The Jodi Picoult Collection

by Jodi Picoult

  “All right, then. Samuel. Does your religion practice forgiveness?”

  “Yes. If a person humbles himself and confesses to his sin, he’ll always be welcome back in the church.”

  “After he admits to what he did.”

  “After confessing, that’s true.”

  “Okay. Now let’s forget about the church for a minute. Don’t answer as an Amishman, just answer as a person. Aren’t there some things you just can’t excuse?”

  Samuel’s lips tightened. “I cannot answer without thinking Plain, because it’s who I am. And if I couldn’t forgive someone, it wouldn’t be their problem, but mine, because I wasn’t being a true Christian.”

  “In this particular case, you personally forgave Katie.”

  “Yes.”

  “But you just said that forgiveness implies the other party has already confessed to a sin.”

  “Well . . . ja.”

  “So if you forgave Katie, she must have done something wrong—in spite of the fact that you told us not five minutes ago she didn’t.”

  Samuel was silent for a moment. I held my breath, waiting for George to strike the killing blow. Then the Amishman looked up. “I am not a smart man, Mr. Callahan. I didn’t go to college, like you. I don’t really know what you’re trying to ask me. Yes, I forgave Katie—but not for killing a baby. The only thing I had to forgive Katie for was breaking my heart.” He hesitated. “And I don’t think even you English can put her in jail for that.”

  * * *

  Owen Zeigler was apparently allergic to the courtroom. For the sixth time in as many minutes, he sneezed, covering his nose with a florid paisley handkerchief. “Sorry. Dermatophagoides pteronyssinus.”

  “I beg your pardon?” said Judge Ledbetter.

  “Dust mites. Nasty little creatures. They live in pillows, mattresses—and, I’ll bet, under the rugs here.” He sniffed a bit. “They feed on the scales shed by human skin, and their waste products cause allergic symptoms. You know, if you monitored the humidity a little better in here, you might reduce the irritants.”

  “I assume you’re referring to the mites, and not the lawyers,” the judge said dryly.

  Owen glanced dubiously at the air-conditioning vents overhead. “You probably want to take a look at the mold spores, too.”

  “Your Honor, I have allergies,” George said. “Yet I’ve been perfectly comfortable in this courtroom.”

  Owen looked aggrieved. “I can’t help my high level of sensitivity.”

  “Dr. Zeigler, do you feel that you’ll be able to make it through your testimony? Shall I see about procuring another courtroom?”

  “Or maybe a plastic bubble,” George muttered.

  Owen sneezed again. “I’ll do my best.”

  The judge kneaded her temples. “You may continue, Ms. Hathaway.”

  “Dr. Zeigler,” I said, “did you examine the tissue samples from Baby Fisher?”

  “Yes. The infant was a premature liveborn male with no congenital abnormalities. There was evidence of acute chorioamnionitis and infection in the baby. The cause of death was perinatal asphyxia.”

  “Your findings, then, did not disagree with those of the medical examiner?”

  Owen smiled. “We agree on the cause of death. However, regarding the proximate causes of death—the events leading up to the asphyxia—our analyses are markedly different.”

  “How so?”

  “The medical examiner found the manner of death to be homicide. I believe the infant’s asphyxia was due to natural causes.”

  I let the jury absorb that for a moment. “Natural causes? What do you mean?”

  “Based on my findings, Ms. Fisher did not have a hand in her newborn’s death—it stopped breathing all by itself.”

  “Let’s walk through some of those findings, Doctor.”

  “Well, the most puzzling was liver necrosis.”

  “Can you elaborate?”

  Owen nodded. “Necrosis is cell death. Pure necrosis is usually caused either by congenital heart abnormalities, which this newborn didn’t have, or by infection. When the ME saw the necrosis, he assumed it came part and parcel with the asphyxia, but the liver has a dual blood supply and is less susceptible to ischemia than other organs.”

  “Ischemia?”

  “Tissue hypoxia—lack of oxygen—caused by this loss of oxygen in the blood. Anyway, it’s very unusual to find this sort of lesion in the liver. Add this to the chorioamnionitis, and I started to wonder if an infectious agent might have been at work here, after all.”

