“The manner of death was poor temperature regulation resulting in hypothermia, and inability to continue breathing.”
“In your expert opinion, could the child have continued breathing with medical assistance?”
“Yes. If the air passages were cleared and the child was placed on a ventilator, with temperature regulation.”
“Thank you.” He swallowed. “And as to the cause of death?”
He knew what she was going to say, and wished he could change her words. But she’d been adamant that since there was no obvious wound in this case, the cause of death was a legal conclusion that she could not address.
“That’s strictly a legal question in this case,” she said. “I’ll have to leave that to the lawyers and the court.”
Peter smiled at his witness. “Thank you, Dr. Kand.” He glanced over at Vince. “Please answer Mr. McConnell’s questions now.”
Judge Morrow glanced at the clock and looked at Vince. “This looks like a good time to break for lunch. You can take the witness on cross when we reconvene at 1:30.”
“We’re ready, Your Honor,” Vince said, smiling.
At lunchtime Alice waited until everyone had left the office, and then she locked the door, as usual. Dr. Matlock liked to go out for lunch, to get away from the place for a while. She didn’t blame him. Often he was up all night with a patient in labor.
Walking into the file room, she sat down at the desk and picked up the phone. She had made her decision. She didn’t hesitate. Once Alice made up her mind about a thing, she carried through. She dialed zero and gave the long-distance operator the number in Cincinnati.
The phone rang and only then did the first shiver run through her. Her call was answered on the third ring.
“Hello?” a voice said.
She’d forgotten how sweet the voice was.
“This is Alice,” she said. “Alice Braxton.”
There was silence on the other end.
“I’m sorry to intrude. I’d . . . I’d never thought I’d be speaking to you again. But, this is important. Do you have a few minutes to talk?”
The words came out a sigh. “Yes, of course. Hello, Alice.”
On Octavia Street, Rebecca sat in a rocking chair in the nursery, thinking of Peter’s trial. He’d tossed and moaned all night in his sleep as he’d done for months now. The Chasson case had taken over Peter’s life, she knew; he was obsessed with making people understand what he had learned—that babies born alive during induced abortion were being allowed to die.
She looked at the crib that Peter had set up. She thought of Daisy—or Gatsby—whichever arrived she would love. Day by day she’d felt her baby grow. Week by week she’d studied the pictures in the book that Dr. Matlock had given to her. And she’d begun to understand that life cannot be explained in human terms. That the creator exists, just as the witness John had written thousands of years ago, and that he listens and loves every little life on earth.
She hadn’t spoken about these thoughts yet to Peter. They were too private, still. Too deep; too vulnerable, as yet. But she thought of Glory Lynn Chasson’s baby and how he’d grown unloved, in contrast to her own. She spread her hands across the pages of Amalise’s Bible, open on her lap.
It was open to these words: “Life was in Him, and that life was the light of men. That light shines in the darkness, yet the darkness did not overcome it.” The Gospel of John, again—chapter one, verses four and five.
Darkness could not be conquered without hope, without revelation.
And then, once again she began to pray for something good to happen. She prayed for the power of God to flow through Peter, so that he could help to shine that light.
When court reconvened, Vince bypassed the lectern and headed straight for Dr. Kand. Peter wasn’t worried; McConnell wouldn’t have much to work with on the autopsy and pathology reports and he would most likely call his own experts to rebut Stephanie Kand’s testimony.
“Now,” he said. “After concluding the autopsy, you stated that you were unable to establish a finite range of time that the fetus might have lived without medical assistance after birth, isn’t that correct?”
“Yes, that’s correct.”
“And yet your answer in fact did state a range of time, did it not?”
She arched one brow. “I don’t think that’s right.”
Vince turned toward Michelene and asked her to find the answer he referred to, and read it back. He stood, hands folded before him while he waited.
Michelene found the passage and read from the transcript: “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 at least, and perhaps longer. But there’s no way that I could give you a range, for example an hour, or two hours as opposed to minutes. It could have been either.”
“Thank you,” Vince said, turning back to Stephanie Kand. “In that answer you stated that there was no way that you could state a range for the amount of time the fetus breathed, and yet immediately after making that statement, you suggested a range between minutes up to two hours.” He looked at his shoes and walked to the jury box and back.
“So which is it, Doctor?”
“I’m standing by that statement, Counsel. From the expansion of the air sacs, and the fact that there was air in the stomach, we know the fetus was alive at the least for several minutes. We know the time of birth, according to Dr. Vicari’s notes, and from the preservation of the body prior to freezing we know it was placed in the freezer within a few hours of death.” She shrugged. “I can’t be more specific than that.”
“You are correct. There’s not much to work with in coming to that conclusion. You will admit, won’t you, that you had much more information at hand when you came to your conclusion as to the gestational age of the fetus than the Defendant did at the time of birth?” He turned and extended his hand toward Charles Vicari.
“Yes, of course.”
“Are you aware of the conditions in the labor room at the moment the Chasson fetus was born?”
Stephanie Kern cocked her head to one side. “Conditions?”
