So Help Me God

by Larry D. Thompson

  "Well, Tod, I'd say it's a stretch, but only a little one. You know judges. On a close call, they're prone to letting evidence in. I think we have to be prepared to defend on this issue. As a matter of fact, I've already been on the phone to some of my sources this morning. We'll come up with some formidable experts on the other side of the issue, although I'm not sure that I can find us a Nobel Prize nominee."

  "You've got less than thirty days, Jan. Can you get it done?"

  "You and Wayne take care of the rest of the case. I'll handle the experts. Should be interesting. I'd say that old Johnny Bob just topped your full house with a flush. Fortunately, there are a few more hands to play before we see which side of the table the money ends up on. Chalk up one hand to Johnny Bob."

  Normally full of enthusiasm, Tod spent the rest of the day rehashing the moves and countermoves that he and Johnny Bob had made in their chess game of a lawsuit. The more he thought of his opponent's latest move, the more depressed he became. It took a victory by Kirk's soccer team that evening to break him out of it. As he drove home after the soccer match, he pondered who was playing a game and who was living life. Kirk or him? The question deserved further analysis on a morning run.

  When he arrived at the house, Tod saw the "message waiting" light blinking on the answering machine. It was Zeke Moyo asking that he call as soon as possible. No doubt what the call was about. He had a set of the expert reports delivered to Zeke earlier in the day. After considering postponing the return call until the next day with an excuse that he didn't see the blinking light, he had second thoughts and dialed the number. Zeke picked it up on the first ring.

  "Tod, what's this all about? Why do they have all of these experts talking about when life begins? I'm not a murderer. What I did was perfectly legal. How can they claim otherwise? Besides, I'm an obstetrician. I know when life begins. There's no way that modern science can keep a fetus alive outside its mother's womb before twenty-three weeks. Even then it usually takes a miracle along with close to a million dollars."

  This time it was Tod's turn to slow down a string of questions and comments. "Zeke, believe me, I understand all you are saying. They raised an issue that, frankly, I didn't anticipate, just like we did to them when we counter-claimed for slander. It's happened to me before and it'll happen again. We'll meet their challenge head on; so, just calm down. Remember, I'm the one who gets paid to handle this case, including the part about worrying."

  "Tod, I understand. But when we get together, I still want you to explain in more detail how I can do a legal abortion and still be accused of murder."

  "I will, Zeke. Now, let's both get some sleep. I have another full day with Johnny Bob tomorrow. Hopefully, I'll nail down that T. J. was speaking for his pro-life consortium with our first deposition. After that, Johnny Bob has three clinic personnel scheduled, including the two nurses who were on duty the weekend after Lucy's abortion. By the way, we've got a strong obstetrical expert lined up to support you. He's even one of the editors of your leading obstetrics textbook. He'll come on strong. Good night, Zeke."

  CHAPTER 52

  At ten the next morning, the deposition of Walter Thaddeus McDade was scheduled at the fire station. He appeared at the appointed hour, accompanied by Johnny Bob and Claudia. McDade was a commanding figure and it was not surprising, considering his background. He had served in the Air Force for more than twenty years, retiring in his late forties. He considered a political career, opting instead for the money, taking a job as a senior vice president of an aerospace company. Within a matter of years he became CEO, and he remained in charge until he reached mandatory retirement at age sixty- five. Now past seventy, he still commanded the attention of all in a room when he appeared at the doorway. His job as director of Executives for Life was non-paying. Money was no longer an object for him. As a fervent Catholic, he believed in the pro-life mission. He had served his country, made more money than his next three generations could spend, and it was now time to leave a lasting legacy. If it was humanly possible, he intended to wipe out abortion before he died. The organization was his idea, created while he was still in the aerospace industry. As Fortune 500 executives approached retirement, he quietly checked them out, and if he found their views to be favorable to his cause, he persuaded them to join with him. At the time of his deposition, his organization numbered three hundred and was among the wealthiest in the pro-life movement.

