Probable Cause g-2 Read online

  As Andy and I watch her walk out the door with her cameraman he observes, “I wish all interviews were that friendly.”

  Andy, I’ve noticed, doesn’t miss much. I force myself to look at him and pretend it was all business.

  “You’re going to need all the friends like that we can get.”

  He nods soberly.

  “Would you like to go somewhere and talk to Olivia now? I know she wants to talk to you.”

  “Sure,” I say, wishing I had known she was coming. If this case is going to be pre tried in the media by the prosecutor the mother of the victim, could, if she is willing, be of enormous help. Yet, it is difficult for me to grasp the possibility that she might be willing to get involved. After all, her child hasn’t been dead two weeks. But if she talks to the media about this case, I want to have an opportunity to tell her what I think she ought to say. Doubtless twelve jurors can be found who will swear under oath they haven’t heard of the case, but the presiding circuit-court judge will have an opinion, and my best hope in this case may be to keep the decision out of the hands of the jury. Unless I’m missing something, Jill Marymount will have expert witnesses falling all over each other to testify that shock shouldn’t be used on helpless, retarded children. The trial judge has control over which experts are qualified to testify and whether their testimony is relevant. Before the trial judge makes this decision, I want him or her to have read or heard the mother of the victim say that her child was in such pain she welcomed someone who was willing to try to help her. Is this unethical?

  Surely no more so than Jill Marymount running around all over Blackwell County screaming about helpless children.

  I decide to take Andy and Olivia Le Master to the conference room two doors down from my office in the Layman Building. It is an awkward walk for all of us. After I say I’m sorry about her child and she nods politely, my mind goes blank. I’m not ready to begin our interview in public, and yet small talk seems somehow out of place in the face of death. As we cross the street at the corner of Lewis and Russell, Olivia, whose stride matches my own, pauses for Andy, who has been lagging behind, to catch up with us.

  “I need a shower,” he says somewhat sheepishly.

  Olivia nods and says, her face full of sympathy, “It must have been horrible for you.”

  He nods noncommittally, and I wonder about their relationship.

  Could it be sexual? I try to read their expressions, but if there is a special chemistry between them, I can’t tell. Andy, who seems to have the grooming instincts of a cat, appears embarrassed, and Olivia, sensitive to his feelings, walks the rest of the way to the Layman Building alongside me. Yet, for all I understand at this point, they could easily be hiding their feelings. As we enter the elevator to take us to the sixteenth floor, I reflect upon the fact that sex is routinely my first explanation of human behavior. When Rainey is in her social-worker mode, she tells me that I constantly project my feelings onto everybody else.

  At the receptionist’s desk I have, not surprisingly, no messages in my box. The temporary, whose name I have learned is Julia, eyes me suspiciously. Great, her expression says, the first clients you drag up here are an interracial couple. “Hold my calls,” I say to her as if I’m expecting to be deluged.

  “Is the conference room available?”

  She points sullenly to a key hanging on a hook on the gray metal message box.

  “What does that key tell you?”

  Do I remind this woman of her worst nightmare, or what?

  I snatch the key from its hook, resisting the temptation to gouge her eyes out with it.

  “Thanks,” I say, giving her a fake smile. If this is not her last day here, it will be mine. I find that I do not have the courage to ask if there is any coffee in the conference room.

  We make a lonely-looking trio in the conference room, but it may be helpful in stimulating conversation if we don’t feel we are on top of each other. I sit at the head of the table facing the door. Andy and Olivia Le Master take chairs on opposite sides of the table. I realize I should have told Andy that I needed to visit with him alone that there will be plenty of time to talk to Olivia. Since she is already down here and seemingly willing to talk, I am afraid to pass up the opportunity, since she may be the key to saving his rear. Now that I have them seated, I would like to be able to watch both of their expressions simultaneously, but I can’t very well ask them to move together. I begin by telling Olivia that I have a daughter and can imagine how I would feel if I lost her.

  “Every time she’s ten minutes late I start to worry about her,” I say tentatively, hoping I’m not being presumptuous.

  I know firsthand how meaningless words of sympathy are from most people. The pain from the death of someone you love can hardly be imagined by someone else. In an effort to establish my sincerity, I add, “My wife died of cancer, so I Spock pretty easily.”

  I have pushed the right button. Olivia’s small bust rises and falls as she sighs, “How old is your daughter?” “Seventeen,” I say and, unable to stop myself, add, ‘she’s at the Governor’s School at Hendrix College for the Gifted and Talented this summer.”

  Her smile is genuine.

  “You must be very proud.”

  “I am,” I say and stop. How callous can I be? Her child was born without a normal brain, the first words out of my mouth are how superior my child is.

  Olivia’s gray eyes are warm with concern as she empathizes.

  “I understand how you feel about your daughter. Unless she was in restraints or heavily drugged, there were times I couldn’t stop worrying about Pam, and then it was a different kind of worry. When you have a child who injures herself, for months every time the phone rings after it happens you think they’re calling you to tell you something new and even more horrible than before.”

  I have begun to nod, but I can’t really even imagine what she has gone through. Almost every day with Sarah has been ajoy; has this woman even had one happy day with her child?

