After Johnny Bob and his entourage had left the courtroom, Tod noticed that Mr. Buschbahm was still seated at the top of the auditorium, obviously waiting for the crowds to clear out so that he would not have to wait for an elevator. Tod bounded up the stairs and sat down beside him.
"So, Mr. Buschbahm, how am I doing so far?"
Mr. Buschbahm thought a moment before replying. "Tod, I'd say you're about even at this point, which you know is pretty fair at this stage of the case. Joanna and Lucy made very good witnesses, but Jan did an exceedingly fine job of neutralizing a lot of the sympathy that the jury had for Lucy this morning. Even-steven is where I put it for now. Dr. Moyo is going to be critical for you."
"I agree, Mr. Buschbahm. I certainly agree. Thanks for your two bits worth."
Mr. Buschbahm grinned as he ended the conversation. "Used to be that my opinions were worth two bits, but with inflation, they're now worth two dollars, maybe more."
Tod's crew left the courthouse after most of the crowds had vacated the street. They declined interviews with several reporters and a couple of television crews. Maybe tomorrow. They reassembled at the fire station war room where Grace took orders for Chinese food. Tod and Wayne got a beer. Dr. Moyo and Jan drank Cokes.
Tod propped his feet up on the long table, took a swig of his beer, let the taste and liquid slide to the bottom of his stomach and then said, "Nice job, Jan. No, more than nice. Superb. You cut way into Lucy's damages and even managed to bring her credibility into issue with the consent form."
"I assume that you're going to have Zeke take the jury through the risks of the procedure and the consent form," Jan said. " I think that he can convince them that she's having a rather convenient memory."
The conversation continued about the day's events until Grace returned with the Chinese food. After they had helped themselves, Tod turned to Zeke. "Zeke, you're up in the morning. Any concerns or matters that we need to talk about?"
"I think that I'm as ready as I can be, Tod, thanks to you and Wayne. I want you to be sure to go over the procedure in detail. I have never had a pregnancy termination patient who cried out in pain. And cover the consent form. I know that all of those risks were discussed with her. I also know that I asked her if she had any questions, and she didn't. What should I expect from Mr. Tisdale? He's been very quiet for two days."
"Expect the unexpected," Tod responded. "He'll start off with some question calculated to unbalance and unnerve you. So be prepared for anything. Whatever it is, remember all we have told you. Take your time, be calm, and don't get upset. I'll clean up any messes he creates when it's my turn."
"Tod," Wayne asked, "what's your current thinking about whether to put on Zeke's slander case and his damages now or wait until later?"
"I've got my mind made up. We're going to go full speed ahead on the slander and Zeke's damages. I don't want a day to go by that the jury is not reminded that there are two victims, as Johnny Bob likes to call them. Let's just see who the jury thinks is the real victim at the end of the trial."
CHAPTER 67
As the jury assembled for the fourth day of trial, Joshua Ferrell proposed a bet. "All right, I'm convinced that lawyer Tisdale will have on something red today. It'll cost anyone who wants to get in the pot a dollar. You've got to be right about what red item he has on him, and if you're right, you win the pot or split it with anyone else who has the right answer."
"I'm in," said Roy Judice, pulling a dollar from his wallet. "Put me down for a red tie."
"Here's my dollar on red suspenders again," said Olga Olsen, the waitress.
"Red boots," was the guess of Catherine Tucker, the realtor.
"I think he'll have on red underwear," smiled Amy Bourland, the schoolteacher, as she put her dollar on the table.
"No, Amy, you can't bet on that. What do you want us to do, ask the judge to have him drop his pants in the middle of the courtroom?"
"Okay, then I say a red handkerchief."
As it turned out, Amy won the bet and they would never know that Johnny Bob was also wearing underwear dotted with red hearts, a gift from Bernice for Valentine's Day. He also had a red handkerchief in his coat pocket. After that, the bet became a daily ritual with nearly every juror participating. The pot carried over only one day when Johnny Bob was void of red except for a red ballpoint pen in his shirt pocket, which the jurors missed. Other than the jury, only Johnny Bob knew what was going on in their room each morning. It was a little stunt he had dreamed up years ago to focus more attention on himself and on what he had to say. It always worked.
