A Mother's Trial (27 page)

“We’ve got to organize these records into something understandable—and into something we can present vividly in court,” she said. And after weeks of effort, she had succeeded. The charts she had brought to court were simple yet complete.

Ted did not know Kit Mitchell well. Only thirty-one, she was one of the youngest members of the district attorney’s staff. She was the juvenile court deputy, and because of that many cops went to her with matters that involved juveniles as victims, even though her responsibility was to handle juvenile offender cases.

Although she had been one of the district attorneys opposed to issuing an arrest warrant for Priscilla, once they had made the arrest, Kit Mitchell had worked on nothing else. Ted was impressed with both her stamina and her intelligence. She had the credentials—he knew that from the Berkeley Phi Beta Kappa certificate framed on her wall, and her Hastings College of Law diploma; but what counted more for Ted was the way she applied her mind.

“You know, math and science were never my strong points,” she confided one evening to Ted as they pored over the medical records. “But I’m going to master this stuff if it kills me. It’s the key to the case.” And she had attacked that data, studying until she understood it.

Last Tuesday there had been a special session of the preliminary to accommodate body fluid physiologist Dr. Malcolm Holliday, who was leaving the following day for a seven-month sabbatical in England and who would not be available to testify at the regular preliminary the following week. And now, seven days later, the preliminary was to resume.

Ted had done what he could: everything now depended on Kathryn Mitchell. In a preliminary hearing, it was the duty of the prosecution to convince the judge that there was reasonable suspicion to believe both that a crime had been committed and that the defendant was responsible. The defense did not have to put on a case and Ted was aware it was very unlikely that one would be offered here, as Garety would not want to tip his hand about the direction of the defense before the actual trial.

Ted looked over at Priscilla Phillips. She was sitting calmly next to her attorney, a yellow legal pad in front of her. During the examination of Dr. Holliday the week before, she had taken copious notes, many of which she had passed to Garety. Sometimes Ted had caught a half-smile on her face.

“You know,” Kit had remarked, “she seems almost jolly.”

“Almost as though it was happening to someone else,” he answered. “She’ll catch on soon enough.”

10

Roger Garety had been frank with Steve and Priscilla this morning, the last day of a preliminary hearing that had stretched—interminably, it seemed to Steve—eleven days.

“You will almost certainly be bound over for trial,” he said to Priscilla. “As Judge Thomas indicated yesterday, today’s session is designed to give the attorneys an opportunity to make statements about what the evidence showed, and also about what you should be charged with: first degree, second degree, manslaughter, and so forth. If we can get the charge reduced, that will be a major accomplishment, and about the best to be hoped for at this juncture.”

Steve nodded. It had been obvious from early in the proceedings that the prosecution had prepared a very strong case. But as Pris had said over and over to Garety, much of the evidence was slanted and biased and inaccurate. Still some of the medical evidence in particular had given him a jolt, especially the testimony of Dr. Martin Blinder.

Despite Roger Garety’s efforts to keep the psychiatrist off the stand, Judge Thomas had allowed him to testify. And he had damned Priscilla. Although he had not examined her—at Garety’s insistence—on the stand, Blinder talked at length about Munchausen Syndrome by Proxy. The guy was careful, Steve had to admit. He confessed that he couldn’t say Pris had the syndrome, but he sure as hell implied that she did. He described in detail the attention that sufferers of the syndrome hoped to attract from medical personnel. This obsessive desire caused them to hurt their children, he said. It was all ridiculous, Steve believed. Still, the judge had probably bought it: there only needed to be reasonable suspicion in a preliminary, not the proof beyond a reasonable doubt required at the trial level.

It looked like the best that could be hoped was that the charge against Pris would be reduced to second degree or manslaughter. Then some of the pressure would be taken off the trial itself. There would still be plenty of tension to go around. Financial pressures—despite the defense fund—were already beginning to hem them in. Priscilla’s income had stopped dead in April. She had not been officially fired, but Steve knew that if she was bound over for trial, she would be. It was as certain as fog in February.

