An Accidental Life (38 page)

“Yes.”

“So, for clarity; please give us once again your definition of viability.”

“The Supreme Court has defined viability as the point at which the fetus is potentially able to live outside the mother’s womb, albeit with artificial aid.”

“Not quite, Doctor.” Vince shook his head. “Isn’t it true that in fact, the Supreme Court went a little further in
Roe v. Wade
, stating that viability is presumed to also include the capability of
meaningful life
outside the mother’s womb.” He paused then asked the question. “What do you think the Court meant by inserting that idea, the idea of sustaining a
meaningful
life . . . as opposed to merely existing.”

“I can’t answer that.” He frowned at Vince. “But what is meaningful to one person, may not be to another.”

“Perhaps it means quality of life?”

Peter fixed his eyes on Stern, willing him to stick with his first answer. It didn’t work.

“Yes,” Stern said. “I suppose so.”

“Thank you.” Vince then walked toward the jury box and turned, angling himself so that he faced the judge. “Now then, please tell this court, Doctor, since we have established that the question of whether a fetus is viable is subjective, would you agree that when the Defendant concluded prior to the abortion that the fetus wasn’t viable, that his
subjective
conclusion was reasonable under the circumstances, and within the standard of good medical practices?”

“His disregard for the infant born alive certainly was not.”

“That wasn’t my question.” Vince turned his face to the judge. “Move to strike the last answer as nonresponsive.”

The judge concurred. Vince turned back to Stern, moving toward the witness. “Let me rephrase. In your opinion, given the circumstances, was there any way for the Defendant to know with certainty that the fetus carried by Miss Chasson was viable at the time he began the abortion procedure?”

Mortimer Stern was silent. Seconds passed.

Judge Morrow leaned toward the witness. “You must answer the question, Dr. Stern.”

Stern looked up, shook his head, and with a glance at Peter, said, “Given the circumstances, no.” He cocked his head, looking at Vince. “But, it is not for me to judge, sitting here today whether or not the Defendant’s judgment was reasonable.”

Vince had gotten what he wanted. “Thank you,” he said, his voice turning cheerful again. Peter set the pencil down on the table and braced himself.

“And in fact, if you are correct that as the years pass and medicine advances, the point of fetal viability—as you have defined it—moves closer and closer to conception, in your opinion is it possible that a time will come, perhaps years from now, when a fetus in an extremely early stage of development might be considered viable?”

Peter rose, knowing where this was going, and knowing that Calvin Morrow would allow the question. “The State objects, Your Honor. The witness is an expert in his field, not here to answer hypothetical questions.”

The judge’s answer was quick. “Overruled. On cross-examination I’ll allow it.” He looked at Stern. “Answer the question.”

Stern shrugged. “Yes, I believe a time will come when early fetal life will be sustained outside of the womb and develop to full term with assistance as medicine advances.”

“And when that happens, what will that do to the woman’s right to choose to terminate her pregnancy? Are we coming to the day when the woman is limited to making her decision within a few weeks of conception?”

Stern adjusted his glasses and peered over the rims at McConnell. “I beg your pardon?”

“Let me put it this way. Will the time come when it is possible to sustain the life of say, a ten-week-old fetus in the first trimester using all our medical technology?”

“Possibly.”

“And what then happens to the woman’s constitutional right to choose an abortion? Is she then going to be limited because
by your standard
the child is possibly viable in the first trimester?

“Objection,” Peter said. “Argumentative, and again, hypothetical.”

“Sustained. Rephrase the question, Mr. McConnell.”

McConnell turned back to Mortimer Stern. “When speaking about viability in
Roe
, the Supreme Court said this was the compelling point when a state is justified in protecting a potential life because”—he lifted a finger—“and here I quote: ‘Because the fetus then presumably has the capability of meaningful life outside the mother’s womb.’

“In your opinion, Doctor, is it possible that the Court inserted that word
meaningful
when speaking of viability in order to
expand the concept of life beyond mere existence
—an existence dependent entirely upon tubes and ventilators and monitors—and instead was requiring something more—a certain quality of life?”

