The Fiddler in the Subway

by Gene Weingarten

  Last year it happened three times in one day, the worst day so far in the worst year so far in a phenomenon that gives no sign of abating.

  The facts in each case differ a little, but always there is the terrible moment when the parent realizes what he or she has done, often through a phone call from a spouse or caregiver, wondering about the child. This is followed by a frantic sprint to the car. What awaits there is the worst thing in the world.

  Each instance has its own macabre signature. One father had parked his car next to the grounds of a county fair; as he discovered his son’s body, a calliope tootled merrily beside him. Another man, wanting to end things quickly, tried to wrestle a gun from a police officer at the scene. Several people, including Mary Parks of Blacksburg, Virginia, have driven from their workplace to the day-care center to pick up the child they’d thought they’d dropped off, never noticing the corpse in the back seat.

  Then there is the Chattanooga, Tennessee, business executive who must live with this: His motion-detector car alarm went off, three separate times, out there in the broiling sun. But when he looked out, he couldn’t see anyone tampering with the car. So he remotely deactivated the alarm and went calmly back to work.

  THERE MAY BE no act of human failing that more fundamentally challenges our society’s views about crime, punishment, justice, and mercy. According to statistics compiled by a national child-safety advocacy group, in about 40 percent of these cases authorities examine the evidence, determine that the death was a terrible accident—a mistake of memory that delivers a lifelong sentence of guilt far greater than any a judge or jury could mete out—and file no charges. In the other 60 percent, parsing essentially identical facts and applying them to essentially identical laws, authorities decide that the negligence was so great and the injury so grievous that it must be called a felony, and it must be aggressively pursued.

  As it happens, just five days before Miles Harrison forgot his toddler son in the parking lot of the Herndon corporate-relocation business where he worked, a similar event had occurred a few hundred miles southeast. After a long shift at work, a Portsmouth, Virginia, sanitation department electrician named Andrew Culpepper picked up his toddler son from his parents, drove home, went into the house and then fell asleep, forgetting he’d had the boy in the car, leaving him to bake to death outside.

  Harrison was charged with a crime. Culpepper was not. In each case, the decision fell to one person.

  With Harrison, it was Ray Morrogh, the Fairfax commonwealth’s attorney. In an interview a few days after he brought the charge of involuntary manslaughter, Morrogh explained why.

  “There is a lot to be said for reaffirming people’s obligations to protect their children,” he said. “When you have children, you have responsibilities. I am very strong in the defense of children’s safety.”

  Morrogh has two kids himself, ages twelve and fourteen. He was asked if he could imagine this ever having happened to him. The question seemed to take him aback. He went on to another subject, and then, ten minutes later, made up his mind:

  “I have to say no, it couldn’t have happened to me. I am a watchful father.”

  In Portsmouth, the decision not to charge Culpepper, forty, was made by Commonwealth’s Attorney Earle Mobley. As tragic as the child’s death was, Mobley says, a police investigation showed that there was no crime because there was no intent: Culpepper wasn’t callously gambling with the child’s life—he had forgotten the child was there.

  “The easy thing in a case like this is to dump it on a jury, but that is not the right thing to do,” Mobley says. A prosecutor’s responsibility, he says, is to achieve justice, not to settle some sort of score.

  “I’m not pretty sure I made the right decision,” he says. “I’m positive I made the right decision.”

  There may be no clear right or wrong in deciding how to handle cases such as these; in each case, a public servant is trying to do his best with a Solomonic dilemma. But public servants are also human beings, and they will inevitably bring to their judgment the full weight of that complicated fact.

  “You know, it’s interesting we’re talking today,” Mobley says.

  He has five children. Today, he says, is the birthday of his sixth.

  “She died of leukemia in 1993. She was almost three.”

  Mobley pauses. He doesn’t want to create the wrong impression.

  He made the decision on the law, he says, “but I also have some idea what it feels like, what it does to you, when you lose a child.”

