Peter looked down at the article he’d been reading. The fight was worth it, he thought. “What’s happening?”
“The consents have arrived. I’ve spent the morning cooling my heels in the hospital’s lawyers’ offices. Local counsel’s with me, and that helps. They’re not happy, but they’ll do it. The problem is, when? They’ve been picking through the records, going page by page, redacting things . . . I guess we’ll have to fight about that later if we can, about what’s missing, what they strike out. Because, if I start that argument, I’ll never make the plane.”
“Just get what you can, Mac, and get back here. I think I’ve found what we need to get the Gordys on the stand during rebuttal.” He picked up the sandwich and held it mid-air as he said, “I don’t trust Vince. I think he’ll rest today, and if he does we’ll be on tomorrow, and I’ve got to fill the time until you arrive.”
He bit into the sandwich after he hung up, and chewing, looked at the door. Then he picked up the telephone and buzzed Molly. “Find Stephanie Kand, please,” he said when she answered. “She was in court this morning, but I need to make certain she’s there this afternoon as well. Have her paged if she’s not in her office, or down at the morgue. Tell her I might have to put her on for rebuttal as early as this afternoon.” He might have to fill some time, to stall.
“I’ll find her.”
He hung up the phone and glanced at his watch. Thirty minutes left. Sandwich in one hand, article in the other, he went back to Dr. Paul Strickner’s theory of life.
49
Alice went to work on Monday morning, but she asked for the afternoon and all day Tuesday off. Dr. Matlock had grudgingly granted her request. She called the agency for temporary help, and now, as she followed the doctor from one examination room to the other, from patient to patient that morning, she felt she had to preserve her energy for all that was going to happen.
At noon the office closed for lunch. Alice called a taxi to pick her up at one fifteen. The agency nurse arrived on time and Alice introduced her to Dr. Matlock. She’d stacked the afternoon patients’ files in order on the fileroom desk and now she handed those to Miss Ruston, explaining how things worked.
A rush of anxiety overtook Alice when she caught sight of the clock and realized it was already one fifteen. Quickly she changed from her uniform to a dress that she’d brought along. She put on her hat and pulled on her gloves.
The taxi ride was uneventful and she arrived at the airport with plenty of time for lunch. She checked the schedule for incoming flights and saw the Gordys’ flight from Cincinnati would arrive on Concourse B. Walking down the concourse, still holding herself together, she spotted the Lucky Dog cart.
Despite the gloves she ordered one Lucky Dog with mustard and chili, and a 7 Up. These she took to a chair in a nearby vacant gate area. The sign above the check-in counter said the next flight would leave for Dallas at 2:10. She’d never been to Dallas—wondered what it was like.
She managed to set the purse down on the chair beside her and the drink on the floor near her feet, and then slid back in the hard chair with a sigh. Pulling off her gloves, she set them aside and clutched the hot dog with both hands. She ate the hot dog slowly, enjoying the taste as she looked about thinking how strange it was that she was sitting here right now, waiting for the Gordys to arrive; pondering how much her life had changed in the past few weeks.
When she’d finished eating she headed further down the concourse until she found Gate 22 where she would wait for Shauna Rameri and the Gordys. She thought about how it must have been for Kenneth and Suzanne Gordy to watch that little baby grow, and that made her think about the old days, and Charlie—the days when she’d still had hope for her own.
At Gate 22 she found a comfortable place to wait. Then she pulled a book from her purse and concentrated on reading, struggling not to think about what might happen at the courthouse tomorrow.
The thought crossed her mind that perhaps when this was all over, she’d take a vacation some place nice, someplace serene and relaxing. Like that little town in Italy that Rebecca had talked about so much. Some place like that.
Court was back in session. Peter walked to the lectern, turned toward the witness stand, and introduced himself. In his hand he held the article he’d reread during the lunch break.
“Dr. Strickner,” he began in a reflective tone. “Earlier you also stated that induced labor abortions have been known to result in a live birth, did you not?”
“I believe I said that is rare.”
