You might expect, for example, that she has gotten another car. But this black Honda Pilot with the pink Tinkerbell steering wheel cover is the same car Bryce died in, just inches from where Balfour is bending over Braiden to unstrap him.
“It didn’t make financial sense to get a new car,” she says.
Balfour’s eyes are impassive. Her attitude is clear:
You got a problem with that?
NOT ALL CASES of infant hyperthermia in cars are like the ones this article is about: simple if bewildering lapses of memory by an otherwise apparently good parent. In other types of cases, there is a history of neglect, or evidence of substance abuse. Sometimes, the parent knowingly left the child in the car, despite the obvious peril. In one particularly egregious instance, a mother used her locked car as an inexpensive substitute for day care. When hyperthermia deaths are treated as crimes, these are the ones that tend to result in prison sentences.
Cases like Lyn Balfour’s, when prosecuted, typically end in some sort of compromise: a plea to a reduced charge, sometimes with probation and a suspended sentence, sometimes with community service. Going all the way to trial is a relative rarity.
What happened to Balfour was even rarer. She was charged not with manslaughter, but with second-degree murder, carrying a possible prison sentence of up to forty years. And as a condition of remaining free on bond, the court prohibited her from being alone with any minors, including her own teenage son.
So Balfour hired John Zwerling, a top-gun criminal defense lawyer from Alexandria. That meant that Jarrett Balfour, an employee of a civilian military contractor, had no choice but to take an assignment in Iraq. The extra combat pay would be needed for legal expenses. Lyn Balfour would have to face this alone.
That is when she began to move past grief and guilt and paralyzing self-doubt to a very specific, very focused anger.
JOHN ZWERLING PRESENTS a passable version of Nero Wolfe, Rex Stout’s portly, eccentric genius hero of detective fiction. Zwerling’s law offices are in a handsome Old Town townhouse with dark walnut molding and dark wooden shutters. The boss is the guy with the Santa beard sitting in the chair with a hole in the leather, in jeans and a shirt with a big stain, the front buttons laboring mightily to do their job.
Zwerling’s first task, he says, was to make the case that second-degree murder was a preposterous charge in a case lacking even the faintest whisper of intent. That, he did. After a preliminary hearing, the charge was reduced to involuntary manslaughter. Zwerling’s second and more daunting job was to craft a defense for a case that was being prosecuted with what at times seemed like theatrical zeal.
Here is how Assistant Commonwealth’s Attorney Elizabeth Killeen would sum it up before the jury: “This little boy’s life did not have to end this way, on a hospital gurney. Deceased. Dead. His life squandered, and gone forever.”
In the end, Zwerling had one key decision to make. In criminal cases, jurors want to hear from the defendant. Zwerling liked and respected Balfour, but should he put her on the stand?
“Have you met her?” he asks.
Yes.
“Then you’ve seen that mental girdle she puts on, the protective armor against the world, how she closes up and becomes a soldier. It helps her survive, but it can seem off-putting if you’re someone who wants to see how crushed she is.”
Zwerling decided not to risk it.
“I wound up putting her on the stand in a different way,” he says, “so people could see the real Lyn—vulnerable, with no guile, no posturing.”
What Zwerling did was play two audiotapes for the jury. One was Balfour’s interrogation by police in the hospital about an hour after Bryce’s death; her answers are immeasurably sad, almost unintelligible, half sob, half whisper: “I killed my baby,” she says tremulously. “Oh, God, I’m so sorry.”
The second tape was a call to 911 made by a passerby, in those first few seconds after Balfour discovered the body and beseeched a stranger to summon help.
Zwerling swivels to his computer, punches up an audio file.
“Want to hear it?”
BALFOUR HAS LEFT her car, carrying Braiden, and is reenacting her movements from that day after work, the day Bryce died. She walks from her cubicle in room 153A of the JAG School, out to the front of the building. By midafternoon, she had finally checked her cell and discovered she’d missed an early morning call from her babysitter. She called back, but got only voice mail. It didn’t worry her. She and the babysitter were friends, and they talked often about all sorts of things. Balfour left a message asking for a callback.
