by Robin Cook
“Excuse me!” Jack said. “Excuse me!” he said louder when Randolph had continued to speak. Jack was not in his line of sight, but Randolph turned in Jack’s direction when Jack called out the second time. His arctic-blue eyes reflected a mixture of confusion and vexation. The court officer, who had also missed Jack’s first utterance, definitely heard the second. He got to his feet. Security in the courtroom was his bailiwick.
“I need to talk with you this very instant,” Jack said, loud enough for everyone in the otherwise-silent courtroom to hear. “I know it’s rather inconvenient, but it is of vital importance if you are interested in avoiding a miscarriage of justice.”
“Counselor, what the devil is going on?” Judge Davidson demanded. He was tipping his head down to see over the top of his half-glasses. He motioned for the court officer to stay in his box.
Still bewildered but calling on years of litigation experience, Randolph quickly reverted to his signature refined neutrality. He cast a glance in the judge’s direction before redirecting his attention to Jack.
“I wouldn’t be doing this if it weren’t crucial,” Jack added, lowering his voice. He could see that the occupants of both the defense and plaintiff’s tables had swung around in Jack’s direction. Jack was interested in only two: Craig and Jordan. Of the two, Jordan was the more surprised and seemingly disturbed at Jack’s disruptive arrival.
Randolph turned to the judge. “Your Honor, may I indulge the court’s patience for just a moment?”
“Two minutes!” Judge Davidson said petulantly. He would allow Randolph to speak with Jack but only to get rid of him. It was painfully clear that the judge was unhappy with an interruption in his courtroom.
Randolph moved over to the bar and gave Jack an imperious glance. He spoke sotto voce: “This is highly irregular.”
“I do this all the time,” Jack whispered, reverting to his old sarcastic style. “You have to put me on the stand!”
“I cannot put you on the stand. I’ve already explained why, and I’m giving my closing statement, for heaven’s sake.”
“I did the autopsy, and I can provide evidence corroborated by affidavits from a Massachusetts medical examiner and a Massachusetts toxicologist that Dr. Bowman did not commit medical negligence.”
For the first time, Jack detected a tiny crack in the shell of equanimity within which Randolph operated. It was his eyes that betrayed him as they rapidly and nervously flicked back and forth between the judge and Jack. There was little time for reflection, much less debate.
“Mr. Bingham!” Judge Davidson called out impatiently. “Your two minutes are up.”
“I’ll see what I can do,” Randolph whispered to Jack before returning to the podium. “Your Honor, may I approach the bench?”
“If you must,” Judge Davidson said, none too pleased.
Tony leaped to his feet and joined Randolph at the sidebar.
“What in tarnation is going on?” Judge Davidson whispered forcibly. “Who is this man?” His eyes briefly whipped over to Jack, standing at the gate like a supplicant. Although Jack had put down his carry-on, he was still holding the envelope.
“His name is Dr. Jack Stapleton,” Randolph said. “He is a board-certified medical examiner from the Office of the Chief Medical Examiner in New York. I’ve been informed he is very well regarded professionally.”
Judge Davidson looked at Tony. “Do you know him?”
“I’ve met him,” Tony admitted without elaboration.
“What the hell does he want, barging in here like this? This is highly irregular, to say the least.”
“I expressed the same sentiments,” Randolph reported. “He wants to be put on the stand.”
“He can’t be put on the stand!” Tony snapped. “He’s not been on a witness list, and he’s not been deposed. This is an outrageous suggestion.”
“Tame your indignation!” Judge Davidson said to Tony, as if he were speaking to an unruly child. “And why is he asking to be put on the stand?”
“He claims he can offer exculpatory testimony that proves Dr. Bowman did not commit medical malpractice. He further claims he has corroboration in the form of affidavits by a Massachusetts medical examiner and a Massachusetts toxicologist.”
“This is insane!” Tony sputtered. “The defense cannot bring in a last-minute surprise witness. It violates every rule in the book since the signing of the Magna Carta.”
