Probable Cause g-2 Read online

  He surprises us all by bursting into tears. Astonishingly, this kid, doubtless a redneck, cares deeply about Pam. Jill offers him a tissue, and he takes it and wipes his eyes.

  Before he sits down, Jill gets him to identify the cattle prod that killed Pam. It is an ugly thing, much longer than I imagined, probably about three feet in length. I assume it is that length because an animal, either out of pain or rage, would be in a position at close range to take the arm off its tormenter. I notice the black insulation tape that was sup posed to keep this accident from happening and realize that if it had been me, I wouldn’t have trusted myself to know how much tape was sufficient.

  Jill turns to me and says blandly, “Your witness.”

  As I get up, I introduce myself to him. He rolls his eyes back up in his head as if he has seen his share of lawyers.

  During a short conversation on Friday over the telephone, he went into a bit more detail. I had wanted to talk with him in person, but he claimed to be much too busy to visit with me.

  I decide not to do too much with him, since I run the risk of reinforcing his testimony.

  Grudgingly, Leon admits that Andy had explained to him the night before that Pam would try to pull away.

  “I didn’t know she’d go crazy though like she did,” he insists.

  “It was like she had superhuman strength all of a sudden,” he exaggerates Knowing I will have another crack at him, I ask him a few more questions to get him to admit that Andy had taken some pains to explain to him what he was trying to accomplish and let him sit down.

  Jill wastes no time in calling the doctor who pronounced Pam dead. Dr. Travis Beavers, a GP who was doing an emergency-room stint at St. Thomas, licks his lips and testifies verbatim from the statement he gave to Jill that the cause of death was due to “an apparent fibrillation of the heart secondary to a reported electric shock.”

  Dr. Beavers, baby-faced and nervous, can be jumped on with both feet. There was no autopsy report, and her heart had stopped beating by the time he saw her, so for all he knows Pam might have been poisoned. I would just as soon not have the testimony frozen in stone at this point and so I do not object to what is obvious hearsay. Common sense suggests that it was the shock that caused her death, but there is no formal proof. There isn’t much to work with, but it might give a stubborn juror something to chew on in the jury room when the time comes.

  When Dr. Warren Holditch takes the stand and begins to speak, I forgo trying to make my usual gibberish of notes (we can obtain the transcript), and sit back and watch so I can try to figure out how to crossexamine him when the real shooting starts. A small, wiry man who looks like a runner, Holditch has none of the polish of the professional witness, which is probably in his favor. As he establishes his credentials, he stumbles over words as if English is a second language. He is nervous, but this is practice for him, too. He says he is from “Pine Buff” for “Pine Bluff” and I hear someone titter behind me. If he can’t even get his hometown right, we’re going to be here for a while. I find myself itching to get at him, even though I know it would be counterproductive as well as futile.

  However, once Jill gets him into the substance of his testimony, Holditch’s voice gradually takes on an authoritative tone. Working up a head of steam, he begins to tattoo Andy.

  There is a view among some psychologists, he says, that extreme punishment of the develop mentally disabled for treatment purposes, as was used here, is unjustifiable be cause decisions are made for the retarded that we would never make for ourselves. For example, tobacco kills thousands yearly in this country, but Holditch testifies he knows of no treatment in which an adult has consented to be shocked in order to stop smoking. As he talks, he looks directly at Andy as if he is the cross his profession has to bear. If shock can ever be justified (and in his view, it cannot because of its dangerousness and severity), there have to be safeguards that were not present in this case. Now Holditch turns his head and begins speaking directly to Bruton, who has been eyeing the courtroom suspiciously, as if he were afraid that we had conspired to set off some racial incident. Holditch’s voice, small and shy when he began, fairly booms off the walls. He says that it is elementary that aversive procedures, especially shock, not be tried on a retarded person until a psychologist demonstrates that he or she has tried less aversive techniques or has conducted a review of the literature and found that a particular procedure would be futile.

