So Like Sleep (3 page)

Rothenberg frowned, tapping a pencil against a file lying on his desk blotter. “Can I see your identification?”

I showed him. He studied it, copied some information onto a pad, and gave it back to me.

“You have any references I can check?”

“Sure,” I said, “but why?”

He picked up a pink phone-message slip. “This was waiting for me when I got in. From Mrs. Daniels. She isn’t stupid, but this sounds like somebody else wrote it for her.”

“I did. Last night, so I could speak with you today.” I shifted in my chair. “What’s wrong?”

“When I spoke with Mrs. Daniels, I didn’t have the impression that she had the kind of money to have two professionals working on William’s case.”

Rothenberg either was worried about getting more money or was suspicious that I might be leeching off a vulnerable relative. I gave him the benefit of the doubt. “If it helps any, I’m doing this as a favor for a friend.”

“That’s kind of what I’m doing too.”

“I don’t get you.”

“I represented William when he was a juvenile and I was with the Mass Defenders. You know how cases got assigned to us back then?”

“Not really.”

“Well, the short version is that we got assigned pretty regularly by some judges, not so much by others. A question of … attitudes.”

“By ‘attitudes,’ you mean a judge’s cronies who got cut out of some court-appointed fees?”

“Draw your own interpretations. Point is, almost everybody, every criminal defendant, can come up with money for private counsel somehow.”

“So?”

“So in William’s case back then, the judge at arraignment didn’t like us, and William was sort of borderline for indigency because of his mother’s job and all. But I thought I saw something in him, something worth pushing for. So we, read I, made the pitch in open court, and the judge grudgingly assigned us.”

“And?”

“And I kept the little shit he’d stepped in from becoming big shit, and then he went off to college, and then …” Rothenberg stopped, exhaling noisily.

“And then your reclamation project goes and ruins your effort by killing a girl.”

Rothenberg gritted his teeth, then relaxed. “One way of putting it.”

“Then why are you helping him now?”

“Partly money, but mostly, well, when his mother contacted me, the case seemed more interesting than it does now. Legally speaking, I mean.”

“How so?”

Rothenberg paused, fingered the file in front of him. “My client is William, not his mother.”

“Meaning?”

“Since your client is the mother, not the son, I’m not so sure I can talk with you about his case.”

“What have we been talking about—Jimmy Hoffa?”

“No, I mean the merits of the case. The factual and legal arguments, my work product, conference with him, and so on.”

I thought back to my year of law school. “Can’t I be your necessary agent, even if one of us is working for free?”

He smiled. “That’s pretty good. But the mother hired you, even without money, and that means I didn’t, and therefore I don’t think a court would buy you as an agent for William’s lawyer.”

Rothenberg made no effort to end the interview, so I assumed he wanted me to try a different tack.

“Would it be a fair bet that the reason William’s case is uninteresting is because it’s ironclad against him?”

Rothenberg, wrinkling his brow, allowed, “It would.”

“Then there probably wouldn’t be any cosmic harm if you were to go the men’s room and I, without your knowledge or help, sort of skimmed Daniels’ file.”

Rothenberg brightened. “Hypothetically speaking, no. No harm at all.” He stood up. “Would you excuse me? I have to take a leak.”

“Sure.”

He closed the door behind him.

I suppose somebody could fault Rothenberg for not observing the spirit behind some of his attorney ethics. However, all he really did was save me a second trip to his office, since William could have authorized me to see his file once I saw him.

The folder Rothenberg had been playing with was marked DANIELS, WILLIAM E. I opened it.

A
N INTAKE SHEET
was stapled to the left inside of the folder, but the only significant fact I didn’t already have was William’s date of birth. He’d just turned twenty.

The bill of indictment listed two crimes. Murder in the first degree and unlawful possession of a firearm. The possession charge bespoke a thorough, if overzealous, prosecution. Even if Rothenberg somehow beat the killing, William was gone under the state’s tough gun law for an automatic, no-parole one-year on the unlicensed-weapon charge. But first things first.

The victim’s name was Jennifer Creasey, age eighteen years. The police report read like a synopsis of a Charlie Chan movie.