It was time for the session to start finally, and the bailiff came and let them in. Off to his right, Steve saw Kathryn Mitchell and Ted Lindquist conferring. He had come to detest the DA, with her short little skirts and her pointy face and the way she pitched her voice high and strong as if she was leading a cheer. He could tell she thought Pris was dirt under her feet. And Lindquist, who sneaked around taping everybody—like someone in Watergate—Steve couldn’t abide the sucker. He stared at the detective with hostility, but Lindquist didn’t look up.

Judge Thomas wheeled himself in from his chambers. Steve knew something of his history. The 1970 shoot-out at the Civic Center touched off by Jonathan Jackson’s foiled attempt to force the release of his brother George from San Quentin had left Gary Thomas a paraplegic. Thomas, who was the assistant district attorney at the time, had taken a bullet in the back. In the fray, a judge, seventeen-year-old Jackson, and two convicts on trial were killed. Two years later, Gary Thomas had been elevated to the bench. He was a strict and formal judge with a reputation for evenhandedness. He waited now as the bailiff moved to lock the doors and flick on the orange sign that announced the status of each courtroom. Court was officially in session.

The district attorney opened with a request that the court make a holding specifically as to the two charges which had been filed: the charge of murder in the death of Tia Phillips and the charge of endangering the life of Mindy Phillips.

“I believe that a charge of first-degree murder, with implied malice, can be found in the death of Tia Phillips, Your Honor. Particularly as Priscilla Phillips saw the life-threatening situation with Tia, yet persisted, although she must have realized that if the doses increased, the eventual result could only be the child’s death,” the district attorney said.

The judge looked at Kathryn Mitchell for a moment. “What about Dr. Blinder’s statement that persons suffering from displaced Munchausen don’t have an intent to kill? That their intention is to focus attention upon themselves?” he asked.

“I don’t believe that Dr. Blinder’s statements preclude the existence of both a specific intent to kill or a very conscious realization that one’s acts are very likely to cause death,” the district attorney responded. Then she summed up her entire case. Steve took Priscilla’s hand as the DA recapitulated the events leading to Priscilla’s arrest.

“What Tia and Mindy Phillips suffered while in the custody of this woman defies description. She poisoned these two infants with baking soda, and after the first child died, she certainly knew what would happen to the second. Yet she persisted.”

“Miss Mitchell, do you believe baking soda is a poison as defined either under the business and professional code or as defined medically?”

“I’m not sure, Your Honor. But in researching that, I found nothing that says it wouldn’t fit the definition under
Caljic.”

“Mr. Garety?”

“Yes, Your Honor. I want to say first that the burden of the prosecution at a preliminary hearing is to produce evidence of a reasonable probability; that is, evidence sufficient to induce a strong suspicion in the mind of a person of ordinary caution or prudence that a crime has been committed and that the defendant was the guilty person.

“My query: What crime? I submit first, certainly not murder in the first degree. There is no evidence of willful, deliberate, premeditated killing.

“Next,” Garety went on, “baking soda is not a poison, but rather a common household product. Furthermore, if Mrs. Phillips had intended to kill Tia, she could have done so easily by, for example, tampering with the child’s central alimentation line. Or she could have allowed Tia to die at home.

“I also suggest that a finding of second-degree murder is inappropriate. There is no evidence that sustains a finding that the activities of the defendant had as their goal the harming of Tia, or her injury or death,” Garety added.

“What do you suggest, then, Mr. Garety?” asked Thomas.

 “Your Honor, I think a violation of section one ninety-two, subdivision two, manslaughter, would be appropriate.”

“And what about the second count of the complaint relating to Mindy Phillips?”

“For the purposes of the preliminary hearing only, I won’t address count two of the complaint,” replied Garety.

Garety sat down and Steve watched as the district attorney—who was given the last word—reiterated her position.

Finally she was finished and took her own seat in the almost deserted courtroom. The judge collected some papers and then looked out at the attorneys.

