"I agree."
Tod was convinced that he was making a significant point with Dr. Thorpe and he assumed he had the attention of everyone in the courtroom until he happened to look at the jury. They were looking past him to the opposing counsel table. Judge O'Reilly was even looking in that direction with a slight smile on her face.
Johnny Bob was using an old trick to distract the jurors from Tod's cross-examination of Dr. Thorpe. As Tod concentrated on his cross-exam, the old lawyer reached into his pants pocket and retrieved a pocket watch. He raised it up to eye level and opened the cover of the antique watch, looked at it, then brought it closer to his eyes and looked again. Next he put it to his ear, the one closest to the jury and listened. He cocked his head and cupped his other hand over the watch, pretending to listen. Bringing the watch down, he started winding the top stem of the timepiece. By then almost everyone in the courtroom was watching him and not listening to the interchange between Tod and Dr. Thorpe. After winding the watch, he listened again and was about to tap it on the table when Tod noticed the distraction.
Tod walked over to Johnny Bob, pulled his left coat sleeve up, revealing his thirty-five dollar, black runner's watch. As he unbuckled the watch and laid it on the table, he said to Judge O'Reilly, "Your Honor, I believe that Mr. Tisdale needs a little help telling time. This one works without having to be wound."
Johnny Bob looked a little sheepish at having been caught, but thanked his opposing counsel, picked up the black watch, studied its face for a moment and then sat it back down on the table with a smile.
Once again having the jury's full attention, Tod continued. "Let's see, Doctor, before I had to help Mr. Tisdale, we were talking about acorns, I believe. After those acorns fall to the ground, among the things that can happen is that some of the acorns are going to be eaten by squirrels, right? Those squirrels aren't eating oak trees, are they?"
"No, sir."
"Some of those acorns will fall on hard ground and never have a chance to become a tree, maybe even land on a driveway or sidewalk and be crunched under the tire of a car or bicycle. They're not oak trees are they?"
"No, sir."
"Then one acorn gets lucky and lands on some soft soil and over the next six months or so it lies there until spring and a miracle occurs. All of the right conditions converge and a small shoot sprouts from the acorn. Then, if that shoot is not trampled down by an animal or a human foot, it may grow into that mighty oak that I described, right, Doctor?
"Mr. Duncan," Dr. Thorpe replied, "you must understand that I'm not an expert in oak trees. I have a hard time growing a few roses in my garden back in Austin."
Ignoring the witness's attempt at humor, Tod pressed on. "Dr. Thorpe, you would agree with me that what is before you is an acorn, or at most, it is a potential oak tree?"
"Yes, sir. I said from the start that it was an acorn."
"Now, let's leave oak trees aside and go back to embryos. Wouldn't you also agree that a pretty darn strong argument can be made that an embryo in a test tube isn't really a human person at all? It can't possibly become one until it's implanted in a woman's womb, even though, Doctor, it has its very own personalized DNA code, just like Dr. Kriegel told us earlier?"
"Sir, I suppose an argument can be made. I wouldn't agree that it's a strong one."
"And wouldn't you also agree with me that a fertilized egg in a woman's body is not really a human being. It is, at best, a potential human being?"
Dr. Thorpe paused as if troubled by the whole line of questioning, then stared at the ceiling as if seeking divine guidance from above, and finally disagreed. "No, sir. I can't agree with your analogy. Acorns and trees are not the same as embryos and human persons. Our church has been studying this question for two thousand years, and we know we're right."
Tod looked over at the jury, "Just as right, sir, as you folks were when you decided that a male reached viability at forty days and a female at eighty days?"
"Sir, our theologians at that time didn't have the benefit of today's scientific knowledge when they were making those decisions."
"By the way, Doctor, back then did you folks have any women helping you to decide these important questions?"
Dr. Thorpe stared at his feet as he said, "No, sir. Not to my knowledge."
"Earlier, Dr. Thorpe, you talked about all these learned philosophers and theologians who held the same beliefs that you do. You recall that testimony?"
"Yes, sir. I do."
