Improbable Cause

Chapter Nine: Taking the Stand

"The judge is allowing this?" Eames asked incredulously.

"I'm afraid so." ADA Kent shook her head. "I argued every point I could think of, but the judge's mind is made up. He thinks Penobscott has the right to try this defense. It doesn't help that all the experts agree that there is something wrong with Penobscott's mind; the question is whether it rises to the level of legal insanity. The only ray of hope is, I don't think the jury's going to like Penobscott; all I need to do is give them a reason not to believe his insanity defense. The question is, what can I give them?"

"The original victim," Goren said suddenly.

Kent turned abruptly. "What?"

"He committed an identical crime in 1954. The victim survived, barely; Penobscott fled before he could be caught. I know enough about conditions like Penobscott's to know that there's no way he'd still be alive if he'd had the condition fifty years ago; get all the experts, ours and theirs, to testify to that. Then call the original victim on rebuttal."

"She's willing to testify?"

"She wants to," Eames confirmed. "The statute on her case ran out a long time ago, but she still wants her day in court."

"Okay." Kent was nodding now. "So he committed an identical crime before the mental defect occurred. I can use that to establish a criminal pattern that predates the mental problems he's using as a defense-"

"Actually," Goren interrupted, "it's better. Theresa Braddock told Eames and Logan that Penobscott called her 'Margaret' - that's the original victim's name. And when Penobscott confessed, he told us that this same woman, the original victim, was in the trunk of the car he'd been driving, which is where Theresa Braddock was found. He wasn't trying to kill Theresa or any of the other recent victims, he was trying, over and over, to kill Margaret, the crime he planned out in the fifties."

"And intent follows the bullet," Kent finished, starting to get excited. "Which means I can argue that he formed the intent to kill all of his recent victims in the fifties. Good. Call this Margaret, tell her we're going to need her."

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"Theresa Braddock was fantastic on the stand," Kent told the detectives. "She had the jury eating out of her hand. Eames, you're up first thing tomorrow. Goren, you'll be right after her, then I'm calling the shrink. Then I rest, and the defense will call their witnesses - that'll be about two days, judging by the length of their witness list. Then I call my ace in the hole."

"Margaret," Eames surmised. "I've already spoken with her and her husband."

"Maybe I should prep her," Kent said thoughtfully. "Cross isn't going to be easy."

"I'd give her a sense of what she's in for," Goren said, "but she's tough. You don't have to baby her; I wouldn't. She knows this isn't going to be easy and she's in it for the long haul."

"See if you can get her here tomorrow. I'd like to meet her, anyway."

xxxxxxxxx

"Well, I've got my dominoes in a row," Kent commented. "Our shrink and theirs on the record saying that there's no way Penobscott could have had this condition for anything remotely approaching fifty years, and saying that if he formed the requisite intent before he developed the condition, he could be held criminally liable - I had to push their psychiatrist to say it, but so it goes."

"Good," Eames replied. "Margaret's ready?"

"Yep. Talked to her last night, she's braced for whatever they could throw at her. I get the sense she might've done something like this before, or at least witnessed a rape trial, just based on how much she was aware of."

Goren looked to Eames, who replied to his unspoken query with a shrug. Kent watched in amusement. "You two always do that?"

"What?" Goren asked.

"Have a conversation without saying anything?" Eames said at the same time. "Yeah, sometimes. It drives Captain Ross crazy."

"Eames interviewed Margaret privately," Goren explained. "I was just wondering if she's mentioned anything about previous experience."

"She didn't mention anything about a previous trial," Eames explained, this time out loud for the ADA's benefit. "Not saying it didn't happen, just that she didn't mention it."

"Anyway, she's ready to go. If she's half as solid on the stand as she was with me, Penobscott's attorney won't have a chance."

"Good." Goren glanced at the witness list. "Oh, just one thing. You've listed her as Margaret Houlihan, but Houlihan is her maiden name. She's gone by Margaret Pierce since before any of us were born."

"What?" Kent glanced down at her witness list. "Damn, I must've been going off the original police report. Good catch, Detective."

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Goren recognized Alaina McIntyre immediately as she entered the courtroom accompanied by a woman with familiar blue eyes, who she introduced as her sister Sarah. They took their seats in the gallery and were joined shortly thereafter by Sidney Freedman. Out of the corner of his eye, he also saw Frank Burns slip into the back row. It wasn't really a surprise; if anything, Goren would have expected to see him sooner, considering how much time he'd put into the chase.

Hawkeye Pierce slipped in next to his daughters just before the judge entered and everyone in the courtroom immediately sprung to their feet. The judge sat, and as the rest of them did too, he spoke. "Ms. Kent, call your witness."

"Yes, Your Honor. The people call Margaret Pierce."

With all eyes on her, Margaret stepped up to the witness stand and was sworn in. Kent stepped up to her. "Mrs. Pierce, do you recognize the man on trial today?"

"Yes."

As Kent and Margaret went back and forth in a predictable series of questions and answers, Goren took the time to scan the crowd and analyze their reactions. Alaina McIntyre had forced a mask onto her face; Goren guessed that she was used to doing that, given the kinds of things she no doubt heard on a daily basis. Sarah was holding tight to her sister's hand as if bracing herself against what she was hearing. Hawkeye was just watching, tears in his eyes, clearly familiar with the story. Sidney was sort of nodding along, falling back into what Goren suspected was a set of behaviors he used when counseling patients.

