Defending Jacob

by William Landay

I gave him a look that said, Go on.

  He frowned. Outside of TV shows, you do not go for the kill on cross-examination. You land a few shots then sit your ass down. The witness, remember, has all the power, not you. Plus, the third line on that page was the archetypal Question You Never Ask On Cross: open-ended, subjective, the sort of question that invites a long, unpredictable answer. To a veteran lawyer, the feeling was like the moment in a horror movie when the babysitter hears a noise in the basement and opens the creaky door to go down and investigate. Don’t do it! the audience says.

  Do it, my expression insisted.

  “Detective,” he began, “I know this is awkward for you. I’m not asking you to express any opinion about the defendant himself. I understand you have a job to do on that score. But limiting our discussion to the defendant’s father, Andy Barber, whose judgment and integrity has been called into question here—”

  “Objection.”

  “Overruled.”

  “How long have you known the older Mr. Barber?”

  “A long time.”

  “How long?”

  “Twenty years. More, probably.”

  “And having known him over twenty years, what is your opinion of him as a prosecutor, with respect to his ability, his integrity, his judgment?”

  “We’re not talking about the son? Only the father?”

  “That’s right.”

  Peterson looked directly at me. “He’s the best they’ve got. The best they used to have, anyway.”

  “No further questions.”

  No further questions meaning Fuck you. Logiudice would never again focus quite so explicitly on my role in the investigation, though it was a note he touched on a few times in the course of the trial. No doubt, that first day he successfully planted the idea in the jurors’ minds. For the time being, that may have been all he needed to accomplish.

  Still, we walked out of the courtroom that afternoon feeling victorious.

  It didn’t last.

  28 | A Verdict

  Dr. Vogel informed us grimly, “I’m afraid I have some rather difficult things to say.”

  We had all been feeling drained. The stress of a full day in court leaves you bone-tired and muscle-sore. But the doctor’s gloom put us on red alert. Laurie focused on her with an intent expression, Jonathan with his usual owlish curiosity.

  Me: “I promise you, we’re used to bad news. At this point, we’re bulletproof.”

  Dr. Vogel avoided my eyes.

  In hindsight I hear how ridiculous I must have sounded. We parents often talk with ridiculous bravado when it comes to our kids. We swear that we can take any abuse, beat any challenge. No test is too great. Anything for our kids. But no one is bulletproof, parents least of all. Our kids make us vulnerable.

  In hindsight I see too that this meeting was exquisitely timed to break us. Only an hour or so had passed since court had adjourned for the day, and as the adrenaline receded, so did our sense of triumph, leaving us doped, punch-drunk. We were in no shape for bad news.

  The scene was Jonathan’s office near Harvard Square. We were seated around the circular oak table in his book-walled library, just the four of us, Laurie and me, Jonathan and Dr. Vogel. Jacob was out in the waiting room with Jonathan’s young associate, Ellen.

  When Dr. Vogel turned away from me, when she could not look me in the eye, she must have been thinking, You think you’re bulletproof? Just wait.

  “How about you, Laurie?” the shrink said in her solicitous, therapeutic voice. “Do you think you can handle this right now?”

  “Absolutely.”

  Dr. Vogel’s eyes moved over Laurie: her hair, which kinked up like stretched springs, and her complexion, which now looked jaundiced, with dark bags under her eyes. She had lost so much weight, the skin sagged and pouched on her face and her clothes drooped on her bony shoulders. I thought: when did all this deterioration happen? All at once, with the strain of this case? Or gradually, over the years, without my noticing? This was not my Laurie anymore, the brave girl who invented me and who, it now seemed, I had invented for myself. She looked so wasted, in fact, it occurred to me that she was dying before our eyes. The case was consuming her. She was never built for this sort of fight. She had never been hard. She had never had to be. Life never hardened her. It was not her fault, of course, but to me—who felt unbreakable, even this late in the events—Laurie’s fragility was impossibly poignant. I was prepared to be hard for both of us, for all three of us, but there was nothing I could do to protect Laurie from the stress. You see, I could not stop loving her, and I still cannot. Because it is easy to be hard if you have a stony nature. But imagine what it cost Laurie that day as she sat bolt upright at the edge of her chair, gamely focused on the doctor, ready for yet another blow. She never stopped defending Jacob, never stopped analyzing the chessboard, calculating every move and countermove. She never stopped protecting him, even in the end.

