Red Mass

by Rosemary Aubert

  The doctor opened the slim leather portfolio he had carried with him to the stand and extracted a single sheet of paper. He appeared to slowly peruse it without a lot of regard for the jury, most of whom were leaning forward in anticipation. Finally he deigned to ask, “Your Honor, may I consult my notes?”

  McKenzie nodded without looking at the witness or his papers. “If it will assist, and if counsel has no objection, then by all means.”

  Dr. Swan adjusted a pair of rimless eyeglasses perched on the end of his long narrow nose. “In a clinical study conducted at Riverside Hospital over a period of three months approximately six years ago, we gave a group of elderly patients a regular course of Somatofloran with the objective of assessing the drug’s ability to cure moderate to severe respiratory impairment. Naturally, each patient’s results were carefully monitored.” He found and held up a second sheet of paper. “This,” he said, “is the report on Harpur Stoughton-Melville.”

  Ellen stepped closer to the witness stand and, not to be undone in dramatic effect, I approached the witness, too. “Dr. Swan,” she said, “can you tell the jury what this report says?”

  “Well,” he answered, “it shows the day-to-day dosage given to Mrs. Stoughton-Melville for the first thirty days of the drug trial.”

  “And during those days, was there evidence that Mrs. Stoughton-Melville was responding to the drug you administered?”

  “Yes,” Dr. Swan said, tapping the paper in his hand as though he were sending a short message in code. “For the first thirty days of the trial, Mrs. Stoughton-Melville’s body was found to absorb exactly the amount of Somatofloran that we expected for a woman of her age and body weight.”

  “Okay,” Ellen said, moving away from the witness and closer to the center of the room, closer to Stow. She glared at me, and I moved back to my place at the defense table. “So Mrs. Stoughton-Melville was showing no unusual reactions to this drug?”

  “Not in the way in which the drug was absorbed.”

  “In any other way?”

  “No.

  Ellen jotted something down on a long pad of lined yellow paper. “You said, Dr. Swan, that the drug tests went on for three months, did you not?”

  I glanced at the jury. They seemed to be following every word of this.

  “Yes, Madame Crown.”

  “So I assume, then, that there were subsequent reports at intervals during those months?”

  “There was one final report at the end of the third month,” Dr. Swan said.

  “And did Mrs. Stoughton-Melville’s report show any abnormalities at that time?”

  “No. The report showed the same results as the other report,” he answered. “Normal.”

  Ellen thought about that for a moment. Then she raised herself up on her toes ever so slightly. “Dr. Swan,” she said, “you alerted the administrators of Riverside Hospital that you suspected grave irregularities in the toxicology report on the body of Mrs. Stoughton-Melville more than five years after her death. Why would you do such a thing—so long after the fact and especially when your own drug trials showed no irregularities prior to her death?”

  The witness adjusted his glasses and also his shoulders. He squared himself and faced Ellen with his body erect, as though to emphasize the importance of what he was about to say. “It was not the results of the initial tests that caused me to suspect that something was amiss,” he testified. “Part of this study was to test the long-term effects of patients who took Somatofloran. A significant aspect of that portion of the trial was the assessment of the time it took for the by-products of Somatofloran to completely leave the body. In the early stages of testing, that is, during the trials in which Mrs. Stoughton-Melville was a participant, we had a breakdown product problem.”

  “I beg your pardon?” Ellen said. “Could you repeat that, please?”

  “We had a problem with the length of time it took Somatofloran to break down in the body. Several years later, after a good deal more research and development, we felt we understood the breakdown product problem. But to help us be sure, we decided to go back to our records of the earlier tests in order to compare breakdown and residue times. Of the original sample of patients at Riverside, about 12 percent were deceased. As part of our study, we had asked the hospital to do toxicology tests at the time of death of patients who had been in our sample. The hospital agreed to keep the results of those tests on file. When we studied the file on Mrs. Stoughton-Melville, we noted that at the time of her death, her body contained five times the amount of Somatofloran breakdown products that we would have anticipated.”

