The Insanity Plea (25 page)

It was ten o’clock before the lawyers
heard the shuffle of footsteps in the hallway. Shortly thereafter, a bailiff
opened the door and began to call the names of prospective jurors and direct
them to particular seats where counsel would be able to identify them by juror
number when voir dire examination commenced. The panel was a mixed lot, not far
different from the demographic makeup of the county. Forty percent were white,
thirty percent black, twenty-five percent Hispanic and five percent Asian. Gender
was close to even. Occupations included bankers, dock workers, medical workers,
including a couple of doctors who definitely didn’t want to be there,
housewives, welfare mothers and a few unemployed.

Once Barney, Judge Fernandez’s
bailiff for fifteen years, was satisfied that everyone was seated in their
proper place, just for good measure he called each juror’s name and asked them
to recite their juror number. Having double checked, he went out a side door to
a small, secure holding area. He was to bring Dan into the courtroom from there
before advising the judge that everything was ready to proceed.

He was gone for no more than a minute
when he returned, shaking his head. Wayne and Duke looked at each other. The
bailiff approached Casey who sat at her machine and whispered something to her.

“I’m sorry, Sheriff,” Casey said in a
voice that was not a whisper. “The judge is on the phone with an appellate
judge and can’t be interrupted. His very definite instructions are for you to
bring the defendant into the courtroom before we call him.”

The deputy shook his head again and
left the courtroom.

Duke put his hand over his mouth as he
whispered to Wayne, “What’s going on?”

“Beats me,” Wayne replied, shrugging
his shoulders. “Guess we’ll know pretty damn quick.”

The side door opened and the bailiff entered,
holding Dan by the elbow. Dan’s change was dramatic. His hair was uncombed. He
hadn’t shaved in days. The first four buttons of his shirt were open. His pants
were unzipped. As he shuffled in, the stench of an unbathed body filled the
room. And that was not the worst of it.

Dan was talking loudly as he shook
his head and waved his fists. “Now wait just a goddamn minute! You’re not in
charge here! You hear what I’m saying. No, I won’t tell these people they are a
bunch of stupid shits! And, yes, I see that little bald man on the third row. You’re
telling me he’s Satan and is going to control me and manipulate this trial!”

As he spoke, he looked at the jurors
and stuck his tongue out at one older woman and shot the finger at a young
black man on the first row.

“Hey, boy, you sure you’re smart
enough to be here? My man here beside me says you flunked the eighth grade.”

The young black man leaped to his
feet and started to climb the rail when another bailiff shoved him back into
his seat. Barney pushed Dan to the counsel table and shoved him into the middle
seat between Wayne and Duke.

Casey grabbed the phone and called the
judge. Barney beat on his chamber door.

In the moment they waited for Judge
Fernandez, Wayne whispered to Dan, “What the hell has happened to you?”

Dan fumbled in a coat pocket and
finally extracted a wadded piece of paper. He looked around to make sure he was
not being observed and slipped the paper to Wayne under the table. Wayne un-wadded
the paper, read it and passed it to Duke. The note said:
I’m writing this a week before the trial starts. I started cheeking my
medicine two days ago. I figure in a week I’ll be back like I was on the
street. I know what the law says, but I want the jury to see me as I was that
day, not like I am when I’m on my meds. Hope this works!!!!

Fernandez burst out of his chambers. Everyone
rose except Dan. Fernandez didn’t bother to take the bench.

“Bailiff, please escort Mr. Daniel Little
from the courtroom. Then retire the jury panel until further notice. We’ll call
them when we’re ready.”

Barney jerked Dan from his seat and
led him to the side door while Dan continued to mutter something about Satan
telling him what to do.

Judge Fernandez paced back and forth
in front of the bench until the room was cleared of the prospective jurors. Finally,
he broke the silence.

“Casey, did you get down all that the
defendant was saying?”

“Judge, I did my best, but I can’t
promise I got every word, particularly that part about Satan when he was
leaving.”

