Challenger Logo by Alan White   A Science Fiction Fanzine   Winter 2004/5

Most of the clients I've dealt with as a public defender have blundered into trouble through bad judgment or idiotic habit. Usually, all I could do for them is minimize the sanctions leveled against them by the State. An exception is therefore to be treasured, and trumpeted, because such a rarity is a defense lawyer's dream.

THE BEST SPEECH
I NEVER GAVE

Guy Lillian

Very recently I received an e-mail from an associated producer of The Montel Williams Show. She asked if I could put her in touch with one of my clients, whose story had reached her through the local newspaper. The woman - I'll call her Lucy - was charged with second degree murder, the killing her newborn child. She had been jailed for more than a year.

When I met Lucy, she wasn't my client, but the wife of my client. Jake, her husband, was charged with negligent homicide after a pistol he was fondling went bang and killed a neighbor. I won the guy a low sentence and Lucy, delighted, sent me a nice thank you card and a jar of candy. I still have the card and the jar. Such gratitude is rare. Lucy went onto my Good People list.

I didn't hear directly that Lucy had gotten into trouble herself - her cases were assigned to another lawyer. It was only after that attorney resigned that I found myself handling Lucy's nightmares - nightmares which had cost her her family, and could cost her her freedom, permanently. A charge of murder in the second degree.

While she was in jail, her four kids had been sent to live with her sister, and authorities talked about a permanent change in custody. What more horrible murder is there, after all, than that of a child by a parent? The fact that this was a newborn, or possibly even a premature birth, didn't help Lucy:  in California, a woman had been successfully prosecuted for murder for using crack while pregnant.

I thought that prosecution unfair, as a Louisiana newborn doesn't gain what we call juridical rights - inheritance, the right to sue, all the benefits of being a person - until he takes a breath outside of the womb. But our assistant district attorney, I learned, was a pamphlet-spreading anti-abortion nut, a staunch advocate of extending juridical rights to the unborn. Lucy represented his chance to join The Good Fight.

 

I read over the file. Police report went like so: On 2-11-03 Lucy had gone to the local hospital in St. John Parish with some severe female bleeding. When treated, she revealed that she had given birth without reporting it, that the child had died and she hadn't reported that, and that she had disposed of the body, without reporting that. A police detective was called in. Lucy gave not one statement, but three.

The "confessions" went all over the map. In the first, she said the child was stillborn. In the second, she said it was full-term and that she had let the baby die. In the third she said nothing about why the child died, but claimed that it was about 5 months along.

All of the statements, however, contained several common facts. She gave birth on February 1st in her bathroom. The baby was not her husband's. It died. She held it, washed it, then wrapped it and hid it in a dresser drawer. Three days later she - and this is shocking - put it in the trash can and weepingly watched the truck go down the street and out of sight.

The police went into investigative mode. They went to the dump with forensic guys and corpse-sniffing dogs. They searched and searched - and found nothing. The body of the infant was never located. Nevertheless, they arrested Lucy and let her sit.

.I visited Lucy in jail in October, 2003. Same pretty, pleasingly plump young black woman who had brought me balloons. She was upset by the circumstances, of course, but obviously rational. Nevertheless I moved for a psychiatric evaluation. However with-it she was now, her state of mind at the time of the incident was what mattered. Besides which, if we were assigned the shrink I hoped for, he was be on our side - and it was time to pull in allies.

One such was our IDB investigator, a huge, pleasant former cop named Tom Carver. Him I tasked with following up on an important lead: Lucy's doctor. Apparently Lucy had medical records at a clinic in a town near LaPlace. They might have useful info.

Carver came back in a few days, his shoes soiled with paydirt. He'd found Lucy's clinic. Out in next breath went a subpoena duces tecum - a request for records.

I also started calling experts in obstetrics. Lucy's first and third statements had maintained that the child born on February 1, 2003 was premature. I needed a bigdome in a white coat to opine on that possibility before the jury - because if the kid had been too premature to survive, the prosecution couldn't prove she was responsible for his death. Which meant, not guilty. I had little luck; the one neo-natologist I could locate was full of encouragement over the phone, but wouldn't travel the 35 miles to our country courthouse. I couldn't blame him; the rules of his university, it turned out, forbade him a fee. But then we got the psychiatrist we wanted - and the answer to our prayers.

