Gideon - 02 - Probable Cause

by Grif Stockley

  I watch the jury’s faces as they hear her describe the malpractice settlement and Yettie Lindsey’s expected testimony. It is as if the issue of race were the last thing on Jill’s mind. Andy leans over and whispers to me, “She’s really good, isn’t she?”

  Concentrating as hard as I can, I do not answer, but I want to tell him that a prosecutor doesn’t have to be great to keep a jury interested in this case. Yet this jury is hoping for the details, and they will be disappointed. There will be no description of any salacious practices that will have the spectators gasping with delight. Not for the first time I consider telling the jury that I, a small-town boy from eastern Arkansas was happily married until her death to a woman whose skin was almost as dark as that of two of its members that under the right conditions any of us might and do choose against all we’ve been taught and believed. Yet, as I study the jury, I lose courage. The risk is too great that some of the whites on the jury (maybe the blacks as well) might decide to punish me for presuming to preach a text few want to hear. It is enough that Andy is on trial; I don’t dare add to his burden. Instead I tell the jury a version some of them might be able to accept.

  “Ladies and gentlemen,” I say standing at the podium after Jill has taken her seat, “what happened in this case is unfortunately what happens in real life: two people who have no need, desire, or intention of doing so fall in love and, instead of living happily ever after, see their lives become an unintended tragedy. Though I could give you a hundred examples from everything from Shakespeare’s Romeo and Juliet to the tritest made-for-TV movie, we all know it happens in the most inappropriate of situations: it happens at work; it happens in wartime; it happens between neighbors; it hap pens in institutions for the retarded. The prosecuting attorney has painted a picture for you of a man who is so evil that he would take the life of a child to satisfy his own lust for a sexual relationship and money beyond his wildest dreams.

  The truth is a lot less sensational but a lot more lifelike. The accident that I’m about to describe, which resulted in the death of the child of Olivia Le Master, has been emotionally devastating to her and to my client as well.” I come around the podium and grasp the jury rail.

  “Because of our culture and our history in the South, some of you may be thinking, “So what?” since they should never have been involved with each other in the first place. But if you are and can’t get beyond this feeling simply to accept it as a reality, you won’t understand what happened in this case, and why my client and Olivia Le Master now feel as they do ” Behind me, Jill interrupts.

  “I’m loath to break in. Your Honor,” she says, as I turn to her, “but Mr. Page is making a final argument instead of an opening statement.”

  From the barrier separating me from the jury, I tell Judge Tamower, “I should be able to tell the jury why some of the witnesses will be testifying a certain way, Your Honor. This alleged crime is all about intent. If I’m wrong, I’ll be contradicted by them.”

  Judge Tamower shrugs, as if this is no big deal.

  “I don’t see that Mr. Page is out of line, Mrs. Marymount. Your objection is denied.”

  I turn to the jury and waste no time in getting specific.

  “An interracial relationship in the South makes us all uneasy, ladies and gentlemen, whether we say we are liberals or conservatives. Even the most accepting of us knows the difficulties of such a union and the reactions that occur in some quarters. It comes as no surprise when I tell you that sustained love between two people with everything going for them has a fifty-fifty chance, and sustained love between people of different races, especially in the South, to most of us is a matter of hope over reality. When you add to it the accidental death of a child, you get at least two, and actually more, very conflicted people, as you shall see when they testify….”

  As I sit down, Andy leans over and whispers, his voice scratchy with disapproval, “I never told you I felt conflicted

  For the jury I place my hand on his sleeve as if I am thanking him for complimenting me on a fine opening statement This guy is one in a million.

  After lunch the courtroom fills up again. Most of the crowd had expected voir dire to take at least the entire morning. Jill calls as her first witness Dr. Warren Holditch, who had been her expert witness at the probably cause hearing. Knowing the municipal court would send Andy to trial and since I was not really prepared to do so, I didn’t crossexamine him.

