Doc: The Rape of the Town of Lovell (54 page)

In folksy tones, he agreed with Tharp; "you can't have it both ways. And I agree with him that either one side is telling the truth or the other side is."

He also agreed with the prosecutor about pity. "Mr. Tharp has asked that you not apply sympathy for Dr. Story into your consideration. We echo those sentiments. Dr. Story does not want your sympathy. He does not want your pity. He wants truth, because that is what is going to set him free."

The blond lawyer made a few eyes blink by admitting that his client was guilty—he paused for a few seconds—"guilty of practicing nineteenth-century medicine in the twentieth century. . . . His sin is failure to practice medicine with a law book in his pocket. He trusted his patients."

He called Story "patient-oriented to a fault." The women who'd had nine or ten pelvic exams, he said, had also had a total of anywhere from sixty to a hundred visits for "serious pelvic abdominal problems, longstanding." He warned against equating pelvic exams with guilt. "The only evidence that was presented in this stand was from Dr. Buster that testified that every single one of those pelvic examinations was justified."

He mentioned the "great disparity" in the complainants' descriptions of the exams. "In some cases ... he, without advance warning and knowledge and while they were unsuspecting, inserted his penis in their vaginas. In other instances he seems not to care if they know or don't know. I mean he walks away and steps out alongside the examination table, pokes them in the breasts, allegedly—in one situation just standing for a minute or two—and exposes himself and then goes back in and incredibly enough reinserts his penis in a lady's vagina. Where is the consistency in that type of an M.O?"

The jurors seemed to pay close attention as he alluded to a conspiracy defense. "Somebody either wants Dr. Story out of Lovell or wants him out of practice, but is out to get him. . . . Isn't Dr. Story, his family—aren't they victims if this whole thing is a hoax? Isn't he a victim? You can't just take and blindly accept and credit the testimony of those witnesses. . . . For a fleeting second, for a fleeting moment, they saw something that was flesh colored, this size, that size, whatever size. . . . That's what they saw. The rest, they offer up conclusions."

He took issue with Tharp's description of the three-pronged defense. "There are a lot of activities and actions and motions that are capable of being misconstrued in the course of pelvic exams, ins and outs and twists and arounds. We don't offer up a whole bunch of defenses to try to confuse anybody. Basically we only offer up one defense, and since I have been challenged to tell you what it is, I will.
He didn't do it!"'

A hum of agreement arose from the right side of the courtroom, and Aarestad waited for silence. Then he spoke of the jury's right to reject the total testimony of witnesses who lied on any point. He took issue with Terry Tharp's description of Story as evasive, but generously added, "Maybe he saw something I didn't see."

He reminded the jury that the state, in the county attorney's opening statement, had promised to call nurses, secretaries and receptionists who'd worked for Dr. Story, but instead "they offer you up Diana Harrison, a receptionist . . . and Caroline Shotwell, a non-medical-trained person who worked for him a couple of months more than a decade ago, whose daughter is one of the complainants. And they say these are our nurses, our secretaries and our receptionists. And I think you ought to hold them to that promise.
We
offered up the secretaries, receptionists and the nurses. And we didn't have to—the burden is not ours." He said the defense had presented "ten years of unbroken chain of testimony as to the consistency of his practice, his protocol, his procedures and everything."

Although he'd already talked five minutes longer than Tharp, Aarestad seemed to be holding the attention of the jury and the audience on both sides of the aisle. Reporters strained for usable quotes as he said, "What they would have you believe is that he walks into an examination room and sometime between when he hits that door and he hits between the legs, he has got this lust-obsessed act that he wants to perform on a patient. I don't think you can be that weird, that strange, and not have somebody notice it. Yet all the character evidence and testimony that came before this body was that he is a religious, devout, Christian believer. He has never had any problems in the past . . . none whatsoever."