“I have no way of answering your question, sir.”

Peter rose. “Your Honor, we’re getting far afield here.”

Morrow turned to McConnell. “You’re allowed some slack on cross-examination, Counsel. But I’m starting to agree with Mr. Jacobs. Get to your point, or move on.”

“Yes, Judge.” McConnell walked back to the lectern, taking his time. Then he turned back to face the witness. “Dr. Stern, given that we’re in agreement that the concept of viability is subjective, if a physician concludes that the fetus is not yet viable, would you agree that a live birth would be quite a surprise?”

Dooney scribbled a note and slid it over to Peter. “What is he getting at?”

“Intent,” Peter wrote. If the defendant was caught by surprise, he could argue that he couldn’t have had either a specific or a general intent.

Stern began shaking his head before the defense lawyer finished. “No,” he said immediately. “Any physician understands the risk with this procedure. And given Miss Chasson’s indecision, and the absence of a sonogram, any physician would understand there was room for error in determining the gestational age. In my opinion a physician or any other abortion provider should anticipate the possibility of a live birth with an induction procedure, as with Miss Chasson.”

“Good answer,” Dooney whispered. But Peter was silent, knowing they’d lost some ground in this cross-examination.

“No further questions for this witness, Your Honor,” Vince said, taking a seat.

41

On friday morning, in the green
glass courthouse, Judge Calvin Morrow sat on high looking out over his domain. Court had just convened for the day. He gestured to Peter that he was ready to begin.

Peter stood. “The people call Dr. Stephanie Kand to the stand.”

Stephanie Kand was an experienced witness, always professional, thorough, and her cool demeanor made her effective. She had the ability to translate complicated medical ideas for people who would otherwise not understand a word she was saying. She’d worked at the Parish coroner’s office as a forensic pathologist for twelve years, and Peter had worked with her on many cases.

Once again Shauna had set up the projector on a table near the witness stand. The bailiff had prepared the screen. Photographs were always taken at every stage of an autopsy, beginning at the scene of the location of the crime. On the table next to the projector was the container of Dr. Kand’s slides. With a click of a button, Shauna would move from one photograph to the other on the screen as Stephanie Kand testified.

Qualifying Dr. Kand as an expert went quickly. Peter began with the question he asked of her in each trial. “How many autopsies have you performed in the state coroner’s office, Dr. Kand?”

She looked off as if recalling the information to her mind for the first time. “Thousands—six or seven thousand,” she said as she turned back to him. “I keep a book with dates on that.” She looked out at the gallery. “There are two systems of death investigations in the United States. A forensic pathologist in the coroner’s office in this state is the equivalent of a medical examiner in other states.

“Here, in this parish in Louisiana, I’m the forensic pathologist in the coroner’s office. When there’s a suspicious death I attend the scene of violence just like the medical examiner would in another state, working with the crime team. I’ll direct the crime lab as to what evidence is important. The crime lab then collects the evidence, photographs it, and starts the chain of custody, and they write up a report. My forensic analysis begins with that report. So, we’re correlating the investigation with the autopsy.”

Peter nodded, and turned toward the gallery so she could look out over the courtroom. “And can you explain the purpose of your work as a forensic pathologist?”

Again Peter felt the loss of the jury. If a jury were impaneled, Stephanie Kand would have them mesmerized right now. She would look into the eyes of each person on that jury while she testified, creating a bond. Without a jury, she trained her eyes on Peter, or let her gaze rove over the spectators behind him as she spoke.

“We’re looking for a specific thing in forensic pathology. We’re looking for the cause and manner of death, so I conduct the autopsy in that medical-legal context, although I don’t form purely legal conclusions. I’ll perform an internal and external examination of the entire body. We want to look at everything.”

“And what do you mean when you speak of the
cause
and
manner
of death, Doctor?”

