Someone tapped him on the shoulder and he turned to see Stephanie Kand on the other side of the railing. “Just letting you know I’m here,” she said. “Traffic tied me up.”
“Thanks,” he said. “Let’s get together at lunch to compare notes.”
She nodded and took a seat
Watching Vince McConnell from the corners of his eyes, Peter pulled the yellow legal pad toward him. Dooney’s work on the witnesses’ publications had been invaluable in preparing for the cross-examinations today. He shook his head just thinking of the ideas contained in some of those articles. But, whether he’d be allowed to use any of this information depended upon the direction Vince McConnell took in his examination of the witnesses today.
Judge Morrow’s voice roused him.
“Are you going to make an opening statement, Mr. McConnell?”
“A brief one, Your Honor.” Vince rose and walked to the lectern without any notes. Peter saw the tension in his back. For a moment Vince McConnell stood there, hands on the lectern, looking down. Then, with a slight heave of his shoulders, he looked up at Calvin Morrow.
“When Miss Chasson first appeared at the Alpha Women’s Clinic on May 11, she was seeking help in asserting her constitutional right to terminate her pregnancy. She was in a fragile state, as we’ve heard from the testimony of her behavior in the procedure room two days later. She’d been abandoned by the prospective father and she arrived at our clinic alone, anxious, frightened.” He turned and stretched his arm toward the defendant. “The clinic was her refuge and the Defendant took her in.”
Briefly Vince ran through the facts from the perspective of the defense. As he spoke, he paced back and forth in the well of the courtroom, fixing his eyes on individual spectators from time to time. A good reaction from the gallery and the press could set a tone that Peter knew might have an effect on the judge.
“The defense will prove that the State, even with hindsight, has failed to prove that the Defendant had any reason whatsoever to anticipate the birth of a viable fetus in this case.
“As we move on, I ask this court to keep in mind that we must distinguish between fetal ability to breathe for a short period of time outside the mother, and the ability to sustain a meaningful life separate and apart from the mother.”
Vince halted behind the lectern where he’d started and gripped each side, looking at the judge. “In summary, the defense will prove to this court not only that the State has failed to prove the elements of the charge of second degree murder. But that the State has also failed to prove even negligence on the part of Doctor Charles Vicari.”
“Is the defense ready to call the first witness?”
Vince turned toward the gallery, looking at the hallway door. “Yes, Your Honor. The defense calls Dr. George Barnett to the stand.”
Peter took notes, although George Barnett had so far said nothing unexpected. Barnett was there to give his views on Stephanie Kand’s testimony and her conclusions in the autopsy report. Stephanie, sitting behind him, would be taking notes that would help him on cross-examination, and if necessary, in rebuttal.
He gave his watch a nervous glance. Hopefully, if everything went just right, the Gordys and Alice would be all he’d need for the rebuttal. So Peter sat back and watched the testimony unfold.
Dr. Barnett was certified in anatomic clinical and forensic pathology. He’d studied Dr. Kand’s pathology report and the autopsy photographs, copies of which Peter and the judge had before them. Step by step Vince took him through Dr. Kand’s report and the classifications of death, in which Dr. Barnett also concurred. He reviewed the physical aspects of the body prior to autopsy without using the slides. The witness agreed that the body had appeared to be in a good state of preservation.
“Does anything in the autopsy report indicate to you that the fetus was viable?”
“No. The alveoli, the air sacs, were somewhat extended, but in my opinion the pathology report was more than optimistic. In my opinion the autopsy shows only that the fetus breathed for minutes—more than that is only a guess. A few minutes of breathing does not indicate viability.” He shook his head. “The lungs, of course, were not fully developed.”
“In your opinion, was the fetus viable?”
“Not in my opinion.”
“Thank you. Now. Dr. Kand testified that she found no congenital abnormality in the brain. You studied the autopsy report on the brain?”
“Yes, I did.”
“Do you agree with Dr. Kand’s conclusions?”
Barnett pushed out his lip, with a slight movement of his head as he looked at Vince McConnell. “Dr. Kand’s conclusion was premature. In my opinion it is not possible to conclude with a twenty-four-week-old brain whether congenital abnormality exists. We just have no experience with that.”
“Would your conclusion be the same if the subject of this autopsy had been put on life support in intensive care?”
“My conclusion stays the same. Without evidence to the contrary, I have no reason to believe that the infant’s brain would have developed normally through term by artificial means and outside the mother’s womb, as Dr. Kand testified. And twenty-four weeks is just too premature to speculate.”
“Thank you, Dr. Barnett.” Vince pulled on his lip and looked off. “And have you come to a conclusion as to the cause and manner of death in this case?”
The witness lifted one shoulder slightly, an almost an imperceptible shrug. “As one would expect given the gestational age, in my opinion death was caused by several events, all complications due to extreme prematurity.” He spread his hands. “Inadequate oxygen. Low body temperature.”
“And the manner of death?”
He dropped his hands into his lap and his voice rose. “In my opinion, this was a natural death due to premature development.”