Cavenaugh was bright, funny, friendly, with a law degree as well as medical honors. He interviewed Lucy, and came out passionately convinced of her innocence. For one thing, because the police had been unable to find the body, we had to rely on Lucy's description to determine its age since conception. Lucy described a baby smaller in length than the paper you're holding - eleven inches. It had macerated skin - wrinkly and wet, like your fingertips after too long a bath. And its only breaths were short, shallow gasps - what Cavenaugh called agonal breathing.

That's not an infant, Cavenaugh said. That's a miscarriage.

I tried to get this point of view into the record immediately. Lucy had already spent months in jail, seldom seeing her children - although our sympathetic judge, Mary Becard, had allowed her the most liberal visiting privileges possible. But Cavenaugh was a psychiatrist, and unqualified to give expert opinions on neo-natal issues. Judge Becard reluctantly agreed, but reduced Lucy's bond to the lowest ever set for a murder defendant in St. John Parish.

Okay, so we needed a more convincing expert, a neo-natologist, to sock home the facts. Cavenaugh had a suggestion: his wife.

Mrs. Dr. Cavenaugh was not only a published expert in the field, she had literally written the book on it - her textbook was almost universally accepted as the last word in the field. I spoke with the imminently civilized lady on the phone, and she agreed to fly down from her home in Maryland and testify - if she could find the time. Knowing Lucy was indigent, she even offered to waive her fee. The only problem I could see with her testimony was local bigotry; the A.D.A. had a reputation for badmouthing witnesses from other states - even other parts of Louisiana. "We don't need so-called experts from Shreveport telling us what to think!" To counter this, I threw a question into my voir dire about giving an expert less credence because she came from outside the reach of a thrown stone.

Feeling pretty chipper, I went to see Lucy's doctor at his seedy hole-in-the-wall clinic. Her one-page record, which he'd sent to us, was Gold.

It turned out that Lucy had come to his clinic in November, 2002 for a pregnancy exam. Dr. Aubert had given her a human chorionic gonadotrophin test, a very effective urinalysis with an accuracy rating in the high 90s. The test was negative. Once those results were in, he'd given Lucy a depo-provera shot, a hugely effective contraceptive with an intriguing side effect: when administered (by accident) to a pregnant woman, it caused a miscarriage.

November, 2002. Either the hCG test was faulty, or she hadn't been pregnant, or pregnant enough for the chemistry of her body to change measurably. Which meant ...

Which meant that the baby she delivered on February 1st, 2002 could not have been full term. By a matter of four or five months.

Any parent on the jury would know what that meant without being told, but we would have the distaff Dr. Cavenaugh to prove it from the witness stand.

Unviable.

 

Okay, we had tried to get this finished early, and had failed. Lucy remained in jail. Her kids remained at their auntie's. Fair enough; if I had to try the case, I would. I'd stuff the jury with women who had had miscarriages and/or difficult births, people who weren't blinded by passion - passion I admit, though that I somewhat shared. As Clinton proclaimed in his '92 acceptance speech, I am pro-choice, not pro-abortion; such an intimate decision for a woman is none of my business. On the other hand ...

It goes against the human grain to speak so coolly about the death of an infant. It is a shame, even when we're speaking of a foetus, as this was. Like Lucy, we want to protect the young and the helpless. It is a matter of primate nature. But so are miscarriages. They're nature's way of saying that something is wrong.

We would never know what was wrong with Lucy Gallop's baby, but of this I was now completely certain: it was not her fault.

 

In the present, I had a client to defend, and - in addition to a law degree, a Master's of Fine Arts to do it with. Time to unleash my golden pen.

As I composed my voir dire, my opening statement, and my closing argument, I tried to enlist more allies. The National Organization of Women was a partner in the defense of the ladies accused of murder for smoking dope during pregnancy. Surely, in a less questionable case, they'd lend assistance here. I called the local NOW chapter and left messages. Several messages. No answer, ever. What was with these people? Muttering a disgusted bah, I wrote my speeches.