  Dr. Vogel said, “Why don’t I just explain my conclusions a little bit, then afterward I’ll answer your questions if you have any, okay? I know it’s very, very hard to hear difficult news about Jacob, but brace yourselves for just a few minutes, okay? Just listen, then we can talk.”

  We nodded.

  Jonathan said, “For the record, none of this is discoverable by the prosecution. You don’t have to worry. Everything we discuss here and everything Dr. Vogel tells you now is privileged. This conversation is absolutely confidential. It never leaves this room. So you can speak frankly, as can the doctor, okay?”

  More nodding.

  “I don’t understand why we have to do this,” I said. “Jonathan, why do we even have to get into this if our defense is that Jacob didn’t do it at all?”

  Jonathan made a V of his hand and stroked his short white beard. “I hope you’re right. I hope the case goes well and we never have to raise this issue.”

  “Then why do this?”

  Jonathan turned away slightly, dismissing me.

  “Why do this, Jonathan?”

  “Because Jacob looks guilty.”

  Laurie gasped.

  “I don’t mean that he is guilty, only that there is a lot of evidence against him. The Commonwealth has not put up their strongest witnesses yet. This is going to get harder for us. A lot harder. And when it does, I want to be prepared. Andy, you of all people should understand that.”

  “All right,” the doctor said, wading in. “I’ve just given Jonathan my report. Really, it’s an opinion letter, a summary of my conclusions, what I would say if I was ever called to testify and what I think you could expect if this issue ever came up at trial. Now, I wanted to speak with you two alone first, without Jacob. I have not shared my conclusions with Jacob. When this case is over, depending on how it goes, we can have a more meaningful conversation about how to deal with some of these issues in a clinical setting. But for now our concern is not therapy, it is the trial. I was engaged for a specific purpose, as an expert for the defense. So that’s why Jacob is not in the room now. He will have a lot more work to do when the trial is over. But for now we need to speak candidly about him, which may be easier if he’s out of the room.

  “There are two disorders that Jacob exhibits pretty clearly, narcissistic personality disorder and reactive attachment disorder. There is some suggestion of an antisocial personality disorder as well, which is a not uncommon comorbidity, but because I’m not as certain of the diagnosis, I haven’t included it in my report.

  “It is important to realize that not all the behaviors I’m going to describe are necessarily pathological, even in combination. To some extent every teenager is a narcissist, every adolescent is dealing with attachment issues. It is a matter of degree. We are not talking about a monster here. We’re talking about an ordinary kid—only more so. So I don’t want you to hear this as a condemnation. I want you to use the things I’m telling you, not be overwhelmed by them. I want to give you the tools, the vocabulary, to help your son. The point is to understand
Jacob better, okay? Laurie? Andy?”

  We agreed, obediently, dishonestly.

  “Good. Okay, narcissistic personality disorder. This is the one you probably know something about. Its primary characteristics are grandiosity and lack of empathy. In Jacob’s case, the grandiosity does not come across as dramatic or boastful, arrogant, haughty, which is what people commonly associate with it. Jacob’s grandiosity is quieter. It shows up as an inflated sense of self-importance, a conviction he is special, exceptional. Rules that might apply to others do not apply to him. He feels he is not understood by his peers, especially the other kids at school, with a few select exceptions whom Jacob identifies as special like him, usually based on their intelligence.

