Informed Consent (14 page)

N
aya barreled
into the conference room. “Still no sign of him,” she said, snapping her fingers.

Sasha checked the time.
8:40.
Dr. Kayser should have arrived forty minutes ago. If he walked through the door right this minute, they’d have
maybe
a half an hour to go over Mrs. Chevitz’s affidavit and his testimony regarding the larger issue of consent before they had to head downtown to the courthouse.

She pressed her fingers against her temples and willed herself to stay calm. “Okay. Try his cell phone again.”

Naya wrinkled her forehead and punched the number into the conference room phone. Within seconds, she was shaking her head. She dropped the phone back into its cradle. “Same as last time, Mac. It rolls straight to voicemail then I get the recording that his mailbox is full and not accepting messages.”

They stared at each other in dismay for a full ten seconds. Then Sasha raised her shoulders and shrugged. “If we have to go without him, we’ll figure something out. I’ll call his office again.”

She redialed the main number for Dr. Kayser’s office and listened to the line ring. And ring. And ring. She was about to hang up, when a harried, breathless voice answered.

“Good morning. Doctor Kayser’s office. Please—”

“Lucy, wait. Don’t put me on hold.”

“Attorney McCandless?” Lucy asked.

“Yes. Please tell me he’s there?”

“He still hasn’t shown up. He emailed last night and said to call and push back his morning appointments because he was going to be in court. If he did come in and do some paperwork early like he’d planned, he was already gone when I got here at seven thirty. Maybe he decided to meet you at the courthouse?” Her voice was a mixture of hope and worry. Sasha knew the feeling.

“Maybe,” she allowed. “We’ll head to the courthouse now, in case there was a mix-up and he’s there. If you hear from him, please tell him to look for us there.”

“I will,” the receptionist promised. “And good luck.”

“Thanks.” She ended the call and turned to Naya, who was staring at her with wide, concerned eyes. “Let’s pack it up and go. Maybe he got confused and went straight to court.”

Naya twisted her mouth into a little moue of disbelief but said nothing.

“Or he was in a car accident. Or he met the woman of his dreams last night and is halfway to Tahiti. I don’t know. He could be anywhere. What I do know is if
we
don’t show up, Judge Nolan’ll file a bar complaint so fast your head will spin. So get your stuff and let’s go.” Sasha wasn’t kidding. Nolan had reported more attorneys to the bar for violations than the rest of the local bench combined.

Naya started packing up the files on autopilot. Sasha’s pulse was racing and she could hardly breathe from worry but she hid her panic. She was the senior partner. Naya would take her cues from her. As long as Sasha acted as though it was no big deal that their sole witness was a no-show, they could just keep putting one foot in front of the other and muddle through.

For the first time in a long time, Sasha thought about her old mentor, Noah Peterson. Peterson had told her long ago that trial advocacy was one half bravado, one half theater, and one half law. She’d pointed out that that equation equaled three halves and he’d said, ‘that’s the kind of nitpicking that’ll get you nowhere, Mac. If you’re going to tell a judge that one plus one plus one equals two, say it with conviction. The louder, the better.’

Winging it wasn’t Sasha’s style. She was more of a fanatical, methodical planner. But it looked like today she’d have a chance to put Noah’s method to the test.
Oh, joy.

A
nnabeth Douglas cupped
her hands around her mug. Leo eyed the seasonal concoction with a distrust that would have made his wife proud—the coffee was mixed with chocolate, pumpkin, whipped cream, and who knew what else. Annabeth seemed to be enjoying it, though, based on her blissful smile.

He raised his own house drip—the Black+Gold, no milk, no sugar—to his mouth and took a drink. He wondered how Sasha’s coffee minimalism rubbed off on him without his noticing and suppressed a grin.

“What do you want to know about the Born to Kill trial?” Annabeth asked, absentmindedly petting Mocha, who had curled up at her feet under the table.

“Everything you can tell me. I read what I could about the gang on-line, but there’s not much detail there.” As he spoke, he rolled the double stroller back and forth across the porch’s uneven plank floor in a rhythm intended to keep the napping twins asleep.

