Gideon - 02 - Probable Cause (15 page)

Andy should never have asked him to get involved in the first place.

It comes out that Leon had become quite attached to Pam.

When she was in restraints, which was most of the time, he fed her, talked to her, even brought his jam box to work to entertain her. None of this is relevant, but it occurs to me that he has insisted that he be allowed to say this before he testifies about how she died. Despite Bruton’s look of impatience (what does this boy’s feelings have to do with the case?), Jill lets him run.

“I went to her funeral,” he says, finally winding down.

“If I had known how bad it was gonna hurt, I would of realized how hard she was gonna try to get away.”

I could be objecting to this, but I want Leon to commit himself to the best memory of Pam he can muster. At the trial I want a jury to see that Pam meant a great deal to the people who worked with her. This wasn’t an experiment on a mannequin. Pam was real, somebody to help if you could.

And you didn’t have to be her mother to think that way.

Finally, he gets to the actual event, which, because of the emotion in his voice, brings me and Andy, I notice, to the edge of our seats. Dr. Chapman told him to take Pam into the treatment room with the one-way mirror. He didn’t even see Yettie Lindsey, the social worker, or Mrs. Le Master until all hell broke loose. He talked to Pam until Dr. Chapman got there and then Dr. Chapman told him to remove her restraints, which he did. His face balled into a frown, he says, “She started hittin’ herself on the side of her face just like I knew she would.”

Leon pauses as if he is trying to get control over himself, but he does not quite manage to do so and speaks now in a scratchy, hoarse tone.

“He told me he was going to shock Pam with this electric rod he had, and it would make her quit hittin’ herself. So when we got in there he said to hold on to her hands so she wouldn’t get free. When he touched her with the prod, it was like she had been struck by lightning she bucked so hard. She just went wild and pulled out of my hands, and that’s when she grabbed the prod. She fell down after that and he hollered for me to go call 911 and get an ambulance. I did, and when I come back Pam was dead.”

He surprises us all by bursting into tears. Astonishingly, this kid, doubtless a redneck, cares deeply about Pam. Jill offers him a tissue, and he takes it and wipes his eyes.

Before he sits down, Jill gets him to identify the cattle prod that killed Pam. It is an ugly thing, much longer than I imagined, probably about three feet in length. I assume it is that length because an animal, either out of pain or rage, would be in a position at close range to take the arm off its tormenter. I notice the black insulation tape that was sup posed to keep this accident from happening and realize that if it had been me, I wouldn’t have trusted myself to know how much tape was sufficient.

Jill turns to me and says blandly, “Your witness.”

As I get up, I introduce myself to him. He rolls his eyes back up in his head as if he has seen his share of lawyers.

During a short conversation on Friday over the telephone, he went into a bit more detail. I had wanted to talk with him in person, but he claimed to be much too busy to visit with me.

I decide not to do too much with him, since I run the risk of reinforcing his testimony.

Grudgingly, Leon admits that Andy had explained to him the night before that Pam would try to pull away.

“I didn’t know she’d go crazy though like she did,” he insists.

“It was like she had superhuman strength all of a sudden,” he exaggerates Knowing I will have another crack at him, I ask him a few more questions to get him to admit that Andy had taken some pains to explain to him what he was trying to accomplish and let him sit down.

Jill wastes no time in calling the doctor who pronounced Pam dead. Dr. Travis Beavers, a GP who was doing an emergency-room stint at St. Thomas, licks his lips and testifies verbatim from the statement he gave to Jill that the cause of death was due to “an apparent fibrillation of the heart secondary to a reported electric shock.”

Dr. Beavers, baby-faced and nervous, can be jumped on with both feet. There was no autopsy report, and her heart had stopped beating by the time he saw her, so for all he knows Pam might have been poisoned. I would just as soon not have the testimony frozen in stone at this point and so I do not object to what is obvious hearsay. Common sense suggests that it was the shock that caused her death, but there is no formal proof. There isn’t much to work with, but it might give a stubborn juror something to chew on in the jury room when the time comes.