  As he speaks, Andy leans over and whispers, his voice angry “We don’t have the staff to try what he’s going to suggest, and he knows it.” He adds, his voice rising, “He knows those procedures don’t work with people like Pam.”

  Holditch begins to feel comfortable enough to slouch slightly in the chair as he talks.

  “In a perfect world, there would be no need for punishment. Rewards would be enough, and certainly it is often easy to increase appropriate behavior by devising a program of reinforcing activities. I hate to slip into jargon here, but to use correct terminology, one of the most obvious but effective ways to work with retarded per sons is a DRI procedure. DRI stands for differential reinforcement of incompatible behavior. It simply means that you reinforce a behavior you select for the person to engage in which is physically incompatible with the behavior you want stopped. For example, a teacher takes a child who is banging herself on the head with her fist and gets that child to work at a task using her hands.”

  Andy pushes his chair against mine and whispers, “When a child bangs her head a hundred times an hour, think of the staff ratio you would need even if it worked completely with these kinds of cases, which it doesn’t. Do you think Arkansas would pay for that?”

  Dr. Holditch, now that he has the attention of the judge, turns his head back toward Andy as if he is lecturing a way ward student.

  “However, my opinion is that in order to de crease or eliminate certain behaviors, it is sometimes necessary to use punishment as a procedure. But the principle of least restrictive treatment dictates that you try the least aversive techniques first. If you want a cite of the professional literature, see Dr. Richard Foxx’s basic training manual entitled Decreasing Behaviors of Severely Retarded and Autistic Persons.”

  Bruton acts as if he is Holditch’s favorite pupil and begins to take notes. I can barely refrain from snorting out loud.

  With his reputation for shooting from the hip, Bruton probably hasn’t written anything except his name on a paycheck in the last twenty years. Holditch dips his head slightly as if to indicate he approves of the judge’s willingness to do some thing besides sit there and pretend he is listening. Of course, Bruton could be writing himself a note to remind himself what time Geraldo Rivera comes on. Holditch continues, “Now, it should be mentioned there is a school of thought that says aversive techniques of behavior modification are unnecessary in addition to being immoral.” Holditch pauses and wrinkles his nose before disagreeing.

  “Some educators hold to the idea that you can replace a destructive behavior with a skill without having to first eliminate the destructive behavior, but, quite frankly, in some real difficult cases, I think this is simply pie-in-the-sky rhetoric. As I said, in an ideal world there would be no techniques that we call punishment used to decrease unwanted behaviors,” he continues, “but we aren’t there yet for serious self-injurious behaviors-at least I’m not aware that we are in Arkansas.”

  I look at the satisfied expression on Jill’s angular face and realize that she has slashed the odds against making her case.

  By going with a conventional psychologist who condones aversive techniques of behavior management (albeit allegedly in a judicious manner) she has slipped from my hand a weapon I would have been happy to use against her. So far as I can tell from the admittedly limited research I have been able to do in the last three days, the case for strictly non aversive means to eliminate self-injurious behavior is a matter of much debate. By not turning this case into a propaganda film in which outside experts will be trooped into the
state to show our backwardness, she has strengthened her hand immeasurably. I realize now that my friend Amy exaggerated Jill’s zeal to reform the system. Jill will be content to show that Andy hasn’t met the professional standards for psychologists in Arkansas, a much easier task, since it is clear that he ignored the hell out of the usual protocol.

  Jill takes Holditch through Pam’s records. It is appalling how little had been done for her since she began to hurt herself when she was twelve. As Holditch drones on about the restraints and the drugs that had been an inseparable part of Pam’s adolescent years, Andy writes on the legal pad and shoves it at me: “The turnover and vacancies on the staff makes it impossible to do anything but keep kids like Pam in restraints or on drugs.”