  “The other key aspect of NPD, especially in the context of a criminal case, is lack of empathy. Jacob exhibits an unusual coldness toward others, even—and this surprised me, given the context—even for Ben Rifkin and his family. When I asked Jacob about it in one of our sessions, his response was that people die every day by the millions; that car crashes are statistically more significant than murder; that soldiers kill thousands more and get medals for it—so why should we worry about one murdered boy? Even when I tried to lead him back to the Rifkins and prodded him to express some sort of feeling for them or for Ben, he couldn’t or wouldn’t do it. All of which fits a pattern of incidents you have described throughout Jacob’s childhood in which other children have been injured around him, children flying off jungle gyms and being knocked off bicycles and so forth.

  “He seems to regard other people not just as less significant than himself, but as less human. He cannot see himself mirrored in others in any way. He cannot seem to imagine that others have the same universal human feelings that he does—pain, sadness, loneliness—which is a sensitivity that ordinary adolescents have no trouble understanding at this age. I won’t belabor the point. The relevance of these feelings in a forensic context is obvious. Without empathy, anything is permitted. Morality becomes very subjective and flexible.

  “The good news is that NPD is not a chemical imbalance. And it is not genetic. It is a complex of behaviors, a deeply ingrained habit. Which means it can be unlearned, over time.”

  The doctor went on with barely a pause.

  “The other disorder is actually the more disturbing one. Reactive attachment disorder is a relatively new diagnosis. And because it is new, we don’t know much about it. There hasn’t been much study done. It is uncommon, it is difficult to diagnose, and it is difficult to treat.

  “The critical aspect of RAD is that it stems from a disruption of ordinary childhood emotional attachments in infancy. The theory is that ordinarily infants attach to a single, reliable caregiver, and from that secure base they explore the world. They know that their basic emotional and physical needs will be met by that one person. Where that reliable caregiver is not present or where the caregiver changes too often, children may relate to others in inappropriate ways, sometimes grossly inappropriate ways: aggression, rage, lying, defiance, lack of remorse, cruelty; or overfamiliarity, hyperactivity, self-endangerment.

  “The definition of this disorder requires some sort of disruption in early caregiving—‘pathogenic care,’ usually mistreatment or neglect by the parent or caregiver. But there is some controversy about exactly what that means. I am not suggesting either of you were deficient in any way. This is not about your parenting. But recent research suggests the disorder can arise even without deficient caregiving. Some children just seem temperamentally vulnerable to attachment disorders, so that even minor disruptions—day care, for example, or being passed from one caregiver to the next too often—can be enough to trigger an attachment disorder.”

  “Day care?” Laurie.

  “Only in exceptional cases.”

  “Jacob was in day care from the time he was three months old. We both worked. I stopped teaching when he was four.”

  “Laurie, we don’t know enough to presume a cause and effect. You have to resist the urge to blame yourself. There is no reason to think neglect is the cause here. Jacob may just have been one of these vulnerable, hypersensitive children. This is all a very new area. We researchers are struggling to understand it ourselves.”

  Dr. Vogel gave Laurie a reassuring look, but there was a hint in her voice of protesting too much, and I could see Laurie was not mollified.

  Unable to help, Dr. Vogel simply plowed on. She seemed to think that the best way to get across all this devastating information was to do it quickly and get it over with.

  “In Jacob’s case, whatever the trigger, there is evidence of atypical attachment as an infant. You’ve reported that as a child he seemed guarded and hypervigilant at times, or erratic and prone to excessive anger and lashing out at other times.”

  Me: “But all kids are ‘erratic’ and ‘prone to excessive anger.’ Lots of kids go to day care and don’t—”

  “It would be very unusual to see RAD”—she pronounced it as a rhyme for bad—“in the absence of some sort of neglect, but we simply don’t know.”

  “Enough!” Laurie raised both hands in a stop sign. “Just stop it!” She stood and pushed her chair away, retreated to the far corner of the room. “You think he did it.”

  “I didn’t say that,” Dr. Vogel demurred.

  “You didn’t have to say it.”

  “No, Laurie, really, I don’t have any way to know whether he did it. That’s not my job. It’s not what I set out to determine.”

  Me: “Laurie, this is psychobabble. She said herself, you could say these things about any kid—narcissistic, self-centered. Find me a teenager who isn’t like that. It’s garbage. I don’t believe a word of it.”

