Custody of the State (38 page)

Luden then indicated that the department had contacted Mary Sue, who they knew was a nurse doing part-time work at the Delphi hospital. At first, Luden testified, she was cooperative, though somewhat confused as to why Social Services should be involved.

Luden had requested access to Joshua's medical records just to verify that everything was being done for him that should be done. Mary Sue had reluctantly agreed. But shortly after that, she had said that she was going to seek a second opinion from another doctor because she did not feel that Dr. Wilson had the skills to diagnose Joshua's problems. She was given a short period of time to secure a second opinion from a qualified physician.

“When Mary Sue neglected—or failed—to secure a second opinion or have Joshua's medical care taken over by a competent doctor, my suspicions were confirmed that we had a problem going on.”

“What kind of problem?”

“It was my feeling,” Luden said, “that the mother's lack of cooperation was not just accidental—that she might be trying to
cover something up. Something about Joshua's medical status. Something about his health.”

“And did something very significant happen then?”

“Yes,” Luden continued, “our department received a phone call from a third-party abuse reporter.”

“Exactly what do you mean by that?” Putnam asked.

“Someone other than the parents and someone other than the department called in to us and gave us a very detailed complaint describing exactly how Joshua was being poisoned by his mother.”

Will objected to the testimony as hearsay but added, “Unless, of course, Mr. Putnam agrees that he is not presenting this for the
truth
of the accusations—but simply to set the stage.”

Putnam acknowledged that that was exactly his intent, and the judge overruled the objection.

“And what did the caller indicate?”

“The caller indicated that Mary Sue was poisoning Joshua with hydraulic brake fluid.”

“And what did you do after that?”

“We contacted Dr. Parker, the pathologist at the Delphi hospital. He confirmed the presence of a substance in the blood sample taken from Joshua earlier—a toxic ingredient present in brake fluid. I then proceeded to contact the sheriff's department, and we arranged for the immediate issuance of warrants and the filing of the petition for transfer of custody on an emergency basis. Judge Mason held an ex parte hearing temporarily taking custody away from Mary Sue and Joseph Fellows and transferring it to the county—
pending
this final hearing, of course.”

“Were you with the sheriff's deputies the day they tried to apprehend and take custody of Joshua?” Putnam asked.

“Yes, I was,” Luden said.

“But Mary Sue had just escaped with Joshua. Joseph, the father, was there. He appeared rather combatant—and angry. He declared he was glad his wife and child ‘got away'—those were his words. He was immediately arrested.”

Will began his cross-examination by asking Ms. Luden for the identity of the caller.

“As you know,” she replied, “I cannot disclose that. That's protected and privileged. We treat all incoming calls about child abuse as anonymous.”

“But you know who called?”

“Yes, we have a name.”

“And the caller was a young woman, wasn't it?” Will asked in a voice loud enough for everyone to hear.

“And exactly how did you come by that information?” Luden exclaimed. “This information is confidential. I think the court ought to get an explanation from you immediately, Mr. Chambers.”

“I'll tell you how I found out,” Will replied. “The caller called
me.
A young woman called me and told me that her anonymous tip to you regarding Mary Sue was entirely bogus. False. Untrue. She said she was motivated to do it by a person who had some kind of financial control over her—” But Will was unable to continue. Harry Putnam and Harriet Bender were both on their feet objecting.

“Mr. Chambers,” the judge said, “confine yourself to question-and-answer format. You are not a witness here. What you may or may not have heard in your investigation or preparation for this case, is not evidence.”

Will nodded in acknowledgment of the judge's ruling and plowed ahead.

“Did you ever doubt the caller's honesty or accuracy in reporting this to you?”

“Not really. I had no reason to.”

“Why hydraulic brake fluid? Doesn't that strike you as a bit odd?”

“No, not really. Mary Sue is a nurse. She knows, presumably, what types of toxic substances could be administered to a child and be difficult to differentiate from actual health problems.”

“So you carefully thought through all the ways that the caller's report could be consistent with Mary Sue's
guilt?”

“Yes, that's true,” Luden said.

“But did you ever think of the reasons why Mary Sue might be
innocent?
Did you ever think through all the evidence that was consistent with her
innocence?”

Luden's eyes darted around a little a bit as she thought.

“I'm really not sure what you are getting at.”

“In other words, did you put as much energy into trying to determine her innocence as you did into trying to establish her guilt?”

Putnam and Bender were both on their feet again, shouting out objections that Will's question was argumentative.

“It's getting close to argumentative,” the judge ruled. “I'll give you only a little bit of leeway here—that's all. Please proceed.”

“Do you understand my question?”

“Yes—and I resent the implication that you are making.”

“So you really devoted a substantial amount of energy and thought to trying to figure out whether this caller was really telling you the truth?”

“I absolutely did. We certainly would not want to take a child away from a parent who is not guilty of child abuse—or neglect or some other parental misfeasance.”

“You are sure about that?” Will asked.

“Absolutely,” Luden answered.

“You provided me with a copy of your notes relating to your investigation of Mary Sue Fellows, is that correct?”

“The only thing we did not provide was a copy of the intake message when the caller made the telephone call to our department.”

“And your thought process was carefully laid down in your notes as you investigated this?”

“Just the main things—the important things.”

“Did you ever stop and ask yourself this—how would this caller have possibly known?”