  When the deposition started, Tod got to the point. After the formalities were over, he asked, "Mr. McDade, what is the purpose of Executives for Life?"

  "It's no secret, Mr. Duncan. We have a mission statement on our web site. We intend to eradicate legal abortion from our society by the year 2020 and we'll use any means possible. That includes legislation, political activism, demonstrations, protests, and of course, the courthouse when appropriate."

  "Thank you for your candor, Mr. McDade. I think that we will be able to make this deposition very short. Isn't it true that your organization and the other members of the consortium have chosen to fund a substantial portion of this litigation against my client and Population Planning?"

  "Mr. Duncan, I think that has been previously established by Ms. Warren Woolsey. The answer is yes."

  "And isn't it also true that Executives for Life and the other consortium members authorized Reverend Luther to speak on your behalf about matters pertaining to this litigation?"

  "Mr. Duncan, I'll have to qualify my answer, if I may. It's true that we authorized him to speak for the group. However, we did not pre-authorize or give pre-approval to all of his messages. I might add, had we been given the opportunity to do so, I personally would not have permitted a great number of the comments that he made."

  "Now, can you give me a break-down on how much each organization has contributed to this cause?"

  Claudia interrupted, "Just a minute, Tod. I don't mind you confirming their involvement and that T. J. was their spokesman. I'll concede that it's proper information for impeachment, and you may be even be able to tie T. J. around their necks with that testimony. That's where I draw the line. I'll object to these questions going any further, particularly if you're of a mind to find out just how much each one of these groups contributed to the kitty.."

  "Understood, Claudia. We'll take it up with the judge if I decide to explore it any further. Thank you for your time, Mr. McDade."

  With the deposition over early, the lawyers used the time to talk about the status of the case and remaining discovery.

  "Johnny Bob, you're to be congratulated," Tod said. "Not often that I'm caught by surprise. You did it with your expert designations. I missed out completely on the possibility of a 'truth' defense. Nice move."

  "Had to do something, Tod. You out-foxed me with that counter-claim. I had to come up with something. I've got to give Ms. Jackson here the credit. She's the one who actually thought of it and lined up all those experts. You gonna be able to match them?"

  "Johnny Bob, you know me better than that. I will match them and I plan to outdo you. Jan's already working on it. While we're on that subject, just how many of those 'when life begins' experts do you actually expect to call?"

  "Well, Tod, you and I both know that Ruby ain't gonna let me call all of them. I figure I'll try for four and be willing to settle for two or three."

  "That's what I figured. The rest of the reports will make good reading for the media. By the way, the Chronicle ran a story this morning, describing all of your experts and their expected testimony. Any idea where they got that information?"

  Johnny Bob managed to avoid choking on his water and replied, "Tod, you mean the media has already picked up on my experts? Beats me how they found out. You know we represent about a dozen different organizations and had to supply them with our experts and what they were going to say. I suppose any one of them could have leaked it to the press. A lot of them see this as a holy war and don't feel bound by the rules of engagement as dictated by Judge O'Reilly."

  "T
od, if you're going to want to depose our experts, I've got to know pretty quick," Claudia added. "They are all busy people and we may have to chase all over the country to get them done."

  "Claudia, I'll make that easy on you," Tod replied. "I don't normally go to trial without depositions from nearly all of the experts on the other side. This case is the exception. You've given me thorough reports, which I appreciate, by the way, and I'll just save my cross-examination for trial. What about you, Johnny Bob?"

  "I agree with your position, Tod. As the judge says, this train is close to coming into the station. I'll save my best shots for trial. Let's wind up these fact witnesses, and assuming you give us thorough reports, forget the expert depositions."

  After Johnny Bob and Claudia left, Wayne challenged Tod's decision. "Are you sure that's the right way to go? This is a big case that's going to get national publicity."

