Infamy Read online

  New York County assistant medical examiner Gail Manning had appeared to explain the cause of death of both Swindells and Matt Robbins, the brave young soldier who had tried to reach Mueller but instead got in the way of the bullet from Detective Ted Moore’s gun.

  “Was Colonel Swindells shot more than once?” Karp asked.

  “No. Just the fatal wound to the head.”

  “He wasn’t shot in the foot, or arm, or after the fatal wound?”

  “No. Just the one head shot.”

  Karp had also called an NYPD fingerprint expert, who testified that the only prints found on the shell casings belonged to Mueller.

  “So the defendant loaded the clip?” Karp asked.

  “Yes.”

  “No one else?”

  “No one else.”

  Next Karp had called a department ballistics expert, who testified that the deceased had been shot with bullets from the 9mm handgun taken from Mueller at the zoo.

  “Was this gun loaded with live ammunition?” Karp asked, noting the quizzical looks on the faces of some of the jurors.

  “Yes, copper-jacketed live ammunition.”

  “And was this the ammunition used to actually shoot Colonel Swindells?”

  “Yes. Our tests show that the ammunition used to shoot the deceased came from the same box of bullets as those found in the gun.”

  “They weren’t blanks?”

  “No. Live ammunition.”

  “The gun wasn’t loaded with raisins?” Karp smiled as he asked the question, but his intentions were serious.

  The ballistics expert gave him a funny look but answered. “No raisins, just bullets.”

  Several eyewitnesses were called to describe the shooting, to identify not just Mueller but also his demeanor and the exact nature of his actions.

  “So even though you were between the defendant and Colonel Swindells as he approached, he walked right past you?” Karp asked several witnesses.

  “Yes,” each had replied.

  “He made no attempt to confront or shoot you?”

  “No. He walked straight for the colonel.”

  The witnesses all described how after a brief confrontation with Swindells, Mueller pulled his gun and shot Swindells before the colonel had time to react.

  “Did he shoot wildly or wave the gun around?” Karp asked one Ranger who’d witnessed the shooting from ten feet away.

  “No. He took careful aim and pulled the trigger,” the man had replied.

  Karp had asked for and received Judge Peter Rainsford’s permission for the witness to leave the stand and demonstrate how Mueller aimed the gun. The Ranger assumed a shooter’s stance, holding the imaginary gun with two hands as he sighted down the imaginary barrel. “Like this,” he said.

  “Did he then begin shooting wildly at others?” Karp asked the witnesses, who all replied that Mueller had not.

  “Only when the other guy shot at him and hit poor Matt,” one of the female Army vets testified, “did Mueller return fire as he’d been trained. He then took off running.”

  The only surprise Karp had run into from his witnesses was when he called Freddy Ortega to the stand to testify about comments Mueller had made to him as he ran from the scene. Ortega denied that the defendant had told him to “chill if you don’t want to die.”

  When Karp reminded him that he’d made that statement to the television crew as well as to Assistant District Attorney Kenny Katz, Ortega’s eyes flicked over to the defense table. He’s been bought, or he’s scared, Karp thought, and stopped his questioning.

  His suspicions were confirmed when, on cross-examination, Ortega talked about how Mueller had “acted all crazy, his eyes were rolling around and shit. He said some people were after him and wanted to torture him and kill him. Then he ran away like a crazy dude.”

  However, Ann Franklin, the hostage Mueller had with him when Karp met him at the door of the Bird House, had kept to the statement she’d given later that evening at the DAO. Although Mueller was obviously agitated and frightened, she said, he had also told the hostages that they wouldn’t be harmed if they all cooperated.

  “Did he at some point threaten to kill you and the other hostages?” Karp asked.

  “Not me specifically,” she’d replied. “And not until you were talking with him. Then he made some threats.”

  “When I spoke to him at the zoo,” Karp continued, “did he want anything in exchange for letting you and the other hostages go?”

  “Yes. He wanted ten million dollars and to be taken someplace—he didn’t say where,” Franklin replied. “He also didn’t want to be charged with crimes.”

  “He was aware that he’d committed crimes?” Karp asked.

  “Yes. He said he would testify against other people who he said were involved if you would not charge him.”

  “Did I offer him a deal to testify against these ‘other’ ­people?”

  “No. You said he needed to let us go and give himself up. You said if he did that he could talk to you later.”

  “Did he say that someone else was trying to kill him, or would kill him?” Karp asked, knowing the defense would be raising this issue.

  “Yes. He said others were trying to kill him.”

  “Did he mention anyone in particular?”

  “He said the other guy at the picnic. He said someone else had a gun and tried to shoot him.”

  “Did I inform him about the identity of the other man with a gun?”

  “Yes. You said he was a police detective.”

  As expected, LeJeune had belabored Franklin about her testimony regarding what he called Mueller’s “wild statements regarding these mysterious others.”

  “Did he describe these others?” LeJeune asked.

  “No. He just said they wanted to kill him and that it was a setup.”

  “And by ‘setup’ he was referring to the police detective who attempted to stop him?”

  She shrugged. “I guess.”

