(2012) The Court's Expert

by Richard Isham

  “It fascinates me as well. As I get into cases like this one, it reminds me why I love the practice of law. Each case is different, and the technical ones make me work all that much harder in order to solve the puzzle and present the case to a jury so we can convince them of my client’s innocence. Your case has an abundance of technical data that adds another dimension for a further challenge. We must make the information understandable to nonprofessionals. To do that requires a good forensic expert witness who is comfortable explaining issues in laymen’s terms, and is convincing, to boot.”

  “Oh my goodness,” Marti spoke in a tentative and hushed tone, “it’s beginning to sound like you’re interested in taking my case,” a river of tears following her words, while Charlie busied himself reaching absentmindedly into his beat-up brief case looking for the tissue he routinely carried for such moments. He handed her the sealed packet, but the jailer outside the soundproof window gave him the signal, and Charlie explained to Marti that the tissues must be inspected before she could keep them, a routine he assured her was merely precautionary. She handed them back to Charlie and wiped her eyes with the back of her hands and fingertips.

  “No, really, do you think you’ll be taking my case?”

  “Oh gosh, yes. I’m sorry. I made that decision early in our discussion. The money part works fine and will be spent mostly on preparation and my South Beach diet, too,” he said, accompanied by a genuine smile flashed at Barnes.

  Marti could not help herself. She reached out to Charlie, who awkwardly drew closer while Marti hung on tightly and squeezed most of the air out of him. Now her tears flowed without hesitation or restraint. Her body repeatedly jerked but finally went limp from the release of months of pent up exhaustion and anxiety. Slowly, she managed to gather her composure.

  “You’ve just made this old lady one happy woman,” she exclaimed. “Now I truly feel like I have something to live for,” Marti added, regaining her equilibrium and glancing at Charlie for some indication of positive reinforcement.

  “Ma’am, you must understand that I am only a lawyer, and I promise to do my best for you. But I simply cannot guarantee an outcome one way or the other. I’m not a magician, but I have a good record with juries in cases like yours. Mostly, I believe in your cause and am happy to stand with you in your hour of need, but don’t let me get into any speeches. This is what I do. It’s who I am. It’s that simple. But I must say, I still don’t understand exactly why you’re in this mess in the first place. I know you’re accused of murdering your former patient, but what’s the prosecution’s theory?”

  “Well,” slowly filling her lungs to capacity, “it’s a bit of a complicated story, and you need to understand the illness involved to get a better impression of the problem. You see, people with this immune system problem don’t really have a disease. It’s more of a defect in their defense systems and the treatment involves replacing the missing pieces. So every three or four weeks, depending on the particular needs of a given patient, they must receive infusion therapy,” she continued to explain.

  “Okay, I get it. It’s like starting an IV, right?”

  “Exactly. That’s the first step. In fact, we sometimes run a saline solution right along with the medication. The immune globulin is started at the same time. The average time for each treatment is three hours or so, but in some cases like Mr. Martorano’s he managed to take the entire dosage in one hour without any side effects. The duration of each treatment simply depends on the reactions of the patient. Unfortunately, some of the patients have a very difficult time with treatments and many have to be medicated prophylactically to reduce the side effects of allergic reactions, headaches, and loss of consciousness that are the most common complications. Mr. Martorano was a great patient and handled his IVIG treatments without any visible signs of trouble. Even if he suffered any difficulties, he was not one to say so. Rarely, he showed annoyance with the ‘whole sport’ as he called it, but nothing serious ever developed with any of his treatments.

  “My public defender told me the prosecution expert would testify that if a patient does not actually get the immune globulin during his treatment, his immune system will gradually weaken, and he will be susceptible to common colds, then bronchitis, and finally pneumonia, which would be fatal, of course. Other causes of death include risk of cancer in the gut and patients can die from that disease, obviously. Pathology reports state that my patient died from pneumonia, so I guess the jury could decide I gave him a placebo. But I did not do that, I swear. I … I … I loved the man, in my way,” and another torrent of tears tumbled down her cheeks.