  “I see,” Ellen said. “The amount of drug residue you found in her body struck you as unusual?”

  “Given the amount of drug administered in our tests, the residue at the time of her death was not just unusual, it was inexplicable.”

  “Is that why you contacted police, Doctor?”

  A smug, self-righteous grin wrinkled the pharmacologist’s lips. “We have the highest standards for the tests we conduct,” he said, “and we cooperate fully whenever there is any question of the misuse of our products. We felt that there might be a criminal explanation for this unusual result. We felt it our duty ...”

  “Thank you, Doctor,” Ellen said, cutting him off before he went one step too far.

  I risked a glance at the jury. All but two of them looked puzzled. Either they were confused or else they were still pondering the implications of Dr. Swan’s testimony.

  But the two who did not look confused knew exactly what the doctor was saying. He was saying that Harpur had been given an overdose of a drug that would not have killed her itself, but would have made it easy to kill her by other means. By the brush of a hand across her face, by the briefest contact of a scarf, a pillow, the edge of a sheet. Even, it seemed, by turning her head so that her mouth and nose made contact with her bed. Clever, effective and impossible to trace. Only the presence of an eyewitness could prove murder here. But where was the eyewitness?

  “Please remain where you are, Dr. Swan,” Ellen concluded. “Mr. Portal may wish to ask you a few questions.” She fiddled with her papers, swept them into a pile, resumed her seat. Slowly I rose, testing the feel of my gown against my knees, the way a man who has not swum in a while tests the waves.

  I moved to the lectern, adjusted it a bit so that to lean against it would put me in profile to the jury but face-to-face with the witness. I have always been praised for my profile. I did not fiddle with papers. I carried none. What I had to ask Dr. Swan was clear in my mind, and I needed to impress but two members of the jury—the two who understood the implications of Dr. Swan’s testimony. Nobody else mattered.

  I did not fidget, or clear my throat, or grasp the lectern in my hands, or rise up on the balls of my feet.

  “Good morning, Dr. Swan,” I said, and I smiled.

  The sanctimonious little prig did not smile back. Ellis Portal 1. Witness 0.

  “Did I hear correctly that the problem the Somatofloran trials were intended to investigate was the erratic breakdown of the product once it entered the body?”

  “It was not erratic exactly, it was ...”

  There was quite a pause. I just stood there waiting.

  “It was not as fast or as complete as we finally achieved.”

  “I see. So at the time Mrs. Stoughton-Melville had Somatofloran administered, there were questions concerning just how long the drug would remain in the body?”

  “Yes. The drug remained too long.”

  “Too long,” I repeated, letting the words echo in the large courtroom. “Tell me, Doctor,” I asked, “is there a difference between the physiology of the living and of the dead?”

  He looked startled. “Of course there is,” he answered after a few seconds. “That is the meaning of death itself.”

  “I understand. So if you are in the business of selling drugs, then it matters to you whether the customer is alive or dead.”

  “Objection!”


  My daughter rose to her feet. I could only see her from behind, but I knew by her posture that she was not angry, but keen.

  Judge McKenzie nodded and Ellen sat down.

  “Mr. Portal,” the judge said, “considering that you have been away from the bar for a period of time, I’m willing to allow some latitude, but I’m sure you recollect that disparaging the reputation of a witness by gratuitous insults will not advance your cause.”

  I bowed my head in obeisance. Judges need to garner some trial attention, too.

  “Pardon me, Dr. Swan,” I resumed. “What I meant to ask is simply this: Does the physiology of the body change dramatically at the time of death?”

  “Yes, of course,” he answered. “Once the heart and brain cease to function, various chemical processes immediately begin to alter the body.”

  “So that you can’t really tell, can you, by examining a cadaver what effect a drug may have had on that person during life?”

  “That depends entirely on the chemical substances in question—and, of course, on the condition of the deceased.”

  “I imagine the condition of the deceased would be rather obvious, wouldn’t it?”