“Stop your moaning and groaning, counselor!” Judge Davidson barked.
Tony controlled himself with effort, but his suppressed ire and frustration were clearly evident when his heavy-lipped mouth formed an inverted U.
“Do you have any idea of how he has come across the information he’s willing to testify to?”
“He mentioned that he autopsied Patience Stanhope.”
“If this autopsy is potentially exculpatory, why wasn’t it done sooner so that it could have been a subject of proper discovery?”
“There was no reason to suspect that an autopsy would have any probative value. I’m certain Mr. Fasano would agree. The clinical facts in this case have never been in dispute.”
“Mr. Fasano, did you know about this autopsy?”
“Only to the extent it was being considered.”
“Damn!” Judge Davidson intoned. “This puts me between a rock and a hard place.”
“Your Honor,” Tony said, unable to keep still. “If he’s allowed to testify, I will—”
“I don’t want to hear your threats, counselor. I’m perfectly aware Dr. Stapleton cannot waltz in here and take the stand. That’s not on the table. I suppose I could order a continuance, and Dr. Stapleton and his findings could be subjected to normal discovery, but the trouble with that is that it shoots my calendar to hell. I hate to do that, but I also hate to have my cases reversed on appeal, and if this testimony is as dramatic as Dr. Stapleton seems to feel, it makes such a reversal a real possibility.”
“What about you hearing the evidence Dr. Stapleton has?” Randolph suggested. “That would make your decision-making considerably easier.”
Judge Davidson nodded as he contemplated the idea.
“To save time, you could do it in your chambers,” Randolph said.
“Taking a witness into my chambers is in itself irregular.”
“But not unheard of,” Randolph offered.
“But the witness could go to the papers and claim whatever. I don’t like that idea.”
“Take in the court reporter,” Randolph said. “Let it be part of the record. The point is that the jury will not hear it. If you decide it’s not relevant and material, I can just restart my summation. If you decide it is relevant and material, you’ll have more information to help you make a decision about how to proceed.”
Judge Davidson mulled over the idea. He nodded his head. “I like it. I’ll call a short recess, but I’ll keep the jury where they are. We’ll make this fast. Are you all right with this plan, Mr. Fasano?”
“I think it sucks,” Tony growled.
“Do you have an alternative suggestion?” Judge Davidson asked.
Tony shook his head. He was furious. He was counting on winning his first malpractice case, and now, within hours of the goal, a major screwup was brewing, despite everything he’d done. He walked back to the plaintiff’s table and poured himself a glass of water. His mouth was dry and his throat was parched.
Randolph went back to Jack and opened the gate for him to step into the bar area. “You can’t take the stand,” Randolph whispered. “But it is arranged for you essentially to testify for the judge, which will determine if you get to testify in front of the jury at a later date. It will take place in the judge’s chambers. He’s willing to give you only a few minutes, so you’d best be concise and to the point. Understood?”
Jack nodded. He was tempted to tell Randolph he had only a few minutes to offer, but he refrained. He looked at Jordan, who was nervously trying to get Tony to explain what was happening, since the j
udge had announced there was to be a short recess although he wanted the jury to stay put. Among the spectators, there was a general buzz as people tried to figure out what was happening and who Jack was. Jack looked over at Craig, and Craig smiled. Jack nodded in return.
“All rise!” the court officer called out as the judge got to his feet and swiftly descended from the bench. In a blink of the eye, he was through the paneled door and out of sight, although he left the door invitingly ajar behind him. The court reporter followed a few steps behind.
“Are you ready?” Randolph asked Jack.
Jack nodded again, and as he did so, he happened to lock eyes with Tony. If looks could kill, I’d be dead, Jack thought. The man was plainly incensed.
Jack followed Randolph, and Tony joined them as they walked past the empty witness stand and the clerk’s desk. Jack inwardly smiled as he wondered what Tony’s reaction would be if Jack inquired about Franco’s wellbeing, since Franco was nowhere to be seen.
