Deadlock

“No.”

“You’re a layman then?”

“I am a minister,” Neven said.

“What denomination has ordained you?”

“I am nondenominational.”

“Not ordained?”

“I believe I have been called by God to preach the gospel.”

“And you have a right to. What you don’t have the right to do is offer expert testimony on psychological matters.”

“May we approach the bench?” Charlene said quickly.

Judge Lewis called the lawyers up.

“Mr. Winsor’s last comment was inappropriate,” Charlene said. “And he knows it.”

“I apologize,” Winsor said. “If Your Honor wants to admonish the jury to disregard my comment, that’s fine with me.”

Slick. Oh, how slick. If the judge did that it would only reemphasize what he said.

“That won’t be necessary,” Charlene said. “But this is a key witness for me.”

“Mr. Winsor’s point is well taken, however,” Judge Lewis said. “He’s not qualified to offer opinions on your client’s mental state.”

“What about spiritual opinions?”

“No,” Winsor said. “This man does not have a degree or even an ordination from a recognized denomination.”

“I agree,” said the judge.

“But he’s been a minister for twenty years,” Charlene said. “Rule 702 allows someone with practical experience to qualify as an expert.”

“But he must still meet a threshold level,” Winsor said. “In U.S. v. King, for example, the court excluded testimony by a witness who had taken a correspondence course in handwriting analysis. The Fifth Circuit upheld the exclusion. Ms. Moore’s witness has never taken any sort of course, correspondence or otherwise.”

“He is a lay preacher,” Charlene said. “That is a recognized office in the American church.”

“But not in a court of law, Ms. Moore,” said the judge. “I’m going to exclude any further testimony by this witness on these matters. Do you have another witness ready to go this morning?”

4

She did. And this witness was a real expert. Through Dr. Gardner Hutchinson Charlene hoped to establish the duties of a doctor both ethically and according to the informed consent law. Then she would move on to the events of June 7. With the testimony of Dr. Hutchinson, the jury would have a full understanding of what should have happened in the doctor’s office – but didn’t.

After qualifying her witness as an expert, Charlene got right to the main points.

“As a medical doctor,” she said, “what is your primary ethical charge?”

“It is to the patient,” the doctor said. He was in his late fifties and a bit paunchy, but in a friendly uncle sort of way. “The well-being of the patient always comes first.”

“Do no harm?”

“Exactly.”

“When a patient comes to see you for the first time, what is the first thing you do?”

“I find out about the patient’s history. He fills out a medical form with his medical history. We go over that before we even touch on the particular problem he came to see me about.”

“Why is that so important, Doctor?”

Hutchinson smiled as if the answer were self-evident. “Because one can do considerable harm if he doesn’t know enough about the patient he’s dealing with.”

“That’s common sense, is it not?”

“Objection,” Beau Winsor drawled. “Counsel is making a closing argument now.”

“Sustained,” said Judge Lewis.

“I’ll withdraw the question,” Charlene said. “Now, Doctor, please tell the jury how the notion of informed consent is consistent with the ethical duty you have just described.”

Hutchinson turned in the witness chair so he could face the jurors. “No one should be advised to undergo any medical procedure unless he or she is fully informed about the nature of that procedure and the medical risks associated with it. The doctor’s responsibility in each instance is to make sure that the patient is so informed. That does not mean partially, or even mostly. It means fully. And that is what informed consent is all about.”

“Thank you,” Charlene said. “Now, we have in this state an actual statute mandating informed consent in any abortion procedure, is that correct?”

“That is correct.”

Charlene walked to her counsel table. “With the court’s permission, I would like to display an exhibit for the witness and jury with the exact language of the statute.”

“Without objection?” Judge Lewis said.

“Without objection,” said Winsor.

“Proceed, Ms. Moore.”

Charlene took the poster board she had made at Sammy’s Graphics – $34.95 total price – and placed it on an easel for the jury and Dr. Hutchinson. Winsor stood so he could read it as well.

An abortion shall not be performed without the voluntary and informed consent of the woman upon whom the abortion is to be performed.

Except in the case of an emergency, consent to an abortion is voluntary only if the requirements of this section are met.

The referring physician, the physician who will perform the abortion, or an agent of either physician shall provide all of the following information to the woman by telephone, by audiotape, or in person, at least twenty-four hours before the abortion:

a. Information that medical assistance benefits may be available to the woman for prenatal care, childbirth, and neonatal care.

b. Information that the putative father is liable to assist in the support of the child.

c. Information that medical assistance benefits may be available to the woman for an abortion under certain circumstances.

d. The particular medical risks associated with the particular abortion procedure to be employed including, if medically accurate, the risks of infection, hemorrhage, breast cancer, danger to subsequent pregnancies, and infertility.

e. The probable gestational age of the unborn child at the time the abortion is to be performed.

f. The medical risks associated with carrying her child to term.

“I would like to call your attention to subsection d,” Charlene said. “Would you please explain to the jury your understanding of the term medical risks?”

“Yes. Any risk to the well-being of the patient, including the obvious things that are listed there, such as breast cancer, which some studies show has a co

Charlene expected Winsor to object. When he did not, a thin flame of nervousness shot through her. She pressed on. “What is Post-Abortion Syndrome, Doctor?”

“It is a variant of Post-Traumatic Stress Disorder.”

“And how long has Post-Traumatic Stress Disorder been recognized in the psychiatric field?”

“Since 1981.”

“Is PTSD or PAS a form of depression?”

“Absolutely.”

“Are there physical manifestations?”

“Oh, yes. The body can literally shut down.”

“Mental signs?”

“Yes.”

“Would suicidal tendencies be one of those?”

“That would certainly be a strong indicator of PAS, yes.”

“What should a doctor do to help prevent the risks associated with Post-Abortion Syndrome?”

“At the very least he should screen all patients for any prior history of depression.”

“If he does not, then there would be strong medical risk, isn’t that right?”

“That is correct.”

“Thank you, Doctor. No further questions.”

Beau Winsor stepped to the podium but not behind it. He held no notes. Charlene could only marvel at that. No doubt the jury would marvel, too.

“Dr. Hutchinson,” Winsor said. “Would you take a good look at subsection d again for us?”

The witness, somewhat sheepishly, reread the exhibit. “All right,” he said.

“Now where do you see the term Post-Abortion Syndrome?”

“Of course it is not there, but – ”

“You have answered the question, sir.”

Charlene stood. “Objection, Your Honor. Counsel did not let the witness finish his answer.”

Judge Lewis said, “Overruled. It was a simple yes or no question. You’ll have your chance on redirect.”