“The cause of a death is the process or injury that initiated the death. The manner of death is how that cause of death came about.” She shifted her position. “For example, homicide in Louisiana is death by the act or omission of another person.”

“Did you perform the autopsy of the infant, Baby Chasson?”

“Yes. That autopsy was performed on May 14 of this year.”

“How did the body appear when it first arrived at the forensic center?” As he asked this question, Peter walked to the prosecution table and picked up the stack of autopsy photographs. Handing copies to Vince and the judge, he offered them as State’s evidence.

“No objection,” Vince said, looking up. The judge then accepted the photographs as evidence, and they were given to the clerk to mark before returning them to Peter.

Holding the photographs in his hand, Peter walked back to the witness. Peter handed the first photograph to Dr. Kand, and the slide appeared on the screen. Dr. Kand pulled a pair of glasses from her purse and put them on as she turned toward the screen.

“Dr. Kand, does this photograph accurately reflect the body as it was received in the morgue?”

She glanced at the photograph in her hand, and then leaned forward peering at the slide on the screen. “Yes. As you can see in this picture, the body was bagged to preserve the evidence.”

He handed her the next photo. “And can you describe this one for us?”

There was a low hum in the gallery as a slide photograph of the infant’s full body appeared on the screen. A ruler was placed beside the infant in the picture.

“This was taken after the body was cleaned up, before the autopsy.” Shauna left the photograph on the screen as Peter turned back to her.

“Where was the body found?”

“In a freezer at the clinic.”

“Does the fact the body was frozen complicate the autopsy?”

“No, not at all.” Taking off the glasses, she folded them and pointed them toward the screen. “In fact it helped. As you can see from the slide, there’s almost no decomposition, meaning that the body was placed in the freezer very soon after death. Infant Chasson was well preserved.”

“Based upon your examination were you able to determine a time of death?”

“With adults, lividity is a starting point for determining time of death, but with a newborn baby, all bets are off.”

“Can you explain that?”

“Lividity occurs postmortem in an adult. When the heart stops pumping, blood settles in the part of the adult body that is dependent—meaning what they’re lying on. Gravity pulls the body’s blood to that place. But even with an adult, time of death can only be set within a range between minutes and hours, say between six and twenty-four hours. And an analysis of the state of rigor mortis also helps.

“But with a newborn, the circulatory system is still immature—you can see it here.” She pointed with the glasses again. “That’s why the newborn infant appears red all over. A newborn doesn’t present the same changes after death as an adult.” She looked out at the gallery. “Because of the immature circulatory system in a newborn, gravity doesn’t force the blood to the lowest point—it’s not dependent upon what they’re lying on.”

“During an autopsy, are you able to determine whether an infant was alive at birth?”

She nodded. “Yes. We’re able to determine whether the death was intra-uterine fetal demise or whether the baby was alive at birth through microscopic examination of the air sacs in the lungs.”

“Can you explain that for the court?”

“We do microscopic sections of the lungs to see if the air sacs—the alveoli—and airways have expanded, which occurs when the child is taking breaths. If the baby took breaths, the air sacs won’t be collapsed; there will be some extensions.” She paused.

“And what was your conclusion after examining the Chasson infant?”

“We concluded that the child was alive at the time of birth, and for some period after. In addition to examination of the alveoli, we tested the lungs in a fixative solution to see if they would float. They did—evidence that there was air in the lungs. Additionally, we found air in the stomach.”

“You concluded that the child was alive and breathing for some period of time after birth. Are you able to give the court a range of time during which the child was breathing?”

“From the expansion of the air sacs combined with our finding of the presence of air in the stomach, the child was breathing for several minutes after birth at least, and perhaps longer. But there’s no way that I could give you a clear range, for example an hour, or two hours, as opposed to only minutes. It could have been either.”

Peter turned toward the defendant. “It could have been minutes, or perhaps hours?”

“Yes.”

“Enough time to call an ambulance, to get the infant to intensive care?” He caught Vicari’s eye and the defendant stared back.