Charlene saw in her mind’s eye the flash of a picture – herself, a little girl dreaming of a singing career.
“One day she met a boy and fell in love. He was older than she was, and he paid attention to her. Bought her things. Took her to the movies. Told her she was pretty. But when Sarah Mae told him she was pregnant, he told her she was a loser and she’d better get rid of it – that’s what he called the baby, it – and forget about ever seeing him again.”
Charlene paused, taking time to look at each of the jurors’ faces.
“Sarah Mae was scared, like any girl would be. She didn’t know where to go, who to turn to. She feared telling her own mama. But she did see a sign stapled to a telephone pole. ‘In trouble?’ the sign asked. ‘Find help you can trust.’ And it gave the name and phone number of a clinic run by the National Parental Planning Group right there in Dudley.
“Ladies and gentlemen, you will hear exactly how this clinic abused my client’s trust. You will hear how the law was willfully broken by the doctor, Michael Sager, who is sitting at the defense table.”
Charlene paused and turned toward the defense table, where Winsor sat next to Dr. Sager. Sager was in his late forties and dressed in an expensive gray suit. Apparently he didn’t feel he needed to hide the fact that he was a success.
“You will hear how the requirement that the patient be fully informed of the nature and risks of a medical procedure was ignored. You will hear what happened as a result.
“Five months after the abortion she knew little about, Sarah Mae Sherman learned exactly what she had been carrying inside her womb. She learned what her baby looked like, what its heartbeat sounded like, exactly what she had given up at the hands of those understanding people at the NPPG.
“And you will hear about the torment that Sarah Mae suffered as a result. About the nightmares that would not stop, about the night she couldn’t take it anymore, got a razor blade, and slit her wrists.”
Charlene had to pause a moment. She was feeling electric currents snapping through her.
“And then you will hear how the nightmares kept coming until Sarah Mae ran out to a bridge to throw herself off. But she was rescued just in time, by a minister. Why, you might wonder. You might also come to believe it is so she could be here to tell you the whole sordid story.”
Beau Winsor stood up. “Objection. Counsel is pushing the limits of acceptability here.”
“Sustained,” Judge Lewis said.
Charlene waited until Winsor sat down. He took his time doing it.
“When you have heard all of the testimony,” she said to the jury, “I will be asking you to deliver a verdict that will punish this clinic and the doctor involved so that other girls like Sarah Mae will not suffer at their hands, or the hands of those like them.”
She turned and walked back to counsel table. She noticed that Sarah Mae had tiny tears in the rims of her eyes.
Now it was Winsor’s turn. He was dressed to absolute perfection. His deep blue suit had fine, muted pinstripes. The effect was not “rich lawyer” but “dignified professional.”
Charlene felt an ice ball in her stomach. She thought, suddenly, that she was not in this man’s league. He had not lost a jury trial in twenty-five years.
“Good morning, ladies and gentlemen,” Winsor said. His honeyed drawl was not overbearing. It seemed to reach out and embrace everyone in court.
“My name’s Beau Winsor, and I’m a lawyer. We’ve got to get that out of the way at the start. Folks don’t much like lawyers these days, and I understand that. There’s a lot of mischief lawyers do. I’ve done a lot of it myself. We all know about the lawsuit craze and all that. Abuse of the courts.”
Charlene wanted to stand up and object. This was not an opening statement. It was a subtle attempt to tar her as a lawyer bringing a baseless lawsuit. But then she thought, no, he was baiting her on purpose. If he could get her popping up to interrupt him before he even got started, the jury might think she was trying to obscure something.
“But not all lawyers are like that. I have every confidence that you will listen to the evidence as it is presented, and not to the fancy words of the lawyers. Make up your minds based on facts and law. Nothing else. You swore that when you took your seats, and I believe you’ll keep that oath.”
He turned and looked at Dr. Sager. “I want you to get to know this man who has been accused so terribly by opposing counsel. You will get to know him over the course of this trial. And it will be a far different picture from what you just heard.
“You will hear about a man who has ignored threats to his very life in order to bring healing and hope to scores of young women in terrible trouble. You will hear about his work in inner cities, his volunteer efforts, his absolutely pristine reputation.”
He turned back to the jury. “But most important, you will hear how Dr. Sager obeyed the law. And that is really all you will need to hear. Because if Dr. Sager obeyed the law, as the evidence will show, then there is no case. There is no case against the doctor, or the clinic, or anyone else. If you don’t agree with the law, you can change it. You can make it tougher or you can get rid of it altogether. But you don’t do that here, in a courtroom. You do that at the ballot box.
“The evidence will show that the law was followed by the clinic, by Dr. Sager. And we trust your judgment, ladies and gentlemen. Because being on the side of truth is the best defense we have.”
As Beau Winsor resumed his chair, Charlene’s mind sang. Here we go, Lord. Here we go, go, go.
Judge Lewis said, “Call your first witness, Ms. Moore.”