Dressed in a dark blue suit and wearing his own red tie, Dr. Moyo took the witness stand.
"Good morning, Dr. Moyo."
"Good morning to you, Mr. Tisdale."
Johnny Bob then leaned over his table. "Dr. Moyo, when you were licensed to practice medicine, did you take the Hippocratic Oath?"
Jeez, thought Tod, he's not wasting any time getting to the short hairs.
"Yes, sir. I did."
Johnny Bob walked to the projector, turned it on and the screen showed the section of the oath reading, "I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner, I will not give to a woman a pessary to produce an abortion."
"Didn't Hippocrates condemn abortion nearly five hundred years before Christ was born?"
"Yes, sir."
"Then, please tell this jury why it was that you chose to violate your oath and take the lives of innocent babies?"
Tod leaped out of his chair. "Objection, Your Honor, argumentative!"
"Sustained. Rephrase your question, Mr. Tisdale."
"Be happy to, Your Honor. Tell us why you chose to violate your oath."
Dr. Moyo momentarily covered his face with his hands and then wiped his hands on his pants. Despite all the preparation, he had not anticipated such an attack. "Sir, I did not violate my oath. Not every doctor thought like Hippocrates in his day or today. The oath that I took upon graduation from medical school did not have that exact wording."
"Well, then, tell us what exact wording it did have about abortions."
"I swore that I would maintain the utmost respect for human life from its inception, and I believe that I have abided by that oath."
"Still, you'll concede that old Hippocrates himself admonished you doctors not to do abortions."
"Yes, sir. That's what the words seem to say."
"And, Dr. Moyo, just when did you start killing babies for a living?"
Tod was on his feet like a shot. "Objection! Don't answer that, Dr. Moyo. Your Honor, may we approach the bench?"
"Come up here, Counsel." It was clear from the tone of Ruby's voice that she had enough of the lawyers in this case gallivanting out of bounds. It was going to be hard enough to try this case, avoiding reversible error without such shenanigans. She was going to put a stop to it.
"Your Honor, that question is so inflammatory and prejudicial as to make it impossible for my client to get a fair trial," Tod argued. "I hate to do it after all we've been through, but I move for mistrial."
"Your Honor…"
"Mr. Tisdale, you've said quite enough. I'm not going to grant a mistrial. However, I'm putting this on the record so that the appellate courts may have the benefit of my thoughts. Your question as phrased was totally out of line, and if we were not so far along with this monster, I'd grant Mr. Duncan's motion. As for you, Mr. Tisdale, if you wish to get back up to East Texas with your license intact, I demand that you ask questions that do not drip with prejudice. You can lead Dr. Moyo all you want, but only with reasonable questions. I know that you are a wealthy man, Mr. Tisdale; however I will sanction you with a fine big enough that even you will hurt. The appellate courts can decide if I have been too harsh. In the meantime, the county will have the use of your money if you want to continue in this trial. And, while I have you all up here, the same goes for all of you. Understood?"
The attorneys agreed, particularly Johnn
y Bob, who returned to his seat, cleared his throat and was about to continue when Judge O'Reilly said to the jury, "You are instructed to disregard that last question. It was highly improper and prejudicial. You are not to consider it for any purpose. Further, you are instructed that our United States Supreme Court has ruled that it is legal to perform an abortion on a woman if she and her physician agree to the procedure."
Strong language, especially the part about the Supreme Court, but Ruby was mad. Let the appellate courts deal with it.
"Dr. Moyo, when you were working at Population Planning, how much were you paid to do an abortion?"
"I was paid one hundred dollars for each one."
"Let's see, you worked there three days a week, didn't you, about four hours a day?"
"Yes, sir. Most weeks."
"How many abortions could you usually do in that time?"
"Usually, ten or fifteen, sir."