  “Okay, I think I’m beginning to get the picture,” Charlie declared. “The prosecutor can argue you had motive and opportunity, so you’re the guilty bastard, right? Oh, sorry! Please excuse my vulgarity,” he begged of her.

  “Yeah, yes, I mean, that’s about it. But I didn’t do any such thing. They can claim that I must have flushed the IgG down the toilet, but there is no such evidence. That’s so untrue. The medication is precious and can’t be wasted for any reason. It’s very expensive and there are cases of some patients having difficulty even getting it because of the cost. Government regulators try to reduce the reimbursement amounts for treatment and patients are caught in the middle. Private reimbursement sources like health insurance companies tend to follow the government’s lead. But I didn’t do it! And I can’t believe the system let me down like it has,” this time no tears but irregular grunts and a single hiccup punctuated the end of her comments.

  “Sorry to have to make the point, but the system and you are barely acquainted with one another, so far. It’s still early in the game,” Charlie added. “By the way, are there witnesses who will testify they saw you substitute a placebo for the righteous IVIG treatment?”

  “No, there are no witnesses other than Mr. Martorano’s adult children. Funny, they were my biggest supporters, too, until I mentioned the care agreement. Then everything changed, and I don’t begin to understand their motives. There’s plenty of money in the estate, and they wouldn’t miss the amount the estate owes me. If only their dad were still alive, he’d be knocking some heads together, I know for certain.”

  “But does anyone say he or she saw you mess with the medicine?”

  “I guess we’ll find that out at the trial. Normally there was no one around during treatment times other than my patient and me. Actually treatment times were sort of peaceful interludes compared to many other periods during his care.”

  “What about pathology evidence? Will an expert testify about cause of death?”

  “I’m not sure what an expert might say. The public defender told me they have a doctor who said bronchial pneumonia was the most likely cause of death based upon the information available to him.”

  “Did your lawyer check out other possibilities for cause of death, if there are any, even?”

  “No, I don’t think so. At least I don’t remember anything like that. But I’m not a very good source for that information.”

  “This really is quite the ‘who done it?’ if you don’t mind me saying so.” Malone was silent for a very long moment, thinking of the next steps. “First, I must substitute into your case as your attorney of record, review the file, and then prepare for a battery of motions. This process takes some time, unfortunately for you, because you’ll remain in custody nonetheless. We also have to follow up with Mr. Martorano’s executor and file a will contest to protect your position on the life-care agreement.”

  “Gosh, I had no idea. It all sounds so complicated. Do you feel you want to take this on for me? I mean it sounds like so much work!”

  “Ms. Barnes, I’ve been around this track too many times not to know what I’m getting into. Usually when a client makes that comment it really indicates some concern about my capability to handle the case. Are you concerned about that? If so, now is the time to speak up.”

  “Oh, I am so sorry. You are my knight on the white horse. It just
seems so overwhelming. I don’t begin to understand the process or the system. I guess I should have paid better attention in high school civics class.”

  “Don’t worry. It is complicated. Yet I believe you have a solid shot, and if I didn’t I would have the decency to say so, instead of helping myself to your nest egg. No, we’re in this together; if that’s what you want.”

  “Desperately!” followed by more arrhythmic sniffling, “I really don’t know how to say thank you. I’ve run out of words … but … but, there is something I think you need to know before we separate today.”

  “Okay,” Malone acquiesced, light-heartedly, “lay it on me.”

  “Well, I did kill a man once,” Marti sighed in resignation. “At least, I was accused of doing so.”

  “What?” Malone groaned in disbelief. “What are you talking about?” he demanded.

  “Well, I was on a nursing team when a patient at a government hospital in Porterville died, and the patient’s family accused several of us of dereliction of duty. There was an investigation and a big fuss was made before everything cooled down. No charges were brought in that situation, but I thought you needed to hear about it before you sign onto my case,” she offered.