“But, the risk is there?”
Strickner tilted his head to one side watching Peter. He wore a half-smile and a puzzled look. His tone when he answered was cautious. “Yes, if by live birth you mean the rare presence of a fetal heartbeat after the fetus is expelled, a heartbeat for a short period, perhaps some involuntary muscle movement, and breathing for a minute or perhaps several minutes, culminating in a natural death. Then,”—he lifted his chin—“that is correct.”
Peter clasped his hands before him and leaned slightly forward. “If the risk of live birth, however slight, exists, then wouldn’t best medical practice require a physician to plan ahead for that contingency?”
Silence rang in the courtroom. The witness’s expression did not change. Still wearing that same half-smile, he shook his head sadly.
“The Chasson fetus was twenty-four weeks gestation, according to the official autopsy. The Defendant believed that it was twenty-three weeks when he began the procedure. Neither the brain nor the other major organs of the fetus could possibly have been developed to the point of consciousness awareness at that stage.”
Peter picked up the article from the lectern. Dooney had made copies, and as he offered the publication into evidence, she gave copies to defense counsel and to the judge.
Vince objected on the spot, arguing that he’d not seen these before. But the fact that his own defense witness was the author was inconsistent and defeated the argument. At least for the moment, Morrow allowed the evidence.
Holding the article in his hand, he glanced at Judge Morrow. “Permission to approach the witness, Your Honor?”
Morrow flapped his hand toward the witness stand. “Go ahead.”
Peter walked to the witness stand and stood five feet from Paul Strickner. He handed the article to the witness. Strickner took the pages from him and looked down at them.
“Are you the author of this article?”
The witness put the pages down on his lap. “I am.”
“And will you read the name and date of the publication aloud, please?”
He did so.
“That is a peer-reviewed journal?”
“It is.” Strickner’s voice was haughty.
“Thank you.” Peter stood, half-turned toward the gallery. “Would you please read aloud for the court the paragraph that I’ve marked on the third page?” As he spoke, Vince and the judge turned pages.
Strickner began to read aloud. “There is currently no evidence to suggest that a newborn infant is capable of conscious self-awareness, premature or otherwise. Even a full-term newborn infant cannot conceive itself as an individual, nor can it conceive of ongoing life. Even a healthy newborn infant at the beginning lives in the moment, from moment to moment. But what makes human beings different from animals is rational thought—that is what establishes the value of human life.”
He paused and looked up. Peter rolled his hand. “Please continue.”
“The undeveloped brain of a human fetus even at twenty-eight weeks, the point established by Roe v. Wade for viability, is certainly not capable of rational thought,” Strickner went on. “Nor does it have a conscious awareness. Therefore, the actual separation of the premature fetus from the woman who has chosen to terminate her pregnancy at twenty-eight weeks, even if it thereafter breathes or moves or makes a sound, should not be viewed as an artifici
al line called ‘birth,’ automatically bestowing ‘personhood’ on the undeveloped fetus.
“We must understand that life without conscious awareness has no value, and we must balance that fact against the predictable poor quality of life that the fetus would endure using medical heroics, as well as the wishes of the person who will be most affected by forcing it to continue breathing, forcing the heart to continue beating—that is, the woman who made the choice in the first place. A fetus at or under twenty-eight weeks is not capable of sustaining an ongoing meaningful life.”
“Thank you, Doctor. Do you stand by those statements?”
“Your Honor, the defense objects to this line of questioning!”
Peter turned toward Vince, then to the judge, spreading his hands. “The witness is merely reading his own words, Your Honor.”
With an aggrieved look, Vince stalked toward the bench. “May we have a moment, Judge?”
Judge Morrow raised his brows and motioned Peter over to the side of the bench away from the witness where Vince now stood. “Now, what’s this all about Mr. McConnell? This is your witness as I recall.”