She tapped a finger along her jawline between her chin and her ear as she thought. “Okay. Born to Kill started as a New York street gang made up of young Vietnamese men in the early- to mid-1980s. From what I understand, after the Fall of Saigon, some Vietnamese teenagers made it safely to the United States in the late 1970s. They were scattered throughout the country, but by 1980 or so they somehow congregated in New York, where they briefly fell in with the Flying Dragons.”

“That’s a Chinese gang, right?”

She nodded. “The Vietnamese guys were pretty tough, so they worked mainly as enforcers for the Flying Dragons for a while. A guy by the name of David Thai left the Flying Dragons, taking along a cadre of Vietnamese gangsters and forming his own gang. They originally called themselves the Canal Boys because their territory was Canal Street. They’re largely responsible for establishing Canal Street’s flourishing counterfeit market. But by the late 80s, they were calling themselves Born to Kill.”

“Any idea where the name originated?” Leo asked, although he already knew from his research. Early in an interview, he found it helpful to establish a conversational rhythm. An effective way to do so was to let the witness talk at length about background information.

“Apparently, ‘Born to Kill’ was a phrase some American soldiers wrote on their M-1 helmets during the Vietnam War. The gang adopted it, and I have to say it was fitting. Born to Kill was, for several bloody years, the most violent of Chinatown’s Asian gangs. Gang members got distinctive tattoos featuring the letters ‘B.T.K.,’ which, as you might imagine stood for ‘Born to Kill.’”

“These tattoos, did they also have a coffin and candles?” Leo leaned forward, eager to hear her answer.

“Right. Three candles. The coffin and candles were supposed to signify that the gang members had no fear of dying.” She shivered involuntarily. “It’s been years, but I can remember them sitting in that courtroom, hard-eyed and cold. They were completely devoid of remorse or, really, any emotion.”

That sounded like dear old dad, all right.

“The gang spread into other areas of the country that had good-sized Vietnamese immigrant populations—as far away as California, Texas, and the southeast. I believe they were even in Canada. They were big into prostitution and drug trafficking everywhere they operated, but they were especially active and violent in New York. They had a protracted turf war with the Ghost Shadows, another Chinatown gang, and were responsible for more than a few rapes and murders, including some murders for hire.”

“Tell me about the trial.”

“There were actually three big trials. I covered the third one. First, David Thai was arrested. Then the following year, the feds took down the first tier of leaders on racketeering charges.”

Now they were getting to the information he needed. “And the third?”

“After the leadership went to prison, B.T.K. was in disarray. There were still drug dealers, foot soldiers, and contract killers running around New York, committing crimes in the gang’s name. But no one was in charge. A handful of, well, mid-level managers, I guess, promoted themselves and took over. You had Vien Tran, who was a bookkeeper and managed the bootlegging. Quan Le, who was largely involved in the heroin trade. And then there was Duc Nguyen.” She stopped talking and stared down at her drink.

“What did he do?” Leo prompted her.

“Nguyen was an enforcer and a contract killer,” she answered slowly. “He racked up quite a body count during his time in B.T.K. When those three took over, they just ramped up the violence. It was a long couple of years for Chinatown. But in 1994, Tran, Le, and Nguyen were arrested and went to trial. I covered it from start to finish. The prosecution had wiretaps, live recordings, ballistics, mutilated corpses, eyewitnesses. They nailed them to the wall.”

“But they were never sentenced, were they?”

She shook her head. “The jury came back in less than an hour. Convictions for all three. But, on the sentencing date, the prison van transporting them back to court was ambushed and fire bombed on a deserted stretch of highway outside the city. All three prisoners, as well as the guards and driver, were basically incinerated. Ghost Shadows claimed credit, but so did Flying Dragons. That, in turn, set off a war between the two Chinese gangs, and law enforcement focused on trying to quell that. No one ever closed the loop on the van ambush. I guess the thinking was that it didn’t really matter—the three men were off the street and B.T.K. sort of limped along as a minor player after that.” She let out a long breath and then inhaled, as if she were trying to use the crisp autumn air to cleanse herself of unpleasant memories.

Leo nodded to himself. Hank, as one would expect, had limited his searches to living people. Faking your death was a time-honored way to give yourself a new life.

After a long, quiet moment, she lifted her coffee cup to her mouth and pasted on a too-bright smile. “So, what’s this about a scoop?”