  Now I have my chance. Holditch, a behavioral psychologist who seems even more emaciated than he was a couple of months ago (I am tempted to ask him if he is treating himself for anorexia), essentially repeats his opinion that shock is dangerous and Andy should never have used a cattle prod and should have gotten the consent of a human rights committee

  Since I have heard this before, it is difficult to gauge the effect on the jury, but since he is only the first witness and they are not tired yet (though I see one lunch-induced yawn), they pay close attention to his explanation of the different behavior-modification procedures he says Andy should have tried before he attempted shock. In a new wrinkle, Jill intro duces as exhibits two commercial shock sticks as well as a remote-control device complete with a helmet. She is protecting her manslaughter charge in case the jury won’t go for murder. As these are passed around the jury, the male jurors barely resist poking each other with them while the women pass them quickly on as if they were hot to the touch.

  On cross, I get Holditch to admit that one of the most widely published researchers in the field has reported using a cattle prod to suppress self-abusive behavior. Though I know Jill will come back on redirect and reinforce his testimony that safety considerations have made this research obsolete, except for the point that shock can work, I want the jury to know it is something that a man, with many more credentials than Warren Holditch, has employed success fully.

  Before I sit down, I ask Holditch, “Isn’t it a fact that if Leon Robinson had not loosened his grip on Pam she would be alive today?”

  Jill objects loudly that Dr. Holditch isn’t qualified to answer this speculative question, and I don’t fight it, having made my point.

  Jill ends my own speculation by calling Olivia next. De spite everything Olivia has said, there is the possibility she will invoke her Fifth Amendment right not to testify, now that the moment of truth is at hand. Led in from the witness room by a black female bailiff, Olivia, smiling as she walks through the door at the back of the courtroom, seems as confident as a reigning heavyweight fighting out of his division But as she passes by our table, I see that it is all an act.

  Her smile looks soldered into place. She is scared to death, and I don’t blame her. With a single slip she can cook her own goose, and everybody in the courtroom knows it. I glance at Andy to see how he is reacting to her presence, and like a small child who is afraid his playmate is about to tattle on him, he seems to be holding his breath.

  As Jill leads her through some preliminary questions, it is hard not to think about Olivia’s manner at the probably cause hearing. Then she was the grieving mother, a difficult witness for both Jill and me. Today, she is a murder suspect, and Jill will show her no mercy. I presume anything Olivia says that is favorable to Andy will be made by Jill to seem like a cover-up when she makes her closing argument either the story of a woman concealing her own role in the murder of her child or the words of a woman who was duped by a man who wanted her money badly enough to kill her child for it. If Jill knows about the child who lives in Ohio, I have no indication of it.

  Olivia begins to cry at Jill’s first hostile question.

  “When I questioned you at Dr. Chapman’s hearing a couple of months ago,” Jill asks, holding a volume that contains her testimony, “you didn’t mention you were having an affair with him at the time he applied electric shock to your child, did you?”

  Everyone, me included, seems to creep to the edge of our seats. Her voice trembling, Olivia says, “No, but I wasn’t asked.”

  Jill, remindin
g me more and more of one of those old peasant women in Zorba the Greek in her black dress (all she needs is a black shawl for her head) booms from behind the podium, “And you didn’t mention that you were to receive at the time of your child’s death approximately two million dollars as a result of a malpractice settlement against your child’s doctor, did you?”

  Olivia wipes her eyes with a tissue she has balled up in her right fist.

  “No, I did not.”

  Jill backs slightly away from the podium and says softly, “And you didn’t mention at the hearing that you had told your lover. Dr. Chapman, that there would be more than enough money for him to go back to school, did you?”

  “We were talking about getting married and I was considering selling my business,” Olivia says, her voice becoming more defensive with each question.

  Jill pauses for a moment to allow these answers to sink in on the jury. She makes a great show of thumbing through the transcript and then asks, “Mrs. Le Master, isn’t it true that you suggested to your lover that he use shock to try to stop your daughter’s self-abusive behavior?”