  Holditch says that one of “Dr. Chapman’s” major errors was the failure to obtain the approval of a “human rights committee,” standard procedure in institutions before highly aversive techniques are tried with a retarded individual. Andy whispers loudly that it was “moribund” at the Blackwell County HDC and hadn’t met in months. I make a note to work on somehow minimizing this. It seems it would have been a simple matter to arrange to have his ass covered by a group. Holditch says there is no indication from his review of the records that any committee was consulted.

  Jill runs Holditch through a number of recognized behavior-modification programs that he says Andy should have tried before shock: “Extinction,” which, according to him, simply means ignoring the behavior (Holditch concedes this would have been dangerous, given the fact that as soon as she came out of the restraints Pam began to hit herself);

  “Timeout,” which would have placed Pam in a room by herself with a one-way mirror for a few minutes at most;

  “Overcorrection,” a procedure in which the teacher or trainer may actually guide with his hands the offender’s body in movements that “overcorrect” the maladaptive behavior (Holditch explains, as the judge scratches his head, that, as an example, when Pam began to hit herself, she would have been required to fill a bag with ice and hold it against her head). Finally, he says that forms of punishment other than shock should have been tried first. For example, Pam could have been required to do exercises each time she hit herself.

  Andy shakes his head as if Holditch has suggested aspirin to cure cancer, but this seems like such common sense I make a note to ask him about it later.

  Jill, who has been appropriately unobtrusive in her questioning on direct examination, asks Holditch about the use of a cattle prod, and it is the introduction of this subject that at a jury trial will do the most damage. Average Arkansans may be skeptical of all the psychological mumbo jumbo but talk about electrocution will wake them up, no matter how bored or confused they have become. Bruton thrusts his chin forward as if now we are getting to an area he can under stand.

  “If shock can ever be said to be appropriate as a method of behavior control, and it is still used by some professionals, according to the literature,” Holditch says, tapping his fingers together prissily, ‘one thing is for certain: using a cattle prod to administer the electric current never is. Anyone who familiarizes himself with the literature knows that.”

  Again, I feel Andy’s breath on my right ear.

  “The man who pioneered the use of shock in this area used a cattle prod.”

  But would he use one today? I wonder, as I listen to Hoiditch name a number of commercial products that have been specifically designed for use on humans.

  “As far back as 1975, an article was published in the journal Behavior Therapy warning against the use of cattle prods. In fact, my research shows that the hand-held shock apparatus is probably rare today. Remote-control devices are more widely used because they don’t have the generalization problems that are encountered with hand-held products.”

  Ramrod straight behind the podium, Jill asks, “What is a generalization problem, Dr. Holditch?”

  Holditch, increasingly comfortable in the courtroom, nods patiently.

  “It is not at all unusual that unwanted behaviors which have disappeared in one setting, for example, the treatment room, reappear in another. If shock is going to have any meaningful application, the child must be able to live in a normal environment. It is nothing short of cruelty to a child if the behavior soon resumes. In other words, children learn to associate the individual who shocks him or her with the stimulus. According to the literature, and in my own experience, when that person is not present, the self-injurious behavior will typically recur. For that reason remote-control devices have been developed which help prevent this problem from developing.”

  Jill asks softly, “Is there evidence that any other apparatus or device was used to shock Pam Le Master other than a cattle prod?”

  Holditch shakes his head.

  “Not from the records I’ve been given to review.”

  Jill asks, “What, if anything, is wrong with using a cattle prod?”

  Cattle prod. Cattle prod. If Jill is beating it to death today, wait until she has a jury. Holditch frowns, as if the question pains him.

  “According to the literature,” he says, “the type of device used on an animal may not regulate the voltage or current. This type of apparatus can deliver more than eighty microamperes, which, if the current travels through the heart, can produce ventricular fibrillation. By the way, the pain produced has been likened to having a dentist drill your teeth without benefit of anesthesia. Before coming here, I applied a shock to myself, and in my opinion, the pain is worse than that.”

