by Robin Cook
As if he’d overheard, Davidson then asked Hickleman: “Did you find any .5% vials?”
“No,” Marvin said, “I did not.”
On cross-examination, Randolph tried to discredit Marvin’s testimony, but only made things worse. “Mr. Hickleman, do you always go through the trash when you clean an operating room and check the concentration of the various drug containers?”
“Nope!”
“But you did on this particular case.”
“Yup!”
“Can you tell us why?”
“The nursing supervisor asked me to.”
The final coup de grace was delivered by Dr. Leonard Simon from New York, a renowned anesthesiologist whom even Jeffrey recognized. Davidson got right to the point.
“Dr. Simon. Is .75% Marcaine recommended for obstetric epidural anesthesia?”
“Absolutely not,” Dr. Simon said. “In fact it is contraindicated. The warning is clearly labeled in the package insert and in the PDR. Every anesthesiologist knows that.”
“Can you tell us why it is contraindicated in obstetrics?”
“It was found to cause occasional serious reactions.”
“What kind of reactions, Doctor?”
“Central nervous system toxicity.”
“Does that mean seizures, Doctor?”
“Yes, it has been known to cause seizures.”
“What else?”
“Cardiac toxicity.”
“Meaning . . . ?”
“Arrhythmias, cardiac arrest.”
“And these reactions were occasionally fatal?”
“That’s correct,” Dr. Simon said, pounding in the final nail of Jeffrey’s coffin.
The result had been that Jeffrey and Jeffrey alone was found guilty of malpractice. Simarian, Overstreet, the hospital, and the pharmaceutical company had been exonerated. The jury awarded the Patty Owen estate eleven million dollars: nine million more than Jeffrey’s malpractice coverage.
At the end of the trial, Davidson had been openly disappointed that he’d done such a good job destroying Jeffrey. Since the other defendants and their deep pockets had been exculpated, there was little chance of collecting much above and beyond Jeffrey’s insurance coverage even if Jeffrey’s income was attached for the rest of his life.
For Jeffrey, the result was devastating, personally no less than professionally. His whole image of himself and his self-worth had been predicated on his sense of dedication, commitment, and sacrifice. The trial and the finding by the jury destroyed that. He even came to doubt himself. Maybe he had used the .75% Marcaine by accident.
Jeffrey could have become depressed, but he didn’t have time to submit to depression. Between the widespread news reports of Jeffrey’s having “operated under the influence” and the fierce antidrug sentiment of the times, the district attorney had felt compelled to file criminal charges. To Jeffrey’s total disbelief, he now found himself charged with murder in the second degree. It was on this charge that Jeffrey was now awaiting the jury’s verdict.
Jeffrey’s musings were again interrupted by the uniformed court officer as he reappeared from the judge’s chamber and slipped back into the jury room. Why were they drawing it out like this? It was torture for Jeffrey. He was plagued by an all-too-real sense of déjà vu, since the four-day criminal trial had not gone much differently than the previous civil trial. Only this time the stakes were higher.
Losing money, even if he didn’t have it, was one thing. The specter of a criminal conviction and mandatory prison term was something else entirely. Jeffrey truly did not think he could withstand life behind bars. Whether it was due to a rational fear or an irrational phobia, he didn’t know. Regardless, he’d told Carol he’d spend the rest of his life in another country rather than face a prison term.
Jeffrey raised his eyes to the empty judge’s bench. Two days previously, the judge had charged the jury before they’d retired for their deliberations. Some of the judge’s words reverberated in Jeffrey’s mind and fanned his fears.
“Members of the jury,” Judge Janice Maloney had said, “before you can find the defendant, Dr. Jeffrey Rhodes, guilty of second-degree murder, the Commonwealth must have proved beyond a reasonable doubt that Patty Owen’s death was caused by an act of the defendant which was imminently dangerous to another person and evinced a depraved mind, indifferent to human life. An act is ‘imminently dangerous’ and ‘evinces a depraved mind’ if it is an act that a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another. It is also such an act if it comes from ill will, hatred, or harmful intent.”
