The Jodi Picoult Collection #3

by Jodi Picoult

  I realize, suddenly, that everyone is a liar. Memories are like a still life painted by ten different student artists: some will be blue-based; others red; some will be as stark as Picasso and others as rich as Rembrandt; some will be foreshortened and others distant. Recollections are in the eye of the beholder; no two held up side by side will ever quite match.

  In that moment, I want to be with Sophie. I want to take off our shoes and run through the red sand; I want to hang upside down from the monkey bars with her. I want to listen to the jokes she makes without punch lines; I want to feel her sidle closer to me when we come to a street crossing. I want to make new memories instead of search for old ones.

  “I have to go home,” I say abruptly. My mother gets to her feet, but I say I will let myself out. She hesitates, unsure, and then leans forward to kiss me good-bye on the cheek. We don’t quite connect.

  I head through the side gate and walk along the crushed stone path toward my car. I have just unlocked the door when a truck drives up. Victor steps out, and we stare at each other, palpably uncomfortable. “Delia,” he says. “I didn’t do what he said.”

  I look at him, then open my car door.

  “Wait.” He pulls off his baseball cap and holds it in front of him. “I never would have hurt you,” he says earnestly. “Elise couldn’t have children—I knew that—and it was a blessing that she already had one I could share. I know you can’t remember, but I can.”

  He is looking right at me with his solemn, dark eyes; his mouth trembles with his conviction. I try to imagine following him around as he plants, dropping small white stones in mounds around the cacti. I begin to hear, in my mind, the names of some of the flora and fauna in Spanish: el pito, el mapache, el cardo, la garra del Diablo—woodpecker, raccoon, thistle, Devil’s Claw.

  “You were like my daughter, grilla,” he says, uneasy in the silence. “And I loved you like a father, nothing more.”

  Grilla.

  I am watching him plant the lemon tree. I’ve gotten tired of dancing around it. I want to make lemonade, already. How long will it take? I ask him. A while, he answers. I sit down in front of it to watch. I’ll wait. He comes over and takes my hand. Come on, grilla, he says. If we’re going to sit here that long, we’d better get something to eat. He swings me up onto his shoulders. He clasps the backs of my legs, to steady me. His hands are butterflies on the insides of my thighs.

  With trembling fingers, I fumble for the latch of the car door. “Delia?” Victor asks. “Are you all right?”

  “That word: grilla,” I say, my voice coming out a faint whistle. “What does it mean?”

  “Grilla?” Victor repeats. “Cricket. It’s a . . . how do you say . . . term of endearment.”

  From a distance, I feel myself nod.

  * * *

  It’s not a surprise to find Eric asleep; it is only nine in the morning. I find him on the bed inside the trailer, with the empty bottle beside him. He is naked, wrapped partly in a sheet.

  I reach down and pull it off him. He scrambles upright, wincing when the light falls into his bloodshot eyes. “Jesus Christ,” he murmurs. “What are you doing?”

  For a moment, it is three years ago, and this is one of the hundred times that I came into a room to find Eric after a night of drinking. Back then, I would have put on a pot of coffee and dragged him into the shower. Three years ago, I had a whole host of techniques for immediate sobriety. And yet none of them ever got him to react as quickly as the method I employ today. “Eric,” I announce, “I remember.”

  X

  “Memory is the only way home.”

  —Terry Tempest Williams, as quoted in Listen to Their Voices, Chapter 10, by Mickey Pearlman (1993)

  Eric

  Memory has had a spotty record in the United States court system. For a while, recovered memory was all the rage—adults went to therapists, who planted seeds for trauma that didn’t really exist. Hundreds of people came out of the woodwork to accuse child-care workers of abuse and Satanism, and their recollections were allowed as evidence and treated as fact. In the mid-nineties, however, the tide began to turn. Judges steered clear of recovered memories, saying they weren’t valid unless they were supported by independent evidence.

  We happen to be twenty-eight years late for that.