When Dr. Warren Holditch takes the stand and begins to speak, I forgo trying to make my usual gibberish of notes (we can obtain the transcript), and sit back and watch so I can try to figure out how to crossexamine him when the real shooting starts. A small, wiry man who looks like a runner, Holditch has none of the polish of the professional witness, which is probably in his favor. As he establishes his credentials, he stumbles over words as if English is a second language. He is nervous, but this is practice for him, too. He says he is from “Pine Buff” for “Pine Bluff” and I hear someone titter behind me. If he can’t even get his hometown right, we’re going to be here for a while. I find myself itching to get at him, even though I know it would be counterproductive as well as futile.

However, once Jill gets him into the substance of his testimony, Holditch’s voice gradually takes on an authoritative tone. Working up a head of steam, he begins to tattoo Andy.

There is a view among some psychologists, he says, that extreme punishment of the develop mentally disabled for treatment purposes, as was used here, is unjustifiable be cause decisions are made for the retarded that we would never make for ourselves. For example, tobacco kills thousands yearly in this country, but Holditch testifies he knows of no treatment in which an adult has consented to be shocked in order to stop smoking. As he talks, he looks directly at Andy as if he is the cross his profession has to bear. If shock can ever be justified (and in his view, it cannot because of its dangerousness and severity), there have to be safeguards that were not present in this case. Now Holditch turns his head and begins speaking directly to Bruton, who has been eyeing the courtroom suspiciously, as if he were afraid that we had conspired to set off some racial incident. Holditch’s voice, small and shy when he began, fairly booms off the walls. He says that it is elementary that aversive procedures, especially shock, not be tried on a retarded person until a psychologist demonstrates that he or she has tried less aversive techniques or has conducted a review of the literature and found that a particular procedure would be futile.

As he speaks, Andy leans over and whispers, his voice angry “We don’t have the staff to try what he’s going to suggest, and he knows it.” He adds, his voice rising, “He knows those procedures don’t work with people like Pam.”

Holditch begins to feel comfortable enough to slouch slightly in the chair as he talks.

“In a perfect world, there would be no need for punishment. Rewards would be enough, and certainly it is often easy to increase appropriate behavior by devising a program of reinforcing activities. I hate to slip into jargon here, but to use correct terminology, one of the most obvious but effective ways to work with retarded per sons is a DRI procedure. DRI stands for differential reinforcement of incompatible behavior. It simply means that you reinforce a behavior you select for the person to engage in which is physically incompatible with the behavior you want stopped. For example, a teacher takes a child who is banging herself on the head with her fist and gets that child to work at a task using her hands.”

Andy pushes his chair against mine and whispers, “When a child bangs her head a hundred times an hour, think of the staff ratio you would need even if it worked completely with these kinds of cases, which it doesn’t. Do you think Arkansas would pay for that?”

Dr. Holditch, now that he has the attention of the judge, turns his head back toward Andy as if he is lecturing a way ward student.

“However, my opinion is that in order to de crease or eliminate certain behaviors, it is sometimes necessary to use punishment as a procedure. But the principle of least restrictive treatment dictates that you try the least aversive techniques first. If you want a cite of the professional literature, see Dr. Richard Foxx’s basic training manual entitled Decreasing Behaviors of Severely Retarded and Autistic Persons.”

Bruton acts as if he is Holditch’s favorite pupil and begins to take notes. I can barely refrain from snorting out loud.

With his reputation for shooting from the hip, Bruton probably hasn’t written anything except his name on a paycheck in the last twenty years. Holditch dips his head slightly as if to indicate he approves of the judge’s willingness to do some thing besides sit there and pretend he is listening. Of course, Bruton could be writing himself a note to remind himself what time Geraldo Rivera comes on. Holditch continues, “Now, it should be mentioned there is a school of thought that says aversive techniques of behavior modification are unnecessary in addition to being immoral.” Holditch pauses and wrinkles his nose before disagreeing.

