Custody of the State (37 page)

Will concluded and hung up the phone.

“Good news?” Tex asked.

Will nodded. “Our trip down here was worth it. I think we found what we came for.”

He told Tex he was going to take off for the airport to catch the Air Mexico flight. He would rent a car in Atlanta and could be back at the houseboat by evening. Trial would start the next day at one-thirty in the afternoon.

“But how about you?” Will asked.

“I think I'll hang around the island for a few days. Take it easy. Besides, I need to check out the Stearman for damage.”

After the two shook hands one more time, Will left to catch his plane. Tex put his cowboy hat on, hailed a cab, and headed for the little airstrip at the end of the island.

When he arrived, he wandered over to the biplane, which was still parked where he'd pulled up, in front of a tall, tin-covered hangar.

He walked around it, inspecting the havoc the storm had caused. The fabric of both wings was damaged. Reaching the rear, he looked at the tail flaps. Then he looked more closely. They were swinging completely loose and inoperable.

“This old Stearman never should have made it…not in this shape,” the pilot muttered to himself.

As he ambled thoughtfully across the airstrip he gazed up into the blue sky. It was clear, with a few white wisps of clouds thinly streaked across it.

Then he put his hand to the brim of his cowboy hat, and tipped it to the sky.

“Thank you, Sir,” Tex said. “Maybe it's time to talk—you know, catch up on things.”

52

T
HE
D
ELPHI COURTROOM
was jammed with court personnel, extra bailiffs, and new reporters. Inside the chambers of Juda County Circuit Judge Trainer, an informal pre-trial conference was being conducted.

Judge Trainer was a middle-aged man of medium height and bland expression. Cautious and studious, he was not prone to overblown emotion or exaggeration. As he sat at his desk, he was pinching the bridge of his glasses with two fingers, readjusting them minutely.

“We have some preliminary matters,” he began. “But first I want to address the media issue. I have instructed all of the news reporters that, because this case involves a minor child, they are to use only the initial of his first name. Furthermore, the last name of the family involved is not to be used in any media reports. I have also ordered that no cameras be allowed in the courtroom, nor are any interviews to be given in the courtroom, even during the breaks. All media interviews are to be done out in the hallway—and if that becomes a problem, I'm going to move all of the reporters and their equipment to the front lawn. Now, counsel, do you have some preliminary matters of your own?”

Harry Putnam, Harriet Bender, and Will Chambers were sitting in a row in front of the judge's desk. Joe Fellows, in his jail suit and appearing for himself, was next to Will. A court reporter was in the corner, putting everything on the record.

Putnam spoke up first. “I believe that Mr. Chambers has two matters.”

The judge nodded in Will's direction.

“Your Honor,” Will said, “the first matter relates to discovery. The county bases much of its case on a blood sample from the minor child, Joshua. It was taken some time ago when he was treated as an inpatient at the Delphi hospital. A while after Johsua's treatment, Dr. Parker, the chief pathologist, rendered a report indicating that the blood sample showed the presence of ethylene glycol. That's a substance contained in many industrial products and oils, and in hydraulic brake fluid specifically. Their case rests on that blood sample. I have made a demand to have our own expert, a hematologist down in Decatur, take a look at the sample from which Dr. Parker arrived at his conclusions. If Dr. Parker's conclusions are wrong, then there is no absolute proof that Mary Sue Fellows poisoned her child by having him ingest brake fluid. Yet the district attorney, Mr. Harry Putnam, has refused to allow us to evaluate the rest of that blood sample.”

The judge turned to Harry Putnam, who launched into his explanation quickly and diplomatically.

“Your Honor, no one in this room loves justice more than I do. Our system thrives on it. I believe in giving everyone a fair trial. Now, we do have a problem with this blood sample.”

“What type of problem?”

“Well,” Putnam continued, “Dr. Parker advises me that the blood sample is no longer available.”

“Why?” the judge followed up.

“We really aren't too sure. Somehow—and we don't know exactly how—this sample has disappeared. Dr. Parker has turned the hospital upside down. He has talked to everyone that has had access to the lab. The sample simply cannot be located.”

“This is outrageous, Your Honor,” Will responded. “I move first that the results of Dr. Parker's evaluation be excluded from evidence. It's unfair for the county to be able to admit into evidence the results of this examination but deny our due-process right to check the same blood sample and see if our expert comes up with the same results.”

“Your Honor,” Putnam said, now more emphatically, “it was not the county's fault that this sample disappeared. We did not have control and possession of it. And the hospital and Dr. Parker—neither of those entities are parties to this action. If this were a piece of evidence we had in our evidence locker at the sheriff's department, and it disappeared—
then
we could be charged with the failure to maintain that evidence.”

“That's a distinction without a difference,” Will said in response. “The county is prosecuting this case. The county and Mr. Putnam knew full well that the sample is at the heart of the issues in the case. If their primary witness can't control the evidence for the county's case, why should Mary Sue Fellows' defense be punished as a result?”

The judge nodded toward Harriet Bender.

“Judge, you know my attitude in these cases,” Bender said with a smile. “It's all about the best interest of the child. That means the best interest of Joshua. If he is being poisoned, then we've got to know about it. That means that the report of Dr. Parker should come in even though it is unfortunate that the blood sample is not available for Mr. Chambers' expert to take a look at.”

“This is a tough one,” the judge replied cautiously. “Mr. Chambers, I can sympathize with your situation and your desire to have a full, fair defense for your client. On the other hand, are we to prevent the county from prosecuting a child-welfare case because an independent expert not entirely under its control, or the hospital, may have misplaced a piece of evidence? I think not. I will do this for you, Mr. Chambers—I promise you that I will consider the misplacing of this evidence as a factor bearing on the credibility of Dr. Parker and the district attorney's case against Mrs. Fellows. I will do that in considering the evidence.”