  “Why would the medical examiner have overlooked this?”

  “A couple of reasons,” Owen explained. “First, the liver showed no signs of polys—white blood cells that respond to a bacterial infection. However, if the infection was very early, there wouldn’t have been a poly response yet. The ME assumed there was no infection because there was no inflammatory response. But cell death can occur several hours before the body responds to it by mounting an inflammation—and I believe the infant died before this could happen. Second, his cultures showed no organism that would have been a likely cause of infection.”

  “What did you do?”

  “I got the paraffin blocks of tissue and did Gram’s stains on the liver. That’s when I found a large number of coccobacillary bacteria in the neonate. The ME chalked these up to contaminants—diphtheroids, which are rod-shaped bacteria. Now, cocco-bacilli are often misidentified as either rod-shaped bacteria, like diphtheroids; or cocci, like staph or strep. There were so many of these organisms I began to wonder if they were something other than mere contaminants—like perhaps an infectious agent. With the help of a microbiologist, I identified the organism as Listeria monocytogenes, a motile pleomorphic Gram-positive rod.”

  I could see the eyes of the jury glazing, bogged down in scientific terms. “You can say that again,” I joked.

  Owen smiled. “Let’s just call it listeriosis. That’s the infection caused by these bacteria.”

  “Can you tell us about listeriosis?”

  “It’s an often unrecognized cause of preterm delivery and perinatal death,” Owen said. “Infection in the second or third trimester usually leads to either stillbirth or preterm birth followed by pneumonia and neonatal sepsis.”

  “Hang on a second,” I said. “You’re saying that Katie contracted some infection that may have compromised the health of her baby before it was even born?”

  “That’s exactly what I’m saying. Moreover, it’s extremely difficult to diagnose in time to initiate therapy. The mother will exhibit flu-like symptoms—fever, aches, mild pain—only hours before the premature delivery takes place.”

  “What is the effect on the newborn?”

  “Perinatal depression, fever, and respiratory distress.” He paused. “The mortality rate for the newborns, in case studies, is somewhere between thirty and fifty percent even after treatment.”

  “An infant infected with listeria has a fifty percent chance of dying even if treated?”

  “Correct.”

  “How do you contract listeriosis?” I asked.

  “From the studies I’ve seen, eating contaminated food is the most frequent mode of transmission. Particularly unpasteurized milk and cheese.”

  “Unpasteurized milk,” I repeated.

  “Yes. And people who are in contact with animals seem to be at particular risk.”

  I put my hand on Katie’s shoulder. “Dr. Zeigler, if I gave you the autopsy report for Katie’s newborn, and then told you that Katie lived on a dairy farm, drank unpasteurized milk daily when she was pregnant, and was actively involved in the milking of the cows twice a day, what would you infer?”

  “Based on her living conditions and potential exposure to Listeria monocytogenes, I’d say that she contracted this infection when she was pregnant.”

  “Did Baby Fisher exhibit the symptoms of an infant infected with listeriosis?”

  “Yes. He was born prematurely and suffered respirator
y failure. He showed some signs of granulomatosis infantiseptica, including liver necrosis and pneumonia.”

  “Could it have been fatal?”

  “Absolutely. Either from the complications of perinatal asphyxia, or simply from the infection.”

  “In your opinion, what caused Baby Fisher’s death?” I asked.

  “Asphyxia, due to premature delivery, because of chorioamnionitis secondary to listeriosis.” He smiled. “It’s a mouthful, but it basically means that a chain of events led to death by natural causes. The baby was dying from the moment it was born.”

  “In your opinion, was Katie Fisher responsible for her baby’s death?”

  “Yes, if you want to get technical about it,” Owen said. “After all, it was her body that passed on the Listeria monocytogenes to her fetus. But the infection certainly wasn’t intentional. You can’t blame Ms. Fisher any more than you’d blame a mother who unwittingly passes along the AIDS virus to her unborn child.” He looked at Katie, sitting with her head bowed. “That’s not homicide. It’s just plain sad.”

