Chapter 22
The courtroom was packed on Friday morning. Jack was seated at the defense table, nearest to the witness stand, with Elliott
at his side. It was prejudicial and contrary to the presumption of innocence to make a criminal defendant wear the distinctive
prison uniform in front of a jury, but there was no jury at an Arthur hearing, so Elliott was dressed in jailhouse orange.
Julianna Weller and an assistant state attorney were seated at the table for the prosecution, nearest to the empty jury box.
“Good morning, everyone,” Judge Garrison said from the bench, seemingly pleased to see his courtroom filled to capacity.
The stakes were high. It was up to the judge to decide whether Elliott would prepare for his trial from behind bars, or if
he could walk out of the courtroom a free man, unless and until convicted by a jury. The lawyers’ eloquent legal battle over
bail, however, did not account for the television cameras and rows of reporters packed shoulder to shoulder in the media section.
Rather, an Arthur hearing was a first look at the strength of the state’s evidence against the accused, as the judge explained
from the get-go.
“Ms. Weller, as you know, this court must release the defendant on bail unless the State of Florida presents enough evidence
to establish a ‘great presumption’ of guilt. That said, I do not intend this mini-trial to last more than one day. Choose
your witnesses carefully. You may proceed.”
“Thank you, Your Honor. The State of Florida calls Dr. Lopez.”
“I object,” said Jack, rising.
The judge did a double take. “Well, congratulations, Mr. Swyteck. An objection before the witness even enters the courtroom and is sworn to testify. I do believe that’s a new world record.”
It was more sarcasm than Jack deserved, but Judge Garrison liked an audience, and he was known to ham it up, as long as there
was no jury present.
“Respectfully,” said Jack, “any testimony from this witness is so patently inappropriate that swearing her in would be a waste
of time.”
“Who is Dr. Lopez?” asked the judge.
The prosecutor took a step forward, as if being two feet closer to the bench made her voice more important. “Dr. Lopez is
the gynecologist the defendant consulted before she, er, I mean he—whatever—began to medically transition.”
“Which is precisely the grounds for my objection,” said Jack. “Dr. Lopez was my client’s treating physician. Anything they
discussed is protected by the physician-patient privilege.”
“Ms. Weller, is that your intention?” the judge asked. “You want to question Dr. Lopez about communications between a doctor
and her patient?”
“Allow me to explain, Your Honor. Six years ago, Mr. Pollard and his wife adopted a baby boy from a teenage girl. That girl
is now a transgender man who will never give birth to another child. Testimony from this witness goes to the heart of our
case. For second-degree murder, we are required to prove that the defendant acted with a ‘depraved mind’ in taking the life
of Mr. Pollard. To prove the requisite mindset, I intend to ask Dr. Lopez about any regrets the defendant may have expressed
about the inability to have children as a result of his own self-mutilation.”
The term self-mutilation drew, from some corners, a fist-pumping chorus of support more suitable for a locker room.
The judge banged his gavel. “Order! Ms. Weller, please try to use less inflammatory language in my courtroom.”
“With apologies, Judge, this is the best evidence of a depraved state of mind.”
“It’s not evidence,” said Jack. “There’s no predicate showing that my client ever expressed any regrets over the transition to anyone. And if he did so in his conversations with Dr. Lopez, those conversations
are privileged.”
“Not everything a patient tells a physician is privileged,” said Weller. “And the privilege applies only if the patient asserts it. According to Mr. Swyteck, his client refuses to say anything, even to his own lawyer. That’s not an assertion.”
“I’m asserting the privilege on my client’s behalf,” said Jack.
“Your Honor, that doesn’t work here,” said Weller. “The defendant is not mentally incompetent. He has a mind of his own, and
through no one’s fault but the defendant’s, Mr. Swyteck can’t even represent to the court that his client wants to assert the privilege.”
“Judge, while it’s true my client won’t talk to me, he’s not deaf. If he doesn’t want me to assert the privilege on his behalf,
he can jump out of that chair right now and tackle me.”
Elliott didn’t move. The judge waited a moment longer, then ruled.
“That’s the kind of silence that speaks volumes,” said the judge. “But don’t misunderstand me. I’m not saying evidence of
the defendant’s regret is irrelevant. My ruling is that the state will have to prove it through a witness who was not Mr.
Stafford’s medical doctor. Call your next witness.”
Weller walked back to her table and consulted with the junior prosecutor. Two minutes passed, which in a crowded courtroom
was an eternity of silence.
Jack leaned closer to his client and whispered into his ear. “If you have ever expressed any regrets to anyone about your
transition, now would be an excellent time to tell me.”
Elliott said nothing, his gaze fixed somewhere in the middle distance.
Jack glanced across the courtroom to the prosecutorial team. They were still conferring.
“Ms. Weller, any day now,” said the judge.
“Almost there, Your Honor.”
The judge was clearly losing patience. “My exclusion of Dr. Lopez should not have come as a major shock. May I suggest you start with a witness who can explain how a victim who suffered a shotgun blast to the head and left a page-long list of reasons to take his own life did not commit suicide?”
The prosecutors broke their huddle, and Weller stepped to the lectern. Jack could only guess whom they might call, but his
money was on a medical examiner. Weller spoke into the microphone, her announcement grabbing the attention of everyone in
the courtroom.
“The State of Florida calls Helena Pollard,” she said.
The prosecution was rolling out the big gun for its opening salvo.
Jack glanced at his client. Elliott said nothing. The double doors at the back of the courtroom opened. As Helena walked down
the center aisle to the witness stand, her heels clicking in the silence, all heads turned to watch.
Except for Elliott’s.