  “I’m very glad you told me, so I didn’t have to find out indirectly or be surprised at trial. It sounds like it is well beyond anything that could affect this case, but it’s better to know about things like this ahead of time. No, this information doesn’t put me off. It’s a deal. I’ll have an agreement prepared for you to read. If it suits you, just sign it and I’ll pick it up next time I’m over here to see you.”

  They stood and each studied the other for an awkward moment, sensing mutual awareness of a new relationship that could lead them only God knew where. Marti made the initial move, and they embraced professionally, Marti sighing in great relief while Charlie silently signaled to the deputy to let him out of the room. Once outside, Charlie turned and faced Marti through the security window, shot her a victory sign, and disappeared down the corridor to cherish his own freedom on the outside.

  Marti watched carefully each retreating step that Charlie took until he was out of view. How she wished she would someday be tracing the same pathway to the outside. She felt confident he was the one to handle her case. She also felt grateful that the conversation never strayed more deeply into her licensing problems that could have put a completely different spin on the meeting and Charlie’s ultimate decision to work for her.

  There would come a time, she supposed, when she would be completely forthright with Malone and tell him that her LVN license had actually been suspended for five years following the Porterville incident. On advice of her attorney at the time, she surrendered her license and agreed not to re-apply in less than five years. The official investigation was thorough but did not conclusively determine that Barnes caused the death of a patient. There was no doubt, however, that she had used a choke hold, but in her defense, she was not properly trained or even authorized to use such a maneuver on a patient, even if she believed her life was threatened. The hospital had trained orderlies to take care of such problems. Technicians like Barnes, as she was called at the time, were not even allowed to place themselves in potential danger from violent patients, so her proximity to this inmate was even a basis for an employment sanction against her by her supervisors.

  She had weathered the five-year term of having no license by working as a cook at a family restaurant in Exeter where she gained a loyal following of customers who fell in love with her cooking. For a time, she thought she had found a new vocation, but slowly she felt compelled to re-apply for her LVN license. When she did so, it was granted without hesitation, and Marti went back to work caring for patients again, although now subject to twenty-four months of close supervision by state officials. Finally, everyone was satisfied, and all restrictions on her license were removed once she finished her two-year probation without incident.

  13

  Guilty Client?

  February 2007

  Ever since Charlie’s “accident” adjacent to the Vintage Press in September, ER nurse Bernadette Collis had made his care something of a personal mission. Selfishly, she wanted him as healthy and strong as could be to protect her sister-in-law in her litigation. Hopefully, Charlie would win both cases. Maybe also qualifying in the selfish category, Bernie also looked forward to her visits, and by now they had become fairly regular in spite of frequent conflicts in their busy schedules. She saw comparisons between her nursing profession and Charlie’s law practice. Each of them reached out to people in great need. She and Charlie had discussed the subject on more than one occasion. Tonight, at his home in Visalia, they were talking some more.

  “I see many similarities in our career paths,” offered Charlie. “Within the law, there are several ways to build a practice. I could advertise for the litigation-lotto clients who are looking for a lawyer to take their cases on a percentage of the action. Don’t get me wrong, this system works well enough, but it is full of abusive practices on both sides of the fence. For me, I’m more at home working for people who are down to their last options. Criminal defense work is not for every attorney, and that’s for certain, but for the ones who can manage the harsh lifestyle, it can be very rewarding. Helping someone preserve or obtain her freedom and her future or both, gives me a damn good feeling. These rewards are unpredictable, but worthy of pursuit nonetheless. And this is not a career path to becoming a judge, no way. Governors tend to appoint prosecutors and civil practice types, but few criminal defense lawyers are appointed to the bench. And, frankly, even fewer win contested elections against flamboyant prosecutors or serving judges when they run for an open seat.”

