"Sustained."
Johnny Bob had made his point. The question of viability was a moving target and the direction of its movement was earlier and earlier in a pregnancy. He passed the witness, not noticing that Alfred Totman stared at him and shook his head at the unnecessary shot at Dr. Moyo. Sitting beside his lawyer, T. J. also didn't notice Juror Totman. Instead, he could only smile at what he perceived as another outstanding performance by one of their witnesses. In fact, the way the case was going, his mind was already drifting off to leading a march on Washington to force a constitutional amendment banning all abortions. It wouldn't take long for Tod to wipe the smile from T. J.'s face.
"Dr. Ables, when you say that you personally perform abortions only when the mother's life is in jeopardy, is it because you have some moral or ethical reason for not doing them otherwise?"
"Correct, Mr. Duncan. I believe that even an embryo is a human life. However, in the interest of complete honesty, I should point out that my institution does have a clinic where elective abortions are performed up to eighteen weeks."
Johnny Bob closed his eyes and cursed under his breath at that last comment. Like every other witness, he had told Dr. Ables not to volunteer information. Surprisingly, Tod did not delve further into the subject. "Dr. Ables, have you had complications when you have done abortions?"
"Certainly, sir. All of us who have done more than a few have had some of the known complications."
"How about your residents? As they are learning to do such a procedure, do they have complications?"
"Yes, sir, more often than those of us who have more experience. I might add, that is the nature of the learning process. However, we always have a senior member of the staff also in attendance with the residents to lend a hand when necessary and avoid any serious outcomes."
"Do these complications include both uterine perforations and retained fetal parts?"
"They do, sir. Retained fetal parts are more common and usually do not require a second procedure. Often, they resolve themselves naturally."
"Dr. Ables, were you negligent when you did an abortion where there were retained fetal parts or where there was a uterine perforation?"
"Sir, I don't recall that I have ever done an abortion where I had a perforation, and I certainly was not negligent if there were retained fetal parts. As I'm sure you've been told, a pregnancy termination is a blind procedure. Sometimes small bits of tissue remain no matter how careful the surgeon."
Tod thanked the witness for his candor. Even Johnny Bob began to relax since Tod seemed to be landing the most minimal of blows to this most credible of experts. He decided that he must remember to compliment Claudia on her selection of experts, particularly this one. That was before Tod made an unexpected shift in his line of questioning.
"Dr. Ables, in looking over your resume, I see that you have done some research and writing on in vitro fertilization?"
That got Johnny Bob's attention. He had heard all he wanted about in vitro fertilization. Every time Tod brought it up, it seemed to create problems for his witnesses. He pushed his chair back and addressed the judge. "Your Honor, it seems to me that we've had about enough talk about in vitro fertilization. This is a case about abortion and slander. Test tube babies have nothing to do with any issue in this case and I object to Mr. Duncan bringing it up any further."
Judge O'Reilly looked at Johnny Bob and asked, "Do I presume that your objection goes to relevance, Mr. Tisdale?"
"Yes, ma'am, it certainly does," the lawyer retorted, glaring at Tod for effect.
"So, Mr. Duncan, what do you have to say about that?"
Tod returned Johnny Bob's stare and replied, "Your Honor, I will be able to tie it up, and I might add this will be the last plaintiff's witness where this issue is relevant to his testimony. I also believe that the first discussion of in vitro came from Dr. Kriegel. They opened this door and that gives me the right to explore other facets of the issue."
The judge pondered and then fixed her sternest look on Tod, "Very well then. I'll let you go a little further, but if you don't show its relevance pretty darn quick, I'm going to have the whole line of questioning struck. Move on."
Tod resumed his seat and Johnny Bob walked over to whisper something to T. J., hoping to distract some of the jurors. Tod continued. "Correct, Dr. Ables? You have done such research and writing?"
"Yes, sir, and I might add, we also have an in vitro fertilization clinic at our medical school."
While Johnny Bob was bent over pretending to whisper to T. J., he heard that answer and whispered an expletive. "Shit, I wish he would learn to just answer the question."
