“I’ll allow the testimony. Objection overruled.” Morrow looked at Vince. “But Counsel, you are of course entitled to cross-examine the witness’s credentials.”
Peter turned back to Clara. “How long did you hold the infant?”
Clara looked up at the ceiling and then gave Peter a resigned look. “Over an hour. Maybe an hour and a half. I lost track of time, so it could have been more.” Seconds passed. “After a time I would hold him up to the light to see if his heart was still beating. His skin was almost translucent. And the last time, I could see it wasn’t beating any more. His heart had stopped.”
Peter swallowed, imagining the scene. Behind him there was not a sound in the courtroom. Clara pulled another Kleenex from the box and dabbed at her eyes. Then she crumpled it in her fist and looked up at him.
“And after he died—what did you do then?”
“I followed Dr. Vicari’s instructions. I put him on the shelf in the utility room.”
Peter closed his eyes for an instant, forcing the images aside, struggling not to think of his own unborn child and Rebecca. Behind him Peter heard the scrape of chairs at the defense table. He stepped to the side of the jury box and saw Charles Vicari, hunched toward his lawyer, whispering in his ear as he gestured toward the witness.
Clara stared at Peter without moving, hugging herself. Holding her eyes, Peter nodded, fighting, yet failing to give Clara an encouraging smile. There was no sense of victory. Despite his greatest efforts, images of Clara holding Baby Chasson in the empty room that night flooded his mind, tangling with pictures of Rebecca glowing with health as she carried their child.
Turning, Peter walked back to the prosecution table almost bowed under the weight of Clara Sonsten’s words. Reaching the chair at last, slowly he sat.
“Are you finished with the witness, Counsel?” Judge Morrow’s voice broke through his fog.
Shaking his head, he quickly rose. Knuckles pressed against the table, he looked up at the judge. “Yes, Your Honor. That’s all I have for the witness.” He looked back at Clara. “Thank you, Miss Sonsten.”
Judge Morrow turned his eyes to Vince. “Your turn, Mr. McConnell.”
Vince picked up a few pages of notes, stood, and walked to the lectern. He looked at the notes for a moment, then at Clara Sonsten. Slowly he shook his head.
“Miss Sonsten. Were you promised anything before you agreed to give this testimony?”
“Yes.”
“And what was that?”
“A grant of immunity.”
“Immunity from what?”
Her eyes darted to Peter. “Ah, from aiding and abetting I think . . . just in case.”
“I see.” Vince raked his fingers back through his hair. “So it’s in your best interest to make your testimony as dramatic as you can, isn’t that right?”
Clara lifted her chin and held his eyes. “No. I wanted to testify. Facts are facts, sir. I’d have been here either way after what I saw that night.”
Vince’s tone dripped with sarcasm as he slapped the notes back down on the lectern. “Let’s go back to the beginning. Miss Sonsten. Let’s go back to the moment when you first entered Miss Chasson’s procedure room after Nurse Broussard rang the call bell.”
Without looking at him, she shrugged. “All right.”
“You testified that you answered the call bell at 6:15, is that right?”
“Yes.”
“Now.” Vince moved toward her. “When you were talking to Mr. Jacobs, you described several events in the procedure room all occurring at once when you entered. It must have been a confusing scene, all that going on at once. So, I’m asking now for a little clarification. Please tell the court, how long were you in that room altogether that evening?”
She turned her head and looked at him. “I didn’t time it.”
Vince flipped his wrist. “Take a guess. An estimate—how many minutes total would you say you spent in that room after you responded to the call bell.”
She pushed out her bottom lip and looked up, as if at an invisible clock. Then she turned her eyes back to Vince. “Altogether? I’d say two, maybe three minutes.”
Vince stood arms at his sides and held her gaze. “All right. Let’s say three. We’ll give you the benefit of having been in that room for three full minutes. Does that sound about right?”
Clara arched a brow. “I suppose.”
