute all that Ms. Jackson says.”

“All right. That’s enough. I agree
you both did a good job. Let’s start at the beginning. Ms. Jackson, you’re
telling me to throw out the confession. Why should I do that?”

Duke sat up in his chair. He had his
Navigator riding on this one.

“Judge
, Miranda
has been a part of the jurisprudence of this state and our
country for longer than I’ve been alive. The concept is so ingrained in our
system that every cop on the street carries a card with him to read it to a
criminal defendant. Most of the older ones have done it so often they don’t
even have to look at the card. Inherent in this most basic of rights is that a
defendant does not have to cooperate with the police. A defendant does have the
right to remain silent.

“While we don’t have a lot of case
law in Texas or in the country on this issue, if the rights are to have any
meaning at all, a defendant must be competent to understand what is being told
to him. Otherwise, the rights might as well be read to him in Chinese or
Russian.

 
“Judge, we have an affidavit to support our
motion from the one psychiatrist that knows Mr. Little better than any other. He’s
not a hired gun.” As she spoke she looked over at Capital Kate, who was doing
her best to ignore Claudia. “This is from Dr. Adashek, a doctor at UTMB who has
cared for Mr. Little, off and on, for nearly ten years. He’s reviewed the
intake interview and opines that even though Mr. Little claimed to understand
what was going on, he clearly did not.”

“Enough, Ms. Jackson. What say you,
Ms. Rasmussen?”

Kate started to stand until the judge
said, “Sit down Ms. Rasmussen. You’re only eight feet away.”

When she was about to speak, the door
at the back of the courtroom opened and Harry Klein walked down the center
aisle and took a seat beside Kate. “Morning, Judge.”

“Morning, Harry. What brings you
here? You think I’m more likely to rule for the state because you showed up?”

“Judge, I know you better than that. I
was in a hearing next door. This is a high profile murder case. I’m just doing
my job.”

“Your honor, if I may proceed,” Kate
said. “We have an affidavit from Dr. Frederick Parke, an internationally
renowned psychiatrist who has interviewed Mr. Little and also studied the
intake video. His affidavit is attached to my reply.”

“Okay, okay, I’ve heard enough. Dueling
affidavits. Ms. Rasmussen, if you assure me that Dr. Parke is going to testify
under oath that the defendant was competent, I’ll let the confession in. The
jury will see the video and they’ll probably make up their own minds anyway. Next
motion, Ms. Jackson.”

Duke leaned back in his chair, disappointed
that they had lost, but glad no one had taken him up on his Navigator bet.

“Judge, as you know, Dan Little has
suffered from paranoid schizophrenia for at least twenty years, maybe even
while he was at UT law school, where he graduated number one in his class. Our
courts have even agreed that his disease is characterized by grossly distorted
perceptions of reality. Hallucinations, delusions, nonsensical speech and
violent behavior are all part and parcel of the disease.”

As she spoke, Wayne fidgeted in his
chair and finally rose, walked over to the window and focused on two boys on
the courthouse lawn tossing a football. The judge watched as he stood at the
window, understanding that he had difficulty listening to the realities of his
brother’s condition.

“We lawyers and judges, along with
lawmakers, have been wrestling with how to handle mental illness and crime for
a long time, Your Honor. An American Bar Association Committee has traced the
issue back at least to 600 B.C. where it is discussed in Hebrew Scriptures.
           

“The English adopted the
wild beast test
in 1724, holding that
for a jury to find a man insane, it must conclude that he is totally deprived
of his understanding and memory, and
doth
not know what he is doing no more than an infant, a brute, or a wild beast.

“Finally, in the early eighteen
hundreds the English came up with the McNaughton Rule which most of our states
followed until John Hinckley attempted to assassinate President Reagan. When he
was found insane, the screws on the insanity defense were tightened all over
the country.”

“Ms. Jackson, you were probably still
just a kid then, but I remember it like it was yesterday. Hinckley is still
locked up, isn’t he?” the judge asked.

“Yes, sir. He is, and maybe he’s a
perfect example of why the insanity defense worked then. It’s been about thirty
years and he’s still in a mental institution. The system worked. At least the
system that was in place then, but our Texas Penal Code was changed. Since
then, if a defendant could be found merely to have known what he did was wrong,
he’s sane. Can be locked up in prison, not a mental institution, for life, can
even be executed. Our insanity definition is erroneous. Both the Model Penal
Code and the American Law Institute have come out strongly in favor of giving
the jury the option of finding that if the defendant could not conform his
conduct to the requirement of the law because of his mental illness, he is
insane. That’s what we have here with Dan Little. Whatever happened out there
that day, even if some shrink wants to say he knew it was wrong, his actions
were controlled by his mental illness. He had voices that commanded him to do
certain things that he was powerless to resist.”

