Doc: The Rape of the Town of Lovell (52 page)

A No, I didn't.

Q Are you aware that you are supposed to report venereal diseases?

A Yes, I am aware of that.

Q You didn't report this, though?

A No, I didn't.

Q It does not appear on the chart, does it? Yes or no?

A To a doctor, yes. ... A doctor who would read this would know what is going on.

As the cross-examination intensified, Story began drumming his fingernails lightly on the armrest of his chair. Tharp turned to another line of questioning, one which he'd prepared the night before with Dr. Rand Flory and two other local physicians:

Q ... You did a pelvic on [Julia Bradbury] on that day?

A Yes, I did.

Q Did she ask you to do a pelvic?

A (looking at records) It doesn't really indicate. So often after—

Q Did she ask you? Do you recall her asking you to do a

pelvic?

A I don't recall anything like that. That's been some time ago. Q ... What is a cystocele? A It is a herniation of a bladder.

Q You are saying that was the reason for the so-called "stress incontinence" you talked about [in direct examination]? A Yes.

Q Have you read any text on stress incontinence, Doctor? A Have I read any text on it? Q Lately.

A Oh, I'm not sure that I have recently. Q Do you recognize any specific text as authoritative in gynecology?

A There are lots of texts. I have no specific one that I would name.

Q Would you consider a book called
Obstetrics and Gynecology
a clinical core of authority or at least reputable in the field? By Ralph M. Winn? He is a doctor. A I have never read it. I don't know. Q So you don't know? A I have no idea.

Q Now you said she was having problems with stress incontinence? A Yes.

Q Would a cystocele cause that? A A cystourethalcele would, yes.

Q We are talking about a cystocele here. That is what you have got in your records. A Yes. It is rather casually written.

Q ... Do you recognize that as authoritative, the text I just mentioned? A I am unfamiliar with that text. Q Are you familiar with any texts? A Well, I believe with some, yes. Q What?

A Oh, Cecil and Conn. Q Would you recognize that as authoritative? A Oh, at least in some fields. Q What fields?

A Oh, fields of medicine, internal medicine.

Q What about gynecology? Do you recognize any text as authoritative in gynecology?

A Well, I would—I'd have to use it and—

Q You really don't know of any authority? That's what you are saying?

A Oh, I have them in my library.

Story's voice remained calm, but his hands continued their little jerks and spasms as the prosecutor mentioned the times the doctor had ignored suggestions that he have a third party in the examining room. "How about Nelson St. Thomas?" Tharp said. "Are you aware of what he said in direct questioning?"

Story said, "Maybe you had better refresh my mind."

"Well, he said he turned you in to the Medical Board. Do you remember that?"

"Oh, yes, I do remember him saying that."

Medical Board proceedings were secret, and the St.Thomases had no proof that they'd written to the Board or received a reply. "Do you remember anything about that, the Medical Board?" Tharp asked offhandedly.

Story's fingernails clicked on the armrest as he said, "I have a letter, yes."

Tharp felt like grinning. Story had volunteered confidential information that couldn't have been elicited in any other way.

Q And that was over a situation involving a pelvic exam, wasn't it?

A Yes, it was.

Q And you weren't concerned enough about that to get a third person in the room, were you?

A I think I understood the complaint.

Q But you didn't get a third person in the room thereafter, did you?

A I think I understood the complaint.

Tharp returned to the subject of Julia Bradbury, asking how long the elderly woman had been his patient before quitting him—"seventeen or eighteen years?" "Maybe nearly that long," Story answered. "I can sure look it up and see for you."

"I don't want you to look it up, Doctor. Would you say seventeen or eighteen years?"

As Aarestad objected, the prosecutor became aware of muted catcalls from the Story side of the audience. They grew louder when he asked if Story had heard Mrs. Bradbury testify that she'd put a red "R" on her calendar.

"I was aware of that," Story said.

The judge slammed his gavel and said, "Ladies and gentlemen in the audience, I'm going to caution you against any outbursts or any snickering. If it continues I will have to clear the courtroom. I don't want to do that. But if it continues I
will
do that. Continue, Mr. Tharp."

Q Somebody might conclude that you did something improper in that examination, Doctor. Couldn't they?

M
r.
A
arestad
Objection! Argumentative and calls for speculation by this witness.

T
he
C
ourt
Sustained.

Q ... Did you ever single any of these women out?

A I beg your pardon?

Q Did you ever single any of these women out?

A I don't understand.

Q Well, because of a particular vulnerability, did you pay special attention to them?

M
r.
A
arestad
I
am going to object. Counsel is trying to engage the witness in argument.

T
he
C
ourt
Overruled.

T
he
W
itness
No.

Tharp expected a flat denial to his question about whether it was physically possible for a woman to be sexually assaulted during a pelvic exam. But Story surprised him again. "I would have to agree with Dr. Flory," he answered, "that it would probably be possible." Tharp took the opportunity to underline the helplessness of the victims:

Q It is a pretty vulnerable position up there, isn't it?

A Vulnerable in several ways, yes.

Q Hard to move. It wouldn't be easy to get down off that table, would it? If you needed to move suddenly?

A I'm not sure.

Q Have you ever been up there on that table?

A No, I guess I haven't.