“What do you mean?”

“I mean this,” Will explained. “There were only three people on that farm. Little Joshua, too young to be able to describe anything about hydraulic brake fluid. And then there was Mary Sue, and then there was Joe. Those are the only three who were living on the farm. How in the world did this caller find out that Mary Sue was allegedly giving brake fluid to her son in an effort to poison him?”

“I'm sure we considered that. We reviewed that. I can't remember offhand, but I'm sure it's in my notes.”

“Please review your notes. I have a copy of them in front of me. And I will represent to you, Ms. Luden, that there is nothing in your notes indicating that you ever raised that question. That you ever recognized that there was a major problem with the story the caller had given you. The caller gave absolutely no facts upon which you could determine that she had ever had an opportunity to observe the family, or see Mary Sue giving brake fluid to her child—or to even
hear
that it could have been done. Review your notes, Ms. Luden, and see if it ever appears there.”

Luden thumbed through her records, and after several prolonged minutes of silence, she answered.

“Apparently…I do not see anything in my notes about that.”

“Would that not have been an important question to ask yourself the very first minute you received the call from this anonymous person?”

Luden paused for another moment. Then she gave her answer.

“Yes, I assume it would have been a good idea.”

54

W
ILL STEPPED OVER
to his counsel table, wondering briefly if the tide was turning with this witness.

When he turned back toward Liz Luden, he had a large, black notebook in his hands.

“Did you use a CRAM in Mary Sue's case—in evaluating her as a potential child abuser?”

Luden took a few seconds to eye Will and study the notebook he was holding.

“A what?” Judge Trainer asked, with subtle confusion on his face.

“Child Risk Assessment Manual, Your Honor,” the attorney responded.

“It is our practice to use the guidelines in that manual in all our investigations.” Luden answered confidently. “But Mr. Chambers, that is only one tool in our procedure. And it's only a tool—it's not Holy Writ”—and with that she smiled.

Harriet Bender guffawed loudly.

“No, I don't suppose you would consider
anything
Holy Writ,” Will commented, “including Holy Writ itself.”

However, before the Putnam and Bender tag team could leap up with mutual objections, Will launched into his next question.

“But how about someone who
did
believe in Holy Writ—someone who is a Bible-believing, churchgoing person with strong—even ‘absolutist'—spiritual beliefs?”

“Like?” Luden inquired.

“Mary Sue Fellows. You did evaluate her in light of her religious beliefs?”

“We don't discriminate on the basis of religion, if that's what you're asking.”

“No—I'm not asking that. But isn't it a fact that, according to Risk Factor Seven in the manual, a parent who holds—and I quote—‘rigid, authoritarian religious beliefs' should be treated with a
higher
index of suspicion for child abuse?”

“Mr. Chambers,” Luden responded with a tinge of sarcasm in her voice, “I know what the manual says. It says thousands of other things too. And they don't relate to this case—just as Risk Factor Seven doesn't either.”

“It doesn't relate? Mary Sue's strong beliefs in the Bible—her ‘rigid' moral beliefs—her use of spanking as a form of discipline according to Scripture—none of those things relate to this case?”

“We decided to prosecute her and to seek custody of Joshua for his protection because of evidence she was
poisoning her child
. You don't seem interested in talking about that.”

“Oh, Ms. Luden,” Will said somberly, “we will certainly be talking a lot about that. But you seem uncomfortable with my questions about how you assessed Mary Sue's Christian beliefs.”

“I didn't assess them,” she snapped back.

Harry Putnam jumped up. “There is a limit, Your Honor,” he said in his most deferential voice, “to adversarial zeal. I can appreciate Mr. Chambers trying some kidney punches against our first witness here.” By then, Putnam was rocking on the balls of his feet like a basketball player ready to make a free throw. “But this is way out of line—he's accusing the department—a Juda County Department—of religious bigotry. Now that simply will not stand. No sir, it will not stand.”

Judge Trainer was unperturbed.

“If that was intended to be a legal objection, Mr. Putnam—and that would be a rather wild assumption on my part, because it sounded more like a Fourth of July speech—if it was, it's overruled.”

Will dug in.

“Ms. Luden, do you
deny
indicating to Julie, your intern at the Department of Social Services, that Mary Sue was ‘rigidly religious,' and that as a result she met the criteria for a ‘heightened risk of child abuse'?”

Luden's eyes narrowed. She spotted her intern in the audience section of the courtroom and glared in her direction.

Before she answered, Will added, “And we have subpoenaed Julie to testify. She is here in the courtroom. If your memory is bad, I can simply call her and have her relate what she told my investigator, Tiny Heftland.”

“That won't be necessary,” Luden said with a manufactured smile. “I may have indicated something to that effect regarding Mary Sue Fellows.”

“Thank you,” Will said and he jotted a small plus sign next to his notes.

Harriet Bender indicated she had no questions, but Joe asked to also cross-examine.

Will held his breath.

“You were saying how I said some things when I was arrested—was that said to you, or to the officers—wasn't it to the officers? And didn't I say some things also to you?”

Putnam jumped up and Bender followed, both objecting to the question being compound.

“Sustained,” Judge Trainer said and commented, “I know you are not a lawyer, Mr. Fellows—but if you insist on representing yourself, you'll be bound by the same rules as everybody else. Ask single, separate questions.”