The judge took his seat at the bench
and looked at Wayne and Duke. “I’m going to assume that you gentlemen had
nothing to do with this and didn’t know it was coming.”

Wayne slowly took to his feet. “No, sir.
We’ve been busy with trial preparation. Last contact I had with him was four or
five days ago,” Wayne replied. “I got one of the deputies to get him on the
phone. He wasn’t much interested in talking. He seemed depressed. I just
figured that he was upset about the trial starting. I can’t explain it.”

Fernandez drummed his fingers on the
bench as he thought out loud. “Been on the bench near thirty years. Nothing
like this has ever happened before. You guys have any ideas about what to do?”

Kate jumped up. “The State moves for
a mistrial, Your Honor. State’s clearly prejudiced by the jury seeing the
defendant in this condition.”

Now Duke was standing. “Not a basis
for mistrial, Judge. Might have even hurt the defense with some of the comments
Mr. Little was making. The issue, Your Honor, is whether he is competent to
stand trial. It’s that and that alone. Dr. Adashek, his treating physician,
will have to be the one to make the call.”

Judge Fernandez nodded as Duke spoke,
then replied, “I think you’re right, Mr. Romack. Unless both sides agree to a
mistrial, I’ll contact Dr. Adashek to have him evaluate the defendant. As I
understand it, he was doing fine on his meds. If Adashek can get him back on
them and certify as to his competency, maybe we’ll only have a few days delay. Bailiff,
get Dr. Adashek on the phone. I’ll take the call in my chambers. You are all
excused until he evaluates the defendant and reports to me. The judge rose and
stepped down from his bench. The wind was clearly out of his sails. He appeared
to have aged ten years in ten minutes.

Felix closed the door to his chambers.
Wayne turned to Duke and the rest of the team and said, “Let’s go back to Mom’s
house and figure out what we do now.”

The team walked the two blocks. No
one spoke. When they were all in the war room and the door was closed, Wayne
exploded, “Son of a bitch! What the hell do we do now? Sorry, Mom.”

“That’s okay, son. I know you lawyers
like to use big, fancy legal talk. Maybe you can explain those words to me
after the trial.”

Sarah took drink orders and disappeared
into the kitchen while Wayne took the floor. “Boy, this case was a crapshoot to
start. Now the stakes are the size of a Vegas Texas hold-em championship. Any
comments? Claudia and Rita, let’s start with you. Women’s intuition is what we
need now.”

Claudia took a tall iced tea from
Sarah who had returned, sipped it and set it on her work table before speaking.
“Dan damn sure didn’t make any friends on that jury. Calling them stupid shits
is not prone to getting people on his side. Calling that young man on the front
row ‘boy’ and shooting him the finger may cost us a preemptive strike.”

“Just a minute, Claudia,” Duke
interrupted. “He’s one of my guys. Lives over there by the junior high. Probably
had more run-ins with the police than I did with basketball officials.”

Wayne had gone upstairs and changed
into shorts and a tee shirt. He picked up on the conversation as he returned. “Wait
a minute. Remember Dan’s the smartest guy in the room when he’s on his meds. He
made this decision a couple of weeks ago. He even told Duke and me that he
might have a surprise or two for us at trial. He chose to go off his meds to
let the jury see the crazy man he was. While he said some things that hurt us,
those people saw he can’t control himself once the meds are out of his system.”

Rita had listened to the lawyer
comments and figured it was time to speak. She stood, planted her feet and put
her hands on her hips. “As I understand it, you could agree with Kate and get a
whole new panel. I think that would be a mistake. The judge would make damn
sure that Dan was on his medications next time. A new jury would see the new
Dan, obviously competent and close to being normal. I think what Dan did was
brilliant. We’ll just have to get our doctors to explain that when he’s
psychotic, it’s not Dan deciding what he’s saying; it’s the command voices.”

“Duke, unless you disagree, I’ll go
with Rita on this,” Wayne said.

Duke raised a hand with thumb
extended into the air.

