“Well, I know how a judge would rule at this point,” Priscilla said bitterly.
“Yes, I’m afraid you’re right. And in any case, I’m certain you realize it just wouldn’t be fair to Mindy—waiting for the outcome of the trial. It could take years. I’ll start thinking about a new family for her,” Mary said.
Priscilla burst into tears. “She’s mine, don’t you see? She’s mine!” she had said.
The camping trip with the Schaefers had been designed as a quiet interlude between Priscilla’s arrest and the furor certain to be generated by the preliminary hearing. Priscilla had vowed not to think about the case. The Schaefers had a sixteen-foot sailboat they could putter about on to help distract her.
That Saturday broke shimmering hot. Priscilla, Steve, Skip, and Nancy drifted on the lake in the boat, baking in the sun, while the boys paddled around on rafts and Marietta sunbathed on shore.
At dinnertime they came off the lake for hamburgers. Priscilla discovered a paper bag of charcoal briquettes in the camper but no one had remembered the lighter fluid.
“Maybe I can just light the bag and start it that way,” Priscilla said. She knelt by the fire pit and lit the paper, watching it as it flared and burned quite merrily for two minutes. Then it went out.
“Here, I’ll go down to the store and pick up some fluid,” Steve said. He started to leave, then paused and came back. “But you have a Coleman stove, Skip. Can’t we just use some of your gas?”
“No, no,” Nancy said immediately. “We shouldn’t; it’s dangerous.”
“Well, just put a little in a cup. That should be all right,” Steve said. Skip crossed to their supplies and returned with a Styrofoam cup. Priscilla took it out of his hand and poured a little on the dead coals.
“Go ahead, pour it all on,” Steve said. And so she had.
The ambulance, lights and siren flaring, met Skip’s car at the turnoff to Berryessa and drove Priscilla to the Queen of the Valley Hospital in Napa. The attendants poured saline solution on the burns while Priscilla writhed and shivered. In the Emergency Room, the doctor administered Demerol, started an IV, and washed the burns that covered her right arm and shoulder, her neck, and patches of her chest and abdomen. He charted her burns as first and second degree and arranged to transfer her to Kaiser-San Rafael. It was the last place Priscilla wanted to go, but continued hospitalization in any but a Kaiser facility would not be covered by Steve’s hospital plan.
Steve rode with her in the ambulance, back through Napa and Sonoma counties to Marin, but for Priscilla the trip was a blur of half-drugged pain.
“Hang in there, honey,” Steve repeated continually in her ear. And under his breath once, she heard him mutter, “C’mon, God, this is enough.”
After a stay in Kaiser’s Emergency Room, they transferred her into a room and Dr. Ritchings, a surgeon, came in to examine her. She was fogged with pain medication but she could hear Steve.
“Pris, we’re not going to leave you. The Schaefers have notified the Doudiets already, and they’re setting up a sheet for everybody to sign to make certain you’re not alone here—ever. I don’t trust these suckers—and I’m going to tell Dave Neukom when I see him exactly why not. Don’t worry, he’ll watch his backside while you’re here.”
“Um.” Priscilla drifted off. She remembered little of the next few days, but she was vaguely aware of comforting hands. Later she noticed a considerable amount of activity outside her door. People wanting to see the burned murderer, she supposed bitterly. She recognized some of the nurses from pediatrics, but only Debby Roof and Maria Sterling came in. The rest just stared at her. Maria had been in the E.R. when Priscilla arrived, and had brought her up to her room. She had been sympathetic and kind. Of the doctors Priscilla knew, Dr. Arnhold, who had once been the boys’ pediatrician, visited several times. Sara Shimoda did not appear.
There had been no contact between Priscilla and Sara for some time. After Mindy’s removal to a foster home, Priscilla had agonized for several weeks over what Sara must be thinking. She asked Jim Hutchison to telephone Sara to assure her of Priscilla’s innocence. She questioned Debby and Maria about Sara’s attitude when they came over one day, but they could not tell her much. It had reassured Priscilla that the nurses continued to support her, to express shock and incredulity at the idea that Priscilla might be considered responsible for Tia’s and Mindy’s illnesses. But she was obsessed with wondering about Sara’s reaction; several times she woke from dreams about Sara. Finally she sent her a ten-page letter. Several weeks later, Sara finally telephoned. The conversation lasted for over two hours; Priscilla did most of the talking.