He turned lightly sarcastic. "That's why I say he is an accomplished, successful deviate, because he fooled not only a wife of thirty-two years who works side by side with him in his office . . . but he also fooled his employees . . . the entire nursing staff at the North Big Horn County Hospital, director of personnel, hospital administrator, patients, and all the people that we put on that stand. And he fooled the public! I mean, this man is a genius if he can get by with that."

His deep voice became serious. "Every segment of society that he dealt with came in and delivered accolades of morality and truthfulness and the honorableness and the gentleness of this kind man. And offset with that, you have got these obscenities that the State offers up as to what went on in those examination rooms. That's why I say you can't have it both ways. You have got to find that this Dr. Story is demented in an unfathomable dimension in order to bring guilty verdicts through these bizarre allegations."

Tharp called out, "Your Honor, I am going to object to this line of argument. That's not part of the case."

"I believe that i9 correct, Counsel," the judge agreed.

Tharp said, "He is stating they have to find him demented."

Aarestad made a smooth retreat by reminding the jury that they could disregard his arguments if they were "inappropriate." Then he began his own victim-by-victim rundown, this time refuting each charge. He subtly discounted the state's expert witness. "Dr. Flory apparently had been in practice since he graduated in 1981. He apparently doesn't take very long on his pelvic exams. It doesn't seem to make much difference whether the women are subject to a particular physical problem or not, in respect to time. Weight doesn't seem to make any difference. Weigh that against the testimony of Dr. Buster, Dr. Wrung and Dr. Story. . . . Dr. Flory limits his practice to obstetrics and gynecology. He is not Board-certified but apparently it is an interest of his and he just

limits his practice to it. .
. . He tried it with his
wife. I elected not to cross-examine him on that and I apologize for that, but I don't think that is terribly probative. At least he said it was difficult."

The defense lawyer walked over to a blackboard, smiled and said, "Now I'm gonna draw some pictures that if I caught my kids drawing, it would be a quick trip to the woodhouse." He sketched in an examination table and a patient in the lithotomy position, and pointed out that any sexual union would have to be "a long-range assault."

"The natural inclination of a woman's vaginal tract in this position is fifteen to thirty degrees in a downward area. ... If you don't recall the testimony, at least rely then on some common sense and your own knowledge of the male anatomy that says that an erect penis points upwards, not down. Now when you weigh these two angles . . . what you will see is that they are ninety degrees off. So not only does this penis need to be rather lengthy . . . but it also has to have the capability of being converted from this angle to that angle. You would have to have some type of a U-joint or something like that in there to transfer that motion.
It is absurd."

And anyway, he said, sex isn't merely physical. "There is a mental component to an act of sexual intercourse, [but] where is the evidence of arousal? . . . Dr. Story is filling out the charts or doing some other medical procedure or working with the speculum, and almost coincidentally and at the same time with this act of lust-obsessed rape. How reasonable is that? ... It is almost as if this male organ has a mind of its own. . . . It is as if it has the capability to almost strike at anytime, any place and anywhere, up here, down there, in the trousers here, out of the trousers here. . . ."

He brought Tharp to his feet again by saying, "Not one of these women caused him to fail in the sense of kicking him away or—"

"I object to that," the prosecutor called out. "That is a misstatement of the testimony."

"Well," Aarestad said, "I don't believe anybody did kick him away."

"Nobody kicked him away," Tharp said, "but there was testimony that they tried to get away from him."

Judge Hartman said, "I believe Mr. Tharp is correct, Mr. Aarestad."

This time, the defense attorney refused to back down, and the judge allowed him to continue along the same lines. "There is nc testimony that any of them ran out into the hallway or anterooms . . . Their reactions, as we have indicated, are remarkably similai —paralyzed with fear—went outside of the hallway. Several fee; away are employees, perhaps a wife, patients. It isn't the situatior where you are five miles out of town in a pickup or car, alone with an assailant with a weapon. . . . There wasn't even any threatening language."

