by Jodi Picoult
Memory has had a spotty record in the United States court system. For a while, recovered memory was all the rage--adults went to therapists, who planted seeds for trauma that didn't really exist. Hundreds of people came out of the woodwork to accuse child-care workers of abuse and Satanism, and their recollections were allowed as evidence and treated as fact. In the mid-nineties, however, the tide began to turn. Judges steered clear of recovered memories, saying they weren't valid unless they were supported by independent evidence.
We happen to be twenty-eight years late for that.
Still, it's new evidence, and I'll be damned if I'm not getting it in. Delia has given me a list of the memories, the ones that are coming fast and furious now that the wire has seemingly been tripped: the lemon tree, in its entirety. A pair of boxers Victor used to own with blue fish printed all over them. Having him sit on the edge of her bed and lift her nightgown to rub her back. Victor asking her to pull down her underwear and touch herself.
I have to treat it the way I would any other evidence. If I think too hard about it, I want to kill someone.
I send Emma flowers at the birthing center of the hospital. The card reads "Delia has started to remember the abuse. Consider this notice of my intention to bring these memories into the trial." Two days later, she moves for a 702 hearing, to address the scientific reliability of the evidence.
We are in the courtroom, but it's a closed hearing, just the judge and the attorneys; no media or jury. Emma wears a maternity dress, but it's pouchy and bunched at the stomach.
Alison Rebbard, Emma's expert witness, is a memory expert affiliated with a string of Ivy League universities. She has a thin face accented by pink, wire-rimmed glasses, and she's used to sitting in a witness box. "Dr. Rebbard," Emma asks, "how does memory work?"
"The brain can't remember everything," she says. "It just doesn't have the storage capacity. We forget most of what occurs, including events that were probably significant at the time. Now, the things that do stick ... well, they aren't like images on a videotape. Only minimal bits of information are recorded, and when we recall it, our mind automatically fleshes out the recollection by inventing details based on previous similar experiences. Memory is a reconstruction; it's contaminated by mood and circumstance and a hundred other factors."
"So, a memory might change over time?"
"It most likely will. But interestingly, it seems to retain its mutations. Distortions become part of the memory in subsequent recalls."
"Are some memories true, then, while some are false?" Emma asks.
"Yes. And some are a mixture of books we've read or movies we've seen. One of my studies, for example, focused on children at a school that was attacked by a sniper. Even the kids who weren't on school grounds at the time had a recollection of being there during the attack ... a false memory that was probably inspired by the stories they heard from their friends and on the news."
"Dr. Rebbard," Emma asks, "is there a general agreement about when a child is capable of retaining traumatic memories?"
"Overall, we say that events that happen before age two won't be remembered past childhood; and memories before the age of three are rare and unreliable. Most researchers believe that serious abuse after the age of four will be remembered into adulthood."
"Delia Hopkins has not been seeing a therapist, but has been experiencing recovered memories," Emma explains. "Would that surprise you?"
"Not given what you've told me about this case," Dr. Rebbard says. "The preparation for this trial and the testimony itself would force her to relive hypothetical scenarios. She's wondering why her father might have taken her; she's wondering if there was something in her past that might have precipitated it. It's impossible to tell whether she's actually remembering these things or if she only wants to remember them. Either way would explain a period of her life she doesn't understand, and would most likely vindicate her father's behavior."
"I'd like to address the particular memories that Ms. Hopkins claims to have recovered," Emma says, and I jump up.
"Objection," I say, "this hearing is only about admissibility, Your Honor. It would be premature to have the State's expert judge the reliability of memories without hearing the actual testimony of the memories and how the witness experienced them." Or in other words, you have to let my evidence in first.
Judge Noble looks at me over his half-glasses. "Is Ms. Hopkins here to testify?"
No, because she's barely speaking to me.
"Not today, Your Honor," I say aloud.
"Well, that's your problem, son. We're going to allow your offer of proof to stand as to what she might testify to in open court, and I'm going to allow Ms. Wasserstein to proceed."