“Yes, Your Honor, but this line of questioning is inflammatory and irrelevant. It’s outrageously far afield. Move to strike the last two questions and the answers from this witness. The witness cannot speak for the Defendant on the question of infant personhood—”
Peter broke in. “This goes to intent, Your Honor. I assume Dr. Strickner’s beliefs are consistent with the Defendant’s on these questions. The defense called this witness; are they now repudiating him?”
Morrow looked at Vince McConnell. His look said it all: The defendant could speak for himself anytime he wished. “I’m going to allow this,” he said. Before Vince could reply, Morrow looked at Michelene. “The defense motion is denied. The record stands.”
Peter took a deep breath as Vince pushed past him, hurrying back to the defense table. He walked to the witness box, and stood before the witness. “Dr. Strickner, in your testimony this afternoon, even though evidence presented in this case establishes that Infant Chasson did in fact breathe after separation from his mother, even if only for a few minutes, are you telling this court that child after birth was never a ‘person’ in any sense of the word?”
The witness glanced at Judge Morrow.
“Answer the question,” the judge said.
With a quick look at the defense table, Paul Strickner crossed his arms, leaned back, and said, “No prematurely born infant is a person with conscious awareness, or a separate identity. It cannot experience a meaningful life. But, do not attempt to put words in my mouth, Mr. Jacobs. In my opinion, the Defendant was correct in first and foremost focusing upon his patient, Miss Chasson, and that fact takes precedence over everything else at the time.
“I am saying,” Strickner continued, “that in the case of an infant that has not yet developed conscious awareness, there is no life to save. There is no ‘personhood.’ To believe otherwise is to diminish the woman’s right to make the choice in the first place.”
Peter gazed at the witness while seconds passed. Behind him, not a sound came from the courtroom. And then he turned to Judge Morrow and said that he was through with the witness.
Judge Morrow nodded, expressionless. He glanced at Vince McConnell and then said, “The witness is excused.”
Vince’s face was flushed as he slowly stood. He placed his hands flat on the table and looked at Calvin Morrow. He glanced at Vicari and the defendant nodded.
“The defense rests, Your Honor.”
Dooney leaned toward Peter as he sat down. “Was that the sound of a door creaking open that I just heard?”
“Yep.”
Judge Morrow looked at Peter. “Will the State have a rebuttal?”
Beside him he sensed Dooney’s excitement. The clock over the jury box read three thirty—the Gordys would have arrived by now.
He stood. “Yes, Your Honor. The state calls Dr. Stephanie Kand.” He’d use up the rest of the afternoon with Dr. Kand’s defense of her earlier testimony. Hopefully, by the end of the day the Gordys would have arrived from Cincinnati, and Mac from Chicago.
“We’ll take a ten-minute recess,” the judge said. He glanced at the clock. “We’ll resume at three thirty.”
50
During the recess, Peter and Stephanie Kand waited in the witness room down the hall from the courtroom. Stephanie grabbed a glass and filled it with ice and water, then threw herself into a chair. “How long do you think this will take?” She looked at Peter over the glass.
Peter raked his hand through his hair and perched on the edge of the sideboard. “Not long. About forty-five minutes.” And then, he’d have to face Morrow’s wrath when he told him of the witnesses he intended to call tomorrow.
“Let’s go over your earlier testimony and George Barnett’s and see what we need to cover. We’ve still got a few minutes.”
Stephanie nodded and moved her chair closer to Peter’s chair. “Right. Let’s start with Barnett’s finding of the cause of death, accidental death.” She pursed her lips. “Natural death, my eye. And after that, I’d like to go over his conclusions about the development of the baby’s brain. He’s confusing what is, with what could be.”
Stephanie Kand was effective in her rebuttal of the conclusions of the defense witness, George Barnett, Peter thought, although Morrow had showed no sign of particular interest. During Dr. Kand’s testimony the judge had stretched back in his chair with his hands clasped behind his neck and stared at the ceiling.
Could be, he was bored.
Or, could be he’d already made up his mind.
But the judge hadn’t heard the story of Abby Gordy yet, either, Peter reminded himself. He stood by the prosecution table watching Stephanie Kand as she walked back through the railing gate and up the aisle to the exit door. It was four forty-five. Now was the time to confront Morrow.
