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Indefensible

Page 18

by Lee Goodman


  • • •

  Toby, my infant son, had learned to sit up on his own. He sat up, then he fell and bumped his head. No big deal for a normal kid, but for one with hemophilia A, it’s life-threatening. We’d been to the hospital a lot with Toby. They knew us; they knew Toby. Dr. Wallis would meet us there. He was ancient—his eyebrows reminded me of weeds erupting through the cracks in a playground. He’d trained as a doctor in the thirties and developed his ethic (if you could call it that) in the post-industrial brave new world where, a continent away, plans were in the works for an untainted race.

  “The hidden defect,” Dr. Wallis called it. I remember our first appointment after Toby was born. “Such a short and painful life he’ll have,” the doctor said, and the eyebrows dipped, convincing us that his grief was almost as great as our own. This was his theme every time we sped those forty miles to the hospital. A short and painful life. “With any mercy, it won’t draw out too long.”

  There was no Internet then. We lived in the north woods, near a town where the public library was the size of a one-car garage. Dr. Wallis was beloved in town. Trust Doc, everybody said.

  We brought Toby to the city. Not so short, not so painful, they said, but back home, under Doc’s compassionate honesty, Flora was convinced that the urban doctors were too timid to deliver honest news.

  Flora had always been a searcher. Intelligent but mistrusting of her own instincts, as some girls are raised to be. She was a disciple in search of her guru. In the early months of Toby’s life, Flora lived in a state of fear and exhaustion and desperation. Increasingly, through Toby’s short life Flora found her answers in the bottomless compassion of Dr. Wallis’s sad eyes.

  Toby fell over and bumped his head, as babies do, and Flora, giving the gift that Dr. Wallis had said only she could give, didn’t call an ambulance or rush him to the hospital. Instead, she sat him on her lap and rocked him on his way to a happier place.

  As for me, I’d only recently taken over as district attorney and didn’t even have an assistant yet. I worked ceaselessly. I’d entrusted Toby to Flora, who’d been trusting Dr. Wallis. It never occurred to me not to trust Flora. I should have seen it in her, though—her vulnerability. We thought the disease was the evil, but it turned out the real evil was Dr. Wallis, who beguiled Flora. You can be vigilant against foreign evils, but it is the evil under your own roof that escapes notice. Flora might as well have opened our door to an ax murderer, inviting him in to slay us all. With Toby dead, with grief amuck in my soul, I focused my fury on Flora. I did what I do best: I prosecuted.

  Failing to provide a seriously ill child with medical care is a crime: I charged Flora with criminal neglect and involuntary manslaughter, but the case didn’t last long. The state attorney general’s office took over and quickly dismissed the charges. “We can’t win this, Nick,” the AG told me on the phone. “Remember the religious exemption. If she was treating him with prayer, then the law doesn’t require her to call a doctor.”

  “She’s never prayed a day in her life,” I answered.

  “If she says she was praying . . .”

  “Put her on the stand, she won’t lie.”

  “Think about it,” the AG said. “This isn’t something you want to be involved in. Think about your future.”

  “Fuck my future.”

  “Then let me put it this way. It’s not something I want the Department of Law involved in. We’re not prosecuting.”

  • • •

  Maybe I could have forgiven Flora if it had been more clear-cut, if she’d been more clearly wrong, if she’d been more decisively coopted into Dr. Wallis’s cruel view of humanity. But as the attorney general argued to me that day, nobody could say for sure that Toby would have lived if he’d made it to the hospital. People remind me of this as if it’s supposed to be a comfort, as if it vindicates Flora’s decision, but I see it differently. The uncertainty has left an emotional labyrinth with no exit. I don’t know whether I’m supposed to forgive her for essentially killing our son, or for failing to believe in miracles.

  CHAPTER 31

  I’m not wearing a tux. TMU pretends to be angered, but he doesn’t care, because it’s not that kind of city. The mayor is here (red bow tie, no tux), and the governor was invited, though he won’t show. It’s an invitation-only reception, but anybody who wanted an invite got one.