Emma approaches the witness stand. "In the first alleged memory," she says, "Ms. Hopkins remembers Mr. Vasquez wearing boxer shorts printed with blue fish. In the second alleged memory, Mr. Vasquez is coming into her bedroom at night and stroking her back. In the third, he asks her to remove her underpants and touch herself. Is this damning evidence, in your opinion?"
"Often we'll see a subject come to a therapist with a few disconnected traumatic images, sort of like bits of a black-and-white photo. These are what we'd call deteriorated memories."
"Isn't it possible, Doctor, that Ms. Hopkins remembers seeing Mr. Vasquez in his boxers because, like every other child on the planet, she walked in on him in the bathroom?"
"Absolutely."
"And what if the reason he was in her room at night was not to harm her, but to comfort her after a nightmare?"
"Very plausible, as well," Rebbard agrees.
"And as for the third, what if there was a medical reason for the request--for example, if the child had a yeast infection and Mr. Vasquez wanted her to apply cream to the area?"
"In that scenario," Dr. Rebbard points out, "he's going out of his way to not touch her. The point here is that we don't have the whole memory, the whole story. Unfortunately, neither does Ms. Hopkins. She's looking at a striped tail and screaming because it must be a tiger, when in actuality it might be a house cat."
I don't have an expert witness; I couldn't have afforded one even if I'd had the foresight to find one. Instead, I've spent the past two days poring over psychiatric texts and legal briefs, trying to find what I can to trap the State's expert during cross-examination.
I approach Dr. Rebbard with my hands in my trouser pockets. "Why would Delia want to make up a memory that's so painful?"
"Because the fringe benefit outweighs that," the psychiatrist explains. "It becomes a hook for the jury to hang its hat on, and acquit her father."
"Repression is defined as the selective forgetting of materials that cause pain, isn't that true?" I ask.
"Yes."
"It's not a voluntary act."
"No."
"Can you explain dissociation, Doctor?"
She nods. "When a person is in a state of terror or pain, perceptions get altered. Attention is focused on the present moment, and surviving. When attention becomes that narrow, there can be great perceptual distortion, including desensitization from pain, time slowing down, and amnesia. Some psychiatrists believe that removing the anxiety can lead to remembering what happened," she adds, "but I'm not one of them."
"Even though you don't believe it, however, dissociative amnesia is a valid psychiatric condition, isn't it?"
"Yes."
"In fact, the DSM-IV, the bible of psychiatric diagnosis, even lists it." I lean down to the defense table and read aloud. " 'Dissociative amnesia is characterized by an inability to recall important personal information, usually of a traumatic or stressful nature, that is too extensive to be explained by ordinary forgetfulness.' That seems to describe Delia Hopkins, doesn't it?"
"Yes."
I continue reading. " 'It commonly presents as a retrospectively reported gap in recall for aspects of the individual's life history.' Again, that's a bull's-eye."
"Apparently."
" '... in recent
years, there has been an increase in reported cases of dissociative amnesia that involves previously forgotten early childhood traumas.' Bingo." I look up at her. "This manual only lists diagnoses that have come from years of empirical data and clinical observation, right?"
"Yes."
"And it's considered a conservative document?"
"Yes."
"You use this manual professionally, don't you?"
"Yes, but as an analytic tool, not a legal one." She tilts her head. "Do you know when the DSM-IV was written, Mr. Talcott?"
I freeze and scan the front of the book. "Nineteen ninety-three?"
"Right. Before the rise of repressed memory therapy led to hundreds of false convictions of sexual abuse."
Ouch. "How does a triggered memory differ from a recovered memory, Doctor?"
"There's a school of thought that says memories of traumatic moments are just as abnormal as the moments themselves, and don't have the same associations that other memories do, which means they're harder to bring front and center in the mind. But by the same reasoning, trauma-specific clues might be able to trip those memories."
"So a triggered memory isn't planted, so to speak. It really does exist, and has just been waiting for the right time to break free."
"That's right."
"Can you give an example?"
