“We chose not to.”
“And then, when your county vehicle and the two squad cars approached the house, was it slowly—or did you arrive at high speed?”
“We were making good time.”
“The three vehicles drove down the driveway so fast, in fact, that they were spinning tires, spitting gravel, and sending clouds of dust up in the air?”
“Probably.”
“And then after you had seen that Mary Sue was gone and Joe Fellows had been arrested, there was a court appearance?”
“Yes.”
“An ex parte hearing—without notice to me as Mary Sue’s attorney?”
“There were reasons for that…”
“And you knew, and the district attorney’s office knew by then, that my office was representing Mary Sue—yet you met behind closed doors with Judge Mason—you, and Mr. Putnam, and Ms. Bender here—without notice to or participation by me as Mary Sue’s attorney?”
“That is why it is called an ex parte hearing, yes.”
“And you actually wonder—and Mr. Putnam here wonders—why Mary Sue, a mother whose whole life is her family, panicked after being treated like that, and took flight with her little boy?”
Putnam and Bender leaped up, but Will cut them off.
“Your Honor, that was admittedly a rhetorical question—I withdraw it.”
Liz Luden was excused, and as she whisked past Will’s spot at counsel table, he could feel the polar winds blowing.
Joe gave Will a hopeful, searching look. But it was too early—the attorney had no definite feelings about the case yet.
He took his legal pad and jotted down a plus sign.
And then he followed that with something else—an even larger note on his legal pad.
It was a question mark.
55
THE SECOND WITNESS called by the county was Dr. Wilson, the physician for the Fellows family.
He was a general practitioner in the Delphi area and had been for fourteen years, he testified. He had treated Joe Fellows, Mary Sue Fellows, and of course Joshua.
The doctor listed the symptoms for Joshua—some developmental delays, listlessness, low-grade fever, problems eating, nausea, loss of appetite. He admitted that such symptoms were not entirely uncommon—the point was to diagnose and treat them, he emphasized.
“Are those symptoms consistent with certain kinds of poisoning?” Putnam asked.
“All except the developmental delays—that symptom not so much, unless the poisoning was done incrementally, over a long period of time.”
“Did you prescribe a series of tests?”
“Yes.”
“Blood tests?”
“Yes. At one point we had Joshua admitted to the Delphi hospital as an outpatient to do some tests. Blood tests.”
“Did you recommend to Mary Sue Fellows some other tests?”
“Yes. I wanted to do a moderately invasive gastrointestinal procedure to rule out some differential diagnoses…”
“Did you have a specialist who was going to do that?”
“Yes,” Dr. Wilson replied, “but it did not happen.”
“Why not?”
“Mary Sue refused to permit it.”
“Did you consider talking to her husband to convince him—or even seeking a court order?”
“At the time, no. In retrospect, I wish I had come to you people sooner.”
“What reason did Mary Sue give for her refusal?”
“She said she didn’t think I knew what I was doing. She was fearful of complications for Joshua, and the painfulness of the procedure. And she didn’t think it was gastrointestinal.”
“Did she say anything else?”
“Yes—something that really bothered me.”
“What was that?”
“She said—and I recall this very well—Mary Sue said she was ‘giving Joshua to God.’ That’s exactly what she said.”
“Do you know what she meant by that?”
“Objection—speculation!” Will rapped out.
The judge overruled the objection.
“I was afraid that she might have made a decision—a very frightening decision—that somehow Joshua would be better off in heaven with God.”
“Is that when you called the Department of Social Services?”
“That’s what I did, yes.”
Putnam concluded his direct examination and sat down with a satisfied smile.
As Will began his examination, he walked to the lectern and opened a large notebook of medical records in front of him.
“The symptoms you noted for Joshua—you mentioned them for Mr. Putnam. Do you recall them?”
“Yes, I do,” the doctor responded.
“All of them—taken together as one constellation of physical symptoms—would be consistent with a medical condition known as methylmalonic acidemia, is that correct?”
“Actually, I’ve never treated any child with that condition. It’s rather rare.”
“Exactly. You were not looking for that condition, right?”
“It was not the first thing on my radar screen, diagnostically, that’s right.”
“But you must have read the medical literature about that condition? Let’s call it by its first letters for short—MA.”
“I had read—once, I believe—something about methylmalonic acidemia. But remember, Mr. Chambers, I am board-certified in family medicine—not in the more esoteric diseases. That is for the specialists.”
“So—do you agree that Joshua’s symptoms were consistent with MA?”
After a moment, Dr. Wilson nodded in agreement.
“Yes, to the extent I understand that particular medical condition.”
“Now. Mary Sue’s comment about God—did you take it literally?”
“I’m not sure I understand…”
“Well, a few seconds ago you used the phrase ‘on my radar screen,’ did you not?”
“Yes. A figure of speech.”
“Right. Exactly,” Will said. “But you really don’t have a radar screen in your office, do you?”
“Of course not,” Dr. Wilson said, turning to the bench for some relief from what he considered an absurd line of questioning, but finding none.