It seemed to Jeffrey that the outcome of the case hinged on whether the jury believed he had taken morphine or not. If they believed he had, then they would find he had acted with harmful intent. At least that was how Jeffrey would find if he were one of the jurors. After all, giving anesthesia was always imminently dangerous. The only thing that distinguished it from criminal battery was the informed consent.
But the judge’s words to the jury that had most threatened Jeffrey involved the part about punishment. The judge had informed the jury that even a conviction of the lesser charge of manslaughter would require her to sentence Jeffrey to a minimum of three years in prison.
Three years! Jeffrey began to perspire and feel cold at the same moment. He wiped his brow and his fingers came away damp.
“All rise!” the court officer called out, having just stepped out of the jury room. Then he stood aside. Everyone in the courtroom scrambled to his feet. Many craned their necks, hoping to get a glimmer of the verdict from the jurors’ expressions when they appeared.
Preoccupied with his thoughts, Jeffrey was caught off guard by the court officer’s terse announcement. He overreacted, leaping to his feet. He felt momentarily dizzy and had to lean on the defendant’s table a moment for support.
As the jurors filed in, none of them made eye contact with Jeffrey. Was that a good or bad sign? Jeffrey wanted to ask Randolph but he was afraid to.
“The Honorable Judge Janice Maloney,” the court officer called out as the judge appeared from her chambers and took her seat at the bench. She arranged things on the desk in front of her, moving the water pitcher to the side. She was a thin woman with intense eyes.
“You may be seated,” the court officer called. “Members of the jury, please remain standing.”
Jeffrey took his seat, still watching the jury. Not one of them would look at him, a fact that progressively disturbed him. Jeffrey focused on the white-haired grandmotherly figure who stood on the far left in the front row. During the trial she had frequently looked in his direction. It had been Jeffrey’s intuition she’d felt some special warmth toward him. But not now. Her hands were clasped in front of her, her eyes downcast.
The clerk of the court adjusted his glasses. He was sitting at a desk just below the bench and to the right. The court recorder was directly in front of him.
“Will the defendant please stand and face the jury,” the clerk said.
Jeffrey stood up again. This time he did it slowly. Now all the jurors were staring at him. Still, their faces remained stony. Jeffrey felt his pulse hammering in his ears.
“Madam Foreperson,” the clerk called out. The foreperson was a handsome woman in her late thirties who looked professional. “Has the jury agreed upon a verdict?”
“Yes,” the foreperson said.
“Bailiff, please get the verdict from the foreperson,” the clerk directed.
The court officer stepped over to her and took a seemingly plain sheet of paper from her hands. Then he handed the sheet to the judge.
The judge read the note, tilting her head back to read through her bifocals. She took her time, nodded, then handed the paper to the clerk who had stood to receive it.
The clerk seemed to take his time, too. Jeffrey felt intense irritation at all this unnecessary delay as he stood facing the expressionless jurors. The court was taunting him, mocking h
im with its archaic protocol. His heart was beating faster now, and his palms were sweating. There was a burning in his chest.
After clearing his throat, the clerk turned to face the jury. “What say you, Madam Foreperson, is the defendant guilty or not guilty of the alleged complaint of second-degree murder?”
Jeffrey felt his legs tremble. His left hand leaned on the edge of the defendant’s table. He wasn’t specifically religious, but he found himself praying: Please, God . . .
“Guilty!” the foreperson called out with a clear, resonant voice.
Jeffrey felt his legs sway as the image of the courtroom momentarily swam before him. He grappled for the table with his right hand to steady himself. He felt Randolph grip his right arm.
“This is only the first round,” Randolph whispered in his ear. “We’ll appeal, just like we did the malpractice judgment.”
The clerk looked over toward Jeffrey and Randolph reprovingly, then turned back to the jury and said: “Madam Foreperson and members of the jury, harken to your verdict as recorded by the court. The jurors upon their oath do say that the defendant is guilty as charged in said complaint. So say you, Madam Foreperson?”
