Custody of the State (40 page)

Will pulled some papers out of his file.

“Would it refresh your memory to review the Civil Complaint filed in The Estate of T.O., A Deceased Minor Child, By His
Guardian, Versus The Delphi Family Clinic, And Dr. Ruttaluse, And Dr. Wilson?”

“I'm familiar with that lawsuit, but I need to explain…”

“The fact is that your partner, Dr. Ruttaluse, was the treating doctor for a child brought in repeatedly with bruises and injuries, who was finally killed by the live-in boyfriend of the mother. And it hit the news—and your clinic, including you as partner, were sued. Correct?”

Putnam objected wildly, but since Bender was talking and waving her arms at the same time, pointing to Will, the only words that could be deciphered in the melee were “outrageous” and “admonish.”

Judge Trainer ruled quickly and decisively.

“We are not going to rehash that Estate of T.O. case—I am well aware of it. And I am sure Dr. Wilson is too. Doctor, please answer the question.”

“Yes—a child treated by Dr. Ruttaluse was killed. It was child abuse—our clinic was sued—and I was named in that suit merely as a technicality.”

“And so you vowed that you—and your clinic—would not be involved in another debacle like that again. So you figured you would always err on the side of calling Social Services—and whenever you had the least problem with the parent of a pediatric patient, you would always just throw the ball to Social Services. Am I right?”

“I don't like the term ‘throw the ball…'”

“How about
‘throw the parent'?
You tossed Mary Sue Fellows to the Department of Social Services because of your concern over malpractice suits—and your malpractice-insurance premiums?”

“I
referred
Mary Sue Fellows over to Social Services. I don't appreciate being sued, Mr. Chambers. No doctor does. It is a sad fact that we have to practice defensive medicine occasionally.”

“You were practicing defensive medicine with Joshua, then?”

Dr. Wilson lowered his gaze toward the medical file that lay in his lap. And then he answered.

“I did what I had to do…”

“As did Mary Sue,” Will concluded.

56

T
HE FINAL WITNESS
of the day was Otis Tracher. The county called him to recount the forensic evidence that had been taken from the Fellows house.

Tracher sat down in the witness chair slowly. He rubbed his chin and then straightened up the police file on his lap.

The Juda County Sheriff's Department veteran described how, a few hours after the arrest of Joseph Fellows, the department had performed a forensic sweep of the inside of the house—and particularly the kitchen. One item of note, he indicated, was a plastic child's cup that was found near the kitchen table.

The detective recounted a statement that Joe Fellows had made immediately after being taken into custody. After Joe was read his rights, he was asked if Mary Sue was the one who always fed little Joshua.

“Joe Fellows indicated,” Tracher said, reviewing the supplemental report in front of him, “that Mary Sue always fed Joshua—and that she did indeed use the little plastic cup to give him orange juice.”

“Now, that forensic sweep of the kitchen—did it also include taking that little plastic child's cup into evidence?”

“Yes, it did.”

Harry Putnam held a plastic bag up, high enough for everyone in the courtroom to see. Inside the plastic bag there was a white plastic cup.

Then he had the detective identify the evidence bag and the cup inside.

“That is the same cup we removed from the kitchen,” Tracher confirmed.

From his table, Putnam retrieved a written report from the state forensics lab that had already been marked with an exhibit sticker. The prosecutor had his witness identify it as the report generated by the crime lab after their examination of the cup.

“What were the results of that test?” Putnam asked.

“Two substances were present on the cup.”

“What were they?”

“One was residue from a fruit-based liquid, high in acid, noted to be orange juice.”

At this point Harry Putnam walked to front and center in the courtroom. His arms were folded across his chest.

“Would you also tell the court what else the crime lab found in the cup?”

Tracher glanced down at the report. Then he looked up.

“The report also notes the presence of hydraulic brake fluid—including a component called ethylene glycol.”

“So, both orange juice—and poisonous brake fluid—both found in the same cup?”

The detective's mind seemed to be wandering. He asked for the question to be repeated.

“Orange juice—found to be in that cup?”

“Yes,” he confirmed. “I'm sorry, I was thinking of something else. Yes. Orange juice was noted in the cup.”

“As well as hydraulic brake fluid?”

“Yes. That was also found on the cup.”

Then the prosecutor lifted the plastic bag with the white cup up high again.

“Detective, did you note that this was a child's cup—a cup used by a little child, in fact a little boy?”

“Yes.”

“How did you know that?”

“Because of the markings.”

“What markings?”

“It had a picture of a little teddy bear on the outside.”

“Anything else?”

“The name ‘JOSHUA' was printed on the outside—like the way you can get a child's name put on a toy.”

“So a little teddy-bear picture and little Joshua's name are on the cup—the same cup with the hydraulic brake fluid?”

“That's correct.”

Putnam rested, and Harriet Bender had just a few questions.

“Did you take steps to ensure that you did not contaminate that cup during the forensic sweep of the kitchen?”

“We took all of the standard steps to make absolutely sure there was no contamination.”

“In other words,” Bender continued, “if Mr. Chambers here argues that maybe that brake fluid got in the cup accidentally—by you picking up some oil or brake fluid on your hands in the garage of the Fellows house and then inadvertently touching the cup—you have an answer for that?”

