A Mother's Trial (34 page)

During recross, Ed went back to this point. “If the unlove syndrome produces constipation, if the baby is receiving a lot of love, that doesn’t necessarily mean there’s going to be diarrhea, does it?” he asked.

“No.”

“I have no further questions.”

“No questions, Your Honor,” Josh added. Dr. Eaton left the stand.

Priscilla Phillips leaned and whispered to her attorney as the next witness was called. “Do you think her testimony helped?” Ed Caldwell shrugged. “Not much. She didn’t take herself or the whole thing seriously enough.”

“And the jury won’t take her seriously either?”

“I’m afraid not.”

“But the diarrhea—it shows Mindy still has it!”

“Wait till we get Pat Wrigley on the stand,” Ed answered with a smile. “I think we’ll get a lot more mileage there.”

Ted Lindquist finally took the stand following the afternoon recess. He was not nervous, as his only function was to serve as a witness to having made the telephone call to the Phillips house, the tape of which was now to be played for the jury. He sat solidly as the first of two tapes was played. The courtroom was very quiet, the jury angling toward the tape machine as though that would enable them to hear more clearly. In her seat, Priscilla was still, her head against Steve’s shoulder. She was not ashamed or embarrassed about what she had said. She did not believe she had made any kind of admission. She
was
the common denominator—anyone could see that, but that was not an admission of guilt. Indeed the whole telephone call was an attempt to exonerate herself, to point out Mindy’s legitimate illnesses and the fact that her serum sodium had been elevated only once, to bring up other significant evidence Priscilla felt the police would miss about Tia and her illness. All of Priscilla’s nightmares about that had come true, all of her fears about being charged that she had written about in her journal and confided to her friends.

The judge stopped the tape in the middle of the second recording, since the hour of adjournment had been reached. The tapes—People’s Exhibit 50—were returned to the clerk to hold until Monday. It was an unfortunate break in the drama as far as the prosecution was concerned. Josh Thomas did not believe that Priscilla Phillips presented herself well on the tape: she seemed self-serving, aggressive in the way she cut off her husband, too quick to point out her status in the community and the ways in which the care of Tia and Mindy had been a hardship for her. But the full impact of her personality would be softened by the intervening weekend—an unfortunate error in timing of the type common in a long trial. Josh sighed. It was too late to worry about that. He had almost finished his case. Next week the truly nerve-wracking part would begin.

Week 6

The People rested their case on Tuesday of the following week. During the final few days of the prosecution’s case, considerable time and argument had centered on the admissibility of Dr. Martin Blinder’s testimony on Munchausen Syndrome by Proxy.

Ed Caldwell made three arguments against its admissibility. The testimony was to be highly speculative. Munchausen Syndrome by Proxy was not a scientifically reliable diagnosis, and in addition, the doctor had never examined the defendant.

Josh Thomas countered that the doctor’s testimony would provide information about motive. As to Blinder’s qualifications, he was an expert in forensic psychiatry, and just because a syndrome was new did not mean that it failed to exist. Furthermore, the defense attorney had opened the subject himself, Josh reminded Ed Caldwell, when he had cross-examined Boyd Stephens about an article on the subject. In any case, Josh argued, as had Kit Mitchell before him in the preliminary, the extent of the expert’s knowledge about the syndrome went to the weight of the expert’s knowledge about the testimony, not its admissibility.

In the end, Judge Burke agreed with Judge Gary Thomas and ruled to allow Blinder’s testimony. The doctor took the stand after lunch. An impeccably dressed, elfin man in his early forties, Martin Blinder enjoyed the frequent confrontations testifying in court provided. He was articulate, intelligent, and experienced. Calmly he awaited the district attorney’s questions.

As he had with each of his medical witnesses, Josh Thomas began with Blinder’s credentials. A 1962 graduate of Chicago Medical School, Blinder had interned at San Francisco General and completed a residency in psychiatry at Langley Porter Neuropsychiatric Institute at the University of California Medical Center in San Francisco. He had authored numerous articles, taught psychiatry at the Hasting College of Law for six years, and testified in hundreds of cases.