  Still, it’s new evidence, and I’ll be damned if I’m not getting it in. Delia has given me a list of the memories, the ones that are coming fast and furious now that the wire has seemingly been tripped: the lemon tree, in its entirety. A pair of boxers Victor used to own with blue fish printed all over them. Having him sit on the edge of her bed and lift her nightgown to rub her back. Victor asking her to pull down her underwear and touch herself.

  I have to treat it the way I would any other evidence. If I think too hard about it, I want to kill someone.

  I send Emma flowers at the birthing center of the hospital. The card reads “Delia has started to remember the abuse. Consider this notice of my intention to bring these memories into the trial.” Two days later, she moves for a 702 hearing, to address the scientific reliability of the evidence.

  We are in the courtroom, but it’s a closed hearing, just the judge and the attorneys; no media or jury. Emma wears a maternity dress, but it’s pouchy and bunched at the stomach.

  Alison Rebbard, Emma’s expert witness, is a memory expert affiliated with a string of Ivy League universities. She has a thin face accented by pink, wire-rimmed glasses, and she’s used to sitting in a witness box. “Dr. Rebbard,” Emma asks, “how does memory work?”

  “The brain can’t remember everything,” she says. “It just doesn’t have the storage capacity. We forget most of what occurs, including events that were probably significant at the time. Now, the things that do stick . . . well, they aren’t like images on a videotape. Only minimal bits of information are recorded, and when we recall it, our mind automatically fleshes out the recollection by inventing details based on previous similar experiences. Memory is a reconstruction; it’s contaminated by mood and circumstance and a hundred other factors.”

  “So, a memory might change over time?”

  “It most likely will. But interestingly, it seems to retain its mutations. Distortions become part of the memory in subsequent recalls.”

  “Are some memories true, then, while some are false?” Emma asks.

  “Yes. And some are a mixture of books we’ve read or movies we’ve seen. One of my studies, for example, focused on children at a school that was attacked by a sniper. Even the kids who weren’t on school grounds at the time had a recollection of being there during the attack . . . a false memory that was probably inspired by the stories they heard from their friends and on the news.”

  “Dr. Rebbard,” Emma asks, “is there a general agreement about when a child is capable of retaining traumatic memories?”

  “Overall, we say that events that happen before age two won’t be remembered past childhood; and memories before the age of three are rare and unreliable. Most researchers believe that serious abuse after the age of four will be remembered into adulthood.”

  “Delia Hopkins has not been seeing a therapist, but has been experiencing recovered memories,” Emma explains. “Would that surprise you?”

  “Not given what you’ve told me about this case,” Dr. Rebbard says. “The preparation for this trial and the testimony itself would force her to relive hypothetical scenarios. She’s wondering why her father might have taken her; she’s wondering if there was something in her past that might have precipitated it. It’s impossible to tell whether she’s actually remembering these things or if she only wants to remember them. Either way would explain a period of her life she doesn’t understand, and would most likely vindicate her father’s behavior.”

  “I’d like to address the particular memories that Ms. Hopkins claims to have recovered,” Emma says, and I jump up.

  “Objection,” I say, “this hearing is only about admissibility, Your Honor. It would be pr
emature to have the State’s expert judge the reliability of memories without hearing the actual testimony of the memories and how the witness experienced them.” Or in other words, you have to let my evidence in first.

  Judge Noble looks at me over his half-glasses. “Is Ms. Hopkins here to testify?”

  No, because she’s barely speaking to me.

  “Not today, Your Honor,” I say aloud.

  “Well, that’s your problem, son. We’re going to allow your offer of proof to stand as to what she might testify to in open court, and I’m going to allow Ms. Wasserstein to proceed.”

  Emma approaches the witness stand. “In the first alleged memory,” she says, “Ms. Hopkins remembers Mr. Vasquez wearing boxer shorts printed with blue fish. In the second alleged memory, Mr. Vasquez is coming into her bedroom at night and stroking her back. In the third, he asks her to remove her underpants and touch herself. Is this damning evidence, in your opinion?”

