“You mean say that I did it? Isn’t that what you mean?”
“Well—”
“I won’t do that, Mr. Garety. I’m innocent,” she had protested.
“And she didn’t have any diminished capacity,” Steve put in. “You sent her to all those psychiatrists. They all agreed she isn’t crazy. That whole defense stinks.”
“Honey—”
“Well it does, and you know it!”
“I think you should get another attorney, then,” Garety said. “Of course I wish you both the best of luck,” he had added as he closed his dispatch case.
Edwin Train Caldwell had come highly recommended by Superior Court Judge Chuck Best. He was smart, hardworking, an advocate of defendants’ rights, and a dedicated lawyer.
Caldwell was strong-looking, with dark, straight hair combed in a sweep over his forehead, a long, well-shaped nose, and a full dark mustache. He had breezed through the initial interview confidently and attentively, putting Steve and Priscilla at ease with casual facility. Within a few days he agreed to take the case. He also asked an old friend and colleague to assist him. Al Collins was an experienced lawyer and district attorney; he shared space in Ed’s nineteenth-floor office, and since his wife was a biologist and medical technologist, he would be able to provide particular assistance in dealing with the medical evidence.
In one of his first pretrial maneuvers, Ed managed to reduce Priscilla’s $40,000 bail to $5,000. Although he tried to arrange her release on her own recognizance, the judge—despite a probation report recommending OR—denied this. Still, the lowered bail was a huge relief to Steve and Priscilla. They had promised Ed a $15,000 retainer, but they hoped to avoid a second mortgage on their house. With the return of $35,000, the Priscilla Phillips Defense Fund was able to furnish the retainer.
The summer of 1978 vanished in a haze of pretrial motions.
That summer Steve and Priscilla also officially abandoned all attempts to reclaim Mindy. In July, Mercedes Murphy of Catholic Social Service came to the house to pick up Mindy’s visa, explaining that the new adoptive parents were going to need it.
Priscilla packed up all of Mindy’s remaining belongings—the few things she had brought with her from Korea, some photographs, and a can of Korean formula.
“We’ve found a lovely family for her, Priscilla,” Mercedes told her. “They’ve already adopted a Vietnamese child with some medical problems, so they’re experienced. They’re a very loving family.” Priscilla, in tears, could not reply.
Fall sped by. Priscilla, with so much time and untapped energy on her hands, worked hard on the boys’ Halloween costumes. In November, a series of events that was later to affect Priscilla directly occurred in San Francisco. Supervisor Dan White resigned pleading that he could not live on his small salary, then changed his mind and asked for his seat back. When Mayor George Moscone refused, White entered San Francisco’s City Hall and shot and killed the mayor and a member of the Board of Supervisors, gay activist Harvey Milk. White’s trial was scheduled to start in April.
After Christmas, Priscilla began helping to prepare the case for the defense. Every evening she sat down with Tia’s and Mindy’s medical records, copies of which she had obtained from Kaiser, and pored over them, looking for mistakes or problems or evidence that supported her contention that Tia had died from an undiagnosed illness and that Mindy’s illness had been unconnected to Tia’s.
At the end of January, as the trial date approached, Priscilla flew back East and drove her mother, Marietta, to California to take care of the boys during the trial.
In early February, Priscilla, Steve, and Marietta—both separately and together—began seeing Dr. Satten, a psychiatrist.
It had originally been Priscilla’s idea to see the psychiatrist. Not long after the preliminary hearing, she began asking people, “What if I did it and don’t realize it? Could that be?”
Jim Hutchison suggested she take a sodium pentothal test.
“It would ease your mind about that, Priscilla,” he said. But she did not. Instead she talked to Mary Kilgore, the social worker who had provided Erik and Jason with grief counseling following Tia’s death. Mary recommended that Priscilla contact Joseph Satten, a top forensic psychiatrist. But when Priscilla asked Ed about it, Caldwell suggested that she wait.
“I think you should see him later,” he said. “He may in fact help the case, but I don’t think this is the appropriate time.” In February, on the eve of the trial, Ed recommended that therapy begin.
