Handle With Care (39 page)

The church I went to later that day was not my own. It was thirty miles north, in a town I knew only from the highway road sign. It smelled overpoweringly of beeswax, and the morning Mass had recently let out, so a number of parishioners were praying quietly in the pews. I slipped into one and said an Our Father under my breath and stared up at the Cross on the altar. All my life I’d been told that if I fell off a cliff, God was there to catch me. Why wasn’t that true, physically, for my daughter?

There was a memory I’d been having lately: a nurse on the birthing ward looked at you in your foam-lined bassinet, with tiny bandages wrapped around your limbs. “You’re young,” she said, patting my arm. “You can have another one.”

I could not recall whether you had just been born or if this was several days later. If anyone else was there to hear her, or if she’d even been real or just a trick of the drugs I was taking for pain. Did I make her up, so that she could say aloud what I had been thinking silently? This is not my baby; I want the one I’ve dreamed of.

I heard a curtain open, and I stepped up to the empty confessional. I slid open the grate between me and the priest. “Forgive me, Father, for I
have sinned,” I said. “It has been three weeks since my last confession.” I took a deep breath. “My daughter is sick,” I said. “Very sick. And I’ve started a lawsuit against the doctor who treated me when I was pregnant. I’m doing it for the money,” I admitted. “But to get it, I have to say that I’d have had an abortion, if I’d known about my baby’s illness earlier.”

There was a viscous silence. “It’s a sin to lie,” the priest said.

“I know…that’s not what brought me to Confession today.”

“Then what did?”

“When I say those things,” I whispered, “I’m afraid I might be telling the truth.”

Marin

September 2008

Jury selection was an art, combined with pure luck. Everyone had theories about how best to select juries for different kinds of cases, but you never really knew if your hypothesis was right until after the verdict. And it was important to note that you didn’t really get to pick who was on your jury—just who was off it. A subtle difference—and a critical one.

There was a pool of twenty jurors for voir dire. Charlotte was fidgeting beside me in the courtroom. Her living arrangement with Sean, ironically, made it possible for her to be here today; otherwise, she would have been stressing over child-care arrangements for you—which was going to be challenging enough during the trial.

Usually when I tried a case, I hoped for a certain judge—but this time around it had been hard to know what to wish for. A female judge who had children might have sympathy with Charlotte—or might find her plea absolutely revolting. A conservative judge might oppose abortion on moral grounds—but also might agree with the defense’s position that a doctor shouldn’t be the one to determine which children were too impaired to be born. In the end, we had drawn Judge Gellar, the justice who’d sat the longest on the superior court in the state of New Hampshire and who, if he were to have it his way, would die on the bench.

The judge had already called the potential jurors to order and explained the nuts and bolts of the case to them—the terminology of wrongful birth, the plaintiff and the defendant, the witnesses. He’d
asked if anyone knew the witnesses or parties in the case, had heard about the case, or had personal or logistical problems with sitting on the case—like child-care issues or sciatica that made it impossible to sit for hours at a time. Various people raised their hands and told their stories: they’d read all the news articles about the lawsuit; they’d been pulled over for a traffic ticket by Sean O’Keefe; they were scheduled to be out of town for their mother’s ninety-fifth birthday celebration. The judge gave a little canned speech about how, if we chose to dismiss them, they shouldn’t take it personally and how we all truly appreciated their service—when, I bet, most of those jurors were hoping they would be allowed to leave and go back to their real lives. Finally, the judge called us up to the bench to conference about whether anyone should be dismissed. In the end, he struck two jurors for cause: a man who was deaf and a woman whose twins had been delivered by Piper Reece.

That left a pool of thirty-eight individuals, who had been given questionnaires that Guy Booker and I had slaved over for weeks. Used to get a sense of the people in the pool—and to either strike jurors based on their answers or formulate further questions during the individual interviews—the survey we’d created had involved a complicated tango. I’d asked:

Do you have small children? If so, did you have a positive birthing experience?

Do you do any volunteer work? (Someone who volunteered at Planned Parenthood would be great for us. Someone who volunteered at the church home for unwed mothers—not so much.)

