Alibi (60 page)

“Something like that.”

Joe nodded. “This isn’t what this case is about, David, at least not for you and Sara. This is about saving your client, not about what either of you may believe personally.”

“And if it was you? Could you get up there and argue that some unborn kid was basically nonexistent in the eyes of the law?”

“I’m a homicide detective with four kids, David—I’m not the one to ask.

“If it helps,” added Joe after a time, “there is another way you could look at it.”

“How so?” asked David.

“Well, it seems to me that the child is not invalid if it saves his father’s life.”

And David nodded, wondering how Joe always managed to say the right thing at the right time, no matter how dire the circumstances.

“This job sucks,” David responded at last, lifting his beer to his lips and draining the rest of his glass in one gulp.

“Yeah well, it could be worse,” said Joe, doing the same before reaching into his pocket and throwing a fifty on the table. “Instead of sharing this fine drink with me, you could be at home giving yourself a facial and manicuring your toenails like your fancy fucking opponent.”

“It’s called a pedicure,” smiled David. “And I was gonna get to that as soon as I get out of here.”

And Joe smiled in return. “I won’t keep you then.”

The weather was closing in. David looked to the windows. The high, narrow openings on the far right-hand side of the room were now covered in snow, the result being an eerie white light that beamed directly on the jury below.

The morning session for the third day of trial had been delayed an hour to allow for all the jury to be present. There was talk of putting them up in a nearby hotel if the snow got much worse, which was looking more and more likely by the minute.

David was uneasy. They knew this day would be tough—the accomplished Professor Nancy Wakeford followed by the beautiful Barbara Rousseau. While they knew their argument for fetal viability was backed by reams of documented precedent—information that proved Massachusetts law did not generally acknowledge a fetus as a “life” until the unborn child had reached the critical benchmark of twenty-three weeks—they feared Katz would use the professor’s expertise to tear at the jury’s heartstrings by detailing the formation of Jessica’s thirteen-week-old pregnancy—and it did not take long for them to be proven right.

“Ladies and gentlemen of the jury,” said Stein after entering, flipping his robe, and taking his seat at the podium. “I want to thank you for all of your kind efforts to be here. I know it took me over half an hour to walk ten paces this morning so . . .”

And the jury laughed—appearing happy to start the day on a lighter note.

“Having said that, I know you are all anxious to get moving so . . . Mr. Katz,” said Stein, turning his attention to the ADA. “Are you ready to call your next witness?”

“Yes, Your Honor,” answered the Kat, looking as suave as ever in a dark charcoal suit and a crisp white shirt. “The Commonwealth would like to call Professor Nancy Wakeford, but before the professor so kindly graces this court, I wonder if I might ask the clerk’s assistance in reassembling those very helpful easels, so that this witness might refer to some highly specialized images as part of her expert testimony.”

David looked at Sara, both knowing their worst fears had been realized.

“It’s all right,” she whispered to him as the Kat supervised the assembly of his props like a stage manager commanding his “hands.” “I’ve got this covered.”

And he nodded, hoping to all hell that she was right.

The Kat began once again by asking about the professor’s credentials—a long, drawn-out process, which, in the very least, David suspected, was boring the jury senseless.

Wakeford—an attractive woman in her early forties with neat red hair and wire-rimmed glasses—spoke of her graduating with high distinction from Yale’s highly respected School of Medicine where she specialized in obstetrics, gynecology and reproductive sciences. From there she had completed further courses in fetal medicine and developed a special interest in pregnancies involving children with prenatal disabilities. At one point she even pointed to her semi-regular appearances on
Oprah
, which, David noticed, had the previously lethargic jury sitting at attention once again.

“Professor,” Katz went on, “you have seen Dr. Svenson’s autopsy notes in regards to this case, have you not?”

“Yes, Mr. Katz. In fact, I have studied them in detail.”

“Right. And you agree Jessica Nagoshi’s unborn child was approximately thirteen weeks of age?”

“Yes, if not perhaps a fraction older. The fetus in question was almost four inches long, which suggests a fourteen-week-old fetus—but close enough or thereabouts.”

“I see,” said Katz before looking up to Stein. “Your Honor, at this point I would like to ask the court’s permission for the witness to leave the stand and use this pointer,” he said, holding up the long narrow stick in his right hand, “as a guide so that the jury might learn more about the child’s development at the time of its murder.”

“Objection!”
yelled Sara, getting to her feet. David had told her to take control of this witness from the outset, and the jury seemed pleased to see this new, attractive player throw her hat into the ring.

“First of all, Judge,” she began. “The fetus should be referred to as a fetus and only as a fetus. A thirteen-week-old fetus is a long way from becoming a child by pure medical definition, as I am sure Professor Wakeford would agree.

“Secondly, the ADA’s reference to ‘murder’ is both inappropriate and extremely presumptuous. Mr. Katz promised this court some months ago that he would convince it of this fetus’ viability, but unless I missed something in the last sixty seconds, I am afraid his argument is yet to be established.”

The jury smiled. They liked this new girl. She was quick and smart and fast.

“She’s right, Mr. Katz,” said Stein. “On both counts. The fetus shall be referred to as a fetus for the remainder of this trial and you, Mr. Katz, will refrain from any dramatic hyperbole in your examinations.”