That was a major setback for the defense. It was certainly an appealable issue, but Will did not want to have to take the case up on appeal while Joe and Mary Sue were deprived of the custody of Joshua—and possibly convicted of a criminal offense. At
this point, though, there was nothing he could do about the judge's ruling. He also knew that he had a fallback position—Dr. Forrester's evaluation of the more recent blood sample.

Will carefully explained the sequence of events—Dr. Bill's taking the blood sample from Joshua in South Dakota and Will's trip to Grand Bahama island with it, followed by its evaluation by one of the world's foremost experts in pediatric metabolic diseases. He then went through the diagnosis of Joshua's condition by Dr. Forrester and his exclusion of ethylene-glycol poisoning as a cause. He concluded by asking for an opportunity to permit Dr. Forrester to testify by live, satellite-fed video. He explained that arrangements had already been made for the equipment to be set up in the Delphi courtroom and that there was corresponding equipment available near Grand Bahama island.

Harry Putnam waded into the argument with both fists.

“Your Honor, Mr. Chambers did not list his expert until yesterday. We've had no chance to have discovery from him—this is a complete surprise. Moreover, we do not stipulate to the use of live video conferencing in this case. We either want live witnesses, where we can all take a look at their demeanor and appreciate the physical aspect of their testimony—or we don't want their testimony at all.”

Harriet Bender was next. She spoke sharply and cut the air with her right hand as she spoke, as if she were wielding a hatchet.

“I strongly object! Strongly object!” Bender exclaimed. “And I am going to tell you why, Judge. We don't know that this blood sample was really taken from Joshua. Are we supposed to take Mr. Chambers' word for it? He said he hand-carried it. Where did he get it from? Has he proved chain of custody for this sample?”

“If the court will bear with me,” Will said, “I can bring in each of the witnesses from the chain of custody to prove that.”

“But that's not my main point,” Bender snapped back, now heading in a new direction. “My main point is that Mr. Chambers' client flees from this jurisdiction and takes that little boy
with her. That little boy is my client. His name is Joshua, and I am his lawyer, appointed by the Juda County Circuit Court to represent him as guardian ad litem. I have never—
never
—consented to have a blood sample taken from my client and submitted to Dr. Forrester for evaluation. I should have been consulted first.”

“And would you have agreed, if I had asked your permission—which I don't think I needed to do?” Will asked.

“I'm sure I would
not
have agreed to allow the blood sample to be taken,” Bender shot back.

Judge Trainer mildly scolded both counsel for arguing among themselves rather than directing their arguments to him. His ruling, on the issue of Dr. Forrester's testimony, he explained, would be deferred. He would wait, possibly until the end of the county's case, to make that decision. But he invited Will Chambers to make a narrative offer of proof as to what the doctor's testimony would be.

Will painstakingly went through Dr. Forrester's qualifications. His technique for the evaluation of the blood sample. His diagnosis, to a reasonable degree of medical certainty, of the metabolic disease affecting Joshua and his opinion that the sample did not show the presence of ethylene glycol.

Further, Will continued, Dr. Forrester would testify that it was possible that a physician could mistakenly assume the presence of ethylene glycol in the blood of a patient suffering from that disease. Dr. Forrester would also indicate that, if Joshua had been poisoned with brake fluid and it appeared in Dr. Parker's blood test in sufficient amount for Joshua to be sick, it was likely there would be some trace of ethylene glycol still left in his blood at the time the later sample had been drawn. And yet Dr. Forrester had found none.

The judge then adjourned the chambers conference, asking Harry Putnam if he was ready to proceed. Putnam said he was.

“Okay,” Judge Trainer announced. “Then let's get started.”

53

O
NCE THE THREE ATTORNEYS
were settled in the courtroom, Putnam addressed the judge.

The district attorney explained that he would rely on the factual background laid out in his written trial brief and would waive any further opening statement. Guardian ad litem Harriet Bender followed suit.

Will reserved his opening statement until the close of the county's case.

Joe Fellows, sitting at the defense table next to Will in his orange jail suit, indicated he wanted to address the court. Judge Trainer motioned for him to rise.

As he began to speak, intensely and passionately, Joe held his hands open in front of him, pleading.

“Your Honor, I just want to say that both my wife, Mary Sue, and I are totally innocent of any abuse against our son Joshua. We love him—more than our own lives. We would never hurt him on purpose—
ever.
”

“Thank you, Mr. Fellows—but I would remind you that this is not a criminal trial. We are not trying to decide guilt or innocence. We are here to determine whether child abuse
probably
took place—the county need only prove its case by the lower civil standard of proof—and if so, whether it is in the best interests of Joshua to grant the county's request to permanently transfer his custody to the Department of Social Services.

“Of course, you are also facing criminal charges relating to these same facts. But that's a separate case. That trial is scheduled
next month. And your wife still has outstanding criminal warrants against her. As soon as she is apprehended—or turns herself in—then her trial date will also be set in her criminal case. Now, do you understand all of that?”

After nodding, Joe sat down and folded his hands in his lap, momentarily closing his eyes and bowing his head. As he did, Will placed his hand on his shoulder.

As his first witness, Putnam called Liz Luden of the Department of Social Services. Luden explained the background of the case. She had received a phone call from Dr. Wilson, the general practitioner for the Fellows family. He had indicated some concerns to her about Joshua's medical treatment. He also expressed concerns about Mary Sue Fellows' compliance with his treatment requests, and Mary Sue had also made some comments about Joshua that deeply concerned him. He suspected child abuse, but wasn't sure.