Johnny Bob walked up to the large pad on an easel and wrote "$1500." "Well, that means that you could make fifteen hundred dollars a day for just a half day's work. Pretty good wages wasn't it? Forty-five hundred dollars for twelve hours a week?" Johnny Bob knew that there wasn't one juror who made that much working forty or fifty hours a week.
"Sir, I did not ask for that much money. That's what they told me they could pay. You must also understand, after twelve years of study during which I had made no money, I was just starting into a career. Doctors sacrifice a lot in their early years and most feel that they are entitled to make a decent living when they finally are permitted to go into their specialty. May I ask, Mr. Tisdale, how much you earn a year for comparison?"
Tod and Jan smiled as Johnny Bob was caught off guard by the question. The big lawyer replied hurriedly, "What I make is not the issue, Dr. Moyo. How many abortions did you perform while you worked at Population Planning, Doctor?"
Before Dr. Moyo could reply to the question, Tod rose slowly from his chair and addressed the bench, a twinkle in his eye. "Your Honor, I disagree with Mr. Tisdale. I think that the jury would be quite interested in what he makes. I'll certainly tell them what I make in a year if Johnny Bob will do the same. He's the one that raised the issue about forty-five hundred dollars a week being a lot of money."
Judge O'Reilly kept a most solemn face to hide her amusement about the dilemma that Johnny Bob found himself in. Still, she knew that he was right and lawyers' incomes were not an issue in the case. "Mr. Duncan, I'm sure the jury would find both of your earnings quite interesting, but I agree with Mr. Tisdale. Let's move on. Please answer the question, Dr. Moyo."
Dr. Moyo replied, "First of all, I did not work every week. I would estimate that in the four and a half years that I worked there, I terminated approximately fifteen hundred to two thousand pregnancies. I might add, all without incident except for this one."
"Now, Dr. Moyo, let's talk about Lucy Brady. She had some problems following the abortion that you performed on her, didn't she?"
"Yes, Mr. Tisdale. She had a slight perforation and there was some tissue that remained in her uterus after the procedure."
"Tissue, Dr. Moyo?" Johnny Bob bellowed. "Tissue! That tissue was what remained of a twelve-week old fetus after you got through, wasn't it?"
"Yes, sir, it was, but it was not capable of being identified as part of a fetus. For that reason the pathologist at Hermann merely described it as tissue," Dr. Moyo responded in a subdued voice.
"Now, Doctor, you said that this is the only abortion where you ever had a serious problem. And in this one, you didn't get all of the baby out and even punched a hole in Lucy's uterus."
"If that's a question, sir, the answer is yes. May I explain? The procedure is a blind one and the lining of the pregnant uterus is very thin, which is why a uterine perforation is discussed with the patient as a potential complication."
"Dr. Moyo, let's talk about what you had been doing before you got to the clinic that morning. You had gone two nights without sleep, isn't that true?"
"Yes, sir, I had a patient in an extremely difficult labor. It wasn't exactly two nights. I had slept a few hours two nights before. There's no doubt that I had not slept in more than thirty hours."
"That have anything to do with your performance on Lucy Baines Brady, Doctor?"
"Sir, I've thought about that, and I know it did not. Medical residents of all kinds pull twenty-four hour shifts, and any obstetrician expects to lose sleep on a regular basis and still perform at the highest level."
"Nonetheless, Doctor, out of all these abortions you performed, this is the only one where you had two major complications. By the way, you could have called in and asked the clinic to find you a substitute, couldn't you, Dr. Moyo?"
"Yes, sir. I could have, and I presume that they would have done so."
"But, you didn't because you wanted to make fifteen hundred dollars that day, Doctor. That was more important to you than the safety and well-being of your patients, right?"
Dr. Moyo took a deep and audible breath before replying, "No, sir. My patients always come first."
Johnny Bob expected that answer, but he had made his point. "I'll pass the witness, Your Honor."