Before the district attorney could reach the heart of Blinder’s testimony, Ed Caldwell asked to
voir dire
the doctor to examine the validity of his expert credentials.

Ed had done his homework.

“Have you taken and failed certification as a board-certified psychiatrist, Doctor?”

“Yes. I flunked the neurology portion. But the part that I did not qualify on has been eliminated now as a criterion for board certification.”

“Have you testified in a previous action that the fact that a doctor fails to attain board certification is a test of his competency?” Ed persisted.

“Well, I think it’s a measure among others. I think primarily it’s a test of his competence to pass a specific examination. But I will allow—and do on every possible occasion—that I’m a crummy neurologist,” Blinder answered with perfect equanimity.

“What about psychiatry?”

“I’m pretty good.”

Caldwell moved on to another point. It was one with which he later intended to impeach the witness.

“Have you ever testified under oath in a prior proceeding that you were the chief of the psychiatric service at UC Hospital?”

“Yes, I have.”

“And that is the truth?”

“Yes—it was at that time. I was chief of a private inpatient psychiatric service at UC Hospital.”

Ed tried a flank attack. “Did you offer your services to the district attorney after reading about the case?” he asked.

 “No.”

“Are you charging the same rates as you did in 1976: three hundred dollars for half a day, five hundred for a full day?”

“Yes.”

“How many hours have you spent preparing yourself for
research—
if that’s the proper word—” Ed added meaningfully, “in the syndrome of Munchausen by Proxy?”

“I don’t know. Is it your intention, Mr. Caldwell, to include all my files in this case or just the academic literature on Munchausen’s?” Blinder responded evenly.

“It’s my import to ask you what the taxpayers of the county of Marin and the district attorney has paid you—”

“Your Honor—” Josh broke in. “I’m going to ask that that gratuitous comment on the part of Mr. Caldwell be stricken. I don’t think he has to frame his questions in an argumentative fashion.”

“Overruled.”

The
voir dire
continued for several more minutes. Finally, after numerous arguments between the attorneys about how the foundation should be laid for Blinder’s testimony, Josh Thomas resumed his direct examination of the witness.

“Dr. Blinder, I want to pose to you the following hypothetical question, and I’ll ask you as part of that question to assume the following facts: number one, that the defendant, Priscilla E. Phillips, did repeatedly and surreptitiously administer doses of a cathartic sodium-type compound over a period of months to first one adopted child and then another, until this poisoning was discovered by hospital officials—”

“I object, Your Honor. It’s assuming the guilt of the defendant. That’s totally inadmissible. I cite
People
v.
Hardy—”

“Overruled.” Judge and Counsel had discussed this at length in the judge’s chambers and the judge was prepared with his ruling.

“Fact number two,” Josh Thomas continued. “Assume there were frequent admissions of the victims, usually in a condition that required immediate emergency procedures, including ambulance rides and dramatic life-or-death situations. Fact number three: assume that the mother, Priscilla Phillips, was actively involved in the treatment of the victims, becoming very knowledgeable about their treatments, and that she became friends with, and received the sympathy and admiration of, the hospital staff—”

“I object to the form of the question. It’s confusing. Also, Your Honor, this is a hypothetical question and he’s attempting—by using the name of the defendant—to make it not hypothetical.”

“I believe that objection is well-taken, ladies and gentlemen. Please disregard whenever Mr. Thomas has mentioned the defendant.”

“Number four,” continued Josh Thomas inexorably, “assume that the defendant appeared to be stable, competent, and extremely concerned about the welfare of both children, and that all the doctors were confounded as to the cause of the victims’ illnesses.  Now assuming these facts, Dr. Blinder, do you have an opinion as to whether these facts indicate behavior on the part of the defendant that is consistent with that exhibited by mothers affected by Munchausen Syndrome by Proxy?”

“I have an opinion. Your hypothetical person evinces symptoms consistent with that syndrome.”

“Now, Doctor, could you describe the symptoms of Munchausen Syndrome by Proxy?”