J
udge Nolan was not amused
. Sasha didn’t know the woman particularly well, but then one didn’t need to be the judge’s closest gal pal or an expert in psychology to tell that she was pissed.

The judge loomed over her desk and stared directly at Sasha. She forced herself to meet the judge’s blazing eyes and not to shrink back in her chair.

“Let me see if I have this straight, Ms. McCandless-Connelly. Your client died yesterday and has already been buried, but instead of having the decency to call my deputy clerk and let us know so we could dissolve the order, you made Mr. Martinello traipse down here from the university for a pointless hearing on a moot point? Not only is this behavior inconsiderate in the extreme, it’s a waste of judicial resorts—in other words, my time. And now you tell us your witness is a no-show?”

From the other side of the judge’s chambers, George Martinello smirked at her. She ignored her adversary and focused on responding to the tongue-lashing.

“Respectfully, Your Honor, the issue isn’t mooted by Mrs. Chevitz’s death. There’s a real need to protect the patients at Golden Village. In fact, we plan to ask this court to extend and expand the TRO.”

Beside her, she saw Naya bracing herself for another explosion. At least the judge had ordered them into chambers so she could berate them off the record rather than in open court, Sasha told herself, trying to find a silver lining.

Martinello scoffed. “Oh, come on. Your Honor, she can’t be serious. The order prohibited Dr. Allstrom from harvesting Adina Chevitz’s brain tissue. The woman’s in the ground now. It’s not as if Dr. Allstrom’s going to dig her up. This is ridiculous.”

Either the university’s attorney had seriously poor listening skills or he was deliberately misconstruing what Sasha had just said.

“I’d like to clarify my position for Mr. Martinello, Your Honor. He seems to be confused. We’d like to seek the extension of the temporary restraining order not to protect Mrs. Chevitz’s rights at this point. The order’s necessary to protect
living
residents of the facility. Dr. Allstrom has engaged in a pattern and practice of performing medical research without first obtaining informed consent. That’s a violation of federal regulation. And she’s given no indication that she plans to stop. The
only
reason she didn’t take a sample of Mrs. Chevitz’s brain was that the TRO was in place. Unless and until either the institutional review board or Golden Village holds her feet to the fire and forces her to comply with the law, this court is the only one with the power to prevent her abuses.” Sasha didn’t so much as glance in Martinello’s direction; instead, she kept her eyes locked on the judge.

“Is this true, Mr. Martinello? Is your doctor a cowboy?” Judge Nolan turned her anger on the other attorney.

He took his time answering. “Why don’t we go ask her, judge?
My
witness did bother to show up. So I’d rather you hear it from her.”

The pointed reference to Dr. Kayser’s absence rankled Sasha. She really hoped that when they went back to the courtroom, he’d be sitting in the gallery, appropriately contrite.

The judge stood. Sasha, Naya, and Martinello leapt to their feet, as well.

After retrieving her robe from the coat rack in the corner of her office, she shook out the wrinkles and pulled it over her head.

“Well, let’s do this,” she snapped as she pointed them to the door. Sasha and Naya trailed Martinello out of her chambers and down the corridor to the courtroom. Naya reached into her bag and discretely checked her cell phone.

“Any word?” Sasha asked in a low voice so that Martinello wouldn’t overhear her. She’d peeked at hers in the judge’s chambers; Dr. Kayser hadn’t tried to contact her. Maybe he’d called Naya.

Naya shook her head.

Martinello held the door open for them, and they walked into the courtroom. Sasha scanned the empty rows expectantly. Nope. No Dr. Kayser.

Sid Craighead, the judge’s affable deputy clerk; the court reporter; and Greta Allstrom all turned to watch them come in. Sid nodded in greeting as they took their places at counsel’s table, then he hustled through the door that led directly into the judge’s chambers to confer with his boss before she made her entrance.

As soon as the door closed behind him, Naya tugged on Sasha’s jacket sleeve. “Does Dr. Allstrom look sick to you?”

Sasha glanced over at the doctor, who was deep in conversation with Martinello. Now that Naya mentioned it, Allstrom did have a distinctly green pallor. And her face looked waxy, as if she’d been sweating.

“Nerves, maybe?” Sasha whispered back.

