Probable Cause g-2
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With Olivia’s departure, Andy and I adjourn for a couple of minutes to allow me to go take a leak and find us both some coffee. At the front desk Julia has a smirk on her face that says my own IQ is so low it may not be testable as she reminds me that there is free coffee in the break room, which is only one door down from the conference room. She is dressed (except for a denim skirt) in what I’d call a Hell’s Angels biker outfit, complete with jackboots, and snarls through her peephole of a mouth, “Reminds me when I was a kid of my dog nearly starving one time. Blitz, our boxer, he whined at the front door for a solid day when all he had to do was walk around to the side and go through the garage.”
I study her face, wondering where a bullet would cause the most pain before it killed her. I do not want to mar her precious childhood memory, but I mutter, “That’s really fascinating.” Applying mauve nail polish to the bitten-off stubs on her right hand, Julia stops and smiles sweetly.
“It helps me sometimes when I can find something to identify with.”
Thank you, Julia.
“That must be difficult,” I say with an equal amount of venom and head back toward the break room. Before eastern Europe totally embraces capitalism, maybe it’s proponents should come take a look at Julia. What have I done to make this woman hate me? I don’t usually have this effect on people. I wonder what a cattle prod would do to her.
Armed with two steaming paper cups of coffee, I find Andy waiting for me in the conference room with his own coffee. I shut the door in case Julia has gotten up to roam the halls.
“Olivia may be the difference between you and a guilty verdict,” I say, hoping my comment will get back to her. “Would you have tried shock if it had been another parent?”
I ask, hoping he will answer honestly. I am not ready to ask if there is a sexual relationship between them, but if he wants to volunteer, that will be fine with me.
“The parent has to be behind you totally,” Andy replies softly, peering down into his coffee.
“I don’t know the first thing about what you do,” I admit, seeking a place to begin. From my years representing mentally ill patients in civil commitment hearings when I was a public defender, I know something about the mentally ill, but mental retardation calls up a harmless, beautiful male giant from my childhood in eastern Arkansas who had a brain the size of a pea. This once stubborn memory has been gradually replaced with a TV image of valiant, lovable children somberly trying to cope with the simplest of tasks.
Andy nods briskly, his manner businesslike, now that Olivia is gone. He instructs, “You’ve heard of behavior modification?”
“As in B. IF. Skinner?” I ask, recalling a psychology course at the University of Arkansas when I was a sophomore.
“Skinner was a prophet,” he says reverentially, fixing me with a stare made more intense by his slightly magnified eyes, “who was so honest that few could stand his message.
He demonstrated over and over again that free will is an illusion. In a society as out of control as the United States, it’s lucky he wasn’t lynched.” With this last phrase his voice is tinged with irony.
I lean back in the comfortable swivel chair, wishing I could steal it for my office, and scratch the middle knuckle of my right hand. The permanently swollen joint is a souvenir of too many balls that bounced off the tip. A nearsighted wannabe Mickey Mantle who couldn’t be trusted with contact lenses until I was sixteen, I am lucky to have my teeth. It seems strange to hear a black say, “Sorry, folks, there’s been some kind of awful mistake all these years. You only think you’re deciding what kind of cereal you want for breakfast each morning.” I hate to tell Andy, but this decade, freedom is in. Even the most devout Marxist is trying to make a buck.
He reads my skepticism and adds, “I know what I’m saying is anathema to the legal profession. There’d be a major recession in this country if you lawyers couldn’t peddle free will.”
I can see a jury shaking twelve heads at once. Surely he accepts the rules of the game, or he wouldn’t be in my office.
“Why don’t you just tell me what happened,” I say, already bored with theory. Despite his profession (there is a lot of bullshit in this area), I can’t help but like him. He is obviously a bright guy, yet unpretentious. Blacks who are as educated as this guy like to use a lot of big words. Andy reminds me of a good teacher, patient as a coyote and without the sarcasm and condescension that some otherwise competent professors can’t manage without.
In no hurry to get to the meat, he rests his hairy chin on his fingers.
“In order to fully understand my situation, you are required to accept the proposition that behavior modification is a science and proceeds on that basis.”
I tap a Flair pen against my legal pad. Sure it is. Shocking a child with a cattle prod is right up there with a cure for polio. I don’t blame him for not wanting to talk about what happened.”
“I ‘we no doubt it was an accident,” I say, smoothing his path. Rockets blow up all the time. If I can get this knocked down to a charge of negligent homicide, I’ll be earning my pay.
Behind his glasses, Andy squints as if he is trying to picture the event.
“It happened so fast that it still seems unreal.”
Poor guy, he didn’t have time to change his mind. Though he is tired, he needs to go through this. I plunge ahead.
“We need to talk about what happened. What I know about electricity won’t fill up a thimble,” I confess.
“Did you accidentally shock her in the chest, or what?”
Chapman rubs his head as if he still can’t understand it. “What happened was that she grabbed the handle of the prod with her right hand, I suppose to push it away,” he says slowly, ‘and according to the doctor who pronounced her dead, the current passed from one of the electrodes touching her left thigh and traveled through her chest and heart down her right hand, which was touching the handle.