  "I hear what you are saying, Wayne. I have to make the call. With all the experts on both sides, we would end up potentially delaying the trial. We want to win this case. Almost as important, our client wants his life back. We can win it without the expert depositions. Believe me, there won't be any more than the average surprises in this one, even without the depositions."

  CHAPTER 53

  The next day T. J. summoned Claudia and Johnny Bob to his temporary quarters. Johnny Bob let T. J. stew for three days before meeting him in the small attorney-client conference room. The deputy had added one more chair and Johnny Bob's bulk made the room seem half its previous size.

  "Glad you two could finally make the time for me," T. J. started the conversation. "I'm usually not kept waiting."

  "Well, now, T. J., I'm not usually summoned; so, let's just call it even." He had a headstrong client and had to keep him on a tight rein. Johnny Bob had learned many years ago that there could be only one lead dog on his side in a big trial, and he made damn sure that the client understood he was the one. T. J. would be no exception.

  "What's on your mind, T. J.?"

  T. J. pushed his chair back and stood with arms folded as he spoke. He wasn't quite ready to give up the lead dog position. "I've read in the Chronicle about the list of experts you guys have come up with, and I'm mightily impressed. Claudia, I see that you have even added several since we last talked."

  Claudia nodded, saying nothing. This was Johnny Bob's show. T. J. continued, "Frankly, I'm honored to be among such a distinguished list of experts. I feel certain that with my help, we can carry the day."

  "Let me make sure I'm hearing you right, T. J. Are you saying that you are now wanting to testify in the trial?"

  T. J. looked up at the ceiling as if to confirm that he was getting the right message and then, leaning over, placed his hands on the table so that his face was no more than a foot away from Johnny Bob's nose. "You're hearing me right, Counselor. I have been authorized to testify. I would like for you to advise the judge and ask her to release me. I understand you have a nice apartment reserved for me just down the street."

  "Hold on there, T. J. I can ask, but you still may not receive. You get what I mean? The judge may or may not let you out of jail before the trial. You'll also have to agree to a deposition and agree to answer all, and I do mean all, questions asked."

  "I'm prepared to do so." What T. J. didn't say was that he was satisfied that he had accomplished his purpose in attracting worldwide attention to the trial. He figured that the national media would start drifting into town any day now, lining up lodging, looking for background stories, etc. He wanted to be available for stories of "general interest," that would not violate the judge's order and would put him back in the spotlight where he rightfully belonged.

  "Tell you what, T. J. We've got a hearing on a couple of matters before Judge O'Reilly on Friday. We'll take this up with her then. Meantime, don't hold your breath."

  ***

  Although there was no formal announcement of any hearing on the Brady versus Population Planning case, the back benches were half-filled with reporters thirty minutes before the hearing. Judge O'Reilly and Judge David Hardman, the administrative judge of the Harris County court system, were in her chambers discussing logistics.

  "David, I've done my best to keep a lid on this thing, but I'm afraid that it's boiling over. You know how much it's already been in the press. You're not going to believe this. I'm starting to get 'press pass' requests. I've never had such a thing in my court. They started right after the Chronicle ran that story about the plaintiffs' experts. We may have the modern day equivalent of the Scopes Monkey Trial right here in the Bayou City. The press requests already number over a hundred and we're still a month out from trial. On top of that, I've got a request from four networks and Court TV to broadcast this son of a bitch live." As she spoke, David Hardman noticed for the first time that Ruby was getting a few gray hairs.

  "You're the administrative judge. What do you want me to do? And let me add that it'll be over my dead body that we have another O. J. Simpson trial in my courtroom."

  "I understand, Ruby. Let's cover the number of reporters and spectators first, and remember that we do have public trials for a reason. We have two options. I can make sure that the Ceremonial Courtroom on the second floor is available. That one will seat about two hundred. The other option is for me to call South Texas law school to see if we can use their auditorium. As you know, it holds about seven hundred and can be configured as a courtroom. Also, they have audio-visual capability, if we want it. How long is your trial?"