Jack was disappointed in the judge’s chambers. He’d conjured up an image of highly polished dark wood, leather furniture, and the aroma of expensive cigars, like an exclusive men’s club. Instead, it was decidedly seedy, with walls in need of paint and government-issue furniture. Over all hung a miasma of cigarette smoke. The only high point was a massive Victorian-style desk, behind which Judge Davidson sat in a high-backed chair. He was leaning back with his hands clasped behind his head in relative repose.
Jack, Randolph, and Tony sat in low-slung vinyl-covered chairs, such that their line of sight was well below that of Judge Davidson. Jack assumed it was a deliberate ploy on the part of the judge, who liked to keep himself on a higher plane. The court reporter sat at a small table off to the side.
“Dr. Stapleton,” Judge Davidson began after a brief introduction. “Mr. Bingham tells me you have in this eleventh hour exculpatory evidence in the defendant’s favor.”
“That is not entirely true,” Jack said. “My words were that I can provide corroborated evidence that proves Dr. Bowman did not commit medical malpractice as defined by statute. There was no negligence.”
“Is that not exculpatory? Are we playing some sort of word game here?”
“Hardly a game,” Jack said. “In this circumstance, it is exculpatory on one hand and incriminating on the other.”
“I think you’d better explain,” Judge Davidson said. He brought his hands down onto his desktop and leaned forward. Jack had captured his full attention.
Getting his finger under the flap of his envelope, Jack opened it and extracted three documents. He leaned forward and slid the top one across the desk to the judge. “This first affidavit is signed by a licensed Massachusetts undertaker, and it affirms that the body autopsied was indeed the late Patience Stanhope.” Jack slid the second paper across. “This affidavit confirms that Dr. Latasha Wylie, a licensed Massachusetts medical examiner, participated in the autopsy, aided in obtaining all specimens, and transported the specimens to the university toxicology laboratory, where she duly transferred them to Dr. Allan Smitham.”
Judge Davidson had picked up each affidavit and scanned it. “I’d say this is a commendable chain of custody,” he said. He looked up. “And what’s the final affidavit?”
“This is what Dr. Smitham found,” Jack said. “Are you familiar with fugu poisoning?”
Judge Davidson treated his guests to a brief, wry smile. “I think you better get to the point, son,” he said patronizingly. “I’ve got a jury out there twiddling their thumbs and eager to haul ass.”
“It’s a kind of often-lethal poisoning people get from eating sushi made from puffer fish. Understandably, it is seen almost exclusively in Japan.”
“Don’t tell me you are suggesting Patience Stanhope died from eating sushi,” Judge Davidson said.
“I wish that were the case,” Jack responded. “The poison involved is called tetrodotoxin, and it is an extremely interesting compound. It is extraordinarily toxic. To give you an idea, it is up to one hundred times more lethal than black widow spider venom and ten times more deadly than the venom of the many-banded krait, one of the most venomous snakes of Southeast Asia. A microscopic amount taken by mouth will cause rapid death.” Jack leaned forward and slid the final paper toward the judge. “This last affidavit, signed by Dr. Allan Smitham, explains that tetrodotoxin was found in all of the specimens obtained from Patience Stanhope that he tested, at levels suggesting her initial dose was a hundred times greater than what would have been adequate to kill her.”
Judge Davidson scanned the document, then extended it to Randolph.
“You might ask: How reliable are the tests for tetrodotoxin?” Jack continued. “The answer is extremely reliable. The chance of a false positive is close to zero, especially since Dr. Smitham used two entirely separate methods. One was high-pressure liquid chromatography followed by mass spectrometry. The other was radioimmunoassay using a specific antibody to the tetrodotoxin molecule. The results are conclusive and reproducible.”
Randolph offered the affidavit to Tony, who snatched it away irritably. He was well aware of its implication.
“So are you saying the deceased did not die of a heart attack?” Judge Davidson said.
“She did not die of a heart attack. She died of overwhelming tetrodotoxin poisoning. Since there is no treatment available, the time of her arrival at the hospital was entirely immaterial. Essentially, from the moment she swallowed the poison, she was doomed.”