Judge Fernandez rose from his chair
and walked over to where Wayne was standing. Claudia paused as he walked across
the courtroom, uncertain about what the judge was doing.
 
He watched as one of the boys tossed a
football to his buddy who ran a twenty yard down and out pattern. “Nice throw,
huh, Wayne? Maybe that kid can lead us to our second state championship in a
few years.”

Wayne listened to the judge’s comment
and raised his right hand to wipe a tear from his eye as he watched the two
boys high-five each other.

The judge turned and walked back to
where Claudia sat. “Ms. Jackson, Mr. Little, Mr. Romack, I’ve heard enough. I
understand that you have to make this motion to preserve potential error. Maybe
you’ll convince an appellate court, even the United States Supreme Court, that
you’re right. I’m only a trial judge. While I don’t make the law, I’m sworn to
follow it. On the issue of the confession, I’ve got a clean slate and can rule
however I damn well please. I’ve ruled it will come in. Kate, you best remember
that rule about being careful what you ask for. If you play any part of that
confession, Wayne can play the whole damn thing.”

Kate rose to protest. Before she
could speak, Harry saw the judge glowering in their direction and pulled her
back down into her seat.

“Wayne, on the definition of insanity
you’re asking me to throw out what the Legislature of this state has done. You
know I can’t do it. You’ve preserved your error, if any. You all get ready for
trial.”

Before he could finish speaking, Kate
had packed her briefcase and was ready to follow her boss out the door. When
Kate was gone, the judge sent the court reporter out and again complimented
Claudia. He told Wayne to say hello to his mother and went back to his
chambers. The defense team decided they needed to visit their client, check on
him and advise him of the results of the hearing. They were zero for two on
motions today and that did not bode well for the home team.

The deputy was a little concerned
that three lawyers wanted to see his prisoner all at the same time. He finally
relented when Duke told him that he’d heard the starting forward for the
Detroit Pistons had a badly sprained ankle and would miss the next round of the
playoffs; so he should put his money on their opponent.

The three of them waited in the small
room. Duke gave Claudia and Wayne the two counsel chairs and leaned up against
the wall behind them. He and Wayne were talking about the playoffs when the
deputy brought Dan in.

By outward appearances Dan continued
to do well. He hugged his brother, shook Duke’s hand and said, “You must be
Claudia. My mother brought me copies of your briefs. I appreciate all you’re
doing for me.”

“Damn, Dan,” Duke said. “You’re
looking about like you’re ready to represent yourself.”

“Thanks, Duke, but I still have some
really bad days. On those days the voices are loud and raising all kinds of
hell with me for not obeying them. It’s on those days I’m actually glad that
I’m in here and not out on the street. These medications fool with my mind some
days, but I know that I just have to deal with it. The good thing is that these
medications are making me understand what the voices did to me and what they
are still trying to do to me. Just saying that makes me sound crazy, doesn’t
it? Tell me about the hearing this morning.”

Wayne went through the judge’s
rulings and commented on the fact that even Harry Klein attended. Dan seemed to
absorb it all and the lawyer in him started coming through. “The judge did what
he could. I’m sorry he wouldn’t throw out that confession. At least we can play
the rest of the interview.
 
I guarantee
you I had no idea what was going on that day. As to the definition of insanity,
I know we couldn’t expect Judge Fernandez to overrule the legislature.” Dan
stopped talking and he gazed at the table. “No, it’s not what you think. I’m
not listening to my voices. They must be on vacation today. I’m really just
thinking about how strange it is that I’m charged with murder and I feel like
I’m acting like a part of the defense team.”

“Okay, co-counsel, let me fill you in
a little more,” Wayne interrupted. “I took Dr. Parke’s deposition in one of
Tod’s cases.”

“Yeah, I know. Mom told me. From his
interview with me I’d say he’s a pretty weird bird. I’m not surprised. I’ve had
to deal with those guys for a bunch of years now. Seems to me like a lot of
them become shrinks because they think there’s something wrong with their own
mind and they’re trying to figure themselves out. Mom told me about his
library. I’d like to get copies of Rita’s pictures, big enough blow-ups to read
the titles, when you get a chance. Maybe you can email them to me. I’d also
like to meet Rita. Figure it’s about time since she and I are working together.”

“Dan, I know you’ve been asked this
over and over again,” Claudia said. “I’m going to ask it again. Do you remember
anything else about that day?”