"In fact, there's one religion that's even older than your Catholicism that has a completely different opinion from what you're telling the jury here today. True, Dr. Thorpe?"
The witness nervously fiddled with his tie. "Sir, I'm not sure where you're going with your question."
"Come on, Dr. Thorpe, you know the Jewish position on the beginning of human life, don't you?"
"Well, yes, sir. Now that you remind me, I do."
"Turn to the jury and tell them, then, Dr. Thorpe."
The witness swiveled in his chair to face the jury and in a quiet voice said. "The Jewish religion has always believed that life begins at birth."
"The fact of the matter, Doctor, is that they've even had smart folks studying this question even longer than you Catholics."
"There's no doubt, Mr. Duncan, that the Jewish religion is older than the Catholic Church."
Tod looked satisfied as he continued. "Okay, Dr. Thorpe, I'm moving to a different area now."
Relieved to be off what he saw as a difficult line of questions, the witness asked, "Would you like your acorn back, Mr. Duncan?"
"No, Dr. Thorpe. Let's leave it right where it is. I doubt if it's going to sprout any roots sitting there on the witness box rail. By the way, I'm pleased that you didn't ask if I wanted my oak tree back. Now, let's talk about this thing you call ensoulment. As I understand your testimony, you folks have now decided that God infuses the embryo with a soul at the moment of conception and that's what really makes that fertilized egg a human person. Correct?"
"There's no longer any doubt about that."
"Now, Dr. Thorpe," Tod continued, "You know about in vitro fertilization, don't you?"
Dr. Thorpe paused as he thought about where this lawyer might be going with such a line of questioning. "Yes, sir. We were talking about that a little earlier, and as matter of fact, it's caused some debate within our church."
"Well, I don't want to get into that debate right now. You know that the doctors try to get several of a woman's eggs fertilized in a tube. If they are successful in achieving pregnancy, any extra embryos that are not used are frozen."
Still not sure where all this was going, the witness could only warily answer, "Yes, sir."
Looking at the jury with puzzlement on his face, Tod asked, "When they freeze those embryos, Doctor, what happens to their souls?"
"Beg your pardon, sir?"
"You know, Doctor. You've testified that God puts a soul in that first cell. When it gets frozen what happens to the soul? Does it get frozen? Does God take it back? Does He have a deep freezer up in heaven where He puts that soul from a frozen embryo until some scientist decides to unfreeze it?"
A dismayed look appeared on the philosopher's face. "Sir, I don't know that I've read or seen anyone debate that subject. You know, in vitro fertilization is a relatively new procedure."
Tod saw that he had the witness on the run. "Does that mean that you folks are going to have to debate that issue for another couple of thousand years before you come up with an answer?"
"I... uh…don't know, Mr. Duncan."
"Well, how about this. Let's assume that God takes that soul back when the embryo is frozen. If that embryo gets unfrozen, does it get the same soul back or a different one? Does God tag a soul from a frozen embryo when He sticks it in his freezer so He knows which embryo it comes from?"
Again, shifting his bulk, Dr. Thorpe asked the judge, "Your Honor, these were not questions I came prepared to answer. May I be permitted to refuse
to answer this line of questions?"
Judge O'Reilly peered over her glasses at the witness and replied. "Dr. Thorpe, you are not the first witness to be asked questions that came as a surprise. Please answer Mr. Duncan's questions or advise him that you do not know the answer."
"Ladies and gentlemen, I'm afraid that this is an area that has yet to be explored by those of us who do such things. I'm afraid that I cannot answer such questions until I have had a chance to confer with my colleagues and others throughout the world. That may take several years."
Tod smiled inwardly as he continued. "I'm sorry, Dr. Thorpe, but we've promised the judge that we would get this case finished in a couple more weeks. I suspect she and the jurors would prefer not to wait several years. One last series of questions along this line. You would agree that our God is an intelligent, omnipotent God, would you not?"
"Oh, absolutely, Mr. Duncan."
