CHAPTER 39

“All right,” I say to Jake and Flan when I enter the conference room. “We’ve got a few big decisions to make.” I toss the Simms file on the table and take a seat. “Tomorrow is Erin’s arraignment on the felony charges. I think we have to consider changing her plea.”

“I don’t like it,” Jake says. “Too risky.”

True. Approximately one percent of defendants who are charged with a felony plead not guilty by reason of insanity, and of those defendants, only fifteen to twenty-five percent succeed.

“Even if we request a bench trial?” I say.

Juries are significantly less likely to render a verdict of not guilty by reason of insanity than are judges. And after I witnessed the Honorable Sonya Maxa toss Luke Maddox around the courtroom like a rag doll yesterday, I’m inclined to take my chances with her.

“Judge Maxa is one of the smartest judges I’ve ever been before, son, either here or in Texas. You’re not going to fool her with the usual smoke and mirrors.”

“I’ve no intention to try. Look, we have a defendant here who has a history of mental illness and at least one psychiatric hospitalization.”

“When she was seventeen,” Jake says.

“Doesn’t matter.”

“And according to those medical records we received,” he adds, “she was never even diagnosed.”

“Very common,” I say. “Borderline Personality Disorder is exceedingly difficult to diagnose. But Erin Simms exhibits all the symptoms.”

“What are the symptoms?” Flan asks.

I read off the list I’ve already committed to memory: Unstable and intense interpersonal relationships. Impulsiveness in potentially self-damaging behaviors, such as substance abuse, sex, shoplifting, reckless driving, binge eating. Severe mood shifts. Frequent and inappropriate displays of anger. Recurrent suicidal threats or gestures, or self-mutilating behaviors. Lack of a clear sense of identity. Chronic feelings of emptiness or boredom. Frantic efforts to avoid real or imagined abandonment.

“There’s no precedent,” Jake says, annoyed.

“Then we make precedent,” I say.

That’s the other great thing about practicing law. Even though every argument has already been made, every issue decided, there’s always the possibility of breaking new ground, blazing new trails. You just have to take what’s there, the precedents—the victories and the defeats—and convince one jurist at a time.

“How does someone get off by pleading insanity?” Flan asks.

I open the Hawaii Penal Code to the relevant statute, already flagged with a bright red Post-it. “We need to show that at the time of the conduct, as a result of her mental disorder, the defendant lacked the substantial capacity to appreciate the wrongfulness of her conduct or to conform her conduct to the requirements of law.”

“In other words,” Flan says, “the borderline thing prevented her from not killing her husband and setting the resort on fire.”

I sigh and look at Jake. “See, this is why we don’t put this defense on in front of a jury.” I turn to our investigator. “No offense, Flan.”

Jake shakes his head. “I think if we go with insanity, we should go with temporary insanity.”

“No,” I say. “Maybe if she killed him as soon as she got the news. Maybe even if she didn’t go forward with the wedding. But too much time passed. Too many events transpired in the interim. A plea of temporary insanity is as good as a plea of guilty, in my opinion.”

“Well,” Jake says with a tired shrug, “the point is moot unless she agrees to it. You steer her in any direction you feel comfortable. It’s your case. You’re the lead.”

“Her key card. Her lighter. Her knife,” I say, counting the three items off on my fingers. “That doesn’t leave us much choice.”

“What have you decided to do about the knife?” Flan asks.

“Depends on what she says to me tonight,” I tell him. “But I’ve spoken to this guy Larry, who owns a waterproof digital camera rental service. He’s agreed to go for a swim with me this weekend to document the knife’s whereabouts, for posterity.”

“During the day?”

“At night.”

“But you’re not going to retrieve it,” Jake asks.

“I’m not going to answer that question, Jake.”

“Why not?”

“Because, Jake, I don’t know the answer to that question.”