From the barrier separating me from the jury, I tell Judge Tamower, “I should be able to tell the jury why some of the witnesses will be testifying a certain way, Your Honor. This alleged crime is all about intent. If I’m wrong, I’ll be contradicted by them.”
Judge Tamower shrugs, as if this is no big deal.
“I don’t see that Mr. Page is out of line, Mrs. Marymount. Your objection is denied.”
I turn to the jury and waste no time in getting specific.
“An interracial relationship in the South makes us all uneasy, ladies and gentlemen, whether we say we are liberals or conservatives. Even the most accepting of us knows the difficulties of such a union and the reactions that occur in some quarters. It comes as no surprise when I tell you that sustained love between two people with everything going for them has a fifty-fifty chance, and sustained love between people of different races, especially in the South, to most of us is a matter of hope over reality. When you add to it the accidental death of a child, you get at least two, and actually more, very conflicted people, as you shall see when they testify….”
As I sit down, Andy leans over and whispers, his voice scratchy with disapproval, “I never told you I felt conflicted
For the jury I place my hand on his sleeve as if I am thanking him for complimenting me on a fine opening statement This guy is one in a million.
After lunch the courtroom fills up again. Most of the crowd had expected voir dire to take at least the entire morning. Jill calls as her first witness Dr. Warren Holditch, who had been her expert witness at the probably cause hearing. Knowing the municipal court would send Andy to trial and since I was not really prepared to do so, I didn’t crossexamine him.
Now I have my chance. Holditch, a behavioral psychologist who seems even more emaciated than he was a couple of months ago (I am tempted to ask him if he is treating himself for anorexia), essentially repeats his opinion that shock is dangerous and Andy should never have used a cattle prod and should have gotten the consent of a human rights committee
Since I have heard this before, it is difficult to gauge the effect on the jury, but since he is only the first witness and they are not tired yet (though I see one lunch-induced yawn), they pay close attention to his explanation of the different behavior-modification procedures he says Andy should have tried before he attempted shock. In a new wrinkle, Jill intro duces as exhibits two commercial shock sticks as well as a remote-control device complete with a helmet. She is protecting her manslaughter charge in case the jury won’t go for murder. As these are passed around the jury, the male jurors barely resist poking each other with them while the women pass them quickly on as if they were hot to the touch.
On cross, I get Holditch to admit that one of the most widely published researchers in the field has reported using a cattle prod to suppress self-abusive behavior. Though I know Jill will come back on redirect and reinforce his testimony that safety considerations have made this research obsolete, except for the point that shock can work, I want the jury to know it is something that a man, with many more credentials than Warren Holditch, has employed success fully.
Before I sit down, I ask Holditch, “Isn’t it a fact that if Leon Robinson had not loosened his grip on Pam she would be alive today?”
Jill objects loudly that Dr. Holditch isn’t qualified to answer this speculative question, and I don’t fight it, having made my point.
Jill ends my own speculation by calling Olivia next. De spite everything Olivia has said, there is the possibility she will invoke her Fifth Amendment right not to testify, now that the moment of truth is at hand. Led in from the witness room by a black female bailiff, Olivia, smiling as she walks through the door at the back of the courtroom, seems as confident as a reigning heavyweight fighting out of his division But as she passes by our table, I see that it is all an act.
Her smile looks soldered into place. She is scared to death, and I don’t blame her. With a single slip she can cook her own goose, and everybody in the courtroom knows it. I glance at Andy to see how he is reacting to her presence, and like a small child who is afraid his playmate is about to tattle on him, he seems to be holding his breath.
As Jill leads her through some preliminary questions, it is hard not to think about Olivia’s manner at the probably cause hearing. Then she was the grieving mother, a difficult witness for both Jill and me. Today, she is a murder suspect, and Jill will show her no mercy. I presume anything Olivia says that is favorable to Andy will be made by Jill to seem like a cover-up when she makes her closing argument either the story of a woman concealing her own role in the murder of her child or the words of a woman who was duped by a man who wanted her money badly enough to kill her child for it. If Jill knows about the child who lives in Ohio, I have no indication of it.
Olivia begins to cry at Jill’s first hostile question.
“When I questioned you at Dr. Chapman’s hearing a couple of months ago,” Jill asks, holding a volume that contains her testimony, “you didn’t mention you were having an affair with him at the time he applied electric shock to your child, did you?”
Everyone, me included, seems to creep to the edge of our seats. Her voice trembling, Olivia says, “No, but I wasn’t asked.”
Jill, reminding me more and more of one of those old peasant women in Zorba the Greek in her black dress (all she needs is a black shawl for her head) booms from behind the podium, “And you didn’t mention that you were to receive at the time of your child’s death approximately two million dollars as a result of a malpractice settlement against your child’s doctor, did you?”
Olivia wipes her eyes with a tissue she has balled up in her right fist.
“No, I did not.”
Jill backs slightly away from the podium and says softly, “And you didn’t mention at the hearing that you had told your lover. Dr. Chapman, that there would be more than enough money for him to go back to school, did you?”
“We were talking about getting married and I was considering selling my business,” Olivia says, her voice becoming more defensive with each question.
Jill pauses for a moment to allow these answers to sink in on the jury. She makes a great show of thumbing through the transcript and then asks, “Mrs. Le Master, isn’t it true that you suggested to your lover that he use shock to try to stop your daughter’s self-abusive behavior?”
Seeing Jill turn to a specific page in the transcript, Olivia answers, “No other doctor had helped her.”
Coming around from behind the lectern as if to challenge Olivia to a fight, Jill says vehemently, “Your child died as a result of your lover’s help, didn’t she, Mrs. Le Master?”
Before Olivia can answer, I am on my feet objecting.
“She’s not qualified to answer that.”
“Sustained,” Judge Tamower says.
I sit down, knowing I could object to the form of all of these questions, since they amount to crossexamination, but I know Judge Tamower will allow Jill to treat Olivia as a hostile witness and ask leading questions, and I don’t want the jury to be any more aware of the distinction than they already are. I will have an opportunity to allow Olivia to explain her actions as much as she is able, but the damage has already been done. Anything that Olivia says will be filtered by the jury through her admissions. Now that she has whetted the jury’s appetite, Jill takes Olivia through her story from the beginning. It all sounds sordid now, each action suspect. Olivia comes across as though she had planned her daughter’s death for months. Against the backdrop of her initial admissions, her story that she fell in love with Andy rings hollow. Instead of a poignant and ultimately tragic interracial love story, the jury hears monosyllabic responses directed by Jill. I had hoped to convince the jury that Olivia seems ambivalent now because of Pam death. Instead, she is unconvincing because of what she has admitted she stood to gain.