I had to remember the purpose of each speech. Voir dire, where the lawyer questions prospective jurors, is meant to draw forth their prejudices and feelings - and suggest one's case. An opening statement should outline what our side felt would be shown at trial. In the closing argument you argue - that the testimony and evidence prove your client's innocence, or rather, that they don't prove his guilt.

I decided to push matters a little - move my argument to the fore, into the opening statement. This would establish a tone of challenge putting the A.D.A. on the defensive. Whether Judge Becard would let me get away with it was a stream I'd ford when I got my feet wet. The risk was worth it. I wanted to win this trial from Jump Street.

In putting my speeches onto paper, I tried to imagine them as prose poems - as song without music. I was concerned with tone and pace and emphasis. So I staggered my sentences like an expressionist poet. Of course, my words were common, even clunky - it's hard to make poetry out of "chorionic" and "gonadotrophin". But I could give myself clues as to effective delivery.

I worked on the speeches, off and on, every day for weeks. Especially my opening statement. Here it is:

 

On February 1st 2003 at 8 PM

Lucy Gallop

was home in Reserve with her children

Lonnie, 9

Loren, 7

Lionel, 6

Likesha, 3 They were asleep.

 

Lucy began to experience severe

cramping and pain

 

She went to the bathroom.

She gave birth to a premature foetus.

She miscarried.

 

Some ten weeks before

she had gone to see

Dr. Robert Aubert.

 

That was on 11-19-02.

 

As you will find from Dr. Aubert's records

her last menstrual period was on 11-10-02,

and the hCG he gave her was negative.

That's the human chorionic gonadotrophin test -

A reliable pregnancy test

done on urine.

 


Testimony will show that the

human chorionic gonadatrophin

test

turns (+) at about 1000 units -

which can occur between 5-6 weeks

after the last menstrual period


With this in mind she was given

a depo-provera shot -

a contraceptive with the

active ingredient progesterone

 

Which would become 100% effective in a month,

but

which might cause a miscarriage in

a pregnant woman.

 

Assuming that the pregnancy test

given in Dr. Aubert's office

was accurate

she was either not pregnant on November 19

or she was less than 6 weeks pregnant

 

Anyway, she'd led her normal life since seeing

Dr. Aubert

until February 1, 2003. Eleven weeks later

 

On that day, at 8PN, according to her statements, she passed a foetus. Had a

miscarriage.

 

A foetus which was at the most 17 weeks along.

That's allowing for 6 weeks error

in the hCG test.

 

It was only 11 weeks since her depo-provera shot

 

The foetus could have been less than that.

Easily.

 

You will hear expert testimony that

a foetus cannot survive

outside of the womb

at less than 23-24

weeks of gestation.

 

That foetus was doomed

Born dead or born dying

 

Lucy Gallop could not have saved it

 

The finest obstetrician on this planet

could not have saved it,

had he delivered it himself.

 

No action of Lucy Gallop's

caused that foetus to die.

 

But to convict Lucy Gallop of murder

the prosecution must prove

that she did cause it to die.

 

They must prove Dr. Aubert's records

are either inaccurate

or are forgeries

and this was a full-term delivery

Or

they must prove that foetus was

a full-term baby

which they cannot do because there

is no body.

 

What can they prove?

Nothing.

 

And everything they can prove is based on

 

three statements given by Lucy Gallop

to the police,

which not only contradict each other

but also

contradict the

only facts

we have.

 

I propose to you that you will find those statements

worthless

that they show only a confused

guilt-ridden woman

 

Lucy's three statements

ran like this, and

you will see this

She gave two on Feb. 11, 2003

ten days after the birth.

The last statement she gave on February 12.

 

The prosecution bases its entire case on

the second statement

alone

 

A statement which (we say) was given out of

irrational guilt feelings

with no connection

to reality.

 

The prosecution also ignores the contradictions among

all three statements

 

and the fact that they

fly against

the one piece of

objective evidence

we have:

 

Dr. Aubert's records of

a negative pregnancy test

on 11-19-02.

 

Actually, the first statement does conform

with Dr. Aubert's records.

 

In it Ms. Gallop says

that upon giving birth, in her home

on Feb. 1st 2002

she blacked out

from loss of blood

And shock

 

When she came to

the foetus did not move - was dead.