Dr. Adashek called Wayne that evening
to advise that he had evaluated Dan and agreed that he was once again psychotic.
He had chosen to give Dan an injection of the medication rather than more oral
meds, explaining that the shot should work in forty-eight hours. If it did, the
medication would probably be good for thirty days. It was interesting, he said,
that Dan was in full agreement with this plan.

Two days later Dr. Adashek gave a
written report to Judge Fernandez, stating that while Dan’s affect was flat
that he understood he was charged with murder and was capable of assisting in
his defense. With that, the judge ordered the jury and counsel to return the
next day to resume trial.

Everyone was assembled in the
courtroom except for Dan and the judge. When the side door opened, Barney led
Dan to his place at counsel table. Dan had been shaven. His shirt was buttoned
and tucked in, and he no longer confronted the jury panel. Instead, he shuffled
into the courtroom, head down, hands clasped in front of him and shoulders
sagging. Once he was seated, Casey called the judge who promptly entered the
room and took the bench.

“Good morning, ladies and gentlemen. Let
me apologize for the delay. Counsel and I have agreed to tell you that the
outburst three days ago was because of a problem with Mr. Little’s medications.
For now, that’s all you need to know. Mr. Daniel Little, will you please stand.”

Wayne motioned for Dan to stand. Dan
stared ahead for a few seconds and finally stood.

“Mr. Little, do you understand you
are the defendant in this case and you are being charged with murder?” the
judge asked.

“Yes, sir,” Dan mumbled.

“Mr. Little, are you now ready to
proceed?”

“Yes, sir,” came another mumbled
reply.

“Very good, then. Ms. Rasmussen, you
may proceed with voir dire.”

Kate rose, acknowledged the court,
and decided to attack the most critical issue first. She would qualify the jury
for the death penalty. Duke frowned as she worked her way into the subject. Unfortunately,
there was nothing he could do about it. Since this was a capital murder case
with the potential for the death penalty, she was entitled to ask which jurors
had such strong beliefs against the death penalty that, no matter what the
crime, they would not find it justified the ultimate punishment. Once a juror
conceded that opinion, Judge Fernandez had no choice but to grant a challenge
for cause by the prosecution. For the defense the topic was doubly bad. Jurors
who rejected the death penalty were generally liberal and more favorable for
the defense, and they would be gone. Jurors who remained were those who
believed in the death penalty and would be in favor of strong law enforcement.

After thirty minutes with the panel,
Kate approached the bench and challenged eight who would not under any
circumstances assess the death penalty. The judge called each of them up to the
bench, prodded them further about their opinions and agreed to strike five. Duke
was pleased that she would have to use three of her preemptory strikes for the
remainder.

Next, Kate described very briefly the
facts of the murder and then moved to the issue of insanity, explaining the
defendant’s plea and the Texas definition of insanity. Then she asked if the members
of the panel would have a problem with following the court’s instructions about
the insanity defense. Several hands were raised. The first was a lean,
middle-aged man that belonged in an old Marlboro commercial. He came dressed
for jury duty in Wranglers, a pearl-buttoned cowboy shirt and Stetson which he
dutifully removed when he entered the courtroom. Wayne had already dubbed him
Cowboy.

“Ma’am, I understood what you said
about the court’s instruction, but, from what I saw the other day, and no
offense meant to the defendant, he was crazy as a loon. If he was like that
when that woman was killed, I don’t see how he could be held accountable for
whatever he did.”

 
Two other jurors agreed with Cowboy. When Kate
challenged them for cause, the judge struck them. Wayne noted that Kate was
ahead of the game, having successfully challenged eight for cause with fifteen
preemptory strikes still to be used.
 

Kate flipped her legal pad to the
next page and went down a series of standard questions used in any criminal
trial. One member of the panel had been charged with theft when he was nineteen,
with the charges being dismissed on the eve of trial; several jurors had
relatives or friends who had been through the criminal justice system, many of
them on drug charges; two jurors had relatives doing time in the Texas
Department of Corrections. All of them claimed that those facts would not impact
on their decision. Kate knew better than to openly challenge these panel
members, and instead flagged them for preemptory strikes. As the noon hour
approached, Kate announced her voir dire was complete.