  “Your profession seems very fulfilling, at least from this consumer’s viewpoint.” Bernie’s remark caused a broad smile to crest Charlie’s entire countenance. “Do you think you’d ever want to become a judge?” she asked.

  “I’m certain every attorney considers the subject from time to time. In my case, I’m pretty sure I would not fit into the lifestyle on the bench. From what I hear, judges become somewhat isolated from the rest of society. They graduate to being members of an unofficial bench community during off hours. Promotion involves competing for very few appellate openings in a highly charged political setting. And that’s the good part. I’m not a conformist. I’d have some difficulty living up to the standard the community expects of its judges,” Charlie finished with honesty. “Law practice affords great opportunity to enjoy my lifestyle, but the downside includes the risk of screwing up,” he added with emphasis from personal experience.

  “Well I, I had no idea of the politics of that job,” Bernie acknowledged. “But I’ve always wondered about one thing lawyers do.”

  “Yeah, what’s that?” Charlie asked.

  “How is it that attorneys can represent clients they know are guilty?” she asked with complete innocence.

  Charlie studied Bernie’s face for a very long moment and then asked her, “Do you really want an answer to your question?”

  “I’m all ears,” she replied, anticipation in her voice.

  “Good, but the answer is long and complicated,” Charlie warned.

  Bernie settled in and listened with attention. “I’m leaving the teaching to you tonight, but I’ll let you know if it’s good for me,” she purred in his direction.

  Charlie emitted a huge sigh. “Okay, here goes.”

  “Who decides whether a person charged with a crime is guilty or innocent?” and Charlie began his discourse.

  “The judge, I think, but no, it’s usually the jury, right?” Bernie guessed.

  “That’s exactly right, but bear in mind that if both the district attorney and the defendant agree to waive the right to trial by jury, a judge sitting without a jury could make the ultimate decision of guilt or innocence,” Charlie explained.

  “The point of this explanation is simply that the issue of who is guilty of what crime is never known when
the client presents initially, to borrow a term from your profession.”

  “I’m sorry, I simply don’t get it,” Bernie complained.

  “That’s one reason I asked if you were up to listening to a lengthy explanation. You see, in the courtroom no one could ask the question you just asked me. The system is set up to prevent anyone but the jury or the judge from deciding the question of a defendant’s innocence or guilt. The prosecutor has no vote and is restricted to making decisions whether to charge a person with a crime and thereafter presenting the case in court. Other than during presentation of opening statements and final arguments, neither the prosecutor nor the defense attorney ever says much about guilt or innocence.

  “The initial question you asked about representing a guilty client is flawed because no one knows just who is, and who is not, guilty until the trial is finished. Since no one can assume guilt of anyone because all persons charged with crimes are presumed innocent till proven guilty beyond a reasonable doubt, the party who is charged with a crime is categorically innocent, thanks to the presumption. The reality is that until the entire process of a very lengthy trial is finished, the guilt or innocence question cannot be asked or even speculated upon. That’s not to say there isn’t a whole lot of speculation throughout the process, yet the point remains that the defense attorney is not charged with the duty of determining his or her client’s guilt or innocence. Defense counsel’s duty is to marshal a defense for the client. Someone else determines guilt or innocence.

  “Nonetheless, I understand the point of your question, even though it irritates good defense attorneys. This question usually breaks down to issues of trust. Does the question mean, for example, that an attorney is supposed to mistrust his client because the rest of the community has prejudged the case? Who else will be the defendant’s advocate under such circumstances? Should everyone, including members of the bar, be expected to pre-judge the case and abandon the poor devil? What if the defendant really is innocent, in spite of all appearances and even the defendant’s own sense of responsibility, yet only a lot of hard work and digging out the facts results in saving his life? Even the defendant’s personal opinion that he is guilty of something cannot be completely trusted until the attorney is satisfied based upon his own independent evaluation of the case.