  So, after his son’s death, Andrew Culpepper was sent home to try to live the remainder of his life with what he had done. After his son’s death, Miles Harrison was charged with a felony. His mug shot was in the newspapers and on TV, with the haunted, hunted, naked-eyed look these parents always have, up against the wall. He hired an expensive lawyer. Over months, both sides developed their cases. Witnesses were assembled and interviewed. Efforts at a plea bargain failed. The trial began.

  THE COURT HEARD how Harrison and his wife had been a midlife childless couple desperately wanting to become parents, and how they’d made three visits to Moscow, setting out each time on a grueling ten-hour railroad trip to the Russian hinterlands to find and adopt their eighteen-month-old son from an orphanage bed he’d seldom been allowed to leave. Harrison’s next-door neighbor testified how she’d watched the new father giddily frolic on the lawn with his son. Harrison’s sister testified how she had worked with her brother and sister-in-law for weeks to find the ideal day-care situation for the boy, who would need special attention to recover from the effects of his painfully austere beginnings.

  From the witness stand, Harrison’s mother defiantly declared that Miles had been a fine son and a perfect, loving father. Distraught but composed, Harrison’s wife, Carol, described the phone call that her husband had made to her right after he’d discovered what he’d done, the phone call she’d fielded on a bus coming home from work. It was, she said, unintelligible screaming.

  In the end, Fairfax County Circuit Court Judge R. Terrence Ney found Miles Harrison not guilty. There was no crime, he said, citing the identical legal reasons Earle Mobley had cited for not charging Andrew Culpepper in the first place.

  At the verdict, Harrison gasped, sobbed, then tried to stand, but the man had nothing left. His legs buckled, and he crashed pathetically to his knees.

  SO, IF IT’S not manslaughter, what is it? An accident?

  “No, that’s an imperfect word.”

  This is Mark Warschauer, an internationally acclaimed expert in language learning and technology, professor of education at the University of California at Irvine. “The word ‘accident’ makes it sound like it can’t be prevented,” Warschauer says, “but ‘incident’ makes it sound trivial. And it is not trivial.”

  Warschauer is a Fulbright scholar, specializing in the use of laptops to spread literacy to children. In the summer of 2003, he returned to his office from lunch to find a crowd surrounding a car in the parking lot. Police had smashed the window open with a crowbar. Only as he got closer did Warschauer realize it was his car. That was his first clue that he’d forgotten to drop his ten-month-old son, Mikey, at day care that morning. Mikey was dead.

  Warschauer wasn’t charged with a crime, but for months afterward he contemplated suicide. Gradually, he says, the urge subsided, if not the grief and guilt.

  “We lack a term for what this is,” Warschauer says. And also, he says, we need an understanding of why it happens to the people it happens to.

  DAVID DIAMOND IS picking at his breakfast at a Washington hotel, trying to explain.

  “Memory is a machine,” he says, “and it is not flawless. Our conscious mind prioritizes things by importance, but on a cellular level, our memory does not. If you’re capable of forgetting your cell phone, you are potentially capable of forgetting your child.”

  Diamond is a professor of molecular physiology at the University of South Florida and a consultant to the ve
terans hospital in Tampa. He’s here for a national science conference to give a speech about his research, which involves the intersection of emotion, stress, and memory. What he’s found is that under some circumstances, the most sophisticated part of our thought-processing center can be held hostage to a competing memory system, a primitive portion of the brain that is—by a design as old as the dinosaur’s—inattentive, pigheaded, nonanalytical, stupid.

  Diamond is the memory expert with a lousy memory, the one who recently realized, while driving to the mall, that his infant granddaughter was asleep in the back of the car. He remembered only because his wife, sitting beside him, mentioned the baby. He understands what could have happened had he been alone with the child. Almost worse, he understands exactly why.

