by David Carnoy
It begins raining around eight. The gray dreariness of the day seems completely appropriate, a sign of his plight, and when he looks outside all he can do is shake his head and say, “Just perfect.” But as dismal as the day seems, all is not totally bleak. Due to the poor weather, the usually crowded Peninsula Creamery in downtown Palo Alto is only half full, and he’s able to secure a booth in his favorite spot, near the window—a positive omen, he thinks.
Aggressively quaint yet thoroughly modern, Palo Alto’s picturesque downtown is a small grid eleven blocks long and five wide that contains everything from fast-food joints to trendy eateries with French and Italian names, to boutiques and art galleries. Trees line the streets and parking can be hard to find, especially on weekends when University Avenue, the city’s main drag, gets an influx of out-of-towners dropping in on their way to and from Stanford Shopping Center, the other nearby shopping mecca.
Carolyn arrives fifteen minutes later. He looks up from his coffee and newspaper and there she is, standing over him, smiling, a small wet umbrella held out away from her jeans, dripping.
“Hello, Ted.”
They look at each other a moment, each seeming to gauge how the other has faired against time.
“Hello, Carolyn,” he says, getting up and kissing her on the cheek.
Whenever he runs into an old girlfriend he always wonders why he’d broken it off with her. Invariably, she seems attractive, and usually more attractive than he remembered. For a brief moment he forgets about all the things that had bothered him and returns to that initial impression he had—that initial thing that had attracted him in the first place.
Carolyn is attractive. She has a dark Mediterranean complexion and dark, fine hair that she tends to wear up in a bun, like she’s wearing it now, with strands left hanging over her ears and a few over her forehead. Her eyes, also brown, are a little too small for her face, and she borders on taking too much sun, but he always liked how she put herself together. She tries to present a restrained, conservative image, but there are hints of a wilder, more passionate side that becomes even more apparent with a few drinks. He’d always thought she was sexiest when she was a little sloppy, when everything wasn’t quite tucked in and her hair was tousled. He couldn’t think of anybody who could wear a run in her stocking better.
They’d stopped seeing each other for a basic, mundane reason: he’d been unwilling to go to the next level, whatever that was. She’d broken it off with him, but he’d convinced himself that she’d really been bluffing and that he could have had her back if he’d made the effort. And he might have (or so he told himself) had her timing been better.
Sometime during their fifth month of dating she called him at work and asked him to come over that evening “to talk.” He could tell from the tone of her voice that she was in action mode. Things weren’t going exactly as she wanted them to go, and now she was determined to right the course or abandon it altogether. The problem was he hadn’t gotten much sleep over the previous week. He’d been working on a difficult case—a patient was boxing on him after a lung operation—and trauma had been unusually busy. So he asked her whether she could hold off for a couple of days until he was less stressed and more clear-headed. But she insisted they talk, she had her mind set, and they ended up breaking up over the phone.
“I’m not sure it’s a good idea we see each other anymore,” she said after he pressed her to reveal what she wanted to talk about. “I just don’t think this is going anywhere, Ted. What do you think?”
“Let’s just do it,” he said. “Let’s just get it over with.”
They saw each other again, of course. They’d even slept together. But he could never forgive her for that day—he couldn’t bring himself to forgive her for being so thoughtless. Maybe it was just an excuse. That’s what Trish had said. But even if it was an excuse, he thought it was a good excuse.
Looking at her now, he still thinks it was a good excuse, but it takes him longer to remember. How old is she? They’d dated two and a half years ago, so that would make her what, thirty-four or thirty-five? Holding up well, he thinks. He wants to compliment her, but at the same time, doesn’t want her to get the wrong impression. He decides on a perfunctory tone: “You look great—as usual.”
Her reply is equally perfunctory. “Thanks,” she says, angling into the booth across from him. “Here comes the waitress. I’m dying for a coffee.”
They order; she takes an omelet, he the bagel and lox platter. Another server pours them coffee from a retro, silver coffee pot—a touch for which The Creamery, a 1950s-style diner that has an Art-Deco-meets-techno veneer, is known. Everything in the place seems to be either steel colored or black, except for the servers’ T-shirts and the napkins, both of which are white. Empty, the room may have seemed cold and sterile, much like the trauma room. But filled with people the coldness is replaced by a sort of hip casualness. It’s a place where you feel you can say profound things in a few words, effortlessly. That’s what he’d once told Reinhart anyway. And on other days, under different circumstances, he might have been effortless. But today he finds himself laboring uncomfortably as he sets out to tell Carolyn what had led him to call her yesterday in a panic.
He starts from the beginning—from the time the girl came into the hospital—to the time the detectives showed up. She listens to him almost without commenting. Every so often she asks him to clarify something. She has a little trouble at first telling Kristen and Carrie apart, and it doesn’t help that he’s a little loose with his pronouns. But aside from a few interjections, she doesn’t challenge him and reserves her judgment, even when he tells her he let the girl spend the night at his house. She just nods, takes a sip of orange juice, and goes back to eating.