  * * *

  To my delight, George was clearly rattled. It was exactly what I’d been counting on, actually—no prosecutor was going to dig up listeriosis on his own, and certainly it was nothing George had thought to ask about during the deposition. He stood up, smoothing his tie, and walked toward my witness.

  “Listeria,” he said. “Is this a common bacteria?”

  “Actually, it’s quite common,” Owen said. “It’s all over the place.”

  “Then how come we’re not all dropping like flies?”

  “It’s a very common bacteria, but a fairly uncommon disease. It affects one in twenty thousand pregnant women.”

  “One in twenty thousand. And it hit the defendant full force, or so you said, because of her tendency to drink unpasteurized milk.”

  “That’s my assumption, yes.”

  “Do you know for a fact that the defendant drank unpasteurized milk?”

  “Well, I didn’t personally ask her, but she does live on a dairy farm.”

  George shook his head. “That doesn’t prove anything, Dr. Zeigler. I could live on a chicken farm and be allergic to eggs. Do you know for a fact that every time the defendant reached for a pitcher at the dinner table, it contained milk—rather than orange juice, or water, or Coke?”

  “No, I don’t know.”

  “Did anyone else in the household suffer the effects of listeriosis?”

  “I wasn’t asked to examine paraffin blocks of their tissue,” Owen said. “I couldn’t tell you for sure.”

  “Let me help you out then. They didn’t. No one else but the defendant exhibited signs of this mystery illness. Isn’t it strange that a family drinking the same contaminated milk wouldn’t all have the same physical reaction to the bacteria?”

  “Not really. Pregnancy is a state of immunosuppression, and listeriosis flares up in immunocompromised patients. If someone in the household had cancer, or HIV infection, or was very old or very young—all of which would compromise the immune system—there might have been another response much like the one Ms. Fisher apparently had.”

  “Apparently had,” George repeated. “Are you suggesting, Doctor, that she might not have suffered from this illness?”

  “No, she definitely did. The placenta and the infant were infected, and the only way they could have contracted the bacteria is from the mother.”

  “Is there any way to prove, conclusively, that the infant was suffering from listeriosis?”

  Owen considered this. “We know that he was infected with listeria, because of the immunostaining we did.”

  “Can you prove that the infant died from complications due to listeriosis?”

  “It’s the listeria that’s fatal,” Owen answered. “It causes the infection in the liver, the lungs, brain, wherever. Depending on the pattern of involvement, the organ that causes death might be different from patient to patient. In the case of Baby Fisher, it was respiratory failure.”

  “The baby’s death was due to respiratory failure?”

  “Yes,” Owen said. “Respiratory failure, as caused by respiratory infection.”

  “But isn’t respiratory infection only one cause of respiratory failure?”

  “Yes.”

  “Is smothering another cause of respiratory failure?”

  “Yes.”

  “So isn’t it possible that the baby might have been infected with listeria, might have had evidence of the bacteria in his body and lungs—but his actual death could have been caused by his mother suffocating him?”

  Owen frowned. “It’s possible. There would be no way of knowing for sure.”

  “Nothing further.”

  I was up out of my seat to redirect before George made it back to his table. “Dr. Zeigler, if Katie’s baby hadn’t died of respiratory failure that morning, what would have happened to him?”

  “Well, assuming that after the home birth the newborn wasn’t whisked off to a hospital for diagnosis and treatment, the infection would have progressed. He might have died of pneumonia at two or three days of life . . . if not then, he would have died of meningitis within a couple of weeks. Once meningitis develops, the disease is fatal even if it’s diagnosed and treatment is begun.”

  “So unless the baby was taken to a neonatal care unit, he most likely would have died shortly after?”

  “That’s right.”

  “Thank you, Doctor.”

  I sat down just as George stood again. “Recross, Your Honor. Dr. Zeigler, you said the mortality rate for listeriosis is high, even with treatment?”

  “Yes, nearly fifty out of a hundred babies will die from complications.”

  “And you just hypothesized that Baby Fisher would have died within a few weeks, if not that first morning of life?”

  “Yes.”