“Yes. The fact that the patient was struggling to get up from the birth table, that she needed medical attention and that Dr. Vicari was left on his own, holding the just-born fetus in one hand, and attempting to attend to the patient with the other, while the assisting nurse fought to control the patient’s hysteria?
“Given all that was going on in the labor room at the moment of birth, the turmoil and screaming and coming and going—do you agree that under those circumstances that it was not unreasonable for Dr. Vicari to focus all of his thoughts on Miss Chasson, rather than a fetus that he thought had expired?”
“I’m not an expert on whether that’s reasonable or not, Counsel. It’s my understanding that several witnesses have testified to hearing the infant cry out, and seeing some movement.”
“In your opinion would a premature infant be able to cry out and be heard?”
“Yes. Of course.”
Peter watched as Judge Morrow looked down and made a note in the book. Dooney kicked him under the table, and he gave her a nod.
Vince turned his back on the witness and walked to the defense table. “I’m through with this witness, Your Honor.” Reaching the table he threw down his notes. Charles Vicari grabbed his forearm as he sat and Vince looked down at the table while the Defendant whispered into his ear.
Judge Morrow looked at the clock and then he looked at Peter.
“No more questions, Your Honor.”
Morrow waved the lawyers up to the bench. Dooney went with Peter.
“What do your schedules look like?” he asked.
“We’ve got three more witnesses this afternoon. I don’t anticipate any of them taking more than ten or fifteen minutes under
the State’s examination.” Besides the ambulance driver, who’d testify the drive to the nearest hospital would have taken twenty minutes, he would call the clinic’s cleaning woman, and the part-time nurse. The latter two wouldn’t add much to the prosecution’s case, but this would cover every clinic employee, other than Eileen Broussard and the defendant. “After that, we’ll rest our case this afternoon.”
He hated speaking those words. There was something in Charles Vicari’s past, he felt it; and he needed evidence to show the doctor was completely aware that live-birth was a risk, in order to prove the specific intent required under Louisiana law for second degree murder. He needed to show that Vicari wasn’t taken by surprise when the infant was born alive, that he’d known that when he’d wrapped the infant’s head in the towel, and that his instructions to Clara Sonsten were clear orders to let the infant suffocate.
Judge Morrow looked at Vince.
“We’re ready.”
“Will you have an opening argument?”
“A brief one.”
“All right. We’ll adjourn for the weekend after your next three witnesses, Mr. Jacobs. The defense will move forward on Monday. I’ll review the exhibits and testimony in the case over the weekend, and defense will do the same. Then absent any complications, we’ll proceed on Monday morning at nine a.m. sharp.”
42
Dooney and Peter pushed the elevator button and stood, looking at the closed doors in silence. When the elevator arrived they stepped on. Peter pressed the button for the tenth floor.
“It seems to me that we’ve proven Baby Chasson was alive when he was born,” Dooney said. “And between Clara Sonsten and Dr. Kand’s testimony, we’ve established the possibility that he survived independent of his mother for at least an hour. If they’d called an ambulance, he’d be alive.” She gave Peter a sideways look. “What do you think the defense strategy will be?”
He pursed his lips, thinking he knew exactly what they’d do, but he was tired and didn’t want to speculate right now. His tone was laconic when he replied. “They’ll bring in their own experts, try to pull apart Kand’s testimony. They’ll attack Clara Sonsten’s credibility, argue that she lied, that at most the infant only lived a few minutes after birth.”
The elevator stopped. The doors opened. He shook his head as he followed Dooney down the hallway toward the office. “They’ll argue surprise; that there was no credible reason for Vicari to have anticipated the situation, and under the circumstances, without more evidence . . .” His voice trailed off. He’d seen the verdict hidden in the judge’s eyes.
They pushed through the doors to the big outer room where Dooney had her desk. Peter’s office was on the other side. Dooney nodded. “I wouldn’t be surprised if they also argued that every woman’s right to choose would be diminished if we set a precedent here. A woman exercising her right to choose an abortion isn’t expecting to leave the clinic a mom.”
Both of them were silent.
Dooney headed for her desk, then halted. Turning, she looked at Peter. “I’ll be working for a while. Brought a ham sandwich for dinner; plenty for two. Want some?”
Peter shook his head. “Molly said she’d leave one on my desk. I’ll be working on our closing argument tonight. And I’m hoping Mac will stop by later. I told him I’d be here.”
“You think they’ll put Vicari on the stand?”
“No. Not a chance.”
“What about Eileen Broussard?”
“She’s protected by privilege as Vicari’s wife. Vicari won’t waive that; and she won’t help us out.” As he headed into his office, he glanced at the clock on the wall. Time was running out. The defense wouldn’t take more than a day or two, he predicted.
He needed something more.
43
Rebecca and Peter lived just off St. Charles Avenue on Octavia Street. Alice pulled the cord and when the streetcar slowed to a stop, she got off. It was Saturday morning. She’d skipped her usual leisurely Saturday morning breakfast in order to get here early.
She glanced at her watch. It was still only nine o’clock. But this was urgent, and she suspected that Rebecca was a woman who got moving early in the day, even on a weekend. Alice was glad Rebecca was housebound on Dr. Matlock’s orders. Otherwise she’d have probably been long gone.