  “Often we’ll see a subject come to a therapist with a few disconnected traumatic images, sort of like bits of a black-and-white photo. These are what we’d call deteriorated memories.”

  “Isn’t it possible, Doctor, that Ms. Hopkins remembers seeing Mr. Vasquez in his boxers because, like every other child on the planet, she walked in on him in the bathroom?”

  “Absolutely.”

  “And what if the reason he was in her room at night was not to harm her, but to comfort her after a nightmare?”

  “Very plausible, as well,” Rebbard agrees.

  “And as for the third, what if there was a medical reason for the request—for example, if the child had a yeast infection and Mr. Vasquez wanted her to apply cream to the area?”

  “In that scenario,” Dr. Rebbard points out, “he’s going out of his way to not touch her. The point here is that we don’t have the whole memory, the whole story. Unfortunately, neither does Ms. Hopkins. She’s looking at a striped tail and screaming because it must be a tiger, when in actuality it might be a house cat.”

  * * *

  I don’t have an expert witness; I couldn’t have afforded one even if I’d had the foresight to find one. Instead, I’ve spent the past two days poring over psychiatric texts and legal briefs, trying to find what I can to trap the State’s expert during cross-examination.

  I approach Dr. Rebbard with my hands in my trouser pockets. “Why would Delia want to make up a memory that’s so painful?”

  “Because the fringe benefit outweighs that,” the psychiatrist explains. “It becomes a hook for the jury to hang its hat on, and acquit her father.”

  “Repression is defined as the selective forgetting of materials that cause pain, isn’t that true?” I ask.

  “Yes.”

  “It’s not a voluntary act.”

  “No.”

  “Can you explain dissociation, Doctor?”

  She nods. “When a person is in a state of terror or pain, perceptions get altered. Attention is focused on the present moment, and surviving. When attention becomes that narrow, there can be great perceptual distortion, including desensitization from pain, time slowing down, and amnesia. Some psychiatrists believe that removing the anxiety can lead to remembering what happened,” she adds, “but I’m not one of them.”

  “Even though you don’t believe it, however, dissociative amnesia is a valid psychiatric condition, isn’t it?”

  “Yes.”

  “In fact, the DSM-IV, the bible of psychiatric diagnosis, even lists it.” I lean down to the defense table and read aloud. “ ‘Dissociative amnesia is characterized by an inability to recall important personal information, usually of a traumatic or stressful nature, that is too extensive to be explained by ordinary forgetfulness.’ That seems to describe Delia Hopkins, doesn’t it?”

  “Yes.”

  I continue reading. “ ‘It commonly presents as a retrospectively reported gap in recall for aspects of the individual’s life history.’ Again, that’s a bull’s-eye.”

  “Apparently.”

  “ ‘. . . in recent years, there has been an increase in reported cases of dissociative amnesia that involves previously forgotten early childhood traumas.’ Bingo.” I look up at her. “This manual only lists diagnoses that have come from years of empirical data and clinical observation, right?”

  “Yes.”

  “And it’s considered a conservative document?”

  “Yes.”

  “You use this manual professionally, don’t you?”

  “Yes, but as an analytic tool, not a legal one.” She tilts her head. “Do you know when the DSM-IV was written, Mr. Talcott?”

  I freeze and scan the front of the book. “Nineteen ninety-three?”

  “Right. Before the rise of repressed memory therapy led to hundreds of false convictions of sexual abuse.”

  Ouch. “How does a triggered memory differ from a recovered memory, Doctor?”

  “There’s a school of thought that says memories of traumatic moments are just as abnormal as the moments themselves, and don’t have the same associations that other memories do, which means they’re harder to bring front and center in the mind. But by the same reasoning, trauma-specific clues might be able to trip those memories.”

  “So a triggered memory isn’t planted, so to speak. It really does exist, and has just been waiting for the right time to break free.”

  “That’s right.”

  “Can you give an example?”

  “A subject might hear a gun go off in close proximity, and then suddenly remember a gunshot years ago that killed his father when he was standing next to him.”