Naya shrugged.

As if she knew they were talking about her, Greta Allstrom looked over at them. Her pupils were dilated and her eyes darted rapidly from side to side. She didn’t look nervous—she looked terrified.

Perfect. She just had to keep Allstrom off-balance and defensive when she took the stand.

The judge’s private door opened, and Sid reemerged.

“All stand,” he intoned. “The Honorable Pamela Nolan presiding.”

The assembled cast popped to their feet as the judge swept into the room like royalty.

“Be seated,” Sid instructed them after the judge had arranged herself on the bench.

Judge Nolan smiled at the court reporter. “Ready to go on the record, Emily?”

“Ready when you are, judge.”

The judge peered down at Sasha from the bench. “Ms. McCandless-Connelly, it’s your party.”

Sasha and Naya rose to their feet simultaneously.

“Thank you, Your Honor,” Sasha said. She paused. Ordinarily, her next sentence—any attorney’s next sentence—would be to identify her client for the record. But seeing as how she didn’t technically
have
a client, she squared her shoulders and veered off script. “Your Honor, we’re here today because Dr. Greta Allstrom must be stopped.”

She could feel Naya staring at her—whether in horror or amazement, she didn’t want to know. She plowed forward. “The late Adina Chevitz was forced to spend her final hours on this earth securing an emergency TRO to enjoin Dr. Allstrom from violating her religious beliefs. A dying woman, unable to focus on saying her goodbyes to her family, all because of the arrogance of one doctor. A doctor who is unapologetic about her behavior. A doctor who knowingly, willfully violates best practices regarding informed consent. A doctor who has little, if any, apparent respect for the men and women who have generously enrolled in her research study to aid science.”

In her peripheral vision, she saw Martinello struggling not to interrupt her. Allstrom was glaring at her.

The judge held up a hand as if she were a crossing guard. “Hang on. Let’s get to the meat of the order, shall we?” She held a copy of the TRO at arm’s length and squinted down at the print. “I issued an order that prohibited Dr. Allstrom from interfering in any way with the prompt burial of the body of Adina Chevitz in compliance with Jewish law; specifically, I enjoined the doctor from causing any part of Mrs. Chevitz’s body, including, but not limited to, her brain tissue to be autopsied, biopsied, or sampled. And so on and so forth. Correct?”

“Yes, your honor.”

“Now, as I understand it, Mrs. Chevitz’s agreed to take part in Dr. Allstrom’s research study but at the end of her life she reconsidered because of her religious beliefs. I mean, this is a matter of a person, facing death, who changed her mind and revoked her consent. Yes?” The judge shifted her gaze to Martinello.

“Yes,” he answered.

“No,” Sasha said at the same time.

“Well, which one is it? Yes or no?” The judge practically snarled.

Martinello gave Sasha a sidelong look and then said, “Well, Mrs. Chevitz enrolled in a dementia study and signed an informed consent document agreeing to participate in Dr. Allstrom’s research. Now, when she was alive, her participation involved providing periodic blood samples. As Ms. McCandless-Connelly undoubtedly knows, the Common Rule, as codified within the Code of Federal Regulations protects
living
human study participants. The Common Rule does not apply to tissues obtained post-mortem.”

The judge shook her head in frustration. “What are you trying to say, Mr. Martinello? Try it again—in English, please.”

“It’s complicated, your honor. To the extent Mrs. Chevitz’s consent was required, Dr. Allstrom had it. It’s not at all clear that she needed consent to harvest post-mortem tissues, but since that activity did conflict with Mrs. Chevitz’s Jewish faith, no brain tissue sample was collected. This is a non-issue, frankly.”

“Wait just a minute. The reason her brain tissue wasn’t sampled was
because
I’d entered an order prohibiting the autopsy. Right?”

“I can’t answer that.”

“I can, your honor,” Sasha volunteered. “It’s beyond dispute that Dr. Allstrom knew taking brain tissue was against Mrs. Chevitz’s wishes because her personal physician told Dr. Allstrom as much. In addition, there’s also no question that Dr. Allstrom fully intended to harvest Mrs. Chevitz’s brain tissue
notwithstanding
that fact. Dr. Allstrom instructed a graduate student to go into the lab early on Saturday morning to wait for the brain tissue to arrive.”