"And you know that for a variety of reasons that even when the human egg is fertilized, way more than fifty percent of those embryos don't make it through to the end of the pregnancy. Some of those eggs don't implant themselves in the womb. There are natural miscarriages and so forth. Some scientists and doctors say the number of actual live births from eggs that are actually fertilized is about twenty percent. You know that, don't you?"
"I'm not sure about your numbers, Mr. Duncan. That's not my area of expertise. However, there's no doubt that there are many natural reasons why a pregnancy is not carried to term."
"Don't you think, Doctor, that since we agree that our God is one smart fellow, that just maybe He would decide that He wouldn't want to waste a bunch of souls on fertilized eggs or on embryos or even a fetus until He's pretty well certain that the fetus is going to become a real, live human being? Maybe at about the time of viability?"
Dr. Thorpe sat in silence. The jury waited for him to answer. Even the reporters in the audience, normally a callous bunch, were leaning forward.
Finally, Judge O'Reilly said, "Dr. Thorpe, you will need to answer Mr. Duncan's question."
Dr. Thorpe slumped in his chair, "I don't have an answer."
With that response, Tod rose and said, "No further questions, Your Honor."
Johnny Bob considered trying to ask a few questions to rehabilitate the witness, but after conferring with Claudia, decided to move on. The jury filed into their room where their deli orders awaited them. As they sat around the table, an obviously upset Bert Marino, the young Catholic juror, said, "It's not right. Just not right for that lawyer to attack a priest. Dr. Thorpe has been working with God his whole life. He's got to be telling the truth."
"Hold on there, Bert," Roy Judice chastised. "He's not stating facts, just opinions and Duncan's got a right to challenge his opinions. That's what he gets paid for."
Alvin Steinhorn, the local jeweler who had just advanced to the status of a regular juror, chimed in, "He's right, Bert. Besides, we're not supposed to be talking about what goes on in the courtroom. Let's change the subject. Anyone see the Rockets game last night?" As the jurors got into a discussion about the Rockets, Bert Marino ate his sandwich in silence.
In the afternoon, Claudia put their nurse expert through her paces. A skilled surgical and intensive care nurse, she had also worked for several years for an abortion clinic. She dissected the care of the clinic, including Nurses Simms and Sylvester, and offered opinions that their conduct was negligent. When her turn came, Jan discredited the expert by pointing out the number of times that the nurse had testified, the amount of money that she made annually by being critical of nurses, clinics and hospitals, and that she worked exclusively for plaintiffs in malpractice cases. Nothing but a hired gun. Annie Oakley in a nurse's uniform.
That evening, Tod's team filled plates with Chinese food at the fire station. As they ate, they rehashed the day's testimony and discussed what lay ahead.
"First of all, Tod, I want to know if you have anything else in your pocket?" Wayne asked.
"Nope, that's it," Tod replied through a mouthful of chow mein. "Pockets are empty. No more parlor tricks. Just plain old cross-examination. Now let's talk about how we're doing."
Dr. Moyo volunteered. "Maybe I shouldn't be the first one to offer an opinion, but I will. I think things are going quite well. I thought that you did a very effective job of pointing out the weaknesses of their two experts, Tod. Unfortunately, I think that Reverend Luther came across quite well. He speaks with conviction and has a very impressive demeanor. I would hope that you will put him back on the stand and do to him what you did to Dr. Thorpe and Dr. Kriegel. As to the clinic, I'm a little worried. The nurses were okay but not great, and the last one had a hard time explaining why they didn't follow clinic procedures. Their nurse expert was very strong. Hopefully, the jury understood she makes her living as a paid testifier."
"You're getting to be a pretty good lawyer, Zeke," Tod replied.
"Okay, Jan, they are going to wind up in the next couple of days. Are we ready with our experts?"
"They're ready and will be available on twenty-four hours notice. They will be in town the night before we put them on the stand."
