A Mother's Trial (33 page)

“Why?” Ed asked on cross-examination, finally seeing his opportunity to assail the credibility of Kaiser-San Rafael’s lab.

“We don’t have the methodology to run stool sodiums ourselves.”

“Your lab is approved by the American Society of Clinical Pathologists and you don’t have the methodology to run them?” Ed underlined.

“Objection, Your Honor. Argumentative.”

“Sustained.”

“How many requests does your lab get for stool samples?”

“It's very infrequent,” Iocco said, in contrast to Judith Kehrlein's testimony. “I’ve never seen one come down, and I talked to our supervisor and he told me that we might get one every two months.”

Caldwell jumped on this. Kaiser-San Francisco was a much larger facility than Kaiser-San Rafael.

“How many pediatric beds do you have in San Francisco?” Ed asked.

“Twenty to fifty.”

“Are patients referred to San Francisco because there is more personnel there, or better care?”

“More personnel and more specialized care.”

Satisfied, Ed sat down.

Mary Vetter was called and testified to the adoptions of Tia and Mindy Phillips. The Phillipses had applied to readopt another child thirty-three days after the death of Tia she testified.

On cross-examination, Ed asked Miss Vetter why the Phillipses wanted to readopt.

“They loved Tia dearly and felt she would want them to do so. They said they wanted to care for another child in need,” she said.

At recess, out of the presence of the jury, a motion was made asking that the records of Dr. Alice Eaton be examined and altered. Dr. Eaton was Mindy Phillips’s current physician and Josh Thomas was planning to call her to the stand.

“Miss Vetter wants Mindy’s new name and the names of her new parents to be blacked out before you turn the records over to the defense,” the judge said.

“No problem, Your Honor,” Josh said. He had tracked down Dr. Eaton through Catholic Social Service, and after interviewing her, had decided to call her as a witness, even though her testimony might prove damaging. It would be better if Eaton were his witness rather than Caldwell’s, he reasoned, despite what she had to say.

The in-chambers session had been convened to deal with a second issue as well: the admissibility of the tape recording Ted Lindquist had made of the telephone call between himself and the Phillipses. The prosecution planned to put Lindquist on the stand and play the recording the following day. But the defense hoped to suppress the phone call because Ed Caldwell felt the prosecution was taking the position that it constituted an admission by Priscilla Phillips.

“I think the court should ban the tape in any event,” Caldwell argued. “If the court listens to the tape and does find it to be an admission, then he should ban it. And if it is not an admission, he should ban it because it was not voluntary.”

“Certainly it was freely given! She didn’t have to talk to Lindquist,” Josh replied.

“She only did it in an effort to exonerate herself, and she had no idea she was being taped. She never gave her permission for that.”

“Your Honor, as to that, I cite P.C. section six thirty-three, I believe it is, which prohibits an individual from taping another individual without consent, but which makes an exception with a law officer taping pursuant to an investigation.”

The lawyers argued about what constituted an admission until tempers were frayed.

“There is no jury here, Mr. Caldwell,” Josh reminded his adversary tightly.

“I’m going to put it on the record, Counsel. It’s improper for you to indicate that the evidence should be admissible because the defendant doesn’t want the evidence in. That’s an improper argument and you’re supposed to be a prosecutor and law officer for the People.”

“Judge, do we have to listen—”

“I’m sorry, I’m tired of listening to you,” Caldwell retorted angrily.

“Just a minute,” interrupted the judge. “I’ll read the transcription of the phone call overnight and see you in the morning.”

“Your Honor, I’d appreciate it if you’d hear the statement instead, because part of my objection hinges on Mrs. Phillips’s tone of voice. She was very emotional and distraught and her mind was very scattered,” said Caldwell.

“Very well. I will hear it here tomorrow morning at eight-thirty. I will see you then.”

“Thank you, Your Honor,” Caldwell said.

The following morning the judge heard the tape with both attorneys present, and subsequently Ed Caldwell changed his mind, withdrawing his objection to its presentation to the jury.

“After listening to the tape this time, we don’t believe it presents a problem. We heard it originally at a different level and Mrs. Phillips sounded hysterical,” Ed remarked.