 

She was in a state of

shock

grief

and guilt

 

nothing unusual to a woman who has had a

miscarriage

 

And what she admits to is admittedly

shocking

 

She cleaned the foetus

She wrapped it up

She put it in a drawer

she cried

she prayed

 

And she did something shocking - again.

She placed the dead foetus in a

Trash can

and

- in anguish -

Watched it taken away.

 

Now that is shocking

But it's not murder.

 

Lucy Gallop is a mother

Four fine babies

- children now.

She felt a mother should have saved her child.

So she told her story to the police again.

 

Adding a statement that the foetus was

8 ½ months along

and gasped for air

and died of bleeding from the

umbilical cord, which was

not tied off.

 

This prosecution is based on this statement

alone.

 

It ignores the evidence that the foetus was

only 11-17 weeks along

 

Evidence Lucy Gallop did not fake

but only forgot.

 

I propose to you that the second statement

came from

Lucy's personal, irrational,

false

feeling of responsibility

Not as a murderer

but as a mother

 

who believed that if her foetus died

it must have been her fault.

 

It wasn't.

 

If the prosecution says it was -

it must prove it

it must answer that contradiction

between

this second statement and

Dr. Aubert's records

 

It must explain to you

BEYOND A REASONABLE DOUBT

why that evidence

those records

should be discounted

 

Because if those records are accurate

 

Ms. Gallop's second statement

is not accurate

 

And she is not guilty.

 

In Ms. Gallop's third statement

24 hours later

she alludes to pressure she was under

guilt she was under

because

this pregnancy was not

her husband's child.

 

He was in jail

He could not have been

the father.

 

In the third statement, Ms. Gallop says

the foetus was

5-6 months along.

 

If you accept this statement

it contradicts statement #2

that the foetus was close to full term

and Dr. Aubert's records.

 

It verifies that the foetus was

not

a full term, viable infant

 

The third statement -

Like the second -

makes no sense

The objective evidence is against it -

except for one telling point.

 

In statement #3 Ms. Gallop says that

after the birth

she held the foetus close

held it for 20-30 minutes

felt its life fade away

 

That's not murder

That's not a purposeful and willful killing

 

That's giving that foetus the only thing

she could give it

 

For the few minutes

it lived

 

For the few minutes

it could have lived

 

Comfort.

 

She held it close,

gave it what comfort she could.

 

She was not a murderer

but

a mother

 

That makes perfect sense.

 

Aside from Dr. Aubert's records

you will see NO objective proof -

 

Evidence will show

 

The police combed the site where

the foetus would have been taken

with dogs

trained to find human remains

and found

nothing

 

No body has ever been found

 

No autopsy was ever performed

 

No forensics are possible

 

Since we do not have a body,

I propose to you that we have

No proof of a crime.

 

Evidence will show

a box of bandages was recovered

from Lucy Gallop's house.

(She has four young sons - she better

have bandages on hand!)

 

The prosecution also has

a pair of surgical scissors

from Ms. Gallop's home.

(Proof - that she had surgical scissors.)

 

It has a few drops of blood found

in her bathtub and on her

bathroom floor

 

(Proof that someone had blew in her bathroom.

WHO? WHEN? WHY?

They have no answers.)

 

They have a dresser drawer

with some sort of dried stain

 

Blood? Amniotic fluid? Coca-cola?

We do not know,

and it only backs up

Ms. Gallop's story.

 

Indeed, assuming all these things

they only point to the truth of Ms. Gallop's

basic story

 

She had a miscarriage

The baby died

she hid the body

 

BUT

 

there is no poof she caused the death.

 


Key question of this case:

If a person does not save the life

of one who is doomed

or dead already

 

Is that person guilty of murder?

 


Remember: proof is the responsibility

of the prosecution

 

Their sole responsibility

Their heavy responsibility

Their impossible responsibility

 

The prosecution must prove

 

They must prove this foetus was not born dying or dead

 

Dr. Aubert's records are bogus, and

the child was not only 11-17 weeks along

 

It must prove that her statement

to our psychiatric expert

 

that the foetus she bore on February 1, 2002

was

smaller than a piece of paper

 

was a lie.

 

They must prove that it was Lucy Gallop

and not

the cruel facts of nature

that killed that foetus.

 

They cannot do it.

 

Lucy Gallop is not guilty.