A loud knock on the judge’s door reverberated around the room. The judge bellowed for whoever it was to enter. The court officer poked his head in and said, “The jury is requesting a coffee break. What should I tell them?”
“Let them have their coffee break,” the judge said with a wave of dismissal. He drilled Jack with his dark, gun-barrel eyes. “So that’s the exculpatory part. What’s the incriminating part?”
Jack sat back in his chair. This was the part he found the most troubling. “Because of its striking toxicity, tetrodotoxin is a highly controlled substance, especially in this day and age. But the compound has a curious redeeming quality. The same molecular mechanism responsible for its toxicity makes it an outstanding tool to study sodium channels in nerve and muscle.”
“How does that impact the case at hand?”
“Dr. Craig Bowman’s published and ongoing research concerns the study of sodium channels. He uses tetrodotoxin extensively.”
A heavy silence hung over the room as Jack and Judge Davidson stared at one another across the judge’s desk. The other two men looked on. For a full minute no one spoke. Finally, the judge cleared his throat and said, “Other than this circumstantial evidence of access to the toxin, is there anything else that associates Dr. Bowman with the actual act?”
“There is,” Jack said reluctantly. “The moment tetrodotoxin was determined to be present, I returned to the Bowman residence, where I had been a houseguest. I had known there was a small vial of pills Dr. Bowman had given to the deceased the day she died. I took the vial back to the toxicology lab. Dr. Smitham did a rapid check, and the interior of the vial was positive for tetrodotoxin. He is doing the full, definitive test as we speak.”
“Okay!” Judge Davidson said. He rubbed his hands together briskly and looked over at the court reporter. “Hold up on the record until we get back into the courtroom.” He then sat back, causing his aged chair to squeak. He’d assumed a grim but thoughtful expression. “I could order a continuance of this trial so all this new information could go through the discovery process, but there is not much point. This is not civil negligence, it is murder. I’ll tell you what I’m going to do, gentlemen. I’m going to declare a mistrial. This case needs to be turned over to the district attorney. Any questions?” He looked over his audience, stopping at Tony. “Don’t look so glum, counselor. You can bask in the realization that justice prevails and your client can still sue for wrongful death.”
“The trouble is the insurance company will be off the hoo
k.” Tony snorted.
The judge looked at Jack. “That was an admirable investigation, doctor.”
Jack merely nodded to acknowledge the compliment. But he didn’t feel deserving. Having to report the shocking findings caused him anguish for what it was going to do to Alexis and her girls. They would now have to suffer through a protracted investigation and a new trial with horrific consequences. It was a tragedy for everyone concerned, especially Craig. Jack was shocked at the depth of the man’s narcissism and apparent lack of conscience. Yet at the same time he sensed that Craig had been victimized by the highly competitive academic medical system that touted altruism and compassion yet rewarded the opposite; one never became chief resident by being kind and sympathetic to patients. With Craig’s perennial necessity of gainful employment during the early portion of his medical training, he had been denied the normal social interaction that would have blunted such a contradictory message.
“All right, gentlemen,” Judge Davidson said. “Let’s wrap up this fiasco.” He stood, and the others did as well. He then skirted around his desk and headed for the door. Jack followed behind the two lawyers, and the court reporter came behind Jack. Ahead, within the courtroom, Jack heard the court officer yell for everyone to rise.
When Jack emerged from the judge’s chambers, the judge was taking his seat on the bench while Randolph and Tony were approaching their respective tables. Jack noticed that Craig was momentarily not present, and Jack shuddered to think what the man’s reaction was going to be when he learned that his secret had been unraveled.
Jack quietly crossed the well. Behind him he heard the judge ask the court officer to bring back the jury. Jack opened the gate. He caught Alexis’s eye. She was looking at him with an understandably questioning, confused yet hopeful expression. Jack politely worked his way toward her and took the neighboring seat. He squeezed her hand. He noticed she had rescued his carry-on bag that he’d left at the gate before going into the judge’s chambers.