  Seeing Jill turn to a specific page in the transcript, Olivia answers, “No other doctor had helped her.”

  Coming around from behind the lectern as if to challenge Olivia to a fight, Jill says vehemently, “Your child died as a result of your lover’s help, didn’t she, Mrs. Le Master?”

  Before Olivia can answer, I am on my feet objecting.

  “She’s not qualified to answer that.”

  “Sustained,” Judge Tamower says.

  I sit down, knowing I could object to the form of all of these questions, since they amount to crossexamination, but I know Judge Tamower will allow Jill to treat Olivia as a hostile witness and ask leading questions, and I don’t want the jury to be any more aware of the distinction than they already are. I will have an opportunity to allow Olivia to explain her actions as much as she is able, but the damage has already been done. Anything that Olivia says will be filtered by the jury through her admissions. Now that she has whetted the jury’s appetite, Jill takes Olivia through her story from the beginning. It all sounds sordid now, each action suspect. Olivia comes across as though she had planned her daughter’s death for months. Against the backdrop of her initial admissions, her story that she fell in love with Andy rings hollow. Instead of a poignant and ultimately tragic interracial love story, the jury hears monosyllabic responses directed by Jill. I had hoped to convince the jury that Olivia seems ambivalent now because of Pam death. Instead, she is unconvincing because of what she has admitted she stood to gain.

  “How do you plan to spend the money,” Jill asks sarcastically, now that she has taken Olivia through her story, ‘that you expect to receive from your daughter’s death?”

  I am on my feet objecting, “She hasn’t received any money. Your Honor.”

  “Sustained,” Judge Tamower says, her first words in twenty minutes.

  “No more questions,” Jill says, sitting down with a grim smile on her face. It was the question she wanted to leave the jury with, not Olivia’s answer.

  As I think about where to begin, it occurs to me that Jill has made the same erroneous assumption I had that Olivia and Andy are no longer sexually involved and has failed to follow up. But perhaps she hasn’t asked this question for a reason: she would be delighted to leave the jury with the impression that the affair is over. Olivia, I decide as I sit down, can’t be allowed to have it both ways. Either she must be shown to have manipulated Andy into helping her through an act of seduction or she still loves him, and as repugnant as that may be to a Southern jury, it will be consistent with Andy’s feelings when he testifies.

  “Your witness, Mr. Page,” Judge Tarnower clucks impatiently from the bench. I get up again and begin the arduous chore of trying to rehabilitate Olivia’s answers, but, as I have feared, there is little I can ask Olivia that hasn’t already been compromised by her admissions. No matter what spin I give my questions, Andy still seems to be either a conspirator with her or a grossly incompetent professional. Maybe she doesn’t know how she feels about him, but I will point out to the jury that maybe after all this time she should. If Andy won’t turn on her, I sure as hell can when it comes to my closing argument.

  “Mrs. Le Master, did I hear you say that you are uncertain,” I ask, feigning a genuine air of puzzlement, “about your present feelings for Dr. Chapman?”

  If she has a clue where I am going, Olivia doesn’t act like it. Calmly, she recrosses her legs as if I had asked her what she had for breakfast.

  “Although I know Pam’s death was an accident,” Olivia says calmly, “I can’t help but feel very confused about the way it happened. As I have said, I no longer think Dr. Chapman should have used shock.”

  I lean my arms against the lectern as if I am suddenly wearied by her testimony. Dr. Chapman? She is talking about Andy as if she only met him a couple of times.

  “Isn’t it a a fact you told me that it was you who seduced Dr. Chapman and not the other way around?”

  Taken off guard, Olivia draws back in the chair as if I have tried to strike her.

  “I don’t recall saying that,” she says, frowning. Her face colors slightly, and if I can see it, so can the jury. I am glad I can’t see Andy without turning my head, because I know if I do, I will see him going through the roof.