  The human brain, he says, is a magnificent but jury-rigged device in which newer and more sophisticated structures sit atop a junk heap of prototype brains still used by lower species. At the top of the device are the smartest and most nimble parts: the prefrontal cortex, which thinks and analyzes, and the hippocampus, which makes and holds on to our immediate memories. At the bottom is the basal ganglia, nearly identical to the brains of lizards, controlling voluntary but barely conscious actions.

  Diamond says that in situations involving familiar, routine motor skills, the human animal presses the basal ganglia into service as a sort of auxiliary autopilot. When our prefrontal cortex and hippocampus are planning our day on the way to work, the ignorant but efficient basal ganglia is operating the car; that’s why you’ll sometimes find yourself having driven from point A to point B without a clear recollection of the route you took, the turns you made, or the scenery you saw.

  Ordinarily, says Diamond, this delegation of duty “works beautifully, like a symphony. But sometimes, it turns into the 1812 Overture. The cannons take over and overwhelm.”

  By experimentally exposing rats to the presence of cats, and then recording electrochemical changes in the rodents’ brains, Diamond has found that stress—either sudden or chronic—can weaken the brain’s higher-functioning centers, making them more susceptible to bullying from the basal ganglia. He’s seen the same sort of thing play out in cases he’s followed involving infant deaths in cars.

  “The quality of prior parental care seems to be irrelevant,” he said. “The important factors that keep showing up involve a combination of stress, emotion, lack of sleep, and change in routine, where the basal ganglia is trying to do what it’s supposed to do, and the conscious mind is too weakened to resist. What happens is that the memory circuits in a vulnerable hippocampus literally get overwritten, like with a computer program. Unless the memory circuit is rebooted—such as if the child cries, or, you know, if the wife mentions the child in the back—it can entirely disappear.”

  Diamond stops.

  “There is a case in Virginia where this is exactly what happened, the whole set of stress factors. I was consulted on it a couple of years ago. It was a woman named, ah…”

  He puts down his fork, searches the ceiling, the wall, the floor, then shakes his head. He’s been stressing over his conference speech, he says, and his memory retrieval is shot. He can’t summon the name.

  Lyn Balfour?

  “Yeah, Lyn Balfour! The perfect storm.”

  IT’S MID-OCTOBER. Lyn Balfour is on her cell phone, ordering a replacement strap for a bouncy seat for the new baby and simultaneously trying to arrange for an emergency sitter, because she has to get to the fertility clinic, pronto, because she just got lab results back, and she’s ovulating, and her husband’s in Iraq, and she wants to get artificially inseminated with his sperm, like right now, but, crap, the sitter is busy, so she grabs the kid and the keys and the diaper bag and is out the door and in the car and gone. But now the baby is fussing, so she’s reaching back to give him a bottle of juice, one eye on him and the other on a seemingly endless series of hairpin turns that she negotiates adroitly.

  “Actually,” she laughs, “I’m getting better about not doing too much at once. I’ve been simplifying my life a lot.”

  Raelyn Balfour is what is commonly called a type-A personality. She is the first to admit that her temperament contributed to the death of her son, Bryce, two years ago. It happened on March 30, 2007, the day she accidentally left the nine-month-old in the parking lot of the Charlottesville judge advocate general’s office, where she worked as a transportation administrator. The high temperature that day was only in the 60s, but the biometrics and thermodynamics of babies and cars combine mercilessly: Young children have lousy thermostats, and heat builds quickly in a closed vehicle in the sun. The temperature in Balfour’s car that day topped 110 degrees.

  There’s a dismayingly cartoonish expression for what happened to Lyn Balfour that day. In 1990, British psychologist James Reason coined the term the “Swiss Cheese Model” to explain through analogy why catastrophic failures can occur in organizations despite multiple layers of defense. Reason likens the layers to slices of Swiss cheese, piled upon each other, five or six deep. The holes represent small, potentially insignificant weaknesses. Things will totally collapse only rarely, he says, but when they do, it is by coincidence—when all the holes happen to align so that there is a breach through the entire system.