The essence of rape, he noted, is "outrage," and yet one of th< women "stops at the front desk and pays a bill. Some come back, continue to use him as their physician." At the time of the incidents, they didn't trust the legal environment "because who would believe them . . . [and yet] years later they all seem to not havt that problem anymore, and now they trust the legal environment. It miraculously disappeared in each one of their cases. It will help explain why they are here. In that respect, their numbers defeal them."

He apologized for digressing and suggested that it might be time to break for lunch. It was five to twelve. The judge recessed the proceedings till one thirty.

The Nebels were exultant. "Did you see the jurors' faces?" Rex asked his wife during the break.

"It was like a great sermon," Cheri said. "Spellbinding." They agreed that Dr. Story had been wise to insist on a Christian lawyer.

"Wayne was so slow and deliberate," Rex said. "He came across as a nice guy trying to help out. It was a clinic on public speaking."

They agreed that Terry Tharp had been knocked from the box.

Meg McArthur Anderson still felt anxious after her sixteen-mile round trip to Greybull for lunch. The outside temperature was in the mid-seventies, and the courthouse air was warm and thick from body heat. Everything seemed so overpowering—the gloomy chamber in its dark wood tones, the judge in black, the defendant

looking so eerie and detached, the blond lawyer smiling and trying to portray his client as another Jonas Salk.

All morning long, Meg had worried about the spectators on the right side of the aisle. The Story people stared, wisecracked, groaned when they heard testimony they didn't like. Several had giggled when the lawyer sarcastically referred to Story as "an accomplished, successful deviate." Meg didn't think it was funny. It was the tragic truth.

She walked into the courtroom after lunch and found that Molly Pratt and other Story supporters had deliberately moved into the leftside seats where she'd been sitting with her mother and Pat Wiseman, Dorothy Brinkerhoff" and Terri Timmons. She didn't know how to react to the territorial intrusion. Was it a deliberate challenge or a mistake? Molly was a lawman's wife, a former schoolmate, and once a good customer of the Kids Are Special shop. During a recess she'd been heard to joke about shoving Judi Cashel down the stairs.

My lands, Meg said to herself, these people scare me spitless.

As she took a seat next to Molly and the other supporters, she heard. "Oh, my Gawdddddd?" . . . "Lookee who's here!" . . . "Can you believe the
nerveT'
The voices were just audible.

She thought, I'm not gonna move. I have a little bit of pride.

Her mother and the others walked in a few minutes later and she joined them in the next row.

"For the record," the judge announced, "the Court notes the presence of the entire jury in the jury box. Mr. Aarestad, you may continue."

The lawyer returned to the witness-by-witness refutations that he'd interrupted before, but now his pace was markedly faster. ". . . And I would like to just quickly take you through that commencing with Terri Timmons who we have already briefly looked at. She claims that she was raped on April 17, 1968. Again, the chart shows no pelvic exam for that day. She said she had a pelvic exam for 1968. As a matter of fact, you will find one pelvic exam June 5, 1970. It says RV. It is a rectal-vaginal exam. . . ."

He quickly switched to Aletha Durtsche, then to Emma Lu

Meeks. "She tells nobody, according to her testimony, until all of this comes out. Then she tells her good friend and neighbor, Julia Bradbury, who both of them state that they do everything together. And I think that when we take a look at both of them coming forward in this situation and testifying to the commonality of a sexual assault, they give new meaning to the word 'together' . . ."

He flicked a glance at his watch and turned to the subject of Hayla Farwell. Dr. Story looked bored. His supporters frowned and whispered. The judge studied the ceiling. The lawyer's words flew around the courtroom but seemed to land nowhere: ". . . She doesn't know if it is circumcised or uncircumcised, how long it is. She sees no pubic hairs. Doesn't recall seeing any underwear. . . ." After the ecclesiastical cadences of the morning, he'd seemingly turned to fragments. No one could understand.

He turned quickly to the desirability of the victims as sex partners. Emma McNeil, he insisted, had been hospitalized for VD. "You have to ask yourself how reasonable or likely it is that a rapist is going to pick as his target somebody with a communicable disease. . . . Again, she is a rather large lady. . . ."