After he finishes, there’s a short silence. Then she says, “Why would the girl write and then tell her friend that she had sex with you, when she didn’t? And why would the friend say she saw you having sex?”
He can’t tell from her tone whether she believes him or finds his story hard to believe, and it bothers him that he can’t.
“I have no idea,” he says.
“In all your dealings with her, she seemed like a nice, sane, stable sixteen-year-old girl?”
“Except for being accident-prone, yeah.”
She nods. “You said she was attractive.”
“She was.”
“How attractive?”
He thinks about it for a second, forgetting both the animosity and sadness he has for the girl. “On a scale of one to ten she was about an eight, though she didn’t think so. But if she’d decided to stick around, she would have been a knockout by senior year.” His eyes become emotional with the thought. “I know she would have. I know these things.”
The waitress comes. Carolyn doesn’t say anything as she clears their plates. She just sits there, observing him. He can’t tell what she’s thinking. But she’s wearing one of those well, I see you haven’t changed grins. I see the same old Ted is alive and well. And she seems glad he is. But then she remembers why they are here—or he thinks she does—and the smile fades and she suddenly says, “Oh, I have something for you. You should see this.” She reaches into the back pocket of her jeans and fishes out a folded-up piece of paper.
The San Jose Mercury had done an article on the detective who’d come to see him, Henry Madden. “Handicap Doesn’t Slow Detective in Race to Catch Criminals,” the headline reads. It’s an actual photocopy of the article, not something that had been pulled from the Internet or LexisNexis, the research service.
“Look on the second page,” she says. There, at the top, she’d highlighted a certain paragraph. Half-mumbling, he reads it aloud:
“When asked why he was drawn to detective work, Madden reveals that his motive is partially personal. As a boy, while being treated for polio, a physician sexually abused him. He says that he was unable to confront the truth for many years, until he confided in a fellow officer who was working on a similar case. He r
egrets not saying anything earlier, for it could have prevented the physician, who was only brought to justice when Madden was in college, from abusing other patients.”
“Jesus,” Cogan says after skimming the rest of the piece. “The guy’s doing his therapy in the papers. What did people think of this when it came out?”
“In my office?”
“In general.”
“I don’t know. I think it was part of the department’s attempt to give cops a human face. It was a few months after those Hispanic kids got beat up in Redwood City. People looked at it pretty cynically. But Madden’s for real. He’s a decent guy. Well respected.”
He shakes his head, lost to a sudden rush of anxiety. “I’m done, Carolyn,” he says morosely. “I’m fucked. The guy’s clearly got a nasty chip on his shoulder for docs. I saw it in his eyes when he was interviewing me. He’s tried and convicted me already.”
She looks at him sympathetically—the first sympathetic look she’d given him the whole meal. She reaches out and takes his wrist and says, “Look, these cases are very difficult to prove. Yes, it’s unfortunate they have an eyewitness. But that’s far from a slam dunk.”
“No bullshit.” His tone is more confrontational than he intends it to be, but he’s nervous. It makes her pull back. “If you were a doctor,” he goes on, “what would you tell me? What would my prognosis be?”
She lets out a defensive laugh.
“I’m serious,” he says.
“I’m sorry. Do you want me to use medical terms?”
“Use whatever terms you’d like.”
She pauses and takes a breath. She appears as uneager to answer the question as he was uneager to ask it. “Well, from what you’ve told me, it looks like they have probable cause.”
“Meaning?”
“They can arrest you.”
“Why haven’t they already?”
She explains that they could have. But it’s possible they’re gathering evidence for a grand jury hearing. If they can get a grand jury to indict him, they can arrest and indict him at the same time. In some cases, they arrest the defendant, then go to the grand jury. But in delicate cases like this, prosecutors often go to a grand jury first to see whether they can get an indictment before arresting. If they can get one, it also means that the defendant won’t be allowed to testify at his grand jury hearing.
She says that as a former prosecutor, that’s how she’d proceed. “I wouldn’t want you speaking before the grand jury—a respectable, well-spoken guy who’s saved a lot of lives and is an upstanding citizen. It’d be a risk.”
“So where does that leave me?” Cogan asks, not quite sure whose side she’s on.
“I don’t think they’re going to arrest you in the next couple of days. They clearly don’t want to make it appear that they knew they were going to arrest you when they went to see you at your office.”
She explains that if they’d gone to his office, asked some questions, then arrested him, whatever he said could be thrown out in court. “I’d argue that, knowing they were going to arrest you, they should have read you your rights immediately.”
“And now?”
“Now I could still argue that your remarks should be thrown out. But at least the detectives could say they hadn’t gone to your office to arrest you; they’d gone just to question you. My bigger concern is that they’re trying to build a murder case against you.”
He stares at her, knowing he’s heard her correctly but wishing he hadn’t. “Murder? Why? Because I told her I couldn’t speak to her anymore?”
“No. That in and of itself wouldn’t be a crime. It’s very difficult to hold another person accountable for someone else’s suicide. Even if you’d been nasty to her on the phone and said she was fat and unattractive and that she had no reason for living.”