Peter stood before the witness and had Michelene read Dr. George Barnett’s last question and answer aloud. When she’d finished, he said, “You’ve stated it’s your opinion that Baby Chasson died a natural death.”
Barnett gave him a cold look. “Caused by the prematurity of the, ah, human fetus.”
Peter nodded. “In your opinion would an infant born prematurely not due to abortion and an infant of the same age born during an abortion have the same chance of survival with intensive care, neonatal intensive care—ventilation, temperature regulation?” He heard Vince’s chair pushing back.
“Objection. That’s inflammatory, Your Honor.”
The witness took his cue. “I don’t have any basis for an opinion on that.”
“Sustained.”
Peter went on. “Are you familiar with Dr. Mortimer Stern’s testimony on premature infant morbidity rates?”
“Yes. Of course. But the Japanese study that he relied upon is incomplete and therefore, in my opinion, provides no basis for an opinion on the ability of a twenty-four-week fetus to survive after separation from the mother. The others?” He shrugged. “I wasn’t impressed with the controls. But, as you are well aware, my profession forces me to deal with facts, on what is, not on that type of research.”
Peter turned, watching the defendant. “Have you ever autopsied a prematurely born infant?”
Barnett’s response was quick. “Yes, of course.”
“And were any of those infants survivors of an abortion?”
“I really couldn’t say.”
“Can’t?” Peter cocked his head. “Or won’t? When a body arrives, doesn’t it arrive with records making that distinction?”
“Objection!” Vince stood and Peter turned. “Arguing with the witness.”
Morrow straightened and looked at Michelene. “Objection sustained,” he said.
Peter went through Stephanie Kand’s autopsy conclusions and the path report step by step with the witness to no avail. An hour passed and Barnett stuck to his opinion throughout
. Even without opposing Kand’s conclusion that Baby Chasson was twenty-four weeks, Dr. George Barnett stated unequivocally that the autopsy was inconclusive as to what the future would have held for the infant. Peter was unable to move the witness from that position.
“There’s just no evidence to support optimism,” Barnett added.
By the end of the cross-examination Peter’s earlier spirits had faded. He looked at the witness for a long moment before turning away. “Those are all the questions I have,” he said heading back to the prosecution table.
Behind him, Morrow said. “This is a good time for a break.”
Stephanie Kand caught his eyes and shook her head.
“All rise . . .” the bailiff called.
Peter stood behind the table and, as Dooney rose, he leaned toward her. “Call the office, will you? See if anyone’s heard from Mac yet. And get in touch with Shauna and let me know when the Gordys’ plane will arrive.”
“You think you’ll be able to get them on the stand?”
“Don’t know yet.” He glanced at Vince. He needed to buy more time somehow. If he were McConnell, he’d be tempted to rest his case right now.
During the break Peter sat at the table once again reading Dooney’s notes on the articles she’d located.
He saw the judge’s clerk entering the courtroom just then; he stood near his desk, talking to the bailiff. Behind him he could hear the bailiff warning people in the hallway. Dooney had not reappeared by the time the bailiff announced the court back into session.
His stomach churned. He figured there was about a fifty-fifty chance that McConnell would allow any defense witness on the stand to open the door for the State to present new evidence in rebuttal. Not to mention the odds on Mac and the Gordys all arriving on time even if he got the chance.
48
Daisy was restless this morning. Rebecca stood in the nursery looking around, thinking that at last, everything was ready. With the white walls and furniture, the room looked as fresh and pure as new snow on the runs at Christmastime on Ajax Mountain in Aspen, where she and Peter loved to ski, although she thought that type of vacation might have to wait awhile.
She sat down in the rocking chair, imagining holding the baby in her arms. She’d come to love this room—more than she loved her office downtown, she realized. But of course, the two places really could not be compared. And she had three months at home before she had to go back to Mangen & Morris. Three whole months at home with Daisy.
Hands over the baby, slowly Rebecca rocked back and forth in the nursery. There was plenty of contrasting color, she thought, enough to keep Daisy from boredom. She loved the way the light streamed through the two big windows overlooking Octavia Park. In the springtime when the windows were open, Daisy would hear the children’s laughter across the street, and then she pictured Daisy as a toddler, gripping the windowpanes a year from now, standing on her tiptoes and looking out.
The room was like a picture come to life from her imagination. White curtains splashed with pictures of animals and toys in those bright, primary colors. The curtains were pulled back with ties so the sun would come in, and trees and flowers across the street seemed a part of the room itself.
Glancing through the window at her side, she saw a child, just about Elise’s age skating down the sidewalk across the street, her mother tagging along behind. The mother was watching the children playing in the park, and the little girl rolled on ahead of her. And then, suddenly she noticed, a half-block ahead, a driveway sloping down into the street.
Images of Elise on her bicycle that day flashed through her mind, as she watched the child, now far ahead of the mother, now close to the driveway. In a shot she rose from the rocking chair, twisting toward the window as the girl glided forward on her skates. She could hear it all from years ago as she reached down for the locks on the window and clicked them open—the screaming brakes of the car, the sound of the bicycle under the wheels, the hopeless wailing of the driver—she could hear it all as, helpless, she fought to lift the window.