  “So he didn’t describe a mysterious conspiracy of ‘others’ who were trying to kill him?”

  “Not to my knowledge.”

  As both he and LeJeune had mentioned Detective Ted Moore during the trial, Karp had avoided anything that would give away what he believed Moore’s real intentions had been that day. The meeting with Moore’s parents six months earlier had been heartbreaking for them, but what he’d learned was for another day and another trial he hoped to prosecute.

  For the same reason, he had not called Stupenagel to the stand. She didn’t witness the shooting, but more important, he had not wanted to get into why she was at the picnic or her conversation with Swindells.

  After Karp rested the People’s case, the defense had called only three witnesses. The first was a former member of Mueller’s Ranger company prior to joining the 148th Battlefield Surveillance Brigade.

  Specialist Duane Jones had described an incident in which the Humvee they’d been riding in while on patrol in Iraq was struck by an improvised explosive device.

  “Was my client injured in the explosion?” LeJeune asked.

  “He was dazed and, uh, talking kind of funny,” Jones said. “I think he suffered a head injury.”

  After Jones stepped down, LeJeune had produced a document purporting to be a military physician’s assessment that Mueller suffered “a possible concussion.”

  The defense attorney had then called Dr. Cheryl Dominguez to the stand. A brain trauma specialist at a veterans’ hospital in New Jersey, Dominguez testified that the military frequently “underdiagnosed the severity of head trauma caused by exposure to massive explosions.”

  “So this could have been more than a concussion?” LeJeune asked.

  “Yes,” Dominguez replied. “I’ve looked at the incident report from Iraq, as well as the battlefield physici
an’s report, and talked to Mr. Mueller.”

  “And your conclusion?”

  “I believe the severity of his injury was much worse than originally diagnosed,” Dominguez said. “On the Glasgow Coma Scale, I believe he was between a nine and a twelve, which would indicate moderate traumatic brain injury.”

  “And what sort of issues might we see from moderate traumatic brain injury?”

  “A common effect is confusion, which can last from days to weeks,” Dominguez said. “But we also see physical, cognitive, and behavioral impairments, which may last months, or even be permanent.”

  “When you say behavioral impairments, might that include a change in a patient’s personality or mental stability?” LeJeune asked.

  Dominguez nodded her head vigorously. “Quite frequently, actually. They may become quick to anger or, on the other end of the pendulum, suddenly unusually docile. Or their personality may swing radically from one to the other over a short period of time.”

  “Might it also cause periods of paranoid delusions?”

  “Yes. Such a mental health issue is not uncommon at all.”

  Rising to cross-examine Dominguez, Karp remained behind the prosecution table as he asked, “Dr. Dominguez, did you or anyone you know of perform a CAT scan or MRI to determine if the defendant suffered this traumatic brain injury?”

  “Well, no,” Dominguez said, “but he’s exhibited the classic symptoms.”

  “Which were?”

  “Well, I would say that shooting someone was out of character for him. And he then exhibited paranoid delusions by, from what I understand, claiming that ‘others’ were after him.”

  “So other than what defense counsel contends is proof that the defendant did not know the nature and consequences of his acts or that what he was doing was wrong when he shot Colonel Swindells, you have no other evidence to a reasonable degree of scientific certainty.”

  “Um, no.”

  “No brain scans?”

  “No.”

  “And, in fact, the original diagnosis from this ‘battlefield report’ that has suddenly shown up,” Karp said, “was the defendant exhibited symptoms of a mild concussion.”

  “As I said, I believe he was misdiagnosed.”

  “Based on what? Conclusions you’ve reached six years after the alleged incident during which time there are no other reports of which I’m aware of the defendant exhibiting any of these behaviors?” Karp asked.

  “I did my best with the material I was given and a complete oral examination of Mr. Mueller.”

  “Are you aware that after this alleged incident, the defendant transferred into an extremely well-trained Ranger unit, the 148th Battlefield Surveillance Brigade, known for their ability to perform in the field under the most difficult circumstances?”

  “I did see that in his service record,” Dominguez said.

  “And that during the time he was with the 148th until his discharge he was considered an exemplary soldier?”

  “Yes, I’m aware of that.”

  “So apparently none of these ‘symptoms’ of a moderate brain trauma were present?”

  “I wouldn’t say that,” Dominguez countered. “They can go into remission or get worse over time.”

  “How much time? What is the baseline for your speculation ‘get worse over time’?”

  Dominguez didn’t answer, so Karp continued as he walked several steps closer to the witness. “In fact, you don’t know to any degree of scientific certainty that the defendant shot the deceased because of a concussion or because he had other reasons to commit murder?”

  After Dominguez retreated from the stand, LeJeune had called Dr. Hank Winkler. An expert on post-traumatic stress disorder and associated personality disorders, the psychiatrist had stayed on the stand for most of the day as the defense attorney led him through a long and tedious explanation of PTSD, which he said created a delusional belief system. He attributed the PTSD “possibly to the injury he suffered in Iraq and/or it may be organic in nature and due to inherent chemical imbalances.”