  Instinctively, I rise to object, but realize once I get to my feet that the severe pain produced by the shock of a cattle prod is intentional. While I am standing, Jill chooses this moment to ask, “Do you have an opinion concerning Dr.

  Chapman’s use of shock on Pamela Le Master?”

  I can make objections here, but they will do no good at this hearing, and I pop back down in my seat like a jack-in-the-box in reverse, while he says, of course, that he does, and then proceeds to say how reckless Andy’s actions were and more or less repeats his earlier testimony. It is recklessness that the jury will decide this case on, and the room is hushed when Holditch finishes, and Jill says tonelessly, “Your witness.”

  There are weaknesses in this testimony, and I have to bite my tongue when I decline to crossexamine him. Even Bruton’s eyes bulge in disbelief when I say, “No questions.”

  I call Olivia as my only witness. I had talked with her briefly on Friday (she surprised me by declining to meet with me again before the hearing), but she seemed as resolute on the phone as she had after the plea and arraignment hearing.

  Despite my urging, she has made no public statement and has refused all comment to the press. Andy, who has accepted the inevitable outcome of the probable cause hearing with his customary aplomb, had not wanted me to put Olivia through a court appearance any sooner than we had to, and argued as late as last night that she would not waver from the story she had given to the prosecutor’s office and to me in my office. Perhaps, she won’t, but I think I know better than Andy the pressure she will endure between this hearing and the trial. Getting her on the record now will remove the worry once and for all.

  For the hearing she is dressed surprisingly informally. She has donned a navy blue picnic skirt with a simple indigo sleeveless top. Because of their general stylishness, I had not thought to ask her or Andy to wear something more formal.

  We do not have to impress a jury, but the press and TV are sure to pick up on their seeming casualness.

  Her testimony, as I had secretly feared, is cooler than it was in my office. Though the words do not vary, her tone is quite different. I do not know if she is sounding this way intentionally, but she seems detached, almost as if she has begun to question her own involvement. Though she admits that it was she who had suggested shock to Andy her words are tentative, as if it was a treatment she had only heard mentioned, instead of one that she had spent some time trying to find out about from others. I now feel as if I am
tiptoeing through a mine field. I ask her if she was aware that he had never tried shock before; and, as she had in my office, she talks about the difficulty she had finding anyone who would even admit it was an option; but this time there is uncertainty in her voice instead of conviction. I rush her through the actual event, fearing she will say something that will implicate Andy; but her story, when she is finished, is almost identical to Leon’s. She does volunteer that Andy tried mouth-to-mouth resuscitation; but, had her direct testimony been given in front of a jury, the impression would have been that she was a reluctant witness.

  Jill appears almost gleeful that Bruton had denied her objection that the mother’s consent was irrelevant as she steps in behind the podium to crossexamine Olivia. Yet now that Olivia has performed miserably on Andy’s behalf, she proves an obstinate witness to Jill. Instead of agreeing that Andy had failed to inform her of the dangers of shock, Olivia says that, on the contrary, Andy had warned her that electricity was always dangerous. Jill asks her if Andy had told her that he was going to use a device designed for use on animals.

  “Absolutely,” Olivia says.

  “He gave me an article to read showing the results of prior experiments. I knew that what he was trying to do was to show the administrator that shock would work so that he could get permission to buy and use remote-control equipment. He explained that the pain would be intense and that I should experience it, and I did. He said the research showed that if the stimulus wasn’t painful enough, some children it had been tried on had adapted to the pain. He explained about the tape being wrapped around the metal part when I asked if it was safe.”

  Burned worse than I have been, Jill decides not to push any further, and I also decline the opportunity to redirect.

  Olivia leaves the witness stand dry-eyed and cool. So much for my star witness. I had hoped for a stirring defense of Andy, and only got it when I wasn’t asking the questions.

  Yet maybe I shouldn’t be surprised. Putting a person under oath in a witness box has an unpredictable effect.