Judge Fernandez recessed until
one-thirty. After Barney returned from placing Dan in his holding cell, Wayne
approached him.

“Sheriff, okay if I visit with my
client for a few minutes?”

Barney nodded. “That’s your right, Counselor.
I’ll have to lock you in the cell with him.”

Wayne found Dan eating a ham sandwich
and drinking a Coke. When they were alone, he asked, “You okay, Dan?”

Dan continued to eat his sandwich and
between bites replied with no emotion, “I’m okay. I knew what I was doing when
I cheeked my medicine. Sorry about how it turned out, though. Once I’m off the
medicine I can’t control what I say. Sorry I called them all stupid shits.”

Wayne pulled his chair around to sit
beside his brother and placed his arm around his shoulders. Schizophrenics usually
didn’t like to be touched, but on this occasion Dan seemed to relax as Wayne
continued. “I’ve talked to Dr. Adashek. He says that it will take a few days
and then the medicine will start getting you back to where you were before.”

Dan nodded and returned to eating his
sandwich. When Wayne got up to leave, Dan pulled on his arm. “Rita turn up
anything more on that serial killer?”

“Nothing but dead ends.” Wayne shook
his head.

“We gotta find him. We gotta find
him.”

After lunch the courtroom was packed.
Some of the media representatives had heard that Duke Romack would be handling
voir dire for the defense. That was enough to get them lining the walls as the
panel members took their seats. However, the most important new attendee was
Walter Robinson. When Kate entered the courtroom, she found him seated on the
back row, with his arms folded, glowering at the defense team.

Promptly at one-thirty Fernandez took
the bench. “Ladies and gentlemen of the jury panel, with what happened on
Monday, I omitted some instructions which I need to give you now.” The judge
spent ten minutes instructing the jury. Completing what he had to say, he
turned to Duke. “Mr. Romack, you may voir dire the panel. Let me encourage you
to get it done before the end of the day.”

Duke rose to his full height. “Don’t
worry, Judge. I’ll move it along. Good afternoon, ladies and gentlemen. I hope
you had a good lunch. I’m from Houston and I always enjoy trying cases in
Galveston because of your fine seafood and Cajun cooking. In fact, if this
trial lasts more than a couple of weeks, you’ll notice my pants getting tighter
and me having to let my belt out a notch.”

It was the magic of a great trial
lawyer in action. In the first minute he had the jury practically in the palm
of his hand, willing to go wherever he led them.

“My name’s Duke Romack. With Wayne Little,
here, we represent Wayne’s brother, Dan Little. Wayne, would you and Dan please
stand?”

Wayne rose with a smile. Dan moved
slowly to his feet and kept his face down, refusing to make eye contact with
the panel members. Before Duke could continue, there was a voice from the
panel. It was the young black man on the front row.

“Hey, man. Ain’t you the basketball
player? Played for the Rockets, didn’t you?”

Several of the other jurors, mostly
male, realized that the young man was correct and there was a momentary buzz
among the panel.

Judge Fernandez intervened, “All
right. Let’s have order. I can tell you that this is the same Duke Romack. Damn
good basketball player, but that was in another life. Now he’s a criminal
defense lawyer. I expect you folks to give what he says no more or less weight
than any other lawyer. Clear?”

The panel members nodded their heads.
Duke smiled as he continued. “Let’s start with a question I’ve never had to ask
before. I don’t need to re-hash what occurred. Mr. Little.” Duke paused and
turned to the bench. “Judge, I know we’re supposed to be formal in the
courtroom, but since we have two Mr. Littles, would it be acceptable that I
refer to the defendant as Mr. Little and Wayne Little as just Wayne?”

Felix nodded his agreement.

“Mr. Little created quite an uproar
on Monday. He said some things that were certainly offensive and you are
entitled to be offended by his comments.”

Several jurors nodded in agreement.

