The Wrong Man

9

“The key to this trial is sympathy,” I told the conference room. “Tom Stoller gave everything for his country. It destroyed him. It gave him PTSD, which triggered his schizophrenia. Things went south from there. A tragedy happened. But Tom Stoller is a victim every bit as much as Kathy Rubinkowski.”

“Well, maybe not every bit as much.” This from Joel Lightner, my private detective. His tie was pulled down and his feet were on the table. Joel joins me occasionally for drinks, by which I mean about three times a week. He is a two-time loser at marriage, a rabid skirt-chaser, and a happy drinker.

“What happened to insanity?” Bradley John, our young pup, asked. Unlike Joel, young Bradley was hoping to learn a thing or two.

“Insanity is our legal theory,” I said. “We argue it with everything we have. But it’s a tool. We use it to give the jury his background. To sympathize. So they won’t want to put one of our nation’s brave soldiers in the penitentiary for life. We have to prove insanity by clear and convincing evidence, and I’m not sure I could even get a preponderance. Tom knew right from wrong. He told the victim he was sorry. And he stole her purse, phone, and necklace afterward. So I’m under no illusion that we can make that case. What I do believe is that in the process of attempting to make our case, we put the jury in the frame of mind that they want to acquit.”

“But he was flashing back to Iraq, right?”

Lightner turned his head lazily-read: condescendingly-toward young Bradley. “You think he apologized to the Al Qaeda guerrillas when he shot them?”

“Maybe he did.” Shauna was smartly dressed today for court. Her blond hair, which she’d grown out some, curled around the curves of her face. And she had the naughty-librarian black horn-rimmed glasses that made Joel squirm. “Seriously,” she said. “Maybe he felt bad about killing people. What’s odd about that? I mean, isn’t that why war screws people up so much?”

I raised my hands. “That’s all fine, people. I agree. We use that. We embrace what he told the police in the interview. But at the end of the day, the jury’s looking at an instruction that says that we have to prove that his mental defect prevented him from appreciating that what he did was a crime. We have to make them disregard the law and walk him because they view him as a victim.”

I paced the room for a while. I would have preferred to have a football in my hand, but I’d misplaced it in my office. “Joel,” I said. “I need fresh interviews on everybody who served with Tom overseas. I need someone to testify about what kinds of things happened over there. And anything specific to Tom. If Tom won’t tell us, maybe they will. Hopefully-and I can’t believe I’m saying this-hopefully he killed some people over there.”

“And I assume the home run would be if he killed a woman in her twenties while she pulled a gun on him after getting out of her car?”

“Yeah, Joel, that’d be super.” It was a reminder of what a stretch this case would be. PTSD flashbacks, according to Dr. Baraniq, were typically spurred by circumstances similar to the traumatic event in your past. It was hard to see how encountering a petite, well-dressed young woman could have flashed Tom Stoller back to Iraq. But it was all we had.

“Bradley,” I went on. “Hit the books. I want every court decision ever published on PTSD. The PD’s office did some research, but I want you to double-check it. I want to know what factors can vitiate the defense, the use of hypotheticals versus actual firsthand accounts, anything. I want examples where the defendant refused to talk about the event but still managed to pull this off. Keep in mind some jurisdictions follow M’Naughten or irresistible impulse, not the modified ALI. Preferably, I want something on point in a jurisdiction following ALI like us. But I’m not greedy.”

“Got it. Got it.” Bradley seemed pumped for this case.

“Shauna,” I said. “Take a look at the forensics and the blood spatter and the medical examiner reports. We don’t have to accept that the shooting happened exactly the way the prosecution claims. If we need to hire that guy-what’s his name, Peters? — then let’s talk and we can do it.”

“And when you’re done, Shauna,” said Joel, “come over to my place. We’ll open a bottle of wine and talk about it.”

Shauna rolled her eyes and nodded at me. “What’s your assignment?”

“Me?” I stretched my arms. “I’m going to get Tom Stoller to talk to me,” I said.