  “Isn’t it true that this scenario is closer to the way Delia Hopkins has recovered her memories, Doctor?” The psychiatrist nods. “And isn’t it possible, Doctor, that there is a place memory can go, until it’s ready to come forward again—for whatever reason? That recovering a memory might not be a re-creation but . . . a search-and-rescue mission?”

  The words remind me, of course, of Delia. “I suppose so, Mr. Talcott.”

  I take a deep breath. “Nothing further.”

  * * *

  Emma stands up again. “By the defense’s own reasoning, if Ms. Hopkins was recovering memories of traumatic childhood events when there was a trigger, such as courtroom testimony, wouldn’t it make sense that she’d react the same way to similar triggers?”

  “Theoretically,” Dr. Rebbard agrees.

  “Then why didn’t she have a barrage of recollections about her abduction?” Emma poses, as I object. “Nothing further.”

  I’m already approaching Dr. Rebbard again. “What if it wasn’t traumatic?” I ask.

  “I’m not sure I understand . . .”

  “What if, to Delia, the kidnapping wasn’t something frightening? What if she considered it a relief, a way out from the sexual abuse? In that case, Dr. Rebbard, a memory of the abduction wouldn’t have been triggered by her father’s testimony, right?”

  This time Dr. Rebbard gives me a full smile. “I suppose not, Counselor,” she says.

  * * *

  Emma is showing me pictures of her son when the judge comes back with his ruling. “The issue here is whether we can forget events that took place,” Judge Noble says, “and if we can remember events that never took place. This topic, of course, is a highly charged one. No matter how I rule, and no matter what we say to the jury, we’re going to be dealing with a situation where the jurors are going to have a hard time separating their feelings from the events being discussed.” He looks at Emma. “The greatest tragedy of this trial would be to believe another lie from Andrew Hopkins. And as it stands, the evidence is not reliable enough to justify inclusion.”

  Then he turns to me. “I’m making a legal decision here, but I can’t make the emotional ones. I’m damn sure my decision isn’t going to make you very happy, son. But I want you to remember that even though I can rule out what happens from this point forward, I can’t take back what’s already been said. Maybe in New Hampshire those j
udges don’t tell it like it is, but here in Arizona, we do. And I want you to know, Mr. Talcott, you may think your case hinges on this evidence, but I expect you’re gonna do just fine without it.”

  He gets up and exits; Emma behind him. I sit for a few moments in the empty courtroom. If this were like old times, I would go home and tell Delia that I’d lost the hearing. I’d repeat, verbatim, what the judge had said, and I’d ask her to interpret it. We’d dissect my performance until she finally threw up her hands and said we were going nowhere with any of this.

  She will not be back tonight, I suppose. And we’re still going nowhere.

  Andrew

  Delia is the last person to enter the courtroom before the doors are shut. She is wearing a yellow dress and her dark hair is pulled back off her neck; it reminds me of a long, lovely sunflower. I have so much to say to her, but it is better done afterward, anyway; when I will likely have yet another reason to tell her I’m sorry.

  Beside me, Eric gets to his feet to address the jury. “You know what love is, ladies and gentlemen?” he asks. “It’s not doing whatever the person you care for expects of you. It’s doing what they don’t expect. It’s going above and beyond what you’ve been asked. That’s what Andrew Hopkins should be charged with, you know. That’s what he would plead guilty to, hands down.

  “The prosecutor is going to talk to you about obeying rules. She’s going to use words like ‘kidnapping.’ But there was no kidnapping here; there was no force. And as for rules, well, you know there are always exceptions. What you might not know, however, is that the same thing applies to the letter of the law.”

  Eric walks toward the jury. “The judge is going to tell you that if you find that Andrew had committed all the elements of kidnapping beyond a reasonable doubt, then you should convict him. Not that you have to . . . not that you’d like to . . . but that you should find him guilty. Why doesn’t the judge say that you must find him guilty? Because he can’t. You, as jurors, have the ultimate authority and power to convict or not to convict—no matter what.”