  The psychiatrist concluded that Mueller believed that Swin­dells had unfairly targeted him for court-martial “regarding a relatively minor infraction.” Over time, in combination with his PTSD and paranoid delusions, he believed that the colonel had intentionally set out to destroy his career and his self-image as a soldier.

  “Eventually, that grew into the conviction that Swindells ‘hated’ him to the point that he wanted him to die and had hatched a plot with unknown ‘others’ to have him killed. On that tragic day, Mueller only intended to confront the colonel. But apparently at the precisely wrong moment in time, the colonel said something to him—he can’t recall exactly what, which is common for someone who had been in a delusional state—that caused him to believe he needed to defend himself.”

  LeJeune turned his witness over for cross-examination. If Dr. Winkler’s expert testimony was believed by the jurors, Mueller was not legally responsible for his actions at the time he killed Colonel Michael Swindells and should be sent to a locked psychiatric hospital facility, not a prison. While a patient at the locked facility, Mueller would be released from custody once the hospital shrinks determined he was no longer a danger to the community or to himself.

  Now it was up to Karp to disabuse the jurors of Dr. Winkler’s contentions and convince them of what he’d called in his opening statement “the insanity of the insanity defense.” So much was riding on convicting Mueller, who’d sat for most of the trial with his head down and showing so little emotion that Karp thought he might be drugged. The few times Karp had caught his eye, he’d looked quickly away.

  Karp stood looking at the slim balding man on the witness stand, who returned his gaze with a deep frown on his face. Five weeks into the trial of Dean Mueller and it had all come down to this, the prosecution’s cross-examination of the defense’s psychiatrist and his opinion.

  Karp walked out from behind the prosecution table and stood against the witness rail.

  “Doctor, in arriving at your opinion, did you take into account that the defendant planned his attack by determining where Colonel Swindells would be on that date and at that time?”

  “Yes.”

  “And that he took a taxi to Central Park for the express purpose of attacking Colonel Swindells?”

  Winkler frowned. “Well, I don’t know about that. I know he wanted to confront the victim with his delusional belief that Colonel Swindells and others were trying to harm him.”

  “But he took a gun with him for this confrontation, not a banana or a Roman candle?”

  Winkler chuckled. “No, definitely not a banana. He took a gun.”

  “And prior to leaving his home, he loaded his weapon with live ammunition?”

  “Yes.”

  “Not with raisins or Cracker Jacks? But copper-jacketed nine-millimeter rounds that he removed from a box, inserted into a clip?”

  Again, Winkler laughed at the question. “No, he didn’t load it with raisins or Cracker Jacks. They were real bullets.”

  “And he placed the clip in the butt of the gun. He didn’t put a Hershey bar in there?”

  Winkler’s eyebrows knitted. “This is getting a little silly, don’t you think?”

  “Answer my question, please.”

  “Yes, he stuck the clip in the gun.”

  “Did you take into account that the defendant bypassed a number of other people present at the picnic and went directly to Colonel Swindells?”

  “Yes. That’s who he had targeted.”

  “And did you take into account that only after confronting the victim did Mueller remove the weapon from his waistband, point it at the deceased, and pull the trigger?”

  “Well, yes, of course.”

  “Doctor, do you agree that the defendant, at the time he loaded the gun and brought
it to Central Park, knew and appreciated that the weapon was an instrument capable of causing the death of the deceased?”

  “Yes. He was a soldier and had handled many weapons.”

  “Yes, that’s very true,” Karp said. “And further, Doctor, do you agree that at the time the defendant confronted the colonel, he was armed with a loaded handgun, not a Roman candle?”

  “This is ridiculous. Of course he knew it was a gun.”

  “And do you agree that when he shot the deceased, he knew he was shooting a living person, not a paper target?”

  “Obviously.”

  Karp left the jury rail and walked out in front of the witness box. “On the issue of wrongfulness, did you take into account that, after the shooting, the defendant fled the scene?”

  “Yes, he tried to escape.”

  “And that during his attempt to escape capture, he was confronted by uniformed police officers, at which time he took shelter in the Central Park Zoo?”

  “Yes, that’s true.”

  “And that in the zoo, he took hostages in an effort to avoid capture?”

  “I believe that’s true.”

  “And that while holding a gun, not a banana, to the head of a hostage, he acknowledged to me that he had committed a crime?”

  “Yes. That’s all true.”

  Karp folded his arms across his chest. “Then, Doctor, would you please tell us when it was that Mueller failed to know and appreciate the nature and consequences of his acts or that they were wrong?”

  Winkler sat for a long moment squirming in his seat as he took off his glasses, wiped them with his tie, and then replaced them on his nose.

  “Doctor, answer the question, please.”

  “At the, um, precise moment he pointed the gun at the deceased and pulled the trigger. It was at that moment he believed that he was killing the person, or persons, who intended to kill him.”

  Karp shook his head, looked at the jury, and said, “Now, isn’t that silly.”

  15

  AFTER KARP DISMANTLED WINKLER’S TESTIMONY on the stand, LeJeune rested the defense case. Judge Rainsford adjourned for the day. “We’ll pick up tomorrow morning with summations,” the judge said when the jury left the courtroom. “And I’d guess deliberations by tomorrow afternoon.”