Morrow roved over the courtroom. “This is as good a time as any to stop for the day.” His eyes stopped on Peter. “What’s our schedule look like for tomorrow, Counsel?”
“Here we go,” he muttered to Dooney. “May we approach the bench, Your Honor?” he said.
Morrow eyes roved over the courtroom. “That was a simple question.”
“We need to discuss it, Judge.”
“Come on up.”
Peter rose along with Dooney, and Vince McConnell, and the three of them walked toward Judge Morrow.
“The State will call two witnesses in rebuttal tomorrow morning, Your Honor.” Alice and one of the Gordys. He’d have to meet the parents before he decided which one.
Morrow’s eyes narrowed.
“New witnesses?” Vince turned to Peter. “Are they on your list, or were you saving them for a surprise?”
“They’re not on the list.” Ignoring Vince, Peter kept his eyes on Morrow. “We’ve been looking for one of them for months, not knowing if she was even relevant. Just found her. We only learned about the existence of the other one two days ago.”
“Two days would have been better than no notice at all, Mr. Jacobs.” Judge Morrow crossed his arms over his chest, the billowing sleeves flowing into a waterfall of black cloth.
“This is rebuttal, Your Honor. The evidence was speculative until the defense presented its case.” Peter cut in. That was a stretch, but it would have to do for now. “One is from out of town.”
“Your Honor, this is outrageous,” Vince said, his voice rising, his face turning red. He shot Peter a look. “The defense knows nothing about these witnesses. We’ll have no time to prepare.”
“Pipe down,” Morrow snapped.
“My client is under great stress, Your Honor. His business has been closed for months, his reputation ruined. No new issues were raised by the defense. Nothing to justify these tactics.”
“I’m inclin
ed to agree with Mr. McConnell.” Morrow nailed Peter with his eyes. “We’ve got a schedule to keep—I’ve got a full docket to consider.”
“Excuse me.” All heads turned toward Dooney.
Peter hid his surprise.
She looked up at Judge Morrow. “Your Honor, I find it hard to believe defense counsel’s statement that the witness testimony this morning presented nothing new when his own witness suggested that there is no possible way for a twenty-four-week-old infant born alive after an induced labor abortion to survive in any ongoing, meaningful way, and that therefore the infant is not a person . . .” She paused, took a breath, and spread her hands, “Ergo . . . killing the living breathing infant is not the same as killing a person. That is a new claim that the State must rebut.”
Morrow looked at her and then looked off. He shook out his sleeves and flopped his arms down on the desktop and looked at Dooney again. “You do make a point, Miss Dorothea.”
Dooney flushed. It was unusual for Morrow to remember a young ADA’s name at all, even if only her first. The judge picked up a pen and rolled it between his hands, looking down. After a beat he put down the pen and turned to Peter.
“We’ll reconvene tomorrow morning at nine sharp, Mr. Jacobs, at which time you may call your witnesses.” His eyes narrowed and the corners of his lips turned down. “If the evidence addresses new issues raised by the defense in rebuttal, we’ll hear it before deciding whether it’s admissible.”
Vince exclaimed and Morrow turned to him. “If the evidence turns out to be inadmissible, Mr. McConnell, the court will not consider it when rendering the verdict.” He spread his hands. “You’ll have your cross-examination. And, no jury—no prejudice.”
Vince muttered something under his breath.
Morrow put his hand behind his ear, and leaned slightly toward Vicari’s lawyer. “What did you say?” His tone was malevolent.
Vince’s response was quick. “Nothing, Your Honor.”
Morrow gave him a long look. Then he turned to Peter. “But I don’t like tricks in my courtroom. New witnesses brought in at the last minute had better be addressing testimony that hasn’t been worked over in this courtroom for the past week.” He lowered his brows. “Or you’ll regret it. I’ll be on the bench in this courtroom for a long time, Counsel, as long as you’re around.”
Accidental Life Page 32