Accidental Life

by Pamela Binnings Ewen

  Mortimer Stern was silent. Seconds passed.

  Judge Morrow leaned toward the witness. “You must answer the question, Dr. Stern.”

  Stern looked up, shook his head, and with a glance at Peter, said, “Given the circumstances, no.” He cocked his head, looking at Vince. “But, it is not for me to judge, sitting here today whether or not the Defendant’s judgment was reasonable.”

  Vince had gotten what he wanted. “Thank you,” he said, his voice turning cheerful again. Peter set the pencil down on the table and braced himself.

  “And in fact, if you are correct that as the years pass and medicine advances, the point of fetal viability—as you have defined it—moves closer and closer to conception, in your opinion is it possible that a time will come, perhaps years from now, when a fetus in an extremely early stage of development might be considered viable?”

  Peter rose, knowing where this was going, and knowing that Calvin Morrow would allow the question. “The State objects, Your Honor. The witness is an expert in his field, not here to answer hypothetical questions.”

  The judge’s answer was quick. “Overruled. On cross-examination I’ll allow it.” He looked at Stern. “Answer the question.”

  Stern shrugged. “Yes, I believe a time will come when early fetal life will be sustained outside of the womb and develop to full term with assistance as medicine advances.”

  “And when that happens, what will that do to the woman’s right to choose to terminate her pregnancy? Are we coming to the day when the woman is limited to making her decision within a few weeks of conception?”

  Stern adjusted his glasses and peered over the rims at McConnell. “I beg your pardon?”

  “Let me put it this way. Will the time come when it is possible to sustain the life of say, a ten-week-old fetus in the first trimester using all our medical technology?”

  “Possibly.”

  “And what then happens to the woman’s constitutional right to choose an abortion? Is she then going to be limited because by your standard the child is possibly viable in the first trimester?

  “Objection,” Peter said. “Argumentative, and again, hypothetical.”

  “Sustained. Rephrase the question, Mr. McConnell.”

  McConnell turned back to Mortimer Stern. “When speaking about viability in Roe, the Supreme Court said this was the compelling point when a state is justified in protecting a potential life because”—he lifted a finger—“and here I quote: ‘Because the fetus then presumably has the capability of meaningful life outside the mother’s womb.’

  “In your opinion, Doctor, is it possible that the Court inserted that word meaningful when speaking of viability in order to expand the concept of life beyond mere existence—an existence dependent entirely upon tubes and ventilators and monitors—and instead was requiring something more—a certain quality of life?”

  “I have no way of answering your question, sir.”

  Peter rose. “Your Honor, we’re getting far afield here.”

  Morrow turned to McConnell. “You’re allowed some slack on cross-examination, Counsel. But I’m starting to agree with Mr. Jacobs. Get to your point, or move on.”

  “Yes, Judge.” McConnell walked back to the lectern, taking his time. Then he turned back to face the witness. “Dr. Stern, given that we’re in agreement that the concept of viability is subjective, if a physician concludes that the fetus is not yet viable, would you agree that a live birth would be quite a surprise?”

  Dooney scribbled a note and slid it over to Peter. “What is he getting at?”

  “Intent,” Peter wrote. If the defendant was caught by surprise, he could argue that he couldn’t have had either a specific or a general intent.

  Stern began shaking his head before the defense lawyer finished. “No,” he said immediately. “Any physician understands the risk with this procedure. And given Miss Chasson’s indecision, and the absence of a sonogram, any physician would understand there was room for error in determining the gestational age. In my opinion a physician or any other abortion provider should anticipate the possibility of a live birth with an induction procedure, as with Miss Chasson.”

  “Good answer,” Dooney whispered. But Peter was silent, knowing they’d lost some ground in this cross-examination.

  “No further questions for this witness, Your Honor,” Vince said, taking a seat.

  41

  On friday morning, in the green glass courthouse, Judge Calvin Morrow sat on high looking out over his domain. Court had just convened for the day. He gestured to Peter that he was ready to begin.

  Peter stood. “The people call Dr. Stephanie Kand to the stand.”

  Stephanie Kand was an experienced witness, always professional, thorough, and her cool demeanor made her effective. She had the ability to translate complicated medical ideas for people who would otherwise not understand a word she was saying. She’d worked at the Parish coroner’s office as a forensic pathologist for twelve years, and Peter had worked with her on many cases.

  Once again Shauna had set up the projector on a table near the witness stand. The bailiff had prepared the screen. Photographs were always taken at every stage of an autopsy, beginning at the scene of the location of the crime. On the table next to the projector was the container of Dr. Kand’s slides. With a click of a button, Shauna would move from one photograph to the other on the screen as Stephanie Kand testified.

  Qualifying Dr. Kand as an expert went quickly. Peter began with the question he asked of her in each trial. “How many autopsies have you performed in the state coroner’s office, Dr. Kand?”

  She looked off as if recalling the information to her mind for the first time. “Thousands—six or seven thousand,” she said as she turned back to him. “I keep a book with dates on that.” She looked out at the gallery. “There are two systems of death investigations in the United States. A forensic pathologist in the coroner’s office in this state is the equivalent of a medical examiner in other states.

