In The Plan - 24. Chapter 24

24

When Doug finished that part of his testimony, the judge called for a break. Even she could tell he was wiped out, and she wanted to give him a few minutes before he went on. When Doug returned to the stand, Carleson asked him about his injuries, and Doug carefully repeated much of the information his two doctors had given. Only he made it more personal - explaining the pain he still had to manage every day and his new physical limits.

Lee's cross-examination came next, and Doug was prepared for it. Lee started with, "How did you remember all that?" and "How did you recall that extensive detail?" - trying to focus the jury's attention on Doug's supposed memory loss. After Doug explained that he'd always been a detail man - that it was the basis for his technical work, and some habits just stayed - Lee carefully tested Doug's memory - slowly, specifically going into each facet of Doug's story and quizzing him on almost every step.

"Are you sure Mr. Coghlan got into the car first?"

"Are you certain he said that?"

"Are you positive you're not paraphrasing there?"

There were times Doug had to admit that he couldn't remember a particular moment that seemed important to Lee's case. But those moments seemed secondary to Carleson and didn't in any way weaken Doug's initial story. Carleson was also ready to object at any second, but Lee seemed especially careful and precise. Still, it was a very long day

Overall, Carleson was impressed by Doug's confidence against the articulate Stu Lee. No matter what kind of damage the accident may have done to parts of Doug's body and memory, he certainly remembered what was most important. Coming on top of what Ahmed Patel, Randall Uzoma, and Cowboy had said, Carleson felt pretty good about the case. After all, he just had to prove to the insurance company that Brad Coghlan had been driving the car.

But the trial wasn't over, and Carleson had enough experience to know it had quite a way to go. After Lee finally said, "No further questions, your honor," and the judge excused Doug - the last of Carleson's witnesses - it was Lee's turn to present.

In the next two-and-a-half days, some of the same people turned up to answer similar questions to those they had before. Coghlan's business partner Greg Mackel, the Railroad Inn owner Nolan Starizny, and the bartender Robyn Nguyen all swore "Brad really wasn't all that drunk," inferring that he would have had enough sense not to fight against Doug Hodges driving him home. There were also new witnesses who presented variations on what other people had said or clarified medical issues that had already been established. Finally, Lee's two experts were called.

Carleson knew Lee had saved them for last because they were his strongest ammunition. So Carleson needed to undermine them. But always acted fairly, to impress the jury.

He didn't simply try to block Lee's experts from taking the stand. For one thing, since the judge hadn't exactly been supportive, Carleson had already pulled back on other possible objections, not wanting to seem weak when they were routinely denied. For another, trying to disqualify Lee's witnesses might seem petty - especially since the experts had been allowed to testify in the criminal trial.

The one advantage Carleson had was that Damon Jenkins admitted he'd done a terrible job cross-examining the nationally known witness, Dr. Lowe, in the first trial.

"Terrible how?" Carleson had asked, sorry he hadn't been there to watch.

"I think I was awed by him," Jenkins explained. "Just a bit, because of all the media attention he got. I mean, people were asking for his autograph afterwards."

"People will ask for anyone's autograph."

"Yeah, but from a minor witness in a local trial?"

"That is odd," Carleson allowed.

"And maybe that's what threw me," Jenkins went on. "Lowe seemed so unrelated to our trial. He stood out so badly and seemed like hired muscle any reasonable jury would dismiss."

"Maybe they did," Carleson said. "We'll never know. Hell, who ever knows what goes on in a jury room - what seems most important to people - no matter how hard we work to prepare and predict."

"And control?" Jenkins asked, grinning

Carleson shrugged, also grinning. "That, too," he replied. "Still, we've got to take each witness seriously. And Lowe's a definite threat."

"Absolutely."

To offset that, Carleson had purposely found an expert who'd directly counter Lowe's point of view - and who'd present his grounded statement first. That way, when the jury eventually heard Lowe's loftier theory, it would seem like a weaker, defensive reaction.

Carleson also intended his expert to speak immediately after Ahmed Patel - building on that momentum. Patel's statements offered the strongest evidence Carleson had that Brad Coghlan had been driving. The next strongest was Randall Uzoma's glimpse of Doug Hodges in the passenger seat just before the crash. Even Cowboy's testimony that Coghlan was at the wheel had less weight because his sighting occurred several miles before the accident.

That was no proof - no matter how illogical it might seem - that Coghlan had continued to drive. Maybe after he'd nearly creamed Cowboy, he'd been so shaken that Doug Hodges had finally persuaded him to pull over, and they'd switched drivers. Though, of course, why would Doug Hodges - against everything anyone knew or could discover about his personality and history - suddenly start to speed like an idiot? That probability seemed already dismissed.

The problem was that Carleson's expert had been disqualified, so the jury heard Lee's expert's theory fresh. In that light, Lee's move came as offense, not the reverse. And though Carleson was able to question Dr. Lowe slightly before he started to testify - to challenge his qualifications for this trial - that was only routine. Stu Lee had barely seemed to follow along, indirectly telling the jury that he didn't take these questions seriously.

Carleson had tried to show that Lowe's specialty was forensic medicine and pathology - examining dead people - which wasn't what this trial was about.

"How many times have you actually testified about someone who was alive?" he'd specifically asked Lowe.

"Not many, really," Lowe openly admitted. But he seemed to feel that this was incidental.

Carleson hadn't responded. He'd simply looked at the judge, for a ruling. Expectedly, she'd allowed Lowe in. Just another strike for her, Carleson thought. But he'd quit counting.