It came when she was standing where she is now, on a spacious stone patio in front of the JAG School, heading toward the parking lot. As it happens, there is a Civil War–era cannon that is aimed, with unsettling irony, exactly where she stands.
The babysitter asked Balfour where Bryce was. Balfour said: “What do you mean? He’s with you.”
It is 60 feet to the end of the patio, then a stairwell with eleven steps down, then two steps across, then a second stairwell, twelve steps down, one more off the curb and then a thirty-foot sprint to the car. Balfour estimates the whole thing took half a minute or less. She knew it was too late when, through the window, she saw Bryce’s limp hand, and then his face, unmarked but lifeless and shiny, Balfour says, “like a porcelain doll.”
It was seconds later that the passerby called 911.
THE TAPE IS unendurable. Mostly, you hear a woman’s voice, tense but precise, explaining to a police dispatcher what she is seeing. Initially, there’s nothing in the background. Then Balfour howls at the top of her lungs, “OH, MY GOD, NOOOO!”
Then, for a few seconds, nothing.
Then a deafening shriek: “NO, NO, PLEASE, NO!!!”
Three more seconds, then: “PLEASE, GOD, NO, PLEASE!!!”
What is happening is that Balfour is administering CPR. At that moment, she recalls, she felt like two people occupying one body: Lyn, the crisply efficient certified combat lifesaver, and Lyn, the incompetent mother who would never again know happiness. Breathe, compress, breathe, compress. Each time that she came up for air, she lost it. Then, back to the patient.
After hearing this tape, the jury deliberated for all of ninety minutes, including time for lunch. Not guilty.
“I DIDN’T FEEL this case should ever have been brought,” says juror Colin Rosse, a retired radio executive. “It may have been negligence, but it was an honest mistake.”
Jury foreman James Schlothauer, an inspections official for the county government, doesn’t fault the prosecution; Balfour’s case was complex, he says, and the facts needed an airing. But the facts, he says, also made the verdict a slam dunk. It was “a big doggone accident,” he says, that might have happened to anyone.
To anyone?
Schlothauer hesitates.
“Well, it happened to me.”
The results were not catastrophic, Schlothauer says, but the underlying malfunction was similar: Busy and stressed, he and his wife once got their responsibilities confused, and neither stopped at day care for their daughter at the end of the day.
“We both got home, and it was, ‘Wait, where’s Lily?’ ‘I thought you got her!’ ‘I thought you got her!’”
What if that mix-up had happened at the beginning of the day?
“To anyone,” Schlothauer says.
THERE IS NO national clearinghouse for cases of infant hyperthermia, no government agency charged with data collection and oversight. The closest thing is in the basement office of a comfortable home in suburban Kansas City, Kansas, where a former sales and marketing executive named Janette Fennell runs a nonprofit organization called Kids and Cars. Kids and Cars lobbies for increased car safety for children, and as such maintains one of the saddest databases in America.
Fennell is on a sofa, her bare feet tucked under her, leafing through files. Amber, her college intern, walks up and plops a fax of a new wire service story on the table.
�
��Frontover,” Amber says. “Parking lot, North Carolina.”
There’s a grisly terminology to this business. “Backovers” happen when you look in the rearview mirror and fail to see the child behind the car, or never look at all. “Frontovers” occur almost exclusively with pickups and SUVs, where the driver sits high off the ground. There are “power window strangulations” and “cars put in motion by child” and, finally, “hyperthermia.”
In a collage on Fennell’s wall are snapshots of dozens of infants and toddlers, some proudly holding up fingers, as if saying, “I’m two!” Or “I’m three!” The photos, typically, are from their final birthdays.