  “Isn’t it a fact, Mrs. Le Master,” I say slowly, now clearer in my own mind about the effect Olivia wants to create,” ‘that you’ve had sex with my client as recently as last week?”

  There are titillated gasps behind me. Olivia, visibly angry, can’t resist a look at Andy before saying, “That’s not true!”

  To heighten the effect, I, too, turn and look at Andy, who seems as stricken as a father who has caught his teenaged daughter in her first act of deception. I turn back to Olivia and keep up the pressure.

  “Is it your testimony that you haven’t had sexual intercourse with my client on five different occasions since he was originally charged in this case?”

  Olivia knows she can’t retreat, and tears again well in her eyes as she cries in a choked, almost guttural, voice, “Of course not! I’ve talked to him on the telephone several times, but that’s all!”

  I pause, wishing her steadily reddening face would burst into flames.

  “Now isn’t it a fact that approximately fifteen years ago the Department of Human Services substantiated child abuse involving your son, whom you no longer have custody of?”

  Prepared for this question, Olivia, as if on cue, bursts into tears again and recites the story she gave me yesterday. The jury seems more shocked than moved, a reaction I’ll take anytime. I sit down, and while Jill confers furiously with Kerr Bowman, Andy whispers furiously, “Why did you ask her all of that?”

  When Jill tells Judge Tamower finally that she has no more questions, every eye in the courtroom watches Olivia leave the stand. I hedge my answer.

  “You don’t think the jury should hear the truth?”

  “You humiliated her!” he rages.

  I try to keep from reacting in front of the jury. Only a man in love could worry about such a thing.

  “Why should she be humiliated,” I ask, disingenuously, “if she’s telling the truth?”

  Unwilling to respond, now that Yettie Lindsey is about to begin her testimony, Andy pulls back and sits rigidly in his chair. He knows what is coming. Even if he could talk me out of asking him what he has admitted as recently as last night, Jill Marymount will have to bring it up, and Andy is one criminal defendant I will not give the benefit of the doubt if he tries to lie on the witness stand. I will not let him lie to protect Olivia. If I were on the jury, I’d be mulling over at least two possibilities. If Andy testifies under oath the affair is still going on, I’d be asking myself whether she is still screwing him because she still loves him, or she is manipulating him so he won’t turn on her. At least now, if I judge this correctly, the case will turn on Andy’s credibility
and not Olivia’s.

  Bristling with the dignity that only rejection can give a person, Yettie makes the kind of witness lawyers drool over in their sleep. She is wearing a beige knit suit that seems enameled upon her chocolate frame, and her strange, speckled yellow eyes seem to burn with the pleasure of the knowledge that at long last some chickens are coming home to roost. The men on the jury have to be wondering what in hell would possess a black man to kiss off this voluptuous and obviously passionate young woman for a milky bread stick like Olivia—unless, it was, of course, a fortune and a chance to get into a white woman’s pants. Tearfully, she acknowledges she was in love with Andy, and you can see the female jurors loving her for admitting it and loving her for eavesdropping outside his office. That son of a bitch, we’ll punish him if for nothing else than breaking this girl’s heart. Sure, she spied on him, but we wouldn’t have cared if she’d set up a hidden camera and microphone under their beds.

  Yet despite the visual impact Yettie has on the jury-indeed on all of us except perhaps Andy her testimony re ally adds nothing, since Olivia has admitted at least part of it just minutes before. And she doesn’t say the one additional thing that could hurt Olivia (and by extension Andy), and that is her comment to me in her office that Olivia said on more than one occasion that she thought Pam would be better off dead. If she went to Jill with what she had overheard, why didn’t she volunteer this as well? Why didn’t Jill ask her what else she had heard Olivia say? Perhaps Yettie believes that those comments could have been made by anyone with a self-abusive child, and that it wouldn’t, after all is said and done, be fair to mention. I don’t know the answer, but now is not the time to find out. Unwilling to give Jill a second bite at this juicy plum, I say, “I have no questions of this witness. Your Honor.”