Uniformed officers Clay and Bjorkman were summoned to the office of Dr. Clifford Marek, One Professional Park, Calem. There they met Dr. Marek, who showed them in the basement a young white female, deceased, with apparent gunshot wounds to the chest, identified as Jennifer Creasey. Dr. Marek gave them a .38-caliber Smith & Wesson Detective’s Special revolver, serial number 7D43387. The rounds in all six chambers had been expended.

The officers asked the source of the weapon and were taken by Dr. Marek back upstairs to William E. Daniels. Officer Clay remained with Daniels and read him his rights while Bjorkman summoned the Detective Bureau. Detectives O’Boy and Rizzi interviewed the doctor and other patients on the premises.

According to the interviews, Daniels and the decedent were members of a therapy group Marek conducted each Thursday night. Hypnosis figured prominently in the treatment, with a different group member being hypnotized by Marek each week, then being questioned by the doctor and each other member.

I shook my head. Lord, let me never be psychoanalyzed.

That night was Daniels’ turn to be hypnotized and questioned. He arrived late, appeared restless, irritable. Having already waited for ten minutes, Marek began without Jennifer Creasey. After putting Daniels under, Marek began by asking, as he always did, about the subject’s movements during the previous hour.

Daniels responded by saying he had shot Jennifer in the basement boiler room. When the doctor and others expressed surprise, Daniels reached into his coat pocket and laid the aforementioned weapon on his lap. One of the other patients, a Homer Linden, got up and snatched the gun away. Marek and another group member, Lainie Bishop, went down to the boiler room while Linden and the last group member, a Donald Ramelli, watched over Daniels. Marek and Ms. Bishop discovered the body and came back upstairs, by which time Ramelli had already called the police.

Short supplementary statements of each group member affirmed the consensus story. All were certain that Daniels and the decedent were having a sexual relationship.

A report from Ballistics established the revolver as the murder weapon. A second, from the medical examiner, confirmed two bullet wounds to the chest as the cause of death, with no indication of pre- or post-mortem sexual activity or assault.

There were some lab results on William himself. One from the state police at 1010 Commonwealth Avenue stated that a paraffin test on William’s hands showed he’d fired a weapon recently. Another said his blood tested positive for no drug except flurazepam, whatever the hell that was. The last entry in the file was from a court-ordered shrink, certifying Daniels as sane at the time of the shooting and competent to stand trial now. I took down all relevant names and addresses, then closed the folder.

Rothenberg came in just as I was putting my list into a coat pocket. He was carrying several pieces of typed paper.

“Sorry to be so long,” he said brightly.

“I kept myself amused.”

“Well?”

“Can we talk? In the clear, I mean?”

Rothenberg frowned, then gave me a “why-not” shrug.

“What’s Daniels’ defense?” I said.

“That’s just the trouble. When William’s mother called me, I had already seen the television story on the killing.”

“Go on.”

“Well, we had a murder involving hypnosis. I jumped at it because of—are you up on the Commonwealth’s view of hypnosis?”

“No.”

“Okay.” Rothenberg put the papers down. “Some states’ courts say a hypnotized witness can testify in court, some say he or she can’t because the very act of being hypnotized can block out certain memories and create certain others. You with me?”

“So far.”

“Well, our Supreme Judicial Court ruled in the
Kater
case that it would accept as competent a witness who had revealed certain facts before hypnosis but not facts revealed only under or after hypnosis. Okay?”

“Okay, but—”

“Let me finish. I figured we had a great test case under a footnote in
Kater
. You see, can a criminal defendant be kept off the stand, be incompetent as a witness, to tell his side of an event which would be revealed only after he’d been hypnotized?”

“That’s what made the case seem interesting at first?”

“Right.”

“So what’s spoiled it?”

“This,” he said, sliding the typed pages over to me.

They were a transcription of notes taken by Rothenberg at an interview he had with Daniels a week earlier at the Middlesex County detention facility in the courthouse building in Cambridge. Rothenberg talked as I read. “There are so many of us sharing a secretary here, it takes a week to get anything that isn’t a life or death emergency.”

I finished the transcription. If it was accurate, Daniels himself corroborated virtually every detail in the police version.