Fennell has met or talked with many of the parents in the hyperthermia cases, and some now work with her organization. She doesn’t seek them out. They find her name, often late at night, sleeplessly searching the Web for some sign that there are others who have lived in the same hell and survived. There is a general misconception, Fennell says, about who these people are: “They tend to be the doting parents, the kind who buy baby locks and safety gates.” These cases, she says, are failures of memory, not of love.
Fennell has an expression that’s half smile, half wince. She uses it often.
“Some people think, ‘Okay, I can see forgetting a child for two minutes, but not eight hours.’ What they don’t understand is that the parent in his or her mind has dropped off the baby at day care and thinks the baby is happy and well taken care of. Once that’s in your brain, there is no reason to worry or check on the baby for the rest of the day.”
Fennell believes that prosecuting parents in this type of case is both cruel and pointless: It’s not as though the fear of a prison sentence is what will keep a parent from doing this. The answer to the problem, Fennell believes, lies in improved car safety features and in increased public awareness that this can happen, that the results of a momentary lapse of memory can be horrifying.
What is the worst case she knows of?
“I don’t really like to…” she says.
She looks away. She won’t hold eye contact for this.
“The child pulled all her hair out before she died.”
For years, Fennell has been lobbying for a law requiring back-seat sensors in new cars, sensors that would sound an alarm if a child’s weight remained in the seat after the ignition is turned off. Last year, she almost succeeded. The 2008 Cameron Gulbransen Kids’ Transportation Safety Act—which requires safety improvements in power windows and in rear visibility, and protections against a child accidentally setting a car in motion—originally had a rear-seat sensor requirement, too. It never made the final bill; sponsors withdrew it, fearing they couldn’t get it past a powerful auto manufacturers’ lobby.
There are a few aftermarket products that alert a parent if a child remains in a car that has been turned off. These products are not huge sellers. They have likely run up against the same marketing problem that confronted three NASA engineers a few years ago.
In 2000, Chris Edwards, Terry Mack, and Edward Modlin began to work on just such a product after one of their colleagues, Kevin Shelton, accidentally left his nine-month-old son to die in the parking lot of NASA Langley Research Center in Hampton, Virginia. The inventors patented a device with weight sensors and a keychain alarm. Based on aerospace technology, it was easy to use; it was relatively cheap, and it worked.
Janette Fennell had high hopes for this product: The dramatic narrative behind it, she felt, and the fact that it came from NASA, created a likelihood of widespread publicity and public acceptance.
That was five years ago. The device still isn’t on the shelves. The inventors could not find a commercial partner willing to manufacture it. One big problem was liability. If you made it, you could face enormous lawsuits if it malfunctioned and a child died. But another big problem was psychological: Marketing studies suggested it wouldn’t sell well.
The problem is this simple: People think this could never happen to them.
“I WAS THAT guy, before. I’d read the stories, and I’d go, ‘What were those parents thinking?’”
Mikey Terry is a contractor from Maypearl, Texas, a big man with soft eyes. At the moment he realized what he’d done, he was in the cab of a truck and his six-month-old daughter, Mika, was in a closed vehicle in the broiling Texas sun in a parking lot 40 miles away. So his frantic sprint to the car was conducted at 100 miles an hour in a 30-foot gooseneck trailer hauling thousands of pounds of lumber the size of telephone poles.
On that day in June 2005, Terry had been recently laid off, and he’d taken a day job building a wall in the auditorium of a Catholic church just outside of town. He’d remembered to drop his older daughter at day care, but as he was driving the baby to a different day-care location, he got a call about a new permanent job. This really caught his attention. It was a fatal distraction.
Terry, thirty-five, wasn’t charged with a crime. His punishment has been more subtle.
The Terrys are Southern Baptists. Before Mika’s death, Mikey Terry says, church used to be every Sunday, all day Sunday, morning Bible study through evening meal. He and his wife, Michele, don’t go much anymore. It’s too confusing, he says.
