The Wrong Man

37

Tom Stoller stared at his feet, his tongue moving a hundred miles an hour over his lips. I couldn’t see his hands, but I knew the fingers were twitching as well. I knew he was living in his own world right now, thinking about a hundred things that had nothing to do with this court appearance or even this criminal case, quite possibly having to do with military service in Iraq.

And the state, part of the country that sent this guy to do its dirty work thousands of miles overseas, that put him into a dire situation, fucked him up, and abandoned him when he returned, now wanted a judge to strike his insanity defense from the case.

The docket clerk called our case. Tom didn’t even move at the mention of his name.

Today was Tuesday. We were in the final stages of trial prep. All the distractions-other clients, meetings, court appearances, depositions-were over for all of us. It was all hands on deck. Shauna was working on the experts. Bradley was preparing pretrial motions. Joel Lightner was hunting down everything he could find on Gin Rummy and Summerset Farms and Global Harvest. There was something there, I was sure. Kathy Rubinkowski had stumbled onto something.

But in the meantime, since I had no assurance I would be able to find anything in time, I had to also prepare for an insanity defense. Shauna would handle our shrink, Dr. Baraniq, and I’d probably cross their expert. Unless, of course, Judge Nash struck the insanity defense, at which point he would have no choice but to give me more time to prepare a retooled defense. That, as Shauna had noted, was one of my real motives here-to let the judge bar the insanity defense so he’d give me more time to pursue my strongest case, that Tom was innocent.

Judge Nash peered down at us over his glasses. He was in a foul mood today. He had abused the lawyers in the three cases coming ahead of us on the docket. I didn’t mind his mood or his abuse, but it made him unpredictable-read more unpredictable than usual.

“Ms. Kotowski,” he boomed. “It’s your motion.”

Wendy dove into it, arguing the inability of her experts to perform an analysis of Tom Stoller because he refused to talk about the events of the night in question. She cited case law, which I could not distinguish, that gave the judge the authority to bar a defense based on mental state when the defendant refused to cooperate with the government psychiatrists.

She had another argument as well. And it was her best one. “On the one occasion where the defendant even remotely engaged the state’s expert, Dr. Ramsey,” she said, “the defendant indicated that he had no memory of Kathy Rubinkowski’s murder. Your Honor, the law is clear that a defendant seeking excuse by virtue of a mental condition must lay a foundation that this defendant simply cannot lay. He can’t claim a PTSD defense when he doesn’t even remember what happened.”

Tom had said the same thing to me, more of a whisper, when he tackled me in the visitation room. He’d also mentioned it to Bobby Hilton, his war buddy, in my presence.

“So, Mr. Kolarich.” The judge turned to me. I approached the lectern, but he kept talking. “Your client won’t talk to the state’s experts?”

“That’s what they claim, Judge. I’m not in a position-”

“Has your client talked to your expert?”

I paused. “My expert plans to testify-”

“Is that a no, Counsel? It sounds like a no.”

“He hasn’t provided detail to Dr. Baraniq,” I conceded.

“Okay, well, does your client remember the events of that evening?”

“Judge,” I said, “I’d rather not give the prosecution a preview of my case.”

The judge frowned. “You’ll have to if you want to assert this defense, Counsel. You don’t get to sit back on the Fifth Amendment while asserting insanity. You know that.”

“Judge, I bear the burden of proof on this issue. The defense. All the state has to do is rebut my case after the-”

“Mr. Kolarich.” He shook his head. “The state is correct. The defendant can’t sustain a defense of post-traumatic stress disorder if he can’t recall the events of the crime. I’ve read the submission of the state’s expert that the defendant said he doesn’t remember what happened. And I haven’t heard any denial from you.”

“Judge-”

“Counsel, you can tell me, your client can tell me, if he’d like to testify-but this is your last chance. Does your client remember what happened on the night in question or doesn’t he?”

“Judge, as far as I am aware, no, he can’t recall, but my expert is prepared to testify that-”

“No,” said the judge, shaking his head. “No. I’m striking your affirmative defense of not guilty by reason of insanity. The prosecution’s motion is granted.”

I paused for a moment, as if absorbing this expected development. The judge would have been correct to bar the insanity defense on either of the grounds Wendy asserted.