“I just wanted to see how you’re getting on,” Sara told her.
“It’s so hard! I can’t stand it here without Mindy—not knowing how she’s doing—where she is. Mary Vetter says she’s with an older woman so they wouldn’t have to worry about the foster mother getting pregnant.”
“Because of Mindy’s CMV?”
“Yes. But, Sara, it’s so terrible! Imagine how you’d feel if they had taken Elizabeth away!” She wept hysterically into the telephone.
“I know, Priscilla. I’ve been thinking about that,” Sara said.
The conversation had cheered Priscilla. Still, she was haunted by fears that all the doctors thought her guilty. Soon some of the other hospital staff called to reassure her. Rich Coolman told Priscilla that the San Francisco staff’s reaction had been disbelieving.
“The only thing they can figure is that you must have a split personality!” he told her hesitantly.
“But you know I don’t!” Priscilla answered.
“Of course,” Rich said.
Since the arrest there had been no further word from Sara. Once again Priscilla asked Jim to call her. “Just tell her I’m hurting so much over this,” Priscilla said. But Jim reported back that Sara had been cool.
And now Priscilla was forced to stay at a hospital where she knew herself to be hated and feared. But at least she was never alone.
Several times Jim Hutchison stayed the night with her, acting as a “special” nurse. He asked her about the status of the hearing.
“My lawyer had to appear with Dr. Ritchings to get the preliminary hearing put off. The doctor says I’ll be here two weeks.”
“You had a serious burn, Priscilla,” Jim said.
Once, in a feeble attempt at a joke, he gestured at the IV line and said, “Here, I’ll just put a little sodium in here!” But Priscilla didn’t laugh.
Later she turned to Jim and said, “Now I suppose they’ll be saying I did this to myself.”
Jim reached for her hand and said nothing.
9
On Tuesday morning, June 13, 1978, three weeks after it was originally scheduled to start, Priscilla Phillips’s preliminary hearing began in Municipal Courtroom Eleven at the Marin County Civic Center. The hearing—at the request of the defendant—was closed to the public, and a gag order remained in effect. The only people present were Deputy District Attorney Kathryn Mitchell, Detective Ted Lindquist, attorney Roger Garety, and his associate Sheila Reisinger, Priscilla and Steve Phillips, Judge Gary Thomas, the court reporter, clerk, and bailiff. The courtroom door was locked.
Normally, Kit Mitchell would have selected as her courtroom assistant the district attorney’s own staff investigator, Charles Neumark. But at the special session of the Phillips preliminary hearing the week before, she had requested that Neumark be replaced by Ted Lindquist. Lindquist had done all the investigative work on the case and was thoroughly familiar with it. Judge Thomas had agreed to the change.
Ted had anticipated this approval. He had already received permission from the captain and from Chief Benaderet to work full time with the DA on the preliminary hearing. Everyone in the police department recognized the necessity of this. In the last few weeks, Ted had relied upon and received the total support of the department. Without it, the pressures of this case would have overwhelmed him.
B
ut he felt that now he had covered every possible base. He had spent hours working with Sara Shimoda and Evelyn Callas on the medical records, and he knew Kit Mitchell had done the same.
“We’ve got to organize these records into something understandable—and into something we can present vividly in court,” she said. And after weeks of effort, she had succeeded. The charts she had brought to court were simple yet complete.
Ted did not know Kit Mitchell well. Only thirty-one, she was one of the youngest members of the district attorney’s staff. She was the juvenile court deputy, and because of that many cops went to her with matters that involved juveniles as victims, even though her responsibility was to handle juvenile offender cases.
