Sins of the Fathers (16 page)

“Yes,” the doctor said. “I completed my interview and examination two days ago. I have a copy of my written report in front of me.”

“How was this examination conducted, Dr. Kitteridge?”

“I asked a standard battery of questions which apply to this profile,” the witness said. “First were basic cognition queries, followed by questions of increasing complexity relating to the matter of mental competence.”

“Tell the court first, please, how Darren responded to the initial questioning.”

Kitteridge put on glasses and referred to his report. “He was non-responsive for the most part. His demeanor was vacant. He had trouble focusing. His span of attention was extremely limited.”

“Do you have a scale of assessment for attention span?”

“We do. There is a standardized scale from one to ten, ten being the highest level of focus. Darren, in my opinion, rates no higher than three.”

Lindy paused, took a quick glance at the judge. He was looking vacant himself, pulling at one of his eyebrows and blinking toward the back wall.

“Moving on,” Lindy said a little louder than normal, “what did your specified examination determine?”

Kitteridge glanced again at his report. “Darren is confused about his incarceration and does not appear to understand what is at stake. Further, when I asked whether he understood the basic difference between right and wrong, he did not respond with requisite specificity. My conclusion is that he would not be able to meaningfully participate in his own defense.”

Clear, concise, to the point. Dr. Kitteridge sounded better than ever.

Lindy finished off by having Kitteridge tell the court how many times he had testified in similar matters and how often his opinions had been upheld in subsequent court proceedings.

Then it was time for Leon Colby to cross-examine.

Lindy watched him closely, part of her giving in to a certain awe. The man commanded an audience, no doubt about it. He moved across the floor smoothly, confidently. He held no notes, only the copy of Kitteridge’s report Lindy had provided him.

“Dr. Kitteridge,” Colby said with a nod of greeting.

“Good afternoon, sir,” Kitteridge said.

“You interviewed Darren DiCinni at Men’s Central Jail, is that correct?”

“Yes.”

“And you spent approximately an hour and a half with him?”

“That’s right.”

“That’s a pretty long time to spend with someone who can’t focus.” Colby’s tone possessed the coolness of an assassin. Lindy thought of that guy who played the big-cheese terrorist in
Die Hard.
Smooth as Arabian silk, but everyone knew he’d shoot anybody in his way.

Ben Kitteridge shifted only slightly in the witness chair. “Time spent with a subject is not an indicator of focus in and of itself. What the subject does during that time is what counts.”

“And you asked him a number of questions.”

“I did, yes, sir.”

“And he answered them?”

“Not in the way that would indicate—”

“Excuse me, doctor, and focus on my question. Darren
answered
your questions, did he not?”

“Some, yes, but the answers were not—”

“Thank you.”

Lindy stood up. “Objection, Your Honor. The witness should be allowed to answer—”

“Overruled,” Foster barked. “He’s an experienced witness, he knows the drill. Answer what the lawyer asks. Go ahead, Mr. Colby.”

Lindy sat down, her pulse up-tempo. Better not object too much. Foster was extra cranky today and she needed all his goodwill. What there was of it, anyway.

Colby looked at the witness. “I am particularly interested in your assertion that Darren DiCinni cannot understand the nature of the charges against him. You see that in your report?”

“Yes,” Kitteridge answered.

“You based that on a few yes-or-no questions, is that right?”

“Questions that have been tested time and time—”

“Doctor, please. My question can also be answered yes or no. These are yes/no questions you asked Darren DiCinni, right?”

“Yes,” Kitteridge said, beginning to look a little flustered.
Hang in
there,
Lindy thought.
You
’
re doing fine.

“And one of your conclusions is that Darren really does not appreciate the difference between right and wrong, isn’t that true?”

“That’s true, yes.”

“Then let me ask you a hypothetical question.”

Once more Lindy got to her feet. “I’ll object to that as going beyond the scope of direct,Your Honor. Dr. Kitteridge is here to testify about his findings. I did not go beyond the four corners of his written report.”

Foster did not immediately rule, which Lindy counted as a partial victory. “Mr. Colby?” he said.

Leon Colby did not hesitate for a second. “I would cite to the court the
Tamayose
case, which held there should be a
wide
latitude allowed in the cross-examination of expert witnesses. The court specifically stated that hypothetical questions which are
fair
in scope and
fairly relate
to the state of the evidence are not only permissible, but desirable.”

“Ms. Field?” said the judge.

“
Tamayose
does not hold that hypotheticals can be used as a back door into areas not covered on direct.”

“I remember the case,” Foster said. “And I believe the judge is given great discretion in this area. Mr. Colby, go ahead and ask your question.”

“Doctor,” Colby said, “assuming that Darren was not under the influence of any drug or medication or alcoholic beverage, and assuming further he set out to kill several innocent people, wouldn’t it—”

“Hold it!” Lindy said. “Your Honor, this is ridiculous. Mr. Colby is asking a question based upon the very facts at issue in this case. Whether Darren set out to do anything assumes the mental element in question, here and at trial.”

Colby said,“Your Honor, if Ms. Field would regroup for a second, she would understand that assuming facts is what
hypothetical
means. And if Your Honor is not satisfied that the question does its job, I know you will disregard it.”

Foster nodded. “Objection overruled.”

Colby repeated the first part of his hypothetical, then added, “Assuming all of that, Doctor, if the subject were to drop his weapon and raise his hands in the air, would that affect your conclusion as to his understanding of right and wrong?”