  We’re upstairs above the Rain Tree in what was recently the abandoned and cavernous production floor of Rokeby Mills. Now it’s a convention center. The side facing the river is all windows, framed in the bright trim of local pines. The room is multilevel: You step down into the several wombish semicircles with built-in sofas for looking out at the river as you sip cocktails in a happy glow of economic upturn and architectural preservation. You go up a step to the bar and buffet areas. Standing here, I can see the North Woods brewery down on the floodplain where, just five years ago, four hundred golden Guernseys wallowed.

  TMU insisted I come. He wants me out shaking hands and, with any luck, getting my smiling mug in the news. He has also brought along Pleasant Holly, my equivalent in the civil division of our office. Pleasant is pleasant. She has been on the job only about six months, but so far, we’re all impressed. Tina is here, too. I invited her, but she’s circulating in the crowd while I’m staying close to the bowl of shrimp.

  Hollis Phippin is here. I catch sight of him standing in one of those lounges by the window. I’d like to pretend I don’t see him, but he’s already spotted me, so I walk over to say hi.

  He grabs my hand and shakes robustly. “I have to admit, I’m kind of flattered, Nick,” he says.

  “How so, Hollis?”

  “That the FBI finds me a credible suspect in Scud Illman’s murder. Did you know they came by for a conversation?”

  “I heard something about that.” To change the subject, I say, “Are you connected to the Rokeby project, Hollis?”

  “Oh, you know,” he says, “everyone’s involved somehow; it’s not that big a town.” The cheerfulness leaves his face in a flash. “Tell me what you think, Nick. Is the one who killed Zander still out there?”

  “We believe so, Hollis.”

  “And the Illman character, couldn’t he have shot my son and a deer in the same night?”

  I tell Hollis about my midnight drive to the reservoir.

  There is a commotion: Two of the regulars from the vets’ table down in the Rain Tree roll Steve in his wheelchair off the escalator. All three are laughing. Steve’s helpers are in coat and tie. One looks respectable. The other has a face of busted capillaries and big blackhead-infested pores, and he beams his yellow-toothed smile at the watching crowd. “Damn near let him roll back down.” He laughs, then he and Steve do a quick high five, and Steve rolls over to the no-host bar.

  “It’s all in violation,” Hollis says. “The elevator won’t get installed for at least six months. Maybe a year. The place shouldn’t even be open. You could shut us down, you know, Nick. I think you should. Shit, Steve there, he could sue . . . HEY, STEVE!”

  Steve doesn’t hear him.

  Apparently, Hollis downed a few more drinks than I realized. He turns back to me. “Tell me which is worse, Nick. Us putting millions—twenty-two-point-five million, to be exact—into this worthless pile of bricks, and leaving out the elevator so American heroes whose legs got blown off by Richard Nixon can’t get in without their drinking buddies pushing them up the escalator. That or my son, Zander, selling a little pot. Which is worse?”

  “Well, Hollis, I—”

  “I’ll tell you which. The pot. You know why? I’ll tell you why. Because boys are supposed to come to their rich daddies for tuition. Do you know why Zander didn’t come to me for tuition, Nick? Do you?”

  “No, Hollis.”

  “Because I’m an asshole. So if you want to know who killed Zander, Nick, I’ll tell you. I killed him. I didn’t kill Scud Illman, though I appreciate the vote of confidence. Tell you what, though. When you do figure ou
t who pulled the trigger, you let me know. I’ll try to justify the confidence you guys have in me, okay? I’ll go blow his fucking head off. Now, if you’ll excuse me, I’m going to go find Steve and tell him if he wants to sue me and all the other assholes involved in violating his rights, he can count on my support.”

  Hollis walks away. His suit is conservative and distinguished, with perfect pant cuffs and just a touch of narrowing in the waist. From behind, he looks youthful except for the graying hair. He stumbles sideways, recovers, and disappears into the crowd.

  I get another drink and go stand beside Tina. She tugs at my sleeve affectionately. “There you are.”

  “Here I am.”

  “You having fun?”

  “I like shrimp, and I like beer. You?”

  “I hate artichoke dip.”

  “We could leave.”

  “Soon.”

  TMU finds us. “Excuse us, Tina, I need Nick for a minute,” and he steers me by the elbow to the coat alcove. I expect a strategy session about my prospects for making the short list. But when he turns toward me, his face has lost its clownish rumple. His eyes are fierce. He says, “I asked you if there were skeletons, Nick. You assured me there weren’t.”