It happened so quickly I didn’t realize she was grabbing at the handle.”
Without realizing it, I have brought my hands together. A complete circuit. I have jumped smack into the middle, but I can always come back for details.
“Didn’t you have her hands tied?”
“Leon Robinson-he’s an aide-was trying to hold her,” Andy says, “but it was hard to keep her still, I guess.”
“Was it really a battery-powered device that’s used on animals?” I ask, praying it wasn’t. When I was fourteen, I worked on a cousin’s farm and watched a cattle prod used on sheep. I remember thinking that even through all that wool it hurt them. Of course, that was the point.
“Let me explain about that,” Andy says, his voice rising for the first time since I ‘we met him. “Once you start learning about this procedure, you’re going to find that there are commercial products available you can send for to use on individuals.
The problem was that I knew if I asked, I wouldn’t get permission to try shock on Pam. I thought that if I showed the administrator, David Spam, what could be accomplished with Pam, he would back me and let me work with her.
Shock works incredibly quickly to suppress self-abusive behavior, and both Olivia and I were convinced that he would go along with it once he saw Pam for the first time in years not hitting her head. Shock works like a miracle, and all that bullshit about it being too aversive comes to a screeching halt when, after years of keeping a child in restraints or on drugs and trying everything under the sun, you see the kid not hurting herself. Of course, it’s a last resort, but the scientific literature is clear: shock works. And someone at the Human Development Center knew it at one time, because that’s where I found the equipment I used. All it needed was new batteries.”
I try not to squirm with impatience. You can’t expect a jury to be sympathetic when you have to tell them that your client took a device you use on an animal and used it on a human. It has to hurt like hell.
“Surely no one has used a cattle prod before.”
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p; Stubbornly, Andy, his lips pursed, shakes his head.
“Sure they have. In some of the first published research in which shock was effective a cattle prod was used. What is recommended, and what I did, was wrap the metal case in insulation tape, so that even if the case was grabbed while Pam was being shocked, there wouldn’t be a closed circuit.”
At least he seems to know what he was supposed to do. I ask, “So what happened?”
Andy lets out a deep sigh.
“I don’t know. I guess it wasn’t thick enough.”
I study Andy Chapman’s face, which, for the moment, seems lost in confusion. His brown eyes look puzzled, as if he has thought many times about what went wrong. The difference between me and him is that electricity scares me too much to even think about fooling around with it. Involuntarily my mind goes back to the time when I was twelve and was shocked by an electric lawn mower. Closing my eyes, I can still feel the pain. My fingers felt like someone laid back the skin and briskly rubbed a hacksaw blade back and forth over the exposed nerves.
“Couldn’t she let go of it?” I ask, thinking of a movie I saw with Martin Sheen where, in the first five minutes, his wife was accidentally electrocuted while using an electrical appliance. Her muscles contracted, and she couldn’t let go of it.
His face takes on the hardness of a clenched fist as he remembers, “I released the button as soon as I realized what was happening, but it was too late.”
It sounds so grisly I feel my stomach turn.
“What happened then?”
Andy stares over my head and says in a monotone, “I tried mouth-to-mouth resuscitation, and the emergency-room technicians said the doctor worked on her for thirty minutes after they got her to the hospital, but I think she was dead before then.”
I nod, feeling steadily sickened by the portrait he has painted. Perversely, but perhaps not unexpectedly, given my eastern Arkansas background, what is most vivid in my mind is an image of his black lips blowing into the girl’s mouth.
When I was entering puberty in eastern Arkansas my best friend, Jeffrey “Draino” Cummings, “made” me choose between what our adolescent minds agreed were the two worst choices in the world: having sex with one’s mother, or in Jeffrey’s words, “sucking snot from a dead nigger’s nose.”
I remember saying primly that I’d choose the second. Jeffrey, who obtained his nickname because of an experiment with a frog, hooted in derision until I changed my mind.
“Was it just you and the aide?” I ask, wondering if Leon is also black.
Andy closes his eyes as if the memory is too much for him.
“Olivia was there, and I had a social worker there to write down the exact number of shocks it was going to take, and also count how many times Pam hit herself before she stopped.”
I am stunned by the news that Olivia was watching. She is even tougher than I imagined.
“How could a parent watch her own child being shocked?” I blurt.
Andy does not seem to take offense at my tone. He says mildly, “Olivia’s one hell of a strong woman. She insisted that I shock her, too, so she’d know exactly what Pam was feeling.”
Once again I can imagine the jolt that radiated through me as I tried to splice the electric cord that summer morning in the backyard. It had to be over thirty years ago, but the memory of the pain has reappeared as if a skillful therapist had uncovered a traumatic incident from my childhood. My stomach queasy, I take a sip of my coffee, wondering if I’m about to throw up.
“Did you try it, too?”
I ask.
Somberly, he nods.