“We don’t know, going into this, whether Satten will even testify for us, whether he can help us,” Caldwell told Priscilla. “But it can only be to your advantage to see him.”
Dr. Joseph Satten had an admirable psychiatric background, including training at the Menninger Clinic, and positions as director of the law and psychiatry division of the Menninger Foundation and consultant to both the medical center for federal prisoners in Missouri, and the Kansas State Hospital for the Dangerously Insane. He had also acted as consultant to the film version of
In Cold Blood
and had been featured in Truman Capote’s book. Since 1971, he had been in private practice in San Francisco, where he concentrated his practice on family therapy. He still devoted about ten percent of his time to forensic psychiatry.
Priscilla liked Satten at once: a small, sweet-faced man with a graying, carefully tailored beard and squared off metal-rimmed glasses, he was warm, interested, involved. He listened intently; he took notes and made tapes. But he took a long time to formulate an opinion, and even as the trial approached, Caldwell did not know if Satten’s findings would help Priscilla or even if he would take the stand.
In February, various pretrial answers and responses were filed. The defendant’s motions to dismiss the information and to dismiss on invasion of privacy grounds were denied, but the motion for discovery was granted. This gave the defense the right to examine and copy virtually all of the People’s evidence. On the grounds that to allow the prosecution the same opportunity would violate the defendant’s right against self-incrimination, discovery was never extended to the prosecution. A list of jurors and their arrest records was also given to the defendant. But a far more important and unexpected ruling was made.
On Priscilla’s thirty-third birthday, the court ruled that Municipal Court Judge Gary Thomas, who had presided in the preliminary hearing, had erred in reducing the charge against Priscilla in the death of Tia to second-degree murder. The first-degree murder charge was restored. It was a shocking blow.
“It doesn’t mean they can’t still find you guilty of a lesser charge, Priscilla—as well as innocent, of course,” Ed Caldwell tried to soothe her.
“Oh God! It just seems like every little step forward is followed by a giant step back,” Priscilla answered, shaking her head. “You never know where you stand.”
“All we have to do is establish reasonable doubt,” Ed said. “So many people think we must prove innocence beyond a shadow of a doubt, but that’s wrong. Of course, you have to remember there is a presumption of innocence.”
“Well, there’s reasonable doubt all over the place. All those doctors who treated Tia and came up with diagnoses. She had those elevated VMAs and VIPs. Mindy had CMV. Those doctors had explanations for everything when Tia was sick—including the high sodium levels. How can they be so certain now? I know there’s reasonable doubt!” said Priscilla.
“Yes. But I’d like to be able to come up with a doctor or two who can furnish the jury with an explanation other than sodium poisoning. Dr. Holliday and Dr. Stephens make very strong witnesses. I’d like to be able to tear them down.”
But in this Ed Caldwell proved unsuccessful. He contacted medical experts in the Bay Area and throughout the country. Essentially they all told him the same thing: if the test results were accurate, the only explanation was an exogenous or external source of sodium. No other diagnosis presented itself.
It was a disappointment but Ed did not give up. He tackled the problem of Mindy’s contaminated formula, which was the cornerstone of the People’s case. Steve remained certain that someone with a grudge could have been responsible. Long hours were spent locating people—counselees and even a county probation officer—who Steve felt might wish his family harm. This also proved fruitless. Steve remembered that someone at Kaiser had once made an angry comment suggesting that Steve should have adopted an American child. Another dead end. It seemed clear to Ed that the defense could offer no alternative theories to the contamination of Mindy’s formula other than a general one: the refrigerator was accessible to all. Anyone might have spiked the formula. Perhaps the formula had somehow arrived contaminated. There was at least reasonable doubt.
After the preliminary hearing in June, District Attorney Bruce Bales had assigned the prosecution of Priscilla Phillips to his assistant, Joshua Thomas. Although Kit Mitchell had done an admirable job at the preliminary, as a matter of course the trial itself was handed over to someone with more experience and more seniority.
Josh Thomas had been trying cases since 1962, first in San Diego’s municipal courts, then in Marin county. He was known as a tireless and dogmatic attorney, always well-prepared, never at a loss.