“Yes,” the forelady said.
“So say you, members of the jury?” the clerk asked.
“Yes,” the jurors replied in unison.
The clerk turned his attention back to his books while the judge began to discharge the jury. She thanked them for their time and consideration of the case, praising their role in upholding a two-hundred-year tradition of justice.
Jeffrey sat down heavily, feeling numb and cold. Randolph was talking to him, reminding him that the judge of the malpractice case should never have allowed the question of his drug problem to stand.
“Besides,” Randolph said, bending down and looking Jeffrey directly in the eye, “all the evidence is circumstantial. There was not one piece of definitive evidence that you had taken morphine. Not one!”
But Jeffrey was not listening. The ramifications of this verdict were too overwhelming to consider. Deep down he realized that for all his fears, he’d really never believed he’d be convicted—simply because he was not guilty. He’d never been involved in the legal system before, and he’d always trusted that “truth would out” if he ever was wrongly accused. But that belief had been false. Now he’d be going to prison.
Prison! As if to underscore his fate, the court officer came over to handcuff him. Jeffrey could only look on, incredulous. He stared at the polished surface of the handcuffs. It was as if the manacles had transformed him into a criminal, a convict, even more than the jury’s verdict.
Randolph was murmuring encouragement. The judge was still discharging the jury. Jeffrey heard none of it. He felt depression descend like a leaden blanket. Competing with the depression was a sense of panic from imminent claustrophobia. The idea of being locked in a small room evoked scary images of being caught beneath the blankets when he was a young child by his older brother, filling him with a fear of being smothered.
“Your Honor,” the district attorney said as soon as the jury had filed out. He got to his feet. “The Commonwealth moves for sentencing.”
“Denied,” the judge said. “The court will schedule penalty proceedings after a presentencing investigation by the probation department. When is an appropriate time, Mr. Lewis?”
The clerk flipped through the scheduling book. “July 7 looks good.”
“July 7 it is,” the judge said.
“The Commonwealth respectfully requests denying bail or a significant increase in bail,” the district attorney said. “It is the Commonwealth’s position that at a minimum, the bail should be raised from $50,000 to $500,000.”
“All right, Mr. District Attorney,” the judge said, “let’s hear your argument.”
The district attorney stepped from behind the prosecution table to face the judge. “The serious nature of the complaint combined with the verdict demands a significant bail, more in keeping with the severity of the crime of which he has been convicted. There also have been rumors that Dr. Jeffrey Rhodes would prefer to flee rather than face the punishment of the court.”
The judge turned toward Randolph. Randolph stood up. “Your Honor,” he began, “I would like to emphasize to the court that my client has significant ties to the community. He has always demonstrated responsible behavior. He has no previous criminal record. In fact, he has been an exemplary member of society, productive and law-abiding. He has every intention of appearing for sentencing. I feel that $50,000 is more than enough bail; $500,000 would be excessive.”
“Has your client ever expressed an intention of avoiding punishment?” the judge asked, looking over the top of her glasses.
Randolph shot a glance at Jeffrey. Jeffrey’s gaze fell to his hands. Turning back to the judge, Randolph said: “I do not believe my client would think or say such a thing.”
The judge looked slowly back and forth between Randolph and the district attorney. Finally she said, “Bail set at $500,000 cash surety.” Then, looking directly at Jeffrey, she said, “Dr. Rhodes, as a convicted felon you are not to leave the Commonwealth of Massachusetts. Is that clear?”
Jeffrey meekly nodded.
“Your Honor . . . !” Randolph protested.
But the judge only pounded her gavel once and stood up, clearly dismissive.
“All rise!” the court officer barked.
With swirling robes like a dervish, Judge Janice Maloney swept from her court and disappeared into her chambers. The courtroom erupted in conversation.
“This way, Dr. Rhodes,” the court officer standing next to Jeffrey said, motioning toward a side door. Jeffrey stood and stumbled forward. He cast a quick glance in Carol’s direction. She was looking at him sadly.