CHAPTER 72
Wearing his red-topped boots that morning, Johnny Bob introduced Phillip Ables to the jury. He was tall, well built, fifty-ish, curly black hair with a sprinkling of gray, and a voice that would make Marcus Welby proud. And he was black. Claudia had intentionally chosen a black obstetrician to be critical of Dr. Moyo. Outside the courtroom, she might be a staunch advocate for African-American rights and a leader of their causes, but this was war. If race could help her sway only one juror in the courtroom, she would not hesitate to play that card. Alfred Totman, the retired bookkeeper and an African-American, smiled as he saw Dr. Ables take the stand, not because the witness was black, but because the juror saw a sliver of red under lawyer Tisdale's pants leg.
"I'm Phillip Ables. I'm a doctor and a professor of obstetrics and gynecology at Mid-State Medical School in Ohio. I've been practicing obstetrics for twenty-five years. I've been on the faculty of Mid-State for twenty years, the last ten as a full professor."
Johnny Bob wanted to get one issue out of the way at the very start and asked matter-of-factly, "Doctor, along with delivering babies, do you also perform abortions?"
"Yes, sir. On occasion. I perform pregnancy terminations when necessary to save the life of the mother, but not voluntary terminations. Otherwise, I am obligated to teach the residents the proper techniques of such a procedure."
"Doctor, have you reviewed the records of Lucy Baines Brady's abortion?"
"I have."
"Tell us, please, Dr. Ables, whether the performance of Dr. Moyo and the clinic met the standards of care required in performing such a procedure?"
"If I may, I'll start with Dr. Moyo. First, let me make it clear that I know that Dr. Moyo is a very fine doctor and I understand he is even joining the faculty of the Baylor College of Medicine here in Houston. So, I'm not condemning him as a doctor. In this case, his handling of the abortion just did not meet appropriate standards. I suspect it was because he had so little sleep in the two previous days."
Johnny Bob led him further. "Doctor, please explain how his conduct was negligent."
"I teach my residents the various complications that can occur in this procedure, and all of us have them happen from time to time. However, it's my opinion that one complication can be understood and explained, but with two in the same termination, that, in my mind, shows a lack of attention that rises to the level of negligence. That's part of the reason for the problems that Lucy later developed. The other reasons, of course, are the failure to follow good nursing practices on the part of the clinic nurses which, I understand, you've already heard about."
He then did something highly unusual. The witness turned to Dr. Moyo and said, "I'm sorry to have to say these things, Doctor. However, I must be honest in my opinions from this stand."
Dr. Moyo nodded his understanding and looked away. Satisfi
ed that he had established Dr. Moyo's negligence, Johnny Bob led Dr. Ables into other areas. Doctor, have you examined Lucy?"
"I have, sir."
"Tell the jury, Dr. Ables, will Lucy be able to conceive and bear children?"
Dr. Ables turned to look at Lucy. "I'm sorry to say that based on my exam, the answer must be no."
"Next issue, Doctor, do you have an opinion as to when human life begins?"
"Yes, sir, I do. I agree with most learned scientists that life begins at the moment of conception. I can explain."
"No need, Doctor. We have already had Dr. Kriegel clarify that for us."
"Certainly, Mr. Tisdale, he's one of the best. I'm certain I couldn't add anything to his opinions."
Johnny Bob leaned forward and continued, "Let me get your thoughts on a related subject, Doctor, and that's when a fetus can actually live outside the womb."
"That's an interesting question, ladies and gentlemen. Not too many years ago, we had little chance of saving a baby if it was less than twenty-eight weeks. Now science has advanced to the point that premature babies are saved as early as twenty-three and twenty-four weeks, and even a few can make it at twenty-two weeks. Those are times that are well within the second trimester. Remarkable advancement, if I may say so."
"The point I'm trying to get to, Doctor, is whether there's any end in sight. Is it possible that babies may be saved at less than twenty weeks?"
"Certainly, it may be possible one day, Mr. Tisdale."
Johnny Bob leaned over his table and growled again, "That's assuming of course, that some clinic like Population Planning or some doctor like Dr. Moyo, doesn't get to that fetus, first. Right, Doctor?"
Tod stomped the floor with his feet as he stormed up. "Objection, Your Honor. Argumentative and relevance. We're talking here about an abortion at twelve weeks, not twenty."
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