“Yes, Ms. Bender. I am sure we did not contaminate the cup. We put it into the plastic bag exactly the way it was when we found it.”

“And the plastic bag—the one you put it in—was it clean?”

“We use one-hundred-percent sterile evidence bags. The cup was not contaminated in any way by the law enforcement folks who went through the house.”

Bender rested by giving a kind of salute to the detective and sitting down noisily at the counsel table next to Harry Putnam.

Will thought back momentarily to his interviews with Mary Sue. She had never given him any information about how brake fluid had gotten near the cup. And Joe Fellows had said flatly that he'd intended to put brake fluid into the truck—but had never gotten around to it.

Further, there was no doubting the validity of the crime-lab report. Will had gone over it in excruciating detail while preparing for trial. He had to reconcile himself to the fact that
his client had given him nowhere to go on this line of questioning.

He glanced at Otis Tracher. The detective was certainly giving the impression he wished he were anywhere else but there. At the bench, the judge was stretching and sitting himself up straighter. One of the onlookers in the courtroom coughed.

Then Will looked down at his notes again.

He examined what he'd written down during Tracher's testimony and compared it with the questions Putnam had asked.

Then Will's head snapped down to his legal pad—this time so quickly that Bender and Putnam glanced over at him curiously.

“Are you cross-examining, Mr. Chambers?” the judge asked.

Will nodded. Then he rose to his feet with his yellow legal pad in hand.

“Mr. Putnam asked you—repeatedly—about what was
in
the cup according to the forensic report. Do you recall that?”

“Yes. He just asked me about it all.”

“And you said that the liquid identified as orange juice was
in
the cup, as determined by the crime lab?”

“That was my testimony.”

“And Mr. Putnam asked you whether the presence of hydraulic brake fluid was noted
in
the cup. Right?”

“He did ask me that.”

“But,” Will went on, “according to my notes here—you answered that the brake fluid was noted
on
the cup. Is that correct?”

Tracher glanced over at Putnam. There was fatigue—or something like it—on his face. Then he looked back at Will.

“The crime-lab report itself does not indicate precisely where the toxin—the brake fluid—was found.”

Will could have stopped there. The point was to create some doubt about the exact location of the toxin in relation to the cup. If he stopped there, it might raise a sufficient doubt so that the
judge would conclude that, somehow, the brake fluid had gotten on the cup accidentally.

But he didn't stop there. This was not a by-the-book case. He had no client sitting next to him. Instead, he had the husband of his client sitting next to him—in jail orange.

And his client had fled the state.

Will was about to ask the question. The question you're not supposed to ask—at least, not if you are an experienced trial attorney.

“Never ask a question that you don't know the answer to,”
he was told in law school.

But now he was going to do exactly that.

“Detective,” he continued. “About that last statement you made…”

Tracher's eyes were now riveted on Will.

“Do you know
where—
in reference to the cup's exterior or interior—the brake fluid was found to be present?”

“Yes—I did find that out.”

“How did you determine that?”

“When I saw that the crime lab report
did
specify that the orange juice was found
inside
the cup—but did
not
specify whether the
brake fluid
was inside or outside the cup—I went over to the crime lab myself to talk to the head of the forensics unit who did the test. And that's when he told me.”

Putnam had his hands planted down on his counsel table, elbows out, as if he were an Olympic sprinter ready to fly out of the blocks. Bender was staring, blank-faced, waiting to see if Will was going to ask the question.

There was no sound in the courtroom.

Will cleared his throat. This was it.

“Detective,” he asked, “what did the head of the crime lab tell you about where in relation to the cup the brake fluid was found?”

Chaos broke out. Putnam leaped up, and his feet actually came off the ground for a moment. Bender also tried to jump up, but in doing so she knocked her chair over.

“Don't you say a word,” Putnam yelled at Tracher. “Your Honor, we object. Hearsay. This is hearsay. This is a question that cannot be answered except by having the head of the crime lab here personally. We did not call him because we are admitting the report under the rules of evidence.”

“Then I'll call him,” Will said.

“Can't,” Putnam shouted out. “He is out of the country traveling for several weeks.”

“Then,” the judge asked, “doesn't that bring into play the exceptions to hearsay when the declarant is not available?”

“No sir—no sir, Your Honor,” Bender jumped in loudly. “None of those exceptions apply here. None. None of them.”

The judge looked at Will. But this time—perhaps for the first time during the entire Mary Sue Fellows case—he had to agree with Harriet Bender.

“I'm afraid that Ms. Bender is correct on that,” the attorney said quietly.

The judge leaned back in his chair and glanced over the courtroom—but he was looking nowhere in particular.

“However,” Will added, “there is one final consideration. The rules of evidence list numerous exceptions to hearsay. We are all familiar with them. But the rules have also created a catch-all exception. Often argued, but rarely applied. The rules talk about ‘other circumstantial guarantees of trustworthiness.' I think that means this—if we can all look at the statement that detective Tracher is about to share and know that it came from a highly reliable source, under circumstances that are virtually guaranteed to be trustworthy—then the purposes behind the hearsay rule have been met. Justice is done. The statement can be described by the detective to this court. After all, this is about justice, Your Honor. My client's fundamental right as a parent of Joshua is a hollow right if a healthy measure of justice is not applied to protect it.”