  “Here, in this parish in Louisiana, I’m the forensic pathologist in the coroner’s office. When there’s a suspicious death I attend the scene of violence just like the medical examiner would in another state, working with the crime team. I’ll direct the crime lab as to what evidence is important. The crime lab then collects the evidence, photographs it, and starts the chain of custody, and they write up a report. My forensic analysis begins with that report. So, we’re correlating the investigation with the autopsy.”

  Peter nodded, and turned toward the gallery so she could look out over the courtroom. “And can you explain the purpose of your work as a forensic pathologist?”

  Again Peter felt the loss of the jury. If a jury were impaneled, Stephanie Kand would have them mesmerized right now. She would look into the eyes of each person on that jury while she testified, creating a bond. Without a jury, she trained her eyes on Peter, or let her gaze rove over the spectators behind him as she spoke.

  “We’re looking for a specific thing in forensic pathology. We’re looking for the cause and manner of death, so I conduct the autopsy in that medical-legal context, although I don’t form purely legal conclusions. I’ll perform an internal and external examination of the entire body. We want to look at everything.”

  “And what do you mean when you speak of the cause and manner of death, Doctor?”

  “The cause of a death is the process or injury that initiated the death. The manner of death is how that cause of death came about.” She shifted her position. “For example, homicide in Louisiana is death by the act or omission of another person.”

  “Did you perform the autopsy of the infant, Baby Chasson?”

  “Yes. That autopsy was performed on May 14 of this year.”

  “How did the body appear when it first arrived at the forensic center?” As he asked this question, Peter walked to the prosecution tab
le and picked up the stack of autopsy photographs. Handing copies to Vince and the judge, he offered them as State’s evidence.

  “No objection,” Vince said, looking up. The judge then accepted the photographs as evidence, and they were given to the clerk to mark before returning them to Peter.

  Holding the photographs in his hand, Peter walked back to the witness. Peter handed the first photograph to Dr. Kand, and the slide appeared on the screen. Dr. Kand pulled a pair of glasses from her purse and put them on as she turned toward the screen.

  “Dr. Kand, does this photograph accurately reflect the body as it was received in the morgue?”

  She glanced at the photograph in her hand, and then leaned forward peering at the slide on the screen. “Yes. As you can see in this picture, the body was bagged to preserve the evidence.”

  He handed her the next photo. “And can you describe this one for us?”

  There was a low hum in the gallery as a slide photograph of the infant’s full body appeared on the screen. A ruler was placed beside the infant in the picture.

  “This was taken after the body was cleaned up, before the autopsy.” Shauna left the photograph on the screen as Peter turned back to her.

  “Where was the body found?”

  “In a freezer at the clinic.”

  “Does the fact the body was frozen complicate the autopsy?”

  “No, not at all.” Taking off the glasses, she folded them and pointed them toward the screen. “In fact it helped. As you can see from the slide, there’s almost no decomposition, meaning that the body was placed in the freezer very soon after death. Infant Chasson was well preserved.”

  “Based upon your examination were you able to determine a time of death?”

  “With adults, lividity is a starting point for determining time of death, but with a newborn baby, all bets are off.”

  “Can you explain that?”

  “Lividity occurs postmortem in an adult. When the heart stops pumping, blood settles in the part of the adult body that is dependent—meaning what they’re lying on. Gravity pulls the body’s blood to that place. But even with an adult, time of death can only be set within a range between minutes and hours, say between six and twenty-four hours. And an analysis of the state of rigor mortis also helps.

  “But with a newborn, the circulatory system is still immature—you can see it here.” She pointed with the glasses again. “That’s why the newborn infant appears red all over. A newborn doesn’t present the same changes after death as an adult.” She looked out at the gallery. “Because of the immature circulatory system in a newborn, gravity doesn’t force the blood to the lowest point—it’s not dependent upon what they’re lying on.”

  “During an autopsy, are you able to determine whether an infant was alive at birth?”

  She nodded. “Yes. We’re able to determine whether the death was intra-uterine fetal demise or whether the baby was alive at birth through microscopic examination of the air sacs in the lungs.”

  “Can you explain that for the court?”

  “We do microscopic sections of the lungs to see if the air sacs—the alveoli—and airways have expanded, which occurs when the child is taking breaths. If the baby took breaths, the air sacs won’t be collapsed; there will be some extensions.” She paused.

  “And what was your conclusion after examining the Chasson infant?”

  “We concluded that the child was alive at the time of birth, and for some period after. In addition to examination of the alveoli, we tested the lungs in a fixative solution to see if they would float. They did—evidence that there was air in the lungs. Additionally, we found air in the stomach.”

  “You concluded that the child was alive and breathing for some period of time after birth. Are you able to give the court a range of time during which the child was breathing?”