Sasha paused because Allstrom and Martinello were engaged in a furious whisper fight.

“Counsel, that’s enough,” the judge barked. “Zip it.”

Attorney and client both zipped it, and the judge nodded to Sasha, “Go on, Ms. McCandless-Connelly.”

“So while the narrow issue covered by the TRO may be moot, the larger issue remains: Dr. Allstrom doesn’t seem to believe she needs consent to perform post-mortem brain autopsies
and
she’s willing to go forward with one even when she has actual knowledge that the patient in question
would not consent
. This is abhorrent. It cannot stand. So, we’d like the court to extend the existing restraining order to permanently cover every research participant enrolled in Dr. Allstrom’s study.”

“You want me to make the order permanent?” the judge echoed.

“Either that or order Dr. Allstrom to go back to each participant and explain the brain tissue harvesting and obtain a second, specific informed consent.”

Martinello interrupted, “Your honor—”

“Let me finish, counselor. First of all, I don’t think Dr. Allstrom’s reading of the Common Rule is a fair one.” Sasha gestured toward Naya, who somehow anticipated what she needed and pressed a copy of the CFR into her hands. “The regulations make clear that the key element in the informed consent process is transparency. Study participants must be adequately informed and must be given specific, detailed information. In this case, transparency demands that each prospective patient be told that, depending on the results of their blood tests, there may be a need or desire to take post-mortem brain tissue specimens. Dr. Allstrom didn’t do so. It may well be true that the Common Rule doesn’t cover specimens obtained post-mortem, but the Uniform Anatomical Gift Act does. Dr. Allstrom didn’t limit herself to specimens donated under the UAGA. No, she enrolled living patients in a study, obtained consent for the first portion of her work without telling them her ultimate goal, and then waited for them to die. That’s not acceptable.”

“I agree with you there, Ms. McCandless-Connelly. But presumably this research is important and in the public good, right?”

“Absolutely!” Martinello interjected. “Dr. Allstrom will be happy to testify as to the extremely beneficial anti-dementia supplement she’s created. In addition, if Ms. McCandless-Connelly would kindly stop interfering, the doctor is poised to take her research to the next level. She’s close to a breakthrough that would enable dementia sufferers to undergo a cutting-edge procedure to have the supplements applied directly to the myelin sheath via nano-robotic delivery. It’s an amazing advance. And the only hurdle left to clear is the study of brain tissue taken from people such as Mrs. Chevitz.” He took a moment to turn and glare at Sasha for effect.

“Dr. Allstrom,” the judge addressed her directly, “isn’t the simplest solution here to simply go back to the subjects and explain the next phase? Those who wish to consent can sign supplemental informed consent papers now, and then there’s no question as to whether you’re complying with the spirit of the law?”

“Well, your honor, that’s problematic,” Allstrom stammered.

The judge arched an eyebrow and waited. Allstrom turned to her attorney.

“Going back to the subjects now could raise more questions than it answers,” he said.

“How so?”

Martinello cleared his throat. “Some of the subjects have advanced dementia, judge. They don’t recognize their kids or know what year it is. If they were to sign off on a brain autopsy, an industrious attorney such as Ms. McCandless-Connelly over there will just come into court and claim they lacked the ability to consent.”

Sasha would have bristled at his tone, but the substance was true, so instead she agreed. “I might. But that’s no excuse to circumvent the informed consent process. It doesn’t exist for the researcher’s convenience; it exists for the subject’s protection.”

Judge Nolan now appeared to be equally irritated with both sides. “I’m inclined to extend this order, but I’m not making it permanent. Ms. McCandless-Connelly, you have three days to get me some actual statistics—how many people are affected by this? Of the enrolled patients, how many have confirmed dementia diagnoses? How advanced are they?”

Naya was scribbling furiously, taking down the directions.

“Yes, your honor.”

“Mr. Martinello, your client is to halt all brain tissue harvesting for seventy-two hours. Is that clear, Dr. Allstrom?”

Allstrom’s skin was so pale she was almost translucent. Her hands shook, but she nodded her understanding. “Yes, your honor.”

“One more thing, Ms. McCandless-Connelly. Don’t you dare show up here without a witness on Thursday.”