At first, Josh Thomas had voiced skepticism about the Priscilla Phillips case. He was one of the district attorneys who had failed to support Ted Lindquist’s arrest warrant. But when the case was formally assigned to him and he began to pore over the medical records and interview the doctors, he changed his mind. As the weeks wore on, Josh eliminated the idea that Tia might have died from an exotic disease and became convinced that there had been a deliberate poisoning for which Priscilla Phillips was responsible. But this was a circumstantial evidence case, and where the case of the People rests chiefly on circumstantial evidence, the jury is not permitted to find the defendant guilty unless the proved circumstances are not only consistent with the finding of guilt, but also inconsistent with any other rational conclusion. Still, Thomas had no doubts, and neither did Ted Lindquist. The difficulty would be proving it to the jury.
“I’ve got to find a way to make all the medical elements understandable to a lay jury,” he told Ted on the eve of the trial. “They’re only going to hear it one time around.”
“Well, you’ve got the charts they used at the preliminary.”
“Yes, and those should help. I want to make up smaller versions of the charts to give each juror, so they’ll be able to follow the testimony about the electrolytes and sodium levels. Blood electrolytes were done routinely each shift—all of that information will go on each chart.”
“Dr. Shimoda and Dr. Carte and Evelyn Callas have worked for hours correlating all that information. That much is already done,” Ted said, eyeing Josh’s cigarette with longing. He had given them up in August, shortly after Pam had discovered she was pregnant, and now he was having a hell of a time keeping his weight within reasonable limits.
Ted turned back to Josh. “I think there’s another thing that may trip up Priscilla Phillips.”
“Yeah?”
“That’s the lady herself. You’ve seen the baby book she kept on Tia, with all those pictures of the grave and lists of people who had sent cards, like she was making a shopping list—and that notebook page figuring the mileage to the hospital so she could deduct it on her income taxes. You’ve seen that journal on Tia’s illness!”
“Yeah, and the
Redbook
article. What kind of a woman would be thinking about writing up an article on the death of her child for a magazine? I’ve got to get that all across to a jury, Ted, the kind of woman Priscilla Phillips really is.”
“She might just do it for you.”
“What do you mean?”
“You didn’t see her at the preliminary. She isn’t going to sit still and act passive and pathetic. They’re going to see her asserting herself and demanding attention. I don’t think she’s going to help herself out there. Just wait and see.”
Week 2
The jury was not complete until Tuesday morning, March twenty-seventh.
The final jury consisted of eight women and four men plus two women alternates. The jurors ranged in age from 20 to 69, with the overwhelming majority in their 30s and 40s. With the exception of the 69-year-old woman—a former librarian—each of the jurors was employed. Three of the women were involved in computer work, three were in secretarial or bookkeeping jobs, and the remaining woman was a teller in a local bank. Of the men, two were engineers, one a manager of a state disability insurance program, and the last a San Francisco fireman. In short, it was a typical Marin County jury: intelligent, respectable, straightforward, and reasonably dull.
On Tuesday afternoon, following the lunch break, Judge Burke addressed the jury and then turned to the opening statements.
Josh Thomas, a man in his mid-forties, balding, with thin gray hair and a military brush mustache, rose. When he spoke, his voice was pitched evenly.
“May it please the court and counsel, Mrs. Phillips, ladies and gentlemen. As Justice Burke has just indicated, this is my opportunity to outline for you the evidence that we will present in this case. This case is somewhat complex in nature and requires the understanding on your part of certain medical principles that will be explained to you by the various witnesses presented.
“The evidence will show proof beyond any reasonable doubt that the death of Tia Phillips, and the illness that Mindy Phillips suffered, were caused by the intentional, surreptitious, periodic administration by Priscilla Phillips of a sodium-based compound or compounds.
“There will be evidence that contrary to the impression that Priscilla Phillips has generated in the community, and—no doubt—will attempt to show here in court, of being a dedicated, concerned parent of Tia and Mindy Phillips, the opposite was true.” After naming some of the witnesses he planned to call and describing in general terms their expected testimony, Thomas addressed himself to the core of his case.