“Yes, Judge,” said an obviously displeased Katz. “But I am afraid you are yet to address my request regarding . . .”

“I was getting to that, Mr. Katz,” interrupted Stein. “The witness may leave the partition, but the moment I sense this is turning into a three-ring circus, I will shut you down. Do you understand, Mr. Katz?”

“Yes, Your Honor,” he said, before handing the pointer to his witness and ushering her on to the floor.

The next hour was nothing short of disastrous, as Wakeford described the thirteen-week-old fetus in detail, from the tip of its tiny head to the soft toenails now forming on its miniature but visible feet. The witness spoke of its weight—about an ounce, its head—now the third of the size of its body, its functioning kidney and urinary tract, and developing respiratory and digestive systems.

“The baby’s face is looking more and more human,” she went on. “The eyes have moved closer together and the ears are near their normal position on the side of the head. At this stage the baby’s heart is pumping about twenty-five quarts of blood each day. The liver is making bile and is supervising the activity of a fully working spleen. At thirteen weeks the fetus is also able to absorb sugar and pass urine.”

“Amazing,” said Katz, shaking his head. “And is this . . .” he said, feigning interest in one of the blowups, “is that hair I see on this fetus’ head?”

“Yes.” Wakeford smiled. “And if this picture was magnified further,” she said, directing her pointer to the image, “you would also see fingerprints and the beginnings of eyebrows.”

“And what about its behavior, Professor? Is the child . . . I’m sorry, the
fetus
, doing anything significant that it had not been doing, say, a week or even days previously?”

“Yes,” said a satisfied Wakeford once again. “In fact, thirteen weeks is a wonderful benchmark. At this stage the fetus is acquiring reflexes. It will respond to touching the palms by closing its fingers, or curling its toes if you tickled its feet.”

“Go on, Professor,” said Katz, milking the woman’s testimony for all it was worth.

“At thirteen weeks the fetus also begins to suck its thumb, as can be seen here,” she said, moving to another shot and pointing her stick in delight. “And it smiles for the very first time,” she said, her eyes drifting toward the jury in delight. “And more importantly, at least for the parents concerned, thirteen weeks is the watershed for miscarriage or lack thereof.”

“I don’t understand,” said Katz, scratching his head, David and Sara both knowing that he knew damn well what his witness was referring to.

“At thirteen weeks, Mr. Katz, the mother’s chances of miscarriage falls to an extremely low 0.9 percent.”

“I see,” smiled Katz, like an expectant father himself. “So what you are saying is that the fetus in question, Jessica Nagoshi’s unborn son, was well on the way to becoming a potentially happy, extremely healthy, little boy.”

David heard his client let out a sigh beside him.

“Most certainly,” said Wakeford before converting her own smile to a fresh expression of sorrow. “I have dealt with many high-risk pregnancies, Mr. Katz, but this fetus was as healthy as can be.”

“Until someone killed his mother,” said Katz.

“Yes.”

“And shut down all those wonderful developing systems.”

“Yes.”

“And sent the unsuspecting fetus into cardiac arrest.”

“I am afraid so, Mr. Katz,” she said, shaking her head, before stealing a glimpse at the defendant. “I am afraid so indeed.”

“Just one more question, Professor. You mentioned earlier that there was a possibility this fetus was closer to fourteen weeks, is that correct?”

“Yes.”

“And is there anything significant about development at fourteen weeks that could be relevant to this case?”

“Yes, Mr. Katz. You see at fourteen weeks, the fetus begins to hear . . . and
feel.”

“Incredible,” said Katz, now making his way across to the jury. “Can you give us an example of this feeling sensation from inside the womb?”

“Well, if a mother was to prod her belly, the fetus would be able to feel it, and respond by moving about. Some mothers even report ‘quickening’ or flutters of movement as their unborn child shifts about inside them.”

“I see,” said Katz, now standing straight in front of the twelve. “So if they can feel the prodding, would it be the case they can feel other sensations as well?”

“Yes,” said Wakeford, her eyes now downcast. “At fourteen weeks they start to feel pain.”

“So you are saying it is possible this fetus felt the process—the pain—of its own demise?” said Katz, now looking each of the jury in the eye.

“Possible, yes,” she said.

And Katz paused, allowing the jury to take this in. “I have no further questions for this witness, Your Honor.”

“Professor,” said Sara, who took a long, strong breath and swallowed her burgeoning nerves before approaching the witness quickly, her high but conservative heels tapping loudly across the hardwood floor. “Where were you born?”

It was an odd first question, which took Wakeford by surprise.

“Ah—Charlestown, West Virginia.”

“And you grew up in Charlestown?”

“Yes. Until I was twelve, when we moved to Richmond.”

“Virginia.”

“Yes.”

“But you studied in Connecticut?”

“New Haven. At Yale. Yes.”

“And did you know, Professor, that West Virginia and Virginia and Connecticut have different laws regarding feticide?”

“Ah, I believe West Virginia recently passed a new fetal homicide statute making it a separate offense to kill a fetus starting at conception. And as for Virginia, I believe that while they do not have unborn victims’ laws, they do criminalize certain conduct that terminates a pregnancy or causes a miscarriage.”