“Your Honor, we will play the tape later today. We have some other witnesses to call first.”

“Very well, Mr. Thomas.”

ii

From the beginning, it was clear that Dr. Alice Eaton regarded the courtroom proceedings with disdain. The more determined Josh became in his questioning, the more flippant the response from the witness. The fiery doctor, a slender attractive woman in her fifties, began by reciting Mindy Phillips’s history while under her care. Mindy had suffered many problems, she said, beginning with a severe febrile convulsion a few days after her adoption. Dr. Eaton had prescribed daily doses of Phenobarbital for that problem. Loose stools had been reported early last August—a week after the convulsion—but a stool culture for bacteria and worms proved negative. Mindy had exhibited an apparent neurological problem evidenced by a wobbly ataxic gait, and because of cyanosis reported by the new adoptive mother, she was worked up at the cardiac clinic at Oakland’s Children’s Hospital, with negative results. No cause had yet been found for the cyanosis. Mindy had several upper respiratory infections in November that Dr. Eaton had treated with penicillin. Some loose stools had also been reported.

“Did you ever put Mindy in the hospital for any episodes of vomiting or diarrhea?” Josh asked.

“No. We always got by without it. I’m not a hospital pediatrician at all—I don’t like it at all. It isn’t my cup of tea to go into a hospital with a child.”

“Can you recall the number of times that you received reports either from the mother or from Mindy’s school that Mindy was having loose stools?”

“Well, they sent her home from school once. I didn’t tell you that last night,” she said directly to Josh. “Because she had become such a pain in the neck to them. They refused to change her diapers anymore.”

“I see.”

“So they were calling on me as the good honest pediatrician to do something about it. There were frequent calls. I suppose I did more work on this child by telephone than I ever did in the office. It was two or three times a week that we worked on this problem.”

Josh Thomas shook his head in annoyance at the witness’s tendency to elaborate and stray from the point. “Now I’d like you to pay attention to the question that I’m going to ask you,” he said sternly. “Do you have a recollection how many times between July of 1978 and November of 1978 you received reports of loose stools?”

“Well, you asked me not to conjecture last night, so I can’t. I don’t know how many times I’ve had this sort of thing. They’re—”

“Do you have a recollection or not?” Josh interrupted angrily.

“Only one sincere recollection. As I described to you, that episode was a real blast. I don’t know whether you want me to discuss that!” She shuddered in remembrance.

“Yes. Did you examine Mindy at that time or did you receive a report from her mother? Tell us all about it,” Josh retorted, his hands out in a gesture of supplication.

“I received a report from her mother. It was a very cold night and I didn’t want to go out. And I take Mindy’s mother very seriously because she’s a well-trained mother. She probably has the acumen of a well-trained nurse on the subject. She has raised two other kids and one of them has been somewhat of a problem.

“Anyway, the mother reported that Mindy had diarrhea all day and part of the previous day, would not take liquid by mouth, and had vomited. I thought we might have to hospitalize her but decided to wait and see if the mother couldn’t get some fluid into her.”

“Did you ever go to the house?”

 “No, I kept in touch by phone.”

“Did the mother indicate that Mindy was dehydrated and lethargic?”

“Lethargic is not a characteristic of Mindy, I assure you. She’s not a lethargic kid.”

“Does she have somewhat of a temper?”

“Does she! That’s one of the big problems. You don’t want me to discuss
that?”

“Yes, I do. Go ahead.”

“She started having enormous temper tantrums. I deduced that she had been wrapped up in cotton wool and had had everything going her way, and then she had found herself in a home with two other children and a mother and father who were pretty down-to-earth and were expecting certain things from that little kid. She even hit her head so hard, they had her wear a helmet part of the time.”

“Does she wear it now?”

“I think so. I’m still refilling a prescription for Atarax for the child so the parents can sleep.”

“Did you ask the mother to keep a running account of Mindy’s episodes between February second and March first of this year?”

“Yes. We were trying to work out a logical approach to these temper tantrums and behavior problems. The mother wrote a beautiful running account.”

“Would you read that to us, please?”