"A subject might hear a gun go off in close proximity, and then suddenly remember a gunshot years ago that killed his father when he was standing next to him."
"Isn't it true that this scenario is closer to the way Delia Hopkins has recovered her memories, Doctor?" The psychiatrist nods. "And isn't it possible, Doctor, that there is a place memory can go, until it's ready to come forward again--for whatever reason? That recovering a memory might not be a re-creation but ... a search-and-rescue mission?"
The words remind me, of course, of Delia. "I suppose so, Mr. Talcott."
I take a deep breath. "Nothing further."
Emma stands up again. "By the defense's own reasoning, if Ms. Hopkins was recovering memories of traumatic childhood events when there was a trigger, such as courtroom testimony, wouldn't it make sense that she'd react the same way to similar triggers?"
"Theoretically," Dr. Rebbard agrees.
"Then why didn't she have a barrage of recollections about her abduction?" Emma poses, as I object. "Nothing further."
I'm already approaching Dr. Rebbard again. "What if it wasn't traumatic?" I ask.
"I'm not sure I understand ..."
"What if, to Delia, the kidnapping wasn't something frightening? What if she considered it a relief, a way out from the sexual abuse? In that case, Dr. Rebbard, a memory of the abduction wouldn't have been triggered by her father's testimony, right?"
This time Dr. Rebbard gives me a full smile. "I suppose not, Counselor," she says.
Emma is showing me pictures of her son when the judge comes back with his ruling. "The issue here is whether we can forget events that took place," Judge Noble says, "and if we can remember events that never took place. This topic, of course, is a highly charged one. No matter how I rule, and no matter what we say to the jury, we're going to be dealing with a situation where the jurors are going to have a hard time separating their feelings from the events being discussed." He looks at Emma. "The greatest tragedy of this trial would be to believe another lie from Andrew Hopkins. And as it stands, the evidence is not reliable enough to justify inclusion."
Then he turns to me. "I'm making a legal decision here, but I can't make the emotional ones. I'm damn sure my decision isn't going to make you very happy, son. But I want you to remember that even though I can rule out what happens from this point forward, I can't take back what's already been said. Maybe in New Hampshire those judges don't tell it like it is, but here in Arizona, we do. And I want you to know, Mr. Talcott, you may think your case hinges on this evidence, but I expect you're gonna do just fine without it."
He gets up and exits; Emma behind him. I sit for a few moments in the empty courtroom. If this were like old times, I would go home and tell Delia that I'd lost the hearing. I'd repeat, verbatim, what the judge had said, and I'd ask her to interpret it. We'd dissect my performance until she finally threw up her hands and said we were going nowhere with any of this.
She will not be back tonight, I suppose. And we're still going nowhere.
Andrew
Delia is the last person to enter the courtroom before the doors are shut. She is wearing a yellow dress and her dark hair is pulled back off her neck; it reminds me of a long, lovely sunflower. I have so much to say to her, but it is better done afterward, anyway; when I will likely have yet another reason to tell her I'm sorry.
Beside me, Eric gets to his feet to address the jury. "You know what love is, ladies and gentlemen?" he asks. "It's not doing whatever the person you care for expects of you. It's doing what they don't expect. It's going above and beyond what you've been asked. That's what Andrew Hopkins should be charged with, you know. That's what he would plead guilty to, hands down.
"The prosecutor is going to talk to you about obeying rules. She's going to use words like 'kidnapping.' But there was no kidnapping here; there was no force. And as for rules, well, you know there are always exceptions. What you might not know, however, is that the same thing applies to the letter of the law."
Eric walks toward the jury. "The judge is going to tell you that if you find that Andrew had committed all the elements of kidnapping beyond a reasonable doubt, then you should convict him. Not that you have to ... not that you'd like to ... but that you should find him guilty. Why doesn't the judge say that you must find him guilty? Because he can't. You, as jurors, have the ultimate authority and power to convict or not to convict--no matter what."