Although she had been one of the district attorneys opposed to issuing an arrest warrant for Priscilla, once they had made the arrest, Kit Mitchell had worked on nothing else. Ted was impressed with both her stamina and her intelligence. She had the credentials—he knew that from the Berkeley Phi Beta Kappa certificate framed on her wall, and her Hastings College of Law diploma; but what counted more for Ted was the way she applied her mind.
“You know, math and science were never my strong points,” she confided one evening to Ted as they pored over the medical records. “But I’m going to master this stuff if it kills me. It’s the key to the case.” And she had attacked that data, studying until she understood it.
Last Tuesday there had been a special session of the preliminary to accommodate body fluid physiologist Dr. Malcolm Holliday, who was leaving the following day for a seven-month sabbatical in England and who would not be available to testify at the regular preliminary the following week. And now, seven days later, the preliminary was to resume.
Ted had done what he could: everything now depended on Kathryn Mitchell. In a preliminary hearing, it was the duty of the prosecution to convince the judge that there was reasonable suspicion to believe both that a crime had been committed and that the defendant was responsible. The defense did not have to put on a case and Ted was aware it was very unlikely that one would be offered here, as Garety would not want to tip his hand about the direction of the defense before the actual trial.
Ted looked over at Priscilla Phillips. She was sitting calmly next to her attorney, a yellow legal pad in front of her. During the examination of Dr. Holliday the week before, she had taken copious notes, many of which she had passed to Garety. Sometimes Ted had caught a half-smile on her face.
“You know,” Kit had remarked, “she seems almost jolly.”
“Almost as though it was happening to someone else,” he answered. “She’ll catch on soon enough.”
10
Roger Garety had been frank with Steve and Priscilla this morning, the last day of a preliminary hearing that had stretched—interminably, it seemed to Steve—eleven days.
“You will almost certainly be bound over for trial,” he said to Priscilla. “As Judge Thomas indicated yesterday, today’s session is designed to give the attorneys an opportunity to make statements about what the evidence showed, and also about what you should be charged with: first degree, second degree, manslaughter, and so forth. If we can get the charge reduced, that will be a major accomplishment, and about the best to be hoped for at this juncture.”
Steve nodded. It had been obvious from early in the proceedings that the prosecution had prepared a very strong case. But as Pris had said over and over to Garety, much of the evidence was slanted and biased and inaccurate. Still some of the medical evidence in particular had given him a jolt, especially the testimony of Dr. Martin Blinder.
Despite Roger Garety’s efforts to keep the psychiatrist off the stand, Judge Thomas had allowed him to testify. And he had damned Priscilla. Although he had not examined her—at Garety’s insistence—on the stand, Blinder talked at length about Munchausen Syndrome by Proxy. The guy was careful, Steve had to admit. He confessed that he couldn’t say Pris had the syndrome, but he sure as hell implied that she did. He described in detail the attention that sufferers of the syndrome hoped to attract from medical personnel. This obsessive desire caused them to hurt their children, he said. It was all ridiculous, Steve believed. Still, the judge had probably bought it: there only needed to be reasonable suspicion in a preliminary, not the proof beyond a reasonable doubt required at the trial level.
It looked like the best that could be hoped was that the charge against Pris would be reduced to second degree or manslaughter. Then some of the pressure would be taken off the trial itself. There would still be plenty of tension to go around. Financial pressures—despite the defense fund—were already beginning to hem them in. Priscilla’s income had stopped dead in April. She had not been officially fired, but Steve knew that if she was bound over for trial, she would be. It was as certain as fog in February.
It was time for the session to start finally, and the bailiff came and let them in. Off to his right, Steve saw Kathryn Mitchell and Ted Lindquist conferring. He had come to detest the DA, with her short little skirts and her pointy face and the way she pitched her voice high and strong as if she was leading a cheer. He could tell she thought Pris was dirt under her feet. And Lindquist, who sneaked around taping everybody—like someone in Watergate—Steve couldn’t abide the sucker. He stared at the detective with hostility, but Lindquist didn’t look up.