Q What about the drape? These women have all testified that they couldn't see. There is a reason for that, isn't there?

A They couldn't see, you mean?

Q Yes.

A You better—

Q You don't know of any reason for that? Is that your testimony?

A I don't understand your question.

Q Is there a reason you draped the women in the way you did?

A The way I do? Yes. I drape them for modesty and to cover them.

Q How about so they can't see?

A No. Untrue.

At three minutes to three, Tharp said he had no further questions and the judge declared a twenty-minute recess. On redirect examination, Aarestad set about repairing some of the damage:

Q You indicated, Dr. Story, that you thought it was possible to have a sexual union on that table. Do you recall that testimony?

A ... Well, yes, words to that effect.

Q Okay. Could you explain that, please?

A Well, you would have to have, you know, a lot of cooperation to . . . We talked earlier about the vaginal inclination. It would take a lot of cooperation to have sex on the table.

Q What is the vaginal inclination when a woman is on the pelvic or in the dorsal position?

A If her knees are up, it is way up to thirty degrees or so. The higher the knees, the greater the angle.

Q What if they are simply in the stirrups as in a normal pelvic exam?

A Well, that increases the inclination up to closer to thirty degrees.

Q And I assume you are familiar with the male anatomy? A Yes.

Q Okay. Does the male anatomy point down at the direction of thirty degrees? A No.

On recross, Tharp asked, "You are not saying it is not impossible though, are you, Doctor?"

"To use the table for a place to have intercourse?" "To insert a penis into a vagina with a woman lying on that table in the lithotomy position?" "Without cooperation, yes—" "How about by surprise?" Tharp interrupted. "No, with cooperation."

Aarestad jumped up and said, "I would ask the witness be allowed to finish his answer before the next question is asked."

Story continued, "With an awful lot of cooperation it could be done."

Q (By
Mr.Tharp) How
about by surprise? A That's not cooperation. I don't think so. Q You are saying you could insert a speculum in there. Is that true? A Yes.

Q You could insert fingers in there? A Yes.

Q But you can't insert a penis?

A Not without cooperation. You couldn't insert a speculum without cooperation, I don't think.

Tharp pointed his tinted glasses at the witness box. "But the patient is draped as you have shown us?" he asked.

"Well," Story answered, "we are talking about with the knees up, aren't we?" "Yes."

"That's difficult."

The prosecutor resisted the temptation to ask, How do you

'DOC'

know it's difficult?
Have you tried?
But indirection was usually more effective. Juries liked to be treated as though they had reasoning powers of their own.

"All right," he said. "I have no further questions."

80

EXPERTS

Insuranceman Cal Taggart, former Lovell mayor, flew up from his winter home in Sun City West, Arizona, to testify for his friend and personal physician. He called Dr. Story "honorable, honest, truthful" and said he'd never lied to him. "I have no qualms at all to stand up for Dr. Story."

Over objections from Aarestad, Tharp got the former state senator to admit that he'd interceded with the governor on Story's behalf.

Dr. Douglas Wrung, Story's friend and fellow churchman, sent embarrassed titters through the courtroom by testifying that a physician would have to have a twelve-inch penis to accomplish intercourse during a pelvic exam—"and I frankly don't know of any human being that has a penis that long."

On cross-examination, Tharp asked the physician to stand facing the head of the Ritter table. Over more defense objections, he instructed Wrung, "Could you touch the edge of the table with your clothes, please . . . ? Could you touch the foot pedal and raise that table to the level of your belt?"

Wrung complied.

"Thank you," the prosecutor said. "Now lower it to the level of your genitals, please. . . ." The table dropped into perfect alignment. "And now could you stand there with your clothes touching the edge?" The jurors craned their necks to see. "Thank you. You can resume the witness stand."

Like several defense witnesses before him, Dr. Wrung denied writing a letter of support to the Lovell
Chronicle.
He explained that the letter had been written by his wife.

Just before 4
p.m
., court was adjourned after the judge explained, "The Defense has indicated they have no more witnesses today. . . . There is a witness that will be flying in here and his arrival will be rather late, so we will start about ten."

That night, Marilyn Story attended a Bible Church prayer meeting for her husband and then wrote in her journal:

"Thursday, April 11, 1985: Today John is on the witness stand just about all day. Wayne said he did well. The prosecutor made him go through all the records and count the number of pelvics he gave. He took his time—Wayne liked that. He didn't get upset with Tharp even tho he had every reason to. Wayne had seriously warned him about that and prayed with him."

The delayed airborne witness turned out to be Dr. John E. Buster of Long Beach, California, a UCLA faculty member and board-certified obstetrician and gynecologist. Speaking slowly and distinctly, the expert witness gave a thirty-minute slide show describing the female organs and the proper technique of pelvic examinations.

Aarestad referred him to Story's medical records and asked if pelvics had appeared to be medically necessary on the days of the alleged assaults. Buster said yes. Speaking directly to the jury and sometimes smiling, he added that each of Hayla Farwell's twenty-nine examinations had been required by her condition, as had the many examinations of Wanda Hammond, Mae Fischer, Emma Lu Meeks and Emma McNeil.

On cross-examination, Tharp established that some of the

records Dr. Buster had reviewed were incomplete and that he'd appeared as a defense witness in other criminal trials.