  There was a titter from several jurors.

  “Clearly what I mean,” the witness said, “is that variable factors come into play: the pathological reasons for death, the weight of the body. Even the temperature of the room. And also,” the doctor added, “the gender and age of the person who has died.”

  “The age ...” I said, as if pondering those words. “Tell me, Dr. Swan, what would you say is the average age of patients at Riverside Hospital?”

  Ellen sprang to her feet again. “He’s asking the witness to speculate, Your Honor.”

  “Dr. Swan is an expert witness,” I retorted. “Surely he can offer an opinion on the average age of his study group.”

  “That’s not the question counsel asked,” Ellen replied hotly.

  The judge responded, “I do think Mr. Portal is asking for an opinion rather than inviting speculation. Proceed, sir.” He nodded toward me, and Ellen sat down. Now she was angry. But only a little. Temper ran in my family, but I always felt it was diluted in my children by the calm personality of their mother.

  “I can rephrase the question, Your Honor,” I said graciously. “Mr. Swan, in the studies you performed—upon the living and upon the recently deceased—approximately what percentage of the patients were elderly?”

  “Elderly?” he asked, stalling, as if he weren’t sure what “elderly” meant.

  “Old, Dr. Swan. What percentage of the population you tested were over sixty-five?”

  “Pretty much all of them. That was the whole point of the drug trials. To see whether Somatofloran, when administered in a premeasured syringe, could regulate the breathing of elderly patients with respiratory difficulties and do so without harmful buildup of breakdown residues in the bloodstream.”

  I heard what the doctor said, but his words skittered across my brain without sinking in because I was stuck on one word. Syringe.

  I felt my previous trancelike state begin to steal up on me again, and I fought hard to keep my mind on the evidence of the witness. It was as though my brain had split, one half listening to Dr. Swan, the other elsewhere.

  Syringes lie scattered on the tile floor. What is this place? Some dive that Queenie and I find ourselves in? Some den of the devil?

  “Mr. Portal, please proceed if you are not finished. If you are finished, please sit down.”

  The judge’s words jolted me back to an embarrassed consciousness. “Yes. Yes of course, Your Honor. So, Dr. Swan,” I went on, “in your opinion, how likely is it that participants in your study might have died of natural causes shortly after you administered the drug?”

  “Elderly people can be expected to die of old age, Mr. Portal. Our study has nothing to do with that fact.”

  I could see my daughter squirm. She was longing to rise, to suggest that I was misleading the jury because Harpur Stoughton-Melville had not been elderly when she died. But there were no grounds thus far to take exception to my line of questioning. Ellen would just have to squirm until I made my point.

  “So it’s not really cause for surprise when a resident of Riverside dies, is it?”

  “Not particularly.”

  “Even if they are not old. Harpur Stoughton-Melville wasn’t yet sixty, was she?”

  “No.”

  “But she’d been ill for a while, correct?”

  “Yes.”

  “Ill enough to be placed among people who were elderly and in need of constant care, am I right?”

  Unable to restrain herself, Ellen rose. “I don’t know where this is leading, Your Honor. The questions strike me as irrelevant.”

  “Focus, Mr. Portal,” the judge warned.

  “Yes. Okay. So, Dr. Swan, can you tell us what was so surprising about Harpur Stoughton-Melville’s death that you had to report it to the authorities? She was incapacitated enough to have been in a hospital for the elderly—before her own time. She had a fatal illness. Five years have passed since her death.”

  “Yes, but ...”

  “The drug she had been given could not cause death.”

  “No, but ...”

  “Dr. Swan, do you know what Occam’s razor is?”

  “I believe I’ve heard the term,” he replied uncomfortably.

  “Could you tell the jury what you understand to be the meaning of that phrase?”

  “I don’t think I can,” he said, glancing down at his notes hopelessly.