“Some educators hold to the idea that you can replace a destructive behavior with a skill without having to first eliminate the destructive behavior, but, quite frankly, in some real difficult cases, I think this is simply pie-in-the-sky rhetoric. As I said, in an ideal world there would be no techniques that we call punishment used to decrease unwanted behaviors,” he continues, “but we aren’t there yet for serious self-injurious behaviors—at least I’m not aware that we are in Arkansas.”

I look at the satisfied expression on Jill’s angular face and realize that she has slashed the odds against making her case.

By going with a conventional psychologist who condones aversive techniques of behavior management (albeit allegedly in a judicious manner) she has slipped from my hand a weapon I would have been happy to use against her. So far as I can tell from the admittedly limited research I have been able to do in the last three days, the case for strictly non aversive means to eliminate self-injurious behavior is a matter of much debate. By not turning this case into a propaganda film in which outside experts will be trooped into the state to show our backwardness, she has strengthened her hand immeasurably. I realize now that my friend Amy exaggerated Jill’s zeal to reform the system. Jill will be content to show that Andy hasn’t met the professional standards for psychologists in Arkansas, a much easier task, since it is clear that he ignored the hell out of the usual protocol.

Jill takes Holditch through Pam’s records. It is appalling how little had been done for her since she began to hurt herself when she was twelve. As Holditch drones on about the restraints and the drugs that had been an inseparable part of Pam’s adolescent years, Andy writes on the legal pad and shoves it at me: “The turnover and vacancies on the staff makes it impossible to do anything but keep kids like Pam in restraints or on drugs.”

Holditch says that one of “Dr. Chapman’s” major errors was the failure to obtain the approval of a “human rights committee,” standard procedure in institutions before highly aversive techniques are tried with a retarded individual. Andy whispers loudly that it was “moribund” at the Blackwell County HDC and hadn’t met in months. I make a note to work on somehow minimizing this. It seems it would have been a simple matter to arrange to have his ass covered by a group. Holditch says there is no indication from his review of the records that any committee was consulted.

Jill runs Holditch through a number of recognized behavior-modification programs that he says Andy should have tried before shock: “Extinction,” which, according to him, simply means ignoring the behavior (Holditch concedes this would have been dangerous, given the fact that as soon as she came out of the restraints Pam began to hit herself);

“Timeout,” which would have placed Pam in a room by herself with a one-way mirror for a few minutes at most;

“Overcorrection,” a procedure in which the teacher or trainer may actually guide with his hands the offender’s body in movements that “overcorrect” the maladaptive behavior (Holditch explains, as the judge scratches his head, that, as an example, when Pam began to hit herself, she would have been required to fill a bag with ice and hold it against her head). Finally, he says that forms of punishment other than shock should have been tried first. For example, Pam could have been required to do exercises each time she hit herself.

Andy shakes his head as if Holditch has suggested aspirin to cure cancer, but this seems like such common sense I make a note to ask him about it later.

Jill, who has been appropriately unobtrusive in her questioning on direct examination, asks Holditch about the use of a cattle prod, and it is the introduction of this subject that at a jury trial will do the most damage. Average Arkansans may be skeptical of all the psychological mumbo jumbo but talk about electrocution will wake them up, no matter how bored or confused they have become. Bruton thrusts his chin forward as if now we are getting to an area he can under stand.

“If shock can ever be said to be appropriate as a method of behavior control, and it is still used by some professionals, according to the literature,” Holditch says, tapping his fingers together prissily, ‘one thing is for certain: using a cattle prod to administer the electric current never is. Anyone who familiarizes himself with the literature knows that.”

Again, I feel Andy’s breath on my right ear.

“The man who pioneered the use of shock in this area used a cattle prod.”

But would he use one today? I wonder, as I listen to Hoiditch name a number of commercial products that have been specifically designed for use on humans.

“As far back as 1975, an article was published in the journal Behavior Therapy warning against the use of cattle prods. In fact, my research shows that the hand-held shock apparatus is probably rare today. Remote-control devices are more widely used because they don’t have the generalization problems that are encountered with hand-held products.”