  “From the expansion of the air sacs combined with our finding of the presence of air in the stomach, the child was breathing for several minutes after birth at least, and perhaps longer. But there’s no way that I could give you a clear range, for example an hour, or two hours, as opposed to only minutes. It could have been either.”

  Peter turned toward the defendant. “It could have been minutes, or perhaps hours?”

  “Yes.”

  “Enough time to call an ambulance, to get the infant to intensive care?” He caught Vicari’s eye and the defendant stared back.

  “Possibly.”

  Charles Vicari’s face revealed nothing. His expression was blank. His eyes were flat and cold. After a beat, Peter turned back to the witness.

  “Did you autopsy the entire body?”

  “Yes, that’s standard to determine whether any major congenital abnormalities existed. We found none.”

  “Were you able to determine the gestation age of the infant during the autopsy, Dr. Kand?”

  “Yes.” She gave a firm nod. “The body measured 11.8 inches, crown to heel. Weight was one pound, eight ounces, 680.4 grams to be precise, consistent with gestation age twenty-four weeks. Growth appeared average for that age.”

  “Twenty-four weeks.” He nodded. “I’d like to go over your conclusions in the autopsy report now, please.” He presented copies to the defense and the judge.

  Right now his goal was to make the life of this baby real to the judge. He wanted Morrow to feel something deep, sorrow for the loss of this life, for the human potential this little body represented. It wasn’t often a prosecutor was called to prove that a life had existed before it was extinguished.

  “During your examination,” Peter went on, looking now at Dr. Kand, “—did you find anything unusual in the formation of the body, any abnormality in the organs—the heart, lungs, brain, kidneys?”

  She turned her head toward Judge Morrow, as she spoke, as she and Peter had discussed, struggling to make the personal connection that usually softened her words with a jury.

  “The visceral organs, including the heart and liver showed the stage of development expected for the age. Some of the intestines were already fully retracted into the pelvic basin, as would be expected. The lungs showed normal development. The circulation system was functional. The skeletal system, including the spine appeared normal for the age.”

  A quick smile crossed her face. “Toenails were visible,” she added. But Judge Morrow was looking off over the courtroom now. Peter wished the judge had caught Dr. Kand’s spontaneous reaction.

  Turning back to Peter again, Dr. Kand continued. “No abnormalities were found in the formation of the skull—the partially calcified plates were knit with fontanels, the thin membranes covering the brain. The brain itself appeared normal, the surface was smooth. The eyes were structurally complete, eyelids formed.”

  And then, suddenly she turned again toward Judge Morrow. Catching the motion, the judge looked at her.

  In a tone of wonder, she said, “The eyes at this age are already beginning to sense changes in light and dark.” The courtroom grew hushed.

  Judge Morrow’s brows lifted slightly. He blinked, and when she turned back to Peter, he saw the judge’s eyes remained fixed on the witness. Morrow was listening now.

  “Please tell us what this picture shows, Dr. Kand.”

  She put on her glasses and turned toward the screen.

  “That is a photograph of the infant’s brain during autopsy,” she said. “We remove the brain during the autopsy and fix it in a container of embalming fluid for two weeks. This is a photograph taken after the two weeks, and before we began the sectioning.”

  Consciousness. He wanted to show the potential was there.

  Shauna handed Peter a pointer and he handed it to the witness. “Can you show us what you were looking for?”

  “Certainly.” Dr. Kand stood and stepped down from the witness stand. With the pointer in hand, she walked up to the screen and stood
to one side, pointing to various parts of the brain as she spoke. “We were looking for any evidence of abnormal formation. Here . . .” She began moving the pointer across the photograph.

  “Here you can see the folds in the brain appear normal for the age. We looked at the shape of the brain stem, here. We looked at the mid-brain. Here and here, we ruled out defects and immature formation of the lobes of the brain.” She looked at the judge. “Those are evident if they’re present.” She dropped her hands to her sides and turned to Peter.

  “Thank you, Dr. Kand.”

  Walking back to the witness stand, Dr. Kand handed the pointer back to Peter.

  “As a result of your examination, would you say that the brain of the Chasson infant had matured normally for the gestational age of the child?”

  “Yes.”

  “And in your expert opinion, if the infant had been immediately placed on a ventilator, and had been given pediatric intensive care treatment, would the brain have continued to grow and mature in a normal manner, as the other organs?”

  “Under the right medical conditions this infant could have grown to full term. So, yes. All evidence points to a healthy baby.”

  Vince leaped from his seat, his voice booming. “Objection. Objection! This is nothing more than speculation.”

  Peter turned. “Your Honor, Dr. Kand is giving her opinion as an expert in forensic pathology after full examination of the victim’s body and brain.”

  Judge Morrow looked at the slide on the screen. Seconds passed. At last he turned to Vince. “The witness is stating her opinion. I’m going to overrule the motion, as I would assume I would do, should the defense call an expert on the subject.”

  Peter met Stephanie Kand’s eyes for an instant and saw the flicker of hope. Now he drew in his breath. This was the big question. “As a result of your autopsy and examination, are you now able to come to a conclusion as to the cause and manner of death?”