Boom.
Lindy could only watch as Kitteridge thought this over.

“It might,” Kitteridge said.

“Nothing further,” Colby said.

2.

“Prosecution calls Dr. David O’Connor,” Leon Colby said.

O’Connor? The doctor Lindy had talked to by phone at County USC. Colby didn’t have him on the notice list. She could object now or wait to hear a little of his testimony. She might find a foothold for some solid cross-examination. She decided to wait.

O’Connor’s face made Lindy want to look up the word
smarmy
just to see if his picture was there. He was dressed in a slate gray, Italian-cut suit. Not bad for a county physician.

After eliciting a litany of qualifications, Colby asked, “How long have you been acquainted with the accused, Darren DiCinni?”

“I was assigned by the Department of Social Services to do an assessment on the subject, for the first time, two years ago.”

Two years ago?

“Your Honor, may we approach the bench?” Lindy said between clenched teeth.

“Without the reporter,” the judge said.

“No,” Lindy said. “I want the reporter. I want this down.” She looked at the good doctor sitting there on the witness stand. He averted his eyes.

“Come on up then,” the judge instructed, and then motioned to the reporter to join them.

“Your Honor,” Lindy said, giving a sideward glance at Colby, “Mr.

Colby seems to have overlooked a couple of things. First of all, this witness is not on his list. Second, that this doctor previously examined my client is something the prosecutor’s office should have shared with me, don’t you think?”

Judge Foster looked at Colby. “Your response?”

“Your Honor,” Colby said, “we will have all of the paperwork ready for Ms. Field to look at. But we were not aware of this witness or his previous examination of the defendant until last night.”

“Have you ever heard of a telephone?” Lindy said.

“I will remind my learned colleague and Your Honor that this is a mental-competence hearing, and that the defense has had every opportunity to conduct its own discovery and consult with its own expert witnesses.”

“Discovery does not include the outright lying of prosecution stooges. This O’Connor is a . . .”

“All right,” the judge said. “That will be enough. Ms. Field, Mr.

Colby has a point about your own efforts.”

“But I’m trying to tell you there is something unethical going on here.”

“Come on, Lindy,” Colby said.

“Ms. Field, I’m not going to engage in a test of ethics here. If you have a complaint to make, you may do it in writing in the proper order of things. I will allow you to vigorously cross-examine this witness. If I find that there is some unfinished business, I will grant a continuance for you to do more research and preparation. But if I find that any delay will not be of further assistance to this court, I will be prepared to rule. Let’s go back to work.”

Colby returned to the witness and asked,“What was the occasion for your assignment to examine Darren DiCinni?”

“The subject had been taken in after a violent confrontation at school.”

Colby said, “What was the nature of that confrontation?”

“The subject attacked another student with an aluminum bat.”

“What happened to the student who was attacked?”

“He was hospitalized.”

“Was the defendant aware of his actions?”

“Objection,” Lindy said. “Speculation.”

Colby was unconcerned. “You examined Darren DiCinni shortly after that?”

“I’ll sustain the objection,” Judge Foster said. “Needs a foundation.”

“Two days,” said Dr. O’Connor.

“And what, if anything, did he say to you?”

O’Connor almost smiled when he answered. “That he was a bad little boy.”

Lindy exploded to her feet. “Objection! I have no written report, Your Honor. No notice from Mr. Colby and no reason to buy this story. This is rank hearsay.”

“Ms. Field!” Foster’s lab mice were dancing on his face now. “Get control of yourself.”

“Your Honor, if I may—”

“Sit down,” the judge ordered.“Your objection is noted, and I will say this for the record. We have a witness under oath and you are going, I assume, to cross-examine. That’s the way the system works and you know that, Ms. Field. I’m perfectly capable of determining credibility here. That’s my job. Now let us move on.”

Smarmy O’Connor testified to similar “facts” from his examination of “the subject.” It was his opinion that Darren was not only aware of right and wrong but could easily participate in his own defense.

Then Colby quietly turned the doctor over to Lindy.

“We’ve talked before, haven’t we, Doctor?” she asked.

Without so much as a blink, O’Connor said, “I believe so.”

“You recall my calling you at County-USC?”

“I believe so.” And he smiled.

“Do you believe it or know it, or don’t you know the difference between the two?”

“Ms. Field!” The judge snapped.

“Withdraw the question,” Lindy said. “Do you recall the conversation we had at that time?”

O’Connor frowned in a way that looked theatrical. “I really wouldn’t call it a conversation, Ms. Field. I think you were a little upset.”

“Oh really?” Lindy said, feeling the scorn dripping out of her like acid. She told herself to keep it from pouring over. “Might that have been because you wanted to stonewall me?”

“Your Honor,” Leon Colby said wearily, “must we have this?”

Foster was quick to respond. “Ms. Field, that is an absolutely improper—”

“It is not improper,” Lindy snapped, not caring that she interrupted the judge.

“I rule that it is,” Judge Foster said. “There will be no more—”

“The man is a liar,” Lindy said.

Varner Foster looked as if he’d been slapped. “You can be held in contempt for accusing a witness in open court—”

“I do so accuse,” Lindy said.

A stillness overtook the courtroom, one of those pregnant movie moments. Lindy felt like camera one was giving her a close-up. Varner Foster flinched once, as if he could not believe what he’d just heard. Then, quietly, he said, “I will therefore hold you in contempt of court.”

Lindy froze in place, like a ruined statue stuck in a warehouse. “You what?” She could not believe he’d actually done it.