“Then what?”
“Well, the exception might be if you’d committed a crime previously that had impacted her. There’s something called foreseeable harm. You may not have intended to cause her to commit suicide, but by sleeping with an underage girl, the law says you knowingly inflicted an emotional injury. And if it could be proven that initial injury led to her suicide, you could end up with a manslaughter charge. You’d probably be looking at two-to-five.”
“You’re serious? That could happen?”
She nods. “That’s probably what Madden’s after.”
“Earlier, you said, ‘I would argue.’ Does that mean you want to represent me?”
She sits back in her chair, a look of anguish crossing her face. At first, she seems ready to say no, but then she bites her lip nervously and he knows she’s in. “If you want,” she says, “I’ll take it—in the beginning, anyway. I’ll make some inquiries, and we can see where things stand. I’ll do that as a friend. But only if you want me to.”
“Really, you’d represent me?”
She seems almost embarrassed. “What’s wrong with that?”
“Nothing. I’m just surprised. Surprised in a good way.”
“It’s an interesting case. I think any criminal lawyer would want to take it.”
“I’m not questioning your motivation.”
“If I had some strange illness that was in your area of expertise, you’d help me, wouldn’t you?”
“I’d do what I could. And if I didn’t think I could handle it, I’d get the best person I knew to handle it.”
“Just my point,” she says.
He doesn’t respond. He looks down and his eyes drift to the check, which the waitress has placed closer to him. He wonders how much this all is going to cost. Not the lunch, but the attorney fees. At least if Carolyn represents him, he thinks, his money, or part of it anyway, will go to someone he knows. Two and a half years ago, he’d been at Bloomingdale’s in the Stanford Shopping Center debating whether to spring for the two-hundred-dollar perfume ensemble or the four-hundred-dollar gold necklace for her birthday. And now he’s looking at handing her firm fifty grand, probably more. Go figure.
When he looks up again, she’s staring at him over her coffee mug. She’s holding it in both hands, taking little sips. He stares back at her, not liking her confidence. It can only mean one thing: she’s taken.
“Are you seeing someone?” he asks.
“Yes.”
“Nice guy?”
“I think so.”
“What will he—” Cogan stops himself.
“What will he what?”
“Nothing.”
He was going to ask what her boyfriend would think if he knew that she was going to represent him. But then he thought better of it. He didn’t want to give her the pleasure of answering.
“I should tell you something else,” he says.
“What?”
“I was close to taking another job.”
“Really?” She seems mildly surprised. “At which hospital?”
“Not at a hospital. At a venture-capital firm. A big one. The company has a number of biotech holdings. We’d just started talking numbers.”
Now she’s genuinely shocked—so much so that she doesn’t seem to know quite what to say. “God, I remember you talking about doing some consulting. I mean, you were going to . . . but I didn’t think—”
“Well, that’s what I wanted to do—dip my toe in the water before I made the big leap. But they want a full-time guy.”
“And you were close?”
“They made an offer. An attractive one.”
“I don’t know what to say, Ted. I’m sorry.”
He smiles and shakes his head. “You know, it’s funny. Business is all about risk and gain. Medicine is all about taking the safest course of action. They’re such different worlds. A businessman knows risk and knows he can lose or gain in a huge way. In medicine, if there’s a complication or a problem, you’re often asked by your peers, ‘Why did you do that? That was clearly the riskiest path to take.’ The mental set is completely different. In medicine, you’re chastised for taking the riskier path
. But in business, if you’re a risk-taker, you can really score.”
“Or really lose,” she says.
“Well, yes. But mistakes aren’t so frowned upon. They come with the territory.”
After he finishes talking, he looks her in the eyes, almost daring her to say something about why he’d let those kids into his home that night. Why had he taken that risk? Where was the possible gain there? He wants to explain to her that back then, he didn’t feel he had anything to lose. There was no new job sitting on the table that night. There was nothing.
She stares back, that faint smile of hers hovering ever so slightly on her lips. This time he doesn’t like it. It’s one of those smiles that an older woman bestows on a younger man when she’s charmed by his innocence. He hadn’t minded seeing it in his twenties, and even his early thirties, but now it only grates on him.
“So, when do you think they’ll arrest me?”
“I don’t know,” she says. “But the important thing is that you remain calm when they show up, especially if they do it at the hospital. Don’t say anything. I’m going to give you all my numbers. You can always page me. If I can’t come right away, I’ll have somebody else come.”
He nods, clenching his jaw, suddenly reminded of the blunt Chinese doctor, Dr. Liu, who told people they were going to die. He looks out the window of the restaurant, depressed. Outside, it’s still pouring, and there’s a BMW sitting at a stoplight, its windshield wipers going full blast. With each swipe of the wipers, he hears the good doctor’s voice. You have lung cancer, you are going to die. You have lung cancer, you are going to die. The blades are like metronomes.
21/ BLUE FORD
April 11, 2007—6:03 p.m.