Judge Trainer continued sitting expressionless.
“So why,” Will continued, “didn’t you simply interpret Mary Sue’s comments about ‘giving Joshua to God’ in the same way? In other words, that she was committing Joshua’s medical problems to God through prayer, in addition to the medical care she was seeking? Why, instead, did you insist on believing she might kill her own son? Did you really think she would put him on a stone altar and sacrifice him to God?”
Bender jumped up first this time, with Putnam coming in second.
“Argumentative! Compound question also! We object to this—”
Judge Trainer motioned for them to sit down.
“The question does have some problems, Mr. Chambers. But I see where you’re heading. Doctor—why did you take Mary Sue so literally?”
“You really had to be there, Your Honor. This woman had refused the GI procedure I wanted to have done, she was hostile toward me, and the look in her eyes when she said it all—it really sent chills down my spine.”
The judge nodded for Will to continue.
“The look in her eyes? You invoked the police power of the County of Juda upon the life and domestic tranquility of this family because of the look in her eyes?”
“It was not just that…”
“But it included that. You just said that.”
“Yes, her look, her presentation of herself, everything.”
“But there was something else, wasn’t there?” Will followed quietly.
“I don’t know what you mean.”
“There was another reason you called Social Services down on this family, is that not correct?”
“I’m still baffled, sir, by your question,” the doctor responded, now shifting a little in the witn
ess chair, but being careful to hold himself upright, shoulders back.
“Is it a fact that you called Social Services because you did not want to be sued for medical malpractice—again—for another child-abuse case?”
“Absolutely not! And I deeply resent that insinuation. I was not sued for malpractice for a child-abuse case.”
“Oh, is that true?”
“Yes. I was not sued.”
Will pulled some papers out of his file.
“Would it refresh your memory to review the Civil Complaint filed in The Estate of T.O., A Deceased Minor Child, By His Guardian, Versus The Delphi Family Clinic, And Dr. Ruttaluse, And Dr. Wilson?”
“I’m familiar with that lawsuit, but I need to explain…”
“The fact is that your partner, Dr. Ruttaluse, was the treating doctor for a child brought in repeatedly with bruises and injuries, who was finally killed by the live-in boyfriend of the mother. And it hit the news—and your clinic, including you as partner, were sued. Correct?”
Putnam objected wildly, but since Bender was talking and waving her arms at the same time, pointing to Will, the only words that could be deciphered in the melee were “outrageous” and “admonish.”
Judge Trainer ruled quickly and decisively.
“We are not going to rehash that Estate of T.O. case—I am well aware of it. And I am sure Dr. Wilson is too. Doctor, please answer the question.”
“Yes—a child treated by Dr. Ruttaluse was killed. It was child abuse—our clinic was sued—and I was named in that suit merely as a technicality.”
“And so you vowed that you—and your clinic—would not be involved in another debacle like that again. So you figured you would always err on the side of calling Social Services—and whenever you had the least problem with the parent of a pediatric patient, you would always just throw the ball to Social Services. Am I right?”
“I don’t like the term ‘throw the ball…’”
“How about ‘throw the parent’? You tossed Mary Sue Fellows to the Department of Social Services because of your concern over malpractice suits—and your malpractice-insurance premiums?”
“I referred Mary Sue Fellows over to Social Services. I don’t appreciate being sued, Mr. Chambers. No doctor does. It is a sad fact that we have to practice defensive medicine occasionally.”
“You were practicing defensive medicine with Joshua, then?”
Dr. Wilson lowered his gaze toward the medical file that lay in his lap. And then he answered.
“I did what I had to do…”
“As did Mary Sue,” Will concluded.
56
THE FINAL WITNESS of the day was Otis Tracher. The county called him to recount the forensic evidence that had been taken from the Fellows house.
Tracher sat down in the witness chair slowly. He rubbed his chin and then straightened up the police file on his lap.
The Juda County Sheriff’s Department veteran described how, a few hours after the arrest of Joseph Fellows, the department had performed a forensic sweep of the inside of the house—and particularly the kitchen. One item of note, he indicated, was a plastic child’s cup that was found near the kitchen table.
The detective recounted a statement that Joe Fellows had made immediately after being taken into custody. After Joe was read his rights, he was asked if Mary Sue was the one who always fed little Joshua.
“Joe Fellows indicated,” Tracher said, reviewing the supplemental report in front of him, “that Mary Sue always fed Joshua—and that she did indeed use the little plastic cup to give him orange juice.”
“Now, that forensic sweep of the kitchen—did it also include taking that little plastic child’s cup into evidence?”
“Yes, it did.”
Harry Putnam held a plastic bag up, high enough for everyone in the courtroom to see. Inside the plastic bag there was a white plastic cup.
Then he had the detective identify the evidence bag and the cup inside.
“That is the same cup we removed from the kitchen,” Tracher confirmed.