  George raised his brows. “How do you know, Dr. Zeigler, that he wasn’t one of the other fifty?”

  * * *

  For reasons I didn’t understand, Katie retreated into her shell with each word of Owen’s testimony. By all accounts, she should have been as pleased as I was. Even George’s little dig at the end of his recross couldn’t take away from the fact this fatal bacteria had been found in the baby’s body. The jury, now, had to have a reasonable doubt—which was all that we needed for an acquittal.

  “Katie,” I said, leaning close to her, “are you feeling all right?”

  “Please, Ellie. Can we go home now?”

  She looked miserable. “Are you sick?”

  “Please.”

  I glanced at my watch. It was three-thirty; a little early for milking, but Judge Ledbetter would never know that. “Your Honor,” I said, getting to my feet, “if it pleases the court, we’d like to adjourn for the afternoon.”

  The judge peered at me over the edge of her glasses. “Ah, yes. The milking.” She glanced at Owen Zeigler, now sitting in the gallery. “Well, if I were you I’d make sure to wash my hands when I was done. Mr. Callahan, do you have any objections to an early dismissal for farm chores?”

  “No, Your Honor. My chickens will be thrilled to see me.” He shrugged. “Oh, that’s right. I don’t have chickens.”

  The judge frowned at him. “No need to be a cosmopolitan snob, counselor. All right, then. We’ll reconvene tomorrow at ten A.M. Court is adjourned.”

  Suddenly a wall of people surrounded us: Leda, Coop, Jacob, Samuel, and Adam Sinclair. Coop slid his arm around my waist and whispered, “I hope she has your brains.”

  I didn’t answer. I watched Jacob trying to crack jokes that would make Katie smile; Samuel standing tight as a bowstring and careful not to let his shoulder brush against Adam’s. For her part, Katie was attempting to keep up a good front, but her smile stretched across her face like a sheet pulled too tight. Was I the only one who noticed that she was about to fall apart?

  “Katie,” Adam said, stepping forward, “do you want to take a walk?”

  “No, she do
es not,” Samuel answered.

  Surprised, Adam turned. “I think she can speak for herself.”

  Katie pressed her fingers to her temples. “Thank you, Adam, but I have plans with Ellie.”

  This was news to me, but one look at the desperate plea in her eyes and I found myself nodding. “We need to go over her testimony,” I said, although if I had my way there wasn’t going to be any testimony from her at all. “Leda will drive us back. Coop, can you manage to get everyone else home?”

  We left the way we had on Friday: Leda drove to the rear of the courthouse to pick Katie and me up at the food service loading dock. Then we circled to the exit at the front of the building, passing all the reporters who were still waiting for Katie to appear. “Honey,” Leda said a few minutes later. “That doctor you put on the stand was something else.”

  I was looking into the little vanity mirror above the passenger seat, rubbing off circles of mascara beneath my eyes. Behind me, in the backseat, Katie turned to stare out the window. “Owen’s a good guy. And an even better pathologist.”

  “That bacteria stuff . . . was it real?”

  I smiled at her. “He wouldn’t be allowed to make it up. That’s perjury.”

  “Well, I bet you could win the case on that doctor’s testimony alone.”

  I glanced into the mirror again, trying to catch Katie’s eye. “You hear that?” I asked pointedly.

  Her lips tightened; other than that, she gave no indication that she’d been listening. She kept her cheek pressed to the window, her eyes averted.

  Suddenly Katie opened the car door, causing Leda to swerve off the road and come to a screeching stop. “My stars!” she cried. “Katie, honey, you don’t do that when we’re still moving!”

  “I’m sorry. Aunt Leda, is it all right if Ellie and I walk the rest of the way?”

  “But that’s a good three miles!”

  “I could use the fresh air. And Ellie and me, we have to talk.” Katie smiled fleetingly. “We’ll be okay.”

  Leda looked to me for approval. I was wearing my black flats—not heels, granted, but still not my first choice for hiking shoes. Katie was already standing outside the car. “Oh, all right,” I grumbled, tossing my briefcase into the seat. “Can you drop this off in the mailbox?”