hard that one blow would cause injury by itself but hard enough to bruise her. Left alone, she would hit herself over one hundred times in an hour. I turn to Andy and ask why a child would do this, but he says that there are only theories for this behavior, not explanations, the latest one being that self-injurious behavior is actually a form of communication. More traditionally, Andy says, slipping into jargon, it is thought to be behavior that is reinforced by attention or is an attempt to avoid a task or is even somehow intrinsically reinforcing.
“The fact is,” Andy says, looking at Olivia, though I’m sure they have discussed this topic many times, “no one knows for sure what prompts a child to hurt herself.”
Olivia has begun to cry. Of course there is no box of tis sues for my clients in the conference room, but Olivia yanks a wad from her purse and begins to talk even while she wipes her face.
“When she first started hitting herself, I was told it might stop, but with time, it only got worse. I couldn’t believe it. I don’t care whether a person says they believe in God or not you think you’re being punished for something you did. Who knows? Maybe all of us were being punished I’d be lying if I didn’t admit to you that in some ways Pam’s death has been a relief.”
This last sentence, understandable, and not totally unexpected, is still jarring to me. Without this last addendum about death being a release, Olivia’s impact on a judge and jury will be favorable. And yet, maybe it, too, will be understood. This is not some highly emotional and distraught parent who has been overly influenced by a psychologist who wanted to use her daughter as a guinea pig for his own research. Rather, Olivia, assuming her testimony holds up, will come across as a strong, caring mother, who loved her daughter enough to inflict pain on her if that was what it took to help her.
I glance back at my client and am not surprised to find that his eyes are moist. But I do not want Olivia to admit in the witness chair that even for a moment she thought about the surcease from pain her child’s death would bring. With the acknowledgment of this all-too-human motive, it might be tempting for the prosecutor to try to convince a jury that a sympathetic and frustrated psychologist deliberately went too far in trying to end her child’s suffering. Waiting for her to finish wiping her eyes, I wonder how I can say this with out coming across as hideously manipulative. Lawyers are directors as well as actors in a play. If we forget that for one instant, we’re no longer doing the job we’re hired to do.
Just tell the truth, we tell our witnesses. What we mean is, just tell the truth in a way the judge or jury will believe you. I’m all for the truth, but if nobody believes it, what has the system accomplished? The trouble with being a public defender was that the witnesses for the defense were not credible even when they were telling the truth. Give me a good actor who can make the truth convincing, and I’ve got a chance. I don’t have to tell Olivia what I need from her today.
We will have the time later if she is willing to help me.
We talk about past attempts to help Pam, and I am not surprised to hear bitterness in her voice as she speaks about the psychologists over the years who refused to try shock.
As she speaks, her face becomes hard, and I think I see for the first time the facet of her personality that has allowed her to take over a small real estate operation (I had never heard of River Country Realty until two years ago) and turn it into a major force in the central Arkansas area.
“The first time I heard of shock I thought I was being teased. This little Dr. Oliphant he left the state a year before you came, Andy,” Olivia says, “had the nerve to say that shock was her only hope but only a sadist would use it. He was so smug, so morally superior-1 wanted to kill him.
Every time I brought it up he would get this expression on his face that said I was depraved for even thinking of it. I think he wanted to try it, but he didn’t have the guts.” This last sentence is spit from her mouth, her face twisting in anger. Theoreticians do not rank high on this woman’s list.
Whatever I have to do to persuade her to testify, I won’t moralize.
Andy’s head, I notice, turning quickly to observe him, dips in apparent agreement.
“What about the other psychologists?”
I ask both of them.
“If it works, surely somebody in the state was using it.”
In a gesture of impatience, Olivia pushes her hair back from her long, tanned face.
“Though I kept hearing rumors about the use of shock in the past. Dr. Oliphant wouldn’t admit to knowing anybody who had tried it who was still in the state. You know you can’t make doctors talk when they don’t want to-they hide behind confidentiality whenever it’s convenient.”
I look at Andy and see that his wide taupe lips are tightly compressed. He must be having the same thought that flits through my mind. Notwithstanding the quality of her life, Olivia’s daughter would be alive today if he hadn’t had so much courage. Granted the other professionals may have been timid, but not without reason. After all, Pam died. I need to understand the circumstances better, but I’d be a monster to make Olivia sit through a story that already must give her nightmares. I ask her a few more questions and learn that it was she who had suggested to Andy that he try shock.
I also learn to my dismay that he had never even been present when that form of behavior therapy had been used before. It will lend credence to the charge of recklessness that the prosecutor has to prove. Yet, as I listen to this woman, I am beginning to understand why he gave in to her. Olivia, whose intensity has grown with each moment, is both persuasive and vulnerable. As she talks about the agony Pam experienced, it is easy to believe that there was no other alternative to shock, which, she understood and Andy confirms, is painful, yet safe, if used correctly. As I glance back and forth between them, what disturbs me is my growing sense that my client, though armed with the best of intentions, may have been professionally unqualified to use shock as a technique to modify Pam’s behavior. How could he have refused to have educated himself as much as possible? Perhaps he did, I think, realizing I know literally nothing about it.
I will want to talk to Olivia before the probable cause hearing, but away from Andy. Though it seems unlikely, the gratitude she feels now may turn soft before Monday, as she begins to get some pressure to turn on him. It would be difficult if not impossible for her to tell him while he is sitting across from her that she thinks he should have refused to help her. It may not be so hard to back away from him once she is placed under oath and the prosecutor is giving her a perfect way to escape guilt-blame the doctor, Mrs. Le Master: he is supposed to be detached, cool, the professional. She seems to have more integrity than that, but I will be the first to admit that a woman has fooled me badly before in one of these situations. Besides, from an ethical standpoint, perhaps Andy did fatally forfeit his judgment. After all, he is presumably trained, educated, and licensed to exercise appropriate professional discretion, and now a child is dead. A criminal, though? Surely not.
Leaving Andy alone in me conference room, I walk Olivia down the hall and to the elevators and tell her I would like to call her soon. Her eyes slightly red now from crying, she assures me she will help in any way I suggest.
“He tried,” she says defiantly, “when no one else would. All these so-called advocates act as if children like Pam can be helped without aversive measures. Well, goddamn it, why didn’t they do it?”
I push the elevator button for her. I have no answer. I have no quarrel with her anger, but I want it to work for Chapman.
If I handle it correctly, the jury may understand that the real defendant isn’t on trial. I decide to provoke her with the truth, or at least part of it.
“I don’t know about the advocates,” I say as she steps into an empty elevator, “but the doctors and psychologists are scared to death of malpractice.”
A hard glint comes into her gray eyes and she stares at me, holding the door for one final comment.
“All I know is these other so-called professionals weren’t willing to try any thing that might work,” she says. “He could have turned his back on me, and he didn’t, and I ‘m not going to forget that.”
“I’ll hold you to that,” I say, as the door begins to slide shut.
“I’ll be calling you in the next day or so.” I walk back to the conference room, realizing Olivia has a determined side to her that she doesn’t bother to conceal. But why should she? What else does she have to lose? Besides, she is in a business that is at least as well known for its hard times as for its good tunes. One thing is certain: if she turns on Andy, he is dead meat. Olivia Le Master, I’ve decided, can be a ball buster. I just hope she doesn’t decide to go after my client’s.