  On the day Balfour forgot Bryce in the car, she had been up much of the night, first babysitting for a friend who had to take her dog to an emergency vet clinic, then caring for Bryce, who was cranky with a cold. Because the baby was also tired, he uncharacteristically dozed in the car, so he made no noise. Because Balfour was planning to bring Bryce’s usual car seat to the fire station to be professionally installed, Bryce was positioned in a different car seat that day, not behind the passenger but behind the driver, and was thus not visible in the rearview mirror. Because the family’s second car was on loan to a relative, Balfour drove her husband to work that day, meaning the diaper bag was in the back, not on the passenger seat, as usual, where she could see it. Because of a phone conversation with a young relative in trouble, and another with her boss about a crisis at work, Balfour spent most of the trip on her cell, stressed, solving other people’s problems. Because the babysitter had a new phone, it didn’t yet contain Balfour’s office phone number, only her cell number, meaning that when the sitter phoned to wonder why Balfour hadn’t dropped Bryce off that morning, it rang unheard in Balfour’s pocketbook.

  The holes, all of them, aligned.

  There is no consistent character profile of the parent who does this to his or her child. The thirteen who agreed to be interviewed for this story include the introverted and extroverted; the sweet, the sullen, the stoic, and the terribly fragile. None of those descriptions exactly fits Lyn Balfour, a thirty-seven-year-old Army reservist who has served in combat zones and who seems to remain—at least on the subject of the death of her son—in battle.

  “I don’t feel I need to forgive myself,” she says plainly, “because what I did was not intentional.”

  Balfour is tall and stands taller, moving with a purposeful, swinging stride. She’s got a weak chin but a strong mouth that she uses without much editing. She’s funny and brassy and in your face, the sort of person you either like or don’t like, right away.

  It had been Balfour’s idea to go to the trial of Miles Harrison, and it was she who walked up to Harrison in the hallway during a break, pushed past a crowd, and threw her arms around his neck, pulling him close. For almost a full minute, she whispered in his ear. His eyes grew wider, and then he wept into her shoulder like a baby. What she had told him was who she was and that she knew he’d been a good, loving father, and he must not be ashamed.

  Balfour grew up medium-poor in Michigan. There was a man she’d been told was her father and a close family friend who, she later learned, was actually her father. Her two sets of grandparents wound up divorcing each other, then switching partners. There was alcoholism, divorce, a battle for custody. When Balfour turned eighteen, she was ready for the discipline of the Army.

&n
bsp; She served in Bosnia and twice in Iraq, where she specialized in intelligence analysis and construction management, and where she discovered a skill at juggling a dozen things at once. She won a Bronze Star for managing $47 million in projects without mislaying a penny. She got married, had a son, divorced, met Jarrett Balfour and within a month decided this handsome, younger man would be her husband. Eighteen months later, he was. Bryce was their first child together. Braiden, conceived with Jarrett’s sperm when he was in Iraq, is their second. Today, in the same way, they’re trying for a third.

  Balfour has stopped at the fertility clinic for her procedure, and she’s now driving to the school of the Judge Advocate General Corps to demonstrate where and how her son’s death happened. Down the road to the right is where she dropped Jarrett off at work, which was not customary, and which she theorizes put a subconscious check mark in her brain: Delivery made. Now she’s pointing out the house of the babysitter she’d driven obliviously past as she talked to her boss about a scheduling snafu and to her nephew about helping to pay his gambling debts. And here is the parking lot of the JAG School, on the University of Virginia campus. She’s pulling into the same spot she was parked in that day, the place where Bryce died.

  “It was like this, except these two spots next to us were empty,” she notes blandly as she gets out of the car, gathers her keys, and leans in to get the diaper bag.

  There is an almost pugnacious matter-of-factness about Lyn Balfour that can seem disconcerting, particularly if you have a preconception about how a person in her circumstances is supposed to face the world.