 

And we will show what we must show:

 

That Lucy Gallop's conduct after the birth

was that of a woman

blinded by physical shock

and pain

and irrational guilt

 

A woman who had done nothing wrong

 

She was in shock

she felt a mother's despair

a mother's guilt

 

But guilt for what?

MURDER?

 

This woman is being charged with murder

 

Because she could not work miracles

 

You will hear this evidence

 

You will find Lucy Gallop not guilty

because

the accusation is

Unjust.

 

But she has faith that you are just.

 

Observe - think about what you see -

 

You will acquit,

and return this woman

to her children.

 

I never would have gotten all of that in. An opening statement is supposed to present the jury with an outline of what the trial will show, from the defendant's point of view. A lot of the above is argument; the D.A. would have objected; the judge would have caved.

Argument is the purpose of a lawyer's closing speech, which would, of course, follow the evidence. I wrote that one out, too - a much briefer oration. I envisioned a quiet, almost exhausted delivery, a signal that we held the issue too serious for histrionics. Anyway, the speech was shorter:

 

The prosecution has brought its case

out of concern for

what might have been

 

The prosecution sees the unviable, premature

foetus

described by Lucy Gallop

and imagines

a living baby

a growing child

a productive adult

 

The prosecution asks

Why can't this be?

 

And it comes to

absolutely the wrong conclusion.

 

Was it because of Lucy Gallop

Something she did

or didn't do?

No.

 

The zeal of the prosecution

to protect the helpless

is laudable

but

 

The impulse of the prosecution

to blame Lucy Gallop

for this sad event

and jail her forever

is nothing but

repulsive.

 

I finished with:

 

Lucy did not beat this child

did not scald it with hot water

did not strike it in anger

did not neglect it

she simply held him

and he died.

 

He did not die because she didn't call 9-1-1.

He died because he was premature.

 

Nothing she could have done

would have saved him.

 

Nothing anyone could have done

would have saved him

 

Nothing that she did caused his death.

 

She is being charged with murder because

she could not work miracles

 

and because she blamed herself for being

human.

 

Enough of this.

 

This woman belongs with her living children.

 

Return her to them.

 

Not bad arguments, I thought ... but I hoped I wouldn't need them. In pretrial conference I gave our evidence - Dr. Aubert's meagre record - to the D.A. To my astonishment, they had never talked to the doctor. They had no idea of the most fundamental facts of their case.

Weeks passed.

And then, a year plus into Lucy's incarceration, a trial date came up. As usual on such days, the A.D.A. and I had a plea conference in the chief deputy's office. This time, though, there was no argument. There was only "Give us something!"

I gave them what my boss, David Richter, had found: a public health misdemeanor. Failure to properly dispose of a dead body. Maximum sentence, a year in jail. In a way, giving them such rinkydink when they'd gone after a second degree murder was sweeter than having them simply drop the case. "See if she'll take it!" they pleaded.

Since Lucy had already been incarcerated for a year, I had little doubt of what she would do. I went to her. "Guess what you're doing tonight?" I said. Then I told her. She wept, praised Jesus - and hugged the lady guard.

In court, the A.D.A. who had pressed the case looked sheepish. Maybe he was embarrassed because his case had been smashed so easily. Maybe he was wondering if the clumsy blow he'd struck for the rights of the unborn was worth jailing an innocent woman for a year.

After the plea was done, the judge ordered that Lucy's child custody case be settled as quickly as possible, to reunite the family. Unbelievable! Judge Mary Becard, terror of defendants throughout St. John Parish, was in tears. Sympathetic to Lucy as she was, she still made the A.D.A. explain on the record why he was accepting the teensy charge in lieu of second degree murder. (How it must have galled him to say the fateful words, "No evidence.") "I'm the one the newspapers will crucify," she said, mindful of politics in Catholic Louisiana.

Not on my watch. "Anybody gives you grief," snarled Lillian, "send them to me!"

 

And so the case ended, and Lucy Gallop went free. When I got the call from Montel Williams' producer, I notified Lucy at once - and reminded her of it two or three times over the next few days. I guess she wasn't interested. Hey, if she wanted Montel Williams, that's what the television's for, isn't it? To watch at home, with her family.

 

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