“The evidence will show that Mr. Little
suffers from paranoid schizophrenia, a disease of the mind. You’ll hear more
about his mental illness at a later time. As the judge told you, on Monday
there was a problem with his medications and he was psychotic. His illness is
going to be a major part of this case. I know some of you were offended, and I
don’t blame you. However, if you were so offended that you are going to start
off this trial with a bias toward Mr. Little, then I need to know it now.”

Several of the jurors looked at one
another and shook their heads. No hands were raised.

Duke looked at the young black man on
the first row, Juror number nine, Matthew Ellison. “How about you, Mr. Ellison?
Mr. Little singled you out and directed an obscene gesture toward you, also
called you ‘boy.’ Where I come from, that’s pretty damn derogatory coming from
a white man.”

Juror Ellison shook his head. “Hell,
I mean heck, Mr. Romack, if you’re still willing to defend him, then I’ll set
it aside. Not the first time somebody shot me the finger. Damn sure won’t be
the last.”

Duke thanked Juror Ellison and paced
up and down in front of the panel, taking time to look each one of them in the
eye. “The State’s burden is to prove every element of their case to establish
that Mr. Little is guilty of murder beyond a reasonable doubt. If at the
conclusion of the evidence, you have such a doubt, you must find my client not
guilty. Does anyone disagree with that concept?”

No one raised a hand.

“You all know that insanity is going
to play a major part in this trial. You’ll probably find the expert evidence
fascinating as you learn about the mentally ill in this country and.”

“Objection, Your Honor. This is not
opening statement.”

“Sustained. Mr. Romack, save that
until later.”

“As I was about to say, we expect to
prove that regardless of the State’s case on the morning of the tragic death of
Debbie Robinson, Mr. Little was the victim of a mental illness so strong that
he could not know right from wrong. If you are convinced by a preponderance of
the evidence that his mental illness prevented him from knowing right from
wrong, can you so find?”

Six jurors raised their hands,
indicating that if the State proved its case, they did not believe that a claim
of insanity would absolve the defendant from a finding of guilt. Each was
called to the bench for private questioning by both counsel and the judge. Duke
challenged each of them for cause. The judge excused five of the six.

Duke moved to the more routine
questions. Two law enforcement officers were on the panel and each readily
disqualified themselves. One doctor was a neurologist at UTMB and worked with
Dr. Adashek. He agreed that he would value Dr. Adashek’s opinions over others
and was disqualified. Duke asked about mental illness in family members and was
surprised about the number of hands raised. It was a mixed bag, with a number
of the prospects saying that their experiences with a loved one with mental
illness would not impact on their decision. Wayne was pleased with those
responses. Still, two others said they could not be fair since their mentally
ill relative was a constant problem in their daily lives. Wayne hated to lose
them but, having lived with Dan’s problems for so many years, he could not
honestly quarrel with their decision.

It was four-thirty when Duke
announced he had no more questions. The judge excused the jury and directed the
defense team to a conference room down the hall. He instructed Kate to use the
jury room. Once the panel was out, the judge noticed that Walter Robinson
walked to a back corner of the courtroom and reached for his cell phone. After
punching in numbers, he could see Robinson whispering, anger showing on his
face. Within five minutes, Harry Klein entered the courtroom and joined Kate in
the jury room. Judge Fernandez knew that it was not a coincidence.

Each side had thirty minutes to make
another life-altering decision. Wayne’s team had gathered so much information
on the prospective jurors that their selection process was more smooth than
usual. They all had concerns about what Dan had said to the jury. Calling all
of them dumb shits was not in Wayne’s playbook. Still, on balance they decided
they could turn Dan’s actions to their advantage as the trial progressed. The
only dispute came about Juror Ellison. Wayne wanted to strike him because of
Dan’s attack. Duke argued that he had smoothed that over and as two black
males, they had an understanding. Duke carried the day when he pointed out that
the young man lived near the junior high school.

Once they were satisfied they had
given the process their best effort, they returned to the courtroom, and Wayne
handed their list to the clerk.