“Yes. The illness is typically a dramatic one. Every case I’ve read involves the mother, who is typically outwardly devoted to the child. By contrast, the father tends to be peripheral—it is clearly the mother’s show. Often these mothers have unmet needs from their own parents, and they transfer these to the authority figures represented by the doctors, nurses, spouses, maybe even the community. There’s another side of the coin in that there is a certain amount of anger and depression in the mothers, and they punish the parent-surrogates—that is, the doctors and nurses—by making the child more ill despite the best efforts of the physician to save the child.

“The mother will flourish on the ward, and the concern and competence of these mothers and their apparent strong motherliness makes it hard for the doctors to suspect them. The mother may have an underlying depression or suicidal inclinations, but they’re well hidden behind all this activity.

“When the mother is confronted with evidence, she cannot accept responsibility, even when the evidence is incontrovertible. This is largely an unconscious process with a great deal of denial,” Blinder added.

“Are these persons psychotic or mentally ill?” Josh asked.

 “The literature describes some mothers who are frankly psychotic. But a great number of mothers who do this are not overtly mentally ill.”

“What is usually the primary intent involved on the part of the mother regarding attention?”

“To become the focus of attention themselves. To win sympathy and acclaim for being ‘supermom.’”

“Now, without a clinical examination, are you able to say with reasonable certainty that this defendant was or was not suffering from Munchausen Syndrome by Proxy?”

“No. Without a clinical examination I cannot.”

At least he had been honest on that point, Ed thought as he stood to conduct his cross-examination. Ed had studied all the articles on Munchausen Syndrome by Proxy—only one of which actually mentioned the syndrome by that name—with a great deal of care. And he had found significant differences between the mothers described in these articles and Priscilla Phillips—or rather, the hypothetical mother in the district attorney’s questions.

“Let us look at the article on Munchausen Syndrome by Proxy that appeared in the British journal
Lancet—
an article by Dr. Roy Meadow. There are two cases in that article, one a girl named Kay, the other a boy named Charles?” Ed began.

 “Yes.”

“Now I want to ask you whether the following facts about Kay’s and Charles’s cases fit our hypothetical mother. In Kay’s case, the mother was not as concerned as the doctors about Kay’s illness. Did you find that in the history of the hypothetical mother, Doctor?”

“No.” An experienced witness, Blinder did not amplify.

 “Many times Kay was taken to the hospital during holiday periods. Similar?”

“No.”

“Kay’s mother reported false medical history. Similar?”

“That was implied but not explicit in the hypothetical.”

“Kay’s mother added her own urine or menstrual discharge to her child’s sample. Similar?”

“No.”

“Kay’s mother had an extensive medical history that she concealed. Similar?”

“No.”

“Kay’s mother felt her husband was more interested in Kay than in her. Similar?”

“No.”

“Charles’s mother was a nurse. Similar?”

“No.”

After Charles died, his mother attempted suicide. Similar?”

“No.”

“Charles’s mother was an hysteric. Similar?”

“No.”

“Charles’s mother interfered with wounds healing. Similar?”

“No.”

Ed continued in this vein with several more medical articles that Blinder had used as a basis for his opinion. Blinder agreed that his hypothetical mother had not battered her children, had not lacked family support, nor been hospitalized for depression. It was an impressive litany of differences that Ed continued following the afternoon recess.

Judge Burke, meanwhile, in an attempt to underline its seriousness, read and then reread to the jury the instructions concerning hypothetical questions. It was vital, he told them, that they understand how hypothetical questions functioned in a court of law.

“Hypotheticals are allowed only with
expert
witnesses,” he said. “That witness may assume a set of facts and give an opinion based on them. The assumed facts need not have been proved, but must be within the probable or possible range of the evidence. If the jury should find that the facts assumed have not been proved, it should determine the effect of that failure of proof on the value and weight of the expert opinion.” Then Caldwell continued his cross-examination, moving to a more crude
ad hominem
attack on Martin Blinder’s character. He tried to paint the doctor as a flake, asking him about some of his extracurricular activities. In addition to once serving as mayor of San Anselmo, writing a book on psychiatry and the law, and lecturing on jury selection, Blinder had been involved in several less conventional activities.