  “Of course you don’t! You never see these things. You’re so determined to be normal and for us all to be normal that you just close your eyes and ignore anything that doesn’t fit.”

  “We are normal.”

  “Oh my God. Do you think this is normal, Andy?”

  “This situation? No. But do I think Jacob is normal? Yes! Is that so crazy?”

  “Andy. You’re not seeing things right. I feel like I have to think for both of us because you just can’t see.”

  I went over to her to comfort her, to lay my hand on her crossed arms. “Laurie, this is our son.”

  She flailed her hands, batting mine away. “Andy, stop it. We are not normal.”

  “Of course we are. What are you talking about?”

  “You’ve been pretending. For years. All this time you’ve been pretending.”

  “No. Not about the important things.”

  “The important things! Andy, you didn’t tell the truth. All this time you never told the truth.”

  “I never lied.”

  “Every day you didn’t tell, you were lying. Every day. Every day.”

  She shoved past me to confront Dr. Vogel again. “You think Jacob did it.”

  “Laurie, please sit down. You’re upset.”

  “Just say it. Don’t sit there and read me your report and recite the DSM to me. I can read the DSM too. Just say what you mean: he did it.”

  “I can’t tell you he did or didn’t do it. I just don’t know.”

  “So you’re saying he might have done it. You think it’s actually possible.”

  “Laurie, please sit down.”

  “I don’t want to sit down! Answer me!”

  “I see certain traits and behaviors in Jacob that disturb me, yes, but that’s a very different thing—”

  “And it’s our fault? Excuse me: it could be our fault, it’s possible that it might just be our fault, because we’re such bad parents, because we had the nerve, the … the cruelty to put him in day care like every other kid in this town. Every other kid!”

  “No. I would not say that, Laurie. It is positively not your fault in any way. Put that thought right out of your head.”

  “And the gene, this mutation you tested for. What do you call it? Knockout whatever.”

  “MAO
A Knockout.”

  “Does Jacob have it?”

  “The gene is not what you’re suggesting. I’ve explained, at the most it creates a predisposition—”

  “Doctor. Does. Jacob. Have it?”

  “Yes.”

  “And my husband?”

  “Yes.”

  “And my—I don’t even know what to call him—my father-in-law?”

  “Yes.”

  “Well, there you go. Of course he does. And what you said earlier, about Jacob’s heart being two sizes too small, like the Grinch?”

  “I should not have phrased it like that. That was a foolish thing to say. I’m sorry.”

  “Never mind how you phrased it. Do you still believe it? Is my son’s heart two sizes too small?”

  “We need to work on building an emotional vocabulary for Jacob. It’s not about the size of his heart. His emotional maturity is not at the same level as his peers.”

  “What level is it at? His emotional maturity?”

  Deep breath. “Jacob presents some of the characteristics of a boy half his age.”

  “Seven! My son has the emotional maturity of a seven-year-old! That’s what you’re saying!”

  “That’s not the way I’d put it.”

  “So what do I do? What do I do?”

  No answer.

  “What am I supposed to do?”

  “Shh,” I said, “he’ll hear you.”

  29 | The Burning Monk

  Day three of the trial.

  Beside me at the defense table, Jacob picked at a gristly nubbin of skin on his right thumb, near the nail. He had been scraping away at this area of his thumb for a while, nervously, absently, and had opened a little crack that extended from the cuticle down about a quarter inch toward the knuckle. He did not chew the cuticle, as kids often do. His method involved scratching the skin with a fingernail, lifting little peels and shavings until he succeeded in scooping up a substantial sliver, whereupon he would bear down and set about removing the rubbery protrusion by a battery of wiggles, tugs, and, when all else failed, slicing it with the dull edge of a fingernail. The area of these excavations never had a chance to heal. After a particularly aggressive excision, blood would seep from the wound, and he would have to squeeze his thumb with a Kleenex, if he had one, or stick the whole thing in his mouth to slurp it clean. He seemed to believe, against all logic, that no one could be bothered by this nauseating little drama.