So now she stood looking at the large, white house, wondering what to do next. The newspaper still lay on the sidewalk, she noticed. Should she ring the doorbell, or wait here until someone ventured out? Perhaps the paper meant that her husband was still here. That thought almost drove her away.
Minutes ticked by while she stood there gathering her courage. Streetcars came and went down St. Charles Avenue. The morning was cold and she blew on her hands, looking at Rebecca’s front door, forcing herself to remember the importance of why it was she’d come. Whether the prosecutor was still home or not, she finally decided, there was too much at stake to let this go. And so, sticking her hands inside her pockets, she stepped down the curb and headed across the street. This wasn’t about Alice, she reminded herself. This was about Charles Vicari. Then she marched up the sidewalk toward the front door.
Her heart pounded while she waited. Turning, she watched the children playing in the park across the street, and remembering that Rebecca’s child was soon due, she smiled, thinking of what a nice home the baby would have.
She was still smiling when the door opened a crack and Rebecca peeked out. Rebecca looked at her, frowning, and then she opened the door a bit wider and Alice saw the recognition dawn. Rebecca’s hand flew to her midsection, over the baby. “Is that you, Alice? Is something wrong with the baby?” The words rushed out all mashed together as she gripped the door. “Did Dr. Matlock send you?”
She swayed and quickly Alice reached out, afraid that she would fall.
“I’m not here about the baby. There’s nothing wrong. But . . . but this is important, or I wouldn’t have disturbed you.”
But, it was necessary. “May I come in?” she asked. “Please? I have information that might help your husband’s case.”
Rebecca’s face closed. She looked at Alice and said, “I really cannot discuss my husband’s work, not with anyone. And he’s not here; he left about an hour ago. So if you want to talk to him, I could give you his office number over in Gretna.”
Alice fingered her purse, determined. “I came to talk to you, Mrs. Jacobs. I heard that your husband was looking for me. I heard from a friend; someone named Fred McAndrews was in Chicago a few months ago . . . looking for me.”
Rebecca’s eyes lit. “You’re Alice.”
She nodded. “Used to be Alice Braxton. That was my married name. Now, I’m Alice Hamilton.”
Rebecca stared. Seconds passed, then she opened the door wide, and moved aside. “I’m sorry,” she said. “I’m being rude. Please come in.”
Alice ducked past her, apologizing for the intrusion. As she walked through the door she felt her courage draining. But, Rebecca would know what to do.
“I’ve got coffee made,” Rebecca said over her shoulder. “Or would you prefer tea?”
“Coffee’s fine.”
They walked down the hall and through a living room into a bright, cheerful kitchen with a large window with sunshine streaming through. Rebecca took her coat and hung it by a door, and invited her to take a seat.
At eleven thirty in the morning Mac and Peter were eating what Mac called brunch at Common Ground near the courthouse in Gretna. The restaurant was a big, sprawling place with indoor and outdoor tables and plate glass windows on three sides. It was Saturday morning, and cold outside, by Louisiana standards. They went inside and took a table by one of the windows near the empty shoeshine stand.
The waitress came. She set down two cups and poured coffee without asking; chicory for Mac. She’d been around the courthouse area longer than Peter had been practicing
law. Peter ordered tuna on toast, dressed, and a Coca-Cola. Mac ordered breakfast: two eggs sunny-side up, four pieces of toast, four links of hot sausage, and grits. When the waitress walked away with their orders, Mac lifted his cup toward Peter and sipped the steaming black coffee.
“I don’t know how you can drink chicory,” Peter said, picking up his own cup.
“It sus-tains me.”
They talked for a while about yesterday’s testimony. “We need more,” Peter said. “The problem’s proving Vicari intended to let the infant die, and for that we have to show he knew a live birth was a possibility and had an established way of dealing with that.”
“Lucy Ringer hinted that he was dirty.”
“Well we’ve got to prove that. Maybe they’ll give us an opening on rebuttal.” Absently he unwrapped the napkin on his right and freed the knife and fork, placing them beside him on the table. “You certain Miss Ringer won’t testify?”
Mac shook his head. “I’ve called her three times. Not a chance. She says she’d lose her job.”
“Well, we need proof that Vicari knew . . . he knew . . . the infant might have survived if he’d done something.” He placed the napkin across his lap.
The waitress brought the food and set it down on the table.
“It’s too bad we couldn’t find that nurse. Alice Braxton.” Peter pushed the remaining half of the sandwich around on his plate.
“We’re done looking through the hospitals,” Mac said, glancing up at Peter. “Got through about a third of the private practice offices, so far. But we’ll keep looking.” He hesitated and lay his fork down on the edge of the plate, looking at Peter. His eyes reflected his thoughts: It would be too late.
“You know, Alice Braxton might not be here at all, Pete. The trail’s pretty cold. And we don’t really know if she’ll help the case. We’ve really got nothing to go on except what Lucy said.” He picked up his fork and scooped up some eggs. “On top of that, you know as well as I that even if we find her, at this late date it’s going to be impossible to get Morrow to let her testify. He’s a stickler for procedure.”
Accidental Life Page 29