  “Allow me to assist you,” I said to the witness. “Occam’s razor is a philosophical principle that says that entities must not be needlessly multiplied. Plainly put, Dr. Swan, that means that when there is a simple answer to a question, that answer is most likely to be correct. There is no need to seek complicated and arcane solutions to problems with obvious answers. Now, Doctor, under ordinary circumstances, if a person has a terminal disease and that person dies, what is the most reasonable, I mean the simplest, conclusion you could reach?”

  “That the patient died of her illness, but—”

  I waited, but he added nothing. “I have one further question, Dr. Swan. Can you please tell this court whether Somatofloran is in use today?”

  “No, sir. It’s been withdrawn from the market.”

  As the witness stepped down, McKenzie called the morning break. Ellen accosted me before I got out of the courtroom. She didn’t seem to mind that the court staff could hear our conversation. Having once been court staff myself, I trusted them to keep quiet about it.

  “What are you trying to prove, Daddy?”

  “That should be obvious. That you can’t establish the guilt of my client.”

  “That’s not what I mean,” she declared in outrage. “You’re deliberately misleading that jury. Do you really expect them to believe that Harpur died of natural causes?”

  She was really worked up. “Take it easy, little one. Take a break.” Uh-oh. Big mistake!

  “Don’t you dare call me ‘little one,’” she hissed.

  “I’ll stop calling you ‘little one’ if you stop standing on your tippie-toes in court.”

  She shot me a look of pure fury. “Take your own break,” she declared and stomped off, letting the huge wooden door of the courtroom bang behind her.

  I took a walk to cool off, and when I got back ten minutes later, Ellen seemed to have calmed down, too. The doors to the courtroom were still locked for the break, and we found ourselves alone in the corridor. “You’ve got to put Stow on the scene if all your witnesses’ testimony is going to mean something, Ellen.”

  “You don’t need to give me lessons anymore, Daddy,” she answered. “Of course I’m about to put Stow there.”

  “But what or who is the grand slam?” I asked her. “Aren’t you obligated to let us know?”

  “I don’t know what you’re talking about,” she said. She gave me another of her exasperated you-don’t
-know-squat looks. Her head held high, her body stiff, she moved toward the high wooden door of the courtroom, suddenly surrounded by her coterie of police officers.

  I have made too many mistakes in my life, and it looked now as if my rehabilitation had not taught me better. This case would surely cause irreparable damage between me and my child. How could I have been enjoined to oppose her? Total folly, Ellis, you dunce. Somehow, though, I had to honor my commitment without completely losing my daughter’s love and respect. I could easily see that her method of constructing her case limited her legally. Because of the rules of full disclosure, no witnesses or exhibits that she hadn’t told us about ahead of time could be introduced. The only way she could surprise the jury was by slanting or interpreting the evidence in some unknown manner. I looked around for Nicky to ask him what he thought about all this, but I didn’t see him, and I was glad he was nowhere around when the guards escorted Stow into court.

  As Ellen’s next witness, a middle-aged female hospital administrator, went through the preliminaries of laying her credentials before the court, I studied her tired, serious face. It was vaguely familiar. Had I seen this person before? Her long list of assignments and accomplishments told me nothing. As with most expert and professional witnesses, the more she talked about herself, the more she seemed to disappear. Until she mentioned the dates of her service. Then I knew she’d been there when I, myself, had been a regular visitor of Harpur’s.

  “Do you keep a list of volunteers who regularly visit Riverside patients?” Ellen asked.

  “We have no volunteers,” the woman answered. “No one is allowed on hospital grounds except patients and staff. Front-line staff, incidentally, never go home during their shift, which lasts three months. That’s because of the isolation regulations.”

  “That’s now. But at the time in question?” Ellen prompted.

  “At the time in question, that is, about six years ago—long before 9/11 and SARS—we were not so security-conscious.”

  “Do you recall procedures for volunteer visitors then?” Ellen asked.

  It was evident that the witness was responsible and that she’d given her testimony a lot of thought. “I’ve checked our records,” she said. “At the time that Mrs. Stoughton-Melville died, we employed a reusable-pass system.”