3
Charlene’s first witness was Pastor Ray Neven. He was forty-two and looked like a big kid. Longish brown hair curling at the shoulders, bright blue eyes, and a ready smile. No wonder kids like Sarah Mae warmed up to him. He seemed a little uncomfortable in his suit and tie, like a Tom Sawyer who wanted nothing more than to throw off such restraints and head back to the swimming hole.
“You are the pastor of a church in Dudley, is that correct?” Charlene asked after Neven was sworn.
“Yes, I am,” Neven said. “We’re an independent Bible church.”
“How long have you been the pastor there?”
“I started the church back in 1995.”
“And how many are in your congregation?”
“We’re running about a hundred-fifty now.”
Charlene stepped out from behind the podium. “Do you have a youth program at the church?”
“We have a good group of kids,” Neven said proudly. “A lot of teenagers right now.”
“Is Sarah Mae one of them?”
Ray Neven looked past Charlene to Sarah Mae Sherman and smiled. “Yes, she is.”
“Will you tell us how you first met Sarah Mae?”
Charlene wanted to leave the question open ended, so Neven could tell the story himself. Neven told how he had been camping with a group of teens from the church, had felt something was wrong, like one of the group might have wandered off. He wandered over to the bridge and saw a girl about to jump and grabbed her just in time.
Charlene was sure the story had some impact with the jury. But it was only a foundation for the next part of Neven’s testimony.
“As you began to talk to Sarah Mae,” Charlene said, “what was your impression of her mental condition?”
“Your Honor,” Beau Winsor said. “May I take the witness on voir dire?”
Charlene should have expected this. The rules of evidence allowed the opposing attorney to question a witness in the middle of testimony if that witness was going to be offering opinions that might require special expertise.
“I’ll allow it,” the judge said.
Charlene resumed her chair while Winsor arose from his.
“Good morning, Pastor Neven,” Winsor said.
“Good morning,” Neven replied amiably.
“It is pastor, and not reverend, isn’t that correct?” Winsor said.
Ray Neven blinked a coup
le of times. “I don’t quite understand the question.”
“What I mean is, you don’t have a degree from any theological seminary, do you?”
“No, I do not, I – ”
“In fact,” Winsor looked at his notes, as if to emphasize the next question, “you didn’t attend college, either, did you?”
“No, sir. I went to work right after – ”
“How about you try to answer just the questions I ask?” Winsor said with a rebuke so mild he sounded like a favorite uncle.
“I’m sorry,” Neven said.
“That’s quite all right, sir. You understand I have to ask these questions because my colleague wants you to give some rather specialized information?”
“I’m just here to tell the truth,” Neven said.
“Of course you are. But Ms. Moore wants you to talk about things that require a certain degree of training. You’ve never taken a course in psychology, have you?”
“I find the Bible to be a very good course in human psychology.”
“That’s not what I asked, Pastor Neven, with all due respect. Have you ever taken a course from any recognized institution of higher learning, in the area of psychology?”
“No, sir.”
“Theology?”
“No.”
“You’re a layman then?”
“I am a minister,” Neven said.
“What denomination has ordained you?”
“I am nondenominational.”
“Not ordained?”
“I believe I have been called by God to preach the gospel.”
“And you have a right to. What you don’t have the right to do is offer expert testimony on psychological matters.”
“May we approach the bench?” Charlene said quickly.
Judge Lewis called the lawyers up.
“Mr. Winsor’s last comment was inappropriate,” Charlene said. “And he knows it.”
“I apologize,” Winsor said. “If Your Honor wants to admonish the jury to disregard my comment, that’s fine with me.”
Slick. Oh, how slick. If the judge did that it would only reemphasize what he said.
“That won’t be necessary,” Charlene said. “But this is a key witness for me.”
“Mr. Winsor’s point is well taken, however,” Judge Lewis said. “He’s not qualified to offer opinions on your client’s mental state.”
“What about spiritual opinions?”
“No,” Winsor said. “This man does not have a degree or even an ordination from a recognized denomination.”
“I agree,” said the judge.
“But he’s been a minister for twenty years,” Charlene said. “Rule 702 allows someone with practical experience to qualify as an expert.”
“But he must still meet a threshold level,” Winsor said. “In U.S. v. King, for example, the court excluded testimony by a witness who had taken a correspondence course in handwriting analysis. The Fifth Circuit upheld the exclusion. Ms. Moore’s witness has never taken any sort of course, correspondence or otherwise.”
“He is a lay preacher,” Charlene said. “That is a recognized office in the American church.”
“But not in a court of law, Ms. Moore,” said the judge. “I’m going to exclude any further testimony by this witness on these matters. Do you have another witness ready to go this morning?”
4
She did. And this witness was a real expert. Through Dr. Gardner Hutchinson Charlene hoped to establish the duties of a doctor both ethically and according to the informed consent law. Then she would move on to the events of June 7. With the testimony of Dr. Hutchinson, the jury would have a full understanding of what should have happened in the doctor’s office – but didn’t.
After qualifying her witness as an expert, Charlene got right to the main points.
“As a medical doctor,” she said, “what is your primary ethical charge?”