"Objection!" Emma Wasserstein steams. "Bench!" The two lawyers approach the judge. "Your Honor, he's telling the jury they can nullify the whole charge if they want to," the prosecutor complains.
"I know," Judge Noble says evenly. "And there's nothin' I can do about it."
When Eric turns around, he's stunned; I don't think he expected to get away with this. He swallows and faces the jury again. "The law is very deliberate, and it chooses its words carefully. And sometimes, on purpose, it opens the door for that gap between rule and reason. You have a choice to make, ladies and gentlemen. Some choices are not made lightly. Not the ones Andrew made, not the ones the law makes, and, I hope, not your own."
Emma Wasserstein is so angry I expect to see sparks flying from her shoes. "Mr. Talcott has apparently been spending too much time with his client," she tells the jury, "because he's just lied to you. He told you this isn't kidnapping, because there was no force involved. Well, nobody asked Bethany Matthews if she wanted to go. Maybe he didn't tie her up with duct tape and throw her in the back of his van for the ride to New Hampshire, but he didn't have to. He told a poor, innocent child her mother was dead. He told her that she had nobody but him. He did so much damage to this child in an effort to wrestle her out of her mother's home that he might as well have bound and gagged her. This was emotional duct tape, and Andrew Hopkins was a master."
She turns to look at me. "But he didn't just affect the life of one victim. This rash, selfish act claimed two--Bethany Matthews, and her mother, Elise, who spent twenty-eight years waiting to see the child who'd vanished. This rash, selfish act gave Andrew Hopkins everything--the child, full custody, and freedom from punishment ... until now."
Emma moves toward the jury box. "For you to find Andrew Hopkins guilty of kidnapping, you must agree that he took a child without having the authority to do so, and that he did this with force. Andrew Hopkins himself even said on the stand that he had indeed kidnapped his daughter. You can't get much clearer than that.
"Yet, as Mr. Talcott said, rules don't always fit. Mr. Talcott pointed out that the law says you should convict, if all these conditions are met, but that you don't have to. Well, let me tell you why that's not quite as simple as he's making it out to be." She wa
lks over to Eric. "If we lived in a world where rules were trumped by emotions, then we'd be in a very uncomfortable place indeed. For example, I could do this"--without hesitation, Emma picks up Eric's briefcase and moves it to her own table--"because I like it better than mine. And if I could convince you from an emotional standpoint that I have good reason to like it better than mine, then hey, you would be justified in saying I was allowed to steal that briefcase."
She walks back toward Eric and picks up his glass of water, drinks it down. "If we lived in Mr. Talcott's world, I could come over here and drink his water, because I'm a nursing mother and I deserve it. But you know what? That kind of world would also be the place where rapists could do what they wanted because it was what they felt like at the time." She approaches the jury again. "It would be the kind of world where if someone was overcome with rage, it would be okay to commit murder. And it would be the kind of world where, if someone could convince you it was really just an act of heroism, he could steal your child away from you for twenty-eight years."
She hesitates. "I don't live in that world, ladies and gentlemen. And, I bet, neither do you."
While the jury is deliberating, Eric and I hole up in a tiny conference room. He orders corned beef sandwiches from a kosher deli and we chew in silence. "Thank you," I say after a moment.
He shrugs. "I was hungry, too."
"I meant for representing me."
Eric shakes his head. "Don't thank me."
I take another bite; swallow. "I'm counting on you to take care of her."
He looks down at his hands, then sets down his sandwich. "Andrew," Eric replies, "I think it might have to be the other way around."
We are called back for a verdict in less than three hours. As the jury shuffles in, I try to read their faces, but they are inscrutable, and none of them meet my eye. Is that a sign of pity? Or of guilt?
"Will the defendant please rise?"
I do not think I have ever been as aware of my age as I am in that moment. It is nearly impossible for me to stand; I find myself leaning against Eric even when I try to remain straight and brave. When I cannot bear it any longer, I turn my head and look for Delia in the gallery. I hold on to her face, a focal point while the rest of the world is going to pieces around me.