And then there was Frank Burns. Based on his body language, the Lieutenant Colonel didn't even seem to be listening. It was as though his brain was hung up on something and he wasn't getting past that point.

"Your witness," he heard Kent say, and he turned back as the defense attorney approached the stand.

"Mrs. Pierce," he said, "that sounds like a very painful experience."

"Get to it," she snapped, and Goren saw Hawkeye and Sidney exchange grins. She must've been one hell of a Major, he thought.

"Yes, ma'am," the attorney said almost mockingly. "Withdrawn," he added quickly as Kent jumped up to object. "Mrs. Pierce, you were married to the defendant for three months, correct?"

"Yes."

"What was your living arrangement?"

"We never lived together. At the time, he was stationed in Tokyo and I was with a unit in Uijeongbu, Korea."

"But you must have spent time together."

"Yes. On leaves."

"Mrs. Pierce, when you saw Colonel Penobscott on leave, did he ever attempt to kill you?"

"No."

"Beat you? Rape you?"

She looked out into the gallery, locking eyes with her husband. "Yes and yes," she said softly.

"Then, Mrs. Pierce - wait, what?" The attorney tripped up suddenly, clearly having expected a vastly different response.

"I said yes. Donald began beating me on our honeymoon, and from that point on, he beat me every time I saw him." She squeezed her eyes shut, and Bobby could tell she was trying not to cry. "He raped me once, a couple of weeks before I filed for divorce."

The defense attorney was now glaring daggers at his client, his meaning as clear as if he'd spoken aloud. And you didn't tell me about this? He turned back to Margaret. "So, these alleged incidents. Did you ever tell anyone about them before you accused your ex-husband of attempted murder?"

"I told my husband - my current husband, Dr. Benjamin Pierce - about the beatings about a year and a half after the divorce."

"By which point you had no evidence."

"I was ashamed. I thought it was my fault, and - and I'd been talking about him like he was a god for months before we married. I couldn't face the fact that I'd been so wrong."

"What about the alleged rape? Did you tell anyone about that before you accused your ex-husband of kidnapping and attempted murder?"

"I told Hawkeye - Dr. Pierce - about it right after it happened. I was really hurting and he showed up right when I needed to talk. And later on I told two other doctors in my unit, and a psychiatrist."

"And I'm sure these doctors - the ones you're not married to - would be willing to testify to this?"

"Colonel Potter passed away in 1993," she replied, "but Dr. Friedman, the psychiatrist, is sitting in the gallery right now, and I'm sure Dr. Hunnicutt would fly in from California to testify for me."

"Let's talk about the attack by your ex-husband," he said, changing gears. "Let me turn your attention to what's been labeled People's Twelve, the report police took from you at Portland General Hospital after you were brought in with gunshot wounds. Can you show me, Mrs. Pierce, where it mentions that you were raped?"

"It doesn't," she said softly.

"Why not?"

"Because I didn't want to go through that. How old are you, thirty? Forty?"

"I ask the questions, Mrs. Pierce."

"My point is, you don't know anything about what it was like for rape victims in the 1950s. My chances of getting a conviction were virtually nonexistent."

"Because it was 1954, or because you weren't actually raped?"

"I think I know how to tell when I've been raped," Margaret shot back icily.

"Your case is beyond the statute of limitations. Is it at all possible that when you heard your ex-husband was wanted for other crimes, you edited your story so you could undermine his defense?"

"In an alternate universe, sure, it's possible," she said almost flippantly. "In this universe, no. I'm telling you the truth."

"But there's no proof of that, is there?" He let Margaret's silence hang in the air for a moment. "Nothing further."

"Redirect?" Kent was on her feet before the defense attorney was back in his seat.

"Go ahead." The judge waved her forward.

"Mrs. Pierce, you mentioned the attitudes directed towards rape survivors at the time of your attack, that that was the reason you chose not to report the sexual assault when you reported the crime. Can you explain exactly what you're talking about?"

"We see it even today," Margaret began, "the idea that rape victims were asking for it because of their clothes, or that the victim's promiscuity is a defense to rape, that you can't be raped by someone you've consented to sex with before. It was worse at that time, much worse. There were no laws to protect women who testified from basically being put on trial themselves. I wasn't perfect, Ms. Kent. I went through a lot of men before I married Donald. I'd had a child out of wedlock. And then I married him, so of course we'd had consensual relations." She looked out into the gallery and Goren saw her eyes lock on her husband's, seeming to ask him a silent question. After a moment, Hawkeye nodded and she continued. "In 1953, in my professional capacity as a nurse, I testified for the prosecution in a case involving a series of gang rapes. Several victims also testified, and the defense strategy was to challenge the victims based on their past sexual histories. At the time, that was par for the course. I knew the same thing, or worse, would happen to me."

"Thank you. No further questions."

"Mrs. Pierce, you may step down." The judge waved the woman off the stand. "We'll recess for lunch and reconvene at ten after one."

Her husband met her as soon as she stepped into the gallery, wrapping his arms around her. "I'm so proud of you," he whispered. "You were great up there."

Alaina and Sarah joined them, wrapping their arms around their parents. Goren watched as they walked out of the courtroom, Hawkeye and Margaret hand in hand, flanked by their daughters.

"Margaret!" A voice rang through the hall. "Wait! Margaret!"

The couple stopped in their tracks. The woman turned slowly.

"Frank?"

*~*~*~*
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