“It is to the patient,” the doctor said. He was in his late fifties and a bit paunchy, but in a friendly uncle sort of way. “The well-being of the patient always comes first.”
“Do no harm?”
“Exactly.”
“When a patient comes to see you for the first time, what is the first thing you do?”
“I find out about the patient’s history. He fills out a medical form with his medical history. We go over that before we even touch on the particular problem he came to see me about.”
“Why is that so important, Doctor?”
Hutchinson smiled as if the answer were self-evident. “Because one can do considerable harm if he doesn’t know enough about the patient he’s dealing with.”
“That’s common sense, is it not?”
“Objection,” Beau Winsor drawled. “Counsel is making a closing argument now.”
“Sustained,” said Judge Lewis.
“I’ll withdraw the question,” Charlene said. “Now, Doctor, please tell the jury how the notion of informed consent is consistent with the ethical duty you have just described.”
Hutchinson turned in the witness chair so he could face the jurors. “No one should be advised to undergo any medical procedure unless he or she is fully informed about the nature of that procedure and the medical risks associated with it. The doctor’s responsibility in each instance is to make sure that the patient is so informed. That does not mean partially, or even mostly. It means fully. And that is what informed consent is all about.”
“Thank you,” Charlene said. “Now, we have in this state an actual statute mandating informed consent in any abortion procedure, is that correct?”
“That is correct.”
Charlene walked to her counsel table. “With the court’s permission, I would like to display an exhibit for the witness and jury with the exact language of the statute.”
“Without objection?” Judge Lewis said.
“Without objection,” said Winsor.
“Proceed, Ms. Moore.”
Charlene took the poster board she had made at Sammy’s Graphics – $34.95 total price – and placed it on an easel for the jury and Dr. Hutchinson. Winsor stood so he could read it as well.
An abortion shall not be performed without the voluntary and informed consent of the woman upon whom the abortion is to be performed.
Except in the case of an emergency, consent to an abortion is voluntary only if the requirements of this section are met.
The referring physician, the physician who will perform the abortion, or an agent of either physician shall provide all of the following information to the woman by telephone, by audiotape, or in person, at least twenty-four hours before the abortion:
a. Information that medical assistance benefits may be available to the woman for prenatal care, childbirth, and neonatal care.
b. Information that the putative father is liable to assist in the support of the child.
c. Information that medical assistance benefits may be available to the woman for an abortion under certain circumstances.
d. The particular medical risks associated with the particular abortion procedure to be employed including, if medically accurate, the risks of infection, hemorrhage, breast cancer, danger to subsequent pregnancies, and infertility.
e. The probable gestational age of the unborn child at the time the abortion is to be performed.
f. The medical risks associated with carrying her child to term.
“I would like to call your attention to subsection d,” Charlene said. “Would you please explain to the jury your understanding of the term medical risks?”
“Yes. Any risk to the well-being of the patient, including the obvious things that are listed there, such as breast cancer, which some studies show has a connection with abortion procedures. But it would also include information on Post-Abortion Syndrome.”
Charlene expected Winsor to object. When he did not, a thin flame of nervousness shot through her. She pressed on. “What is Post-Abortion Syndrome, Doctor?”
“It is a vari
ant of Post-Traumatic Stress Disorder.”
“And how long has Post-Traumatic Stress Disorder been recognized in the psychiatric field?”
“Since 1981.”
“Is PTSD or PAS a form of depression?”
“Absolutely.”
“Are there physical manifestations?”
“Oh, yes. The body can literally shut down.”
“Mental signs?”
“Yes.”
“Would suicidal tendencies be one of those?”
“That would certainly be a strong indicator of PAS, yes.”
“What should a doctor do to help prevent the risks associated with Post-Abortion Syndrome?”
“At the very least he should screen all patients for any prior history of depression.”
“If he does not, then there would be strong medical risk, isn’t that right?”
“That is correct.”
“Thank you, Doctor. No further questions.”
Beau Winsor stepped to the podium but not behind it. He held no notes. Charlene could only marvel at that. No doubt the jury would marvel, too.
“Dr. Hutchinson,” Winsor said. “Would you take a good look at subsection d again for us?”
The witness, somewhat sheepishly, reread the exhibit. “All right,” he said.
“Now where do you see the term Post-Abortion Syndrome?”
“Of course it is not there, but – ”
“You have answered the question, sir.”
Charlene stood. “Objection, Your Honor. Counsel did not let the witness finish his answer.”
Judge Lewis said, “Overruled. It was a simple yes or no question. You’ll have your chance on redirect.”
Stung, Charlene sat back down. Sarah Mae seemed upset. Charlene patted her arm.
Winsor said, “Also in subsection d, Doctor, where do you see the word psychiatric?”
Hutchinson stared at the lawyer. “It is not there.”
“And Post-Traumatic Stress Disorder?”
“Not there.”
“And who drafted this informed consent statute, Dr. Hutchinson?”
“I presume the legislature.”
“And they didn’t include any of those terms, did they?”
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