Not that it made any difference, though, for Tod had read about the clinic. It was on the school's web site.
"Doctor, the jury has heard some testimony about how this is done, so, I don't intend to ask you any questions about the technique. Am I correct, though, that when you have a couple that is trying to get pregnant that you harvest several eggs and often end up with some extra embryos after the mother has become pregnant?"
"Yes, sir. We do. We take those embryos and freeze them for future use."
"And I presume, Dr. Ables, that you take the position that those embryos are human persons?"
"Yes, sir. No doubt about it. Otherwise, when we thaw them out, they could never become a fetus and then a baby."
"Now, Dr. Ables, are you personally involved in that program? By that, I mean do you have patients who go through the in vitro process, achieve pregnancy and then freeze the extra embryos?"
"Yes, sir. I actually developed the protocol at our school and head up the program." With a smile of pride he added, "We've helped hundreds of previously infertile couples."
"How many embryos do you have frozen, just at your facility,
Doctor?"
Behind the witness rail, but in sight of several of the jurors, his left leg began to bounce up and down as it often did when he was nervous. From her bench, Ruby O'Reilly looked at Tod as she realized how he was about to make all of this relevant.
"I couldn't say for sure, Mr. Duncan. Certainly, several hundred. Maybe more than a thousand at any one time.
"What happens to those frozen embryos when they are no longer needed?"
Dr. Ables, pretended ignorance. "I'm sorry, Counsel, but I don't understand what you mean."
Tod had the witness on the run and was rapidly backing him into a corner where there was no escape. Johnny Bob saw what was coming but kept the poker face of a good lawyer as he stared at the end of his pen. Claudia looked down at her notes and muttered something under her breath. T. J. just stared at the witness, uncertain as to what was happening. Tod pressed. "Come on now, Dr. Ables. When a woman gets pregnant, do you keep the rest of her embryos there forever?"
"No, sir. We can't afford to do that. It's quite expensive and it would serve no useful purpose," the doctor replied, trying to put his best foot forward, yet knowing he was about to step off into quicksand.
"Then what happens to them, Doctor?"
The lawyers and jurors were looking at the witness. Reporters put down their pens. Judge O'Reilly peered over her bench at Dr. Ables, who felt the stares of hundreds of eyes. It was as if they suddenly understood where Tod had been leading this witness.
Dr. Ables realized that he could not sidestep this issue and decided to face it head-on. "Mr. Duncan, it's created a real dilemma for us, a moral dilemma of great magnitude. On the one hand, we've developed a technique to provide otherwise infertile couples with the joys of parenthood. On the other, we have excess frozen embryos. What to do with them? We contact the parents and let them decide. Often they have disappeared and we have to make the decision. At five years, we thaw the embryos and incinerate them."
As the silence filled the courtroom, it was so quiet that the only sound came from the click, click, click of the clock.
"In your eyes, Dr. Ables, you have destroyed a life each time you incinerate an embryo, haven't you?"
D
r. Ables lowered his head as he softly said, "Yes, sir. I'm afraid that we have. It's a trade-off that we make in order to provide the joy of parenthood to infertile couples."
"And there's no way to reconcile such an action with your stand on abortion, is there, Doctor? What you've actually decided is that there is at least one circumstance where the benefit to the mother and father overrides the concern for an embryo, what you and Dr. Kriegel and Dr. Thorpe call a human being. Right, Dr. Ables?" Tod's voice was growing louder and he continued before the doctor could answer.
"And if you're correct that an embryo, even a frozen one, is a human life, you've chosen to play God. You intentionally kill that human being, don't you, Doctor? In your mind, that's okay, but you condemn other doctors who terminate a pregnancy of a fetus that's only a few weeks old!"
The doctor gulped and the jurors could see his Adam's apple bobbing up and down as he grasped for the right answer. Finally, he answered, not in the vibrant voice he had on direct examination, but in a broken one that conveyed his now-admitted confusion on the subject.