Vince strolled back to the lectern, picked up a piece of paper, and scanned it. “And in those three minutes in the delivery room you testified that you saw all of these things happening at once . . .” Without raising his eyes, he held up his fist and lifted a finger. “One: You saw the patient, Miss Chasson struggling with Nurse Broussard and crying . . . sobbing is the way you put it, I believe?”
“Yes. She was very upset.”
Vince continued, his voice building to a steady, gradual beat. He raised his fist and held up two fingers, eyes still on Glory Lynn. “Two. At the same time that Miss Broussard, that is, Nurse Eileen Broussard, was occupied . . . was fighting, to keep the patient still and to lie back down . . .” He paused. “You said that she was pushing Miss Chasson down on the bed with both hands, is that correct?”
Clara said yes.
He nodded. “So the patient, who has just screamed, is now sobbing and fighting with Nurse Broussard.” His tone took on a drawl. “That must have been some commotion. And a lot of noise.” Vince shook his head and moved a step closer to the witness box.
Glory Lynn gave him an annoyed look.
Vince held up three fingers. “And third.” He swung his arms behind his back and leaned toward Glory Lynn, weight rocking from heel to toe. “Doctor Charles Vicari is occupied with attempting to complete the procedure, with—as you mentioned—only one hand. Tell us again, please, Miss Sonsten, about Doctor Vicari—what you saw at that moment when you walked in, just before you say you heard a cry.”
“He was sitting on the stool at the end of the bed holding the baby . . . the ah, fetus . . . in one hand, and I couldn’t see very well what he was doing with the other. Like I said before, there was some blood.”
“Go on. Then what did Dr. Vicari do?”
“Well he said, take it—meaning, the baby—out of there, to take it to the utility room.”
Vince planted his hands on his hips and looked at Clara. “And you are telling this court that in the midst of all this noise and confusion, the turmoil, that you heard a cry from a premature human fetus with under-developed lungs?”
She looked at him for a minute. He waited. Then she said, “That’s right. I heard it cry.” She hesitated and looked past Vince, avoiding Peter’s eyes. He sucked in his breath. “And when I got close, I saw the arms and legs move too.”
Vince paused, hands in his pockets, and turned toward the gallery in a slow stroll past the prosecution table. “Did it ever occur to you that perhaps what you saw was a manipulation of the fetus caused by the Defendant’s own movements, since he was also attempting to render medical aid to his patient at the same time?”
Clara began shaking her head. Her eyes darted to Peter and back. “I don’t think so. I saw the baby move his arms and legs, I’m sure. I saw those tiny arms and legs moving.”
Vince held up both hands and turned half-circle back to her again. “I am asking you to consider whether the possibility exists that the fetal body movement that you thought you saw could have resulted from something other than voluntary muscle movement.” He tilted his head, watching her. “Is there room for that possibility in your mind?”
Seconds passed, and then to Peter’s chagrin, Clara shrugged. “Like you said before, I’m not a doctor. I guess anything’s possible.” She tilted her head and looked at him. “But whatever caused it, I saw that baby move, and then I heard the cry.”
“Ah yes. We’ll get to that.” Vince turned on his heels
, and leaned back against the partition before the jury box. “But for now, since I’m asking the questions and you’re here to answer them, let’s go back to where we were.” He paused for a beat.
“In the delivery room, you are now testifying that you saw movement, but there’s a possibility the fetal movement you thought you saw could have been caused by the Defendant’s own moving around and not necessarily by voluntary muscle movement of the fetus. Isn’t that what you just said?”
Clara blinked. “You’ve changed the words all around. But I guess so.”
“Would you like to rephrase your testimony?”
“No.”
“Alright.” Vince glanced at Peter with a slight, almost imperceptible smile. Then he turned to Clara. “And then I believe you testified that the Defendant took the fetus from your hands, wrapped the towel around it, covering the face, and returned it to you. Is that correct?”