“Yes, well,” she stopped to search through her records. Finding her copy, Dr. Eaton began to read:

“‘Saturday—woke up reciting vocabulary. Color: purple lips, hands, feet to knees. Walking normally ataxic. After nap, runny nose. Temperament vile.’

“‘Sunday—had screamed intermittently until about two-thirty this morning. Color: normal. It goes on like this. On the tenth: ‘diarrhea started about midnight. Very liquid. On the eleventh: ‘color and temperature normal but didn’t want to be touched or open her eyes. Slept for another hour. Seems in a stupor. Lays on floor. In afternoon, seems back to normal. Diarrhea gone but back at five P.M.’”

Dr. Eaton read on. Further entries in the diary chronicled crankiness, cyanosis followed by normal color; nighttime wakings, doses of Atarax, and ataxic—or unbalanced—walking. There were more upper respiratory infections.

Suddenly, Josh interrupted the witness with a question about her medical education.

“I went to medical school at the University of Texas. I don’t know how I got here, I really don’t,” she answered into an explosion of laughter in the courtroom.

“I think we kind of gather that,” Josh retorted quickly.

It was time for the morning recess and Josh Thomas badly needed the break. “The woman is infuriating,” he said to Ted.

“I wonder what Caldwell will do with her?”

If Caldwell had hoped to fare better with Dr. Eaton, he was soon disabused of the notion. He began his examination by asking if Ted Lindquist had seized the doctor’s records.

“No.”

Caldwell tried another tactic. It, too, was a dead end. “Did the district attorney ask you not to discuss in detail the episodes of diarrhea?”

“No.”

“Can you tell me about the adoptive parents’ other child?”

“Well, Joey comes from Vietnam, and he was hospitalized at Mount Zion in San Francisco for several months with severe gastrointestinal problems. He came home, developed Salmonella, and had diarrhea pretty constantly. The mother was well trained in the use of Pedialyte.”

“Is that the reason why you didn’t hospitalize Mindy when she had this chronic diarrhea?” Caldwell asked, setting up the witness for an obvious helpful answer. But she played no favorites.

“I explained that to Mr. Thomas. I don’t hospitalize patients,” she answered, frowning.

“Now about Mindy’s cyanosis. It’s your opinion that it is not caused by anything she ingested?”

“I don’t think it could possibly be.”

“You know Mindy has been diagnosed as having CMV?”

“Yes.”

“Has she also been diagnosed as having cerebral palsy?”

“That’s tentative.”

“She has had seizures—the father called July twenty-fourth to report one. Have there been occasional convulsions since?”

“Not that I know of. We took her off Phenobarbital.”

“Has Mindy had any stool sodium tests done, Dr. Eaton?”

“Heavens, no!”

“Is there any particular reason for that? Have you as a pediatrician ever run or requested a stool sodium?”

“No, never. I don’t know of any value that would have. We have much better ways of determining body sodiums. As far as I know, I think—well, I’m not going to conjecture.”

“You can testify as to something based on your experience, education, and training, Dr. Eaton,” said Caldwell, his voice raised just a bit.

“As far as I know it’s a pretty variable test and difficult to evaluate. The lab technicians don’t run them often enough to be that accurate with them anyway.”

“Now, what about other infections? She’s had periodic infections, what looks like almost periodic temperatures and so forth, and an ear infection—otitis media?”

“Yes.”

“Any other infections?”

“Oh, nothing. I don’t think so. I don’t have them all down. The mother is so proficient, she wouldn’t tell me about them all.”

“Well, how many infections has she had since last July?”

“Numerically, that would be hard to comment on. You told not to conjecture. She’s a problem in my practice.”

“Dr. Eaton, if you were describing Mindy’s condition to a fellow doctor, is it fair to state that Mindy has a continuing virus problem, for example?” Ed asked.

“I don’t think so.”

“Is it something that comes and goes?” Ed tried again.

“It’s the usual pattern in this age group. Between nine and twenty-four months of age, children have reduced immunological levels. They get lots of bacterial and viral illnesses. This is well-documented.”

On redirect, Josh asked Dr. Eaton again about Mindy’s behavioral problems.

“Can diarrhea be emotional in nature?”

“I doubt it. Though it could have an effect. It’s more common to have constipation in that age group. We call it the unlove syndrome.”