  “There aren’t.”

  “There are,” he says, “because I’d call being sued for malicious prosecution a skeleton, wouldn’t you?”

  I don’t answer. I stare into his wounded eyes—watery old-man’s eyes, eyelids red and creased with the wear of his seven-plus decades, but still accusing, still sure. I have the pleasant notion of smashing his self-righteous glare with murderous fists—letting his despicable smugness ooze out across the floor in rivulets of blood. Of course it isn’t my beloved mentor Harold Schnair who stands before me, but Dr. Wallis himself. I see Doc’s sad eyes, Doc’s smugness, Doc’s face that I would happily pound into unrecognizable pulp. How fitting that, having taken my wife and son, Dr. Wallis will take from me the seat on the U.S. Circuit Court of Appeals.

  “Let’s hear it,” Harold says. “Maybe we can do some spin.”

  When I was a district attorney up north those many years ago, I was generally immune from being sued by anyone I prosecuted. Malicious prosecution is a lawsuit brought against a prosecutor by a defendant. Usually, such cases are dismissed outright. In fact, the disgruntled defendant usually can’t find a lawyer willing to sue, because the cases are losers. You have to show that the prosecutor was not just wrong but that he was twisting the system to his own purposes. So long as any charge I filed was supported by a shred of evidence, then the people I prosecuted, guilty or innocent, couldn’t touch me.

  What happened was that after Toby’s death, I charged Dr. Wallis with conspiracy to commit child abuse and manslaughter. Normally, to arrest a respectable geezer like the doctor, you’d approach him after-hours and ask that he accompany you to the station for booking and bail. It is discreet and respectful. But he deserved no respect. I brought in the troopers because the sheriff wouldn’t do it. We took the doctor from his office in the middle of town, in handcuffs, at midday.

  There was no question about what he’d done: He’d convinced an anguished mother not to seek medical help for her desperately ill son. He proudly admitted it. I could even show a pattern of behavior. Other parents of chronically ill or disabled kids told similar stories. My case failed on the question of whether what he did was illegal. The judge, a cautious man whose own kids had been delivered by the doctor, said Dr. Wallis did nothing illegal. He said Doc gave medical advice as best he could. Whether or not it was good advice didn’t concern the court. The charges were dismissed immediately, and then Dr. Wallis had the audacity to turn right around and sue me for malicious prosecution. He wanted $5 million or alternatively, one dollar and a public apology. Naturally, the state wanted me to apologize, because they’d be on the hook for $5 million, as well as having to defend me. I refused.

  Ultimately, the doctor and the state settled. I wouldn’t have anything to do with it.

  I tend to look back on it as my victory because, though Dr. Wallis had his loyalists in town, many of the younger and more educated families in the area quit the doctor and had their medical files sent over to the new clinic at the hospital forty miles to the south. When the state licensing board performed an investigation of its own, they decided in a split vote that he was fit to practice.

  So when TMU asked me if I had any skeletons in the closet, I didn’t even think of this.

  “I guess it’s not so bad,” TMU says when I finish explaining. “You didn’t lose, you settled. And if it becomes an issue, it’s got fabulous spin potential: senile old doctor; aggrieved father defending the rights of sick children, inept small-town court system. We can make you a regular folk hero . . . again.”

  Harold has his joviality back. He is convinced that I didn’t deceive him on purpose.

  At the elevator, Tina takes my arm. We descend and drive toward our office. “What if you get this thing?” she says, meaning the seat on the circuit court.

  “Don’t be ridiculous,” I say. I’m not being honest, because professionally I’ve always had good luck, and I expect to get the appointment. It would be consistent. Jobs have fallen into my lap, things have come along at the right time. One thing that came at the right time was Dr. Wallis’s stroke. It was a couple of weeks after they settled the lawsuit: a massive stroke, dead within days. It was good timing because it saved me from killing him, which I wanted to do. The criminal justice system had failed me—ironic, seeing as I was the system in my little corner of the woods—so I decided to resolve things. Because TMU’s analysis is wrong: There was nothing senile about Dr. Wallis.