“Well, first I asked if I could suction the baby, and call an ambulance for help.”
“And after that, what happened?”
“He became angry. He took the baby from me, and that’s when he wrapped it all up in the towel.”
Vince’s tone was strident. “And you ask us to believe that in the middle of all that was going on in that room at the moment, that the Defendant turned away from his patient, Miss Chasson, and took the fetus from your hands only to wrap the blanket around its face?”
“That’s what happened, sir.”
He whipped around to face Clara. “And you would have this court believe that this Defendant would spend precious time on that for what reason?”
“Because he did not want the baby to breathe. He wanted it to die.”
“And yet, assuming the facts are as you state them, isn’t it just as possible that he wrapped the fetus in that blanket as you described because Dr. Vicari believed that it was not alive, that it was nothing more than expelled tissue?” He stalked closer. “Isn’t that just possible?”
“No. I’d told him the baby was alive.”
“But you’d also talked about the noise in the room. Isn’t it possible that he hadn’t heard you?”
“No.”
McConnell hestitated and touched his forefinger to his lip. “Tell us, Miss Sonsten, if you believed that you were holding a live infant in your arms, when the Defendant—as you say—handed the infant back to you to hold, why didn’t you pull a clean blanket from the table right there to wrap around the baby? Why leave it in a soiled delivery towel?”
Clara stared at him.
“Please answer the question.”
“I guess I didn’t think of that.”
“What usually happens to a delivery towel after it’s used?”
“They’re put in medical waste.”
Peter stifled a groan.
“Yes. Like any other tissue.” He moved a little closer toward Clara.
McConnell’s voice turned acid. “Let me ask this question. In all the time you were in that room, did it ever occur to you that Miss Chasson had come to the clinic specifically in order to terminate her pregnancy? To be specific, that she’d chosen not to have a child?”
“Yes.”
“And you’ve testified that the scene in that room was confusing, and you did not understand what Miss Chasson was saying over there with Nurse Broussard, isn’t that right?”
“Yes.”
“So are you telling this court that in the midst of all that confusion you suddenly took it upon yourself to overrule not only the judgment of the physician in charge, but also Miss Chasson’s constitutionally protected choice?”
“But she’d already given birth and the infant was still alive!”
He wagged his finger. “There’s that word again.”
Clara flushed.
But Vince went on. “Do you agree that the decision to use an induction abortion procedure—that is, to induce labor, is a judgment call to be made solely by the doctor and his patient?”
Clara frowned. “Yes, of course.”
“Are you aware that with an advanced stage fetus, say beginning at twenty, twenty-one weeks and after—late term—other methods of abortion carry increased health risks to the woman, damage such as perforation of the uterus, parts left behind, hemorrhage, even death?”
“Sure. I’ve heard of that.”
“So, are you telling this court that because the Defendant chose to use an induction procedure for the abortion, which results in an intact fetus and is therefore the safest—that when you walked into that room and saw the intact fetus in the Defendant’s hand, in the midst of all that confusion you somehow determined in a split-second that the Defendant’s considerable judgment and work, and Miss Chasson’s clear decision not to have a child—all of those decisions should be reversed so that you, Miss Sonsten, could call an ambulance?”
Clara dropped her arms to her sides, uncrossed her legs, and glanced at Peter. He saw the growing confusion in her face. She turned to Vince. “Yes. I wasn’t thinking of any of that. What else could I do? The baby was alive!”
“I’m asking the questions, Miss Sonsten.” Vince stepped close. His voice dropped, sounding low and ominous. “Should a woman choosing to have an abortion during late term be required to accept the risk of a far more dangerous procedure than induced labor, just to make absolutely certain that the fetus will expire in-utero—before it’s expelled?”
“No, of course not.”
“Do you believe that you have the right to interfere with the physician’s judgment?”
“No.”
“Do you believe that you have the right to interfere with the woman’s decision not to be a mother, based upon a snap judgment you’ve made in the midst of confusion?”