Dan reflected as if trying to pull
something from the depths of his mind before replying, “No, Claudia. You guys
will be the first to know if I do. Meantime, Duke where the hell did you find
this psychiatrist you had evaluate me?”

“He was a law school classmate of
mine. Figured he’d be good. He’s on the faculty of UT medical school in Houston.
Why? What’s wrong?”

“First of all, you know he’s from
Georgia originally. He’s got this strange southern drawl, along with what
sounds like a British accent. He may be smart, but I had to ask him to repeat
his questions, and I was having a good day.”

“He’ll be okay, Dan,” Duke replied. “I’ve
actually seen him testify. The accent becomes mostly British when he gets on
the stand. Juries like him.”

“Well, there’s one more thing. He
interviewed me in the afternoon, and in this little room, the smell of alcohol
was so strong, I thought I might be getting high.”

“Shit.” Wayne exploded as he looked
at Duke.

At Wayne’s insistence, Duke arranged
a meeting with Dr. Jerome Earl “Jeb” Brickman for the next day. On short
notice, the only time the psychiatrist had available was after five o’clock. Duke
met Wayne at his condo and they hopped the Metro rail to the Texas Medical
Center where Dr. Brickman was a professor at the University of Texas Medical
School in Houston. On the way Duke explained that Dr. Brickman had worked full
time and still graduated first in their law school class.

“Hell, Wayne, he and I took criminal
procedure together. He missed most of the classes because he was flying around
the country, lecturing and testifying. We sat down two days before the final
and I taught him the course. I’ve never seen someone who could concentrate the
way he can. He’d listen to what I had to say, occasionally saying something like
‘horse hockey’ or ‘in a pig’s eye.’ You need to know this before you meet him. He
looks like a country hick and sounds like it, too, until he gets in front of an
audience or on a witness stand. Then his accent becomes closer to the Queen’s
English. See, his father was a World War II fighter pilot stationed in England.
His mother was a British military nurse. After the war, his dad talked her into
moving to Georgia where his family has raised peanuts for three generations. Jeb’s
a little round man with a shock of red hair. Don’t be turned off by his
appearance. Anyway, I attended every damn class and practically memorized the
book. Jeb outscored me on the final by eight points. I think he topped the
class.”

After leaving the train, the two
lawyers entered The Texas Neuroscience Institute and took the elevator to the
third floor, soon locating a door with Dr. Brickman’s name on it. Not bothering
to knock, Duke opened the door and entered the office. “Come on, Wayne. Jeb
isn’t much with formalities.”

They had to step over and round
stacks of papers as they made their way to the desk, also piled high with
papers. A head with red hair barely showed above the stacks. The professor rose
instantly, revealing a pink face with piercing blue eyes that were immediately
analyzing his visitors. A blue bow tie hung loose and matched suspenders that
pulled his pants over a prominent belly. Wayne guessed him to be in his
mid-fifties and maybe five feet, three inches tall.

As soon as he saw them, Dr. Brickman
went into a low bow as he said, “My Duke.” Then Duke responded, with his own
deep bow, “My Earl.” Wayne was about to move some books out of a chair when Brickman
bowed again. Then it was Duke’s turn. Then Brickman’s. Wayne looked on puzzled,
counting somewhere around seven or eight bows each. Finally, Duke laughed,
“Okay, Jeb, you win.” Turning to Wayne, he explained, “It’s a little game we
started in law school, who gets the last bow. Jeb grew up on a peanut farm, but
he spent a lot of summers in England with his cousins. His mother insisted he
learn to bow properly; said he might meet the queen some day. Jeb nearly always
wins our little contests, but I pushed him to twenty-five once. Jeb, this is
Wayne Little, my co-counsel and good friend.”

Dr. Brickman made his way around the
desk and shook Wayne’s hand. “Just toss them books on the floor and have a
seat,” he insisted. “Ah don’t waste much time straightening up around here.” One
sentence was enough for Wayne to hear a southern accent that would need an
interpreter in parts of New England.

“And, gentlemen, since it’s now past
five o’clock, you can join me in a drink.” Brickman reached into his briefcase
and pulled out a nearly full bottle of Wild Turkey. Then he rummaged around in
the bottom drawer of his desk until he found three glasses, wiped them with a
tissue and carefully arranged them on his desk. After filling each glass with
an ample portion of bourbon, he motioned to Wayne and Duke to take one.

Dr. Brickman waited for his guests to
take a glass, picked up the third and downed four ounces of Wild Turkey in one
gulp. As he finished, he wiped his mouth with the back of his other hand and grabbed
the bottle for a refill.