Have you or any family member ever filed a lawsuit? Have you or any family member ever been a defendant in a lawsuit?

Guy had added:

Do you believe physicians should make medical decisions in the best interests of their patients or leave the decisions up to them?

Do you have any personal experience with disability or with people who have disabilities?

However, those were the easy ones. We both knew that this case hinged on jurors who could be open-minded enough to understand a woman’s right to terminate a pregnancy; to that end, I wanted to rule out pro-lifers, while Guy’s defense would be greatly enhanced if there were no pro-choice folks on the jury. We had both wanted to submit
the question Are you pro-life or pro-choice? but the judge had not allowed it. After three weeks of arguing, Guy and I had finessed the question to this instead: Do you have any real-life experience with abortion, either personal or professional?

An affirmative answer meant I could try to have the person stricken. A negative answer would allow us to pussyfoot more tenderly around the issue when it came to individual voir dire.

Which was, finally, where we stood right now. After reviewing the questionnaires, I had separated them into piles of the people I thought I liked for this jury and the people I thought I didn’t. Judge Gellar would put each juror on the stand for questioning, and Guy and I had to either get the witness stricken for cause, accept him or her for the jury, or use one of our three precious peremptory strikes—a Get Off This Jury Now card that allowed us to remove a juror for no reason at all. The catch was knowing when to use these peremptory strikes and when to save them in case a more odious person came along.

What I wanted for Charlotte’s jury were housewives who gave everything and thought nothing of it. Parents whose lives revolved around their kids. Soccer moms, PTA moms, stay-at-home dads. Victims of domestic violence who tolerated the intolerable. In short, I wanted twelve martyrs.

So far, Guy and I had interviewed three people: a graduate student at UNH, a used car salesman, and a lunch lady at a high school cafeteria. I had used the first of my peremptory challenges to strike the grad student when I learned that he was the head of the Young Republicans on campus. Now, we were on our fourth potential juror, a woman named Juliet Cooper. She was in her early fifties, a good age for a juror, someone with maturity and not just hotheaded opinions. She had two teenage children and worked as a switchboard operator at a hospital. When she sat down in the witness stand, I tried to make her feel comfortable by offering up a wide smile. “Thanks for being here today, Mrs. Cooper,” I said. “Now, you work outside the home, is that correct?”

“Yes.”

“How have you been able to balance that with child rearing?”

“I didn’t work when they were little. I thought it was important to be at home with them. It’s really only when they reached high school that I got a job again.”

So far, so good—a woman whose children came first. I scanned her questionnaire again. “You said here that you filed a lawsuit?”

I had done nothing more than state a fact she herself had written down, but Juliet Cooper looked like I’d just slapped her. “Yes.”

The difference between witness examinations and jury selection interviews was that, in the former, you only asked questions to which you knew the answers. In the latter, though, you asked completely open-ended questions—because finding out something you didn’t know might help you remove the potential juror. What if, for example, Juliet Cooper had filed her own medical malpractice suit and it had turned out badly for her?

“Can you elaborate?” I pressed.

“It never went to trial,” she murmured. “I withdrew the complaint.”

“Would you have a problem being fair and impartial toward someone who carried through with a lawsuit?”

“No,” Juliet Cooper said. “I’d just think she was braver than me.”

Well, that seemed to bode well for Charlotte. I sat down to let Guy begin his questioning. “Mrs. Cooper, you mention a nephew who’s wheelchair-bound?”

“He served in Iraq and lost both his legs when a car bomb went off. He’s only twenty-three; it’s been devastating to him.” She looked at Charlotte. “I think there are some tragedies that you just can’t get past. Your whole life will never be quite the same, no matter what.”

I loved this juror. I wanted to clone her.

I wondered if Guy would strike this juror. But chances were, he was just as touchy about how disabilities would play for him as I was. Whereas I’d thought at first that mothers of disabled children would be locks for Charlotte, I had reconsidered. Wrongful birth—a term with which Guy was going to slather the courtroom—could be horribly offensive to them. It seemed that the better juror, from my point of view, would be either someone who had sympathy but no firsthand experience with disabilities or, like Juliet Cooper, someone who knew so much about disability that she understood how challenging your life had been.