Judge Thomas wheeled himself in from his chambers. Steve knew something of his history. The 1970 shoot-out at the Civic Center touched off by Jonathan Jackson’s foiled attempt to force the release of his brother George from San Quentin had left Gary Thomas a paraplegic. Thomas, who was the assistant district attorney at the time, had taken a bullet in the back. In the fray, a judge, seventeen-year-old Jackson, and two convicts on trial were killed. Two years later, Gary Thomas had been elevated to the bench. He was a strict and formal judge with a reputation for evenhandedness. He waited now as the bailiff moved to lock the doors and flick on the orange sign that announced the status of each courtroom. Court was officially in session.
The district attorney opened with a request that the court make a holding specifically as to the two charges which had been filed: the charge of murder in the death of Tia Phillips and the charge of endangering the life of Mindy Phillips.
“I believe that a charge of first-degree murder, with implied malice, can be found in the death of Tia Phillips, Your Honor. Particularly as Priscilla Phillips saw the life-threatening situation with Tia, yet persisted, although she must have realized that if the doses increased, the eventual result could only be the child’s death,” the district attorney said.
The judge looked at Kathryn Mitchell for a moment. “What about Dr. Blinder’s statement that persons suffering from displaced Munchausen don’t have an intent to kill? That their intention is to focus attention upon themselves?” he asked.
“I don’t believe that Dr. Blinder’s statements preclude the existence of both a specific intent to kill or a very conscious realization that one’s acts are very likely to cause death,” the district attorney responded. Then she summed up her entire case. Steve took Priscilla’s hand as the DA recapitulated the events leading to Priscilla’s arrest.
“What Tia and Mindy Phillips suffered while in the custody of this woman defies description. She poisoned these two infants with baking soda, and after the first child died, she certainly knew what would happen to the second. Yet she persisted.”
“Miss Mitchell, do you believe baking soda is a poison as defined either under the business and professional code or as defined medically?”
“I’m not sure, Your Honor. But in researching that, I found nothing that says it wouldn’t fit the definition under Caljic.”
“Mr. Garety?”
“Yes, Your Honor. I want to say first that the burden of the prosecution at a preliminary hearing is to produce evidence of a reasonable probability; that is, evidence sufficient to induce a strong suspicion in the mind of a person of ordinary caution or prudence that a crime has been committed and that the defendan
t was the guilty person.
“My query: What crime? I submit first, certainly not murder in the first degree. There is no evidence of willful, deliberate, premeditated killing.
“Next,” Garety went on, “baking soda is not a poison, but rather a common household product. Furthermore, if Mrs. Phillips had intended to kill Tia, she could have done so easily by, for example, tampering with the child’s central alimentation line. Or she could have allowed Tia to die at home.
“I also suggest that a finding of second-degree murder is inappropriate. There is no evidence that sustains a finding that the activities of the defendant had as their goal the harming of Tia, or her injury or death,” Garety added.
“What do you suggest, then, Mr. Garety?” asked Thomas.
“Your Honor, I think a violation of section one ninety-two, subdivision two, manslaughter, would be appropriate.”
“And what about the second count of the complaint relating to Mindy Phillips?”
“For the purposes of the preliminary hearing only, I won’t address count two of the complaint,” replied Garety.
Garety sat down and Steve watched as the district attorney—who was given the last word—reiterated her position.
Finally she was finished and took her own seat in the almost deserted courtroom. The judge collected some papers and then looked out at the attorneys.
“Well, I have thought about this case a lot, and I don’t think there has been proved a conscious disregard for life in this matter, as such, that would take this out of second-degree murder and put it up to the category of first degree. And there hasn’t been any evidence to show any intent to kill,” he added.
Steve in his chair turned to Priscilla, beaming. But she was rigid beside him, her eyes intent on the judge, and she did not turn.
“Priscilla Phillips, please rise,” Judge Thomas continued. He waited while she did so. Garety took his place beside his client. “I do believe the evidence does find that such intent—mingling of any harmful substance of any food or drink or medicine involved, of both Tia and Mindy Phillips—was to injure and not to kill.
A Mother's Trial Page 21