I looked up. Rothenberg said, “See?”

“I think so. Even if the trial judge would let Daniels testify after hypnosis, Daniels would just crucify himself.”

“Exactly,” said Rothenberg, lacing his fingers behind his head and leaning back in his chair. He smiled at his apt pupil. “Putting Daniels on the stand would be suicide.”

“And there goes the test-case part of it.”

“Uh-huh.”

I pushed the interview report back to him. “So now what?”

Rothenberg stopped smiling, looked resigned. “We plead him to a reduced charge. If we can.”

“ ‘If we can’?”

“Put yourself in the DA’s place. Better, in the assistant’s place. The guy who’ll try the case. This is worth at least eight, nine days of jury trial. Great media exposure for the trial counsel, including two minutes easy on the six o’clock news each night. Say we go with insanity, or diminished capacity. That means we’re putting the kid’s mental condition in issue, and that waives the patient-psychotherapist privilege. That means the jurors definitely get to hear Marek—that’s his shrink—telling about the séance with the gun. Oh, the judge has to instruct the jury to consider the testimony only on the issue of Daniels’ mental condition, and not on his doing the shooting, but no jury alive can keep those things separate. Also, the trial then becomes a forum for everybody to rail about the insanity defense, John Hinckley, the safety of our streets, et cetera, et cetera. I think the court-ordered report’ll stand up. I’ve talked to this Marek, and briefly to his former shrink, some U Mass staffer.”

“Dr. Lopez?”

“Yes, that’s her.” Rothenberg went from resigned to gloomy. “No, we all think he was and is legally sane, so to speak.”

“Does that mean that if you don’t plead insanity, you can keep out his confession at the ‘séance’?”

“Maybe, maybe not. Daniels’ story itself was after hypnosis, so that ought to stay out. But does the patient-psychotherapist privilege include the therapy group members, does it include his physical agitation, his taking the murder weapon out of his pocket? No, with the circumstantial stuff this strong, not to mention the black boy/white girl angle, nineteen juries out of twenty will convict. In an hour. They’ll stay out three to make it look good, like they really wrestled with the case. But they’ll convict.”

“Any chance of bail?”

“No. Oh, the arraignment judge set bail at three-hundred-thousand surety, thirty-thousand cash alternative. But Mrs. Daniels can’t swing either. I’d bet my retainer, which was half what I should have taken, nearly tapped her out as it is.” He looked down at his watch. “I’ve got to run. Anything else?”

“Yeah. Can you get me in to see Daniels at Middlesex?”

“I guess,” Rothenberg said—wondering, no doubt, how big a favor I must be repaying.

R
OTHENBERG AND
I rattled to the Lechmere stop on the Green Line subway/trolley and walked the three blocks to the tall, modern court-house facility. Rothenberg flashed his Board of Bar Overseers card at the Middlesex County Police security team on the first floor. I had to go through the metal detector.

We rode the first elevator to the seventeenth floor. Rothenberg vouched for me with the Sheriff’s Department correctional officer inside the thick-windowed control center, then left for his court appearance downstairs. I completed a “Request to Visit Inmate” form and fed it with my photo ID to the officer through a Diebold tray like a drive-up bank’s. He returned a blue and white visitor’s pass, which I clipped onto my lapel.

The officer waved me to the entrance trap. A red heavy-metal door slid open, unsealing one end of the trap. I entered and cleared another metal detector. Then, and only after the first door chunked closed, the officer opened the second door, admitting me to the visitors’ area. I sat in a glassed-in room on an old, but surprisingly comfortable, green leatherette chair.

Ten minutes later, a husky guard escorted to me a slim black man I recognized from the television tapes to be William Daniels. Dressed in a medium-green inmate’s shirt and faded green trousers, Daniels had the graceful gait and fine-featured face of a young Arthur Ashe. He eyed me warily as I stood to shake his hand, the guard closing the door as he left but moving back to a position from which he could watch over us.

“My name is John Cuddy. I’m a private investigator. I told your mother I would look into your case.”

Daniels ignored my outstretched hand. Taking the seat across from me, he squinted and sneered. “You choose your words real careful, don’t you?”