From his table, Putnam retrieved a written report from the state forensics lab that had already been marked with an exhibit sticker. The prosecutor had his witness identify it as the report generated by the crime lab after their examination of the cup.
“What were the results of that test?” Putnam asked.
“Two substances were present on the cup.”
“What were they?”
“One was residue from a fruit-based liquid, high in acid, noted to be orange juice.”
At this point Harry Putnam walked to front and center in the courtroom. His arms were folded across his chest.
“Would you also tell the court what else the crime lab found in the cup?”
Tracher glanced down at the report. Then he looked up.
“The report also notes the presence of hydraulic brake fluid—including a component called ethylene glycol.”
“So, both orange juice—and poisonous brake fluid—both found in the same cup?”
The detective’s mind seemed to be wandering. He asked for the question to be repeated.
“Orange juice—found to be in that cup?”
“Yes,” he confirmed. “I’m sorry, I was thinking of something else. Yes. Orange juice was noted in the cup.”
“As well as hydraulic brake fluid?”
“Yes. That was also found on the cup.”
Then the prosecutor lifted the plastic bag with the white cup up high again.
“Detective, did you note that this was a child’s cup—a cup used by a little child, in fact a little boy?”
“Yes.”
“How did you know that?”
“Because of the markings.”
“What markings?”
“It had a picture of a little teddy bear on the outside.”
“Anything else?”
“The name ‘JOSHUA’ was printed on the outside—like the way you can get a child’s name put on a toy.”
“So a little teddy-bear picture and little Joshua’s name are on the cup—the same cup with the hydraulic brake fluid?”
“That’s correct.”
Putnam rested, and Harriet Bender had just a few questions.
“Did you take steps to ensure that you did not contaminate that cup during the forensic sweep of the kitchen?”
“We took all of the standard steps to make absolutely sure there was no contamination.”
“In other words,” Bender continued, “if Mr. Chambers here argues that maybe that brake fluid got in the cup accidentally—by you picking up some oil or brake fluid on your hands in the garage of the Fellows house and then inadvertently touching the cup—you have an answer for that?”
“Yes, Ms. Bender. I am sure we did not contaminate the cup. We put it into the plastic bag exactly the way it was when we found it.”
“And the plastic bag—the one you put it in—was it clean?”
“We use one-hundred-percent sterile evidence bags. The cup was not contaminated in any way by the law enforcement folks who went through the house.”
Bender rested by giving a kind of salute to the detective and sitting down noisily at the counsel table next to Harry Putnam.
Will thought back momentarily to his interviews with Mary Sue. She had never given him any information about how brake fluid had gotten near the cup. And Joe Fellows had said flatly that he’d intended to put brake fluid into the truck—but had never gotten around to it.
Further, there was no doubting the validity of the crime-lab report. Will had gone over it in excruciating detail while preparing for trial. He had to reconcile himself to the fact that his client had given him nowhere to go on this line of questioning.
He glanced at Otis Tracher. The detective was certainly giving the impression he wished he were anywhere else but there. At the bench, the judge was stretching and sitting himself up straighter. One of the onlookers in the courtroom coughed.
Then Will looked down at his
notes again.
He examined what he’d written down during Tracher’s testimony and compared it with the questions Putnam had asked.
Then Will’s head snapped down to his legal pad—this time so quickly that Bender and Putnam glanced over at him curiously.
“Are you cross-examining, Mr. Chambers?” the judge asked.
Will nodded. Then he rose to his feet with his yellow legal pad in hand.
“Mr. Putnam asked you—repeatedly—about what was in the cup according to the forensic report. Do you recall that?”
“Yes. He just asked me about it all.”
“And you said that the liquid identified as orange juice was in the cup, as determined by the crime lab?”
“That was my testimony.”
“And Mr. Putnam asked you whether the presence of hydraulic brake fluid was noted in the cup. Right?”
“He did ask me that.”
“But,” Will went on, “according to my notes here—you answered that the brake fluid was noted on the cup. Is that correct?”
Tracher glanced over at Putnam. There was fatigue—or something like it—on his face. Then he looked back at Will.
“The crime-lab report itself does not indicate precisely where the toxin—the brake fluid—was found.”
Will could have stopped there. The point was to create some doubt about the exact location of the toxin in relation to the cup. If he stopped there, it might raise a sufficient doubt so that the judge would conclude that, somehow, the brake fluid had gotten on the cup accidentally.
But he didn’t stop there. This was not a by-the-book case. He had no client sitting next to him. Instead, he had the husband of his client sitting next to him—in jail orange.
And his client had fled the state.
Will was about to ask the question. The question you’re not supposed to ask—at least, not if you are an experienced trial attorney.
“Never ask a question that you don’t know the answer to,” he was told in law school.
But now he was going to do exactly that.
“Detective,” he continued. “About that last statement you made…”
Tracher’s eyes were now riveted on Will.
“Do you know where—in reference to the cup’s exterior or interior—the brake fluid was found to be present?”
“Yes—I did find that out.”
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