Jeffrey’s panic grew as he was taken to a holding room furnished with a plain table and spartan wooden chairs. He sat in the chair Randolph steered him to. Although he did his best to maintain his composure, he couldn’t keep his hands from trembling. He felt short of breath.
Randolph did his best to calm him. He was indignant about the verdict and optimistic about the appeal. Just then, Carol was escorted into the narrow room. Randolph patted her on the back and said, “You talk to him. I’ll go call the bail bondsman.”
Carol nodded and looked down at Jeffrey. “I’m sorry,” she said after Randolph had left the room.
Jeffrey nodded. She had been good to stand by him. His eyes welled with tears. He bit his lip to keep from crying.
“It’s so unfair,” Carol said, sitting down next to him.
“I can’t go to prison,” was all Jeffrey could say. He shook his head. “I still can’t believe this is happening.”
“Randolph will appeal,” Carol said. “It’s not over yet.”
“Appeal,” Jeffrey said with disgust. “It will be just more of the same. I’ve lost two cases . . .”
“It’s not the same,” Carol said. “Only experienced judges will be looking at the evidence, not an emotional jury.”
Randolph came back from the phone to say that Michael Mosconi, the bail bondsman, was on his way over. Randolph and Carol began an animated conversation about the process of appeal. Jeffrey put his elbows on the table and despite the handcuffs, rested his head in his hands. He was thinking about his medical license, wondering what would happen to it as a consequence of the verdict. Unfortunately, he had a pretty good idea.
Michael Mosconi arrived in short order with his briefcase. His office was only a few steps from the courthouse, in the curved building facing Government Center. He was not a big man, but his head was large and almost bald. What hair he had grew in a dark crescent that stretched around the back of his head from ear to ear. Some of the strands of dark hair were combed directly over the bald dome in a vain effort to provide a minimum of cover. He had intensely dark eyes that appeared to be all pupil. He was oddly dressed in a dark blue polyester suit with a black shirt and a white tie.
Mosconi set hi
s briefcase on the table, snapped open the latches, and removed a file folder labeled with Jeffrey’s name.
“Okay,” he said, taking a seat at the table and opening the file. “How much is the increase in bail?” He had already put up the initial $50,000 bail, having collected $5,000 for his services.
“It’s $450,000,” Randolph said.
Mosconi whistled through his teeth, pausing in setting out the papers. “Who do they think they got here, Public Enemy Number One?” Neither Randolph nor Jeffrey felt they owed him the courtesy of an answer.
Mosconi’s attention returned to his paperwork, unconcerned by his client’s lack of response. He’d already done an O&E, an ownership and encumbrance check, on Jeffrey and Carol’s Marblehead house when bail had initially been set, securing the first bond with a lien of $50,000 on the home. The house had a documented value of $800,000 with an existing mortgage of just over $300,000. “Well, isn’t that convenient,” he said. “I’ll be able to post bond with an additional $450,000 lien against your little castle in Marblehead. How’s that?”
Jeffrey nodded. Carol shrugged.
As Mosconi began filling out the papers, he said: “Then, of course, there is the little matter of my fee, which in this case will be $45,000. I’ll want that in cash.”
“I don’t have that kind of cash,” Jeffrey said.
Mosconi held up from completing the form.
“But I’m sure you can raise it,” Randolph put in.
“I suppose,” Jeffrey said. Depression was setting in.
“Either yes or no,” Mosconi said. “I don’t do this stuff for recreation.”
“I’ll raise it,” Jeffrey said.
“Normally I require the fee up front,” Mosconi added. “But since you are a doctor . . .” He laughed. “Let’s just say I’m accustomed to dealing with a slightly different clientele. But for you, I’ll take a check. But only if you can raise the money and have it in your account by, let’s say, this time tomorrow. Is that possible?”
“I don’t know,” Jeffrey said.
“If you don’t know, then you’ll have to stay in custody until you got the money,” Mosconi said.