And then the little girl on the skates rolled on. Past the sloping drive. She saw the mother, realizing now, hurrying her pace as she called out to the little girl. The child rolled to a stop in the grass, and turned, waiting for Mom to catch up.
The girl was safe. She’d passed the driveway and she was safe.
Rebecca’s hands slipped from the window as she stood watching. The little girl looking up at her mother; the mother’s finger wagging.
All was well.
Slowly she walked back to the rocking chair, where she sat down and closed her eyes. But, instead of the usual reel of devastation that a reminder of Elise would bring—the loss, the funeral, her mother—she saw nothing in her mind. The images had vanished. The child across the street was safe, unlike Elise. It all happened in an instant. Now. One child now lived; one child had died.
For a long time she sat in the nursery rocking, looking at the crib. She would be a good mother, she knew. And then she put her hand over Daisy and took a long, deep breath, as she leaned her head back and prayed a thanksgiving, releasing the last remnants of those years and years of guilt.
Peter watched as the next witness for the defense strode down the aisle swinging his arms, his back straight, and his chin high. He’d bet this witness had practiced that walk. As he came through the gate, Vince was waiting. They shook hands and then he pressed on toward the witness stand. There he was sworn in.
Dr. Paul Strickner was a pediatrician practicing in the obstetrics department of a teaching hospital in a medical center in Houston, Texas. As Vince walked toward the witness stand, Dooney reappeared and sat down beside Peter. She shook her head. No word yet.
On the stand, under Vince’s careful guidance, Paul Strickner was now agreeing with the previous witness’s conclusion that it was impossible to ascertain from an autopsy whether the Chasson infant would have lived if he’d been given intensive care, and even if that had happened, whether his functions would be normal. At the gestation age twenty-four weeks there was just no way to come to that conclusion, he said.
And then Peter detected a slight change in the defense lawyer’s voice. He looked up.
“In your opinion, Dr. Strickner, given the age of the fetus, do you believe that the Defendant’s choice of induced abortion was the safest procedure available to terminate Miss Chasson’s pregnancy?” Vince was standing at the lectern, arm resting on it while he looked at Strickner.
“Yes. Induction abortion is well known to provide the least risk to the woman after twenty weeks where the fetus is more advanced. There are many reasons for this.” He went on to describe them all again.
“Under those circumstances, was there any reason for the Defendant to suspect that Miss Chasson’s fetus was viable?”
“Not in my opinion.”
He glanced at Peter. “I would certainly agree that Dr. Vicari’s decision was well within medically recommended standards.”
“So,” Vince said. “In your opinion, Dr. Strickner, would it have been possible for the Defendant to have anticipated a live birth in Miss Chasson’s case?”
The witness frowned. “It depends on what you mean by the phrase, live birth.”
“Let’s say it’s this: heartbeat, breathing—in each case for one or two minutes.”
Strickner looked down for a moment. “Occasionally that could be a possibility, but it would be rare. I’ve never encountered that in my practice.” He straightened and looked over the gallery. “I’d say that live birth is a slight risk that the physician must weigh against the woman’s safety. And as you know, the courts have said that the woman’s health and safety are her doctor’s primary concerns.
“You want what’s best for the woman. In my opinion a twenty-three-week gestation, as Dr. Vicari believed, could not produce a fetus that was viable. With a glare at Peter, he added, “And
given Roe v. Wade, I find it almost inconceivable that a physician is charged with murder on these facts today.”
Vince wandered back to the lectern. “You just used the term viable, Doctor. Please explain to the court what you mean by that term.”
“My understanding of the law is that in order to be viable the fetus must be capable of sustaining a meaningful life separate and apart from the mother.”
Vince looked at his witness. “In other words, there must be some potential for a certain basic threshold of quality in the ongoing life?”
“That is correct.”
Peter saw the judge glance at him, waiting for an objection. Vince was clearly leading his witness. But Peter had no intention of interfering. He planned to handle the quality of life issue in his own way
“Your witness.”
Judge Morrow nodded. He glanced at the clock over the jury box and said, “We’ll recess for lunch now and reconvene at one thirty for the State’s cross-examination of this witness.”
“All rise,” the bailiff called.
Peter smiled to himself as he and Dooney stood.
In his office during the lunch break, Peter sorted again through the stack of publications that Dooney had found. He was looking for one that he particularly remembered; the title had caught his eye. The Line Drawn at Birth—New Ethics for a New Age, a publication in a prestigious medical journal by Dr. Paul Strickner, the defense witness that he would take on cross after lunch. Picking up the sandwich, he began to eat while he read through the publication, looking for the paragraphs that he remembered.
He was still engrossed fifteen minutes later when the phone on his desk began to ring. Without waiting for Molly to pick it up, he answered, hoping this was Mac.
“Chicago’s cold. And it’s a fight, Pete.” Mac’s voice, a combination of irritation and resignation, came through.
Accidental Life Page 31