So he let Stu Lee set Dr. Lowe up and repeat all the questions he had in the first trial. Lowe testified a lot - he was a well-known medical examiner, based in New York - so he was comfortable on almost any stand. Overall, he testified about the locations of the injuries on both Doug's and Coghlan's bodies and compared those to the damage done on the interior of the car. His written report was extremely short and should have been rejected as a "net opinion" - an opinion without foundation. But the judge had let that stand, too.

Further - astonishingly to Carleson - Lowe simply ignored all the testimony Ahmed Patel had given just a week earlier - and he ignored it completely, as though it didn't exist. Lowe hadn't had to address this information in the first trial because Ahmed Patel didn't speak.

There was a chance that because Lowe had been through the earlier trial, he thought he was well prepared for this one. Or that Lee had neglected to alert him about the new Patel testimony - which was very unlike Lee. Or worse, that Lee did alert Lowe, and the doctor still felt he could present his same theory and override any other point of view.

In any case, Carleson seemed to have found Lowe's weakness for this trial, and Lee obviously couldn't press Lowe on it, because even bringing it up might weaken Lee's larger case. Lowe also ignored anything Uzoma and Cowboy had seen. He seemed to mainly be telling a theoretical story - fiction really - that had little basis in fact. As part of his cross-examination, Carleson was able to point out - and discredit - a good deal of that.

"Did you interview any of the witnesses?" Carleson politely began.

"No," Lowe replied, as courteously.

"Did you take any of the other witnesses' statements into account? The statements they'd made to the police, for example?"

"No," Lowe repeated, then smiled, as if ordinary police interviews might vanish, faced with his science.

"The criminal trial related to this case was a year ago," Carleson reminded him - also refreshing that chronology for the jury. "In that year, have you had time to review and revise your statements?"

"I'm a busy man," Lowe acknowledged, again inoffensively smiling. But he seemed genuine, and the jury seemed to be with him.

"So the answer is 'No,'" Carleson repeated, to clarify. "You didn't look at any of the other witness' statements, and you haven't rethought your own?"

Lowe nodded, to agree.

"Is this the shortest report you've ever written?" Carleson asked. He wasn't attacking, but also didn't seem unamused. "It's three paragraphs, each one sentence long."

Lowe also smiled - seeming to invoke that "busy man" persona again. Then he modestly shrugged. Carleson glanced at the judge. She seemed to have no expression on her face, and Lee's seemed as blank. To connect all this, Carleson next looked at the jury - without smirking or doing anything that might reveal his pleasure. This time, they seemed to note Lowe's lack of preparation.

Carleson had one more question - perhaps his most telling. He simply asked Lowe if the fact that Ahmed Patel had seen Brad Coghlan's feet under the pedals of his car immediately after the accident would change the doctor's opinion that Doug Hodges had been driving. Carleson knew this might be new information to Lowe, so he not only stated it, he rifled through the file of submitted court evidence and handed Lowe the one-paragraph summary of what Ahmed Patel had said.

Lowe took a half-minute to review Patel's statement, then seemed to think deeply about both it and Carleson's question. He really seemed to honestly consider them, along with their many ramifications. Finally, he stared intelligently into Carleson's eyes and allowed, "I suppose it would."

Bingo. Bingo big time, Carleson thought. That definitely put Brad Coghlan in the driver's seat - and in the words of Lee's own expert witness.

"No further questions, your honor," Carleson said quietly. As undramatically, he turned toward his desk.

And that was it. There didn't seem to be any more that could be learned. So there was no point in humiliating the witness.

Doug Hodges was smiling when Carleson sat down, but Carleson quickly warned him not to seem too happy.

"No dancing in the end zone yet," he whispered. "Six people still need to make up their minds."

Besides, Carleson knew better than to start celebrating with this judge. He'd been pressed throughout the trial and wasn't expecting anything to suddenly change.

Lowe's testimony ended the court day, but, oddly, didn't end Carleson's conversation with him. After Carleson and Doug had walked to the parking lot, and Doug once again helped Carleson load his briefcases into his trunk, Doug had moved off. Carleson was about to get into his car when he noticed Dr. Lowe approaching him, hand extended. That seemed strange. Besides the cross-examination less than a half-hour before, they'd never met. So Lowe's gesture seemed more than a bit unusual.

"Mr. Carleson," he began. "I just wanted to come over and shake your hand."

"That's very kind of you," was all Carleson could reply - smiling cautiously.

"I've been testifying for over twenty years," Lowe went on. "In small trials like this, and others..." He let their importance trail off. "And I want to tell you... to let you know... that you have an excellent courtroom presence."

Carleson continued to smile, amiably standing there, though not exactly sure what Lowe expected him to say next. Carleson was a professional, long practiced and established. He was supposed to have an "excellent courtroom presence."

Still, if the esteemed Dr. Anthony Lowe - he of the "national reputation" - who'd just tried to completely dismantle Carleson's case - offered him a compliment and it seemed as real as the man seemed, what else could Carleson say but "Thanks."

Which he did, smiling one more time, warmly, and diplomatically adding, "I've always admired your work, too."

"Admired your work?" Carleson almost yowled to himself. It sounded like an art appraisal. The truth was he knew almost nothing about Lowe's trial work. He'd heard of the man, knew he was well-respected, so reflexively respected him. But their long careers had never overlapped.

Still, they talked pleasantly for several minutes more, before Lowe headed off to his car. It was suitably shiny and expensive and looked like it had been freshly detailed. Carleson fingered the few day's parking lot dust that had accumulated on his own car, then opened his door, slipped into the driver's seat, and started the engine. Then he laughed.

He realized that no matter how this trial ended, he felt gratified by the doctor's compliment. Though he was more pleased - far more - that he'd almost completely discredited the doctor's opinion by simply pointing out that the accident never could have happened the way Lowe said. That was much more important than presence.