“I feel guilty about everyone in church talking about how blessed we all are. I don’t feel blessed anymore. I feel I have been wronged by God. And that I have wronged God. And I don’t know how to deal with that.”
Four years have passed, but he still won’t go near the Catholic church he’d been working at that day. As his daughter died outside, he was inside, building a wall on which would hang an enormous crucifix.
“THIS IS A case of pure evil negligence of the worse kind… He deserves the death sentence.”
“I wonder if this was his way of telling his wife that he didn’t really want a kid.”
“He was too busy chasing after real estate commissions. This shows how morally corrupt people in real estate-related professions are.”
These were readers’ online comments to the Washington Post news article of July 10, 2008, reporting the circumstances of the death of Miles Harrison’s son. These comments were typical of many others, and they are typical of what happens again and again, year after year in community after community, when these cases arise. A substantial proportion of the public reacts not merely with anger, but with frothing vitriol.
Ed Hickling believes he knows why. Hickling is a clinical psychologist from Albany, New York, who has studied the effects of fatal auto accidents on the drivers who survive them. He says these people are often judged with disproportionate harshness by the public, even when it was clearly an accident, and even when it was indisputably not their fault. Humans, Hickling said, have a fundamental need to create and maintain a narrative for their lives in which the universe is not implacable and heartless, that terrible things do not happen at random, and that catastrophe can be avoided if you are vigilant and responsible.
In hyperthermia cases, he believes, the parents are demonized for much the same reasons. “We are vulnerable, but we don’t want to be reminded of that. We want to believe that the world is understandable and controllable and unthreatening, that if we follow the rules, we’ll be okay. So, when this kind of thing happens to other people, we need to put them in a different category from us. We don’t want to resemble them, and the fact that we might is too terrifying to deal with. So, they have to be monsters.”
After Lyn Balfour’s acquittal, this comment appeared on the Charlottesville News Web site: “If she had too many things on her mind then she should have kept her legs closed and not had any kids. They should lock her in a car during a hot day and see what happens.”
LYN BALFOUR’S RUCKERSVILLE home is fragrant with spice candles and the faintly sweet feel of kitsch. Braiden boings happily in a baby bouncer, the same one Bryce had, and crawls on a patchwork comforter that had been Bryce’s, too. As Balfour is text-messaging Jarrett in Iraq, she’s checking out Braiden’s diaper, multitasking as always.
“Peopl
e say I’m a strong woman,” Balfour says, “but I’m not. It’s just that when I grieve, I grieve alone…”
The pacifier pops out of Braiden’s mouth. Balfour rinses it, pops it back in.
“. . . because deep down I feel I don’t have the right to grieve in front of others.”
Balfour says she has carefully crafted the face she shows the world.
“I would like to disappear, to move someplace where no one knows who I am and what I did. I would do that in a heartbeat, but I can’t. I have to say my name. I’m the lady who killed her child, and I have to be that lady because I promised Bryce.”
The promise, she says, came as she held her son’s body in the hospital. “I kissed him for the last time, and I told him how sorry I was, and I said I would do everything in my power to make sure this will never happen to another child.”
Balfour has done this in a way suited to her personality; she has become a modern, maternal version of the Ancient Mariner, brazenly bellying up to strangers in places such as Sam’s Club and starting a conversation about children, so she can tell them what she did to one of hers. An in-your-face cautionary tale.
Unlike most parents to whom this has happened, Balfour will talk to the media, anytime. She works with Kids and Cars, telling her story repeatedly. Her point is always consistent, always resolute, always tinged with a little anger, always a little self-serving, sometimes a bit abrasive: This can happen to anyone. This is a mistake, not a crime, and should not be prosecuted. Cars need safety devices to prevent this. She seldom seems in doubt or in particular anguish. No one sees her cry.
“The truth is,” she says, “the pain never gets less. It’s never dulled. I just put it away for a while, until I’m in private.”
The Fiddler in the Subway Page 30