  How has she endured it? As grotesque as shock sounds, a radical form of treatment at some point may seem unavoidable.

  However, probably only the parent of the child can say that convincingly. For the next forty minutes Olivia Le Master tells me a story that I will remember the rest of my life, for it is impossible for me not to think of Sarah while she recounts her child’s tortured existence. While I listen to the predictable anguish and guilt all parents must feel upon learning their child is retarded, I think of how much I take my daughter’s normality for granted. Would I have deserted Rosa (as Olivia Le Master’s husband did) if Sarah had turned out to be profoundly retarded? Surely not, I tell myself, but the truth is that I would have been sorely tempted. As she speaks, I can hear my mother saying an hour before the wedding: God knows, Gideon, you don’t know a thing about her background. She, of course, was not so obliquely referring to my own father’s mental illness. Knowing myself, I would have tried to find a way to blame Rosa had Sarah been screwed up. How does a young mother have the strength by herself to raise a child like that at home? Incredibly, Olivia Le Master tried, but she found it was impossible alone. She had to work to support herself, and child care is difficult enough in Arkansas under the best of circumstances. For her, but perhaps not for others, she concedes, it was too much.

  Certain she was abandoning her daughter when she began to abuse herself, Olivia placed Pam in the Blackwell County Human Development Center when she was ten.

  “You can’t imagine the relief I felt when she was accepted,” Olivia says, her eyes filling with tears.

  “I felt I could breathe for the first time since my husband ran off.”

  Men are truly jerks, I think. What makes us weaker than women? Is it simply that they are the ones to have children and thus come by a sense of responsibility more naturally?

  As I listen to her account, I imagine I am hearing the story of every women who has turned her child over to the state.

  If she missed a weekly v
isit, she felt enormous guilt. In a kind of feeble way I try to identify with her. There have been more nights than I care to remember when I have come home much later than I promised Sarah. The look on her face (anger and relief) has, from time to time, haunted my dreams.

  Still, time brings a measure of acceptance of events that cannot be reversed. A healthy sense of fatalism, Olivia calls it during the interview, and though I don’t believe in fate, I can understand how she does. Before Pam was born, David Le Master started a real estate business, and it was his gift to his wife when he decided he didn’t want to be around anymore.

  “David was good at starting things,” she says, a wintry smile overtaking her face whenever she mentions her husband.

  “I’ll give him that.”

  Most men are, I think, glancing sideways to catch my client’s expression. He is watching her face with such sympathy I feel a twinge of guilt.

  Olivia relates her daughter’s tragedy without another reference to her ex-husband. In a straightforward manner she tells me what it was like when the self-injurious behavior began. With no warning whatsoever one day, Pam began beating her head with her fists at first and then later against walls, even against her bed. Not so hard that one blow would cause injury by itself but hard enough to bruise her. Left alone, she would hit herself over one hundred times in an hour. I turn to Andy and ask why a child would do this, but he says that there are only theories for this behavior, not explanations, the latest one being that self-injurious behavior is actually a form of communication. More traditionally, Andy says, slipping into jargon, it is thought to be behavior that is reinforced by attention or is an attempt to avoid a task or is even somehow intrinsically reinforcing.

  “The fact is,” Andy says, looking at Olivia, though I’m sure they have discussed this topic many times, “no one knows for sure what prompts a child to hurt herself.”

  Olivia has begun to cry. Of course there is no box of tis sues for my clients in the conference room, but Olivia yanks a wad from her purse and begins to talk even while she wipes her face.

  “When she first started hitting herself, I was told it might stop, but with time, it only got worse. I couldn’t believe it. I don’t care whether a person says they believe in God or not you think you’re being punished for something you did. Who knows? Maybe all of us were being punished I’d be lying if I didn’t admit to you that in some ways Pam’s death has been a relief.”

  This last sentence, understandable, and not totally unexpected, is still jarring to me. Without this last addendum about death being a release, Olivia’s impact on a judge and jury will be favorable. And yet, maybe it, too, will be understood. This is not some highly emotional and distraught parent who has been overly influenced by a psychologist who wanted to use her daughter as a guinea pig for his own research. Rather, Olivia, assuming her testimony holds up, will come across as a strong, caring mother, who loved her daughter enough to inflict pain on her if that was what it took to help her.

  I glance back at my client and am not surprised to find that his eyes are moist. But I do not want Olivia to admit in the witness chair that even for a moment she thought about the surcease from pain her child’s death would bring. With the acknowledgment of this all-too-human motive, it might be tempting for the prosecutor to try to convince a jury that a sympathetic and frustrated psychologist deliberately went too far in trying to end her child’s suffering. Waiting for her to finish wiping her eyes, I wonder how I can say this with out coming across as hideously manipulative. Lawyers are directors as well as actors in a play. If we forget that for one instant, we’re no longer doing the job we’re hired to do.

  Just tell the truth, we tell our witnesses. What we mean is, just tell the truth in a way the judge or jury will believe you. I’m all for the truth, but if nobody believes it, what has the system accomplished? The trouble with being a public defender was that the witnesses for the defense were not credible even when they were telling the truth. Give me a good actor who can make the truth convincing, and I’ve got a chance. I don’t have to tell Olivia what I need from her today.