Wayne took a sip of his and returned
it to the desk, carefully watching the professor. “Doc, can we get down to
business? First, since we’re drinking let me ask you about your meeting with
Dan. He said you had a strong smell of alcohol on your breath. If I can be
blunt, you got a drinking problem?”

“Now, look here, Mista’ Little, my
answer is definitely not. Sure, I carry my flask with me when I travel. An
occasional sip of spirits often makes the journey more pleasurable. You have no
reason to worry. Ain’t never lost a DWI in my life.”

Wayne was about to inquire as to the
number of DWIs he had when Duke interrupted.

“Yeah, Wayne. Don’t you worry about
Jeb. I saw him ace a final one evening after attending a two hour faculty
cocktail party.”

“Thanks, Duke. Only that’s not very
comforting. We’ll see if we have to enroll Jeb here in AA before trial. Okay,
Doc, you’ve examined Dan. Give me a thumbnail of your opinions before you write
your report.”

Dr. Brickman propped his feet on his
desk, leaned back and took a sip from his glass, waiting for it to hit bottom before
he spoke. “I studied every medical record UTMB had on Dan. I have access since
they are in our same University of Texas System. Don’t see any indication in
his report that Dr. Parke did that. Then I watched the intake interview and Dr.
Parke’s interview. Next I spent some time with Dan.”

“Can I interrupt?” Duke asked. “How
the hell could Dan have been so sick and now he seems to be close to normal?”

“Good question. I've been studying
schizophrenia and bi-polar disease for twenty-five years now. Got a couple of
cousins in London who are victims of the disease. Climbed trees and ran around
with them as kids. Then I saw them as adults and they were crazier than
bedbugs. Got me interested in schizophrenia when I was in med school. Now, your
first generation antipsychotics and second generation antipsychotics, they do
some good for a few people. New medicines seem to be having much better results
on certain patients, particularly some of the ones we’re studying that aren’t
even on the market yet. Also, it may be that Dan is getting old enough that he
is having fewer symptoms. Strange thing about schizophrenia is that some
patients, for want of a better phrase, outgrow the effects as they age. It may
be starting early for Dan. Doesn’t happen very often in someone under fifty,
but there are such reports in literature.”

“So, Doc, what’s your assessment of
his condition on the day of the murder?” Wayne asked.

Taking another sip of his drink, he
continued. “Every time he’s been hospitalized he’s been admitted because he was
off his medications and every time they brought him to the hospital he was
hallucinating, hearing voices commanding him to do outlandish things.”

“Such as?”

“One time he was standing in the
middle of the I-45 causeway, hands raised, cars flying by at seventy-five miles
an hour. Fortunately, a state trooper stopped in front of him. He said the
voices had told him he had the power to stop traffic and back it all the way up
to Houston. On another occasion the cops found him frantically running up and
down the seawall at midnight. He said that aliens had landed and he couldn’t
find their spacecraft. There’s plenty more, however the importance of all of
this is that when he’s off his medications, he’s always psychotic.”

Wayne noticed that the more that Jeb
talked about psychiatry the less pronounced was his accent and the better his
grammar. Or, he thought, maybe it was the whiskey.

“So, I’ve studied every medical
record available on him. Then I watched the intake. No doubt in my mind that he
was insane by any definition you want to use, even the Texas one.”

“Thanks, Doc. That’s what I wanted to
hear. I presume Duke’s told you about our trial date. By the way, do you know
Dr. Parke?”

“Ah, Dr. Parke, Rick to his friends. I
know him quite well. Many years ago we even co-authored a book on the
criminally insane. Now, he no longer has my respect. He went to the dark side,”
Jeb frowned as he poured himself another drink. “You know about the dark side,
Wayne?”

“Only from
Star Wars
, and I doubt if that’s what you mean.”

“Dr. Parke’s dark side is a fondness
for researching the occult, Satanism and particularly serial killing. I hear
he’s even into sexual deviation, porn, you name it. Not sure where those
interests came from. It wasn’t apparent when we were writing twenty years ago. Now,
most of his writing and lecturing is on those subjects, particularly serial
killing. Not surprising that I no longer agree with his opinions. And, there’s
one more thing you need to know. Have you watched the video of his interview
with Dan?”

“No, Jeb, we haven’t yet. It’s about
six hours, and we just haven’t had the time,” Duke replied.

“Not quite, Duke. The interview was
six hours. About four hours into it, the video stops. According to the time on
the counter it was off for 28 minutes. So the recording is only about five and
a half hours. Highly unprofessional, my friends.”