“Ah. No. But . . .”
Clara began shaking her head, but before she could answer, Vince stepped back, away and turning to the gallery, said, “Let me put it this way: If you’d been in Miss Chasson’s position, if that had been you, would you have wanted to use the safest procedure for an abortion, induced labor, even though there may be some slight, very slight risk that the intact fetus might take a few breaths after being expelled?”
Peter shot up. “Objection, Your Honor. The witness is not here to answer hypothetical questions.”
Judge Morrow’s expression as he gazed at Peter was cold. “I’d like to hear the witness’s answer. Overruled.”
Vince turned and looked at Clara.
“Well, I don’t know. I don’t know what procedure I’d choose!” Her eyes shot to Peter, then to Dooney. She put her hands to the sides of her face, turning to Vince. “All I know is that I held that infant and there was time to get it to a hospital, time to save his life.”
“Objection,” Vince said, turning toward the judge. “Move to strike the last sentence of the witness’s answer.”
“Sustained.” Morrow waved his hand toward Michelene.
Vince looked at Clara. “Your answer is that you don’t know?”
Clara’s eyes were wide. “Yes.”
Before she could say anything more, Vince turned toward his client and held out his arm, looking over his shoulder at Clara. “But you see, Miss Sonsten, Dr. Charles Vicari did not have the luxury of musing over that question on the day that Miss Chasson came to him for help. He had to make a decision. Miss Chasson wanted an abortion. The doctor, the Defendant, offered her the procedure that he, using his best medical judgment, believed to be the safest one for his patient.” He turned back to face her.
“So, again I want to ask. When you asked the Defendant’s permission to clear the fetal air passages and call an ambulance, did it cross your mind at all that you were interfering with Miss Chasson’s constitutional right to choose under the laws of this nation?”
“But he lived,” Clara cried. “I held him in my arms for over an hour.”
“So you say. But, then what happened?”
“He died.”
He gave her a long look. “Exactly.”
“He could have lived longer. With help he could have lived.”
Vince angled himself toward the gallery, smirking. His tone dripped with sarcasm. “You’d been working in the clinic for a while, hadn’t you?”
“Yes.”
“So you had no illusions about what happens in an abortion clinic. Are you now telling this court that on the night of Miss Chasson’s procedure, it suddenly occurred to you that the location of a fetus is what made the difference in your mind?” He turned back to her, holding up his hands.
“If the fetus had died one second earlier, Miss Sonsten—say, two inches back inside Miss Chasson’s body, that would have been all right with you?”
She looked at him and seconds passed. Then she said in a trembling voice, “It’s a question, isn’t it? I’d never thought of it that way before, but it’s really all the same, isn’t it?”
“Move to strike the witness’s last answer as unresponsive,” Vince said.
“Overruled.”
“I’m finished with this witness.” Vince’s tone was thick with sarcasm.
Peter exhaled and only then did he realize that he’d been holding his breath. But inside he almost smiled. Because with his last question and Clara’s answer, Vince had made a point that he didn’t even understand.
38
In the gloom that evening Peter sat in his office, thinking. One element of Vince’s strategy was coming clear: Vince intended to convince Judge Calvin Morrow that Infant Chasson’s live birth had been a complete surprise to the defendant, and given the confusion in the room and Glory Lynn’s needs, there’d been no time to make any other decision. And Morrow would probably fall for it, he thought. That was the easy way out for the judge. Unless he, Peter Jacobs, could come up with something more.
Ham had warned him that if he took this case he had to win—you don’t charge a physician with murder without clear legal precedent to stand on—as here—unless you’re certain you’ve got the proof. He dropped his face in his hands and took a deep breath. He needed to be able to show that Charles Vicari was well aware of the risk of live birth during late-term abortions, and that he’d done this before. Lucy Ringer would have been a trump card if she’d been willing to come down and testify. But she’d made clear to Mac that was out of the question.
Accidental Life Page 25