“Mrs. Cooper,” Guy said, “on the question that asked about religious or personal beliefs about abortion, you wrote something and then crossed it out, and I can’t quite read it.”

“I know,” she replied. “I didn’t know what to say.”

“It’s a very tough question,” Guy admitted. “Do you understand that the decision to abort a fetus is central to making a judgment in this case?”

“Yes.”

“Have you ever had an abortion?”

“Objection!” I cried out. “That’s a HIPAA violation, Your Honor!”

“Mr. Booker,” the judge said. “What on earth do you think you’re doing?”

“My job, Judge. The juror’s personal beliefs are critical, given the nature of this case.”

I knew exactly what Guy was doing—taking the risk of upsetting the juror, which he’d weighed to be less important than the risk of losing the trial because of her. There had been every chance I’d have had to ask an equally contentious question. I was just glad that it had been Guy instead, because it allowed me to play good cop. “What Mrs. Cooper did or didn’t do in her past is not at all integral to this lawsuit,” I declared, turning to the jury pool. “Let me apologize for my colleague’s invasion of your privacy. What Mr. Booker is conveniently forgetting is that the salient issue here isn’t abortion rights in America but a single case of medical malpractice.”

Guy Booker, as the defendant’s attorney, would be using a combination of smoke and mirrors to suggest that Piper Reece had not made an error in judgment: that OI couldn’t be conclusively diagnosed in utero, that you can’t be blamed for not seeing something you can’t see, that no one has the right to say life’s not worth living if you’re disabled. But no matter how much smoke Guy blew in the jury’s direction, I would redirect them, remind them that this was a medical malpractice suit and someone had to pay for making a mistake.

I was vaguely aware of the irony that I was championing the juror’s right to medical privacy when—on a personal level—it had made my life a nightmare. If not for the sealing of medical records, I would have known my birth mother’s name months ago; as it was, I was still in the great black void of chance, awaiting news from the Hillsborough Family Court and Maisie.

“You can stop grandstanding, Ms. Gates,” the judge said. “And as
for you, Mr. Booker, if you ask a follow-up question like this again, I’ll hold you in contempt.”

Guy shrugged. He finished up his questioning, and then we both approached the bench again. “The plaintiff has no objection to Mrs. Cooper sitting on this panel,” I said. Guy agreed, and the judge called up the next potential juror.

Her name was Mary Paul. She had gray hair pulled into a low ponytail and wore a shapeless blue dress and crepe-soled shoes. She looked like someone’s grandmother, and smiled kindly at Charlotte as she took the stand. This, I thought, could be promising.

“Ms. Paul, you say here that you’re retired?”

“I don’t know if retired is really the word for it…”

“What kind of work were you doing previously?” I asked.

“Oh,” she said. “I was a Sister of Mercy.”

It was going to be a very long day.

Sean

When Charlotte finally came home from jury selection, you were soundly kicking my ass in Scrabble. “How did it go?” I asked, but I could tell before she even said a word; she looked like she’d been run over by a truck.

“They all kept staring at me,” she said. “Like I was something they’d never seen before.”

I nodded. I didn’t know what to say, really. What did she expect?

“Where’s Amelia?”

“Upstairs, becoming one with her iPod.”

“Mom,” you said, “do you want to play? You can just join in, it doesn’t matter if you missed the beginning.”

In the eight hours I’d been with you today, I hadn’t managed to bring up the divorce. We’d taken a field trip to the pet store and had gotten to watch a snake eat a dead mouse; we had watched a Disney movie; we had gone food shopping and bought SpaghettiOs—Chef Boyardee, which your mother called Chef MSG. We’d had, in short, the perfect day. I didn’t want to be the one who took the light out of your eyes. Maybe Charlotte had known this, which was why she’d suggested that I be the one to tell you. And maybe for that reason, too, she looked at me now and sighed. “You’ve got to be kidding,” she said. “Sean, it’s been three weeks.”