"Yes, sir. Or maybe I'm wrong when I say that life actually begins at conception. Maybe the human life occurs at a later time. Perhaps one day we'll decide that question once and for all. I can tell you that I think about it every time I sign the order to dispose of even one embryo."
Tod stared at the witness and said nothing.
As the jurors looked back and forth between the lawyers and the witness, Judge O'Reilly broke the silence by asking, "Mr. Tisdale, as I understand it, you are expecting to call Dr. Coates on Monday morning. Will that be your last witness?"
"Other than possible rebuttal, that is correct, Judge."
"All right. Dr. Ables, you are excused." As she spoke, the trance that had possessed the whole courtroom was broken. Chairs creaked. Papers rattled. People coughed. The judge continued. "Assuming that there are no objections, let's adjourn a little early for the weekend. For you jurors, I'm sorry to have to make you cool your heels. The good news is that I think that we can finish this trial in three weeks and not four. Further, I've made arrangements to permit your families to visit."
As the lawyers walked out of the courtroom, Victoria Burton cornered Tod. "Look, Tod, you've avoided me for the whole trial. Nearly everyone else has been on television. I think it's about time for you to say a few words to the rest of the country."
"Victoria, that's really not my style. I try my lawsuits in the courtroom, not with the media."
"How about if I promise you a slot on Sunday's Dateline NBC? I've cleared it with their producer if you'll agree to be interviewed tomorrow morning."
Tod vacillated and finally relented. Maybe it was time for the country to see Zeke as he really was. He didn't think that it would impact on the trial. Perhaps, though, he owed it to Dr. Moyo. Victoria asked to do the interview in the garden behind the fire station in front of the waterfall.
***
Tod was up at five a. m. on Saturday morning. The sun was not up and his breath was visible as he started with slow strides, working the kinks out of his legs and trying to get some rhythm in his breathing. At that hour on Saturday morning, the streets were nearly deserted. Tod let the trial play in his head. He had given it all he had. Coming into the last week, he was ready to wind it down. He wanted to spend more time with his boys. As he settled into his stride, his breathing became regular and he adjusted to an eight-minute-a-mile pace. Reflecting on the trial, he thought about what he might have done differently. He had accomplished all he possibly could with Johnny Bob's experts. Whether it was good enough remained to be seen. Like the fourth quarter of a close football game, for him and Dr. Moyo, this would be the week that counted. If their experts came through and they finished strong, they could win, but if he were asked to place a bet, it would only be a small one-on himself and his client.
When Tod returned from his run, Kirk and Chris were up and dressed in clean jeans, golf shirts and running shoes, their formal attire. They learned about the interview the evening before and wanted to be there just in case the TV lady wanted to talk to Tod's family. Tod shaved and showered, dressed in a blue shirt, khaki pants, and tied on a clean pair of running shoes. Then they were on the road, stopping by the McDonald's drive-through for breakfast. By eight-thirty, Tod and the boys were at the fire station. After Kirk and Chris each had a couple of slides down the fire pole, Tod gave them brooms and ordered them to sweep the garden walks and to pick up any trash. For once, the boys didn't protest. By eight forty-five, Jan, Wayne and Marilyn arrived to watch the taping. In less than an hour the cameras were rolling.
"Tell us, Tod, would it be fair to characterize what's been going on in Houston as this generation's Scopes Monkey Trial? It certainly appears that some of the scenes we've witnessed could have come out of Inherit the Wind." Over several months, Tod had allowed such comparisons to run through his mind, and the answer to such a question came easily to him.
"Victoria, there are some similarities, but probably more differences. Yes, the clash between science and religion is at the heart of both trials. In ours, there's no real debate that there is a life form present at the moment of conception. I'm not telling any secrets when I tell you that none of my experts this coming week will disagree with that proposition. The Scopes trial focused the national debate about Darwin's Theory of Evolution on a little town in Tennessee. It clearly was a subject of national interest then. Our trial has abortion as one of its core issues, obviously a subject of continuing national debate. Ours is more complicated since we also have to deal with issues involving alleged medical malpractice and damages."