“Well, I have thought about this case a lot, and I don’t think there has been proved a conscious disregard for life in this matter, as such, that would take this out of second-degree murder and put it up to the category of first degree. And there hasn’t been any evidence to show any intent to kill,” he added.

Steve in his chair turned to Priscilla, beaming. But she was rigid beside him, her eyes intent on the judge, and she did not turn.

“Priscilla Phillips, please rise,” Judge Thomas continued. He waited while she did so. Garety took his place beside his client. “I do believe the evidence does find that such intent—mingling of any harmful substance of any food or drink or medicine involved, of both Tia and Mindy Phillips—was to injure and not to kill.

“Now Priscilla Eichholtz Phillips, I do find that there was committed on or about the third of February of 1977, here in the county of Marin, the state of California, the crime of murder of the second degree, that is, the unlawful killing of a human being, one Tia Phillips. There is reasonable cause to believe that you are guilty thereof. I hold you to answer to same.

“Furthermore, it appears to the court that on or about the times of February third through February the twenty-fifth of 1978, here in the county of Marin, there was committed a felony violation of section three forty-seven of the penal code, in that you did willfully mingle a harmful substance with any food, drink, or medicine with the intent that it be taken by a human being to his injury, that is, with regard to the child Mindy Phillips. There is sufficient cause to believe you are guilty thereof. I hold you to answer to that charge. You must appear in superior court. What date would you suggest?”

From his position at Priscilla’s side, Roger Garety answered. “I would suggest the end of the statutory period.”

“Make that on July twelfth at nine A.M. Bail is to remain as heretofore fixed.”

“Your Honor?”

“Yes, Miss Mitchell?”

“I ask that bail be increased back to the original setting of a hundred thousand dollars.”

“Mr. Garety?”

“Your Honor, Mrs. Phillips has made all her court appearances. Her husband, children, employment, and home are all here. I find no reason why the court should change the bail.”

“The bail will remain as fixed at forty thousand dollars. And the transcript of this preliminary hearing is to remain sealed,” ruled Judge Thomas. He nodded, turned his chair, and wheeled vigorously from the room.

THE TRIAL

Week 1

The trial of Priscilla Phillips began on March 19, 1979, almost exactly nine months after the conclusion of the preliminary hearing. Due to extensive pretrial publicity, the trial was assigned to the largest courtroom in Marin County Superior Court. Justice Louis H. Burke, who was to preside, had recently retired from a fourteen-year tenure as a California Supreme Court justice. He had volunteered his time to the superior court bench, and for his services was paid lunch money and travel expenses totaling $8.50 per day. Burke was a distinguished-looking man with silver hair combed back from a deep widow’s peak and marked, arching eyebrows; his small, vivid eyes squinted at the courtroom with wry intelligence. Most of the attorneys familiar with him considered him a judge of the old school: slightly conservative, eminently fair, an authority in the courtroom.

The session began amidst a buzz of whispers and rustles. As one, the prospective jurors rose and were sworn in. A lengthy trial was anticipated, the judge told them, and those for whom that would present a legitimate problem could be excused. Kaiser health-plan members would also be eliminated. Those who felt they should be excused were asked to line up and explain their reasons. About a third of the panel rose and did so.

Then the lengthy process of
voir dire
began, whereby the district attorney and the defense attorney questioned each juror in turn, in order to determine their competency. Priscilla Phillips, with her two attorneys, Edwin Train Caldwell and Albert Collins, faced the journal of prospective jurors, watching them for a sympathetic smile or a sign of distaste. Ed Caldwell had told her that jury selection was an essentially negative process, an attempt to weed out the undesirables and that he hoped to wind up with jurors with warm, sympathetic personalities—perhaps older, more experienced women or salesmen who knew the world and were accustomed to acting independently.

Priscilla felt infinitely more comfortable with Ed Caldwell as her attorney than she had with Roger Garety with whom she had come to a parting of the ways following the preliminary hearing.

“Look, Mrs. Phillips, I think the way to go with this case is a diminished capacity defense,” Garety had said.