“The People object,” said Wendy Kotowski, when asked. “The defense had ample opportunity to disclose this witness, even while he was still in the military. They’ve known about him for almost a year. They may not have spoken with him, but they could have told us about him. They didn’t. They’ve waited until after the discovery cutoff in the clear hope of trying to gain an advantage.”
“That’s ridiculous,” I protested, jumping in without invitation, usually a no-no for this judge. “Your Honor, I could have just littered my witness list with everyone Tom Stoller ever served with in the military. I would have been within my rights. And if I did that, the prosecution would be here complaining that I abused the disclosure process. But I didn’t do that. And now the prosecution is saying that I should have named Sergeant Hilton as a witness even at a point when I had no idea if he was remotely relevant to the case.”
“Your Honor?” Wendy said, doing it the right way, asking permission. He gave her the floor. “Your Honor, the bottom line is that your rule protects both sides from gamesmanship, and it should do so now. We both have to live with this rule. And I would note that Mr. Kolarich has coupled this motion with a request for a continuance in the hope that you’ll split the baby, so to speak.”
She was right. That’s exactly what I was doing.
The judge nodded. “I did notice that, Mr. Kolarich. You make a request you know I’m likely to deny and couple it with a lesser request. ‘Splitting the baby,’ as Ms. Kotowski said. You think I’m going to split the baby, Mr. Kolarich? Do you think I’m King Solomon?”
Don’t ask me why I do the things I do. Call it a gut reaction, I guess, an instinctive read of the situation.
“No,” I said, “but I heard you taught him everything he knew.”
There’s that old saying that you could have heard a pin drop. I would say that for one beat of a moment in Courtroom 1741 on Wednesday, November 10, at 9:22 A.M., you could have heard the blood circulating through an ant’s scrotum.
And then the old man reared his head back and burst into laughter. My theory is that a guy accustomed to everybody sucking up to him enjoys catching a little shit once in a while.
The rest of the courtroom followed suit like lemmings. Everybody thought I was funny. But he still hadn’t decided my motion.
After a time, the judge removed his glasses, wiped at his eyes, and calmed down. “Why do you want a continuance, Mr. Kolarich?”
I paused a beat. I had to be careful here. I was unlikely to win this motion. The odds of Judge Nash moving this trial were slim. And if we were going to a jury in three weeks, I didn’t want to show my hand to the prosecution. I wanted to maintain the element of surprise.
No, I decided. It wasn’t worth the risk. I’d have to stick with the same bullshit I put in my written motion. “Judge, the information from Sergeant Hilton has opened up a new line of evidence for us. We’d like to pursue it. Now that we know the event that my client was reliving, we want to interview the servicemen and servicewomen with whom he worked for evidence of the effect it had on him. The prosecution is contesting the presence of a mental defect, and how he responded to this event in Iraq is part of the factual underpinning my expert needs.”
The judge looked down over his glasses at me. He glanced at the prosecutor but didn’t ask for a response. “The court finds that the defense exercised reasonable diligence in securing the information from Mr. Hilton and in disclosing his testimony to the prosecution. The court will deem the defense’s disclosure of Mr. Hilton to be appropriate. But you’re not getting your continuance, Mr. Kolarich.” He nodded presumptively. “See you in three weeks.”
23
“I need you to focus on me, Tom,” Shauna said, pointing to her own eyes.
I’d brought Shauna back because she seemed to be the only person he would respond to. But so far today he’d been playing with a deck of cards, organizing them by numbers, then by suits. To look at him, you’d think he had the brainpower of a young child. But he didn’t. His intelligence hadn’t diminished any. Dr. Baraniq had said that Tom would seek comfort from his demons by doing things that required no difficulty whatsoever. Boring, said the doctor, would be fine with Tom. Boring was comfortable.
“I know you don’t remember what happened when that woman was shot,” she tried, in that soothing voice that had been used on me, too, on occasion. “But can you tell me how you got the gun?”
He didn’t answer. He kept playing with the cards. I looked at my watch, except I’d left my watch with the front desk, so all I saw was the pale outline of it on my wrist. I was growing impatient. I had work to do, especially if this case was going in the direction I thought it was.
“Lieutenant,” I said, which always seemed to draw his attention, at least momentarily. I used my grown-up voice. I walked over and lorded over him. “Stand up, Lieutenant. Stand up!”
I’d held his eye contact, which was promising. I didn’t know if this approach would work, but I had nothing to lose.
Tom stood up and faced me. His eyes didn’t stay locked with mine, but they remained in the ballpark. It was as good as I would get.
“Where did you get the gun?” I asked. “Did you steal it?”
He turned away. I grabbed him by the shoulders and kept him where he was.
“Did… you… steal it?”
“No.” He shook his head, staring into my chest.
“Then how’d you get it?” I asked. “How?”
“I… found it.”
“Where? Where did you find it?”
“I… I don’t know where I was sleeping. I try to stay warm but not too warm. Not too warm. It’s so cold, but then it gets so hot and then I have to take off my coats because it’s so hot-”
“The purse,” I tried. “The woman’s purse? Where did you get that?”
“The… purse.”
“The purse, Tom! The victim’s purse and the gun? How did you get them?”
I shook him fiercely. I expected him to wilt, but instead he righted himself and in one motion raised both of his hands and swept my arms off his shoulders. Expertly done, the result of training. His eyes grew dark, and he moved his legs apart to anchor himself.
I wasn’t sure what would come next. Something was happening, that’s all I knew. He was out of his shell. For all I knew, he was going to come at me.
“I don’t think you killed Kathy Rubinkowski,” I said. “I think somebody killed her and tried to make it look like a robbery. They dumped the gun and her possessions, and you found them.”
He didn’t move. He just watched me.
“I don’t think you were confessing to her murder in that interrogation room,” I said. “You were confessing to killing that girl in the tunnel in Mosul. Tell me I’m wrong.”
He remained stoic, other than a reddening of his cheeks.
I pushed him with everything I had, but he kept his balance. He grabbed my right forearm, twisted it behind my back, and drove me to the floor. In the space of three seconds, the ex-Ranger had subdued me.
“No!” I called out as the door burst open and guards entered. “It’s okay. I have to do this!”
“It’s okay,” Shauna repeated to the guards. “Really.”
That stalled them momentarily. As long as things didn’t escalate, they might give us a few moments.
“I… don’t… remember,” Tom whispered harshly into my ear.
Tom released my arm and stood up. The guards came over and handcuffed him behind his back. I looked up at Tom, whose limp posture showed that he had immediately regressed to his normal state of detachment.
But he resisted when they tried to move him, twisting his body back toward me, looking in my direction, his lips parting but nothing coming out. I raised my hand to the guards, who seemed to understand.