Tod shifted his answer to lead the interview where he wanted to take it. "Probably the most striking similarity is that both trials have a good man who is a victim of the process. Like Mr. Scopes, Dr. Moyo has done nothing wrong. He's a fine obstetrician and a credit to his profession-soon to be a professor at Baylor. Dr. Moyo has been a victim of a campaign carefully planned by the pro-life movement and orchestrated by T. J. Luther." Tod had decided not to give him the title of reverend. "He's behind the lawsuit and he's the one who has destroyed Dr. Moyo's life with his attacks from his pulpit. The other difference between our trial and that of Mr. Scopes is that Scopes suffered a loss at the end. It was a minor fine, but a loss, nonetheless. Dr. Moyo will not lose this trial. His good name will be restored."
Victoria Burton turned Tod's attention to the coming week and Tod listed his witnesses. There were only four experts. He did, however, make sure to mention that he was considering calling T. J. to the stand. He sent a message to the man in Fort Worth that his time on the hot seat was not yet over.
***
On Sunday morning, T. J. returned to his pulpit and preached to an overflowing congregation. When the lights dimmed and the spotlight appeared on the raised platform, the congregation stood as one, cheering and applauding as the figure in a white satin robe and sunglasses floated to the floor. He basked in the glow of their adoration for at least two minutes before motioning them to take their seats. His sermon was brief. He summarized his previous series on the Ten Commandments. He alluded to eight of the commandments, spending five minutes apiece on each of the remaining two. His voice rose as he discussed them: "Thou shalt not kill" and "Thou shalt not bear false witness." While he didn't mention the trial, the message was clear. As he closed, he told his audience that he, Lucy, his church and the pro-life organizations needed their support. As would be obvious on Monday, they received his message. Later in the week, he would learn he should have chosen a different topic.
CHAPTER 73
Monday brought overflowing crowds. T. J.'s followers filled the area behind the barricades. Not to be outdone, the pro-choice forces had responded to calls from some of their leaders who also had watched The Miracle Hour. Once again, the street in front of the law school resembled the stands at a college football game.
Just before nine o'clock, T. J. appeared at the top of the auditorium stairs. He strutted as he de
scended the stairs, his ears still echoing with the cheers of his followers. He took off his Stetson, pitched it on the middle of the counsel table and shook hands, starting with his lawyers and ending with Jessie, Joanna, Bo and Lucy. He paused long enough to kiss Lucy on the cheek.
Johnny Bob's last witness in the case was a calculated decision. Of course, for a lawyer of his experience, he planned nearly every move for the largest possible dramatic effect. Dr. Frederick Coates was an experienced psychologist. More importantly, he was an experienced testifier, and was not likely to be easily confused by Tod's questions. His testimony would serve to make the jury feel sorry for Lucy, sympathetic little Lucy, the real victim in all of these events that had been unwrapped and put on display. In a trial like this, where the answer to every jury question would be a close call, sympathy could tip the scales in favor of the plaintiff.
As Dr. Coates walked down the stairs, Tod sized him up. He was a small man, medium build, brown bushy hair with a beard and mustache that Tod was certain Dr. Coates thought would add just the right touch for a psychologist. He took the witness stand with assurance, and it was justified.
As a forensic psychologist, he was accustomed to courtrooms. Appearances such as this were a frequent part of his practice. As he surveyed the scene and particularly the lawyers, he knew that whatever any lawyer could pitch, he could hit over the fence. Johnny Bob quickly took him through his credentials: Bachelors and Masters at the University of Texas in Austin; Doctorate from the University of Houston; return to his hometown of Fort Worth where he had been in practice for twenty years and, yes, about fifty percent of his income came from working with lawyers. After taking the witness through his credentials, Johnny Bob slowed the pace as he shifted the attention of the witness and jury to Dr. Coates' care of Lucy.
"Now, Dr. Coates, at my request, have you been seeing Lucy Brady as a patient?"
"Yes, sir. She's been under my care for over six months now."
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