  The question isn’t so much whether Toby would have survived if Flora had rushed him to the hospital. I’ve looked into it, and I believe he would have. The bigger issue for me was that Dr. Wallis wanted a world without boys like Toby. He didn’t believe in medical heroics and in nurturing the weak. He believed in removing them. No, he wasn’t senile. He was cogent, he was sharp. He was a monster.

  Shortly after Toby’s death, an untraceable handgun found its way into my possession, and my toes wiggled over the cliff edge of criminality. Then the doctor died of natural causes, and though I had wanted to kill him, no crime was committed (except for how I got the gun, which, in the scale of things, was tiny).

  Most guilty thoughts never give rise to action. For a prosecutor, guilty thoughts without a guilty act are irrelevant. The only way to survive this work is to lean in to it, eyes on the soil, and trudge. It’s not my job to ask how come when crimes don’t get committed, just as it’s not my job to ask how come when they do; woe unto the prosecutor who keeps his own set of scales. I’m a lawyer, and my client is the government. It is a government of laws, and I’m an obeyer of laws. I’ve sworn an oath. And though I once had guilty thoughts of killing Dr. Wallis, it spawned no guilty act. No crime was committed.

  Now eyes on the soil. Trudge.

  • • •

  Tina and I take my Volvo back to the office so she can get her car. “Where’s Lizzy tonight?” she asks.

  “Flora’s,” I answer. Other than that, we ride in a silence made notable by throat clearings, yawns, and my mumbled responses to small traffic events. (“Oh shoot,” I whisper when the stoplight up ahead goes yellow.)

  It is in the air. It. Two adults arriving at the same place in life at the same time.

  “Mmm,” she says, her head resting back against the seat, eyes closed for a few seconds. What she means by “Mmm” is that the car is warm, the tummy is full of shrimp and beer, the hour is late, the night is long, and the soul—aching to believe in something that, time and again, has been proved impossible—is willing to take a chance.

  We idle at the intersection. This thing with Doc Wallis: I’d like to tell Tina about it, but anything I say would leave too much unsaid. I don’t have the clarity to find words right now. I wish the light would just stay red.

  “It’s green, Nick,” she says.
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  “So it is.” I pull into the empty parking garage, spin up to our floor, and pull in jauntily beside her car. “That was fun,” I say. “I wish I didn’t have so much work to do before tomorrow.”

  Off we go in separate directions, she to her home, me to my office.

  • • •

  They say grief can quickly corrode all the supports that keep a marriage upright. It’s common for couples to split following the death of a child. Is it also common, I wonder, for the divorce to fail as monumentally as the marriage did? Because Flora and I have failed at our divorce: We’re twenty-plus years out, and both of us are single. Flora lives in a second childhood of discombobulation and fiercely guarded naiveté. And me; well, didn’t I just send Tina packing for no good reason? Go figure.

  Alas, Flora and I are much too entangled to get far apart. I need her near me because I keep hoping she’ll forgive me for trying to throw her ass in jail. It’s the same for her: She sticks around hoping I’ll absolve her for not trying to save our son. The confounding truth is that we’re both barking up the wrong tree. The forgiveness each of us craves, which we probably will never get, would come not from the other but from ourselves. I’m afraid that the result of all this is that as the years go by, we’re more and more like an old married couple, except for the fact that we’re not so old, not married, and not a couple.

  CHAPTER 32

  It’s late. I make a complete survey of the criminal division offices to ensure that I’m alone. I am. In my office, I check my voice mail. The only message of note is from Chip: “Nick, you promised me the other day that you’d call. I really, really need to speak with you, preferably here at my office. Call.”

  I delete the message. Chip was acting strange the day of the meeting over in the FBI’s conference room. I’d rather not talk to him until I’ve done a little poking around.

  I walk out of my office and close the door. I’ll miss this office if TMU does maneuver me onto the circuit court bench. I wonder who will replace me. Either they’ll hire from outside the office, or Upton will get the job because none of the other assistants has the gravitas to land the seat. Tina, for example: smart, ambitious, good at what she does, but what she does is try cases. Same with the others. Only Upton, in his invisible way, has made himself seem “greater than.” And TMU likes Upton. It’s a natural fit.

 

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