  We will have the time later if she is willing to help me.

  We talk about past attempts to help Pam, and I am not surprised to hear bitterness in her voice as she speaks about the psychologists over the years who refused to try shock.

  As she speaks, her face becomes hard, and I think I see for the first time the facet of her personality that has allowed her to take over a small real estate operation (I had never heard of River Country Realty until two years ago) and turn it into a major force in the central Arkansas area.

  “The first time I heard of shock I thought I was being teased. This little Dr. Oliphant he left the state a year before you came, Andy,” Olivia says, “had the nerve to say that shock was her only hope but only a sadist would use it. He was so smug, so morally superior-1 wanted to kill him.

  Every time I brought it up he would get this expression on his face that said I was depraved for even thinking of it. I think he wanted to try it, but he didn’t have the guts.” This last sentence is spit from her mouth, her face twisting in anger. Theoreticians do not rank high on this woman’s list.

  Whatever I have to do to persuade her to testify, I won’t moralize.

  Andy’s head, I notice, turning quickly to observe him, dips in apparent agreement.

  “What about the other psychologists?”

  I ask both of them.

  “If it works, surely somebody in the state was using it.”

  In a gesture of impatience, Olivia pushes her hair back from her long, tanned face.

  “Though I kept hearing rumors about the use of shock in the past. Dr. Oliphant wouldn’t admit to knowing anybody who had tried it who was still in the state. You know you can’t make doctors talk when they don’t want to-they hide behind confidentiality whenever it’s convenient.”

  I look at Andy and see that his wide taupe lips are tightly compressed. He must be having the same thought that flits through my mind. Notwithstanding the quality of her life, Olivia’s daughter would be alive today if he hadn’t had so much courage. Granted the other professionals may have been timid, but not without reason. After all, Pam died. I need to understand the circumstances better, but I’d be a monster to make Olivia sit through a story that already must give her nightmares. I ask her a few more questions and learn that it was she who had suggested to Andy that he try shock.

  I also learn to my dismay that he had never even been present when that form of behavior therapy had been used before. It will lend credence to the charge of recklessness that the prosecutor has to prove. Yet, as I listen to this woman, I am beginning to understand why he gave in to her. Olivia, whose intensity has grown with each moment, is both persuasive and vulnerable. As she talks about the agony Pam experienced, it is easy to believe that there was no other alternative to shock, which, she understood and Andy confirms, is painful, yet safe, if used correctly. As I glance back and forth between them, what disturbs me is my growing sense that my client, though armed with the best of intentions, may have been professionally unqualified to use shock as a technique to modify Pam’s behavior. How could he have refused to have educated himself as much as possible? Perhaps he did, I think, realizing I know literally nothing about it.

  I will want to talk to Olivia before the probable cause hearing, but away from Andy. Though it seems unlikely, the gratitude she feels now may turn soft before Monday, as she begins to get some pressure to turn on him. It would be difficult if not impossible for her to tell him while he is sitting across from her that she thinks he should have refused to help her. It may not be so hard to back away from him once she is placed under oath and the prosecutor is giving her a perfect way to escape guilt-blame the doctor, Mrs. Le Master: he is supposed to be detached, cool, the professional. She seems to have more integrity than that, but I will be the first to admit that a woman has fooled me badly before in one of these situations. Besides, from an ethical standpoint, pe
rhaps Andy did fatally forfeit his judgment. After all, he is presumably trained, educated, and licensed to exercise appropriate professional discretion, and now a child is dead. A criminal, though? Surely not.

  Leaving Andy alone in me conference room, I walk Olivia down the hall and to the elevators and tell her I would like to call her soon. Her eyes slightly red now from crying, she assures me she will help in any way I suggest.

  “He tried,” she says defiantly, “when no one else would. All these so-called advocates act as if children like Pam can be helped without aversive measures. Well, goddamn it, why didn’t they do it?”

  I push the elevator button for her. I have no answer. I have no quarrel with her anger, but I want it to work for Chapman.

  If I handle it correctly, the jury may understand that the real defendant isn’t on trial. I decide to provoke her with the truth, or at least part of it.

  “I don’t know about the advocates,” I say as she steps into an empty elevator, “but the doctors and psychologists are scared to death of malpractice.”

  A hard glint comes into her gray eyes and she stares at me, holding the door for one final comment.

  “All I know is these other so-called professionals weren’t willing to try any thing that might work,” she says. “He could have turned his back on me, and he didn’t, and I ‘m not going to forget that.”

  “I’ll hold you to that,” I say, as the door begins to slide shut.

  “I’ll be calling you in the next day or so.” I walk back to the conference room, realizing Olivia has a determined side to her that she doesn’t bother to conceal. But why should she? What else does she have to lose? Besides, she is in a business that is at least as well known for its hard times as for its good tunes. One thing is certain: if she turns on Andy, he is dead meat. Olivia Le Master, I’ve decided, can be a ball buster. I just hope she doesn’t decide to go after my client’s.