But I had a plan B, and it was time to assert it. “Judge, the problem the prosecution has with my client is the same one I have. He’s unresponsive. He can’t talk to me. He can’t help me. He is totally unable to assist me in my defense. And you don’t have to take my word for it. The prosecution is basically making my case for me. Tom Stoller is not fit to stand trial.”

“Wait a second,” Wendy protested.

“Hold on, Counsel,” said the judge. “Mr. Kolarich, you’re talking about fitness now? Your client has had two fitness hearings provided at state expense. He’s been declared fit twice.”

“He won’t-he can’t talk to me, Judge. How is that assisting me in my defense? That’s the very definition of being unfit to stand trial. The prosecution agrees with me. You have no party standing before you that doesn’t think he’s unfit-”

“Counsel, your client won’t talk to the state’s expert. That doesn’t make him unfit. You seem to have had the ability to gain some knowledge from him, not that you volunteered that information to the court. We are not holding a third fitness hearing, and that’s that.”

“Your Honor-”

“We’re done, Counsel. We are done.”

“Then I move for a continuance,” I said, panic rising within me. I’d expected to win on plan B. This was plan C. “You’ve stricken our affirmative defense only eight days before trial. We need time to reassemble and put on a defense.”

The judge didn’t appear moved. “You’ve had months to prepare, Counsel.”

“To prepare an insanity defense, Judge. Not a defense of reasonable doubt. I’ll need a minimum of ninety days-”

“Mr. Kolarich, you knew the risks. You knew the defendant wasn’t cooperating, and you knew your client couldn’t remember the events of the crime. And you knew Ms. Kotowski would file this motion. You didn’t just fall out of a tree.”

“No,” I said. “No, Judge. It’s the prosecution that waited far too long to make this motion. They could have made this motion months ago. They waited until-”

“They were trying to get your client to cooperate, Mr. Kolarich. And he wouldn’t. That’s not the state’s fault. Now, I’ve made my ruling and I will not entertain further argument on it.”

“I understand your ruling on the state’s motion. I’m moving for additional time to prepare in light of that motion. You can’t possibly expect me to be ready on a reasonable-doubt defense in eight days.”

“Counsel,” he said, wagging a finger, “I told you-”

“This is a total ambush, Your Honor. A total am-”

“Counsel, you do not interrupt the court. You do not.”

I had violated the first rule of Judge Nash’s courtroom. And everyone knows that once you get on his bad side, if you don’t make amends, it only gets worse.

“Your motion is denied. We start the trial December first, as planned. The clerk will call the next-”

“Judge, you can’t do this. If you’ll-”

“Mr. Kolarich, that’s twice you’ve interrupted me. Another word and you’ll join your client in lockup.” The judge paused, as if to dare me to do it. I held my stare on him but didn’t say a word. He couldn’t hold me in contempt for staring.

“The clerk… will call… the next case,” he said.

Deep down in the soul of a defense attorney, the thought that visits him in the dead of night is not that he’ll lose a case, or even that an innocent person will go to prison on his watch. What haunts him more than anything is the fear that he’ll make a mistake, a gross miscalculation that will single-handedly be responsible for the loss of his client’s freedom.

That it will be his fault.

I didn’t care much for the insanity defense in this case. In all likelihood, I wasn’t even going to use it. But at this moment I realized, more than ever, that I was counting on it to give me either a win on Tom’s fitness to stand trial or a continuance, either of which would buy me more time, that Judge Nash would give that to me as a consolation prize after striking the defense. And I’d been wrong. The judge had made a mistake here, in my opinion, but when could you ever be sure a judge would rule correctly?

I looked over at my client. Tom was still staring at the floor, seemingly oblivious to what was taking place, his nervous tics in full swing. He caught my eye for one moment before the guard led him out of the courtroom.

“What does this mean?” Aunt Deidre grabbed me by the arms as the court took up the next case.

“We’ll figure this out,” I assured her, moving her toward the exit. “We’ll figure something out.”

Never had I delivered words with such certainty that I didn’t feel. I had outsmarted myself, failing to account for the unpredictability of a judge, and it wouldn’t be me who would feel the weight of that miscalculation.