  "I'll get a better reading on that in about thirty minutes when I visit with the lawyers out in the courtroom. My guess is four weeks."

  "Why don't I check with South Texas?"

  The South Texas College of Law had come a long way since Johnny Bob went to night school there. It was now housed in a substantial building in downtown Houston about ten blocks from the courthouse. Its auditorium was used as a large classroom and as a place to hold seminars for lawyers. On occasion, Harris County borrowed it for use as a courtroom.

  "Now, Ruby, what about the television folks?"

  "Frankly, David, I've been wrestling with that issue since the very first hearing on this case. I saw it coming and I've flip-flopped on the question at least a dozen times. I think you said it right. The public has a right to know what goes on in their courtrooms. If this case is going to get national publicity, the public might as well get it straight instead of second-hand from some reporter standing on the courthouse steps."

  At nine o'clock, the door to Judge O'Reilly's chambers opened. Even the bailiff was a little shocked to see Judge Hardman stroll out the door. Hardman passed by the bench, nodded to the lawyers seated at the counsel table, shook the hands of a couple of the reporters and left the courtroom. Judge O'Reilly followed him.

  "Be seated, ladies and gentlemen. My primary reason for having you here this morning is to determine if everyone is on schedule for our trial that is now just a few weeks away. Any problems?"

  Tod answered. "Your Honor, I think I can speak for everyone. We've cut out a lot of potential depositions and we've completed discovery. We're all ready to go."

  Johnny Bob was next. "Your Honor, I agree with Tod, but I have another matter to take up that is not on the court's docket this morning."

  "No problem, Mr. Tisdale. So do I, but let's take up yours first."

  "Your Honor, I have been conferring with Reverend Luther earlier this week, and he has authorized me to advise you that he is now willing to abide by your ruling and will testify any time, any place."

  That woke up the reporters on the benches, most of whom started writing furiously. Some whispered among themselves, forcing the bailiff to call, "Order in the court! If you can't remain silent, you will be asked to leave."

  "Thank you, Mr. Bailiff. Well, counsel, so you're telling me that The Chosen has decided to talk. I presume that in return, he wants out of jail now, particularly since it's only a few weeks until trial. What do you have to say about that, Mr. Duncan?"
>
  Tod sat back in his chair, then turned and conferred with Jan and Wayne before rising. "Your honor, Mr. Tisdale and I have concluded that we are through with the depositions in this case. We each plan to duke it out with the experts for the first time here in this courtroom. I don't think that Reverend Luther's decision changes that. Besides being a fact witness, he's now also listed as an expert. I've got his defamatory statements on videotape and I don't need his deposition. We'll abide by whatever you rule."

  "Mr. Tisdale, here's my decision. I had previously said that when Reverend Luther was willing to testify, he would be released from jail, but I don't recall that I said when that would occur. He has consistently disobeyed my rulings and I don't feel obliged to ask 'how high' when he says 'jump.' He may be released from solitary today. He will remain in jail until two weeks before trial. If you choose, you are entitled to file a habeas corpus, seeking his discharge. In any case, please advise Reverend Luther that my order not to discuss this trial with the media still stands and will remain in place until the conclusion of the trial. Is that understood?"

  "Yes, ma'am. I will so advise the Reverend."

  The judge continued, "Now, let's take up the matter that I want to discuss that is not on today's calendar. As you are all aware, this case is drawing tremendous publicity, which has escalated in the past few days. By the way, do any of you know how the Chronicle got hold of the plaintiffs' list of expert witnesses and their reports?"

  Claudia coughed and buried her head as she furiously scribbled on her yellow pad.

  "Judge, I certainly didn't do it," Johnny Bob replied.

  "Judge, I can promise you that we're not out for publicity in this case and we had no desire to leak that list to the press," Tod added.

  "Well, it's water under the bridge and I'm not going to waste my time trying to chase down the culprit. Mr. Tisdale and Ms. Jackson, you might remind your various clients that my order applies to them just as much as it does to the attorneys in this case."