It was mid-afternoon and time for a break. Tod and Jan decided that Dr. Moyo had taken quite a beating. Their plan was just to walk him through his personal and professional life and then regroup. After the break, Tod gave Zeke easy questions. They talked about Zeke growing up in Nigeria, the fact that he was a second generation physician, his scholarship to medical school in England, his professional soccer career, his submission of applications for residency at some of the world's better medical schools, the reasons why he chose Baylor as a place to study and Houston as a place to live, his marriage to Marian in England, the birth of their two children, and the fact that he passed his board certification exam on the first try. When the day ended, they hadn't touched on Lucy or Dr. Moyo's work at the clinic. Still, Tod had accomplished his purpose of presenting his client as a complete person. The jury did not leave with the impression that Zeke was only an abortionist and nothing more.
At four-thirty, Judge O'Reilly did as Tod expected. "Ladies and gentlemen, let's call it a week. On Fridays I always have a motion docket. So, I'll be back in my regular courtroom at the main courthouse. In a long trial, I rarely get complaints from litigants or jurors about having one day a week off. Gives you a little time to catch up at work or at home. Remember my instructions and I'll see you on Monday morning. Try to be in the jury room at eight forty-five, and we'll start promptly at nine. Have a nice weekend."
After telling Zeke to be at the fire station at ten in the morning, Tod invited Jan, Wayne, and Marilyn to walk the three blocks over to the Four Seasons Hotel for a drink while the traffic cleared. As they left the building, they found T. J., white Stetson in place and gold Bible in hand, being interviewed by Victoria Burton. This time she was doing a story for the NBC Nightly News.
"Yes, Victoria, we're pleased with how the trial is going. What happened to Lucy has ruined her life, and I'm certain that the jury feels that way. As to Dr. Moyo, no matter how much perfume you spray on a doctor like him, he still smells like an abortionist. His lawyer can call him a pedigreed pussycat, but the jury will still see him for the polecat that he is."
Tod and the others paused in amazement as they listened to T. J. continuing his attacks on Dr. Moyo. Turning to his legal assistant, he said, "Marilyn, I'll have to buy you a drink another time. Get on back to the station and get the VCR running. We may want to use this next week."
As Marilyn headed toward her car, Victoria Burton interrupted, "Reverend Luther, do you expect to testify soon?"
"Well, Victoria, that's up to Mr. Tisdale and Ms. Jackson. My guess is that my time will come next week. I am eager to get on the stand. As you and your audience know, I have a lot to say about these proceedings. The sooner the better."
Tod and his group walked away. "If I didn't need a drink before, I damn sure need one now. I just hope that Dr. Moyo doesn'
t watch Channel 2 tonight."
On Monday morning, the trial took another turn that no one could have predicted.
CHAPTER 68
Anna May Marbley lived in the Fourth Ward, an old area just barely out of the shadows of the downtown Houston skyscrapers. Her mother drove her five minutes to the law school each morning at seven-thirty while her children were having breakfast, then returned to get them off to school. Anna May was usually the first juror to arrive. Because she arrived so early, her mother dropped her at the main entrance in front of empty barricades that awaited the day's crowds, reporters and police officers. She entered through the metal detector and often stopped to visit with the guards who manned the machine before going to the elevator that took her to the third floor. By that time, the deputy had coffee and pastries on the table in the jury room. She always got first choice.
On this Monday morning, things were different. Anna May paused only to say good morning to the guards as she took her purse from the metal detector conveyor belt. She went immediately to the third floor and began looking for Deputy Johnson, always the first bailiff to arrive and the one who brought the pastries. Not finding him in the jury room or the courtroom, she sat in the jury room, arms folded and stared at the wall, a grim look on her normally cheery face. Deputy Johnson could see something was amiss as soon as he walked in.
"Anna May, what's wrong with you? You look like you just saw the devil himself."
"I need to see the judge, Mr. Johnson, alone."
Johnson had picked up the coffeepot to take it to the men's room to wash it out and refill it. "Judge won't get here until about eight-thirty. You want to tell me the problem. You got a sick kid? Or maybe a death in the family?"
"Nope. This is for the judge's ears only." Anna May continued to sit with her back to the wall, arms folded as the bailiff made coffee and put out pastries. Soon, other jurors began to trickle in, making small talk and discussing the events of the three-day weekend. Anna May said good morning and nothing else.
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