“One of the descriptions from the journals is that it is like having a dentist drill on a tooth without first having your mouth numbed. Frankly, I think it’s worse than that, but it’s also true that the pain goes away as soon as the current stops. It’s local and doesn’t radiate through the body.”
“Jesus Christ!” I exclaim.”
“Why couldn’t you have started with something milder?” I do not add that if he had, Pam might be alive today.
Perhaps irritated by my tone, his voice less patient, Andy says, “They can get used to a lower voltage. It can be reinforcing.
The literature says that if you’re going to use shock, not to hold back on the intensity.”
But a cattle prod? Nonplussed now by the image of Andy and Olivia shocking themselves a single time, all I can do at the moment is blink at this comment. Some comfort that must be to a retarded teenager. As a child, I used to be terrified when my mother made my sister cut a switch for her that she would then use on our legs. The fear of what was coming was somehow worse than the pain. Of course, that was part of the punishment. Can a jury handle this so-called treatment? On “60 Minutes” recently they did a segment on the comeback electro convulsive therapy was making in the treatment of suicidally depressed mental patients after years of bad publicity. Why? It works when nothing else does, according to the shrinks on the program. Yet there is a difference. The electricity itself
(no one seemed to know how) has a therapeutic effect;
here, its only function is to inflict pain. A theory as subtle as the one in the Spanish Inquisition. Doubtless, its defenders would howl in disagreement. I try to focus on what it is supposed to accomplish: the cessation of pain, the prevention of injury, maybe it can even save a life when it isn’t taking one. Andy would be so much better off if he could have obtained someone’s permission to try shock. It begins to sink in that maybe his boss, David Spath, knew what he was up to, but they made a deal:
Andy could try it, but if it didn’t work, he would have to walk the plank all by himself. Why else would he be so confident that his boss would agree to let him continue working with Pam and using a method that can’t stand the light of day?
“I’d like to talk with your boss and the other two who were there,” I say casually.
“Do you think they’ll be sympathetic?”
Andy spreads his hands and then slaps his legs softly.
“They don’t want to lose their jobs.”
I begin to doodle on the pad in front of me. Maybe they should lose their jobs. I doubt if what they helped Andy do is in their job descriptions. I anticipate him by saying, “They were just following your orders.”
Andy nods too quickly, convincing me that he has told them something similar. The problem was that this defense has already failed-at Nuremberg. Yet usually nobody cares about the peons. They probably need all the warm bodies they can get at the Human Development Center. He says, “I wouldn’t even bother with David. I’m just lucky he hasn’t fired me. I’m sure from the governor on down, they’ve put pressure on him to get rid of me immediately.”
I wonder if they are all black, but I will find out soon enough. David, whoever he is and whatever his color, must be quite a fellow. How does someone get into this business?
I suspect not too many kids say they want to be an administrator of an institution for the retarded when they grow up.
I write his name down, hoping he is white. The testimony of a black boss won’t mean much, since the jury will assume blacks stick together on everything. Thinking about the issue of race reminds me of Andy’s admonition after the probable cause hearing not to raise it again. I ask, “We need to discuss your problem with planting a seed in the jury’s mind that you might be the victim of racial discrimination. If we can even get one juror to hold out, I don’t think the prosecutor would retry it.”
Andy shakes his head vigorously, as if I’d suggested that he try to bribe the judge.
“Don’t you see that all you do is reinforce the belief that blacks are inferior by raising the issue of race?”
I rock back in my chair, totally dumbfounded.
“Are you crazy? You should know better than I do that it’s not going to break this prosecutor’s heart if some members of the jury are racists. She wants a conviction.”
Andy sets his chin and neck as if he is locking them into position.
I can’t believe my ears. This guy sounds as if he was programmed by Ronald Reagan.
“It’s not special treatment to demand a fair trial.”
A frown passes over Andy’s face.
“Neither you nor the prosecutor want a fair trial. You just admitted that. All you want to do is win.”
This guy can’t be for real.
“This is your fucking life at stake!” I bark at him, slapping the table for emphasis. “You can’t think you’re going to use this trial to reform society.
All you’d do is let them get away with what they’ve been doing for years which is screwing blacks simply because you are black!”
The louder I get, the calmer he becomes. “Every minority in this country from Jews to Japanese have been discriminated against,” he says, his voice barely audible, “and the way they have overcome it is by outworking you.”
The bitter coffee makes my stomach hurt. Suddenly, I realize Andy is the worst kind of client a martyr.
“There’s no comparison between blacks and Jews in the United States.
Jews weren’t degraded by being brought to this country in chains and bought and sold. They didn’t have laws here literally branding them as less than human beings.”
Andy begins nodding his head again.
“I don’t want you even implying to the jury that this case is about racism. If I had wanted to do that, I could have gone to a number of black attorneys who could do a much better job of it than you. What you don’t really understand is that the first thing a black child understands is that his entire society thinks he is inferior. This is drummed into his head day and night.
Every time we use the excuse of racial discrimination we allow society to confirm and reinforce our worst suspicions about ourselves. I’ve resisted that with every fiber in my being, and I’m not going to let this trial play into that trap.